author: HANS J. LILJEBERG, Judge.

text:
    DEUTSCHE BANK TRUST COMPANY AMERICA f/k/a Bankers Trust Company as Trustee v. Louis J. OCHOA a/k/a Luis J. Ochoa.
    No. 12-CA-800.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 23, 2013.

      Avery A. Simmons, Blake B. Goodsell, Bradley, Arant, Boult & Cummings, Attorneys at Law, Charlotte, NC, for Plaintiff/Appellee.
    P. Michael Breeden, Attorney at Law, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges ROBERT A. CHAISSON, STEPHEN J. WINDHORST, and HANS J. LILJEBERG.
   HANS J. LILJEBERG, Judge.

| ^Defendant, Louis Ochoa, appeals the trial court’s July 2, 2012, judgment granting the Exception of Improper Cumulation of Actions filed by Deutsche Bank Trust Company Americas (“Deutsche”), dismissing Mr. Ochoa’s claims for damages without prejudice, and denying Mr. Ochoa’s “Petition for an Order Suspending the Seizure and Sale Order and/or Preliminary Injunction and/or Permanent Injunction and/or for Return of Seized Property.” For the following reasons, we affirm the denial of Mr. Ochoa’s request for an injunction and the grant of Deutsche’s exception of improper cumulation of actions. However, we reverse the dismissal of Mr. Ochoa’s claims for damages.

FACTS AND PROCEDURAL HISTORY

On February 23, 2010, Deutsche, formerly known as Bankers Trust Company as Trustee (“Bankers”), filed a “Petition to Enforce Security Interest By Executory Process” against Louis Ochoa. In its petition, Deutsche asserts that on October 11, 2001, Mr. Ochoa executed a $153,000.00 promissory note payable to |3Sebring Capital Corporation (“Sebring”), which was secured by a mortgage encumbering immovable property located at 4400 St. Mary Street in Metairie, Louisiana. In support of its petition, Deutsche submitted the original promissory note, a certified copy of the act of mortgage importing a confession of judgment, and an assignment of the promissory note and mortgage from Sebr-ing to Bankers.

Deutsche claims that Mr. Ochoa default ed on the note and mortgage by failing to pay the June 1, 2009 monthly installment when it was due, and that he remained in default thereafter by failing to pay, in full, the successive monthly installments. Deutsche asserts that the amount due under the note and mortgage includes the principal balance of $69,074.29, interest at 9.5% per annum from May 1, 2009, until paid, as well as all expenses and attorney fees incurred in enforcing the note and mortgage, and additional expenses incurred due to Mr. Ochoa’s breach of the terms of the mortgage and note.

In its petition, Deutsche sought a writ of seizure and sale from the trial court, ordering the Sheriff to seize and sell the St. Mary Street property and ordering that the amounts due to Deutsche be paid from the proceeds of the sale. On March 5, 2010, the trial judge ordered a writ of seizure and sale to be issued in accordance with Deutsche’s request. On December 14, 2010, Deutsche filed a supplemental petition offering supplemental verification of its original petition. On May 23, 2011, Deutsche filed an amendment and/or supplement to its petition, providing a copy of the notice of default and clarifying allegations in its prior petition.

On January 4, 2011, Mr. Ochoa filed a “Petition for an Order Suspending the Seizure and Sale Order and/or Preliminary Injunction and/or Permanent Injunction and/or for Damages and/or for the Return of the Seized Property.” In his petition, |4Mr. Ochoa argued that Deutsche should not have been granted an order of seizure and sale via executory process because Deutsche’s petition and attachments did not satisfy the requirements for executory process. Mr. Ochoa also sought damages and return of the property. Mr. Ochoa later filed an amendment and/or supplement to his petition as well.

On May 16, 2012, Deutsche filed a “Dilatory Exception of Improper Cumulation of Actions,” asserting that Mr. Ochoa’s recon-ventional demand for damages could not be asserted in an executory proceeding, pursuant to LSA-C.C.P. art. 462. The trial court held a hearing on June 21, 2012, on Deutsche’s exception of improper cumu-lation of actions and Mr. Ochoa’s “Petition for an Order Suspending the Seizure and Sale Order and/or Preliminary Injunction and/or Permanent Injunction and/or for Damages and/or for the Return of the Seized Property.” At the conclusion of the hearing, the trial court took the matter under advisement. On July 2, 2012 the trial judge rendered a judgment granting Deutsche’s exception of improper cumulation of actions, dismissing Mr. Ochoa’s damage claims without prejudice, and denying Mr. Ochoa’s “Petition for an Order Suspending the Seizure and Sale Order and/or Preliminary Injunction and/or Permanent Injunction and/or for Return of Seized Property.” Mr. Ochoa appeals this judgment.

LAW AND DISCUSSION

On appeal, Mr. Ochoa contends that the trial court erred by granting Deutsche’s exception of improper cumulation of actions and dismissing his claims for damages without prejudice. He asserts that he was required to set forth his claims for damages and injunctive relief in the same suit pursuant to LSA-C.C.P. art. 1061(B), which provides that a defendant in a principal action “shall assert in a reconventional demand all causes of action that he may have against the plaintiff |sthat arise out of the transaction or occurrence that is the subject matter of the principal action.” Mr. Ochoa also contends that if he did not bring all of his claims in this proceeding, they would be barred from being raised in another proceeding under the doctrine of res judicata.

LSA-C.C.P. 462 provides in pertinent part:

A plaintiff may cumulate against the same defendant two or more actions even though based on different grounds, if:
1) Each of the actions cumulated is within the jurisdiction of the court and is brought in the proper venue; and
2) All of the actions cumulated are mutually consistent and employ the same form of procedure.

The provision in LSA-C.C.P. art. 462 that all of the actions employ the same form of procedure requires that each of the cumulative actions employ either ordinary, executory, or summary procedure. Abadie v. Cassidy, 581 So.2d 657 (La.1991); Johnson v. Marvin Cutrer Contractor, Inc., 348 So.2d 1256, 1258 (La.App. 2 Cir.1977). When a party is procedurally barred from bringing an ordinary action in an executory proceeding, the doctrine of res judicata does not bar him from raising those claims in another proceeding. See Wells v. Standard Mortgage Corp., 02-1934, pp. 6-7 (La.App. 4 Cir. 7/9/03) 865 So.2d 112, 116, writ denied, 03-2262 (La.11/14/03), 858 So.2d 439.

In the present case, Deutsche filed an executory proceeding against Mr. Ochoa seeking to enforce the promissory note and mortgage via executory process. In Mr. Ochoa’s reconventional demand, he set forth a claim for damages, which employs an ordinary proceeding. Thus, the actions do not employ the same form of procedure as required by LSA-C.C.P. art. 462 for the proper cumulation of action, and the claim for damages should not have been filed in this executory | ^proceeding. Accordingly, we find that the trial judge did not err in granting Deutsche’s exception of improper cumulation of actions, and we affirm this ruling.

Mr. Ochoa contends that even if his claim for damages should not have been filed in this executory proceeding, the trial court erred in dismissing these claims. We agree.

LSA-C.C.P. art 464 provides:

When the court lacks jurisdiction of, or when the venue is improper as to, one of the actions cumulated, that action shall be dismissed.
When the cumulation is improper for any other reason, the court may: 1) order separate trials of the actions; or 2) order the plaintiff to elect which actions he shall proceed with, and to amend his petition so as to delete therefrom all allegations relating to the action which he elects to discontinue. The penalty for noncompliance with an order to amend is a dismissal of plaintiff’s suit.

See Bank of New York Mellon v. Smith, 11-60, p. 19 (La.App. 3 Cir. 6/29/11), 71 So.3d 1034, 1047, writ denied, 11-2080 (La.11/18/11), 75 So.3d 462, in which the Third Circuit stated that, under LSA-C.C.P. art. 464, when cumulation is improper, the trial court should sever, not dismiss, the improperly filed claims. See also Mortgage Electronic Registration Systems, Inc. v. Wells, 05-795, p. 7 (La.App. 4 Cir. 4/5/06), 930 So.2d 117, 120.

In the instant case, although he correctly granted the exception of improper cu-mulation of actions, the trial judge erred by dismissing Mr. Ochoa’s claims for damages, based on LSA-C.C.P. art. 464 and the applicable jurisprudence. Accordingly, we reverse the judgment dismissing Mr. Ochoa’s damage claims and order that the damage claims be severed from the execu-tory proceedings.

On appeal, Mr. Ochoa further argues that the trial court erred in denying his request for a preliminary injunction. He asserts that the procedure required by law 17for an executory proceeding was not properly followed and thus, he is entitled to an injunction under LSA-C.C.P. art. 2751. Specifically, he contends that Deutsche did not show that it was entitled to enforce the note, that Deutsche did not properly plead notice per the mortgage, and that the verification filed with the original petition is not valid.

An executory proceeding in Louisiana is an in rem proceeding that provides a simple, expeditious, and inexpensive procedure by which creditors may seize and sell property upon which they enjoy a mortgage and privilege. Deutsche Bank National Trust Co. v. Carter, 10-663, p. 6 (La.App. 5 Cir. 1/25/11), 59 So.3d 1282, 1286, writ denied, 11-892 (La.4/8/11), 61 So.3d 691. Executory process is “used to effect the seizure and sale of property, without previous citation and judgment, to enforce a mortgage or privilege thereon evidenced by an authentic act importing a confession of judgment.” LSA-C.C.P. art. 2631; Mitchell v. Valteau, 09-1095, p. 6 (La.App. 4 Cir. 1/27/10), 30 So.3d 1108, 1112. Defenses and procedural objections to an executory process proceeding may be asserted through an injunction proceeding to arrest the seizure and sale. LSA-C.C.P. arts. 2642 and 2751; American Thrift & Finance Plan, Inc. v. Richardson, 07-640, p. 6 (La.App. 5 Cir. 1/22/08), 977 So.2d 105, 108.

A creditor seeking to enforce a mortgage or privilege on property in an execu-tory proceeding must file a petition praying for the seizure and sale of the property affected by the mortgage or privilege. LSA-C.C.P. art. 2634; Colonial Finance, L.L.C. v. Colonial Golf and Country Club, Inc., 11-5, p. 5 (La.App. 5 Cir. 6/14/11), 72 So.3d 349, 351. LSA-C.C.P. art. 2635 provides that in order for | Ra creditor to prove its right to use executory process to enforce a mortgage, security agreement, or privilege secured by immovable property, it is only necessary to submit with the petition authentic evidence of:

1) The note, bond or other instrument evidencing the obligation secured by the mortgage, security agreement, or privilege.
2) The authentic act of mortgage or privilege on immovable property importing a confession of judgment.

In the present case, attached to Deutsche’s petition for executory process was the original promissory note dated October 11, 2001, a certified copy of the act of mortgage and/or privilege importing a confession of judgment, and an assignment of the mortgage. The record shows that Deutsche complied with the requirements of LSA-C.C.P. arts. 2634 and 2635.

Mr. Ochoa contends that Deutsche has not shown that it was entitled to enforce the promissory note, because the note was not endorsed to Deutsche. He argues that although the note was endorsed to Bankers and the assignment of mortgage attached to the petition assigns the mortgage to Bankers, there is no evidence that Deutsche had the right to enforce the mortgage, other than a simple and insufficient notation in the petition that Deutsche was “f/k/a,” or formerly known as, Bankers.

As stated above, Deutsche’s petition complied with LSA-C.C.P. art. 2635, which sets forth two criteria to prove a creditor’s right to use executory process. Further, we note that in its petition, Deutsche asserts that it is entitled to enforce the promissory note and mortgage by executo-ry process. LSA-R.S. 10:3-301 provides that a “person entitled to enforce” an instrument means (i) the holder of the instrument, (ii) a nonholder in possession of the instrument who has the rights of a holder, or (iii) a person not in possession of the instrument who is entitled to enforce the instrument pursuant to LSA-R.S. 10:3-309 or 10:3-418(d). This 19statute further provides that a person may be a person entitled to enforce the instrument even though the person is not the owner of the instrument or is in wrongful possession of the instrument. See FGB Realty Advisors, Inc. v. Riedlinger, 95-2276, p. 8 (La.App. 4 Cir. 4/3/96), 671 So.2d 560, 564, writ denied, 96-1299 (La.7/1/96), 676 So.2d 101. See also LSA-R.S. 9:4422, which provides that when foreclosure by executo-ry process is instituted by the transferee, assignee, or pledgee of any promissory note, the holder of any promissory note may enforce the mortgage or privilege securing such instrument without authentic evidence of the signatures, assignment, pledge, negotiation, or transfer thereof.

It is clear that Deutsche was in physical possession of the promissory note and was a “person entitled to enforce” the promissory note. Deutsche also complied with LSA-C.C.P. art. 2635. Based on the record before us, along with the applicable law, we find no merit to Mr. Ochoa’s claims that the executory process laws were not followed because Deutsche did not sufficiently show that it was entitled to enforce the note.

Mr. Ochoa further argues that Deutsche did not properly plead notice per paragraph 22 of the mortgage. He asserts that under Federal National Mortgage Association v. Brown, 506 So.2d 628 (La.App. 4 Cir.1987), the creditor must attach the notice letter to its petition for executory process or specifically plead the facts as they are stated in the notice letter. Mr. Ochoa argues that although the notice letter was attached to Deutsche’s supplemental petition, this was after the writ of seizure and sale was issued and thus, the executory process requirements were not complied with before the writ was issued.

hoParagraph 22 of the mortgage provides:

Acceleration; Notice of Default; Right to Cure. Lender shall give notice to Borrower prior to acceleration following Borrower’s failure to pay principal, interest, and other fees and charges as provided in the Note, or following Borrower’s breach of any covenant or agreement in this Security Instrument. The notice shall specify: a) the default; b) the action required to cure the default; c) a date by which the default must be cured; and d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this Security Instrument and the sale of the Property. The notice shall further inform Borrower of the right to reinstate after acceleration and the right to assert in the foreclosure proceeding the non-existence of a default or any other defense of Borrower to acceleration and foreclosure as available under Applicable Law. If the default is not cured on or before the date specified in the notice, Lender at its option may accelerate and require immediate payment in full of all sums secured by this Security Instrument without further demand for payment.

In its petition for executory process, Deutsche specifically pled that Mr. Ochoa had defaulted on the note and mortgage by failing to pay the June 1, 2009, monthly installment when due and he remained in default by failing to pay all successive monthly installments in full. Deutsche further states that prior to acceleration, it mailed notice to Mr. Ochoa specifying: 1) the breach; 2) the action required to cure such breach; 3) a date not less than 30 days from the date the notice is mailed by which such breach must be cured; 4) failure to cure the breach on or before the date specified in the notice would result in acceleration of the sums secured by the mortgage; 5) that Mr. Ochoa had the right to reinstate after acceleration and the right to assert non-existence of the default and any other defense; and 6) that if the breach was not cured by the date specified in the notice, Deutsche could declare all of the sums secured by the mortgage to be immediately due and payable without further demand and that the property could be seized and sold to satisfy the indebtedness due.

| nBased on the language of the petition for executory process, we find that Deutsche sufficiently complied with the notice requirements set forth in paragraph 22 of the mortgage and with the applicable law. Accordingly, we find no merit in Mr. Ochoa’s argument that the notice requirements were not properly pled in accordance with the terms of the mortgage.

Mr. Ochoa also argues that the ex-ecutory process laws were not complied with because the affidavit/verification filed with the original petition for executory process is not valid or to be considered authentic evidence. Deutsche responds that verification of the petition was not required, because LSA-C.C.P. art. 2635 only requires production of the promissory note and the act of mortgage. Deutsche further claims that even if verification was required, the verification in this case complied with Louisiana law.

With its original petition for executory process, Deutsche submitted an affidavit/verification from Jeffrey Stephan, as a representative of Deutsche, who declared that he is familiar with the mortgage obligation described in the petition for execu-tory process and that based on the business records pertaining thereto, all of the allegations in the petition for executory process are true and correct. Deutsche subsequently provided affidavits/verifications from Albert Augustine and Matthew Wach, as representatives of GMAC Mortgage, servicer for Deutsche, declaring that the allegations in the petition for executory process are true and correct, though these affidavits were submitted after the writ of seizure and sale was issued.

LSA-R.S. 10:9 — 629(a)(6) provides that for purposes of executory process, the affidavits or verified petitions may be based on the creditor’s personal knowledge or upon information and belief based on the records of the secured party, any assignee, or any other person that are kept or obtained in the ordinary course of 112business. Moreover, the verification does not need to specify or identify the records upon which it is based.

Based on the record before us, along with the applicable law, we find no merit in Mr. Ochoa’s argument that the executory process proceedings were improper due to invalid verification of the petition.

Finally, although not set forth as an assignment of error, Mr. Ochoa argues in his brief that Louisiana’s executory process laws are unconstitutional. He pled this issue in the trial court and asked for the Louisiana Attorney General to be served with his pleading. He also claims that he has a third party beneficiary right under the Making Homes Affordable Act.

The trial judge did not specifically rule on the issue of constitutionality in his judgment or whether Mr. Ochoa was entitled to relief as a third party beneficiary under the Making Homes Affordable Act. However, where the trial court fails to rule on a demand raised by the pleadings, the silence in the judgment is deemed a rejection of the demand. Metro Elec. & Maintenance, Inc. v. Bank One Corp., 05-1045, p. 5 (La.App. 3 Cir. 3/1/06), 924 So.2d 446, 450; VaSalle v. Wal-Mart Stores, Inc., 01-462, p. 8 (La.11/28/01), 801 So.2d 331, 337.

In the instant case, Mr. Ochoa has not shown that any specific statute or the ex-ecutory process laws in general are unconstitutional. We note that in Buckner v. Carmack, 272 So.2d 326, 331 (La.1973), the Louisiana Supreme Court held that the statutes relating to executory process are constitutional, notwithstanding the contention that they work a deprivation of property without due process of law by denying the right to the opportunity to be heard before authorizing the seizure of property. Mr. Ochoa also has not shown entitlement to any relief under the Making Homes Affordable Act. Accordingly, we find no merit in these arguments.

^^j^DECREE

For the foregoing reasons, we affirm the denial of Mr. Ochoa’s request for an injunction and the grant of Deutsche’s exception of improper cumulation of actions. However, we reverse the dismissal of Mr. Ochoa’s claims for damages.

AFFIRMED IN PART; REVERSED IN PART.

      . Deutsche asserts that it purchased Bankers in November of 1998 and that it changed the name of Bankers to Deutsche Bank Trust Company Americas in April of 2002.

      . The promissory note is endorsed by Sebring to Residential Funding Corporation and then from Residential Funding Corporation to Bankers Trust Company as Trustee.

      . Although LSA-C.C.P. art. 464 allows the trial court to order separate trials or to order the plaintiff to elect which action to proceed with, we must order severance of tíre claims. The proceeding was initially filed by Deutsche as an executory proceeding and Mr. Ochoa cannot elect to proceed in this executory proceeding with an ordinary action seeking damages.

      . LSA-C.C.P. art. 2751 provides as follows:
      The defendant in the executory proceeding may arrest the seizure and sale of the property by injunction when the debt secured by the security interest, mortgage, or privilege is extinguished, or is legally unenforceable, or if the procedure required by law for an executory proceeding has not been followed.


source: Caselaw Access Project

author: STEPHEN J. WINDHORST, Judge. WICKER, J.,

license: Public Domain

text:
    STATE of Louisiana v. Tavares L. HARRELL.
    No. 12-KA-821.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 23, 2013.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne Wallis, Douglas W. Freese, Attorneys at Law, Gretna, LA, for Plaintiff/App ellee.
    James A. Williams, Roger W. Jordan, Jr., Attorneys at Law, Gretna, LA, for Defendant/Appellant.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, JUDE G. GRAVOIS and STEPHEN J. WINDHORST.
   STEPHEN J. WINDHORST, Judge.

^Defendant, Tavares Harrell, pled guilty to two counts of armed robbery (La. R.S. 14:64) and one count of aggravated second degree battery (La. R.S. 14:34.7) pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) and State v. Crosby, 338 So.2d 584 (La.1976), reserving his right to appeal the denials of his motions to suppress. The trial court sentenced defendant, on each armed robbery count, to ten years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence, and on the aggravated second degree battery count, to ten years imprisonment at hard labor, to be served concurrently. This appeal followed.

FACTS

Because this case was resolved without a trial, the facts of the charged crimes are not fully developed in the record, but are presented in the bill of information as follows:

“On or about [January 4, 2011], [defendant] ... did rob Juan Perez while armed with a dangerous weapon, to wit: a .380 Caliber Grendel Semi-Automatic | sPistoI, wherein the wallet, a Louisiana drivers (sic) license and a social security card of Juan Perez were taken by force or intimidation ...”

“On or about [January 4, 2011], [defendant] ... did rob Hector Itzep-Vincente while armed with a dangerous weapon, to wit: a small black Semi-Automatic pistol, wherein the wallet, a Chase Visa Debit card in the name of Hector M. Itzep and $15.00 cash were taken by force or intimidation ...”

“On or about [January 4, 2011], [defendant] ... did commit aggravated second degree battery, with a dangerous weapon, by intentionally inflicting serious bodily injury upon Matthew Aittama with a firearm, specifically a small black Grendel Semi-Automatic pistol, by shooting Matthew Aittama in the buttocks ...”

DISCUSSION

In defendant’s sole assignment of error, he argues that the trial court erred in denying his motion to suppress his statement. He specifically contends that because he was not allowed to speak with a parent prior to his statement, the statement was neither knowing nor voluntary.

The following was adduced at the motion to suppress hearing.

Pursuant to an investigation regarding alleged crimes committed by defendant, Officer Nicholas Engler of the Kenner Police Department, around 12:00 A.M. on January 5, 2011, displayed a photographic lineup to Mr. Matthew Aittama while Mr. Aittama was in the hospital, the victim of a shooting that had occurred several hours earlier. Mr. Aittama identified defendant from the lineup as the person who had shot him.

After this identification was obtained, Detective George Hoffman of the Kenner Police Department sought and was granted an arrest warrant for defendant and a search warrant for defendant’s residence located at 2609 Phoenix Street in Kenner. Detective Hoffman testified that at the time the warrant was issued, he | intended to obtain a statement from defendant. The warrant was executed around 6:00 A.M. on January 5, 2011, at which time Detective Hoffman and Officer Engler made entry into the residence with U.S. Marshals. The U.S. Marshals arrested defendant and defendant’s mother, who had an outstanding attachment for her arrest. At this time, defendant was neither advised of his rights nor questioned. Defendant and his mother were transported to the Kenner Police Department.

Upon arriving at the Department, defendant was brought to an interview room on the third floor, while his mother remained in custody on the first floor. Defendant’s mother was not given the opportunity to talk to her son while at the Department. Defendant was not asked if he wanted to talk to his mother or father. Detective Hoffman told him: ‘Your mom’s downstairs. Do you understand your rights? I’d like to take a statement from you.” Defendant responded: “I know my rights.”

At 9:11 A.M., Detective Hoffman, along with Officer Engler, presented defendant with the Juvenile Advice of Rights Form. The detective orally recited defendant’s rights to him. After each right, he asked defendant if he understood, and defendant said, “Yes.” At the conclusion of reading defendant his rights, the detective told him: “Go ahead and read these. Make sure you understand everything on here, because your parent’s not present.” Defendant replied: “Okay.” Defendant then read each right, and, on his own, initialed next to each one, except the last, the sixth right. He signed his name and indicated he was willing to give a statement. Defendant is able to read and write, and, at the time, was in the ninth grade.

The sixth right, which defendant did not initial, provides: “Before you decide whether you want a lawyer, and whether you are willing to answer questions, you will be given an opportunity to discuss this with _ | s(Parent/Concerned Adult).” Next to this sixth right, prior to defendant initialing and signing the form, Detective Hoffman had written an “X,” and, in the blank for the name of the parent/concerned adult, wrote “N/A.” At the bottom of the form, in another blank for the signature of a parent/concerned adult, Officer Engler affixed his signature indicating his presence as a witness. A taped statement was subsequently obtained. It is this statement defendant sought to suppress.

At the suppression hearing, Detective Hoffman explained that defendant’s mother was not given the opportunity to talk with her son because she was in custody, and he felt that she might be coerced into convincing her son to speak in order to gain some benefit to herself. Detective Hoffman further stated that defendant had been “in and out of the system” and that defendant was aware of what was taking place at the time. Defendant had previously been adjudicated in Juvenile Court, where the trial judge “actually sits down and explains each one of their Rights again to each one of — for each one of the Rights for that individual child.” Detective Hoffman testified that defendant was very cooperative during the interview, that he understood his rights, and that he willingly gave his statement.

Ms. Harrell, defendant’s mother, testified that if she had been given the option, she would not have allowed her son to talk to the police without an attorney being present.

During the motion to suppress the statement, the trial court expressed her displeasure concerning the police officers’ actions. She stated that if the issue before her was whether the officers were reasonable in failing to produce defendant’s mother, her ruling would be in defendant’s favor because she felt it was clear that the officers were not reasonable. She went on to further state that the reasonableness of the officer’s failure to produce the mother was not a factor to be considered. She then went on to state that the fact that a parent’s absence was | (-.unreasonable was not dispositive of the issue of whether the juvenile’s confession was free and voluntary. After considering all the factors, the trial judge found that the totality of the circumstances in this case established that defendant did make a knowing, intelligent, free, and voluntary waiver of his rights.

Trial courts are vested with great discretion when ruling on a motion to suppress. State v. Smith, 11-638 (La.App. 5 Cir. 3/13/12), 90 So.3d 1114, 1120 (citation omitted). Thus, the ruling of a trial judge on a motion to suppress will not be disturbed absent an abuse of that discretion. Id.

At the hearing on a motion to suppress a statement, the State bears the burden of proving the admissibility of the purported statement. State v. Lathers, 09-20 (La.App. 5 Cir. 5/26/09) 15 So.3d 1068, 1071, writ denied, 09-1341 (La.2/12/10), 27 So.3d 841. Thus, before introducing a defendant’s statement made during a custodial interrogation, the State must prove beyond a reasonable doubt that the defendant was first advised of his Miranda rights, and that the statement was made freely and voluntarily, and not under the influence of fear, intimidation, menaces, threats, inducement, or promises. Id.

The constitutional privilege against self-incrimination and the right to counsel applies equally to juveniles and adults. Lathers, supra at 1072. The determination of whether a waiver of constitutional rights is knowingly and voluntarily made is on a case-by-case basis and such a determination rests upon the “totality of the circumstances.” Id. In State v. Fernandez, 96-2719 (La.4/14/98), 712 So.2d 485, 487, the Louisiana Supreme Court held that the confession of an accused of any age is valid only if it was given knowingly and voluntarily. In addition to age, factors to be considered in assessing the totality of the circumstances include the individual’s experience, education, background, | -^intelligence, and capacity to understand the warning given at the time of the waiver. Lathers, supra at 1072. In setting forth the factors for consideration in assessing the totality of the circumstances, regardless of whether the accused is a juvenile, the Fernandez Court overruled prior jurisprudence in State in the Interest of Dino, 359 So.2d 586, 594 (La.1978), cert. denied, 439 U.S. 1047, 99 S.Ct. 722, 58 L.Ed.2d 706 (1978), that required the State to affirmatively show that the juvenile engaged in a meaningful consultation with an attorney or an informed parent, guardian, or other concerned adult before the juvenile waived his constitutional rights. Lathers, supra at 1072. The Fernandez Court held that prophylactic rules in Dino were not constitutionally or statutorily required. Id. Thus, the absence of a parent is no longer dispositive of an inquiry into whether the juvenile defendant’s confession is voluntary. Id. However, the Lathers court espoused the belief that the State must be mindful of the constitutional privilege against self-incrimination and the right to counsel afforded juveniles in criminal investigations. Id. This Court cautioned that these privileges are not to be taken lightly and serious efforts must be made to preserve those rights in criminal matters in which the accused is a juvenile. Id.

In Lathers, the defendant was 15 years old at the time he confessed. At the suppression hearing, the detectives testified that they had made numerous attempts to locate the defendant’s guardian. However, as one of the detectives explained, because there was only a six-hour time span to process a juvenile, once they realized that they were probably not going to be able to contact the defendant’s mother, they decided to obtain a statement in her absence. Id.

Before doing so, one of the detectives explained the juvenile advice of rights form to the defendant, who signed the form, acknowledging his understanding thereof. The defendant then confessed. The detective testified that she believed |sthe defendant knowingly and intelligently waived his rights and that he was not threatened or coerced into making a statement. This assessment was in part due to the defendant’s familiarity with the court system: he was on active probation at the time of his arrest and had been advised of the same rights during previous arrests. Id. at 1072-73.

Several hours later, the defendant’s mother arrived. The police reviewed the form again with her, which she signed. At the suppression hearing, the mother testified that she asked the officers how they were able to question her son in her absence and said she did not allow any further questioning of him. She further testified that her son had been arrested on two prior occasions. Lathers, supra at 1073.

In concluding that the defendant’s statement was knowing and voluntary, the majority of this Court relied on several factors. First, the defendant had an eighth or ninth grade education, and the circumstances did not appear to indicate that he was unable to understand the nature of his actions. Second, the evidence indicated this was the third incident in which the defendant had been advised of his rights; he was no stranger to the judicial system because he had previously been arrested, and was on probation at the time of his arrest. Third, it did not appear that defendant was under duress. Fourth, the defendant never said he wanted to speak to his mother, that he wanted a lawyer, or that he did not want to speak. And lastly, this Court acknowledged that the trial court took note of the detective who was a woman of small stature with a calm, non-intimidating demeanor. Id. at 1073.

Turning to the present case, we consider the Fernandez factors to decide whether, under the totality of the circumstances, defendant’s statement was knowing and voluntary.

| nDefendant’s mother was not given the opportunity to speak with her son, nor was defendant asked if he wished to talk to a parent. Nevertheless, since the absence of a parent is no longer the sole factor determining whether a juvenile defendant’s statement is knowing and voluntary, we consider the parent’s absence, whether reasonable or not, as only one of the factors in the totality of the circumstances. Bearing this in mind, we find that defendant’s statement was given knowingly and voluntarily for the following reasons.

First, the record indicates that defendant was properly advised of his Miranda rights. He was presented with the Juvenile Advice of Rights Form and read his rights. As the detective read each right, he asked defendant if he understood, and defendant indicated he did. The detective then encouraged defendant to read the rights again, to ensure his understanding thereof. As defendant re-read his rights, he placed his initials next to each one, and then signed his name. Detective Hoffman testified that he believed defendant understood his rights.

Second, there is no indication that defendant was unable to understand his rights or the consequences of waiving them. At the time, defendant was a 16-year-old ninth grader who could read and write. In Lathers, this Court noted the Louisiana Supreme Court’s recognition that there are 16-year-olds whose knowledge and comprehension of their legal rights surpass the knowledge and comprehension of many who are older. Id. at 1073 (citations omitted). This is especially pertinent here, where this was not defendant’s first police interrogation. In fact, Detective Hoffman testified that he had interviewed defendant before, and noting defendant’s experience, testified that defendant had been in and out of the criminal justice system. The detective also explained that defendant had been adjudicated in juvenile court on previous occasions, where each time his rights | mwere explained to him in detail during the Boykin colloquy. It was Detective Hoffman’s opinion that defendant had more experience with the system and with law enforcement officers than the average citizen.

And lastly, the circumstances do not indicate defendant was coerced, nor did he appear to be under duress. In fact, Detective Hoffman found defendant to be “very cooperative.” Defendant had no issues with, complaints, or questions about the process, and he did not express any desire to speak to an attorney or parent.

We note that the trial judge stated that she could not consider the reasonableness of the absence of defendant’s mother, but that if she could, her ruling would be different. The trial judge then went on to conclude, based on the totality of the circumstances, that the juvenile was able to and had made a knowing, intelligent, and voluntary waiver of his rights in the absence of a parent. The presence or absence of a parent is a factor which may be considered by a court in determining admissibility of a custodial inculpatory statement, but once the evidence shows beyond a reasonable doubt that a juvenile has been properly advised of and has knowingly and voluntarily waived his rights, the reasonableness or justification of a parent’s absence becomes irrelevant to admissibility, as in the present case. Thus, although the trial judge could have considered the reasonableness of the mother’s absence, her denial of the motion to suppress upon finding that the defendant knowingly and intelligent waived his rights was not error.

J^CONCLUSION

Based on the totality of these circumstances, despite the absence of a parent, the trial court found defendant’s statement was given knowingly and voluntarily. Defendant here was 16 years old, had an eighth-grade education, was familiar with the criminal justice system, and had been advised of his rights on previous occasions. As a result, we find that the trial court did not abuse its discretion in finding defendant’s statement knowing and voluntary, and therefore the trial court did not err in denying the motion to suppress the statement. For the above discussed reasons, the defendant’s convictions and sentences are affirmed.

ERRORS PATENT REVIEW

We have reviewed the record for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990), and find no errors patent in this case.

AFFIRMED

WICKER, J., dissents with reasons.

WICKER, J.,

dissents with reasons.

I respectfully dissent. The record in this case reflects that the juvenile-defendant’s stepfather was present in the home at the time of defendant’s arrest. Detective Hoffman testified that, at the time he arrested defendant at the home, he intended to take defendant’s statement. Although Detective Hoffman testified as to his reasons for not having the mother, who was also in custody, present during defendant’s interrogation, he offered no reason why the stepfather could not be present. Detective Hoffman made no efforts to speak to defendant’s stepfather, who was present at the time of defendant’s arrest.

I recognize that the Louisiana Supreme Court in State v. Fernandez, 96-2719 (La.4/14/98), 712 So.2d 485, implemented the totality of the circumstances standard in determining whether a juvenile-defendant knowingly or voluntarily waived his rights. However, in Fernandez, as well as in subsequent jurisprudence, extraneous circumstances existed to explain the officers’ lack of parental consultation.

In Fernandez, the Louisiana Supreme Court found a juvenile defendant’s statement to be made knowingly and voluntarily under the totality of the circumstances standard. However, in Fernandez, the defendant, who was “almost seventeen,” had confessed in the patrol unit before arriving to headquarters and without the officer’s interrogation. Further, the officer did not learn that the defendant was a juvenile until after he had confessed. Fernandez, 712 So.2d at 488.

Likewise, in State v. Terrick, 03-515 La.App. 5 Cir. 9/30/03, 857 So.2d 1153, the interrogating officers did not discover the juvenile-defendant’s age until after his statement had been taken. In Terrick, the defendant reported being seventeen years of age and the official police records verified the defendant’s assertion. Therefore, at the time the interrogating officers questioned the defendant, they had no reason to believe that defendant was a juvenile and had no reason to inquire about or make efforts to locate a parent or guardian.

In State v. Fisher, the juvenile defendant informed officers upon his arrest that he was seventeen years old and the official police records supported the defendant’s claim. 46,997 (La.App. 2 Cir. 2/29/12), 87 So.3d 189, 192. The officers took a recorded statement from the defendant. However, the defendant’s mother soon thereafter telephoned police and informed them that the defendant was in fact sixteen years of age. Id. At that time, the officers recorded a second statement in the presence of the defendant’s mother. The trial court suppressed the defendant’s first statement, which officers took prior to his mother’s arrival. Id. at 193. The trial court, however, denied the defendant’s motion to suppress his second statement, taken in the presence of his mother. The Second Circuit Court of Appeal affirmed the trial court’s judgment. Id.

Further, in State v. Lathers, 09-20 (La.App. 5 Cir. 5/26/09), 15 So.3d 1068, this Court affirmed the trial court’s denial of the juvenile-defendant’s motion to suppress where the record showed that officers made extensive yet unsuccessful efforts to locate the juvenile’s parent or guardian. Further, the interrogating officer in Lathers testified that officers had only a six-hour time frame to process a juvenile at that time.

This Court further instructed, in State v. Lathers, that “serious efforts” must be made to ensure protection of a juvenile defendant’s rights. 15 So.3d at 1072. It is my opinion that the officers in this case made no efforts to protect this juvenile defendant and simply refused or found it unnecessary to speak to a readily available parent or guardian. Detective Hoffman testified that, at the time of defendant’s arrest at his home, Detective Hoffman knew that he would take a statement from defendant upon arrival to headquarters. Further, the record reflects that defendant’s stepfather, a parent or guardian, was readily available for consultation with arresting officers. Unlike the officers in Fernandez, Terrick, and Fisher, the officers in this case knew that defendant was a juvenile at the time of arrest and interrogation and made no efforts to allow defendant to consult with the readily available parent or guardian prior to interrogation.

The holding in this case stands for the proposition that, except in instances in which a minor is clearly incapable of understanding the nature of the proceedings against him, adult consultation is unnecessary before taking a minor’s statement. It is my opinion that the circumstances presented in the cases discussed above are distinguishable from the instant case and that the Court in Fernandez did not intend for its holding to extend to the facts presented in this case.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


author: PETTIGREW, J.

text:
    Patricia VANNER, and Letitia Hampton, individually, and o/b/o their mother, Catherine Hampton v. LAKEWOOD QUARTERS RETIREMENT COMMUNITY and Landmark of Baton Rouge.
    No. 2012 CA 1828.
    Court of Appeal of Louisiana, First Circuit.
    June 7, 2013.

      Terry L. Bonnie, Baton Rouge, LA, for Plaintiffs-Appellants, Patricia Vanner and Letitia Hampton, individually and o/b/o their mother, Catherine Hampton.
    Rusty M. Messer, Karl J. Koch, Baton Rouge, LA, for Defendant-Appellee, Lakewood Quarters Rehab 8225 Tenant, LLC, d/b/a Lakewood Quarters Rehab & Nursing Center.
    Before KUHN, PETTIGREW, and McDonald, jj.
   PETTIGREW, J.

12Plaintiffs appeal a summary judgment dismissing their medical malpractice action against defendant. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On April 28, 2006, plaintiffs, Patricia Vanner and Letitia Hampton, daughters of Catherine Hampton (“Mrs. Hampton”), along with Jake Vanner, visited Mrs. Hampton at Lakewood Quarters Rehabilitation and Nursing (“Lakewood Quarters”), where she was a resident. Mrs. Hampton was 78 years old at the time, chronically debilitated, had suffered previous strokes resulting in right hemiparesis and contractures of her right upper and lower extremities, and was non ambulatory and non verbal. During this visit with her family, Mrs. Hampton appeared to be doing well physically and was in good spirits. Letitia returned the following day, and Mrs. Hampton’s condition remained the same. On Sunday, April 30, 2006, Letitia again visited her mother. During this visit, Letitia tried to comb her mother’s hair and noticed that Mrs. Hampton appeared to be in a lot of pain on the right side of her body. When Mrs. Hampton’s family visited her the following day, they could hear her moaning as they exited the elevator, located approximately 100 feet from her room. Mrs. Hampton was examined in the emergency room of Our Lady of the Lake Hospital on May 12, 2006, and diagnosed with a broken arm, which required surgical intervention on May 16, 2006.

Plaintiffs instituted this malpractice action against Lakewood Quarters and Landmark of Baton Rouge (“Landmark”) on March 23, 2007, by requesting that a medical review panel be convened pursuant to La. R.S. 40:1299.41, et seq. The medical review panel was formed, with three physicians and an attorney chairman. The panel’s opinion was issued on July 24, 2008. The unanimous opinion stated that “[t]he evidence does not support the conclusion that the defendants failed to meet the applicable standard of Reare as charged in the complaint.” In its supporting reasons, the panel concluded as follows:

Reasons as to [Lakewood Quarters]: This was [a] 78 year old lady who was chronically debilitated. She had previous strokes resulting in right hemipare-sis and contractures of her right upper and lower extremities. The patient was non ambulatory and non verbal.
The patient experienced a fracture In her right humerus while in the nursing home. Such fractures can occur in the routine care of this type of patient considering her multiple comorbidities. This is not necessarily an indication of negligent care.
It is not clear from the record when the fracture actually occurred. When the family became concerned about the patient’s complaints of pain, the nursing home staff appropriately contacted the patient’s physician who ordered an x-ray and a diagnosis was made. The patient was taken to the hospital for further care.
The record did not indicate a clear delay in diagnosis since it is unclear when the fracture actually occurred. However the panel had concerns with the gap in nursing notes' from 5-7-06 to 5-11-06.
Reasons as to [Landmark]: The patient arrived at this facility with ulcers and the staff was reasonable in their care to treat and prevent further occurrences of ulcers.

Subsequently, on August 1, 2008, plaintiffs, individually and on behalf of their mother, who was then deceased, filed a petition for damages naming Lakewood Quarters and Landmark as defendants. Plaintiffs alleged that Lakewood Quarters and Landmark were negligent in failing to properly diagnose Mrs. Hampton’s broken arm and in failing to properly treat and prevent pressure sores.

Lakewood Quarters answered the petition, generally denying the allegations of negligence and asserting numerous affirmative defenses including, but not limited to, prescription and contributory negligence. Landmark similarly filed an answer to the petition, generally denying all allegations of negligence by plaintiffs. Lakewood Quarters subsequently filed a motion for summary judgment, seeking the dismissal of plaintiffs’ claims. Lakewood Quarters asserted that because plaintiffs did not have expert testimony in support of their claims, they could not meet their burden of proof at trial, thus warranting summary judgment. The motion was supported by a copy of the petition, a copy of the complaint submitted to the medical review panel, the medical review panel 14opinion and reasons, plaintiffs’ answers to interrogatories, and plaintiffs’ responses to requests for admissions.

Plaintiffs filed an opposition to the motion for summary judgment, alleging that the “failure to diagnose a broken arm and properly treat or prevent pressure sores shows that no expert witness is required because it is not a difficult area of medicine mandating [an] expert witness.” Plaintiffs argued that in this case a jury could “perceive negligence.”

The matter proceeded to hearing on July 16, 2012, at which time the trial court heard argument from respective counsel. At the conclusion of the hearing, the trial court ruled in favor of Lakewood Quarters, granting the motion for summary judgment. Judgment was signed by the trial court on August 9, 2012, dismissing, with prejudice, plaintiffs’ claims against Lakewood Quarters. In written reasons for judgment dated September 18, 2012, the trial court noted as follows:

Plaintiffs filed suit claiming that the actions of the defendant caused or contributed to the death of their mother. Defendant filed this motion seeking to be dismissed arguing that plaintifffs] [have] not provided expert [testimony] showing ... any malpractice on their part. Additionally, the medical review panel found in favor of defendant and plaintiff[s] [have] not provided evidence that it failed to meet the standard of care or that the alleged failure caused plaintiffs’ mother’s injuries.
Thus, the court found that the plaintiffs could not carry their burden of proof at trial and the motion was granted.

It is from this judgment that plaintiffs have appealed, assigning error to the trial court’s determination that summary judgment was appropriate based upon the absence of expert testimony sufficient to demonstrate that they would be able to meet their burden of proof on the merits.

LAW AND ANALYSIS

Standard of Review and General Principles of Summary Judgment

Summary judgment is subject to de novo review on appeal, using the same standards applicable to the trial court’s determination of the issues. Berard v. L-3 Communications Vertex Aerospace, LLC, 2009-1202, p. 5 (La.App. 1 Cir. 2/12/10), 35 So.3d 334, 339-340, writ denied, 2010-0715 (La.6/4/10), 38 So.3d 302. 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. La.Code Civ. P. art. 966(A)(2). Its purpose is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial. Hines v. Garrett, 2004-0806, p. 7 (La.6/25/04), 876 So.2d 764, 769. Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, admissions, and affidavits in the record show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La.Code Civ. P. art. 966(B).

On a motion for summary judgment, the burden of proof is on the mover. If, however, the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover’s burden on the motion does not require that all essential elements of the adverse party’s claim, action, or defense be negated. Instead, the mover must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment. La.Code Civ. P. art. 966(C)(2); Janney v. Pearce, 2009-2103, p. 5 (La.App. 1 Cir. 5/7/10), 40 So.3d 285, 288-289, writ denied. 2010-1356 (La.9/24/10), 45 So.3d 1078.

In ruling on a motion for summary judgment, the judge’s role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. Hines, 2004-0806 at 1, 876 So.2d at 765. Despite the legislative mandate that summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent’s favor. Willis v. Medders, 2000-2507, p. 2 (La.12/8/00), 775 So.2d 1049, 1050.

| ¡Was Summary Judgment Appropriate Under the Applicable Law?

Louisiana Revised Statutes 9:2794 sets forth the elements that a plaintiff must prove to succeed in a medical malpractice claim against a physician. In summary, the plaintiff must prove, by a preponderance of the evidence; (1) the standard of care applicable to the physician; (2) a violation of that standard of care by the physician; and (3) a causal connection between the physician’s alleged negligence and the claimed injuries. See Pfiffner v. Correa, 94-0924, p. 8 (La.10/17/94), 643 So.2d 1228, 1233. Where the defendant physician practices in a particular specialty and the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians within that specialty. Lieux v. Mitchell, 2006-0382, p. 10 (La.App. 1 Cir. 12/28/06), 951 So.2d 307, 314, writ denied, 2007-0905 (La.6/15/07), 958 So.2d 1199.

Expert testimony is generally required to establish the applicable standard of care and whether that standard was breached, except where the negligence is so obvious that a lay person can infer negligence without the guidance of expert testimony. Pfiffner, 94-0924 at 9-10, 643 So.2d at 1234. This requirement of producing expert medical testimony is especially apt when the defendant has filed a motion for summary judgment and supported such motion with expert opinion evidence that the treatment met the applicable standard of care. Lieux, 2006-0382 at 11, 951 So.2d at 314. In Pfiffner, the supreme court observed that expert testimony is not always necessary to meet the burden of proof in a medical malpractice case, including “instances in which the medical and factual issues are such that a lay jury can perceive negligence in the charged physician’s conduct as well as any expert can.” Pfiffner, 94-0924 at 9, 643 So.2d at 1234. Other examples of such obvious negligence include “obvious unnecessary delays in treatment,” “[fjailure to attend a patient when the circumstances demonstrate the serious consequences of this failure,” and “failure of an on-call physician to respond to an emergency when he knows or should know that his presence is necessary.” Pfiffner, 94-0924 at 9-10, 643 So.2d at 1234.

17After a thorough review of the record, we conclude that the circumstances of this case do not fall within the category of exceptions to the general rule requiring expert medical testimony to establish the particular medical standard of care and breach of that standard of care. Thus, plaintiffs were required to come forward with medical expert testimony sufficient to satisfy their evidentiary burden of proof at trial. They failed in this burden. Specifically, there is no testimony or evidence in the record that sets forth the standard of care applicable to Lakewood Quarters, that Lakewood Quarters violated any standard of care applicable to it in the care and treatment of Mrs. Hampton, or that any negligent action or omission on Lakewood Quarters’ part caused or contributed to Mrs. Hampton’s alleged injuries. To the contrary, the unrebutted opinion of the medical review panel was that there was no evidence that Lakewood Quarters failed to meet the applicable standard of care and that when plaintiffs did in fact become concerned about Mrs. Hampton’s complaints of pain, the nursing home staff appropriately contacted Mrs. Hampton’s physician who ordered an x-ray and a diagnosis was made.

For the first time on appeal, plaintiffs argue that “[b]y the sworn deposition testimony of the physician who diagnosed the cause of the extreme pain,” they have “satisfied the legislative intent for expert [testimony] in La. R.S. 40:1299.” Plaintiffs are referring to the deposition testimony of Dr. Ricardo Rodriguez, the orthopaedic surgeon who diagnosed Mrs. Hampton’s broken arm and performed the surgery. Plaintiffs note that Dr. Rodriguez testified as follows with regard to Mrs. Hampton’s broken arm: “I think probably in trying to move her or position her arm or something is probably what happened, because obviously she didn’t move it herself or do it herself.”

However, as Lakewood Quarters correctly points out in brief to this court, Dr. Rodriguez did not opine that Lakewood Quarters was negligent in treating Mrs. Hampton. Rather, when asked if he had an opinion as to whether the care provided by Lakewood Quarters was appropriate, Dr. Rodriguez replied, “I have no opinion.” Dr. Rodriguez did indicate that it was not “terribly uncommon” to have a situation where a patient in a nursing home suffers a fracture like Mrs. Hampton did 18and no one is able to determine when or how it happened due to the patient’s condition. Moreover, Dr. Rodriguez agreed with the medical review panel’s opinion that “[s]uch fractures can occur in the routine care of this type of patient considering her multiple comorbidities” and that “[t]his is not necessarily an indication of negligent care.” Thus, even considering Dr. Rodriguez’s deposition as urged by plaintiffs on appeal, his testimony does not help plaintiffs in satisfying their burden of proof on the summary judgment filed by Lakewood Quarters. Lakewood Quarters having established its burden of proof on the motion, it was incumbent upon plaintiffs to produce factual support in the form of expert testimony sufficient to establish that they would be able to satisfy their evidentiary burden of proof at trial on these issues. Plaintiffs failed to do so, and summary judgment was therefore appropriate.

DECREE

For the above and foregoing reasons, we affirm the August 9, 2012 judgment of the trial court. All costs associated with this appeal are assessed against plaintiffs-appellants, Patricia Vanner and Letitia Hampton. AFFIRMED.

      . According to the record, Lakewood Quarters was incorrectly named in the petition as "Lakewood Quarters Retirement Community.”


author: CRAIN, J.

text:
    WELLS FARGO BANK, N.A. v. Fredrick Malcolm SETTOON.
    No. 2012 CA 1980.
    Court of Appeal of Louisiana, First Circuit.
    June 7, 2013.

      Benjamin B. Dean, Monroe, LA, for Plaintiff/Appellant Wells Fargo Bank, N.A.
    Charles V. Genco, D. Mark Valentine, Cory B. Blunk, Amite, LA, for Defen-danVAppellee, Fredrick Malcolm Settoon.
    Before GUIDRY, CRAIN, and THERIOT, JJ.
   CRAIN, J.

12This appeal is from a judgment granting a preliminary injunction and prohibiting the plaintiff from pursuing the judicial sale of certain immovable property subject to a mortgage. We reverse and remand.

FACTS AND PROCEDURAL HISTORY

Wells Fargo Bank, N.A., as Trustee for SABR Trust 2004-OP1, Mortgage Pass-Through Certificates, Series 2004-OP1, filed a petition for executory process against Fredrick Malcolm Settoon seeking to enforce a promissory note executed by Settoon in favor of Option One Mortgage Corporation. The promissory note was secured by a mortgage encumbering certain immovable property, and Wells Fargo requested and obtained a writ of seizure and sale of the immovable property by order signed on July 13, 2010. Wells Fargo’s petition was verified and included two exhibits: (1) the original note, consisting of three pages and a one page document captioned, “ALLONGE TO NOTE,” and (2) a certified copy of the recorded mortgage agreement containing a confession of judgment.

The immovable property was seized on July 14, 2010 but did not proceed to a judicial sale at that time. Approximately two years later, Settoon filed a petition seeking injunctive relief to prevent the judicial sale of the property and asserted the following grounds: (1) the corporate status of Option One, the original creditor, had been suspended by the California Secretary of State since 1990; (2) the allonge was not dated; (3) the signature on the allonge was not notarized; and (4) other than a name, there was no further identification of the person who signed the al-longe or by whom she was employed.

The trial court granted a temporary restraining order and, after a hearing on the request for a preliminary injunction, entered a judgment on October 9, 2012 enjoining Wells Fargo from causing a judicial sale of the immovable property. The trial court issued written reasons basing its judgment on the grounds advanced |3by Settoon. Wells Fargo appealed and argues that the trial court erred because the law does not require that the endorsement of a note be dated or notarized, that Option One’s legal status did not affect the negotiation of the note, and, alternatively, that no evidence was presented of Option One’s corporate status.

LAW AND ANALYSIS

A person seeking to enforce a mortgage in an executory proceeding must file a petition praying for the seizure and sale of the property affected by the mortgage and must submit with the petition authentic evidence of (1) the note, bond, or other instrument evidencing the obligation secured by the mortgage, and (2) the authentic act of mortgage importing a confession of judgment. La.Code Civ. Pro. arts. 2634 and 2635A. The note, bond, or other instrument evidencing the obligation secured by the mortgage and paraphed for identification with the act of mortgage is deemed to be authentic for purposes of executory process. La.Code Civ. Pro. art. 2636(1). Signatures affixed to the instrument secured by the mortgage are presumed genuine, and no further evidence of those signatures is required for the purposes of executory process. La. R.S. 9:4422(1).

The defendant in an executory proceeding may arrest the seizure and sale of the property by injunction when the debt secured by the mortgage is extinguished, or is legally unenforceable, or if the procedure required by law for an exec-utory ^proceeding has not been followed. La.Code Civ. Pro. art. 2751. The applicant for a preliminary injunction need make only a prima facie showing that he will prevail on the merits. Paddison Builders, Inc. v. Turncliff, 95-1753 (La.App. 1 Cir. 4/4/96), 672 So.2d 1133, 1136, writ denied, 96-1675 (La.10/4/96), 679 So.2d 1386. Whether to grant or deny a preliminary injunction lies within the sound discretion of the trial court. Absent a clear abuse of this discretion, the trial court’s ruling will not be disturbed on appeal. City of Baton Rouge/Parish of East Baton Rouge v. 200 Government Street, LLC, 08-0510 (La.App. 1 Cir. 9/23/08), 995 So.2d 32, 36, writ denied, 08-2554 (La.1/9/09), 998 So.2d 726.

We first address the arguments relating to the allonge, namely that the trial court erred in finding that the allonge had to be notarized, dated and contain further information about the employment of the person who signed it. Wells Fargo contends the allonge is part of the note and, therefore, deemed authentic. Wells Fargo further contends that the note was rendered “bearer paper” by a blank indorsement on behalf of Option One, so no authentic evidence of the assignment of the note to Wells Fargo is required. Finally, Wells Fargo contends that Summerville’s signature on behalf of Option One is presumed genuine for purposes of executory process under Louisiana Revised Statute 9:4422(1), so no further evidence of the indorsement is required. Settoon counters by arguing that the note is not bearer paper because the indorsement appears on the allonge, which is not in authentic form and is not a part of the note and, therefore, is not deemed authentic.

These arguments raise two legal issues: (1) is the allonge deemed authentic; and (2) did the indorsement on the allonge convert the note to bearer paper? The crucial question in resolving these issues is whether the allonge was “affixed” to the original promissory note as that term is used in Louisiana Revised Statute 10:3-204(a).

1 rAs a general matter, an allonge is a “piece of paper annexed to a ... promissory note, on which to write endorsements for which there is no room on the instrument itself. Such must be so firmly affixed thereto as to become a part thereof....” Pioneer Valley Hosp., Inc. v. Elmwood Partners, L.L.C., 01-453 (La.App. 5 Cir. 10/17/01), 800 So.2d 932, 933, fn. 2 (quoting Black’s Law Dictionary 70 (5th ed.1979)). In the present case, the allonge is a single page document that identifies the note by Settoon’s name, loan number, property address, loan amount, and date. It then provides, “Therefore, in reference to the captioned note, the following applies.... Pay to the order of: [blank space] Without Recourse.” This language is followed by a signature on behalf of Option One by Ulda Summerville, who is identified as an “Assistant Secretary.”

This signature, if effective as an indorsement of the note, constitutes a “blank indorsement” which would render the note bearer paper and subject to negotiation by transfer of possession alone. La. R.S. 10:3-205(b). For purposes of ex-ecutory process, the requirement of authentic evidence does not apply to the transfer of a bearer note. La. R.S. 13:4102A; Terrebonne Bank & Trust Co. v. Smith, 415 So.2d 414, 417 (La.App. 1 Cir.1982); Louisiana Nat. Bank of Baton Rouge v. Heroman, 280 So.2d 362, 371 (La.App. 1 Cir.1973), writ denied, 281 So.2d 755 (La.1973). This principle is true whether the note was originally payable to “bearer” or became bearer paper by virtue of a blank indorsement. Louisiana Nat. Bank of Baton Rouge, 280 So.2d at 371. However, Settoon argues that the note was not converted to bearer paper because the signature appears on the allonge and not the note.

|ñThe validity of a signature on a document attached to a note is addressed in the Uniform Commercial Code at Louisiana Revised Statute 10:3-204(a), which defines the term “indorsement” and provides, in pertinent part:

For the purpose of determining whether a signature is made on an instrument, a paper affixed to the instrument is a part of the instrument.

Comment 1 to Section 10:3-204(a) references the above statement and explains that an “indorsement on an allonge is valid even though there is sufficient space on the instrument for an indorsement.” Consequently, Summerville’s signature on the allonge will be considered an indorsement of the note if the allonge is “affixed” to the note. In that event, the signature on the allonge will be presumed genuine for purposes of executory process. See, La. R.S. 9:4422(1). The note would then be considered bearer paper and subject to assignment by transfer of possession alone. La. R.S. 13:4102A; Terrebonne Bank & Trust Co.; Louisiana Nat. Bank of Baton Rouge.

The UCC does not define “affixed,” and our courts have not previously interpreted this word in this context. Section 10:3-204(a) determines when a paper will be considered part of an instrument for purposes of an indorsement, which is an act that can produce significant legal consequences with respect to the instrument, including the negotiation of the instrument, a restriction on the payment of the instrument, or the imposition of indorser’s liability under certain circumstances. See, La. R.S. 10:3-204(a). Given the importance of an indorsement, a signature appearing on a document that was not part of the original instrument increases the need to ensure that the signature was intended to be, and was in fact, an indorsement of that instrument.

We find that the requirement in Section 10:3-204(a) that a paper be “affixed” to the instrument demands that the paper be actually attached to the instrument, meaning some form of physical connection securing the paper to the | instrument. See, In re McFadden, 471 B.R. 136, 173 (D.S.C.5/9/12); Sw. Resolution Corp. v. Watson, 964 S.W.2d 262, 264 (Tex.10/30/97); Lamson v. Commercial Credit Corp., 187 Colo. 382, 385, 531 P.2d 966, 968 (1975); Fed. Home Loan Mortgage Corp. v. Madison, 2011 WL 2690617 (D.Ariz.7/12/11); Black’s Law Dictionary (9th ed.2009) (defining “affix” as “[t]o attach, add to, or fasten on permanently”). The attachment requirement serves two purposes: preventing fraud and preserving the chain of title to an instrument. Sw. Resolution Corp., 964 S.W.2d at 264.

The trial court’s written reasons state that the allonge was “[a]ttached to the original promissory note.” This finding of fact was apparently based upon allegations in Settoon’s petition, which at paragraph V asserts that the allonge was “[attached to the original promissory note.” In his verification filed with the petition, Settoon confirmed under oath that “all the information contained therein is true and correct” to the best of his knowledge, information and belief. At the preliminary injunction hearing, Settoon’s counsel described the al-longe as “attached to this mortgage [sic ].”

We find that Settoon’s allegation in his verified petition is a judicial confession that the allonge was attached to the note. A judicial confession is a declaration made by a party in a judicial proceeding and constitutes full proof against the party who made it. La. Civ.Code art. 1853; C.T. Traina, Inc. v. Sunshine Plaza, Inc., 03-1003 (La.12/3/03), 861 So.2d 156, 159. An admission by a party in a pleading constitutes a judicial confession. C.T Traina, Inc., 861 So.2d at 159; Taboni ex rel. Taboni v. Estate of Longo, 01-2107 (La.2/22/02), 810 So.2d 1142. A judicial confession has the effect of waiving evidence as to the subject of the admission. C.T. Traina, Inc., 861 So.2d at 159. A declaration made by a party’s attorney or mandatary has the same effect as one made by the party himself. La. Civ.Code art. 1853, Comment (b); C.T. Traina, Inc., 861 So.2d at 159. A judicial confession is indivisible and it may be revoked only on the ground of error of fact. La. Civ.Code art. 1853.

In C.T. Traina, a plumbing contractor (Traina) sued the property owner (Sunshine), who filed an exception of no cause of action alleging that any agreement between the parties was an oral contract. Sunshine later repeated the same allegation in a subsequent exception and amended answer. In reversing the court of appeal, the supreme court held that the allegations constituted judicial confessions, explaining:

The court of appeal recognized that Sunshine judicially confessed that it had an oral contract with Traina, but reasoned that Sunshine revoked its admission when it filed a subsequent pleading denying any contractual relationship existed. We disagree. La. Civ.Code art. 1853 explicitly provides that a judicial confession may be revoked only on the ground of error of fact. At no time did Sunshine assert its judicial confession of an oral contract was made in error. To the contrary, Sunshine’s amended answer confirmed Sunshine’s earlier allegation of an oral contract by continuing to allege, in the alternative, that an oral contract existed. Therefore, we must conclude based on the record before us that Sunshine’s judicial confession of an oral contract was never revoked on the ground of error of fact.
Because a judicial confession has the effect of waiving evidence relating to the subject of the admission and withdrawing the subject matter of the confession from issue, Traina was not required to offer at trial affirmative proof of its oral contract with Sunshine.

C.T. Traina, Inc., 861 So.2d at 160.

Settoon’s verified petition judicially confessed that the allonge was attached to the note. Prior to the preliminary injunction hearing, Settoon did not attempt to amend or otherwise modify this allegation for error. We distinguish these facts from those presented to the courts in Eddy v. State Farm and Cas. Co., 09-0874 (La.App. 1 Cir. 12/23/09) and Guidry v. Barras, 368 So.2d 1129, 1132 (La.App. 3 Cir.1979), wherein the party making the allegation attempted to amend the pleading to correct or modify the allegation. Under those circumstances, the courts held that an amendment should be permitted pursuant to Louisiana Code of Civil | procedure articles 934, 1151 and 1155, unless the adversary was misled or deceived. Eddy, at pp. 3-4; Guidry, 368 So.2d at 1132.

Based upon the foregoing, we find that the trial court’s factual finding that the allonge was attached to the note was correct. The allonge, therefore, forms a part of the note; the signature on the allonge is presumed genuine; and no further evidence of the indorsement and assignment of the note is required for this executory process proceeding. La. R.S. 10:3-204(a); La. R.S. 9:4422(1); La. R.S. 13:4102A.

Similarly, Wells Fargo was not required to produce any further evidence of Sum-merville’s identification or her employer. The allonge confirms that the note was indorsed on behalf of Option One “By” Summerville, who is identified by name and position of employment. This provides sufficient evidence of her identity and her employer.

Settoon’s final argument is that ex-ecutory process is improper because the California Secretary of State suspended Option One’s corporate status in 1990. This claim is based on an exhibit attached to Settoon’s petition that the trial court relied upon in rendering its ruling. We find that the corporate status of Option One does not affect the negotiation of the note. Louisiana Revised Statute 10:3-202(a) provides:

Negotiation is effective even if obtained (i) from an infant, a corporation exceeding its powers, or a person without capacity, (ii) by fraud, duress, or mistake, or (iii) in breach of duty or as part of an illegal transaction.

The reason for this law is the protection of the holder of the note, as explained in Comment 2 of Section 3-202:

Subsection (a) applies even though the lack of capacity or the illegality ... is of a character which goes to the essence of the transaction and makes it entirely void. It is inherent in the character | Tnof negotiable instruments that any person in possession of an instrument which by its terms is payable to that person or to bearer is a holder and may be dealt with by anyone as a holder. The principle finds its most extreme application in the well settled rule that a holder in due course may take the instrument even from a thief and be protected against the claim of the rightful owner. The policy of subsection (a) is that any person to whom an instrument is negotiated is a holder until the instrument has been recovered from that person’s possession.

Having established its status as a holder of the original note, Wells Fargo has the right to enforce payment of the obligation regardless of the corporate status of the original payee. See, La. R.S. 10:1— 201(b)(21), 3-205, 3-202, and 3-301.

Settoon failed to identify or establish a valid reason for granting a preliminary injunction to prevent the subject immovable property from proceeding to a judicial sale. We find the trial court erred as a matter of law in granting the preliminary injunction and reverse the judgment rendered on October 9, 2012, and remand for further proceedings in accordance herewith. Costs of this appeal are assessed to Settoon.

REVERSED AND REMANDED.

THERIOT, J., concurs.

      . The judgment grants the "Plaintiff’s Petition for Injunctive Relief and enjoins Wells Fargo from "causing a judicial sale” of the subject property "until further order of this Court.” We construe this language as granting the requested preliminary injunction and not a permanent injunction. Granting more than a preliminary injunction would be improper, as the record does not contain a stipulation whereby the parties converted the preliminary injunction hearing into a trial for the permanent injunction. See, High Plains Fuel Corp. v. Carto Int’l Trading, Inc., 93-1275 (La.App. 1 Cir. 5/20/94), 640 So.2d 609, 613, writ denied, 94-2362 (La.11/29/94), 646 So.2d 402.

      . Section 4422 was amended by 2012 Act No. 400 to render the statute applicable to any "promissory note, whether negotiable or not_" Prior to this amendment, the statute applied to “any negotiable instrument or instrument that would be negotiable but for a limitation of personal liability of the maker....” The amendment is not material to the current proceeding, as the promissory note at issue is a negotiable instrument and thus subject to either version of the statute.

      . Settoon cites Bankers Trust Co. of California, N.A. v. Cooley, 03-1942 (La.App. 1 Cir. 6/25/04), 884 So.2d 594, for the proposition that authentic evidence is required to prove the assignment of a note to use executory process, however nothing in Cooley suggests that the note in that case was bearer paper. To the contrary, the Cooley court cited the law governing the assignment of "order” paper. Cooley, 884 So.2d at 595.

      . We express no opinion on Settoon's ability to amend his petition on remand to remove the allegation of attachment for error, so as to revoke the judicial confession for purposes of the trial on the permanent injunction.

      . Wells Fargo’s alternative argument that the trial court improperly considered the exhibit purporting to set forth Option One’s corporate status is moot.


author: GREMILLION, Judge.

text:
    STATE of Louisiana v. Christopher GUILLORY.
    No. 12-1473.
    Court of Appeal of Louisiana, Third Circuit.
    June 19, 2013.
    Rehearing Denied Sept. 4, 2013.

      Annette Roach, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, Christopher Guillory.
    Trent Brignac, District Attorney, 13th Judicial District Court, Julhelene E. Jackson, Assistant District Attorney, Ville Platte, LA, for Appellee, State of Louisiana.
    Christopher Guillory, Angola, LA, Pro se.
    Court composed of J. DAVID PAINTER, SHANNON J. GREMILLION, and PHYLLIS M. KEATY, Judges.
   GREMILLION, Judge.

l,In response to a reported offense, three police officers observed Defendant, Christopher Guillory, exit his house while rolling a marijuana cigarette. Officers handcuffed Defendant and conducted a pat-down search that uncovered a .22 caliber revolver in Defendant’s back pocket.

Defendant was charged with and convicted of possession of a firearm by a convicted felon in violation of La.R.S. 14:95.1. He was originally sentenced to twelve years at hard labor without benefit of probation, parole, or suspension of sentence and ordered to pay a fine of $8,000. The State then filed a habitual offender bill seeking an enhanced sentence for the conviction of possession of a firearm by a convicted felon, listing three prior offenses. At the hearing, the State relied on the fourth offender section of the habitual offender statute, which mandated a life sentence. At the close of the hearing, the trial court vacated the original sentence, and Defendant was sentenced as a habitual offender to life in prison. Although the trial court did not specifically find that Defendant was a fourth felony offender, it agreed with the State that a life sentence was mandatory. Defendant is before this court challenging this sentence.

Defendant contends the trial court erred in imposing an illegally excessive sentence of life imprisonment under La.R.S. 15:529.1(A)(4)(b) because the prior conviction used as a basis for his conviction of possession of a firearm by a convicted felon (possession with intent to distribute marijuana) was also used as a predicate for habitual offender enhancement of his sentence for possession of a firearm by a convicted felon. Defendant cites State v. Baker, 06-2175, pp. 16-17 (La.10/16/07), 970 So.2d 948, 958, cert. denied, 555 U.S. 830, 129 S.Ct. 39, 172 L.Ed.2d 49 (2008), in which the Louisiana Supreme Court held:

|2We find that a sentence imposed under La. R.S. 14:95.1 may be enhanced under the habitual offender law, as long as the prior felony conviction used as an element in the firearm conviction is not also used as a prior felony conviction in the multiple offender bill of information. To the extent that cases state to the contrary, including State v. Sanders, 337 So.2d 1131 (La.1976) and State v. Firmin, 354 So.2d 1355 (La.1978), they are overruled.

Defendant contends that the mandatory life provision of La.R.S. 15:529.1(A)(4)(b) was not applicable to him because the possession with intent to distribute marijuana conviction, which satisfied the “violation of the Uniform Controlled Dangerous Substance Law punishable by imprisonment for ten years or more,” could not be utilized.

The State concedes that “the sentence imposed exceeds what is appropriate under the sentencing provision of the habitual offender statute” and agrees that the case must be remanded for correction of the sentence.

Defendant further contends that trial counsel was ineffective in failing to file a motion to quash the habitual offender bill and in failing to object to the imposition of a life sentence. Defendant contends that if trial counsel had sought to quash the habitual offender bill, the State would have been prohibited from amending the bill, as was done in State v. Foster, 09-617 (La.11/25/09), 23 So.3d 885, and the possession with intent to distribute marijuana charge would have been stricken from the habitual offender bill. Had this conviction been stricken from the bill, the most Defendant could have been sentenced for was that applicable to a third felony offender without special circumstances. Defendant contends that the mandatory life sentence as a third felony offender would not have applied without the use of the prior conviction of possession with intent to distribute marijuana. Accordingly, Defendant would have been exposed to a sentence of thirteen years and four months to forty years rather than a mandatory life sentence.

| sThe State contends that Defendant has not shown that trial counsel’s performance was deficient given the complexity of the habitual offender statute provisions, and “it is not unreasonable under the circumstances that all the actors in this case made a mistake in its application.”

The improper use of this predicate offense was not raised in the trial court; however, Defendant’s claim that counsel was ineffective in failing to raise this claim in the trial court has merit.

The issue of ineffective counsel is more appropriately addressed in an application for post-conviction relief, where an evidentiary hearing can be conducted in the trial court. State in the Interest of A.B., 09-870 (La.App. 3 Cir. 12/9/09), 25 So.3d 1012. However, where an ineffective assistance claim is raised on appeal, this court may address the merits of the claim if the record discloses sufficient evidence to rule on it. Id. If this court considers a claim of ineffective counsel on appeal, Defendant must satisfy a two-part test. He must first show that counsel’s performance was deficient and next, that the deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

State v. Teno, 12-357, p. 10 (La.App. 3 Cir. 11/7/12), 101 So.3d 1068, 1075.

The record is sufficient to address Defendant’s ineffective assistance of counsel claim. Defendant’s prior conviction for possession with intent to distribute marijuana was charged in the bill of information and proven by the State as an element of the offense of possession of a firearm by a convicted felon. As established by the supreme court in Baker, this prior conviction could not also be used as a prior felony conviction for purposes of enhancement of Defendant’s sentence for possession of a firearm by a convicted felon pursuant to La.R.S. 15:529.1. Counsel’s performance was deficient in failing to object to the use of this prior offense for habitual offender purposes. Additionally, Defendant was clearly prejudiced because he was sentenced to a mandatory life sentence as a fourth felony offender when the evidence presented at the hearing supported a | ^finding that Defendant was only a third felony offender. Defendant’s habitual offender adjudication and sentence must be vacated.

In State v. Godfrey, 08-828, 08-1231 (La.App. 8 Cir. 3/3/10), 32 So.3d 1020, writ denied, 10-758 (La.10/29/10), 48 So.3d 1097, this court found the defendant was improperly adjudicated a fourth felony offender because a Texas conviction, which would not have been a felony in Louisiana, should not have been used for enhancement purposes. This court held:

We find that the trial court erred in adjudicating the defendant as a fourth felony offender and, hereby, vacate the defendant’s adjudication and sentence. In doing so, we recognize that the evidence does support a finding that the defendant is a third felony offender. However, because double jeopardy does not apply to habitual offender adjudications, the state has the option of reestablishing the defendant’s third felony status or of attempting to establish the defendant’s fourth felony offender status at a new hearing. See [State v.] Kennerson, [96-1518 (La.App. 3 Cir. 5/7/97),] 695 So.2d 1367.

Id. at 1024.

Accordingly, as did the Kennerson court, we vacate Defendant’s adjudication as a fourth felony offender and set aside the sentence imposed.

DECREE

We hereby vacate Defendant’s adjudication as a fourth felony offender and set aside the sentence imposed. Although the evidence supports a finding that Defendant is a third felony offender, the State has the option of either reestablishing Defendant’s third felony offender status or attempting to establish the defendant’s fourth felony offender status at a new hearing. We remand the matter to the trial court for proceedings consistent with this opinion.

SENTENCE VACATED; REMANDED WITH INSTRUCTIONS.