author: BROWN, Chief Judge.

text:
    GIBSLAND BANK & TRUST COMPANY, Plaintiff-Respondent v. KITCHENS, BENTON, KITCHENS & BLACK (APLC), Melanie F. McCullough and First Mercury Insurance Company, Defendants-Applicants.
    No. 47,763-CW.
    Court of Appeal of Louisiana, Second Circuit.
    May 15, 2013.
    Rehearing Denied June 20, 2013.

      Truitt Law Firm, Covington, LA, by Jack E. Truitt, Nancy N. Butcher, for Applicants.
    Rogers and Carter, Shreveport, LA, by Edward K. Carter, for Respondent.
    Before BROWN, STEWART, and LOLLEY, JJ.
   BROWN, Chief Judge.

| ]This is an action for legal malpractice filed by plaintiff, Gibsland Bank and Trust Company (“Gibsland”), against the lawyer who prepared a title opinion, her law firm and their malpractice insurer. The issue in this writ grant to docket is whether the suit filed by Gibsland against defendants, Kitchens, Benton, Kitchens & Black (APLC), Melanie F. McCullough, and First Mercury Insurance Company, was timely. Finding that Gibsland did not bring its action for malpractice within the time constraints set forth in La. R.S. 9:5605, we reverse and render.

Facts and Procedural Background

On July 31, 2008, Melanie F. McCullough, an attorney with Kitchens, Benton, Kitchens & Black (hereinafter “the law firm”), issued a title opinion on property owned by Oaketree Apartments, L.L.C., which was being used to secure a primary mortgage loan from Gibsland. The title opinion indicated that there were no mortgages or encumbrances on the property. A 1999 judicial mortgage by a third party, Michael Carr, on the debtor’s property had not been found in the title search. Based upon the law firm’s representations in the title opinion that there were no prior liens or encumbrances on Oaketree’s property, Gibsland granted Oaketree the loan.

On July 31, 2009, Gibsland sent the law firm a letter stating that Carr had filed suit against Oaketree to satisfy his 1999 money judgment by seizing the property and forcing a sheriffs sale. According to Carr, his judicial mortgage gave him a first lien position on the property. The bank’s letter to the law firm stated that “The Title Opinion prepared for the Bank by your firm and signed by Melanie F. McCullough ... did not reflect 12evidence of this existing judgment.” Carr’s intention to force a sheriffs sale was “cause for immediate concern to the Bank. The Bank is formally requesting research and remediation by Kitchens, Benton, Kitchens & Black on this situation in order to best protect the interest of the Bank.”

In August 2009, the law firm advised Gibsland that because the debtor’s name occurred in several documents and in the Webster Parish Mortgage Records incorrectly as “Oaktree” rather than “Oake-tree” Apartments, the bank’s position was defensible. The law firm also told Gib-sland at that time that the firm’s legal malpractice insurer had been contacted for appointment of legal representation.

In September 2009, Gibsland intervened in Carr’s suit and petitioned to enjoin the sheriffs sale and have the bank’s mortgage declared primary to Carr’s mortgage. A hearing was held on September 29, 2009. Carr introduced evidence that Oaketree had applied for refinancing with Gibsland in 2003, and that Carr had filed a “Partial Release of Judgment” in the mortgage records in 2003, in which Carr granted Oaketree a partial release of judgment as to two tracts of land in exchange for $80,000. Carr also introduced evidence that on the same date and at the same time that the partial release was recorded in the mortgage records, a collateral mortgage and a collateral assignment of leases and rents by “Oaketree” to the bank were also recorded in the mortgage records. The trial court ruled in favor of Gibsland, finding that its 2008 mortgage primed Carr’s 1999 money judgment. On appeal, this court reversed, finding that the public records provided sufficient notice of Carr’s judicial mortgage, which was ranked |-¡ahead of the bank’s mortgage, and of the 2003 partial release, both of which should have been discovered by the law firm in its 2008 title research. See Carr v. Oaktree Apartments, 45,514 (La.App.2d Cir.08/11/10), 46 So.3d 793, writ denied, 10-2092 (La.11/12/10), 49 So.3d 896.

On April 11, 2011, Gibsland filed the instant malpractice action. Defendants filed an exception of prescription, claiming that the one-year prescriptive period set forth in La. R.S. 9:5605, which begins to run from the date that a reasonable person was or should have been aware of the act(s) of malpractice, began running when the bank discovered that its interest in the Oaketree property was in jeopardy due to Carr’s lawsuit.

The law firm further asserted that Gib-sland’s July 31, 2009, letter, in which the bank stated its “immediate concern” about Carr’s claim and noted that the firm’s title opinion had not reflected Carr’s judicial mortgage, was evidence1 of the point in time when the bank became aware of potential damage caused by the law firm’s error.

In opposition to the exception of prescription, the bank claimed that in order to file a claim for legal malpractice, there had to be a negligent act and resulting damages. In the instant case, according to the bank, no damages were incurred until August 11, 2010, the date that the Second Circuit made an adverse ruling against Gibsland. The bank suggested that the malpractice was not evident, and therefore there was no viable claim, until the ruling by this court, because until that time, the trial court had upheld the bank’s position as holding the primary mortgage on the property. Therefore, prescription began to run from the date of the Second Circuit’s | ^ruling, August 11, 2010, and Gib-sland’s suit against defendants, which was filed on April 11, 2011, was timely.

The exception was heard on June 23, 2011. The bank’s president, Thomas Martin, and the bank’s attorney in the summary proceeding, Jonathan Stewart, testified at this hearing. Martin testified that he was concerned when he received the title opinion from the law firm because he knew that there was a prior judgment against Oaketree, but when he asked whether the judgment was still in place, McCullough advised him that it “wasn’t found.” Martin identified Gibsland’s July 31, 2009, letter to the law firm, in which the bank acknowledged its awareness of Carr’s intent to seize the property and that the title opinion did not reflect the existing judgment. Martin and Stewart agreed that the July 31, 2009, letter demonstrated the bank’s notice that its interest in the property was in jeopardy due to the law firm’s oversight. Martin further admitted that once the bank was initially notified of the malpractice, the bank could have sought further legal advice from another attorney to determine whether the law firm had actually committed malpractice, but chose not to do so. Stewart stated that he had notice of the potential malpractice claim in August 2009 when Kitchens advised him that he had notified his law firm’s malpractice insurer of the matter and had requested representation. Stewart also testified that he knew that Carr was appealing the lower court’s ruling no later than the end of December 2009, and that he was aware that the ruling could be overturned on appeal.

| sThe trial court denied defendants’ exception of prescription, agreeing with Gib-sland, finding that prescription began running from the date that damages were incurred, which was August 11, 2010, the date of the Second Circuit’s adverse ruling. Therefore, since suit had been filed on April 11, 2011, it was timely. Defendants sought supervisory review with this court, which was denied on the showing made. The supreme court granted defendants’ writ application and remanded the matter to the trial court for reconsideration of its ruling in light of the supreme court’s recent decision in Jenkins v. Starns, 11-1170 (La.01/24/12), 85 So.3d 612.

In Jenkins, supra at 627-28, the supreme court held that the continuous representation rule, an application of the doctrine of contra non valentem, cannot apply to suspend commencement of either the one-year or the three-year peremptive period set forth in La. R.S. 9:5605, and the trial and appellate courts erred in applying this rule to suspend the commencement of the peremptive period on the plaintiffs malpractice suit, which was perempted as it was not brought within one year of the date she should have discovered her attorney’s malpractice. Before reaching that conclusion, however, the court first discussed the issue of discovery in a legal malpractice case and found that in Jenkins, the one-year peremptive period (or the date upon which the plaintiff had constructive knowledge of facts which would entitle her to bring suit) began when she received notice of a default judgment entered against her due to her attorney’s mistake. Id. at 621. Addressing the issue of damages, the court further observed that the plaintiff in Jenkins suffered damage when she received notice of the money | ^judgment against her and learned that the trial court had ruled in her opponent’s favor. Id.

On July 12, 2012, the trial court held a hearing to reconsider its ruling in light of Jenkins, supra. The trial court, however, focusing solely on the fact that the instant case is not one of continuous representation, found that Jenkins was inapplicable and that the bank’s claim was not per-empted as the first reasonable notice of the law firm’s malpractice was the Second Circuit’s August 11, 2010, adverse ruling, and suit was filed within one year of that date. The court thus denied defendants’ exception of prescription, and judgment was signed on July 18, 2012. Defendants filed a supervisory writ, which this court granted to docket.

Discussion

Under La. R.S. 9:5605(A), an action for legal malpractice must be brought within one year of the date of the act, omission, or neglect, or within one year of the date of discovering the act, omission, or neglect and within three years of the date of the act, omission, or neglect. Jenkins, supra. In the instant case, the “act, omission, or neglect” that forms the basis of the bank’s claim for legal malpractice is the law firm’s July 81, 2008, title opinion which failed to include a prior existing judicial mortgage or encumbrance on the subject property. See Commonwealth Land Title Ins. Co. v. Jones, 06-1277 (La.App. 3d Cir.02/07/07), 948 So.2d 1243, writ denied, 07-0515 (La.04/27/07), 955 So.2d 693. The critical inquiry, however, is the date upon which Gibsland discovered or should have discovered the law firm’s mistake, which resulted in damage to the bank, |7and the relationship between the two. As noted by the court in Jenkins, 85 So.3d at 620-21, in the context of a legal malpractice claim, the “date of discovery” from which prescription or peremption begins to run is the date on which a reasonable man in the position of the plaintiff has, or should have, either actual or constructive knowledge of the damage, the delict, and the relationship between them sufficient to indicate to a reasonable person that he is the victim of a tort and to state a cause of action against the defendant. See also Teague v. St. Paul Fire and Marine Ins. Co., 07-1384 (La.02/01/08), 974 So.2d 1266, 1275. In other words, the date of discovery is the date the negligence was discovered or should have been discovered by a reasonable person in the plaintiffs position. Id.

The following analysis is excerpted from Jenkins, 85 So.3d 612, 621-22:

In this case, the peremptive period began to run when the plaintiff knew or should have known of the existence of facts that would have enabled her to state a cause of action for legal malpractice. The “act, omission, or neglect” complained of in Jenkins’ petition is Starns’ failure to file a responsive pleading in the Medlock case and Starns’ failure to appear and defend her at the April 16, 2007, hearing on the declinato-ry exceptions filed in response to her petition to annul judgment. Thus, the question before the Court is the date upon which Jenkins could reasonably discover the malpractice which triggered the running of the peremptive period. We find Jenkins had constructive knowledge of facts sufficient to state a cause of action against Starns when she received notice of the default judgment against her and Starns advised her a mistake had been made in January of2007.
When Jenkins received notice of the default judgment, she was put on notice the trial court had ruled against her in the Medlock case. When presented with this information, Jenkins contacted Starns who informed her he had made a mistake and would try to fix it. Clearly, these two acts are sufficient to show Jenkins had constructive knowledge of facts that would entitle her to bring suit. This is especially true considering it was enough notice to excite \ ^attention and put her on guard to call for inquiry, which she did by contacting Starns. When Jenkins received the default judgment and made an inquiry to her attorney, she had constructive knowledge of: (1) the damage {fn. 4} in the form of an $8,563.33 judgment against her; (2) the delict, of Starns’ failure to file a responsive pleading; and (3) the relationship between Starns’ action and the resulting default judgment, which she learned when he told her he had made a mistake. We find Jenkins’ knowledge of the bad result coupled with the admission of counsel sufficient to put her on notice Starns was negligent in his representation and commenced the running of the one-year peremptive period. (Emphasis added).
Fn. 4. In Braud [v. New England Ins. Co., 576 So.2d 466 (La.1991)], this Court clarified:
Until the client suffers appreciable harm as a consequence of his attorney’s negligence, the client cannot establish a cause of action for malpractice. The cause of action arises, however, before the client sustains all, or even the greater part, of the damages occasioned by his attorney’s negligence. Any appreciable and actual harm flowing from the attorney’s negligent conduct establishes a cause of action upon which the client may sue.
... Jenkins suffered damages when she received notice of the money judgment and learned the trial court had ruled in Medlock’s favor. (Emphasis added).

In the instant case, as noted above, the act of malpractice occurred when the law firm failed to find Carr’s judicial mortgage in the public records and issued its July 31, 2008, title opinion incorrectly stating that there were no prior liens or encumbrances on the Oaketree property. Damage to Gibsland began to occur when the bank issued its loan believing that it had the superior lien position on the property when in fact the bank’s position was subordinate to Carr’s judicial mortgage. However, the one-year peremptive period under La. R.S. 9:5605 did not begin to run at that time because Gibsland was unaware of the law firm’s negligence or the damage it had begun to cause the bank. Instead, the one-year peremptive [gperiod began to run in July 2009 when Gibsland received notice that Carr had filed suit and was seizing the Oaketree property based upon his claim that his mortgage outranked the bank’s security interest. In the bank’s July 31, 2009, letter to the law firm, it demonstrated actual knowledge that its superior property interest was in jeopardy (damage) as a result of the law firm’s failure to disclose the Carr judgment in its title opinion (negligent act). In this letter Gibsland further requested that the law firm attempt to remediate the matter as the bank had “cause for immediate concern.” Thereafter, in August 2009, the law firm informed the bank that it had contacted its legal malpractice insurer about a potential malpractice claim and had requested that an attorney be assigned. Gibsland was aware of the law firm’s negligent conduct and had sustained appreciable and actual harm as evidenced by its July 31, 2009, letter. The trial court committed legal error in holding otherwise. La. R.S. 9:5605’s one-year peremp-tive period, which is not subject to suspension or interruption, began in July 2009, which is the point at which Gibsland had actual knowledge of facts that would lead it to understand that legal malpractice had occurred. Therefore, the bank’s action for legal malpractice, filed in April 2011, was untimely, and will be dismissed.

Conclusion

For the reasons set forth above, the judgment of the trial court denying the exception of prescription/peremption filed by defendants, Kitchens, Benton, Kitchens & Black (APLC), Melanie F. McCullough, and First Mercury Insurance Company, is REVERSED. We hereby RENDER ^judgment dismissing plaintiffs action with prejudice. Costs are assessed against plaintiff, Gibsland Bank and Trust Company.

APPLICATION FOR REHEARING

Before BROWN, STEWART, MOORE, LOLLEY and GARRETT, JJ.

Rehearing denied.


source: Caselaw Access Project

author: GARRETT, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. James Jeffery SIMMONS, Appellant.
    No. 47,857-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 15, 2013.

      Peggy Sullivan, Monroe, LA, Louisiana Appellate Project, for Appellant.
    J. Schuyler Marvin, District Attorney, Charles Jacobs, Assistant District Attorney, for Appellee.
    Before CARAWAY, PITMAN and GARRETT, JJ.
   GARRETT, J.

hThe defendant, James Jeffery Simmons, pled guilty to one count of felony theft pursuant to a plea agreement that included an agreed-upon sentence of seven years at hard labor, suspended; three years of active, supervised probation; restitution in the amount of $3,500 to be paid during the first year of probation; a fine of $5,000 and court costs to be paid during the first two years of probation. The trial court accepted the plea and sentenced the defendant in accordance with the plea agreement. This appeal followed. Seeking to withdraw, the defendant’s appellate counsel filed an Anders/Benjamin brief in this court, stating that she could find no nonfrivolous issues to raise on appeal. For the following reasons, we affirm the defendant’s conviction, amend the sentence, and grant the motion to withdraw.

FACTS

On January 20, 2012, a bill of information was filed charging the defendant with one count of felony theft, a violation of La. R.S. 14:67(B)(1). The bill of information alleged that the defendant committed the theft of copper in an amount greater than $1,500. On June 1, 2012, the defendant appeared before the trial court. The defendant’s counsel specified for the record that the prosecution had offered the defendant a choice between two guilty pleas. He could plead guilty as charged and receive an agreed-upon sentence of two years, or plead guilty and receive an agreed-upon sentence of seven years suspended, three years of active, supervised 12probation, with a $5,000 fine, and $3,500 in restitution. The defendant accepted the offer for the probated sentence.

The trial court informed the defendant that felony theft carried a sentence of “zero to ten years, plus fines, and court costs.” The defendant was told that, by pleading guilty, he waived his right to trial by jury, right of confrontation, right against compulsory self-incrimination, and right of appeal. The defendant affirmed that no promises or threats had been made to force him to enter a guilty plea and that he was pleading guilty because he was guilty. The record reflects that the defendant was 48 years of age and had a GED. The defendant also represented to the court that he would be working in order to pay the restitution, fine and court costs.

The prosecution stated the factual basis for the plea. On September 19, 2011, the defendant committed the offense of felony theft by taking copper located inside an air conditioning unit belonging to Bella’s Hair Salon in Bossier City, Louisiana. The defendant took the air conditioner and sold it for scrap without the consent or permission of the owner, with the intent to permanently deprive the owner of the use of the air conditioner. The defendant confirmed that the facts stated by the prosecution were correct.

The defendant pled guilty to felony theft and waived delays for sentencing. The trial court accepted the plea as being freely and voluntarily made. The trial court imposed sentence upon the defendant. The court stated that, pursuant to the agreed-upon sentence, the defendant was to serve seven years at hard labor, suspended, with three years of active, supervised [^probation. Special conditions of probation were imposed, including restitution of $8,500 to Bella’s Hair Salon to be paid during the first year of probation. The court also ordered an evaluation and treatment for any substance abuse problems as deemed necessary by the probation office. The defendant was also ordered to pay a fine of $5,000, plus court costs, to be paid over the first two years of his probation. The defendant was then informed of the delays for filing an appeal and for seeking post-conviction relief.

The defendant filed a motion to reconsider sentence, arguing that the trial court failed to take into consideration his substance abuse issues. The trial court denied the motion. The defendant filed a pro se motion for appeal which was granted by the trial court. The Louisiana Appellate Project was appointed to represent the defendant.

ANDERS BRIEF

The defendant’s appellate counsel filed a motion to withdraw, together with an An-ders brief which alleges that she could not find any nonfrivolous issues to raise on appeal. See Anders v. California, supra; State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241; State v. Mouton, 95-0981 (La.4/28/95), 653 So.2d 1176; State v. Benjamin, supra. The brief outlined the procedural history of the case and the recitation of facts presented at the guilty plea hearing. The brief also contained a “detailed and reviewable assessment for both the defendant and the appellate court of whether the appeal is worth pursuing in the first place.” State v. Jyles, supra. Defense counsel verified that she mailed copies of the motion to 14withdraw and the brief to the defendant, in accordance with the Anders, Jyles, Mouton, and Benjamin cases.

The state filed a letter concurring that there are no nonfrivolous issues to raise on appeal. On January 24, 2018, this court rescinded the previously fixed pro se briefing deadline and notified the defendant that he could file a brief in this appeal within 30 days of the order and request to view the appellate record within 10 days of the date of the order. The defendant did not request the appellate record or file a pro se brief.

DISCUSSION

We have examined all the pleadings filed in the district court, the court proceedings, the bill of information, and all transcripts contained in the record. The defendant was properly charged by bill of information and he was present in court and represented by counsel at all important stages of the proceedings. The defendant was informed of the charge against him and the rights waived by a plea of guilty. He admitted that he was guilty as charged. The conviction is fully supported by the facts stated on the record and admitted in court by the defendant.

The defendant was sentenced to an agreed-upon sentence and accepted all of the terms and conditions of the probation. A defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea. La. C. Cr. P. art. 881.2. See also State v. McQuarters, 44,074 (La.App.2d Cir.4/8/09), 8 So.3d 822. Our independent review discloses no nonfrivolous issues and no arguable issues to support an appeal.' Further, the defendant’s | ¿contention that the trial court failed to consider substance abuse issues is without merit. The court specifically ordered an evaluation and treatment for any substance abuse issues as deemed necessary by the probation office.

Pursuant to La. C. Cr. P. art. 920, our error patent review reveals one error regarding the sentence. The fine imposed is illegally excessive.

The defendant was charged with felony theft under La. R.S. 14:67(B)(1), which provides for a penalty of imprisonment with or without hard labor, for not more than 10 years, or a fine of not more than $3,000, or both. In this case, a fine of $5,000 was imposed. We note that La. R.S. 14:67.28, prohibiting the theft of copper or other metals, provides that when the misappropriation or taking amounts to a value of $1,000 or more, the offender shall be fined not more than $5,000, imprisoned with or without hard labor for not more than 10 years, or both. This provision was added by Acts 2012, No. 164, § 1, and became effective August 1, 2012. The defendant here pled guilty June 1, 2012, two months before the provision went into effect. Because the defendant was charged under La. R.S. 14:67(B)(1), which provides for a maximum fine of $3,000, the $5,000 fine imposed here is illegally excessive. La. C. Cr. P. art. 882 provides that an illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review. Therefore, we amend the defendant’s sentence and order that he pay a fine of $3,000, in accordance with La. R.S. 14:67(B)(1).

^CONCLUSION

For the reasons stated above, the motion to withdraw is granted. The conviction of the defendant, James Jeffery Simmons, is affirmed. The sentence is amended to vacate his illegally excessive fine, and impose a fine of $3,000 in accordance with the statute of conviction. As amended, the sentence is affirmed.

MOTION TO WITHDRAW GRANTED; CONVICTION AFFIRMED; SENTENCE AMENDED AND, AS AMENDED, AFFIRMED.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); State v. Benjamin, 573 So.2d 528 (La.App. 4th Cir.1990).

      . Prior to the enactment of La. R.S. 14:67.28, theft of copper was sometimes charged under La. R.S. 14:67.23, dealing with theft of a used building component. See State v. Nelson, 44,762 (La.App.2d Cir. 10/28/09), 25 So.3d 905. The penalty for theft of a used building corn-ponent when the theft or taking amounts to a value or replacement value, whichever is greater, of $1,500 or more, is a fine of not more than $3,000, imprisonment with or without hard labor for not more than 10 years, or both.


author: STEWART, J.

text:
    STATE of Louisiana, Applicant v. John Emmitt GATES, Respondent.
    No. 47,894-KW.
    Court of Appeal of Louisiana, Second Circuit.
    May 15, 2013.

      J. Schuyler Marvin, District Attorney, Robert R. Smith, Assistant District Attorney, for Plaintiff-Applicant.
    Whitley R. Graves, Benton, LA, for Defendant-Respondent.
    Before STEWART, PITMAN and GARRETT, JJ.
   STEWART, J.

| Nhe State of Louisiana (“the state”) applied for supervisory review of a trial court’s ruling granting a motion to suppress filed by the defendant, John Emmitt Gates, who was charged with DWI, third offense. The basis of the motion to suppress was that the stop was made by an officer outside of his jurisdiction. Finding that the trial court did not abuse its great discretion in granting the defendant’s motion to suppress, we now affirm.

FACTS

The following evidence was adduced at the hearing on the defendant’s motion to suppress. At around 9:00 p.m. on November 11, 2011, Brian Bell, a Haughton police officer, was sitting in his patrol car on a service road on the northeast side of the intersection of Hwy. 3227 and La. 157 adjacent to 1-20. He was on duty and within the Haughton city limits. From his location, he could see traffic coming in all directions. He had noticed nothing out of the ordinary.

A small white SUV pulled up beside his patrol car. The two occupants, a man and a woman, were costumed. They reported that a blue pickup truck had almost run them and others off the roadway while traveling on 1-20. They also reported that the truck had just headed east on Hwy. 3227. Officer Bell believed that they identified the truck as a Chevy.

Officer Bell proceeded east on Hwy. 3227 to look for the blue truck. He explained that Hwy. 3227 runs within Haugh-ton’s city limits for about a half-mile, exits the city limits for about a quarter-mile, and then re-enters the city limits again for another mile. Traveling at speeds of up to 78 miles per hour, Officer Bell located within two to three minutes a dark-colored struck, which he believed was a Dodge. The truck was near the intersection of Hwy. 3227 and Hwy. 164, which is an area outside the Haughton city limits. He testified that the truck was about 200 yards south of his position and that he could see the double yellow lines of the highway under the truck, which was “jacked up fairly high.” Officer Bell turned onto Hwy. 164 and began approaching the truck. He testified that the truck veered into the other lane of travel while negotiating a curve. At this time, he notified the Bossier Parish Sheriffs Office that he was about to make a stop. He testified that he did not ask for permission to make the stop but merely notified the sheriffs office that he was doing so.

According to Officer Bell, the truck turned onto Boomtown Road and came to a stop at the stop sign at Boomtown Road and Hwy. 614. He denied doing anything to bring the defendant to a stop. Officer Bell testified that he pulled up behind the defendant’s truck and activated his lights, at which point the patrol car’s video recorder backed up from 30 seconds to two minutes. Officer Bell was not certain of the exact backup time set by his supervisor. Both Officer Bell and the defendant exited their vehicles. Officer Bell inquired whether the defendant needed medical assistance and than directed him to sit on the bumper of his car. Within five to six minutes, Officer Travis Orr of the sheriffs department arrived. Officer Orr conducted the DWI investigation and arrested the defendant.

The defendant testified that he was traveling southbound on Hwy. 164 and that he turned onto Boomtown Road because he saw lights and believed he was being stopped by the police.

|sThe video recorded from Officer Bell’s car was entered into evidence. It begins with the taillights of the truck some distance ahead of Officer Bell as the two vehicles travel along a highway. The video does not appear to depict the truck driving over the double yellow lines at this point. The truck negotiates a curve the same time as an oncoming vehicle. Immediately after, the truck makes a quick wide right turn, apparently onto Boomtown Road. The truck then veers into the left lane and back across to the right where it stops off the road in the shoulder area. The defendant immediately exits his vehicle. At that point, flashing is visible from Officer Bell’s car. Officer Bell exits his patrol car to meet the defendant. The video does not appear to show flashing lights before this point, but Officer Bell did testify that his patrol car has settings for rear deck lights, mirror strobes, and a flashing center deck light. The video shows Officer Bell directing the defendant to sit on the front bumper of his patrol car. Officer Bell speaks into his handheld radio and obtains the defendant’s driver’s license. There does appear to be some ongoing conversation until the arrival of Office Orr, who begins the DWI investigation. Lastly, we note that the truck shown on the video does appear to have a Chevy emblem on its tailgate; it is not a Dodge as indicated by Officer Bell in his testimony.

After taking the matter under advisement, the trial court ruled in favor of the defendant, granting his motion to suppress. In its written ruling, the trial court found any discussion of the concept of “hot pursuit” to be inapplicable. The trial court characterized the individuals in the white SUV as anonymous tipsters and noted that Officer Bell did not obtain any 1 ¿identifying information from them and had no way to test the reliability of the information they provided. Additionally, the trial court noted that the vehicle would have traveled in front of Officer Bell, yet he did not observe any erratic driving or traffic violations at the intersection where he was parked. The trial court found that Officer Bell’s observations of traffic violations by the defendant would have occurred outside Haughton’s city limits. From viewing the video, the trial court found that the defendant pulled to the shoulder of the road, not directly in front of the stop sign. The court stated that a reasonable person could “conclude that this maneuver was executed in compliance with the police units [sic] lights being activated.” Utilizing the factors set forth in State v. Williams, 45,775 (La.App.2d Cir.8/27/10), 46 So.3d 262, the court found that Officer Bell, who was outside his jurisdiction, failed to obtain permission to make the stop. Thus, the trial court ruled that all information discovered subsequent to the detention must be suppressed.

From this adverse ruling, the state applied for supervisory review. This court granted the state’s writ and ordered the parties to file briefs. The matter is now before this court for a full review.

DISCUSSION

Great discretion is vested in the trial court when ruling on a motion to suppress, and its ruling will not be disturbed on appeal absent an abuse of that discretion. State v. Long, 03-2592 (La.9/9/04), 884 So.2d 1176, cert. denied, 544 U.S. 977, 125 S.Ct. 1860, 161 L.Ed.2d 728 (2005); State v. Horton, 01-2529 (La.6/21/02), 820 So.2d 556. At issue is whether the trial |ficourt abused its discretion in ruling that evidence obtained as a result of the stop by a Haughton police officer outside of his jurisdiction must be suppressed.

The arguments of both the state and the defendant center on this court’s opinion in Williams, supra, which also involved a motion to suppress evidence obtained from a traffic stop that resulted in a prosecution for a third offense DWI. The trial court granted Williams’ motion to suppress because the officer who arrested him was outside his jurisdiction. The officer was not in hot pursuit from his jurisdiction and did not have probable cause to believe that a felony had been committed or was being committed. This court reversed the granting of the motion to suppress but remanded to the trial court for it to determine whether the arresting officer’s actions comported with the mandates outlined in the opinion. Balancing the great danger posed by drunk drivers with the need to make sure that stops by law enforcement officers outside their jurisdictions are reasonable under the Fourth Amendment, this court set forth the following four limiting factors to govern when officers outside their jurisdictions may stop a vehicle:

1. The officer must personally observe a driver operating a vehicle in an erratic manner, so as to cause the officer to reasonably believe the driver is impaired and is a danger to the public;
2. The officer must be in a marked vehicle;
3. The officer must contact an officer having jurisdiction and get permission to effectuate the stop; and
4. The officer who has jurisdiction must conduct the investigation.

In State v. Stapa, 45,773 (La.App.2d Cir.8/27/10), 46 So.3d 264, writ denied, 2010-2126 (La.11/19/10), 46 So.3d 391, a companion case decided the same time as Williams, supra, this court reversed the trial court’s suppression of evidence obtained as a result of a stop by a Greenwood police officer outside of her jurisdiction. In that case, the officer while driving home in her marked unit witnessed the defendant swerve three times. The officer called a state trooper, who told her to “light him up” but remain in her cruiser. The trooper arrived shortly thereafter and arrested the defendant. Noting the specific facts leading to the stop and the grave dangers posed by drunk driving, this court found that the stop did not violate the constitutional protections against unreasonable seizures.

Though the Stapa opinion does not set forth the specific limiting factors as in Williams, supra, each was met. The Greenwood officer was in a marked vehicle, personally observed the erratic driving, contacted an officer in the jurisdiction, and obtained permission to make the stop. Finally, an officer with jurisdiction conducted the investigation. The Stapa court concluded that the combined actions of the two officers were reasonable and did not violate the “ultimate touchstone” of the Fourth Amendment-reasonableness.

The Williams and Stapa opinions set forth the parameters of a constitutionally reasonable traffic stop of a vehicle by a law enforcement officer outside of his jurisdiction. Accordingly, we must analyze the stop at issue in this matter in light of those parameters. Here, Officer Bell’s testimony indicates that he did personally observe the defendant driving 17erratically. He testified that he could see the double yellow lines of the highway underneath the defendants truck, and the video from Officer Bell’s patrol car shows the defendant swerve into the opposing lane of travel just before coming to a stop. Officer Bell testified that his patrol ear has the words “police office” on the doors. Thus, it was a marked vehicle. Once the defendant was detained, the DWI investigation was conducted by Officer Orr of the sheriffs office. Three of the four Williams factors are satisfied.

At issue is whether Officer Bell contacted an officer having jurisdiction and obtained permission to effectuate the stop. Officer Bell testified that he contacted the sheriffs office to notify them that he was making a stop. He admitted that he did not ask for permission to make the stop. There is no indication that anyone with the sheriffs office, including Officer Orr, authorized Officer Bell to make the stop. Officer Orr simply responded to a dispatch because of his location and arrived at the scene around five minutes or more after the stop was made. The state argues that when Officer Bell notified the sheriffs office that he was about to make the stop, it was “implicit that the stop was authorized by the sheriffs procedures.” This argument would render meaningless the requirement for permission from an officer with jurisdiction to make the stop.

The state further asserts that the danger to other motorists from the defendant’s driving left Officer Bell no choice but to detain him for public safety reasons. While we certainly do not fault Officer Bell for acting in the interest of public safety, the record establishes that Officer Bell did not ask 1 sfor or obtain permission from an officer with jurisdiction to effectuate the stop as required by Williams, supra, and as was done by the detaining officer in Stapa, supra. This is a specific requirement set forth by the Williams court for finding a traffic stop by an officer outside his jurisdiction to be reasonable under the Fourth Amendment. Therefore, we are constrained to find on this record and in light of Williams, supra, that the trial court did not abuse its great discretion in granting the motion to suppress.

CONCLUSION

For the reasons stated, we affirm the trial court’s ruling that granted the defendant’s motion to suppress.

AFFIRMED.


text:
    TOKYO JAPANESE STEAKHOUSE, INC., Tokyo Japanese Steakhouse Building, L.L.C. and Tony Wang, Plaintiffs-Appellants v. Man T. SOHN and Sushiko, Inc., Defendants-Appellees.
    No. 47,897-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 15, 2013.

      Harper Law Firm, Shreveport, LA, by Jerald R. Harper, for Appellants.
    Smith & John by Richard M. John, Shreveport, LA, for Appellees.
    Before BROWN, PITMAN, and GARRETT, JJ.
   BROWN, Chief Judge.

[! Plaintiffs, Tokyo Japanese Steakhouse, Inc., and Tokyo Japanese Restaurant Building, LLC, appeal the denial of then-request for a preliminary injunction prohibiting defendants, Man T. Sohn and Sushiko, Inc., from operating a competing restaurant. We affirm.

Facts and Procedural Background

Tokyo Japanese Steakhouse, Inc., and Tokyo Japanese Restaurant Building, LLC, were formed in May 2008 by Tony Wang and Man T. Sohn. Wang and Sohn each own a 50 percent share in both ventures. Tokyo Building, LLC, owns the property on which the Tokyo Steakhouse operates in Shreveport, Louisiana. Initially, Wang served as president and Sohn as secretary/treasurer of the two businesses, with Sohn serving as the day-to-day manager of the Steakhouse. In April 2006, a spirited disagreement arose between the two owners, and Wang assumed management of the restaurant. Apparently, it was anticipated that one party would purchase the other’s interest; however, this never occurred.

In February 2007, Sohn opened Sushiko at the Louisiana Boardwalk in Bossier City, Louisiana. Both Tokyo Steakhouse and Sushiko sell sushi. This led to two lawsuits presided over by two different judges.

On October 6, 2010, plaintiffs, Tokyo Steakhouse, Tokyo Building, LLC, and Tony Wang, instituted the present action against defendants, Man T. Sohn and Sushiko, Inc., alleging that Sohn and through him, Sushiko, Inc., acted in concert to cause a note on the building owned by Tokyo Building, LLC, to fall into default and, thereby, eliminated Tokyo Steakhouse as a “competitor” and/or to force Wang to purchase Sohn’s 12interest in the two Tokyo companies “at a price higher than [their] fair market value.” The original petition alleged that the actions of Sohn amounted to “willful, intentional breaches of fiduciary duty” to plaintiffs and constituted “unfair competition, pursuant to La. R.S. 51:1401, et seq.”

On October 26, 2010, defendants filed peremptory exceptions of no cause of action and no right of action. The exceptions as to Tokyo Steakhouse and Tokyo Building, LLC, were denied. The exception of no right of action against Wang was granted and his claims were dismissed.

On December 2, 2011, plaintiffs filed a motion for preliminary injunction requesting an injunction (1) enjoining, restraining and commanding Sohn and Sushiko to cease and desist all operations in the sale of sushi and sushi-related products and from doing business in direct competition with Tokyo Steakhouse; or (2) mandating Sohn to allow Wang or Tokyo Steakhouse to purchase Sushiko at Sohn’s start-up cost. In answer, defendants filed exceptions of unauthorized use of summary proceedings, res judicata, and prescription.

On March 26, 2012, Judge Leon Emanuel denied plaintiffs motion for a preliminary injunction and pretermitted ruling on the exceptions filed by defendants. Plaintiffs appealed. The only issue on appeal is the denial of the petition for a preliminary injunction.

Discussion

An injunction shall be issued in cases where irreparable injury, loss, or damage may otherwise result to the applicant, or in other cases specifically provided by law. La. C.C.P. art. 3601. “Irreparable injury,” for ^purposes of preliminary injunction, is an injury or loss which cannot be compensated in money damages or be measured by pecuniary standards. Cason v. Chesapeake Operating, Inc., 47,084 (La.App.2d Cir.04/11/12), 92 So.3d 436, writ denied, 12-1290 (La.09/28/12), 98 So.3d 840.

A preliminary injunction is an interlocutory procedural device designed to preserve the existing status quo pending a full trial on the merits. South Cent. Bell Telephone Co. v. Louisiana Public Service Com’n, 555 So.2d 1370 (La.1990); Louisiana Gaming Corp. v. Rob’s Mini-Mart, Inc., 27,920 (La.App.2d Cir.01/24/96), 666 So.2d 1268. However, a mandatory injunction, one which requires someone to do an act, differs greatly from an injunction which merely seeks to protect the status quo. When the status quo is a condition “not of rest, but of action, and the condition of rest is exactly what will inflict the irreparable injury upon the complainant,” a mandatory injunction is appropriate. Cason, supra.

In City of New Orleans v. Board of Directors of Louisiana State Museum, 98-1170 (La.03/02/99), 739 So.2d 748, the issue was whether the Vieux Carr Commission a claim for a mandatory injunction to remove the Cabildo’s fence under the applicable law. The court, at 739 So.2d at 756, stated:

A mandatory injunction commands a party to take specific action. A mandatory injunction may not be issued on a merely prima facie showing that the party seeking the injunction can prove the necessary elements; instead, the party must show by a preponderance of the evidence at an evidentiary hearing that he is entitled to the preliminary injunction.

1 /The first lawsuit Docket No. 514,975

As part of the hearing on the motion for preliminary injunction, which is the subject of this appeal, the trial court accepted the record of a prior lawsuit between the parties, Man T. Sohn v. Tony Wang (Docket No. 514,975, Judge Scott Crichton presiding), as an exhibit. A full evidentiary hearing was held in this suit. That suit, filed on September 7, 2007, was initiated by Sohn in an effort to compel Wang to continue to pay him $5,000 per month pursuant to an agreement between the parties. Wang filed a reconventional demand alleging a “Breach of Fiduciary Duty/Usurpation of Opportunity” against Sohn. The matter was heard by Judge Crichton on July 1, 2009.

In that action, Wang argued that he was “entitled to a permanent injunction enjoining Sohn from owning or operating Sushi-ko as a sushi restaurant in competition with Tokyo Steakhouse for so long as Sohn is an officer or director of the company.” Judge Crichton held:

Given the previous factual and legal conclusions, the Court believes it would be unfair to grant Wang’s request that Tokyo be granted a permanent injunction enjoining Sohn from owning or operating Sushiko as a sushi restaurant because (1) it is not properly pled, in the reconventional demand, but rather is argued in post trial brief; and (2) even if properly pled, it is not justified based on the facts or applicable law. Accordingly, Wang’s injunctive request is denied.

As to the other matters, Judge Crichton denied all but one claim by Sohn against Wang for the amount of $5,000. Judge Crichton found that Sohn “violated his obligations of good faith and his fiduciary obligation owed to the corporate entity, Tokyo, and the other shareholder, Wang ...” To redress this violation, the court awarded Wang, individually and derivatively on behalf of Tokyo Steakhouse, damages of $36,032. Judge |fiCrichton further stated that the remaining “practical and very serious issues of valuation, sale and /or dissolution can be resolved by agreement.” No appeal was taken from that judgment.

Preliminary injunction

At the outset we will address plaintiffs’ argument that Judge Emanuel abused his discretion by declining to rule on their request for injunctive relief on the basis that the parties should attempt to resolve their differences extrajudicially. This contention is erroneous. The trial court expressly denied plaintiffs’ request for in-junctive relief. Thus, we are left to determine whether that denial was proper.

Whether Sohn owed plaintiff a fiduciary duty not to compete with Tokyo Steakhouse and whether the continued operation of Sushiko constitutes a continued breach of that duty was addressed by Judge Crichton in suit number 514,975. Specifically, Judge Crichton found:

To make matters worse, in early 2007 Mr. Sohn violated his obligations of good faith and his fiduciary obligation owed to the corporate entity, Tokyo, and the only other shareholder, Wang, by the following: (A) In February 2007, Sohn opened Sushiko Restaurant in the Boardwalk Bossier City, selling sushi in direct competition with Tokyo, and, of course, without the knowledge and consent of his co-director, fellow shareholder, and officer of Tokyo, and without providing Tokyo the opportunity to participate. While Sohn’s counsel has argued that there is no legal or contractual authority that Sohn violated a fiduciary duty by opening a sushi restaurant, this Court disagrees. The legal authority is La. R.S. 12:91.

We agree, but as noted, Judge Crichton redressed the breach of the fiduciary obligation, the opening of a competitive restaurant without providing Tokyo the opportunity to participate, by ordering Sohn to pay Wang damages in the amount of $36,032, which was satisfied in 2010. This sum represented the money Sohn misappropriated from the Tokyo |fiSteakhouse account to start Sushiko. Judge Crichton also held that as to the request for a permanent injunction “it is not justified based on the facts or applicable law. Accordingly, Wang’s injunctive request is denied.”

If the plaintiffs could show a likelihood of success on the merits, irreparable harm could be presumed. However, Sohn’s opening of a competing sushi restaurant occurred in February 2007. The first suit was initiated by Sohn in September 2007. In July 2009, Judge Crichton denied the request for a permanent injunction. The present suit was not filed until October 2010 and the request for a preliminary injunction was not made until December 2011, almost five years after Sushi-ko opened.

Assuming, arguendo, that the plaintiffs were likely to succeed on the merits concerning the issue of the renewal of the note (defendants have stated that the note has in fact been renewed), and that they would be entitled to a presumption of irreparable harm, even without providing proof thereof, we find then, that the presumption is rebutted by plaintiffs’ unexplained delay of more than four years in commencing this action. Such an unreasonable delay between the time when mov-ants were first apprised of the infringing acts and the time of filing suit undercuts the movants’ claim of irreparable injury.

Tokyo claimed that Sohn’s position with both Tokyo and Sushiko “represents an ongoing breach of the fiduciary duty of loyalty.” However, more harm is not necessarily any more irreparable, so long as it is not qualitatively different. Here, the allegedly “continuing” use does not inflict harm qualitatively different from the harm flowing from the prior infringement.

^Considering the aforementioned, we find that plaintiffs failed to prove that they would suffer irreparable harm and, further, that the denial of plaintiffs’ request for injunctive relief maintains the existing status quo pending a full trial on the merits. However, as to the merits, the court must consider that most issues have been determined and remedied by Judge Crichton. Accordingly, the trial court did not abuse its discretion in denying plaintiffs’ request for a preliminary injunction.

Conclusion

For the foregoing reasons, the judgment of the of the trial court is affirmed. Costs of this appeal are assessed to plaintiffs, Tokyo Japanese Steakhouse, Inc., and Tokyo Japanese Restaurant Building, LLC.


author: DREW, J.

text:
    STATE of Louisiana, Appellee v. Antonio REYES, Appellant.
    No. 47,918-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 15, 2013.

      Louisiana Appellate Project by Teresa Culpepper Carroll, Jonesboro, LA, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, Darius Henderson, Assistant District Attorneys, for Appellee.
    Before STEWART, DREW and LOLLEY, JJ.
   DREW, J.

|, Antonio Reyes was arrested, charged, and convicted of possession of cocaine, La. R.S. 40:967(C). He was sentenced to the maximum five years at hard labor. No fine was levied.

The defendant appeals his conviction and sentence. We affirm.

FACTS

Motion to Suppress

Defendant’s motion to suppress urged that law officers conducted an unlawful search and seizure, without probable cause, thereby violating his constitutional rights. He urged that the remedy for this illegality should be the suppression of the items seized and statements he made that night.

Officer John Provost, an agent with the Bossier City narcotics unit, testified that he participated in the investigation of a complaint that narcotics were being sold from two apartments in the building, the defendant’s apartment, No. 503, and the apartment next door, No. 504. Provost said they did not have search warrants. His team searched No. 504.

Sgt. Shane Culver testified that:

• he led the team investigating the residence at No. 503;

• he identified himself as a law officer when Reyes answered the door;

• he said he was investigating a drug complaint;

• Reyes consented when asked if the officers could enter and discuss the matter with him and look around;

• Reyes told the officers that no one else was at home;

• the officers then heard movement in the back of the apartment;

• the officers found Reyes’ roommate in a rear bathroom;

• all officers were clearly identifiable as law enforcement;

|2* Reyes repeatedly put his hands in his pockets;

• Reyes was asked to remove his hands and any items from his pockets;

• one item that he removed from his pocket was a bag of cocaine; and

• Reyes voluntarily removed the items from his pockets when asked.

Antonio Reyes testified that he was in Apartment No. 503 of Cross Country Apartments, located at 1900 East Texas Street in Bossier City, when someone began pounding on the door. Just as he opened the door, three unidentified men entered. When asked whether they could enter and search his apartment, he denied the request and asked them to leave. One man began searching. They seized marijuana from a back room and cocaine from a front room. Both Reyes and his roommate were arrested.

In denying the motion, the trial court found that the defendant lied about his roommate’s presence, gave consent for the search, and voluntarily produced the contraband drugs from his pocket.

Trial

At trial, Sgt. Culver reiterated his testimony during the hearing on the motion to suppress. He swore that:

• the narcotics unit received information from an anonymous source that drugs were being sold from two apartments at 1900 East Texas Street in Bossier City;

• the information did not come from a confidential informant;

• the information did not come from an identified concerned citizen;

• no names were given as to the identity of the drug dealers;

• they did not have probable cause to justify obtaining a search warrant;

• a team of officers, including narcotics agents and uniformed officers Rfrom a street crimes interdiction unit, conducted a “knock and talk”;

• the team split into two groups, one for each apartment;

• his group consisted of himself, Sgt. Souter, and Officer Wood;

• all officers were clearly identifiable as police officers;

• when Reyes answered his knock at the door, Culver identified himself as an officer and explained they were investigating narcotics activity;

• Reyes gave permission for them to enter the apartment;

• he explained to Reyes that they wanted to look around;

• Reyes was nervous and persisted in putting his hands in his pockets;

• they asked him to remove his hands and empty his pockets;

• Reyes removed a small bag of white substance and put it on the table;

• the bag appeared to contain cocaine;

• the bag presented to him in court was the cocaine seized from Reyes;

• Reyes was arrested and asked if anyone else was in the apartment;

• Reyes said “no,” but officers heard a noise from the back;

• Reyes’ roommate, Joe Orange, emerged from the bathroom;

• the officers observed a partially smoked marijuana joint; and

• the officers also found a crack pipe on the couch.

Officer Ty Wood, a Bossier narcotics officer, testified at trial that:

• he was with the officers who knocked on defendant’s apartment door;

• he had on his police uniform, a vest labeled “Police” and a badge;

• Reyes gave the officers consent to enter, but not to search;

• he saw Reyes remove from his pocket some keys, a wallet, and a small bag containing what appeared to be cocaine; and

• upon request, Reyes voluntarily removed his hands from his pockets and put the contents of the pockets on the table. 14At trial, Officer Provost testified that:

• an unknown person had called the anonymous narcotics hot line and left a tip that people were selling, using, or smoking marijuana between two apartments at the location on East Texas Street;

• he assembled a team of officers to investigate both apartments;

• he led a team investigating the unit next door and did not enter Reyes’ apartment until after the defendant and his roommate were in custody;

• he took all the evidence into custody and wrote up the police report;

• the bag shown him in court was what he sent to the crime lab; and

• he identified a certificate as to the test results confirming that the substance in the bag was cocaine.

DISCUSSION

Motion to Suppress

Our jurisprudence relative to the review of warrantless searches is well settled.

|sOur law relative to the review of consensual searches is clear.

Our law relative to plain view seizures is also clear.

Inadvertence is not required for a valid plain view seizure. Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990).

Reyes voluntarily exhibited the physical evidence to the officers. The seizure is valid, as it is predicated upon lawful consent.

Sentencing

Our law on appellate review of sentences is well settled.

17At sentencing, the defendant’s extensive criminal record was reviewed by the court, as reflected by a presentence investigation report (“PSI”).

La. R.S. 40:967(0(2) allows a person convicted of possession of cocaine to be imprisoned with or without hard labor for not more than five years, and a fine of not more than $5,000. No fine was imposed.

The trial court noted that this offense was the defendant’s fifth felony, and that he was fortunate that the state did not seek to adjudicate him as a habitual offender. The trial court concluded that Reyes deserved more than five years, but five years was the maximum prison sentence. We agree with the trial court’s comments and find that this sentence is justified.

Reyes filed a motion to reconsider his allegedly excessive sentence, urging that the court failed to consider any mitigating factors. It was denied.

We have reviewed the transcript and the PSI and really cannot find anything favorable. This maximum sentence is most deserved, as this defendant is the worst of this type of offender.

DECREE

The defendant’s conviction and sentence are AFFIRMED.

      . When a warrantless search is conducted, the state has the burden of showing the search was justified as an exception to the warrant requirement of the Fourth Amendment. Three such exceptions are (1) consent, (2) the "plain view doctrine,” and (3) an inventory search.
      The right of every person to be secure in his person, house, papers and effects, against unreasonable searches and seizures, is guaranteed by the Fourth Amendment to the United States Constitution and Article I, § 5 of the 1974 Louisiana Constitution. It is well settled that a search and seizure conducted without a warrant issued on probable cause is per se unreasonable unless the warrantless search and seizure can be justified by one of the narrowly drawn exceptions to the warrant requirement. State v. Thompson, 2002-0333 (La.4/9/03), 842 So.2d 330; State v. Tatum, 466 So.2d 29 (La.1985); State v. Ledford, 40,318 (La.App.2d Cir. 10/28/05), 914 So.2d 1168.
      The purpose of limiting warrantless searches to certain recognized exceptions is to preserve the constitutional safeguards provided by a warrant, while accommodating the necessity of warrantless searches under special circumstances. Donovan v. Dewey, 452 U.S. 594, 101 S.Ct. 2534, 69 L.Ed.2d 262 (1981); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Camara v. Municipal Court of City and County of San Francisco, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967). When the constitutionality of a warrantless search or seizure is placed at issue by a motion to suppress the evidence, the state bears the burden of proving that the search and seizure were justified pursuant to one of the exceptions to the warrant requirement. La. C. Cr. P. art. 703(D); State v. Johnson, 32,384 (La.App.2d Cir.9/22/99), 748 So.2d 31.

      . It is well settled that a warrantless search conducted pursuant to a valid consent is permitted by the Louisiana and United States Constitutions. State v. Raheem, 464 So.2d 293 (La.1985); State v. Crews, 28,153 (La.App.2d Cir.5/8/96), 674 So.2d 1082. Oral consent to a search is valid. Crews, supra. Consent is valid when it is freely and voluntarily given by a person who possesses common authority or other sufficient relationship to the premises or effects sought to be inspected. United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969); State v. Bodley, 394 So.2d 584 (La.1981); State v. Shumaker, 40,275 (La.App.2d Cir.10/28/05), 914 So.2d 1156. This common authority stems not so much from one’s property interest, "but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.” United States v. Matlock, supra, 94 S.Ct. at 993, fn. 7. When the facts do not support a finding of actual authority, a search is reasonable within the meaning of the Fourth Amendment if the consent giver apparently has actual authority. Illinois v. Rodriguez, 497 U.S. 177, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990); State v. Shumaker, supra.

      While a valid consent search is a recognized exception to the warrant requirement, the burden is on the state to prove that the consent was given freely and voluntarily. Necessarily, voluntariness is a question of fact to be determined by the trial court under the facts and circumstances of each case, which determination is to be given great weight upon appeal because of that court’s opportunity to observe witnesses and assess credibility. State v. Edwards, 434 So.2d 395 (La.1983); State v. Jennings, 39,543 (La.App.2d Cir.3/2/05), 895 So.2d 767.

      .The plain view doctrine is an exception to the warrant requirement. State v. Young, 39,546 (La.App.2d Cir.3/02/05), 895 So.2d 753; State v. Ray, 471 So.2d 831 (La.App. 2d Cir.1985), writ denied, 475 So.2d 364 (La.1985). The plain view doctrine renders a warrantless search reasonable if: (1) the police officer is lawfully in the place from which he views the object; (2) the object’s incriminating character is immediately apparent; and (3) the officer has a lawful right of access to the object. Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990); State v. Young, supra.

      In Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983), the Supreme Court said the phrase "immediately apparent” was an "unhappy choice of words” because appellate courts were interpreting it as requiring officers to be nearly certain of the seizable nature of the items. This court reviewed Brown and its effect on Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), and concluded that this third element requires only probable cause to believe an item is evidence or contraband. State v. Camp, 459 So.2d 53 (La.App. 2d Cir.1984), writ denied, 462 So.2d 212 (1985). Probable cause, in circumstances where property is in plain view, is defined as a practical and nontechnical probability that incriminating evidence is involved, determined by the totality of the circumstances confronting the officer, State v. Evans, 441 So.2d 82 (La.App. 2d Cir.1983).

      . Nineteen years after Coolidge v. New Hampshire, supra, the United States Supreme Court rendered Horton v. California, supra, which clearly eliminated Coolidge's requirement that a plain view seizure be inadvertent. Curiously, in State v. Seiler, 2012-0389 (La.5/25/12), 89 So.3d 1159, the Louisiana Supreme Court upheld a plain view seizure, quoting the Coolidge language requiring inad-vertency, without mentioning Horton, which removed that requirement. The next week, the Louisiana Supreme Court upheld a plain view seizure in State v. Bush, 2012-0720 (La.6/1/12), 90 So.3d 395, referencing Horton and not Coolidge.

      . An appellate court utilizes a two-pronged test in reviewing a sentence for excessiveness. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App.2d Cir.2/28/07), 953 So.2d 890, writ denied, 2007-0805 (La.3/28/08), 978 So.2d 297. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos,
        419 So.2d 475 (La.1982); State v. Swayzer, 43,350 (La.App.2d Cir.8/13/08), 989 So.2d 267, writ denied, 2008-2697 (La.9/18/09), 17 So.3d 388. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense, and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Ates, 43,327 (La.App.2d Cir.8/13/08), 989 So.2d 259, writ denied, 2008-2341 (La.5/15/09), 8 So.3d 581. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App.2d Cir. 12/13/06), 945 So.2d 277, writ denied, 2007-0144 (La.9/28/07), 964 So.2d 351.
      Second, the court must determine whether the sentence is constitutionally excessive. A sentence violates La. Const. Art. I, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Robinson, 40,983 (La.App.2d Cir. 1/24/07), 948 So.2d 379. A trial court has broad discretion to sentence within the statutory limits. State v. Dunn, 30,767 (La.App.2d Cir.6/24/98), 715 So.2d 641; State v. Guzman, 1999-1528, 1999-1753 (La.5/16/00), 769 So.2d 1158. Absent a showing of manifest abuse of that discretion, the appellate court may not set aside a sentence as excessive. State v. Guzman, supra.

      . «Arrests for driving while intoxicated in 1981 and 1982;
      • In 1983, Reyes pled guilty to attempted burglary of an inhabited dwelling and received a five-year suspended sentence;
      • In 1984, Reyes pled guilty to possession of marijuana;
      • In 1985, Reyes plead guilty to delivery of a controlled dangerous substance and was sentenced to serve 20 years in prison;
      • In 1993, Reyes pled guilty to burglary of an inhabited dwelling and received a 25-year sentence, being paroled in 2005; and
      • In 2008, Reyes pled guilty to unauthorized entry of a place of business and received a six-year sentence.


author: CARAWAY, J.

text:
    Robert THORNTON and Lorenza Williams, Individually and on Behalf of the Board of Trustees of the Baptist Temple Baptist Church, Plaintiffs-Appellees v. Alvin L. CARTHON, Sr., Defendant-Appellant.
    No. 47,948-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 15, 2013.
    Rehearing Denied June 20, 2013.

      Washington & Wells, Shreveport, LA, by Alex J. Washington, Jr., for Appellant.
    John E. Settle, Jr., Bossier City, LA, for Appellee.
    Before CARAWAY, DREW and GARRETT, JJ.
   CARAWAY, J.

Iiln this dispute between a church pastor and the Board of Trustees, the trial court ultimately validated the election of two trustees to the Board and enjoined the pastor from acting for certain church matters. The pastor has appealed. We affirm the trial court’s ruling.

Facts

On November 21, 2011, a group of four members of the Board of Trustees (“Board”) of the Baptist Temple Baptist Church of Shreveport LA, including Robert Thornton and Lorenza Williams, met to consider the continued employment of the Pastor, Rev. Alvin Carthon, Sr. The four trustees unanimously voted to recommend to the full congregation the termination of the pastor.

During the November 20, 2011 church service, Thornton instructed the church secretary, Jackie Brown, to make an announcement about the planned church meeting. Brown followed the instructions and attempted to make the announcement. When she did so, however, Rev. Carthon stopped her on the grounds that church meetings could not be had without approval of the pastor. At that time, Williams interrupted the service from the back of the sanctuary to announce that there would be a church meeting. Rev. Carthon then instructed the congregation to pray. Allegedly, Williams and Thornton continued their disruption with other church members outside of the sanctuary. After the service, Rev. Carthon verbally reprimanded both men for their actions.

1 ?The following Sunday, November 27, 2011, Williams again attempted to announce a church meeting before the devotional service in which the full membership was in attendance. Rev. Carthon was in his study when he was informed of Williams’ actions in which Thornton was also involved.

On November 30, 2011, Rev. Carthon sent certified letters to both men officially suspending them from “all offices and duties and responsibilities at the Baptist Temple Church.” Rev. Carthon admitted that the word membership was not included in the letters. He also testified that both Trustees “paid some money” to the church even after their suspensions so that their church membership remained intact.

On December 15, 2001, Thornton and Williams (“Plaintiffs”), individually, and on behalf of the Board, filed a Petition for Writ of Quo Warranto seeking the appointment of a special master to oversee the voting of the congregation. They also sought a temporary restraining order and permanent injunction to prevent Rev. Car-thon from entering the church or dispensing funds from the church account. The petition requested a Writ of Quo Warranto directing Rev. Carthon to show by what authority he claimed the right to conduct church business. By order dated December 15, 2011, the court denied the temporary restraining order.

On January 4, 2012, Rev. Carthon filed Peremptory Exceptions of No Cause and/or Right of Action urging that the petition failed to state a cause of action in Quo Warranto due to the lack of allegations that his selection as |3pastor was improper or that his actions were -without pastoral authority. He contended that the courts should not interfere with ecclesiastical issues. Rev. Carthon also argued that the action should be dismissed for no right of action because Plaintiffs had no authority under the church Bylaws to call meetings of either the Board or the congregation and otherwise failed to follow the requirements of the church Articles of Incorporation.

The trial court conducted several pretrial hearings and issued numerous orders prior to the final trial of these matters. At a preliminary hearing on Rev. Carthon’s exceptions, it was established that the church did not have the requisite number of trustees on the Board to conduct business. Thus, the court deferred ruling on the exceptions and instead rendered judgment on February 24, 2012, directing that a membership meeting of the church be held to conduct an election for three vacancies on the Board to provide for nine church members as trustees. The judgment directed that a membership roll be prepared, the date for the meeting be set, and an independent clergyman conduct the meeting. The judgment instructed each “side” to provide a list of three candidates from the membership to be elected for a total of six members to be included on the ballot. No appeal of this judgment occurred.

On March 24, 2012, the court-ordered election of trustees was held. Williams, Thornton and David Holden were elected.

This election prompted Rev. Carthon to file in the same pending action a Petition for Declaratory Judgment and Injunctive relief on April 16, 2012, against the three newly-elected Board members, seeking to invalidate | ¿the election due to the vote of alleged ineligible members and Plaintiffs’ ineligibility to run for trustee positions based upon their November 2011 suspensions. On the same day, Rev. Carthon filed a Motion to Re-Urge his previously filed exceptions of No Right/Cause of action.

The Court ultimately set all remaining matters for hearing for May 17, 2012. Nevertheless, a membership meeting terminated Rev. Carthon from his position on April 29, 2012. This prompted Rev. Car-thon to seek further injunctive relief. The court granted a preliminary injunction and set the hearing on the permanent injunction for May 17, 2012. On May 4, 2012, Rev. Carthon sent second letters to Plaintiffs again notifying them of their suspension from all offices, duties and responsibilities due to their April 29th actions.

Full copies of the subject church Bylaws and Articles of Incorporation are not included in the record before us. The parts provided are incomplete, undated or in some instances, untimely filed. It is only from the transcript of the witnesses’ testimony that most of the relevant provisions can be gleaned. As they relate to the issues raised on appeal, the following articles provide the crucial authority for the parties’ actions and the Court’s ruling:

1) Article IV of the Amended Articles of Incorporation provides that membership of the Board of Trustees is limited to ten members, including the pastor who serves as ex officio of all boards.

|s2) Article VI of the Amended Articles of Incorporation of September 15, 2006, reads as follows:

Meetings of the Board of Trustees members may be called at any time by either the Pastor or the Team Leader of the Board of Trustees. On the failure or refusal of either to call a meeting, upon the written request of at least five members of the Board of Trustees, any one of these five members shall have the authority to call a meeting, provided that notice by United States Mail shall be given to each member at least ten days prior to the date named for any meeting called and this requirement of notice shall apply to either regular or special meetings, except that it may be waived in writing by each member present at said meeting.
No business transacted at a Board of Trustees members’ meeting shall be valid unless a quorum is present. A quorum shall consist of at least seven of the membership present in person.
All meetings shall be held at Baptist Temple Baptist Church, Caddo Parish, Louisiana.

3) Article IX of the Amended Articles of Incorporation provides:

Notice of Meetings to Members. The Team Leader of the Board of Trustees, or the Team Leader of the Board of Deacons, or the Pastor shall provide notice to members of the corporation the date, time, and location of any Special or Annual Meeting by announcement at the regularly scheduled Sunday morning service on the two consecutive Sundays prior to the meeting. Notice must also be published in the church bulletin at least once, and at least seven days prior to the meeting.
Any and all provisions at law or otherwise contained in the Articles of Incorporation requiring any other delays or other forms of notice, particularly as found in LSA-R.S. 12:230 are herein dispensed with.

4) Article 3 of the church Bylaws defines the rules and regulations related to membership as follows:

All members shall be ruled and governed by the laws of this, the Baptist Temple Baptist Church, to love, honor, respect and admonish |fione another, and to follow the leadership given by the Pastor. Any member who refuses to follow the leadership shall not be in line to lead anything. The same shall be dealt with accordingly.
All members shall work together without divisions.
A member in good standing (active member) is one who contributes cheerfully and regularly tó the expenses of the church within a 90-day period of time, talent and money. One who does not adhere to the above shall be considered a member not in good standing, inactive member. An inactive member shall not have voting privileges. All active members age 16 and above will be permitted to vote. The above includes members who are sick and shut in.
In order for charges to be brought against a member the same applies as for a pastor and deacon board. Three quarters of the deacon board must agree before bringing to the membership.

At the May 17, 2012 hearing, the court heard arguments and testimony relating to the opposing petitions and pleadings filed by the parties. On May 22, 2012, the trial court made the following findings of facts as they relate to the March 24 election of the Board and the issues before us:

1) In November 2011, Rev. Carthon never suspended or attempted to take any action against Mr. Thornton and Mr. Williams which adversely [a]ffected their membership status. Therefore, Mr. Thornton and Mr. Williams were both members in good standing (active members) to meet the eligibility requirement for nomination and election to the Board of Trustees.
4) Pursuant to the Church’s Bylaws, Mr. Thornton and Mr. Williams were both members in good standing (active members) to meet the financial eligibility requirement for nomination and election to the Board of Trustees.
7) The results of the March 24, 2012, Church election for the Board of Trustees were accepted by this Court.

The court further determined that:

Based upon the totality of the circumstances by a preponderance of the evidence, this Court opined and determined that the newly elected members of the Board of Trustees and the Church membership as a |7whole would be better served if Rev. Carthon did not participate in a functional role in Church activities at this time and/or until further actions by the Church membership.

From these findings, the court rendered judgment which first declared that Rev. Carthon was still the pastor of the church since the April 29 action of the church was premature. Nevertheless, the court granted the writ of quo warranto to the following extent:

a) Defendant, Rev. Alvin L. Carthon, Sr., is enjoined from entering Baptist Temple Baptist Church and/or the premises located at 5024 Greenwood Road, Shreveport, Louisiana, without written request by Rev. Carthon and expressed written approval from this Court; and
b) Defendant, Rev. Alvin L. Carthon, Sr., is enjoined from acting on behalf of Baptist Temple Baptist Church regarding any matters, including, but not limited to, business financial, or religious.

The Judgment denied Rev. Carthon’s exceptions of no cause and no right of action and his requests for declaratory and injunctive relief. The judgment placed David Holden, Robert Thornton and Lor-enza Williams on the Board of Trustees.

This appeal of the May 22, 2012, judgment by Rev. Carthon ensued. On appeal, Rev. Carthon argues that the trial court erred in its rulings on the grounds that his suspension letters removed Plaintiffs’ authority to act to remove him as pastor. Rev. Carthon also argues that the trial court erred in failing to enjoin the Trustees from terminating him without allowing him the opportunity to answer his charges and to be present to preside over the membership- meeting. Finally, Rev. Carthon argues that the trial court erred lain prohibiting him from returning to the church and answer the charges against him.

Discussion

Quo warranto is a writ directing an individual to show by what authority he claims or holds public office or office in a corporation, or directing a corporation to show by what authority it exercises certain powers. Its purpose is to prevent usurpation of office or of powers. La. C.C.P. art. 3901. When the court finds that a person is holding or claiming office without authority, the judgment shall forbid him to do so. It may declare who is entitled to the office and may direct an election when necessary. La. C.C.P. art. 3902. The writ of quo warranto, although required to be instituted by petition, is an extraordinary remedy which may be but does not necessarily have to be tried summarily. La. C.C.P. arts. 2592, 3781; Clay v. Clay, 389 So.2d 31 (La.1979).

In a quo warranto action, the defendant has the burden of showing by what authority he or she claims to hold office. Menard v. City of New Orleans Enforcement and Hearings Bureau, 12-1161 (La.App. 4th Cir.1/18/13), 108 So.3d 340; Crutcher v. Tufts, 04-0653 (La.App. 4th Cir.2/16/05), 898 So.2d 529.

The proper procedure to contest title to an office in a private corporation is a writ of quo warranto. Canedo v. Vicari, 11-1116 (La.App. 5th Cir.5/8/12), 99 So.3d 64; Yee v. Wond, 08-814 (La.App. 5th Cir.3/24/09), 10 So.3d 791, writ denied, 09-0893 (La.6/5/09), 9 So.3d 873; See, Leidenheimer v. Schutten, 194 La. 598, 194 So. 32 (1940). In quo |9warranto proceedings to oust directors of a corporation, the court may investigate whether or not the votes were legally cast. State ex rel. Moss v. Willis, 192 So. 138 (La.App.Orleans 1939). A church member who claims the board of directors was not elected according to procedure set forth in the church charter has a right to have the claim heard by a civil court. Wilkerson v. Battiste, 393 So.2d 195 (La.App. 1st Cir.1980).

Courts of record within their respective jurisdiction may declare rights, status and other legal relations whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for; and the existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate. The declaration shall have the force and effect of final judgment or decree. La C.C.P. art. 1871; In re Melancon, 05-1702 (La.7/10/06), 935 So.2d 661. Courts are without power to grant declaratory relief unless a justiciable controversy exists. Prator v. Caddo Parish, 04-0794 (La.12/1/04), 888 So.2d 812; Louisiana Supreme Court Committee on Bar Admissions ex rel. Webb v. Roberts, 00-2517 (La.2/21/01), 779 So.2d 726. Trial courts are vested with wide discretion in deciding whether to grant or refuse declaratory relief. Louisiana Supreme Court Com mittee on Bar Admissions ex rel. Webb, supra. Courts should not decide abstract, hypothetical or moot controversies, or render advisory opinions with respect to such controversies. Id.

| mExceptions of no cause of action and no right of action are both peremptory exceptions, the function of which is “to have the plaintiffs action declared legally nonexistent, or barred by effect of law, and hence this exception tends to dismiss or defeat the action.” La. C.C.P. art. 923; Wagoner v. Chevron USA Inc., 45,507 (La.App.2d Cir.8/18/10), 55 So.3d 12, writ denied, 10-2773 (La.3/2/12), 83 So.3d 1032; Waggoner v. America First Ins., 42,863 (La.App.2d Cir.1/16/08), 975 So.2d 110. Both exceptions of no right and no cause of action present questions of law requiring a de novo review by appellate courts. La. C.C.P. art. 927; Wagoner, supra; Skannal v. Bamburg, 44,820 (La.App.2d Cir.1/27/10), 33 So.3d 227, writ denied, 10-0707 (La.5/28/10), 36 So.3d 254.

Only a person having a real and actual interest to assert may bring an action. La. C.C.P. art. 681; Wagoner, supra; Skannal, supra. The peremptory exception of no right of action is used to show that a plaintiff has no legal right or interest in enforcing the matter asserted, based upon the facts and evidence submitted. La. C.C.P. art. 927; Wagoner, supra; Richland Parish Police Jury v. Debnam, 42,421 (La.App.2d Cir.10/17/07), 968 So.2d 294, writ denied, 08-0016 (La.3/24/08), 977 So.2d 953.

The burden of proof of establishing the exception of no right of action is on the exceptor. City of New Orleans v. Board of Directors of Louisiana State Museum, 98-1170 (La.3/2/99), 739 So.2d 748; Wagoner, supra.

The function of the peremptory exception of no cause of action is to question whether the law extends a remedy to anyone under the factual | ¶ allegations of the petition. Kinchen v. Livingston Parish Council, 07-0478 (La.10/16/07), 967 So.2d 1137; Fink v. Bryant, 01-0987 (La.11/28/01), 801 So.2d 346. The peremptory exception of no cause of action is designed to test the legal sufficiency of the petition by determining whether the plaintiff is afforded a remedy in law based on the facts alleged in the pleading. Kinchen, supra; Fink, supra.

The Free Exercise Clause of the United States Constitution provides that “Congress shall make no law ... prohibiting the free exercise [of religion.]” The Free Exercise Clause restricts the government’s ability to intrude into ecclesiastical matters or to interfere with a church’s governance of its own affairs. Bollard v. California Province of the Society of Jesus, 196 F.3d 940 (9th Cir.1999) citing, Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church in North America, 344 U.S. 94, 73 S.Ct. 143, 97 L.Ed. 120 (1952) to explain that the Free Exercise Clause protects the powers of religious organizations to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine. A church’s selection of its own clergy is one such core matter of ecclesiastical self-governance with which the state may not constitutionally interfere. Bollard, supra, citing, Serbian Eastern Orthodox Diocese for United States of America and Canada v. Milivojevich, 426 U.S. 696, 96 S.Ct. 2372, 49 L.Ed.2d 151 (1976). A church must retain unfettered freedom in its choice of ministers because ministers represent the church to the people. Bollard, supra.

11gProcedural Matters

All of Rev. Carthon’s four assignments of error relate in some manner to the proper procedure employed in this dispute and the trial court’s recognition of both a cause of action and the right of action by-Thornton and Williams, who purported to act individually and on behalf of the Board. Regarding these procedural assertions, we find two things most significant. First, both sides of the controversy have filed petitions for relief, Plaintiffs’ initial claims in instituting the action and Rev. Carthon’s counterclaims. The common relief sought by all parties centers on church governance. Second, regardless of any prior procedural deficiency, Rev. Carthon did not appeal the trial court’s prior order for the Board of Trustee election of March 24. That judgment is therefore final as it has been carried out by the acquiescence and participation of both sides in the court-ordered process. From the nature of a quo warranto action, the court had authority to declare who is entitled to hold the authority of office and to direct an election when necessary. La. C.C.P. art. 3902. Therefore, we will consider only the asserted questions of procedure remaining after the March 24 election.

A portion of Rev. Carthon’s argument rests upon the assertions that this dispute is exclusively “ecclesiastical,” barring the court’s interference with church governance. From our review of the ecclesiastical principles pertaining to the Free Exercise Clause, the church’s selection of its own clergy is a core matter of ecclesiastical self-governance. However, the judgment now appealed does not make or interfere with any such pastoral selection by the church as a collective body. Instead, both sides seek court | ^assistance declaring the powers for church governance under the existing corporate documents, the Articles of Incorporation and Bylaws, which the church chose to employ for its structure in reference to Louisiana’s non-profit corporations law. In its order for the March 24 election of the Board, the court interpreted and declared the process for the governance of the corporate body which the church had previously adopted through its incorporation. We therefore find that ecclesiastical interference is not present in this action.

Concerning the causes of action for the requested relief, we interpret the fact pleadings of both sides of this dispute as seeking declaratory relief concerning the corporate power of the Board in relation to the role of the pastor. Since a significant controversy existed and the participation of a large portion of the church’s membership acted through the March 24 election, we find that this justiciable controversy may be the subject of declaratory relief. As such, a cause of action exists.

As to the right of action of Plaintiffs, the two newly-elected Trustees purport to act individually under their standing as church members and Trustees. They also purport to act on behalf of the Board, which after March 24 is now appropriately constituted with nine members. Rev. Carthon’s challenge of this standing by Plaintiffs with the exception of no right of action was adjudicated at the May 17 evidentiary hearing and denied. Rev. Car-thon presented no evidence disputing the Plaintiffs’ representative capacity for the Board. Accordingly, we find that the exception of no right of action was properly denied.

| uMerits of the May 17 Judgment

The trial court’s ruling recognizing the March 24 election of the Board was a thorough assessment of the election process which reveals no manifest error of fact or error in the application of the corporate governing provisions for the church. Despite the past conflict involving Thornton and Williams and Rev. Carthon’s suspension of the two men from church office, Thornton and Williams remained active members of the church. Their election to the Board was by the entire membership which, ultimately, is the basic body of the church. Thus, any question of the two men’s prior conflict with Rev. Carthon’s leadership was resolved in their favor by the membership with the March 24 vote.

Finally, the quo warranto claims and allegations of Plaintiffs were sufficient to allow the trial court to issue the injunc-tive relief preventing Rev. Carthon’s participation in church matters. The court’s rulings sanctioning the newly-elected Board and holding Rev. Carthon’s immediate participation in abeyance were clearly aimed at allowing the Board and church membership time to deliberate and choose the ministerial leadership for the church.

Conclusion

For the reasons set forth above, the judgment of the trial court is affirmed. Costs of this appeal are assessed to Rev. Carthon.

AFFIRMED.

APPLICATION FOR REHEARING

Before CARAWAY, DREW, MOORE, LOLLEY and GARRETT, JJ.

Rehearing denied.

      . These letters were admitted into evidence but are not contained in the record before us.

      . At a January 31 hearing, the court ruled that according to this Article, the Pastor was not a voting member of the Board of Trustees.

      . This Article was first included in the record as an attachment to Rev. Carthon's Rule of Contempt which was filed after the May 17 trial and was never specifically introduced into evidence at trial.

      . Per order of this court on November 9, 2012, the trial court certified the May 22, 2012 judgment as an appealable final judgment in a Per Curium Memorandum dated December 18, 2012.