source: Caselaw Access Project

license: Public Domain

text:
    STATE ex rel. Ronald BELL v. STATE of Louisiana.
    No. 2009-KH-1675.
    Supreme Court of Louisiana.
    July 28, 2009.
   In re: Bell, Ronald; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 268-096.

Relator represents that the district court has failed to act timely on a motion to vacate and correct an illegal sentence filed on or about March 26, 2009. If relator’s representation is correct, the district is ordered to consider and act on the motion. If relator’s representation is incorrect, the district court is ordered to accept, file and act upon the pleading which is herewith transferred to the district court. The district court is ordered to provide this Court with a copy of its judgment.


text:
    STATE ex rel. Ronald JENKINS v. STATE of Louisiana.
    No. 2009-KH-1690.
    Supreme Court of Louisiana.
    July 28, 2009.
   In re: Jenkins, Ronald; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Landry, 27th Judicial District Court Div. C, No. 35348; to the Court of Appeal, Third Circuit, No. KH09-800.

Relator represents that the district court has failed to act timely on a application for post-conviction relief filed on or about April 16, 2009. If relator’s representation is correct, the district court is ordered to consider and act on the application. If relator’s representation is incorrect, the district court is ordered to accept, file and act upon the pleading which is herewith transferred to the district court. The district court is ordered to provide this Court with a copy of its judgment.


text:
    TENSAS POPPADOC, INC v. CHEVRON U.S.A. INC., et al.
    No. 2009-CC-1798.
    Supreme Court of Louisiana.
    Aug. 7, 2009.
   In re: Environmental Quality Department of; Natural Resources Department of; — Other(s); Applying For Supervisory and/or Remedial Writs, Parish of Concor-dia, 7th Judicial District Court Div. B, No. 40769; to the Court of Appeal, Third Circuit, No. CW 09-00778.

Stay denied. Writ denied.

KNOLL, J., recused.


text:
    STATE ex rel. Derrick NELLON v. STATE of Louisiana.
    No. 2008-KH-2413.
    Supreme Court of Louisiana.
    Aug. 12, 2009.
   In re: Nellon, Derrick; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. G, No. 99-6870; to the Court of Appeal, Fifth Circuit, No. 08-KH-534.

Denied.


text:
    STATE ex rel. Jamar D. TAYLOR v. STATE of Louisiana.
    No. 2008-KH-2414.
    Supreme Court of Louisiana.
    Aug. 12, 2009.
   In re: Taylor, Jamar D.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. D, No. 192,736; to the Court of Appeal, Second Circuit, No. 43838-KH.

Denied.


text:
    STATE ex rel. Ronnell ANDERSON v. STATE of Louisiana.
    No. 2008-KH-2395.
    Supreme Court of Louisiana.
    Aug. 12, 2009.
   In re: Anderson, Ronnell; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. P, No. 04 — 4828; to the Court of Appeal, Fifth Circuit, No. 08-KH-562.

Denied.


text:
    STATE ex rel. Charles LEDAY, Jr. v. STATE of Louisiana.
    No. 2008-KH-2396.
    Supreme Court of Louisiana.
    Aug. 12, 2009.
   In re: Leday, Charles, Jr.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Landry, 27th Judicial District Court Div. B, No. 98-K0137B; to the Court of Appeal, Third Circuit, No. KH 08-00745.

Denied.


text:
    STATE ex rel. David Wayne SHARPLEY v. STATE of Louisiana.
    No. 2008-KH-2404.
    Supreme Court of Louisiana.
    Aug. 12, 2009.
   In re: Sharpley, David Wayne; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Bossier, 26th Judicial District Court Div. A, No. 125,820A; to the Court of Appeal, Second Circuit, No. 43828-KH.

Denied.


text:
    STATE ex rel. Joseph DOMINICK v. STATE of Louisiana.
    No. 2008-KH-2406.
    Supreme Court of Louisiana.
    Aug. 12, 2009.
   In re: Dominick, Joseph;- — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. K, No. 440-270; to the Court of Appeal, Fourth Circuit, No. 2008-K-0954.

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


text:
    STATE ex rel. Alvin BRATTON v. STATE of Louisiana.
    No. 2008-KH-2407.
    Supreme Court of Louisiana.
    Aug. 12, 2009.
   In re: Bratton, Alvin; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. H, No. 196,603; to the Court of Appeal, Second Circuit, No. 43890-KH.

Denied.


text:
    STATE ex rel. Wilson MILES, Jr. v. STATE of Louisiana.
    No. 2003-KH-1277.
    Supreme Court of Louisiana.
    Aug. 12, 2009.
   In re: Miles, Wilson Jr.-Plaintiff(s); Applying for Motion to Enforce this Courts order dated June 27, 2003; Parish of Orleans, Criminal District Court Div. E, No. 222-493.

Denied. Moot. The district Court has acted.


text:
    STATE ex rel. Freddie BURRELL v. STATE of Louisiana.
    No. 2007-KH-1041.
    Supreme Court of Louisiana.
    Aug. 12, 2009.
   In re: Burrell, Freddie,--Plaintiff; Applying for Motion to Enforce this Court’s order dated June 25, 2007; Parish of Orleans, Criminal District Court, Div. B, No. 269-172.

Denied. Moot. The district court has acted.


text:
    STATE of Louisiana v. Marion TAYLOR.
    No. 2009-KK-1837.
    Supreme Court of Louisiana.
    Aug. 12, 2009.
   In re: Taylor, Marion;-Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. H, No. 479-689; to the Court of Appeal, Fourth Circuit, No. 2009-K-1035.

Stay denied; writ denied.


text:
    STATE ex rel. Donald HENSLEY v. STATE of Louisiana.
    No. 2009-KH-1857.
    Supreme Court of Louisiana.
    Aug. 14, 2009.
   In re: Hensley, Donald; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. M, No. 02-3060.

The application is transferred to the district court with instructions to the district judge to act on relator’s application for post-conviction relief and supplemental post-conviction relief as relator shows by Inmate’s Request for Legal/Indigent Mail receipt that the application was submitted. The district court is ordered to provide this Court with a copy of its judgment. A copy of the application is attached.


text:
    STATE ex rel. David Scott JOHNSON v. STATE of Louisiana.
    No. 2005-KH-0169.
    Supreme Court of Louisiana.
    Aug. 20, 2009.
   In re: Johnson, David Scott; — Plaintiff; Applying for Motion to Enforce this Court’s order dated February 4, 2005, Parish of Orleans, Criminal District Court, Div. E, Nos.- 209-908, 210-347, 210-349, 210-350.

Denied. Moot. The district court has acted.

1


text:
    STATE ex rel. Dennis MAGEE v. STATE of Louisiana.
    No. 2008-KH-1992.
    Supreme Court of Louisiana.
    Aug. 20, 2009.
   In re: Magee, Dennis; — Plaintiff; Applying for Reconsideration of this Courts action dated May 15, 2009; Parish of Washington, 22nd Judicial District Court Div. E, No. 01-CR1-82853 to the Court of Appeal, First Circuit, No. 2008 KW 0442.

Denied.


text:
    Clark A. GUNDERSON, M.D., et al. v. F.A. RICHARD & ASSOCIATES, INC., et al.
    No. 2009-CC-1861.
    Supreme Court of Louisiana.
    Aug. 20, 2009.
   In re: First Health Group; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. D, No. 2004-002417 D; to the Court of Appeal, Third Circuit, No. CW 09-00883.

Stay denied. Writ denied.


text:
    STATE ex rel. Bradford DAVIS v. STATE of Louisiana.
    No. 2008-CI-1990.
    Supreme Court of Louisiana.
    Aug. 20, 2009.
   In re: Davis, Bradford; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. 0, No. 531,294; to the Court of Appeal, First Circuit, No. 2007 CA 0683.

Denied.


text:
    STATE ex rel. Harold Joe BLACK v. STATE of Louisiana.
    No. 2008-KH-2412.
    Supreme Court of Louisiana.
    Aug. 20, 2009.
   In re: Black, Harold Joe; — Plaintiff; Applying For Supervisory and/or Remedíal Writs, Parish of Caddo, 1st Judicial District Court Div. A, No. 194,296; to the Court of Appeal, Second Circuit, No. 43484.

Denied.


text:
    Harold Joe BLACK v. Richard L. STALDER, Secretary.
    No. 2008-CI-2449.
    Supreme Court of Louisiana.
    Aug. 20, 2009.
   In re: Black, Harold Joe; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. F, No. 549,962; to the Court of Appeal, First Circuit, No. 2007 CA 2490.

Denied.


text:
    STATE ex rel. Kevin PITRE v. STATE of Louisiana.
    No. 2008-KH-2458.
    Supreme Court of Louisiana.
    Aug. 20, 2009.
   In re: Pitre, Kevin;- — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Evangeline, 13th Judicial District Court Div. B, No. 65996-FB; to the Court of Appeal, Third Circuit, No. KH 08-00963.

Denied.


text:
    STATE ex rel. James EDWARDS v. STATE of Louisiana.
    No. 2008-KH-2476.
    Supreme Court of Louisiana.
    Aug. 20, 2009.
   In re: Edwards, James; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Webster, 26th Judicial District Court Div. D, Nos. 69639, 69776; to the Court of Appeal, Second Circuit, No. 43802-KH.

Denied.


text:
    Darryl D. PARKER v. STATE of Louisiana.
    No. 2008-CI-2489.
    Supreme Court of Louisiana.
    Aug. 20, 2009.
   In re: Parker, Darryl D.; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. F, No. 497,391; to the Court of Appeal, First Circuit, No. 2008 CA 0516.

Denied.


text:
    STATE ex rel. Herman JONES Jr. v. STATE of Louisiana.
    No. 2009-KH-1274.
    Supreme Court of Louisiana.
    Aug. 20, 2009.
   In re: Jones, Herman Jr.; — -Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. F, Nos. 18207-06, 4145-07, 4179-07; to the Court of Appeal, Third Circuit, No. KH 09-00359.

Denied.


text:
    STATE ex rel. Ricardo GARZA, Jr. v. STATE of Louisiana.
    No. 2009-KH-1329.
    Supreme Court of Louisiana.
    Aug. 20, 2009.
   In re: Garza, Ricardo, Jr.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. G, Nos. 23048-08, 5819-09, 5119-07, 1249-08; to the Court of Appeal, Third Circuit, No. KH 09-00600.

Denied. Moot.


author: CHARLES R. JONES, Judge. BELSOME, J.,

text:
    FAIRWAY ESTATES HOMEOWNERS ASSOCIATION, INC. v. Alfred and Darlene JORDAN and Kevin and Samantha Nguyen.
    No. 2008-CA-0949.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 20, 2009.

      Al J. Robert, Jr., Law Office of Al J. Robert, Jr., LLC, New Orleans, LA, Stuart H. Smith, Smith Stag, L.L.C., New Orleans, LA, for Fairway -Estates Homeowners Association, Inc., Alicia Plummer and Clyde McCoy.
    Joel R. Waltzer, Waltzer & Associates, Harvey, LA, Clay J. Garside, Waltzer & Associates, New Orleans, LA, for Defendants/Appellants Kevin and Samatha Nguyen.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge CHARLES R. JONES, Judge MICHAEL E. KIRBY, Judge DAVID S. GORBATY and Judge ROLAND L. BELSOME).
   CHARLES R. JONES, Judge.

|, The Appellants, Kevin and Samantha Nguyen, appeal a judgment of the district court granting a permanent and mandatory injunction in favor of the Appellees, the Fairway Estates Homeowners Association, Clyde McCoy and Alicia Plummer. We affirm in part, reverse in part, and remand in part.

In October of 2006, the Nguyens purchased a home in the Fairway Estates subdivision in Orleans Parish. The subdivision is managed and preserved by the Fairway Estates Homeowners Association, which has been organized as a nonprofit corporation with the Louisiana Secretary of State since January 11, 2000. After purchasing their home, the Nguyens subsequently sought to construct an addition to the structure. They were advised by Ms. Plummer, the president of the Fairway Estates Homeowners Association, to discuss their modification plans with Mr. Hilliard Butler — who was a member of the Fairway Estates Homeowners Association’s Architectural Review Committee.

The Nguyens met with Mr. Butler, and they allege that he informed them that the adjustments that they wanted to make were not in compliance with the rear setback provision of the homeowners association’s Declarations of Covenants and Restrictions (“Restrictive Covenants”), and that they would need to apply for a [¿variance with the City of New Orleans to build closer than 20 feet to their property line. Both Mr. Butler and the Fairway Estates Homeowners Association deny that Mr. Butler advised the Nguyens to apply for a variance.

Nevertheless, the Nguyens submitted an application for a variance with the Board of Zoning Adjustments (“BZA”) for the City of New Orleans on March 13, 2007, and their application was granted at a BZA hearing on April 9, 2007, subject to two (2) provisos: 1.) the Nguyens had to enclose them rear yard with a 7 foot opaque fence, and 2.) the Nguyens’ addition had to match the color of the brick and roof style of the existing building. At the April hearing, the BZA explained that “any decision made by the Board (BZA) does not take away any authority of the Association (Fahway Estates Homeowners Association).”

Thereafter, the Nguyens — in compliance with FEHA’s Declaration of Restrictions and Covenants — attempted to submit their construction application, two (2) sets of construction plans, and a $150.00 application fee to Ms. Plummer via certified mail. Delivery was attempted by the U.S. Postal Service once at Ms. Plummer’s home address on June 19, 2007. One delivery notice was left for her by the U.S. Postal Service. Ms. Plummer did not claim the package. She admitted receipt of the delivery notice, and testified that she was unable to pick-up the package during post office hours. The package was returned to the Nguyens on July 18, 2007. The Ngu-yens made no further attempts to deliver the package to Ms. Plummer or the FEHA.

On or about July 24, 2007, the Nguyens began construction of their addition. The Fairway Estates Homeowners Association sent the Nguyens notices to cease construction, but to no avail. The Nguyens completed their addition by mid-September of 2007. As a result, the Fairway Estates Homeowners’ Association |;iand two (2) Fail-way Estates homeowners— Mr. McCoy and Ms. Plummer — (hereinafter collectively referred to as “FEHA”), filed suit against the Nguyens seeking in-junctive relief to have the couple comply with the provisions of the FEHA’s Restrictive Covenants that they allegedly violated when constructing their home addition.,

The Nguyens answered the suit, and filed exceptions of lack of procedural capacity, lack of right of action, and improper use of a summary proceeding against the FEHA. The Nguyens also filed a re-conventional demand for injunctive relief seeking to have the FEHA produce FEHA records, and to hold a proper election of its Board of Directors. They further filed a third party claim against Ms. Plummer and Mr. McCoy alleging that they refused to produce financial and corporate records of the FEHA, and that they engaged in bad faith and ultra vires conduct in refusing to accept the Nguyens’ application.

Trial was held on March 25 and 26, 2008. By judgment dated May 1, 2008, the district court granted the FEHA’s request for a permanent, mandatory injunction against the Nguyens, and ordered them to demolish and/or renovate the addition to their home to comply with the Restrictive Covenants. The district court denied the Nguyens’ exceptions and their reconven-tional demand. The Nguyens subsequently filed this timely appeal.

The Nguyens raise nine (9) assignments of error on appeal:

1. the district court’s interpretation of the rear setback provision of the Restrictive Covenant is in error;
|42. the district court erred in applying a more restrictive interpretation of the Restrictive Covenants where a reasonable and less restrictive interpretation exists;
3. the district court erred in finding that the Nguyens’ addition violated the Restrictive Covenants;
4. the district court erred in failing to find that the Board of Directors was improperly constituted and defunct;
5. the district court erred in failing to find that the ARC was improperly constituted and defunct;
6. The district court erred in finding that the improperly constituted Board of Directors had the authority to act;
7. The district court erred in concluding that the Nguyens failed to comply with application requirements contained in the Restrictive Covenants;
8. the district court erred in entering a judgment ordering the Nguyens “to remove the rear addition of their home” when neither the Reasons for Judgment nor the record support such an order; and
9. the district court erred in failing to grant the Nguyens’ reconventional demand seeking a proper election.

An appellate court cannot disturb the factual findings of the district court in the absence of “manifest error” or unless it is “clearly wrong.” Stobart v. State, Through Dept. of Transp. & Dev., 617 So.2d 880, 882 (La.1993). However, when a trial court commits legal error, an appellate court is required to review the record de novo. Edwards v. Pierre, 08-0177 (La.App. 4 Cir. 9/17/08), 994 So.2d 648, 656. Moreover, the standard of review for the issuance of a permanent injunction is the manifest error standard. Mary Moe, L.L.C. v. La. Bd. of Ethics, 03-2220, p. 9 (La.4/14/04), 875 So.2d 22, 29.

The Nguyens’ first and second assignments of error address the district court’s interpretation of the rear setback provision of the Restrictive Covenants at issue. In their first assignment of error, the Nguyens allege that the district court’s ^interpretation of the rear setback provision of the Restrictive Covenant is in error. The Nguyens’ assert that neither they nor the FEHA have interpreted the rear setback provision as requiring a maximum rear setback of 24 feet.

Article 7.4 is the section of the Declaration of Covenants and Restrictions at issue, which states in pertinent part:

.... [t]he rear setback requirements for a dwelling (living area) shall be twenty-four (24) feet or as required by the applicable Orleans Parish Zoning Ordinance. If the rear of any lot adjoins the Golf Course, however, no building, dwelling or part thereof shall be nearer than ten (10) feet to said rear lot line. In its Reasons for Judgment, the district

court explained:

[t]he Court finds a plain reading of the Restrictive Covenant Agreement contemplates a maximum rear setback requirement of 24 feet and a minimum of 20 feet. Moreover, the minutes of the April 9, 2007 meeting of the City of New Orleans Board of Zoning Adjustments (BZA) indicated a decision on a variance was “completely separate from any covenants or other restrictions on the property”.

Section 4.1.7 of the New Orleans Comprehensive Zoning Ordinance, entitled “Height, Area and Yard Requirements,” requires a minimum depth of a rear yard in a residential development to be 20 feet.

The rear setback provision gives Fairway Estates’ homeowners the choice between a 24 foot rear setback requirement and the 20 foot setback requirement of the BZA. Of the two options, 24 feet is more restrictive because it bars property owners from using four (4) additional feet available under the alternative rear setback requirement. We find that the district court’s use of the term “maximum requirement” to mean that the 24 foot rear setback requirement is greater than the 20 foot rear setback requirement. This interpretation is not at odds with the plain meaning of the rear setback article. This assignment of error is without merit.

| (iThe Nguyens’ second assignment of error is that the district court erred in applying a more restrictive interpretation of the Restrictive Covenants where a reasonable and less restrictive interpretation exists. The FEHA’s Restrictive Covenants required rear setbacks to either be 24 feet or “as required by the applicable Orleans Parish Zoning Ordinance.” The district court reasoned that the reference to the requirements of the Orleans Parish Zoning Board meant that the 20 foot rear set back requirement set forth for single family residential home in Section 4.1.7 of the New Orleans Comprehensive Zoning Ordinance was applicable.

Our review of the record indicates that it was not unreasonable for the district court to determine that the context and wording of the rear setback article indicates that the FEHA gives Fairway Estates homeowners the choice between two requirements. Moreover, it would defeat the purpose of having a rear setback requirement if all Fairway Estates Homeowners had the option of petitioning the City for a rear setback under 20 feet. It does not follow that the FEHA meant that to be the case. Lastly, the BZA advised the Nguyens that even though it approved their variance, ultimately the couple would have to obtain the permission of the FEHA. The district court did not commit manifest error in its interpretation of the FEHA’s rear setback requirement. This assignment of error is without merit.

The Nguyens’ third assignment of error is that the district court erred in finding that their addition violated the Restrictive Covenants. They contend that there is no testimony that their addition extends closer than 20 feet to their property line under the BZA guidelines. The FEHA maintains that a violation existed because the site plan they submitted into evidence shows that the rear addition constructed by the Nguyens only provides a minimum depth of 10 feet, which is 10 |7feet beyond the minimum 20 foot rear setback requirement. The FEHA further avers that Mr. Butler’s October 25, 2007 correspondence to the Nguyens documents the 10 foot encroachment, and rejects their plans.

Our review of the record shows that on October 11, 2007, the Nguyens filed a Memorandum in Opposition to Plaintiffs (FEHA’s) Petition for Injunction. In said memorandum, they declared:

The Nguyens have completed their extension exactly as described in their application to the Board of Zoning Adjustments and to the Homeowners Association. [Emphasis added]

The extensions described in both applications contained a rear set back that extended 15 feet. The original structure of the Nguyens’ home left them with a 25 foot rear set back. When Mr. Butler met with the Nguyens, he advised them that they could extend their home by five (5) feet in the rear, leaving them with the requisite.20 feet rearset back. The application submitted to the BZA and mailed to the FEHA requested a 15 foot extension that would have left only a 10 foot rear-set back. The Nguyens’ statement in their October 2007 memorandum is tantamount to an admission that they violated the FEHA’s rear setback requirement. We do not find that the district court manifestly erred in holding that the Nguyens’ addition violated the FEHA’s restrictive covenants where the couple admits the violation. Also, the district court ordered that the Nguyens “demolish and/or renovate any construction to their residence to comply with the covenants and restrictions of the Fairway Estates subdivision.” Consequently, if the Nguyens did not build the addition to their home as they specified in their applications, and the addition to then-home left them with at least a 20 foot rear setback then they [.¡have nothing to demolish and/or renovate because they would already be in compliance. This assignment of error is without merit.

In their fourth and fifth assignments of error, the Nguyens allege that the district court erred in failing to find that the Board of Directors of the FEHA, and the ARC were improperly constituted. The Nguyens assert that the FEHA is a nonprofit corporation that is governed by its' Articles of Incorporation and La. R.S. 12:201, et. seq., which controls nonprofit corporations. They specifically allege that pursuant to the FEHA’s Articles of Incorporation, the Board of Directors is to be composed of five (5) persons while the ARC is to be composed of three (3) persons.

The district court did not state within its Reasons for Judgment whether the Board of Directors and the ARC were improperly constituted. In denying the Nguyens’ exception of no right of action, the district court reasoned that the issues raised by the Nguyens as to the Board and the ARC are meritless as any homeowner within the Faix-way Estates subdivision had the right to file suit against the Nguyens under Article 10.3 of the Restrictive Covenant and pursuant to Louisiana caselaw. Diefenthal v. Longue. Vue Foundation, 02-1470 (La.App. 4 Cir. 1/7/04), 865 So.2d 863, 875.

The district court further explained that when the Nguyens purchased their home in the Fail-way Estates subdivision, the Board of Directors operated with three officers: a president, treasurer and a secretary. The district court determined that the Board’s decision to seek injunctive relief against the Nguyens at a September 2007 FEHA meeting was ratified by the homeowners that were in attendance. The district court reasoned that said ratification gives weight to the pactions of the three (3) member board. Therefore, the district court reasoned these arguments were meritless.

With regard to the ARC, the Minutes from the FEHA September 1, 2007 meeting, indicate that five persons were appointed to that committee. It is unclear, however, who appointed these persons to the ARC, and if the appointments were in compliance with the Restrictive Covenants. Yet, the district court rationalized in its Reasons for Judgment that the sole member of the ARC was Mr. Butler.

The FEHA avers that the Nguyens waived their arguments regarding the lack of procedural capacity of the Board of Directors and the ARC because the Ngu-yens had previously made a general appearance seeking to convert the FEHA’s motion for a preliminary injunction into a full trial on FEHA’s demand for a permanent injunction.

The Nguyens assert that the district court erroneously combined their arguments in support of their exception of no right of action with their argument on the merits that the Board of Directors was acting without authority.

Article VII of the Articles of Incorporation of the FEHA provides:

[t]he management of this corporation shall be vested in a Board of Directors which shall consist of five members in good standing of the corporation to be elected by the membership of the corporation at the annual meeting of the corporation.

Furthermore, pursuant to Article X, Section 10.3, entitled Enforcement, of the FEHA’s Restrictive Covenants:

[ejither the Fairway Estates Homeowners Association, through its Board of Directors, or any Lot Owner shall be entitled to seek enforcement of these covenants and restrictions by any proceeding at law or in | inequity against any person or persons violating or attempting to violate any covenant or restriction

Moreover, in Article VI, Section 6.2 of the Restrictive Covenants, entitled Architectural Review Committee, it states that “[t]he ARC shall have (3) members, appointed by the Fairway Estates Development, L.L.C....” The Fairway Estates Development, L.L.C., however, no longer exists. There has not been an amendment made to the Restrictive Covenants to provide for a new procedure to elect members of the ARC.

In Williams v. Southern Trace Property Owners Ass’n, Inc., 43,186, p. 3 (La.App. 2 Cir. 4/23/08), 981 So.2d 196, 198, the Second Circuit Court of Appeal held:

... [t]he community documents, such as the Declarations in the case sub judice, form the law between the Homeowners Association and the individual lot owners and among the lot owners in the community. La. R.S. 9:1141.8. The Declarations containing the restrictions and covenants are subject to the rules of the civil code and principles of contract interpretation contained therein. La. C.C. art. 783. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. La. C.C. art.2046. Further, when a clause in a contract is clear and unambiguous, the letter of that clause should not be disregarded under the pretext of pursuing its spirit. Id., comment (b); Maloney v. Oak Builders, 256 La. 85, 235 So.2d 386 (1970).

In applying the terms of the community documents (i.e. the Articles of Incorporation and the Restrictive Covenants) and examining the district court’s findings of fact with regard to the Board of Directors and the ARC, we find that both the Board of Directors and the ARC are improperly constituted. The district court’s determination that the Board of Directors only consisted of three (3) persons, and that Mr. Butler was the only member of the ARC indicates that both | ^ organizations were two (2) persons short of having the requisite number of members.

District courts have the authority to determine whether Boards are legally constituted and to issue such orders necessary to enforce an organization’s compliance with its own Articles of Incorporation. Smith v. Riley, 424 So.2d 1166, 1170 (La.App. 1 Cir.1982). Thus, finding that the Nguyens’ assignments of error four and five do have merit, we vacate the judgment of the district court denying the Nguyens’ reconventional demand for a new election of the Board of Directors. Furthermore, we grant, sua sponte, an exception of lack of procedural capacity on the part of the Fairway Estates Homeowners Association, and we remand this matter to the district court with instructions forthwith to order an election of the Board of Directors that is in compliance with the Articles of Incorporation. See La.Code Civ.P. art. 927(B). Lastly, the district court is instructed to oversee the FEHA amend its Restrictive Covenants with an updated article or articles specifying new procedures for the composition and election of the ARC.

Finally, Article 10.3 of the FEHA’s Declaration of Covenants and Restrictions and our jurisprudence recognizes the right of Mr. McCoy and Ms. Plummer — as individual homeowners within the Fairway Estates subdivision — to sue to enforce their subdivision’s building restrictions. Lake-shore Property Owners Ass’n v. Delatte, 579 So.2d 1039, 1044 (La.App. 4 Cir.1991), writ denied, 586 So.2d 560 (La.1991); Belle Tern Lakes Home Owners Association v. McGovern, 01-722 (La.App. 5 Cir. 1/29/02), 805 So.2d 1286, 1292. Thus, Mr. McCoy and Ms. Plummer had the procedural capacity to maintain this action for injunctive relief in their own right as homeowners within Fairway Estates. Id.

h2We pretermit discussion of assignment of error six, having already determined that the FEHA’s Board of Directors was improperly constituted and having ordered the district court to oversee a proper election of the Board Directors.

The Nguyens’ seventh assignment of error is that the district court erred in concluding that the Nguyens failed to comply with application requirements contained in the Restrictive Covenants.

The district court reasoned that the FEHA, via Ms. Plummer, did not receive notice of the Nguyens’ application for approval of construction. The district court went on to explain that only after the U.S. Post Office has made three failed attempts to serve a party is that party considered served. It is uncontested that the Ngu-yens mailed their application to Ms. Plum-mer via certified mail. However, when the mail was returned to the Nguyens — after one delivery notice was made to Ms. Plum-mer — they discontinued any further attempts to deliver their application to the FEHA Board of Directors. The district court determined that only after three notices are left and the U.S. Post Office returns a letter marked “unclaimed” that the district court can consider a party served under Hardy v. Dowe Co., Inc., 674 So.2d 452 (La.App. 4 Cir.1996), and Dean v. Waters, 667 So.2d 1137 (La.App. 4 Cir.1995).

The district court’s interpretation is erroneous. This court has not held that three notices must be left by the U.S. Postal Service before the intended recipient can be deemed served. In Dean, plaintiffs’ counsel mailed the citation and petition to the defendant and it was returned by the U.S. Postal Service marked “unclaimed” after three notices were left. 667 So.2d at 1141. Our holding in Dean was that a party may not defeat service by merely refusing to accept a letter 113containing a citation. Id. Similarly, in Hardy, we rationalized that a defendant, who refused to claim a certified letter from the post office notifying him of an upcoming hearing date, was served because litigants cannot defeat service by merely refusing to accept a letter containing a citation. 674 So.2d at 458.

Neither of the cases cited by the district court demonstrates that our court has established that service is made after the U.S. Postal Service makes three (3) failed attempts to deliver mailed and the mailed is marked and returned “unclaimed.” Nevertheless, having already determined that the Board of Directors was improperly constituted and ordering the district court to oversee a new election of the Board, we pretermit further discussion of this assignment of error.

Lastly, we pretermit discussion of assignment of error nine having already determined that the FEHA’s Board of Directors was improperly constituted and having ordered the district court to oversee a proper election of the Board Directors and the ARC.

DECREE

For the foregoing reasons, the judgment of the district court granting a permanent and mandatory injunction in favor of Clyde McCoy and Alicia Plummer is affirmed. We further find that the Board of Directors of the Fairway Estates Homeowners Association lacked the procedural capacity to institute this suit. Thus, the judgment of the district court granting a permanent and mandatory injunction in favor of the Fairway Estates Homeowners Association is reversed. The judgment of the district court denying the reconven-tional demand of Kevin and Samantha Nguyen is also reversed. We hereby remand this matter to the district court forthwith to oversee an election of the Fairway Estates Homeowners | ^Association’s Board of Directors that is in compliance with the Articles of Incorporation. Furthermore, the Fairway Estates Homeowners Association’s community documents contain outdated provisions that made compliance with said documents impossible. Thus, the district court shall oversee that the Fairway Estates Homeowners Association amends its Declaration of Covenants and Restrictions with new articles detailing the composition and election of members of the Architectural Review Committee. Consequently, any party and/or member of the Fairway Estates Homeowners Association, including the Association itself, may seek review under the newly elected Board of Directors and/or Architectural Review Committee.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED IN PART WITH INSTRUCTIONS.

ARMSTRONG, C.J., Concurs in Part and Dissents in Part for Reasons Assigned by Judge Belsome.

BELSOME, J., Concurs in Part and Dissents in Part With Reasons.

BELSOME, J.,

Concurs in Part and Dissents in Part With Reasons.

hi join in the majority opinion’s reasons and affirmation of the trial court’s judgment as it relates to the granting of the permanent and mandatory injunction in favor of Clyde McCoy and Alicia Plummer.

However, I respectfully dissent in the majority’s reversal of the district court’s ruling denying the reconventional demand of Kevin and Samantha Nguyen and its decision to remand with instructions. This Court’s affirmation of the permanent and mandatory injunction is dispositive of the case in its entirety. Therefore, the recon-ventional demand is now moot.

      . The FEHA also filed suit against Alfred and Darlene Jordan seeking an injunction; however, an appeal was not taken from the district court’s judgment relative to the Jordans.

      . On April 3, 2008, the FEHA filed an amended petition for preliminary and permanent injunction to include Mr. McCoy and Ms. Plummer as plaintiffs, which the district court granted. Additionally, Mr. McCoy is also a member of the FEHA’s Board of Directors.

      .The district court held that the Nguyens’ exceptions of lack of procedural capacity and unauthorized use of summary proceeding were either mooted or waived because they were not set for hearing prior to trial.

      . The five (5) members are: Ms. Plummer, Mr. McCoy, Frank Bissant, Mr. Butler and Sidney Williams.


author: JAMES F. MCKAY III, Judge.

text:
    Rhonda SERIGNET c/w Demetreus Bailey v. DEPARTMENT OF HEALTH.
    No. 2008-CA-0469.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 20, 2009.

      Jack H. Tobias, New Orleans, LA, for Plaintiffs/Appellants.
    Penya Moses-Fields, City Attorney, City of New Orleans, Nolan P. Lambert, Chief Deputy City Attorney, City of New Orleans, Shawn Lindsay Assistant City Attorney, City of New Orleans, Victor L. Papai, Jr., Assistant City Attorney, City of New Orleans, New Orleans, LA, for De-fendantyAppellee.
    (Court composed of Judge JAMES F. MCKAY III, Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE).
   JAMES F. MCKAY III, Judge.

hThe appellants, Rhonda Serignet and Demetrius Bailey, appeal the December 19, 2007 decision of the Civil Service Commission of New Orleans upholding the decision of the appointing authority for the City of New Orleans, Department of Health, to terminate their employment. We find that the ruling was warranted and affirm the decision.

FACTS AND PROCEDURAL HISTORY

Rhonda Serignet and Demetrius Bailey were employed at the City of New Orleans Department of Health (“Department”), with permanent status as classified civil service employees. Rhonda Serignet was an Emergency Medical Technician Paramedic. She was first hired by the City on April 12, 1994, and her appointment to her current status was effective April 28,1998. Demetrius Bailey, was an Emergency Medical Technician Assistant. He was first hired by the City on March 3, 2003.

The appellants were absent from duty for approximately five days, on or about June 7, 2006 thru June 12, 2006. On June 12, 2006, Mr. Bailey returned to 12work and submitted to the department the required return to work note from Westbank Primary Care Clinic (“Clinic”). The submitted note was allegedly signed by Dr. Tri Du and purported to be medical excuses for illnesses and absences from duty. The following day, June 13, 2006, Ms. Serignet returned to work and also submitted a return to work note from the Clinic and also signed by Dr. Tri Du.

Upon receipt of these notes, Supervisor Daryl Richardson noticed the similarities in Ms. Serignet’s return to work note and the note that was submitted on June 12, 2006, by Demetrius Bailey. Mr. Richardson apprised Mr. Cliff Washington, an investigator for the Department, of his concerns questioning the validity of the notes. The return to work notes were both forwarded to the Department’s deputy director, Mark J. Reis.

The Department asserts that the appellants were orally notified by Mr. Reis, on June 13, 2006, that they were to attend a pre-termination hearing/meeting that afternoon at department headquarters, 300 Calliope Street, to address the validity of their medical excuses. At the conclusion of that meeting the appellants were told to return to department headquarters the next morning and to provide the department with original copies of the suspect notes. On the morning of June 14, 2006, after the appellants failed to timely report for the scheduled meeting, Mark Reis, Yolanda Wilson, and Cliff Washington drove to the Clinic, in an attempt to validate, with the clinic staff, the suspect notes. When they arrived at the clinic |sthey learned that Ms. Serignet and Mr. Bailey were also at the clinic. Upon seeing the appellants, Mr. Reis testified that he informed the appellants to appear at 300 Calliope Street so that they could have the meeting.

Clinic employees Tina and Briteny For-et, when questioned as to the validity of the notes, confirmed that the notes were not physicians’ excuses generated by their office. Mark Reis then spoke to Kim Faz-ende and Dr. Tri Du who are also clinic employees. Dr. Du noted that he had not seen the appellants on June 7, 2006, but had seen them that very day and had written them each a medical excuse note. Ms. Fazende advised that there were no clinic records to indicate that either of the appellants had been seen on June 7, 2006.

The same day, June 14, 2006, after returning to department headquarters, Ms. Serignet and Mr. Bailey met with Mark Reis, Cliff Washington and Yolanda Wilson. They were once again informed that this was a pre-termination conference regarding the investigation concerning the validity of the physician’s notes. The appellants informed the panel that the original notes, from Dr. Du dated June 7, 2006, were lost. However, Ms. Serignet offered the panel the new note which she had procured from the clinic that day. At the conclusion of the hearing, both appellants were again advised to return to department headquarters within twenty-four hours with the original notes. Ms. Serig-net ultimately handed over the note dated June 14, 2006, but Mr. Bailey did not. During the course of the hearing on June, 14, 2006, Ms. Serignet admitted that the note that she had initially submitted was an altered photo copy of a note that had been previously submitted for another |4absence and that she had not gone to the clinic until that very day to get a medical excuse note from Dr. Du. Mr. Bailey admitted to the same. Both appellants were advised that they would be contacted in writing regarding the outcome of the pre-termination hearing. The panel recommended that their employment be terminated.

On June 14, 2006, Dr. Juliette Saussy, Director of Emergency Medical Services concurred with the panel’s recommendation and sent the appellants separate post-hearing letters of termination. It was noted that the terminations were based upon cause; the lack of truthfulness. The termination letters noted that the terminations were not based on the appellants being legitimately sick but on issues of integrity and truthfulness. The appointing authority, through Dr. Juliette Saussy in her capacity as director of the department, issued final dispositions of the investigation, which was employment termination as to both appellants pursuant to Civil Service Rule 9.1.1. The appellants appealed this order of termination to the Civil Service Commission (“CSC”). The CSC upheld the appointing authority’s decision to terminate the appellants’ employment with the department. It is from this decision that the appellant have appealed to this Court.

STANDARD OF REVIEW

A permanent, classified civil service employee may not be disciplined or terminated except for legal cause and in writing. La. Const. art. X, Sec. 8; Saacks v. City of New Orleans, 95-2074 (La.App. 4 Cir. 11/27/96), 687 So.2d 432. The employee may appeal the disciplinary action to the CSC, and the employer, or the appointing authority, has the burden of proof at the hearing. Specifically, the appointing authority has the burden of proving by a preponderance of the evidence that the complained-of conduct occurred and that it has impaired the efficiency of the public service of the department. Saacks v. City of New Orleans, 95-2074, pp. 48-49 (La.App. 4 Cir. 11/27/96), 687 So.2d 432, 456; Cittadino v. Dept. of Police, 558 So.2d 1311, 1315 (La.App. 4th Cir.1990). Once the CSC has rendered a decision regarding the employee’s appeal of the disciplinary action, we are bound to uphold the decision of the CSC unless it is “arbitrary, capricious, or characterized by an abuse of discretion.” Gant v. Dept. of Police, 99-1351, p. 4 (La.App. 4 Cir. 1/5/00), 750 So.2d 382, 384, citing, Walters v. Dept. of Police of City of New Orleans, 454 So.2d 106, 114 (La.1984); Newman v. Dept. of Fire, 425 So.2d 753 (La.1983).

“Cause” for the dismissal of a person who has gained permanent status in the classified civil service has been interpreted to include conduct prejudicial to the public service in which the employee in question is engaged or detrimental to its efficient operation. Walters v. Department of Police of City of New Orleans, 454 So.2d. at 113. The Commission has a duty to decide independently from the facts presented whether the appointing authority has good or lawful cause for taking disciplinary action and, if so, whether the punishment imposed was commensurate with the dereliction. Id,

The Commission’s decision is subject to review on any question of law or fact upon appeal to the appropriate court of appeal. La. Const, art. X, § 12(B). | (¡Accordingly, the reviewing court should apply the clearly wrong or manifest error rule prescribed generally for appellate review in deciding whether to affirm the commission’s factual findings. Id. In reviewing the commission’s findings of fact, the court should not reverse or modify such a finding unless it is clearly wrong or manifestly erroneous. In judging the commission’s exercise of its discretion in determining whether the disciplinary action is based on legal cause and the punishment is commensurate with the infraction, the court should not modify the commission’s order unless it is arbitrary, capricious or characterized by an abuse of discretion. Id. at 114; See also Evans v. DeRidder Municipal Fire and Police Civil Service Board, 2001-2466 (La.4/3/02), 815 So.2d 61; Delpit v. New Orleans Dept. of Utilities, 2002-2008 (La.App. 4 Cir. 2/19/03), 841 So.2d 30.

DISCUSSION

The appellants argue that the CSC ruling was manifestly erroneous in upholding the appointing authority’s decision to terminate their employment and that this ruling was arbitrary and capricious.

Civil Service Commission Hearing

On August 31, 2006, the CSC held a hearing, pursuant to Article X, Section 12 of the Constitution of the State of Louisiana, on the appellants’ appeal. The appellants were present and represented by counsel at the hearing.

The appellants’ arguments are primarily based on three allegations.

First, the appellants argue that their absences were based on fatigue and that this condition caused them to display bad judgment. The appellants had in fact 17worked virtually continuously since Hurricane Katrina to the date of the infractions as the department was understaffed and overworked. The CSC dismissed this argument finding that the issue was not the appellants’ reasons for their absences but on the fact that the appellants deliberately falsified sick slips to mislead their supervisors. Both of the appellants admitted that the original slips (or copies of original notes) were altered. This deliberate falsification of sick slips showed a lack of truthfulness and reliability which the CSC, agreeing with the appointing authority, concluded justified their termination. We agree with the ruling of the CSC and find no merit to this argument.

Secondly, the appellants maintained that the department did not give them proper notice concerning the pre-termination hearing pursuant to Cleveland, Bd. of Education v. Loudermill, 470 U.S. 532, 542, 105 S.Ct. 1487, 1493, 84 L.Ed.2d 494 (1985), because a formal written notice of the pre-termination hearing held on June 14, 2006 was required. In Louder-■mill, the United States Supreme Court stated:

An essential principle of due process is that a deprivation of life, liberty, or property “be preceded by notice and opportunity for hearing appropriate to the nature of the case.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 656, 94 L.Ed. 865 (1950). We have described “the root requirement” of the Due Process Clause as being “that an individual be given an opportunity for a hearing before he is deprived of any significant property interest.” Boddie v. Connecticut, 401 U.S. 371, 379, 91 S.Ct. 780, 786, 28 L.Ed.2d 113 (1971) (emphasis in original); see Bell v. Burson, 402 U.S. 535, 542, 91 S.Ct. 1586, 1591, 29 L.Ed.2d 90 (1971). This principle requires “some kind of a hearing” prior to the discharge of an employee who has a constitutionally protected property interest in his employment. Perry v. Sindermann, 408 U.S. 593, 599, 92 S.Ct. 2694, 2698, 33 L.Ed.2d 570. As we pointed out last Term, this rule has been settled for some time now. Davis v. Scherer, 468 U.S. 183, 192, n. 10, 104 S.Ct. 3012, 3018, n. 10, 82 L.Ed.2d 139 (1984); Id., at 200-203, 104 S.Ct. [at] 3022-3024 |K(BRENNAN, J., concurring in part and dissenting in paid). Even decisions finding no constitutional violation in termination procedures have relied on the existence of some pretermination opportunity to respond. For example, in Arnett[ v. Kennedy, 416 U.S. 134, 168-169, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974) ] six Justices found constitutional minima satisfied where the employee had access to the material upon which the charge was based and could respond orally and in writing and present rebuttal affidavits. See also Barry v. Barchi, 443 U.S. 55, 65, 99 S.Ct. 2642, 61 L.Ed.2d 365 (1979)(no due process violation where horse trainer whose license was suspended “was given more than one opportunity to present his side of the story”). [Emphasis added.]

The record indicates that the appellants were confronted by their supervisors on June 13, 2006, and notified that their sick slips were suspect and were being questioned as to their validity. The appellants were told to appear the next day for a hearing. The hearing was to give the appellants an opportunity to produce the signed original sick slips and to present any justification for their falsification. They were clearly orally informed of the hearing and the purpose of the hearing. They were both aware that employment termination was being considered. The appellants were given the opportunity to respond to the accusations and to present their version of the facts to the panel.

The CSC found that neither Lov.de,r-ndll nor CSC rules require written notice of a pre-termination hearing. Hence, Loudennill is satisfied as long as the employee knows through oral or written notice that he/she will have an opportunity at a hearing to respond to the charge being asserted. The hearing doesn’t have to be definitive. It is an “initial check against mistaken decision.” Id., 470 U.S. 532, 105 S.Ct. at 1495. The CSC found that “The evidence in the record shows without question that appellants were told to appear for a hearing on June 14, 2006 and to bring an original doctor’s note verifying their alleged sickness.” The appellants’ responses confirmed that lathe medical excuse notes, submitted to the department upon the appellants’ return to work were falsified. We find that it was established through testimony and other evidence that the due process requirements, as set forth in Loudermill, namely notice of transgressions, a time set for the hearings, and an opportunity to present their side of the story, were all present in the case sn,b jvdiee. There is no merit to this assignment of error.

Thirdly, the appellants argued that they were not properly terminated because the appointing authority was the department which did not issue the termination letter, as Dr. Juliette Saussy signed the termination letter dated June 14, 2006, on behalf of EMS and the Department of Homeland Security.

The CSC concluded that CSC Rule 11-IX § 1.1, specifies that classified employees are terminated by their appointing authority, which in this case was the Department of Health. The CSC went on to note that:

However, the record reflects that pursuant to the authority in the Louisiana Homeland Security Act, La. R.S. 29:727, Mayor Ray Nagin transferred “first responders”, such as EMS, to the control of the Department of Homeland Security during the emergency created by Hurricane Katrina. The testimony of the Director of Homeland Security, Col. Terry Ebbert, indicates that during the Katrina declared ‘emergency’ all of the operational functions of EMS including the termination of EMS employees were under the ultimate control of the Homeland Security Agency, which in turn delegated the authority to terminate employees to EMS. Thus, we find that EMS, acting through Dr. Juliette Saus-sy, had the delegated authority to terminate Appellants.

Colonel Terry Ebbert also testified that he reviewed the termination letters and concurred with Dr. Saussy. Based on the decision of the CSC and the record before this Court, we agree with the CSC decision and find that Dr. Juliette had the | inauthority to formally sign the June 14, 2006 notice of employment termination. The appellants were terminated under proper authority and in conformance with their constitutional due process rights. We find no merit to this assignment of error.

CONCLUSION

The CSC rendered its decision on December 19, 2007, and upheld the employment termination of both appellants. Its decision was based on factual findings that the appellants did indeed falsify sick slips to mislead their supervisors as to the reasons for their absences from work in violation Civil Service Rules.

In the review of the record before this Court we must afford great deference to the CSC’s ruling supporting the decision of the appointing authority to terminate the appellants. Therefore, we find that the decision of the CSC was based on suffi-eient legal cause and was neither arbitrary nor capricious, nor an abuse of discretion. The decision of the CSC is affirmed.

AFFIRMED.

      . Yolanda Wilson is the Human Resource Fi- nance Director for the department.


author: CLARENCE E. McMANUS, Judge.

text:
    STATE of Louisiana v. Ronald J. MORGAN.
    No. 08-KA-1299.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 26, 2009.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Andrea F. Long, Assistant District Attorneys, Gret-na, Louisiana, for Plaintiff/Appellee.
    Gwendolyn K. Brown, Attorney at Law, Louisiana Appellate Project, Baton Rouge, LA, for Defendant/Appellant.
    Panel composed of Judges CLARENCE E. McMANUS, FREDERICKA HOMBERG WICKER, and JEROME M. WINSBERG, Pro Tempore.
   CLARENCE E. McMANUS, Judge.

| ;>This is defendant’s third appeal. In this appeal, he argues the trial court erred in resentencing him on remand and erred in denying his motion to reconsider sentence. For the reasons which follow, we vacate defendant’s sentences and remand for resentencing.

STATEMENT OF THE CASE

In defendant’s first appeal, this Court affirmed defendant’s convictions for forcible rape and aggravated incest and the finding that defendant was a third felony offender. State v. Morgan, 06-529 (La.App. 5 Cir. 12/12/06), 948 So.2d 199. This Court vacated defendant’s sentences and remanded the case to the trial court for a ruling on defendant’s outstanding counseled motion for new trial. Id., 06-529 at 25, 948 So.2d at 206-07, 215.

On remand, the trial judge resentenced defendant on Count 1, forcible rape, to imprisonment at hard labor for 20 years, and on Count 2, aggravated incest, to imprisonment at hard labor for 10 years, with both sentences to run concurrently. 3State v. Morgan, 07-943, p. 2 (La.App. 5 Cir. 3/11/08), 982 So.2d 172, 173. Three months later, the trial judge, Judge Robert Burns, denied defendant’s pro se motion for new trial after a hearing. One week later, Judge Burns vacated the original sentences and resentenced defendant as a third felony offender to a term of 40 years to be served without benefit of parole, probation, or suspension of sentence on both counts to run concurrently. State v. Morgan, 07-943 at 2-3, 982 So.2d at 173.

In the second appeal, this Court again vacated defendant’s sentences and remanded for a ruling on the outstanding counseled motion for new trial, since the trial court erroneously ruled on defendant’s pro se motion for new trial, which had already been denied, instead of his outstanding counseled motion for new trial three months after sentencing. State v. Morgan, 07-943 at 3, 982 So.2d at 173. This Court stated that, if the trial judge denied the motion and subsequently resen-tenced defendant, it reserved defendant’s right to appeal an adverse judgment with respect to his sentencing. Id.

On remand, the trial judge, Judge Donald Rowan, denied defendant’s motion for new trial after a hearing on October 3, 2008. Afterwards, the trial judge resen-tenced defendant on Count 1, forcible rape, to imprisonment at hard labor for 20 years, with “at least two” years to be served without benefit of parole, probation, or suspension of sentence, and on Count 2, aggravated incest, to imprisonment at hard labor for ten years, with Count 1 to run consecutively with Count 2. The trial judge then vacated the original sentence and re-sentenced defendant as a third felony offender on Count 1 to imprisonment at hard labor for 40 years without benefit of parole or suspension of sentence and on Count 2 to imprisonment at hard labor for 10 years “without benefits,” with the sentences on Lboth counts to run consecutively. Defendant filed a motion to reconsider sentence that was denied.

Defendant now timely appeals his sentence and the trial court’s ruling on his motion to reconsider sentence. On appeal, defendant alleges three assignments of error: 1) the trial court erred by increasing his sentence following his successful appeal without cause for doing so, 2) the trial court erred by imposing a sentence inconsistent with the sentence requirements of La. R.S. 15:529.1, and 3) the trial court erred by denying his motion to reconsider sentence without appai’ent consideration of its merits. For the reasons which follow, we vacate defendant’s enhanced sentence and remand for resentencing.

ASSIGNMENT OF ERROR NUMBER ONE

By this assignment of error, defendant argues that the trial judge erred by increasing his sentence without justification following his successful appeal. He contends that vindictiveness must reasonably be inferred from the record and, therefore, the case should be remanded for resentencing. The State responds that the trial judge has great discretion in imposing sentence and that defendant has not met his burden of proving actual vindictiveness relative to his sentencing.

Generally, if a convicted defendant is successful in having his conviction overturned on appeal, and is subsequently re-tried and convicted, the trial judge may not then impose a more severe sentence. State v. Dauzart, 07-15, p. 9 (La.App. 5 Cir. 5/15/07), 960 So.2d 1079, 1086, citing North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), overruled in part by Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989). If a judge imposes a more severe sentence on a defendant when he is convicted following a successful appeal, the trial judge’s reasons for the increased sentence must affirmatively appear in the record. Otherwise, there is a presumption of vindictiveness. The |5purpose behind this rule is to prevent defendants from being penalized for having exercised their constitutional rights. State v. Fletcher, 03-60, p. 7 (La.App. 5 Cir. 4/29/03), 845 So.2d 1213, 1218-19, citing North Carolina v. Pearce, supra.

However, the presumption of vindictiveness is inapplicable where different judges have imposed the different sentences against the defendant, because a sentence “increase” cannot truly be said to have taken place. State v. Dauzart, 07-15 at 9, 960 So.2d at 1086, citing Texas v. McCullough, 475 U.S. 134, 106 S.Ct. 976, 89 L.Ed.2d 104. Where the presumption does not apply, the defendant may still be entitled to relief, but he must affirmatively prove actual vindictiveness. State v. Dauzart, 07-15 at 9, 960 So.2d at 1086 citing Wasman v. U.S., 468 U.S. 559, 104 S.Ct. 3217, 82 L.Ed.2d 424 (1984) and State v. Rodriguez, 550 So.2d 837 (La.App. 2 Cir.1989).

In this case, the judge who resentenced defendant the third time on October 3, 2008, Judge Rowan, was not the same judge who presided over defendant’s trial and imposed sentence and who subsequently resentencecl him the first time, Judge Cusimano, nor was it the same judge who resentenced defendant a second time, Judge Burns. Accordingly, defendant is not entitled to the presumption of vindictiveness, but bears the burden of affirmatively showing same. Dauzart, supra. Thus, the issue we must decide is whether defendant has proven vindictiveness on the part of the sentencing judge.

In State v. Dauzart, supra, defendant argued that his enhanced sentence was vindictive. In that case, defendant was convicted of two counts of armed robbery and sentenced to 60 years at hard labor on each count to run concurrently. The supreme court reversed defendant’s convictions. A second trial was held, and the jury found defendant guilty of one count of armed robbery. The trial judge sentenced defendant to 50 years at hard labor. Defendant was then found to be a | fithird felony offender. The original sentence was vacated and defendant was sentenced to life imprisonment. On appeal, this Court affirmed the conviction but vacated the multiple offender adjudication and sentence and remanded. The trial court resentenced defendant as a second felony offender to 100 years at hard labor. As a result, defendant’s sentence of 100 years was increased 40 years from his original sentence. Id., 07-15 at 2-3, 960 So.2d at 1082-83.

The Dauzart court noted that the judge who presided over defendant’s first trial and imposed sentence was not the same judge who presided over the retrial and the multiple bill hearing. As such, this Court found that defendant was not entitled to the presumption of vindictiveness, but bore the burden of affirmatively showing same. Defendant argued that the trial court’s failure to articulate why the sentence was increased was sufficient to show vindictiveness. However, this Court found that the increased sentence alone was not sufficient to show vindictiveness, since defendant’s harsher sentence was a result of his multiple offender adjudication. Therefore, this Court concluded that defendant failed to bear his burden of affirmatively proving vindictiveness on the part of the trial judge in resentencing. State v. Dauzart, 07-15 at 10, 960 So.2d at 1086.

In State v. Rodriguez, supra, defendant was charged with armed robbery and, pursuant to a plea agreement, pled guilty to first degree robbery. The trial court sentenced him to 12 years at hard labor. Although this sentence was affirmed on appeal, the supreme court granted defendant’s post-conviction relief application, and defendant was resentenced by a different judge to 20 years at hard labor. On appeal, defendant ai'gued that the trial court impermissibly imposed an increased sentence upon him in contravention of North Carolina v. Pearce, and he also alleged a judicial vendetta against him. The appellate court stated that the presumption of vindictiveness was inapplicable because different sentencers |7imposed the different sentences. It noted that the trial judge who resentenced defendant had new, objective information regarding defendant’s prior criminal record upon which to base an increased sentence that was not available to the first sentencing judge. As such, the appellate court found that the trial court’s reasons for imposing sentence were sufficient to overcome any presumption of vindictiveness. Id., 550 So.2d at 837-41.

In State v. Neville, 572 So.2d 1161 (La.App. 1 Cir.1990), writ denied, 576 So.2d 46 (La.1991), defendant pled guilty to armed robbery and attempted first degree murder and was sentenced to imprisonment for 15 and 20 years respectively to be served consecutively. The federal court found a double jeopardy violation, so the State dismissed the armed robbery count. The court resentenced defendant to 34 years imprisonment, and defendant appealed, arguing that the trial judge erred by increasing his sentence on the attempted first degree murder charge from 20 to 34 years. He also argued that the trial judge was vindictive. The appellate court held that the Pearce presumption of vindictiveness did not apply and, therefore, it was incumbent upon defendant to prove actual vindictiveness. After reviewing the record, the appellate court found that the judge who resentenced defendant was not vindictive, noting that the judge had explained that it was his intent to impose a sentence consistent with the original sentencing judge’s intent that defendant serve 35 years. The appellate court also held that, because the Pearce presumption did not apply, it was not essential that the court consider defendant’s intervening conduct or state any reasons other than as necessary to comply with LSA-C.Cr.P. art. 894.1, which the court did. Id., 572 So.2d at 1162-66.

Dauzart, Rodriguez, and Neville are distinguishable from the instant case. The instant case, unlike Dauzart, did not involve a multiple offender adjudication, but rather, a remand for resentencing. As Judge Daley noted in his concurring Isopinion in Dauzart, the filing of a multiple bill and enhancement pursuant to multiple bill proceedings creates a basis for enhancement other than vindictiveness against defendant’s appellate rights. State v. Dauzart, 07-15 at 18, 960 So.2d at 1090-91. Also, the trial judge in the instant case, unlike the trial judge in Rodriguez, did not have new, objective information upon which to base the increased sentence. Finally, the instant case, unlike Neville, did not involve a situation where a different judge sentences defendant after one count has been dismissed after a double jeopardy violation. Because neither Dau-zart, Rodriguez, nor Neville are directly on point, we have reviewed cases from other jurisdictions.

In State v. Garrett, 08-1752 (Ohio App. 2 Dist. 4/11/08), 2008 WL 1115246, the appellate court concluded that vindictiveness had been established. Garrett was convicted of five counts of aggravated robbery and 10 counts of kidnapping and sentenced to a total term of 39 years. The supreme court remanded the matter to the trial court for resentencing, and defendant was resentenced by a different judge to a total term of 53 years. On appeal, defendant argued that she was deprived of her constitutional rights when the resentencing court imposed a harsher sentence upon remand. The appellate court concluded that vindictiveness had been established because: (1) there was a complete absence in the record of any relevant facts subsequent to Garrett’s first sentencing to suggest a harsher sentence was warranted; (2) although the judge referenced the serious nature of the offenses, those facts had not changed since Garrett was originally sentenced; (3) the length of the increase was a substantial 14 years; (4) the trial judge’s comment that there was nothing stopping the defendant from getting more time than she got before indicated that the increased sentence was imposed merely because the judge concluded he had the unbridled discretion to impose it; and (5) the State did not recommend any increase in sentence. With nothing before them beyond an |9assertion by the trial judge of a ‘ “naked power to impose” ’ a harsher sentence, the appellate court inferred a personal animus against Garrett. As such, the appellate court reversed the judgment of the sentencing court and modified Garrett’s sentence to a total term of 39 years. Id., pp. 3-7.

In U.S. v. Anderson, 440 F.3d 1013 (8th Cir.2006), cited by the State in its brief, the federal appellate court concluded that vindictiveness had not been established. In Anderson, the defendant was convicted of 49 counts of mail fraud and money laundering, among other things, and sentenced. The appellate court affirmed the convictions but remanded for resentencing. Defendant was subsequently resentenced by a different judge to an increased sentence. On appeal, defendant argued that the higher sentence was an impermissible, vindictive sentence intended to punish him for having exercised his right to appeal. The appellate court did not recognize a presumption of vindictiveness since there were different senteneers, and it found that defendant bore the burden of proving actual vindictiveness. The appellate court stated that, because defendant relied on no evidence other than the fact of the longer sentence to prove vindictiveness, his argument failed. The appellate court found that the higher sentence on remand was easily explained by the district court’s views unrelated to the prior appeal. Id., 440 F.3d at 1013-17.

In the instant case, as in Garrett, supra, there was a complete absence in the record of any relevant facts subsequent to defendant’s first sentencing to suggest a harsher sentence. In Garrett, the increase in defendant’s sentence was fourteen years. In this case, defendant’s sentence was increased by ten years since the enhanced sentences on each count were ordered to run consecutively, instead of concurrently. As in Garrett, the increase in the defendant’s sentence in this case was substantial. Also, similar to Garrett, the trial judge in the instant case made a | mcomment indicating that the sentence was being imposed merely because he concluded he had the unbridled discretion to impose it. In the instant ease, the trial judge resentenced defendant, after which defense counsel objected to the sentences, noting that they were harsher than those originally imposed. Afterwards, the trial judge stated, “Well, I’m the sentencing judge, and that’s what my sentence is.” Additionally, in the instant case, as in Garrett, the record does not indicate that the State recommended any increase in sentence. And, unlike Neville and U.S. v. Andersmt, the trial judge in the instant case did not provide reasons for his sentence.

We note it is possible, based on the record, that the trial judge may not have had a personal animus against defendant, but rather, he may have thought concurrent sentences were too lenient considering the disturbing facts of this case, that defendant raped his own biological daughter numerous times over a period of years. However, since the trial court did not provide reasons for the increased sentence on remand after appeal, we vacate defendant’s enhanced sentence and remand this matter to the trial court for resentencing with orders that the trial court provide reasons for the sentence imposed.

ASSIGNMENT OF ERROR NUMBER TWO

Defendant argues that the trial court erred by denying him parole eligibility for the duration of the enhanced sentence and by neglecting to specify that the sentence be served without eligibility for probation. As such, defendant argues that the sentence is illegal under LSA-R.S. 15:529.1 G and should be remanded for the imposition of a legal sentence. The State responds that the trial judge correctly denied parole eligibility based on the restrictions prescribed by the underlying statute.

|uThe transcript indicates that, after vacating the original sentence, the trial judge resentenced defendant under the multiple bill statute on Count 1, forcible rape, to imprisonment at hard labor for 40 years without benefit of parole or suspension of sentence and on Count 2, aggravated incest, to imprisonment at hard labor for 10 years “without benefits,” with the sentences on both counts to run consecutively. The commitment reflects that the trial judge ordered the sentence on Count 1 to be served without benefit of parole, probation, or suspension of sentence, and it did not reflect that Count 2 was to be served “without benefits.” The transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983).

LSA-R.S. 15:529.1 G provides that multiple bill sentences are to be served without benefit of jorobation or suspension of sentence. Therefore, the trial judge erred by not stating that the enhanced sentence on Count 1 was to be served without probation.

Further, the restrictions on parole eligibility imposed on habitual offender sentences under LSA-R.S. 15:529.1 “are those called for in the reference statute.” State v. King, 05-553, p. 15 (La.App. 5 Cir. 1/31/06), 922 So.2d 1207, 1215, writ denied, 06-1084 (La.11/9/06), 941 So.2d 36. In this case, the underlying or reference statute, LSA-R.S. 14:42.1 B, provided at the time defendant committed the crimes that at least two years of the sentence imposed shall be without benefit of probation, parole, or suspension of sentence. Therefore, we find the trial judge did not err by imposing the enhanced sentence on Count 1 without benefit of parole.

However, no action by this Court is necessary to correct any error pursuant to LSA-R.S. 15:529.1 G because we vacate defendant’s sentence and remand this matter to the trial court for resentencing, in accordance with the above discussion concerning Assignment of Error Number One.

| ^ASSIGNMENT OF ERROR NUMBER THREE

In assignment of error number three, the defendant argues that the trial judge erred by denying his motion to reconsider sentence without apparent consideration of its merits. The State responds that the trial judge considered the motion and concluded that it did not warrant the relief requested.

LSA-C.Cr.P. art. 881.1 A(l) provides that, in felony cases, within 30 days following the imposition of sentence or within such longer period as the trial court may set at sentence, the State or the defendant may make or file a motion to reconsider sentence. The motion shall be oral at the time of sentence or shall be in writing thereafter and shall set forth the specific grounds on which the motion is based. LSA-C.Cr.P. art. 881.1 B.

The record reflects that, on October 3, 2008, the sentencing judge imposed the enhanced sentence, after which defendant orally noted his objection to that sentence as being excessive. Defendant subsequently filed a timely pro se motion to reconsider sentence on October 21, 2008. On October 28, 2008, the trial judge denied the motion without a hearing, stating, “By law, he is not entitled to reconsideration of sentence. The court finds no illegality in the defendant’s sentence, as the sentence is in accordance with the law. Defendant is not entitled to the relief sought.”

In light of the trial judge’s statement that, “By law, he is not entitled to reconsideration of sentence,” it appears that the trial judge was under the mistaken impression that defendant was not entitled to reconsideration of his sentence. As defendant noted in his brief, the motion to reconsider sentence was timely filed under LSA-C.Cr.P. art. 881.1. Also, as defendant noted in his brief, this Court, |1supon its remand, specifically reserved to defendant his right to appeal an adverse judgment with respect to his sentencing. State v. Morgan, 07-943 at 3, 982 So.2d at 173. Therefore, we vacate the trial court’s order and remand this matter to the trial court. Since we have also vacated defendant’s sentence and remanded for l’esentencing, we order the trial court to consider defendant’s motion to reconsider sentence, if reurged after resentencing.

ERROR PATENT REVIEW

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). The review reveals several errors patent in this case.

First, there is a discrepancy between the transcript and the commitment. The transcript indicates that, after vacating the original sentence, the trial judge resentenced defendant under the multiple bill statute on Count 2, aggravated incest, to imprisonment at hard labor for 10 years “without benefits.” However, the commitment does not reflect that Count 2 was to be served “without benefits.” The transcript prevails. State v. Lynch, supra.

LSA-R.S. 15:529.1 G provides that multiple bill sentences are to be served without benefit of probation or suspension of sentence. Therefore, the trial judge erred by stating that the enhanced sentence on Count 2, aggravated incest, was to be served “without benefits”. The trial court should have stated that the sentence was to be served without benefit of probation or suspension of sentence.

Finally, we find the enhanced sentence on Count 2 is illegally lenient. After the trial judge vacated the original sentence, he resentenced defendant as a third felony offender on Count 1, forcible rape, to imprisonment at hard labor for 40 years without benefit of parole or suspension of sentence and on Count 2, | ^aggravated incest, to imprisonment at hard labor for 10 years “without benefits,” with the sentences on both counts to run consecutively.

LSA-R.S. 15:529.1 A(b)(i) provides that if the third felony is such that upon a first conviction, the offender would be punishable by imprisonment for any term less than his natural life, then the person shall be sentenced to imprisonment for a determinate term not less than two-thirds of the longest possible sentence for the conviction and not more than twice the longest possible sentence prescribed for a first conviction.

At the time the offenses were committed, LSA-R.S. 14:78.1 D provided that a person convicted of aggravated incest shall be fined an amount not to exceed $50,000.00, or imprisoned, with or without hard labor, for a term of not less than five years nor more than 20 years, or both.

In light of LSA-R.S. 15:529.1 A(b)(i) and R.S. 14:78.1 D, the sentencing range for a third felony offender with an underlying aggravated incest conviction would be 18.3 years (two-thirds of 20 years, the longest possible sentence for the conviction) to 40 years (20 times 2, twice the longest possible sentence prescribed for a first conviction). In this case, the 10 year enhanced sentence on Count 2 imposed by the trial judge is below the mandatory minimum of 13.3 years. Therefore, we find that sentence is illegally lenient.

However, as discussed above in Assignment of Error Number One, we vacate defendant’s sentence and remand this matter to the trial court for resentencing. Therefore, no action is required by this Court to correct this error. The trial court should take note of this error when resentencing on remand.

| ^Accordingly, we vacate defendant’s sentence and remand this matter to the trial court for resentencing.

SENTENCE PARTIALLY VACATED; MATTER REMANDED WITH INSTRUCTIONS.

      . Judge Charles Cusimano originally sentenced defendant to imprisonment at hard labor for 20 years on the forcible rape conviction and 10 years on the aggravated incest conviction to run concurrently. Morgan, 06-529 at 3, 948 So.2d at 202. After Judge Cusimano found defendant to be a third felony offender, he vacated the original sentences on both counts and resentenced him to imprisonment at hard labor for 40 years on both counts to run concurrently. Id.

        . The bill of information indicates that the aggravated incest offenses were committed on or between January 1, 1999 through January of 2002. Therefore, the 2002 code was utilized to determine the penalty for those offenses.


text:
    Eddie JOSEPH v. The PARISH OF ST. JOHN THE BAPTIST, Counsel of St. John the Baptist Parish, Lester Millet, President, Williams Bill Terry, Councilman, Hasten Lewis, Councilman, Richard Dale Wolf, Councilman, Peter Ned Duke, Councilman, Clinton Perrilloux, Councilman, Ranny Wilson, Councilman, Harold Haydel, Councilman, Joel McTopy, Councilman, Steve Lee, Councilman.
    No. 08-CA-824.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 26, 2009.

      Lloyd N. Frischhertz, Jr., Dominick F. Impastato, III, Attorneys at Law, New Orleans, LA, for Plaintiff/Appellant.
    Cory R. Cahn, Marcus Brown, Attorneys at Law, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS, and WALTER J. ROTHSCHILD.
   CLARENCE E. McMANUS, Judge.

i statement of the case

On November 19, 1990, Plaintiff, Eddie Joseph (“Joseph”), was injured when the garbage truck on which he was riding as a “hopper” struck a utility pole, crushing him between the truck and the utility pole. The garbage truck was owned and operated by Fred Trosclair Garbage, Inc. The utility pole was owned and maintained by Entergy Louisiana, LLC and was located on Beech Street, a narrow, dead end street in St. John the Baptist Parish.

Joseph was on the rear platform of the garbage truck when the driver, Clifton Narcisse, backed the truck down Beech Street and into the utility pole. Because Beech St. is a dead end street and is narrow there is no space available to turn the garbage truck around. Therefore, the garbage truck must be backed down the street in order to pick up the garbage for the residents along the street. The utility pole on Beech St. is located eleven inches from the roadway.

Joseph originally filed suit on November 12, 1991 against St. John the Baptist Parish and each of the parish eouncilmen. Joseph later named Entergy as a defendant and alleged the utility pole was owned and in the custody of Entergy. 13Joseph alleged the utility pole was improperly placed and was the sole cause of the accident, therefore, Entergy was liable to him for damages pursuant to La. C.C. art. 2315 and art. 2317. Plaintiff alleged liability pursuant to these statutes, as they read prior to the enactment of the 1997 strict liability laws. Joseph contended the utility pole was improperly placed and its placement constituted an unreasonable risk upon users of the roadway making Entergy liable for the injuries to him.

Joseph’s claims against Entergy were heard by bench trial on March 29, 2006 before the Fortieth Judicial District Court. The matter was taken under advisement and the trial court issued a written judgment with reasons on February 2, 2007. The trial court found in favor of Entergy and dismissed all claims of Joseph.

In its reasons for judgment, the trial court applied La. R.S. 48:381.3 which provides the roads and streets, not a part of the highway system, should comply with the National Electrical Safety Code (“NESC”) regarding structure placement. The trial court further found that the guidelines of the American Association of State Highway and Transportation Officials (ASSHTO) are not applicable to this case because Beech St. is a parish road and not a state highway.

The trial court found the placement of the pole complies with the guidelines of the NESC since it was located 11 inches from the roadway and has been in that position since 1965 with no other reported accidents. Therefore, the trial court found the placement of the pole did not create an unreasonable risk of harm to the Joseph. Thus, his claim for liability under strict liability or negligence failed.

Joseph now appeals the trial court’s judgment arguing three assignments of error. First, Joseph argues, the trial court erred in applying La. R.S. 48:381.3 when considering whether the location of the utility pole presented an unreasonable risk |4of harm. Joseph argues since this statute does not apply, the trial court improperly applied the NESC to determine the duty of care owed by Entergy.

Second, Joseph argues the trial court erred in refusing to apply the AASHTO standards when considering whether the location of the utility pole presented an unreasonable risk of harm. Joseph contends that the AASHTO standards are applicable to this street, and according to these regulations, the pole was at least 18 inches too close to the roadway. Joseph argues under these standards, the pole presents an unreasonable risk of harm.

And third, plaintiff argues the trial court erred in disregarding evidence indicating that the location of the utility pole presented an unreasonable risk of harm.

In addition, plaintiff argues the trial court failed to consider some evidence presented, such as markings on the pole indicating it had been hit befoi’e and after the accident, markings on the fence, and movement of the fence across from the pole. Joseph argues this evidence indicates the accident was due to the narrow area at this section of the street. Also, the pole was located in the narrowest section of the street where the street curved, even though there were other locations that would have served Entergy’s utility needs.

In opposition, Entergy argues the AASHTO guidelines are not applicable to this case because they only apply to the Louisiana Department of Transportation and Development (“DOTD”) and state highway system. The utility pole in question was owned and maintained by Enter-gy, not the DOTD. Entergy also argues the accident was caused by the plaintiffs own negligence and the negligence of the driver of the garbage truck. Finally, En-tergy argues the trial court found that the NESC standards do apply in this case and, according to these standards, the pole was properly located in the public right of way with no previous problems.

For the reasons which follow, we affirm the trial court’s judgment in favor of En-tergy, dismissing all claims of Joseph.

DISCUSSION

In this suit against Entergy, Joseph claims the sole cause of the accident was Entergy’s improper placement of the utility pole on Beech St. Joseph further claims that since the accident occurred prior to 1997, the 1997 revisions to the statutes regarding strict liability and negligence do not apply. We find the trial court correctly applied these statutes as written prior to the 1997 revisions. Therefore, in order for him to recover damages and prove the strict liability and negligence of Entergy, he must show the thing in question was in the custody of Entergy, the thing had a defect creating an unreasonable risk of harm, and the defective condition caused his injuries.

First, we find the utility pole was in the custody of Entergy. The record clearly shows that Entergy owned and maintained the utility pole. Therefore, we must further determine whether the pole created an unreasonable risk of harm. Joseph argues the pole creates an unreasonable risk of harm because its location failed to comply with the AASHTO guidelines. He presented the expert testimony of Robert Canfield, an expert in the field of traffic and safety engineering and roadway design. Canfield testified that the placement of the pole did not comply with AASHTO. As noted by the trial court, Canfield testified that the pole was in a bad location because it was less than twelve inches from the edge of the road, there was no curb to stop the vehicle, and the pole was near the curve in the road which practically led vehicles into the pole.

1 [¡Entergy argues the AASHTO guidelines are not applicable, and instead the NESC applies. Entergy argues the pole location complied with the NESC. Entergy argued the NESC applies based on La. R.S. 48:381.3, since the street was not part of the Louisiana DOTD.

Entergy also provided the testimony of an expert in the field of electrical utilities industiy standards and practices, Frederick Brooks. Brooks testified that the AASHTO guidelines are only to be used by the state and other highway departments. He further testified that the NESC applies and provides that supporting structures should be placed a sufficient distance from the roadway to avoid contact by vehicles where there are no curbs.

The utility pole in this case was owned and maintained by Entergy, a private utility company. This pole was not maintained by the DOTD or any other state highway department. La. R.S. 48:35 provides that DOTD shall adopt minimum safety standards and these standards shall correlate with the standards set forth by the ASSHTO. La. R.S. 48:35 and the AASHTO apply only to the DOTD and state highway departments and their duties to adopt minimum safety standards with respect to highway design, construction and maintenance. Williams v. City of Monroe, et al., 20,065 (La.App. 2 Cir. 7/3/95) 658 So.2d 820. Therefore, we agree with the trial court and find that the AASHTO guidelines do not apply to this utility pole.

We also find La. R.S. 48:381.3 is applicable to this case and provides that the NESC does apply. La. R.S. 48:381.3 provides, in part:

A. The duty of care owed to the motoring public by the owners and/or operators of public utility facilities, located adjacent to a highway, road, street, or bridge in this state shall be satisfied when:
(2) With respect to roads, streets, and bridges not part of the state highway system, the public utility facilities located in public right-of-way comply with the provisions of the applicable edition of the National Electrical Safety [ 7Code for structure placement relative to roadways, and to the extent they exist, with applicable ordinances of the parish or municipality that specify the location for public utility facilities in public right-of-way.

The NESC guidelines provide that supporting structures should be placed a sufficient distance from the roadway to avoid contact by vehicles where there are no curbs. Specifically, the NESC guidelines state:

Where there are curbs; supporting structures ... shall be located a sufficient distance from the street side of the curbs to avoid contact by ordinary vehicles using and located on the traveled way. In no case shall such distance be less than six (6) inches.
Where there are no curbs, supporting structures should be located a sufficient distance from the roadway to avoid contact by ordinary vehicles using and located on the traveled way.

The utility pole in this case was placed eleven inches away from the roadway. Therefore, we agree with the trial court and find that this utility pole was located a sufficient distance from the roadway, in accordance with the NESC. Therefore, we do not find this utility pole created an unreasonable risk of harm and Joseph’s claims against Entergy must fail.

Accordingly, we affirm the judgment of the trial court in favor of Entergy, dismissing all claims by Joseph.

AFFIRMED.