author: JUDE G. GRAVOIS, Judge.

text:
    Ronald GRACI and Sunkissed Tanning Studios, L.L.C. v. GASPER JOHN PALAZZO, JR., L.L.C.
    No. 12-CA-853.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 30, 2013.

      Joseph M. Bruno, Jr., Attorney at Law, New Orleans, LA, for Plaintiff/Appellee.
    Matthew K. Brown, Attorney at Law, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, JUDE G. GRAVOIS, and ROBERT A. CHAISSON.
   JUDE G. GRAVOIS, Judge.

| ^Defendant, Gasper John Palazzo, Jr., L.L.C., has appealed a trial court money judgment in favor of plaintiffs, Ronald Graci and Sunkissed Tanning Studios, L.L.C., in a suit over a lease dispute. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On January 12, 2004, plaintiff, Ronald Graci, as lessee, and defendant, as lessor, entered into a lease of an approximately 1,500 square foot retail unit in a shopping center known as the Colonnadas Plaza, located in Slidell, Louisiana. The lease commenced on March 1, 2004 and was for a term of three years, with lessee being granted two three-year renewal options. At the time the lease was confected, the premises consisted of a glass store front, two side walls, a back wall, and a functioning bathroom. Plaintiff subsequently constructed, at his own expense, a tanning salon “build out” within the premises, including twelve small Rtanning rooms, into at least ten of which plaintiff placed tanning beds. The tanning salon was operated under the name “Sunkissed Tanning Studios.”

On August 29, 2005, the shopping center was severely damaged by Hurricane Katrina. Defendant cleaned up and gutted out the entire shopping center, including plaintiffs unit. On September 26, 2005, plaintiff notified defendant that he wished to exercise his option under the lease to have the premises reconstructed by defendant. Defendant commenced but did not complete the reconstruction.

On October 6, 2006, defendant filed an eviction proceeding against plaintiff in Sli-dell City Court. In response, plaintiff filed for a temporary restraining order against defendant in the 22nd Judicial District Court to enjoin the eviction. The trial judge in the 22nd Judicial District Court proceeding granted the temporary restraining order. The parties subsequently agreed to indefinitely continue the preliminary injunction hearing pending settlement negotiations. However, on January 29, 2007, defendant filed a rule to evict plaintiff in the 22nd Judicial District Court proceeding, which was granted on March 14, 2007. Plaintiff did not appeal the judgment of eviction.

On March 23, 2007, plaintiff filed the instant suit against defendant in the 24th Judicial District Court, requesting damages for breach of contract and wrongful eviction. In response, defendant filed an exception of lis pendens, which was denied by the trial judge. Defendant then filed a reconventional demand against plaintiff seeking rent, penalties, and attorney’s fees. Defendant later filed a motion for partial summary judgment, arguing that plaintiffs claims were res judicata because they were disposed of in the 22nd Judicial District Court proceeding. The trial court agreed with defendant and dismissed all of plaintiffs |4claims with prejudice. In a subsequent Motion for Summary Judgment and/or Judgment on the Pleadings, defendant prevailed and was awarded unpaid rent, late charges, and attorney’s fees. Plaintiff appealed these judgments, which were reversed by this Court and the matter was remanded for further proceedings. Graci v. Gasper John Palazzo, Jr., L.L.C., 09-347 (La.App. 5 Cir. 12/29/09), 30 So.3d 915, writ denied, 10-0248 (La.4/9/10), 31 So.3d 394.

On remand, a four-day bench trial on the merits of the matter was conducted. At trial, plaintiff testified that when he entered into the lease, the premises consisted of the store front, three walls, and a bathroom which contained bathroom fixtures and handicapped rails. He added a “build out” within the premises, consisting of twelve individual tanning rooms with carpeting, a reception area with cabinets, and Italian tile in the hallway and reception area. He estimated that he spent approximately $72,000 in constructing the “build out.” He also purchased ten tanning beds and placed them into ten of the tanning rooms. An apparatus for performing spray-on tans was placed into one of the other tanning rooms. All of this equipment was placed in the building after plaintiffs “build out” was completed.

After Katrina, defendant cleaned up the destruction caused to the shopping center by the storm and gutted out the individual rental units, including plaintiffs unit. It was plaintiffs impression that under the lease, defendant had the obligation to repair his rental unit to its pre-hurricane condition. On September 26, 2005, plaintiff sent defendant a letter giving him written notice as required by the lease requesting that defendant reconstruct plaintiffs rental unit to the same condition as it existed prior to the hurricane pursuant to Paragraph 26 of the lease, and reserving his rights under the lease. Plaintiff testified that after the shopping center was gutted out, only minimal repairs were made to his unit by defendant. |sStarting in September 2005, plaintiff stopped paying rent due to the damages to the premises caused by the hurricane. In February 2006, plaintiff received a letter from defendant stating that rent would commence anew on March 1, 2006. Plaintiff testified that although his rental unit had not been repaired as of that time, he nevertheless paid the rent for April, May, June and July 2006 because he wanted defendant to know that he intended to reopen his business. He emphasized that had he not intended to reopen the business, he would not have paid this rent. He continued to write letters to defendant requesting that the premises be returned to its pre-hurricane condition.

In May 2006, plaintiff met with defendant’s general contractor, Mike Guidry, who was responsible for repairing the shopping center. Plaintiff testified that he informed Mr. Guidry of the type of doors that needed to be installed within his unit, including the doors to the tanning rooms, the paint colors for the rooms, and where replacement cabinets for the reception area could be purchased. It was plaintiffs impression that Mr. Guidry was not getting cooperation from defendant. Because the repairs to his unit were not performed, plaintiff discontinued paying rent in August 2006. Pictures of plaintiffs unit introduced into evidence indicate that even as of October 2006, new bathroom fixtures had not been installed, sheetrock work had not been completed, the floor tile had not been cleaned, the carpet in the tanning rooms had not been replaced, and air-conditioning and electrical work had not been completed. Obviously, as of that time, plaintiffs unit had not been restored to its pre-hurricane condition. In plaintiffs view, pursuant to the lease, rent payments were abated because the repairs were not completed; however, he was evicted for non-payment of rent on March 14, 2007.

Plaintiff testified that he spent approximately $18,000 in advertising during the time he operated the tanning salon. This resulted in an increase in the number |fiof clients visiting the salon. Due to defendant’s failure and refusal to repair the premises, plaintiff was unable to reopen the salon and claims that he lost future anticipated profits. He explained that defendant’s failure and refusal to repair the premises caused him significant stress. He described the entire ordeal as a “nightmare.”

Gasper Palazzo testified as owner of the L.L.C. that bears his name. Several properties owned by Mr. Palazzo were damaged by Hurricane Katrina. He was unable to give specific information as to the repairs done to the Colonnades Plaza shopping center in general and to plaintiffs rental unit in particular. In Mr. Pa-lazzo’s view, his only obligation under the lease was to repair the premises to the condition it was in prior to plaintiffs original “build out.” Contrary to the pictures introduced into evidence showing that the bathroom had no fixtures and no door, no molding or trim work, Mr. Palazzo insisted that to the best of his knowledge, plaintiffs unit had been repaired to its condition prior to plaintiffs original “build out” by March 2006 and was available for occupancy as of that date. He contended that all of the electrical and air-conditioning work was completed as of that time as well. In later testimony, however, Mr. Palazzo admitted that the bathroom fixtures had not been installed, but claimed that it would have only taken a short period of time, estimated to be not more than fifty minutes, to install them. Mr. Palazzo further testified that the other tenants rebuilt their own “build outs” at their own expense. He testified that plaintiff was asked, but refused to furnish information as to paint colors, carpeting and doors so that his new “build out” could be completed. Mr. Palazzo admitted, however, that he did not intend to pay for the construction of plaintiffs new “build out.”

Mr. Palazzo further testified that the lease agreements for all units in the shopping center required the tenants to pay common area maintenance fees, which 17included payment for flood and hazard insurance policy premiums. The common area maintenance fees for plaintiffs unit, designated as “additional rent” in the lease, averaged approximately $250 per month. Mr. Palazzo received approximately $355,000 in insurance proceeds for damages to the shopping center caused by the hurricane, including approximately $306,000 from the flood insurer. The limit on the flood insurance policy was $500,000, but he was unable to collect the full amount of the policy. The funds received from insurance were not sufficient to fully repair the shopping center. He had to borrow approximately $300,000 to complete the repairs. Documents introduced into evidence indicate that the flood insurer paid defendant $34,697 for damages caused by the hurricane to the 1500 square foot unit of the shopping center leased to plaintiff. These documents indicate that this payment included costs to rebuild the interior walls of plaintiffs unit, including the tanning rooms, and replace the twelve doors and hardware in the interior rooms, replace the carpet in the rooms, and clean and re-grout the ceramic tile. Mr. Palazzo admitted that he had no reason to dispute these documents.

Mr. Palazzo acknowledged that plaintiff paid rent for April, May, June and July of 2006. He told plaintiff to get together with Mr. Guidry, whom he had hired as the general contractor to complete the repairs to the shopping center, including plaintiffs unit. Mr. Palazzo testified that because plaintiff did not furnish Mr. Gui-dry with information to complete the repairs, such as door and hardware style, paint colors, and flooring material, he concluded that plaintiff did not intend to reopen his business at the shopping center.

Mr. Palazzo denied knowledge of a letter plaintiff claims to have sent to him requesting that the property be repaired. In his view, plaintiff did not want to return to the premises to reopen his business because the business was not | ^profitable. According to Mr. Palazzo, two later tenants occupied the premises as tanning salons and neither of those endeavors was profitable. However, evidence was introduced to show that the second tenant sold the business to the third tenant, which included the sale of equipment for $85,000 and the sale of the “good will” of the business for $25,000.

Mr. Guidry testified that he was hired by defendant to reconstruct the shopping center after the hurricane, which caused forty-six inches of water to enter into the rental units. Most of the damage to the shopping center was caused by flood waters. An invoice was introduced showing a charge of $435,175 for work supposedly done by Mr. Guidry on the shopping center. Mr. Guidry denied that he was paid this amount, but was unable to state exactly how much he was paid by defendant for work done on the shopping center. He claimed that he no longer had any of those records. He was unsure if he or someone else prepared this invoice. The invoice indicates that charges were made for replacement and repairs to plumbing, and electrical and air-conditioning equipment in the shopping center, but Mr. Guidry denied performing these repairs. Rather, most of his work consisted of reinstalling the walls and hanging sheetrock. Other repairs were made by other contractors hired by defendant.

Mr. Guidry explained that the work on plaintiffs unit was not completed because he and defendant did not know if plaintiff was returning to reopen his business. He did not know if the plumbing fixtures were installed in plaintiffs unit. Mr. Guidry indicated that he stopped working on plaintiffs unit because Mr. Palazzo stopped paying him. He admitted to meeting with plaintiff regarding repairs to plaintiffs unit, but was unsure if he discussed paint colors with plaintiff, and generally could not remember the nature and extent of their conversations during the meeting.

InAt the conclusion of the trial, the judge took the matter under advisement. He subsequently rendered judgment in favor of plaintiff in the amount of $100,250, representing an award of $75,000 for the estimated cost of plaintiffs original “build out,” $5,250 in lost rental payments, and $20,000 for mental anguish. Defendant filed this appeal following the denial of his motion for a new trial.

ASSIGNMENTS OF ERROR NOS. ONE, TWO AND THREE
1. The trial court erroneously calculated unjust enrichment damages as the total cost of Grad’s improvements in a manner that was totally unsupported by the facts.
2. The trial court’s award of damages for unjust enrichment and emotional distress based on “wrongful eviction” is contrary to law.
8. The trial court erred in determining that the tenant’s “improvements, ” which Gi"aci was obligated to repair were part of the “leased premises, ” leased to Grad by Palazzo L.L.C.

As these assignments of error are interrelated, they will be discussed together. In these assignments, defendant argues that plaintiff was not entitled to keep the improvements (plaintiffs original “build out”), or be paid the value thereof, because the lease clearly provided that upon expiration of the lease, all improvements would become the property of defendant, as lessor. Defendant contends that pursuant to the lease, plaintiff (rather than defendant) had the responsibility of restoring the improvements in his unit after the hurricane. He further argues that plaintiff never purchased replacement equipment for the salon, i.e., tanning beds, so the incomplete repairs to the premises was not the reason plaintiff did not reopen his business.

In support of this position, defendant references Paragraph 9 of the lease which provides, in pertinent part:

Any alterations, additions, improvements and fixtures installed or paid for by the Lessee upon the interior or exterior of the Demised |inPremises, other than unattached moveable trade fixtures and decorations, shall upon the expiration or earlier termination of this lease become the property of the Lessor.

Defendant contends that this provision of the lease is applicable because the lease was lawfully terminated due to plaintiffs nonpayment of rent.

Defendant further argues that he had no obligation to repair plaintiffs original “build out” because of Paragraph 14 of the lease, which provides:

Lessor shall not be required to make any repairs or improvements of any kind upon the Demised Premises except for necessary structural repairs. Lessee shall at its own cost and expense, take good care and make necessary repairs to the interior of the Demised Premises, and the fixtures and equipment therein and appurtenances thereto, including the exterior and interior windows, window frames, doors, door frames and entrances, store fronts, signs, showcases, floor covering, non-structural interior walls, columns and partitions; lighting, electrical equipment, plumbing and sewerage facilities and equipment; and the heating and/or air conditioning equipment servicing the Demised Premises.

Plaintiff argues that because the lease provided that at the expiration of the lease defendant would own the improvements made by plaintiff to his unit at the commencement of the lease (plaintiffs original “build out”), defendant had the responsibility of repairing the premises to its pre-hurricane condition. Plaintiff contends that the trial court properly awarded damages for wrongful eviction. He contends that the evidence proved that he paid approximately $75,000 for the original “build out,” and although defendant received insurance proceeds to pay for the repairs, he used the money to pay for the mortgages on the premises that were past due. Plaintiff concludes that in order to restore plaintiffs unit to its “pre-lease condition,” the trial court correctly found that the value of plaintiffs original “build out,” plus overpaid rent, was the appropriate measure of damages.

Paragraph 26 of the lease, which deals with the procedure to be followed by the parties in the event of destruction of the premises by reason of fire, tornado, windstorm or other casualty, provides in pertinent part:

^DESTRUCTION: Lessor shall, during the continuance of this lease, at Lessor’s own cost and expense, carry adequate insurance, insuring the building against loss by reason of fire, tornado, windstorm or other casualty, and shall furnish Lessee with the evidence of such insurance upon request.
In case the leased premises are rendered wholly unfit for the purpose for which they are leased, by fire or other casualty, the parties hereto shall have the following options:
26.1 Lessee shall have the right to require that the leased premises be reconstructed, at the expense of the Lessor, in substantially the same manner as the same existed prior to said casualty. This option shall be exercised by Lessee, by written notice to Lessor, within thirty (30) days after the date of said casualty, and, upon the exercise thereof by Lessee, the rent shall abate from the date of said casualty until the completion of the reconstruction of said leased premises, whereupon this lease shall continue in full force and effect for the balance of the term of the lease and upon the same terms and conditions as herein contained....
If, under the above options, the lease premises are rebuilt, the work of reconstruction shall be proceeded with as speedily as possible.

Our review of the evidence introduced at trial indicates that plaintiff properly and timely notified defendant that he wished to have the premises repaired to its condition prior to the casualty that destroyed the premises. The destruction provision in the lease (Paragraph 26.1) clearly provides for the rental payments to be abated from the date of the casualty until the date the repairs are completed. At the time plaintiff was evicted, the evidence is clear that plaintiffs unit was not returned to the condition it had been in prior to the hurricane. In fact, based on photos introduced that clearly show that defendant failed to have the bathroom fixtures installed in plaintiffs unit, it is clear that plaintiffs unit was not returned to the condition it was in prior to construction of plaintiffs original “build out.” Thus, defendant’s argument that the original “build out” became his property because the lease was lawfully terminated by the eviction is without merit. Plaintiff invoked his right to have the premises repaired by defendant to its pre-hurricane condition and defendant failed to comply with his obligation as lessor to 112do so. Paragraph 14 of the lease is not relevant to repairs done after destruction of the premises caused by a casualty; rather, Paragraph 14 covers routine up-keep, and ordinary, routine repairs in the absence of destruction by a casualty.

Paragraph 26 of the lease, which applies to destruction of the premises as a result of a casualty, requires that defendant, as lessor, insure the entire premises, including the value of plaintiffs “build out,” against casualty loss. Although defendant claimed that he had sufficient insurance coverage on the building, he readily admitted that he received inadequate funds from the insurer to repair the premises. Further, documents introduced into evidence show that the flood insurer paid defendant at least some proceeds that were intended to cover the cost of repairing plaintiffs original “build out” in plaintiffs rental unit. Defendant does not dispute that he received $84,697 from his insurer to cover the cost of some of the repairs to the interior of plaintiffs unit.

In his reasons for judgment, the trial judge gave the following explanation for his judgment:

... [I]t seems clear that defendant breached the lease between them by failing to reconstruct the leased premises in substantially the same manner as the same existed prior to said casualty (whether that “manner” meant before or after plaintiffs buildout) as “speedily as possible.” Since defendant breached the contract, furthermore, although plaintiffs buildout would have become the property of defendant at the time of the termination of the lease, defendant was unjustly enriched by obtaining the value of the buildout under these circumstances.

In denying defendant’s motion for a new trial, the trial court explained that the amount awarded included the $75,000 plaintiff paid for his original “build out” and $5,250 in undue rental payments made by plaintiff. Our review of the record indicates that although plaintiff sought damages for lost profits, the trial court stated that it was denying plaintiffs claims for “business interruption past, present, 11?and future economic loss.” Thus, the award of $75,000 was based solely on the value of plaintiffs original “build out.”

In his suit, plaintiff claimed damages from defendant for unjust enrichment under La. C.C. art. 2298, which provides, in pertinent part:

A person who has been enriched without cause at the expense of another person is bound to compensate that person. The term “without cause” is used in this context to exclude cases in which the enrichment results from a valid juridical act or the law. The remedy declared here is subsidiary and shall not be available if the law provides another remedy for the impoverishment or declares a contrary rule.

The unjust enrichment remedy is applicable, however, only when there is no other remedy available. Walters v. MedSouth Record Mgmt., LLC, 10-0351 (La.6/4/10), 38 So.3d 245, 246. In his petition, plaintiff alleged, among other claims, that defendant breached the lease and he could not reopen his business because of defendant’s failure to rebuild the premises. Thus, plaintiff alleged that he sustained damages for defendant’s alleged breach of the lease. Accordingly, he is not entitled to damages for unjust enrichment because another remedy was available to him for breach of the lease.

Although plaintiff is not untitled to recover damages from defendant under the theory of unjust enrichment, he claims that La. C.C. arts.1994 and 1995 provide him with an alternative avenue of recovery of his damages resulting from defendant’s breach of the lease. La. C.C. art.1994 provides:

An obligor is liable for the damages caused by his failure to perform a conventional obligation.
A failure to perform results from nonperformance, defective performance, or delay in performance.

Further, La. C.C. art.1995 provides:

Damages are measured by the loss sustained by the obligee and the profit of which he has been deprived.

| ¶/These codal articles have been used to award damages to a lessee for breach of an obligation by the lessor under a lease. See, Pelleteri v. Caspian Group. Inc., 02-2141 (La.App. 4 Cir. 7/2/03), 851 So.2d 1230, 1238-41. Thus, in accordance with these codal articles, upon review of the record before us, we find that defendant (the obligor) is liable to plaintiff (the obli-gee) for the damages caused to plaintiff (the $75,000 cost of plaintiffs original “build out” that plaintiff was deprived use of for the remaining duration of his lease and the undue rental payments made by plaintiff) by defendant’s failure to perform his obligation (failing to reconstruct plaintiffs rental unit to the condition it was in immediately prior to the hurricane) under a conventional obligation (the lease agreement between the parties). In other words, had defendant complied with his obligation under the lease to repair plaintiffs rental unit to the condition it was in prior to the hurricane, plaintiff would have had the full use and enjoyment of his original $75,000 “build out” for the remainder of the lease (the remainder of the original three-year term of the lease and presumably the two extended three-year terms of the lease), even though those improvements originally constructed by plaintiff would have become the property of defendant at the termination or cancellation of the lease.

The trial court awarded $75,000 to plaintiff based on the approximate cost of plaintiffs original “build out” that plaintiff was deprived the use and enjoyment of as a result of defendant’s breach of the lease. Contrary to defendant’s assertions, we find that the record clearly supports plaintiffs $75,000 award, which for the foregoing reasons is hereby affirmed.

Further, the record is clear that plaintiff paid at least $5,250 in rental payments and common area maintenance fees during the period when plaintiffs |1firental unit was uninhabitable. Consequently, the trial court’s award of $5,250 in undue rental payments made by plaintiff was proper and is also hereby affirmed.

Finally, the trial court awarded plaintiff damages in the amount of $20,000 for emotional distress. A tenant is entitled to damages for uninhabitable premises; these damages include mental anguish. Ganheart v. Executive House Apartments, 95-1278 (La.App. 4 Cir. 2/15/96), 671 So.2d 525, 529, writ denied, 96-1337 (La.9/3/96), 678 So.2d 554; Gennings v. Newton, 567 So.2d 637, 642 (La.App. 4th Cir.1990). Plaintiff testified that he fully intended to reopen his business and made the rental payments as requested by defendant for April, May, June and July 2006, although repairs to the premises had not been completed during that time. Clearly, plaintiff would not have made these rental payments had he not intended to reopen his business. He also explained that he had contacted the manufacturer of the tanning beds and was going to replace the lower portions of the beds, as the upper portions were not damaged by the flood water. Plaintiff specifically testified that this whole event “absolutely” caused him a great deal of stress, and that the mental anguish associated with defendant’s failure to reconstruct his unit, his inability to operate, the loss of his original “build out” costs, and the eviction along with this protracted litigation which has been going on since 2007 “has been a nightmare” to him.

An award of non-pecuniary damages for breach of a lease is reviewed on appeal under the manifest error standard. See, Ganheart v. Executive House Apartments, supra. Upon review, we find that the award for mental anguish in this 11ficase is fully supported by plaintiffs testimony and the documentary evidence introduced, is not manifestly erroneous, and is accordingly also hereby affirmed.

For the foregoing reasons, defendant’s first three assignments of error are without merit.

ASSIGNMENTS OF ERROR NOS. FOUR AND FIVE
Í The trial court should have given res judicata effect to the ruling of its sister court in St. Tammany Parish on all issues that already had been decided by that court when that St. Tammany court denied Grad’s preliminary injunction.
5. This Court should reverse the judgment of the trial court and reinstate the trial court’s previous summary judgment in favor of Palazzo L.L.C.

In these assignments, defendant contends that in order to grant the eviction, the 22nd Judicial District Court judge had to find that defendant reconstructed the leased premises in the manner that was required under the lease. Defendant argues that in the 22nd Judicial District Court proceedings, plaintiff argued that he was entitled to have the leased premises reconstructed at defendant’s expense and that no rent was owed until the reconstruction was completed. Defendant reasons that by denying the injunction requested by plaintiff and by granting the eviction, the 22nd Judicial District Court ruled that the premises were repaired as required by the lease and defendant was thus not required to rebuild plaintiffs original “build out.”

Upon review, we find that these same arguments were made and completely rejected in the first appeal to this Court in this matter, Graci v. Gasper John Palazzo Jr., L.L.C. 09-347 (La.App. 5 Cir. 12/29/09), 30 So.3d 915, writ denied, 10-248 (La.4/9/10), 31 So.3d 394, to-wit:

Plaintiffs did not have the opportunity to argue their claims during the eviction proceeding in the 22nd Judicial District Court. Plaintiffs could not present their claims for damages and mitigation during that summary proceeding because these claims must be adjudicated during an ordinary proceeding. The trial court in the 22nd Judicial District Court did make the determination that those claims 117were not valid as to why Plaintiffs should not have delivered the property to Defendant. However, that trial court did not rule as to whether or not Plaintiffs were entitled to damages or whether Defendant could have mitigated his damages. As a result, the issues raised by Plaintiffs in the 24th Judicial District Court proceeding were not barred by res judicata.

Id. at 918.

This Court’s prior decision is the law of the case on this issue. Accordingly, these assignments of error are also without merit.

CONCLUSION

For the foregoing reasons, the judgment of the trial court under review in favor of plaintiff is affirmed. All costs of this appeal are assessed to defendant.

AFFIRMED

      . The lease was in the name of Ronald Graci. The petition was filed in the name of Ronald Graci d/b/a Sunkissed Tanning Studios, L.L.C. Ronald Graci and Sunkissed Tanning Studios, L.L.C. will be referred to herein collectively as plaintiff.

      . Lessee’s right to exercise the renewal options were subject to lessee being in full compliance with all of the terms and conditions of the lease when the renewal options were to be exercised and called for cost-of-living increases in the rental amounts to be paid to lessor.

      . In a supplemental and amending petition for damages, plaintiff also claimed damages resulting from unjust enrichment to defendant under La. C.C. art. 2298.

      . The record indicates that plaintiff spent approximately $75,000 to construct his original “build out.”

      . The trial court rejected plaintiff’s claim for loss profits and plaintiff has not appealed that finding.

      . Although the parties seemed to have clearly agreed on the record that plaintiff paid at least four months’ rent at $1,500 per month (plus at least three payments of approximately $250 per month for common area maintenance fees) for several months when plaintiff's unit was clearly uninhabitable, the trial court only awarded plaintiff three months of undue rent paid, plus three months of undue common area maintenance fees paid. Since plaintiff did not appeal the trial court judgment under review, or answer the appeal, we are without authority to correct the judgment in this regard.


source: Caselaw Access Project

author: FREDERICKA HOMBERG WICKER, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Edmundo CERDA-ANIMA.
    No. 12-KA-682.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 30, 2013.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long, Thomas S. Block, Albert J. Winters, Jr., Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Bruce G. Whittaker, Attorney at Law, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, MARC E. JOHNSON, and HANS J. LILJEBERG.
   FREDERICKA HOMBERG WICKER, Judge.

| ^Defendant, Edmundo Cerda-Anima, appeals his conviction for second degree murder. In his first assignment of error, defendant argues that there was insufficient evidence to support his conviction. In his second assignment, defendant argues that the trial court erred when it refused to give the jury his proposed instruction. For the following reasons, we find both of defendant’s assignments to be without merit and therefore affirm his conviction and sentence.

FACTS AND PROCEDURAL HISTORY

At approximately 8:45 p.m. on May 22, 2006, the victim, her son R.L., and two of her son’s friends, drove to Lafreniere Park to exercise. Shortly before 9:00 p.m., they arrived at the park. R.L. planned to jog with his Mends while his mother walked, and to call her on her cell phone when they finished. R.L. and his Mends stretched for about five minutes while the victim began walking. Soon after starting their jog, they passed up the victim, where R.L. patted his mother on |3the back, and told her they would see her soon. That was the last time R.L. saw his mother alive.

As a result of Hurricane Katrina, the park had several dark spots, where the lighting was out. At approximately 9:30 p.m., park ranger William Rowell, Jr. began his closing procedures whereby he checked and locked the restrooms, locked the West Napoleon gate, and then locked the walk-in gates. Lafreniere Park closed at 9:45 p.m. While going through these closing procedures, the ranger noticed a white SUV exiting the park by the Downs Boulevard gate. The driver’s side rear tire was blown out and the vehicle was travelling at approximately 15 to 20 miles per hour. The vehicle was not swerving. Ranger Rowell also noticed another vehicle in the park in which three men were seated. He stopped this vehicle, and discovered that its driver, R.L., was looking for his mother. Ranger Rowell assisted R.L. in looking for his mother and when they could not find her, he called 911. Outside of Lafreniere Park that night, several other witnesses observed the white SUV, a Ford Expedition.

Deputy Michael Nicolini, who at the time was an officer with the Jefferson Parish Sheriffs Office, was working a night shift that night from 9:80 p.m. until 5:30 a.m. Earlier that day, a New Orleans police officer had been shot, so Deputy Nicolini and some of his fellow officers decided to buy food and drink for officers keeping watch at the hospital. At approximately 9:45 p.m., Deputy Nicolini obtained provisions from the Brother’s Food Mart located just outside Lafreniere Park on Downs Boulevard. After Deputy Nicolini had made his purchases and as he was preparing to leave the store, his attention was drawn to a loud slapping noise from Downs Boulevard. Looking in that direction, the deputy determined the noise was coming from a white Ford Expedition exiting Lafreniere Park with rubber from its blown out tire slapping against its side. As the vehicle proceeded |4at about 10 miles per hour, Deputy Nicolini focused on the driver, whose window was down, for about 10 to 15 seconds. The vehicle then turned into the food mart’s parking lot.

Once in the well-illuminated parking lot, Deputy Nicolini continued to observe the driver of the vehicle. He looked at the driver’s face, who returned the officer’s gaze. Deputy Nicolini, who has specialized knowledge, training, and experience with DWI detection, observed nothing to indicate that the driver was intoxicated. Further, Deputy Nicolini did not observe the driver make any traffic violations. Based on his observation of the driver, the deputy determined that the driver was an able-bodied male who was perfectly capable of changing a flat tire. Assuming the driver had pulled into the lot to change the tire, Deputy Nicolini left the store and proceeded to the hospital. Deputy Nicoli-ni identified the driver of this vehicle as defendant both from a photographic lineup he was shown on May 24, 2006, and then again at trial.

Around 10:00 or 10:15 p.m. that night, Paul Sahuque, who resided at 6709 Made-wood Drive around the corner from the Downs Boulevard entrance to Lafreniere Park, was standing outside his residence smoking a cigarette when he heard a loud noise that sounded like metal rubbing against the ground. As he looked in the direction of the noise, he observed a white Ford Expedition travelling at about 30 to 40 miles per hour down Wytchwood Drive. Mr. Sahuque noticed its rear rim on the driver’s side was rubbing the ground and sending off sparks. Despite the speed at which the vehicle was travelling, Mr. Sa-huque observed that the driver was nonetheless able to maintain control of the vehicle. It did not swerve nor strike any other vehicles in the road.

Johnny Rivers owns an auto detailing shop on David Drive which abuts Lafreni-ere Park. His shop is equipped with security cameras that record 24 hours a |sday. A video recording from 10:11 p.m. that night shows a white Ford Expedition, with a flat tire on its driver’s side rear, travel-ling down York Street towards David Drive.

Around that time, Shannon Alvarez, who lived at 8605 Dumonte Street not far from Lafreniere Park, had left work at 10:00 p.m. and was on her way home. At a red light on West Napoleon Avenue and David Drive, she witnessed a white Ford Expedition pass in front of her on David Drive heading south towards Airline Drive. Ms. Alvarez’s attention was drawn to the vehicle because the driver’s side rear tire was blown out and it was making a “clanking noise” on the pavement. Ms. Alvarez noticed that the vehicle had its hazard lights on and estimated that the vehicle was trav-elling 80 to 85 miles per hour. When the light turned green, Ms. Alvarez turned onto David Drive behind the vehicle. Travelling about a car length behind the vehicle, she observed that despite the blown out tire, the vehicle was being operated normally and it was not swerving. From David Drive, the vehicle turned right onto Lynnette Drive. As this was her route home, Ms. Alvarez made the same turn. From Lynette, Ms. Alvarez observed the vehicle turn right onto a dark and isolated canal embankment overgrown with grass. Ms. Alvarez stopped near this canal embankment to see if the driver needed to use her cell phone to get help to change the shredded tire. After a few seconds however, she left and proceeded home. At trial, Ms. Alvarez matched the vehicle she observed that night to defendant’s white Ford Expedition.

Early the next morning at the same canal embankment, the victim’s body was discovered. Her body was nude and in a prone position. The body had no noticeable signs of trauma except that blood and fluid were present around her mouth. Pebbles, gravel matter, and impressions or indentations were present on her back; and ants were on the victim’s face, mouth, anal and vaginal areas. The | ^impressions or indentations in the victim’s back led Captain Buras, who participated in the investigation at the scene, to believe that the body at one point was in a supine position. Several shoe and tire impressions were observed in the dirt and gravel near the victim’s body. Also found near the victim’s body were pants, underwear, and a right shoe. The pants had a grass stain on the back and were missing a button. At defendant’s trial, Captain Bu-ras testified that this scene indicated the victim’s death was not an accident.

The investigation at Lafreniere Park yielded various pieces of evidence including: a gray button; a left shoe; a shirt and a bra; and the victim’s cell phone and its battery. The left shoe matched the right shoe found near the canal in size and style. Later DNA tests on the shirt and bra revealed the presence of the victim’s genetic profile. The shirt and bra were entwined with one another and the bra straps were still clasped together. The cell phone was heavily damaged and attempts to retrieve data from the phone were unsuccessful.

Near where this evidence was recovered, investigating officers saw a tire mark on a curb next to a storm drain, pieces of tire rubber, and a tire impression in sand. Pieces of tire rubber were also found near the Downs Boulevard park entrance. From where this evidence was found inside the park to where the victim’s body was discovered was roughly a mile.

Dr. Karen Ross, an expert in the field of forensic pathology, performed the victim’s autopsy the next day. She concluded that the victim sustained multiple rib fractures on the left side of her body, a spleen laceration, and a bruised upper lobe of her left lung. The victim’s pelvis was fractured and her left hip was dislocated. Her face, trunk, and legs sustained abrasions. The back and left side of the victim’s head exhibited signs of hemorrhage. The victim’s neck was fractured and dislocated, and her brain also displayed signs of hemorrhage. Further, the victim |7sustained bruising on her forehead, face, upper arms, trunk and legs. At trial, Dr. Ross testified that these injuries were consistent with the victim being struck from behind by a vehicle travelling at least 15 miles per hour that did not attempt to brake.

As a result of the victim’s head and neck injuries, Dr. Ross opined that had the victim survived, she likely would have been a quadriplegic. Most importantly, Dr. Ross believed that after the victim was struck by the vehicle, she could have been alive for “some number of minutes, possibly half an hour.”

Dr. Ross also observed abrasions inside the victim’s vagina, labia, and near her anus. Bruising was present around the anus and in the anal canal. The abrasions to the vagina had hemorrhaged, which, as the doctor explained, indicated that the victim was alive at the time she sustained these injuries.

That next day, May 23, 2006, a deputy on patrol observed a vehicle parked in a rear alley in the 500 block of Eisenhower Avenue that fit Ms. Alvarez’s description of the vehicle she had seen near the canal embankment. Through investigation, detectives learned defendant owned this vehicle and that he resided in Apartment C at 501 Eisenhower Avenue. This information led detectives to interview Thomas Oliver, defendant’s roommate and employer.

Prior to Hurricane Katrina in August 2005, Mr. Oliver lived in Wichita, Kansas, where he had known defendant for a couple of years as his employee doing construction work. After Katrina, Mr. Oliver moved to Jefferson Parish to assist in the rebuilding effort. Defendant soon followed and resided with Mr. Oliver in Apartment C at 501 Eisenhower Avenue, about a mile from Lafreniere Park. On days defendant was not working, defendant typically gathered with co-workers at Lafreniere Park to consume beer.

|RAt trial, Mr. Oliver testified that he drove defendant’s Ford Expedition during the day of May 22, 2006. He testified that the Expedition was working properly and that he did not notice any damage to the front of the vehicle. When Mr. Oliver returned to their apartment between 6:00 and 7:00 p.m., he returned the vehicle’s keys to defendant. Mr. Oliver testified that sometime between 7:30 and 8:00 p.m. defendant left their apartment.

Mr. Oliver testified that defendant did not return home that night until around 11:00 or 11:30 p.m. At this time, Mr. Oliver observed defendant was dirty, with sand on his arms and legs. When Mr. Oliver asked defendant what happened, defendant, who was on the phone, ignored him. Although Mr. Oliver perceived defendant to be drunk, he didn’t think defendant was “that drunk” because defendant had driven home, parked his vehicle in the usual manner, climbed a metal spiral staircase that was not easy to navigate, and was carrying on a telephone conversation.

The next morning, defendant asked Mr. Oliver for money to fix a tire on his vehicle so he could go back to Wichita. Mr. Oliver was unable to give defendant the money, so he let defendant take his truck.

On May 24, 2006, after Mr. Oliver’s interview and after Deputy Nicolini’s identification, Detective Rodrigue obtained search warrants for defendant’s vehicle and apartment, as well as an arrest warrant for defendant. The search of the apartment turned up a pair of shoes in a garbage can, which Mr. Oliver subsequently identified as belonging to defendant.

Because defendant could not be located and was thought to be travelling in interstate commerce with the intent to avoid prosecution for a felony crime, a federal arrest warrant was issued on May 25, 2006. Defendant avoided capture on | flthis warrant for several years until May 14, 2010, when he was arrested in Juarez in the state of Chihuahua, Mexico.

On October 27, 2010, the FBI extradited defendant back into the United States. In Houston, Texas, Jefferson Parish Sheriffs Office took defendant into custody, advised him of his rights in Spanish, and transported him to the detective bureau in Jefferson Parish, Louisiana. There, and after defendant again waived his rights, defendant gave three taped statements through a translator.

In these statements, defendant admitted that he struck the victim with his Ford Expedition while driving in Lafreniere Park on the night of May 22, 2006. Defendant stated that he thereafter lifted the victim to put her in his vehicle, and at that point her shirt and bra fell off. Defendant stated that he began travelling to the hospital, but then turned in another direction because he feared he would get in trouble. Defendant then described the route he took from Lafreniere Park to the canal embankment. Thinking she was passed out, defendant put the victim on the ground and removed her pants to wake her up. Defendant stated that he was drunk and high on cocaine, and admitted that he touched, and penetrated, the victim’s vagina and anus with his hand and fingers. Defendant stated that he did not penetrate the victim with his penis because he was too intoxicated to achieve an erection. Defendant stated that he then realized what he was doing was wrong and went back to his apartment, leaving the victim’s body by the embankment. The next morning, defendant noticed a police officer examining his vehicle, became scared, and fled. After driving to Texas, defendant took a bus to Juarez, Mexico where he resided with his wife and children.

At trial, Colonel Timothy Scanlan, an expert in the field of crime scene investigation and reconstruction with the Jefferson Parish Sheriffs Office, testified that the damage sustained to the front right quarter panel of defendant’s vehicle | inwas consistent with the vehicle striking a pedestrian and flipping that person up onto the hood. Measurements of defendant’s vehicle were compared to the measurements of injuries on the victim’s body. This comparison revealed that the placement of the injuries on the victim’s body was consistent with defendant’s vehicle striking the victim. This comparison also indicated that the vehicle did not brake prior to striking the victim, which Colonel Scanlan stated was not consistent with accidental impact. Colonel Scanlan concluded that the totality of the evidence indicated a homicide had occurred.

The defense called Wayne Winkler, an expert in the field of accident reconstruction, who testified that the victim was struck from behind on her left side by the right side of defendant’s vehicle. He estimated the vehicle was travelling between 15 and 25 miles per hour when it struck the victim. He stated that the collision could have caused the victim’s clothing to become rolled up and caused the victim’s pants’ button to dislodge from her pants. Mr. Winkler testified that he believed the evidence did not suggest that the victim was intentionally struck by defendant’s vehicle.

The defense also called Dr. Gerald Liuz-za, an expert in the field of forensic pathology, who reviewed the autopsy report of the victim. Dr. Liuzza believed the vehicle struck the victim from behind on the left side of her body. Dr. Liuzza also stated that the bruises sustained to the victim’s arms could have been caused by someone lifting the victim up by her arms. Although he initially testified that the type of abrasions the victim sustained to her vagina could have occurred after death, he later conceded that it was also possible that the victim sustained these injuries before dying.

Although Dr. Liuzza agreed with Dr. Ross’s conclusion that the victim died as a result of multiple blunt force injuries, he disagreed with her finding that the | ^manner of death was a homicide; he stated that he would have classified the manner of death as an accidental motor vehicle related fatality. Dr. Liuzza also disagreed with Dr. Ross’s opinion about how long the victim could have survived after the collision. He testified that the victim had a heartbeat for a very short period of time, no more than five minutes, after the victim was impacted by the vehicle.

DISCUSSION

First Assignment

Defendant first argues that the jury erred in finding him guilty of second degree murder in violation of La. R.S. 14:30.1 because the evidence presented against him was insufficient. Defendant argues that the evidence against him did not prove that he had a specific intent to kill or cause great bodily harm to the victim. Rather, defendant claims that the evidence shows that the victim was killed by an accident caused by an intoxicated and inattentive driver.

In reviewing sufficiency of the evidence, an appellate court must determine that the evidence, whether direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Neal, 00-0674 (La.6/29/01), 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002); State v. Mickel, 09-953 (La.App. 5 Cir. 5/11/10), 41 So.3d 532, 534, writ denied, 10-1357 (La.1/7/11), 52 So.3d 885. Under the Jackson standard, a review of the record for sufficiency of the evidence does not require the court to ask whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. State v. Jones, 08-20 (La.App. 5 Cir. 4/15/08), 985 So.2d 234, 240. Rather, the reviewing court is required 112to consider the whole record and determine whether any rational trier of fact would have found guilt beyond a reasonable doubt. Id.

The requirement that the evidence be viewed in the light most favorable to the prosecution requires the reviewing court to defer to ‘the actual trier of fact’s rational credibility calls, evidence weighing and inference drawing.’ ” State v. Caffrey, 08-717 (La.App. 5 Cir. 5/12/09), 15 So.3d 198, 202, writ denied, 09-1305 (La.2/5/10), 27 So.3d 297 (quoting State v. Marcantel, 00-1629 (La.4/3/02), 815 So.2d 50, 56). “The reviewing court is not permitted ‘to decide whether it believes the witness or whether the conviction is contrary to the weight of the evidence.’ ” Id. It is not the appellate court’s function to re-evaluate the credibility of witnesses or re-weigh the evidence. Id.

La. R.S. 14:30.1 defines second degree murder as the killing of a human being when the offender, (1) has specific intent to kill or to inflict great bodily harm; or (2) is engaged in the perpetration or attempted perpetration of one of several enumerated felonies even though he has no intent to kill or to inflict great bodily harm. State v. Lewis, 05-170 (La.App. 5 Cir. 11/29/05), 917 So.2d 583, 589-90 (citing La. R.S. 14:30.1), writ denied, 06-0757 (La.12/15/06), 944 So.2d 1277. Although defendant argues that there was insufficient evidence to convict him of second degree murder because it did not prove that he had the required specific intent, he makes no argument regarding whether the evidence was sufficient to convict him under a felony murder theory for killing the victim while engaged in a felony enumerated in La. R.S. 14:30.1. Here, the jury was instructed as to both the specific intent and felony murder elements of second degree murder.

At the trial of this case, the jury heard witnesses testify for the State and for defendant, the evidence which we have set forth. We find that this evidence against defendant is sufficient to support his conviction for second degree murder | isbased on the elements of felony murder because defendant killed the victim while engaged in the enumerated felony of second degree kidnapping. Therefore, defendant’s assignment is without merit.

Felony second degree murder is defined by La. R.S. 14:30.1(A)(2) as the killing of a human being when the offender is engaged in the perpetration or attempted perpetration of one of several enumerated felonies, including second degree kidnapping. La. R.S. 14:44.1 defines second degree kidnapping in pertinent part as the forcible seizing and carrying of any person from one place to another wherein the victim is physically injured or sexually abused. La. R.S. 14:44.1(A)(3), (B)(1). In presenting its theory of felony murder, the State alleged that defendant was engaged in the commission or attempted commission of second degree kidnapping. One need not possess specific intent to kill or inflict great bodily harm to commit second degree felony murder. State v. Gurganus, 03-992 (La.App. 5 Cir. 12/30/03), 864 So.2d 771, 775. Rather, under the felony murder theory, the State need only prove the commission of the underlying felony or the attempt thereof. Lewis, supra at 590.

The Court of Criminal Appeals of Texas faced a factually similar scenario to this case in Santellan v. State, 939 S.W.2d 155, 159 (Tex.Crim.App.1997). In Santellan, the defendant was convicted of capital murder in violation of Tex. Penal Code Ann. § 19.03(a)(2) for killing the victim while in the course of attempting to commit kidnapping. On appeal, the defendant argued that the evidence was insufficient to prove the elements of attempted kidnapping. Id. at 160. The defendant argued that he did not attempt a kidnapping of the victim because the victim died before he attempted to move her. The evidence adduced at trial indicated that the defendant had shot the victim four times, placed her unresponsive body in his vehicle’s passenger seat, transported her to a motel room, [uand there sexually abused her. Id. at 160-62. The court in Santel-lan recognized that a dead body cannot be kidnapped. Id. at 162. However, the court found that the evidence did not unequivocally establish when the victim died and that there was sufficient evidence from which a jury could have reasonably concluded that the victim was still alive when the defendant lifted her into his car and drove away. Id. at 163. Thus, the court held that the evidence and the defendant’s actions were sufficient to support a finding of attempted kidnapping. Id.

In this case, the evidence indicates defendant injured and incapacitated the victim by striking her with his vehicle. At trial, both Dr. Ross and Dr. Liuzza testified that the victim probably survived this impact for at least some time. After striking the victim at Lafreniere Park, defendant lifted her into his Ford Expedition, transported her to the canal embankment, and there sexually abused her. At trial, Dr. Ross specifically testified that the victim could have survived for up to a half hour after she had been struck by defendant’s vehicle and that the victim’s wounds indicated that she was still alive when she was sexually abused.

Viewing this evidence in the light most favorable to the prosecution, we find that the evidence here was sufficient to convince a rational trier of fact that all of the elements of second degree kidnapping and felony second degree murder were proven beyond a reasonable doubt.

Further, to the extent that defendant argues that his intoxication excused his killing of the victim, we also reject that defense. The State is not required to show defendant had specific intent to kill or cause great bodily harm to the victim in order to prove second degree murder under the theory felony murder. State v. Davies, 35,783 (La.App. 2 Cir. 4/5/02), 813 So.2d 1262, 1267, writ denied, 02 156415 (La.5/9/03), 843 So.2d 389. Additionally, voluntary intoxication, such as defendant’s, is only a defense for specific intent crimes. La. R.S. 14:15(2); State v. Taylor, 01-452 (La.App. 5 Cir. 11/14/01), 802 So.2d 779, writ denied, 01-3326 (La.1/10/03), 834 So.2d 426. Second degree kidnapping however, is a general intent crime. La. R.S. 14:44.1; See State v. Lagrange, 97-361 (La.App. 3 Cir. 10/29/97), 702 So.2d 1005, 1010.

Because we find the evidence was sufficient to convict defendant of second degree murder due to his killing of the victim while engaged in a second degree kidnapping, and because defendant’s voluntary intoxication is not a defense, we find defendant’s first assignment of error to be without merit.

Second Assignment

Defendant next argues the trial court erred when it failed to provide the jury with his proposed instruction of Vehicular Homicide to defendant’s charge of second degree murder. His proposed charge read,

Vehicular Homicide is the killing of a human being caused proximately or caused directly by an offender engaged in the operation of, or in actual physical control of, any motor vehicle, aircraft, watercraft, or other means of conveyance, whether or not the offender had the intent to cause death or great bodily harm, whenever any of the of the following conditions exists and such condition was a contributing factor to the killing: (4) the offender is under the influence of alcoholic beverages. Vehicular Homicide is not a responsive verdict to Second Degree Murder.
Therefore, if you find that the defendant committed Vehicular Homicide of [the victim], you must find the defendant not guilty.

While the trial court did not read this charge to the jury, the record shows that defendant was permitted to argue this law in his closing statement.

Our law mandates that the court shall charge the jury “as to the law applicable to the case.” La.C.Cr.P. art. 802(1). The State and the defendant shall have the right to submit special jury charges and the court shall give a requested |1fispecial jury charge, “if it does not require qualification, limitation or explanation, and if it is wholly correct and pertinent. It need not be given if it is included in the general charge or in another special charge to be given.” La.C.Cr.P. art. 807. The court is required to charge the jury on the law applicable to any theory of defense, when properly requested, which the jurors could reasonably infer from the evidence. State v. Netter, 11-202 (La.App. 5 Cir. 11/29/11), 79 So.3d 478, 482, writ denied, 12-0032 (La.8/22/12), 97 So.3d 357 (citing State v. Lawson, 08-123 (La.App. 5 Cir. 11/12/08), 1 So.3d 516, 527). Failure to give a requested jury instruction constitutes reversible error only when there is a miscarriage of justice, prejudice to the substantial rights of the accused, or a substantial violation of a constitutional or statutory right. State v. Henry, 08-658 (La.App. 5 Cir. 10/27/09), 27 So.3d 935, 946, writ denied, 09-2485 (La.4/23/10), 34 So.3d 269; Lawson, supra.

“When a count of the indictment sets forth an offense which includes other offenses of which the accused could be found guilty under the provisions of Article 814 or 815, the court shall charge the jury as to the law applicable to each offense.” La. C.Cr.P. art. 803. A list of enumerated responsive verdicts is set forth in La. C.Cr.P. art. 814, which provides, in pertinent part as follows:

A. The only responsive verdicts that may be rendered when the indictment charges the following offenses are:
3. Second Degree Murder:
Guilty.
Guilty of manslaughter.
Guilty of negligent homicide.
Not guilty.

[ ,7rfhe Louisiana Supreme Court has consistently held that when, as here, responsive verdicts are mandated by La. C.Cr.P. art. 814, the trial court is without authority to add to the prescribed verdicts. State v. Farhood, 02-490 (La.App. 5 Cir. 3/25/03), 844 So.2d 217, 223 (citing State v. Square, 433 So.2d 104, 109 (La.1983)). Because we find that defendant’s proposed jury charge regarding vehicular homicide is not a responsive verdict to his charge of second degree murder, we hold that the trial court did not err in failing to add defendant’s proposed instruction to the list of responsive verdicts to defendant’s second degree murder charge.

Further, we find that here, where the defense argued its theory of vehicular homicide in both its opening and closing statements, and where a finding that defendant committed all the elements of vehicular homicide would not necessarily preclude a finding that defendant committed all of the elements of second degree murder, defendant was not prejudiced nor denied his rights by the trial court’s refusal to give his proposed instruction as a defense. Therefore, we find this assignment of error to also be without merit.

ERRORS PATENT DISCUSSION

The record was reviewed for errors patent, according to La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 387 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). Our review revealed no errors patent in this case.

DECREE

Because we find both of defendant’s assignments of error to be without merit, and because our review has revealed no errors patent, we hereby affirm defendant’s conviction and sentence.

AFFIRMED

      . The identity of R.L. is withheld in this opinion pursuant to La. R.S. 46:1844. That statute protects the identity of crime victims who are minors or victims of sex offenses. La. R.S. 46:1844(W).

      . Evidence admitted at the Santellan trial showed that after the victim had been shot her heart could have still been beating for three to five more minutes, enough time for that defendant to lift the victim into his vehicle. Santellan, 939 S.W.2d at 162.


text:
    STATE of Louisiana v. Eric BROWN.
    No. 12-KA-683.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 30, 2013.

      Prentice L. White, Attorney At Law, Louisiana Appellate Project, Baton Rouge, LA, for Defendant/Appellant.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, ROBERT M. MURPHY, and STEPHEN J. WINDHORST.
   FREDERICKA HOMBERG WICKER, Judge.

12Pefendant appeals his conviction of one count of Manslaughter in violation of La. R.S. 14:31 and on one count of Aggravated Burglary in violation of La. R.S. 14:60. Defendant argues that the trial court erred both when it denied his motions to suppress and when it did not allow him to fully cross examine a witness regarding a prior addiction to pain killers. Because we find that defendant did not preserve these issues for appeal when he pled guilty, we reject defendant’s assignments and affirm his conviction.

FACTS AND PROCEDURAL HISTORY

On March 6, 2008, the Jefferson Parish Grand Jury indicted defendant, Eric Brown, on one count of second degree murder in violation of La. R.S. 14:30.1 and another count of aggravated burglary and La. R.S. 14:60, respectively. Defendant was arraigned the next day and pled not guilty. On December 15, 2008, and 13January 8, 2009, the trial court held hearings on defendant’s motions to suppress evidence and his statement. On January 20, 2009, the trial court denied those motions. Defendant’s motion to strike witness, Jason Barrette, was denied, and the State’s motion in limine to limit details of Barrette’s arrest was granted on March 10, 2009. On July 13, 2010, the trial court denied defendant’s motion re-urging the suppression of his statements.

The State’s motion in limine to exclude evidence regarding the investigation, arrests, and prescription drug use by Sheriffs Deputy Jason Barrette was granted by the trial judge on September 14, 2010. On October 5 and 6, 2010, the case proceeded to trial. On October 7 however, after opening statements but before the first witness was called, the State amended the charges against defendant to one count of Manslaughter in violation of La. R.S. 14:31 and one count of Aggravated Burglary in violation of La. R.S. 14:60.

Immediately thereafter, defendant withdrew his pleas of not guilty, and after being advised of his rights, pled guilty as charged to both counts. Defendant pled guilty pursuant to a plea agreement which provided that he would receive two concurrent 14-year sentences, with credit for time served, if he testified truthfully, and in accordance with the “Note of Evidence” taken that day, against his co-defendants at their future trials. Defendant’s plea agreement also provided that if defendant failed to testify as such, he would be re-sentenced to two concurrent 20-year sentences. At the conclusion of this hearing, the trial court sentenced defendant in accordance with this plea agreement.

After defendant’s plea and sentencing, he refused to cooperate and testify against his co-defendants in their trials. Therefore, on March 5, 2012, the trial court vacated the previous sentence and re-sentenced defendant to imprisonment at hard labor for 20 years on both counts, to run concurrently. On March 23, 2012, [4defendant filed a motion to reconsider sentence that was denied and a timely motion for appeal that was granted.

Defendant now appeals, alleging that the trial court erred in denying his pre-trial motions to suppress evidence and his statement. He specifically contends that the evidence should be suppressed because the trial court manifestly erred in determining that his statements were voluntary. The State responds that defendant’s pleas were not entered pursuant to State v. Crosby, 338 So.2d 584 (La.1976), and that defendant therefore waived his appellate rights by entering unqualified guilty pleas.

ANALYSIS

It is well settled that a plea of guilty normally waives all non-jurisdictional defects in the proceedings prior to the plea. Id. at 586. However, a defendant may be allowed appellate review if, at the time he enters a guilty plea, he expressly reserves his right to appeal a specific adverse ruling in the case. Under Crosby, supra, a defendant may reserve his right to appeal a prior adverse ruling of the trial court. A defendant who fails to specify which pre-trial ruling he wishes to reserve for appeal as part of a guilty plea entered under Crosby is not precluded from review altogether, but his appellate review may be limited in scope.

In the present case, the record does not reflect that defendant, who was represented by counsel, specified at the time he entered his guilty pleas that his guilty pleas were being made pursuant to Crosby. Instead, defendant pled guilty and agreed to serve 20 years if he refused to testify against his co-defendants and 14 years if he did testify against his co-defendants. Defendant signed a waiver of rights form and engaged in an extensive colloquy with the trial court regarding his guilty pleas and the rights he was waiving. Both the waiver of rights form and the colloquy are devoid of any suggestion that defendant’s guilty pleas were made |fisubject to the reservation of appellate review of the denial of defendant’s motions to suppress.

This Court has consistently held that a defendant’s failure to reserve the right to appeal under Crosby, at the time he enters his guilty plea, limits the scope of his right to appeal the trial court’s ruling. State v. Richardson, 09-714 (La.App. 5 Cir. 2/9/10) 33 So.3d 903, 907; State v. Michael, 454 So.2d 847, 850 (La.App. 5 Cir. 7/30/84). In the present case, defendant did not tender his guilty pleas pursuant to Crosby, and therefore, we find that defendant did, in fact, waive his right to appellate review of the arguments presented in this appeal.

ERRORS PATENT REVIEW

We have reviewed the record for errors patent, according to La. C.Cr.P. art. 920, State v. Oliveaux, 312 So.2d 337 (La.1975), and State v. Weiland, 556 So.2d 175 (La. App. 5 Cir.1990). Our review reveals that there is sufficient evidence in the record to support defendant’s conviction and sentence and that there are no other errors patent.

CONCLUSION

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

AFFIRMED


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

text:
    STATE of Louisiana in the Interest of D.M.
    No. 12-KA-787.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 30, 2013.

      Paul D. Connick, Jr., District Attorney, Amanda Calogero, Elizabeth Curren; John Messina, Assistant District Attorneys, Harvey, LA, for Plaintiff/Appellant.
    Katherine M. Franks, Attorney at Law, Abita Springs, LA, for Defendant/Appel-lee.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, JUDE G. GRAVOIS and STEPHEN J. WINDHORST.
   STEPHEN J. WINDHORST, Judge.

12State of Louisiana appeals the dismissal of several criminal petitions against D.M. by the Juvenile Court. We reverse the ruling of the Juvenile Court and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

On February 23, 2012, D.M., a 16-year-old juvenile, was charged by petition in Juvenile Court with obscenity in violation of LSA-R.S. 14:106 (Petition “H”); false imprisonment in violation of LSA-R.S. 14:46 (Petition “I”); battery of a correctional facility employee in violation of LSA-R.S. 14:34.5 (Petition “J”); and simple criminal damage to property in violation of LSA-R.S. 14:56 (Petition “K”). Two co-defendants, K.R. and R.W., were also charged with these same offenses in separate petitions in the same section of the Juvenile Court. At the time D.M. was charged with these offenses, he was serving a commitment until his 21st birthday |aon unrelated charges of simple robbery and carjacking (Petition “G”). On March 9, 2012, D.M. made his appearance to answer, and denied each petition. The Juvenile Court set an adjudication date of May 30, 2012.

On April 18, 2012, the Juvenile Court, on its own motion, continued the adjudication until June 13, 2012. Again on April 30, 2012, the Juvenile Court, on its own motion, continued the adjudication until June 20, 2012. Neither of the continuance orders were rendered in open court, thus there is no indication that the parties had any opportunity to object to the continuances at the time of the court’s rulings.

On June 20, 2012, D.M. filed a motion to dismiss pursuant to Ch.C. art. 877A alleging D.M. had been in continued custody and more than 30 days had transpired since his answer on March 9, 2012. The Juvenile Court denied the motion on that same date. Thereafter, the Juvenile Court continued the adjudication hearing for the third time until July 11, 2012, because the mother of a co-defendant was not present and the State had a witness it needed to secure for court. D.M. objected to this continuance.

On July 11, 2012, D.M.’s co-defendant sought a fourth continuance because his attorney was out of the country and the co-defendant’s mother was not available. The Juvenile Court continued D.M.’s adjudication hearing until August 15, 2012, in order to coincide with his co-defendant’s hearing.

On August 15, 2012, D.M. filed his second motion to dismiss pursuant to LSA-Ch.C. art. 877B for failure to commence the adjudication within 90 days of |4the answer to the petitions, alleging that good cause was not shown for the continuances. On August 20, 2012, the Juvenile Court issued a written judgment with reasons granting the motion to dismiss.

On September 6, 2012, the State timely filed a motion for appeal, which was granted by the Juvenile Court on September 7, 2012.

DISCUSSION

The State argues that the trial court erred in dismissing the petitions against D.M. for untimely prosecution because he was not taken into custody on the instant charges, so the time mandates of Ch.C. 877 were not triggered. The State alleges that Ch.C. art 877B does not apply to D.M. because he is serving a secure placement until age twenty-one and the plain language of C.Ch. art. 877B applies to accused juveniles who are “not continued in custody.” The State also argues that the Juvenile Court implicitly found there was good cause for delay under C.Ch. art. 877D when it ordered D.M.’s adjudication hearing dates continued. While we disagree with the State’s argument that C.Ch. art. 877 is inapplicable to this matter, we find merit in the State’s argument that good cause existed for the delay in bringing D.M. to adjudication.

The State first argues that Ch.C. art. 877B does not apply since D.M. is serving a secured detention for different charges and could not be released from custody. Further, the State contends that Ch.C. art. 877A does not apply because D.M. was never taken into custody on the pending charges. The State asserts that because no Children’s Code article applies, LSA-C.Cr.P. art. 578 A(2) applies to this case and, thus, the State had two years to institute this prosecution.

In a delinquency proceeding, where procedures are not provided in the Children’s Code, the Code of Criminal Procedure controls. C.Ch. art. 104; State ex rel C.M., 05-0435 (La.App. 4 Cir. 12/21/05), 922 So.2d 571. The State ^contends that there is no article of the Children’s Code applicable to D.M.’s situation, in which the juvenile is already in custody for an unrelated offense.

At the time of these proceedings, C.Ch. art. 877 provided:

A. When the child is continued in custody pursuant to Chapter 5 of this Title, the adjudication hearing shall commence within thirty days of the appearance to answer the petition.
B. If the child is not continued in custody, the adjudication hearing shall commence within ninety days of the appearance to answer the petition.
C. If the hearing has not been commenced timely, upon motion of the child, the court shall release a child continued in custody and shall dismiss the petition.
D. For good cause, the court may extend such period.

We find that Ch.C. art. 877B is applicable. There is no evidence in the record that D.M. was ever continued in custody on these petitions pursuant to Title VIII, Chapter 5, Ch.C. art. 819-822. While D.M. appeared in order to answer the petitions against him, there is no evidence in the record that he was ever arrested, booked, or continued in custody as a result of the charges against him in these petitions. Further, the procedural history of this case shows that the trial court denied D.M.’s petition to dismiss charges pursuant to Ch.C. art. 877A on June 20, 2012, specifically finding that D.M. “was not held on this offense.” Because D.M. was not in continued custody on these petitions, Ch.C. art. 877B governs the amount of time the State had to commence an adjudication hearing after D.M. answered the petitions.

The Juvenile Court originally set an adjudication hearing for May 30, 2012, within the 90-day time period provided in Ch.C. art. 877B. However, on April 18, 2012, on motion of the Juvenile Court, the adjudication was continued and reset to | n June 13, 2012. On April 30, 2012, on motion of the Juvenile Court, the adjudication hearing was reset to June 20, 2012. On June 20, 2012, the adjudication hearing was again continued. On July 11, 2012, the adjudication was continued until August 15, 2012. These continued adjudication dates were outside the 90-day time limitation for the State to bring D.M. to adjudication. Ch.C. art. 877D allows for the extension of the 90-day period to bring the juvenile to adjudication, on a showing that good cause exists for such extension. The Louisiana Supreme Court held in In re R.D.C., Jr., 93-1865 (La.2/28/94), 632 So.2d 745 that the time period set forth in Ch.C. art. 877 is mandatory and that “it is incumbent on the state to make a showing of good cause and obtain an extension before the period has run.” [Italics added.] The Court further held that in considering what constitutes good cause, the judge should be mindful of those situations or causes beyond the control of the State that may impinge on its ability to prepare for a hearing. Id.

The Juvenile Court’s orders on April 18, 2012 and April 30, 3012 state that “on motion of the Court, it is necessary to continue the hearings.” We believe that this is sufficient to support a finding of good cause as required by Ch.C. art. 877D. In so doing, we give deference and validity to the actions of the Juvenile Court judge, who concluded “it is necessary to continue the hearings.” It can be reasonably assumed that because the Juvenile Court judge considered the continuances “necessary,” she had good cause, and did not continue these adjudication hearing dates indiscriminately or arbitrarily.

Moreover, there is no evidence or anything in the record to indicate that these continuances were ordered with the State’s knowledge or acquiescence. |7Both were ordered well before the adjudication dates which were being continued and not in open court. Both continuances were ordered sua sponte on form orders of the court, and not on motions and orders submitted by either party. One of the orders was signed by another judge of the court. Thus it is obvious that both motions were ex parte, and that the State did not have any opportunity to object to the continuances at the time they were granted.

This is also significant because Ch.C. art. 877D permits the Court to order or the State to move for an extension for good cause, provided that the extension is ordered prior to the expiration of the time limits. In re R.D.C., Jr. The intent of Art. 877D is to provide a remedy to the State for circumstances such as this, but this provision of law can only be meaningful if the State is aware of continuances so that a motion for extension can be made before the expiration.

The Juvenile Court’s order of June 20, 2012 granted the third continuance based on the absence of a co-defendant’s mother and a State witness. The Juvenile Court’s order of July 11, 2012 granted the fourth continuance based on the absence of a co-defendant’s counsel and mother. We find that the stated reasons for these continuances clearly provide good cause.

La. Ch.C. art. 874 provides that:

Where petitions have been filed which allege that one or more children were involved in the commission of the same delinquent act or acts, the children shall be tried jointly unless either:
(1) The state elects to try them separately.
(2) The court, on motion of the child and after contradictory hearing with the district attorney, is satisfied that justice requires a severance. [.Emphasis added.]

The word “shall” is mandatory. LSA-R.S. 1:3. There was no severance granted in this matter, and therefore the three juveniles had to be adjudicated together. Thus, the absence of a co-defendant’s mother and a state witness was |sgood cause for the granting of the third continuance, and the absence of a co-defendant’s attorney and his mother was good cause for the granting of the fourth continuance of adjudications which the law requires be tried together.

In its reasons for judgment, the Juvenile Court relied on In re D.L., 11-835, (La.App. 5 Cir. 5/22/12), 96 So.3d 850, in which this Court vacated an adjudication for failure to comply with Ch.C. art. 877. We find In re D.L. to be distinguishable from this case. The court in In re D.L. set the original hearing date untimely when the juvenile appeared and answered the charges. At that time, the State was present and failed to object, although it had the opportunity to do so. In the present case, however, the Juvenile Court continued the first two adjudication dates on its own motion and not during a hearing, and the State was not afforded an opportunity to contemporaneously object.

We therefore find that the Juvenile Court was in error in finding that good cause did not exist for the continuances of D.M.’s adjudication hearing dates, and in dismissing the petitions filed against D.M. We also find that, even in the absence of good cause, when the State is not afforded any opportunity to object to a continuance, or to move for an extension pursuant to C.Ch. art. 877D in advance of the continuance as required by In re R.D.C., Jr., and the date to which the adjudication is continued exceeds the time limits set by C.Ch. art. 877 without the State’s knowledge and acquiescence, it is error to dismiss a delinquency petition pursuant to C.Ch. art. 877C over the State’s objection.

[«CONCLUSION

For the above discussed reasons, the Juvenile Court’s judgment is reversed and the petitions filed against D.M. are reinstated. This matter is remanded for further proceedings.

REVERSED AND REMANDED

WICKER, J., dissents.

WICKER, J.,

dissenting.

|10For the following reasons, I respectfully dissent from the majority’s conclusion in this case. While I agree with the majority that La. Ch.C. art. 877(B) controls on this matter, it is my opinion that the record before us is insufficient to show that the juvenile court made an actual finding that good cause existed for the first two continuances of D.M.’s adjudication on the court’s own motion.

Here, following the answer hearing on March 9, 2012, the juvenile court set an adjudication hearing for May 30, 2012. On its own motion, on April 18, 2012, the juvenile court ordered D.M.’s adjudication continued and reset to June 13, 2012. Then again on April 30, 2012, the juvenile court ordered D.M.’s adjudication hearing continued and reset to June 20, 2012. As the majority stated, these continued adjudication dates were outside the 90-day time limitation for the State to bring D.M. to adjudication. The State argued when the juvenile court ordered the continuances on its own motion “good cause” was implied, therefore the court properly extended the period within which to bring prosecution pursuant to part (D) of La. Ch.C. art. 877. I disagree.

The Louisiana Supreme Court held in State in Interest of R.D.C., Jr., 632 So.2d at 749, that the time period set forth in La. Ch.C. art. 877 is mandatory and that “it is incumbent on the state to make a showing of good cause and obtain an extension before the period has run.” The Court further opined that in considering what constitutes good cause, the judge should be mindful of those situations or causes beyond the control of the State that may impinge on its ability to prepare for a hearing. Id.

The juvenile court’s orders on April 18, 2012 and April 30, 2012 contain no reasons or causes for the continuances. They simply state on a preprinted form that, “on motion of the Court, it is necessary ...” to continue D.M.’s set adjudication dates. These continuances pushed the adjudication hearing past the 90-day time limit mandated by La. Ch.C. art. 877. The State did not object to these continuances.

In While the two pre-printed continuance forms stated, “on the motion of the court, it is necessary ...” this statement on each form was not particular to this case, rather was generic with an open space below for the addition of case specific information. In each instance only the case letter and the word “adjudication” was added. There is nothing in either order or in this record to indicate either the reason for each continuance or that the juvenile court made an actual finding of good cause for the continuance prior to ordering the continuances which would extend the adjudication past the 90 day time limit. This absence of cause relative to these two continuances is distinguishable from the June 20, and July 11, 2012, continuances in which the reasons for the continuances are apparent from the record. By then, of course, the adjudications were untimely.

Cases interpreting La. Ch.C. art. 877(D) have held that the consequence of failing to timely commence an adjudication hearing, without any showing of good cause prior thereto, is mandatory dismissal of the petition. State in Interest of R.D.C., Jr., 632 So.2d at 748; State in Interest of D.L., 96 So.3d at 583. Although the juvenile court is not required to specifically state the reason that there is good cause for the delay, such good cause must be evident from the record. State ex rel. S.D., 09-1113 (La.App. 4 Cir. 12/9/09), 28 So.3d 1160, 1161 (finding good cause for an extension of time under La. Ch.C. art. 877 when the record showed the adjudication hearing could not be held once because the State was unable to obtain a crime lab report, and a second time because the arresting officer was recovering from broken legs).

Here, the juvenile court found in its reasons for judgment that in light of the interpretation of La. Ch.C. art. 877, and the finding that “... good cause must be shown prior to extending an adjudication hearing beyond the permissible time limitations, this Court is unwilling to attempt to retroactively find good cause over the course of four separate hearings.”

Neither the record, nor the juvenile court orders contain evidence of a reason for the April 18, 2012 and April 30, 2012 continuances beyond the 90-day time limit for the adjudication hearing. Therefore, on the record before us, I would find the juvenile court correctly granted D.M.’s motion to dismiss and we therefore affirm its decision.

      . Pursuant to the requirements of confidentiality of juvenile proceedings as set forth in Ch.C. art. 412, the defendant and co-defendants herein are referred to by initials only.

      . The record indicates that the juvenile’s date of birth is October 17, 1995.

      . On January 13, 2010, D.M. entered an admission on the simple robbery charge. On February 11, 2010, D.M. was sentenced to serve a one-year suspended sentence in the Office of Juvenile Justice and placed on active probation for two years. On December 14, 2010, D.M. was charged by petition in Juvenile Court in Caddo Parish with carjacking in violation of LSA-R.S. 14:64.2. On January 19, 2011, D.M. was transferred from Caddo Parish Juvenile Detention to Rivarde Detention Center pending secure placement. On January 21, 2011, D.M.'s probation was revoked and the previously suspended sentence of one year in the Office of Juvenile Justice was imposed. On February 8, 2011, D.M. was transferred to the Bridge City Center for Youth.

      . After the time period relevant to this appeal, Ch.C. art. 877 was amended by Acts 2012, No. 124, § 1, eff. May 14, 2012.

      . In In re R.D.C., Jr., the state timely sought a continuance, but the court denied the motion, thereby implicitly finding no good cause for an extension. In this case, the Juvenile Court both moved and granted the continuance, thereby implicitly finding good cause for an extension.