author: MOORE, J.

text:
    Jason Dane SIBERT and Tia Sibert, Plaintiff-Appellants v. NATIONAL OIL WELL VARCO, L.P., et al., Defendant-Appellees.
    No. 48,789-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 26, 2014.

      All American Law Firm of LA By: Wade T. Visconte, Shreveport, Robinson & Williams By: Kyle M. Robinson, Bossier City, Craig L. Williams, New Orleans, for Appellants Jason Dane Sibert and Tia Si-bert.
    Galloway, Johnson, Tompkins, Burr & Smith, New Orleans, By: Richard E. King, Jennifer L. Simmons, for Appellee HDR Constructors, Inc.
    Jones Walker LP, Lafayette, By: Douglas C. Longman, Jr., Louis Simon, II, for Appellees National Oilwell Vareo, L.P., and Randy Petty.
    Taylor, Wellons, Politz, and Duhe, By: Marvin Huber Olinde, New Orleans, Charles J. Duhe, Baton Rouge, for Appel-lees Heckmann Water Resources Corp., Phil B. Martel, and Hartford Fire Insurance Co.
    Duplass, Zwain, Bourgeois, Pfister & Weinstock, Metairie, By: David J. Bourgeois, Philip G. Watson, for Third-Party Defendant/Appellee Wicker Construction, Inc.
    Lugenbuhl, Wheaton, Peck, Rankin & Hubbard, By: Daniel B. Centner, New Orleans, Seth A. Schmeeckle, Baton Rouge, for Third Party Defendants/Appel-lees The Phoenix Insurance Co. and Travelers Property Casualty Co.
    Maride & Associates, By: Thomas J. Miller, Mandeville, for Intervener/Appellee The Standard Fire Insurance Co.
    Before DREW, MOORE and PITMAN, JJ.
   MOORE, J.

| Mason Sibert appeals a summary judgment which found that one of the defendants, general contractor HDR Constructors, was his statutory employer and thus immune from tort liability for his work-related injury. We affirm.

Factual and Procedural Background

On February 2, 2011, Heckmann Water Resources Corp., as owner, executed a work agreement (“general contract”) with HDR Constructors, as contractor, to design and replace certain portions of Heck-mann’s fluids pipeline in DeSoto Parish. On May 2, 2011, HDR executed a subcontract agreement with Wicker Construction Inc., as subcontractor, to perform a specified portion of the work of the general contract. Both contracts provided for change orders and a one-year warranty against defects in the work. Wicker completed its work under the subcontract agreement by September 2011.

In November 2011, a leak occurred in the pipeline. Heckmann (through its director, Phil Martel) called on HDR to repair it; HDR called on Wicker to perform the actual repairs; National Oilwell Vareo (through its field services rep, Randy Petty) delivered pipeline and other equipment to the site. Sibert and two other Wicker employees cut the leaking pipe and removed it by hand. According to Sibert’s petition, Petty told him not to bend the pipe, but one of HDR’s employees, Ray Richards, told him to bend it and that HDR would “stand behind” Wicker’s work even if it was against manufacturer’s instructions, and then Petty told Sibert to heat the socket with a torch. Sibert did so, but flammable gases in the pipe ignited into a fireball, engulfing Sibert and seriously injuring him.

pin June 2012, Sibert and his wife filed this tort suit against National and its employee Petty, Heckmann and its director, Martel, and HDR (referred to in the petition as HDR Engineering, not HDR Constructors ). He alleged that all defendants were negligent for failing to ascertain that the contents of the pipeline were combustible, instructing him to use a torch, requiring repairs inconsistent with manufacturer’s instructions, and failing to advise Wicker of alternative repair options. He also alleged that all defendants were solidarity liable.

Several defendants answered with general denials and requested a jury trial. Various incidental demands ensued, but they are not germane to this appeal.

HDR (asserting that it was actually HDR Constructors, not HDR Engineering ) answered that it was Sibert’s statutory employer under La. R.S. 23:1032 and 23:1061, and that all defendants’ liability was joint and severable under La. C.C. arts. 2223 and 2324.

In November 2012, HDR filed this motion for summary judgment, asserting that as Sibert’s statutory employer under R.S. 23:1061 A(2), it was entitled to tort immunity under R.S. 23:1032 A(2). It argued that a general contractor is normally immune from tort claims by a subcontractor’s employee injured on the job, citing Bradford v. Village Ins. Co., 548 So.2d 106 (La.App. 2 Cir.), writ denied, 552 So.2d 396 (La.1989), and other cases.

Sibert filed two unopposed motions to continue, and then, in February 2013, a first supplemental and amending petition. This alleged that HDR, Heckmann and their personnel knew that the pipeline contained not only saltwater but dangerous substances such as natural gas and flammable | ¡¡drilling fluids, that a fireball and explosion were “substantially certain” to result if a blowtorch were used, and their acts were “done with full knowledge and conscious indifference” to Sibert’s safety. He also opposed HDR’s motion for summary judgment, as discovery was in its “initial stages,” the subcontract excluded workers’ compensation coverage, and HDR still might be liable because of defective engineering work. In support, he attached 82 pages of documents, notably HDR’s accident report stating that Wicker’s employees decided to use the blowtorch, but they had been working for over 16 hours straight and Heckmann was on the site “pushing] for productivity.” Si-bert followed this with a motion (not unopposed) to continue and a motion to compel HDR to designate an Art. 1442 representative. Hearing on the rules was set for March 4, 2013.

HDR responded that the motion for summary judgment was not premature, as the only issue was whether the general contract and subcontract created statutory employer immunity. Also, Wicker was honoring its warranty when the accident occurred, and Wicker’s waiver of workers’ compensation coverage did not affect HDR’s statutory employer status. Answering Sibert’s first supplemental and amending petition, HDR alleged that it performed no acts that were substantially certain to result in Sibert’s injuries, and under the subcontract, Wicker was solely responsible for its employees’ safety.

Action of the District Court

At the hearing on March 4, 2013, counsel for HDR stated that she had given Sibert over 6,000 pages of documents in response to discovery, but argued that only the general contract and subcontract were necessary to |4determine statutory employment. Noting that the accident had occurred over a year earlier and the motion for summary judgment had been pending since November 2012, the district court denied Sibert’s motion to continue. On the merits, Si-bert’s counsel reiterated that they had received 6,300 pages of discovery matter only about a month earlier, and the court took the matter under advisement.

On April 8, 2013, the court rendered written reasons finding that HDR was Si-bert’s statutory employer under the two-contract theory, and thus immune from tort suit. Sibert took this devolutive appeal.

After the court rendered summary judgment, Sibert sought leave of court to file a second supplemental and amending petition, alleging that both HDR Constructors and HDR Engineering worked on the project, joining the latter as defendant, and expanding the allegations of intentional tort. The court granted this request on May 9, a month after it dismissed HDR Contractors from the suit.

Burden of Proof and Standard of Review

The motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Schultz v. Guoth, 2010-0343 (La.1/19/11), 57 So.3d 1002, and citations therein. Summary judgment shall be granted if the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966 B. The burden of proof is on the mover. However, if the mover will not bear the burden of proof at trial on the matter that is before |sthe court on the motion for summary judgment, the mover need not negate all essential elements of the opponent’s claim, but rather “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 * * *. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.” La. C.C.P. art. 966 C(2). In other words, once the motion for summary judgment has been properly supported by the moving party, the failure of the nonmoving party to produce evidence of a material factual dispute mandates the granting of the motion. Schultz v. Guoth, supra; Samaha v. Rau, 2007-1726 (La.2/26/08), 977 So.2d 880.

Appellate courts review motions for summary judgment de novo, using the-same criteria that govern the trial court’s determination of whether the summary judgment is appropriate, i.e., whether there is any genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. Schultz v. Guoth, supra; Johnson v. Super 8 Lodge-Shreveport, 47,081 (La.App. 2 Cir. 4/25/12), 92 So.3d 519.

Discussion: Intentional Tort Exception

• By his first assignment of error, Sibert urges the court erred in granting summary judgment in light of the intentional tort claim. He cites the allegations of intentional tort in his first and second supplemental and amending petitions, and argues that Heckmann’s discovery documents, produced after judgment, was rendered and thus not part of the record, confirm these allegations. Specifically, they show that during the design phase of the project, Heckmann advised HDR that the pipeline would be |fiused to transport flammable drilling fluids, but HDR never conveyed this information to Wicker or its employees during the installation phase. He contends these facts take the case outside the immunity of R.S. 23:1032.

HDR responds that Sibert offered only bare allegations of intentional tort, and weak ones at that, falling far below the standard of proving that the injury must be “inevitable” or “incapable of failing.” Reeves v. Structural Preservation Sys. Inc., 98-1795 (La.3/12/99), 731 So.2d 208; Carrier v. Grey Wolf Drilling Co., 2000-1335 (La.1/17/01), 776 So.2d 439.

Under Louisiana law, workers’ compensation is the exclusive remedy that an employee may assert against his employer, statutory employer or fellow employees for work-related injury, unless he was the victim of an intentional act. La. R.S. 23:1032 B; Reeves v. Structural Preservation, supra. Intentional act requires proof that the actor either (1) consciously desired the physical result of his act, whatever the likelihood of that result happening from his conduct, or (2) knew that the result was substantially certain to follow from his conduct, whatever his desire may be as to that result. Miller v. Sattler Supp. Co., 2013-2558 (La.1/27/14), 132 So.3d 386, and citations therein. Believing that someone may, or even probably will, eventually get hurt if a workplace practice is continued, does not rise to the level of an intentional act, but instead falls within the range of negligent acts that are covered by workers’ compensation. Miller v. Sattler Supp. Co., supra. “Substantially certain to follow” requires more than a reasonable probability that an injury will occur and “certain” has been defined to mean “inevitable” or “incapable of failing.” Id. The employer’s mere knowledge and appreciation of a risk does not constitute intent, nor does reckless or |7wanton conduct by an employer constitute intentional wrongdoing. Id.; Batiste v. Bayou Steel Corp., 2010-1561 (La.10/1/10), 45 So.3d 167.

Sibert’s first supplemental and amended petition alleged:

• “[A]n employee of HDR, believed to be Ray Richards, instructed Wicker employees to bend the pipe against the manufacturer’s instructions. * * * The mandatory instruction given by Ray Richard [sic] to Wicker employees were [sic ] intentional.”
• “Before the accident, a Wicker employee whose job involved ensuring adequate safety measures were being provided and ensuring compliance with OSHA and other laws/regulations, took a sample of the pipeline contents after ⅜ * * HDR and Heckmann refused to provide an ‘MSDS’ safety sheet on the pipeline contents. Upon information and belief, * * * HDR employee, Ray Richards, or another supervising employee of HDR, specifically instructed Wicker’s safety person not to test the contents of the sample and took the sample from Wicker employees and dumped it out to prevent testing of the sample for harmful and dangerous substances. Thus, upon information and belief, HDR, Heck-mann, or both of them, knew that the pipeline contained dangerous substances in addition to the saltwater being transported [and] likely contained natural gas and other flammable drilling fluids[.]”
• “The ⅜ ⅜ * acts of HDR, Heckmann, or both of them, were intentional, and done with full knowledge and conscious indifference to the safety of [Si-bert.] HDR, Heckmann, or both of them, knew that a fireball and explosion could result with substantial certainty when the blowtorch was used to perform repairs and that serious burns to [Sibert] were also substantially certain to occur.” (emphasis added)

In opposition to the motion for summary judgment, Sibert filed HDR’s accident investigation report, which stated:

• “The Wicker employees made the decided [sic ] to heat up a connection of the pipe assembly using a torch.”
• “The cause of the accident was the use of a torch at a pipeline connection that is carrying petroleum byproducts.”
• “The workers had been working for over 16 hours and it was at night. Plus they had not schedule [sic ] to do this work.”
• “The Wicker employees failed to identify the danger of | ^flammable gas in the pipeline and thus did not take proper precautions.”

Sibert correctly shows that the judgment did not expressly address his claim of an intentional act. On de novo review of the grant of summary judgment, however, we find that Sibert has not presented facts sufficient to create a genuine issue of material fact for trial. Allegations of an intentional act, no matter how strong, do not create a genuine issue of fact for trial. Batiste v. Bayou Steel Corp., supra; Smith v. Tanner Heavy Equip. Co., 2001-0886 (La.6/15/01), 790 So.2d 615. Taken at face value, Sibert’s allegations establish only that HDR knew the situation was dangerous and highly probable to result in injury; this does not meet the substantial certainty standard. Batiste v. Bayou Steel Corp., supra; Armstead v. Schwegmann Giant Super Markets Inc., 92-0594 (La.App. 4 Cir. 4/28/93), 618 So.2d 1140, writ denied, 93-2011 (La.11/5/93), 629 So.2d 347. Even if the allegations establish reckless or wanton conduct by the employer, this does not constitute intentional wrongdoing. Batiste v. Bayou Steel Corp., supra; Armstead v. Schwegmann, supra. The only summary judgment evidence before the court, HDR’s accident report, does not even support the claim that HDR’s employees instructed Wicker’s employees to use the torch. On this record, we find the district court did not err in granting summary judgment on the intentional tort exclusion.

Sibert also contends that the allegations of his second supplemental and amended petition created genuine issues of material fact as to the intentional tort claim. Of course, this document was filed after judgment was rendered and played no part in the district court’s consideration. It IflSlightly rephrases the original claim (from stating that HDR “knew that a fireball and explosion could result with substantial certainty” to HDR “should have known that serious burn injuries to [Si-bert] were also substantially certain to occur”) but still does not establish intentional wrongdoing or an outcome that was incapable of failing. Batiste v. Bayou Steel Corp., supra; Jasmin v. HNV Cent. Riverfront Corp., 94-1497 (La.App. 4 Cir. 8/30/94), 642 So.2d 311, writ denied, 94-2445 (La.12/9/94), 647 So.2d 1110. This assignment of error lacks merit.

Statutory Employment Status

By his second assignment, Sibert urges the court erred in granting summary judgment because of genuine issues of material fact whether the work being performed at the time of the accident was outside the scope of the two contracts. He argues that the two-contract theory does not fit these facts. The general contract was for “design” and “construction” involving the “replacement” of the pipeline, while the subcontract was not for design but merely to “furnish and install” material and equipment, with no provision for continuing maintenance after installation or repairs due to defective workmanship of others. He also contends that it is unclear why the repairs were needed. He concedes the existence of an April 14, 2012, change order whereby Wicker agreed to pursue a claim with its own insurance provider for certain repair work arising about one week before Sibert’s accident; however, he argues extensively that it is not probative as it does not admit that repair work was part of the subcontract, HDR wrote it, and it was not properly attached to the motion for summary judgment. He shows that the party claiming immunity has the burden of proving it, Weber v. State, 93-0062 (La.4/11/94), 635 So.2d 188; he suggests that the incongruity between the two contracts, and the inconclusiveness of the change order, come nowhere near satisfying HDR’s burden.

HDR responds that the two-contract theory perfectly fits the facts, citing the definition of a principal in La. R.S. 23:1032 A(2) and that of statutory employment in La. R.S. 23:1061 A(2). HDR argues that the subcontract obligated Wicker to “perform a portion of the [general] contract,” thus making HDR a principal and immune from tort liability. HDR shows that the subcontract contained a specific warranty provision requiring Wicker to correct, for one year after acceptance, any defective work at its own cost, and the change order was merely an expression of warranty. Finally, HDR reiterates that courts have repeatedly found that a general contractor is the statutory employer of a subcontractor’s injured employee, immune from tort liability. Bradford v. Village Ins. Co., supra; Freeman v. Moss Well Serv., 614 So.2d 784 (La.App. 2 Cir.), writ denied, 618 So.2d 413 (1993); Legros v. Norcen Exploration Inc., 583 So.2d 859 (La.App. 1 Cir.), writ denied, 588 So.2d 101 (1991); Liles v. Riblet Prods. of La., 363 F.Supp. 358 (W.D.La.1973), aff'd, 509 F.2d 804 (5 Cir.1975), and other cases.

Except for intentional acts, the rights and remedies of the workers’ compensation law for work-related injuries “shall be exclusive of all other rights, remedies and claims for damages[.]” La. R.S. 23:1032 A(l)(a). The remedy of workers’ compensation is “exclusive of all claims, including any claims that might arise against his employer, or any principal * * * of such employer or principal under any dual capacity or doctrine.” La. R.S. |u23:2032 A(l)(b). A “principal” or “statutory employer” is any person who undertakes to carry out any work which is part of his trade, business or occupation by means of a contract with another (the “trade, business or occupation” defense), or any person who has contracted to perform work and sublets any portion to another (the “two-contract” theory). La. R.S. 23:1061 A(l); Allen v. State, 2002-1072 (La.4/9/03), 842 So.2d 373; Freeman v. Moss Well Serv., supra. A statutory employer relationship “shall exist whenever the services or work provided by the immediate employer is contemplated by or included in a contract between the principal and any person or entity other than the employee’s immediate employer.” La. R.S. 23:1061 A(2).

The general contract between Heckmann, as owner, and HDR, as contractor, provided:

• “The following scope of work has been developed for the replacement of Phase 3 Heckmann Pipeline. Phase 3 in this Scope of Work includes the replacement of the existing Heckmann pipeline upstream of Bethlehem Booster Pump Station.”
• “Contractor agrees to furnish all supervision, labor, tools, equipment, materials and supplies necessary to perform the following performed work on a turn-key basis[.]”

HDR then subcontracted a portion of the work to Wicker, identified as the subcontractor, who agreed 'to furnish “all supervision, labor, tools, equipment, materials, and supplies necessary to perform, and to perform the following described work, * * * in accordance with the terms and conditions of the [general] contract and this Subcontract^]”

From these provisions, we find that services or work provided by the immediate employer, Wicker, were included in the contract between the | ^principal, Heck-mann, and “any person or entity other than the employee’s immediate employer,” the general contractor, HDR. This makes HDR a principal under R.S. 23:1061 A(2). We also find that HDR “contracted to perform work and sublet[ ] any portion to another,” Wicker, making HDR a principal under R.S. 23:1061 A(l). The district court did not err in finding that HDR was a principal or statutory employer of Sibert’s and thus entitled to the immunity of R.S. 23:1032 A. This finding is consistent with the jurisprudence holding that a general construction contractor is the statutory employer of a subcontractor’s injured employee, or an independent contractor’s injured employee, and immune from tort liability. Naiman v. Goldsberry Operating Co., 43,266 (La.App. 2 Cir. 6/11/08), 987 So.2d 326; Freeman v. Moss Well Serv., supra; Legros v. Norcen Exploration, supra; Liles v. Riblet Prods. of La., supra. Moreover, aside from allegations and argument, Sibert has not offered any summary judgment evidence to show that the work being performed when he was injured was beyond the scope of the general contract and subcontract. Both contracts provided for a one-year warranty, during which this accident occurred, as well as for change orders. These contracts and this accident meet the statutory requirements for proving that HDR was Sibert’s statutory employer. This assignment or error lacks merit.

Motion for Continuance

By his third assignment of error, Sibert urges the court erred in denying his motion for continuance. He cites La. C.C.P. art. 966 C(l)’s provision for “adequate discovery,” asserting he was not afforded the opportunity to depose any witnesses employed by HDR or the other | tsdefendants, complete written discovery of other defendants, and adequately review the 6,300 pages of highly technical discovery produced by HDR less than one month before the hearing. He asks this court to reverse and remand for adequate discovery.

A defendant’s motion for summary judgment may be made at any time. La. C.C.P. art. 966 A(l). The trial court has the discretion to render summary judgment, if appropriate, or to allow further discovery. The parties must be given the opportunity to conduct “adequate discovery” to present their claims. La. C.C.P. art. 966 C(l). However, there is no absolute right to delay action on a motion for summary judgment until discovery is complete. Simoneaux v. E.I. du Pont de Nemours & Co., 483 So.2d 908 (La.1986); Southern Indus. Contrs. v. Western Builders of Amarillo Inc., 45,779 (La.App. 2 Cir. 12/15/10), 56 So.3d 307. The only limit to the trial court’s discretion is that the parties must be given a fair opportunity to present their claims. Simoneaux v. E.I. du Pont, supra; Crockett v. Therral Story Well Serv. Inc., 45,716 (La.App. 2 Cir. 1/5/11), 57 So.2d 355, writ not cons., 2011-0263 (La.3/25/11), 61 So.3d 650.

The district court correctly stated that the accident had occurred over a year (roughly 16 months) earlier and the motion for summary judgment had been pending for about four months. This time frame, though not expansive, seems adequate in that the general contract and subcontract comprise just 22 pages, and the operative passages defining the scope of work and warranty, only a few paragraphs. In Hardin Compounding Pharmacy v. Progressive Bank, 48,397 (La.App. 2 Cir. 9/25/13), 125 So.3d 493, writ denied, 2013-2517 (La.1/27/14), 131 So.3d 60, the court found that a four-month delay [ 14between motion and hearing for summary judgment was adequate for the plaintiff to produce at least a scintilla of evidence, admissible under La. C.C.P. art. 967, of the difficult issue of fraudulent collusion. Here, the same four-month period was adequate for the plaintiff to produce one scintilla of evidence of intentional act. This assignment of error lacks merit.

Conclusion

For the reasons assigned, the judgment is affirmed. All costs are to be paid by the appellants, Jason Dane and Tia Sibert.

AFFIRMED.


source: Caselaw Access Project

author: GARRETT, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Anthony Mark MANDIGO, Appellant.
    No. 48,801-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 26, 2014.

      J. Ransdell Keene, Shreveport, for Appellant.
    Charles Rex Scott, District Attorney, Lucien Marioneaux, Jason T. Brown, Catherine M. Estopinal, Assistant District Attorneys, for Appellee.
    Before MOORE, LOLLEY and GARRETT, JJ.
   GARRETT, J.

LF oil owing his conviction for possession of a Schedule II controlled dangerous substance (CDS), cocaine, in excess of 28 grams but less than 200 grams, the defendant, Anthony Mark Mandigo, was adjudicated a third felony offender and sentenced to 40 years at hard labor, with the first five years to be served without benefit of parole, probation or suspension of sentence. The trial court ordered that the sentence be served concurrently with two other sentences to be served by the defendant. The defendant appealed. Through counsel, he argues that his sentence is excessive. In a pro se brief, he asserts two additional assignments of error. We affirm the defendant’s conviction and sentence.

FACTS

On March 25, 2008, the defendant was arrested following a narcotics investigation conducted by the Shreveport Police Department and the Caddo Parish Sheriffs Office. A meeting was arranged at which the defendant was to sell 62 grams of crack cocaine to a confidential informant. After the defendant arrived at the meeting site, law enforcement officers moved in to apprehend him. When an officer ordered the defendant out of his vehicle, the defendant attempted to run over him. Because he observed the defendant’s young daughter in the front seat of the car, the officer responded by shooting at one of the front tires instead of the interior of the vehicle. As he attempted to flee in his vehicle, the defendant threw a plastic bag out his window and toward a dumpster. However, the bag went over the dumpster and landed on the ground. It was recovered by law enforcement officers and subsequently determined to contain approximately 58 grams of crack cocaine. The defendant was forced to stop his vehicle and he was arrested. |2A search of the defendant’s residence revealed a large quantity of cocaine and materials required for the manufacture of crack cocaine.

The defendant was charged by bill of information with one count of possession of a Schedule II CDS, cocaine, in excess of 28 grams but less than 200 grams, in violation of La. R.S. 40:967(F)(l)(a); one count of possession of a Schedule II CDS, cocaine, in excess of 400 grams, in violation of La. R.S. 40:967(F)(l)(c); and one count of manufacture of a Schedule II CDS, crack cocaine, in violation of La. R.S. 40:967(A)(1).

The defendant was tried on the first count and convicted as charged following a bench trial in August 2008. The state then filed a habitual offender bill charging the defendant as a fourth felony offender. The state asserted that the defendant had the following prior convictions: (1) a 1993 conviction for possession of Schedule II CDS with intent to distribute; (2) a 1998 conviction for attempted possession of a firearm by a convicted felon; and (3) a 2005 conviction for aggravated flight from an officer, a crime of violence under La. R.S. 14:2(B).

|3Following a hearing held in October 2008, the trial court adjudicated the defendant as a fourth felony offender pursuant to former La. R.S. 15:529.1(A)(l)(c)(ii), which provided in 2008:

If the fourth felony and two of the prior felonies are felonies defined as a crime of violence under R.S. 14:2(B), ... or as a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for ten years or more, or of any other crime punishable by imprisonment for twelve years or more, or any combination of such crimes, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence.

The trial court sentenced him to life imprisonment without benefit of parole, probation or suspension of sentence. In State v. Mandigo, 44,698 (La.App.2d Cir.9/30/09), 21 So.3d 1027, writs denied, 2009-2287, 2009-2366 (La.5/28/10), 36 So.3d 244, 245, this court affirmed the defendant’s conviction and sentence.

Subsequently, the defendant filed an application for post-conviction relief (PCR), which was denied by the trial court. The defendant sought review by this court. We discovered that the minutes for the defendant’s 1993 conviction erroneously stated that the defendant pled guilty to possession of cocaine with intent to distribute. The transcript showed that the defendant actually pled guilty to a reduced charge of simple possession of cocaine. Possession of cocaine carried a maximum sentencing exposure of five years, not the 10 years required under La. R.S. 15:529.1(A)(l)(e)(ii) for a drug crime to be used as a predicate offense. As a result, this court found that the defendant was incorrectly adjudicated a fourth felony habitual offender and illegally sentenced to life imprisonment. We reversed the adjudication, vacated the life sentence, and remanded the matter to the |4trial court for resentencing. All other claims made by the defendant in his PCR application were denied. State v. Mandigo, 47,735 (La.App.2d Cir. 10/25/12), writ denied, 2012-2545 (La.11/15/13), 125 So.3d 1099.

On remand, the trial court adjudicated the defendant as a third felony offender. Relying upon State v. Baker, 40,997 (La.App.2d Cir.6/28/06), 935 So.2d 366, writ granted, 2006-2175 (La.5/11/07), 955 So.2d 1269, affirmed, 2006-2175 (La.10/16/07), 970 So.2d 948, cert. denied, 555 U.S. 830, 129 S.Ct. 39, 172 L.Ed.2d 49 (2008), the court concluded that it was precluded from considering both the 1993 possession of cocaine conviction and the 1998 conviction for attempted possession of a firearm by a convicted felon as the 1993 conviction was the predicate offense for the 1998 firearm charge.

| ¡¿Pursuant to the 2008 versions of La. R.S. 40:967(F)(l)(a) and La. R.S. 15:529.1(A)(l)(b)(i), the defendant faced a sentencing range of 20 to 60 years as a third felony offender. The trial court sentenced him to 40 years at hard labor with the first five years to be served without benefit of parole, probation or suspension of sentence. The court ordered that the sentence be concurrent with the 30-year sentences imposed upon the defendant for his two other drug convictions.

The defendant filed a pro se motion to reconsider. Among other things, he complained that the trial court failed to consider the sentencing | guidelines in La. C. Cr. P. art. 894.1. He argued that there were no aggravating factors articulated to justify the sentence and that the court failed to consider unspecified mitigating circumstances. The motion was denied.

The defendant appealed.

EXCESSIVE SENTENCE

Defense counsel argued in brief that the defendant’s sentence was constitutionally excessive.

Law

A reviewing court imposes a two-prong test in determining whether a sentence is excessive. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial court is not required to list every aggravating or mitigating circumstance so long as the record reflects adequate consideration of the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Shipp, 46,715 (La. App.2d Cir.11/2/11), 78 So.3d 805. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal history, seriousness of the offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Dillard, 45,633 (La.App.2d Cir.11/3/10), 55 So.3d 56, writ denied, 2010-2853 (La.11/18/11), 75 So.3d 454.

Second, a sentence violates La. Const. Art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993). A trial court has wide discretion to sentence 17within the statutory limits. Absent a showing of manifest abuse of that discretion, a sentence will not be set aside as excessive. State v. Shipp, supra.

Discussion

The defendant argues that a sentence of 40 years is excessive because he has a history of drug abuse and his crimes were nonviolent and related to drugs. He also contends that he “is not an old man and could- one day become a productive member of society.”

In support of this argument, defense counsel cites State v. Cole, 2012-1404 (La.App. 3d Cir.4/24/13), — So.3d-, 2013 WL 1986380. In that case, a fourth felony offender facing a sentence of 99 years to life was sentenced to only 10 years. That defendant was a three-time check forger who, armed with a paring knife, committed a “spur of the moment” armed robbery in which he attempted to minimize the risk of harm to the victim by locking him in a bathroom. The supreme court found no error in the trial court’s conclusion that the 50-year-old defendant had put forth clear and convincing evidence justifying a downward departure from the maximum sentence under the Habitual Offender Law. However, the supreme court noted that the sentencing judge was not free to impose whatever sentence he felt appropriate. Because the sentencing court failed to articulate specific ^reasons as to why the mandatory minimum habitual offender sentence of 20 years was not appropriate, the court reversed the sentence and remanded the case.

The defendant in the case before us is a drug dealer with a lengthy criminal history. His past offenses include a crime of violence, i.e., a 2005 conviction for aggravated flight from an officer. Additionally, when facing arrest for the charges in the instant matter, the defendant accelerated his vehicle at a law enforcement officer who ordered him out of his car. The defendant’s 11-year-old daughter — who had been taken to the drug transaction by her father — was a passenger in the front seat of the vehicle. At the time of the instant offense in 2008, the defendant was a 33-year-old convicted felon, not a youthful first-time offender whose age could be considered a mitigating factor.

Before imposing sentence, the trial court expressed concern over the defendant’s criminal history and his persistent involvement in the drug trade. Accordingly, he found that the defendant was in need of correctional treatment and that a lesser sentence would deprecate the seriousness of the defendant’s crime.

After a careful review of the record, we find that the trial court did not abuse its discretion in imposing a midrange sentence of 40 years upon this defendant, a career drug dealer who recklessly endangered law enforcement and his own child in the course of his most recent criminal episode.

This assignment of error is meritless.

PRO SE ASSIGNMENTS OF ERROR

| 9The defendant filed a supplemental pro se brief in which he asserted that his sentence was illegal because it was doubly enhanced and that the trial court failed to advise him of his right of self-representation.

Double Enhancement

The defendant contends that his sentence as a third felony offender involved an improper double enhancement. Specifically, he argues that his 1998 conviction for attempted possession of a firearm by a convicted felon has a built-in enhancement and should not have been used as an element to enhance his sentence under the Habitual Offender Law, itself an enhancement statute.

We have reviewed the transcript of the defendant’s adjudication as a third felony offender following remand from this court. The state contended that the defendant should be adjudicated a fourth felony offender. The trial court was fully aware of the perils of double enhancement as discussed in State v. Baker, supra, and rejected the state’s argument. It ruled that it did not believe that it could count both the 1993 possession of cocaine and the subsequent 1998 conviction for attempted possession of a firearm by a convicted felon, which used the 1993 conviction as a predicate.

We find no error in the trial court’s adjudication of the defendant as a third felony offender and we find that the defendant has not articulated any prejudice arising from the actions taken by the trial court. Accordingly, this assignment of error is meritless.

11¿Right of Self-representation

The defendant claims that the trial court had an obligation to inform him of his right to represent himself. However, he fails to cite any authority establishing such an affirmative duty on the part of the trial court. He further makes the self-serving assertion that he would have represented himself if he had known that he could do so.

In Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the Supreme Court found that the Sixth Amendment included the right of self-representation. Due to the dangers and disadvantages of self-representation, the Court held that the record must establish that a defendant “knowingly and intelligently” chose to relinquish the benefits of the right to counsel.

The holding in Faretta does not impose upon the trial court an affirmative duty to inform the defendant of his right to represent himself. See United States v. Martin, 25 F.3d 293 (6th Cir.1994); Munkus v. Furlong, 170 F.3d 980 (10th Cir.1999). See also Brown v. Wainwright, 665 F.2d 607, 611-612 (5th Cir.1982), and Moreno v. Estelle, 717 F.2d 171, 175 (5th Cir.1983).

Additionally, review of the record in the instant case shows that this defendant has zealously exercised his right of self-representation on several occasions, as demonstrated by his many pro se filings. We also observe that the defendant has been represented by numerous privately retained attorneys during the course of these proceedings which have spanned more than five years. The record before us does not indicate that the defendant ever expressed a desire to represent himself. Indeed, after the defendant filed a\upro se notice of appeal, he also filed a pro se “Motion for Appointment of the Louisiana Appellate Project to File the Defendant’s Appeal,” which was granted by the trial court. After the Appellate Project was appointed, private counsel enrolled and the Appellate Project was relieved.

The defendant’s arguments are completely disingenuous and this assignment lacks merit.

ERROR PATENT

Pursuant to La. R.S. 15:529.1(G), a sentence under the Habitual Offender Law is to be imposed without benefit of probation or suspension of sentence. The sentence conditions required by La. R.S. 15:529.1(G) are additions to, rather than replacements of, those conditions required by the sentencing provisions for the underlying offense. State v. Thurman, 46,391 (La.App.2d Cir.6/22/11), 71 So.3d 468, writ denied, 2011-1868 (La.2/3/12), 79 So.3d 1025. Regarding the imposition of a sentence without benefit of parole, the conditions imposed on the sentence are those called for in the sentencing provisions for the underlying felony offense. State v. Bruins, 407 So.2d 685 (La.1981); State v. Thurman, supra. The underlying offense here required that the first five years be served without benefit of parole, probation or suspension of sentence. See La. R.S. 40:967(F)(l)(a) and (G).

The trial court properly ordered that the sentence be imposed without parole for the first five years. Pursuant to La. R.S. 15:529.1(G), the court should have also ordered that the entire sentence be without benefit of probation or suspension of sentence. However, this error does not require corrective action, because the “without-benefits” provisions of the statutes lujare self-activating. La. R.S. 15:301.1; State v. Williams, 2000-1725 (La.11/28/01), 800 So.2d 790.

CONCLUSION

The defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . On February 3, 2011, the defendant pled guilty to counts two and three pursuant to a plea agreement whereby he received concurrent sentences of 30 years at hard labor on both counts. The first 15 years of the cocaine charge and the first 10 years of the manufacture charge were to be served without benefit of parole, probation or suspension of sentence. The record indicates that on the same day the defendant also pled guilty to unrelated charges of possession of marijuana, third offense, and possession of a firearm by a convicted felon, for which he received agreed sentences of, respectively, 20 years and 10 years at hard labor. The firearm sentence was ordered to be served without benefit of parole, probation or suspension of sentence. The state agreed to not file multiple offender bills against him on any of these charges. It was further agreed that these sentences would run concurrently with each other and any other sentence. Additionally, the court imposed fines and court costs for these four convictions.

      . As discussed infra, the defendant actually pled guilty to possession of Schedule II CDS.

      . In the Baker case, the defendant had felony convictions for aggravated battery and possession of stolen things. He was then convicted of possession of a firearm by a convicted felon; the aggravated battery was used as the predicate offense. The defendant was then adjudicated a second felony offender; the felony possession of stolen things was used as the predicate offense. The defendant complained that his habitual offender conviction was an impermissible double enhancement of his conviction as a felon in possession of a firearm. In support-of his position, the defendant cited State v. Sanders, 337 So.2d 1131 (La.1976), and State v. Firmin, 354 So.2d 1355 (La.1978). This court affirmed his adjudication and sentence, finding no impermissible double enhancement where the defendant’s conviction for possession of a firearm by a convicted felon and his habitual offender adjudication were based on two separate underlying felonies. The supreme court granted writs and affirmed. The supreme court held that a sentence imposed for a firearm conviction 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 habitual offender bill of information. In so holding, it specifically overruled the Sanders and Firmin cases.

      . In relevant part, La. R.S. 40:967 states now, as it did at the time of the offense in 2008:
      F. Other penalties for possession.
      (1) Except as otherwise authorized in this Part:
      a. Any person who knowingly or intentionally possesses twenty-eight grams or more, but less than two hundred grams, of cocaine or of a mixture or substance containing a detectable amount of cocaine or of its analogues as provided in Schedule 11(A)(4) of R.S. 40:964, shall be sentenced to serve a term of imprisonment at hard labor of not less than five years, nor more than thirty years, and to pay a fine of not less than fifty thousand dollars, nor more than one hundred fifty thousand dollars.

      G. With respect to any person to whom the provisions of Subsection F are applicable, the adjudication of guilt or imposition of sentence shall not be suspended, deferred, or withheld, nor shall such person be eligible for probation or parole prior to serving the minimum sentences provided by Subsection F.

      . The habitual offender statute in effect at the time of the commission of the offense for which the defendant receives an enhanced sentence is the version of the statute that applies. See State v. Parker, 2003-0924 (La.4/14/04), 871 So.2d 317; State v. Spano, 41,032 (La.App.2d Cir.8/1/06), 936 So.2d 304. In 2008, La. R.S. 15:529.1 provided, in relevant part;
      A. (1) Any person who, after having been convicted within this state of a felony ... thereafter commits any subsequent felony within this state, upon conviction of said felony, shall be punished as follows:

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

      G. Any sentence imposed under the provisions of this Section shall be without benefit of probation or suspension of sentence.

      . La. R. S. 15:529.1 provided for a sentence of "not less than the longest prescribed for a first conviction but in no event less than twenty years and not more than his natural life.”

      . In State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672, the supreme court held that a defendant who is seeking to rebut the presumption that a mandatory minimum sentence under the Habitual Offender Law is constitutional must clearly and convincingly show that he is "exceptional, which in this context means that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.”


author: STEWART, J.

text:
    STATE of Louisiana, Appellee v. Ronnie HENDERSON, Appellant.
    No. 48,806-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 26, 2014.

      Louisiana Appellate Project by Annette F. Roach, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, Marcus R. Patillo, Darius Q. Henderson, Assistant District Attorneys, for Appellee.
    Before STEWART, CARAWAY and MOORE, JJ. STEWART, J.
   STEWART, J.

| ¡),The defendant, Ronnie Henderson, pled guilty as charged to simple burglary of an inhabited dwelling and was sentenced to 10 years at hard labor, the first year to be served without benefit of probation, parole, or suspension of sentence. He now appeals his sentence as excessive. We affirm.

FACTS

The defendant was charged by bill of information with simple burglary of an inhabited dwelling in violation of La. R.S. 14:62.2, on September 20, 2012. On January 7, 2018, pursuant to a plea agreement, he pled guilty as charged with the sentence to be left to the trial judge’s discretion. The state agreed not to charge him as an habitual offender, even though this was his fourth felony offense. The trial judge explained that the charge carried a sentence of up to 12 years, with at least one year to be served without benefit of probation, parole, or suspension of sentence. The defendant indicated that he understood the nature of his plea, and upon being informed of his Boykin rights, he waived them.

According to the state, the victim hired the defendant to perform some yard work at her mother’s residence. The defendant asked to take a chainsaw that the victim had borrowed for him to use. The victim told him that he could not take the chainsaw or remove anything from the property. When the victim later returned to her mother’s residence, she found that the screen door was open. The chainsaw had been taken along with porcelain cups, glass cups and a matching ice pail, a blow dryer, some speakers, and other items. The authorities found the defendant and recovered most of the stolen items.

lsThe defendant admitted that these facts were substantially correct. After defense counsel indicated her belief that the defendant understood his rights and was making a knowing and intelligent waiver of them, the trial judge accepted his guilty plea.

The sentencing hearing took place on April 8, 2018, at which time the trial judge went over the presentence investigation report and the defendant’s extensive criminal history dating back to 1979. The trial judge noted that the defendant got his “first official felony” in Minden in 1995 when he pled to attempted simple burglary and was given a two-year hard-labor sentence. In 1999, he pled to felony theft and was sentenced to five years at hard labor. In 2003, he pled guilty to simple burglary and “got eight consecutive years” due to a parole violation. The trial judge noted that the defendant’s present plea was to his fourth felony offense and was “pretty much the same type of offense that you’ve been committing probably all your adult life.”

In reviewing the defendant’s social history, the trial judge noted that the defendant had experienced mental health issues, had been diagnosed as paranoid schizophrenic, and had begun receiving treatment in 1980. Noting that the defendant indicated he was in need of treatment, the trial judge guessed that the defendant had stopped taking his medication. Because the defendant was a fourth felony offender, the trial judge noted that probation was not available. The trial judge then sentenced the defendant to 10 years at hard labor, with one year without benefits, and with credit for time served.

|4The defendant filed a motion to reconsider sentence, asserting that the sentence was merely punitive and that he suffered from a mental illness. After the trial court denied the motion, the defendant’s appeal followed. The defendant argues that his sentence is unconstitutionally excessive.

DISCUSSION

Arguing that his sentence is excessive, the defendant points out that he was 52 years old at the time of the burglary, that he caused no damage to the home, that the items he took “had minimal value,” that he admitted his crime to the police, and that he accepted responsibility by pleading guilty. He asserts that none of his prior crimes involved violence against others and that he did not come into contact with anyone during the commission of the present offense. The defendant also argues that the trial judge did not give sufficient consideration to his long-term mental health issues and his current need for treatment. For these reasons, the defendant asserts that his 10-year sentence is nothing more than cruel and unusual punishment.

La. R.S. 14:62.2 provides that the penalty for simple burglary of an inhabited dwelling is imprisonment at hard labor for not less than one year, without benefit of parole, probation, or suspension of sentence, nor more than 12 years. The defendant’s sentence falls within the statutory range.

The test for reviewing an excessive sentence claim is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Lathan, 41,855 (La.App.2d Cir.2/28/07), 958 So.2d 890, writ denied, 2007-0805 (La.3/28/08), 978 So.2d 297, recon. denied, 2007-805 (La.8/29/08), 989 So.2d 87. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. The important elements which should be considered include the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of the offense, and the likelihood of rehabilitation. State v. Haley, 38,258 (La.App.2d Cir.4/22/04), 873 So.2d 747, writ denied, 2004-2606 (La.6/24/05), 904 So.2d 728. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App.2d Cir.12/13/06), 945 So.2d 277, writ denied, 2007-0144 (La.9/28/07), 964 So.2d 351.

Second, a sentence violates La. Const. Art. I, § 20 if it is grossly disproportionate to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Robinson, 40,983 (La.App.2d Cir.1/24/07), 948 So.2d 379.

A trial court has broad discretion to sentence within the statutory limits. Where a defendant pleads guilty to an offense which does not adequately describe his conduct, or receives a significant reduction in potential exposure to confinement through a plea bargain, the trial court has Ifigreat discretion in imposing even the maximum sentence possible for the pled offense. State v. Shirley, 41,608 (La.App.2d Cir.12/13/06), 945 So.2d 267, writ denied, 2007-1394 (La.4/4/08), 978 So.2d 321. Absent a showing of manifest abuse of that discretion, an appellate court may not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158; State v. June, 38,440 (La.App.2d Cir.5/12/04), 873 So.2d 939. The record shows that the trial court gave adequate consideration to the factors set forth in La. C. Cr. P. art. 894.1.

With regard to the defendant’s mental illness, there was no indication that it played any role in his commission of the crime or influenced his decision to plead guilty. The defendant was a fourth felony offender who received a significant benefit in that the state agreed not to charge him as an habitual offender. As pointed out by the trial judge, the instant offense was “pretty much” the same type that the defendant had previously committed. Though at the upper range, the sentence was within the statutory limits. On this record, we find that the trial court did not abuse its great discretion and that the sentence does not shock the sense of justice.

CONCLUSION

For the foregoing reasons, we affirm the defendant’s conviction and sentence.

AFFIRMED.


author: BROWN, Chief Judge.

text:
    STATE of Louisiana, Appellee v. James G. ROBINSON, II, Appellant.
    No. 48,819-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 26, 2014.

      Carey J. Ellis, III, Louisiana Appellate Project, for Appellant.
    Richard Z. Johnson, Jr., District Attorney, Ron C. Stamps, Britney A. Green, Assistant District Attorneys, for Appellee.
    Before BROWN, LOLLEY, and PITMAN, JJ.
   BROWN, Chief Judge.

11 Defendant, James Robinson, II, was convicted after a bench trial of aggravated second degree battery for the 2011 stabbing of Robert Stephenson. He was subsequently sentenced to ten years at hard labor, five of which were suspended with five years active supervised probation upon release. Defendant appealed, arguing that he did not validly waive his right to a jury trial. Following a jurisdictional check, this court ordered that the record on appeal be supplemented with all pretrial transcripts. Following the supplementation of the record, defendant was granted leave to file a supplemental brief in which he argues that his jury trial waiver was also untimely under La. Const. Art. 1, § 17A. For the reasons set forth herein, defendant’s conviction and sentence are affirmed.

Discussion

The Waiver

On appeal, defendant challenges the validity of his jury trial waiver, arguing that it was not knowingly and voluntarily entered. He complains that the trial judge failed to first advise him of his right to a jury trial and, in his original brief on appeal, states that the record “does not contain any reference at all that [defendant] personally and validly waived his right to a trial by jury.” As mentioned, this court ordered that the record be supplemented with the transcript of the pretrial hearings. The record now includes a transcript of the colloquy between the trial judge and defendant concerning his jury trial waiver.

The bill of information charged that on November 5, 2011, in DeSoto Parish, Louisiana, defendant committed the crime of second degree battery. |2In December 2011, defendant pled not guilty and his trial was set for the jury term of January 17, 2012. Thereafter, continuances were granted for trial settings for jury terms in March and April 2012.

The April 23, 2012, transcript of the jury trial waiver reads as follows:

The Court: Your attorney has indicated your right to exercise your decision to waive a jury trial. I want to make sure that is your decision.
The defendant: Yes, sir.
The Court: Any questions about what you are doing?
The defendant: No sir.
The Court: All right. We’re going to set it for August 6th, that week. So any day, be back here on August 6th unless you’re instructed otherwise. Okay?
The defendant: Yes, sir.

The bench trial commenced and ended on November 8, 2012, with a verdict of guilty as charged. Defendant never requested that his waiver of a jury be set aside until this appeal. La. C. Cr. P. art. 780(A) provides in pertinent part that a defendant charged with an offense other than one punishable by death may knowingly and intelligently waive a trial by jury and elect to be tried by the judge.

In determining whether a defendant voluntarily waived his right to a jury trial, a trial court is required only to determine whether the defendant’s waiver was made knowingly and intelligently. State v. Campbell, 42,099 (La.App.2d Cir.06/20/07), 960 So.2d 368. A waiver of trial by jury is valid only if the defendant acted voluntarily and knowingly. State v. Kahey, 436 So.2d 475 (La.1983). Because of the importance attached to the right |sto a jury trial, a trial judge must exercise great care in allowing a criminal defendant to waive the right. Id.

Although it remains the preferred method for the district court to advise a defendant of the right to trial by jury in open court before obtaining a waiver, such a practice is not statutorily required. Id.; State v. Campbell, supra. Likewise, it is preferred, but not necessary, for the defendant to waive the right to a jury trial personally. State v. Pierre, 02-2665 (La.03/28/03), 842 So.2d 321. Counsel may waive the right on the defendant’s behalf, provided that the defendant’s decision to do so was made knowingly and intelligently. Id.

While the trial judge must determine if a defendant’s jury trial waiver is knowing and intelligent, that determination does not require a Boykin-like colloquy. State v. Campbell, supra. Prior to accepting a jury trial waiver, the trial court is not obligated to conduct a personal colloquy inquiring into a defendant’s educational background, literacy, and work history. Id. Additionally, nothing in the statutes or the jurisprudence requires the trial judge to inform a defendant of the details involving the number of jurors and the votes necessary for a conviction. Id.

In the instant ease, defendant, with counsel, personally appeared before the trial court and, on defendant’s motion, defense counsel informed the judge of defendant’s desire to waive his rights to a jury trial. We note that his case had previously been set for a jury trial. The trial court personally addressed defendant and confirmed that it was defendant’s desire to be tried by the judge rather than a jury. Defendant personally and 14expressly agreed that it was his intention to waive a jury trial. The trial court then accepted the waiver. Contrary to defendant’s assertion, the trial court was required only to determine whether defendant’s waiver was made knowingly and intelligently. That determination did not require a Boy-kin-like colloquy or any in-depth discussion regarding jury trial procedure. State v. Campbell, supra. The trial court did not err in accepting defendant’s waiver and permitting him to proceed to go to trial before the judge alone.

La. Const. Art. I, § 17(A)

La. Const. Art. I, § 17(A), as amended in 2010, provides that, except in capital cases, a defendant may waive his right to a trial by jury but no later than 45 days prior to the trial date. The waiver is irrevocable. State v. Chinn, 11-2043 (La.02/10/12) 92 So.3d 324. In State v. Bazile, 12-2243 (La.05/07/13), — So.3d -, 2013 WL 1880395, the Louisiana Supreme Court held that the 45-day period is applied prior to the initial trial date regardless of any subsequent continuances.

In State v. Chinn, supra, the issue before the court was whether the state could successfully object to a jury trial waiver by requesting an initial trial setting of less than 45 days from arraignment. This was admittedly the strategy of the state to ensure a jury trial. To allow the state to effectively take away a defendant’s right to waive a jury trial by a quick trial setting was not in keeping with the spirit of the constitutional amendment. The court in State v. Chinn, supra at 330, explained:

The clear intention of the redactors of La. Const, art. I, § 17(a) was to prevent last minute waivers by criminal defendants of the 15right to a jury trial. Consequently, La. Const, art. I, § 17(a) was enacted to limit the time period in which a criminal defendant charged with a non-capital offense may exercise his or her constitutional right to waive a jury trial.

In State v. Bazile, supra, the supreme court explained its decision in State v. Chinn, supra, and further held that the reference to the “trial date” in the 2010 amendment must refer to the initial trial setting of the matter. In State v. Bazile, the defendant waived his right to a jury trial over a year after his arraignment, but less than 45 days from his actual trial date. Bazile’s initial trial date had been continued and reset several times prior, to his jury trial waiver. Finding that, at the time Bazile waived his right to a trial by jury, he was prohibited by La. Const. Art. I, § 17(A) from exercising that waiver, the supreme court explained, in State v. Bazile, supra at 18, — So.3d at-:

The reference in the constitutional provision to a “trial date” must, we believe, refer to the initial trial setting of the matter. As this case shows, an initial trial setting may be continued again and again, which would turn a defendant’s actual date of trial into a moving target. Since trial settings are often extended for a variety of reasons, there must exist a fixed point in time by which the timeliness of a defendant’s jury waiver can be determined. If the term “trial date” is interpreted to mean a date which could be continued, this interpretation would conflict with the clear intention of the provision to prevent last minute jury trial waivers. Thus, we interpret the term “trial date” in La. Const, art. I, § 17(a) to mean the initial trial setting,

A recent decision by the Third Circuit is also instructive. In State v. Prudhomme, 12-347 (La.App.3d Cir.11/07/12), 101 So.3d 565, the defendant sought to exercise his right to waive jury trial, albeit untimely. There was no objection by the state and, on this basis, the Third Circuit distinguished State v. Chinn, supra, and determined that the waiver was validly entered.

[(¡Furthermore, in State v. Carter, 11-758 (La.App.5th Cir.05/31/12), 96 So.3d 1283, the Fifth Circuit actually declined to consider the issue where neither the defendant nor the state objected to the waiver and both “acquiesced in the bench trial date.” The Carter court cited La. C. Cr. P. art. 841, stating that the issue could not be raised for the first time on appeal.

In this case as in State v. Prudhomme, supra, and State v. Carter, supra, the state never objected to defendant’s waiver. La. C. Cr. P. art. 841(A) provides that an irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. Further, as in State v. Prudhomme, supra, because there was no objection from the state and no attempt by the state to deprive defendant of his right to exercise the waiver, the waiver was validly entered.

Significantly, the spirit of the 2010 amendment is not offended by validating defendant’s waiver in this ease. In response to the 2010 constitutional amendment to Art. I, § 17(A) and State v. Bazile, supra, with an effective date of August 1, 2013, by Act No. 343, the legislature amended La. C. Cr. P. art. 780 to provide that waiver of a jury trial must be by written motion, signed by the defendant and defendant’s counsel unless defendant has waived counsel and must be no later than 45 days prior to the trial date; however, with the consent of the district attorney, trial by jury may be waived within the 45 days prior to trial. For these reasons, we conclude that the waiver is valid and does not run afoul of the 2010 constitutional amendment.

nError Patent Review

m, . • , courf faueu to advise defendant of his rights under La. C. Cr. P. art. 930.8. It is unnecessary to remand on this issue; defendant is hereby advised that no application for post-conviction relief shall be considered if filed more than two years after the judgment of conviction and sentence has become final. State v. Gipson, 45,121 (La.App.2d Cir.04/14/10), 34 So.3d 1090, writ denied, 10-1019 (La.11/24/10), 50 So.3d 827.

Conclusion

For the foregoing reasons, the conviction and sentence of defendant, James G. Robinson, II, are affirmed.


text:
    In re Medical Review Panel Claim of Marilyn LEWIS, Plaintiff-Appellant v. SERENITY SPRINGS HOSPITAL, Dr. Aruna Gallapalli and Dr. Steven Venteers, Defendants-Appellees.
    No. 48,820-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 26, 2014.

      Nelson & Nelson, by Otha Curtis Nelson, Sr., for Plaintiff Appellant Marilyn Lewis.
    Law Offices of Sheryl Story, by Micholle Walker Mordock, New Orleans, for Defendant Appellee Solutions Medical Consulting, LLC, dba Serenity Springs Specialty Hospital.
    Gold, Weems, Bruser, Sues & Rundell, Alexandria, by Eugene Joseph Sues, Sarah Spruill Couvillon, for Defendant Appellee Dr. Steven Venters.
    Hudson, Potts & Bernstein, Monroe, by Donald H. Zeigler, III, Margaret H. Blackwell, for Defendant Appellee Dr. Aruna Gullapalli.
    Before WILLIAMS, STEWART and DREW, JJ.
   STEWART, J.

laThe plaintiff, Marilyn Lewis, appeals a final judgment that granted peremptory exceptions of prescription filed by the defendants Solutions Medical Consulting, LLC, d/b/a Serenity Springs Speciality Hospital (hereafter “Serenity Springs”), Dr. Aruna Gullapalli, and Dr. Steven Ven-ters and dismissed her medical malpractice action with prejudice. We find that the defendants’ exceptions were properly granted and affirm the trial court’s judgment.

FACTS

On September 23, 2011, Lewis filed suit in district court against Serenity Springs and Dr. Gullapalli for medical malpractice. The same day, by facsimile, she requested the formation of a medical review panel to review her claim of alleged malpractice that occurred between September 23, 2010, and September 30, 2010, when she claims she was improperly committed and detained against her will.

By letter dated September 29, 2011, the Patient’s Compensation Fund (“PCF”) acknowledged receipt of Lewis’s request and informed her that Dr. Gullapalli and Serenity Springs were qualified healthcare providers under the Medical Malpractice Act (“MMA”). The letter included the following pertinent information:

In accordance with LA R.S. 40:1299.47A(l)(c) a filing fee of $100 per qualified defendant is due within 45 days of the postmark of this | .¡notice. Please remit a payment to the Patient’s Compensation Fund in the amount of $200. This filing fee may only be waived upon receipt of an affidavit from a physician or a district court forma pauperis ruling as set forth in La. R.S. 40:1299.47A(l)(d). Failure to comply shall render the request invalid and without effect and the request shall not suspend the time within which suit must be instituted.

By letter dated December 6, 2011, the PCF informed Lewis that it had not received the filing fee in the amount of $200, that she failed to comply within the time allowed (45 days), and that her claim (PCF File No. 2011-01207) “is considered invalid and without effect.”

With regard to Lewis’s suit filed in district court on September 23, 2011, both Serenity Springs and Dr. Gullapalli filed exceptions of prematurity. On January 23, 2012, the trial court heard and sustained the exceptions of prematurity. The judgment signed on February 22, 2012, dismissed Lewis’s suit without prejudice.

Also January 23, 2012, Lewis, who had now obtained the aid of counsel, filed a second petition for damages in the district court naming Serenity Springs, Dr. Gulla-palli, and “Dr. Steven Veenter” as defendants. On or about January 23, 2012, Lewis forwarded the petition to the PCF and again requested formation of a medical review panel.

By letter dated February 14, 2012, the PCF wrote to counsel for Lewis acknowledging receipt of the request for a medical review panel (PCF File No. 2012-00138). The letter stated that all three defendants were qualified providers under the MMA and that a filing fee of $100 per qualified defendant, a total of $800, would be due within 45 days of the postmark of the letter.

|4In response to Lewis’s petition for damages filed in district court, all three defendants filed exceptions of prematurity. Serenity Springs and Dr. Gullapalli also filed exceptions of res judicata. By judgment rendered June 25, 2012, the trial court granted the exceptions of prematurity and res judicata, and dismissed Lewis’s district court suit without prejudice.

On July 10, 2012, Serenity Springs filed a peremptory exception of prescription seeking dismissal of the medical review panel proceedings before the PCF. On July 23, 2012, Dr. Venters also filed an exception of prescription. Both asserted that the January 23, 2012, request for a medical review panel filed more than one year after the alleged acts of malpractice is prescribed on its face. Moreover, they asserted that none of Lewis’s prior filings suspended or interrupted the prescriptive period. Their exceptions were supported by exhibits, including all of the filings, letters, and judgments referenced above.

On September 20, 2012, the trial court heard the exceptions of prescription. The defendants submitted on the record and offered the exhibits attached to their exceptions into evidence. Opposing the exceptions, Lewis chose to testify. Lewis explained that when she initially filed suit in district court and filed a complaint with the PCF on September 23, 2011, she thought she was following the correct procedure. She admitted receiving information about paying the filing fee within the 45-day |5period. She claimed that she mailed a personal check for $200 and that she thought the money had been taken out of her account. She also admitted that she received the letter dated December 6, 2011, from the PCF stating that she had failed to remit the filing fee. Lewis testified that she then sent a money order on December 14, 2011, but the PCF returned it to her and informed her that her clam was still invalid. A copy of the money order was introduced into evidence. When questioned by the trial court, Lewis finally admitted that she had no documentation to show that she ever sent a $200 check to the PCF.

After taking the matter under advisement, the trial court gave a written ruling on November 18, 2012, sustaining the exceptions of prescription filed by Serenity Springs, Dr. Gullapalli, and Dr. Venters. The trial court found that neither the request for a medical review panel filed by Lewis on September 23, 2011, the petition for damages filed that same day, nor petition for damages filed on January 23, 2012, had any effect on the running of prescription on Lewis’s medical malpractice claim. Because the September 23, 2011, request for a medical review panel was deemed invalid and without effect due to Lewis’s failure to pay the filing fee within the required 45-day period, the trial court found that the request did not suspend prescription. Moreover, the trial court found that the two suits filed by Lewis in district court were premature and that the premature filing of the medical malpractice suits did not interrupt prescription. A final judgment granting the peremptory-exceptions of prescription, dismissing the matter in its entirety with prejudice, and dissolving and dismissing the medical review 1 (¡panel proceedings, all at Lewis’s costs, was rendered on January 15, 2013. This appeal by Lewis followed.

DISCUSSION

Lewis raises one assignment of error on appeal. She asserts that the trial court was manifestly erroneous in sustaining the exceptions of prescription as to the complaint filed on “January 23, 2012,” with the PCF when Exhibit A attached to Dr. Ven-ters’ exception showed that the complaint was filed on January 20, 2012.

We find no merit to this assignment of error. The exhibit referred to by Lewis is a letter to her attorney from the PCF dated February 14, 2012. The letter both refers to a file date of January 20, 2012, and states that the request for a medical review panel was received on January 23, 2012. Whether the correct date is January 20, 2012, or January 23, 2012, is of no matter, because Lewis’s request was prescribed on its face regardless of which date is correct.

Lewis next argues that her original petition for damages and PCF complaint filed on September 23, 2011, should have suspended or interrupted prescription and that her subsequent filings in January 2012 should be considered as amendments of the pleadings. She further argues that her petition for damages filed on January 23, 2012, added additional defendants and causes of action and that the exceptions of prescription, prematurity, and res judicata should not have been granted. Again, we find no merit to this argument.

The judgment rendered June 25, 2012, granting exceptions of prematurity and res judicata as to the district court suit filed by Lewis on |7.January 23, 2012, is not properly before this court for review. The only judgment at issue in this appeal is the final judgment rendered on January 15, 2013, granting the defendants’ peremptory exceptions of prescription and ordering the medical review panel proceedings (PCF File No. 2012-00138) dismissed with prejudice.

Generally, the party who asserts the peremptory exception of prescription has the burden of proof; however, the burden of proof shifts to the plaintiff when his petition appears prescribed on its face and he contends that prescription was either suspended or interrupted. Masters v. Fields, 27,924 (La.App.2d Cir.1/24/96), 666 So.2d 1333. When evidence is introduced at the hearing on a peremptory exception, the trial court’s ruling is reviewed under the manifest error standard. Carter v. Ochsner Clinic Foundation, 07-889 (La.App.5th Cir.3/11/08), 978 So.2d 562, writ denied, 2008-0936 (La.8/29/08), 989 So.2d 99. A health care provider may raise any exception available pursuant to La. R.S. 9:5628, including the exception of prescription, prior to completion of the medical review panel process. La. R.S. 40:1299.47(B)(2)(a); Carter, supra.

Actions for medical malpractice must be filed within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect. La. R.S.9:5628(A). Even a claim filed within one year of the date of discovery must still be filed within three years from the date of the alleged act, omission, or neglect. Id.

According to Lewis’s various filings, the alleged malpractice occurred between September 23, 2010, and September 30, 2010, when she claimed |8that she was illegally committed and detained at Serenity Springs. As such, her complaint with the PCF filed on or about January 28, 2012, was filed more than one year after the date of the alleged acts of malpractice and was prescribed on its face. Thus, the burden was on Lewis to prove that her malpractice claim had not prescribed.

Lewis states in her brief that the PCF complaint filed September 23, 2011, suspended or interrupted prescription. However, the record shows that this complaint was deemed invalid and without effect due to Lewis’s failure to pay the statutorily mandated filing fee. Under La. R.S. 40:1299.47(A)(l)(c), a claimant has 45 days from the mailing date of the confirmation of receipt of the request for review to pay a filing fee in the amount of $100 per qualified defendant. Failure to do so or to satisfy the waiver requirements under La. R.S. 40:1299.47(A)(l)(d) “shall render the request for review of a malpractice claim invalid and without effect” and the invalid request shall not suspend the time within which the malpractice suit must be instituted. La. R.S. 40:1299.47(A)(l)(e).

The case In re Medical Review Panel Proceedings of Ouder, 2007-1266 (La.5/2/08), 991 So.2d 58, is similar to the facts of the present matter. The act of malpractice occurred on April 23, 2004, when a sponge was left behind during surgery on Ms. Ouder. On March 8, 2005, Ouder requested review of her clam by a medical review panel. By letter dated March 21, 2005, the PCF informed her that a $200 filing fee must be remitted within the 45-day period or else her request would be rendered invalid and without effect and would not suspend the time for filing her | ^malpractice suit. When Ouder failed to timely remit the fee, the PCF informed her that her request was deemed invalid, without effect, and not considered filed. When she then attempted to pay the filing fee, the PCF rejected it as untimely and refunded it to her. On June 29, 2005, Ouder filed another request for a medical review panel and submitted the filing fee. The defendants raised the exception of prescription, which the trial court sustained. On appeal, Ouder argued that the PCF exceeded its authority in deeming her “timely initial filing invalid and without effect, simply because she did not timely remit the filing fee.” Id., 2007-1266, p. 4, 991 So.2d at 61. The appellate court rejected Ouder’s argument and concluded that the statutory language is clear that the failure to pay the filing fee within the required time period renders the request for review invalid and without effect and shall not suspend the prescriptive period for filing a medical malpractice action. Ouder’s request filed on June 29, 2005, more than one year from the alleged act of malpractice was prescribed.

In In Re Herring, 2007-1087 (La.App. 3d Cir.1/30/08), 974 So.2d 924, Herring filed a timely request for review of his medical malpractice complaint but failed to remit the filing fee within the 45-day period. The PCF then notified Herring and the two defendants by letter that he had failed to timely pay the filing fee and that it no longer considered his complaint filed. After Herring filed another complaint and paid the filing fee, the two defendants filed exceptions of prescription, which the trial court granted. On appeal, Herring argued that the filing fee was merely an incidental requirement that related back to the timely-filed complaint and did not affect the running of prescription. The appellate court rejected this argument. Citing Medical Review Panel of Davis v. Louisiana State University Health Sciences Center-Shreveport, 41,273 (La.App.2d Cir.8/25/06), 939 So.2d 539, writ denied, 06-2343 (La.12/8/06), 943 So.2d 1092, the court concluded that the payment of the filing fee is not incidental and that the complaint is not filed if the filing fee is not paid timely.

The appellate court also rejected Herring’s argument that, under La. C.C.P. art. 934, he should be able to amend his complaint to cure any defect: The court reasoned that the failure to pay the filing fee cannot be cured by amendment. Because the failure to pay rendered the request for review invalid and without effect, there was nothing for an amendment to relate back to. The appellate court also rejected the argument that the PCF had no authority to dismiss Herring’s complaint, noting that the PCF’s letter merely stated what La. R.S. 40:1299.47(A)(l)(e) provides and that it was the trial court which dismissed his complaint by granting the exceptions of prescription. The court concluded that Herring’s June 27, 2006, complaint did not suspend prescription because his failure to timely pay the filing fees rendered his review request invalid and without effect.

In the present matter, Lewis filed a timely request on September 23, 2011, for review of her malpractice claim. Though Lewis testified that she sent a personal check and thought the money had been taken from her account, she admitted that she had nothing to prove that she had sent the check. The trial court’s ruling indicates that it found that Lewis did not pay the filing fee, and this factual finding is not manifestly erroneous. Because Lewis failed to pay the $200 filing fee as required by 40:1299.47(A)(l)(c), her request for review was invalid and without effect and did not operate to |n suspend the prescriptive period. Moreover, her belated attempt to pay the filing fee with a money order did not render her request valid. The PCF returned the money order as required by La. R.S. 40:1299.47(A)(6):

(6) In the event the board receives a filing fee that was not timely paid pursuant to Subparagraph (l)(c) of this Subsection, then the board shall return, or refund the amount of, the filing fee to the claimant within thirty days of the date the board receives the untimely filing fee.

For these reasons, we find that the trial court did not err in determining that the filing of the request for review on September 23, 2011, did not suspend prescription.

We also find no error in the trial court’s finding that the two suits filed in district court by Lewis were premature and had no effect on the prescriptive period. La. R.S. 40:1299.47(B)(l)(a)(i) states:

No action against a health care provider covered by this Part, or his insurer, may be commenced in any court before the claimant’s proposed complaint has been presented to a medical review panel established pursuant to this Section.

The supreme court has interpreted this provision as requiring a claimant to “provoke a medical review panel and receive an opinion from it before he can file suit in a court of law.” LeBreton v. Rabito, 97-2221 (La.7/8/98), 714 So.2d 1226, 1230, citing Everett v. Goldman, 359 So.2d 1256 (La.1978). Under LeBreton, the premature filing of a medical malpractice suit, prior to the request for a medical review panel, does not interrupt prescription. See Johnson v. City of Bossier City, 35,030 (La.App.2d Cir.8/22/01), 793 So.2d 550. Accordingly, the suits filed by Lewis in district court on September 23, 2011, and on January 23, 2012, were premature and had no effect on the prescriptive period.

|1?We find that Lewis’s request for review of her claim by a medical review panel filed on or about January 23, 2012, was filed more than one year after the alleged acts of malpractice and is prescribed. We find no error in the trial court’s dismissal of her claim with prejudice and dissolution of the review panel process.

CONCLUSION

For the reasons explained in this opinion, we affirm the trial court’s judgment. Appeal costs are assessed to the appellant, Marilyn Lewis.

AFFIRMED.

      . The case heading lists "Dr. Aruna Gallapal-li” and "Dr. Steven Venteers” as defendants. However, the record indicates the correct spelling of their last names to be "Gullapalli” and "Venters," and they will be referred to as such in this opinion.

      . Neither Lewis’s petition filed in district court nor her request for formation of a medical review panel named Dr. Venters as a defendant. However, a "Dr. Steven Ven-teers” was referred to in her narrative of the alleged malpractice that was forwarded to the PCF. In its letter dated September 29, 2011, the PCF informed Lewis that “Steve Ven-teers" was not considered qualified under the MMA.

      . The exceptions of prematurity and the exceptions of res judicata are not included in the appeal record.

      . The record does not include an exception of prescription filed by Dr. Gullapalli, but the transcript of the September 20, 2012, hearing on the exceptions indicates that each of the defendants had filed exceptions. The trial court’s written ruling and judgment also references exceptions by all three defendants.


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

text:
    9029 JEFFERSON HIGHWAY, L.L.C. v. S & D ROOFING, L.L.C.
    No. 13-CA-588.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 26, 2014.

      Albert J. Nicaud, Jeffrey M. Siemssen, Attorneys at Law, Metairie, Louisiana, for Plaintiff/Appellee.
    Richard G. Perque, Attorney at Law, New Orleans, Louisiana, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, ROBERT M. MURPHY, STEPHEN J. WINDHORST and HANS J. LILJEBERG.
   STEPHEN J. WINDHORST, Judge.

[^Defendants appeal from a judgment that dismissed their Motion for New Trial as untimely. For the reasons that follow, we reverse the decision of the trial court and remand the matter for further proceedings. We further order that the nunc pro tunc minute entry of June 25, 2013, be stricken from the record.

PROCEDURAL HISTORY

The record before us reflects that plaintiffs, 9029 Jefferson Highway, L.L.C. (“9029 Jefferson”) filed a suit for damages and breach of contract after it hired defendants to repair a leaking roof. On April 16, 2010, 9029 Jefferson obtained a default judgment in the amount of $15,000.00.

On November 11, 2010, the members of S & D Roofing, L.L.C. filed an Affidavit of Dissolution, thereby exposing its members, Shane Dufrene and David M. Cain, to personal liability.

|sOn July 8, 2011, 9029 .Jefferson filed a motion for seizure of personal property of the members of defendant S & D Roofing, L.L.C. Subsequently, on August 18, 2011, defendants filed a Motion for New Trial. In the Motion for New Trial, defendants argued that the judgment was contrary to the law and evidence. They further argued that they had not received notice of the default judgment and therefore any further proceedings would be premature. On February 2, 2012, in open court, after finding that defendants had not been served with notice of the default judgment, the trial court dismissed the motion for seizure as premature, and the Motion for New Trial was continued without date. The minute entry prepared for that date reflects, and the transcript confirms, that the Motion for New Trial was continued without date. However, when counsel for 9020 Jefferson submitted a prepared judgment for signature, the judgment incorrectly stated that the Motion for New Trial was dismissed as premature. The trial court signed the submitted judgment on February 2, 2012.

Notice of the original default judgment was issued on June 11, 2012. No return of service whatsoever appears in the record. According to the transcript and briefs filed in this court, the April 16, 2010 default judgment was not personally served on Shane Dufrene until June 14, 2012, and was personally served on David Cain on July 18, 2012.

On July 20, 2012, defendants filed a Motion to Reset the Motion for New Trial. A second Motion for New Trial is not in the record, although the transcript states that one was filed on August 18, 2012. The trial court denied the Motion for New Trial as untimely on November 15, 2012. Defendant’s motion for appeal was granted on that date.

|40n June 25, 2013, the trial court issued a nunc pro tunc minute entry for the minute entry of December 12, 2011, which contains both the original language that the Motion for New Trial was continued without date, as reflected in the transcript of the hearing, and additional, inconsistent language which states that the Motion for New Trial was dismissed without prejudice as premature.

In this appeal, defendants allege that the trial court erred in dismissing the Motion for New Trial as untimely. They contend that the transcript, in which the court stated that it would continue the hearing without date, prevails over the signed judgment, which was prepared by opposing counsel and did not reflect the decision made by the trial judge on the record.

DISCUSSION

La. C.C.P. art. 4907 provides for the delay in filing a motion for new trial in parish courts and it provides that “The delay for applying for a new trial shall be seven days, exclusive of legal holidays. Where notice of judgment is required, this delay commences to run on the day after the clerk has mailed, or the sheriff has served, the notice of judgment.”

The trial court erred in finding that the Motion for New Trial was untimely. Defendants’ first Motion for New Trial was filed after the judgment of default was signed, but prior to notice of judgment. There is nothing in the Code of Civil Procedure which prohibits a party from applying for a new trial before service of the notice of judgment. In fact, the Code of Civil Procedure does not prohibit “premature” filing of a motion for new trial prior to the signing of judgment, but |fi“simply establishes standards when such a motion is too late.” Thompson v. Bullock, 236 So.2d 892, 898 (La.App. 3 Cir.1970) writ refused, 256 La. 894, 240 So.2d 231 (1970). If the Code of Civil Procedure does not prohibit the filing of a motion for new trial prior to judgment, then a fortiori, it does not prohibit the filing of a motion for new trial after judgment is rendered and signed, but prior to mailing of notice or service of that judgment. Accordingly, since the seven-day delay period for filing of a motion for new trial had not begun to run, the filing of the defendants’ Motion for New Trial was neither premature nor untimely. Dismissal on grounds of prematurity was therefore error.

In addition, we are concerned that the trial court decided, and the parties were informed, in open court, that the Motion for New Trial was continued without date. Despite this ruling, counsel for 9029 Jefferson submitted and obtained the court’s signature on a judgment dismissing his opponent’s motion. Aside from our above discussion on the merits of dismissal based on prematurity, the judgment of December 12, 2011 is further reversible because it was not what the court had decided. A written judgment which is inconsistent with and clearly contrary to the ruling rendered by the trial judge in open court and on the record, and entered into the minutes, is erroneous and subject to reversal.

It is also clear from the transcript that the original minute entry of December 12, 2011 stating that the Motion for New Trial had been continued without date was correct, and that the statement in the nunc pro tunc entry of June 25, 2013, that the Motion for New Trial had been dismissed by the court on December 12, 2011 was not correct. We therefore order that the nunc pro tunc minute entry of June 25, 2013 be stricken from the record.

| fiEven assuming that the judgment of December 12, 2011, which dismissed the Motion for New Trial has legal effect, defendants filed a Motion to Reset the Motion for New Trial two days after service was made on Mr. Cain. It is clear from this pleading that the intent of the defendants was to move for a new trial. This court has said that “Courts should look through the caption of pleadings in order to ascertain their substance and to do substantial justice to the parties.” The trial court has a duty to recognize the true nature of the pleadings. Reynolds v. Brown, 11-525 (La.App. 5 Cir. 12/28/11), 84 So.3d 655, 659 (citations omitted). Accordingly, we construe the motion to reset as a motion for new trial. This finding is consistent with our pronouncement in Calhoun v. Deslattes, 94-578 (La.App. 5 Cir. 12/14/94), 648 So.2d 993, 994 in which we said that “It is well settled that, in cases such as this one involving a motion for new trial after a default judgment, public policy considerations weigh in defendant’s favor, that every litigant should be allowed his day in court.”

We find no merit to 9029 Jefferson’s contention that defendants had actual notice of judgment in April when it filed the motion for seizure of property, and therefore the original Motion for New Trial of August 18, 2011, and by implication the motion to reset on July 20, 2012, were untimely. Any actual knowledge of the signing of the judgment outside the record and absent compliance with the mailing or service requirement is not sufficient to cause the new trial and appeal delays to commence. Johnson v. E. Carroll Det. Ctr., 27,075 (La.App. 2 Cir. 6/21/95), 658 So.2d 724, 727.

CONCLUSION

It is clear that the Motion for New Trial was neither premature nor untimely, and that its dismissal on that ground, and in disregard of what had actually been ordered in open court and on the record, was error. Because the trial court 1 erroneously denied defendants’ Motion for New Trial as untimely, it did not address the merits of the motion. Accordingly, we remand this case to the trial court for consideration of the merits of defendants’ Motion for New Trial. See, Marshall v. Allstate Insurance Co., 00-79 (La.App. 5 Cir. 6/27/00), 762 So.2d 1257, 1259.

For the reasons stated above, the judgment denying the Motion for New Trial as untimely is reversed. This matter is remanded to the trial court for consideration of the Motion for New Trial on its merits, and for further proceedings, if any. In addition, we order that the nunc pro tunc minute entry of June 25, 2013 be stricken from the record. All costs of this proceeding are assessed against plaintiff, 9029 Jefferson Highway, L.L.C.

REVERSED AND REMANDED.

LILJEBERG, J.,

Dissents with Reasons.

hi have considered the majority’s decision and must respectfully dissent therefrom. While I agree that the defendants’ first Motion for New Trial was not premature or untimely filed, this motion was subsequently dismissed. It is true that the trial judge indicated in open court that the motion was continued without date, not dismissed. However, the trial judge later signed a written judgment dismissing the Motion for New Trial, which, in my view, prevails over a transcript.

If defendants had timely sought review from this Court from the February 2, 2012 judgment dismissing the Motion for New Trial, I would have agreed that the matter should be reversed due to the disparity between the transcript and the judgment. However, after receiving a copy of the February 2, 2012 judgment, defendants did not seek review from this Court. Therefore, I believe that the terms of the judgment dismissing the Motion for New Trial became final.

Additionally, even if the Motion to ReSet Motion for New Trial were to be construed as a newly filed Motion for New Trial, I do not believe it was timely. While the majority notes that the Motion to Reset Motion for New Trial was filed on July 20, 2012, which was two days after service of the default judgment on David Cain, Shane Dufrene was also a registered agent for service of process and he had been served with the default judgment on June 14, 2012.

| ^Accordingly, because defendants did not seek review of the judgment dismissing their first Motion for New Trial, and defendants’ Motion to Reset Motion for New Trial cannot be construed as a timely filed Motion for New Trial, I believe that the trial judge correctly denied defendants’ Motion for New Trial as untimely, and I would affirm this judgment.

      . The record reflects that there was no notice of mailing or service of this judgment.

      . This was defendant's second motion to reset. A prior motion was filed on May 11, 2012.

      . This language parallels the language of La. C.C.P. art. 1974 which states that "The delay for applying for a new trial shall be seven days, exclusive of legal holidays. The delay for applying for a new trial commences to run on the day after the clerk has mailed, or the sheriff has served, the notice of judgment as required by Article 1913.” Accordingly, the cases applicable to La. C.C.P. art.1974 are also applicable to La. C.C.P. art. 4907.

      .Courts have also considered a motion for new trial filed before judgment is signed as a motion to reopen the case for further evidence. Wood v. Beard, 268 So.2d 152, 155 (La.App. 3 Cir. 1972); Thompson, supra.

      . The hearing on the motion for new trial filed on July 18, 2011 was held on December 12, 2011. The judgment was signed by the trial court on February 2, 2012. The transcript of the hearing was filed for the record on July 11, 2013.