text:
    Betty HOOPER, John Hooper, Darryl Cleveland and Michael Mannino v. WISTERIA LAKES SUBDIVISION, CJS Development, Calvin Blount and Steven Cantu.
    No. 2013-C-2433.
    Supreme Court of Louisiana.
    Jan. 27, 2014.
   In re CJS Development, LLC; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. A, No. 550,400; to the Court of Appeal, First Circuit, No. 2013 CA 0050.

Not considered; not timely filed. Although Columbus Day is a legal holiday pursuant to La. R.S. 1:55(A)(1), it is not one of the specific enumerated holidays which are listed as legal holidays in La. R.S. 1:55(E)(3) for purposes of the calculation of time delays under La.Code Civ. P. art. 5059.


source: Caselaw Access Project

license: Public Domain

text:
    Christopher J. BOURGEOIS v. Dana A. Benintende BOURGEOIS.
    No. 2013-C-2439.
    Supreme Court of Louisiana.
    Jan. 27, 2014.
   In re Bourgeois, Dana A. Benintende;— Defendant; Applying For Writ of Certio-rari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. K, No. 2009-15695; to the Court of Appeal, First Circuit, No. 2013 CA 0038.

Not considered; not timely filed.


text:
    In re Appeal of the DISCIPLINARY BOARD NO. 13-PDB-064.
    No. 2013-OB-2616.
    Supreme Court of Louisiana.
    Jan. 27, 2014.
   In re Brown, Richard R.; — Plaintiff; Applying For Appeal of the Decision of the Disciplinary Board Office of Disciplinary Board, No. 13-PDB-064.

Leave to appeal denied.


text:
    In re Appeal of the Decision of the DISCIPLINARY BOARD NO. 13-PDB-044.
    No. 2013-OB-2644.
    Supreme Court of Louisiana.
    Jan. 27, 2014.
   In re Butts, Edgar R.; — Plaintiff; Applying For Appeal of the Decision of the Disciplinary Board Office of Disciplinary Board, No. 13-PDB-044.

Leave to appeal denied.


text:
    In re Appeal of the Decision of the DISCIPLINARY BOARD NO. 13-PDB-081.
    No. 2013-OB-2666.
    Supreme Court of Louisiana.
    Jan. 27, 2014.
   In re Gelder, Steve A.; — Plaintiff; Applying For Appeal of the Decision of the Disciplinary Board Office of Disciplinary Counsel, No. 13-PDB-081.

Leave to appeal denied.


text:
    In re Appeal of the Decision of the DISCIPLINARY BOARD NO. 12-PDB-096.
    No. 2013-OB-2707.
    Supreme Court of Louisiana.
    Jan. 27, 2014.
   In re Roddy, Melvin; — Plaintiff; Applying For Appeal of the Decision of the Disciplinary Board Office of Disciplinary Board, No. 12-PDB-096.

Leave to appeal denied.


text:
    STATE of Louisiana v. Charles CARTER.
    No. 2013-KK-1952.
    Supreme Court of Louisiana.
    Jan. 27, 2014.
   In re Carter, Charles; — Defendant; Applying for Rehearing of this Court’s order dated December 2, 2013; Parish of Ouachi-ta, 4th Judicial District Court Div. A, No. 12-F-1043-1; to the Court of Appeal, Second Circuit, No. 48,559-KW.

Denied.

KNOLL and HUGHES, JJ., would grant.


text:
    STATE ex rel. Christopher COLLINS V. STATE of Louisiana.
    No. 2013-KH-1440.
    Supreme Court of Louisiana.
    Jan. 27, 2014.
   In re Collins, Christopher; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. G, No. 467-132; to the Court of Appeal, Fourth Circuit, No. 2013-K-0421.

Denied.


text:
    STATE of Louisiana v. Gregory ULMER.
    No. 2013-KO-1484.
    Supreme Court of Louisiana.
    Jan. 27, 2014.
   In re Ulmer, Gregory; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. G, No. 497-063; to the Court of Appeal, Fourth Circuit, No. 2012-KA-0949.

Denied.


text:
    STATE of Louisiana in the Interest of J.M.
    No. 2013-CK-1543.
    Supreme Court of Louisiana.
    Jan. 27, 2014.
   In re J.M.; — Other; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Orleans Parish Juvenile Court, No. 2012-209-01-DQ-F; to the Court of Appeal, Fourth Circuit, No. 2013-C-0451.

Denied.

JOHNSON, C.J., and HUGHES, J., would grant.


text:
    STATE of Louisiana v. Roland A. THOMAS.
    No. 2013-K-1554.
    Supreme Court of Louisiana.
    Jan. 27, 2014.
   In re Thomas, Roland A.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. I, No. 509-031; to the Court of Appeal, Fourth Circuit, No. 2012-KA-0852.

Denied.

JOHNSON, C.J., and HUGHES, J., would grant.


text:
    STATE of Louisiana v. Barton W. NAFTZGER, Jr.
    No. 2013-K-1579.
    Supreme Court of Louisiana.
    Jan. 27, 2014.
   In re Naftzger Jr., Barton W.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. E, No. 453492; to the Court of Appeal, First Circuit, No. 2012 KA 2061.

Denied.

HUGHES, J., would grant.


text:
    STATE of Louisiana v. Tiffany R. BYRD.
    No. 2013-KO-1589.
    Supreme Court of Louisiana.
    Jan. 27, 2014.
   In re Byrd, Tiffany R.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. E, No. 502-406; to the Court of Appeal, Fourth Circuit, No. 2012-KA-0556.

Denied.


text:
    STATE of Louisiana v. Aaron FRANCOIS.
    No. 2013-KO-1605.
    Supreme Court of Louisiana.
    Jan. 27, 2014.
   In re Francois, Aaron; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court, No. CR 123773.2; to the Court of Appeal, Third Circuit, No. 12-1438.

Denied.


text:
    STATE of Louisiana v. Clifford IRBY.
    No. 2013-KO-1606.
    Supreme Court of Louisiana.
    Jan. 27, 2014.
   In re Irby II, Clifford Ray; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Ascension, 23rd Judicial District Court Div. C, No. 25283; to the Court of Appeal, First Circuit, No. 2012 KA 0713.

Denied.


text:
    STATE of Louisiana v. Aaron Orlando RICHARDS.
    No. 2013-KO-1607.
    Supreme Court of Louisiana.
    Jan. 27, 2014.
   In re Richards, Aaron Orlando; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. K, No. CR 133795; to the Court of Appeal, Third Circuit, No. 12-1354.

Denied.


text:
    STATE ex rel. Zebedee LOTT v. STATE of Louisiana.
    No. 2013-KH-1618.
    Supreme Court of Louisiana.
    Jan. 27, 2014.
   In re Lott, Zebedee; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. A, No. 316820; to the Court of Appeal, First Circuit, No. 2013 KW 0708.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.

WEIMER, J., recused.


author: STEWART, J.

text:
    STATE of Louisiana, Appellee v. Wendell FULLER, Appellant.
    No. 48,663-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 11, 2013.

      Louisiana Appellate Project, by Paula C. Marx, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, Marcus R. Patillo, Darius Q. Henderson, Assistant District Attorneys, for Appellee.
    Before STEWART, MOORE and PITMAN, JJ. STEWART, J.
   STEWART, J.

1, After being charged by bill of information with aggravated arson, a violation of La. R.S. 14:51, the defendant, Wendell Fuller, pled guilty to simple arson, a violation of La. R.S. 14:52. The trial court imposed a sentence of 15 years at hard labor. On appeal, the defendant asserts two assignments of error. First, he asserts that his sentence must be vacated due to the absence of any showing that the damage was greater than $500. Alternatively, he asserts that his sentence is excessive. Finding no error, we affirm the defendant’s conviction and sentence.

FACTS

On January 15, 2012, the defendant set on fire a trailer in which he had been living. The trailer was located on the defendant’s family’s land on Coty Lane in Doyline, Louisiana. Equipment found in the remains of the trailer indicated that the defendant had been operating a meth lab.

The defendant’s son discovered the fire and called the local fire department. While firefighters attempted to extinguish the fire, the defendant swung an axe at them to try to stop them. He stated that he intentionally started the fire, that he did not want the fire extinguished, and that he would injure anyone who attempted to do so.

The defendant was arrested on multiple counts, including aggravated arson. He ultimately accepted a plea agreement, with no sentencing cap, by which he pled guilty to an amended charge of simple arson on November 12, 2012. In exchange, the state agreed to drop charges of creation of a clandestine methamphetamine laboratory, disturbing the peace, and four 12counts of aggravated assault. In accepting the defendant’s plea, the trial court advised the defendant of his Boykin rights and affirmed his understanding that the minimum and maximum penalties for a plea of guilty to simple arson would be two to 15 years at hard labor. The trial court also affirmed the defendant’s understanding that his sentence would be up to the court. The trial court accepted the defendant’s plea as freely and voluntarily given and ordered a presentence investigation (“PSI”). By agreement of the state, the remaining counts were not prosecuted, and no habitual offender bill was filed.

At the sentencing hearing on November 14, 2012, the trial court conducted a thorough review of the PSI. The trial court noted the defendant’s family and social history, his lengthy criminal history, his history of substance abuse addictions, and the facts surrounding the incident at issue, including the attempted attacks on the firefighters and others at the scene of the fire. The trial court again stated that the defendant agreed to plead to a reduced charge of simple arson carrying a minimum sentence of two years at hard labor and a maximum sentence of 15 years at hard labor. Noting the defendant’s habitual criminal pattern since 1981 and the violent nature of the crime at issue, the trial court determined that the defendant should receive the maximum hard labor sentence available. Accordingly, the trial court imposed a sentence of 15 years at hard labor.

|sThe defendant’s motion to reconsider the sentence was denied by the trial court on February 11, 2013. This appeal setting forth two assignments of error followed.

DISCUSSION

In his first assignment of error, the defendant asserts that his sentence must be vacated because the state failed to provide the amount of damage caused to the trailer by the fire. He seeks a remand for a determination of the damage sustained. The state counters that the defendant was fully informed about his potential sentencing exposure before he pled guilty, that the damage from the fire was apparent, that there was no contemporaneous objection to the guilty plea agreement, and that the defendant received a significant benefit from his plea agreement.

In order to support a conviction for simple arson, the state is required to prove that the defendant intentionally damaged the property of another by means of an explosive substance, or by setting fire to the property of another without the owner’s consent. La. R.S. 14:52(A)(1). Whoever commits the crime of simple arson, where the damage done amounts to $500 or more, shall be fined not more that $15,000 and imprisoned at hard labor for not less than two years nor more than 15 years. La. R.S. 14:52(B). Where the damage is less than $500, the offender shall be fined not more than $2,500 or imprisoned with or without hard labor for not more than five years, or both. La. R.S. 14:52(C).

Value, price, or amount of damage need not be alleged in the indictment, unless such allegation is essential to charge or determine the grade of the offense. La. C. Cr. P. art. 470. The amount of damage is essential to determine the |4grade of the offense for simple arson, and the failure to allege the amount of damage in the bill of information is an error. State v. Guidry, 635 So.2d 731 (La.App. 1st Cir.1994), unit denied, 94-0960 (La.7/1/94), 639 So.2d 1163. A judgment or ruling shall not be reversed on appeal because of any error, defect, irregularity, or variance which does not affect substantial rights of the accused. La. C. Cr. P. art. 921.

In Guidry, supra, the defendant was charged with simple arson but his bill of information did not allege the amount of damage caused by the fire. Upon error patent review, the court noted the error but found it to be harmless error. The court noted that the defendant was advised during his Boykin examination of the possible penalty using the penalty provision for the grade of simple arson where the damage amounts to $500 or more.

Here, the defendant was charged by bill of information with aggravated arson, a crime for which value, price, or amount of damage need not be alleged in the indictment. However, the defendant accepted a plea agreement by which he pled guilty to the reduced charge of simple arson. The transcript of his Boykin examination reveals that the trial court advised the defendant of the appropriate penalty using the penalty provision for the grade of simple arson where the damage amounts to $500 or more. The defendant affirmed his understanding that he would receive a sentence Lin this range and that his sentence was ultimately at the discretion of the court. The defendant also indicated that he understood the true nature of the charge against him. The defendant did not object to the penalty under the plea agreement.

Our review of this record shows that the defendant’s substantial rights were not affected by any failure by the state to specify the amount of damage in conjunction with the pled offense of simple arson. Accordingly, we find no merit to the defendant’s assignment of error and decline to vacate his sentence or remand for a determination of the amount of damage sustained.

In his second assignment of error, the defendant asserts that the maximum sentence of 15 years at hard labor is excessive. He notes that he is 49, has graduated from high school, has 60 hours of college credits in nursing, and has worked as an auto technician since 1981. He asserts that he has the ability and training to be a productive member of society if given a shorter term of incarceration that is focused on treatment and rehabilitation for his addictions. Even though he is classified as a fifth felony offender, he contends that none of the prior felonies were crimes against persons. Finally, he cites State v. Wynne, 47,625 (La.App.2d Cir.1/16/13), 108 So.3d 864, as support for a lesser sentence for simple arson. In that case, the defendant, was operating a meth lab in a house and unintentionally-started a fire. He received concurrent hard labor sentences of 10 years for operation of a clandestine meth lab and five years for simple arson.

| fiThe state counters that the trial court complied with La. C. Cr. P. art. 894.1 in sentencing the defendant. The state also points out that, but for the plea agreement, the defendant could have been charged as an habitual offender and received a greater sentence.

In reviewing a sentence for ex-cessiveness, the court first looks at whether the trial court took cognizance of the criteria set forth in. La. C. Cr. P. art. 894.1. The trial court is not required to list every aggravating, and mitigating circumstance so long as the record reveals that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dillard, 45,633 (La. App.2d Cir.11/3/10), 55 So.3d 56, writ denied, 2010-2853 (La.11/18/11), 75 So.3d 454. The important elements which should be considered are the defendant’s personal history (his age, family ties, marital status, health, employment record), pri- or criminal history, seriousness of the offense, and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); Dillard, supra. Review of the sentencing transcript shows that the trial court thoroughly reviewed the relevant factors and more than satisfied this requirement.

Next, the court considers whether a sentence violates La. Const. Art. I, § 20 because it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). As a general rule, maximum or near maximum sentences are reserved for the worst offenders and the worst offenses. State v. Cozzetto, 07-2031 (La.2/15/08), 974 So.2d 665; State v. 7McKinney, 43,061 (La. App.2d Cir.2/13/08), 976 So.2d 802. Absent a showing of manifest abuse of the broad discretion afforded the trial court in sentencing offenders, an appellate court may not set aside a sentence as excessive. State v. Kidd, 45,638 (La.App.2d Cir.11/3/10), 55 So.3d 90.

Here, the facts are that the defendant intentionally set fire to the trailer where he lived and had a meth lab. Moreover, he threatened firefighters with an axe as they attempted to control the fire. Thus, this case is distinguishable from Wynne, supra, on the facts. Though the defendant received the maximum sentence of 15 years at hard labor, he reduced his sentencing exposure by pleading to simple arson, and he received the benefit of the state agreeing not to charge him as an habitual offender. As justification for the maximum sentence, the trial court noted the defendant’s habitual criminal conduct since 1981, the violent nature of this particular crime which placed lives at danger, and all the factors considered pursuant to La. C. Cr. P. art. 894.1. On this record, we find no abuse of discretion by the trial court in sentencing the defendant and no merit to the defendant’s claim that his sentence is excessive.

In reviewing the record for error patent, we find the sentence to be illegally lenient. The defendant pled pursuant to the provision of La. R.S. 14:52 where the damage amounts to $500 or more and for which the penalty provision provides that the defendant “shall be fined not more than fifteen thousand dollars and imprisoned at hard labor for not less than two years nor more than fifteen years.” La. R.S. 14:52(B). The trial court imposed an illegally lenient sentence by failing to assess the mandatory fine. AnJ^llegally lenient sentence may be corrected at any time by the court that imposed the sentence or by the appellate court on review. La. C. Cr. P. art. 882(A). However, this court is not required to take such action. State v. Pena, 43,321 (La.App.2d Cir.7/30/08), 988 So.2d 841; State v. Griffin, 41,946 (La.App.2d Cir.5/2/07), 956 So.2d 199. The state did not object to the error, and this indigent defendant has not been prejudiced by the failure to impose the fine. Thus, we decline to remand for correction of the sentence.

CONCLUSION

For the reasons set forth in this opinion, we find no merit to the defendant’s assignments of error, and we affirm his conviction and sentence.

AFFIRMED.

      . The record has conflicting references to the four counts stemming from the attempted axe attack on the firefighters. The record refers both to four counts of aggravated second degree battery and aggravated assault. While it appears that the correct charge based on the facts would be aggravated assault, regardless of which is correct, the charges were not prosecuted as part of the plea agreement.

      . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

      . The penalty for aggravated arson is imprisonment at hard labor for not less than six nor more than 20 years, two years of which shall be without benefits, and a fine of not more than $25,000. La. R.S. 14:51.


author: WILLIAMS, J.

text:
    STATE Of Louisiana, Appellee v. Anthony L. EVANS, Appellant.
    No. 48,471-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 18, 2013.

      Edward J. Marquet, Lafayette, for Appellant.
    James E. Paxton, District Attorney, Linda L. Kincaid Watson, Assistant District Attorney, for Appellee.
    Before WILLIAMS, MOORE and GARRETT, JJ.
   WILLIAMS, J.

|,The defendant, Anthony L. Evans, was charged by bill of information with sexual battery, a violation of LSA-R.S. 14:43.1. Following a jury trial, the defendant was found guilty as charged. The trial court sentenced the defendant to serve 50 years at hard labor, with 25 years of the sentence to be served without the benefit of parole. The defendant now appeals. For the following reasons, we affirm defendant’s conviction and sentence.

FACTS

The record shows that defendant was the father of a daughter, A.E., who was born in 2002. The defendant lived with the child’s mother, Barbara Sims, and A.E. in a one-bedroom house in Newellton, Louisiana. The evidence demonstrated that the incident occurred in November 2008. At trial, A.E. testified that she was asleep on the couch when defendant picked her up and took her to the bedroom. A.E. stated that defendant touched her between her legs on her private area (“coo coo”) with his hands and his “thing.” A.E. testified that the defendant also stuck his “thing” in her mouth.

A.E. was taken to the hospital the night of the incident for an examination to be performed. Dr. Emma Kruger, an emergency room physician at Riverland Medical Center, completed the rape kit on A.E. Dr. Kruger testified that A.E. had abdominal discomfort, that there was redness and swelling on A.E.’s external genitalia, and that A.E.’s hymen was completely missing, which Dr. Kruger found very unusual for a six-year-old girl. Dr. Kruger stated that while at the hospital, A.E. drew a picture of her father, whom A.E. described as “the bad monster that comes and bothersome,” and a picture of “the snake that comes and bothers me.” Dr. Kruger opined that in such situations, the snake often represents a penis.

Dr. Lauren Bryan, a forensic DNA analyst at the North Louisiana Crime Lab, testified that she conducted the tests on the rape kit evidence. Dr. Bryan stated that she found male DNA on the swab from A.E.’s exterior genital area, that only 1.92% of African American males “cannot be excluded” as the donor of that sample and that the defendant’s DNA was included in that small group. '

At the conclusion of the trial, the jury unanimously found the defendant guilty of sexual battery. At sentencing, the trial court stated that it had reviewed a presen-tence investigation (PSI) report and noted that at the time of the crime, defendant was 51 years old and A.E. was six years old. Defense counsel filed into the record a letter from defendant to the judge. The trial court then sentenced defendant to serve 50 years at hard labor, with 25 years of the sentence to be served without the benefit of parole. This appeal followed.

DISCUSSION

The defendant contends the trial court erred in imposing an excessive sentence. Defendant argues that the 50-year sentence is grossly disproportionate to the offense committed because the court effectively imposed a life sentence.

In reviewing a sentence for ex-cessiveness, the appellate court applies a two-pronged test. First, the record must show that the trial court took cognizance of the criteria set forth in LSA-C.Cr.P. art. 894.1. The trial court Lis not required to list every aggravating or mitigating circumstance so long as the record reflects that it adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Watson, 46, 572 (La.App.2d Cir.9/21/11), 73 So.3d 471. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense, and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Ates, 43,327 (La.App.2d Cir.8/13/08), 989 So.2d 259, writ denied, 08-2341 (La.5/15/09), 8 So.3d 581. There is no requirement that specific matters be given any particular weight at sentencing. State v. Taves, 03-0518 (La.12/3/03), 861 So.2d 144; State v. Caldwell, 46,718 (La.App.2d Cir.11/2/11), 78 So.3d 799.

Second, a sentence violates La. Const. Art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993). A sentence is grossly disproportionate if, when the crime and punishment are viewed in light of the harm to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166.

The trial court is given wide discretion in the imposition of sentences within the statutory limits. The sentence imposed will not be set aside as excessive absent a manifest abuse of that discretion. State v. Williams, 03-3514 (La.12/13/04), 893 So.2d 7; State v. Thompson, 02-0333 (La.4/9/03), 842 So.2d 330; State v. Diaz, 46,750 (La.App.2d Cir.12/14/11), 81 So.3d 228. On review, an appellate court does not determine whether |4another sentence may have been more appropriate, but whether the trial court abused its discretion. State v. Williams, supra; State v. Free, 46,894 (La.App.2d Cir.1/25/12), 86 So.3d 29.

In 2008, when the crime was committed, LSA-R.S. 14:43.1(0(2) provided that a person convicted of sexual battery on a victim under the age of 13 years when the offender is 17 years of age or older, shall be punished by imprisonment at hard labor for not less than 25 years nor more than life imprisonment. Additionally, at least 25 years of the sentence is to be served without the benefit of parole, probation, or suspension of sentence.

Prior to imposing sentence, the trial court noted that the PSI report listed the defendant’s two prior felony convictions for contributing to the delinquency of juveniles and molestation of juveniles, his three prior misdemeanor convictions and 14 previous arrests. The court stated that the most disturbing aspect of defendant’s criminal record is the two previous felony convictions for sex offenses against small children and noted that this was defendant’s third conviction for deviant, sexual behavior with very young girls.

In considering the guidelines of Article 894.1, the court found that there was an undue risk that defendant would commit another crime if not incarcerated, that defendant was in need of correctional treatment most effectively provided by commitment to an institution and that a lesser sentence would deprecate the seriousness of his offense. As aggravating factors, the court found that defendant’s conduct during the commission of the offense manifested deliberate cruelty to the victim, that defendant wasj^aware the six-year-old victim was physically and psychologically vulnerable because of her youth and that defendant used his status as father to sexually batter his own daughter, knowing that the physical and psychological harm to her would be devastating. The trial court found that no mitigating circumstances were applicable in this case and that defendant had shown no remorse for his “reprehensible” crime. In addition, the court stated that it would be irresponsible to impose a sentence that would permit defendant to ever be free and in the presence of vulnerable young girls again.

The record demonstrates that the trial court provided ample reasons for the imposition of this midrange sentence, which is not disproportionate to the severity of the offense. Considering the facts and circumstances of the offense committed and defendant’s criminal history, especially his propensity to commit .crimes similar to the instant offense, we conclude the trial court did not abuse its discretion in sentencing this defendant. Thus, we cannot say the 50-year sentence imposed is constitutionally excessive. This assignment of error is without merit.

We have reviewed the record for error patent and found none.

CONCLUSION

For the foregoing reasons, the defendant’s conviction and sentence are affirmed.

CONVICTION AND SENTENCE AFFIRMED.


author:
PETERS, J.
      PAINTER, Judge,

text:
    BLACK WATER MARSH, LLC v. ROGER C. FERRISS PROPERTIES, INC., Timothy J. Litel, and Janice C. Ferriss.
    No. 13-477.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 8, 2014.
    Rehearing Denied Feb. 26, 2014.

      David B. McCain, Jennifer M. Swann, Lake Charles, LA, for Plaintiffs-Appellants, Gary Lavoi d/b/a Black Water Marshes, Inc.
    Thomas Gayle, Lake Charles, LA, for Defendant-Appellee, Timothy Litel.
    Court composed of JIMMIE C. PETERS, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.
   PETERS, J.

hThe plaintiffs in this matter, Black Water Marsh, LLC and Gary Lavoi d/b/a Black Water Marshes, Inc., appeal the trial court’s grant of peremptory exceptions of no cause and no right of action, thereby dismissing their suit against one of the defendants in this litigation, Timothy J. Litel. For the following reasons, we affirm the trial court judgment granting the peremptory exception of no cause of action and, therefore, affirm the trial court judgment dismissing the appellants’ claims against Timothy J. Litel.

DISCUSSION OF THE RECORD

This litigation arises from a March 13, 2006 written marsh lease agreement involving 350 acres of Calcasieu and Jefferson Davis Parish immovable property. The parties are identified in the lease as “Roger Ferris Properties” as lessor, and “Black Water Marshes, Inc.,” as lessee. Janice Ferriss executed the lease on behalf of Roger Ferris Properties, and Gary M. Lavoi executed the lease on behalf of the named corporation. The lease provided for a twelve-year term with an annual payment of $12,000.00, and generally provided that Roger Ferriss Properties was granting the corporation hunting and fishing privileges on the property. Of significance to this litigation is the clause in the lease granting the lessee “the first right of refusal” of the leased property “should leaser[sic] decide to sell said properties.”

On August 2, 2011, and after having a title search of the Calcasieu and Jefferson Davis Parish conveyance records conducted on his behalf, Timothy Litel purchased the property subject to the lease from Roger C. Ferriss Properties, Inc., the record owner. Although the marsh lease had been placed of record in both |2Calcasieu and Jefferson Davis Parishes, the title search did not reveal its existence as a result of various recording errors.

On October 11, 2011, the litigation now before us began with the filing of a suit by Black Water Marsh, LLC, not Black Water Marshes, Inc. The initial paragraph of the petition describes the plaintiff as a Louisiana corporation having its domicile in Calcasieu Parish, Louisiana, and being represented by “its duly authorized president, GARY M. LAVOI.” The petition named Timothy J. Litel, Roger C. Ferriss Properties, Inc., and Janice Ferriss as defendants and sought (1) injunctive relief against Timothy J. Litel to prohibit him from denying the plaintiff access to the property for the 2011 hunting season; (2) dissolution of the act of sale between Roger C. Ferriss Properties, Inc. and Timothy J. Litel; and (3) in the alternative, a money judgment against the defendants for the losses the plaintiff suffered as a result of being denied the right of first refusal in the sale of the property.

Roger C. Ferriss Properties, Inc. responded to the petition on November 14, 2011, by filing a dilatory exception of lack of procedural capacity and peremptory exceptions of no right of action and of no cause of action. Ms. Ferriss appeared as the pro se representative of Roger C. Fer-riss Properties, Inc. in the filing. On the same day, Mr. Litel, represented by counsel, filed the same exceptions, as did Ms. Ferriss individually, who was also represented by counsel in her filing. Ms. Fer-riss added the dilatory exception of vagueness to the other three exceptions. All three defendants asserted in the common exceptions that Black Water Marsh, LLC did not have the right to enforce any rights that might belong to Black Water Marshes, Inc., the entity that executed the lease; and that in fact, there existed no corporation named Black Water Marshes, Inc. Additionally, Ms. Ferriss asserted that because l3most of the petition lumped her and Roger C. Ferriss Properties, Inc. together, she could not safely plead to the allegations.

After a January 6, 2012 hearing on the exceptions, the trial court rendered judgment rejecting the remaining exceptions filed by Roger C. Ferriss Properties, Inc. and Ms. Ferriss, and executed a judgment to this effect on January 30, 2012. In a separate judgment executed the same day, the trial court, among other relief, rejected Mr. Litel’s exception of lack of procedural capacity, but granted his exceptions of no right and no cause of action, and dismissed the claims against him.

By a pleading filed February 10, 2012, Black Water Marsh, LLC sought reconsideration of the judgment in favor of Timothy J. Litel, but before a hearing could be had on this motion, Roger Ferriss Properties, Inc. and Ms. Ferriss sought supervisory writ relief from this court. In an unpublished opinion rendered August 6, 2012, this court found no error in the trial court’s rejection of the exception of no cause of action, but found that the trial court erred in rejecting the exception of no right of action without providing a time for amendment of the pleadings to state a right of action. Black Water Marsh, LLC v. Roger C. Ferriss Properties, Inc., 12-423 (La.App. 3 Cir. 8/6/12). In finding error in the trial court’s ruling on. the exception of no right of action, this court stated:

Respondent, Black Water Marsh, LLC, was not a party to the lease at issue, and, therefore, has no standing to enforce the terms of the lease. We, therefore, order that Respondent amend its pleadings by no later than August 12, 2012, to add a proper party plaintiff under penalty of dismissal.

Id.

|4On August 10, 2012, Black Water Marsh, LLC responded to this court’s ruling by filing a second supplemental and amending petition wherein it named Gary Lavoi d/b/a Black Water Marshes, Inc. as an additional party plaintiff.

Roger C. Ferriss Properties, Inc. and Ms. Ferriss responded to the addition of the new plaintiff by filing new peremptory exceptions of no right and no cause of action. These exceptions, together with the February 10, 2012 request for reconsideration of the ruling on Mr. Litel’s exceptions, came for a hearing on October 5, 2012. This hearing resulted in a trial court judgment executed on October 22, 2012, rejecting the exceptions filed by Roger C. Ferriss Properties, Inc. and Ms. Ferriss, and rejecting the request for reconsideration of the ruling granting Mr. Litel’s exceptions.

The two named plaintiffs perfected this appeal and, in their appeal, asserted the following assignments of error:

1) The Trial Court erred in finding that Plaintiff Lavoi did not state a cause of action against Timothy J. Litel.
2) The Trial Court erred in granting Timothy Litel’s Exception of No Right of Action against GARY LAVOI d/b/a BLACK WATER MARSHES, INC.
3) Alternatively, and only if this Court finds that the Public Records defense should apply to the facts as alleged in the Petition, the Trial Court erred in dismissing Timothy J. Litel from the lawsuit on the Exceptions while a Motion to Compel the Defendants to submit to discovery was pending.

OPINION

In the January 30, 2012 judgment, the trial court granted Mr. Litel’s peremptory exceptions of no cause of action and no right of action based on its interpretation of the Louisiana Public Records Doctrine. In the October 22, 2012 judgment, the trial court merely stated that “the Motion for Reconsideration is denied[,]” thereby maintaining its prior judgment in favor of Mr. Litel as to both ^exceptions. Thus, the basis for granting relief for Mr. Litel was different from the basis for rejecting the request for relief asserted by Roger C. Ferriss Properties, Inc. and Ms. Ferriss and, therefore, questions concerning the identity of the proper party plaintiff raised by the other defendants is not properly before this court and will not be considered on appeal. However, before considering the merits of the appeal, we must dispose of a preliminary matter which is presented to us in the form of a motion to strike and for sanctions filed in the court by Mr. Litel.

Motion to Strike and for Sanctions

In the October 22, 2012 judgment, the trial court also ordered that Mr. Litel and Ms. Ferriss submit to depositions within sixty days, and the appellants have included a single paragraph reference to information derived from Mr. Litel’s subsequent deposition testimony in the STATEMENT OF FACTS section of the appellate brief as well as a reference in their argument on their third assignment of error. These references constitute the basis for Mr. Litel’s motion pending before this court.

Clearly, Mr. Litel is entitled to relief on his motion to strike as “[ajppel-late courts are courts of record and may not review evidence that is not in the appellate record, or receive new evidence.” Denoux v. Vessel Mgmt. Servs., Inc., 07-2143, p. 6 (La.5/21/08), 983 So.2d 84, 88. In this case, as was the case in Denoux, the deposition testimony now relied on by the appellants was not before the trial court at the time of the judgment being appealed and they are not a part of the record on appeal. Therefore, we strike any and all references to Mr. Litel’s subsequent deposition testimony and will not consider the content of the appellants’ brief in that regard.

| fiWith regard to the request for sanctions, we note that Uniform Rules — Courts of Appeal, Rule 2-12.4 set forth the requirements applicable to the content of the appellant’s brief. The first paragraph of that Rule provides:

The brief of the appellant or relator shall set forth the jurisdiction of the court, a concise statement of the case, the ruling or action of the trial court thereon, a specification or assignment of alleged errors relied upon, the issues presented for review, an argument confined strictly to the issues of the case, free from unnecessary repetition, giving accurate citations of the pages of the record and the authorities cited, and a short conclusion stating the precise relief sought.

(Emphasis added.)

The last paragraph of the rule provides in pertinent part that “[t]he language used in the brief shall be ... free from ... irrelevant matter” and that “[a]ny violation of this Rule shall subject the author, or authors, of the brief to punishment for contempt of court, and to having such brief returned.” Uniform Rules — Courts of Appeal, Rule 2-12.4.

The legal relationships in this litigation arise primarily from the failure of the original marsh lease parties to adhere to the most basic requirements of a valid legal instrument, and this failure has been the driving force in the continuing litigation. Additionally, the trial court hearings giving rise to the judgments which provide the basis for the current litigation were primarily legal arguments with little evi-dentiary organization. While we recognize the effort by the appellees to bring to our attention that the deposition testimony of Mr. Litel violates Rule 2-12.4, we decline to hold the appellants in contempt of court.

| ^¡Public Records Doctrine

The Louisiana Public Records Doctrine is codified in La.Civ.Code art. 3338, which provides:

The rights and obligations established or created by the following written instruments are without effect as to third persons unless the instrument is registered by recording it in the appropriate mortgage or conveyance records pursuant to the provisions of this Title:
(1) An instrument that transfers an immovable or establishes a real right in or over an immovable.
(2) The lease of an immovable.
(3) An option or right of first refusal, or a contract to buy, sell, or lease an immovable or to establish a real right in or over an immovable.
(4) An instrument that modifies, terminates, or transfers the rights created or evidenced by the instruments described in Subparagraphs (1) through (3) of this Article.

(Emphasis added.)

Louisiana Civil Code Article 3343 provides that the “third person” referred to in La.Civ.Code art. 3338 includes “a person who is not a party to or personally bound by an instrument.”

The concept of recordation in the appropriate conveyance or mortgage record has been recently discussed in Wede v. Niche Marketing USA, LLC, 10-0243, pp. 9-11 (La.l1/30/10), 52 So.3d 60, 65-66, wherein the supreme court was required to establish the ranking of a judicial mortgage versus a conventional mortgage. The judicial mortgage was recorded first, but was erroneously recorded by the clerk of court’s office in the conveyance records rather than the mortgage records.

|RIn Wede, the holder of the judicial mortgage relied on application of La.Civ. Code art. 3347, which provides that “[t]he effect of recordation arises when an instrument is filed with the recorder and is unaffected by subsequent errors or omissions of the recorder. An instrument is filed with a recorder when he accepts it for recordation in his office.” The supreme court resolved the dispute in favor of the holder of the conventional mortgage with the following analysis:

However, this argument figuratively puts the cart before the horse. Twice, Article 3347 speaks to “when” a document gains the effect of recordation. Not at all, however, does Article 3347 speak to the threshold matter of “where” a document must be recorded to gain that effect. But Article 3338, which is addressed to the rights of third parties — the ultimate issue in this case — specifies “where” a document must be recorded to gain effect as to third parties. Specifically, Article 3338 provides a document must be recorded “in the appropriate mortgage or conveyance records,” or the instrument is “without effect as to a third person.”
In Article 3338, therefore, there is an emphatic, clear, and absolute imperative that a judicial mortgage is “without effect as to a third person unless the instrument is registered by recording it in the appropriate mortgage ... records.” To adopt the judgment creditor’s argument that Article 3347 trumps Article 3338 would require this court to interpret Article 3347 to mean that the clerk of court’s acceptance of the judgment conferred, not just the effects of recordation, but also “the effect of recor-dation within the mortgage records.” The civilian tradition requires this court to avoid adding the underlined words, or any other words not enacted by the legislature, into Article 3347. See LSA-C.C. art. 9.
Though we find that giving effect to the plain language of Article 3338 resolves the unusual matter before us, our interpretation is supported by other legislative pronouncements. Article 3338 is part of a larger legislative reworking of the law of registry by 2005 La. Acts, No. 169, § 1. Numerous provisions of the civil code and the revised statutes were thereby consolidated. The legislature did not, however, change paragraph C of LSA-C.C. art. 3320: “Recordation has only the effect given it by legislation.” The revision comments from the year 1992, when paragraph C of Article 3320 was enacted, speak to the situation at hand and its resolution:
Paragraph C of this Article restates three well-established principles. The first is that recordation is only given such effect as the law provides. Louisiana’s registry system is not based upon knowledge, actual or implied. A document recorded in the mortgage records | ahas effect as to third persons not because they have or are deemed to have notice of it, but merely because the law provides it has such effect. Conversely, an unrecorded instrument that is required to be recorded has no effect as to third persons, whether or not they are aware of its existence. See Art. 3308. Under that system, to be effective, an instrument also must be filed in the place prescribed by law. Thus, a mortgage recorded in the convey-anee records, or a sale recorded in the mortgage records, is without effect as to third persons.... [Emphasis added.]
Thus, because the legislature left intact Article 3320 and the principles espoused in these revision comments when recently revising the law of recordation, we are bound to continue to recognize these principles. Cf. LSA-C.C. art. 8 (“Laws are repealed, either entirely or partially, by other laws. A repeal may be express or implied. It is express when it is literally declared by a subsequent law. It is implied when the new law contains provisions that are contrary to, or irreconcilable with, those of the former law....”).

Id. at 65-66 (footnotes omitted)(alteration in original).

With this analysis in mind, we turn to the consideration of the issue raised on appeal.

In the matter before us, the marsh lease was recorded in the conveyance records of each parish as it should have been, but the named lessor was not the record owner of the property, and the recordation process itself resulted in indexing errors which led to difficulty in discovering the existence of the lease in the public records. The appellants argue that these errors should not matter and that Mr. Litel is not protected by the Public Records Doctrine.

Exception of No Cause of Action

The peremptory exception of no cause of action is provided for in La.Code Civ.P. art. 927(A)(4), and the law governing its application is well settled:

The function of an exception of no cause of action is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the pleading. Darville v. Texaco, Inc., 447 So.2d 473 (La.1984). No evidence may be introduced to support or controvert the objection that the petition fails to state a cause of action. La.Code Civ.Proc. art. 931. Therefore, the | incourt reviews the petition and accepts well pleaded allegations of fact as true, and the issue at the trial of the exception is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought. Hero Lands Co. v. Texaco, Inc., 310 So.2d 93 (La.1975); Kuebler v. Martin, 578 So.2d 113 (La. 1991).

Everything on Wheels Subaru, Inc. v. Subaru S., Inc., 616 So.2d 1234, 1235 (La.1993).

We review the grant of an exception of no cause of action de novo. Hebert v. Shelton, 08-1275 (La.App. 3 Cir. 6/3/09), 11 So.3d 1197.

The well-pleaded allegations of fact in the appellants’ original and supplemental petitions establish that when the March 13, 2006 marsh lease was executed, the named lessee did not exist as a legal entity and the named lessor was not the owner of the property. In fact, the lessor was identified in three different ways in the lease: ROGER FERRIS PROPERTIES; JANICE FERRISS OF ROGER FERRISS PROPERTIES; and ROGER FERRISS PROPERTIES.

The marsh lease agreement was recorded in the conveyance records of Calcasieu Parish on May 9, 2007, and in the conveyance records of Jefferson Davis Parish on August 2, 2011. However, in both cases, the local clerk of court’s office exacerbated the party identity problem by improperly indexing the lease. In Calcasieu Parish, the clerk’s office identified the lessor as “Roger Ferris Properties” instead of “Roger Ferriss Properties”; and in the Jefferson Davis Parish records, the clerk’s office identified the lessor as “Janice Fer-riss” instead of “Roger Ferriss Properties.” In neither parish was the marsh lease indexed under the name of the actual owner of the property, Roger C. Ferriss Properties, Inc. Furthermore, in both parishes, the lessee was identified as Black Water Marshes, Inc., ■& nonexistent corporation. Thus, when the lease was recorded in the conveyance records of Calcasieu Parish, neither indexed party to the lease agreement existed as a legal entity; and when the lease was recorded in the conveyance records of [ nJefferson Davis Parish, one of the indexed parties did not exist as a legal entity, and the other could at best be described as “Janice Ferriss d/b/a Roger Ferriss Properties.” Although Black Water Marshes, Inc. has never existed, Mr. Lavoi executed articles of incorporation forming Black Water Marsh, LLC on May 3, 2006, and that entity assumed all of the responsibilities under the marsh lease until the sale of the property to Mr. Litel. The original petition filed by Black Water Marsh, LLC asserted as the basis of Mr. Litel’s liability the'following:

Upon information and belief, Petitioner alleges that the existence of the lease was communicated to LITEL before the property was purchased by him. Petitioner alleges that LITEL either reviewed a copy of the lease or should have requested a copy of the lease after he became aware of its existence before closing on the property.

In that original petition, Black Water Marsh, LLC further asserted:

LITEL either (1) had knowledge of the existence of a lease in effect between Petitioner and FERRISS; (2) had seen a copy of the lease; (3) should have insisted on seeing a copy of the- lease before closing, or (4) should have found out about the existence of the lease by examination of the public records.

Black Water Marsh, LLC reasserted these facts in its first supplemental and amending petition, and no new assertions were made with regard to Mr. Litel’s liability when Gary Lavoi d/b/a Black Water Marshes, Inc., was added as a party plaintiff in the third and final supplemental and amending petition.

We find no merit in the appellants’ argument that Mr. Litel was required to take notice of anything outside of the public records in considering their claims under the marsh lease. As pointed out by this court in Cimarex Energy Co. v. Mauboules, 09-1170, p. 18 (La.App. 3 Cir. 4/9/10), 40 So.3d 931, 943, “[t]he Louisiana Public Records doctrine generally expresses a public policy that interest in real estate must be recorded in ox*der to affect third persons. Simply put, an 112instrument in writing affecting immovable property which is not recorded is null and void except between the parties.”

Additionally, we do not find that the appellants’ attempts at recordation of the marsh lease were effective as against Mr. Litel. As pointed out in La.Civ.Code art. 3353:

A recorded instrument is effective with respect to a third person if the name of a party is not so indefinite, incomplete, or erroneous as to be misleading and the instrument as a whole reasonably alerts a person examining the records that the instrument may be that of the party.

With that concept in mind, we find that the same rationale as stated in Wede, 52 So.3d 60, applies' to the matter now before us. That is to say, the inappropriateness of the recordation, i.e., the recordation in names which would not appear on a search of the title under the record owner, rendered the recording to be so indefinite, incomplete, and erroneous that it did not reasonably alert a person examining the title of any claim by those parties.

Considering all of the above, we find no error in the trial court’s grant of the exception of no cause of action. Additionally, although La.Code Civ.P. art. 934 provides that if the grounds for the exception of no cause of action “may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court,” it also provides that “[i]f the grounds of the objection raised through the exception cannot be so removed,” the matter should be dismissed. We find that the grounds cannot be removed by amendment and affirm the trial court’s dismissal of the action, as well.

| Exception of No Right of Action

It is well settled that “[tjhe function of an exception of no right of action is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit.” Turner v. Busby, 03-3444, p. 4 (La.9/9/04), 883 So.2d 412, 415. In this matter, the trial court found that the appellants had a right to bring the action against Roger C. Ferriss Properties, Inc. and Janice Ferriss, but did not have a right to bring the action against Mr. Lite! Our ruling on the exception of no cause of action precludes a need to address this conflict, and we decline to do so.

Exception Concerning Discovery Issue

In their third and final assignment of error, the appellants assert that the trial court erred in granting the exceptions when discovery depositions were pending. We find no merit in this assignment of error.

The content of a pleading is governed by the provisions of La.Code Civ.P. art. 863 which provides, among other things, that the attorney signing the pleading certifies “that he has read the pleading, and that to the best of his knowledge, information, and belief formed after reasonable inquiry, ... [ejach allegation or other factual assertion in the pleading has evidentiary .support or, for a specifically identified allegation or factual assertion, is likely to have eviden-tiary support after a reasonable opportunity for further investigation or discovery.” La.Code Civ.P. art. 863(B)(3).

As previously stated, no evidence can be introduced to support or controvert an exception of no cause of action.. La. Code Civ.P. art. 931. That being the case, the merits of the exception must be decided based on the certified pleading and nothing else. Thus, issues of discovery are not relevant to a determination of the 114merits of the exception because the evidence discovered could not be introduced to support or controvert the exception.

DISPOSITION

For the- foregoing reasons, we affirm the trial court’s grant of the peremptory exception of no cause of action and dismissal of the claims of Black Water Marsh, LLC and Gary Lavoi d/b/a Black Water Marshes, Inc. against Timothy' J. Litel. We assess all costs of this appeal against Black Water Marsh, LLC and Gary Lavoi, d/b/a Black Water Marshes, Inc. >

AFFIRMED.

PAINTER, J., dissents in part and assigns written reasons.

PAINTER, Judge,

dissenting in part.

1,1 respectfully dissent from the majority herein.

Firstly, I agree that the trial court correctly granted the exception of no cause of action because the inclusion of a copy of the lease, showing the lessee to be a different entity than the plaintiff named in the petition, clearly and on the face of the petition, indicates the existence of an affirmative defense. However, I disagree with the majority’s reference to proof outside the petition and its exhibits in reaching the conclusion that the ground for the objection cannot be removed by amendment. As stated in Everything on Wheels Subaru, Inc. v. Subaru S., Inc., 616 So.2d 1234, 1235 (La.1993): “No evidence may be introduced to support or controvert the objection that the petition fails to state a cause of action. La.Code Civ.Proc. art. 931.” Therefore, the matters to which the majority refers with regard to the filing of the lease in the public record are not properly before the court in this regard. As a result, I would find that Plaintiff is entitled be given an opportunity to amend the petition to state a cause of action. La.Code Civ.P. art. 934.

Additionally, I would reverse the trial court’s grant of the exception of no right of action.

| ^Plaintiff asserts that Lavoi is the proper party to enforce the lease agreement against Litel and that Litel’s exception should not have been granted. Litel contends that the trial court correctly granted his exception of no right of action because he is not bound by the lease. Specifically, Litel contends that because Black Water Marshes, Inc., the purported lessee, was never incorporated, it lacked the capacity to contract. Additionally, Litel contends that because Black Water Marsh, LLC, was never a party to the lease, the entity lacks standing to assert claims against him under the lease and that since Black Water Marshes, Inc. was never incorporated, it had no capacity to contract. Litel asserts that there is no evidence that Lavoi was doing business as Black Water Marshes, Inc. and that Lavoi was merely the agent for a corporation that did not exist. Lavoi argues that his payments on the lease are evidence that he was doing business as Black Water Marshes, Inc. Litel further argues that Lavoi was not a promoter because the corporation in whose name he acquired rights was never formed. Litel further asserts that there was no error at the time of signing of the lease.

Any person, natural or juridical, could have undertaken the payments under the lease on Black Water Marshes, Inc.’s behalf but that person still would not have standing to seek redress under the lease. In other words, the right to enforce the contract is vested with the parties thereto. See La.Civ.Code arts. 2668 and 2682, et seq. Although Black Water Marsh, LLC, made rental payments to Roger C. Ferriss Properties, Inc., in accordance with the purported lease agreement between Janice Ferriss of Roger C. Ferriss Properties, Inc., and Lavoi of Black Water Marshes, Inc., Black Water Marshes, Inc., the entity named in the lease at issue, would have the right to enforce the lease. Therefore, it appears that the trial court did not err in | ^granting the exception of no cause of action. However, that the defect complained of may be remedied by amending the pleadings.

Louisiana jurisprudence provides that “[a] corporation not yet in existence cannot be a party to a contract, because [it is] not.... ‘legally capable of contracting[.]’ ” Speedee Oil Change No. 2, Inc. v. Nat’l Union Fire Ins. Co., 444 So.2d 1304, 1307 (La.App. 4 Cir.1984). We find, however, that Lavoi may have acted as a promoter when he executed the lease on behalf of Black Water Marshes, Inc., and may have bound himself individually to the terms of the lease.

Louisiana courts have held, generally, that “in the absence of an agreement to the contrary among the contracting parties, promoters and incorporators are also hable individually for the contractual obligations entered into on behalf of the corporation before the corporation is formed whether or not the corporation is subsequently formed.” 1 La. Prac. Corp. § 7:219 (2011-2012 ed.), citing R.G Claitor’s Realty v. Rigell, 06-1629 (La.App. 1 Cir. 5/4/07), 961 So.2d 469, writ denied, 07-1214 (La.9/21/07), 964 So.2d 340; Tameny v. Boykin, 391 So.2d 85, (La.App. 4 Cir. 1980); Daniel A. Pouwels & Associates, Inc. v. Fiumara, 233 So.2d 16 (La.App. 4 Cir.1970); Folse v. Loreauville Sugar Factory, 156 So. 667 (La.App. 1 Cir.1934).

Specifically, the court in R.G. Claitor’s Realty held that “[p]rincipals of a corporation, such as officers and directors, who enter contracts purportedly on behalf of the corporation, but prior to the corporation’s formation, are personally liable on those contracts.” R.G. Claitor’s Realty v. Rigell, 961 So.2d at 472.

The facts in R.G. Claitor’s Realty are substantially similar to this case. In R.G. Claitor’s Realty, Bill Rigell of GJR, Ltd., leased office space owned by Claitor Realty. Thereafter, Claitor Realty filed suit to enforce the terms of the lease, |4naming Rigell and GJR, Inc. d/b/a Eagle Travel Consultants as defendants. Claitor Realty aheged that Rigell was personally liable for the amount owed because at the time the lease agreement was executed, GJR, Inc., was not incorporated. Rigell later moved for summary judgment on the basis that he was not personally liable for GJR’s lease obligations because only GJR bound itself as lessee. The trial court denied the motion. Subsequently, Claitor Realty filed a motion for partial summary judgment arguing, among other things, that Rigell was personally liable on the lease. The trial court granted Claitor Realty’s motion for summary judgment. Rigell appealed the judgment, asserting that the trial court erred in finding him personally liable for the lease obligations of GJR, Inc.

Affirming the trial court’s ruling, the first circuit reasoned as follows:

Louisiana Revised Statute 12:26 provides:

A corporation formed under this Chapter shall not incur any debts or begin the transaction of any business, except business incidental to its organization, or to the obtaining of subscriptions to, or payment for, its shares, until the amount of paid-in capital with which it will begin business, if stated in the articles, has been paid in full.
Further, La. R.S. 12:92(A) provides that “[i]f a corporation has transacted any business in violation of R.S. 12:26, the officers who participated therein and the directors shall be liable jointly and severally with the corporation and each other for the debts or liabilities of the corporation arising therefrom.” As such, principals of a corporation, such as officers and directors, who enter contracts purportedly on behalf of the corporation, but prior to the corporation’s formation, are personally liable on those contracts. See Welch v. Fuhrman, 496 So.2d 484 (La.App. 1st Cir.1986); see also South Central Bell Telephone Co. v. Professional Answering Service of Lafayette, Inc., 527 So.2d 1195 (La.App. 3rd Cir.1988); Scullin v. Rhoden, 518 So.2d 1101 (La.App. 5th Cir.1987); and Tomeny v. Boykin, 391 So.2d 85 (La.App. 4th Cir.1980).
From our review of the record, we find that Claitor Realty met its burden in establishing that Rigell was personally liable for the lease obligations. The undisputed evidence, as outlined above, established that Rigell executed the lease agreement on November 30, 1994, on behalf of GJR, Ltd., a corporation that never legally |5existed. GJR, Inc. was incorporated on February 3, 1995; however, this was approximately two months after the execution of the lease agreement. Therefore, in accordance with the law as outlined above, Rigell was personally liable to Claitor Realty under the lease agreement.

R.G. Claitor's Realty, 961 So.2d at 472. (Emphasis added).

Similarly, in the instant case, Lavoi executed the lease agreement on behalf of Black Water Marshes, Inc., a corporation that never legally existed. Lavoi did not incorporate Black Water Marsh, LLC, until several months after the lease at issue was executed. Therefore, because, under La.R.S. 12:92(A) andütG. Claitor’s Realty, the courts can hold Lavoi personally liable under the lease that he executed on behalf of Black Water Marshes, Inc., a corporation that did not legally exist, he is the proper party plaintiff to enforce the same lease in the instant lawsuit.

Because Lavoi appears to have bound himself personally to Relators as principal of the non-existent entity, Black Water Marshes, Inc., I would find that Lavoi is the proper party plaintiff in this suit. Accordingly, I would affirm the granting of the exception of no right of action. Further, I would remand so that Plaintiff may be given time to amend its pleadings.

      . The lease did not describe the structural makeup of Roger C. Ferriss Properties, Inc., the nature of Ms. Ferriss’s relation to the corporation, or the nature of Mr. Lavoi's relationship to the corporation.

      . On December 27) 2011, Black Water Marsh, LLC amended the original petition in response to the exception of vagueness. This amended petition resulted in Ms. Ferriss subsequently withdrawing that exception.

      . The argument in both hearings was supplemented with nothing more than the filing of the entire record into evidence. No testimony was presented.

      . Louisiana Civil Code Article 3338 was enacted by 2005 La. Acts, No. 169, § 1, eff. July 1, 2006, and replaced La.R.S. 9:2721.

      . As a part of the codification of the Public Records Doctrine, 2005 La. Acts, No. 169, § 1, eff. July 1, 2006, the Louisiana Legislature recognized the importance of providing accurate information in recorded instruments and its effect on third partiés, and enacted La.Civ.Code art. 3352 which sets forth six categories of information which "shall” be included in a recorded instrument when applicable. While the marsh lease in this litigation fails to include the required information in a number of respects, that Article is not applicable to this litigation because its effective date was after the execution of the marsh lease.


author: PITMAN, J.

text:
    STATE of Louisiana, Appellee v. Keith FRANKLIN, Sr., Appellant.
    No. 48,781-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 15, 2014.

      Louisiana Appellate Project by Douglas Lee Harville, for Appellant.
    Keith Franklin, Sr., pro se.
    Jerry L. Jones, District Attorney, John F. Aplin, Assistant District Attorney, for Appellee.
    Before BROWN, DREW & PITMAN, JJ.
   PITMAN, J.

| defendant, Keith Franklin, Sr., pled guilty, without any agreement concerning the sentence, to aggravated second degree battery in violation of La. R.S. 14:34.7. He was sentenced to 12 years at hard labor and now appeals his sentence as excessive. For the reasons stated herein, we affirm the conviction and sentence.

FACTS

In November 2011, in West Monroe, Louisiana, Defendant and his girlfriend, Torrwinshall Jackson (“Jackson”), were preparing supper. Jackson went into the back yard to discuss a problem she was having with the meat that was being cooked, and Defendant took offense at her statement. After she returned to the kitchen, Defendant came into the house and choked her. In the process, Defendant slashed her neck with a pocket knife, leaving a gash that was approximately ten centimeters long and three centimeters deep. Jackson’s 9-year-old son and 11-year-old niece were present at the home and witnessed the altercation. A friend at the house called Jackson’s mother, who drove Jackson to the hospital where she underwent surgery.

Jackson’s friend also called the police, who responded to the call. When they arrived at the residence, they found that both the victim and suspect were gone. Officers eventually apprehended and arrested Defendant, who, after waiving his Miranda rights, gave a recorded statement. Although Defendant gave a different story when he was first questioned, he later admitted that he had cut Jackson’s neck with a pocket knife while they were fighting.

Defendant was originally charged by a bill of information with | attempted second degree murder, to which he pled not guilty. The state offered Defendant a plea bargain agreement in exchange for a guilty plea whereby the state would agree to reduce the charge to aggravated second degree battery and not charge Defendant as a habitual offender. Defendant accepted the offer. There was no agreement regarding the sentence to be imposed. The guilty plea was entered, and the trial court ordered a presentence investigation report.

The sentencing hearing was held in April 2013, at which time the trial court reviewed Defendant’s social history, including that he had been in a relationship with the victim for eight years and they had two children' together, a seven-year-old son and a five-year-old daughter. The trial court noted that Defendant had an extensive criminal history which included nearly 30 arrests, many of which directly involved acts of violence such as simple battery and aggravated battery, aggravated assault and aggravated second degree battery. Some of these acts of violence had been committed on Jackson, including cutting her leg with a piece of glass. That injury required 48 stitches to repair the damage.

The trial court considered mitigating factors including letters from Jackson to the court requesting a sentence of only five years so that Defendant could spend time with his two small children. The trial court also considered Defendant’s statement that he had become involved in religious activities while he was in jail, had completed an anger management course and was currently undergoing substance abuse treatment.

13After considering all these factors and noting that Defendant had received the benefit of the state’s plea offer which greatly reduced his sentencing exposure, the trial court imposed a sentence of 12 years at hard labor with credit for time served. Defendant filed a motion to reconsider sentence, which was denied. Defendant’s appeal followed.

DISCUSSION

Defendant argues that the sentence of 12 years at hard labor is excessive and violates his constitutional rights because it serves no purpose other than needless imposition of pain and suffering. He contends that the sentence, which is merely three years short of the maximum possible sentence, fails to provide him with the opportunity to be rehabilitated. Defendant points out that he is only 43 years old; and, although a high school dropout, he has obtained his GED and is loving and supportive of his minor children. Defendant admits that his conduct was serious, but argues that the victim made a quick and complete recovery. Further, he points out that the victim repeatedly requested the trial court to issue a light sentence so that Defendant could continue to care for their minor children. Defendant indicates that he was involved in religious activities while incarcerated and also completed an anger management course. He argues that the circumstances of his case warrant a lesser sentence.

The state argues that the trial court adequately considered the sentencing factors set forth in La. C. Cr. P. art. 894.1, as well as the presentence investigation report. The trial court noted the serious nature of Defendant’s offense and the life-threatening injuries the victim sustained. The state further argues that Defendant benefited from both the fact that the [¿victim survived the incident and that the state offered him a plea bargain agreement which greatly reduced his sentencing exposure. The state points to the fact that Defendant had attacked this particular victim on multiple prior occasions and created a risk of death or great bodily harm to her and the young children present at the time of the instant offense. The state contends that Defendant is a fifth-felony offender and that, as such, the trial court’s sentence is appropriate.

Whoever commits the crime of aggravated second degree battery shall be fined not more than $10,000 or imprisoned, with or without hard labor, for not more than 15 years, or both. La. R.S. 14:34.7.

An appellate court utilizes a two-pronged test in reviewing a sentence for excessiveness. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the -guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41, 855 (La.App.2d Cir.2/28/07), 953 So.2d 890, writ denied, 07-0805 (La.3/28/08), 978 So.2d 297. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Laclos, 419 So.2d 475 (La.1982); State v. Swayzer, 43,350 (La. App.2d Cir.8/13/08), 989 So.2d 267, writ denied, 08-2697 (La.9/18/09), 17 So.3d 388. The important elements which should be considered are the defendant’s personal history |ñ(age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Ates, 43,327 (La.App.2d Cir.8/13/08), 989 So.2d 259, writ denied, 08-2341 (La.5/15/09), 8 So.3d 581. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App.2d Cir.12/13/06), 945 So.2d 277, unit denied, 07-0144 (La.9/28/07), 964 So.2d 351.

Second, the court must determine whether the sentence is constitutionally excessive. A sentence violates La. Const. Art. 1, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 01-0467 (La.1/15/02), 805 So.2d 166; State v. Robinson, 40,983 (La.App.2d Cir.1/24/07), 948 So.2d 379.

A trial court has broad discretion to sentence within the statutory limits. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158; State v. Dunn, 30,767 (La.App.2d Cir.6/24/98), 715 So.2d 641. Absent a showing of manifest abuse of that discretion, the appellate court may not set aside a sentence as excessive. Id.

As a general rule, maximum or near maximum sentences are reserved for the worst offenders and the worst offenses. State v. Cozzetto, 07-2031 6(La.2/15/08), 974 So.2d 665; State v. McKinney, 43,061 (La.App.2d Cir.2/13/08), 976 So.2d 802. However, in cases where the defendant has pled guilty to an offense which does not adequately describe his conduct, the general rule does not apply and the trial court has great discretion in imposing the maximum sentence possible for the pled offense. This is particularly true in cases where a significant reduction in potential exposure to confinement has been obtained through a plea bargain and the offense involves violence upon a victim. State v. Robinson, supra.

The trial court did not abuse its discretion by sentencing Defendant to 12 years at hard labor. Prior to imposing sentence, the trial court adequately considered the circumstances of the offense, the information in the presentence investigation report, and the factors set forth in La. C. Cr. P. art. 894.1. Defendant is a fifth-felony offender and his extensive criminal history includes a litany of arrests for crimes of violence, with at least three of his violent crimes being perpetrated on the victim in the instant matter. The trial court did consider as mitigating circumstances Defendant’s age and the fact that he completed an anger management program; however, these circumstances were greatly outweighed by the aggravating factors. Moreover, Defendant substantially benefited from the plea agreement and reduced sentencing exposure because he was initially charged with attempted second degree murder, which carries a maximum sentence of 50 years in prison. La. R.S. 14:27; 14:30.1.

Considering Defendant’s criminal history and the benefit he received from the plea agreement, the trial court’s imposition of a 12-year sentence does not shock the sense of justice, nor is it disproportionate to the severity 17of the offense. Therefore, this assignment of error is without merit.

CONCLUSION

For the foregoing reasons, the conviction and sentence of Defendant, Keith Franklin, Sr., are affirmed.

AFFIRMED.