text:
    J-W OPERATING COMPANY, Plaintiff-Appellee v. George A. OLSEN, Jr., et al., Defendant-Appellants.
    No. 48,756-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 15, 2014.

      Davidson, Jones & Summers, APLC by Randall Stephen Davidson, William Lake Hearne, Jr., Shreveport, LA, for Appellant, George A. Olsen, Jr.
    Pettiette, Armand, Dunkelman Woodley, Byrd & Cromwell, L.L.P., Shreveport, LA, by Lawrence W. Pettiette, Jr., Joseph S. Woodley, for Appellant, Hanh T. Williams.
    Wiener, Weiss & Madison, by John M. Frazier, Armand L. Roos, Shreveport, LA, Marjorie Frazier Amerine, for Appellee, Armand L. Roos, Independent Executor.
    Blanchard, Walker, O’Quin & Roberts By William Timothy Allen, Michael E. Rid-dick, Shreveport, LA, for Appellee, J-W Operating Co.
    Before STEWART, MOORE and PITMAN, JJ.
   MOORE, J.

|, George A. Olsen Jr. and Hanh T. Williams appeal a summary judgment finding that assignments of interest in a mineral lease in their favor were absolute nullities and that the interest belonged to the succession of Fred L. Houston, who prior to his death executed the initial assignment. For the reasons expressed, we affirm.

Factual Background

Fred L. Houston and his wife granted a mineral lease (“the Tenneco lease”) over 40 acres of land they owned in DeSoto Parish in July 1974. Tenneco, or its assignees, drilled 10 wells on the three units affecting the tract; the lease has been highly productive. At some point, J-W Operating became the owner and operator of these wells and units. In 2001, Mrs. Houston died, and Houston became sole owner of the tract and the lease.

In August 2005, Houston formed an inter vivos trust called the Fred L. Houston Trust. He placed various assets, including the Tenneco lease, in the trust corpus. The instrument declared the trust “irrevocable and may not be revoked at any time under any circumstances[,]” including “any action to * * * modify or negate Settlor’s intended effect of protecting the properties and assets transferred to the Trust[.]” It designated Houston as both the income and principal beneficiary, with the provision that upon his death, “his interest in the trust shall vest in his estate (his heirs or legatees) free of trust.” Also, “This trust shall be a spendthrift trust to the maximum extent permitted by the applicable laws governing such trusts[.]” It gave the trustee broad management powers and a compensation of 50% of all revenue from a 12separate mineral lease (in Webster Parish). Finally, it named local insurance broker Hanh T. Williams as trustee. Ms. Williams signed not only the instrument of trust but also the act of assignment whereby Houston transferred the Tenneco lease to the trust corpus.

In April 2006, an entity called Noble House Investments Inc., through its president, George A. Olsen Jr., sent a letter to Houston (“to the attention of’ Ms. Williams), offering to buy the trust’s interest in the Tenneco lease for $34,000. Four days later, on April 26, Houston signed, in his personal capacity, an assignment (the “Noble House assignment”) of royalty interest in the Tenneco lease to Noble House for “good and valuable consideration.” Notably, the Noble House assignment made no mention of the trust. By letter agreement that same day, Noble House promised to assign to Ms. Williams “50% of the interest purchased as soon as the new division orders are complete.” Noble House executed an assignment (the ‘Williams assignment”) to that effect on August 8, 2006. Noble House also assigned all its remaining interest to Olsen (the “Olsen assignment”) on September 12, 2007.

Houston died on September 23, 2008. Under the trust instrument, the corpus, including the Tenneco lease, immediately vested in his estate. Armand Roos was confirmed as testamentary executor of the succession. Apparently, he notified J-W Operating that the trust, and now the succession, claimed the Tenneco lease.

Procedural History

J-W Operating filed this petition for concur sus in April 2011, naming as defendants Olsen, Ms. Williams and Houston’s succession. It alleged that |3it had suspended royalty payments in August 2009 because of the dispute over ownership; in the 19 months since, the Tenneco lease had accrued royalties of $67,240.98, which were placed in court registry.

Olsen and Ms. Williams filed general denials, urging in essence that even if, by the Noble House assignment, Houston conveyed a thing he did not own, the assignment was only a relative nullity. The assignment included a warranty against eviction; upon Houston’s death, the Ten-neco lease reverted to his estate, and the succession was bound to honor the warranty. Each demanded recognition of his or her 50% interest.

Roos answered on behalf of the succession that the Noble House assignment was an absolute nullity; he demanded recognition of the succession’s 100% interest.

Olsen and Ms. Williams then filed various exceptions, including no right of action, urging that Roos was not a party entitled to assert the trust’s claim of relative nullity, and no cause of action, urging that after-acquired title cured the relative nullity before suit was filed. The district court denied these exceptions by judgments dated August 23, 2011.

Roos filed the instant motion for partial summary judgment, seeking a declaration that the succession owned the Tenneco lease and an award of all accrued royalties, less a credit for the purchase price paid by Noble House. He argued that all three assignments were absolute nullities: they violated the spendthrift provision of the trust instrument, and the Noble House assignment was actually orchestrated by Ms. Williams, who as trustee was 14prohibited from acquiring trust property, La. R.S. 9:2085 B. In support, he attached Ms. Williams’s videotape deposition and a portion of Olsen’s oral deposition. Unflat-teringly, these showed that Ms. Williams had contacted Olsen, telling him that she represented Houston and had the authority to negotiate the sale of the mineral interest; together they decided how much to offer him, and agreed to split the mineral interest, less a finder’s fee for Ms. Williams; as a result, Olsen’s corporation made the offer to Houston, which he accepted; and Olsen and Ms. Williams ultimately did split the mineral interest 50-50. Ms. Williams paid $14,000 for her share of the deal.

Olsen filed a cross-motion for partial summary judgment, seeking an award of 50% interest in the Tenneco lease. He reiterated that upon Houston’s death, the Tenneco lease was transferred from the trust to the estate, thus creating after-acquired title under La. C.C. art. 2452. He also argued that the Noble House assignment .was not a quitclaim deed, and hence included a warranty against eviction. In support, he attached his own affidavit that Houston said he (Houston), and not the trust, actually owned the Tenneco lease, and that he (Olsen) relied on this without a title exam.

Ms. Williams did not file her own motion for summary judgment, but she opposed Roos’s.

Action of the District Court

After the matter was submitted on briefs, the court found that the Noble House assignment violated a rule of public order, that of protecting the settlor’s intent as set forth in the trust document, Albritton v. Albritton, 600 So.2d 1328 (La.1992), particularly the spendthrift provisions, and the sale of the corpus would divest the beneficiary of his interest. The court ^declared the Noble House assignment, as well as the Williams and Olsen assignments, absolute nullities. It granted Roos’s motion for partial summary judgment and denied Olsen’s. The court also denied Olsen and Ms. Williams’s motion for new trial or reconsideration, as well as Roos’s motion to amend the judgment.

Olsen and Ms. Williams filed separate motions for suspensive appeal. They have joined on brief, advancing five assignments of error.

Discussion: Absolute or Relative Nullity?

By their first assignment of error, appellants urge the district court erred in finding that the purported transfer of trust property by Houston was an absolute nullity when it was not an attempt to transfer his beneficiary interest in the trust. By their second assignment, they urge the court also erred in finding that the subsequent acquisition by Houston of the lease he attempted to sell did not cure the relative nullity created by his attempted assignment of the lease.

They argue, in essence, that the Noble House assignment was only a relative nullity, cured by subsequent acquisition. An absolute nullity is one that violates public order, La. C.C. art.2030, and includes a contract that would violate a state statute, Lieber v. Caddo Levee Dist., 27,267 (La.App. 2 Cir. 8/23/95), 660 So.2d 188, writ denied, 95-2355 (La.12/8/95), 664 So.2d 427. The sale.of a thing belonging to another does not convey ownership, La. C.C. art. 2452, but such a sale is ratified if the seller acquires title before the buyer sues for nullity; this is the doctrine of “after-acquired title,” Arkansas La. Gas Co. v. Thompson, 222 La. 868, 64 So.2d 202 (1953); Bradstreet v. Kinchen, 2008-0126 (La.App. 4 Cir. 4/1/09), 10 So.3d 331, writ denied, 2009-0953 (La.6/19/09), 10 |6So.3d 737. Appellants concede that Houston did not have title to the Tenneco lease, but argue that his “mistake or misrepresentation” resulted in nothing more than giving Noble House a cause of action to rescind the sale, which Noble House never asserted. Upon Houston’s death, ownership was vested in his estate, thus curing the relative nullity and conveying after-acquired title.

Roos responds that the Noble House assignment, and the later assignments, were absolutely null and could not be cured. In support, he cites the doctrine of “trust indestructibility,” Albritton v. Albritton, supra, and McLendon v. First Nat’l Bank of Shreveport, 299 So.2d 407 (La.App. 2 Cir.1974), and argues that the Noble House assignment simply violated the core concept of the trust, namely, the beneficiary cannot alienate trust property. We agree.

Louisiana has a strong public policy in effectuating and protecting the settlor’s intent as set forth in the trust document. Id.; Richards v. Richards, 408 So.2d 1209 (La.1981). In Albritton v. Albritton, supra, the court expressly rejected the notion that even in the absence of vices of consent, the beneficiary could enter into an agreement affecting the trust. The court stated:

This cannot be so. The trust would hardly be a stable device for the transmission of property if the beneficiaries and trustees could make agreements that could modify the settlor’s fundamental intent in setting up the trust.

The court further found that such modifications were contrary to the rules of order for trusts, La. R.S. 9:2021 and 9:2025:

17§ 2021. General rule; modification The settlor may modify the terms of the trust after its creation only to the extent he expressly reserves the right to do so.
§ 2025. Delegation of right to terminate or to modify administrative provisions
A settlor may delegate to another person the right to terminate a trust, or to modify the administrative provisions of a trust, but the right to modify other provisions of a trust may not be delegated.

Under the scheme of the trust code, even the settlor has no power to modify the trust he has created unless he expressly reserves the power to do so. The consent of all the settlors, beneficiaries and trustees is not effective to make any disposition in trust unless the trust instrument so provides. Id. at 1332, citing Oppenheim & Ingram, 11 La. Civ. L. Treatise—Trusts, § 294 (1977). The Albritton court held that the notion of trust indestructibility is “inherent in our Louisiana trust law,” and announced an imperative rule of public order. “Any violation of these rules is an absolute nullity.” Id.; Badon’s Employment Inc. v. Smith, 359 So.2d 1284 (La.1978); E.L. Burns Co. v. Cashio, 302 So.2d 297 (La.1974).

We recognize that the Noble House assignment is not quite the same as destroying the trust; however, the “extension of trust” in Albritton, supra, was intended only to prolong the trust, and yet the supreme court rejected it under the principle of trust indestructibility. In both cases, the fundamental concept is to honor the settlor’s intent, regardless of the later intent of the trastee or a beneficiary. Houston designated this as an irrevocable trust. His intent, clearly stated in the trust instrument, was to “protect[] the properties and assets transferred to the trust.” The Noble House assignment thwarted f «this intent, thus violating an imperative rale of public order. Like the extension of trust in Albritton, supra, the Noble House assignment is an absolute nullity. The district court’s finding to this effect is legally correct.

With this conclusion, we pretermit any consideration of the doctrine of after-acquired title. A contract that is absolutely null may not be confirmed. La. C.C. art. 2030; Baker v. Maclay Properties Co., 94-1529 (La.1/17/95), 648 So.2d 888. These assignments of error lack merit.

Validity of Self-Settled Trust

By their fifth assignment of error, Olsen and Ms. Williams urge the court erred in finding that the trust created by Houston, for Houston as sole beneficiary, was entitled to spendthrift protection. They contend that Houston cannot “hide behind” his trust, even if it is a spendthrift trust. They concede that Louisiana law allows spendthrift trusts, La. R.S. 9:2002, “to guard against the improvidence of the beneficiary and to preserve the income for his support, in such manner that he cannot dispose of it nor can it be taken by his creditors,” 5-44 Page on Wills, § 44.31 (©2013). They contend, however, that a trust cannot be considered spendthrift “to the extent of the trust property donated to the trust by the beneficiary,” R.S. 9:2004, comment (c). This is called a “self-settled trust,” and a “settlor cannot create a spendthrift trust for his own benefit,” Kurzweg v. Marple, 841 F.2d 635 (5 Cir.1988). Otherwise, they argue, crafty debt-ridden settlors could merely create trusts and thus shield their assets from creditors. Finally, appellants reiterate that when a beneficiary, whether or not of a |flspendthrift trust, tries to sell his interest in the corpus, it is merely a relative nullity.

Roos responds that R.S. 9:2004 and Kurzweg prohibit a debtor from creating a self-settled spendthrift trust to defraud his creditors, but nothing prohibits a person from placing assets in a spendthrift trust to prevent himself from unintentionally (or intentionally) alienating his property contrary to his best interest, Page on Wills, supra He also shows that the court applied the spendthrift provisions to a self-settled trust in In re Guidry Trust, 97-1210 (La.App. 3 Cir. 5/6/98), 713 So.2d 631.

The trust code expressly authorizes the spendthrift trust:

§ 2002. Restraint upon alienation
The trust instrument may provide that the interest of a beneficiary shall not be subject to voluntary or involuntary alienation by a beneficiary. A restraint upon voluntary alienation by a beneficiary is valid. But a restraint upon involuntary alienation by a beneficiary is subject to the limitations prescribed by this sub-part.

The applicable restraint upon involuntary alienation is provided two sections later:

2004. Seizure by creditor; general rule
A creditor may seize only:
(1) An interest in income or principal that is subject to voluntary alienation by a beneficiary.
(2) A beneficiary’s interest in income and principal, to the extent that the beneficiary has donated the property to the trust, directly or indirectly. A beneficiary will not be deemed to have donated property to a trust merely because he fails to 1 mexercise a right of withdrawal from the trust.

Comment (c) states that a settlor cannot create a spendthrift trust for his own benefit, citing Restatement of Trusts 2d, § 156 (1959). We recognize the common law principle expressed in the Restatement; however, it broadly applies “where a person creates for his own benefit a trust with a provision restraining the voluntary or involuntary transfer of his interest” (emphasis added). By contrast, La. R.S. 9:2002 states that a restraint upon voluntary alienation is valid, and only restraints upon involuntary alienation are subject to limitations such as stated in R.S. 9:2004. The Noble House assignment was obviously a voluntary alienation of the trust corpus; as such, it is valid under R.S. 9:2002, and not subject to seizure by a creditor under R.S. 9:2004.

This conclusion is fortified by certain extrinsic evidence pervading the record. The trust instrument designated Ms. Williams as trustee; the summary judgment evidence shows that she contacted Olsen who, at her suggestion and through his company, Noble House, obtained the Noble House assignment from Houston, and later split the Tenneco lease with Ms. Williams. The trust code expressly states:

§ 2085. Sale by trustee to himself
A. * * * An individual trustee shall not directly or indirectly buy or sell property for the trust from or to himself or his relative, employer, employee, partner, or other business associate, unless the trust instrument provides otherwise, or unless specifically authorized by a court of competent jurisdiction, after a contradictory hearing.

Ms. Williams’s scheme to purchase this valuable asset would appear to be prohibited by R.S. 9:2085 A. This is simply not the type of situation depicted by the appellants: Houston did not put his assets in a spendthrift, trust to defraud his creditors, but rather to protect the assets from his own imprudence. On this record, the provisions of the trust code and of this trust instrument are much better served by honoring the restraint upon alienation authorized by R.S. 9:2002. The district court’s findings to this effect are not plainly wrong, and this assignment of error lacks merit.

Exceptions of No Right and No Cause of Action

By their two remaining assignments of error, Olsen and Ms. Williams contest the district court’s denial of their exceptions of no right and no cause of action. They show that a relative nullity may be invoked “only by those persons for whose interest the ground for nullity was established,” La. C.C. art.2031, and in the case of the sale of a thing belonging to another, “nullity is in the interest of the purchaser,” Frey v. Amoco Prod. Co., 603 So.2d 166 (La.1992). They contend that the seller, whether it be Houston, the trust or the estate, simply has no right of action to rescind a relatively null sale. They further show that every sale of real property implies a warranty of peaceful possession, La. C.C. art. 2475, even a sale by after-acquired title, La. C.C. arts. 872, 936. Claiming that the estate regained title free of trust, the appellants argue that the executor cannot now claim title adverse to the decedent’s buyer, Gary v. Bullock, 206 La. 231, 19 So.2d 120 (1944); 12Cattle Farms Inc. v. Abercrombie, 211 So.2d 354 (La.App. 4 Cir.1968), and thus Roos has no cause of action.

Roos responds that as the dative independent executor of Houston’s succession, he stands in the position of Houston, both as seller and trust beneficiary, and thus had both a right and cause of action.

Absolute nullity may be invoked by any person or may be declared by the court on its own initiative. La. C.C. art.2030; Albritton v. Albritton, supra; Skannal v. Jones Odom Davis & Politz LLP, 48,016 (La.App. 2 Cir. 9/25/13), 124 So.3d 500. For the reasons already discussed, the district court correctly found that the Noble House assignment was an absolute nullity. Roos obviously had a private right and cause of action to assert absolute nullity. La. C.C. art.2030; Total Benefit Servs. v. City of New Orleans, 2002-0697 (La.App. 4 Cir. 4/11/02), 819 So.2d 1067, writs denied, 2002-1039 (La.4/16/02), 813 So.2d 413, 2002-1238 (La.5/8/02), 815 So.2d 828. These assignments of error lack merit.

Conclusion

For the reasons expressed, the judgment is affirmed. All costs are to be paid by the appellants, George A. Olsen Jr. and Hanh T. Williams.

AFFIRMED.

      . The heading to Article 3 actually says, “Revocable Trust ” (all headings are underlined in the original), but the text begins, "This trust is irrevocable and may not be revoked * *

      . The court granted other exceptions, with the result that Roos amended his pleadings to restate Olsen’s and Ms. Williams’s domiciles. These rulings are not appealed.

      . They also cite the unpublished opinion of In re Succession of LeBeau, 2010-2317 (La.App. 1 Cir. 1/12/12), 2012 WL 113076.

      . This text deals with testamentary trusts and thus is not directly applicable to the instant inter vivos trust. It recognizes, however, "the great weight of American authority * * * that if testator expresses his intention in apt and suitable language, it is possible to create such an estate in equity as to exclude the creditors of the beneficiary from reaching such estate and subjecting it to their claims.” Such an estate is intended to guard "against the improvidence of the beneficiary and to preserve the income for his support, in such manner that he cannot dispose of it nor can it be taken by his creditors.” Id. (emphasis supplied).

      . The court reached essentially this conclusion in In re Guidry Trust, supra, without explicitly citing R.S. 9:2002 and 2004; the dissenting judge in In re Succession of Le-Beau, supra, also recognized, "A spendthrift trust is created to provide a fund for the maintenance of the beneficiary and at the same time to secure it against his improvidence or incapacity.”

      . Notably, Ms. Williams did not advise Olsen to offer to buy the Webster Parish lease, from which her trustee's compensation was drawn.


source: Caselaw Access Project

author: LOLLEY, J.

license: Public Domain

text:
    Bertha ODOM, Plaintiff-Appellant v. Ronald B. SIEGEL, Trustee, Travelers Property Casualty Insurance Company of America, Enterprise Leasing Company Southwest, Defendants-Appellees.
    No. 48,757-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 15, 2014.

      Ernest H. Gilliam, III, for Appellant.
    Pettiette, Armand, Dunkelman, Wood-ley, Byrd & Cromwell, Shreveport, LA, by S. Michael Cooper, for Appellees, Travelers and Ronald B. Siegel, Trustee.
    Salley, Hite, Mercer & Resor, New Orleans, LA, by A. Jacob Culotta, Jr., for Appéllee, EAN Holdings, LLC.
    Before CARAWAY, LOLLEY and GARRETT, JJ.
   LOLLEY, J.

11 Bertha Odom appeals the summary judgment granted by the First Judicial District Court, Parish of Caddo, State of Louisiana, in favor of the defendants, Robert B. Siegel, Trustee, Travelers Property Casualty Insurance Company of America, and EAN Holdings, LLC. For the following reasons, we ■ affirm the trial court’s judgment.

Facts

On November 24, 2010, Odom and her daughter were passengers in a vehicle driven by Linda Jones. The women drove to an Enterprise Rent-A-Car center in Shreveport, Louisiana. Because Jones was disabled, she parked her car in a handicapped parking space in the Enterprise parking lot. After examining something under the hood of Jones’s car, Odom walked around the vehicle’ towards the driver’s side and tripped over the concrete parking bumper or wheel stop, allegedly injuring herself.

Subsequently, in November 2011, Odom filed suit against Robert B. Siegel, Trustee, the owner of the parking lot; Travelers Property Casualty Insurance Company of America (“Travelers”), Siegel’s insurer; and, EAN Holdings, LLC (“EAN” or “Enterprise”), the lessee of the lot. In her petition, Odom claimed that the defendants failed to: use reasonable care to provide a safe parking area and walkways in the parking lot; use reasonable care to keep the parking areas free of hazardous conditions; properly inspect the parking areas; and, establish proper procedures to ensure that all proper precautions had been taken to ensure the safety of visitors to the retail outlet. Finally, she specifically argues that the concrete wheel stop was negligently placed, which |aviolated standard building code requirements, providing the hazardous and dangerous circumstances causing her injury.

After filing suit, Odom’s original attorney filed a motion to withdraw, which was granted after a hearing on the matter on April 16, 2012. Several months later, on September 25, 2012, Travelers and Siegel filed their motion for summary judgment. EAN filed a separate motion for summary judgment. On December 3, 2012, at the hearing on the motions, Odom appeared pro se and admitted she had not filed any opposition to the defendants’ motions. The trial court postponed the hearing until January 16, 2013, and a trial date was also set for July 2013.

On January 15, 2013, a day before the hearing on the defendants’ motions, Odom filed her opposition. After hearing argument on the merits of the motions (despite objections by the defendants as to the timeliness of Odom’s opposition), the trial court granted summary judgment in favor of Siegel, Travelers, and EAN. This appeal by Odom ensued.

Discussion

On appeal, Odom raises two assignments of error. First, she argues that the trial court erred in concluding she had sufficient time to conduct discovery, considering the unique circumstances of her case. Second, she argues that the trial court erred in determining she failed to meet her burden of proof necessary to defeat summary judgment.

We review the grant of a motion for summary judgment de novo. Schroeder v. Board of Sup’rs of La. State Univ., 591 So.2d 342 (La.1991); Dowdy v. City of Monroe, 46,693 (La.App.2d Cir.11/02/11), 78 So.3d 791. A motion for summary judgment will be granted if the pleadings, depositions, ^answers to interrogatories, and admission on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to summary judgment as a matter of law. La. C.C. P. art. 966(B). A genuine issue of material fact is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. King v. Illinois Nat. Ins. Co., 2008-1491 (La.04/03/09), 9 So.3d 780. After adequate discovery or after a case is set for trial, a motion which shows that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law shall be granted. La. C.C.P. art. 966(C)(1).

If the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. La. C.C.P. art. 966(C)(2).

Timeliness of Motions

First, Odom claims that the trial court erred in not giving her sufficient time for discovery prior to ruling on the defendants’ motions for summary judgment. We disagree. While parties must be given a fair opportunity to conduct discovery and present their claim, there is no absolute right to delay an action on a motion for summary judgment until discovery is completed. 4Crockett v. Therral Story Well Serv., Inc., 45,716 (La.App.2d Cir.01/05/11), 57 So.3d 355, ivrit not cons., 2011-0263 (La.03/25/11), 61 So.3d 650; Justiss Oil Co. v. Monroe Air Center, 45, 356 (La.App.2d Cir.08/11/10), 46 So.3d 725. However, it is within the trial court’s wide discretion to render a summary judgment, if appropriate, or to allow further discovery. Musa v. Litton-Avondale Indus., Inc., 2010-627, (La.App. 5th Cir.03/29/11), 63 So.3d 243, 251, writ denied, 2011-1256 (La.09/23/11), 69 So.3d 1163. The trial court’s decision in this regard should only be reversed upon a showing of an abuse of that discretion. Id.

Initially, we note that Odom never requested additional time for discovery prior to the trial court’s consideration of the defendants’ motions for summary judgment, so we are not compelled to consider her argument on that issue. See, URCA 1-3. However, notwithstanding the rule, even when considering the merits of her argument, we do not find that the trial court was in error. Here, nearly 10 months elapsed between the filing of Odom’s petition and the filing of defendants’ motions for summary judgment. At the initial court hearing on the motions in December 2012, the trial court acknowledged that Odom’s attorney had withdrawn and patiently, albeit reluctantly, gave her an extension of time until January 16, 2013, in order to secure an attorney and file an opposition to the. We recognize that at that December hearing, the trial court painstakingly explained to Odom the importance of filing an opposition to the defendants’ motions and the consequences if she failed to do so.

| sOdom, continuing in a pro se capacity, filed her opposition on January 15 (the day before the reset hearing), which included a sworn opposition memorandum, answers to interrogatories, medical records, various photographs, and an article addressing wheel stops from a website offering “safety engineering services.” Although the trial court could have dismissed Odom’s claims based on the lateness of her opposition, the trial court considered arguments on the merits of the case before granting the motions for summary judgment.

Considering the chain of events in this case, we do not believe the trial court abused its discretion in ultimately granting the defendants’ motions given the timing involved. Odom was given ample opportunity to find a new attorney and conduct adequate discovery, but failed to do so. This assignment of error is without merit.

Opponent’s Burden of Proof on Summary Judgment

In her second assignment of error, Odom argues that the trial court erred in determining she failed to meet her burden of proof necessary to defeat summary judgment. Again, we disagree.

Odom’s claim is governed by La. C.C. art. 2317.1 of the Louisiana Civil Code, which provides, in pertinent part, that:

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.

6Article 2317.1 actions require proof that the thing was in the defendant’s custody, that the thing contained a defect which presented an unreasonable risk of harm to others, that this defective condition caused the damage and that the defendant knew or should have known of the defect. Dowdy, supra, citing, Beckham v. Jungle Gym, L.L.C., 45,325 (La.App.2d Cir.05/19/10), 37 So.3d 564 and Pamplin v. Bossier Parish Community College, 38,533 (La.App.2d Cir.07/14/04), 878 So.2d 889, writ denied, 2004-2310 (La.01/14/05), 889 So.2d 266.

Here, Odom argues that summary judgment was erroneous because a genuine issue of material fact exists as to whether the wheel stop in question was improperly positioned so as to create an unreasonable risk of harm to the individuals parked in the Enterprise parking lot. She points to various facts which she maintains are at issue and make summary judgment for this case improper. However, pursuant to La. C.C.P. art. 967(B), an adverse party may not rest on mere allegations or denials in his pleading in response to a properly made and supported motion for summary judgment, but must come forward, by affidavits or otherwise, with specific facts showing a genuine issue for trial. It is not the burden of the defendants in this case to establish that the placement of the wheel stop was safe; instead, ultimately it is Odom’s burden to prove that the placement of the wheel stop poses an unreasonable risk of harm. As the adverse party to summary judgment, Odom is required to produce factual support establishing that she could satisfy her evidentiary burden of proof at trial. Thus, at the trial court it was incumbent upon Odom to introduce some competent factual support (expert testimony, for example) that the placement of the wheel stop was improper, dangerous, violated a 17building code or otherwise presented an unreasonable risk of harm. In the absence of such support, there is no genuine issue of material fact, making summary judgment appropriate.

Odom points to her “voluminous opposition” to the defendants’ motions for summary judgment, arguing that her opposition was sufficient to create an issue of material fact and overcome the defendants’ motions. Reviewing that late-filed opposition (most of which consisted of her medical records), we note that it included Odom’s affidavit, which merely contained her sworn statement giving her version of the events, and a pxintout from a purported safety expert’s website addressing wheel stop safety. Although Odom did file some opposition to the motions (albeit late), her opposition fell far short of her necessary burden of proof to preclude summary judgment. In order to meet her burden, Odom needed to show some factual support for her contention that the wheel stop presented an unnecessary risk of harm; however, her opposition failed to provide such. She did not produce any testimony, lay or 'expert, that the placement of the wheel stop created a hazardous condition. Moreover, Odom, offered no design standards or studies to support her claim that the placement of the wheel stop created an unreasonable risk of harm. Odom simply did not meet her burden, and without any support that the wheel stop’s placement was improper, summary judgment at this juncture was entirely proper. See Dowdy, supra. So finding, the trial court did not err in granting judgment as a matter of law in favor of the defendants in this matter.

| ^Conclusion

For the foregoing reasons, the summary-judgment in favor of Robert B. Siegel, Trustee, Travelers Property Casualty Company, and EAN Holdings, LLC dismissing the claims of Bertha Odom is affirmed. All costs of this appeal are assessed to Odom.

AFFIRMED.

      . EAN Holdings, LLC was incorrectly named as “Enterprise Leasing Company Southwest’’ in Odom’s petition.


author: CARAWAY, J.

text:
    Connie Carol WARD, Plaintiff-Appellee v. USAGENCIES CASUALTY INSURANCE COMPANY, Defendant-Appellant.
    No. 48,758-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 15, 2014.
    Neal Law Firm by Mark J. Neal, Monroe, LA, Robert L. Seegers, for Appellant.
    Kenneth R. Antee, Jr., for Appellee.
    Before WILLIAMS, CARAWAY and PITMAN, JJ.
   CARAWAY, J.

11 This appeal arises from a dispute concerning the insurer’s refusal to pay collision coverage and liability coverage for property damage caused by the plaintiff insured. The insurer contends that plaintiff failed to renew her automobile insurance policy eight days before her accident. Plaintiff claims that the insurer was negligent in procuring renewal insurance from her and that she was confused concerning a premium payment she had made for her new vehicle recently added to the policy. After a trial in district court, plaintiff was awarded damages in the amount of $27,589 for the loss of her vehicle and $11,000 for liability payments. It is from this judgment that the insurer appeals. For the following reasons, we affirm the trial court’s judgment.

Facts and Procedural Background

On April 18, 2010, Connie Ward (“Ward”) was driving her new Nissan Alti-ma on Interstate 20 when she sideswiped a car parked on the shoulder of the road. After the accident, Ward made a claim on her insurance policy -with USAgencies Casualty Insurance Company (“USAgen-cies”). Ward received a letter, dated April 22, 2010, that informed her that the effective period for her policy was from October 9, 2010, to April 10, 2010. For this reason, the letter stated that USAgencies would not provide coverage for the April 18 accident. According to USAgencies, the reason for the policy ending on April 10, 2010, was that Ward had failed to renew her policy.

This suit centers around the events that transpired when Ward purchased her Nissan Altima in late March of 2010 at the time that her | ¡¿insurance policy approached its renewal date. Ward had purchased a policy of liability insurance from USAgencies on October 9, 2009. The policy #4763929 covered liability only and applied to a 2005 Cadillac and a 2002 Saturn. Ward paid the entire premium for the 6-month policy in October 2009. The price she paid for the liability insurance on both vehicles was $501.

On March 5, 2010, USAgencies sent Ward an “OFFER TO RENEW.” The letter notified Ward that the policy would expire on April 10, 2010, at 12:01 a.m. The letter informed her that the policy would expire unless she were to pay the entire premium of $447 or make an initial payment of $134.19 and finance the remainder of the policy premium allowing her to pay $73.03 per month for five months. The offer stated that she must complete and return an enclosed premium finance agreement with any down payment. It further stated, “If we do not receive the completed Premium Finance Agreement with your down payment, you will be required to pay the entire policy premium immediately or your policy will cancel for nonpayment of premiums.”

Ward took no action regarding the renewal offer. Ward initially denied ever receiving the renewal offer, but when pressed on the issue in her testimony, she admitted that she provided it to her attorney after the accident.

On March 25, 2010, Ward traded in her Cadillac for the Nissan Altima. In order to obtain financing, Ward was required to insure the car with collision and comprehensive coverage prior to leaving the dealership. While at the dealership, Ward placed a call with the 1-800 number |3for USAgencies to insure the new Nissan Alti-ma. Ward obtained insurance over the phone for the Nissan Altima with an unknown insurance agent. In placing the insurance, the agent had made an endorsement on the existing policy to replace the Cadillac with the Nissan Altima. Increased policy coverage was included for comprehensive and collision coverage only for the Nissan Altima.

USAgencies introduced at trial a new, amended declarations page for the policy which reflects that the premium for insurance on the Nissan alone for the full 6-month period beginning October 9, 2009, would have been $1,273. However, the declarations page reflected for the remaining coverage period from March 25 to April 10, a prorated premium of $102 was due. The declarations page also showed that the 2002 Saturn remained covered for liability insurance under the policy. The declarations page stated that the policy changes were processed on March 25, 2010, at 12:03 p.m. Ward paid the prorated premium amount of $102 at that time.

Regarding the conversation with the USAgencies agent, Ward testified that she believed that she was obtaining a new insurance policy on the Nissan Altima, rather than adding it to the existing policy. She testified that she intended to obtain insurance beyond April 10, 2010. However, she also testified that she thought she was getting the same insurance that she had on the Cadillac, which she mistakenly thought was fully covered for liability and comprehensive coverage. She believed that the $102 payment was a monthly payment for the new coverage, and she believed that so long as she continued to make these payments, she would continue to have insurance.

|4Ward asked the USAgencies personnel to fax documentation of the policy to her workplace. She also testified that she might have asked the company to send documentation to the dealer. A USAgen-cies receipt was faxed on March 25, 2010, at 12:07 p.m. to an unknown location from an unknown location. The receipt shows a payment of $102 for policy #4763929 issued to Connie Ward with an expiration date of April 10, 2010. Ward testified that she would have read this receipt. Also faxed to an unknown location from an unknown location on March 25, 2010, at 12:07 p.m., were insurance identification cards, one of which was for the Nissan Altima. The insurance card also states that the policy expires on April 10, 2010. At the time of the accident, Ward did not have this insurance card in her vehicle.

Pegg Shoemaker, a USAgencies underwriting analyst, was the only defense witness testifying at the trial. She stated that when a car is added to an insurance policy, and when greater coverage is added, a premium is due immediately. In Ward’s case, the amount was $92 plus a $10 agency fee for the remainder of her policy period. She testified that the declarations page for the amended policy and the insurance cards would have been sent to Ward. She testified that the same documents would have been sent to the dealer as well so that they would know that the vehicle is insured prior to its leaving the lot. Shoemaker also testified that in Ward’s case, a new policy was not issued. Rather, only an endorsement was made to add the Nissan Altima to the existing policy. When asked whether USAgencies has a general policy of obtaining renewals, she stated that it did. However, she testified that the agent is expected to take payment only for the transaction |Bthat they are doing at the time, which was an endorsement here to add the Nissan to the existing policy. She stated that an endorsement can be done only for the current term of the policy. When asked whether the agent on the phone would have had access to all of Ward’s policy information’ when adding the Nissan Altima to the policy, Shoemaker confirmed that the agent would have that information. She stated that the information regarding the policy’s expiration on April 10, 2010, would be readily available.

Finally, Ward never received an offer to renew the policy after the addition of the coverage for the Nissan Altima. Both Ward and Shoemaker testified that no such renewal offer was ever sent. The renewal offer that Ward received would have pertained to the Cadillac and the Saturn as set forth in the March 5, 2010 notice.

Ward sued USAgencies on February 4, 2011. She sought damages for her total loss of her Nissan Altima and for $11,000 she paid in a settlement to State Farm (the insurer of the vehicle she sideswiped).

After trial, the trial judge awarded damages totaling $38,589. The trial judge found that USAgencies had negligently procured the renewal policy on the Nissan Altima. Due to this negligence, Ward was uninsured and suffered these damages. It is from this judgment that USAgencies appeals.

Discussion

USAgencies argues that our statutory provision for insurance policy renewal governs this dispute. We agree. That provision is La. R.S. 22:1266(E) (hereinafter “the Statute”) which provides, in pertinent part, as follows:

|t,E. (1) No insurer shall fail to renew a policy unless it shall mail or deliver to the named insured, at the address shown in the policy, at least twenty days advance, notice of its intention not to renew. This Subsection shall not apply:
(a) If the insurer has manifested its willingness to renew.
* -!' *
(c) If the insurer or a company within the same group as the insurer has offered to issue a renewal policy to the named insured.

USAgencies asserts its compliance with the obligations of the Statute. Both its willingness to renew Ward’s policy and an offer for a renewal policy were reflected in USAgencies’ March 5, 2010 “OFFER TO RENEW.” That notification also clearly advised Ward that the policy would expire on April 10, 2010.

In Ray v. Associated Indem. Corp., 373 So.2d 166 (La.1979), the Louisiana Supreme Court examined the issue of policy renewal and the insurer’s obligations under the Statute. The insurer had prevailed in the lower courts on summary judgment despite the insured’s claim that she had not received a notice of the required renewal premium before the end of her 6-month policy. The insurer supported its motion for summary judgment with evidence that its notice of renewal premium was mailed to the insured five weeks before the existing policy would end.

Interpreting the Statute, the court in Ray found that the insurer was obligated to renew the policy unless it mailed or delivered timely notice of its intention not to renew. Likewise, in the situation where the insurer is willing to renew, its statutory duty of renewal is relieved if the insurer 17manifests its willingness to renew. Only then may the policy end if the insured does not respond. “This result obtains because the insurance company, by stating its willingness to renew the policy, gives the insured the option of continuing or terminating coverage.” Id. at 168.

The Ray court concluded:

Therefore, because § E applies despite Ms. LaCour’s failure to pay the renewal premium, it is clear that the insurer was required to manifest its intention to renew the policy in order to avoid the operation of § E and the resulting automatic renewal of the policy.

Id. at 169 (emphasis supplied). The court then reversed the summary judgment upon its determination of a material issue of fact surrounding the insured’s receipt of the insurer’s offer to renew the policy.

In light of Ray, this “automatic renewal of the policy” under the Statute could have occurred in this case despite Ward’s failure to pay a renewal premium. USAgen-cies, however, may avoid this result if its March 5, 2010 “OFFER TO RENEW” manifested its willingness to renew by offering Ward terms of the renewal policy. Nevertheless, because of USAgencies’ changes to Ward’s policy after March 5, 2010, we find its March offer for a renewal policy insufficient.

On April 10, 2010, the policy which USA-gencies had offered to renew on March 5, 2010, was not the same policy. By April, Ward’s policy included a different vehicle and additional coverage. The required premium in April for renewal was far different from the $447 offer for renewal in March. The record does not clearly show that by April 10, 2010, Ward had ever been apprised of the exact amount of the renewal premium to extend her insurance an additional 6 months.

IsThe “automatic renewal of the policy” obligation recognized in Ray places upon the insurer the duty of informing the insured either that the policy will not be renewed or that the insurer is willing to renew upon the insured’s renewal payment. Ward’s confusion over her $102 payment to USAgencies for coverage on her new vehicle could not be clarified by her reference to the earlier March 5 notice of renewal. The purpose of that notice as required by the Statute was defeated by USAgencies’ allowance of the new coverage on the new vehicle. The new amended policy would automatically renew on April 10 unless a clarified offer for a renewal policy on the Nissan was given to Ward. Because no such notice was given, the policy remained in effect after April 10 and provided Ward coverage for her April 18 accident. Accordingly, the trial court’s judgment is affirmed.

Conclusion

For the foregoing reasons, the ruling the trial court is affirmed. Costs of these proceedings are assessed to appellant.

AFFIRMED.

      . In 1979, the Statute was enumerated in the revised statutes as La. R.S. 22:636.1(E). The language reviewed in Ray was the same as the present La. R.S. 22:1266(E)(1)(a). La. R.S. 22:1266(E)(1)(c) was added to the Statute in 1995.


author: DREW, J.

text:
    STATE of Louisiana, Appellee v. Russell JONES, Appellant.
    No. 48,774-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 15, 2014.
    Louisiana Appellate Project by Carey J. Ellis, III, for Appellant.

      John Schuyler Marvin, District Attorney, John M. Lawrence, Marcus Ray Patil-lo, Assistant District Attorneys, for Appel-lee.
    Before WILLIAMS, DREW and LOLLEY, JJ.
   DREW, J.

| ¶ Russell Jones was charged with distribution of Schedule I narcotics, a violation of La. R.S. 40:966 which allegedly occurred on February 28, 2012. He first pled not guilty, but on a later date pled guilty in exchange for a 15-year sentencing cap and the state’s agreement not to prosecute him as an habitual offender. The court that same day sentenced Jones to serve 14 years at hard labor. Jones untimely filed a motion to reconsider sentence, which was denied by the trial court. He appeals the excessiveness of his sentence.

FACTS

The district attorney recited an adequate factual recitation at the guilty plea.

The trial court also made a diligent effort to determine defendant’s competence, literacy, and understanding. Its colloquy with the defendant was thorough and in full accordance with Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

|sThe defendant’s brief motion to reconsider sentence requested that the court “review the sentence and reduce and/or suspend a portion of the sentence.” At the hearing on the motion, the trial court explained its reasons for not granting relief.

|4The defendant now appeals his sentence on grounds of excessiveness.

DISCUSSION

1 sMr. Jones mistakenly asserts that he is entitled to seek appellate review of his sentence imposed pursuant to a guilty plea that included a sentence cap, and he further asserts that his sentence of 14 years is excessive and was not justified by the various factors in La. C. Cr. P. art. 894.1.

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. This rule is applicable to sentences imposed under an agreed sentencing cap as well as sentences for an agreed-upon term of years. State v. Young, 96-0195 (La.10/15/96), 680 So.2d 1171; State v. Burford, 39,801 (La.App.2d Cir.6/29/05), 907 So.2d 873.

This record reveals that the defendant agreed not only to the sentence cap, but indeed knew that his sentence would be 14 years. As noted, his counsel commenced the plea by informing the trial judge: ‘Tour Honor, if the Court is still agreeable to the 14 years, then Mr. Jones would like to accept that.” That agreement is further evidenced by the defendant’s decision to waive the statutory delay for imposition of sentence and be sentenced, based upon off-the-record discussions about the defendant’s criminal record, on the day he pled guilty.

In brief, the defendant cites cases where defendants have been afforded appellate review of their sentences despite sentencing agreements. In State v. Foster, 42,212 (La.App.2d Cir.8/15/07), 962 So.2d 1214, this court reviewed the merits of an excessive sentence claim on appeal where the defendant pled guilty with the understanding that his guilty plea waived his right to appeal “except as to the amount of the sentence.”

1 r,During the plea in this case, the defendant was made aware that he was waiving his right to appeal by pleading guilty.

Nevertheless, this court has afforded defendants review of their sentences in cases where the issue is close.

Considering the merits of the defendant’s excessive sentence argument, the reasons for the procedural bar to appellate review of agreed-upon sentences become evident. The defendant knew exactly what his sentence was going to be. Where a sentence has been agreed to as a consequence of a plea bargain and the sentence imposed is as agreed, there is no need for the trial court to give reasons for the sentence as required by La. C. Cr. P. art. 894.1. State v. Burford, supra. The trial court noted that the defendant is apparently a seventh-felony offender. The defendant was wise to take the deal he was offered. This record discloses no abuse of the trial court’s discretion.

ERROR PATENT

The trial court’s advice about the time limit for post-conviction relief was not strictly correct, so we clarify that information in this opinion.

IvDECREE

The defendant’s conviction and sentence are AFFIRMED.

      . "Your Honor, if this matter were to go to trial, the State would present evidence, both audio and video, which would prove that Russell Jones, on or about the 28th day of February 2012, did knowingly and intentionally distribute a Schedule 1 controlled dangerous substance, namely, marijuana, to a confidential informant, while located here in Webster Parish on Milton Drive, which is in the City of Minden. We would present evidence which would show that at approximately 10:50 a.m., Mr. Jones came in contact with the confidential informant and did exchange with the confidential informant four bags of suspected marijuana for $40 from the confidential informant. The substance that the confidential informant received was sent to the North Louisiana Criminalistic Laboratory and in fact determined to be Schedule I, marijuana."

      . This exchange occurred between the defendant, his lawyer, and the court:
      Ms. Giddens: Your Honor, if the Court is still agreeable to the 14 years, then Mr. Jones would like to accept that.
      Court: Well, I think that's an excellent decision, Mr. Jones.
      * * * *
      Court: Okay. You’re satisfied, you discussed this matter with [your attorney] and you're satisfied?
      Defendant: Yes, sir.
      Court: Okay. She's informed you of the minimum and the maximum penalties in this matter?
      Defendant: Yes, sir.
      Court: Which, in this case, although the minimum and maximum penalties by statute, there’s agreement that a cap of 15 years is in place. Are you aware of that?
      Defendant: Yes, sir.
      Court: So, in your case, although the statute has a maximum, it’s different because of the cap by amendment.
      Defendant: Yes, sir.
      Court: Do you understand that?
      Defendant: Yes, sir.
      # * * *
      Court: Okay. You also understand that if you’re convicted at trial, you have the right to appeal?
      Defendant: Yes, sir.
      Court: Okay. Do you understand that by entering this plea of guilty today that you will be waiving or giving up those rights?
      Defendant: Yes, sir.
      Court: No trial?
      Defendant: Yes, sir.
      Court: You understand that?
      Defendant: Yes, sir.
      Court: Okay. You understand that the sentence in this matter is up to me, with the exception of the cap?
      Defendant: Yes, sir.
      * * * *
      Court: All right. I accept your plea of guilty. Now you have obviously in a case of a matter as serious of this you have delays in sentencing. I’m going to ask you today and we've discussed this matter at the bench between your counsel, [the prosecutor] and myself, where you might wish to waive those delays. I’ll defer to your counsel.

        Ms. Giddens: Yes, Your Honor, he does wish to waive delays.
      Court: He wishes to waive delays and be sentenced today?
      Ms. Giddens: Yes, Your Honor.
      Court: Okay. I’m ready to sentence you today. Based on what the district attorney's office has informed me concerning your record,.—
      Defendant: Yes, sir.
      Court: — which is significant—
      Defendant: Yes, sir.
      Court: — a significant criminal history which was I think corroborated by your counsel based on the statements that you made to her. So I think all of us in court agree that you have an extensive past with the court.
      Defendant: Yes, sir.
      Court: So we all understand each other.
      Defendant: Yes, sir.
      Court: Based on that information that I received, at this time I'm going to sentence you to serve 14 years hard labor. You have thirty days to appeal this matter and two years from today’s date to file for post-conviction relief.... You understand that?
      Defendant: Yes, sir.

      . Court: Mr. Jones, I remember your case. You appeared before me and entered a plea, if I’m not mistaken, and you had a cap of 15 years, is that correct?
      Defendant: Yes, sir.
      Court: And he had some discussion with your counsel, which I believe at that time was Mrs. Giddens,—
      Defendant: Yes, sir.
      Court: — wherein you agreed to or because of some consideration we had for some stuff you were sentenced to 14 years, which was not the cap but obviously a pretty significant sentence. She has filed a motion to reconsider in this matter on your behalf. Counsel, could y'all approach the bench real quick. Mr. Jones, could you step back.
      * * * *
      Court: .... The reason that we went through sentence of 14 is because you have a significant history with the court. Are you aware of that? And I believe on that date you acknowledged that your record was significant. Is that correct?
      Defendant: Yes, sir.
      Court: All right. And, specifically, in that your record has one, two, three, four, five, six, now seven felony charges and at least three misdemeanor charges. Of the felony charges, the court considers them all to be very significant in nature, not that any felony charge is not, but significant in nature. And they run, obviously, all the way from simple burglary charge, possession of a firearm by a convicted felon. Would note that numerous of these charges are drug-related. So we've had a history of this in your past. Do you understand?
      Defendant: Yes, sir. I did my time for that.
      Court: I understand. I understand. And I’m not saying anything about it. What I’m trying to do is tell you that the reason that the Court went through and what it based your sentence on originally is the fact that you developed quite a history with the court. Obviously and you understand that somebody that has no history certainly is in a better position than someone who has a history of seven to ten charges, especially when they're all somehow appear to be drug-related and your new charge of a significant nature is also drug-related. You understand what I'm saying?
      Defendant: Yeah. Yes, sir.
      Court: So — and because — and I think your counsel filed a motion to reconsider the sentence because maybe that was not explained to either her or you to satisfaction. But the reason the court imposed a 14-year penalty is because of your record and the extensive history you’ve had with the court, including some, if not all the charges that I discussed and would note that several of those charges all dealt with extended prison sentences. So, you know, obviously you have done time before on numerous charges and I would note that some of these sentences are as long as four years. You have two that look to be as short as two years. For that reason, I believe that the 14-year sentence that you were originally ordered to serve was appropriate and for that reason and placing now on the record specifically what we talked with counsel about at the bench last time, I would note that your motion to reconsider your sentence in this matter is denied and the 14-year sentence will remain in effect. You were advised at the original 14-year sentence, Mr. Jones, your time to appeal and your time to file post-conviction relief. I think with the denial of the motion that I do not have to advise you of that again. But out of an abundance of caution, I will tell you that you do have thirty days to file for an appeal in this matter and two years to file for post-conviction relief from the date of your sentencing[J

      . See State v. Smith, 47,800 (La.App.2d Cir.2/27/13), 110 So.3d 628, where this court reviewed a sentence imposed in conformity with a cap where the trial judge told the defendant, "Do you also — and also understand that since you’re entering into a sentence with a plea with a cap you won’t be allowed or may not be allowed to appeal or seek review of the length or severity of that sentence?” The court found the conditional "may” significant and decided not to apply the bar to review. This is essentially a practical remedy confected by appellate courts to avoid the potentially extended proceedings involved in a remand for a determination of trial counsel’s effectiveness at sentencing, a determination that must normally be done while the case is on direct appeal because ordinary sentencing errors (i.e., errors that do not involve an illegal sentence) are not cognizable on post-conviction relief.

      . The law regarding appellate review of sentences for excessiveness is well settled. See, e.g., State v. Shipp, 46,715 (La.App.2d Cir.11/2/11), 78 So.3d 805.

      . The Louisiana Supreme Court has held that La. C. Cr. P. art. 930.8(C), which requires the trial court to inform a defendant of the limitations period for filing an application for post-conviction relief, is supplicatory language which does not bestow an enforceable right on an individual defendant. State v. Brumfield, 2009-1084 (La.9/2/09), 16 So.3d 1161; State v. Hunter, 36,692 (La.App.2d Cir.12/20/02), 834 So.2d 6. The trial court should have advised defendant, and we now advise him by this opinion, that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La. C. Cr. P. arts. 914 or 922. See State v. Pugh, 40,159 (La.App.2d Cir.9/21/05), 911 So.2d 898.
      Also, La. R.S. 40:966(B)(3), the sentence for distribution of marijuana requires the imposition of a fine of "not more than" $50,000; in this case, the trial court imposed no fine. When a trial court does not impose a fine in a situation where the statute authorizes a fine of “not more than” an amount, it impliedly imposes a fine of $0 and is not an error patent. State v. Turner, 46,683 (La.App.2d Cir.12/14/11), 82 So.3d 449, writ denied, 2012-0165 (La.6/22/12), 91 So.3d,965.