author: JAMES F. McKAY III, Judge.

text:
    STATE of Louisiana v. Loel L. McNAIR.
    No. 2012-KA-0064.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 28, 2012.
    Leon A. Cannizzaro, Jr., District Attorney of Orleans Parish, Matthew C. Kirk-ham, Assistant District Attorney of Orleans Parish, New Orleans, LA, for State of Louisiana.
    Holli Herrle-Castillo, Louisiana Appellate Project, Marrero, LA, for Defendant/Appellant.
    (Court composed of Judge JAMES F. McKAY III, Judge TERRI F. LOVE, Judge ROSEMARY LEDET).
   JAMES F. McKAY III, Judge.

I,STATEMENT OF CASE

On July 28, 2009, the State filed a bill of . information charging Loel McNair, the appellant, with forgery, a violation of La. R.S. 14:72. On August 18, 2009, he pleaded not guilty. On August 26, 2009, the appellant was ordered to perform one hundred hours of community service. On September 14, 2009, he filed motions to suppress the evidence, the statement, and the identification. A hearing on the motions was set and continued because a diversion review hearing had been set. On January 19, 2010, the appellant was accepted into the diversion program. On July 28, 2010, he did not appear for the diversion hearing; he had dropped out of the program. On August 11, 2010, he failed to appear for a scheduled pre-trial conference, and an alias capias with no bond issued. The appellant was arrested on November 17, 2010. On December 2, 2010, he appeared, and a hearing on the motions was set for January 7, 2011. On December 14, 2010, the trial court recalled the capias and released the appellant on the original bond. After counsel withdrew, on January 21, 2010, the court appointed Orleans Public Defenders 12(OPP) as counsel to represent the appellant and ordered him to perform community service.

On March 25, 2011, the appellant elected a bench trial. A hearing on the motions was held, and the court found probable cause and denied the motion to suppress evidence. On May 81, 2011, the appellant noticed his intention to file for writs; the court denied the request for a stay order and set a return date on June 15, 2011. On June 14, 2011, this Court denied the appellant’s writ application (2011-K0766) wherein he argued that the trial court erred in denying his motion to suppress the evidence. Trial was set for June 16, 2011. On that date, the appellant elected a trial by jury, and the trial court allowed the jury trial to go forward. The State objected and noticed its intent to seek writs; the trial court denied a stay order. In the State’s writ (2011-K-0781) this Court granted a stay order and considered the State’s arguments. On June 17, 2011, this Court denied the writ and lifted the stay order. The State sought review. The Supreme Court granted the State’s writ, reversed the trial court’s decision allowing the appellant to revoke his valid waiver of the right to a jury, and remanded for further proceedings. State v. McNair, 2011-1285 (La.6/21/11), 64 So.3d 205. On June 21, 2011, a bench trial was held. The trial court found the appellant guilty of attempted forgery. On July 1, 2011, the court sentenced him to three years at hard labor, suspended, with three years of active probation. Special conditions include: obtaining a job; completing his G.E.D.; and paying $500.00 to the Judicial Expense Fund and $190.50 for court costs. The trial court stated that it may reconsider sentence status after eighteen months of no problems fulfilling the conditions. A probation status hearing was set for August 8, 2011.

|sOn July 5, 2011, the appellant filed a motion for appeal and designation of record, which was granted. The court appointed the Louisiana Appellate Project (LAP) to represent him on appeal and stated that the appellant was working and was responsible for all costs. Notice of appeal was filed on July 6, 2011. On January 13, 2012, the appeal record was filed in this Court.

STATEMENT OF FACT

At the March 25, 2011 hearing on the motions, Officer Marshall Scallan testified that on June 6, 2009, he was assigned to the Eighth District Bourbon Street .Promenade; his partner was Officer Billy Tre-gle. The officer said that they were flagged down by the manager of the Mango Mango Daiquiri Shop and told that two men had attempted to pay for two alcohol drinks with a counterfeit twenty-dollar bill. According to the manager, the bartender had cheeked the bill with the counterfeit detector pen, and it indicated that the bill was counterfeit. The bogus bill was retrieved, and the two men walked out of the daiquiri shop. One of the men was wearing a red shirt, and one was wearing a green shirt. Officer Scallan spotted the two men in the same block. Officer Scal-lan testified: “[A]t that point we stopped them.” The two were later identified as Loel McNair, the appellant, and Kevin Matthews. Within minutes the bartender positively identified both men. Officer Scallan stated: “Myself and Officer Billy Tregle conducted a search incident to arrest where one gentleman had the 20 dollar bill that was marked with a counterfeit pen. The other gentleman had five, 100 dollar bills, which all contained the same serial number.” Officer Scallan said that the appellant had the twenty-dollar bill. The NOPD officers notified Secret Service Agent Sparks, who examined the bills and concluded that they were counterfeit. The agent also interviewed both men.

|4On cross-examination, after referring to his report, Officer Scallan agreed that McNair was in the red shirt, and Matthews was in the green shirt; Matthews produced the counterfeit twenty-dollar bill and gave it to the bartender in the daiquiri shop. The officer admitted that the bartender did not say that he saw the appellant with the counterfeit bill, but both men entered the daiquiri shop at the same time. The detective stated that both the appellant and Matthews were positively identified by the bartender within minutes of the incident. Detective Scallan testified that the two men were detained and under investigation, but then he said that they were handcuffed and told that they were under arrest. During the search incident to arrest, Officer Tregle found the twenty-dollar bill with the pen mark on the appellant. Counsel argued that the officers did not have probable cause to arrest the appellant when he did not produce the counterfeit twenty-dollar bill; evidence seized pursuant to search incident to an illegal arrest should be suppressed. Counsel argued that the intent to defraud is an element of fraud, and there was nothing to indicate that the appellant had any such intent.

The State argued that the officers were flagged down by the complaining or reporting witness from the daiquiri shop, who identified the appellant and Matthews within minutes of the attempted sale as the two men who tried to buy drinks with the counterfeit twenty-dollar bill. The State contended that the appellant, as well as Matthews, had the intent to defraud the bartender by paying with a counterfeit twenty-dollar bill. The State noted that apparently the appellant picked up the counterfeit twenty-dollar bill from the bar because it was found on his person minutes later. Defense counsel argued that the appellant was with the man who pulled out the twenty-dollar bill, Kevin Matthews. The trial court noted | Bthat the appellant, who was “associated in the enterprise also happens to be in possession, according to the testimony, after he’s searched.”

At the June 21, 2011 trial, Hal Burch testified that on June 6, 2009, he was the manager of the Mango Mango Daiquiri shops on Bourbon Street, and he received a call from Stephen, an employee at the 333 Bourbon Street location. The bartender provided a description of the two men who had attempted to purchase drinks with a counterfeit twenty-dollar bill. The manager spotted two men who fit the bartender’s descriptions. He alerted NOPD officers and provided them with the descriptions from the bartender. He said that the officers approached the two subjects between Old Absinthe House and the Hustler Club. On cross-examination Hal Burch agreed that the two men were in the same block as the daiquiri shop. He could not remember what color shirt each was wearing or the description by the time of trial.

Officer Marshall Scallan testified that he investigated the forgery on June 6, 2009. He stated that he and his partner were flagged down by the manager of the Mango Mango Daiquiri shops on Bourbon, and a description of the two suspects was provided to the officers. The two suspects, later identified as Loel McNair and Kevin Matthews, were in the same block of Bourbon Street. The officer said: “They were identified to us. Me [sic] and my partner had placed them under arrest.... ” Officer Scallan said that in a search incidental to that arrest, his partner, Officer Billy Tregle, found the counterfeit twenty-dollar bill in the appellant’s possession. Officer Scallan found five one-hundred dollar counterfeit bills containing the same serial number in Matthews’ possession. The officer said that | f;the bartender/cashier stepped outside the daiquiri shop and positively identified both men. The officers then relocated to the district station and notified Secret Service Agent Sparks, who conducted his own investigation.

Officer Billy Tregle testified that he was Officer Scallan’s partner. He said that on June 6, 2009 the officers were flagged down by the manager of the Mango Mango Daiquiri Shops. Once the officers were provided descriptions of the two suspects, who were allegedly involved in a forgery at the daiquiri shop and were still in the same block of Bourbon Street, they approached the two suspects. According to Officer Tregle, they advised the appellant and Matthews of their Miranda rights and arrested them; the two were positively identified by the bartender. Officer Tre-gle stated that he searched the appellant and found the counterfeit twenty-dollar bill (with the black mark on it) in his back right pocket. The officer said that they relocated to the station and contacted U.S. Secret Service Agent Sparks, who questioned both subjects. Officer Tregle said that the twenty-dollar bill still had the black mark left by the counterfeit identifying pen.

Secret Service Agent Joron Sparks testified that he was called by the NOPD officers. The agent stated that he could recognize immediately that the twenty-dollar bill was counterfeit; there was no hologram in the upper right corner of the note, and there was no signature strip in the note. Agent Sparks identified the counterfeit bills confiscated on that date; the one-hundred-dollar bills all had the same serial number; and the twenty-dollar bill had marks from the counterfeit identifying pen. On cross-examination the agent admitted that normally bills that are evidence in ongoing investigations are not destroyed, but here these bills were destroyed. Stephen Kaup, the bartender at the Mango Mango Daiquiri Shop, |7testified that on June 6, 2009, a group of men (about four or five) entered the shop. One interacted with the bartender; the others were “kind of, like, next to him, but not at the bar.” The shorter guy, later identified as Kevin Matthews, placed the order for a large daiquiri and a shot of tequila; the total was $17.00. The bartender said that he asked for payment and identification. Matthews said that he did not have an ID and bumped the appellant, who showed his identification. Matthews pulled out a twenty-dollar bill; the bartender used the counterfeit identifying marker, and the mark turned black to indicate that the bill was counterfeit. Stephen Kaup said that he told the two that the twenty-dollar bill was counterfeit and took the drinks away. Matthews argued that it was not counterfeit, but they left. Although he did not see anyone pick up the bill, when they were gone, the twenty-dollar bill with the black mark was gone too. Stephen Kaup said that he informed his manager, who contacted the police. The bartender remembered the appellant because he had long dreadlocks and was wearing a bright red hat and bright red shirt; he was the one who provided identification or there would have been no sale. Stephen Kaup said that he saw them outside the daiquiri shop about one-half hour later and called his manager, who called the police. On cross-examination the bartender admitted that the man in the green shirt, Kevin Matthews, gave him the twenty-dollar bill. He said that he did not know which one took the twenty-dollar bill off the bar.

ERRORS PATENT

A review of the record reveals that there are no errors patent.

DISCUSSION

ASSIGNMENT OF ERROR NUMBER 1

IsThe appellant argues that the trial court erred by denying his motion to suppress the evidence. He argues that the officers had no probable cause to arrest him; the evidence seized pursuant to the search incidental to that illegal arrest should have been suppressed as fruit of the poisonous tree under Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). The appellant contends that neither the bartender nor the manager of the Mango Mango Daiquiri Shop identified him as the man who attempted to use the counterfeit twenty-dollar bill to purchase drinks.

The State argues that the appellant was identified by the bartender working at the daiquiri shop. The State contends that the appellant was not just with the man who attempted to pass off the counterfeit bill; he participated in the purchase and was one of the intended recipients.

The appellant had previously filed an emergency pretrial writ application in this Court seeking review of the trial court’s denial of his motion to suppress evidence and raising this same argument that the officers did not have probable cause to arrest McNair and that evidence seized incidental to the illegal arrest should be suppressed. On June 14, 2011, this Court denied the writ. State v. McNair, 2011-0766, unpub. (La.App. 4 Cir. 6/14/11).

In State v. Wells, 2008-2262, pp. 4-5 (La.7/6/10), 45 So.3d 577, 580-81, the Supreme Court set out the standard of review:

This court has recently restated the general rule that appellate courts review trial court rulings under a deferential standard with regard to factual and other trial determinations, while legal findings are subject to a de novo standard of review. State v. Hunt, 09-1589, p. 6 (La.12/1/09), 25 So.3d 746, 751, citing State v. Hampton, 98-0331, p. 18 (La.4/23/99), 750 So.2d 867, 884. When a trial court makes findings of fact based on the weight of the testimony and the credibility of the witnesses, a reviewing court owes those findings great deference, and may not overturn those findings unless there is no |flevidence to support those findings. Id. A “trial judge’s ruling [on a fact question], based on conclusions of credibility and weight of the testimony, is entitled to great deference and will not be disturbed on appeal unless there is no evidence to support the ruling.” State v. Bourque, 622 So.2d 198, 222 (La.1993).
The State bears the burden of proving the admissibility of the evidence seized without a warrant when the legality of a search or seizure is placed at issue by a motion to suppress evidence. LSAC. Cr.P. art. 703(D). A trial court’s decision relative to the suppression of evidence is afforded great weight and will not be set aside unless there is an abuse of that discretion. Hunt, 09-1589 at 7, 25 So.3d at 752.

“Probable cause to arrest exists when the facts and circumstances known to the arresting officer, and of which he has reasonable and trustworthy information, are sufficient to justify a man of ordinary caution in the belief that the accused has committed an offense.” State v. Surtain, 2009-1835, p. 7 (La.3/16/10), 31 So.3d 1037, 1043, quoting State v. Parker, 2006-0053 p. 2 (La.6/16/06), 931 So.2d 353, 355. When a person is lawfully arrested, police officers can search the person without a warrant as an incident to that arrest. State v. Jerome, 2007-1243, p. 3 (La.App. 4 Cir. 4/16/08), 983 So.2d 214, 216. See also State v. Taylor, 2007-0069 (La.App. 4 Cir. 6/27/07), 962 So.2d 480.

In reviewing a trial court’s ruling on a motion to suppress the evidence, an appellate court is not limited to evidence adduced at the hearing on the motion to suppress; it may also consider any pertinent evidence given at the trial of the case. State v. Craft, 2003-1852, p. 5 (La.App. 4 Cir. 3/10/04), 870 So.2d 359, 363; State v. Nogess, 98-0670, p. 11 (La.App. 4 Cir. 3/3/99), 729 So.2d 132, 137.

Here, Officers Scallan and Tregle were working on Bourbon Street when they were flagged down by Hal Burch, the manager of the Mango Mango Daiquiri shops. Officer Scallan was told that two men, one in a red shirt (the appellant) and one in a green shirt (Kevin Matthews) had entered the shop in the 300 block of |inBourbon Street and attempted to pay for two alcohol drinks with a counterfeit twenty-dollar bill. The man in the green shirt (Matthews) pulled out the twenty-dollar bill, but Matthews had no identification, and the sale could not be completed. The man in the red shirt (the appellant, McNair) pulled out his identification and showed it to the bartender. Then the bartender used the counterfeit identifying marker on the bill, and the mark turned black on the bill; the twenty-dollar bill was counterfeit. The man in the red shirt and the man in the green shirt were still in the 300 block of Bourbon Street when the officers approached Matthews and the appellant and arrested them. Officer Scallan said: “They [the men who used the counterfeit bill] were identified to us.” Within minutes Matthews and the appellant had been positively identified by the bartender, who stepped outside the daiquiri shop. The facts and circumstances known to Officers Scallan and Tregle were provided by the bartender of the Mango Mango Daiquiri Shop, and the arrests were made within minutes of the use of the counterfeit twenty-dollar bill. The facts are sufficient to justify the belief that Matthews and the appellant had committed the crime of forgery or attempted forgery. The officers arrested the appellant and lawfully seized the counterfeit bill pursuant to that arrest. See State v. Taylor, 2007-0069, pp. 4-5, 962 So.2d at 482-83. This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

The appellant argues that the State failed to present evidence sufficient to uphold his conviction for attempted forgery. He argues that there was no testimony that he transferred the counterfeit bill; only Matthews handed the twenty-dollar bill to the bartender to pay for drinks. The appellant argues that the fact that he produced his identification that was necessary for the sale of the drink |nand the shot does not prove that he knew that the bill was counterfeit or that he transferred the twenty-dollar bill. The appellant concedes that he was in possession of the counterfeit bill when he was arrested and by that time knew that the bill was counterfeit; however, he claims that there was no proof that he had any intent to defraud anyone.

The State in its appellee brief argues that the appellant and Kevin Matthews approached the bar/counter in the daiquiri shop and drinks were ordered. The State contends that the appellant provided the required identification, and Matthews pulled out the counterfeit twenty-dollar bill. When the bartender/cashier used the marker to determine that the bill was counterfeit, they tried to convince him that the bill was not bogus. The State focuses on the fact that officers recovered a counterfeit twenty-dollar bill from the appellant and five counterfeit hundred-dollar bills from Matthews. The State notes that Agent Sparks identified those bills as counterfeit by pointing out obvious defects in the bills that could easily be noticed. Therefore, the State argues that the rational trier of fact could have easily found that all the elements of the crime were proven.

In State v. Kirk, 2011-1218, pp. 5-6 (La.App. 4 Cir. 8/8/12), 98 So.3d 934, 939, quoting State v. Huckabay, 2000-1082, p. 32 (La.App. 4 Cir. 2/6/02), 809 So.2d 1093, 1111, this Court discussed an insufficient evidence argument:

In evaluating whether evidence is constitutionally sufficient to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Green, 588 So.2d 757 (La.App. 4 Cir.1991). However, the reviewing court may not disregard this duty simply because the record contains evidence that tends to support each fact necessary to constitute the crime. State v. Mussall, 523 So.2d 1305 (La.1988). The reviewing court must consider the record as a whole since that is what a rational trier of fact would do. If rational | ^triers of fact could disagree as to the interpretation of the evidence, the rational trier’s view of all the evidence most favorable to the prosecution must be adopted. The fact finder’s discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. Mus-sall; Green; supra. “[A] reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence.” State v. Smith, 600 So.2d 1319 (La.1992) at 1324.
In addition, when circumstantial evidence forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Shapiro, 431 So.2d 372 (La.1982). The elements must be proven such that every reasonable hypothesis of innocence is excluded. La. R.S. 15:438. This is not a separate test from Jackson v. Virginia, supra, but rather an evidentiary guideline to facilitate appellate review of whether a rational juror could have found a defendant guilty beyond a reasonable doubt. State v. Wright, 445 So.2d 1198 (La.1984). All evidence, direct and circumstantial, must meet the Jackson reasonable doubt standard. State v. Jacobs, 504 So.2d 817 (La.1987).

In this case the State filed a bill of information alleging that Kevin Matthews and the appellant “did willfully and unlawfully issue or transfer, with intent to defraud, a forged writing purporting to have legal efficacy, to wit: counterfeit U.S. currency, known by Loel L. McNair and one Kevin Matthews each to be a forged writing.” La. R.S. 14:72 provides:

A. It shall be unlawful to forge, with intent to defraud, any signature to, or any part of, any writing purporting to have legal efficacy.
B. Issuing, transferring, or possessing with intent to defraud, a forged writing, known by the offender to be a forged writing, shall also constitute a violation of the provisions of this Section.
C. For purposes of this Section:
(1) “Forge” means the following:
(a) To alter, make, complete, execute, or authenticate any writing so that it purports:
(i) To be the act of another who did not authorize that act;
(ii) To have been executed at a time or place or in a numbered sequence other than was in fact the case; or
| is(iii) To be a copy of an original when no such original existed.
(b) To issue, transfer, register the transfer of, pass, publish, or otherwise utter a writing that is forged in accordance with the meaning of Subpara-graph (l)(a).
(c) To possess a writing that is forged within the meaning of Subparagraph (1)(a).
(2) “Writing” means the following:
(a) Printing or any other method of recording information;
(b) Money, coins, tokens, stamps, seals, credit cards, badges, and trademarks; and
(c) Symbols of value, right, privilege, or identification.
D.Whoever commits the crime of forgery shall be fined not more than five thousand dollars, or imprisoned, with or without hard labor, for not more than ten years, or both.

An “intent to defraud” is an essential element of forgery. The Reporter’s Comment under La. R.S. 14:72 provides:

A general intent to defraud should be an essential element of forgery. However, it is unnecessary that an injury result from the actual consummation of the fraud, since the intent to defraud is sufficient. State v. McCranie, 192 La. 163, 187 So. 278 (1939). It is also unnecessary to prove that the offender intended to defraud any particular one, for if he intended to defraud any person the crime is complete. Hence it suffices if the instrument does or may prejudice the rights of another. State v. LaBorde [Laborde ], 120 La. 136, 45 So. 38 (1907). The intent should be able to be inferred from the circumstances, as in the case of a forgery of a check the “jury ought to infer an intent to defraud the person who would have to pay the instrument if it were genuine * * * ”. State v. Dennett, 19 La.Ann. 395 (1867).

La. R.S. 14:27 provides in pertinent part:

A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.
j * ⅜
C. An attempt is a separate but lesser grade of the intended crime; and any person may be convicted of an attempt to commit a crime, although it appears on the trial that the crime intended or attempted was actually perpetrated by such person in pursuance of such attempt.

La. R.S. 14:24 provides: “All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.”

In State v. Johnson, 2001-1281, p. 4 (La.App. 4 Cir. 4/10/02), 817 So.2d 283, 286, this Court discussed elements of the crime of forgery where counterfeit currency was involved:

For purposes of the forgery statute, “writing” means “money ... ”. La. R.S. 14:72 C(2)(b). An essential ingredient to the crime of forgery is the specific intent to defraud. State v. Wade, 375 So.2d 97 (La.1979); State v. Jackson, 258 La. 632, 247 So.2d 558 (1971); State v. Durham, 32-154 (La.App. 2 Cir. 8/20/99), 748 So.2d 1.
Specific intent is defined as that “state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” La. R.S. 14:10(1). See also State v. Hebert, 2000-1052 (La.App. 4 Cir. 4/11/01), 787 So.2d 1041, 1050; State v. Hall, 98-0667 (La.App. 4 Cir. 12/22/99), 750 So.2d 1105. Specific intent need not be proven as fact, but may be inferred from the circumstances and actions of the defendant. State v. Ricard, 98-2278, 99-0424 (La.App. 4 Cir. 1/19/00), 751 So.2d 393, writ denied, Richard v. State, 2000-0855 (La.12/8/00), 775 So.2d 1078.

In Johnson the defendant gave a Har-rah’s employee two counterfeit one-hundred-dollar bills and requested change. During questioning by the State Police troopers who were called, the defendant produced three more counterfeit hundred-dollar bills and offered conflicting explanations for the counterfeit currency. He was not cooperative and refused to give his name and social security number; he gave a false birthdate. The defendant argued that the State had not proved that the 11fihundred-dollar bills were counterfeit because no expert testified, but he had not objected to the testimony of the state trooper and casino employee that the bills were counterfeit in order to preserve it for appellate review. This Court noted that two of the bills had the same serial number; at least one of those was counterfeit. The defendant also asserted that rational jurors would not have believed that he knew the bills were counterfeit or they would have accepted his explanation and not believed that he possessed the requisite intent to defraud. This Court stated that the jury found the defendant’s explanation incredible, and a reviewing court should not disturb the credibility decisions by the jury unless such findings are clearly contrary to the evidence. This Court concluded that viewing the evidence in the light most favorable to the State, the evidence was sufficient to support the defendant’s conviction for attempted forgery. Johnson, 2001-1281, pp. 5-6, 817 So.2d at 287.

The appellant and Kevin Matthews walked into the Mango Mango Daiquiri Shop in the 300 block of Bourbon Street with a couple of other people. Matthews (in a green shirt) ordered a daiquiri and a shot of tequila, and the appellant (in a red shirt) was standing next to him. The bartender prepared the daiquiri and the shot; he then asked for identification. Matthews said that he did not have identification, but the appellant produced his identification and handed it to the bartender. Without that identification there could have been no sale. Matthews then gave the bartender a twenty-dollar bill, which he tested with the counterfeit identifying marker and found to be counterfeit. From the actions of Matthews and the appellant, it can be inferred that they intended to defraud the bartender at the Mango Mango Daiquiri Shop and obtain the drink and the shot without paying for them with legitimate currency. When the bartender found out that the bill was |inbogus, Matthews and the appellant quickly left the shop, and the appellant apparently retrieved what he knew to be a counterfeit twenty-dollar bill as they exited because he had that bill with the black mark in his possession when the officers searched him incidental to his arrest minutes later. The police officers were flagged down, by the manager of the daiquiri shop who provided the bartender’s descriptions; the appellant and Matthews were still in the block of Bourbon Street where the daiquiri shop was located. The officers approached and arrested them. Within minutes Matthews and the appellant were positively identified by the bartender, who stepped outside the daiquiri shop. Viewing the evidence in the light most favorable to the prosecution, any rational trier of fact (here the trial judge) could have found the defendant guilty beyond a reasonable doubt of attempted forgery. This assignment of error lacks merit.

CONCLUSION

Based on the above and foregoing reasons we affirm the appellant’s conviction and sentence.

AFFIRMED

      . Also charged with forgery in the same bill of information was Kevin Matthews a.k.a. Kevin Mathieu, who was found guilty of attempted forgery after a January 26, 2010 bench trial.

      . Based on that Officer Scallan’s testimony at the suppression hearing, this Court had denied the defense writ seeking review of the trial court’s denial of his motion to suppress evidence.

      . La. R.S. 14:27 was amended by La. Acts 2010, No. 531, § 1; however, the amendment only rewrote section D(2), which relates to punishment.


source: Caselaw Access Project

author: PETERS, J. GREMILLION, J.,

license: Public Domain

text:
    Milo NICKEL, et al. v. MB INDUSTRIES, LLC, et al.
    No. 12-557.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 16, 2013.
    Rehearing Denied Mar. 13, 2013.

      Kenneth Michael Wright, Kenneth Michael Wright, LLC, Lake Charles, LA, for Plaintiffs/Appellants, Milo Nickel, Mike LeBlanc, BBG Partners, LLC.
    Donald W. Washington, Nadia de la Houssaye, Jones, Walker, Waechter, Poi-tevent, Carrére & Denegre, L.L.P., Lafayette, LA, for Defendants/Appellees, MB Industries, LLC, MBI Global, LLC.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, ELIZABETH A. PICKETT, JAMES T. GENOVESE, and SHANNON J. GREMILLION, Judges.
   PETERS, J.

|1The three plaintiffs in this litigation, Milo Nickel, Mike LeBlanc, and BBG Partners, LLC (BBG), brought suit against the defendants, MB Industries, Inc. (MBI) and MBI Global, LLC (MBI Global), in an effort to redeem an assignment of litigious rights from MBI to MBI Global pursuant to the provisions of La.Civ.Code art. 2652. They now appeal the trial court’s grant of an exception of res judicata in favor of the defendants dismissing their suit. For the following reasons, we reverse the trial court’s grant of the exception and remand the matter to the trial court for further proceedings consistent with this opinion.

DISCUSSION OF THE RECORD

The facts before us are provided by the pleadings and the evidence presented by the litigants at the January 30, 2012 hearing on the exception of res judicata at issue in this appeal. In support of their exception, MBI and MBI Global offered all documents attached to its brief in support of the exception, including specifically, three documents comprising a part of the record of a suit filed in the 215th Judicial District Court of Harris County, Texas, designated as Docket Number 2008-50193 and identified as MBI Global, LLC v. Hunter Buildings & Mfg., LB, et al: (1) a September 26, 2011 filing designated as a SIXTH AMENDED PETITION; (2) a December 9, 2011 judgment of the Texas court; and (3) a January 9, 2012 motion for new trial and to modify the trial court judgment. In opposition to the exceptions, Nickel, LeBlanc, and BBG offered: (1) a transcript of an October 4, 2011 hearing in the Texas litigation; (2) documentation attesting to the status of the legal entities involved in the litigation; (3) a copy of the assignment at issue in this litigation; and (4) the testimony of Benjamin Foster, a lawyer licensed to practice pin Illinois, but who participated in the Texas litigation on a pro hac vice basis as trial counsel.

The record before us establishes that Nickel and LeBlanc are Louisiana residents and BBG is a Wyoming limited liability company authorized to do business in Louisiana. Both MBI and MBI Global are affiliated business entities and are subsidiaries of their parent company, Carmel Enterprises. MBI and MBI Global collectively design, engineer, and manufacture blast-resistant modular buildings, with MBI Global having the general responsibility of obtaining business for the entities. The market for the modular buildings is primarily the United States government, but other countries and companies are customers as well. The customers use the buildings in perilous locations or extreme environments.

During 2008 and 2009, Nickel was President of MBI Global and was a member of the board of directors of Carmel Enterprises; and LeBlanc was an officer of MBI Global and was the Chief Analytical Officer of Carmel Enterprises. Both men were also responsible for giving legal advice to all of the Carmel Enterprises subsidiaries. When they began their employment relationship with MBI Global and Carmel Enterprises, both Nickel and LeBlanc executed non-competition and confidentiality agreements (employment agreements), and these documents are the basis for the beginning of the Texas litigation.

Litigation over the relationships existing between Nickel and LeBlanc on the one hand and MBI and MBI Global on the other began in state court in Harris County, Texas, and originated as a suit by Nickel and LeBlanc against MBI and MBI Global. At some point in the litigation, the plaintiffs nonsuited their claims, but the litigation continued through counterclaims filed by MBI and MBI Global.JJn their position as plaintiffs in this phase of the Texas litigation, MBI and MBI Global asserted that Nickel and LeBlanc had breached the employment agreements by negotiating and accepting positions with a group of business entities competing with them (the Hunter Group) and by actively assisting the competitors in competition with MBI and MBI Global.

On August 9, 2011, while still a plaintiff in the suit against Nickel, LeBlanc, BBG, and the Hunter Group, MBI executed a document entitled “ASSIGNMENT” which purports to assign its rights in the litigation to MBI Global. The document reads as follows:

WHEREAS MBI and MBI Global have filed suit against Milo Nickel, Mike Leblanc, BBG, Hunter International, Hunter Buildings, Sam Lavergne and Mark Massey in cause number 2008-50193, pending in the 215th Judicial District of Harris County, Texas; and
WHEREAS the above referenced suit was necessitated because Nickel and Leblanc, while officers of MBI Global, and while Nickel was also a director of the parent company and legal counsel to the MBI entities, began diverting away and soliciting MBI’s customers, agents and contracts for their own personal financial gain and interests. Lavergne, Massey and the Hunter entities aided, abetted, assisted and encouraged them to do so for their own financial gain and with an intent to cause harm to the MBI entities; and
WHEREAS, any relief sought by MBI may be obtained by MBI Global in its own right; and
WHEREAS, the defendants in the above referenced case have requested on numerous occasions continuances and have threatened to purchase the debt of some of the creditors of MBI and then force them into bankruptcy which would result in an automatic continuance and for the further purpose of impairing MBI’s ability to obtain any work from the State Department; and
WHEREAS, if MBI is not a party to the case any longer it would remove the threat of a forced bankruptcy continuing the case; NOW,
|4FOR AND IN CONSIDERATION of ten (10) dollars ($10.00) and other good and valuable consideration, MBI hereby assigns any cause of action it may have to MBI Global, including, but not limited to, its rights to an injunction and under the first non-compete, non-solicitation and confidentiality agreement.
Nothing in this assignment releases MBI Global from any obligations it has to reimburse MBI for any expenses or obligations it may owe to MBI or which MBI may owe to MBI Global.

This assignment contains the signature of Fred Gossen, who is identified as MBI’s CEO.

Even before the execution of the assignment, trial in the Texas litigation had been set for October 11, 2011. On September 16, 2011, MBI removed itself from the litigation by nonsuit, and at a pretrial hearing held September 23, 2011, Nickel, LeBlanc, and BBG became aware of the assignment. At the end of that pretrial hearing, the trial court instructed MBI Global to clarify in its pleadings which causes of action would belong to MBI and which would belong to MBI Global. MBI Global responded to this instruction from the trial court on September 26, 2011, when it filed the sixth amendment to the original petition. In this forty-page, one-hundred-and-thirty-two paragraph pleading, MBI Global identified itself as the sole plaintiff, but referred to the activities of the defendants as being adverse to it individually and to the “MBI entities.” In stating its “CLAIMS FOR RELIEF,” MBI Global sought damages (general, statutory, punitive, and attorney fees) for breach of contract, breach of fiduciary duties, fraud, tortious interference with contracts and business relationships, conspiracy, misappropriation of trade secrets and confidential information, conversion, defamation and/or business disparagement, unjust enrichment, vicarious liability of the Hunter Group and BBG, negligence, and under the Louisiana Unfair Trade Practices and Consumer Protection Act (LUTPA). Additionally, MBI Global sought injunctive relief.

| sThe only reference to the August 4, 2011 assignment is found in the last-numbered paragraph wherein MBI Global states that “MBI Has [sic] assigned to MBI Global any and all causes of action it may have against defendants to MBI Global which will or may be pursued by MBI Global.” On September 27, 2011, or the day after MBI Global filed its sixth amending petition, Nickel, LeBlanc, and BBG filed a “special exception” seeking to effect application of La.Civ.Code art. 2652 and redeem the litigious rights transferred from MBI to MBI Global. At the same time, Nickel, LeBlanc, and BBG filed a counterclaim for declaratory judgment regarding the redemption issue under La. Civ.Code art. 2652.

On October 4, 2011, the Texas trial court held a hearing to address a number of pending pretrial motions, including the special exception addressing the attempt to redeem the transferred litigious right. After hearing argument only, the Texas trial judge rejected the special exception with the following reasons:

Okay. I have looked at this issue. I don’t see — even though Louisiana law is different on this issue than Texas law, while my inclination is to apply Texas law in the Choice of Law argument, I don’t see that the result is different under Louisiana law because of the related status of the entities and the types of rights that were assigned. So, your request to whatever it is, stay the proceedings or have an independent trial on this is denied.

Seven days later, on October 11, 2011, the matter went to trial before a Harris County jury. The instruction to the jury does not identify the parties to the litigation, but all of the questions propounded to the jury identified only MBI Global as the plaintiff at interest. In answering the questions propounded to it with regard to Nickel, LeBlanc, and BBG, the jury concluded that both Nickel and ^LeBlanc failed to comply with the fiduciary duties they owed MBI Global; that Nickel, Le-Blanc, and BBG misappropriated MBI Global’s trade secrets; and that BBG knowingly participated in Nickel’s and Le-Blanc’s breach of their fiduciary duties. The jury found that MBI Global sustained damages for past-lost profits in the amount of $4,400,000.00, but rejected all other claims for damages on the part of MBI Global.

The trial court executed a judgment purporting to conform with the jury’s verdict on December 9, 2011. With regard to the monetary amount, the judgment provided:

IT IS THEREFORE ORDERED by the court [that] MBI GLOBAL, LLC, have and recover actual damages from HUNTER BUILDINGS & MANUFACTURING, LP, HUNTER BUILDINGS, LLC, HUNTER BUILDINGS INTERNATIONAL, LLC, BBG GROUP, LLC, MILO NICKEL and MIKE LEBLANC, Defendants, jointly and severally, the sum of $4,400,000.

On November 3, 2011, or slightly over a month before the Texas judgment was executed, Nickel and LeBlanc filed the matter before us. In their petition, they sought authority to deposit the stated consideration for the assignment from MBI to MBI Global into the registry of the court; a determination of the actual consideration for the assignment; and a judgment transferring the purchased litigious rights to them upon payment of the full consideration. By a supplemental and amending petition filed on November 15, 2011, BBG was added to the litigation as a party plaintiff.

|7MBI and MBI Global responded to this Louisiana suit by answering the allegations of the petition wherein they asserted a number of affirmative defenses, and by filing peremptory exceptions of no right of action and res judicata; a declinatory exception of lis pendens; and dilatory exceptions of vagueness and prematurity.

On January 9, 2012, and before a hearing on the exceptions could be held, Nickel, LeBlanc, BBG, and the members of the Hunter Group cast in judgment in the Texas proceedings, filed a motion for new trial and a motion to modify the December 9, 2011 judgment in those proceedings. In these motions, they specifically asserted arguments concerning their position that the jury erred in answering the various questions propounded to them. Additionally, in the general argument portion of the pleading, they asserted that a new trial was warranted because the trial court allowed evidence of MBI’s claims despite the presence of the pending petition for declaratory judgment on the redemption issue. In summarizing their position on this issue, Nickel, LeBlanc, BBG, and the members of the Hunter Group cast in judgment stated the following:

In sum, it was an abuse of discretion for the trial court to fail to determine what rights were owned by the Defendants, and to introduce evidence regarding MB Industries — a entity that was non-suited before the trial in this case. By review of the jury’s findings, it is clear that admission of evidence regarding MB Industries — the entity that clearly owned any alleged trade secrets infected this trial. The error in admitting this evidence was calculated to cause and probably did cause the trial court to render an improper judgment.

At a January 30, 2012 hearing in the matter before us, the trial court considered only the exception of res judicata. MBI and MBI Global asserted in their exception that the Texas trial court had rejected the counterclaim on the issue of redemption of litigious rights filed by Nickel, Le-Blanc, and BBG and that the Texas final judgment barred relitigation of the redemption issue in Louisiana. | sNickel, Le-Blanc, and BBG asserted that the Texas trial court did not consider the redemption issue in the context of that litigation, and that the redemption demand did not arise out of the same transaction or occurrence as the underlying Texas litigation. Benjamin Foster testified at the hearing that the January 9, 2012 motions had not yet been ruled on by the Texas court and that they were scheduled for hearing on February 10, 2012. Additionally, he testified that he had been instructed by his clients to file an appeal if they were unsuccessful in obtaining relief from the December 9, 2011 judgment at the trial level.

After completion of the evidentiary and argument phases of the hearing, the trial court granted the exception of res judicata without providing any reasons for the decision. Thereafter, Nickel, LeBlanc, and BBG perfected this appeal, asserting in their sole assignment of error that the trial court erred in granting the exception of res judicata.

OPINION

The right of redemption of litigious rights sold to a third party is provided for in La.Civ.Code art. 2652:

When a litigious right is assigned, the debtor may extinguish his obligation by paying to the assignee the price the assignee paid for the assignment, with interest from the time of the assignment.
A right is litigious, for that purpose, when it is contested in a suit already filed.
Nevertheless, the debtor may not thus extinguish his obligation when the assignment has been made to a co-owner of the assigned right, or to a possessor of the thing subject to the litigious right.

While La.Civ.Code art. 2652 became law by Acts 1993, No. 841, § 1, eff. January 1, 1995, the Revision Comments to the Article suggests that “[t]his Article combines the substance of Articles 2652 through 2654 of the Louisiana Civil Code 19of 1870.” That being the case, we can look to the jurisprudence of an earlier time to find the purpose of the Article.

Thus it may be seen from the history of the articles of the Civil Code (Nos. 2652, 2653, and 2654) on ‘Litigious Rights,’ that the object thereof was primarily ‘to prevent the purchasing of claims from avarice or to injure the debtor. * * ⅜ ’ And in order to carry into effect the purpose of the law, the one against whom the claim is purchased is permitted to invoke the provisions of the Civil Code, art. 2652, against such a purchaser and release himself therefrom by paying the purchaser the price of the transfer, together with interest from the date thereof. In other words, the lawmakers have deemed it advisable from a standpoint of equity and public policy, in the sale of a matter in litigation, to favor the party against whom the matter in litigation is transferred over one who speculates in law suits. He is given the absolute right to take over the third party’s deal or bargain upon reimbursing the transferee the price paid therefor with interest, and the matter is considered as though he had compromised with his opponent for such amount.

Smith v. Cook, 189 La. 632, 644, 180 So. 469, 473 (1937).

The record before us clearly establishes that the August 9, 2011 assignment from MBI to MBI Global was an assignment of litigious rights. The rights transferred were those in a contested suit already filed, and there is no evidence in the record to establish that MBI Global was a co-owner of those rights or is a possessor of the thing subject to the litigious right. Thus, the only question before us is whether or not the redemption issue has been adjudicated to a final judgment such that the doctrine of res judicata applies.

Louisiana Revised Statutes 13:4231 provides:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
110(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

The key to the application of La. R.S. 13:4231 is the existence of a valid and final judgment on the subject matter being raised in the latter suit. As stated in Daigle v. Merrill Lynch, 11-965, p. 6, (La.App. 3 Cir. 2/8/12), 85 So.3d 168, 172, writ denied, 12-523 (La.4/13/12), 85 So.3d 1253:

“Res judicata bars the relitigation of issues when there is a valid, and final judgment and certain factors exist: (1) the parties are the same as in the original suit, (2) the cause(s) of action in the second suit existed at the time the judgment in the first suit was rendered, and (S) the same relief is demanded in the second suit as was in the first suit.” Additionally, the burden of proof in an exception of res judicata rests with the party that filed the exception. Steckler v. Lafayette Consol. Gov’t, 11-427 (La.App. 3 Cir. 11/2/11), 76 So.3d 161, writs denied, 11-2639,11-2677 (La.2/10/12), 80 So.3d 477, 487.

We recognize that the December 9, 2011 Texas judgment is a valid and final judgment as it relates to the issues litigated before the jury in the trial which began on October 11, 2011. United States Constitution, Article IV, § 1 requires each state to give full faith and credit to the public acts, records, and judicial proceedings of every other state, and this provision requires that Louisiana give the same preclusive effect to another state’s judgment that it would have in that state. Brown v. Brown, 387 So.2d 565 (La.1980), cert. denied, 450 U.S. 966, 101 S.Ct. 1482, 67 L.Ed.2d 615 (1981). Additionally, in Texas, a judgment is final for purposes of res judicata even if it is pending on appeal. Scurlock Oil Co. v. Smithwick, 724 S.W.2d 1 (Tex.1986). However, for the doctrine of res judicata to apply the final judgment relied upon by the party asserting its application must have addressed Uand ruled upon the issue giving rise to the relief requested in the subsequent suit. We find that the record before us does not support a finding that the December 9, 2011 judgment addresses the redemption issue raised in this litigation.

The redemption issue was clearly raised through the pleadings filed in the Texas litigation by Nickel, LeBlanc, and BBG. However, nothing in the record before us suggests that the Texas trial court ever ruled on the merits of the counterclaim. In fact, the record supports an opposite conclusion.

At the end of the October 4, 2011 hearing, the Texas trial court did not reject the right to redemption provided for in La. Civ. Code art. 2652. Instead, its ruling was that “your request to whatever it is, stay the proceedings or have an independent trial on this is denied.” Although this language would suggest that the issue might have gone to trial with the other issues on October 11, 2011, the record before us does not support that supposition, either. The questions propounded to the jury relate only to the claims asserted by MBI Global, and nothing in those questions addresses the viability of the redemption request. Additionally, nothing in the record points to a separate ruling by the trial court on that issue. In fact, the argument set forth in the January 9, 2012 motion seeking a new trial and/or modification of the December 9, 2011 judgment supports the position that the issue remained unresolved in the Texas court because the complaint was that the trial court allowed the admission of improper evidence regarding MBI’s trade secrets, not that the trial court erred in denying the right of redemption.

Because we find that MBI and MBI Global failed in their burden to establish that a final and valid judgment addressing the redemption issue exists, we find that the trial court erred in granting the exception of res judicata. Given that finding, Jjgwe need not consider whether the absence of MBI as a party plaintiff in the Texas litigation at the time the redemption issue was raised is also fatal to the argument of MBI and MBI Global.

DISPOSITION

For the foregoing reasons, we reverse the trial court’s grant of an exception of res judicata in favor of MB Industries, Inc. and MBI Global, LLC, dismissing the demands of Milo Nickel, Mike LeBlanc, and BBG Partners, LLC for the right of redemption of litigious rights pursuant to La.Civ.Code art. 2652, and remand the matter to the trial court for further proceedings consistent with this opinion. We assess all costs of this appeal to MB Industries, Inc. and MBI Global, LLC.

REVERSED AND REMANDED.

GREMILLION, J., dissents and assigns written reasons.

GREMILLION, J.,

dissents and assigns written reasons.

|, On October 4, 2011, the presiding judge in the Texas litigation held a hearing on a number of pre-trial motions. One issue he heard was a special exception by Nickel, LeBlanc, Hunter, and BBG, asking the trial court to rule on whether they had the right to redeem the litigious rights assigned by MBI to MBG. The parties presented argument on the issue that consumed thirty-four pages of the hearing’s transcript. The Texas court heard argument by counsel from Louisiana to inform the trial court of Louisiana law on redemption of litigious rights. The trial court denied the special exception.

The matter proceeded to a jury trial in Harris County on October 11, 2011. The jury found for MBG and against Nickel, LeBlanc, Hunter and BBG, and awarded MBG $4.4 million. A judgment to that effect was signed on December 9, 2011. The judgment denied all other claims, including the counterclaim to redeem the litigious rights. The Texas defendants filed a motion for new trial and to modify the judgment, which was denied. The Texas judgment is, at the time of this opinion, pending on appeal.

| ¡¿Shekel and LeBlanc filed the present matter on November 3, 2011, seeking to deposit $10.00 plus interest into the registry of the court and praying for a judgment transferring the litigious rights of MBI to them. They amended the petition on November 15, 2011, to add BBG as a party plaintiff. MBG and MBI filed this exception in response to the suit.

The exception of res judicata asserted that because Nickel, LeBlanc, and BBG had filed the counterclaim in the Texas litigation, which resulted in their demands being rejected, the final judgment in the Texas litigation barred relitigation of the redemption of the litigious rights in Louisiana. On the contrary, appellants argued, the Texas trial court never dealt with the issue directly, and the demand for redemption of the litigious rights did not arise out of the same transaction or occurrence as the underlying claim in the Texas litigation. Appellants also argued that MBG was tasked with proving the merits of its exception and failed to carry its burden of proof because it did not show that the redemption demand was litigated. The jury verdict form, which was introduced into evidence, did not reference the redemption right. One of the attorneys for Nickel, LeBlanc, and BBG testified that the issue of the redemption was litigated in Texas, but he did not recall whether the trial court issued a ruling on the point. The record, however, clearly demonstrates that the Texas court gave consideration to this issue and denied Appellants their redemption.

Res judicata is governed by La.R.S. 13:4231, et seq. Section 4231 provides:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment. |a(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

The burden of proof in an exception of res judicata rests with the party that filed the exception. Steckler v. Lafayette Consol Gov’t, 11—427 (La.App. 3 Cir. 11/2/11), 76 So.3d 161.

Res judicata bars the relitigation of issues when there is a valid and final judgment and certain factors exist: (1) the parties are the same as in the original suit, (2) the eause(s) of action in the second suit existed at the time the judgment in the first suit was rendered, and
(3) the same relief is demanded in the second suit as was in the first suit.

Daigle v. Merrill Lynch, 2011-965, p. 6, (La.App. 3 Cir. 2/8/12), 85 So.3d 168, 172, writ denied, 12-0523 (La.4/13/12), 85 So.3d 1253 (citing Burguieres v. Pollingue, 02-1385 (La.2/25/03), 843 So.2d 1049 and In re Succession of Carlton, 11-288 (La.App. 3 Cir. 10/5/11), 77 So.3d 989).

A valid and final judgment

Article 4, Section 1 of the United States Constitution requires each state to give full faith and credit to the public acts, records, and judicial proceedings of every other state. The Full Faith and Credit Clause requires that Louisiana give the same preclusive effect to another state’s judgment that it would have in that state. Brown v. Brown, 387 So.2d 565 (La.1980). In Texas, a judgment is final for purposes of res judicata even if it is pending on appeal. Scurlock Oil Co. v. Smithwick, 724 S.W.2d 1 (Tex.1986). This rule applies unless an appeal of the first case would result in, rather than preclude, unnecessary and repetitive litigation. See Texas Beef Cattle Co. v. Green, 921 S.W.2d 203 (Tex.1996). Such is not the case here. The right to redeem the litigious rights assigned to MBG that 14was asserted in the Texas counterclaim is identical to that asserted in the Louisiana litigation. Therefore, under Texas law, which we are bound to apply, the judgment is final and valid. The parties

MBG, Nickel, LeBlanc, and BBG were all parties to the Texas litigation, but MBI was not. Clearly, then, an additional party to this matter necessitates that we determine whether the addition of MBI precludes maintaining the exception. This court has previously ruled that an exception of res judicata cannot be maintained against a litigant who was not a party to the former litigation. Kibodeaux v. Kibodeaux, 93-1143 (La.App. 3 Cir. 4/6/94), 635 So.2d 530. Louisiana law requires not that the parties are physically the same, but that they appear in the same capacities in both suits. Burguieres, 843 So.2d 1049. In dicta, the supreme court in Burguieres stated that the identity of parties can be satisfied “when a privy of one of the parties is involved.” Id at n. 3, (citing Welch v. Crown Zellerbach Corp., 359 So.2d 154 (La.1978)).

“Privity” flows from title or ownership back to a common source. Noel v. Jumonville Pipe & Machinery Co., 245 La. 324, 158 So.2d 179 (1963). Successors in interest, therefore, are privies. Id. In the present matter, MBG and MBI, as assign-ee and assignor, are privies; therefore, the requirement that the parties be identical has been satisfied.

The cause of action

Appellants' cause of action for redemption of the litigious right arose when the litigious right was assigned. La.Civ.Code art. 2652. The assignment was executed during the pendency of the Texas litigation and became an issue in the Texas litigation when Appellants sought to redeem the right by filing the counterclaim. The second element of res judicata was clearly proven.

| hThe same relief is sought

In both the Texas litigation and the present matter, the issue of redemption of the litigious right was asserted. In Texas, the issue was actually litigated and Appellants’ right to redeem the litigious right was denied. The same relief was sought in both cases.

I would affirm the judgment of the trial court maintaining the exception of res judi-cata in favor of MB Industries, LLC, and MB Global, LLC.

      . The bulk of the information concerning the relationship between the patties to this litigation is derived from this document.

      . The specific date of the beginning of the Texas litigation is not provided in the record before us, although the docket number establishes that the filing occurred in 2008.

      . The members of the Hunter Group were also named as defendants in the Texas litigation. The members of the Hunter Group are Hunter Building & Manufacturing, L.P.; Hunter Leasing, L.P.; Hunter Buildings, LLC; Hunter Buildings International, LLC; Mark Massey; and Samuel B. Lavergne. Massey and Lavergne are officers of one or more of the Hunter business entities.

      . A copy of the written instructions to the jury and the questions propounded to the jury is attached to the pleadings of MBI and MBI Global and has been referred to by the litigants without objection.

      . Hunter Leasing, L.P. was not listed on any of the questions propounded to die jury, and the jury found no liability attributable to Mark Massey and Samuel B. Lavergne. With regard to the other members of the Hunter Group made defendants in the litigation, the jury found that they misappropriated MBI Global’s trade secrets and participated in the activity of Nickel and LeBlanc wherein they breached the fiduciary duties owed to MBI Global.

      .Despite the findings of fault as set forth herein, when asked to apportion the fault to be assigned to those who contributed to MBI Global, the jury assigned no fault to Nickel and LeBlanc. Instead, the jury assigned seventeen percent to Hunter Buildings & Manufacturing, L.P.; sixteen percent to Hunter Buildings, LLC; thirty-four percent to Hunter Buildings International, LLC; and thirty-three percent to BBG. While the issue of apportionment of fault is a part of the Texas motion for new trial and motion to amend judgment, it is not pertinent to the issue now before us.

      . MBI and MBI Global implied in the argument before the trial court that MBI Global was a co-owner of the rights transferred, but the record contains no evidence to support that assertion.

      . Neither party to this litigation provided the trial court with a copy of the counterclaim filed by Nickel, LeBlanc, and BBG in the Texas litigation, but both parties acknowledge that such a filing occurred,

      . In paragraph G of their motion for new trial, Nickel and LeBlanc argued that they were entitled to new trial because the trial court admitted evidence of wrongs perpetrated against MBI, which they should have been allowed to redeem under Louisiana law. This motion for new trial was filed on January 17, 2012, after the petition was filed in Louisiana.


author: PETERS, Judge.

text:
    Ronald BROOKS v. Dr. John Scott SIBILLE, et al. Jennifer Chavis, individually and as Natural Tutrix for Jamesha Wilson and Jaliyah Wilson v. Dr. John Scott Sibille, et al.
    Nos. CA 12-1093, CA 12-1094.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 2013.

      Terry L. Rowe, Attorney at Law, Lafayette, LA, for Defendants/Appellees, State Farm Fire & Casualty Company, Dr. John Scott Sibille, Paulette Sibille.
    H. Edward Sherman, Attorney at Law, New Orleans, LA, for Plaintiffs/Appellants, Jennifer Chavis, individually and as natural tutrix for her minor children, Jonas Chavis, Jamesha Wilson, and Jaliyah Wilson, Ronald Brooks.
    Court composed of JIMMIE C. PETERS, BILLY H. EZELL, and J. DAVID PAINTER, Judges.
   PETERS, Judge.

|/The defendants-appellees, Dr. John Scott Sibille, Paulette Sibille, and State Farm Fire and Casualty Insurance Company, filed a motion to dismiss as abandoned the appeals taken by the plaintiffs-appellants, Jennifer Chavis, individually and as natural tutrix for her minor children, Jonas Chavis, Jamesha Wilson, and Jaliyah Wilson, and Ronald Brooks. The appellants filed a brief in opposition to the motion to dismiss. For the reasons expressed below, we dismiss these appeals for lack of jurisdiction and remand these cases for clarification of the judgment appealed.

The appellants filed these suits for damages arising out of the unfortunate drowning of two minor children in a pond located on or nearby property owned by the defendants, the Sibilles. The appellees filed a motion for summary judgment, which the trial court granted. The trial court signed a written judgment which reads in pertinent part, “IT IS ORDERED, ADJUDGED AND DECREED that Defendants’ Motion for Summary Judgment is hereby granted”. The appellants filed appeals from this judgment.

The appeal records in these consolidated cases were lodged in this court on September 21, 2012. Therefore, the appellants’ brief was due to be filed in these appeals by no later than October 16, 2012. On October 11, 2012, the appellants’ counsel filed a motion with this court seeking an extension of the filing due date for his appellate brief in these appeals. This court granted this request and set the new due date for October 26, 2012.

On October 26, 2012, the appellants’ counsel again sought an extension of the due date for his brief, and this court ordered the due date be extended to November 5, 2012. And yet again, on November 6, 2012, this court granted another requested extension to the appellants’ counsel and further extended the briefing deadline to November 8, 2012.

| pSince this court did not receive any brief by the appellants’ counsel within the extended due date, on November 13, 2012, this court issued an order to the appellants’ counsel informing him that if the appellants’ brief was not filed within thirty days of the mailing of that notice, the appeals would be dismissed as abandoned pursuant to Uniform Rules — Courts of Appeal, Rule 28.6. Thus, appellants’ counsel had until December 13, 2012, within which either to deliver to this court or to place into a delivery service the appellants’ brief in these appeals.

Despite these extensions and despite the thirty day notice sent to the appellants’ counsel, the appellants’ brief was neither filed with this court nor placed into a delivery service by December 13, 2012. Instead, appellants’ brief was placed into the Federal Express delivery system on December 14, 2012. This brief was actually received by this court on December 17, 2012.

Therefore, on December 27, 2012, the appellees filed their motion to dismiss these appeals as abandoned. The appellants’ counsel filed a brief in opposition to the motion to dismiss attempting to explain why the briefs were not filed by December 13, 2012. Although this court now dismisses these appeals, we do not dismiss them as abandoned; instead, we find that this court never had subject matter jurisdiction over these appeals as the judgment appealed is improper and is not appealable.

In Gaten v. Tangipahoa Parish School System, 2011-1133 (La.App. 1 Cir. 3/23/12), 91 So.2d 1073, the plaintiff filed an appeal from a grant of summary judgment in favor of the defendants. In dismissing the appeal, the appellate court wrote:

Appellate courts have the duty to determine sua sponte whether their subject matter jurisdiction exists, even when the parties do not raise the issue. Motorola, Inc. v. Associated Indemnity Corporation, 02-1351 (La.App. 1 Cir. 10/22/03), 867 So.2d 723, 725. Under Louisiana law, a final judgment is one that determines the merits of a controversy in whole or in part. La.Code Civ. Proc. Ann. art. 1841. A final judgment must be identified as such by appropriate language. La.Code Civ. Proc. Ann. art. 1918. A valid judgment must be precise, definite, and certain. Laird v. St. Tammany Parish Safe Harbor, 02-0045 (La.App. 1 Cir. 12/20/02), 836 So.2d 364, 365. A final |sappealable judgment must contain decretal language, and it must name the party in favor of whom the ruling is ordered, the party against whom the ruling is ordered, and the relief that is granted or denied. See Carter v. Williamson Eye Center, 01-2016 (La.App. 1 Cir. 11/27/02), 837 So.2d 43, 44. These determinations should be evident from the language of a judgment without reference to other documents in the record. Laird, 836 So.2d at 366. The amended judgment, like the first judgment, does not contain proper de-cretal language. Specifically, although the judgment grants TPSS’s motion for summary judgment, it does not specify what that relief entails. In the absence of such decretal language, the judgment before us is defective and cannot be considered as a “final judgment.” See Carter, 837 So.2d at 44. In the absence of a final judgment, this court lacks jurisdiction to review this matter. Laird, 836 So.2d at 366.

In the instant appeals, the trial court’s judgment, just like the judgment in Gaten, grants summary judgment in favor of the appellees and against the appellants; however, there is no way to know the relief granted in this ruling from reference to the judgment itself. Thus, as in Gaten, we find that this court lacks jurisdiction to review this matter because the judgment is not appealable. Therefore, we find that we cannot grant the appellees’ motion to dismiss the appeal on the basis of abandonment because the appeals were never properly cognizable in this court. Instead, we hereby dismiss these appeals at appellants’ cost and remand these cases to the trial court for further proceedings in accordance with this court’s ruling, including reformation of the judgment. See State v. White, 2005-718 (La.App. 3 Cir. 2/1/06), 921 So.2d 1144 (where the appellate court dismissed the appeal and remanded the case for the judgment’s reformation and any necessary clarification of the appellate record).

MOTION TO DISMISS DENIED.

APPEAL DISMISSED AND REMANDED FOR CLARIFICATION.


author: GREMILLION, Judge.

text:
    Sherman JOURNET v. Clifford MOUTON, et al.
    No. 12-811.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 6, 2013.

      James L. Pate, Jason T. Reed, Laborde & Neuner, Lafayette, LA, for Defendants/Appellees, Sheriff Ronnie Theriot, Deputy Clint Aubrey, St. Paul Fire and Marine Insurance Company.
    Kenny Layne Oliver, David Oliver Way, Oliver & Way, Lafayette, LA, for Defendant/Appellee, Avis Budget Car Rental, LLC.
    Joslyn Renee Alex, Attorney at Law, Breaux Bridge, LA, Pride Justin Doran, Quincy L. Cawthorne, Doran & Cawt-horne, P.L.L.C., Irvin J. Celestine, Jr., Attorney At Law, Opelousas, LA, for Plaintiff/Appellant, Sherman Journet.
    Court composed of ELIZABETH A. PICKETT, JAMES T. GENOVESE, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

^Sherman Journet appeals the summary judgment granted in favor of St. Martin Parish Sheriff Ronnie Theriot, St. Martin Parish Sheriffs Deputy Clint Aubrey, and their insurer, St. Paul Fire and Marine Insurance Company, dismissing Journet’s demands against those defendants/appellants resulting from a motor vehicle accident that occurred on January 1, 2006.

FACTS

Sherman and Paula Journet celebrated their marriage on the afternoon of December 31, 2005. Their wedding reception was held at a bar from 3:00 p.m. until around 7:00 p.m. The couple was then chauffeured around to various other establishments. Along the way, Sherman (henceforth “Journet”) consumed a prodigious amount of alcohol and partook of marijuana as well. The couple returned to their home sometime after 2:00 a.m. on January 1, 2006.

The following morning between 8:30 and 9:00, Paula Journet’s mother returned the couple’s two children, Jaylan (age 5 at the time) and Jaleigh (then seven months old) to their home. The Journets trundled their children into a car that had been rented for Journet by his employer, Mr. Clifford Mouton, and embarked on a short journey to procure some breakfast. As the family was returning home along Louisiana Highway 328 in St. Martin Parish, Journet, who has never held a driver’s license, was driving. He approached a slow-moving ambulance, which he passed on the two-lane highway. He then passed another couple of cars.

Journet also saw a Chevrolet Tahoe driven by Deputy Aubrey when it was “a few hundred feet” ahead, and before he attempted his passing maneuvers. He recognized that Aubrey’s vehicle was “barely moving.” He described the events thusly:

U just stayed — I didn’t want to pass him up because I knew he knew me, you know, and I ain’t had no license, so I stayed, you know behind him.... At the same time I started slowing down, that’s when, you know, I noticed he was still going slow, and then he stopped. So, at the same time like I went to slow down, that’s when I — he stopped, and that’s when I wrecked at the same time, you know.

The highway was damp from a mist that was falling. Journet “slammed” on his brakes and attempted to steer around Aubrey, but aborted that maneuver when he realized a vehicle was approaching from the opposite direction. Journet’s vehicle began to spin, crossed the center line, the opposing lane, entered the ditch on the opposite side of the road, and overturned.

Journet denied seeing Aubrey’s brake lights or turn signal being lit at any time. Paula Journet recalled seeing Aubrey’s brake lights immediately before the accident.

Aubrey had been dispatched to a residence on Highway 328 to assist an older woman who had fallen. He realized that he had passed the woman’s driveway and was going to turn right into the circular driveway of a residence in order to turn around head in the opposite direction. As he turned into the driveway, Aubrey saw the Journet vehicle go past.

The official investigation of the crash was undertaken by State Trooper David Speyrer. Trooper Speyrer arrived at the scene around 9:35 a.m., approximately ten minutes after he was dispatched. He did not measure the distance between the area that Journet’s vehicle entered the ditch and the point where Aubrey indicated he was turning, but he estimated it to be several hundred feet. He obtained a statement from Journet at Lafayette General Hospital, during which he noted a strong odor of alcohol on Joumet’s breath. Trooper Speyrer thought Journet was obviously impaired.

| sJournet suffered severe injuries in the collision, most notably a fracture and sub-luxation of the fourth cervical vertebrae. As a result, he was functionally rendered a quadriplegic. Surgical and rehabilitative intervention resulted in Journet regaining much of his function.

Two separate suits were filed in connection with this accident. Journet sued Mr. Mouton, Allstate Insurance Company, Aubrey, and the St. Martin Parish Sheriffs Office. Paula Journet filed suit individually and on behalf of her minor children and named the same defendants. Sheriff Theriot, Aubrey, and their insurer filed two separate motions for summary judgment. The first was filed in July 2008. The instant motion was filed in July 2011.

The defendants/appellees offered excerpts from the depositions of Journet, Paula Journet, Trooper Speyrer, and Aubrey in support of their motion. In opposition, Journet offered an unsworn letter from Richard A. Parent, Ph.D., President of Consultox, Ltd., in which he opined that Journet’s test results did not indicate that he was impaired at the time of the accident. Journet also offered the unsworn report of Michael S. Gillen of National Collision Technologies, Inc., an accident reconstructionist, who posited a number of factual conclusions without expressing an opinion as to the ultimate issue in the case: who caused the accident. Additionally, he attached the full transcript of his deposition; certified medical records from Dr. Patrick A. Juneau III, M.D., a Lafayette neurosurgeon; the full transcript of Aubrey’s deposition; and the full transcript of Paula Journet’s deposition.

RThe trial court heard the motion on August 23, 2011. Following argument, the trial court granted summary judgment in favor of defendants/appellees. The trial court refused to consider those items that were unsworn.

Journet appeals, arguing that the trial court erred in granting the summary judgment as the evidence demonstrates that Aubrey was traveling at an exceedingly slow speed on a well-traveled highway and that a genuine issue of material fact exists over whether Aubrey had his turn signal activated.

ANALYSIS

An appellate court reviews a grant of summary judgment de novo, applying the same standards as would a trial court. Vizzi v. Lafayette City-Parish Consol. Gov’t, 11-2648 (La.7/2/12), 93 So.3d 1260. Summary judgment is governed by La. Code Civ.P. arts. 966 and 967. Summary judgment is favored and is designed to secure a just, speedy, and inexpensive determination of every action, except those in which summary judgment is disallowed. La.Code Civ.P. art. 966(A)(2). After adequate discovery or after a case is set for trial, a motion for summary judgment that shows there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law shall be granted. La.Code Civ.P. art. 966(C)(1). Summary judgments must be supported or opposed by affidavits made on personal knowledge and setting forth facts that would be admissible at trial, depositions, answers to interrogatories, and admissions on file. La.Code Civ.P. art. 966(B); La.Code Civ.P. art. 967(A).

“A ‘genuine issue of material fact’ is one over which reasonable minds could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate.”. Smitko v. Gulf South Shrimp, Inc., 11-2566, p. 8 (La.7/2/12), 94 So.3d 750, 755. Facts are | ^material when their existence or non-existence potentially ensures or precludes plaintiffs recovery or determines the outcome of the litigation. Id.

We are called upon to decide the fault of the parties in this motor vehicle accident. Louisiana has long employed the duty-risk analysis in determining negligence actions. See Dixie Drive It Yourself System v. Am. Beverage Co., 242 La. 471, 137 So.2d 298 (1962); Hill v. Lundin & Assoc., Inc. 260 La. 542, 256 So.2d 620 (1972). “To determine [the defendant’s liability for this accident, the duty-risk analysis requires proof that: (1) the defendant had a duty to conform his conduct to a specific standard; (2) the defendant’s conduct failed to conform to the appropriate standard; (3) the defendant’s conduct was a cause-in-fact of the plaintiffs injuries; (4) the defendant’s substandard conduct [was] a legal cause of the plaintiffs injuries; and (5) proof of actual damages.” Toston v. Pardon, 03-1747, pp. 14-15 (La.4/23/04), 874 So.2d 791, 801.

When analyzing a negligence case, particularly on summary judgment, we must bear in mind a few elementary principles. Whether a duty exists is a question of law. Mundy v. Dep’t of Health and Human Resources, 620 So.2d 811 (La.1993). Whether the defendant breached that duty represents a factual determination. Id. The determination of whether the defendant’s conduct was a cause-in-fact of the plaintiffs injuries is also a question of fact. Rando v. Anco Insulations, Inc., 08-1163, 08-1169 (La.5/22/09), 16 So.3d 1065. Therefore, summary judgment is appropriate only when reasonable minds could not disagree that the defendant did not breach his duty to the plaintiff or that the defendant’s conduct was not a cause-in-fact of the plaintiffs injuries.

In the context of this case, a duty is created by statute to conform one’s speed so as not to impede the normal and reasonable movement of traffic. La.R.S. 32:64(B). A driver is also obligated to signal his intent to turn by activating his | fiturn signal. La.R.S. 32:104(B). Lastly, a following driver is obligated to not follow another vehicle too closely. La.R.S. 32:81(A).

Aubrey testified that he had activated his turn signal. Journet testified that he did not see either brake lights or a turn signal. Paula Journet testified that she did see Aubrey’s brake lights. Therefore, we could conclude that Journet was simply not paying adequate attention to see either the brake lights or turn signal. However, we cannot ignore Paula Journet’s testimony about Aubrey’s turn signal: “No, they never had no turn signal.” This completely contradicts Aubrey’s testimony. So an issue of fact does exist as to whether Aubrey employed his turn signal.

The questions still remains whether, assuming for the sake of argument that Aubrey breached his duty to use his signal, that breach was a cause-in-fact or a legal cause of the accident. We conclude it was not.

“Cause-in-fact” is generally a “but-for” analysis. If the plaintiffs injuries probably would not have been sustained absent the defendant’s conduct, the conduct represents a cause-in-fact. Roberts v. Benoit, 605 So.2d 1032 (La.1991). When several causes were present, we utilize a “substantial factor” test. Id. We cannot conclude that Aubrey’s conduct was not a eause-in-fact of the accident.

The question of whether Aubrey’s conduct was a legal cause of the accident is another proposition entirely. Determining legal cause is a matter of deciding whether the scope of the duty imposed was intended to protect the plaintiff from the particular risk that befell him. Id. This involves a policy decision on the part of the court: Is there a relatively easy association between the duty breached and the risk plaintiff encountered? Id. Under these circumstances, we conclude that Aubrey’s conduct was not the legal cause of the accident.

17Journet testified that from hundreds of feet back, he recognized that Aubrey was traveling at a very slow rate of speed. Journet was traveling at approximately forty to forty-five miles per hour, and he estimated Aubrey to be traveling at between five and ten miles per hour. Jour-net, as the following vehicle, bore the responsibility to maintain a safe distance from Aubrey. Following vehicles are also tasked with a statutory duty, as found in La.R.S. 32:81(A), which (emphasis added), “The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon and the condition of the highway.” Long ago, the Louisiana Supreme Court summarized the duties of the following driver:

It is the duty of the driver operating an automobile, upon approaching another automobile from the rear while both cars are travelling in the same direction, to exercise a great deal of care. He must look out for the person ahead, realizing that that person is engaged in handling a high-powered machine requiring constant attention and that his lookout is forward and not backward. The driver of the rear car must keep a safe distance behind the front car and must have his machine under such control as to avoid injury to the car ahead or to his own ear so long as the driver of the front car is driving in accordance with his rights.

Burns v. Evans Cooperage Co., 208 La. 406, 419, 23 So.2d 165, 169 (1945). More recently, we recognized the “duty of great care ” imposed on the following motorist, except in the instance in which the lead motorist “negligently creates a hazard which the driver of the following vehicle cannot reasonably avoid.” La. Farm Bureau Mut. Ins. Co. v. Regal Ins. Co., 01-1446, pp. 2-3 (La.App. 3 Cir. 3/6/02), 809 So.2d 1280, 1283. We have long held that La.R.S. 32:64(B) does not apply to traffic in areas with residences. See Chatagnier v. Allstate Ins. Co., 248 So.2d 590 (La.App. 3 Cir.1971).

The fact that Journet recognized the St. Martin Sheriffs vehicle several hundred feet in front of him, traveling at a very slow speed, not only should have Rexcited concern from Journet, it in fact did. The record indicates that he knew of this fact for a full sixty seconds. He testified that his intention was to fall in behind the sheriffs vehicle because he knew a strong possibility existed that he would be recognized and stopped. Nonetheless, he proceeded to pass two other motorists traveling slower than the forty miles per hour he was driving. Thus, Journet had all the information he needed to avoid this accident regardless of whether Aubrey signaled a turn. Accordingly, we are hard-pressed to even find a genuine issue regarding eause-in-fact. Certainly, there is no issue regarding legal cause. It is clear that Journet was not operating his vehicle with due regard for the speed of Aubrey, the traffic on the road, or the slick road conditions. These failures were the legal causes of the accident.

We affirm the trial court’s judgment. All costs of this appeal are taxed to plaintiff/appellant, Sherman Journet.

AFFIRMED.

GENOVESE, J., concurs in the result.

      . This suit forms the basis for the appeal in the present matter.

        . Paula Joumet's suit forms the basis for the consolidated appeal under Docket Number 12-812.