author: ROBERT A. CHAISSON, Judge.

text:
    STATE of Louisiana v. Dwayne WILLIAMS.
    No. 13-KA-170.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 18, 2013.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Gail D. Schlosser, Matthew R. Clauss, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
    Bruce G. Whittaker, Attorney at Law, New Orleans, Louisiana, for Defendant/Appellant.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, JUDE G. GRAVOIS, and ROBERT A. CHAISSON.
   ROBERT A. CHAISSON, Judge.

lain this appeal, defendant, Dwayne Williams, seeks review of his conviction for possession with intent to distribute cocaine. For the reasons that follow, we affirm defendant’s conviction and sentence.

PROCEDURAL HISTORY

On August 12, 2011, the Jefferson Parish District Attorney filed a bill of information charging defendant with possession with intent to distribute cocaine in violation of LSA-R.S. 40:967(A). At his arraignment, defendant pled not guilty. On October 4, 2012, the case proceeded to a bench trial during which the trial judge heard defendant’s motion for preliminary examination and motions to suppress evidence and statement. After considering the evidence presented, the trial judge denied defendant’s motions and found defendant guilty as charged. On October 26, 2012, the trial court denied defendant’s motion for new trial and thereafter sentenced defendant to twenty years in the Department of Corrections with credit for time served. Defendant now appeals.

UFACTS

In the afternoon hours of July 21, 2011, several police officers from the Jefferson Parish Sheriffs Office Narcotics Division went to execute a search warrant at a house on Fisk' Court in Marrero. When the officers arrived, they observed two vehicles, a white Buick with a Texas license plate and a red pickup truck, parked in the driveway of the house to be searched. As the officers, clothed in police gear, approached the residence, Sergeant Shane Klein observed defendant, who was positioned in the front passenger seat of the Buick, throw an amber-colored prescription pill bottle to the back seat. Upon seeing this, Sergeant Klein approached the vehicle and secured defendant while Officer Módica went to the driver’s side and secured the other occupant. From his vantage point outside the vehicle, Sergeant Klein observed that the object defendant discarded was a prescription bottle containing objects that were consistent with crack cocaine.

Detective Sean Cursain and his K-9 showed up shortly thereafter. A dog sniff was performed on both the exterior and interior of the vehicle, and the dog positively alerted to the presence of narcotics. After the positive alert by the dog, the officers retrieved the pill bottle from the back of the vehicle. A preliminary field test was performed on the substance, and it showed positive for the presence of cocaine.

Defendant was thereafter advised of his rights and signed a waiver of rights form indicating that he understood his rights, wished to waive those rights, and wanted to make a statement. Defendant gave a taped statement in which he admitted that the crack cocaine contained in the pill bottle was his.

In the meantime, the officers executed the search warrant on the house. During the course of the search, Detective James Shook discovered a red, white, |4and blue checkered shirt hanging in a closet. Inside the pocket of the shirt, the officer found an off-white rock-like object contained within a clear plastic bag. Based on his training and experience, Detective Shook immediately believed the object to be crack cocaine and retrieved the object from the shirt. In the closet directly above the shirt, the officer located a wallet that contained a TWIC card with defendant’s picture and name. In addition, the officer found “what looked like a bank bill” with defendant’s name and the Fisk Court address. As a further result of the search, the officers discovered and retrieved a bot-tie of inositol powder, a digital scale, and a hand mixer that had white specks consistent with cocaine on the attachments of the mixer.

Following the execution of the search warrant, defendant was informed about the additional narcotics that were found in a closet in the house. Defendant thereafter gave an oral statement and admitted ownership of the shirt and the narcotics found therein.

At trial, Marcelle Folse, an expert in the field of forensic analysis of controlled dangerous substances, testified that in connection with this case, she analyzed an amber prescription bottle containing numerous pieces of off-white material, a clear plastic bag holding an off-white material, and a mixer with two blades that had a white residue. Her examination revealed that these items contained cocaine.

In addition, Bonnie DuBourg, an expert in DNA identification, testified that she analyzed a swab from defendant and a swab from a clear plastic bag containing a white rock substance. She testified that a partial DNA profile obtained from the clear plastic bag was consistent with the DNA profile obtained from the reference buccal swab of defendant.

1 -JJENIAL OF MOTION TO SUPPRESS

On appeal, defendant challenges the trial court’s denial of his motion to suppress evidence. Defendant specifically argues that the search of the vehicle was beyond the scope of the warrant which only specified the residence.

A search warrant may issue only upon probable cause established to the satisfaction of the judge, by the affidavit of a credible person, reciting facts establishing the cause for issuance of the warrant. LSA-C.Cr.P. art. 162(A). A search warrant shall particularly describe the person or place to be searched, the person or things to be seized, and the lawful purpose or reason for the search or seizure. LSA-C.Cr.P. art. 162(C).

In the instant case, Detective Donald Clogher prepared the “Application for and Affidavit in Support of a Search and Seizure Warrant” based on information obtained from a confidential informant and a subsequent controlled buy between the confidential informant and a black male, identified as Alton Perry, who- returned to 2020 Fisk Court in Marrero after the controlled buy. Based on the information detailed in the application for search warrant, Detective Clogher requested that an order of search be issued for:

2020 Fisk Avenue in Marrero, Louisiana; located within the Parish of Jefferson and State of Louisiana, authorizing the search for controlled dangerous substance, more specifically crack cocaine; any instrumentalities employed in its use, packaging and distribution; any documentation regarding residency or associated with narcotic trafficking; and any assets, including U.S. Currency, which may be the proceeds of the narcotic trafficking, curtilage and any electronic communication devices, or electronic storage devices and all data stored within. [Emphasis in original.]

A search warrant was thereafter issued for the “aforesaid residence for the property specified,” which property was 2020 Fisk Avenue in Marrero, Louisiana. Defendant now contends that the search of the vehicle was outside the scope of the | (¡search warrant. In particular, defendant contends that the warrant only authorized the search of the residence and in no way referenced “the curtilage, or the grounds, or the premises, or the driveway, or any vehicle that happened to be there.” In contrast, the State contends that the search of the vehicle was valid pursuant to the warrant because it was parked in the driveway of the residence which was the target of the search and particularly described in the warrant.

Having reviewed . applicable jurisprudence, we find that defendant’s argument on this issue is without merit. This Court has held that a warrant authorizing the search of a particularly described premises permits the search of a vehicle located on the premises targeted for the search and subject to the authority of the warrant. The rationale behind this holding is that the vehicle is capable of concealing the sought-after contraband. State v. Washington, 11-716 (La.App. 5 Cir. 3/13/12), 90 So.3d 1157; State v. Carter, 10-973 (La.App. 5 Cir. 8/30/11), 75 So.3d 1, 5, writ denied, 11-2060 (La.2/10/12), 80 So.3d 469.

In State v. Washington, supra, a confidential informant provided information that a black male, who drove a red Monte Carlo, was distributing large quantities of cocaine from a particular residence in Westwego, 645 Emile Avenue. Following confirmation of this information and the completion of a controlled buy at this residence, the officers filed an application for and affidavit requesting a search warrant “for the residence and property including all vehicles and buildings located at 645 Emile Avenue, Westwego, Louisiana.” Based on this affidavit, a search warrant was issued, which stated: ‘You are hereby ordered to search forthwith the aforesaid premises for the property specified ...,” where the “property specified” is the “one story, single family dwelling, located at 645 Emile Avenue, Westwego, Louisiana.” On appeal, defendant argued that the trial court erred in failing to suppress the evidence. Specifically, he argued that the cocaine 17seized from the red Monte Carlo should have been suppressed because the scope of the search warrant did not encompass the vehicle. This Court disagreed with defendant’s argument. In Washington, supra, although the affidavit on which the warrant was based referred several times specifically to the Monte Carlo, the warrant itself did not refer to any vehicles. Nonetheless, this Court found that the search of defendant’s vehicle was valid pursuant to the warrant since it was parked in front of the residence which was the target of the search and which was particularly described in the warrant.

In State v. Smith, 02-1842 (La.9/20/02), 827 So.2d 1122, the Louisiana Supreme Court held that a vehicle located in the defendant’s driveway in an area behind a fence splitting the driveway of the defendant’s home was on the premises targeted for the search and thus was subject to the authority of the warrant.

We likewise find that the search of the white Buick and the subsequent seizure of the cocaine were valid pursuant to the warrant because it was parked in the driveway of the residence which was the target of the search and which was particularly described in the warrant. Thus, we find no error in the trial court’s denial of defendant’s motion to suppress the evidence seized from the vehicle.

Moreover, even without the cocaine seized from the Buick, the State presented sufficient evidence to prove defendant’s guilt. At trial, Detective Shook testified that during the search of the residence pursuant to a warrant, he found a red, white, and blue checkered shirt hanging in a closet. Inside the pocket of the shirt, the officer discovered an off-white rock-like object contained in a clear plastic bag. Subsequent testing of this object revealed that it contained cocaine, and that the gross weight of the cocaine was 4.74 grams. The officer also located a wallet directly above the checkered shirt in the closet. The wallet contained a |8picture identification of defendant as well as paperwork with defendant’s name and the Fisk Court address. Following the discovery of the narcotics in the closet, defendant gave an oral statement admitting that the cocaine was his.

During the search of the residence, the officers also recovered a bottle of inositol powder, a digital scale, and a hand mixer that had white specks consistent with cocaine on the attachments of the mixer. At trial, Sergeant Klein testified that based on his training and experience as a narcotics officer, the amount of cocaine, as well as the scales and the mixer, were indicative of distribution of narcotics. In addition, Detective Shook testified that the bottle of inositol, a cutting agent for cocaine, evidenced the intent to manufacture or distribute cocaine. Given this evidence presented by the State, the trial judge, as the trier of fact herein, could have reasonably concluded that defendant was guilty of possession with intent to distribute cocaine. Accordingly, even if the district court erred in denying the motion to suppress, the cocaine seized from the white Buick was not necessary for a finding of guilt, and any error would be harmless. See State v. Boyd, 94-641 (La.App. 5 Cir. 12/28/94), 649 So.2d 80, 83.

Based on the foregoing, we find no merit to the arguments raised by defendant in this assigned error.

ERROR PATENT REVIEW

We have also reviewed the record for errors patent in accordance with LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990).

Our review reveals that the trial court failed to properly advise defendant of the two-year prescriptive period for filing post-conviction relief during the sentencing proceedings. LSA-C.Cr.P. art. 930.8 provides “[n]o application for post-conviction relief, including applications which seek an out-of-time appeal, |9shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final.”

The October 26, 2012 minute entry reflects that the trial court advised defendant that he had “two (2) years after judgement of conviction and sentence has become final to seek post-conviction relief.” However, the transcript from the proceedings shows that the trial court informed defendant that he had “two years from the date the sentence becomes final to file post-conviction relief application.”

This Court has held that the failure to advise a defendant that the prescriptive period runs from the time his conviction and sentence become final renders the advisement incomplete. State v. Milton, 09-866 (La.App. 5 Cir. 3/9/10), 40 So.3d 129, 132. In accordance with this Court’s routine pi'actice, we advise defendant, 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 thé provisions of LSA-C.Cr.P. arts. 914 or 922. See State v. Brooks, 12-226 (La.App. 5 Cir. 10/30/12), 103 So.3d 608, writ denied, 12-2478 (La.4/19/13), 111 So.3d 1030; State v. Taylor, 12-25 (La.App. 5 Cir. 6/28/12), 97 So.3d 522, 538; and State v. Davenport, 08-463 (La.App. 5 Cir. 11/25/08), 2 So.3d 445, 451, writ denied, 09-0158 (La.10/16/09), 19 So.3d 473.

Other than this notification error, our review of the record reveals no further errors that require corrective action. Accordingly, for the reasons set forth herein, we affirm defendant’s conviction and sentence.

AFFIRMED.

      . There are inconsistencies in the record with regard to whether the residence listed in the warrant is on Fisk Street, Avenue, or Court. Although the warrant references Fisk Avenue, the proper designation for the residence is Fisk Court.

      . At trial. Officer Shook testified that inositol powder is a common mixing agent for cocaine.

      . Defendant’s mother, Mary Williams, lived at the Fisk Court residence. Alton Perry, another son of Mary Williams, was the target of the search warrant and was at the residence when the police arrived to execute the warrant.

      . In his appellate brief, defendant also argues that the search of the vehicle was not authorized by any of the exceptions to the warrant requirement. However, we find it unnecessary to address this argument in light of our finding that the search of the vehicle fell within the scope of the warrant.


source: Caselaw Access Project

author: EDWIN A. LOMBARD, Judge. BAGNERIS, J.

license: Public Domain

text:
    STATE of Louisiana v. Darrin R. HILL.

      No. 2013-K-0861.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 18, 2013.

      James D. “Buddy” Caldwell, Louisiana Attorney General, Colin Clark, Assistant Attorney General, Baton Rouge, LA, for the State of Louisiana.
    Kristin Wenstrom, Innocence Project New Orleans, New Orleans, Louisiana, for Defendant/Darrin R. Hill.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

|, On application for supervisory writ, the State seeks relief from the trial court judgment of May 22, 2013, denying its motion to dismiss the petition for wrongful conviction compensation filed on behalf of Darren R. Hill. After review of the record in light of the applicable law and oral argument of the parties, we affirm the judgment of the district court and deny the State’s writ application.

Relevant Facts and Procedural History

In July 1992, Mr. Hill (who is a diagnosed schizophrenic) was charged with aggravated rape and kidnapping. Shortly thereafter, he surrendered himself and remained in State custody until he was found competent to stand trial in February 1999. On February 11, 1999, Mr. Hill was found not guilty by reason of insanity and committed to East Feliciana Forensic Facility. In March 2012, after being incarcerated for almost twenty years, he was exonerated by DNA evidence of the crimes for which he was charged. On April 27, 2012, his judgment of commitment was vacated and he was released.

|2In accordance with La.Rev.Stat. 15:572.8, Mr. Hill filed a petition for compensation. In response, the State moved to dismiss his petition, arguing that he was not entitled to compensation under the statute because he was never “convicted” or “incarcerated.” In denying the State’s motion, the trial judge noted the constitutional issue underlying the State’s argument, pointing out that twenty years in custody, whether in the penitentiary or the state hospital, was the “same thing” because “twenty years of his life was taken away from him for an act that both the State and the Defense joined in saying that he is not the guy who committed the rape.” The State disputes this decision, arguing that the statute must be strictly interpreted to deny Mr. Hill compensation.

Applicable Law

La.Rev.Stat. 15:572.8(A) provides in pertinent part that a petitioner is entitled to compensation if he has served “a sentence of imprisonment under the laws of this state for a crime for which he was convicted” and (1) the conviction is reversed or vacated; and (2) “[t]he petitioner has proven by clear and convincing scientific or non-scientific evidence that he is factually innocent of the crime for which he was convicted.”

“Courts must construe statutes to preserve their constitutionality, when it is reasonable to do so.” State v. Fleury, 01-0871, p. 5 (La.10/16/2001), 799 So.2d 468, 472 .(citation omitted). “No person shall be denied the equal protection of the laws,” La. Const, art. I, § 3, and this guarantee “requires that state laws affect alike all persons and interests similarly situated.” Fleury, supra (citing State v. Petrovich, 396 So.2d 1318, 1322 (La.1981)). “The legislature has great latitude |ain making laws and in creating classifications under those laws, so long as those classifications can withstand constitutional muster.” Id. “[T]he paramount consideration in interpreting a statute is ascertaining the legislature’s intent and the reasons that prompted the legislature to enact the law.” Theriot v. Midland Risk Insurance Co., 95-2895, p. 3 (La.5/20/97), 694 So.2d 184, 186 (citation omitted). When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.” La. Civ. Code art. 9 (emphasis added). However, once the parameters of Article 9 are breached, the statute at issue “must be interpreted as having the meaning that best conforms to the purpose of the law. La. Civ.Code art. 10. This, according to the accompanying commentary, “expresses the principle of teleological interpretation.” La Civ.Code art. 10, Revision Comments-1987, § (b).

Discussion

It is undisputed that Mr. Hill was confined by the State for almost twenty years based on charges for which, through DNA analysis, he was proven factually innocent. Moreover, unlike a person wrongfully convicted but serving a finite sentence, Mr. Hill’s inability to acknowledge an act (that he did not commit) was a determining factor in his continued confinement as a danger to society, thus creating a nightmare scenario of indefinite incarceration. Nonetheless, the State (as represented by the Louisiana Attorney General’s office) maintains that La.Rev. Stat. 15:572.8 was purposely written by the state legislature to exclude Mr. Hill from compensation and, accordingly, argues that the language of the statute must be strictly construed.

|4The State’s argument, however, is contrary to the norms of statutory construction wherein statutes are interpreted to preserve their constitutionality, as well as the Louisiana Civil Code provision restricting interpretation of a statute to its “clear and unambiguous language” only where such interpretation “does not lead to absurd consequences.” La. Civ.Code art. 9. Clearly, as discerned by the trial judge, persons incarcerated (whether in a prison by conviction or state hospital by a finding of not guilty by reason of insanity) on the basis of a crime they did not commit are so similarly situated that to interpret this statute to exclude Mr. Hill from compensation for the grievous loss of almost twenty years of life opportunities, not only leads to “absurd consequences,” but undermines the constitutional validity of the statute.

Conclusion

We affirm the judgment of the trial court, deny the State’s writ application, and remand the matter to the trial court for further proceedings.

JUDGEMENT AFFIRMED; WRIT DENIED; REMANDED.

BAGNERIS, J.

concurs with reasons.

It The issue presented in this matter is res nova, and I find that both parties provide reasonable and justifiable interpretations of the statute. In Louisiana, legislation is superior to any other source of law (La. C.C. article 1, Comment), and “[ljegislation is a solemn expression of legislative will.” La. C.C. article 2. The State argues that because La. R.S. 15:572.8 does not include any references to insanity acquittees and commitment that the Legislature did not intend to provide insanity acquittees with a right to compensation under the statute. The defendant presents an equally compelling argument that fairness and equal protection requires a liberal interpretation of the statute and that while the statute does not specifically reference insanity acquittees, it provides a right of action for all persons who are found factually innocent of the crime he or she was alleged to have committed. Considering the fact that defendant was committed to the East Feliciana Forensic Facility for almost twenty years, and that, his judgment of commitment was vacated immediately upon being exonerated by DNA evidence of the crimes for which he was charged, I find that defendant’s right to equal protection of the law entitles him to compensation under the statute. Accordingly, I respectfully concur in the denial of the State’s writ application.

      . The State also seeks review of the trial court denial of its motion to bifurcate consideration of the State's motion to dismiss for no cause of action from a hearing on the merits of Mr. Hill's petition for compensation. However, the trial court effectively bifurcated the proceedings when it stayed the proceedings, allowing the State to seek review of the denial of the motion to dismiss before proceeding to a decision on the merits. Therefore, this issue is moot.

      . At the outset of his remarks, the trial judge observed that "there is a Constitutional question here.”


author: MADELEINE M. LANDRIEU, Judge.

text:
    STATE of Louisiana v. Edward AUGUSTINE.
    No. 2012-KA-1759.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 18, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, Matthew R. Payne, Assistant District Attorney, Donna Andrieu, Assistant District Attorney, Parish of Orleans, New Orleans, LA, for Appellee/State of Louisiana.
    John T. Fuller, IV, John T. Fuller & Associates, L.L.C., New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge MADELEINE M. LANDRIEU, Judge JOY COSSICH LOBRANÓ).
   MADELEINE M. LANDRIEU, Judge.

| Edward Augustine was charged by bill of information with one count of manslaughter, a violation of Louisiana Revised Statute 14:31; one count of possession with intent to distribute heroin, a violation of Louisiana Revised Statute 40:966(A)(1); and one count of unauthorized use of a vehicle, a violation of Louisiana Revised Statute 14:68.4. Following a jury trial, Mr. Augustine was convicted on all three counts.

The trial court sentenced Mr. Augustine to forty years at hard labor for the manslaughter count, forty years at hard labor for the possession with intent to distribute heroin count, and ten years at hard labor for the unauthorized use of a motor vehicle count. The court ordered that the sentences were to run concurrently and Mr. Augustine was given credit for time served. Mr. Augustine then pled guilty to the multiple offender bill of information filed by the State. The trial court vacated the original sentences and issued new sentences of fifty years at hard labor each for the manslaughter and possession with intent to distribute heroin counts, and twenty years at hard labor for the unauthorized use of a motor vehicle count.

[ 2Mr. Augustine filed the instant appeal alleging two assignments of error through counsel: that the trial court erred in denying his motion for mistrial based on the trial court allowing testimony regarding a “prior bad act,” and that the trial court erred in denying his motion for mistrial based on the trial court allowing testimony regarding his brother’s prior bad acts. Mr. Augustine also filed a pro se brief alleging two additional assignments of error: that his inability to thoroughly cross-examine one of the State’s witnesses violated his constitutional right of confrontation, and that the trial court erred in allowing the jury to have written materials during deliberations.

For the reasons that follow, we affirm Mr. Augustine’s convictions and sentences.

FACTS

Just before midnight on January 7, 2011, Officer Justin Ferris was driving west on S. Claiborne Avenue when he observed a silver Hyundai Sonata turn right on a red light at the corner of S. Claiborne and S. Carrollton Avenues. He was patrolling alone. Traffic at that corner is allowed to turn right on a green arrow only. Officer Ferris decided to stop the Sonata for the traffic violation.

Officer Ferris turned his lights and siren on, but the Sonata did not stop. He then pulled alongside the Sonata and saw the driver, Mr. Augustine, discharging a large amount of a powdered substance. Mr. Augustine then turned right onto Belfast Street. Believing Mr. Augustine had committed a traffic violation and a narcotics violation, Officer Ferris called in and received permission to pursue Mr. Augustine’s car. The pursuit lasted three to four minutes and reached speeds of approximately seventy miles per hour through residential neighborhoods.

| ¡¡Officer Ferris testified that he terminated the pursuit while crossing the intersection of Milan Street and S. Claiborne Avenue, after realizing he was going the wrong way on a one-way street. The chase ended at the corner of Milan and Freret Streets, when Mr. Augustine collided with a utility pole and another car. Mr. Augustine fled the scene, but Officer Ferris chased him on foot and managed to capture Mr. Augustine using a Taser as he tried to jump a fence in an unlit alley next to a house further down Milan Street, towards the river.

After apprehending Mr. Augustine, Officer Ferris returned with Mr. Augustine to the scene of the accident. It was then that Officer Ferris realized that Mr. Augustine had not only struck a utility pole, but had also struck another vehicle, killing a passenger in that vehicle, Ms. Mariah Wood. Ms. Wood was a freshman in college and home for the Christmas holidays when she was killed.

Mr. Augustine was arrested and a search incident to his arrest produced eight bags of heroin in his right front pocket. Other contraband was discovered in the possession of two men who were passengers in Mr. Augustine’s vehicle. Thereafter, pursuant to a search at Central Lockup, Orleans Parish Sheriffs Office Deputy Ronald Price discovered $1,400 in cash in Mr. Augustine’s pocket.

Detective Brandon Singleton and Sergeant Mark Amos responded to Officer Ferris’ initial call for assistance. They arrived at the scene of the crash and found two occupants in Mr. Augustine’s car— Lavell Stovall and Gerard Martin. Both men were in a dazed state from the accident. As Det. Singleton helped remove Mr. Stovall from the Sonata, he discovered that Mr. Stovall was holding a clear plastic bag containing what appeared to be a “softball-size clear bag with a lot of foils ... consistent with heroin.” Detective Jacob Lundy also responded to Officer Ferris’ call for assistance. He and another officer transported Mr. Stovall and Mr. Martin |4to the hospital. There, a doctor who treated Mr. Martin gave Det. Lundy a plastic package containing what appeared to be heroin that had been recovered from Mr. Martin.

During a subsequent investigation, Officer Ferris learned that the Sonata Mr. Augustine was driving had been stolen from his girlfriend’s mother, Patricia Fobbs. According to testimony at trial, Ms. Fobbs woke in the middle of the night and noticed her car keys and car were missing. Her daughter, Brandi, told her that Mr. Augustine had been there earlier. Although she was reluctant to get Mr. Augustine in trouble as he and Brandi had a child together, Ms. Fobbs called the police to report that her car was missing. Later that evening, Ms. Fobbs received a call about the accident. At trial, Ms. Fobbs testified that she was the only authorized driver of the Sonata but admitted to allowing Brandi to drive it. She denied, however, ever giving Mr. Augustine permission to drive the car.

ERRORS PATENT

The record reveals one error patent. The trial court failed to abide by sentencing delays found in Louisiana Code of Criminal Procedure article 873 when it issued an original sentence immediately after denying Mr. Augustine’s Motion for New Trial and for Post-Verdict Judgment of Acquittal.

In addressing a failure to abide by the sentencing delay mandated by article 873, the Louisiana Supreme Court has stated that when there has been no objection raised regarding the sentence imposed and no showing or suggestion that the defendant was prejudiced by the failure to observe the delay, judicial efficiency dictates that this court need not follow the useless formality of remanding for reimpo-sition of a sentence which has not been challenged. State v. White, 404 So.2d 1202, 1204 (La.1981). Accordingly, this Court has held that where a [¡¡defendant does not challenge his sentence on appeal, any failure to abide by sentencing delays pursuant to Louisiana Code of Criminal Procedure article 873 is harmless error. State v. Collins, 584 So.2d 356 (La.App. 4th Cir.1991). Therefore, the trial court’s error is harmless and merits no relief.

ASSIGNMENTS OF ERROR

Mr. Augustine raises four assignments of error. The first two assignments are asserted by counsel for Mr. Augustine. The third and fourth assignments are raised by Mr. Augustine pro se.

1. The trial court erred in denying Mr. Augustine’s request for a mistrial after a witness testified that Mr. Augustine was previously wanted for murder.
2. The trial court erred in allowing a prejudicial line of questioning concerning alleged prior bad acts of Mr. Augustine’s brother.
3. The trial court violated Mr. Augustine’s constitutional right to confront witnesses by limiting his inability to thoroughly cross-examine one of the State’s witnesses.
4. The trial court erred in allowing the jury to have written materials during deliberations.

DISCUSSION

PRIOR BAD ACTS OF DEFENDANT

In his first assignment of error, Mr. Augustine asserts that the trial court erred in denying his motion for a mistrial following the cross-examination of a police officer, Sgt. Michael Sam, about a 2007 incident in which Sgt. Sam was involved in a chase with Mr. Augustine. Mr. Augustine did not object to any of Sgt. Sam’s testimony on direct examination. His assignment of error relates to a comment by Sgt. Sam in response to a question asked of him by defense counsel.

|ñSgt. Sam was called by the State. He testified that he first came in contact with Mr. Augustine back on December 18, 2007 when he was on patrol in an unmarked vehicle with Louisiana National Guardsman Mark Aucoin. Sgt. Sam and Mr. Augustine were traveling in opposite directions crossing over the Palmetto Street canal when Sgt. Sam noticed that neither Mr. Augustine nor his passenger was wearing a seatbelt. Sgt. Sam decided to stop Mr. Augustine’s vehicle and turned his vehicle around to do so. However, by the time he turned around, Sgt. Sam noticed Mr. Augustine’s car was “getting rather small rather quickly,” indicating increased speed. As Sgt. Sam pursued Mr. Augustine, Mr. Augustine quickly turned into a driveway at 9120 Palmetto Street and jumped out of the car while it'was still moving. His vehicle crashed into a shed at that address.

Sgt. Sam stopped his car in front of the driveway and he and Mr. Aucoin began chasing Mr. Augustine on foot. Mr. Augustine, however, hopped a fence and eluded the officers. When Sgt. Sam returned to his car, a white Ford Expedition was quickly backing out of the driveway of the Palmetto Street house. Sgt. Sam recognized the passenger in that vehicle to be the same passenger who had been travel-ling with Mr. Augustine. Sgt. Sam stopped the Expedition and detained both the driver and the passenger.

Later that same day, Sgt. Sam identified Mr. Augustine in a photographic lineup. He testified that before this incident he did not know Mr. Augustine but that he saw his face as he came upon Mr. Augustine on the Palmetto Street crossover. Sgt. Sam further testified that. Mr. Augustine was never arrested or charged with any crime arising from that incident.

On cross-examination, the following colloquy took place between defense counsel and Sgt. Sam:

|7Q: You’re testifying about something that has nothing to do with this case that we’re here for today, right?
A: No, I’m here speaking about, ah, the incident when the defendant ran from me inside of his vehicle and crashed into 9120 Palmetto.
Q: An incident he wasn’t charged for, right?
A: That is correct. Would you like for me to explain that?
Q: Explain why he wasn’t charged? Why don’t you explain to us why he wasn’t arrested first?
A: Okay. Ah, the reason why the defendant wasn’t arrested was because after he was identified via photographic lineup, I(sic) was found- that he was wanted for murder, and after finding out that he was wanted for murder—

Counsel for Mr. Augustine immediately objected and moved for a mistrial which was denied. In this assignment of error, Mr. Augustine alleges that Sgt. Sam’s reference to him being wanted on a murder charge mandated a mistrial pursuant to Louisiana Code of Criminal Procedure articles 770, 771 and Louisiana Code of Evidence article 404(B) and that it was error for the trial court not to grant one.

Code of Criminal Procedure article 770(2) provides that a trial court shall order a mistrial when a “judge, district attorney or court official” makes a remark or comment within the hearing of the jury referring directly or indirectly to “another crime committed or alleged to have been committed by the defendant as to which the evidence is not admissible.” In the event such a comment is made, an admonition by the court directing the jury to disregard the comment is insufficient to prevent a mistrial. La.C.Cr. P. art 770.

It is well-established that a police officer is not a “court official” for purposes of article 770. State v. Jones, 2007-0533, p. 4 (La.App. 4 Cir. 12/28/07), 975 So.2d 73, 77; State v. Hegwood, 345 So.2d 1179, 1184 (La.1977); State v. Hardy, 344 So.2d 1018, 1021 (La.1977). However, it is worth noting that the year following Hegwood and Hardy, the Louisiana Supreme Court, in State v. Schwartz, 354 So.2d 1332 (La.1978), questioned the wisdom of “our recent statements that a police officer witness is not a ‘court official’ whose reference to inadmissible other crimes evidence mandates a mistrial under La.C.Cr.P. art 770.” The Court in that case noted that a police officer’s gratuitous implication of the defendant in other crimes and the officer’s recurring pattern of unresponsive answers in a number of cases would not be excused as inadvertent, unplanned or unexpected by a prosecutor. Id. at 1333, n. 2.

In the instant case, there is no allegation that Sgt. Sam was engaged in a pattern of unresponsive answers and no evidence that the prosecution intended to elicit the “other crimes” statement from Sgt. Sam. The statement of concern to the defense was a direct response by Sgt. Sam to a question posed to him by counsel for the defendant. The trial court did not err in denying the defense motion for a mistrial pursuant to Code of Criminal Procedure article 770.

Code of Criminal Procedure article 771 provides that, in circumstances where mistrial is not required, an admonition to the jury to disregard a remark or comment made by a witness within the hearing of the jury might be warranted. Such an admonition, “upon the request of the defendant or the state,” is warranted when the remark by the witness is “irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury.” La.C.Cr.P. art. 771. Article 771 also provides the court with an option of granting a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.

In State v. Kimble, 375 So.2d 924 (La.1979), the Supreme Court held that “the state cannot be charged with testimony elicited by defense counsel implying that defendant had previously committed other crimes and that defendant cannot claim reversible error on the basis of that evidence which is elicited.” This holding was reiterated by the Court in State v. Tribbet, 415 So.2d 182, 184 (La.1982). In Tribbet, the defendant moved for a mistrial but did not request an admonition. Thus, the Court held that any failure by the trial judge in not issuing an admonition was not reversible error. Id. at 185.

In the instant case, the complained of comment was elicited by counsel for the defendant and was offered by the witness in direct response to a question asked of him. Further, counsel for the defendant did not request an admonition either contemporaneously with the statement made by Sgt. Sam or later, when the court conducted a hearing on the defense motion for a mistrial outside of the presence of the jury. There being no request for an admonition, this assignment of error is without merit.

Louisiana Code of Evidence article 404(B)(1) provides that “evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith.” Testimony of this nature may only be used by the State for specified purposes after the requisite notice to the defendant of the State’s intent to introduce this evidence. Id. As this testimony was elicited by the defense counsel, this article is not applicable.

We find no error on the part of the trial court in its denial of Mr. Augustine’s motion for a mistrial.

J¿¡¡PRIOR BAD ACTS OF MR. AUGUSTINE’S BROTHER

In his second assignment of error, Mr. Augustine contends that the trial court erred by not granting his motion for mistrial based upon the following question to Sgt. Sam by the assistant district attorney:

Q: Just to flush [sic] out, Sergeant. So, um, the homicide that he was wanted on, um, when you chased him in '07, you don’t know if that’s the case where his brother intimidated the witness?

The trial court denied defense counsel’s motion for a mistrial, but admonished the jury to disregard the information in the assistant district attorney’s question.

Mr. Augustine asserts that the trial court erred by not granting a mistrial pursuant to Louisiana Code of Criminal Procedure article 771 due to the prosecutor’s reference to Mr. Augustine’s brother’s bad acts. He contends that a mistrial is warranted as a remark made by the district attorney that is “irrelevant or immaterial and of such a nature that it might create prejudice against the defendant” and does not fall within the scope of article 770(2) (reference to another crime committed by the defendant). La.C.Cr.P. art. 771(1).

Where the trial court determines that admonishment is insufficient to assure the defendant a fair trial, the trial court “may” grant a mistrial. La.C.Cr.P. art. 771. Mistrial is a drastic remedy that is authorized only where substantial prejudice will otherwise result to the defendant. State v. Ruffin, 2011-0135, p. 16 (La.App. 4 Cir. 12/21/11), 82 So.3d 497, 509. A trial court’s determination of whether to grant a mistrial should not be disturbed absent a clear abuse of discretion. Id.

In this case, the trial court admonished the jury not to consider the information asked by the assistant district attorney about Mr. Augustine’s brother. InThe trial court did not abuse its discretion in admonishing the jury in lieu of the drastic remedy of granting a mistrial. There is no merit to this assignment of error.

RIGHT TO CONFRONT WITNESSES

Mr. Augustine asserts that Off. Ferris was fired from the N.O.P.D. for lying to investigators regarding his pursuit of Mr. Augustine’s vehicle. He contends that he had a right to admit into evidence Off. Ferris’ disciplinary record and the right to cross-examine Off. Ferris on the circumstances surrounding his departure from the police department. Having been denied both opportunities, Mr. Augustine contends that his right of confrontation afforded to him by the Sixth Amendment to the United States Constitution and Article I, § 16 of the Louisiana Constitution was violated. State v. Jackson, 03-883 (La.App. 5 Cir. 4/27/04), 880 So.2d 841, 852, writ denied, 04-1399 (La.11/8/04), 885 So.2d 1118.

However, there is no support in the record for Mr. Augustine’s allegations. The only references in the record supporting .Mr. Augustine’s assertions include a May 17⅜ 2012 minute entry stating, “Motion for defense not to introduce PIB report at trial. This matter is held open.” The docket master contains two other notations, “The Clerk’s office received ... Motion in limine to exclude questions and extrinsic evidence pertaining to witness’s particular acts, vices, or courses of conduct which have not resulted in criminal convictions” and “Motion for defense not to introduce PIB report at trial. This matter held open.” The record before us does not contain a copy of this motion in limine, does not contain a copy of the PIB report in question, and does not reflect a ruling by the trial court on the motion. Additionally, the transcript does not contain any questions by the State or the defense to Officer Ferris about the circumstances of his departure from the police department.

| ^Accordingly, the record on appeal is insufficient to address this issue. Mr. Augustine has an adequate remedy in post-conviction proceedings. See La.C.Cr.P. arts. 930 (allowing evidentiary hearing) and 930.3 (grounds for relief, including a constitutional violation).

WRITTEN MATERIALS ALLOWED IN JURY ROOM

In his last assignment of error, Mr. Augustine asserts that the trial court erred in allowing the jury to review transcripts of recorded conversations in the jury room in violation of Louisiana Code of Criminal Procedure article 793. This article provides, in pertinent part, that a juror shall not have access to any written evidence. It further provides that in response to a request by a juror, the trial court has the discretion to send evidence to the jury when a physical examination of it is required to enable the jury to arrive at a verdict.

The record reflects that during deliberations the jury asked to hear the recordings of calls made by Mr. Augustine from jail while he was incarcerated prior to trial. These recordings were played for the jury during trial when Mr. Don Hancock, a telephone supervisor at the Orleans Parish Sheriffs ' Office, was called to the stand. He testified that he oversees operations of all telecommunications systems, including two inmate phone systems. After authenticating the recordings and laying the foundation for their admissibility, the State played recordings of three conversations Mr. Augustine had on the morning of January 8, 2011. The State also introduced transcripts of the first two conversations. One transcript was of a conversation between Mr. Augustine and his girlfriend, Brandi Fobbs. During this conversation, Mr. Augustine stated that he had “dope” in the car and that he was trying to throw it out of the car window, but his passengers did not want him to.

[ isThe record reflects that defense counsel objected to the admissibility of the transcripts based upon the fact that Mr. Hancock had not himself transcribed the statements. The court overruled this objection. During deliberations, when the jury asked for the recordings of the conversations, the trial court specifically asked defense counsel, “Any objection to them having the transcript with it?” Defense counsel replied, “Subject to the previous objection. Remember, I objected?” Accordingly, when the trial court asked if there was any objection to letting the jury see the transcripts during deliberation, the only objection submitted was a renewed objection to the transcripts’ admissibility, not one based on Louisiana Code of Criminal Procedure article 793.

Louisiana Code of Criminal Procedure article 841 provides that an error cannot be availed of after verdict unless it was objected to at the time of the occurrence. Accordingly, this issue has not been preserved for review.

CONCLUSION

For the foregoing reasons, we affirm Mr. Augustine’s convictions and sentences.

AFFIRMED

      . In State v. Shaw, 2006-2467 (La.11/27/07), 969 So.2d 1233, the Louisiana Supreme Court overruled it previous decisions in State ex rel. Porter v. Butler, 573 So.2d 1106 (La.1991) and State v. Sherer, 411 So.2d 1050 (La.1982) and held that "[tjhere is no statutory bar to applying the habitual offender law in sentencing for more than one conviction obtained on the same date.” Shaw at 1245. The U.S. Supreme Court denied Mr. Shaw’s writ of habeas corpus in Shaw v. Warden, Louisiana State Penitentiary, 10-CV-0132, 2013 WL 3816486 (W.D.La. July 22, 2013).


author: SANDRA CABRINA JENKINS, Judge.

text:
    GULF COAST BANK AND TRUST COMPANY v. Corey Chris WARREN.
    No. 2012-CA-1570.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 18, 2013.

      Wayne Anthony Maiorana, Jr., Newman Mathis Brady & Spedale, APLC, Metairie, LA, for Plaintiff/Appellee.
    Patrick D. Breeden, P. Michael Breeden, The Breeden Law Firm, L.L.C., New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge ROSEMARY LEDET, Judge SANDRA CABRINA JENKINS).
   SANDRA CABRINA JENKINS, Judge.

11 Corey C. Warren appeals the trial court judgment maintaining the peremptory exception of no cause of action, filed by Gulf Coast Bank and Trust Co., and dismissing Warren’s request for preliminary and/or permanent injunction and his re-conventional demand. In January, 2011, the plaintiff, Gulf Coast Bank and Trust Co. (“GCB”), filed a petition for executory process, seeking to foreclose on property mortgaged by the defendant, Corey C. Warren (“Warren”). GCB attempted service on Warren through the Orleans Parish Sheriff and an appointed Special Deputy, but service could not be made on Warren. In October, 2011, an appointed curator sent certified letters to the addresses on record for Warren and placed a notice in The Times-Picayune newspaper, but Warren did not respond to these notices. Warren’s properties were auctioned and sold at the sheriffs sale on December 15, 2011. Warren filed a re-conventional demand for damages and request for temporary restraining order and/or annulment of sheriff sale and/or preliminary injunction and/or permanent injunction and for the return of property. GCB filed a peremptory exception of no cause of action to Warren’s reconventional demand. After a hearing on the exception and the preliminary injunction, the trial court ruled to maintain GCB’s exception of no cause of action, [2denied Warren’s request for preliminary injunction, and dismissed Warren’s remaining claims with prejudice. Warren filed a suspensive appeal from that trial court judgment. For the reasons that follow, we convert Warren’s suspensive appeal to a devolutive appeal and affirm the trial court’s judgment of August 3, 2012.

FACTUAL AND PROCEDURAL HISTORY

In 2008 and 2009, Warren executed two promissory notes in favor of GCB for $230,000 and $41,514.31, respectively. Warren secured payment of the notes with three collateral mortgage notes, mortgaging immovable property he owned at 5520 Marshall Foch Street and 1450 Tita Street, in Orleans Parish, and 216 James Court, in Jefferson Parish. In each of the collateral mortgages, Warren confessed judgment upon the collateral mortgage notes in favor of GCB and consented to pay on the notes in accordance with the stated terms and conditions, or else the mortgaged property could be seized and sold under executory process to satisfy the debt.

On January 19, 2011, GCB filed a petition for executory process, alleging that Warren had failed to make payments on both promissory notes and that demand for payment had been unanswered by Warren. The trial court issued an order of executory process and writs of seizure and sale for each of Warren’s three mortgaged properties. On March 1, 2011, GCB sent a request to the Orleans Parish Sheriff to serve Warren at his address at 5520 Marshall Foch Street, with the notice of the seizure and sale. The sheriff returned the notice unserved on March 31, 2011.

On October 10, 2011, GCB filed a motion to appoint a curator ad hoc, alleging that numerous unsuccessful attempts had been made to serve Warren with | sthe notice of seizure and sale, including by an appointed special process server. On October 25, 2011, the appointed curator placed an advertisement in The Times-Picayune newspaper and mailed a certified letter to Warren at 5520 Marshall Foch Street. The curator received no response to the advertisement, and the letter was returned as unclaimed on December 4, 2011. On December 14, 2011, the curator mailed a certified letter to Warren at 2001 N. Village Green in Jefferson Parish, that was delivered and signed by Taskara Warren. The curator filed a note of evidence of his search and attempts to notify Warren on January 24, 2012.

Notice of the sheriffs sale was advertised in two local newspapers on November 14, 2011. On December 15, 2011, Warren’s properties at 5520 Marshall Foch Street and 1450 Tita Street were sold at the Orleans Parish Sheriffs sale to GCB, who was the highest bidder.

On July 20, 2012, Warren filed a recon-ventional demand to GCB’s petition for executory process, seeking a preliminary injunction and/or annulment of the sheriffs sale, return of the property, and damages. Warren argued that his due process rights were violated because the curator did not file his note of evidence with the court prior to the sheriffs sale and that lack of evidentiary proof constituted a fundamental defect in the executory process. Warren also argued that the executory process under Louisiana law was unconstitutional, because it did not require the creditor to produce authentic evidence of the debtor’s default and the creditor’s right to use executory process. Based on his claim that the executory process used was unconstitutional and invalid, Warren requested a temporary restraining order be issued and that he be granted a preliminary and/or permanent | ¿injunction to enjoin GCB from proceeding any further with the executory process. Warren also sought the annulment of the sheriffs sale and damages for the seizure and sale.

GCB filed a peremptory exception of no cause of action, arguing that Warren’s re-conventional demand did not assert any cause of action upon which relief could be granted and that Warren was not entitled to injunctive relief as a matter of law.

The trial court heard arguments on the exception of no cause of action on August 1, 2012, the date set for the preliminary injunction hearing. At the conclusion of the hearing, the trial court ruled to maintain GCB’s exception of no cause of action and dismiss all of Warren’s claims with prejudice.

Warren filed a suspensive appeal on August 17, 2012, which was granted by the trial court. GCB filed a motion and supplemental motion in opposition to Warren’s motion for suspensive appeal, arguing that no suspensive appeal can be taken from a judgment denying a preliminary injunction. The trial court then reversed itself and denied Warren’s motion for suspensive appeal, issuing written reasons for judgment on August 22, 2012. GCB then moved this court to dismiss Warren’s appeal. Upon consideration of GCB’s motion to dismiss and Warren’s opposition to the motion to dismiss, we denied the motion to dismiss and the parties were allowed to proceed in the appeal to this court. We now address the jurisdictional issue before addressing the merits of the appeal.

IsDISCUSSION

Motion to Dismiss Suspensive Appeal

The jurisprudence, which the trial court correctly cites in its written reasons for judgment dismissing the appeal, reveals that a suspensive appeal from a denial of a preliminary injunction is inappropriate since there is no injunctive order to suspend. Acme Mortg. Co., Inc. v. Cross, 464 So.2d 945, 946 (La.App. 4th Cir.1985) (citing Hibernia Nat’l Bank of New Orleans v. Mary, 167 So.2d 200 (La.App. 4th Cir.1964), writ denied 246 La. 876, 167 So.2d 826 (La.1964)). A suspen-sive appeal can be taken, in an executory proceeding, within fifteen days from the issuance of a writ of seizure and sale to suspend the execution of such writ during the pendency of the appeal. La. C.C.P. art. 2642. “On the other hand, if a defendant chooses to seek injunctive relief and the Trial Court denies it, there is no right to a suspensive appeal, La. C.C.P. art. 3612-” Acme, 464 So.2d at 946. In this case however, the trial court was divested of its jurisdiction at the moment it signed the order granting the appeal to Warren on August 17, 2012, and the trial court could not then dismiss the appeal by its judgment on August 22, 2012. See La. C.C.P. art.2088.

The First Circuit discussed this jurisdictional issue thoroughly in Clement v. Graves, 04-1831, pp. 5-10 (La.App. 1 Cir. 9/28/05), 924 So.2d 196, 200-203. In that case, the First Circuit noted that the trial court had originally granted defendant a suspensive appeal, later ordered defendant to post the bond for the appeal, but then, in an undated order, dismissed the suspen-sive appeal and awarded plaintiff attorney’s fees for frivolous appeal. Id., p. 9, 924 So.2d at 202. The First [^Circuit addressed the effect of the trial court’s dismissal of the appeal order on the appellate court’s jurisdiction. The First Circuit found that, although the defendant failed to perfect a suspensive appeal by failing to post security timély, the defendant had met the requirements for a devolutive appeal, which does not require security to be furnished. Id.; see La. C.C.P. art. 2124. As this' court noted in Franco v. Franco, 04-0967, p, 13 (La.App. 4 Cir. 7/28/04), 881 So.2d 131, 139, the requirement to furnish security for a suspensive appeal constitutes an irregularity or defect upon which an opposing party may file a motion to dismiss, but as long as the requirements for a devolutive appeal have been met, Louisiana courts have held that the appeal should be converted to a devolutive appeal and maintained. The First Circuit concluded that since the requirements for a devolutive appeal had been met, the jurisdiction of the trial court divested on the granting of the order of the appeal as provided in La. C.C.P. art.2088. Clement, p. 9, 924 So.2d at 202; see also Parish of Jefferson v. Davis, 97-1200, pp. 7-8 (La.App. 5 Cir. 6/30/98), 716 So.2d 428, 432.

In this case, we find that the trial court’s order of August 17, 2012, granting Warren an appeal, divested the trial court of jurisdiction over the matters in this case reviewable on appeal. We, therefore, maintain jurisdiction over this appeal, but we convert it to a devolutive appeal to address the merits of the case.

Exception of No Cause of Action

Warren appeals the trial court’s judgment of August 3, 2012, granting GCB’s exception of no cause of action. In reviewing a trial court judgment maintaining a peremptory exception of no cause of action, we apply a de novo standard of review. Fink v. Bryant, 01-0987, p. 4 (La.11/28/01), 801 So.2d 346, 349. The peremptory exception of no cause of action questions the legal 17sufficiency of the petition to allege facts and set forth claims for which the law provides a remedy. Id., p. 3, 801 So.2d at 348-49. The exception is triable on the face of the petition, and the well-pleaded facts alleged within the petition are accepted as true. Id., p. 4, 801 So.2d at 349. The exception should be maintained for failure to state a cause of action where it appears beyond doubt that the petitioner can prove no set of facts in support of any claim for which the law provides relief. Id.

Warren argues that his reconventional demand set forth four causes of action. First, Warren argues that he claimed a violation of his due process rights based on the curator’s insufficient actions to inform him of the pendency of the executory proceeding and sheriffs sale. Second, Warren contends that he stated a cause of action by challenging the constitutionality of the executory process used against him. Third, Warren argues that he stated a claim for damages arising out of GCB’s breach of the covenants of good faith and fair dealing. Finally, Warren argues that he stated a claim for damages based on wrongful seizure and sale. For the following reasons, we find that Warren did not assert any valid cause of action in his reconventional demand to the executory proceeding, and we affirm the trial court’s judgment granting GCB’s exception of no cause of action.

An executory proceeding in Louisiana provides a simple and expeditious procedure by which creditors may seize and sell property upon which they enjoy a mortgage or privilege. Reed v. Meaux, 292 So.2d 557, 559 (La.1973). By an exec-utory proceeding, the creditor may effect the seizure and sale of property, without previous citation and judgment, to enforce a mortgage evidenced by an authentic act importing a confession of judgment. La. C.C.P. art. 2631. Where a creditor seeks to enforce a mortgage on immovable property, it is only necessary to |ssubmit certain authentic evidence to prove the right to use executory process: (1) the instrument evidencing the obligation secured by the mortgage, and (2) the authentic act of mortgage or privilege on immovable property importing the confession of judgment. La. C.C.P. art. 2635(A); Buckner v. Carmack, 272 So.2d 326, 330 (La.1973); Whit ney Nat’l Bank v. Blueridge, Inc., 606 So.2d 902, 904 (La.App. 4th Cir.1992).

“Defenses and procedural objections to an executory proceeding may be asserted only either through an injunction proceeding to arrest the seizure and sale as provided in Louisiana Civil Code of Procedure arts. 2721 through 2754, or a suspensive appeal from the order directing the issuance of the writ of seizure and sale, or both.” La. C.C.P. art. 2642.

A debtor who fails to exercise the right to take a suspensive appeal or to enjoin the sale may, under limited circumstances, attempt to nullify the completed sheriffs sale. First Guaranty Bank, Hammond, La. v. Baton Rouge Petroleum Center, Inc., 529 So.2d 834, 841 (La.1988); see Brown v. Everding, 357 So.2d 1243, 1246 (La.App. 2d Cir.1978); Deutsche Bank Nat’l Trust Co. v. Carter, 10-663, p. 7 (La.App. 5 Cir. 1/25/11), 59 So.3d 1282, 1286. If the creditor is the adjudicatee at the sale, the debtor may attack that sale based solely on substantive defects in the executory proceeding, such as fraud, lack of notice, or ill practices by the creditor. Taurus Leasing Corp. v. Chalaire, 400 So.2d 303, 305 (La.App. 4th Cir.1981); Brown, 357 So.2d at 1246. Executory process is a harsh remedy, and consequently, the strict compliance with the notice requirements is necessary. Bank of New Orleans and Trust Co. v. Brule, 389 So.2d 1148 (La.App. 4th Cir.1980); see also Security Homestead Ass’n v. Fuselier, 591 So.2d 335 (La.1991). Objections as to the lack of authentic evidence or as to minor defects of form or | procedure may not be used as grounds for an action to annul a judicial sale of immovable property after recordation of the sheriffs sale or proces verbal in accordance with executory process. La. R.S. 13:4112; Hibernia Nat’l Bank v. Lankster, 578 So.2d 535, 536 (La.App. 4th Cir.1991). Without evidence of substantive defects in the executory proceedings to nullify a completed seizure and sale, the debtor has no cause of action for damages from a lawful seizure and sale. Acme, 464 So.2d at 947; France v. American Bank, 505 So.2d 1175, 1179 (La.App. 5th Cir.1987).

In his first assignment of error, Warren contends that the trial court erred in granting the exception of no cause of action because he stated a cause of action based on a violation of his due process rights for not receiving formal notice of the seizure and sale. To support this claim, Warren alleges only the fact that the court appointed curator filed his note of evidence on January 24, 2012, after the sheriffs sale on December 15, 2011. Warren does not state any allegations of fact to support a claim that GCB failed to comply with the strict requirements of notice of seizure and sale. In fact, Warren sets forth that GCB filed a motion to appoint a curator that was granted by the trial court, and he does not contend that the appointment was improper, that he was not an absentee, or that he was available to be served. The failure of an attorney appointed by the court to represent an absentee defendant to perform any of the duties imposed upon him by La. C.C.P. arts. 5092 through 5096 shall not affect the validity of any proceeding, including the seizure and sale of any property by execu-tory process. La. C.C.P. art. 5098; Hibernia, 578 So.2d at 537. Based on the allegations within Warren’s reconven-tional demand, we find he did not state a valid cause of action for the violation of due process.

In his second argument, Warren contends that he has stated a cause of action under the 14th Amendment of the U.S. Constitution that challenges the constitutionality of Louisiana’s executory process scheme. In both his reconventional demand and his appeal, Warren acknowledges that the Louisiana Supreme Court upheld the constitutionality of Louisiana’s executory process in Buckner v. Carmack, 272 So.2d 326 (La.1973). Warren argues, however, that amendments to La. C.C.P. arts. 2635 and 2637, made pursuant to La. Acts 1989, No. 137, § 18 (“1989 amendments”), substantively changed the laws of executory process by taking out the requirement that a creditor prove by authentic evidence the right to use executory process, and that the amendments rendered the executory process unconstitutional. We find this argument to be erroneous and without merit.

The 1989 amendments to La. C.C.P. arts. 2635 and 2637 did not change the substantive requirements for a creditor to prove and enforce the right to use executo-ry process. The Louisiana Legislature clearly stated the purpose and intent of the 1989 amendments was to “amend the preexisting Louisiana security device laws to accompany and accommodate implementation of Chapter 9 of the Louisiana Commercial Laws.” La. Acts 1989, No. 137, § 20. Since the Louisiana Supreme Court’s decision in Buckner, upholding the constitutionality of Louisiana’s executory process, the statutory requirements have not been amended Into require less proof by authentic evidence for executory proceedings. Warren does not set forth any allegations within his reconventional demand that present a new challenge to the constitutionality of Louisiana’s executory process scheme, as it was upheld by the Louisiana Supreme Court in Buckner. Furthermore, GCB filed its petition for executory process in conformity with the statutory requirements of authentic evidence, including the submission of the three authentic acts of mortgage with Warren’s confession of judgment. Based on the legal history of Louisiana’s executo-ry process and the facts contained in the record, we find that Warren has not stated a valid cause of action.

In his third assignment of error, Warren argues that the trial court erred in granting the exception of no cause of action as to Warren’s claim that GCB breached a covenant of good faith and fair dealing by failing to advise him of any options available to him to avoid foreclosure. Warren posits that his cause of action is analogous to the statutory duty of good faith and fair dealing owed by an insurer to his insured, and that all contracts in which there is a relationship of trust between the parties obliges the parties to act in good faith and fair dealing.

The statutory duty, referenced by Warren, of good faith and fair dealing owed by insurers to their insured applies only to insurance policy relations, and it enumerates specific acts by which an insurer breaches the duties imposed under the | ^statute. La. R.S. 22:1973; Armstrong v. Rabito, 95-0695, p. 4 (La.App. 4 Cir. 10/26/95), 663 So.2d 512, 515.

Generally, Louisiana law governing obligations provides that good faith shall govern the conduct of parties in whatever pertains to the obligation, and all contracts in Louisiana must be performed in good faith. La. C.C. art. 1759; La. C.C. art.1983. As this court discussed in Favrot v. Favrot, 10-0986, p. 12 (La.App. 4 Cir. 2/9/11), 68 So.3d 1099, 1107, Louisiana does not recognize a separate and distinct obligation of good faith, the breach of which would be equivalent to a breach of the contract between the parties. The performance of an obligation or contract can be characterized as being in good faith or bad faith, but the party alleging bad faith performance must first allege facts revealing the duty to perform an obligation.

[W]e do not examine a party’s good faith (or bad faith) unless and until we find that the party has failed to perform an obligation, from which the obligee has sustained damages. ‘An obligor is liable for damages caused by his failure to perform a conventional obligation.’ LA. CIVIL CODE ART.1994. The extent of the obligee’s recoverable damages is then determined according to whether the obligor failed to perform in good faith or in bad faith.... Thus, judicial determination of good-faith (or bad-faith) failure to perform a conventional obligation is always preceded by a finding that there was a failure to perform, or a breach of the contract.

Favrot, p. 16, 68 So.3d at 1109-10.

11sWe, therefore, consider whether the facts alleged indicate GCB’s failure to perform a specific obligation. In his reeon-ventional demand, Warren claims that GCB had a duty to advise him of options that he might have to modify his mortgage under the Making Home Affordable Act, a federal program of the U.S. Department of the Treasury, “or other program under the purview of Bank that would allow Warrant [sic ] to modify his loan into a more affordable payment.” However, Warren’s allegations do not indicate the source for the alleged duty owed by GCB to advise him of loan or mortgage modification options. Warren does not allege that GCB owed any such duty or obligation to him under the terms of the promissory notes, mortgage notes, or acts of mortgage that he executed in favor of GCB. Nor does Warren allege that any other contract existed between the parties that would give rise to a duty by GCB to provide advice to Warren, or that GCB agreed to obligate itself to Warren to act as a fiduciary or on his behalf or in his best interest. Based on the lack of a factual or legal basis for this claim, we conclude that Warren did not set forth any valid cause of action for a failure to act in good faith or fair dealing.

Finally, Warren argues that he stated a cause of action for damages for the wrongful seizure and sale of his property. Warren bases this claim on the assertion that the use of executory process by GCB was illegal, and he reverts to his argument that executory process is unconstitutional. Warren states a legal conclusion, but fails to state any factual allegations that set forth a cause of action 114for which relief may be granted. Furthermore, as this court held in Acme Mortg. Co., Inc. v. Cross, 464 So.2d at 947, no cause of action for damages exists for wrongful seizure and sale when the execu-tory process has been implemented and completed lawfully.

As stated previously in this opinion, Warren failed to file a suspensive appeal within fifteen days of the signing of the order granting a writ of seizure and sale to GCB, and Warren failed to seek or obtain a preliminary injunction prior to the sheriffs sale, to assert any defenses and procedural objections to prevent the seizure and sale of his property. Once the judicial sale was completed, Warren needed to set forth enough factual allegations to establish substantive defects in the executory process for which he could be entitled to relief for wrongful seizure. Based on our review of Warren’s reconventional demand, we find he has failed to set forth factual allegations to establish that GCB’s use of executory process was invalid for substantive defects, that the use of executory process was unconstitutional, that GCB owed him any duty or obligation that they failed to perform, or that he was entitled to any relief for wrongful seizure. We find that Warren has not stated any valid cause of action for which relief could be granted, and we affirm the trial court judgment granting GCB’s peremptory exception of no cause of action.

DECREE

For all of the foregoing reasons, we convert the suspensive appeal to a devolu-tive appeal, and we affirm the trial court’s judgment of August 3, 2012, granting plaintiffs peremptory exception of no cause of action.

AFFIRMED.

      . On the collateral mortgage for 1450 Tita Street, executed on April 20, 2007, Warren listed his address and residence as 2001 North Village Green, Harvey, Louisiana.

      . Although the transcript of the trial court hearing is not in the record before this court, the record reflects that Warren offered his own affidavit into evidence at the hearing and GCB offered the testimony of a GCB employee, without objection from Warren. The ap-pellee brief states that GCB offered the live testimony of bank officer Michael Carter, whom Warren names in his reconventional demand and affidavit as the GCB representative that he dealt with regarding his mortgage payments.

      . Where the defendant is an absentee, the court shall appoint an attorney to represent him, and the attorney shall use reasonable diligence to communicate with the defendant and inform him on the pendency and nature of the proceeding, and of the time available for asserting available defenses. La. C.C.P. art. 2674; La. C.C.P. art. 5094. The attorney appointed to represent the defendant shall be served all demands, notices, and other documents required to be served upon the defendant in the executory proceeding. La. C.C.P. art. 2641.

      , The, requirement of authentic evidence to prove a creditor’s right to use executory process has a long jurisprudential history in Louisiana. Along with the petition, the plaintiff/creditor must submit, in authentic form, the note, bond or instrument securing the mortgage or privilege and the act of mortgage or privilege importing a confession of judgment along. Landry v. Landry, 12 La. Ann. 167 (La. 1857); Miller, Lyon & Co. v. Cappel, 36 La.Ann. 264 (La.1884); American Budget Plan, Inc. v. Small, 229 So.2d 190 (La.App. 4th Cir.1969); Fabacher v. Hammond Dairy Co., Inc., 389 So.2d 87 (La.App. 4th Cir.1980).

      . In his appellate brief to this court, Warren stated that he is not appealing the trial court’s ruling that Warren has no cause of action for damages under the Louisiana Unfair Trade Practices Act and the Making Home Affordable Act.

      . La. R.S. 22:1973(A) provides that an insurer owes to the insured a duty of good faith and fair dealing, an affirmative duty to ádjust claims fairly and promptly, and to make reasonable efforts to settle claims with the insured or claimant. Subsection B(l)-(6) of the statute sets forth the acts by an insurer that, if knowingly committed, constitute a breach and give rise to an action for damages and penalties.

      . Under the common law, some courts have found that the breach of an implied covenant of good faith and fair dealing between parties . to a contract constitutes an actionable theory of lender liability. See Edward B. Kramer, Comment, Louisiana Lender Liability, 50 La. L.Rev. 143, 144 (1989); see also, James Ma-bry Vickery, Note, A Special Relationship: The Use of the Duty of Good Faith and Fair Dealing to Impose Tort Damages In Contracts Between Lender and Borrower, 9 Rev. Litig. 93 (1990).

      . We note that Warren ostensibly argues that a relationship of trust exists between a mortgagor and mortgagee such that the mortgagor owes a fiduciary responsibility to inform and advise the mortgagee of his rights and options. But Louisiana law specifically provides that financial institutions do not owe a fiduciary obligation or responsibility to customers, unless there is a specific written agency or trust agreement by which the financial institution agrees to act and perform in the capacity of a fiduciary. La. R.S. 6:1124; Seals v. Omni Bank Ins. Companies, 12-0863, p. 14 (La.App. 4 Cir. 11/28/12), 104 So.3d 667, 674.


author: GARRETT, J.

text:
    Jerry L. JOHNSON & Debbie R. Johnson, Plaintiffs-Appellants v. Gary BYRD & Farm Bureau Mutual Insurance Company of Arkansas, Inc., Defendants-Appellees.
    No. 48,411-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 25, 2013.

      All American Law Firm of LA, LLC by Wade T. Visconte, Shreveport, for Plaintiffs-Appellants.

      Seabaugh, Joffrion, Sepulvado & Victory, LLC by Alan T. Seabaugh, Shreveport, Jean-Paul Guidry, for Defendants-Appel-lees.
    Before WILLIAMS, CARAWAY and GARRETT, JJ.
   GARRETT, J.

|,The plaintiffs’ suit, which arose from a dog bite that occurred in Arkansas, was dismissed without prejudice pursuant to the defendants’ declinatory exceptions of lack of jurisdiction and improper venue. The plaintiffs appeal. We reverse and remand for further proceedings.

FACTS

On October 1, 2012, Jerry L. Johnson and his wife, Debbie R. Johnson, residents of Webster Parish, Louisiana, filed suit in the 26th Judicial District Court against Gary Byrd, an Arkansas resident, and his homeowner insurer, Farm Bureau Mutual Insurance Company of Arkansas, Inc. The plaintiffs asserted that Mr. Johnson was injured by Mr. Byrd’s dog while Mr. Johnson was on Mr. Byrd’s business premises in Arkansas.

The petition specifically pleaded the following:

4.
Venue is proper in Webster Parish under La. R.S. 13:3208 as plaintiff is domiciled in Webster Parish. Personal jurisdiction is made over Gary Byrd pursuant to La. R.S. 32:3201(A)(4) or 13:3201(B) as Gary Byrd routinely solicits and provides merchant services to residents of Louisiana through his small engine repair business. Gary Byrd engages in persistent business conduct with Louisiana residents and derives income from numerous Louisiana residents due to his close proximity to the Louisiana border and there being no other small engine merchants or limited small engine merchants in the surrounding county and parishes.
6.
On or about May 11, 2012, plaintiff was on the premises of [Gary Byrd] to drop off his lawnmower to be repaired by the defendant when suddenly, unexpectedly and without warning he was approached by a dog owned by [Gary Byrd]. This dog viciously attacked plaintiff without provocation. This dog has a history of acting aggressively towards other Louisiana residents who have utilized [Gary Byrd]’s small engine repair business services, | ¡Including but not limited to the following residents, Gerald White and James Johnson, plaintiffs brother.
7.
Upon information and belief, this same dog owned by [Gary Byrd] bit or acted aggressively towards several other persons prior to his attack upon the plaintiff. Although defendant operates a business on his premises, he does not restrain his dog to protect his customers thereby showing callous disregard for the rights and safety of other individuals on his premises. Upon information and belief, [Gary Byrd] still allows his dog to roam his premises without restraint when business patrons visit.

The defendants were served under the provisions of the Louisiana long-arm statute and the affidavit of service was filed October 17, 2012.

On October 29, 2012, the defendants, appearing solely for the purposes of their exceptions, filed declinatory exceptions of lack of jurisdiction and improper venue. They argued that Mr. Byrd is a resident of Arkansas, that the incident took place in Arkansas, and that Mr. Byrd’s insurer does not transact business in Louisiana. In their exceptions, the defendants made numerous factual assertions. Among them were the following: (1) while Mr. Byrd repairs lawnmowers and other small engines at his home, there are no signs at his house advertising the repairs; (2) Mr. Byrd did not know Mr. Johnson until he came to Mr. Byrd’s house, unsolicited, to drop off his lawnmower for repair; (3) Mr. Byrd does not advertise or solicit business in Louisiana or anywhere else; (4) Mr. Byrd does not contract to supply services or things in Louisiana; and (5) Mr. Byrd does not transact any business in Louisiana. None of these assertions were supported by affidavits or any other form of evidence.

laThe defendants further contended that no service of process was made on them within Louisiana and that the Louisiana court did not have personal jurisdiction over them under the provisions of La. R.S. 13:3201, the Louisiana long-arm statute. Finally, they maintained that since jurisdiction was lacking under La. R.S. 13:3201, venue in Webster Parish was improper under La. R.S. 13:3203. A contradictory hearing on the exceptions was set by the trial court for November 27, 2012, less than a month from the time the exceptions were filed.

In response to the exceptions, the plaintiffs promptly propounded discovery to the defendants, including requests for production of documents, interrogatories and a request to take depositions of Mr. Byrd and the adjuster, prior to the date of the hearing on the exceptions. This discovery addressed both jurisdictional and other matters.

On November 19, 2012, the plaintiffs filed an opposed motion to continue in which they asserted that discovery would lead to evidence establishing that the defendants had the requisite minimum contacts with Louisiana. In particular, they alleged that the evidence would demonstrate that Mr. Byrd routinely and consistently did business with Louisiana residents. They further stated that they were pursuing discovery on jurisdictional issues as outlined above, but that the discovery measures would not be complete by the date set for the hearing on the exceptions. Consequently, they requested a continuance of 90 days. The court set the motion for continuance for hearing on the same day as the exceptions.

|4On November 26, 2012, the plaintiffs filed a motion to compel jurisdictional discovery. They asserted their compliance with Rule 10.1 of the Rules for Louisiana District Courts by telephoning the office of the defendants’ counsel on November 19, 2012, and requesting discovery responses by noon on November 21, 2012. They further alleged that they had sent requests for production of documents to the two defendants and a set of interrogatories to Mr. Byrd; however, the deadline for delivery of discovery responses had come and gone without answer. The trial court did not set a hearing date for the motion to compel and instead, the matter was addressed on November 27, 2012, as will be discussed below.

The hearing on the defendants’ exceptions and the plaintiffs’ motion to continue was held on November 27, 2012. Rather than conducting a hearing, the court proceedings consisted of colloquies between the attorneys and the court. Counsel for the exceptors relied upon the pleadings and his memorandum and presented no evidence. The following exchange occurred between the trial judge and Mr. Visconte, the plaintiffs’ counsel:

THE COURT:
You said a dog bite happened in Arkansas, sir. And you said that it happened outside the state of Louisiana. The only connection that you make to the state of Louisiana is that there were lawn mower repairs and that this person had a lawn mower repair business. Am I missing something here?
MR. VISCONTE:
I think that that is what the discovery is designed to address, Judge.
|BTHE COURT:
You don’t get the discovery if you have these exceptions, sir. And that’s what exceptions are designed to address. You have to look at the face of the pleadings. How do I get around the face of the pleadings? You said the accident happened in Arkansas.
MR. VISCONTE:
I think that’s what we’re talking about, Judge, as I stated in my memorandum, is that you’ve got a fellow that lives two miles, or less than two miles, from the Louisiana border. He routinely does business with—
THE COURT:
Less than two miles from the Louisiana border but he lives in Arkansas, it that correct?
MR. VISCONTE:
Sure.
THE COURT:
All right. So that’s — so that’s the face of the petition, is that the dog bite occurred in Arkansas.
MR. VISCONTE:
I understand that, Judge. What I was going to say was that the business that this fellow does, if you look at the petition and the memorandum, involves what we believe, is somebody that routinely does business with Louisiana residents. He is subjecting folks to this hazard, and on the basis of that, that he could reasonably anticipate being held [sic] into this court.
THE COURT:
It’s a stretch, Mr. Visconte, even International Shoe, that’s a very big stretch. So I mean, I’m — convince me otherwise.
IsMR. VISCONTE:
Well, Judge, that’s the argument. You asked me for my argument. That is my argument. If there’s no discovery to be made, then what I understand you to say is that you’re going to grant the exceptions.
THE COURT:
Yes, sir, I am because the exceptions are always granted prior to any discovery or — they look at prior to the lawsuit. They look at the face of the pleadings. They look at what’s been pled. So I mean, based on that I do hereby grant the exceptions, ... [Emphasis ours.]

Also on November 27, 2012, the trial court signed an order denying the plaintiffs’ motion to compel. In so doing, the trial court noted in the margin that the exceptions had been granted, dismissing the case for lack of jurisdiction. Later, on December 26, 2012, the trial court noted on another order that the plaintiffs’ motion to continue the exceptions was also denied on the date of the hearing on the exceptions.

Disagreement arose as to the form of the judgment granting the exceptions as to whether the dismissal of the plaintiffs’ claims was with or without prejudice. Consequently, the matter was set for a form and content hearing on February 26, 2013.

On January 11, 2013, the plaintiffs filed a motion and order for devolutive appeal of the judgment rendered in open court on November 27, 2012. The order granting the motion for devolutive appeal was signed on January 14, 2013.

A judgment memorializing the trial court’s ruling of November 27, 2012, was signed on February 26, 2013, after a conference on the record. The judgment granted the defendants’ declinatory exceptions and dismissed the plaintiffs’ claims without prejudice at the plaintiffs’ cost. The judgment also denied the plaintiffs’ motion to continue.

The plaintiffs appealed.

LAW

The Louisiana long-arm statute, La. R.S. 13:3201, provides for the exercise of personal jurisdiction over a nonresident defendant. In pertinent part, it states:

A. A court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of action arising from any one of the following activities performed by the nonresident:
(1) Transacting any business in this state.
(2) Contracting to supply services or things in this state.
(3) Causing injury or damage by an offense or quasi offense committed through an act or omission in this state.
(4) Causing injury or damage in this state by an offense or quasi offense committed through an act or omission outside of this state if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives revenue from goods used or consumed or services rendered in this state.
B. In addition to the provisions of Subsection A, a court of this state may exercise personal jurisdiction over a nonresident on any basis consistent with the constitution of this state and of the Constitution of the United States.

1 sSubsection B was added in 1987 to ensure that jurisdiction under the long-arm statute extended to the limits allowed by due process. Official Comments, Acts 1987, No. 418; SteriFx, Inc. v. Roden, 41,383 (La.App.2d Cir.8/25/06), 939 So.2d 533.

Due process requires that, in order to subject a nonresident defendant to a personal judgment, the defendant must have certain minimum contacts with the forum state such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945); Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984); de Reyes v. Marine Mgmt. and Consulting, Ltd., 586 So.2d 103 (La.1991); SteriFx, Inc. v. Roden, supra.

An objection to the court’s lack of jurisdiction over the person of the defendant or improper venue is raised through a declinatory objection. La. C.C.P. art. 925. Under La. C.C.P. art. 929, which sets the time of trial of exceptions, a declinatory exception “shall be tried and decided in advance of the trial of the case.” At the contradictory hearing on a declinatory exception, evidence is admissible to support or controvert any of the objections pleaded. La. C.C.P. art. 930. If evidence is admitted at such a hearing, the exception must be resolved on the evidence presented, rather than on the allegations in the petition. SteriFx, Inc. v. Roden, supra; Chumley v. White, 46,479 (La.App.2d Cir.11/9/11), 80 So.3d 39, writ denied, 2011-2741 (La.2/17/12), 82 So.3d 288.

IflAppellate courts, when reviewing a trial court’s legal ruling on a declina-tory exception of lack of personal jurisdiction, apply a de novo standard. However, the trial court’s factual findings underlying the decision are reviewed under the manifest error standard of review. SteriFx, Inc. v. Roden, supra. Likewise, venue is a question of law that is subject to a de novo review on appeal while any factual findings made by the trial court are reviewed under the manifest error standard. Chumley v. White, supra.

A continuance may be granted in any case if there is good ground therefor. La. C.C.P. art. 1601. A continuance shall be granted if at the time a case is to be tried, the party applying for the continuance shows that he has been unable, with the exercise of due diligence, to obtain evidence material to his case. La. C.C.P. art. 1602. A denial of a motion for continuance will not be disturbed on appeal absent a showing of an abuse of discretion by the trial court. Galloway v. Lolley, 44,501 (La.App.2d Cir.8/19/09), 17 So.3d 479.

The general scope of discovery is found in La. C.C.P. art. 1422, which provides in pertinent part:

Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

|,nThe trial court has broad discretion in ruling on pretrial discovery, and an appellate court should not upset such a ruling absent an abuse of that discretion. Walker, Tooke & Lyons, L.L.P. v. Sapp, 37,966 (La.App.2d Cir.12/10/03), 862 So.2d 414, writ not considered, 2004-0088 (La.3/19/04), 869 So.2d 836. This broad discretion includes the right to refuse or limit discovery of matters that are not relevant to the issues. Maguire Plastic Surgery Ctr., LLC v. Booker, 47,929 (La.App.2d Cir.5/22/13), 117 So.3d 239.

A party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling discovery. La. C.C.P. art. 1469.

DISCUSSION

On appeal, the plaintiffs contend that the trial court erred in several respects, including failing to allow them a continuance and a period of time in which to conduct jurisdictional discovery before deciding the exceptions. We find merit in these arguments.

Prior to the hearing on the exceptions, the plaintiffs attempted to conduct discovery on the issue of whether Mr. Byrd regularly did or solicited business, or engaged in any other persistent course of conduct under La. R.S. 13:3201(A)(4), or had the requisite minimum contacts under the due process test. The record indicates that they were generally unsuccessful in these discovery attempts and, as a result, they filed the motion to continue and the motion to compel in an attempt to obtain information relevant to the question of personal jurisdiction.

In At the hearing, the trial court specifically stated that the plaintiffs were not entitled to discovery due to the exceptions and that the exceptions were to be determined by looking at the pleadings alone. These statements are incorrect.

Evidence may be presented at a hearing on a declinatory exception and, if presented, the exception will be determined on that evidence, not the petition alone. The transcript demonstrates that the plaintiffs attempted to offer two pieces of evidence. However, it does not appear that they were reviewed or considered by the trial court or admitted into evidence by the trial court, apparently due to its erroneous belief that evidence was not allowed in the context of a hearing on an exception of lack of personal jurisdiction. On the same day, the trial court then denied the plaintiffs’ motion to compel on the basis that the exceptions had been granted due to lack of jurisdiction.

Plaintiffs faced with an exception of lack of personal jurisdiction filed by the defendant may pursue limited and reasonable discovery measures which are calculated to lead to relevant evidence on the issue of jurisdiction. A survey of Louisiana jurisprudence on this issue indicates that courts routinely consider evidence such as depositions, affidavits, |12answers to interrogatories, and documentary evidence when deciding declinatory exceptions of lack of personal jurisdiction. For example, in the recent case of Maguire Plastic Surgery Ctr., LLC v. Booker, supra, the plaintiffs jurisdictional discovery included propounding interrogatories and requests for production, as well as the deposition of an employee of one of the defendants. See also de Reyes v. Marine Mgmt. & Consulting, Ltd., supra (discovery depositions were taken); IberiaBank v. Thornton, 45,332 (La.App.2d Cir.6/23/10), 44 So.3d 720 (the evidence considered by the court included loan documents, correspondence between the parties and the deposition of one of the defendants); SteriFx, Inc. v. Roden, supra (deposition extracts and other documentary evidence were submitted to the trial court); Cohen v. Cohen, 635 So.2d 1293 (La.App. 4th Cir.4/14/94), (two affidavits were submitted in support of the exception); Eng’g Dynamics, Inc. v. Massachusetts Inst. of Tech., 05-295 (La.App.5th Cir.11/29/05), 917 So.2d 1168 (affidavits were submitted in support and opposition to the exception of lack of personal jurisdiction); Jacobsen v. Asbestos Corp. Ltd., 12-655 (La.App.5th Cir.5/30/13), 119 So.3d 770 (the court considered an affidavit in support of the exception, as well as two depositions and various other documents in opposition).

In the instant case, the trial court committed legal error in ruling that only the pleadings could be considered, and that no discovery could be conducted in resolving a declinatory exception. Because of this legal error, the trial court did not consider the merits of the pending motion to continue and the recently filed motion to compel premised on the outstanding [ Tadiscovery issues. These matters should have been considered by the trial court before ruling on the declinatory exceptions. We find that the trial court committed legal error and abused its discretion in denying the plaintiffs a continuance and the opportunity to pursue limited jurisdictional discovery to defend against the defendants’ exception of lack of personal jurisdiction. In so ruling, we note the rapidity with which events occurred — the declinatory exceptions were filed less than a month after the suit was filed, and then the contradictory hearing on the exceptions was set for less than a month after their filing — and the plaintiffs’ prompt exercise of due diligence in seeking jurisdictional discovery. The trial court also applied an improper legal standard in deciding the exceptions. The trial court’s statement that the exceptions were to be decided solely on the basis of the pleadings was incorrect, as was the statement that no discovery could be had. Therefore, we are obliged to reverse the trial court’s rulings. The plaintiffs should have the right to present to the court their arguments on the jurisdictional discovery issues that were urged in the motion to continue and the motion to compel. They should also have the right to present evidence at a hearing on the exceptions. The defendants, of course, have the right to respond to the plaintiffs’ motions, including any objections to any discovery 1 ^requests they deem unreasonable or burdensome and to present evidence at the hearing on the exceptions.

CONCLUSION

The trial court judgment denying the plaintiffs’ motion to continue and granting the defendants’ exceptions of lack of jurisdiction and improper venue is reversed. The matter is remanded to the trial court for further proceedings in compliance with this opinion. Costs of this appeal are assessed against the appellees, Gary Byrd and Farm Bureau Mutual Insurance Company of Arkansas, Inc.

REVERSED AND REMANDED.

      . In so doing, the defendants did not submit to the court’s jurisdiction. See. La. C.C.P. art. 6(A)(3).

      . In the meantime, on December 11, 2012, the plaintiffs filed a contested motion to file a first supplemental and amending petition for damages, wherein they asserted additional facts allegedly tying Mr. Byrd to Louisiana. On December 20, 2012, the defendants responded to the motion by filing an exception based upon res judicata /collateral estoppel. Both matters were set for hearing on February 26, 2013. However, the appellate record does not reveal what, if any, action was taken on that date.

      . Although the final judgment was not signed until after the order of appeal was granted, any previous defect of prematurity is cured once the final judgment is signed and no useful purpose is served in dismissing an otherwise valid appeal. Overmier v. Traylor, 475 So.2d 1094 (La.1985); Johnson v. Pueblo Viejo, Inc., 47,586 (La.App.2d Cir.4/10/13), - So.3d-, 2013 WL 1442255.

      . Additionally, it appears that the trial court failed to consider all of the provisions of the Louisiana long-arm statute. The fact that the quasi offense occurred in the state of Arkansas does not necessarily or automatically preclude jurisdiction in Louisiana. Of course, the plaintiffs must satisfy the burden of proof encumbent upon them under the provisions of the Louisiana long-arm statute and the jurisprudence interpreting same.

      . Even if the trial court had reviewed the petition alone, it alleged not just that the dog attack occurred in Arkansas, but also that Mr. Byrd engaged in persistent business conduct with Louisiana residents, routinely soliciting and providing merchant services to residents of Louisiana, and that the dog had acted aggressively toward two other named Louisiana residents who utilized Mr. Byrd's repair services.

      . See and compare Smith Stag, L.L.C. v. Wilson & Meyer Custom Theater Interiors, L.L.C., 2008-1251 (La.App.4th Cir.2/18/09), 6 So.3d 921, wherein the plaintiffs propounded no discovery prior to the hearing on the declina-tory exceptions. Under those circumstances, the court ruled that the plaintiffs were not entitled to additional time to conduct jurisdictional discovery.

      . We express no opinion on the ultimate outcome of the exceptions as no evidence has been presented.