author: MARC E. JOHNSON, Judge. WICKER, J., CHAISSON, J.,

text:
    FIRST BANK AND TRUST v. PROCTOR’S COVE II, LLC, Milton Gagnon and Michael J. Thompson.
    No. 13-CA-802.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 24, 2014.
    Mark C. Landry, Attorney at Law, Me-tairie, Louisiana, for Plaintiff/Appellee.

      Stephen M. Smith, Attorney at Law, New Orleans, Louisiana, for Defendants/Appellants.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, MARC E. JOHNSON and ROBERT A. CHAISSON.
   MARC E. JOHNSON, Judge.

| gDefendants/Appellants, Proctor’s Cove II, L.L.C. (hereinafter referred to as “Proctor’s Cove”), Michael Thompson, and Milton Gagnon, appeal the March 13, 2013 and May 3, 2013 summary judgments regarding a promissory note on a condominium development in favor of Plain tiff/Ap-pellee, First Bank and Trust (hereinafter referred to as “First Bank”), filed in the 24th Judicial District Court, Division “K”. For the following reasons, we reverse the summary judgments and remand the matters to the trial court for further proceedings.

FACTS AND PROCEDURAL HISTORY

This is the second appeal for this matter. The pertinent facts of the lengthy history of this case are recited as follows:

On July 27, 2004, Proctor’s Cove executed a promissory note with First Bank in the principal amount of $550,000.00. The promissoiy note was secured by a mortgage on property owned by Proctor’s Cove located in St. Bernard Parish. Milton Gagnon and Michael Thompson each executed a written guaranty of the debts of Proctor’s Cove.

On February 9, 2007, First Bank filed its Petition against Proctor’s Cove, laMilton Gagnon and Michael Thompson, alleging they defaulted on the promissory note and owed a principal sum of $298,340.45 plus interest, attorney’s fees and costs. First Bank amended its Petition- on September 8, 2008, alleging the principal sum owed was $70, 706.10 plus interest, attorney’s fees and costs.

Defendants filed an Answer on September 22, 2008. They subsequently filed an Amended Answer and a Reconventional Demand against First Bank and its President, Joseph Cannizzarro, on January 13, 2009, alleging they breached a settlement agreement between the parties by failing to extinguish the promissory note after it had been satisfied and by further claiming a balance was still owed. Defendants alleged Mr. Cannizzarro renegotiated the terms of the promissory note and set performance obligations for them to meet in order to have the debt of the promissory note satisfied. An affidavit of Brian Berns, First Bank’s Vice President, stating he had knowledge of the settlement agreement between the parties and Defendants had fulfilled their obligations on the note per the agreement, was attached as an exhibit to the reconventional demand. Within that same pleading, Defendants also raised peremptory exceptions of.no cause of action and no right of action. First Bank and Mr. Cannizzarro filed their own Exception of No Cause of Action and/or No Right of Action on March 9, 2009.

On March 18, 2009, Jennifer Thompson, Mr. Thompson’s daughter, intervened in the matter. In her petition, Ms. Thompson alleged First Bank failed to properly apply payments and payoff amounts on her accounts and failed to properly report payments and a paid in full status to the credit reporting agencies for several years after the account was paid in full. On April 22, 2009, First Bank filed an Exception of No Cause of Action and/or No Right of Action against Ms. Thompson, which included a dilatory exception of improper cumulation of actions. A hearing on the exceptions was held on May 26, 2009. '

|4In a judgment rendered on June 2, 2009, the trial court maintained First Bank and Mr. Cannizzarro’s exception of no cause of action against Defendants and dismissed the reconventional demand with prejudice. The trial court then allowed Defendants 30 days to re-file their recon-ventional demand with a stated cause of action. On June 18, 2009, Defendants filed an Amended Reconventional Demand. The amended demand added Mr. Berns as a defendant to the lawsuit.

In a judgment rendered on June 23, 2009, the trial court maintained the dilatory exception of improper cumulation filed by First Bank against Ms. Thompson. The intervention was dismissed without prejudice.

On August 3, 2009, First Bank, Mr. Can-nizzarro and Mr. Berns, the defendants-in-reconvention, filed an Exception of No Cause of Action and/or No Right of Action, alleging the amended reconventional demand did not state a cause of action. A hearing on the exceptions was held on October 2, 2009. In a judgment rendered on October 22, 2009, the trial court maintained the exceptions and dismissed Defendants’ reconventional demand with prejudice. Defendants appealed that ruling. In First Bank and Trust v. Proctor’s Cove II, LLC, 10-1 (La.App. 5 Cir. 3/16/10); 37 So.3d 1019, writ denied, 10-0860 (La.6/18/10); 38 So.3d 328, this Court dismissed Defendants’ appeal with prejudice and remanded the matter to the trial court, holding the judgment was not a final, appealable judgment.

On January 5, 2011, First Bank filed a Motion for Summary Judgment against Milton Gagnon. In response, Milton Gag-non filed a Motion for 863 Sanctions against First Bank. After a hearing, the trial court denied the motions of both First Bank and Milton Gagnon on March 1, 2011.

First Bank filed a Motion to Prohibit Preparation or Filing of Pleadings by | fiNon-Attorney on November 4, 2011. In the motion, First Bank alleged Keith Gag-non was a non-attorney filing pleadings on behalf of Proctor’s Cove and was in violation of La. R.S. 37:213. On December 13, 2011, Proctor’s Cove, through Keith Gag-non, filed a Motion to Compel Court to Comply with the Model Code of Judicial Conduct or Motion to Recuse the Trial Judge. The motion alleged the trial judge failed to apply express mandates of law, resulting in a. material prejudice against it. Proctor’s Cove also filed a Motion to Stay Proceedings pending the resolution of the motion to recuse on December 13, 2011. In a Sua Sponte Motion for Contempt and Rule to Show Cause issued on December 19, 2011, the trial court struck all of the pleadings that were filed by Keith Gagnon on December 13, 2011 and advised Proctor’s Cove to retain counsel to file the appropriate pleadings. The trial court rendered a judgment on January 11, 2012, granting First Bank’s motion to quash subpoena duces tecum and the motion prohibiting the preparation of filing of pleadings by a non-attorney on behalf of Proctor’s Cove.

On August 16, 2012, First Bank filed a second Motion for Summary Judgment against Milton Gagnon, asserting that he was liable for the debt owed for the promissory note, and he had no basis to claim there was a misapplication of funds because he was not a member of Proctor’s Cove and had no decision making power. Milton Gagnon filed a Motion for Continu-anee. First Bank also filed a Motion for Summary Judgment against Proctor’s Cove and Mr. Thompson on January 24, 2013, asserting they could not establish at trial that a written agreement in their favor existed, which was necessary to prove their defense. None of the defendants filed an opposition memorandum to First Bank’s motions for summary judgment. On February 18, 2013, Milton Gag-non filed a Motion for Continuance of the summary judgment hearing.

The motions were heard on February 20, 2013. In a judgment rendered on 1 (¡March 13, 2013, the trial court reset the summary judgment hearing for Proctor’s Cove due to service issues, denied Milton Gagnon’s motion to continue, and granted summary judgment against Mr. Thompson and Milton Gagnon. The trial court awarded First Bank $70,706.10, plus interest accrued through August 27, 2008, plus interest from August 28, 2008, until paid at the rate of 21% per annum, late charges in the amount of $4,417.17, attorney’s fees and costs. Mr. Thompson and Milton Gagnon were found to be liable in solido to First Bank. Mr. Thompson and Milton Gagnon filed a Motion for Reconsideration and/or Motion for New Trial that incorporated a motion for sanctions pursuant to La. C.C.P. art. 863 on March 26, 2013.

Hearings on Mr. Thompson and Milton Gagnon’s motions and First Bank’s reset Motion for Summary Judgment against Proctor’s Cove were held on May 3, 2013. In a ruling rendered on the same date, the trial court denied the motions of Mr. Thompson and Milton Gagnon. The trial court granted summary judgment against Proctor’s Cove in the amount of $70,706.10 plus interest accrued through August 27, 2008, in the amount of $105,826.99, plus interest accrued from August 28, 2008, late charges in the amount of $4,417.17, attorney’s fees and costs. Proctor’s Cove was found to be liable in solido with Mr. Thompson and Milton Gagnon. Defendants filed a notice of appeal, appealing the February 20, 2013 and May 3, 2013 judgments. The order granting the appeal was rendered on June 30, 2013. The instant appeal followed.

ASSIGNMENTS OF ERROR

On appeal, Defendants raise the following assignments of error: 1) the trial court erred in failing to apply the law, which included mandated standards of review throughout the proceeding; 2) the trial court was manifestly erroneous by disregarding the recusal motion and remaining on the bench after said motion was 17filed; 3) the trial court erred in failing to apply the statutory standard of review for a summary judgment hearing; 4) the trial court erred by failing to grant the Motion for New Trial; and 5) the trial court erred in assigning inaccurate property values in its judgment.

LAW AND ANALYSIS

Assignments of Errors One and Two

Defendants allege the trial court committed manifest error in failing to comply with the mandated recusal procedures and in striking Proctor’s Cove’s Motion to Recuse from the record. Defendants contend Proctor’s Cove had the legislative and jurisprudential authorization to appear and represent itself through Keith Gagnon. Defendants aver that the trial court’s striking of the Motion to Recuse without a hearing deprived Proctor’s Cove of due process and its legal right to self-representation. Defendants further aver that the trial court’s willful misconduct was an improper practice. As such, Defendants contend that all judgments subsequent to the filing of the recusal motion, including the summary judgment, were rendered in violation of the law and are absolutely nullities.

First Bank argues the trial court was proper in striking Proctor’s Cove’s Motion to Recuse because it was never a proper motion. First Bank contends that as the motion was not filed by a licensed attorney, the trial judge was absolutely correct in striking the pleading.

La. R.S. 37:213(A) provides:
No natural person, who has not first been duly and regularly licensed and admitted to practice law by the supreme court of this state, no corporation or voluntary association except a professional law corporation organized pursuant to Chapter 8 of Title 12 of the Revised Statutes, and no partnership or limited liability company except one formed for the practice of law and composed of such natural person, corporations, voluntary associations, or limited liability companies, all of whom are duly and regularly licensed and admitted to the practice of law, shall:
|s(l) Practice law.
(2) Furnish attorneys or counsel or an attorney and counsel to render legal services.
(3) Hold himself or itself out to the public as being entitled to practice law.
(4) Render or furnish legal services or advice.
(5) Assume to be an attorney at law or counselor at law.
(6) Assume, use, or advertise the title of lawyer, attorney, counselor, advocate or equivalent terms in any language, or any phrase containing any of these titles in such manner as to convey the impression that he is a practitioner of law.
(7) In any manner advertise that he, either alone or together with any other person has, owns, conducts, or maintains an office of any kind for the practice of law.

In this matter, Proctor’s Cove was not represented by an attorney at the time its Motion to Compel Court to Comply with the Model Code of Judicial Conduct or Motion to Recuse the Trial Judge was filed. The motion was filed through Keith Gagnon, a person who has not been licensed to practice law in this state. The trial court struck all of the pleadings filed by Keith Gagnon. Because Keith Gagnon was not licensed to practice law and violated the provisions of La. R.S. 37:213, we find the trial court was correct in striking the motion to recuse filed through him on behalf of Proctor’s Cove. As a result, we also find that the judgments rendered by the trial court subsequent to the striking of the recusal motion are not absolute nullities.

Assignments of Error Three, Four and Five

Defendants allege the trial court erred in granting the summary judgment because there is, at least, one genuine issue of material fact remaining in dispute, and the trial court impermissibly weighed and/or made credibility determinations in violation of summary judgment law. Defendants claim that the validity of the alleged debt is a remaining genuine issue of material fact because the debt presented to the trial court is not valid. Defendants argue that more money was paid by Michael Thompson to First Bank than what was actually due on the 1promissory note. Defendants maintain that the payments were misappropriated and/or misapplied by First Bank to the loan of Jennifer Thompson, which caused a remaining balance to be reflected. Defendants also maintain that a genuine issue of material was created as to the existence of a settlement agreement between the parties through Mr. Berns’ affidavit and First Bank’s internal memoranda between Mr. Cannizzarro and Mr. Berns, which were attached to their reconventional demand. Additionally, Defendants allege the trial court erred in denying Mr. Thompson and Milton Gagnon’s motion for new trial/reconsideration.

First Bank argues Defendants failed to show that they would meet their burden of proving a compromise occurred between the parties at trial. First Bank avers that the affidavit of Mr. Berns stating that Mr. Thompson, as sole member and manager of Proctor’s Cove, instructed First Bank to pay his daughter’s loan and personal debt owed to First Bank with proceeds from Proctor’s Cove was not controverted by Defendants with proper summary judgment evidence. As a result, First Bank contends that it was entitled to summary judgment as a matter of law because the trial court was never called upon to weigh evidence or make credibility determinations.

Denial of a motion for new trial is an interlocutory and non-appealable judgment. Smith v. Smith, 08-575 (La.App. 5 Cir. 1/12/10); 31 So.3d 453; Roger v. Roger, 99-765 (La.App. 5 Cir. 1/12/00); 751 So.2d 354, 356. However, the Louisiana Supreme Court has instructed the courts of appeal to consider an appeal of the denial of a motion for new trial as an appeal of the judgment on the merits, when it is clear from the appellant’s brief that the intent is to appeal the merits of the case. Id.; See, Punctual Abstract Co., Inc. v. U.S. Land Title, 09-91 (La.App. 5 Cir. 11/10/09); 28 So.3d 459. It is obvious from Defendants’ brief that they intended to appeal the merits of the summary judgments rendered on March 13, |102013 and May 3, 2013.

Appellate courts review summary judgments de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, asking whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Glass v. Home Depot U.S.A, Inc., 10-53 (La.App. 5 Cir. 9/28/10); 50 So.3d 832, 834. A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. Id. A genuine issue 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. Id. When ruling on a motion for summary judgment, a

judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.

La. C.C.P. art. 966(B)(2).

“Only evidence admitted for purposes of the motion for summary judgment shall be considered by the court in its ruling on the motion.” La. C.C.P. art. 966(E)(2). The mover of the motion has the burden of proving that summary judgment is appropriate. La. C.C.P. art. 966(C)(2).

In the matter at bar, First Bank filed its Motion for Summary Judgment, alleging Defendants defaulted on payments for their promissory note. In support of its position, First Bank attached an affidavit of Mr. Berns, the deposition of Milton Gagnon, a copy of the commercial guaranty, memoranda between Mr. Can-nizzarro and Mr. Berns discussing the loan, and email exchanges between Mr. Berns and Mr. Thompson to its motions. However, a review of the transcripts of luthe motion hearings reveal that First Bank failed to introduce any of the documentation attached to its motions. At the time of the motion hearings, La. C.C.P. art. 966 required that only evidence formally introduced and admitted into evidence at the hearings on the summary judgments could be considered by the court. See, Cook v. Asbestos Corp., Ltd., 13-9 (La.App. 5 Cir. 5/23/13); 123 So.3d 731, 732, affirmed on rehearing, (La.App. 5 Cir. 8/27/13). Evidence, although attached to the motion or filed into the record, could not be considered by the court unless properly admitted at the hearing. Id. Consequently, First Bank failed to have any documentation admitted for the purposes of summary judgment. Thus, without having any evidence to consider for summary judgment purposes, we cannot find that First Bank met its burden of proving there are no genuine issues of material fact as to whether Defendants defaulted on the promissory note and owe an outstanding balance.

Therefore, upon de novo review of the motions filed by First Bank, we find that summary judgments against Defendants are improper. Accordingly, we reverse the trial court’s summary judgments and remand the matter to the trial court for further proceedings. As a result of the reversals, we pretermit review of Defendants’ assignment of error number six and First Bank’s Answer.

DECREE

For the foregoing reasons, we affirm the trial court’s striking of the Motion to Re-cuse. Additionally, we reverse the summary judgments rendered in favor of First Bank and Trust and against Milton Gag-non, Michael Thompson and Proctor’s Cove, II, L.L.C., and remand the matter for further proceedings.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

WICKER, J., concurs with reasons.

CHAISSON, J., concurs with reasons.

WICKER, J.,

concurs with reasons.

|, While I agree with the majority opinion in this case, I write separately to further elucidate upon two issues presented in this appeal.

First, concerning whether the trial court properly struck the pleadings filed by Keith Paul Gagnon on behalf of Proctor’s Cove, I agree with the majority opinion that the trial court did not err in doing so but write further to explain my interpretation of the poorly constructed applicable statute.

La. R.S. 37:213(A) provides:
A. No natural person, who has not first been duly and regularly licensed and admitted to practice law by the supreme court of this state, no corporation or voluntary association except a professional law corporation organized pursuant to Chapter 8 of Title 12 of the Revised Statutes, and no partnership or limited liability company except one formed for the practice of law and composed of such natural persons, corporations, voluntary associations, or limited liability companies, all of whom are duly and regularly licensed and admitted to the practice of law, shall:
(1) Practice law.
The definition of “practice law” is provided in La. R.S. 37:212. Subsection (C) to La. R.S. 37:212 provides an exception to the general [ 2restriction provided in La. R.S. 37:212, prohibiting the practice of law by individuals not licensed to do so. La. R.S. 37:212(C) provides:
C. Nothing in this Section shall prohibit any partnership, corporation, or other legal entity from asserting or defending any claim, not exceeding five thousand dollars, on its own behalf in the courts of limited jurisdiction or on its own behalf through a duly authorized partner, shareholder, officer, employee, or duly authorized agent or representative. No partnership, corporation, or other entity may assert any claim on behalf of another entity or any claim assigned to it.

Preliminarily, the exception provided in La. R.S. 37:212(C) is poorly written, causes confusion, and is subject to different interpretations. However, I interpret the provision to permit an LLC member to represent the entity’s interest when the object of the litigation at issue does not exceed $5,000.00. A review of the enactment and amendments to La. R.S. 37:212(C) supports this interpretation.

Subsection (C) was added in 1980 by Act No. 161, which provides that the enactment of Subsection (C) is to “authorize partnerships, corporations, and other legal entities to assert certain claims or enter certain defenses in courts of limited jurisdiction .... ” The language of Subsection (C), as added in 1980, permitted a legal entity to assert “any claim not exceeding twelve hundred dollars or defense pertaining to an open account or promissory note on its own ^behalf in the courts of limited jurisdiction.... ” In 1985, the statute was amended by Act No. 783, “to increase the amount of any claim ... which any partnership, corporation, or other legal entity may assert on its own behalf....” The 1985 amended language to Subsection (C) contained similar language to the pre-1985 version of the statute but raised the amount in dispute to provide that the legal entity could then assert “any claim, not exceeding two thousand dollars.... ”

The statute was again amended in 1992, by Act No. 673, to “raise the amount in dispute below which a partnership, corporation, or legal entity may assert claims in court through an authorized representative .... ” The 1992 revised version of Subsection (C) again increased the amount to five-thousand dollars. The 1992 version read as follows:

C. • Nothing in this Section shall prohibit any partnership, corporation, or other legal entity from asserting any claim, not exceeding five thousand dollars, or defense pertaining to an open account or promissory note, or suit for eviction of tenants on its own behalf in the courts of limited jurisdiction on its own behalf through a duly authorized partner, shareholder, officer, employee, or duly authorized agent or representative. No partnership, corporation, or other entity may assert any claim on behalf of another entity or any claim assigned to it.

La. R.S. 37:212(C).

Arguably, one could interpret the above version of La. R.S. 37:212(0 to limit any claim asserted by the legal entity to five thousand dollars; however; as to any “defense pertaining to an open account or promissory note, or suit for eviction of tenants[,]” the 1992 version could be read to place nó limit on the amount at issue, with the exception that the litigation must be filed in a court of limited jurisdiction.

La. R.S. 37:212(C) was again amended in 2010, to delete the “defense pertaining to an open account” language and to add an “or” following “courts of limited jurisdiction[.]” The changes are reflected as follows:

| Nothing in this Section shall prohibit any partnership, corporation, or other legal entity from asserting or defending any claim, not exceeding five thousand dollars, on its own behalf in the courts of limited jurisdiction or on its own behalf through a duly authorized partner, shareholder, officer, employee, or duly authorized agent or representative. No partnership, corporation, or other entity may assert any claim on behalf of another entity or any claim assigned to it.

I interpret the above amendment to provide that a legal entity may assert or defend any claim — not exceeding five thousand dollars — on its own behalf. The entity may assert or defend a claim on its on behalf in a court of limited jurisdiction or in any court through a duly authorized representative. The legislature, in the 2010 amended version — in effect at the time the trial court ruled on First Bank’s Motion to Disqualify Keith Paul Gagnon— placed the language “asserting or defending any claim” before the language imposing the “five thousand dollar” limitation to the amount in controversy. I interpret the amended language to impose a five thousand dollar limitation to any claim or defense asserted by a legal entity on its own behalf, whether filed in a court of limited jurisdiction or in any other court. Therefore, it is my opinion that in order for the exception provided in La. R.S. 37:212(0 to apply — allowing a legal entity to assert or defend a claim' on its own behalf — the amount in controversy subject to the litiga-' tion may not exceed five thousand dollars.

Because the amount in controversy in this litigation clearly exceeds five thousand dollars, it is my opinion that Keith Paul Gagnon, as a member of Proctor’s Cove, is not permitted to defend the LLC under the exception provided in La. R.S. 37:212(C). Accordingly, I agree with the majority opinion that the trial judge did not err in striking pleadings filed by Keith Paul Gagnon on behalf of Proctor’s Cove.

| r,Second, I write, to elucidate upon the confusion and inconsistency which has arisen in this and other circuits regarding the retroactive effect of the many recent amendments to La. C.C.P. art. 966. For the reasons provided herein, I agree with the majority opinion that the version of La. C.C.P. art. 966 in effect at the time of the summary judgment hearings in this case should apply. Therefore, because the version of La. C.C.P. art. 966 in effect at the time of the hearings in this matter required that parties formally offer and introduce evidence in support of their motions for summary judgment — and because First Bank failed to do so — I agree that the summary judgments must be reversed and the matter remanded to the trial court for further proceedings.

At the time of the hearings on First Bank’s motions for summary judgment in this case, La. C.C.P. art. 966 provided that “[o]nly evidence admitted for purposes of the motion for summary judgment shall be considered by the court in its ruling on the motion.” Therefore, at the time of the hearings in this case, parties were required to formally introduce evidence into the record to support their motions for summary judgment. However, La. C.C.P. art. 966 was amended in 2013 by Act. No. 391, which added the following language:

Evidence cited in and attached to the motion for summary judgment memo- > randum filed by an adverse party' is deemed admitted for purposes of the motion for summary judgment unless excluded in response to an objection made in accordance with Subparagraph (3) of this Paragraph. Only evidence admitted for purposes of the motion for summary judgment may be considered by the court in its ruling on the motion.
La. C.C.P. art. 966(F)(2).(emphasis added)

Although La. C.C.P. art. 966 is a procedural article contained in the Louisiana Code of Civil Procedure, amendments to the articles therein may | f,be substantive or procedural. It is my opinion that the 2013 amendment to La. C.C.P. art. 966 is a substantive amendment that cannot be retroactively applied. The 2013 amendment, which provides that evidence submitted for purposes of the motion for summary judgment is “deemed admitted[,]” relieves parties of the obligation to formally offer and introduce such evidence — as required under the prior version of the statute — as well as imposes an obligation upon parties — not required under the prior version of the statute — that any objection to the evidence submitted must be made in writing.

A review of the jurisprudence reveals that this Circuit has issued conflicting decisions concerning the retroactivity of the 2013 amendment to La. C.C.P. art. 966. In Midland Funding, LLC v. Urrutia, 13-459 (La.App. 5 Cir. 12/19/13), 131 So.3d 474, 476, this Court found that the 2013 amendment was procedural in nature and, thus, applied retroactively. This Court stated:

This amendment to Article 966 is procedural and therefore applies retroactively. La. C.C. art. 6. Accordingly, this Court declines to vacate the judgment and remand for a new hearing on the grounds that Midland’s evidence was not formally admitted at the [October 31, 2012] hearing, because after August 1, 2013, there is no longer a requirement to formally admit the evidence at the hearing.

^Accordingly, in Midland, this Court applied the 2013 amendment retroactively on appeal to the summary judgment hearing that took place prior to the 2013 amendment. See also Stipp v. Metlife Auto & Home Ins. Agency, Inc., 13-507 (La.App. 5 Cir. 12/19/13), 131 So.3d 455, 459 (wherein this Court again retroactively applied the 2013 amendment, stating, “La. C.C.P. art. 966 was amended effective August 1, 2013 to remove the requirement of formal introduction of evidence at the hearing on the motion for summary judgment. ... This amendment to Article 966 is procedural and therefore applies retroactively”).

However, this Court has also declined to retroactively apply the 2013 amendment to La. C.C.P. art. 966 and, rather, has applied the law in effect at the time of the summary judgment hearing. In Gutierrez v. State Farm Fire & Cas. Ins. — published subsequent to the 2013 amendment — this Court applied the version of La. C.C.P. art. 966 in effect at the time of the summary judgment hearing. This Court stated:

La. C.C.P. art. 966(B) formerly provided, in pertinent part, “The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to - material fact, and that mover is entitled to judgment as a matter of law.” (Emphasis added).
[A]t the time of the [October 29, 2012] hearing on the motion for summary judgment here, La. C.C.P. art. 966 mandated that only evidence formally admitted into evidence during the summary judgment hearing could be considered by the trial court....”

Gutierrez v. State Farm Fire & Cas. Ins. Co., 13-341 (La.App. 5 Cir. 10/30/13), 128 So.3d 509, 512.

|sUpon finding that no evidence was formally introduced at the October 29, 2012 summary judgment hearing, as required under the version of the statute in effect at the time of the hearing, this Court vacated the granting of summary judgment and remanded to the trial court for further proceedings. Id.

The Third Circuit has also issued conflicting decisions concerning the retroactivity of the 2018 amendment to La. C.C.P. art. 966. See Evans v. Bordelon, 13-888 (La.App. 3 Cir. 3/19/14), — So.3d —, 2014 WL 1047052 (wherein the Third Circuit, relying on this Court’s decision in Midland Funding, supra, applied the 2013 amendment retroactively to a summary judgment hearing that occurred prior to the amendment’s effective date.); but see Garman v. Serhan, 13-969 (La.App. 3 Cir. 2/12/14), — So.3d-, 2014 WL 551530; Bourque v. Transit Mix, 13-1390 (La.App. 3 Cir. 5/7/14), — So.3d —, 2014 WL 1805368; and Hooper v. Hodnett, 13-1026 (La.App. 3 Cir. 2/12/14), — So.3d —, 2014 WL 551574 (wherein the Third Circuit — in decisions published subsequent to the 2013 amendment — declined to apply the amendment retroactively but rather applied the version of the law in effect at the time of the summary judgment hearing).

The Fourth Circuit, in Mason v. T & M Boat Rentals, LLC, 13-1048 (La.App. 4 Cir. 3/19/14), 137 So.3d 741, 744-45, considered the 2013 amendment to La. C.C.P. art. 966 and found that the amendment is substantive and, thus, cannot be applied retroactively. In Mason, the Fourth Circuit conducted the following analysis:

La. C.C. art. 6 provides that “[i]n the absence of contrary legislative expression, substantive laws apply prospectively only. Procedural and interpretative laws apply both prospectively and retroactively, unless there is a legislative expression to the contrary.” Although La. C.C.P. art. 966 is contained in the Louisiana Code of Civil Procedure, its retro-activity is not presumed. This Court must “engage in a two-fold inquiry.” Cole v. Celotex Corp., 599 So.2d 1058, 1063 (La.1992). “First, we must ascertain whether in the enactment the legislature expressed its intent regarding retrospective |9or prospective application.” Id. “If the legislature did not, we must classify the enactment as substantive, procedural or interpretive.” Id. “Substantive laws either establish new rules, rights, and duties or change existing ones.” St. Paul Fire & Marine Ins. Co. v. Smith, 609 So.2d 809, 817 (La.1992). “Interpretive laws, on the other hand, do not create new rules, but merely establish the meaning that the interpretive statute had from the time of its enactment.” Id. “When an existing law is not clear, a subsequent statute clarifying or explaining the law may be regarded as interpretive, and the interpretive statute may be given retrospective effect because it does not change, but merely clarifies, pre-existing law.” Id.
The version of La. C.C.P. art. 966 in effect at the time of the hearing and the trial court’s ruling required that evidence used to support or oppose a motion for summary judgment be “admitted” instead of simply being “on file.” Therefore, the statute, at the time, required the mover to offer, introduce, and receive permission from the trial court to admit evidence into the record on a motion for summary judgment. This also placed an onus on the opponent to object to any evidence “admitted” by the trial court. That amendment placed new duties upon both the mover and the opponent of a motion for summary judgment in order to ensure that only “admitted” evidence was in the record as opposed to being “on file.” The amendment to La. C.C.P. art. 966 currently in effect provides that “[ejvidence cited in and attached to the motion for summary-judgment ... is deemed admitted.” Thus, the new amendment removed the duties the previous version placed upon both parties and changed the parties’ required duties. Accordingly, we find that Acts 2013, No. 391, 1 is substantive in nature and cannot be applied retroactively ...[•]

Mason v. T & M Boat Rentals, LLC, 13-1048 (La.App. 4 Cir. 3/19/14), 137 So.3d 741, 744.

It is my opinion that the Fourth Circuit’s analysis in Mason accurately determines that the 2013 amendment to La. C.C.P. art. 966 is substantive in nature— removing a party’s previous obligation to formally introduce evidence into the record (as required under the 2012 version) and imposing the additional duty to object to any evidence “deemed admitted” by only doing so in writing (imposed in the 2013 version) — and, thus, cannot be applied retroactively. Nowhere in the Louisiana evi-dentiary construct is any evidence “deemed admitted” nor is there any obligation to file a written objection to the admission of evidence presented in connection with a pre-trial motion and, thus, the parties could not anticipate the | Tnevidentiary changes required under the amended version of La. C.C.P. art. 966. Further, given that the amendment at issue controls evidentiary issues presented at a summary judgment hearing, it is my opinion that the version of the law in effect at the time of the hearing applies.

Given the conflict within this Circuit (and others) concerning the retroactivity of statutory amendments to La. C.C.P. art. 966 as well as the legislature’s continuous revisions to this ever-changing statute, it is my opinion that this issue should be considered and determined by this Court en banc.

Accordingly, for the reasons provided herein, I concur with the majority opinion’s application of the version of La. C.C.P. art. 966 in effect at the time of the summary judgment hearings rather than the current version of the article while on appellate review. Further, because First Bank failed to formally introduce evidence submitted in connection with its motions for summary judgment — as required under the version of La. C.C.P. art. 966 in effect at the time of the summary judgment hearings — I agree that the evidence cannot be considered and that First Bank has failed to meet its burden of proof on its motions.

CHAISSON, J.,

concurs with reasons.

|,I agree with the majority opinion in this case that First Bank, having failed to formally introduce and have admitted its evidence on the motions for summary judgment, has failed to meet its burden of proof on its motions, and therefore the judgments granting summary judgments must be reversed.

However, regarding the issue of the handling of Proctor’s Cove II’s motion to recuse, because the official record indicates that there is still an outstanding attachment against Keith Paul Gagnon, I feel compelled to comment further. For the following reasons, I find that the attachment against Mr. Gagnon was improvidently issued and should be recalled.

The trial judge struck the motion to recuse based upon her determination that Keith Paul Gagnon did not fall within the exception provided by La. R.S. 37:212(0, and therefore was not authorized to file any pleadings on behalf of Proctor’s Cove II. Without further expounding upon the various possible interpretations of the- exception, I strongly echo Judge Wicker’s comments that it is poorly written, causes confusion, and is subject to different interpretations. Regardless of the proper interpretation of the exception, appellants failed to timely seek appellate review of the trial court’s ruling that Keith Paul Gagnon is |2prohibited from filing pleadings on behalf of Proctor’s Cove II, and I am therefore of the opinion that they are now precluded from objecting -to the striking of the motion to recuse. My concern is that this poorly worded exception is the genesis of the issuance of an attachment for contempt against Keith Paul Gagnon.

Furthermore, it appears that the attachment for contempt was issued against Keith Paul Gagnon for the filing of the motion to recuse and motion to stay proceedings. However, the record does not reflect that any order had been issued prohibiting Mr. Gagnon from filing pleadings prior to his filing the motion to recuse on December 13, 2011. Nor does the record reflect that Mr. Gagnon has filed any pleadings in the district court subsequent to the motion to recuse. Additionally, First Bank asserts in their motion to prohibit, and in the accompanying memorandum, that Mr. Gagnon had been warned on the record by the trial judge not'to file any additional pleadings on behalf of Proctor’s Cove II. To the contrary, the record in fact bears out Mr. Gagnon’s assertion that, not only had he not been warned against filing any additional pleadings, but when the issue was informally raised by First Bank at an October 2, 2009 hearing, the trial judge

allowed him to argue on behalf of Proctor’s Cove II. First Bank compounds this apparent misstatement by filing with this Court a memorandum in support of its motion to strike, alleging that the contempt citation against Mr. Gagnon was for “filing pleadings on behalf of Proctor’s Cove, in direct violation of the court’s order.” (emphasis added). The record reflects that no such prior order exists.

|sUnder these circumstances,' and in light of appellants’ request that all orders subsequent to the filing of the motion to recuse be vacated, and the fact that Mr. Gagnon’s liberty may be at stake should he be arrested on the attachment, I write to express my opinion that the attachment appears to be improvidently issued and should be recalled.

      . The trial court found that First Bank’s Exception of No Cause of Action and/or No Right of Action against Ms. Thompson was improperly entitled and should have been an exception of improper cumulation.

      . It is noted that La. C.C.P. art. 966 was amended by Acts 2013, No. 391 § 1, which became effective on August 1, 2013. The pre-amended version of La. C.C.P. art. 966 was in effect at the time of hearing on the Motion for Summary Judgment in this matter.

      . La. R.S. 37:212 provides:
      A. The practice of law means and includes:
      (1) In a representative capacity, the appearance as an advocate, or the drawing of papers, pleadings or documents, or the performance of any act in connection with pending or prospective proceedings before any court of record in this state; or
      (2) For a consideration, reward, or pecuniary benefit, present or anticipated, direct or indirect;
      (a) The advising or counseling of another as to secular law;
      (b) In behalf of another, the drawing or procuring, or the assisting in the drawing or procuring of a paper, document, or instrument affecting or relating to secular rights;
      (c) The doing of any act, in behalf of another, tending to obtain or secure for the other the prevention or the redress of a wrong or the enforcement or establishment of a right; or
      (d) Certifying or giving opinions, or rendering a title opinion as a basis of any title insurance report or title insurance policy as provided in R.S. 22:512(17), as it relates to title to immovable property or any interest therein or as to the rank or priority or validity of a lien, privilege or mortgage as well as the preparation of acts of sale, mortgages, credit sales or any acts or other documents passing titles to or encumbering immovable property.
      B. Nothing in this Section prohibits any person from attending to and caring for his own business, claims, or demands; or from preparing abstracts of title; or from insuring titles to property, movable or immovable, or an interest therein, or a privilege and encumbrance thereon, but every title insurance contract relating to immovable property must be based upon the certification or opinion of a licensed Louisiana attorney authorized to engage in the practice of law. Nothing in this Section prohibits any person from performing, as a notary public, any act necessary or incidental to the exercise of the powers and functions of the office of notary public, as those powers are delineated in Louisiana Revised Statutes of 1950, Title 35, Section 1 et seq.
      C. Nothing in this Section shall prohibit any partnership, corporation, or other legal entity from asserting or defending any claim, not exceeding five thousand dollars, on its own behalf in the courts of limited jurisdiction or on its own behalf through a duly authorized partner, shareholder, officer, employee, or duly authorized agent or representative. No partnership, corporation, or other entity may assert any claim on behalf of another entity or any claim assigned to it.
      D. Nothing in Article V, Section 24, of the Constitution of Louisiana or this Section shall prohibit justices or judges from performing all acts necessary or incumbent to the authorized exercise of duties as judge advocates or legal officers.

      . The 2013 amendment added the "deemed admitted” language and thus removed a party’s obligation to formally offer, file, and introduce evidence submitted in connection with the motion for summary judgment. The 2013 amendment changed the following language, reflected below:
      (2) Evidence cited in and attached to the motion for summary judgment or memoran-
      dum filed by an adverse party is deemed admitted for purposes of the motion for summary judgment unless excluded in response to an objection made in accordance with Sub-paragraph (3) of this Paragraph. Only evidence admitted for purposes of the motion for summary judgment may be considered by the court in its ruling on the motion.

      . The 2013 amendment added La. C.C.P. art. 966(F)(3), which provides:
      (3) Objections to evidence in support of or in opposition to a motion for summary judgment may be raised in memorandum or written motion to strike stating the specific grounds therefor.
      Further, La. C.C.P. art. 966(F)(3) was recently again amended in 2014 to add a ser-
      vice requirement, thereby imposing additional duties upon the parties. The 2014 amendment added language that, "[a]ny such memorandum or written motion to strike shall be served pursuant to Article 1313 within the time limits provided in District Court Rule 9.9.”

      . Appellants have assigned as error, and objected to, all rulings of the trial court subsequent to the filing of the motion to recuse, presumably including the issuance of the attachment against Keith Paul Gagnon.

      . Furthermore, since December 30, 2008, the date that Mr. Gagnon first filed a pleading on behalf of Proctor’s Cove II as one of its members, until the January II, 2012 judgment prohibiting him from doing so (a period of three years), the record is replete with instances of Mr. Gagnon being allowed to file pleadings on behalf of Proctor’s Cove II, without objection being made by First Bank, and First Bank in turn serving Proctor's Cove II with pleadings through Mr. Gagnon.


source: Caselaw Access Project

author: SUSAN M. CHEHARDY, Chief Judge. WICKER, J.,

license: Public Domain

text:
    Jose CASTRO v. Sonia ESTEVEZ and Allstate Property and Casualty Insurance Company.
    No. 13-CA-993.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 24, 2014.

      Miguel A. Elias, Paul A. Deas, Law Offices of Miguel A. Elias, Kenner, Louisiana, for Appellant, Jose Castro.
    James L. Donovan, Jr., Donovan & Lawler, Metairie, Louisiana, for Defendants, Sonia Estevez and Allstate Insurance Company.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and HANS J. LILJEBERG.
   SUSAN M. CHEHARDY, Chief Judge.

|sOn appeal, plaintiff challenges the quantum of damages awarded by the jury for his personal injuries sustained in a motor vehicle accident. For the following reasons, we amend and affirm as amended.

Facts & Procedural History

On December 21, 2008, Jose Castro, appellant-herein, was in a motor vehicle accident with Sonia Estevez, appellee-herein, in the parking lot of Esplanade Mall in Kenner, Louisiana. Mr. Castro contended that Mrs. Estevez backed into his vehicle while attempting to enter a parking space. Conversely, Mrs. Estevez claimed that Mr. Castro hit her vehicle from behind because he was not paying attention as he tried to negotiate the parking lot.

Both parties filed suit for personal injuries sustained as a result of the accident; the matters were consolidated. Subsequently, trial of liability and damages was bifurcated. Regarding liability for the accident, the jury found that Mr. Castro was 55% at fault and that Mrs. Estevez was 45% at fault.

Subsequently, after trial of damages, the jury awarded Mr. Castro general damages of $5,000.00; special damages of $4,909.77; and lost wages of $900.00. |40n September 26, 2013, the trial judge issued its written judgment, which awarded Mr. Castro a total of $4,864.40 plus interest from the date of judicial demand. Mr. Castro timely filed an appeal.

Discussion

On appeal, Mr. Castro seeks additur. Specifically, Mr. Castro contends that the jury’s award of only $5,000.00 in general damages was abusively low for a plaintiff with his injuries, namely, a neck sprain lasting five months, herniated discs, pain and suffering, and loss of enjoyment of life with his family. He also contends that the jury erred in failing to award future medical expenses for medial branch blocks, which his treating physician has recommended to reduce his pain. Finally, Mr. Castro contends that the trial judge erred in failing to grant his motion for JNOV where the jury’s award was abusively low.

Our first inquiry is whether the jury abused its discretion by awarding Mr. Castro only $5,000.00 in general damages. General damages are those damages that are inherently speculative in nature and cannot be fixed with mathematical certainty. Duncan v. Kansas City So. Ry. Co., 00-66 (La.10/30/00), 773 So.2d 670, 682; Wainwright v. Fontenot, 00-0492 (La.10/17/00), 774 So.2d 70; Boswell v. Roy O. Martin Lumber Co., 363 So.2d 506, 507 (La.1978). The standard of review applicable to a general damages award is the abuse of discretion standard. Coco v. Winston Indus., Inc., 341 So.2d -332, 335 (La.1976). The trier of fact is afforded much discretion in assessing the facts and rendering an award because it is in the best position to evaluate witness credibility and see the evidence firsthand. Duncan, supra (“Vast discretion is accorded the trier of fact in fixing general damage awards.”); Anderson v. New Orleans Pub. Serv., Inc., 583 So.2d 829, 834 (La.1991).

1RAn appellate court may disturb a damages award only after an articulated analysis of the facts reveals an abuse of discretion. Theriot v. Allstate Ins. Co., 625 So.2d 1337, 1340 (La.1993); Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993), cert, denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). The role of an appellate court in reviewing a general damages award is not to decide what it considers to be an appropriate award but rather to review the exercise of discretion by the trier of fact. Duncan, supra at 682-83; Youn, supra at 1260. To determine whether the fact finder has abused its discretion, the reviewing court looks first to the facts and circumstances of the particular case. • Theriot, supra; Youn, supra at 1261.

Only if a review of the facts reveals an abuse of discretion, is it appropriate for the appellate court to resort to a review of prior similar awards. Duncan, supra; Cone v. Nat’l Emergency Serv. Inc., 99-0934 (La.10/29/99), 747 So.2d 1085, 1089; Youn, supra. In a review of the facts, the test is whether the present award is greatly disproportionate to the mass of past awards for truly similar injuries. Theriot, supra; Reck v. Stevens, 373 So.2d 498, 501 (La.1979). Prior awards, however, are only a guide. Theriot, supra.

In this case, Dr. F. Allen Johnston, the treating orthopedic surgeon; Dr. Charles Aprill, a radiologist; and Dr. David Aiken, an orthopedic surgeon testifying for the defense, found objective evidence in an MRI of Mr. Castro’s lower back that Mr. Castro had a herniated lumbar disc, which was more than likely caused by the motor vehicle accident in question. Further, Dr. Aprill and Dr. Johnston agreed that Mr. Castro had a second herniated lumbar disc, which was asymptomatic but aggravated by the accident. Dr. Aiken, who had never examined Mr. Castro, did not agree that Mr. Castro had a second herniation.

| sin addition, Dr. Johnston indicated that Mr. Castro had undergone cortisone injections to two joints in his lower back that alleviated Mr. Castro’s pain for about one month. Dr. Johnston recommended that Mr. Castro have further treatment, including Novocain injections and radiofrequency neurotomy to block his pain. Dr. Aiken disagreed with treatment by Novocain injections or neurotomy. Mr. Castro testified that he is still in pain that he treats with over-the-counter pain relievers.

Moreover, Dr. Johnston, Mr. Castro’s treating physician, found objective evidence of a sprain in Mr. Castro’s neck that was more probably than not caused by the accident in question. Mr. Castro complained of pain and stiffness in his neck, which resolved within 5 months of the accident.

When this testimony is considered along with the unrefuted testimony that Mr. Castro had no complaints of pain in his back or neck before this accident, we find that the jury award of $5,000.00 for general damages was abusively low.

After determining that an award for general damages is an abuse of the trial court’s discretion, this Court can review prior awards to determine the highest or lowest point, which is reasonably within that discretion. Herzog v. Fabacher, 01-432 (La.App. 5 Cir. 10/17/01), 800 So.2d 997, 1000. Our review of the jurisprudence reveals that awards for a non-surgical herniated lumbar disc requiring treatment with injections are between $40,000.00 and $50,000.00. See, Sanchez v. Dubuc, 12-526 (La.App. 5 Cir. 2/21/13); 110 So.3d 1140, 1146 (no abuse of discretion in award of $47,462.00 for non-surgical herniated lumbar disc); Sutton v. Oncale, 99-967 (La.App. 5 Cir. 3/29/00), 765 So.2d 1072, 1080 (general damage award raised to $40,000.00 for one herniated lumbar disc). Accordingly, based upon the testimony presented in this case, we find that lowest permissible award to Mr. Castro for his general damages caused by this accident is $40,000.00.

| ^Decree

For the foregoing reasons, the judgment of the trial court is amended to increase the jury’s award for general damages to $40,000.00, which will still be reduced by 55% to $18,000.00. In all other respects, the judgment of the trial court is affirmed. Costs of this appeal are assessed against appellee, Allstate Insurance Company.

AFFIRMED AS AMENDED.

WICKER, J.,

concurs in part and dissents in part, with reasons.

U agree with the majority that the jury’s award of $5,000 in general damages was abusively low. I respectfully dissent from the majority’s decision with respect to the lowest reasonable award of general damages. As discussed in the majority opinion, the record reflects that Mr. Castro sustained a herniated lumbar disc as a result of the accident in question. In Sanchez v. Dubuc, this Court recently found that the lowest reasonable general damage award for a non-surgical herniated disc within a jury’s discretion is $50,000. Sanchez v. Dubuc, 12-526 (La.App. 5 Cir. 2/21/13); 110 So.3d 1140, 1146 (citing Webb v. Horton, 01-978 (La.App. 5 Cir. 2/13/02); 812 So.2d 91, 99; Rehm v. Morgan, 04-344 (La.App. 5 Cir. 10/26/04); 885 So.2d 687, 692-93). Therefore, Mr. Castro’s general damages award should have been increased to $50,000.

In all other respects, I agree with the majority’s opinion.

      . Neither party is appealing that finding nor the finding of damages with respect to Mrs. Estevez.

        . The total award is the juty's award of $10,809.77 reduced by Mr. Castro’s percentage of fault, 55%.


author: STEPHEN J. WINDHORST, J. JOHNSON, J.,

text:
    STATE of Louisiana, v. Morris PATIN.
    No. 13-KA-618.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 24, 2014.

      Paul D. Connick, Jr. District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Andrea F. Long, Myles Ranier, Jody Fortunato, Assistant District Attorneys, Gretna, LA, for PlaintifflAppellee.
    Mary E. Roper, Attorney at Law Louisiana, Appellate Project, Baton Rouge, LA, for Defendant/Appellant.
    Panel composed of Judges MARC E. JOHNSON, ROBERT M. MURPHY and STEPHEN J. WINDHORST.
   STEPHEN J. WINDHORST, J.

|2The defendant, Morris Patin, was convicted of three counts of drug possession in the 24th Judicial District Court, Division “E.” For the reasons that follow, we affirm defendant’s convictions and sentences.

FACTS AND PROCEDURAL HISTORY

On February 24, 2012, the Jefferson Parish District Attorney filed a bill of information charging the defendant with: Count 1: Possession of 28 grams or more, but less than 200 grams of heroin, in violation of La. R.S. 40:966D(l)(a); Count 2: Possession of alprazolam in violation of La. R.S. 40:969C; and Count 3: Possession of oxycodone in violation of La. R.S. 40:967C. The defendant was arraigned on February 28, 2012, and pleaded not guilty to all counts. Following a hearing on May 9, 2012, the trial court denied the defendant’s motion to suppress evidence and statement.

|sOn July 10, 2012, the State filed a notice of intent to introduce proof of other crimes, wrongs or acts committed by the defendant, pursuant to La. C.E. art. 404B. Specifically, the State intended to introduce evidence related to a recent arrest of the defendant in New Orleans which occurred 22 days prior to the offense charged in the present case, as evidence of the defendant’s intent, knowledge, and absence of mistake or accident. The State asserted that in both the New Orleans case and in the present case, the defendant was in possession of similar amounts and classes of narcotics, and made similar denials to officers regarding the ownership of the contraband and whether he lived in the residences where the contraband was found. The State argued that the evidence would be of more probative value to the trier of fact than prejudicial to the defendant in the present case.

The hearing pursuant to La. C.E. art. 404B (hereafter “404B hearing”) took place on July 28, 2012. NOPD officers had conducted a controlled purchase from the defendant at a New Orleans residence and had executed a search warrant at the residence where they recovered evidence of drug dealing. The State argued that evidence seized in the defendant’s New Orleans arrest that occurred less than a month prior would be informative and relevant to show an absence of mistake, and would also be admissible as res gestae, because it was part of an integral act. The State also contended that at trial the defendant would argue that the contraband items belonged to defendant’s girlfriend, and that evidence showing intent and absence of mistake or accident would be very relevant to proving the charges in this case and to determining the owner of the controlled dangerous substances. The New Orleans case was still pending at the time of the motion hearing.

The defendant argued that any probative value of the State’s evidence, if any, was greatly outweighed by the prejudicial effect which would unduly influence the jury.

14At the conclusion of the 404B hearing, the trial court ruled in the State’s favor, allowing introduction of evidence of the New Orleans arrest, finding that the other acts as alleged showed an absence of mistake. The court noted that circumstances of the New Orleans case were the same as the present case. Most significantly, the defendant was observed by officers in a controlled-buy setting, and was again present in the residence when a search warrant was executed.

Trial Evidence and Facts

Lieutenant Donald Meunier and Detective Mark Layrisson of the JPSO narcotics division each testified about their participation in the surveillance and arrest of the defendant in Metairie on January 20, 2012. JPSO’s investigation began when Lieutenant Meunier was notified that officers of the New Orleans Police Department were seeking assistance with their surveillance of the defendant in the 4000 block of Hess-mer Avenue in Metairie, Louisiana. Lieutenant Meunier and Detective Layrisson, along with their team, assisted in the surveillance from about 10:00 A.M. until about 1:00 P.M.

While under surveillance, the defendant left the apartment driving a vehicle belonging to his girlfriend, Ebonee Williams, who was a passenger in the car. After observing defendant make traffic violations, the JPSO officers conducted a traffic stop. The officers informed Ms. Williams that defendant was under investigation for narcotics and obtained her written consent to search the apartment. Lieutenant Meunier advised defendant of his Miranda rights. Believing that defendant resided with Ms. Williams, the officers presented him with the same consent to search form. Defendant refused to sign the form, but also denied living in the apartment and said he did not have any property there. Based |son the consent of Ms. Williams, who was the lessee, the officers entered the apartment to conduct a search.

Detective Chris Henley, an NOPD canine handler, conducted a canine “sniff’ of the interior of the apartment. The dog, trained to detect narcotics, alerted to a dresser in the upstairs bedroom. Inside of a sock in the dresser, Detective Paul Smith recovered a clear bag containing individual bags of a tan powder consistent with heroin. Detective Layrisson testified that the bags were consistent with packaging intended for distribution, and the quantity and packaging indicated that the narcotics were obviously not for personal use. On top of the dresser, detectives found the defendant’s receipt for posting bail in the New Orleans case, which bore defendant’s name and listed his address as 4000 Hess-mer Avenue, Metairie. The receipt was admitted into evidence.

During a systematic search of the kitchen, the officers discovered a plastic bag containing rice and two additional clear bags of tan powder, several empty bags, and a clear plastic bag with white shards all located at the bottom of a cereal box on top of. the refrigerator. Inside of the bag of rice, the officers found tan powder that later tested positive for heroin. Detective Layrisson explained that in his experience rice is commonly used to wick moisture from and preserve heroin. In a small plastic cup located in a kitchen cabinet were several tablets, later identified as alprazolam and oxycodone. The defendant’s Transportation Worker Identification Credential (TWIC) was found on the kitchen countertop. Detective Layrisson also observed that the Adidas shoes and shoe boxes found in the apartment were consistent with the Adidas shoes worn by the defendant at the time of arrest.

| fiDuring Detective Layrisson’s interview with Ms. Williams, she indicated that she was renting the apartment and did not indicate that the defendant was a co-renter or co-inhabitant of the apartment. Ms. Williams was in possession of the apartment key, not the defendant. Detective' Layrisson acknowledged that the arrest ■affidavit listed a different address for the defendant, and that he did not have any indication that Defendant was a resident of the apartment at the time of his arrest (other than the receipt for bail). Ms. Williams informed Detective Layrisson that she purchased the clothing in the apartment for the defendant, but there was no indication of whether the defendant had ever worn them. Ms. Williams denied ownership and knowledge of the substances but did not accuse the defendant. She was not arrested.

On re-direct examination, Detective Layrisson explained that in his experience drug dealers would not keep narcotics or other evidence related to intended distribution on their person, but would utilize a “stash house,” an apartment or storage facility not registered in the suspect’s name where the suspect would store narcotics and money.

Called as a prosecution witness, Ms. Williams testified that although the defendant did not live with her and his name whs not on the lease, he would sometimes spend the night at her apartment on Hess-mer Avenue. The defendant did not have a key to her apartment, and Ms. Williams would only allow the defendant to use her key when she was present, or to run errands, such as to purchase food. Ms. Williams testified that the defendant was the only person who visited her apartment other than maintenance workers, except for a female friend who lived in Texas that had last visited more than one month before the Metairie arrest.

|7Ms. Williams indicated that the men’s clothing in her apartment belonged to the defendant, and that she bought them for him, including Adidas sneakers and a pack of t-shirts and jeans, which she identified as the items located by the officers. She also stated that she did not use the dresser drawer in the bedroom, and that the items in the dresser, including the socks, belonged to the defendant, and she did not have any other boyfriend who came over at that time.

Ms. Williams also testified that the defendant never told her anything about the drugs. Although she spoke to the defendant regarding his earlier arrest in New Orleans, he-only stated that he was at the wrong place at the wrong time and was unwilling to discuss it. She had never seen the- defendant with any illegal substances, which was something she would not tolerate. Ms. Williams testified that the District Attorney’s office did not give her immunity or promise her anything in exchange for her testimony, which was the truth.

Detective Michael Dalferes of NOPD narcotics testified that on December 29, 2011, he was conducting surveillance at 2031 Dumaine Street in New Orleans. After observing what he believed to be narcotics activity, he had obtained and executed a search warrant of the residence. Sergeant Jeff Sislo, an officer in charge of the NOPD’s major case narcotics unit, testified that he coordinated the execution of the search warrant and was one of the supervisors on the scene. When the officers approached the door and announced themselves as police officers, they heard footsteps running away from the door and forced entry into the residence. Sergeant Sislo detained the defendant as he fled to the back of the house. The officers also detained two other subjects discovered in the residence.

Sergeant Sislo testified that the officers informed the defendant that they had a search warrant, and Detective Dalferes advised him of his Miranda rights. Different officers searched different areas of the residence. Sergeant Sislo |srecovered exactly $7,000.00 in various denominations of bills from a shoe box in the living room. The defendant and the other .subjects denied any knowledge of the money. Sergeant Sislo also discovered a bag containing several bags of small syringes, commonly used by heroin addicts, located in a non-functional furnace.

During the search of the residence, the officers retrieved one .40 caliber semiautomatic Gloek, 20 small bags of powder cocaine, 23 pieces of crack cocaine, 12 individual bags of heroin, 22 bags of marijuana, and a pill bottle containing approximately 44 tablets of alprazolam. The officers also discovered two bags containing a white powdered substance used to cut cocaine. The officers also seized two scales, which Detective Dal-feres explained are used to weigh drugs in grams. The officers also found an open box of sandwich bags, which Detective Dalferes explained are commonly used for “bagging up,” or cutting the corners off the bags and tying them, to package crack cocaine and heroin.

The NOPD officers placed the defendant under arrest, and Sergeant Sislo conducted a search incident to arrest. When the defendant stood up, officers noticed the key to the residence on the floor at defendant’s feet. Sergeant Sislo also recovered $505.00 from the defendant’s pants pocket. The money was in various denominations of bills and was suspected to be proceeds from narcotics sales. During cross-examination, Sergeant Sislo acknowledged that he had no personal knowledge of the key having been on the defendant’s person.

After the defendant was released on bond, the NOPD officers conducted additional surveillance, and observed the defendant at the Metairie apartment, where they suspected he was storing drugs. Detective Dalferes explained that in his experience drug dealers would use a “stash house” to store drugs separately from where they conduct deals in order to avoid drawing attention to where the ]9bulk of their money and narcotics were located. Detective Dalferes later informed the JPSO narcotics unit of their investigation.

The State also offered and the trial court admitted, without objection, the following physical evidence seized in the NOPD case: the .40 caliber Glock; a plastic bag containing 12 individual bags of heroin; a bag containing 23 pieces of crack cocaine; powder cocaine; 22 individually wrapped bags of marijuana; two bags of non-narcotic white powder (cut); 44 tablets of alprazolam; a digital weight scale; a weight max scale; several bags of small syringes; and sandwich bags. As each exhibit was offered, the trial judge asked defense counsel if he had any objection. To each of these exhibits, defense counsel affirmatively stated that he did not object, and the court admitted them into evidence. When the State moved to publish them to the jury, again the defense counsel stated that he did not object.

The State also offered State’s Exhibit 27, which was a bag of heroin seized from the person of the defendant at the lockup, to which the defendant objected. The trial judge sustained the defendant’s objection, and that evidence was excluded.

The State also offered State’s Exhibit 30, which was a key to the New Orleans apartment found at the defendant’s feet, to which the defendant objected. The trial judge overruled defendant’s objection and admitted the key.

The defense entered into a stipulation with the State that if the chemical experts in both the New Orleans case and the present case were called to testify, their testimonies would be consistent with the reports each of them had prepared regarding the substances which tested positive, and the weight of each.

The twelvé-person jury returned a verdict of guilty as charged. On July 31, 2012, the trial court denied the defendant’s motion for new trial. On the same date, after waiving sentencing delays, the defendant was sentenced to 15 years [ ^imprisonment at hard labor on count one, and five years imprisonment at hard labor on both counts two and three. The trial court ordered all counts to be served concurrently and gave the defendant credit for time served. The court ordered that the first five years of the defendant’s sentence on count one be served without benefit of paroíe, probation, or suspension of sentence. On the same date as the sentencing, the State filed a habitual offender bill of information in open court charging defendant as a third felony offender. Defendant stipulated to his status as a third felony offender. Thus, the trial court vacated defendant’s original sentence on count one and resentenced him, pursuant to La. R.S. 15:529.1, to 20 years imprisonment at hard labor with credit for time served. The court ordered defendant’s sentence to be served without benefit of probation or suspension of sentence. The court further ordered the habitual offender sentence on count one to be served concurrently with the other two sentences. Defendant now appeals.

LAW AND ANALYSIS

In his sole assignment of error, the defendant argues that the trial court erred when it allowed the State to introduce evidence of his arrest for narcotics offenses in New Orleans, which occurred less than a month prior to the defendant’s arrest in the present case. Defendant argues that the evidence in the previous case was introduced as though it was evidence in the present case.

The State asserts that the trial court did not abuse its discretion in admitting the other crimes evidence from the New Orleans case, but rather, the trial court admitted the evidence for the limited purpose of whether it tended to show motive, opportunity, intent, preparation, plan, knowledge, identity, and/or absence of mistake or accident.

^Evidence Admitted Without Objection

The defendant contends that admission of the physical evidence seized in the New Orleans case and displayed to the jury in this case was reversible error. The defendant, however, offered no objection to the testimony, nor to the majority of physical evidence at the time the State’s exhibits from the New Orleans case were offered into evidence by the State, even when asked repeatedly by the trial judge. Accordingly, we may not review the trial court’s admission of other crimes evidence admitted at trial because those objections were not preserved for appeal in the absence of a contemporary objection.

In order to preserve the right to seek appellate review of an alleged trial court error, the party claiming the error must state an objection contemporaneously with the occurrence of the alleged error, as well as the grounds for that objection. La.C.Cr.P. art. 841A; State v. Berroa-Reyes, 12-581 (La.App. 5 Cir. 1/30/13), 109 So.3d 487, 498; State v. Richoux, 11-1112 (La.App. 5 Cir. 9/11/12), 101 So.3d 483, 490-491, writ denied, 12-2215 (La.4/1/13), 110 So.3d 139; State v. Alvarez, 10-925 (La.App. 5 Cir. 6/29/11), 71 So.3d 1079, 1085. Defendant is limited on appeal to matters to which an objection was made, but also to the grounds for his objection articulated at trial. State v. Jackson, 450 So.2d 621 (La.1984); State v. Baker, 582 So.2d 1320 (La.App. 4 Cir.1991), writ denied, 590 So.2d 1197 (La.1992), cert, denied, 506 U.S. 818, 113 S.Ct. 62, 121 L.Ed.2d 30 (1992).

La.C.Cr.P. art. 841A provides, in part, that “an irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence.” The purpose of the requirement of a contemporaneous objection is to put the trial judge |12on notice of an alleged irregularity so that he or she may cure a legitimate problem and prevent the defendant from gambling for a favorable verdict and then resorting to appeal on errors that might easily have been corrected by an objection. State v. Styles, 96-897 (La.App. 5 Cir. 3/25/97), 692 So.2d 1222, 1228, writ denied, 97-1069 (La.10/13/97), 703 So.2d 609. A contemporaneous objection allows opposing counsel to reply or to correct the problem, and may also prevent the error entirely. In this case, the defendant’s assent to admission of the physical evidence and the lack of any objection precluded the trial judge’s contemporaneous consideration of whether the volume and nature of evidence had become excessive and had reached the point at which the any prejudicial effect would outweigh the probative value. In fact, the trial judge sustained one of the two defense objections to the physical evidence and excluded the seized heroin (Exhibit 27) which the State sought to admit.

The trial transcript clearly shows that the State called Detective Michael Dal-feres and Sergeant Jeff Sislo to testify regarding the pending charges in New Orleans. Both officers discussed the facts and evidence recovered related to the charges in New Orleans. The defendant did not object at trial to the witnesses’ testimony, and did not request an admonition or a mistrial. Defense counsel also questioned the New Orleans detectives about the facts and circumstances of the pending charges in New Orleans during his cross-examination of them. Since defendant did not object at trial to the testimony of Detective Dalferes and Sergeant Sislo relating to “other crimes,” he may not assert this error on appeal.

During the testimony of Detective Dal-feres and Sergeant Sislo, the State offered and introduced evidence recovered from the pending case in New Orleans. As the State offered each piece of evidence from the New Orleans case individually, the trial court specifically asked if defendant had any objection to its 1 ^admission. With the exception of the apartment key, defense counsel responded “no objection,” after which the trial court admitted the evidence. Additionally, defense counsel entered into a stipulation with the State that if the chemical expert in the New Orleans case would testify, he would testify consistently with the report prepared in that case as far as what substance tested positive for drugs and the weights of each item. After its last witness, the State moved to publish all of the State’s exhibits, including those related to the case in New Orleans. The trial court again asked defense counsel if he had any objection to the exhibits being published, and defense counsel responded “No objection, your honor.” Clearly the defendant consented to admission of the other crimes evidence. Moreover, the trial judge would have had no alternative but to admit it even if its admissibility was in doubt. To hold otherwise would be to require judicial advocacy and activism during a trial, rather than presentation of evidence by the parties and impartiality by the judge.

On very rare occasions, the contemporaneous objection requirement does not apply. In State v. Williamson, 389 So.2d 1328 (La.1980), the trial judge incorrectly instructed the jury on the elements of the crime charged, effectively reducing the state’s evidentiary burden, without defense objection. The omission of an element or elements of the crime charged from the instructions to a jury effectively makes criminal an act which is not a crime, and cannot be allowed to stand even in the absence of a contemporaneous objection. In this case, however, no such extraordinary error was committed by the trial court. In State v. Green, 493 So.2d 588 (La.1986), the Louisiana Supreme Court again applied the exception to the contemporaneous objection requirement for improper instructions 1Mto the jury. Clearly . the introduction of other crimes evidence without objection in this case does not have nearly the same effect on the reliability of the fact-finding process as did the egregious jury instruction errors in Williamson and Green.

In State v. Arvie, 505 So.2d 44 (La.1987), however, the Louisiana Supreme Court emphasized the importance of a contemporaneous objection by refusing to extend the exception to the contemporaneous objection rule for a prosecutor’s reference to the defendant’s post-arrest silence during his cross-examination. If the cross-examination of a defendant regarding his post-arrest invocation of the Fifth Amendment right to remain silent is not reviewable in the absence of a contemporaneous, objection, then neither can be the introduction of other crimes evidence.

Therefore, in the absence of a contemporaneous objection stating the grounds therefore, the admission of the other crimes evidence in this case is not reviewable by this court.

Waiver of Objection Made at Pre-trial Ruling

Although the defendant made a pre-trial objection to the trial court’s granting of the State’s motion to admit the evidence seized in the New Orleans case, the defendant consented at trial to admission of the evidence and therefore waived appeal on that issue.

When a defendant unsuccessfully seeks to exclude certain evidence at a pretrial motion, but at trial agrees to its introduction, he waives his prior objection and loses the right to present the issue on appeal. State v. Gaal, 01-376 (La.App. 5 Cir. 10/17/01), 800 So.2d 938,’ 951, writ denied, 02-2335 (La.10/3/03),. 855 So.2d 294. In this case, defendant objected to the trial court’s La. C.E. 404B pre-trial [ ^ruling allowing the State to introduce evidence from the New Orleans case, but at trial the defendant consented • to the evidence seized in New Orleans which was admitted, stating, “No objection, your hon- or,” after the trial judge asked if he objected. Accordingly, this issue has been waived, has not been preserved for appeal, and may not be reviewed or considered by this Court.

The La. C.E. 404B Motion (“other crimes” evidence) Decision

After a full evidentiary hearing pursuant to La. C.E. 404B, the trial court ruled that evidence of the earlier New Orleans case would be admissible at trial, finding that such evidence-was admissible to show absence of mistake. This conclusion is logical and relevant, especially considering the defendant’s contention that the Metairie apartment was not his and that he had no connection to it, and the implication that the evidence seized in the apartment pursuant the warrant could have belonged to Ms. Williams or to a third party.

In State v. Jones, 08-20, (La.App. 5 Cir. 4/15/08), 985 So.2d 234, this Court held that evidence of other crimes was admissible to show absence of mistake or accident when the defendant implied that the drugs seized belonged to one of two other possible subjects, as in the instant case.

Further, an evidentiary hearing of a 404B motion is determined largely on factual determinations. In deciding a pre-trial motion to admit evidence of other crimes, broad discretion is afforded the trial judge, who. is in a position to view witnesses, assess their credibility, and determine the facts. State v. White, 45,704 (La.App. 2 Cir. 1/26/11), 57 So.3d 1078, writ denied, 11-0613 (La.10/7/11), 71 So.3d 310. We do not believe the trial judge abused his discretion in granting the State’s motion to admit the evidence for the limited purpose he stated in his reasons. He also gave a clear, limiting instruction to the jury as to the “sole purpose” for which they could consider evidence of the New Orleans 11ficase. Therefore, evidence of other crimes generally, and the apartment key specifically, were properly admissible to show intent and absence of mistake or accident, and that the limited purposes for which it was admitted pursuant to La. C.E. 404B was not outweighed by any prejudicial effect. Accordingly, appellant’s assignment of error is without merit.

ERRORS PATENT REVIEW

The record was reviewed for errors patent, according to the mandates of La. C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). The following requires corrective action.

The record reveals a conflict between the commitment and the transcript. The commitment does not reflect that the trial court ordered the habitual offender sentence to run concurrently with the other sentences. However, the transcript reflects that the court ordered the habitual offender sentence on Count 1 to be served concurrently with the other two sentences. Where there is a conflict be- ' tween the transcript and the commitment, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). Therefore, we remand this matter to the trial court with instructions to amend the commitment. The clerk of court is ordered to transmit the original of the commitment to the officer in charge of the institution to which defendant has been sentenced, as well as, to the legal department of the Louisiana Department of Public Safety and Corrections. See State ex rel. Roland v. State, 06-0244 (La.9/15/06), 937 So.2d 846 (per curiam).

CONCLUSION

For the reasons stated herein, defendant’s convictions and sentences are affirmed.

CONVICTION AND SENTENCE AFFIRMED; REMANDED FOR CORRECTION OF COMMITMENT.

JOHNSON, J.,

dissents with reasons.

Li, respectfully, disagree with the majority opinion. Although the defense attorney objected to both the State’s notice . of intent to introduce proof of other crimes, wrongs or acts from the NOPD case and the trial court’s grant of the motion, he failed to object to the introduction of that evidence at trial. Generally, the defense cannot avail itself of an error which was not objected to at the time of occurrence. La. C.C.P. art. 841; State v. Arvie, 505 So.2d 44, 47 (La.1987). However, on very rare occasions, the contemporaneous objection rule has been refused to be applied as a bar to review an error which is so fundamental that it strikes at the very essence of the reliability of the fact-finding process. Arvie, 505 So.2d at 47. After review, I find that the unique facts of this case require the consideration of an error that substantially casts doubt on the reliability of the fact-finding process and warrants making an exception to the contemporaneous objection rule. See generally, State v. Williamson, 389 So.2d 1828 (La.1980). In view of that exception, I will address the case on the merits of Defendant’s assignment of error.

Generally, evidence of other crimes, wrongs, or acts committed by the defendant is inadmissible due to the “substantial risk of grave prejudice to the defendant.” State v. Odenbaugh, 10-0268 (La.12/6/11); 82 So.3d 215, 250, cert, denied, — U.S. —, 133 S.Ct. 410,184 L.Ed.2d 51 (2012), citing State v. Prieur, 277 So.2d 126, 128 (La.1973). The other crimes evidence must tend to prove a material fact genuinely at 12issue, and the probative value of the extraneous crimes evidence must outweigh its prejudicial effect. Id. However, when such evidence tends to prove a material issue and has independent relevance other than showing that the defendant is of bad character, it may be admitted by certain statutory and jurisprudential exceptions to the exclusionary rule. State v. Aleman, 01-743 (La.App. 5 Cir. 1/15/02); 809 So.2d 1056, 1065, writ denied, 02-481 (La.3/14/03); 839 So.2d 26. A defendant’s character is not properly at issue unless he chooses to put it at issue. State v. Pollard, 98-1376 (La.App. 4 Cir. 2/9/00); 760 So.2d 362, 366.

Erroneous admission of other crimes evidence is subject to a harmless error analysis. Odenbaugh, 82 So.3d at 251. An error is harmless if the jury’s verdict actually rendered at trial was “surely unattributable to the error.” Id.

In this matter, the State had Sergeant Sislo and Detective Dalferes provide live testimony for the jury. Their testimonies explained in-depth the surveillance of and execution of the search warrant on 2031 Dumaine Street in New Orleans. Detective Dalferes testified that a gun, 20 small bags of powder cocaine, 23 pieces of crack cocaine, 12 individual bags of heroin, 22 bags of marijuana, two bags containing a white powdered substance used to cut cocaine in order to increase its yield, a pill bottle with about 44 tablets of alprazolam, two scales, and an open box of sandwich . bags were seized as a result of the execution of the warrant. In addition to the testimonies of Sergeant Sislo and Detective Dalferes, the State introduced physical evidence from the New Orleans case: namely, the gun, a plastic bag containing 12 bags of brown powder, a bag containing 23 pieces of rocklike substance, 22 individually wrapped bags of vegetable material, two bags of white powder, a pill bottle containing 44 pills of alprazolam, a digital weight scale, a weight max scale, and sandwich bags. All of that evidence from the IsNOPD case was admitted into evidence by the trial court and published for the jury.

After review of the record, I find that the gross amount of evidence admitted from the New Orleans case substantially outweighed any probative value it may have had in regard to the Jefferson Parish case, and it unfairly prejudiced Defendant at trial. That evidence had no independent relevance to the Jefferson Parish case. Rather, it was used to emphasize that Defendant’s character is bad, and Defendant did not place his character at issue during the trial. Thus, I find the trial court erred in allowing the evidence from the New Orleans case to be admitted into evidence.

Additionally, I find that the admission of the evidence from the NOPD ease was not a harmless error made by the trial court. At trial, Detective Layrisson testified that Defendant was stopped pursuant to a traffic stop, while driving Ms. Williams’ car. When presented with the consent form to search Ms. Williams’ apartment, Defendant declined to sign the form because he denied having any ownership to that residence. Lieutenant Meunier reiterated Defendant’s response that he could not give the consent to search the apartment because he had no connection with the apartment. Ms. Williams testified that Defendant did not live at her residence; Defendant did not have a key to her apartment and had no access to the apartment when she was not present; and the male clothing found in the apartment was not purchased by Defendant. When considering these facts and the entirety of the evidence presented to the jury, I cannot conclude that the jury verdict rendered was “surely unattributable” to the trial court’s error of admitting the significant and overwhelming amount of evidence from the New Orleans case.

Therefore, I find the trial court committed reversible error in allowing the evidence from the New Orleans case to be admitted at trial. For that reason, I Lwould vacate Defendant’s convictions and remand the matter to the trial court for a new trial.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . The white shards did not test positive for any type of narcotic.

      . This was defendant’s photo electronic identification card issued by the Transportation Safety Administration (TSA) to insure that employees who have access to secure areas of the nation’s transportation system pose no threat.

      . Defendant objected to the apartment key, which linked him to the New Orleans apartment and its contents, which objection was overruled and the key was admitted into evidence. Because the defendant made a contemporaneous objection to the apartment key, his objection was preserved. Therefore, only the discussion of the 404B hearing and waiver of objection thereto below apply to the key (State's Exhibit 30). Defendant also objected to heroin seized from his person (State’s Exhibit 27), which the trial judge sustained and excluded from evidence.

      . The trial court admitted the following evidence from the pending case in New Orleans recovered after execution of a search warrant, to which defendant affirmatively stated he did not object: (1) .40 caliber semiautomatic Glock, rounds and a magazine; (2) 12 individual bags of heroin; (3) crack and cocaine powder; (4) anosital; (5) 22 bags of marijuana; (6) an orange pill bottle containing 44 tablets of Alprazolam; (7) two scales; (8) open box of Good Sense sandwich bags; and (9) bag of syringes.

      . In Green, the trial judge failed to instruct the jury that the defendant’s prior convictions could only be considered for enhancement of sentence and not for determination' of guilt, without which the statute under which the defendant was prosecuted at the time was facially unconstitutional. Neither is true in this case, in which the trial judge did give the proper limiting instruction to the jury.