author: PAINTER, Judge. AMY, J., concurs in part, dissents in part, and assigns reasons. AMY, J.,

text:
    Jennifer Diane NUNEZ v. PINNACLE HOMES, L.L.C. and Sua Insurance Company.
    No. 13-1302.
    Court of Appeal of Louisiana, Third Circuit.
    April 2, 2014.

      John C. Anderson, Baton Rouge, LA, for Defendants-Appellants: Pinnacle Homes, L.L.C. and Allen Lenard.
    J. Bryan Jones, III, Lake Charles, LA, for Plaintiff-Appellee: Jennifer Diane Nunez.
    Court composed of JOHN D. SAUNDERS, MARC T. AMY, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

|;Defendants, Pinnacle Homes, L.L.C. (Pinnacle) and Allen Lenard, appeal the judgment of the trial court finding that Pinnacle Homes and Lenard, personally, violated the New Home Warranty Act by failing to construct a house for Plaintiff, Jennifer Diane Nunez, that met state, parish, and FEMA elevation requirements and awarding damages in the amount of $210,600.00. Finding no error in the trial court’s judgment, we affirm.

FACTS

In written reasons for judgment, the trial court correctly outlined the underlying facts of the case as follows:

On January 8, 2008, JENNIFER DIANE NUNEZ and PINNACLE HOMES, LLC entered into a Cost Plus Contract — Fixed Fee contract for the construction of a new home located on 111 Boudreaux Lane, in the Grand Lake area, in Cameron Parish, Louisiana. The fixed fee of the contract was $33,748.00, and the pre-construction estimate of the construction costs was $277,772.00. (See Plaintiffs Exhibit No. 4).
Pertinent provisions of the construction contract are located in Section 4.2 and Section 4.4. Section 4.2 of the contract, provides that “[a]ll work shall be completed in a workman like manner, and shall comply with all applicable national, state and local building codes and laws.” Section 4.4 provides that “[c]on-tractor shall obtain all permits necessary for the work to be completed.’ ”
Aecu-Line Surveying, Inc.[ ] prepared an updated elevation certificate on or about September 18, 2007, which is dated March 12, 2006, which indicated that the Base Flood Elevation was 9.0 feet and Advisory Base Flood Elevation was 10.0 feet for the Nunez home. (See Plaintiffs Exhibit. No. 1). The elevation certificate also included the lowest adjacent grade at 4.61 feet and the highest adjacent grade at 5.48 feet.
According to the testimony of Ernestine Horn, Cameron Parish Administrator, the base flood elevation is required by FEMA and the advisory base flood elevation is required by the parish. After Hurricane Rita, the State of Louisiana mandated all coastal parishes, including Cameron Parish, to add one (1) foot to all of the elevations | ^contained in the flood elevation maps. (See Trial Transcript of 8/1/2012, p. 56).
The permit issued by the Cameron Parish Police Jury for the construction of plaintiffs home[] required that the base flood elevation be 10 feet for the plaintiffs home. (See Plaintiffs Exhibit No. 6).
The post-construction elevation certificate prepared by Accu-Line Surveying, Inc.[] indicates that the elevation of plaintiffs home is 8.66 feet. It also indicates that the lowest elevation of machinery or equipment servicing the building is 8.10 feet. (See Plaintiffs Exhibit No. 2).
The plaintiffs home is below the required base flood elevation of 9 feet as required by FEMA and below the advisory base flood elevation of 10 feet as required by the permit issued by the Cameron parish Police Jury

Nunez filed this suit for breach of warranties and contract naming Pinnacle and SUA Insurance Co. (SUA) as defendants. She amended the petition to include Lenard, the owner of Pinnacle, and American Safety Casualty Insurance Co. (ASCI) as defendants. Nunez voluntarily dismissed the claims against SUA. The claims against ASCI were dismissed pursuant to motion for summary judgment.

The trial court denied Lenard’s Exception of No Cause of Action and Pinnacle’s motion for an order staying the proceedings and ordering arbitration. The matter was tried, and the trial court rendered judgment in favor of Plaintiff and awarded damages. Pinnacle and Lenard appeal.

DISCUSSION

On appeal, Defendants dispute the trial court’s finding that Plaintiff suffered damages because of the incorrect elevation of her house and that Lenard was personally liable for the failure to correctly elevate the house.

| ^Standard of Review

The trial court found that:
[T]he applicable law in this case is contained in the New Home Warranty Act. LSA-R.S. 9:8141-3150 et seq. Also applicable to the facts of this case is LSA-R.S. 12:1320(D).
The defendant, PINNACLE HOME[S], LLC, violated the New Home Warranty Act by not complying with the elevation standards imposed by FEMA, the State of Louisiana, and the Parish of Cameron.
This finding is not controverted on appeal.
The trial court’s factual findings in cases involving the NHWA are subject to manifest error review. Hutcherson v. Harvey Smith Const., Inc., 08-1046, p. 3 (La.App. 1 Cir. 2/13/09), 7 So.3d 775, 778. An appellate court cannot set aside the trial court’s factual findings unless it determines there is no reasonable factual basis for the findings and the findings are clearly wrong. Stobart v. State through Dept, of Transp. and Dev [.], 617 So.2d 880, 882 (La.1993). Thus, if the findings are reasonable in light of the record reviewed in its entirety, this court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). With regard to questions of law, the appellate review is simply a review of whether the trial court was legally correct or legally incorrect. On legal issues, the appellate court gives no special weight to the findings of the trial court, but exercises its constitutional duty to review questions of law and render judgment on the record. Pierce v. State, Office of Legislative Auditor, 2007-0230, p. 7 (La.App. 1 Cir. 2/8/08), 984 So.2d 61, 67, writ denied, 2008-0542 (La.4/25/08), 978 So.2d 369.

Jenkins Bldg. Supply, Inc. v. Thigpen, 09-903, pp. 3-4 (La.App. 1 Cir. 12/23/09), 34 So.3d 867, 869.

Defendants raise questions about whether Plaintiff proved damages due to the violation of the act and whether they proved personal liability on the part of Lenard. These are questions of fact. Therefore, we will review this matter under a manifest error standard.

14Damages

We first consider Defendants’ assertion that Plaintiff failed to prove damages to a reasonable certainty. The trial court, in its written reasons, found as follows with regard to damages:

The plaintiff provided two estimates of her damages. The first estimate was the cost to elevate plaintiffs slab home to proper elevation. The total cost of the elevation was $201,600. (See Plaintiffs Exhibit No. 3). Defendant argues that this amount is substantial given the total price of plaintiffs home.
The second estimate of damages was the increased cost of flood insurance premiums over the life of plaintiffs mortgage both through the National Flood Insurance Program and through a private insurance policy. (See Plaintiffs Exhibit No. 8 and 9). From the court’s calculations, the increased insurance premiums could result in damages of as little as $21,750 (NFIP) or as high as $142,440, (private policy) over a 30 year period. Thereafter, if Mrs. Nunez wanted to purchase flood insurance for her home, she would not be compensated. Mrs. Horn explained that plaintiff may face other damages if her home is not at proper elevation. She could be sued by the parish and be subject to a fine of up to $500, court costs, and possible jail time, under the parish ordinance. If found guilty under the ordinance, Mrs. Nunez’s property would be designated a section 1316 property with FEMA and therefore would be ineligible to purchase flood insurance through the National Flood Insurance Program. Further, that designation would remain with the property and would be applicable to future owners of the property. Plaintiff would be required to disclose that designation to potential buyers of her home. Further, given that the property is below the base flood elevation required by FEMA, it is likely that the property may not be adequately protected from future flood events. All of these damages are too speculative to calculate and almost impossible for the plaintiff to prove with any legal certainty.
The court finds that the elevation of plaintiffs home is the only way to adequately compensate plaintiff for the damages she suffered in this case. Damages are hereby awarded in the amount of $201,600, the cost to elevate plaintiffs home to the proper elevation, plus legal interest from the date of judicial demand.

Defendants assert that the trial court found that any calculation of damages was too speculative to prove with legal certainty. However, a reading of the reasons does not support this conclusion. Rather the trial court found that damages other than the cost to elevate the house to the correct level were too speculative to |fiprove with certainty. Therefore, she awarded the amount needed to elevate the home to the correct level. The record supports the conclusion that the house was not built at the elevation required by the State, the Parish, and FEMA. This fact is undisputed. Further, trial testimony supports the conclusion that the amount required to elevate the house to the correct level was $201.600.00. Defendants did not dispute the fact that this amount would be required to elevate the house. The New Home Warranty Act allows for an award of the amount required to repair a defect as an appropriate award of damages. See La.R.S. 9:3149. Accordingly, we find no manifest error or abuse of discretion in the trial court’s conclusion that this is the amount required to repair the house or in its award of damages in this amount.

Personal Liability of Lenard

In the remaining assignments of error, Defendants argue that the trial court erred in finding Lenard personally liable for the defect in Plaintiffs house.

The trial court gave the following reasons for its determination of personal liability:

The defendant, ALLEN LENARD, committed professional negligence by not properly calculating and/or supervising the amount of dirt that would be required to bring the property to proper grade/elevation, and by failing to have an elevation shot performed after the dirt work was completed and prior to beginning construction on plaintiffs home. Although Mr. Lenard initially testified in his deposition and on the first day of trial that he consulted with Keith Daigle on the calculation of the amount of dirt, he later contradicted his testimony at the second day of trial and testified that he left that up to the dirt contractor. Mr. Lenard also testified on February 21, 2013, that it was usually the dirt contractor that would be responsible for obtaining another elevation shot after the dirt work was completed. His testimony was contradicted by his deposition testimony wherein he testified that his company had the equipment to perform the elevation shot, and that Cletis or Keith Daigle would have been the one to do it. Obviously, it was not done by Keith Daigle the dirt contractor, nor Cletis, an employee of PINNACLE HOME, LLC. He later testified during the defense’s case that it would have been Martine Nocilla, with his company, that would have been responsible Ififor shooting the elevation, because Cletis was not working with him at the time of Mrs: Nunez’s foundation work. Nevertheless, ultimately, as the licensed contractor on the job, it was Mr. Lenard’s responsibility to ensure that both of these things were done and done correctly. Therefore, the court finds that the defendant, ALLEN LENARD, is liable to plaintiff personally pursuant to LSA R.S. 12:1320(D). See Regions Bank v. Ark-La-Tex Water Gardens, L.L.C., 997 So.2d 734, (La.App. 2 Cir. 11/5/08), writ denied, 5 So.3d 119 (La.3/13/2009).

The court further cited La.R.S. 12:1320(D), which provides that:

A. The liability of members, managers, employees, or agents, as such, of a limited liability company organized and existing under this Chapter shall at all times be determined solely and exclusively by the provisions of this Chapter.
B. Except as otherwise specifically set forth in this Chapter, no member, manager, employee, or agent of a limited liability company is liable in such capacity for a debt, obligation, or liability of the limited liability company.
C. A member, manager, employee, or agent of a limited liability company is not a proper party to a proceeding by or against a limited liability company, except when the object is to enforce such a person’s rights against or liability to the limited liability company.
D. Nothing in this Chapter shall be construed as being in derogation of any rights which any person may by law have against a member, manager, employee, or agent of a limited liability company because of any fraud practiced upon him, because of any breach of professional duty or other negligent or wrongful act by such person, or in derogation of any right which the limited liability company may have against any such person because of any fraud practiced upon it by him.

Defendant asserts that the finding of personal liability was incorrectly founded on the fact that Lenard holds a contractor’s license rather than on any affirmative action or failure to act by Lenard. The trial court, however, found personal involvement and inaction by Lenard which it found constituted a “breach of professional duty or other negligent or wrongful act.” Id. This factual finding is based on Lenard’s own testimony, and we will not overturn it absent manifest error. Finding none, we find no error in the trial court’s conclusion that Plaintiff carried her burden of proof in this regard.

^CONCLUSION

Having found no error in the judgment of the trial court, we affirm. Costs of this appeal are assessed to Defendants-Appellants, Pinnacle Homes, L.L.C. and Allen Lenard.

AFFIRMED.

AMY, J., concurs in part, dissents in part, and assigns reasons.

AMY, J.,

concurring in part and dissenting in part.

I join in the majority opinion with regard to the imposition of damages against the defendant limited liability company.

However, I respectfully dissent from the remainder of the majority opinion since I conclude that the trial court erred in finding Mr. Lenard personally hable. In reasons for ruling, the trial court found Mr. Lenard “professionally negligent” and imposed personal liability, concluding that it was Mr. Lenard’s responsibility to ensure the quality of the elevation and foundation work. In my opinion, the record does not support a determination that personal liability was appropriate pursuant to La.R.S. 12:1320(D).

Louisiana Revised Statutes 12:1320(B) broadly provides that:

Except as otherwise specifically set forth in this Chapter, no member, manager, employee, or agent of a limited liability company is liable in such capacity for a debt, obligation, or liability of the limited liability company.

Louisiana Revised Statutes 12:1320(D) thereafter sets forth exceptions to that general pronouncement, providing for an LLC member/manager’s liability upon “any breach of professional duty or other negligent or wrongful act by such person[.]” (Emphasis added.)

Under the facts of this case, I do not see that Mr. Lenard, who testified that he is a licensed contractor, may be considered a “professional” within the context of the statute. Rather, I view the breach of professional duty exception as one that must arise within the context of those professions whose members owe separate, non-contractual duties to their clients. Otherwise, it seems to me that any member/manager/employee of an LLC working within that LLC’s business could be held personally liable upon a finding that he or she was “professionally negligent” as was determined in this case. It is my view that such a broad reaching application would circumvent, and render meaningless, the limitation of liability otherwise provided by La.R.S. 12:1320(B).

Recently, in Ogea v. Merritt, 13-1085 (La.12/10/13), 130 So.3d 888, 900, the supreme court specifically refrained from reaching the question of whether a general contracting license “elevates an individual to the status of a ‘professional’ as contemplated by the legislature[.]” It noted, however, that at the time the LLC statutes were enacted, the term “professional” had a defined meaning within the body of business law and that statutory provisions existed for the creation of a variety of professional corporations. Id. Those professional corporations are designated within Revised Statutes Title 12 and include professional corporate entities for law, medical, dental, accounting, chiropractic, nursing, architecture, optometry, psychology, veterinary medicine, occupational therapy, and social work. Contracting is not included among those professional corporations listed in Title 12. Additionally, and again within the context of the limited liability law, the supreme court observed that the definition of “business” makes a distinction between a “trade” and a “profession.” Id. at 899. See also La.R.S. 12:1301(A)(2). See also La.R.S. 37:2150 (which references the “contracting vocation ”)(emphasis added). Given the lack of indicia that contractors owe separate, non-contractual duties to their clients as members of traditionally accepted professions may, I do not find that the plaintiff has demonstrated that the “breach of professional duty” exception applies to Mr. Lenard in his personal capacity.

Alternatively, La.R.S. 12:1320(D) provides for a cause of action against an LLC member for “other negligent or wrongful act by such person[.]” In analyzing this exception, the supreme court identified four factors to be considered in balancing the limitation of liability provided by the statute while also affording the terms “negligent” and “wrongful” acts their commonly understood meaning:

1) whether a member’s conduct could be fairly characterized as a traditionally recognized tort;
2) whether a member’s conduct could be fairly characterized as a crime, for which a natural person, not a juridical person, could be held culpable;
3) whether the conduct at issue was required by, or was in furtherance of, a contract between the claimant and the LLC; and
4) whether the conduct at issue was done outside the member’s capacity as a member.

Ogea, 130 So.3d at 901. It is the last two factors that I find determinative of this case.

Certainly, in my opinion, the complained-of conduct here (the supervision of his own employees or of subcontractors in the elevation aspect of the construction) was required by or in furtherance of the contract between the plaintiff and the LLC. On this point, the supreme court remarked that, since an LLC is a juridical person, “it follows that if the reason a member is engaged in the conduct at issue is to satisfy a contractual obligation of the LLC, then the member should be more likely to qualify for the protections of the general rule of limited liability[.]” Ogea at 904. In this case, the contract at issue was, in fact, entered into between the plaintiff and the LLC. Further, it is clear from the testimony that the elevation/foundation work was tasked to that company. Thus, in my opinion, Mr. Lenard’s role in the supervision of his own employees and/or subcontractors in that aspect of the home construction was in furtherance of that contract.

As for the final element of whether Mr. Lenard’s conduct arose inside or outside of the LLC, it seems to me that, while perhaps ultimately negligent, that conduct was again within the context of the LLC’s business. There is no indication that Mr. Lenard was acting in his own personal capacity. Although the plaintiff testified that the signature on the underlying contract was that of Mr. Lenard, the contract lists the parties as the plaintiff and the contracting company. It did not list Mr. Lenard personally as the contractor.

Notably, the trial court rendered judgment in this case prior to the supreme court’s release of Ogea. However, the reasons for ruling in this case essentially reveal a finding of poor workmanship for which Mr. Lenard, as contractor, was responsible. Yet, Ogea, 130 So.3d at 905, explains that “a showing of poor workmanship arising out of a contract entered into by the LLC, in and of itself, does not establish a ‘negligent or wrongful act’ under La.R.S. 12:1320(D). To hold that poor workmanship alone sufficed to establish personal liability would allow the exception in La.R.S. 12:1320(D) to negate the general rule of limited liability in La.R.S. 12:1320(B).”

Thus, finding neither of the exceptions of La.R.S. 12:1320(D) applicable, I would reverse the trial court’s imposition of personal liability. I would affirm the remaining aspects of the case.


source: Caselaw Access Project

author: JOY COSSICH LOBRANO, Judge.

license: Public Domain

text:
    STATE of Louisiana v. John R. SHOLAR.
    No. 2013-KA-0163.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 28, 2013.
    Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for Appel-lee/State of Louisiana.
    Katherine M. Franks, Abita Springs, LA, for Defendant/Appellant.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge EDWIN A. LOMBARD, Judge JOY COSSICH LOBRANO).
   JOY COSSICH LOBRANO, Judge.

hThe defendant, John R. Sholar (“Sho-lar”), was convicted of first degree robbery and sentenced to thirty years at hard labor without the benefit of parole, probation or suspension of sentence. He appeals, arguing his sentence is excessive. For the reasons that follow, we affirm.

The State filed a bill of information charging Sholar and Joshua L. McRey-nolds (“McReynolds”), with armed robbery and Sholar’s sister, Tabitha N. Sholar (“Tabitha Sholar”), with simple robbery. The three co-defendants pled not guilty and the trial court granted their motion to sever. Sholar was tried first. A jury found him guilty of first degree robbery and the trial court imposed the thirty-year sentence at hard labor without the benefit of parole, probation or suspension |aof sentence. Sholar filed a motion to reconsider the sentence, which the trial court denied, and then a notice of appeal. Prior to the lodging of this appeal, McReynolds and Tabitha Sho-lar entered plea agreements. McRey-nolds pled guilty to armed robbery and was sentenced to twenty years at hard labor without benefit of parole, probation, or suspension of sentence. Tabitha Sho-lar pled guilty to simple robbery and was sentenced to seven years, suspended, and five years of active probation.

The facts of the case pertinent to this appeal are as follows. Tabitha Sholar drove Sholar and McReynolds to a home located at 2038 Jena Street in New Orleans. Sholar approached the home and knocked on the front door. The victim (“D.L.”) and her fiancé resided at the home. When D.L. heard the knock, she put on a bath robe, went and peered out of the front door window, and saw Sholar. She vaguely recognized him but did not know his name. Sholar communicated to D.L. that he owed her fiancé money. When D.L. opened the door, a second, masked man (McReynolds), forced his way into the home, and Sholar followed.

Once inside, the masked man wielded a gun and pistol-whipped D.L. The two men then asked her about a safe in the house. They told D.L. to get on the ground, tied her up with a dog’s leash, and the masked man pistol-whipped her again. At one point, the men pulled D.L.’s robe above her head to partially obscure her vision. D.L. testified that the two men addressed her by her first name. |sThey pointed a gun at her head, threatened to kill her, and insisted that she tell them where the safe was located. D.L. replied that the safe was in the closet. The men located the safe, found a bolt cutter in the home’s toolbox, and cut the metal cable which secured the safe in the closet. D.L. told them she did not know the combination to the safe, and they again threatened to kill her. D.L. testified that Sholar held her down by sitting on top of her and beating her buttocks, while the masked man ransacked the home. Sholar removed her underwear, unzipped his pants, and touched her in a sexual manner. Once the men obtained the safe, they ordered D.L. to stay down on the ground, and then they left house together. After their departure, D.L. finagled her way out of the dog leash and dialed 911.

N.O.P.D. Detective Bryan Patrick Mul-vey (“Det. Mulvey”) went to the scene, interviewed D.L., and generated the initial incident report. He observed that the home had been ransacked with furniture and other objects in disorder. He also noticed blood on the floor. Det. Mulvey reported that D.L. had a lacerated forehead, a split lip, and a bloody face; he described her as being visibly upset, shaken, agitated, and afraid.

N.O.P.D. Detective Guy Swalm (“Det. Swalm”), the lead detective on the case, testified that he went to the crime scene shortly after the incident. At that time, D.L. provided a description of the unmasked man and also drew a sketch of him. Later, D.L. and her fiancé gave him the name of Tabitha a/k/a “Nikki” Sholar, because Tabitha Sholar was one of the few people who knew that D.L.’s fiancé would not be home the day of the crime. Det. Swalm found Tabitha Sholar |4on the social networking site Facebook.com. Through further internet searching, Det. Swalm discovered that Tabitha Sholar had a brother whose photo matched D.L.’s description of the unmasked robber. He ascertained that Sholar resided in the Waveland, Mississippi area and obtained Sholar’s most recent booking photo from authorities there. Det. Swalm later presented a six person photographic line-up to D.L., who identified Sholar as the person who had robbed her. Thereafter, the three suspects were arrested.

A review of the record reveals no errors patent.

In the sole assignment of error, Sholar contends that the thirty-year sentence imposed by the trial court is unfairly excessive sentence for two reasons. First, Sho-lar emphasizes that McReynolds received a more lenient sentence even though he acted as the masked gunman, pistol-whipped the victim twice, and pled guilty to the more serious crime of armed robbery. Second, Sholar claims the State had offered him a plea bargain with a ten-year sentence that he rejected because it hinged on his testifying against his sister.

Excessive sentences are prohibited under the Eighth Amendment of the Unites States Constitution and La. Const. Art. I, § 20. A sentence may be constitutionally excessive even when the sentence falls within the range permitted by statute. See State v. Sepulvado, 367 So.2d 762, 767 (La.1979). For a sentence to be found excessive, it must be “so grossly disproportionate to the crime committed, in light of the harm caused to society, as to shock our sense of justice.” State v. Cann, 471 So.2d 701, 703 (La.1985). The trial court is granted broad sentencing discretion, and we will not overturn the district court’s judgment absent | san abuse of that discretion. See State v. Walker, 00-3200, p. 2 (La.10/12/01), 799 So.2d 461, 462.

To determine whether the trial court has abused its broad sentencing discretion, we first discern whether the court took into account the sentencing criteria listed in La.C.Cr.P. art. 894.1. See Sepulvado, 367 So.2d at 767-768. The trial court, while not required to expound on all factors listed in Article 894.1, is required to take into account both aggravating and mitigating factors. See State v. Square, 433 So.2d 104, 110 (La.1983). Our purpose is not to enforce mechanical compliance by a sentencing judge, but to ensure that there is a factual basis for the sentence imposed. See State v. Batiste, 06-0875, p. 18 (La.App. 4 Cir. 12/20/06), 947 So.2d 810, 820. If we find the trial court properly articulated its reasons for the defendant’s sentence, we then determine whether the defendant’s sentence was tailored to both the severity of his crime and his personal situation. See State v. Spencer, 374 So.2d 1195 (La.1979).

The issue is whether McReynolds’s plea agreement and more lenient sentence merits reversal of the trial court’s judgment sentencing Sholar to thirty years. Sholar cites State v. Quimby, 419 So.2d 951 (La.1982) and points out that an incongruity in sentences between co-defendants charged with similar crimes arising out of the same factual scenario should be considered. However, the Supreme Court has said that incongruity is “only a factor to be considered along with all other appropriate considerations when there is no reasonable basis in the record for the disparity.” 419 So.2d at 962.

The Supreme Court in State v. Weary, 2003-3067 (La.4/24/06), 931 So.2d 297 explains:

IfiAs a general rule, the fact that a co-defendant has received a more lenient sentence does not necessarily indicate that the penalty imposed on the defendant is excessive. State v. Tate, 2001-1658 p. 26 (La.5/20/03), 851 So.2d 921, 940, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004). “Disparities are inherent in a system where punishment is tailored to fit the defendant and the crime. The Equal Protection Clause only dictates that all defendants be afforded the same sentencing considerations and does not compel any particular result.” State v. Day, 414 So.2d 349, 352 (La.1982).

2003-3067, p. 42 (La.4/24/06), 931 So.2d 297, 324.

In this case, the trial court sentenced Sholar to a term within the sentencing range of not less than three and not more than forty years. At the sentencing hearing, the trial court noted several aggravating factors which it considered in imposing the thirty year sentence: Sholar’s presence during the pistol-whipping; his decision to remain in the house after McReynolds’s violent actions; his molestation of D.L.; his violation of D.L. in the sanctity of her own home; and his lack of remorse and unwillingness to take responsibility for his actions. We find these factors support the sentence imposed by the trial court, and the fact that McReynolds received a more lenient sentence does not merit a reversal of Sholar’s sentence.

Furthermore, Louisiana jurisprudence supports the imposition of a thirty-year sentence for first degree robbery. In State v. Wallace, 522 So.2d 1184 (La.App. 4th Cir.1988), the defendant entered a French Quarter store with a gun, shouted that he was there for a stick-up, and shot the co-proprietor twice. The defendant was convicted of first degree robbery for which he was sentenced to forty years, and attempted second degree murder for which he was sentenced to thirty years, to run concurrently. In State v. Mitchell, 35,970 (La.App. 2 Cir.5/8/02), 818 So.2d 807, the defendant robbed a dollar store, grabbed the victims at gun point, held the cocked gun to their heads, and threatened to kill them. The defendant was convicted of first degree robbery and sentenced to thirty years. These cases, along with the trial court’s enunciated sentencing factors, substantiate the factual bases for the sentence imposed.

Moreover, McReynolds’s violent actions of wielding a firearm and battering D.L. have no bearing on Sholar’s harsher sentence. In State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1, the defendant and co-defendant robbed a jewelry store. Although the defendant pointed a gun at people inside the store and then drove the getaway car, during the chase that followed the co-defendant fired two shots at their pursuers from the car. The defendant challenged his sentence as excessive because his co-defendant received a lesser sentenced, despite shooting a gun. The defendant was convicted of armed robbery and sentenced to forty years. The co-defendant was convicted of armed robbery and two counts of second degree murder. He was sentenced to twenty years on each count; the three sentences were ordered to run consecutively.

When the co-defendant was sentenced, Louisiana felony sentencing guidelines were in effect and provided for a maximum of fifteen years, which the trial court exceeded by imposing a twenty-year sentence. Sentencing guidelines had been displaced in Louisiana when the trial court sentenced the defendant. The trial court emphasized that, despite the co-defendant’s more egregious actions, the defendant was a principal to the crime and “to that extent [the defendant] share[s] equally to the extent of this robbery.” 2001-2574, pp. 5-6, 839 So.2d at 4. The 1 sSupreme Court, reversing the appellate court, concluded the trial court did not abuse its discretion in imposing the forty years sentence. Id. at 7, 839 So.2d at 4.

At the sentencing hearing, the trial court pointed out that Sholar lured D.L. to the front door and convinced her to open it and, although unarmed, he remained at the house after McReynolds wielded his gun and pistol-whipped her. The trial court emphasized that Sholar sexually molested D.L. and humiliated her by sitting on her back and beating her buttocks like a set drums. Sholar attempts to shirk responsibility by claiming that McReynolds somehow forced him to act criminally. However, the record does not substantiate this claim. D.L. testified that she never observed McReynolds directing or coercing Sholar into tying her up, holding her down, or molesting her. In fact, she testified that both Sholar and McReynolds openly discussed whether or not to kill her. Clearly, Sholar’s own actions support the sentence imposed by the trial court.

Finally, Sholar disputes his sentence, claiming it is excessive in comparison to the minimum ten year sentence offered by the State had he pled guilty to armed robbery without a firearm enhancement. Sholar alleges that he rejected the plea because the agreement hinged upon his testifying against his sister. This argument lacks merit. There is an inherent risk in either accepting or rejecting a plea agreement. Sholar’s rejection of the plea agreement carried the inherent risk of receiving a harsher sentence upon conviction by a jury.

|nIn summary, we find the trial court did not abuse its discretion by sentencing Sho-lar to thirty years at hard labor without the benefits of parole, probation, or suspension of sentence.

Accordingly, Sholar’s conviction and sentence are affirmed.

AFFIRMED.

      .La. R.S. 14:64.1 provides:
      A. First degree robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, when the offender leads the victim to reasonably believe he is armed with a dangerous weapon.
      B. Whoever commits the crime of first degree robbery shall be imprisoned at hard labor for not less than three years and for not more than forty years, without benefit of parole, probation or suspension of imposition or execution of sentence.

      . See La. R.S. 14:64.

      . See La. R.S. 14:65.

      . Due to the nature of the facts, we refer to the victim in this case by her initials. See La. R.S. 46:1844(W).

      . The First Circuit Court of Appeal concluded that the evidence in the record did not justify the great disparity in the co-defendants’ sentences. State v. Smith, 00-2283 (La.App. 1 Cir. 6/22/01), 800 So.2d 446.


author: WELCH, J.

text:
    In the Matter of B.L.M. Applying for Intrafamily Adoption of S.J.W. and A.E.W.
    No. 2013 CJ 0448.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 1, 2013.

      Erik L. Burns, Denham Springs, LA, for Appellant, M.P.W.
    Mary E. Heck Barrios, Denham Springs, LA, for Appellees, B.L.M and L.P.M.
    Before WHIPPLE, C.J., WELCH, and CRAIN, JJ.
   WELCH, J.

|2M.P.W., the biological father of the minor children, S.J.W. and A.E.W., appeals a judgment of the juvenile court granting the petition for intrafamily adoption of the minor children, which was filed by the children’s step-father, B.L.M. Finding no error in the judgment of the juvenile court, we affirm.

FACTUAL AND PROCEDURAL HISTORY

L.P.W. and M.P.W. were previously married and during their marriage, they had two-children: S.J.W., who was born on October 2, 2008, and A.E.W., who was born on October 18, 2010. On January 23, 2012, in the divorce proceedings, L.P.W. and M.P.W. entered into a stipulated judgment that, among other things, terminated the custody and visitation rights of M.P.W.; awarded L.P.W. the sole care, custody, and control of the minor children; and enjoined M.P.W. from contacting L.P.W. or the minor children. In addition, M.P.W. agreed to execute all documents necessary to effect the voluntary surrender of his parental rights of the minor children so as to free them for adoption. In exchange, L.P.W. relinquished any claims for support (both past and future) for herself or the minor children from M.P.W. and dismissed her pending rule for contempt against L.P.W. A judgment to this effect was signed on March 6, 2012.

|3On April 14, 2012, L.P.W. married B.L.M. Apparently, M.P.W. had signed the necessary documentation to effect the voluntary surrender of his parental rights of the minor children; however, documentation executed was not in authentic form as required by La. Ch.C. art. 1122. M.P.W. then subsequently refused to execute another act of surrender. Instead, on June 22, 2012, he filed a petition seeking to annul the stipulated judgment.

On July 25, 2012, B.L.M filed a petition for intrafamily adoption of his stepchildren, S.J.W. and A.E.W. L.P.W. joined in the petition. The petition alleged that L.P.W. and B.L.M had married, that they had resided together with the minor children since the time of their marriage, and that the minor children had a loving relationship with B.L.M. The petition also alleged that L.P.W. had been awarded sole custody of the children pursuant to the stipulated judgment, and although M.P.W. previously agreed but subsequently refused to execute a notarized surrender of his parental rights of the children, M.P.W.’s consent to the adoption was not necessary because he had, without just cause, failed to: communicate (or attempt to communicate) with and provide financial support for A.E.W. since his birth (October 18, 2010); communicate (or attempt to communicate) with S.J.W. for a period in excess of six months; and provide financial support for S. J.W. for a period in excess of one year. As such, B.L.M. alleged that it was in the children’s best interest to be adopted by him, as he could provide them with the continuation of a stable and loving home to which they had grown accustomed to, and provide them with reliable financial support and security.

LM.P.W. filed an objection to the petition on September 14, 2012, on the basis that he was precluded from contacting the children by virtue of the January 23, 2012 judgment, which he was seeking to annul, and that it was not in the children’s best interest for the adoption to occur. On October 5, 2012, M.P.W. filed a peremptory exception raising the objection of no right of action arguing that when B.L.M. filed his original petition on July 25, 2012, he had not had legal or physical custody of the children for at least six months prior to filing the petition for adoption, as required by La. Ch.C. art. 1243(3). However, on October 15, 2012, B.L.M. filed a supplemental and amended petition for in-trafamily adoption, which alleged that the children had resided in the home of B.L.M. in excess of six months (as of the date of the supplemental and amended petition) and re-averred all of the allegations of the original petition. Again, M.P.W. filed an objection to this petition on the same basis as the original petition.

After a hearing on November 2, 2012, the juvenile court determined that the consent of M.P.W. to the adoption was not necessary and rendered judgment granting the intrafamily adoption of S.J.W. and A.E.W. by B.L.M. The final decree or judgment of adoption was signed on November 14, 2012, and it is from this judgment that M.P.W. appeals. On appeal, M.P.W. contends that the trial court erred in finding: (1) that his consent to the intrafamily adoption was not necessary and (2) that it was in the best interest of the minor children for the adoption to take place.

I ¿LAW AND DISCUSSION

Among the types of adoption authorized by the Louisiana Children’s Code is the intrafamily adoption, which refers to adoption by a stepparent or certain other relatives of the child. See La. Ch.C. arts. 1170 and 1243. Generally, a parent’s consent is required for an intrafamily adoption. La. Ch.C. art. 1193. However, pursuant to La. Ch.C. art. 1245, consent of a parent is not necessary if the petitioner proves that the parent has forfeited his right to consent as follows:

A. The consent of the parent as required by Article 1193 may be dispensed with upon proof by clear and convincing evidence of the required elements of either Paragraph B or C of this Article at the hearing on the opposition and petition.
B. When a petitioner authorized by Article 1243 has been granted custody of the child by a court of competent jurisdiction and any one of the following conditions exists:
(1) The parent has refused or failed to comply with a court order of support without just cause for a period of at least six months.
(2) The parent has refused or failed to visit, communicate, or attempt to com-munieate with the child without just cause for a period of at least six months. C. When the spouse of a stepparent petitioner has been granted sole or joint custody of the child by a court of competent jurisdiction or is otherwise exercising lawful custody of the child and any one of the following conditions exists:
(1) The other parent has refused or failed to comply with a court order of support without just cause for a period of at least six months.
(2) The other parent has refused or failed to visit, communicate, or attempt to communicate with the child without just cause for a period of at least six months.
(Emphasis added.)

The party petitioning the court for adoption carries the burden of proving a parent’s consent is not required under the law. In re J.A.B., 2004-1160 (La.App. 1st Cir.9/17/04), 884 So.2d 678, 681, writ denied, 2004-2963 (La.12/14/04), 888 So.2d 848. To constitute “just cause,” a parent’s failure to support, visit, or communicate with his children must be due to factors beyond his control. Id.

In this case, B.L.M. (and L.P.W.) asserts that, pursuant to La. Ch.C. art. 1245(C)(2), M.P.W.’s consent was not necessary for the intrafamily adoption of S.J.W. and A.E.W. because M.P.W. had failed to visit, communicate, or attempt to communicate with either S.J.W. or A.E.W. for a period of more than six months. M.P.W. does not dispute that he failed to visit or communicate with the children for more than six months; however, he claims that his failure to do so was with “just cause,” given that the January 23, 2012 consent judgment (in which he gave up all his visitation and parental rights and which he claims is null) precluded him from contacting his children.

M.P.W. first argues that his act of filing the petition to annul the January 23, 2012 consent judgment demonstrated an attempt to communicate or visit with the children, thereby interrupting the six-month time period. However, similar arguments have been rejected by the courts of this state. See In re Intra Family Adoption of A.G.T., 06-0805 (La.App. 5th Cir.3/13/07), 956 So.2d 641, 648 writ denied, 2007-0783 (La.5/4/07), 956 So.2d 611, and In re C.E.M., III, 2009-0787 (La.App. 5th Cir.1/26/10), 31 So.3d 1138, 1143 (both holding that filing a rule for visitation does not interrupt the six-month time period set forth in La. Ch. C. art. 1245(C)(2)). Accordingly, we find that the mere filing of the petition to annul the January 23, 2012 consent judgment was insufficient to interrupt the six-month time period set forth in La. Ch.C. art. 1245(C)(2).

M.P.W. next argues that he was precluded from contacting his children pursuant to the January 23, 2012 consent judgment, which constituted just cause 17for not attempting to visit or communicating with his children. In support of this argument, M.P.W. relies on the concurring opinion in In re J.A.B., 884 So.2d at 687-688 (Downing, J., concurring).

In In re J.A.B., 884 So.2d at 680, this court was faced with the issue of whether or not a consent judgment, wherein a father obtained a waiver of his child support obligation in exchange for his agreement not to visit or communicate with the minor child for two years while preserving joint custody rights under the prior consent judgment, served as “just cause” excusing the father’s failure to “visit, communicate, or attempt to communicate with the child, ... [for] a period of more than 6 months,” thereby deeming his consent to the intra-family adoption necessary. After examining the applicable law and public policy behind a parent’s duty of support, this court specifically rejected the father’s argument that a reservation of his legal rights to joint custody of a child, whom he voluntarily agreed not to visit in exchange for a waiver of his monthly child support obligation for a period of over two years, could serve as “just cause” excusing his failure to visit, communicate, or attempt to communicate with the child. This court further rejected the father’s claim that his compliance with the consent judgment served as “just cause” pursuant to La. Ch.C. art. 1245(C)(2). In doing so, this court held that the father “voluntarily relinquished his right to see and communicate with his child in return for a financial benefit, ie., relief from his obligation to provide financial support for his child. A parent’s financial benefit cannot constitute ‘just cause’ for failing to visit or communicate with his child.” In re J.A.B., 884 So.2d at 682-683.

However, the concurring judge opined that compliance with a judicial decree may, under certain circumstances, constitute just cause for not visiting or communicating with a child. Specifically, it was noted that non-compliance with a court order was grounds for contempt and that there may be circumstances in Rwhich court-ordered non-communication with a child for extended periods might be justified. Thus, the concurring judge believed that whether compliance with a consent judgment constituted just cause should be determined on a case-by-case basis. In re J.A.B., 884 So.2d at 687-688 (Downing, J., concurring).

Under this rationale, M.P.W. claims that his compliance with the January 23, 2012 consent judgment constituted “just cause” pursuant to La. Ch.C. art. 1245(C)(2), because otherwise, his non-compliance with the judgment would have resulted in contempt charges against him. M.P.W. further points out that he requested visitation on September 25, 2012 through a letter sent by his counsel to counsel for L.P.W. and B.L.M. Interestingly, however, this request establishes that M.P.W. in fact was capable of attempting to visit or communicate with his children (ie., by sending a request to opposing counsel) without being in contempt of the January 23, 2012 consent judgment.

In this case, the record establishes that M.P.W. failed to visit, communicate, or attempt to communicate with his children from the time of the January 23, 2012 consent judgment until the September 25, 2012 letter by his counsel to counsel for L.P.W. and B.L.M, which was a period of more than eight months. Notably, M.P.W. could have sent the same letter to counsel for L.P.W. and B.L.M. requesting visitation with the children within the six month time period (and not have faced contempt charges); however, he failed to make such effort, or any other effort, toward communicating, visiting, or attempting to communicate with S.J.W. and A.E.W. within the statutorily required time. Thus, M.P.W.’s continuous failure to attempt to visit or communicate with the children was voluntary on his part and due to factors within his control. See In Re J.A.B., 884 So.2d at 683. Accordingly, we find no error in the juvenile court’s apparent determination that M.P.W. failed to visit or communicate, or attempt to communicate with S.J.W. and A.E.W. without just cause for a period of at least six months, and thus, that |aM.P.W.’s consent was not necessary for the intrafamily adoption by B.L.M. See La. Ch.C. art. 1245(C)(2).

However, even where the other parent’s consent is obviated by failure to visit, the court must also consider what is in the best interest of the child in determining whether the adoption should proceed. In re J.A.B., 884 So.2d at 683. In fact, the primary consideration in adoption proceedings is whether the adoption is in the best interest of the child. Id.

Louisiana Children’s Code article 1255 provides:
A. The court, after hearing and after taking into consideration information from all sources concerning the intra-family adoption, may enter a final decree of adoption, or it may deny the adoption. The basic consideration shall be the best interests of the child.
B. When a court has granted custody to either the child’s grandparents or his parent married to the stepparent petitioner, there shall be a rebuttable presumption that this adoption is in the best interests of the child.

The courts have recognized that factors must be considered when determining the best interest of the child. In Re J.A.B., 884 So.2d at 684. The most important factors are the child’s relationships with his step-father and his natural father. Id. It is not enough to examine the love and home environment provided by the petitioner/step-parent. Id. The court must also examine the depth of the closeness of the child’s ties with the non-custodial natural parent, and the effect of which the loss of this relationship would have on the child. Id. Further, the court must consider the seriousness and finality of the severing of the relationship between the parent and child, as well as the importance and benefit to the child of a continued relationship with the parent. Id.

In this case, the juvenile court concluded that it was in the best interest of S.J.W. and A.E.W. for the intrafamily adoption by B.L.M. to take place. We have thoroughly reviewed the record, and considering the facts and evidence presented at the hearing, we find that the evidence overwhelmingly supports the eon-clusion |inof the juvenile court that the proposed adoption was in the children’s best interest. M.P.W. agreed, in open court and with the assistance of counsel, to terminate his custodial and visitation rights and to execute an act of surrender of his parental rights to both S.J.W. and A.E.W. M.P.W. executed the act of surrender, although it was not in authentic form as required by La. Ch.C. art. 1122.

The record does not establish that there is any “depth of closeness” between M.P.W. and A.E.W., since M.P.W. has never visited or communicated with A.E.W. since his birth on October 18, 2010. M.P.W. sought to disavow paternity of A.E.W., but apparently agreed to dismiss that action following the results of a paternity test. However, the testimony established that B.L.M. is the only father that A.E.W. has ever known.

With regard to S.J.W., the record reveals that M.P.W. made no efforts at visiting or communicating with S.J.W. from the time of the January 23, 2012 consent judgment until a single letter was sent by his counsel to counsel for L.P.W. and B.L.M. nearly eight months later on September 25, 2012. The record also establishes that M.P.W. was in arrears on support and had contempt proceedings pending against him relating to violations of the custodial decree of S.J.W., and that M.P.W. agreed to voluntarily terminate his custodial and visitation rights with the children and to execute a voluntary act of surrender in exchange for relief from all past and future support obligations, as well as the dismissal of the contempt charges against him.

Finally, Dr. Alicia Pellegrin, an expert in the field of clinical psychology, opined that based upon the history of the family, her observations of the interactions of the family, and her professional experience, that the intrafamily adoption of S.J.W. and A.E.W. by B.L.M. was in the children’s best interest. Additionally, she testified that both S.J.W. and A.E.W. recognize B.L.M. as their primary male care-giver and parent. Thus, the judgment of the juvenile court |ngranting the intrafamily adoption of S.J.W. and A.E.W. by B.L.M. is neither manifestly erroneous nor clearly wrong.

CONCLUSION

For all of the above and foregoing reasons, the November 14, 2012 judgment of the juvenile court granting the intrafamily adoption of S.J.W. and A.E.W. by B.L.M. is affirmed.

All costs of this appeal are assessed to the appellant, M.P.W.

AFFIRMED.

      . The Twenty-First Judicial District Court exercises original juvenile jurisdiction for its territorial jurisdiction pursuant to La. Ch.C. art. 302(2). As a court exercising juvenile jurisdiction, it has exclusive original jurisdiction over this adoption proceeding. See La. Ch.C. arts. 303 and 1180.

      . The minor children, their biological parents, and their step-parent are referred to by their initials to preserve their anonymity in this confidential proceeding.

      .L.P.W. is now ''L.P.M.” Although the petition for intrafamily adoption identifies her by her current name, L.P.M., in order to avoid confusion with the related appeal herein, M.P.W. v. L.P.W., 2013-0366 (La.App. 1st Cir. 11/1/13), 136 So.3d 37, 2013 WL 5872041, we will refer to her herein by her former initials, L.P.W.

      . L.P.W. was pregnant with A.E.W. when the divorce proceedings between L.P.W. and M.P.W. commenced, and she gave birth to the child before the judgment of divorce was granted. Almost a year after A.E.W.'s birth, M.P.W. filed a petition seeking to disavow paternity of A.E.W. M.P.W. eventually dismissed the petition to disavow after obtaining the paternity test results.

      . M.P.W.⅛ petition to annul the stipulated judgment was dismissed pursuant to a motion for summary judgment filed by L.P.W. The dismissal of that petition was appealed in and affirmed by this court in the related appeal, M.P.W. v. L.P.W., 2013-0366 (La.App. 1st Cir 11/1/13), 136 So.3d 37, 2013 WL 5872041.

      . In the original petition, B.L.M. acknowledged that the children had not lived in his home for the requisite period of time required by La. Ch.C. art. 1243, as B.L.M. and L.P.W. did not live together until after their marriage. Therefore, an “interlocutory decree” of adoption was requested.

      . This objection was not filed within the time period prescribed by La. Ch. C. art. 1244.1.

      . At the hearing, the juvenile court also overruled the peremptory exception raising the objection of no right of action that M.P.W. had filed in response to the original petition, as the juvenile court found that the basis for the objection was cured by the supplemental and amended petition. See La. C.C. P. art. 934. Because the record reflects that the children had been in the physical custody of B.L.M. for a period in excess of six months on the date that the supplemental and amended petition for intrafamily adoption was filed, we find no error in the juvenile court's ruling in this regard. See La. C.C.P. art. 927(B).

      . M.P.W. also argues on appeal that the juvenile court “erred in not ruling that the [supplemental and amended petition] did not relate back to the original date of filing." However, since the requirements of law for intrafamily adoption were met by the time the supplemental and amended petition was filed, see n.7, the issue of whether the petition "relates back” is not relevant. Rather, the only relevant issue is whether M.P.W. had "refused or failed to visit, communicate, or attempt to communicate with the children] without just cause for a period of at least six months.” See La. Ch.C. art. 1245(C)(2).

      . In M.P.W. v. L.P.W., 2013-0366 (La.App. 1st Cir. 11/1/13), 136 So.3d 37, 2013 WL 5872041, we affirmed the dismissal of M.P.W.'s claim that the January 23, 2012 stipulated judgment was null.


author: CRAIN, J.

text:
    STATE of Louisiana v. Jeremy John PASSOW.
    No. 2013 KA 0341.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 1, 2013.

      Joseph Waitz, Jr., District Attorney, Jason Lyons, Assistant District Attorney, Houma, Louisiana, for Plaintiff/Appellee, State of Louisiana.
    William G. Yates, Houma, Louisiana, for Defendant/Appellant, Jeremy John Pas-sow.
    Before WHIPPLE, C.J., WELCH, and CRAIN, JJ.
   CRAIN, J.

| ;>The defendant, Jeremy John Passow, pled guilty to third-offense driving while intoxicated (DWI) pursuant to State v. Crosby, 338 So.2d 584 (La.1976), and was sentenced to five-years imprisonment at hard labor. He now appeals challenging the trial court’s denial of his motion to quash two of the predicate offenses. We affirm the conviction and sentence, as amended to comply with the mandatory sentencing provisions of Louisiana Revised Statute 14:98D(l)(a).

PROCEDURAL HISTORY

The defendant was charged by amended bill of information with one count of fourth-or-subsequent-offense DWI, a violation of Louisiana Revised Statute 14:98. He pled not guilty. He then moved to quash the predicate convictions used to support the charge of DWI fourth-or-subsequent offense. Following a hearing, the trial court granted the motion as to two of the predicate convictions and denied the motion as to two others. The bill of information was then amended to charge the defendant with third-offense DWI. The defendant pled guilty pursuant to State v. Crosby, reserving his right to seek review of the partial denial of the motion to quash. He was sentenced to five years at hard labor.

MOTION TO QUASH

The defendant argues the trial court erred in denying his motion to quash the two predicate convictions, namely a January 9, 2007 DWI conviction in Vermilion Parish under docket number 2006-T2693, and a June 17, 2009 DWI conviction in Lafayette Parish under docket number 2008-9157. He argues that he received suspended sentences for those offenses under Louisiana Code of Criminal Procedure article 894, and because there was no “valid sentence” in either case, the predicates should have been quashed.

Prior to amendment by 2012 La. Acts, No. 670 § 1, Article 894 pertinently | (¡provided:

A. (1) Notwithstanding any other provision of this Article to the contrary, when a defendant has been convicted of a misdemeanor, ... the court may suspend the imposition or the execution of the whole or any part of the sentence imposed, provided suspension is not prohibited by law, and place the defendant on unsupervised probation or probation supervised by a probation office, agency, or officer designated by the court, other than the division of probation and parole of the Department of Public Safety and Corrections, upon such conditions as the court may fix. Such suspension of sentence and probation shall be for a period of two years or such shorter period as the court may specify.
B. (1) When the imposition of sentence has been deferred by the court, as authorized by this Article, and the court finds at the conclusion of the period of deferral that the defendant has not been convicted of any other offense during the period of the deferred sentence, and that no criminal charge is pending against him, the court may set the conviction aside and dismiss the prosecution. However, prior to setting aside any conviction and dismissing the prosecution for any charge for operating a vehicle while intoxicated, the court shall require proof in the form of a certified letter from the Department of Public Safety and Corrections, office of motor vehicles, that the requirements of Paragraph A(5) of this Article have been complied with.
(2) The dismissal of the prosecution shall have the same effect as an acquittal, except that the conviction may be considered as a first offense and provide the basis for subsequent prosecution of the party as a multiple offender. Discharge and dismissal under this provision may occur only once with respect to any person during a five-year period. However, discharge and dismissal under this provision for the offense of operating a vehicle while intoxicated may occur only once with respect to any person during a ten-year period. [Emphasis added.]

When a trial court denies a motion to quash, factual and credibility determinations should not be reversed in the absence of a clear abuse of the trial court’s discretion. See State v. Odom, 02-2698 (La.App. 1 Cir. 6/27/03), 861 So.2d 187, 191, writ denied, 08-2142 (La.10/17/03), 855 So.2d 765. However, a trial court’s legal findings are subject to a de novo standard of review. See State v. Smith, 99-0606, 99-2015, 99-2019, 99-2094 (La.7/6/00), 766 So.2d 501, 504.

In support of the use of the Vermilion Parish conviction, the State introduced documentation showing that on January 9, 2007, the defendant pled guilty to first-offense DWT “under [Article] 894,” and was sentenced to ten days parish jail, suspended, on condition he serve six months supervised probation, subject to certain conditions.

In support of the use of the Lafayette Parish conviction, the State introduced documentation indicating that on June 17, 2009, the defendant pled nolo contendere to first-offense DWI “under Article 894,” and was sentenced to six months in the parish jail, suspended, on the condition that he serve twelve months supervised probation, subject to certain conditions.

For both the Vermillion Parish and the Lafayette Parish convictions, the State established that the defendant pled guilty and was sentenced under Article 894. Both were final convictions because a sentence was imposed in each case. There is no support in the law for the defendant’s argument that a suspended sentence is not a final conviction and sentence. Further, Article 894 expressly provides that even if a conviction is eventually dismissed thereunder, it “may be considered as a first offense and provide the basis for subsequent prosecution of the party as a multiple offender.” La.Code Crim. Pro. art. 894B(2) (prior to amendment by 2012 La. Acts No. 670, § 1). See also State v. Finch, 31,888 (La.App. 2 Cir. 5/5/99), 733 So.2d 716, 727. The trial court correctly denied the motion to quash. This assignment of error is without merit.

REVIEW FOR ERROR

Louisiana Revised Statute 14:98D(l)(a) provides that on a conviction for 15third-offense DWI, “the offender shall be imprisoned with or without hard labor for not less than one year nor more than five years and shall be fined two thousand dollars. One year of the sentence of imprisonment shall be imposed without benefit of probation, parole, or suspension of sentence.” (emphasis added). The defendant was sentenced to five-years imprisonment at hard labor. Although not specifically stated by the trial court, the sentence is deemed to contain the restriction of probation, parole, or suspension of sentence. La.Rev.Stat. 15:301.1; State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790, 799. However, since the sentence does not include the mandatory fine, it does not comply with the legislatively mandated sentencing range set forth in the Section 14:98D(l)(a) and is illegally lenient.

The judiciary’s role is to select an appropriate sentence within the range fixed by the Legislature, so long as the sentence is not constitutionally excessive. See State v. Rome, 96-0991 (La.7/1/97), 696 So.2d 976, 978; State v. Dorthey, 623 So.2d 1276, 1280-81 (La.1993). An illegal sentence may be corrected at any time by an appellate court on review. La.Code Crim. Pro. art. 882A. The defendant has no constitutional right to an illegally lenient sentence. State v. Williams, 800 So.2d at 797. Because there is no sentencing discretion relative to the $2000.00 fine, and to conform with the legislatively mandated provisions of Section 14:98D(l)(a), we amend the defendant’s sentence to five years at hard labor without benefit of probation, parole, or suspension of sentence for one year and a fine of $2,000.00.

CONVICTION AFFIRMED; SENTENCE AMENDED, AND AS AMENDED, AFFIRMED.

      . "A sentence imposed upon a plea of nolo contendere is a conviction and may be considered as a prior conviction and provide a basis for prosecution or sentencing under laws pertaining to multiple offenses, and shall be a conviction for purposes of laws providing for the granting, suspension or revocation of licenses to operate motor vehicles," La.Code Crim. P. art. 552(4).


author: THERIOT, J.

text:
    STATE of Louisiana v. Earl Wellington JOHNSON.
    No. 2013 CA 0133.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 1, 2013.

      Joseph L. Waitz, Jr., District Attorney, Ellen Daigle Doskey, Assistant District Attorney, Houma, LA, for Plaintiff/Appel-lee, State of Louisiana.
    Anthony T. Marshall, Gonzales, LA, for Defendant/Appellant, International Fidelity-
    Before KUHN, HIGGINBOTHAM, and THERIOT, JJ.
   THERIOT, J.

| ¡.The appellant, International Fidelity Insurance Company (International), seeks reversal of a judgment denying its motion to set aside a bond forfeiture or to grant its petition for nullity. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On February 1, 2010, Earl Wellington Johnson (Johnson) was charged with aggravated flight from an officer, disregarding a stop sign, and driving without a license. Johnson’s bond amount was fixed at $25,000.00. Johnson’s bond was posted by appellant, International. The bond agreement provided that Johnson promised to appear before the court through pronouncement of sentence.

On March 12, 2010, Johnson appeared in district court and tendered a plea of “NOT GUILTY.” On June 28, 2010, Johnson appeared in district court and upon being arraigned on an amended bill of information, tendered a plea of “NOT GUILTY.” The district court ordered a pretrial set for July 15, 2010, a plea date set for August 5, 2010 and a trial set for August 16, 2010. On August 16, 2010, Johnson was called for trial and failed to answer to his name. The Assistant District Attorney for the 32nd Judicial District Court (State) moved for and the district court granted a bench warrant and a judgment of bond forfeiture.

|sOn October 18, 2010, Johnson appeared in court with his attorney. Pursuant to the State’s motion, the district court ordered the previously-issued bench warrant and the judgment of bond forfeiture recalled and cancelled. Upon re-arraignment, Johnson tendered a plea of “GUILTY” to the charge of aggravated flight from an officer. However, the district court did not accept Johnson’s guilty plea on October 18, 2010. The district court scheduled a hearing for October 22, 2010, and stated that it would make a determination as to whether or not to accept Johnson’s guilty plea on that date and, if necessary, impose sentence. The district court instructed Johnson that if he was arrested for another offense before his October 22, 2010 court date, or if he failed to appear on October 22, 2010, the district court would reject the guilty plea and require Johnson to go to trial.

On October 22, 2010, Johnson failed to appear in court. The district court ordered a bench warrant and judgment of bond forfeiture. The Terrebonne Parish Clerk of Court’s office mailed the notice of bond forfeiture on November 8, 2010. On February 7, 2011, International, through its agent, Richmond Boyd, Jr., filed a Motion to Set Aside the Forfeiture or Grant Nullity. The motion was argued and the district court denied the motion. It is this denial that International appeals.

ASSIGNMENT OF ERROR

International avers that the district court erred by not setting aside and annulling the judgment of bond forfeiture.

DISCUSSION

The general rule is that bond forfeitures are not favored State v. Bailey, 567 So.2d 721, 724 (La.App. 2 Cir.1990). A bond forfeiture is basically a civil proceeding; however, it is subject to the special rules as set forth in the Code of Criminal Procedure. State v. Likens, 577 So.2d 285, 289 (La.App. 3 Cir.1991), writ denied, 580 So.2d 386 (La.1991). In order to obtain a judgment of bond forfeiture against a surety, the State must strictly comply with the terms of the statutory provisions regulating bond forfeitures. Bankers Insurance Company v. State, 37-080, p. 4 (La.App. 2 Cir. 4/11/08), 848 So.2d 641, 644, writ denied, 2003-1240 (La.6/27/03), 847 So.2d 1268.

International argues that it was relieved of its obligations under the bond pursuant to La.C.Cr.P. art.. 326(B) once Johnson entered a guilty plea to a felony on October 18, 2010, and therefore there was no bond obligation in place when Johnson failed to appear on October 22, 2010. Louisiana Code of Criminal Procedure Article 326(B) provides:

(1) Upon conviction and imposition of sentence or the pronouncement of sentence or condition of probation pursuant to Article 894 in misdemeanor cases, the bail undertaking shall cease and the surety shall be relieved of all obligations under the bond.
(2) Upon conviction in any felony case, the bail undertaking shall cease and the surety shall be relieved of all obligations under the bond.
(3) In all cases, if necessary to assure the presence of the defendant at all future stages of the proceedings, the court may in its discretion, in accordance with Article 332 require the defendant to post another bond or other acceptable security, or may release the defendant on bail without surety as provided for in Article 325. The court may continue the existing bail undertaking with the written approval of the surety on the bond. Such approval must be obtained from the surety after conviction.

The crime with which Johnson was charged, Aggravated Flight From an Officer, is a felony. See La. R.S. 14:108.1.(E); La. R.S.14:2 (A)(4). Thus, under Article 326(B)(2), the surety would be relieved of its obligations under the bond when Johnson was convicted. However, Johnson was neither convicted nor sentenced on October 18, 2010, making Article 326(B) | ¡¡inapplicable to the facts of this case. International’s argument in this regard lacks merit.

International further argues in its brief that Johnson’s appearance in court on October 18, 2010 constituted a surrender under La.C.Cr.P. art. 345 which relieved the surety of all obligations under the bond. Exoneration of the surety is in order when the defendant has been surrendered in conformity with La.C.Cr.P. art 345. We find Johnson did not surrender in conformity with article 345. Article 345(A) provides:

A surety may surrender the defendant or the defendant may surrender himself, in open court or to the officer charged with his detention, at any time prior to forfeiture or within the time allowed by law for setting aside a judgment of forfeiture of the bail bond. For the purpose of surrendering the defendant, the surety may arrest him. Upon surrender of the defendant, the officer shall detain the defendant in his custody as upon the original commitment and shall acknowledge the surrender by a certificate signed by him and delivered to the surety. The officer shall retain and forward a copy of the certificate to the court. After compliance with the provisions of Paragraph F of this Article, the surety shall be fully and finally discharged and relieved, as provided for in Paragraphs C and D of this Article, of all obligations under the bond.

Johnson and his attorney appeared in court on October 18, 2010 pursuant to an August 16, 2010 court order granting a continuance of the August 16, 2010 trial date. Furthermore, Johnson was not detained in custody after his appearance in court. The occasion of Johnson’s appearance in open court on October 18, 2010 allowed the district court to properly rescind the August 16, 2010 judgment of bond forfeiture. The ruling rescinding the judgment of bond forfeiture reinstated the bond on all parties to their positions prior to the forfeiture. International took no action to exonerate itself from its liability on the bond, therefore, International remained liable on the bond. The bond clearly states Johnson promises to appear before the court through pronouncement of sentence. When Johnson subsequently failed to appear, |fithe trial court properly forfeited the bond. International has not provided any reason why the judgment of forfeiture dated October 22, 2010 should be annulled or set aside. This assignment of error lacks merit.

Finally, International argued at the July 27, 2011 hearing on its motion to set aside the bond forfeiture or to grant a nullity that Johnson was incarcerated in Lafourche Parish, and therefore its obligations under the bond were satisfied. Under La.C.Cr.P. art. 345(D), the surrender of a defendant may be accomplished during the time period allowed therefor by the filing of a motion for surrender and presenting adequate proof of the defendant’s incarceration. International offered a letter of verification of incarceration dated July 25, 2011 from the Sheriff of the Parish of Lafourche, stating that Johnson had been incarcerated in Lafourche Parish since May 12, 2011. Under La.C.Cr.P. art. 349.8(A)(1), International had one hundred and eighty days from the mailing of the notice of judgment of forfeiture to surrender Johnson and have the judgment of bond forfeiture satisfied and set aside. The notice of judgment of bond forfeiture was |7mailed on November 8, 2010. Accordingly, the last day for International to produce Johnson and be relieved of its obligations under the bond was one hundred and eighty days from November 8, 2010, or May 7, 2011. The letter of verification of incarceration certifies Johnson was incarcerated in Lafourche Parish on May 12, 2011; clearly outside of the prescribed period allowed for the surrender of Johnson. This assignment of error is without merit.

DECREE

The judgment denying the motion to set aside the bond forfeiture or to grant a nullity is affirmed. Costs of this appeal are assessed to appellant, International Fidelity Insurance Company.

AFFIRMED.

HIGGINBOTHAM, J. concurs.

      . Appearance Bail Bond number 700781D, executed by Johnson, as principal, and International, as surety, on February 1, 2010, provided that Johnson acknowledged notification of a court appearance on March 12, 2010 and "promises to appear before the court whenever required to answer the charges or related charges and all stages of the proceedings through pronouncement of sentence....”

      . Ms. Makiva Johnson was Mr. Johnson’s attorney of record.

      . On Friday, August 13, 2010, Ms. Johnson filed a Motion for Continuance of the Monday, August 16, 2010 trial date, stating that she had a prior matter pending in another parish on August 16, 2010 and that the Assistant District Attorney had no objection to the matter being continued until October. On August 16, 2010, the date on which Johnson failed to appear in court for trial, the district court signed the order continuing the trial to October 18, 2010; however, there is no indication in the record whether this order was signed before or after Johnson failed to appear for his trial on August 16, 2010.

      . Louisiana Code of Criminal Procedure article 345(D) provides:
      D. If during the period allowed for the surrender of the defendant, the defendant is found to be incarcerated in another parish of the state of Louisiana or a foreign jurisdiction, the judgment of bond forfeiture is deemed satisfied if all of the following conditions are met:
      (1) The defendant or his sureties file a motion within the period allowed for the surrender of the defendant. The motion shall be heard summarily.
      (2) The sureties of the defendant provide the court adequate proof of incarceration of the defendant, or the officer originally charged with his detention verifies his incarceration. A letter of incarceration issued pursuant to this Article verifying that the defendant was incarcerated within the period allowed for the surrender of the defendant at the time the defendant or the surety files the motion, shall be deemed adequate proof of the incarceration of the defendant.
      (3)The defendant’s sureties pay the officer originally charged with the defendant's detention, the reasonable cost of returning the defendant to the officer originally charged with the defendant’s detention prior to the defendant's return.

      . Louisiana Code of Criminal Procedure article 349.8(A)(1) provides:
      For bonds that have a face value under fifty thousand dollars, a judgment forfeiting the appearance bond shall at any time, within one hundred eighty days after the date of mailing the notice of the signing of the judgment of bond forfeiture, be fully satisfied and set aside upon the surrender of the defendant or the appearance of the defendant. The surrender of the defendant also relieves the surety of all obligations under the bond and the judgment.


author: WHIPPLE, C.J.

text:
    Yolunda DAVIS v. ST. FRANCISVILLE COUNTRY MANOR, L.L.C.
    No. 2013 CA 0190.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 1, 2013.
    Paul H. Benoist Natchez, MS, Charles S.Norris, Jr., Jill R. Carter, Vidalia, LA, for Plaintifi/Appellant, Yolunda Davis.
    Jeremy D.- Goux, Martha D. Bowden, Covington, LA, for Defendant/Appellee, St. Francisville Country Manor, L.L.C.
    Before WHIPPLE, C.J., WELCIX, and CRAIN, JJ.
   WHIPPLE, C.J.

|2Yolunda Davis appeals a summary judgment granted in favor of her former employer, St. Francisville Country Manor, L.L.C. (“St. Francisville”), which dismissed Ms. Davis’s petition for unpaid wages. For the following reasons, we reverse the judgment of the trial court and remand the matter to the trial court for further proceedings.

FACTS AND PROCEDURAL HISTORY

Ms. Davis was employed as a licensed practical nurse by St. Francisville until August 23, 2010, when she signed a letter of resignation and left her employment on the same day. Ms. Davis received her final paycheck from St. Francisville on September 7, 2010 in the amount of $347.14. Several days later, Ms. Davis sent written correspondence to St. Fran-cisville, notifying it that she was still due payment for outstanding unpaid benefits and demanding payment within three days. Ms. Davis eventually filed a lawsuit on November 18, 2011, seeking unpaid wages. Ms. Davis’s petition alleged that St. Francisville had failed to pay her approximately $1,008.00 for her accrued and earned paid days off (“PDO”), despite amicable written demand. Ms. Davis sought payment of these unpaid “wages,” plus ninety days penalty wages, attorney’s fees, and court costs.

In response, St. Francisville filed a motion for summary judgment, seeking a dismissal of Ms. Davis’s lawsuit. St. Francis-ville argued that no additional amounts were owed to Ms. Davis because: (1) the PDO accumulated by Ms. Davis did not constitute “wages” or “vacation pay” for which compensation was owed and (2) St. Francisville’s employee benefit schedule specifically provides that compensation for PDO is not paid to employees, such as Ms. Davis, who quit without proper notice.

After a hearing on the matter, the trial court granted St. Francisville’s motion for summary judgment and dismissed Ms, Davis’s lawsuit.

IííMs. Davis now appeals, asserting the following assignments of error:

1. The trial court erred when it failed to find that genuine issues of material fact existed regarding whether the PDO benefit was a wage or a mere gratuity.
2. The trial court erred when it failed to find that genuine issues of material fact existed regarding whether St. Francisville owed Ms. Davis any unpaid wages.
3. The trial court erred when it failed to find that genuine issues of material fact existed regarding whether St. Francisville could require Ms. Davis, an at-will employee, to forfeit her wages.
4. The trial court erred when it failed to find that genuine issues of material fact existed regarding whether St. Francisville set forth a good faith, non-arbitrary defense or should be subjected to penalties.
5. The trial court erred when it failed to find that genuine issues of fact existed regarding whether Ms. Davis was entitled to penalties and attorney’s fees.

STANDARD OF REVIEW

A motion for summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits, if any, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B). The summary judgment procedure is expressly favored in the law and is designed to secure the just, speedy, and inexpensive determination of non-domestic civil actions. LSA-C.C.P. art. 966(A)(2).

The mover bears the burden of proving that he is entitled to summary judgment. LSA-C.C.P. art. 966(C)(2). However, if the mover will not bear the burden of proof at trial on the subject matter of the motion, he need only demonstrate the absence of factual support for one or more essential elements of his opponent’s claim, action, or defense. LSA-C.C.P. art. 966(C)(2). If the moving party points out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense, then the nonmoving party must produce factual support sufficient to satisfy his evi-dentiary burden at trial. LSA-C.C.P. art. 966(C)(2). If the mover has put forth supporting proof through | ¿affidavits or otherwise, the adverse party may not rest on the mere allegations or denials of his pleadings, but his response, by affidavits or otherwise, must set forth specific facts showing that there is a genuine issue for trial. LSA-C.C.P. art. 967(B).

In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. East Tangipahoa Development Company, LLC v. Bedico Junction, LLC. 2008-1262 (La.App. 1st Cir.12/23/08), 5 So.3d 238, 243-244, writ denied, 2009-0166 (La.3/27/09), 5 So.3d 146.

DISCUSSION

Characterization of the “PDO” Provision: Wages or Gratuity

(Assignments of Error Nos. 1 and 2)

The Louisiana Wage Payment Act, LSA-R.S. 23:631 et seq., is designed to compel prompt payment of earned wages upon an employee’s discharge or resignation. Slaughter v. Board of Supervisors of Southern University and Agricultural and Mechanical College, 2010-1049 (La. App. 1st Cir.8/2/11), 76 So.3d 438, 446. Specifically, LSA-R.S. 23:631(A)(l)(b) provides that upon resignation of an employee, the employer shall pay the employee “the amount then due under the terms of employment” on or before the earlier of the next regular pay day or fifteen days following the employee’s discharge. For purposes of LSA-R.S. 23:631(A), wages are equivalent to the “amount then due under the terms of employment,” i.e., wages, or compensation, earned during a pay period. Boudreaux v. Hamilton Medical Group, Inc., 94-0879 (La.10/17/94), 644 So.2d 619, 622; Slaughter, 76 So.3d at 450-451.

In seeking summary judgment, St. Francisville contended that no additional compensation was due to Ms. Davis because the accumulated paid days off do not | ^constitute “vacation” for purposes of LSA-R.S. 23:631(D). In support of this argument, St. Francisville introduced its employee benefit schedule, which states the following in regard to paid days off:

All employees who have completed their probationary period and work for at least 35 hours per week are entitled to 10 PDO annually. These accrue at the rate of 3.333 hours per payroll period. These days are provided in lieu of vacation or holidays. In other words if you take off Christmas day and want to be paid for that day you must request to use one of your PDO.
PDO are equal to 8 hours times your pay rate. PDO are paid for days that you take off, not for days you work. PDO can be requested the pay period before you want it paid from February 1st to November 15th. For the time period November 15th to January 31st, PDO must be requested and approved 45 days in advance. PDO accruals are accrued in one year to be banked and used in the following year.
You can carry over up to three (3) PDO past your anniversary date. All days over three (3) will be paid to you the pay period after your anniversary date.
This benefit is paid to active employees. If you quit without proper notice you forfeit this benefit.

(Emphasis added),

St. Francisville argued that summary judgment was proper because the accumulated paid days off are granted to employees, in the nature of a mere gratuity, and, thus, do not constitute “vacation” for purposes of LSA-R.S. 23:631(D). The trial court agreed that the PDO were not earned and, thus, were not wages due. In determining whether the trial court correctly granted summary judgment on this basis, we must consider whether, as a matter of law, the compensation sought by Ms. Davis in her petition for the accumulated, but unused |BPPO benefit constitutes a gratuitous benefit for which no compensation could be due, as opposed to an “amount then due under the terms of employment” pursuant to LSA-R.S. 23:631. The jurisprudence recognizes that vacation benefits that have accrued to an employee over the course of his or her employment are encompassed within the ambit of the statute as an “amount then due under the terms of employment.” See Beard v. Summit Institute for Pulmonary Medicine and Rehabilitation, Inc., 97-1784 (La.3/4/98), 707 So.2d 1233, 1235, and Barrilleaux v. Franklin Foundation Hospital, 96-0343 (La.App. 1st Cir 11/8/96), 683 So.2d 348, 353, writ denied, 96-2885 (La.1/24/97), 686 So.2d 864. Subsection (D) of LSA-R.S. 23:631 specifically addresses payment for accumulated vacation time, stating that vacation pay will be considered an amount due only if, in accordance with the stated vacation policy, the employee is eligible and has accrued the right to take vacation time and has not been otherwise compensated for the vacation time. Likewise, unused “paid time off’ that an employee has accrued during the course of and based on work under the terms of his or her employment constitutes wages earned during a pay period due under the Louisiana Wage Payment Act. Boudreaux, 644 So.2d at 619.

When an employer promises a benefit to employees, and employees accept by their actions in meeting the conditions, the result is not a mere gratuity or illusory promise, but a vested right in the employee to the promised benefit. Knecht v. Board of Trustees for State Colleges and Universities and Northwestern State University, 591 So.2d 690, 695 (La.1991). Applying this principle, the court in Macrellis v. Southwest Louisiana Independence Center, 94-1155 (La.App. 3rd Cir.5/3/95), 657 So.2d 135, 137, recognized that earned annual leave was an “amount then due” within the meaning of LSA-R.S. 23:631, noting that “[ajlthough the right to enjoy the annual leave was prospective, it became the property of the employee as it was earned during the first year of employment. Thus, the earned annual leave was an ‘amount then due’ under LSA-R.S. 23:631(A).” See also, Beard, 707 So.2d at 1235.

Based on our review of the law and the record, we conclude that St. Francis-ville failed to demonstrate the absence of factual support for an element of Ms. Davis’s claim that the unused, accumulated PDO benefit constituted earned wages for which compensation was due. Specifically, St. Francisville failed to demonstrate that Ms. Davis would be unable to establish that she had a vested right in her accumulated “paid days off’ and that compensation for such accrued paid days off was owed to her as an “amount then due under the terms of employment.” St. Franeis-ville promised its employees, including Ms. Davis, that they could accrue paid days off during the course of their employment if certain conditions were met. Specifically, the employee benefit schedule states that employees who have completed their probationary period and who work at least thirty-five hours per week are entitled to ten paid days off annually, which accrue at the rate of 3.333 hours per payroll period. There is no dispute that Ms. Davis met these stated | Rconditions. There is also no dispute that Ms. Davis had accumulated certain unused, paid days off at the time of her resignation.

Any purported difference between “paid days off’ and “vacation time with pay” is a distinction without substance and is simply a matter of semantics. The right to compensation vests as an eligible employee accrues the paid time off in accordance with the employee benefit schedule. The accrual of the right to be compensated while not at work, whether labeled “vacation,” “paid days off,” or any other similar label, is the triggering event that renders Subsection 631(D) applicable. The compensation owed for the unused, paid time off is “an amount then due” under Subsection 631(D) and must be timely paid in accordance with Subsection 631(A). See LSA-R.S. 23:631; Beard, 707 So.2d at 1235; Barrilleaux, 683 So.2d at 353.

We recognize that other appellate courts have found that “where an employer has a clearly established policy that vacation time is not considered wages for the purposes of La-R.S. 23:631(D)(2), an employee is not entitled to reimbursement for unused, accrued vacation time” on the theory that in such a situation, vacation time is a mere gratuity. Semien v. The Geo Group, 2010-642 (La.App. 3rd Cir.12/8/10), 52 So.3d 1019, 1020, writ denied,, 2011-0083 (La.2/25/11), 58 So.3d 458, citing Kately v. Global Data Systems, Inc., 05-1227 (La.App. 3rd Cir.4/5/06), 926 So.2d 145. However, as acknowledged in both Semien and Kately and as noted by this court in Alumbaugh v. Global Data Systems, Inc., 2008-1281 (La.App. 1st Cir.12/23/08) (unpublished opinion), in the absence of a clear, written policy establishing that vacation time granted by an employer is nothing more than a mere gratuity and not to be considered an amount due or a wage, accrued but unused vacation time is a vested right for which an employee must be compensated or paid upon discharge or resignation.

|3St. Francisville relies on Semien in support of its argument that the language of its policy provides a mere gratuity. In Semien, the employer’s leave policy provided that employees were “granted” paid time off (PTO) at the beginning of each fiscal year, such that it was not earned or accrued over the course of any pay period. The PTO days had to be used during that year or forfeited and would not be paid out upon termination. The court found the employer was not required to pay an employee for unused PTO because the employer’s policy clearly provided that PTO was “granted” as a benefit and not “earned” by the employee. Semien, 52 So.3d at 1019. In contrast, St. Francis-ville’s employee benefit schedule does not “clearly establish” that “paid days off’ are not considered wages for the purposes of LSA-R.S. 23:631(D). The benefit schedule does not expressly state that paid days off are a gift, a donation, or unearned. Instead, St. Francisville’s benefit schedule speaks in terms of the employee being entitled to paid days off, which accrue at a specified, work-related rate during each pay period. See Alumbaugh v. Global Data Systems, Inc. 2008-1281 (La.App. 1st Cir.12/23/08) (unpublished opinion). Thus, under St. Francisville’s benefit schedule, an employee who has completed the probationary period and who works at least thirty-five hours per week is entitled to earn PDO, which accrues at the rate of 3.333 hours per payroll period the employee works.

Accordingly, we conclude that St. Fran-cisville failed to demonstrate that it was entitled as a matter of law to judgment in its favor dismissing Ms. Davis’s claims on the basis that the amount at issue was a gift and a gratuity and that Ms. |ulDavis would be unable to establish that the earned, but unused, PDO benefit is an “amount then due under the terms of employment” pursuant to LSA-R.S. 23:631. The trial court erred in holding otherwise.

Forfeiture

(Assignment of Error No. 3)

We next address whether St. Fran-cisville established that, as a matter of law, Ms. Davis can be held to have forfeited payment of compensation for her accumulated PDO by leaving her employment with St. Francisville without proper notice. As noted above, the employee benefit schedule at issue herein states that “if you quit without proper notice you forfeit this benefit.”

Because we conclude that St. Francis-ville’s benefit schedule entitles an employee who has completed the probationary period and who works at least thirty-five hours per week to earn PDO, which accrues at the rate of 3.333 hours per payroll period the employee works, we likewise conclude that the “forfeiture clause” in the benefit schedule is invalid under LSA-R.S. 23:634, which prohibits an employer from requiring an employee to forfeit wages upon resignation or termination. In Beard, the employer argued that since its personnel policy provided that vacation pay is forfeited when an employee abandons his or her position, which the employee did, compensation for such vacation pay was not due under the terms of employment. The Louisiana Supreme Court rejected the employer’s argument, stating:

La. R.S. 23:634 strictly forbids an employer from requiring an employee to forfeit her “wages” upon resignation and provides that the employee shall be entitled to the wages actually earned up to the time of their discharge or resignation. The terms of Beard’s | ^employment were that she would be compensated for any unused vacation time. Because accrued vacation time is “wages,” La. R.S. 23:634 prohibits an employment policy or a signed employment contract which requires its forfeiture.

Beard, 707 So.2d at 1235-1236.

Similarly, in the instant case, compensation for an accumulated, but unused, PDO benefit is an “amount then due under the terms of employment” and constitutes wages under LSA-R.S. 23:631, such that LSA-R.S. 23:634 strictly prohibits the provision in St. Francisville’s benefit schedule that mandates forfeiture of these wages when an employee, such as Ms. Davis, quits without proper notice.

Thus, on the record before us, we likewise conclude that St. Francisville failed to establish that it was entitled as a matter of law to judgment in its favor dismissing Ms. Davis’s claims based on its assertion that she forfeited the compensation owed for her accumulated PDO benefit by quitting without proper notice. Accordingly, the judgment of the trial court granting St. Francisville’s motion for summary and dismissing Ms. Davis’s claim for unpaid wages must be reversed, and the matter is remanded for further proceedings.

CONCLUSION

For the above reasons, we reverse the November 5, 2012 judgment in favor of St. Franeisville Country Manor, L.L.C. and remand this case to the trial court for further proceedings consistent with the views expressed herein. All costs are assessed to defendant, St. Franeisville Country Manor, L.L.C.

REVERSED AND REMANDED,

      . Louisiana Revised Statute 23:631(D) provides as follows:
      For purposes of this Section, vacation pay will be considered an amount then due only if in accordance with the stated vacation policy of the person employing such laborer or other employee, both of the following apply:
      (a) The laborer or other employee is deemed eligible for and has accrued the right to take vacation time with pay
      (b) The laborer or other employee has not taken or been compensated for the vacation time as of the date of the discharge or resignation.
      (2) The provisions of this Subsection shall not be interpreted to allow the forfeiture of any vacation pay actually earned by an employee pursuant to the employer's policy.

      . In addressing this issue, we note that Ms. Davis did not file a cross-motion for summary judgment. Thus, our analysis in this appeal is limited to whether St. Francisville has demonstrated as a matter of law that the benefit at issue constitutes a lawful gratuitous benefit for which no compensation is due and, therefore, has demonstrated that Ms. Davis would be unable to establish the essential elements of her claim that her accumulated, but unused PDO benefit was an "amount due under the terms of employment” pursuant to LSA-R.S. 23:631.

      . In Beard, the Louisiana Supreme Court held as follows:
      When an employer agrees to pay employees for unused vacation time as a condition of their employment, that accrued vacation pay is compensation that is earned during a pay period under Boudreaux [, 644 So.2d at 621-622], As such, accrued vacation time is an 'amount then due under the terms of employment’ and constitutes wages under La. R.S. 23:631

        Beard, 707 So.2d at 1235.

      . In Knecht, the Louisiana Supreme Court found that employees were entitled to receive accumulated, but unused, compensatory leave that was accrued pursuant to the employer's policy of compensating for unpaid overtime by granting paid leave. The court rejected the employer’s argument that the ability to accrue leave was a privilege which could be revoked, finding that the employer failed to recognize that the employees had a contractual right and a property interest in the accumulated leave. Knecht, 591 So.2d at 696.

      . In Alumbaugh, the employer argued that its vacation policy clearly established that vacation time was gratuitous and not to be considered an amount due under LSA-R.S. 23:631. The employer relied on provisions in its vacation policy providing that "[u]pon termination of employment, all unused vacation time will be forfeited and not paid” and that "financial compensation will not be provided in lieu of unused vacation.” This court disagreed with the employer’s argument, stating that "Global’s employee vacation policy does not expressly state that paid vacation time was a gift, a donation, or unearned. Rather, Global's employee vacation policy speaks in terms of eligibility for and accrual of vacation time and specifically provides that 'all vacation time will be based on actual continuous full time work’ at Global.” (Emphasis added).

      .Louisiana Revised Statute 23:634 provides in pertinent part:
      Contract forfeiting wages on discharge unlawful
      A. No person, acting either for himself or as agent or otherwise, shall require any of his employees to sign contracts by which the employees shall forfeit their wages if discharged before the contract is completed or if the employees resign their employment before the contract is completed; but in all such cases the employees shall be entitled to the wages actually earned up to the time of their discharge or resignation.

      . This is particularly appropriate, given that Louisiana is an at will employment state.

      . In light of our reversal of the summary judgment and remand of the matter to the trial court through our resolution of assignments of error one through three, we preter-mit discussion of assignments of error four and five.