text:
    CAPITAL ONE, N.A., formerly known as Hibernia National Bank v. Michael A. NICOLL.
    No. 12-CA-644.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 27, 2013.

      Mark C. Landry, Attorney at Law, Me-tairie, LA, for Plaintiff/Appellee.
    George D. Fagan, Marc E. Devenport, Attorneys at Law, New Orleans, LA, for DefendanVAppellant.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, JUDE G. GRAVOIS, and STEPHEN J. WINDHORST.
   JUDE G. GRAVOIS, Judge.

l2Pefendant, Michael Nicoll, appeals the trial court’s grant of summary judgment in plaintiffs favor in this deficiency judgment proceeding instituted after a foreclosure sale. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

The facts of this case are not in dispute. Plaintiff, Capital One, N.A., formerly known as Hibernia National Bank (“Capital One”), was the holder of a promissory note executed by defendant on January 29, 2004 in the principal amount of $285,044.26, secured by a multiple indebtedness mortgage on immovable property (Lot 109 of Gabriel Subdivision in Kenner, Louisiana). Defendant defaulted on the loan. On March 30, 2010, plaintiff filed a Petition for Executory Process against defendant, alleging that the amount due on the note included the principal sum of $244,595.69, plus accrued interest, late charges, and attorney’s fees. Defendant was served with a notice of ^seizure and a notice to appoint an appraiser. When defendant did not appoint an appraiser, the sheriff appointed appraisers for both plaintiff and defendant. The appraisals came in at $115,000 and $120,000, respectively. Pursuant to La. R.S. 13:4365(B), since the appraisals were less than 10 per cent apart, the appraised value was deemed to be $117,500, the average of the two appraisals. On September 8, 2010, the property was sold at public auction to plaintiff for $78,334. This amount represented two-thirds of the appraised value, thereby allowing plaintiff to proceed for a deficiency judgment against defendant pursuant to La. R.S. 13:4106. On May 5, 2011, plaintiff sold the property to a third party for $135,000.

On July 22, 2011, plaintiff filed a Supplemental Petition for Deficiency, seeking a deficiency judgment against defendant for the full amount due under the note, subject to a credit for the sum realized at the sheriffs sale ($78,334). Defendant filed an answer to the supplemental petition, claiming that since plaintiff purchased the property at the sheriffs sale and then later resold the property for an amount greater than it had paid at the sheriffs sale, he was entitled to a credit for the full amount paid to plaintiff when it later resold the property ($135,000).

On February 24, 2012, plaintiff filed a motion for summary judgment, arguing that defendant was not entitled to a credit for the resale value of the property by plaintiff, and that plaintiff was entitled to judgment as a matter of law. Defendant filed an opposition to plaintiffs motion for summary judgment, arguing that plaintiff is not entitled to double recovery, citing Louisiana Civil Code articles pertaining to damages available to an obligee for an obligor’s failure to perform an obligation. Defendant argued that damages for failure to perform on a contract are | ¿measured by the amount of the loss sustained by the obligee and the profit of which he has been deprived. Defendant contended that plaintiff is accordingly only entitled to the amount of damages that will put plaintiff in the same position as it would have been in had defendant performed his obligation, and that plaintiff is not entitled to be put in a better position.

These arguments were repeated at the hearing on the motion. At the conclusion of the hearing, the trial court granted plaintiffs motion for summary judgment. This timely appeal followed.

ASSIGNMENTS OF ERROR

On appeal, defendant has assigned the following errors, to-wit:

1. The trial court erred as a matter of law by rendering judgment in favor of Capital One based on the $78,3kk paid through the sheriff’s sale rather than the $135,000 paid to Capital One following the May 2011 sale of the Gabriel lot, resulting in a $56,000 windfall to the bank that is not based on the loan documents or allowed by Louisiana law.
2. The trial court error [sic] by relying on two Louisiana appeals court decisions that are based on the common law and by failing to apply Louisiana Civil Code articles 199k, 1995 and 2002, and other Louisiana civil law principals [sic] and provisions.

Since defendant’s assignments of error are interrelated, we will consider them together.

In his assignments, defendant argues that the loan documents in question are devoid of any provision that allows plaintiff to recover any damages in excess of the outstanding principal, plus interest, attorney’s fees, and costs. Defendant reasons that contract-based claims are defined by and limited to the provisions of the contract. Defendant argues that La. C.C. arts. 1994 and 1995 provide the framework for damages for breach of contract: the recoverable damages are those | .^caused by the failure to perform a conventional obligation as measured by the loss sustained by the obligee and the profit of which he has been deprived. Defendant recognizes that La. C.C. art. 2005 provides that the parties may create a secondary obligation for the damages to be recovered in the event of nonperformance. Defendant contends that the trial court’s ruling is contrary to these codal articles in that it allows plaintiff to make a double recovery to the extent of the gain realized by the bank from the resale of the property.

Plaintiff responds that the codal articles relied on by defendant are not applicable because defendant’s obligation is based on a promissory note, which is governed by La. R.S. 10:3-101 et seq. Plaintiff argues that upon presentation of the note, plaintiff is entitled to recover the face amount of the note unless defendant has supplied proof that a lesser amount is due. Plaintiff notes that in its original petition, it admitted that defendant had made payments and provided the current amount due. In its supplemental petition, plaintiff admitted that defendant was due a credit for the amount it paid for the property at the sheriffs sale. Plaintiff contends that the laws regulating negotiable instruments and deficiency judgments do not contain any provisions whereby the debtor is entitled to a credit for the price the creditor obtains upon a later resale of the property. Plaintiff argues that defendant’s credit is limited to the amount received at the sheriffs sale.

Defendant’s obligation on the promissory note forming the basis of this action is governed by La. R.S. 10:3-101 et seq. Plaintiffs rebanee on the civil code articles governing conventional obligations is misplaced. It is well settled that where two statutory provisions are seemingly in conflict, the statute that is more specific must prevail as an exception to the general statute. Medine v. Roniger, 03-3436 (La.7/2/04), 879 So.2d 706, 714. It is likewise established in Louisiana that a creditor seeking to obtain a deficiency judgment has the burden of ^establishing compliance with two criteria: (1) insufficiency of the sale proceeds to satisfy the underlying debt; and (2) sale of the seized property after appraisal in accordance with the codal and statutory requirements for executory proceedings. Williams v. Perkins-Siegen P’ship, 93-2131 (La.1/27/95), 649 So.2d 367, 369.

In this case, defendant never presented any defenses on the note. The property was seized and sold in conformity with plaintiffs rights granted in the mortgage due to defendant’s default and in accordance with the codal and statutory requirements for executory proceedings. Although defendant waived his right of appraisal in the mortgage, plaintiff had an appraisal performed and paid two-thirds of the appraised value for the property at the sheriffs sale as required by La. R.S. 13:4106, thereby protecting plaintiffs right to obtain a deficiency judgment against defendant.

Courts have recognized that the purpose of the Deficiency Judgment Act is to protect a debtor from an overreaching creditor. Thomas v. Livingston Parish Sheriffs Office, 04-1822 (La.App. 1 Cir. 9/23/05), 923 So.2d 662, 666, writ denied, 05-2264 (La.3/31/06), 925 So.2d 1254. This act was anticipated to prevent the inequity intrinsic in a creditor foreclosing on a debtor’s property without appraisal, and then buying the property for a low price, and then obtaining a deficiency judgment against the debtor for a greater amount than if the property had been sold pursuant to a valid appraisal. Id.

Defendant’s obligation under the note was to repay the debt as provided in the note. Once defendant defaulted on the note, plaintiff had a right to enforce its rights under the mortgage. Defendant makes no arguments relative to the note, the seizure, or the sale; rather, defendant’s sole argument is that he is entitled to an extra credit in the amount of $56,666 against the debt he owes to plaintiff, representing the gain realized by plaintiff from the sale of the property to a third |7party after the sheriffs sale. The law simply does not provide such a remedy for defendant. This perceived flaw in the Louisiana Deficiency Judgment Act, La. R.S. 13:4106, has been recognized and discussed by commentators on the subject:

... [T]he Deficiency Judgment Act does not consider whether the winning bid reflected the true value of the property or the “fairness” of the result.... [UJnder Example C [where the foreclosing creditor was the successful bidder for $200,000 at the foreclosure sale and became the owner of the property, the creditor would oum the property (which had been appraised at $300,000) and still be able to pursue the debtor for a $100,000 deficiency (the difference between the $300,000 debt and the $200,000 minimum bid), and thus the creditor would in fact be able to collect $4.00,000 (the creditor could have the $100,000 deficiency plus property worth $300,000 that it had bought for $200,000) ], the creditor receives a windfall by owning (after the judicial sale) property worth $300,000 and still maintains the right to sue the debtor for an additional $100,000. By following the Deficiency Judgment Act strictly and by being the only bidder at the sheriffs sale, the creditor in Example C has used the law to collect more than the debtor owed. This result is allowed by Louisiana law.

Michael H. Rubin & Jamie D. Seymour, Deficiency Judgments: A Louisiana Overview, 69 La.L.Rev. 783, 810 (2009).

The function of statutory interpretation and the construction of laws rests ■with the judicial branch of government. Unwired Telecom Corp. v. Parish of Cal-casieu, 03-0732 (La.1/19/05), 903 So.2d 392, 404. Despite this seeming imperfection in the law, courts have applied the law as written. When a foreclosure is completed against mortgaged property, the amount of the credit applied to the debt secured by the mortgage is limited to the proceeds of the judicial sale. Louisiana Nat. Bank v. Victor, 425 So.2d 999, 1000 (La.App. 5th Cir.1983); First Nat. Bank of Lafayette v. Doni Homes, 338 So.2d 1202, 1204, (La.App. 3d Cir.1976). Whether or not the purchaser at the sheriffs sale, even though the purchaser may be the mortgagee, later sells the property for more or less than the amount realized, does not affect the credit to be applied to the debt. | RId. Rather, the debt is reduced only to the extent of the amount obtained at the sheriffs sale. Id.

In his second assignment of error, defendant also argues that the cases relied on by the trial court are incorrect in they are contrary to the plain language of these codal articles. Our review of the record indicates that the trial judge did not cite to any particular cases in reaching his decision; therefore, we find no merit to this argument.

Upon our de novo review, for the foregoing reasons, we find that defendant’s assignments of error are without merit. Accordingly, the trial court properly granted plaintiffs motion for summary judgment, as plaintiff is entitled to judgment as a matter of law. La. C.C.P. art. 966.

CONCLUSION

For the foregoing reasons, the judgment of the trial court under review is affirmed.

AFFIRMED

      . Prior to defendant’s filing of its answer, plaintiff obtained a default judgment against defendant on its deficiency judgment claim on September 1, 2011. However, on January 31, 2012, the trial court subsequently granted a new trial to defendant on said judgment and vacated and set aside the default judgment.

      . La. C.C. art. 1995 states: "Damages are measured by the loss sustained by the obligee and the profit of which he has been deprived.”

      . La. C.C. art. 1994 states: "An obligor is liable for the damages caused by his failure to perform a conventional obligation.”

      . La. C.C.P. art. 966 provides, in pertinent part: "The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law."


source: Caselaw Access Project

author: EZELL, Judge.

license: Public Domain

text:
    In re Bobby HICKMAN.
    No. CA 12-1360.
    Court of Appeal of Louisiana, Third Circuit.
    April 3, 2013.
    Rehearing Denied May 15, 2013.
    Brian D. Cespiva, Alexandria, LA, for Appellee, Leesville Municipal Fire and Police Civil Service Board.

      Mark Felipe Vilar, Aaron L. Green, Vi-lar & Elliott, Alexandria, LA, for Appellant, Bobby Hickman.
    Cloyd Benjamin, Natchitoches, LA, for Appellee, City of Leesville, o/b/o Mayor Robert Rose.
    Court composed of JOHN D. SAUNDERS, BILLY HOWARD EZELL, and SHANNON J. GREMILLION, Judges.
   EZELL, Judge.

hBobby Hickman appeals a trial court judgment affirming the City of Leesville’s and the Leesville Municipal Fire and Police Civil Service Board’s decisions regarding his termination by the City of Leesville as Police Chief. For the following reasons, we reverse the judgment of the trial court.

FACTS

On November 5, 2010, notice was sent to Mr. Hickman by the City of Leesville that it was conducting an investigation “to determine if you have violated any provisions of Municipal Fire and Police Civil Service Law, or any policies and procedures of the Leesville Police Department or the City of Leesville.” The notice stated that on or about November 4, 2010, Mr. Hickman was “alleged to have committed acts contrary to the Laws of the State of Louisiana, and or the United States of America.”

On December 10, 2010, the City sent a letter to the Leesville Municipal Fire and Police Civil Service Board (the Board) requesting an extension of time to complete the investigation. The letter indicated that Mr. Hickman had not been served personally until November 24, 2010, due to illness. This extension was never granted.

On January 6, 2011, a letter was sent to Mr. Hickman informing him that the state police would not be assisting in the investigation as originally anticipated, and that the City had hired Mark Sheridan to assist in the investigation. Enclosed was an agreement for Mr. Hickman to sign which would extend the investigation for thirty days. This was never signed by Mr. Hickman or the City. On January 13, 2011, Mr. Sheridan sent a letter to Mr. Hickman informing him that he would like to interview him on either January 24 or January 25. On January 17, 2011, Mr. Sheridan drove to |2Mr. Hickman’s residence and personally delivered the letter. Mr. Sheridan sent a third letter to Mr. Hickman on January 25, 2011, indicating that Mr. Hickman had not made any attempt to contact him. The letter also notified Mr. Hickman that an interview had been scheduled for Thursday, January 27, 2011 at 1500 hours. At a January 25, 2011 Board meeting, the Board declined to extend the request for extension to investigate by the City.

On January 26, 2011, Mr. Hickman’s attorney sent a letter to the City informing it that the notice of the investigation was vague as to the nature of the investigation and the factual circumstances surrounding the investigation. His attorney also stated that more than sixty days had elapsed since the internal investigation was commenced, and it had never been extended by the Board. Therefore, by law, the investigation had expired.

On January 28, 2011, the City sent a letter of termination to Mr. Hickman informing him that he was being removed from the position of Chief of the City of Leesville Police Department. The City stated that he was being terminated pursuant to La.R.S. 33:2562 for refusing to cooperate or participate in any interview. Mr. Hickman claims that he first learned of his termination in the newspaper. He states that he did not receive notice by mail of the termination until February 9, 2011.

After learning of his termination in the newspaper, on February 2, 2011, Mr. Hickman filed an appeal with the Board. He complained that he never received a pre-disciplinary hearing, the investigation exceeded the amount of time permitted by law, and he was never properly notified of the nature of the City’s internal investigation.

Another Board meeting was held on February 9, 2011. Mr. Hickman was notified that the Board would consider whether to grant the City’s second request to |aextend the time to investigate Mr. Hickman at this meeting. Mr. Hickman’s appeal was also heard at this time, and the Board dismissed his appeal.

Mr. Hickman then appealed the Board’s decision to the district court. The district court heard the matter on May 16, 2012. The district court issued written reasons on July 10, 2012, affirming the action of the Board and stating: “During the 60 day interval Mr. Hickman was the subject to [sic] a criminal investigation and was therefore unable to cooperate with the investigation by the Civil Service Board.” A judgment affirming the decision of the Board was signed on September 12, 2012. Mr. Hickman then filed the present appeal.

MOTION TO STRIKE THE CITY’S BRIEF AND MOTION TO SUPPLEMENT THE RECORD

Mr. Hickman filed a motion to strike the City’s brief for its failure to comply with Uniform Rules-Courts of Appeal, Rule 2-12.5, arguing that the brief does not offer suitable references to the record in support of several assertions made by the City because there is no support for the assertions in the record. In response, the City filed a motion to supplement the record with the transcript of the proceedings from the Board’s meeting on November 9, 2011, along with the City’s book of exhibits that were tendered to the Board at that hearing. The City claims that these documents were inadvertently omitted from the record.

An appellate court must render any judgment which is just, legal, and proper upon the record on appeal. La.Code Civ.P. art. 2164. “The record on appeal is that which is sent by the trial court to the appellate court and includes the pleadings, court minutes, transcripts, jury instructions (if applicable), judgments, and other rulings, unless otherwise designated.” Niemann v. Crosby Dev. Co., L.L.C., 11-1337, p. 7 (La.App. 1 Cir. 5/3/12), 92 So.3d 1039, 1044; La.Code Civ.P. arts. 2127 and 2128.

| .(Louisiana Revised Statutes 33:2561(E) gives an employee the right to appeal a prejudicial decision of the board. After receiving notice of the appeal, the board “shall ... make, certify, and file the complete transcript with the designated court.” Id.

Notice of Mr. Hickman’s decision to appeal the Board’s November 9, 2011 decision to the district court was sent to the Board on November 17, 2011. A request was made by Mr. Hickman that:

a certified transcript of the record, or written findings of facts, and all papers and exhibits on file in the office of the Board affecting or related to Mr. Hickman’s appeal, including all exhibits offered at the hearing and documents/minutes reflecting or memorializing the Board’s ruling, be filed with the 30th Judicial Court in accordance with law.

At the district court hearing on May 16, 2012, counsel for Mr. Hickman stated at the onset: “I believe that the Civil Service Board lodged its record including the transcript and the exhibits offered by the parties. It’s already in the record of this proceeding, but I’d like to offer, file and introduce that into evidence at this point.”

Therefore, we grant the City’s motion to supplement the record with the transcript of the Leesville Civil Service Board meeting from November 9, 2011, and its exhibit book.

Mr. Hickman has stated that there are references in the City’s brief to facts that occurred after the hearing. An appellate court cannot consider on appeal facts referred to in appellate briefs if those facts are not part of the record on appeal. Succession of Badeaux, 08-1085 (La.App. 1 Cir. 3/27/09), 12 So.3d 348, writ denied, 09-822 (La.5/29/09), 9 So.3d 166. Therefore, Mr. Hickman’s motion to strike the City’s brief will be granted as to any provisions that are not contained in the appellate record.

| ¿DISCUSSION

Mr. Hickman appeals his termination as police chief of the City of Leesville. He argues that he did not receive the procedural protections that he is entitled to as a civil service employee and under the Police Officer’s Bill of Rights.

Matters involving classified employees of municipal fire and police departments are governed by the Municipal Fire and Police Civil Service Law, LSA-R.S. 33:2471, et seq., and by LSA-Const.1921, Art. XIV, § 15.1.2 See LSA-R.S. 33:2591 and LSA-Const.1974, Art. X, § 18. Any regular employee in the classified service who feels that he has been discharged or subjected to any corrective or disciplinary action without just cause may demand a hearing and an investigation by the Board to determine the reasonableness of the action. LSA-R.S. 33:2501(A).

Landry v. Baton Rouge Police Dept., 08-2289, pp. 4-5 (La.App. 1 Cir. 5/8/09), 17 So.3d 991, 994. (Footnote omitted)

“The employee may appeal any decision of the Board that is prejudicial to him. LSA-R.S. 33:2501(E)(1).” Id. at 995. “The district and appellate courts should accord deference to a civil service board’s factual conclusions and must not overturn them unless they are manifestly erroneous.” Id.

Louisiana Revised Statutes 40:2531, the Police Officer’s Bill of Rights, specifies the minimum standards to be applied when investigating law enforcement officers. Marks v. New Orleans Police Dept., 06-575 (La.11/29/06), 943 So.2d 1028. The statute initially requires that a law enforcement officer be notified at the beginning of the investigation as to the nature of the investigation and the identity and authority of the person conducting the investigation. La.R.S. 40:2531(B)(1). The investigation must be completed within sixty days. La.R.S. 40:2531(B)(7). Extensions up to sixty days can be granted by the Municipal Fire and Police Civil Service Board after a hearing if good cause is shown. Id. The law enforcement officer may also enter into a written agreement extending the investigation for up to Ran additional sixty days. Id. “The investigation shall be considered complete upon notice to the police employee or law enforcement officer under investigation of a pre-disciplinary hearing or a determination of an unfounded or unsustained complaint.” Id.

In 2007, La.R.S. 40:2531 was amended to include Subsection C (emphasis added) as a penalty provision which provides:

There shall be no discipline, demotion, dismissal, or adverse action of any sort taken against a police employee or law enforcement officer unless the investigation is conducted in accordance with the minimum standards provided for in this Section. Any discipline, demotion, dismissal, or adverse action of any sort whatsoever taken against a police employee or law enforcement officer without complete compliance with the foregoing minimum standards is an absolute nullity.

Prior to 2007, La.R.S. 40:2531 contained no penalty provision for non-compliance. Marks, 943 So.2d 1028; Landry, 17 So.3d 991.

Mr. Hickman complains that the City failed to follow applicable law, including the Police Officer’s Bill of Rights, and that therefore, the disciplinary action taken against him is an absolute nullity. Specifically, Mr. Hickman alleges that the City began an investigation of Mr. Hickman for vague reasons. It was not until after the statutory time period for the investigation lapsed that the City tried to interview him. Following the expiration of the sixty-day investigation period, a private investigator scheduled an interview with him. Mr. Hickman was terminated for his lack of appearance at this interview without ever affording him a pre-diseiplinary hearing.

Mr. Hickman has not complained about any factual findings; therefore, the manifest error standard does not apply. We, therefore, will review the case to determine if the standards required under the law were properly adhered to, thereby affording Mr. Hickman a fair proceeding.

17According to the record, the City began its investigation of Mr. Hickman on November 5,2010. The City informed Mr. Hickman that:

This memorandum serves as your notice that the City of Leesville will commence an investigation into alleged misconduct that may result in disciplinary action. On about November 4, 2010, you were alleged to have committed acts contrary to Laws of the State of Louisiana, and or the United States of America. This investigation is to determine if you have violated any provisions of Municipal Fire and Police Civil Service Law, or any policies and procedures of the Leesville Police Department or the City of Lees-ville.

The investigation had to be completed by January 4, 2011, since no extensions had been granted. The City notified Mr. Hickman that it had hired Mark Sheridan to investigate the manner in a letter dated January 6, 2011. This was after the mandatory sixty-day time period had elapsed. During this sixty-day time period, there is no evidence that Mr. Hickman received notice of a pre-disciplinary hearing or a determination of an unfounded or unsustained complaint as required by La. R.S. 40:2531(B)(7). Therefore, we find that the City was not in compliance with La.R.S. 40:2531.

However, the City argues that its termination of Mr. Hickman was in good faith and for cause because he failed to participate in the process as mandated by La.R.S. 33:2562. The City terminated Mr. Hickman on January 28, 2011, pursuant to La.R.S. 33:2562 for failure to participate in the investigation. The City stated that Mr. Hickman refused to participate in any interview by Mr. Sheridan. However, as stated before, by the time Mr. Sheridan was involved in the case, the sixty-day time period for the investigation had expired. Regardless, we find that the City’s reliance on La.R.S. 33:2562 as justification for its termination of Mr. Hickman is misplaced.

Louisiana Revised Statutes 33:2562 refers to a civil service board’s power to administer oaths, subpoena witnesses, and compel the production of books and papers | ¡¡pursuant to any investigation or hearing. The penalty provision of La.R.S. 33:2562 provides that an employee’s refusal to appear for a hearing or inquiry or refusal to testify or answer relevant questions shall forfeit his position and not be eligible for appointment to another position in the classified service for six years.

Louisiana Revised Statutes 33:2426 is a similar provision that applies to civil service systems for cities with a population over 100,000. In Allen v. Department of Police, 09-1375, 09-1379 (La.App. 4 Cir. 7/30/10), 44 So.3d 912, the fourth circuit held that La.R.S. 33:2426, as a matter of law, was inapplicable to the New Orleans Police Department’s internal investigations. The court held that the termination of an officer for refusing to render an administrative statement after being ordered to do so by the police department was illegal.

We find that the City erred in relying on La.R.S. 33:2426 as a basis for the termination of Mr. Hickman. It appears that the City probably did so realizing that the time period for the initial investigation had expired and the Board refused to extend it. Therefore, we find that the actions taken against Mr. Hickman were an absolute nullity pursuant to La.R.S. 40:2531(C).

Mr. Hickman also cited as error the trial court’s failure to take judicial notice of judicial proceedings in the same court. With our ruling, we find it unnecessary to address this issue.

We observe that as part of his prayer for relief, Mr. Hickman has requested attorney fees. “Louisiana courts have long held that attorney’s fees are not allowed except where authorized by statute or contract.” Sher v. Lafayette Ins. Co., 07-2441, 07-2443, p. 18 (La.4/8/08), 988 So.2d 186, 201. We can find no law, and Mr. Hickman has cited none to us, that provides for an award of attorney fees in this case:

| (Accordingly, we reverse Mr. Hickman’s termination and render judgment reinstating his employment retroactive to the date of his original termination and awarding him full pay and benefits from the date of his reinstatement, together with legal interest thereon until paid. The costs of these proceedings in the amount of $2,589.86 are to be paid by the City of Leesville.

REVERSED AND RENDERED.


author: AMY, Judge.

text:
    Carrol Falgout ARMAND v. Donald ARMAND.
    No. 12-1394.
    Court of Appeal of Louisiana, Third Circuit.
    April 3, 2013.

      Charles A. Riddle, III, Marksville, LA, for Plaintiff/Appellant, Carrol Falgout Armand.
    Keith W. Manuel, Marksville, LA, for Defendant/Appellee, Donald Armand.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and J. DAVID PAINTER, Judges.
   AMY, Judge.

|,In proceedings to partition the parties’ community property, the appellant sought sums she alleged were due for reimbursement. However, the appellee asserted that such a remedy was barred by his bankruptcy proceedings. In pre-trial proceedings, the trial court initially concluded that the bankruptcy proceedings were not effective against the appellant insofar as she did not receive adequate notice. After a trial on the merits, however, the trial court found that the wife had a claim to community assets, but that the community was bankrupt and valueless. It therefore awarded neither party assets. For the following reasons, we vacate the judgment of the trial court and remand for further proceedings.

Factual and Procedural Background

Carrol Falgout Armand and Donald Armand were married in 1997. The parties filed for divorce in 2002, with the trial court entering the order of divorce in 2003. However, the parties were unable to agree on the distribution of their property.

In 2010, Ms. Armand filed her detailed descriptive list, ultimately seeking a reimbursement of $98,834.54 from Mr. Armand. In- response, Mr. Armand filed exceptions of no cause of action and no right of action, asserting that he had filed bankruptcy and that he had listed Ms. Armand as a creditor. He also asserted that the automatic stay associated with the bankruptcy had not been released. The trial court ultimately denied Mr. Armand’s exceptions, finding in reasons for ruling that Mr. Armand did not demonstrate that Ms. Armand had notice of the bankruptcy proceedings and, therefore, “any obligation owed to Wife by Husband due to a community property settlement is not discharged in bankruptcy and is not affected by his bankruptcy proceeding.”

1 ¡/Thereafter, Mr. Armand filed his own detailed descriptive list disputing Ms. Armand’s reimbursement claim and asserting that, because of his payments made in bankruptcy toward the one-time community debt, he was owed $64,500.00 from her. Both parties disputed the valuations submitted.

Following an April 2012 traversal hearing, the trial court denied Ms. Armand’s reimbursement claim, finding that:

For purposes of brevity, the detailed descriptive lists will not be reiterated herein. A complete review of the record, transcripts and exhibits of the last approximately] 10 years of litigation establishes the following: Ms. Armand left the marriage with approximately] $56,000 in assets, free & clear. Mr. Armand completed a bankruptcy, and via that bankruptcy paid approximately $65,000 to creditors, and was discharged. Ms. Armand benefitted from that discharge. Mr. Armand thereafter re-affirmed the home debt, but at 67 years of age, he is burdened with approximately] $80,000 debt, via several mortgages, including the house note and a significant portion of credit card debt. Although Ms. Armand has a legal claim to some portion of the liquid community, there isn’t anything to satisfy any said claim, i.e., Ms. Armand has a legal claim to a previous community that went bankrupt, and is worth $0.
Thus, neither party is awarded any assets via the former community of ac-quets and gains. Each party to bear his/her own court costs.

Ms. Armand appeals, assigning the following as error:

1. The Trial Court erred in holding that the community was now valued at zero due to the bankruptcy, thus eliminating any legal claim held by the former spouse, creditor.
2. The Trial Court erred in failing to hold the possessor spouse with an obligation to care for the assets based upon his fiduciary duty as a possessor of assets of the former community.
3. The Trial Court erred in failing to grant to the claimant, former spouse, an amount of her legal claim against the former community estate.

|sIn his appellee’s brief, Mr. Armand asserts that the trial court erred in denying his exceptions of no right of action and no cause of action given its determination that he received a discharge in bankruptcy.

Discussion

Louisiana Revised Statutes 9:2801

This matter was presented to the trial court for a hearing on the parties’ traverses pursuant to La.R.S. 9:2801, which provides in pertinent part:

[A(2) ] ... At the trial of the traverses, the court shall determine the community assets and liabilities; the valuation of assets shall be determined at the trial on the merits. The court, in its discretion, may by ordinary procedure try and determine at one hearing all issues, including those raised in the traverses.

La.R.S. 9:2801(A)(4) further provides that, in partitioning the community, the trial court shall do so as follows:

(a) The court shall value the assets as of the time of trial on the merits, determine the liabilities, and adjudicate the claims of the parties.
(b) The court shall divide the community assets and liabilities so that each spouse receives property of an equal net value.
(c) The court shall allocate or assign to the respective spouses all of the community assets and liabilities. In allocating assets and liabilities, the court may divide a particular asset or liability equally or unequally or may allocate it in its entirety to one of the spouses. The court shall consider the nature and source of the asset or liability, the economic condition of each spouse, and any other circumstances that the court deems relevant. As between the spouses, the allocation of a liability to a spouse obligates that spouse to extinguish that liability. The allocation in no way affects the rights of creditors.
(d)In the event that the allocation of assets and liabilities results in an unequal net distribution, the court shall order the payment of an equalizing sum of money, either cash or deferred, secured or unsecured, upon such terms and conditions as the court shall direct. The court may order the execution of notes, mortgages, or other documents as it deems necessary, or may impose a mortgage or lien on either community or separate property, movable or immovable, as security.

14 On appeal, a trial court’s factual findings as to valuation and distribution of assets under La.R.S. 9:2801 are subject to an abuse of discretion standard of review. See Blanchard v. Blanchard, 97-2305 (La.1/20/99), 731 So.2d 175. See also Williams v. Williams, 07-541 (La.App. 3 Cir. 10/31/07), 968 So.2d 1234.

Bankruptcy — Record on Appeal

Ms. Armand first questions the trial court’s reliance on Mr. Armand’s 2005 bankruptcy in concluding that the former community had no value. As she did at the trial court level, Ms. Armand contends that she did not have notice of the pending bankruptcy petition and, therefore, she could not be released as a creditor. In her brief, she makes pointed and specific references to various assets purportedly listed in the bankruptcy petition, seemingly challenging both their classification as community assets and the valuation thereof.

Despite Ms. Armand’s assignment of error and the parties’ respective extensive arguments regarding the bankruptcy at the hearing, the record lacks evidence of the bankruptcy. In fact, the record on appeal lacks any exhibits entered into evidence below. Reference to the transcript reveals that the parties suggested that various exhibits and transcripts from the parties’ multi-year litigation would be filed into the record. For example, after the parties and the trial court discussed the need for filing post-hearing memoranda, the following colloquy occurred:

BY THE COURT:
Now, it’s no use we rush on this cause I got to have the old record pulled, because I know that we had some hearings on property.
BY MR. RIDDLE [Counsel for Ms. Armand]:
Right. And Your Honor, the hearings evidence may not actually be in the suit record.
| bBY THE COURT:
Right, right.
BY MR. RIDDLE:
And let’s both agree now that if the bankruptcy is not in the evidence and not in the file that we’ll provide you with another copy. But I think it’s in the evidence record.
BY THE COURT:
I think it is and then I think some matters went up on writs or appeals. So, there might be some transcripts too I’m hoping. Did anybody ever appeal? BY MR. RIDDLE:
■No. No, we didn’t. We didn’t because we ...
BY MR. MANUEL:
Reserved our right to ...
BY MR. RIDDLE:
Yeah. He reserved his right to bring up the issue of notice, but I think that that’s been admitted to. There was no notice.
BY THE COURT:
Okay.
BY MR. RIDDLE:
He just said he didn’t even know where she was.
BY MR. MANUEL:
No, no. What I’m getting at ...
BY MR. RIDDLE:
Put that in your memorandum.
BY MR. MANUEL:
What I’m getting at is my right legally doesn’t change.

Despite the statements regarding additional evidentiary filings, the appellate record lacks documentation beyond the parties’ descriptive lists and Ms. Armand’s subsequent traversal. There is no indication that supplemental filings were made after the trial.

Yet, both parties reference the bankruptcy petition in their arguments to this brief, citing to a copy of that petition attached to Ms. Armand’s brief rather than to lfithe record on appeal. Additionally, Mr. Armand’s appellee’s brief includes a document entitled “Second Modified Chapter 13 Plan” which he asserts reveals that Ms. Armand received notice of the bankruptcy at least to some extent.

However, as it is not a court of record, an appellate court does not review evidence that is not in the appellate record nor does it receive new evidence. Denoux v. Vessel Management Services, Inc., 07-2143 (La.5/21/08), 983 So.2d 84. Rather, Louisiana Code of Civil Procedure Article 2164 provides that an “appellate court shall render any judgment ... upon the record on appeal.” (Emphasis added.) Accordingly, we do not consider the attachments to the parties’ briefs insofar as they were not otherwise introduced into the record. We also note that the parties do not explain this deficiency in the appellate record.

Although matters on appeal are, at times, remanded for the introduction of additional evidence, the supreme court has remarked that “this power must be exercised sparingly, limited to cases wherein the evidence was unobtainable with due diligence for the first trial and the record reflects that the new evidence is likely to affect the outcome of the case.” Campbell v. Melton, 01-2578, p. 14 (La.5/14/02), 817 So.2d 69, 79. The present case is clearly one in which the introduction of all evidence relied upon by the parties was within the control of the parties. Seemingly, the transcript above indicates that the parties were aware that the filing discussed extensively at trial was possibly not otherwise contained within the record.

Insofar as this evidence was central to the hearing below, we consider such evidence necessary for appellate review of the issues now raised by the parties. Certainly, “[t]he inadequacy of an appellate record for which an appellant is responsible cannot operate to the detriment of an appellee.” Alexander v. Parish of St. John the Baptist, 09-840, p. 9 (La.App. 5 Cir. 8/23/10), 38 So.3d 999, 1005, writ denied, 10-1289 (La.9/17/10), 45 So.3d 1056. In such a situation, an appellate court may apply the presumption that the trial court’s judgment is otherwise supported by sufficient evidence and correct. Id.

However, and despite the deficiency in the present record, we are unable to find that the trial court’s judgment is presumptively correct. Rather, it seems that the trial court’s judgment is patently deficient under La.R.S. 9:2801 so as to preclude a meaningful review. As set forth above, La.R.S. 9:2801(A)(4) requires that, upon a traversal of the parties’ detailed descriptive lists, the trial court is required to take certain delineated steps in partitioning the community (after valuation of assets at the time of trial and determination of the liabilities) and in thereafter allocating assets and liabilities or ordering an equalizing payment. However, the reasons for ruling in this case do not include a basis for its general determination regarding the assets attributed to Ms. Armand nor do the reasons reveal specific findings regarding the community obligations it concluded were discharged by the bankruptcy proceedings or its ultimate conclusion that the previous community “went bankrupt, and is worth $0.” We point out that, in addition to the record’s lack of the bankruptcy documentation, a bankruptcy only discharges debt and does not extinguish one’s interest in property. See, e.g., Mundell v. Mundell, 03-631 (La.App. 3 Cir. 11/5/03), 858 So.2d 768.

Given these deficiencies, which prohibit a meaningful review for abuse of discretion and which preclude a de novo review in light of supporting documentation, we find that it is appropriate to vacate the judgment of the trial court and remand for a new trial on the partition of the community property to be |8made in accordance with La.R.S. 9:2801. See, e.g., Goutierrez v. Goutierrez, 09-1360 (La.App. 3 Cir. 4/7/10), 34 So.3d 1058.

Ms. Armand’s remaining assignments of error are rendered moot by this determination.

Exceptions of No Cause of Action and No Right of Action

With regard to Mr. Armand’s assertion that the trial court erred in failing to grant his exceptions of no right of action and no cause of action, we note that his arguments rely upon the bankruptcy documentation noted to be absent above. Additionally, Mr. Armand neither filed an appeal in this matter nor answered the appeal. Accordingly, we do not address Mr. Armand’s argument further.

DECREE

For the foregoing reasons, the trial court’s judgment is vacated and the matter is remanded to the trial court for further proceedings consistent with this opinion. The costs of this proceeding are assessed equally to the parties, Carrol Falgout Armand and Donald Armand.

JUDGMENT VACATED AND REMANDED.


author: LOLLEY, J.

text:
    Aleia M. MARSH, Plaintiff-Appellant v. NORTH LOUISIANA MEDICAL CENTER, Defendant-Appellee.
    No. 47,949-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    April 10, 2013.

      Culpepper & Carroll, Jonesboro, LA, by Bobby L. Culpepper, for Appellant.
    Hammonds, Sills, Adkins & Guice by Linda K. Ewbank, for Appellee.
    Before DREW, LOLLEY and PITMAN, JJ.
   LOLLEY, J.

| lAleia Marsh appeals the judgment of the Office of Workers’ Compensation, District 1-East, Parish of Ouachita, State of Louisiana (“OWC”), in favor of her previous employer, North Louisiana Medical Center (“NLMC”). For the following reasons, we affirm the judgment of the OWC.

Facts

Marsh was an employee of NLMC, where she worked as a nurse. On June 5, 2009, Marsh claims that while turning a patient, she felt a strain in her neck on the right side. She thought it was a pulled muscle, and she finished her shift. However, the next day, she claims she was unable to get out of bed. Marsh went to the emergency room (“ER”), and “they assumed that it was another pulled muscle due to that [she] had recently had one.” She was unable to return to work that day. Emergency room records reflect she suffered a thoracic strain with “no known trauma,” and she paid for her visit from her personal health insurance. In connection with this incident, she saw Dr. Richard Ballard on June 11, 2009, complaining of pain in her shoulder. His impression was “impingement of the shoulder.”

Subsequently, Dr. Major Blair, a neurosurgeon at Lincoln General, ordered an MRI of the cervical spin, and found a disc bulge at C5-6 with neural foraminal narrowing. Additionally, an X-ray of the right shoulder showed a widening of the right AC joint. The assessment was “in-tervertebal 12disc disease of the cervical spine, worse at C5-6.” According to Marsh, she continued to work in pain.

Marsh notified NLMC in July 2010 that she was suffering from a developing injury that occurred “sometime” in 2009. She was offered a light duty position which she declined. Ultimately, she claims she was unable to continue working, and she was off from July 17, 2010, until April 2011. Subsequently she went to work at another hospital, and she was working at the time of trial. She filed her petition with the OWC on September 24, 2010, claiming she was entitled to “medical treatment, SEB or TTD, and penalties and attorney’s fees for the denial of medical treatment, benefits and unreasonable controversion of claims.”

After a trial of the matter, the OWC noted that “a review of the record reveals the absence of a finding of a disability [and].... [Marsh’s] self proclaiming disability status is insufficient.” Thus, she was not entitled to the extended prescriptive period for developing injuries allowed under La. R.S. 23:1209. In regard to the prescription of Marsh’s claim for SEBs and medical treatment, the OWC concluded that she failed to file her claim within one year of her accident, thus her claims were prescribed. The OWC dismissed Marsh’s claims and entered judgment in favor of NLMC. This appeal by Marsh ensued.

Discussion

On appeal, Marsh argues that the OWC erred in its determination that she failed to prove she sustained a developing injury while employed by NLMC. Related to that argument is Marsh’s additional contention that the |sOWC erred in finding she failed to prove a work-related incident occurred which caused her developing injury. Marsh maintains she was initially injured at work in June 2009, although she did not report her injury to NLMC until 2010. We agree with the OWC’s finding that Marsh failed to prove she suffered an on-the-job accident which caused her developing injury.

An employee is entitled to workers’ compensation benefits if he receives a personal injury by accident arising out of and in the course of his employment. La. R.S. 23:1031; McLin v. Industrial Specialty Contractors, Inc., 2002-1539 (La.07/02/03), 851 So.2d 1135; Nivens v. Fields, 46,524 (La.App.2d Cir.11/16/11), 79 So.3d 1144. An employment-related accident is an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration. La. R.S. 23:1021(1). Although the workers’ compensation law is liberally construed in favor of coverage, the claimant’s burden of proving an accident is not relaxed; she must prove by a preponderance of the evidence that an accident occurred and the resulting disability is related to an on-the-job injury. McLin, supra; Hofler v. J.P. Morgan Chase Bank, N.A., 46,047 (La.App.2d Cir.01/26/11), 57 So.3d. 1128. Proof by a preponderance of the evidence is sufficient when the evidence, taken as a whole, shows that the fact sought to be proved is more probable than not. Nivens, supra.

|4A claimant’s testimony alone may be sufficient to establish an accident provided that “(1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident, and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident.” Bruno v. Harbert Intern. Inc., 593 So.2d 357 (La.1992); Hofler, supra. In determining whether the Bruno elements are satisfied, six pertinent factors are considered: (1) late report, (2) supervisor and coworker testimony, (3) family and friends’ testimony, (4) medical evidence, (5) continuing to work, and (6) prior injuries. Hofler, supra; Bruno, supra.

Factual findings in workers’ compensation cases are subject to the manifest error rule. Buxton v. Iowa Police Dept., 2009-0520 (La.10/20/09), 23 So.3d 275. Under this rule, the reviewing court does not decide whether the factfinder was right or wrong, but only whether its findings are reasonable. Id. Whether the claimant has carried her burden of proof and whether testimony is credible are questions of fact to be decided by the workers’ compensation judge. Id. When there are two permissible views of the evidence, a factfinder’s choice between them can never be manifestly erroneous or clearly wrong. Winford v. Conerly Corp., 2004-1278 (La.03/11/05), 897 So.2d 560.

Initially, we note that Marsh filed her claim for benefits outside the one-year prescriptive period for seeking workers’ compensation payments or filing a formal claim. La. R.S. 23:1209. However, an employee who suffers a work-related injury that only later develops into a disability, has a viable cause of action until one year from the development of the disability, rather 15than from the first appearance of symptoms or from the first date of treatment. La. R.S. 23:1209(A)(3); Winford, supra; Huckaby v. Bellsouth Telecommunications, Inc., 42,255 (La.App.2d Cir.07/18/07), 961 So.2d 651, writ denied, 2007-1715 (La.11/02/07), 966 So.2d 607. The “time the injury develops,” is generally understood as the date the disability develops which is usually identified as the time when it becomes clear that the worker can no longer perform his or her employment duties in a satisfactory manner. Huckaby, supra. The “developing injury” rule is applicable where the employee, after an accident in which injury is immediately apparent, continues to attempt employment duties until he or she is finally disabled from doing so. Id.

Here, the OWC correctly concluded that the record fails to support Marsh’s claim that she suffered a workplace accident in June 2009, which caused her developing injury. Initially, we note that Marsh’s testimony is not corroborated by circumstances following the alleged incident which tend to prove she was injured as a result of a workplace incident. Significantly, Marsh failed to report the incident to her employer upon its occurrence, despite the fact that she claims she had difficulty moving the next day and had to be taken to the ER. Her immediate supervisor, Linda Kennedy, could not remember whether Marsh reported an injury, but she did remember that later Marsh had brought an excuse ordering only light duty. On the other hand, Tonya Dugan, the human resources director for NLMC, stated that the company records showed no reported injury by Marsh in June 2009. We also note that at trial Marsh herself could not definitively pinpoint when she Ifihad been injured at work. She did not “really ... recall when it had happened.” Additionally, although Marsh claimed that a co-worker witnessed her injury, tellingly, she did not call him as a witness at the trial. Marsh continued to work in her position, although she claims she was still in pain throughout 2009 and into 2010, when she requested restricted work conditions. Even though she claimed ongoing pain, she provided no objective evidence of such during this period, a point specifically referenced by the OWC.

Furthermore, although Marsh paid a contemporaneous trip to the ER, those medical records do not establish that she was injured while at work. Marsh presented at the ER on June 6, 2009. The medical intake records indicate “no known trauma,” and further state, “when she woke up this afternoon ... couldn’t hardly move neck and [right] arm....” Additionally, the records of that visit indicate that Marsh had experienced a similar episode “but not this bad.” She was diagnosed as having thoracic strain. Additional medical records indicate that she attributed her pain to “heavy lifting yesterday”; however, she did not connect that activity to work. She utilized her personal health insurance as payment for the ER services.

Finally, and in comparison, in August 2008, Marsh was clearly injured at work. At that time, she made a timely report of the incident to NLMC. Moreover, her medical records indicate that she was injured while “lifting ... heavy ... at work.” That visit was paid for through a claim with NLMC’s workers’ compensation insurance carrier. Clearly, Marsh, having experienced a workplace injury in 2008, knew the procedures. In addition to 17the lack of evidence for her current claim, her failure to follow the same procedure in 2009 when she presented to the ER tends to support the OWC’s finding that she failed to prove the occurrence of a workplace accident causing her current disability-

Although Marsh claims she suffered a developing injury as a result of a workplace injury, the evidence does not support her claim. The findings of the OWC were reasonable and not an abuse of discretion. Considering our findings herein, discussion of Marsh’s remaining assignment of error regarding penalties and attorney’s fees is pretermitted.

Conclusion

For the foregoing reasons, the judgment of the Office of Workers’ Compensation in favor of North Louisiana Medical Center is affirmed. All costs of these proceedings are assessed to Aleia M. Marsh.

AFFIRMED.

      . Marsh was previously injured in July 2008 while caring for a patient of the same employer. At that time. Marsh allegedly strained her lower back. In connection with that incident, she went to the ER, got an injection of muscle relaxers, and a couple of days later resumed her full-time duties. She reported this injury as an on-the-job injury and payment for her hospital visit was processed through NLMC’s workers’ compensation insurance carrier.


author: BROWN, Chief Judge.

text:
    James P. HARDY, Jr., Hardy Resources, LLC, Evergreen Processing, LLC f/k/a B & H Resources, LLC, Mary Hardy, Hardy Energy Services, Inc., Elite Coil Tubing Solutions, LLC, Northstar Farms, LLC, and John Hardy, Plaintiffs-Appellants v. Michael Shae EASTERLING, Defendant-Appellee.
    No. 47,950-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 10, 2013.

      Bodenheimer, Jones & Szwak, Shreveport, LA, by David A. Szwak, for Appellants.
    Cotton, Bolton, Hoychick & Doughty, L.L.P., Rayville, LA, by David P. Doughty, for Appellee.
    Before BROWN, MOORE, and PITMAN, JJ.
   BROWN, Chief Judge.

| plaintiffs, James P. Hardy, Jr.; Hardy Resources, LLC; Evergreen Processing, LLC, f/k/a B & H Resources, LLC, Mary Hardy, Hardy Energy Services, Inc., Elite Coil Tubing Solutions, LLC, Northstar Farms, LLC, and John Hardy, appeal from a trial court judgment granting an exception of no cause of action and dismissing their claims against defendant, Michael Shae Easterling. After review, we hold that the trial court did not err in granting defendant’s exception of no cause of action; however, pursuant to La. C.C.P. art 934, the trial court should have allowed plaintiffs leave to amend their petition to state a valid cause of action. Thus, we reverse the judgment of the trial court and remand for further proceedings.

Facts and Procedural History

The facts of this case are drawn from the allegations contained in plaintiffs’ petition, which we accept as true for the purpose of reviewing the grant of an exception of no cause of action. Webb Const., Inc. v. City of Shreveport, 27,761 (La.App.2d Cir.12/06/95), 665 So.2d 653.

The petition is 47 pages with 219 paragraphs of allegations. The petition alleges that in the spring of 2007, plaintiffs were approached by George Bartmess, an Arkansas resident who owned a 3,600-acre ranch in Izard County, Arkansas. Bart-mess and plaintiffs felt the land contained special fractionate sand that could be mined commercially. The parties entered into a joint venture to inspect, drill, test and evaluate the land. On June 15, 2007, the parties executed a partnership agreement, creating B & H Resources, LLC, now known as Evergreen Processing, LLC, to perform mining operations on the Bartmess land. Plaintiffs and Bartmess each held 12a one-half ownership interest in the corporation. John Hardy and Bart-mess were to be co-managers. Plaintiffs were to supply funds, equipment, and other resources to mine and market the sand. Bartmess contributed 249 acres of land to the company along with servitudes and rights of ingress and egress. Bartmess and his son, Bruce, were also to receive monthly salaries, company vehicles, royalties for the sand, and other benefits.

In 2008, plaintiffs alleged that they discovered that Bartmess had committed acts designed to interfere with B & H’s interests. Plaintiffs contend that Bartmess used confidential and proprietary information belonging to the partnership to solicit others to enter into partnerships to conduct sand mining and sales operations on Bartmess’s land.

On December 2, 2008, plaintiffs and Bartmess reached a deal which provided that the plaintiffs would buy out Bart-mess’s ownership interest in B & H. As a part of this deal, Bartmess was to exercise an option he held over a 198-acre tract— purchasing the land and then selling to plaintiffs a 105-acre portion for $210,000. Plaintiffs alleged that the 105-acre portion of this tract was vital to their mining operations, a fact of which Bartmess was aware. Plaintiffs alleged that Bartmess allowed his option to purchase the 198-acre tract to expire. Plaintiffs note that defendant, Michael Shae Easterling, executed a buy-sell agreement on the property on January 19, 2009, and purchased the tract in March 2009. Plaintiffs further alleged that they contacted Easterling about buying the land, but he did not want to sell, claiming that he intended to use the land for hunting. In late 2009, however, East-erling was alleged to have approached plaintiffs, offering to sell the 1 sentire 198-acre tract. Plaintiffs alleged that they had no choice but to purchase the property at a higher price than they had agreed to with Bartmess.

Plaintiffs alleged that Bartmess and Easterling were “close, long-time” friends. They claim that Bartmess contacted East-erling, a resident of Franklin Parish, Louisiana, and the two conspired together to conduct mining operations in competition with plaintiffs. According to plaintiffs, the two men colluded over the sale of the 198-acre tract, and defendant compensated Bartmess for his part in the transaction.

At some point prior to the present action, plaintiffs filed suit against Bartmess in federal court in Arkansas. Plaintiffs alleged that Easterling was not named in that suit because they were unaware of his involvement at the time it was filed; however, after learning of Easterling’s involvement, they did not amend their lawsuit because they wished to preserve diversity jurisdiction. Plaintiffs alleged that they reached a confidential settlement with Bartmess.

On March 3, 2010, plaintiffs filed the present action against Easterling in Franklin Parish. The greatest part of the 219-paragraph petition concerns the alleged wrongdoing of George and Bruce Bartmess who were not named as defendants. The petition alleged numerous claims under both Louisiana and Arkansas law.

^Defendant filed an exception of vagueness, a peremptory exception of nonjoinder of parties, and a peremptory exception of no cause of action.

The trial court noted that it could not discern what actions of Easterling “could be deemed unfair or deceptive, in light of the absence of any relationship between the parties prior to the purchase by East-erling of the [198-] acre tract,” nor were there any allegations that Easterling “intentionally misrepresented the value of the property in question” or induced plaintiffs “to buy the property at a price which was substantially higher than its actual value.” The trial court remarked that “[t]he facts plead[ed] herein, as applied to Easterling, simply do not state a cause of action under any theory of recovery.” Plaintiffs’ lawsuit was dismissed. Thereafter, plaintiffs filed this timely appeal.

Discussion

An exception of no cause of action tests the legal sufficiency of the petition by questioning whether the law affords a remedy based on the facts alleged in the petition. Everything on Wheels Subaru v. Subaru South, Inc., 616 So.2d 1234 (La.1993); Bogues v. Louisiana Energy Consultants, LLC, 46,434 (La.App.2d Cir.08/10/11), 71 So.3d 1128. No evidence may be introduced to support or controvert an exception of no cause of action. La. C.C.P. art. 929. The exception is triable on the face of the petition, with the well-pleaded facts accepted as true for the purpose of determining the issues raised by the exception. McCarthy v. Evolution Petroleum Corp., 47,907 (La.App.2d Cir.02/27/13), 111 So.3d 446; Bogues, supra.

Whether a petition states a cause of action is a question of law, and, on appeal, a judgment sustaining an exception of no cause of action is subject to a de novo standard of review. Bogues, supra.

La. C.C.P. art 934 provides:

When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgement sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection raised through the exception cannot be so removed, or if the plaintiff fails to comply with an order to amend, the action, claim, demand, issue, or theory shall be dismissed.

The decision to allow amendment of a pleading to cure the grounds for a peremptory exception is within the discretion of the trial court. Downs v. Hammett Props., Inc., 39,568 (La.App.2d Cir.04/06/05), 899 So.2d 792.

Appellate courts have concluded that Art. 934 does not require a court to give leave to amend a petition if doing so would be futile, meaning if it is apparent that the defect could not be corrected by amendment. Magill v. Lowery, 43,261 (La.App.2d Cir.05/07/08), 990 So.2d 18, writ denied, 08-1237 (La.10/10/08), 993 So.2d 1283.

Plaintiffs offer numerous assignments of error upon appeal, challenging the dismissal of several of their original claims for failure to lístate a cause of action. Given the de novo nature of this review, we examine each individually.

Fraud (Louisiana Law)

La. C.C. art 1953 provides:

Fraud is a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other. Fraud may also result from silence or inaction.

La. C.C. art. 2324 provides that he or she who conspires with another person to commit an intentional or willful act is answerable, in solido, with that person, for the damage caused by such act.

An independent cause of action for civil conspiracy does not exist in Louisiana; rather the actionable element of article 2324 is the intentional tort that the conspirators agreed to commit and committed, in whole or in part, causing plaintiffs injury. Able Sec. and Patrol, LLC v. State of La., 569 F.Supp.2d 617 (E.D.La.2008). A conspiracy may proven by circumstantial evidence. Hall v. Lilly, 29,624 (La.App.2d Cir.06/18/97), 697 So.2d 676.

The Code of Civil Procedure requires that in pleading fraud or mistake, the circumstances constituting fraud or mistake shall be alleged with particularity. La. C.C.P. art. 856. Malice, intent, knowledge, and other condition of mind of a person may be alleged generally. Id.

It is unclear from the petition what acts of fraud plaintiffs are alleging against Easterling. The parties had no relationship or even contact until the purchase of the 198-acre tract. Plaintiffs allege no misrepresentations or suppressions made by Easterling. The only communication alleged between |7the parties sub judice was when plaintiffs attempted to purchase the property from Easterling after Bart-mess failed to exercise his option. Bart-mess had informed plaintiffs that the then unknown buyer of the property would be willing to sell to them. In February 2009, however, Easterling declined to sell the tract and asserted that he intended to use the land for recreation. The next direct mention of Easterling in the petition is when plaintiffs allege that he contacted plaintiffs, nearly a year after they attempted to purchase the land, offering to sell the tract.

Plaintiffs claim that Bartmess “advised” Easterling and shared certain confidential information with Easterling. However, the petition does not allege what information was shared, rather only that Bartmess “advised” Easterling about the property. Even accepting that confidential information about the 105-acre tract was shared, Easterling had no duty to protect plaintiffs’ interests in ensuring that the terms of the private buy-out agreement between plaintiffs and Bartmess were executed.

It remains unclear what suppressions or misrepresentations defendant personally made to plaintiffs regarding the sale of the property. The only misrepresentations that can be inferred from the petition are those made by Bartmess in concealing his failure to exercise his option to purchase the tract timely and in revealing confidential business information.

Fraud (Arkansas Law)

Plaintiffs likewise argue that they have adequately pleaded a cause of action for fraud and conspiracy to defraud under Arkansas law. As in Louisiana, civil conspiracy in Arkansas is dependent upon the existence of |sunderlying damages. The Arkansas Supreme Court has explained civil conspiracy thus:

To prove a civil conspiracy, a plaintiff must show that two or more persons have combined to accomplish a purpose that is unlawful or oppressive or to a accomplish some purpose, not in itself unlawful, oppressive or immoral, but by unlawful, oppressive or immoral means, to the injury of another. A civil conspiracy is not actionable in and of itself, but a recovery may had for damages caused by acts committed pursuant to the conspiracy. A civil conspiracy is an intentional tort which requires a specific intent to accomplish the contemplated wrong. (Internal citations omitted)

Faulkner v. Arkansas Children’s Hosp., 347 Ark. 941, 69 S.W.3d 393, 406 (2002).

The petition does not state any misrepresentation or omission made by Easter-ling which induced plaintiffs into buying the property at his asking price. Plaintiffs allege only that defendant admitted that Bartmess told him about the property in question and that Easterling stated that he wanted to use it for hunting. Nearly a year later, Easterling sold the land to plaintiffs. Even if it were alleged that Bartmess had revealed the vital nature of the tract, this still does not show that Easterling made any false representations to plaintiffs. We agree with the trial court that there are no allegations that defendant misstated the price of the land.

Therefore, plaintiffs failed to state a cause of action for fraud under either Louisiana or Arkansas law.

Tortious Interference with Contractual Relations (Arkansas Law)

Plaintiffs first argue that they have adequately pled a cause of action for tortious interference with contractual relations under Arkansas law. The elements of tortious interference of contract that must be proven are: (1) the ^existence of a valid contractual relationship or business expectancy; (2) knowledge of the relationship or expectancy on the part of the interfering party; (3) intentional interference inducing or causing a breach or termination of the relationship or expectancy; and (4) resultant damage to the party whose relationship or expectancy has been disrupted. K.C. Props. of N.W. Ark., Inc. v. Lowell Inv. Partners, LLC, 373 Ark. 14, 280S.W.3d 1 (2008).

The petition is rife with allegations of Bartmess seeking out third parties to set up such an operation. The first allegation mentioning defendant states that:

BARTMESS engaged in a campaign of using plaintiffs’ monies and assets to solicit others to drill and test for special sand on BARTMESS land and BART-MESS made efforts to secure a different partner, defendant EASTERLING, to conduct sand mining and sale operations.

The petition fails to allege facts sufficient to state a cause of action against defendant for tortious interference with contractual relations regarding establishing a competing mining operation. Further, there are no allegations that Easter-ling established any sort of competitive operations.

| mRegarding the purchase and sale of the 105 acres, it was Bartmess who breached the buy-out agreement by allowing his option to lapse. Plaintiffs had no other contractual agreement concerning the land when it was purchased by Easter-ling. The allegations in the petition show that it was Bartmess who cost plaintiffs the opportunity to initially purchase the tract.

Interference with Business Expectancy (Arkansas Law)

Arkansas law requires that to recover on a claim of tortious interference with business expectancy, a plaintiff must satisfy the same elements, noted above, that are applied to the tort of interference with contractual relations. K.C. Props. of N.W. Ark, Inc., supra; Stewart Title Guar. Co. v. American Abstract & Title Co., 363 Ark. 530, 215 S.W.3d 596 (2005). In Arkansas, the existence of a contractual relationship is not a prerequisite to maintain an action for tortious interference with business expectancy. Stewart Title Guar. Co., supra. Any prospective business relationship that would be of pecuniary value constitutes a valid business expectancy. Id. Some precise business expectancy or contractual relationship must be obstructed. Id.

In With intent to interfere as the usual basis of the action, the cases have turned almost entirely upon the defendant’s motive or purpose, and the means by which he has sought to accomplish it. Id., citing, W. Page Keeton et al., Prosser & Keeton on the Law of Torts § 130, at 1009 (5th ed.1984).

Again, it is not alleged what specific actions by Easterling interfered with plaintiffs’ business expectancy, other than purchasing land that plaintiffs expected to be able to purchase from Bartmess. Rather, any interfering acts which may have occurred appear to be alleged against Bartmess.

Plaintiffs alleged that Bartmess sought contracts and partners and that he “intended” to have his son establish a competing business. They did assert that Bart-mess and Easterling tested sands from the Bartmess'land, but this falls short of showing that Easterling ever caused them a loss of business expectancy or actual damages through such action. Also, as noted above, Easterling had no relationship with plaintiffs and was free to “enter into secret negotiations” as he liked. Stewart Title Guar. Co., supra. Regarding the sale of the 105-acre tract, plaintiffs’ expectancy was that Bartmess would execute his obligations under the buy-out agreement. Plaintiffs had no agreements with the landowners themselves with which defendant could interfere.

Interference with Business Relations (Louisiana Law)

Louisiana law protects a businessperson from malicious or wanton interference, while permitting interferences designed to protect legitimate interests of the actor. Bogues, supra. The plaintiff in a tortious interference 112with business cause of action must show by a preponderance of evidence that the defendant improperly and maliciously influenced others not to deal with plaintiff. Id.; Heart’s Desire, LLC v. Edwards, 46,222 (La.App.2d Cir.04/27/11), 2011 WL 1630175. Louisiana jurisprudence has viewed the claim with disfavor and limited the cause of action by imposing a malice element which requires the plaintiff to show that the defendant acted with actual malice. Bogues, supra.

There is no allegation of actual malice on the part of Easterling. The petition almost exclusively deals with the bad faith of Bartmess. Even in brief to this court, plaintiffs reference that it was Bartmess who “was scheming to rid himself of appellants,” not that Easterling was inducing Bartmess to breach his relationship with plaintiffs. It is clear from the petition that Bartmess was the one who sought out partners and intended to mine the sand to the exclusion of the plaintiffs. To read any such allegation of malice on the part of defendant would be conjecture. Because no more than a profit motive can be inferred from the allegations stated in the petition, plaintiffs failed to state a cause of action for tortious interference with business relations.

J¿¡LUTPA

The Louisiana Unfair Trade Practices Act provides, in pertinent part, that “[u]n-fair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are” ... “declared unlawful.” La. R.S. 51:1405. The statute further provides:

Any person who suffers any ascertainable loss of money or movable property, corporeal or incorporeal, as a result of the use or employment by another person of an unfair or deceptive method, act, or practice declared unlawful by R.S. 51:1405, may bring an action individually but not in a representative capacity to recover actual damages.

La. R.S. 51:1409(A).

In order to recover under LUTPA, a plaintiff must prove some element of fraud, misrepresentation, deception, or other unethical conduct on the part of the defendant. Bogues v. Louisiana Energy Consultants, LLC, 71 So.Sd at 1132. It has been left to the courts to decide, on a case-by-case basis, what conduct falls within the statute’s prohibition. Cheramie Servs., Inc. v. Shell Deepwater Prod., Inc., 09-1638 (La.04/23/10), 35 So.3d 1053. To sustain a cause of action under LUTPA, the supreme court has promulgated a two-part test: 1) the person must suffer an ascertainable loss; and 2) the loss must result from another’s use of unfair methods of |, competition and unfair or deceptive acts or practices. Cheramie Servs., supra; NOLA 180 v. Treasure Chest Casino, LLC, 11-853 (La. 5 Cir. 03/27/12), 91 So.3d 446, writ denied, 12-0949 (La.06/15/12), 90 So.3d 1066.

Key to the trial court’s rationale regarding this issue was that plaintiffs were not a consumer or a business competitor of Easterling, or vice-versa. Correctly, the trial court noted that plaintiffs were in the mining business, while Easterling is not alleged to be in the mining business. Easterling stated that he purchased the 198-acre tract for recreational purposes. However, the supreme court has held that rather than being limited to consumers and business competitors, claims under LUTPA are available to any person who suffers any ascertainable loss as a result of violations of the statute. Cheramie, supra.

The only ascertainable loss sufficiently pled by plaintiffs is that they had to pay a higher purchase price for the land in question, which they allege was caused by the deception of Bartmess. In the transaction for the 105-acre tract, it was Bartmess, individually, who held the option on purchasing the property. As part of his buyout agreement, Bartmess was to purchase the property and sell it to B & H. Bart-mess never completed the transaction, allowing his option to lapse.

Easterling had no relationship with plaintiffs and owed them no duty in the original purchase of the property. Further, there was no allegation that Easter-ling acted deceptively in selling the property. The unfair methods complained of were employed by Bartmess when he breached the buy-out [ ^agreement. Therefore, plaintiffs’ loss, as alleged, was caused by Bartmess, not defendant.

ADTPA

Similar to LUTPA, the Arkansas Deceptive Trade Practices Act (“ADT-PA”) makes it unlawful to engage in any unconscionable, false, or deceptive act or practice in business, commerce, or trade, and it grants a private cause of action to any person who suffers actual damage or injury as a result of an offense or violation as defined in the statute. Texarkana Behavioral Assocs., LC v. Universal Health Servs., Inc., 748 F.Supp.2d 1008 (W.D.Ark. 2010), citing Ark. C. Ann. § 4-88-107(a)(10); § 4 — 88—113(f). However, not every tort or violation of law is unconscionable else that word would lose its legal meaning. Universal Coops., Inc. v. AAC Flying Serv., 2012 WL 1019582, (E.D.Ark.2012). An unconscionable action affronts the sense of justice, decency, or reasonableness. Baptist Health v. Murphy, 365 Ark. 115, 226 S.W.3d 800 (2006).

It is unclear what unconscionable actions Easterling allegedly committed. Regarding the alleged establishment of a rival mining operation, there are no allegations that Easterling personally took any action which caused actual damage to plaintiffs. Plaintiffs do not aver that Easterling engaged in any of the acts of sabotage that they allege against Bartmess.

Plaintiffs also do not allege any unconscionable acts regarding the sale of the 105-acre tract. They only allege that Easterling was informed the property was for sale by Bartmess and that he then purchased it from the | ^owners. Without more specific allegations, it is difficult to divine any actions taken by defendant which affront the sense of justice, decency or reasonableness.

Conclusion

After review, we hold that trial court did not err in granting defendant’s exception of no cause of action. However, pursuant to La. C.C.P. art 934, the trial court should have allowed plaintiffs leave to amend their petition to state valid causes of action. We cannot say that such an allowance would be a vain or useless act; therefore, this case is remanded to the trial court for proceedings not inconsistent with this opinion. Plaintiffs are granted leave to amend their petition within a delay period of 30 days from the rendering of this opinion, if they are so able.

For the reasons set forth above, the judgment of the trial court is reversed. Costs of appeal are assessed equally against appellee and appellant.

Reversed and Remanded.

      . Bartmess is now deceased.

      . Plaintiffs sought damages to recover the increased costs of acquiring the 105-acre tract from defendant, increased expenses caused by delays in tlie project, lost investment funds, increased operation costs, increased market competition, costs for Bartmess's usage of equipment, damages caused by the loss and disclosure of confidential and proprietary information, damages to competitive position, lost economic opportunity, costs incurred in mitigating damages, loss of expected profits, damage to plaintiffs’ reputation, loss of business to partnership, legal fees and punitive damages under Arkansas law.

      . Magill was a defamation case and this court found “[t]here is nothing in this record to persuade us that the plaintiff would have been able to cure these stricken allegations. Crucially, he never formally asked the trial court for leave to amend his pleadings. This has been held to result, in at least one of our other circuits, that the issue on appeal has been abandoned.” Magill, 990 So.2d at 20. We note that in the case sub judice plaintiffs never formally asked for leave to amend.

      . In determining whether an actor's conduct intentionally interfering with contract or a prospective contractual relation of another is improper or not, consideration is given to:
      (a) the nature of the actor’s conduct, (b) the actor’s motive, (c) the interests of the other with which the actor’s conduct interferes, (d) the interests sought to be advanced by the actor, (e) the social interests in protecting the freedom of action of the actor and the contractual interests of the other, (f) the proximity or remoteness of the actor's conduct to the interference and the relations between the parties.

        K.C. Props. of N.W. Ark., Inc., 280 S.W.3d at 11-12.

      . ‘ The Arkansas Supreme Court has held that tortious interference with business expectancy is distinguishable from the privilege to compete:
      In short, it is no tort to beat a business rival to prospective customers. Thus, in the absence of prohibition by statute, illegitimate means, or some other unlawful element, a defendant seeking to increase his own business may cut rates or prices, allow discounts or rebates, enter into secret negotiations behind the plaintiffs back, refuse to deal with him or threaten to discharge employees who do, or even refuse to deal with third parties unless they cease dealing with the plaintiff, all without incurring liability.

        Stewart Title Guar. Co., 215 S.W.3d at 600-01, citing, W. Prosser, Law of Torts, § 130 (3rd ed.1971).

      . The Bogues court approvingly noted reasoning from the Fourth Circuit which held:
      Although its meaning is not perfectly clear, the malice element seems to require a showing of spite or ill will, which is difficult (if not impossible) to prove in most commercial cases in which conduct is driven by the profit motive, not by bad feelings. In fact, there appear to be no reported cases in which anyone actually has been held liable for the tort. In order to sustain a claim for tortious interference with business relations, actual malice must be pleaded in the compliant.

        Id. at 1134, citing, JCD Mktg. Co. v. Bass Hotels & Resorts, Inc., 01-1096 (La.App. 4th Cir.03/06/02), 812 So.2d 834.

      . The U.S. Fifth Circuit has cautioned:
      LUTPA does not prohibit sound business practices, the exercise of permissible business judgment, or appropriate free enterprise transactions. The statute does not forbid a business to do what everyone knows a business must do: make money. Businesses in Louisiana are still free to pursue profit, even at the expense of competitors, so long as the means used are not egregious. Finally, the statute does not provide an alternate remedy for simple breaches of contract. There is a great deal of daylight between a breach of contract claim and the egregious behavior the statute proscribes. (Internal citations omitted)

        Turner v. Purina Mills, Inc., 989 F.2d 1419 (5th Cir.1993).

      . In addition to the above discussed assignments of error, plaintiffs claim that the trial court engaged in a conflict of laws analysis in its judgment, which they argue is inappropriate when examining a no cause of action. Louisiana jurisprudence provides little guidance as to whether a conflict of laws analysis is per se inappropriate when considering a peremptory exception of no cause action. Given that the trial court never explicitly made a ruling as to the choice of law, we need not consider the issue as it is not properly before us in this case.

        Also, plaintiffs complain that the trial court committed reversible error when it opined in its reasons for judgment that "[fjrankly put, it appears to this Court that the real victim in all of this is Third Party Land Owners/Sellers who sold their land for a substantially lower price than its true value.’1 We disagree that this statement rises to the level of a factual finding, and such general observations are not appealable. We note that appeals are taken from the judgment, not the written reasons for judgment. Greater New Orleans Expressway Com'n v. Olivier, 02-2795 (La. 11/18/03), 860 So.2d 22. Therefore, this assignment is without merit.


author: DREW, J.

text:
    STATE of Louisiana, Appellee v. Sean C. BELCHER, Appellant.
    Nos. 47,986-KA, 47,987-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 10, 2013.

      Louisiana Appellate Project by Peggy J. Sullivan, Monroe, LA, for Appellant.
    Charles Rex Scott, II, District Attorney, Tommy Jan Johnson, Kelvin M. Rodgers, Treneisha Jackson, Assistant District Attorneys, for Appellee.
    Before DREW, LOLLEY and PITMAN, JJ.
   DREW, J.

|, Sean C. Belcher was convicted of failure to register as a sex offender, in violation of La. R.S. 15:542. For this crime, he was sentenced to two years at hard labor without benefits. We affirm in all respects.

On September 14, 1999, Belcher was convicted of attempted simple kidnapping. At his sentencing hearing on December 16, 1999, he was sentenced to 18 months at hard labor, suspended, with 18 months of active supervised probation.

On November 29, 2010, Belcher was charged by a bill of information for failing to register as a sex offender with the Caddo Parish Sheriffs Office, in violation of La. R.S. 15:542. In particular, Belcher was supposed to complete a quarterly registration requirement on September 8, 2010, but failed to do so until October 4, 2010.

On June 7, 2011, he was charged by another bill of information for failing to register with the Shreveport Police Department on May 11, 2011.

On December 14, 2011, the defendant filed a motion to quash his bills of information, claiming that these arrests violated his due process rights because the district court failed to provide him at sentencing with written notification of his duty to register as a sex offender. In support of his motion, he attached copies of sentencing hearing transcripts which showed that the trial court only suggested that he “be evaluated as a sex offender and receive treatment if necessary.”

12At the hearing on the motion to quash, Lt. Greg Wingate testified that:

• he was employed by the Caddo Parish Sheriffs Office, and had been in charge of sex offender registration for that agency since 2007;
• sex offenders receive a packet of information at each annual registration; ■
• this packet contains a copy of the relevant registration statutes as well as a document explaining what is required of him as a sex offender;
• a booking deputy then reviews La. R.S. 15:542 with the offender;
• the offender signs a document acknowledging receipt of a copy of the law and that he understands the registration laws as applied to him;
• the booking officer also signs a document stating that he reviewed the documents with the offender;
• prior to the 2008 amendments, offenders were required to register only annually, and most offenders were required to register for only 10 years;
• the 2008 amendments increased the registration requirements for different classes of offenders, so the sheriffs office mailed letters to those offenders;
• the letters notified offenders that they would now be categorized in tiers according to the type of offenses they committed;
• the letter listed the three tiers, showing the types of offenses that fell in each tier, and further explained how the new law would affect each offender;
• Belcher was classified as a tier three offender and was required to register both quarterly and annually with local authorities;
• Belcher registered only once in 2009, twice in 2010, and on April IB, 2011;
• he discussed Belcher’s last annual registration packet, dated June 8, 2010;
Is*included in the packet was a form signed by the defendant acknowledging receipt of the information for his registration requirements, including that he had to register every three months from the date of this annual registration;
• his first quarterly registration was scheduled for September 8, 2010, but he did not register until October 20, 2010;
• he next came in for registration on April 13, 2011, which was also more than three months since his previous quarterly registration date;
• he admitted that a copy of La. R.S. 15:542 as well as some forms required to be sent to school boards and newspapers were not in the packet;
• the letters sent to the offenders as well as the registration packets they received were not specifically tailored to each individual offender;
• although the letters and registration packets provide only a general knowledge of the registration laws, a deputy meets with and explains La. R.S. 15:542 with each offender at his annual registration;
• thereafter, each offender signs an acknowledgment that he has received and understands the registration information; and
• the booking deputy also signs a confirming acknowledgment.

The trial court denied the motion in a written ruling on April 10, 2012.

Defendant filed an application for supervisory writ with this court. In denying his writ application on May 25, 2012, we noted that, at the time of his arrests, La. R.S. 15:548 only required written notice to be given to those offenders convicted of a sex offense; and, attempted simple kidnapping was not a sex offense under La. R.S. 15:541. Therefore, the trial court was not required by statute to provide Belcher with written notice. This court also noted Belcher’s due process rights were not violated because the record | ¿demonstrated that he had registered sporadically during 2000 and 2011, proving that he had sufficient notice of his duty to register.

On June 27, 2012, the defendant withdrew his original plea of not guilty and, reserving his right to appeal the denial of his motion to quash, entered into a guilty plea for two counts of failure to register as a sex offender. The trial court sentenced him as noted before, and he now appeals.

The defendant alleges that:

• the trial court erred in denying his motion to quash;
• though he may have had a general understanding of the registration requirements, the state was required under the 2008 amendments to notify and advise him as to the changes in the law;
• this record is devoid of any evidence proving that the state did this;
• at sentencing, he was not told of his registration requirements;
• the state did not explain the 2008 amendments to him; and
• accordingly, he should not have been arrested for noncompliance.

The state responds that the evidence established that the defendant had been properly notified and advised of his duties under the new registration laws, in that:

• the Caddo Parish Sheriffs Office sent letters to the affected offenders, informing them of the upcoming registration changes;
• as the offenders came in for their annual registrations, booking deputies reviewed the registration requirements with each of them individually;
• Belcher had his annual registration on June 8, 2010;
• he returned in October, suggesting he knew to register quarterly; and
|s* since there are no new facts that would challenge our previous holding on supervisory review, the defendant’s assignment is without merit.

The general grounds upon which a motion to quash may be based are set forth in La. C. Cr. P. art. 532. These grounds, which are illustrative rather than exclusive, do not expressly include the issue raised herein. La. C. Cr. P. art. 532(1); State v. Moten, 99-552 (La.App. 5th Cir.11/30/99), 748 So.2d 1210. When the contested matter is strictly a legal issue, courts have found that a motion to quash is the proper procedural vehicle by which to assert the claim. See State v. Clark, 11-700 (La.App. 5th Cir.5/8/12), 95 So.3d 1108; State v. Brown, 2007-388 (La.App. 3d Cir.10/3/07), 966 So.2d 1138, 1146, writs denied, 2007-2159 (La.3/28/08), 978 So.2d 304, and 2008-0326 (La.3/28/08), 978 So.2d 312.

Our highest court has held that a motion to quash may not be used to argue a defense on the merits. In considering a motion to quash, a court must accept as true the facts contained in the bills of information and in the bill of particulars, and determine as a matter of law and from the face of the pleadings, whether a crime has been charged; while evidence may be adduced, such may not include a defense on the merits. State v. Byrd, 96-2302 (La.3/13/98), 708 So.2d 401, cert. denied, 525 U.S. 876, 119 S.Ct. 179, 142 L.Ed.2d 146 (1998).

In State v. Lauff, 06-717 (La.App. 5th Cir.2/13/07), 953 So.2d 813, our sister circuit held that the defendant’s motion to quash was improper because she raised factual matters that related to the merits of the case, relating solely to the issue of defendant’s guilt, in that the defendant | ^contended the state’s evidence could not prove she had the requisite intent for murder beyond a reasonable doubt.

A sentencing court’s failure to advise the defendant of all registration requirements is a legal issue, and to this extent, a motion to quash is the proper procedural vehicle to challenge such an issue. This court previously determined on supervisory review that, under the law at the time of his 2000 conviction for attempted simple kidnapping, the trial court was not legally required, for that offense, to inform Belcher of his duty to register as a sex offender under La. R.S. 15:543.

Belcher’s claim that the state did not notify him of the 2008 changes in his registration requirements is a factual issue, relating to Belcher’s guilt. He contends that the state’s evidence could not prove that he had been notified and advised of the 2008 changes. This factual claim goes to the merits, and was inappropriate for resolution by motion to quash. The trial court correctly denied the motion.

DECREE

The ruling of the trial court is AFFIRMED.

      . At the initial sentencing, a motion for new trial was unresolved. We remanded the case. After the motion was denied, the defendant received the same sentence on July 31, 2000.

      . Contrary to Wingate's testimony, Defendant's Exhibit D-l shows that Belcher actually registered twice in 2011, on January 17 and April 13.

      . As noted, Ex. D-l also reflects registration on January 17, 2011.