author: PICKETT, Judge.

text:
    STATE IN the INTEREST OF T. J.
    17-153
    Court of Appeal of Louisiana, Third Circuit.
    04/26/2017

      Leanna Duncan, Fifteenth Judicial District Public Defender’s Office, P O Box 3622, Lafayette, LA 70502, (337) 889-5673, COUNSEL FOR APPLICANT: T. J.
    Keith A. States, District Attorney, Fifteenth Judicial District, Christine B. Roberts, Assistant District Attorney, P. 0. Box 3306, Lafayette, LA 70502-3306, (337) 232-5170, COUNSEL FOR RESPONDENT: State of Louisiana
    Court composed of John D. Saunders, Elizabeth A. Pickett, and Shannon J. Gremillion, Judges.
   PICKETT, Judge.

l,On September 21, 2015, the juvenile appeared for an adjudication hearing on docket numbers 2015-JC-128 and 2015-JC-556. At the adjudication, the juvenile entered into a plea agreement with the state, in which the juvenile admitted to illegal possession of a handgun by a juvenile in docket number 2015-JC-128 and to possession with intent to distribute marijuana in docket number 2015-JC-556. In exchange, the state dismissed five remaining counts. Additionally, the district court entered a bargained-for disposition for each delinquent act, six months detention. The adjudicating court then designated the detention was to be served consecutively, suspended the detention, imposed fifteen months of supervised probation, and ordered the probationary periods to be served concurrently. In docket number 2015-JC-128, the district court also imposed the following special conditions of probation: eighty hours of community service, house arrest with ankle monitoring, no unexcused absences, and forfeiture of property seized in conjunction with the juvenile’s arrest.

On August 30, 2016, the state filed a rule to revoke probation, alleging the juvenile tested positive for drugs, failed to complete drug treatment, and failed to complete community service. At the September 14, 2016, hearing on the motion to revoke probation, the district court required the juvenile to serve seven days of detention for failing the drug test and noted the juvenile still had time to complete his required community service.

On December 20, 2016, the state filed a “Motion to Modify Disposition” in both docket numbers seeking an extension of the juvenile’s probationary period. The state alleged the juvenile had thirty unexcused absences and seventeen write-ups. The state additionally alleged the juvenile had failed to attend drug treatment 12and complete his required community service. The state sought a six-month extension of probation under La.Ch.Code arts. 909-910 to allow the juvenile to complete the required community service and drug court program. The state further requested the district court require the juvenile to refrain from further unexcused absences.

On February 8, 2017, the district court held a hearing on the state’s motion. At the hearing, the juvenile, through counsel, objected to the motion and sought to dismiss the pleading based on the argument that the filing of the motion did not interrupt prescription and that the relevant date, instead, should be February 6, 2017, the date the juvenile and his mother were served with notice of the hearing. The district court overruled the objection and, following presentation of additional evidence and argument, granted the state’s motion to extend the probationary period. The juvenile’s lawyer then noted her objection to the ruling and gave verbal notice of her intent to seek supervisory review on the. issue.

On March 9, 2017, the state filed an opposition to the juvenile’s writ application.

DISCUSSION

The juvenile’s attorney presents the following single assignment of error:' “The juvenile court erred by granting the state’s motion to modify disposition, because the court lacked jurisdiction once T. J.’s probation concluded on December 21, 2016, and the filing of the state’s motion to modify disposition, did not stop the running of T.J.’s probation period.” The juvenile points out that neither La.Ch,Code art. 909 nor La.Ch.Code art. 910 specifically address when a trial court’s authority to amend a disposition ceases; the juvenile further alleges that none of the remaining children’s code articles resolve the issue. The juvenile |sadvances, therefore, under La.Code Crim.P. art. 896(A), the trial court was without authority to extend the juvenile’s probationary period because the extension was not done during the probationary period since the juvenile’s probationary period ended the day after the state filed its motion, December 21, 2016.

The purpose of the delinquency title in the Louisiana Children’s Code is set forth by La.Ch.Code art. 801, which requires the preservation of due process:

The purpose of this Title is to accord due process to each child who is accused of having committed a delinquent act and, except as provided for in Article 897.1, to insure that he shall receive, preferably in his own home, the care, guidance, and control that will be conducive to his welfare and the best interests of the state and that in those instances when he is removed from the control of his parents, the court shall secure for him care as nearly as possible equivalent to that which the parents should have given him.

Moreover, “[a]ll rights guaranteed to criminal defendants by the Constitution of the United States or the Constitution of Louisiana, except the right to jury trial, shall be applicable in juvenile court proceedings brought under this Title.” La.Ch.Code art. 808.

The Louisiana Children’s Code ensures the preservation of procedural due process in juvenile delinquency proceedings by relying upon the Louisiana Code of Criminal Procedure to cover the gaps in the procedures set forth in the in the Louisiana Children’s Code: “The provisions of this Title shall govern and regulate delinquency proceedings of courts exercising juvenile jurisdiction. Where procedures are not provided in this Title, or otherwise by this Code, the court shall proceed in accordance with the Code of Criminal Procedure.” La.Ch.Code art. 803.

In support of the principle that the Louisiana Code of Criminal Procedure applies to juvenile delinquency proceedings in areas, not provided for by the | ¿Children's Code, the juvenile’s attorney cites to a ease requiring the application of the post-conviction relief articles to a juvenile case:

The Children’s Code does not provide for post-conviction relief. However, this Court.has consistently found that juveniles must, be advised of .the two-year prescriptive period to apply for post-conviction relief under La.C.Cr.P. art. 930.8. See State in the Interest of B.D., 13-760 (La.App. 5 Cir. 4/23/14), 140 So.3d 308, 313, writ denied, 14-1093 (La. 1/9/15), 157 So.3d 597; State in the Interest of B.G., 13-445 (La.App. 5 Cir. 10/30/13), 128 So.3d 1211, 1214-15; State in the Interest of D.L., 11-835 (La.App. 5 Cir. 5/22/12), 96 So.3d 580; State in the Interest of D.S., 11-416 (La.App. 5 Cir. 12/28/11), 83 So.3d 1131, 1139; State in the Interest of O.R., 96-890 (La.App. 5 Cir. 2/25/97), 690 So.2d 200; see also State in the Interest of J.D., 13-964 (La. App. 4 Cir. 11/27/13), 129 So.3d 831. Therefore, we find that juveniles are entitled to seek post-conviction relief, ■including a request for an out-of-time appeal, within the two-year prescriptive period set forth under La.C.Cr.P. art. 930.8.

State in the Interest of H.N., 15-173, p. 5 (La.App. 5 Cir. 6/30/15), 171 So.3d 1242, 1246.

In this case, we must determine if the “Motion to Modify Disposition” filed on behalf of' J.T. constitutes a motion; to modify a disposition pursuant to La.Ch. Code art. 909 or a motion to revoke probation pursuant to La.Ch.Code art. 913. It is the content of the pleading, rather than its caption, that determines its nature. State ex rel. Daley v. State, 97-2612 (La. 11/7/97), 703 So.2d 32. Pursuant to La.Ch. Code art. 909, the juvenile court retains the authority to modify a disposition as long as the disposition is still in effect:

Except as provided for in Article 897.1 juvenile life delinquent acts and armed robbery], after the entry of any order of disposition, the court retains the power to modify it; including changing the child’s legal custody, suspending all or part of any ordér of commitment, discharging conditions of probation, or adding any further condition authorized by Article 897(B) or 899(B). It may also terminate an order of disposition at any time while it is- still in force.

“The trial court retains the power to modify a disposition at any time the disposition is in force. See State v. J.R.S.C., 2000-2108 (La. 6/1/01), 788 So.2d 5424.” State ex rel. C.H., 03-1279, p. 2 (La.App. 3 Cir. 1/28/04), 865 So.2d 947, 948.

However, the jurisdiction to modify a disposition ends once the disposition expires or is satisfied: “A court exercising juvenile jurisdiction no longer exercises such jurisdiction in any proceeding authorized by this Code upon: .... (5) Expiration, . satisfaction, or vacation of a juvenile disposition or adult sentence.” La.Ch,Code art. 313(A).

Alteration of a juvenile’s disposition may be accomplished through the filing of a motion for modification of disposition, which may be filed for the. purposes .of either lightening the conditions of probation or increasing the restrictions thereof, pursuant to La.Ch.Code art. 910:

A. Except as specially provided hereinafter in Articles 911 through 916, a motion for modification may be filed by the district attorney, the child, his parents, the custodian of the child, a probation officer, or the court. A motion for modification shall be in writing and shall set forth in plain and concise terms the facts supporting the modification,
B. Any motion to modify may be denied without a hearing,
C. When the- motion to modify seeks the imposition of less restrictive conditions, the court may modify a judgment without a contradictory hearing.
D. When the motion to modify seeks the imposition of more restrictive conditions, the. court shall conduct a contradictory hearing, except upon the waiver of the parties.
E. A judgment of disposition shall not be modified to release a child from the custody of a public or private mental .institution or-an institution for persons with mental illness without three days prior,notice to the district attorney and the institution.
F. .If a judgment of disposition is modified, a copy of the minute entry reflecting the modification shall be served upon the district attorney, the child, his parent, and any person, institution, or agency to whom custody of the child is assigned.

IfiThe Louisiana Supreme Court has likened a motion to modify disposition to a motion for reconsideration of sentence filed by an adult defendant without the deadline provided for in La.Code Crim.P. art. 881.1. J.R.S.C., 788 So.2d at 425-26.

Under the language of La.Ch.Code art. 909, the district court’s authority to modify a disposition in reference to probation is limited to those authorized by La.Ch.Code art. 897(B) and La.Ch.Code art. 899(B), which provide for the imposition of conditions of probation. Louisiana Children’s Code Article 897 deals with disposition after adjudication for certain felony-grade acts, and La.Ch.Code art. 899(B) deals with disposition after adjudication for misdemeanor-grade acts. The extension of probation is not authorized by La.Ch.Code art. 897(B):

B. As conditions of probation, if ordered pursuant to Subparagraph (A)(3) of this Article: .
(1) The court shall .impose all of the following restrictions:
(a) Prohibit the child from possessing any drugs or alcohol.
(b) Prohibit the child from engaging in any further delinquent or criminal activity-
(c) Prohibit the child from possessing a firearm or carrying a concealed weapon, if he has been adjudicated for any of the following offenses and probation is not otherwise prohibited: first or second degree murder;' manslaughter; aggravated battery; aggravated' or first degree rape, forcible or second degree rape, or simple or third degree rape; aggravated crime against nature as defined by R.S. 14:89,1(A)(1); aggravated kidnapping; aggravated arson; aggravated or simple burglary; armed or simple robbery; burglary of a pharmacy; burglary of an inhabited dwelling; unauthorized entry of an inhabited dwelling; or any violation of the Uniform Controlled Dangerous Substances Law which is a felony or any crime defined as an attempt to commit one of these enumerated offenses.
(2) The court may impose any other term and condition deemed in the best interests of the child and the public, including:
l7(a) A requirement that the child attend school, if the school admits the child.
(b) A requirement that the child perform court-approved community service activities.
(c) A requirement that the child make reasonable restitution to any victim for any personal or property damage caused by the child in the commission of the delinquent act.
, (d) A requirement that the child participate in any program, of medical or psychological or other treatment found necessary for his rehabilitation.
(e) A requirement- suspending or restricting the child’s driving privileges, if any, for all or part of the period of probation. In such cases, a copy of the order shall be forwarded to the Department of Public Safety and Corrections, which shall suspend the child’s driver’s license or issue a restricted license in accordance with the order of the court.
(f) A requirement prohibiting the Child from possessing a firearm or carrying a concealed weapon.
" (gj A requireinent that the child pay a supervision fee of not less than ten nor more than one hundred dollar's per month, payable to the Department of Public Safety and Corrections or other supervising agency, to defray the costs of supervision. The amount of the fee shall be based upon the financial ability of the payor to pay such a fee. The court may order a parent, tutor, guardian, or other person who is financially responsible for the care of the child to be responsible for payment of all or part of any supervision fee imposed.

Modification of disposition by the extension of the probationary period is also not authorized by La.Ch.Code art. 899(B), which repeats the language in La.Ch.Code art. 897(B). Thus, we find the state’s filing was not a motion seeking modification of disposition, as it did not request relief available under the procedures outlined in La.Ch.Code arts. 909 and 910.

Modification of probation can also be obtained through the filing of a motion to revoke probation pursuant to La.Ch.Code art. 913:

|SA. A motion filed to revoke a child’s probation shall be accompanied by a supporting affidavit specifying the claimed violations which form the basis of the revocation. The child shall be entitled to a copy of the motion and supporting affidavit.
B. Unless the child waives his right, the court shall conduct a contradictory hearing. At this hearing, the child shall be entitled to:
(1) The right to confront and cross-examine adverse witnesses.
(2) The right to appear in person and to present witnesses in his own behalf.
(3) The right to have the state bear the burden of providing by clear and convincing evidence that he violated a condition of his probation which was contained in the order of disposition.
C. The hearing may be more informal and summary than an adjudication hearing. Consistent with the child’s constitutional rights and the burdens upon the prosecution which full compliance with the Code of Evidence might otherwise entail, the court shall have discretion in the receipt and consideration of proffered evidence.
D.An order revoking probation shall comply with the requirements of Article 903.

Although juvenile probation revocation proceedings may result in the imposition of additional conditions of probation, as allowed by La.Ch.Code art. 909, juvenile probation revocation proceedings may also result in the extension of the probationary period:

A. Except as provided in Paragraph B of this Article, if the court finds that the child has violated a condition of his probation, it may, consistent with the best interests of the child and the public, do any of the following:
(1) Reprimand and warn the child.
(2) Order that supervision be intensified. .
(3) Impose additional conditions to the probation.
(4) Extend the period of probation, provided the total amount of time served by the child on probation for any one offense shall not exceed the maximum period of probation authorized by Articles 898 and 900.
|9(5) Order that probation be revoked and execute the suspended sentence.
B. If the probation violation is the illegal or unlawful possession of a firearm, probation revocation is mandatory, and the child shall be committed to the custody of the Department of Public Safety and Corrections.
C. For repeated violations of a judgment of disposition, the court may also find the child in direct or constructive contempt of court and commit him to a juvenile detention center or other licensed facility, provided that the child shall not be physically housed in the same dormitory, room, or area used to house children adjudicated delinquent for behavior other than direct or constructive contempt.

La.Ch.Code art. 914. Juvenile courts are required to implement the least restrictive means available to obtain the desired result: “The court should impose the least restrictive disposition authorized by Articles 897 through 900 of this Title which the court finds is consistent with the circumstances of the case, the needs of the child, and the best interest of society.” La.Ch. Code art. 901(B).

Counsel for the juvenile argues this court should apply La.Code Crim.P. art. 899 to the instant case, because the Louisiana Children’s Code does not require the filing of a detainer, warrant, or summons with the motions for modification of disposition:

A. At any time during probation and suspension of sentence the court may issue a warrant for the arrest of a defendant for violation of any of the conditions of probation, or may issue a summons to appear to answer to a charge of violation or threatened violation.
The warrant of arrest may be executed by any peace officer and shall direct that the defendant be returned to the custody of the court or to a designated detention facility. The summons shall be personally served upon the defendant.
B. If a probation officer has reasonable cause to believe that a defendant has violated or is about to violate a condition of his probation or that an emergency exists so that awaiting an order of the court would create an undue risk to the public or to the probationer, the probation officer may arrest the defendant without a warrant, or | inmay authorize a peace officer to do so. The authorization may be in writing or oral, but if not written, shall be subsequently confirmed by a written statement. The written authorization or subsequent confirmation delivered with the defendant to the official in charge of a parish jail or other place of detention shall be sufficient authority for the detention of the defendant. The probation officer shall immediately notify the proper court of the arrest and shall submit a written report showing in what manner the defendant violated, or was about to violate, a condition of his probation.
C. The court may grant bail to a defendant who is arrested under this article.
D. When a warrant for a defendant’s arrest or a summons for defendant’s appearance is issued under Paragraph A or a detainer is issued under Paragraph B of this Article, the running of the period of probation shall cease as of the time the warrant, summons, or detainer is issued.
E. Within ten days following the arrest of an offender pursuant to the provisions of this Article, the court shall determine if there is probable cause to detain him pending a final violation hearing and shall consider whether to allow the offender bail pending the final hearing. The determination of probable cause may be made without a formal hearing and may be conducted through the use of affidavits.
F. Probation officers shall be deemed to be peace officers and shall have the same powers with respect to criminal matters and the enforcement of the law relating thereto as sheriffs, constables, and police officers have in their respective jurisdictions. They have all the immunities and defenses now or hereafter made available to sheriffs, constables, and police officers in any suit brought against them in consequence of acts done in the course of their employment.

“Probation revocation proceedings are initiated with either the issuance of a warrant for the arrest of the defendant for violation of any of the conditions of probation or the issuance of a-summons to appear to answer to a charge of violation or threatened violation.” State v. Johnson, 602 So.2d 729, 730 (La.App. 5 Cir.), writ denied, 601 So.2d 663 (La.1992).

The parties cite to State v. Lavergne, 97-752, pp. 8-9 (La.App. 3 Cir. 6/3/98), 716 So.2d 92, 96, to illustrate the point that an adult defendant’s probation may be | ^revoked after the probationary period only when La. Code Crim.P. art. 899(D) has been satisfied prior to the end of the probationary period:

- In her fifth assignment, the defendant contends that her sentence .is illegal because the revocation of her probation did not occur until-after she had served all of her probation. On January 17, 1991, the defendant was placed on supervised probation for five years. Therefore, her probation, was -to conclude on January 17,1996, unless it was revoked.
La.Code Crim.P. art. 899(D) states the following:
When a warrant for. a defendant’s arrest or a summons for defendant’s appearance is issued under Paragraph A or a detainer is issued under Paragraph B of this Article, the running of the period of probation shall cease as of the time the warrant, summons, or detainer is issued.
The affidavit and motion at issue were filed on January 16, 1996, and a summons to the defendant was issued, on the same day. The filing of the affidavit and issuance of the summons pursuant thereto had the effect of stopping the running of the period of probation. Thus, we find no merit in this assignment of error.

However, in adult cases, if' the provisions of La.Code Crim.P. art. 899(D) are not met until after the probationary period, the district court no longer has the authority to revoke the probation:

It is well settled that once a probationary period has elapsed the defendant has automatically satisfied the sentence imposed. C.Cr.P. art. 898 (see Official Revised Comment (b)); State v. Jones, 285 So.2d 231 (La.1973); State v. Martens, 338 So.2d 95 (La.1976). Further, a non-fugitive defendant can be ordered to appear before a court to answer charges concerning possible probation violations only during the period of probation or suspension of sentence. C.Cr.P. art. 899; State v. Harris, 342 So.2d 179 (La.1977); State v. Martens, supra.
In the instant case, no summons relating to a possible violation of a condition of probation was issued to Weysham during his one-year probationary period. As a result, defendant’s probation was never suspended and it was successfully completed on April 20, 1978, one year after his sentence was imposed. C.Cr.P. art. 899; State v. Martens, supra; see also State ex rel. DeGreat v. Phelps, 377 So.2d 341 (La.1979). Once Weysham satisfied the sentence imposed, his 12probation could not be revoked and he could not be subjected to a term of imprisonment. See State v. Jones, supra.

State v. Weysham, 410 So.2d 1104, 1105 (La.1982). The Weysham court repeated a principle that was stated the previous year:

No warrant was ever issued for defendant’s arrest, but the state contends that the rule to show cause-interrupted the probationary period. Attached to the rule is an order for defendant to appear and show cause on June 16, 1981, why his probation should not be revoked. This order amounts to a summons to appear and answer the charges of parole violation. LSA-C.Cr.P. art. 899A.
LSA-C.Cr.P. art. 899D provides that the running of the period of probation shall cease as of the time an arrest warrant is issued. Even granting the state’s contention that personal service of a summons also interrupts the period of probation, there is.no evidence that the rule to show cause was served on defendant Broussard prior to the time his probationary period.was-completed on June 8, 1981. Although revocation proceedings were instituted during the probationary period, the record does not. reflect that Broussard was notified of those proceedings until after his probation terminated. Compare State v. Rome, 392 So.2d 407 (La., [sic] 1980). Due process requires that a probationer be given notice that a revocation hearing will take place. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). Absent any notice or showing by the state that defendant could .not be served, the sentence was automatically satisfied when, the probationary period terminated. LSA-C.Cr.P. art. 898; State v. Hunter, 391 So.2d 844 (La., [sic] 1980); State ex rel. DeGreat v. Phelps, 377 So.2d 341 (La., [sic] 1979); and State v. Harris, 342 So.2d 179 (La., [sic] 1977).
For the foregoing reasons, the ruling of the trial court is reversed; the state’s rule to show cause why probation should not be revoked is quashed; and defendant is discharged.

State v. Broussard, 408 So.2d 909, 910-11 (La.1981). Once the probationary period has run, the trial court’s jurisdiction to revoke or modify probation cannot be reestablished even by. consent of the adult defendant:

Strain’s signing of this document in which she allegedly consented to extend her probation did not stop the running of thé probationary period. Louisiana Code of Criminal Procedure article 899(D) provides for the suspension of the running of the probationary period as follows; “When a warrant for a defendant’s arrest or a | ^summons for defendant’s appearance is issued under Paragraph A or a detainer is issued under Paragraph B of this Article, the running of the period of probation shall cease as of the time the warrant, summons, or detainer is issued.” Therefore, had Miller wanted to stop the period of probation from running when Strain failed to satisfy the conditions of her probation, he could have sought the issuance of a warrant or summons or had-a detainer issued under La.C.Cr.P. art. 899(B). No warrant, summons, or detainer in compliance with La.C.Cr.P. art. 899(B) was issued in this case during Strain’s original probation term to suspend the term. See State v. Cannon, 457 So.2d 1177, 1178-1179 (La. 1984).
A defendant satisfies the sentence imposed by the trial court once he completes the priginal period of probation. See State v. Weysham, 410 So.2d 1104, 1105 (La.1982). According to La.C.Cr.P. art. 898, “Upon completion of the period of suspension of sentence or probation, or an earlier discharge of the defendant pursuant to Article 897 [where the court terminates a defendant’s probation and discharges the defendant at any time after the expiration of one year of probation], the defendant shall have satisfied the sentence imposed.... ” Strain completed the original period , of probation on September 4, 1994, and satisfied the sentence imposed.
Once the time period for Strain’s original probation had run, the- trial court could not extend her probation. Additionally, the trial court could not later revoke Strain’s probation during the extended period because the extension was invalid. See State v. Johnson, 602 So.2d 729, 730 (La.App. 5th Cir.), writ denied, 601 So.2d 663 (La.1992); State v. Rylee, 591 So.2d 794, 796 (La.App. 5th Cir. 1991), writ denied, 594 So.2d 1316 (La. 1992). Thus, the trial court’s extension of Strain’s probation on November 4, 1994, and its revocation on April 8, 1996, were ineffective.

State ex rel. Strain v. State, 96-2308, 6-7 (La.App. 1 Cir. 6/20/97), 696 So.2d 664, 667-68.

Though the state argued that warrants, detainers, and summons are not customarily issued in juvenile motions for modification of disposition or revocation of probation, the Louisiana Children’s Code allows for juveniles to be taken into custody in reference thereto. Under La.Ch. Code art. 812, children are not “arrested,” but the authorities may take them into custody pursuant to a court order or the laws governing arrest:

|14A. A child may be taken into custody pursuant to an order of the court under this Title or pursuant to the laws governing arrest.
B. The taking of a child into custody is not an arrest, except for the purpose of determining its validity under the Constitution of the United States or the Constitution of Louisiana.

The district court may issue an order that a child be taken into custody based upon an affidavit of facts alleging the violation of his probation by either the district attorney or a probation officer:

A. The court may issue an order directing that a child be taken into custody upon presentation to the court of a written statement of facts sworn to before an officer authorized by law to administer oaths, by a peace officer, probation officer, district attorney, or other person designated by the court alleging facts showing that there is probable cause to believe either that:
(1) The child has committed a delinquent act.
(2) The child has violated the terms of his probation or otherwise has violated the terms of his release.
B. The verified complaint shall be filed with the clerk of court. If it is filed after the child has been taken into custody, the complaint shall indicate whether the child was released to his parents or continued in custody.
C. An order directing that a child be taken into custody may be executed by a peace officer or the child’s probation officer having territorial jurisdiction over the child. The officer shall promptly notify the child’s parents that their child has been taken into custody. The officer shall also promptly conduct the child to the appropriate facility in accordance with Article 815.

La.Ch.Code art. 813. Therefore, La.Ch. Code art. 813 does not mandate the child to be taken into extended custody because it allows the state to release the child to his parents; instead, La.Ch.Code art. 813 allows for initial actual custody in cases of probation violation followed by release into parental custody, which would satisfy the requirement for “least restrictive” means under La.Ch.Code art. 901(A).

|irAs a motion to revoke probation, the state’s pleading failed to meet the mandates of La.Ch.Code art. 913, because it failed to accompany its motion with a separate supporting affidavit specifying the alleged probation violations. Under La. Ch.Code arts. 812 and 813, a child may be taken into custody pursuant to a court order upon presentation of an affidavit swearing to a statement of facts sufficient to create probable cause to believe the child has violated the term of his probation. The state failed to obtain any such court order or produce any supporting affidavit in conjunction with its “Motion to Modify Disposition.” Juvenile offenders are entitled to the preservation of due process. La.Ch.Code arts. 801 and 808. Therefore, the state’s filing was insufficient to suspend the running of TJ.’s probationary period.

Accordingly, the district court’s February 8, 2017 ruling granting the state’s “Motion to Modify Disposition” and extending T.J.’s probation by six months is reversed. The juvenile, T.J., is hereby discharged. The matter is remanded to the district court for further proceedings consistent herewith.

WRIT GRANTED AND MADE PEREMPTORY.


source: Caselaw Access Project

author: Judge Joy Cossich Lobrano

license: Public Domain

text:
    STATE of Louisiana v. Troy L. RANDOLPH
    NO. 2016-KA-0892
    Court of Appeal of Louisiana, Fourth Circuit.
    MAY 3, 2017

      Leon A. Cannizzaro, Jr., DISTRICT ATTORNEY, ORLEANS PARISH, Scott Vincent, ASSISTANT DISTRICT ATTORNEY, ORLEANS PARISH, Christopher J. Ponoroff, ASSISTANT DISTRICT ATTORNEY, ORLEANS PARISH, 619 South White Street, New Orleans, LA 70119, COUNSEL FOR APPELLEE/ STATE OF LOUISIANA
    Holli Herrle-Castillo, LOUISIANA APPELLATE PROJECT, P. 0. Box 2333, Marrero, LA 70073—2333 COUNSEL, FOR DEFENDANT/APPELLANT
    (Court composed of Judge Terri F. Love, Judge Madeleine M. Landrieu, Judge Joy Cossich Lobrano)
   Judge Joy Cossich Lobrano

11Troy L. Randolph (“Defendant”) appeals his- convictions for possession with the intent to distribute marijuana, possession with the intent to distribute heroin, possession with the intent to distribute cocaine, and possession of a firearm by a convicted felon. Defendant also appeals his sentence for possession with the intent to distribute heroin as indeterminate. Finding that the evidence is sufficient to support his convictions, and no error below merits reversal, we affirm Defendant’s convictions. Finding that his sentence of ten years, with “at least” five years to be served without the benefit of probation, parole, or suspension of sentence is indeterminate, we vacate the sentence, and remand this case to the district court so that a determinate sentence may be rendered.

Detective David Biondolillo, (“Det. Bion-dolillo”) while working with the Drug Enforcement Agency multi-jurisdictional major crimes task force, observed | ^Defendant exit the Residence with another person. During a pre-trial hearing, Det. Biondolillo identified this other person as a confidential informant (“C.I.”) who, at the time, was making a controlled buy from Defendant, Det. Biondolillo testified that the C.I. entered Defendant’s Residence with no drugs on his person and exited the Residence with cocaine. Based on this transaction, Det. Biondolillo received a search warrant for the Residence. The district court ruled that no mention of the C.I. would be made to the jury at trial.

The search warrant was executed on February 10, 2014. Upon execution, police found large quantities of marijuana, powder cocaine, crack cocaine, and heroin, some of which had been individually packaged in small bags and hidden. Only one of the two bedrooms in the Residence was furnished. The other was mostly empty except for a chest-of-drawers that contained several bags of drugs. In the furnished bedroom, officers found a dresser with heroin, needles and a spoon, a shoebox full of marijuana, and a loaded shotgun leaning against the wall. Under the bed, the officers found a bag of crack cocaine and $300 cash in a hole inside the bedpost, as well as mail and an arrest register with Defendant’s name on it. There was also a scale containing white powder residue and cooking equipment covered in white powder residue in the kitchen.

During the execution of the search warrant, officers found one person inside the Residence at the time, a woman asleep in the bed in the furnished bedroom. |aThe woman was arrested on the scene after admitting she had been using heroin at the Residence. She told the officers that Defendant usually kept some heroin in the bed-side table for his guests.

On April 22, 2014, the State of Louisiana (“State”) charged Defendant with possession with the intent to distribute marijuana, possession with the intent to distribute heroin, felon in possession of a firearm, and possession with the intent to distribute cocaine. At trial, the woman arrested upon the execution of the search warrant testified that when she was arrested, she had known Defendant for at least a month and had gotten heroin from him almost every day. She testified that Defendant lived in that house and slept in the bedroom where she was found. She said she had seen Defendant deal drugs out of the Residence, out of both bedrooms, almost every day, and that she had witnessed Defendant “cook” crack cocaine in the kitchen. The woman also testified that she knew Defendant’s brother. The woman said that Defendant’s brother did not live at the Residence and she had never seen Defendant’s brother sell drugs there.

Another individual, a Louisiana attorney, testified that he bought cocaine from Defendant on multiple occasions during a four-month span. He also identified several text messages found on a cellular telephone that Defendant possessed when arrested. The attorney admitted that he sent the text messages to Defendant as part of a transaction to buy large amounts of cocaine.

I ¿The State also introduced evidence of Defendant’s other crimes. In 2009, Defendant was arrested and charged with possession of a firearm by a convicted felon, possession with the intent to distribute cocaine, possession with the intent to distribute morphine, distribution of a Schedule III controlled dangerous substance, possession with the intent to distribute alprazolam, and possession with the intent to distribute marijuana. Defendant pled guilty to all of the 2009 charges. Detective Humbles (“Det. Humbles”) testified that he executed a search warrant at the Residence on June 24, 2009. He found several types of prescription pills, marijuana, crack cocaine, powder cocaine, heroin, a scale and mirror with residue on them, as well as a revolver and a rifle. After looking up Defendant’s name, Det. Humbles discovered Defendant had a prior felony conviction that barred him from possessing a firearm. Upon execution of the search warrant, Defendant and his then girlfriend were arrested. Defendant and the girlfriend admitted that they lived at the Residence and shared Defendant’s bedroom.

Det. Humbles also issued an arrest warrant for Defendant’s brother, who also lived at the Residence at that time. Det. Humbles testified that .he found four pounds of marijuana located-under Defendant’s brother’s bed but all of the other drugs, paraphernalia, and guns were found in Defendant’s bedroom. He also | ^discovered energy bills in Defendant’s brother’s name and water bills in Defendant’s name for the Residence.

After the trial, Defendant was found guilty as charged on all counts. On December 15, 2015, the district court sentenced Defendant to ten years at hard labor on counts one, two, and four, to run concurrently, and ten years at hard labor without the benefit of probation, parole or suspension of.sentence on count three, to run concurrently with the other sentences. On May 2, 2016, the district court amended Defendant’s sentence on .count two, possession with the intent to distribute heroin, to provide that “at least” five of the ten years must.be served without the benefit of probation, parole or suspension of sentence. On May 4, 2016, the district court amended the sentence on count four to provide that the first two years- must be served without the benefit of probation, parole or suspension of sentence.

Defendant now timely appeals these convictions and his sentence for possession with the intent to distribute heroin.

Assignments of Error

I. Admission of Other Crimes Evidence

.In his first assignment of error, Defendant argues that the district court erred in partially granting -the State’s motion to admit evidence of Defendant’s previous | ficonvictions for possession of a firearm by a convicted felon, possession with the intent to distribute cocaine, possession with the intent to distribute morphine, distribution of a Schedule III controlled dangerous. substance, possession with the intent to distribute alprazolam, and possession with the intent to distribute marijuana (together, the. “2009. case”). Defendant argues that the other crimes evidence admitted from the 2009 case was more prejudicial than probative and should have been ruled inadmissible. Specifically, Defendant argues that because the 2009 case includes possession with the intent to distribute several prescription medications, this “makes [Defendant] look worse than just an illegal cocaine, heroin, or marijuana dealer” as “there are different implications involved in the illegal dealing of prescription medication.” Further, Defendant argues that because two firearms were found in the 2009 case and only one firearm was found in the case sub judice, the jury may have been inclined to draw inferences about him that they would not have otherwise, drawn.

La. C.E. art. 404(B)(1) provides:

Except as provided in Article 412, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, 17intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in' a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.

The district court has broad discretion in weighing the probative versus prejudicial value of evidence under La. C.E. art. 403, and its ruling on the admissibility of evidence pursuant to La. C.E. art. 404 (B)(1) will not be disturbed absent an abuse of discretion. State v. Coleman, 2014-0402, p. 39 (La. 2/26/16), 188 So.3d 174, 205.

' In order for other crimes to be admissible as evidence of intent, the prosecution must establish three prerequisites: “(1) the prior acts must be similar; (2) there must be a real and genuine contested issue of intent at trial; and (3) the probative value of the evidence must outweigh its prejudicial effect.” State v. Blank, 2004-0204, p. 41 (La. 4/11/07), 955 So.2d 90, 124; see also State v. Lawrence, 2009-1637, p, 9 (La.App. 4 Cir. 8/25/10), 47 So.3d 1003, 1009. After the State provided Defendant with notice it was going to use evidence of his prior convictions, the district court held a hearing to determine its admissibility. In 8ruling after that hearing, the district court-noted that the statutes for possession with the intent to distribute narcotics require the State to prove specific intent. See La. R.S. 40:966(A)(1) (regarding Schedule I substances, such as heroin and marijuana); La. R.S. 40:967(A)(l)(regarding Schedule II substances, such as cocaine). See also State v. Sykes, 2004-0947 (La.App. 4 Cir. 3/9/05), 900 So.2d 156, 162 (requiring specific intent in a possession with the intent to distribute case). Defendant argues that his intent is not at issue as he had not asserted that he possessed the drugs by mistake. However, the State must prove every essential element of. an offense. State v. Berniard, 2014-0341, p. 11 (La.App. 4 Cir. 3/4/15), 163 So.3d 71, 80. Thus, because specific intent is an element of the charged crimes, when Defendant pled not guilty, he necessarily put his intent at issue. The district court did not abuse its discretion in finding the other crimes evidence from the 2009 case “relevant to show that the crimes were not committed inadvertently or without guilty knowledge,” and should be admitted to show lack of mistake.

The district court also allowed the introduction of evidence of the prior crimes to show plan and preparation. The district court based its decision on evidence presented at a pretrial hearing that Defendant conducted business with confidential informants involving the sale of narcotics in both cases, which appeared to be “quite similar.” The district court also found that the information was highly probative. The similarities between the case sub judice and the 2009 |9case evident from the record indicate that the district court did not abuse its discretion in reaching this conclusion.

This assignment of error lacks merit.

II. Hearsay Ruling

Next, Defendant argues that the district court erred by denying his motion in li-mine to exclude hearsay information provided by the C.I. In so arguing, Defendant alleges that the district court first denied his motion in limine to exclude any evidence referring to information obtained by the non-testifying C.I. and then changed its ruling on two subsequent occasions during trial. The record does not support this assertion.

On the first day of trial before jury selection began, the district court initially denied Defendant’s motion in limine, ruling that any evidence alluding to the confidential informant would be admissible as res gestae. See La. C.E. 801(D)(4). The district court immediately revised its ruling to exclude any direct reference to the C.I. The district court further ruled that Det. Bion-dolillio could testify to what he learned during his investigation as long as he did not attribute the information directly to the C.I. Defendant objected, arguing that the district court would be admitting hearsay, which would warrant a mistrial.

The following morning before the trial resumed, both the State and Defendant requested clarification of the court’s motion in limine ruling. The district court repeated that the detectives could refer to the information they |10received through the course of their investigations but no party or witness could mention the C.I. The court also advised Defendant not to ask any questions that would elicit a response referencing the C.I. that would warrant a mistrial if elicited by the State. Defense counsel replied he would “not open the door.”

Det. Biondolillo testified that while executing the .search warrant, the officers waited only a few seconds to breach the door after knocking and announcing their presence because information they had received led them to believe there were guns inside the Residence. Defendant objected to this testimony as hearsay, and, after a bench conference, the district court sustained the objection.

During cross-examination, defense counsel asked Det. Biondolillo why he did not charge the woman arrested at the Residence with possession of the crack found under the bed on which she was sleeping. Det. Biondolillo replied that he did not believe it belonged to her. Defense counsel then asked, “You did not believe it was hers?” and Det. Biondolillo responded that “[a]ll the information I had up to that point led to [Defendant] being the person who lives at that house, being the person who was selling drugs from that house, including the investigation that I conducted that led to me getting a search warrant.

After the jury vacated the courtroom for a lunch break, Defendant again objected on the record to the statement Det. Bion-dolillo made on direct examination as hearsay, which the court overruled. Defendant also requested a mistrial, which the district court denied. Defendant then objected to Det. Biondolillo’s statement under cross-examination as hearsay. The State responded that the testimony had been elicited by Defendant’s own question, knowing. what Inthe answer would be, which the district court specifically advised defense counsel against. Again, the district court overruled the objection and denied Defendant’s request for a mistrial.

As stated supra, a district court’s ruling on the admissibility of evidence should not be overturned absent an abuse of discretion. See State v. Brown, 97-2260, p. 8 (La.App. 4 Cir. 10/6/99), 746 So.2d 643, 648 (applying the abuse of discretion standard to a district court’s ruling on the admissibility of hearsay). Regardless of any confusion at the district court as to the ruling on the motion in limine, the district court did not abuse its discretion in admitting the testimony. Hearsay is a statement, other than one made by the declar-ant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted. La. C.E. art. 801(C). Hearsay evidence is generally not admissible, unless provided for by the Code of Evidence or other legislation. La. C.E. art. 802. There are some exceptions to the general hearsay prohibition. For example:

The testimony of a police officer may encompass information provided by another individual without constituting hearsay, if it is offered to explain the course of the police investigation and the steps .leading to the defendant’s arrest. However, this exception does not allow the state carte blanche authority to bring before the jury the substance of the out-of-court information that would otherwise be barred by the hearsay rule.

State v. Legendre, 2005-1469, p. 11 (La. App. 4 Cir. 9/27/06), 942 So.2d 45, 52-53. (internal citations omitted). “Generally, an explanation of the officer’s actions should never be an acceptable basis upon which to admit an out-of-court declaration when the so-called ‘explanation’ involves a direct assertion of criminal activity against the accused.” State v. Hearold, 603 So.2d 731, 737 (La. 1992). “Absent some unique circumstances in which the explanation of purpose is 12probative evidence of a contested fact, such hearsay evidence should not be admitted under an ‘explanatory’ exception.” Id.

In the case sub judice, Det. Biondolillo’s statement that based on the information he received, he believed there were guns in the Residence, was provided to' explain why the police used force to breach the door of the Residence when executing the search warrant. Det. Biondo-lillo did riot attribute the information to a third' party nor was the substance of the statement a direct assertion of criminal activity against the accused. As to Det. Biondolillo’s statement made on cross-examination, there is no indication that he was referring to any statements made to him by a third party. Additionally, defense counsel specifically asked the question in order for the detective to explain his actions. .The Louisiana Supreme Court has held that the State cannot be charged with testimony elicited" by defense counsel and that defense counsel cannot claim reversible error on the basis of evidence he elicited. State v. Kimble, 375 So.2d 924, 928 (La. 1979); State v. Tribbet, 415 So.2d 182, 184 (La. 1982); State v. Augustine, 2012-1759, p. 9 (La.App. 4 Cir. 9/18/13), 125 So.3d 1203, 1208.

Moreover, even if the district court erred, admission of hearsay is subject to a harmless error analysis. State v. Witte, 559 So.2d 1321, 1332 (La.1990). On review, factors to consider include the importance of the witness’ testimony, whether the testimony was cumulative, the presence or absence of corroborating evidence, the extent of cross-examination permitted, and overall strength of the state’s case. Id. Ip the case sub judice, Det. Biondolillo testified that upon execution of the search warrant, officers discovered a shotgun.inside the Residence. Under these circumstances, any error occurring by the admission of liaDet. Biondolillo’s reference to information he learned from a non-testifying party was rendered harmless by the discovery of the shotgun.

This assignment of error lacks merit.

III. Indeterminate Sentence

Lastly, Defendant asserts that the district court imposed an indeterminate sentence on count two of the bill of information, possession with the intent to distribute heroin. La. C.Cr.P. 879 requires that a sentencing court impose a.determinate sentence. During the sentencing hearing on May 2, 2016, the district court amended the. sentence on count two. Originally, the sentence required that “the first” five years of the ten year sentence be served without the benefit of probation, parole, or suspension of sentence. Upon amendment, the words. “the first” were replaced with “at least.”

The statute regarding the penalties for possession with the intent to distribute heroin provides that upon conviction, a defendant shall be sentenced to “imprisonment at hard labor for not less than five nor more than fifty years, at least five years of which shall be served without benefit of probation or suspension of sentence...” La. R.S. 40:966(B)(1) (2014). (emphasis added); The use of the phrase “at least” in the statute is meant to provide the sentencing' judge with some discretion in fixing the term which must be served without the benefit of parole, probation or suspension of sentence, as long as it does not fall below the required minimum. State v. Dominick, 2013-0121, p. 6 (La.App. 4 Cir. 11/20/13), 129 So.3d 782, 787. However, failure of the district court to specify the- number of | 14years of a sentence which must be served without the benefit of parole, probation, or suspension of sentence, is an error patent which is neither self-correcting, nor correctable on appeal. Id. Thus, the case must be remanded to the district court for resentenc-ing. Id.

Decree

Defendant’s convictions are affirmed. Defendant’s sentence as to count two of the bill of information, possession with the intent to distribute heroin, is hereby vacated. The case is remanded to the district court for resentencing, and the district court is specifically instructed to specify the number of years Defendant must serve on this count without the benefit of probation, parole, or suspension of sentence.

AFFIRMED IN PART; VACATED IN PART; REMANDED WITH INSTRUCTIONS

      . La. R.S. 40:966(A)(1) (count one of the Bill of Information).

      . Id. (count two of the Bill of Information).

      . La. R.S. 40:967(A)(1) (count three of the Bill of Information).

      . La. R.S. 14:95.1 (count four of the Bill of Information).

      . The address where the 2014 search warrant was executed is referred to throughout this opinion as "the Residence.”

      . Approximately one month after Defendant’s arrest, the attorney was arrested in Jefferson Parish for possession of cocaine. During trial, he was in a diversion program. He testified that the State had given him immunity in this case in exchange for his testimony.

      . The 2009 search warrant was executed upon the same location as the 2014 search warrant.

      . Det. Humbles testified that he found Subox-one, Xanax, and morphine.

      . See La. R.S. 14:95.1.

      . Because the girlfriend admitted she shared the bedroom with Defendant, she was charged with everything found inside the bedroom along with Defendant.

      . After sentencing, the State filed a multiple offender bill. On July 6, 2016, the district court found Defendant not guilty of the multiple offender bill on the basis that the State failed to prove the prior underlying convictions. The State subsequently filed a new multiple offender bill. A hearing on that multiple offender bill had not taken place yet upon the lodging of this appeal.

      . The district court ruled that the State could use the other crimes evidence to show lack of mistake, plan, and preparation, but could not use the other crimes evidence to prove motive or identity.

      . This substance is identified in the record as Suboxone, a brand name for a prescription medication containing a combination of bu-prenorphine, an opioid, and naloxone, which blocks the effects of opioids, such as pain ■ relief and euphoria. Suboxone is used in the treatment of narcotic addiction. "Suboxone” (April 3, 2017), available at https://www.drugs.com/suboxone.html. See La. C.E. art. 201 (B)(2). THe word "Suboxone” does not appear in the Uniform Controlled Dangerous Substance Law, see La. R.S. 40:964, et. seq. However, buprenorphine is classified as a Schedule III controlled dangerous substance and naloxone is classified as a Schedule II controlled dangerous substance. See La. R.S. 40:964. La. R.S. 40:964 Schedule 111(D)(2)(a) provides that any mixture containing buprenorphine is a Schedule III drug.

      . These motions are often referred to as Pri-eur motions, in reference to Louisiana's seminal case on the admission of other crimes evidence, State v. Prieur, 277 So.2d 126 (La. 1973).

      . See La. C.E. art. 403.

      . See State v. Taylor, 2016-1124, p. 5, 2016 WL 7030750 at **9 (La. 12/1/16), 217 So.3d 283. In Taylor, the Louisiana Supreme Court noted that "[t]he jurisprudence has at times painted a murky picture concerning the burden of proof relative to introduction of other crimes evidence pursuant to La. C.E. art. 404(B),” in reference to the fact that some cases required that the State prove by ‘‘clear and convincing” evidence that the defendant was the person who committed the other crimes, whereas others required a lower standard. Id. The Taylor court concluded that the State does not have to prove by "clear and convincing” evidence that the defendant committed the other crimes, but rather, "the state ' need only make a showing of sufficient evidence to support a finding that the defendant committed the other crime, wrong, or act.” Id. at 2016-1124, p. 6, 2016 WL 7030750 at **6, 217 So.3d at 291 (emphasis in.original). However, the Taylor court recognized that a pretrial evidentiary hearing is required to determine the admissibility of other crimes evidence. Id. at 2016-1124, p. 6, 2016 WL 7030750 at **3-4, 217 So.3d at 288-89 . Although the evidentiary burden on the State may have been unclear at the time of Defendant’s hearing, we note that the district court held the required hearing, and that Defendant challenges the prejudicial nature and relevance of the evidence in question, not the sufficiency of the evidence the State presented at that hearing to prove that he in fact committed the other crimes.

      . La. R.S. 14:10 reads, in pertinent part, "[sjpecific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.”

      . Even if the district court had erred in allowing the admission of prior crimes evidence, it would be subject to a harmless error analysis. State v. Garcia, 2009-1578, p. 41 (La. 11/16/12), 108 So.3d 1, 59. In this case, in light of both the attorney and the woman’s testimony that Defendant possessed and distributed narcotics to them from the Residence, as well as Det. Biondolillo’s testimony that all of the individually packaged narcotics and shotgun were found inside the Residence, the admission of the prior crimes evidence, if erroneous, was harmless.

      . We note that, as stated supra, the district court had sustained the objection during the testimony.

      . See also, State v. Matthews, 650 So.2d 1170 (La. 1995) (wherein the Louisiana Supreme Court vacated the defendant’s sentence of forty years at hard labor, "at least” ten of which must be served without parole eligibility, as being indeterminate and remanded the case to the district court with instructions to resen-tence the defendant to specify the number of years of parole ineligibility).


author: Judge Terri F. Love LANDRIEU, J.,

text:
    STATE FARM FIRE AND CASUALTY COMPANY v. HOTEL MANAGEMENT OF NEW ORLEANS, L.L.C.
    NO. 2016-CA-0822
    Court of Appeal of Louisiana, Fourth Circuit.
    MAY 3, 2017

      James E. Brouillette THE LAW OFFICE OF JAMES BROUILLETTE 3330 Lake Villa Drive, Suite 202 Metairie, LA 70002 COUNSEL FOR PLAINTIFF/AP-PELLEE, STATE FARM FIRE AND CASUALTY COMPANY
    Isaac H. Ryan Kermit L. Roux, III DEUTSCH, KERRIGAN & STILES, L.L.P. 755 Magazine Street New Orleans, LA 70130 COUNSEL FOR DEFENDANT/APPELLANT, HOTEL MANAGEMENT OF NEW ORLEANS, LLC
    (Court composed of Judge Terri F. Love, Judge Madeleine M. Landrieu, Judge Joy Cossich Lobrano)
   Judge Terri F. Love

hA French Quarter hotel’s fire prevention sprinkler activated, which caused water to leak into the gift shop below and damage merchandise. The gift shop owner’s insurer filed suit against the hotel seeking repayment of insurance proceeds paid to the gift shop owner for the damage. The trial court found in favor of the insurer and ordered payment of $41,662.05, plus court costs and legal interest from the date of demand. The hotel’s appeal followed.

We find that the trial court committed manifest error by finding in favor of the insurer because the insurer failed to meet its burden of proof of the hotel’s negligence. The trial court’s judgment is reversed, and judgment is rendered in favor of the hotel.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On February 12, 2013, Mardi Gras, a sprinkler head located in the French Market Inn (“Hotel”), owned and operated by Hotel Management of New Orleans, LLC (“HMNO”), was triggered, causing water to leak into and flood portions of the storefront two floors below, operated by Haj-era, Inc. d/b/a Best of NOLA | ¡.(“storeowner”). The storeowner reported that water leaked into the store for almost two hours. HMNO did not attempt to shut off the sprinkler head. Instead, HMNO waited for the fire department to turn the sprinkler off. The storeowner suffered damages as a result.

State Farm Fire and Casualty Company (“State Farm”) insured the storeowner, and paid $41,662.05 in damages on the storeowner’s policy. State Farm then filed a Petition for Damages against HMNO, as a partial subrogee of the storeowner, seeking repayment of the $41,662.05. State Farm added HMNO’s insurer, Companion Property and Casualty Insurance Company (“Companion”) as an additional defendant. Following a bench trial, the trial court found for State Farm and ordered the repayment of the stipulated $41,662.05 in damages, plus court costs and legal interest from the date of demand. HMNO and Companion (collectively “Defendants”), suspensively appealed.

The Defendants contend that the trial court erred by: 1) finding that the sprinkler was defective and that HMNO knew or should have known of the defect, 2) finding that the HMNO employees were negligent, and 3) denying HMNO’s Motion for Involuntary Dismissal.

STANDARD OF REVIEW

“In civil cases, the appropriate standard for appellate review of factual determinations is the manifest error-clearly wrong standard.” Hall v. Folger Coffee Co., 03-1734, p. 9 (La. 4/14/04), 874 So.2d 90, 98. “Under the manifest error standard, a factual finding cannot be set aside unless the appellate court finds that the trier of fact’s determination is manifestly erroneous or clearly wrong.” Detraz v. Lee, 05-1263, p. 7 (La. 1/17/07), 950 So.2d 557, 561. To reverse the factfinder, “an appellate court must review the record in its entirety and (1) find |athat a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous.” Id. “The appellate court must not re-weigh the evidence or substitute its own factual findings because it would have decided the .case differently.” Id. “Where there are two permissible views of the evidence, the fact finder’s - choice between them cannot be manifestly erroneous or clearly wrong, even if the reviewing court would have decided the case differently.” Id.

"Thé manifest error standard of review also applies to mixed questions of law and fact.” A.S. v. D.S., 14-1098, p. 10 (La.App. 4 Cir. 4/8/15), 165 So.3d 247, 254. Conversely, purely legal issues “are reviewed with the de novo standard of review.” Gordon v. Gordon, 16-0008, p. 3 (La.App. 4 Cir. 6/8/16), 195 So.3d 687, 689.

A motion for involuntary dismissal is reviewed using the manifest error standard of review. Ridgeway v. Pierre, 06-0521, p. 4 (La.App. 4 Cir. 1/11/07), 950 So.2d 884, 888.

NEGLIGENCE

The Defendants allege that the trial court erred by finding that HMNO employees were negligent.

“Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” La. C.C. art. 2315(A). Further, La. C.C. art. 2316 states that “[e]very person is responsible for- the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill.” In order to impose liability pursuant to La. C.C. art. 2315 or 2316, Louisiana employs the duty-risk -analysis, which requires .the examination of the following five factors elucidated by the Louisiana Supreme Court:

|4(1) the defendant had a duty to. .conform his or her conduct to a specific standard of care (the duty element); (2) the defendant failed to conform his or her conduct to the appropriate standard (the breach of duty element); (3) the defendant’s substandard conduct was a cause-in-fact of the plaintiffs injuries (the cause-in-fact element); (4) the defendant’s substandard conduct was a legal cause of the plaintiffs injuries (the scope of liability or scope of protection element); and, (5) actual damages (the damages element).

Mathieu v. Imperial Toy Corp., 94-0952, pp. 4-5 (La. 11/30/94), 646 So.2d 318, 322.

It is undisputed that the water leaking from HMNO’s sprinkler system caused the damages to the storeowner. The parties all stipulated that the ■ damages were $41,662.05. Thus, the cause-in-fact and damages elements were not at.issue.

Duty

“A threshold issue then in any negligence action is whether the defendant owed the plaintiff a duty.” Meany v. Meany, 94-0251, p. 6 (La. 7/5/94), 639 So.2d 229, 233. “This issue is a legal question for the court to decide.” Id. “The court must make a policy determination in light of the unique facts of the case.” Id. “Thus, the duty-risk analysis requires the court to take into account the conduct of each party as well as the particular circumstances of the case.” Id. “The court may consider various moral, social, and economic factors, including” 1) “the fairness of imposing liability;” 2) “the economic impact on the defendant and on similarly situated parties;” 3) “the need for an incentive to prevent future harm;” 4) “the nature of defendant’s activity;” 5) “the. potential for an unmanageable flow of litigation;” 6) “the historical development of precedent;” and 7) “the direction in which society and its institutions are evolving.” Posecai v. Wal- Mart Stores, Inc., 99-1222 (La. 11/30/99), 752 So.2d 762, 766.

| Jn Louisiana, there is no statutory duty of a business to protect nearby buildings from the water emitting from fire protection sprinkler systems. However, “[t]here is an almost universal duty on the part of the defendant in negligence cases to use reasonable care so as to avoid injury to another.” Boykin v. Louisiana Transit Co., Inc., 96-1932 (La. 3/4/98), 707 So.2d 1225, 1231. “Generally, duty is defined, as the obligation to conform to the standard of conduct associated with a reasonable man in.like circumstances.” Fox v. Bd. of Sup’rs of Louisiana State Univ. & Agr. & Mech. Coll., 576 So.2d 978, 981 (La. 1991).

Having found a general duty, we now examine whether State Farm presented evidence of HMNO’s alleged negligence/breach of duty.

Breach of Duty

Timothy Lawrence, the general manager of the Hotel for HMNO, testified that the fire protection sprinkler system was contracted out to Coastal Protection. Mr. Lawrence stated that Hotel employees were instructed to call the fire department if the sprinkler system came on. .They were not instructed to turn the sprinkler off. The procedure to call the fire department was put in place to prevent the loss of life. Additionally, Mr. Lawrence stated that he did not contact maintenance to shut off the sprinkler system because the fire department was on site. The Hotel was not evacuated, so Mr. Lawrence assumed that no fire was involved. However, no one ever told him there was not a fire. By the time Mr. Lawrence was called, water was already leaking into the store, and the firemen were ensuring there was no fire so they could shut down the sprinkler system and recap the sprinkler head. Finally, Mr. Lawrence testified that he would not have allowed his staff to turn off the water to the sprinkler system because that was not part of their job. He admitted that they did nothing to prevent the flow of water 16into the store.

Abdul Khan, the storeowner, testified that the Hotel employees informed him that they did not know how to'turn off the water. He stated that the fire department came out to the site after an hour or two. Mr. Khan testified that water began to flow into his store around 7:00 p.m. on Mardi Gras and continued for about two hours.

James' Phifer, a fire sprinkler design manager for Coastal Protection, testified that he did not know what caused the sprinkler head to discharge. Terry Lam-kin, an employee of Coastal Protection, testified that the seal on a sprinkler head can be broken by heat or “some kind of manipulation.”

After considering all of the testimony, the trial court found that HMNO had “a duty to maintain the system and proven [sic] that system didn’t function properly, that is what has been suggested, that is what no one has proven any disagreement to, what else do you have, is there anything- else you have to offer the Court?” The trial court further stated:

The Court having heard the testimony finds that the sprinkler in question failed to act properly causing damage to the defendants—to plaintiffs property, I’m sorry, suffered—the T-shirt shop for which State Farm paid damages to its insured
* * #
The Court finds in • favor of State Farm ordering that the amount of 41,-662.05 plus interest and court cost [sic] are due to State Farm and/or it’s insured in connection with the claim asserted-and more. specifically the claims as asserted in the petition ... and I understand your argument, even if I [sic] guest did it, it’s not their fault, it’s your guest. You may have a right against that guest, but that’s a different issue and that’s not in front of me [sic] the issue is whether or not there was damage as a result of something that occurred on your premises that caused harm to these, this insured and the Court finds that that is in fact your responsibility and your obligation because it was in your care, custody and control.

[7The trial court made no findings of negligence. Instead, the trial court’s reasons given on the record align more with strict liability theories outlined in La. C.C. art. 2317 and 2317.1, which the trial court previously stated was unproven.

The evidence presented demonstrates that HMNO employees followed the Hotel’s procedure of requiring the fire department to turn off the sprinkler system once activated. As the manager stated, this policy is in place to prevent loss of life. State Farm failed to prove that HMNO acted unreasonably or imprudent by requiring the fire department to clear the area of fire prior to disengaging the activated sprinkler system. There is no evidence that the policy created an unreasonable risk of harm. Additionally, as the trial court stated, there was no proof of a de-feet. As such, we do not find that State Farm proved HMNO’s alleged negligence.

When reviewing for manifest error, we must examine whether a reasonable factual basis exists for the factfinder’s conclusions. As we found that State Farm failed to meet its burden of proof because the record lacks evidence of negligence, we find that there is no reasonable factual basis for the trial court’s judgment. The trial court’s finding that HMNO must reimburse State Farm for the insurance proceeds paid to Mr. Kahn is manifestly erroneous. The judgment of the trial court Ris reversed, and judgment is rendered.

INVOLUNTARY DISMISSAL

The Defendants maintain that the trial court erred by refusing to grant their Motion for Involuntary Dismissal.

La. C.C.P. art. 1672(B) provides that:

In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.

“Following a bench trial, a defendant may move for involuntary dismissal, pursuant to La. C.C.P. art. 1672(B), when the plaintiff has shown no right to relief based upon the facts and law.” Crescent City Cabinets & Flooring, L.L.C. v. Grace Tama Dev. Co., L.L.C., 16-0359, p. 8 (La.App. 4 Cir. 10/19/16), 203 So.3d 408, 414.

As we found that the trial court committed manifest error by ruling in favor of State Farm, the discussion on involuntary dismissal is pretermitted.

DECREE

For the above-mentioned reasons, we find that the trial court committed manifest error by finding that HMNO’s sprinkler system did not function properly and ordering payment to State Farm. State Farm failed to meet its burden of proof that HMNO was negligent. The judgment of the trial court is reversed and rendered.

REVERSED AND RENDERED

LANDRIEU, J., CONCURS WITH REASONS

LOBRANO, J., CONCURS FOR THE REASONS ASSIGNED BY LANDRIEU, J.

LANDRIEU, J.,

CONCURS WITH REASONS

[1As the majority notes, the duty of HMNO (“the hotel”) was to act reasonably under the circumstances. The record here demonstrates that the plaintiff failed to present any evidence to show that the hotel breached this duty.

The evidence shows that the incident was more than likely caused by a hotel guest who tampered with the sprinkler head in room 314, breaking the seal. Water then leaked from the floor of that room to the area directly below it on the second floor of the hotel and then eventually into the T-shirt shop located directly underneath that area on the first floor. The sprinkler system was designed such that when the seal was broken, an automatic signal was sent to the fire department. There was no evidence presented to show what time the fire department received that signal or how long it took the department to respond. There is no evidence that any fire alarm was triggered in the hotel or that any member of the hotel staff was aware of the incident when it occurred. The hotel was not evacuated.

Although the shop owner testified that water was leaking into his shop for “almost two hours,” there is no evidence establishing what time this leakage was reported to the hotel or to what extent the merchandise in the shop had already been damaged by the time the incident was reported. The shop owner testified that he was not present when the water began coming into the shop because he had left J ¾ and his son was minding the shop. His son did not testify. The shop owner did not state what time he returned; he testified only that when he returned, he informed the hotel desk clerk that water was coming into his shop damaging the merchandise, and the desk clerk indicated that she could not turn off the sprinkler system as she was not authorized to do so and did not even know where the controls were. The hotel desk clerk did not testify. However, the obvious inference from the record is that the clerk’s response was to call the general manager of the hotel and inform him of the problem.

The general manager of the hotel testified that he received a phone call from the desk clerk alerting him that water was leaking into the shop. He said he immediately went to the hotel and arrived there at approximately 8:30 p.m., at which time the fire department was already there. He did not state what time he received the call or how long it took him to get to the hotel. No one from the fire department testified, but all witnesses agreed that it took' the fire department personnel approximately one hour to replace the sprinkler head. There is no evidence as to when the water, stopped leaking into the shop.

Considering the record, I agree that the trial court committed manifest error by finding negligence on the part of the hotel. Accordingly, I concur in the result reached by the majority.

LOBRANO, J., CONCURS FOR THE REASONS ASSIGNED BY LANDRIEU, J.

      . La. C.C. art. 2317 provides that "[w]e are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications.”

      . La. C.C. art. 2317.1 provides, in pertinent part: "The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.”

      .The trial court previously stated that "It's not a premises defect claim. The allegations contains in, and I agree as relates there is not been any proof of a premises defect ...." The trial court denied HMNO’s Motion for Involuntary Dismissal, and found that HMNO had a duty to maintain the sprinkler system.


author: DAVID E. CHATELAIN JUDGE

text:
    LIBERTY MUTUAL FIRE INS. CO. v. Terry WEAVER, et al.
    16-1008
    Court of Appeal of Louisiana, Third Circuit.
    05/10/2017
    See also 2016 WL 8090344.

      Dan Boudreaux, Law Offices of Keith S. Giardina, 9100 Bluebonnet Centre Blvd,, Suite 300, Baton Rouge, LA 70809, (225) 293-7272, COUNSEL FOR PLÁIN-TIFF/APPELLANT: Liberty Mutual Fire Ins. Co.
    George A. Flournoy, Flournoy & Dog-gett, APLC, P.O. Box 1270, Alexandria, LA 7130¾ . (318) 487-9858, COUNSEL FOR DEFENDANTS/ÁPPELLEES: Allmerica Financial Benefit Ins. Co., Terry Weaver, Progressive Gulf Ins. Co.
    Sidney J. Angelle, Erik L. Vollenweider, Lobman, Carnahan, Batt, Angelle &.Nader, 400 Poydras St., Suite 2300, New Orleans, LA 70130, (504) 586-9292, COUNSEL FOR DEFENDANT/APPELLEE: Allmerica Financial Benefit Ins. Co.
    S. Curtis Mitchell, Casler, Bordelon & Lawler, 11550 Newcastle Ave., Suite 200, Baton Rouge, LA 70816, (318) 840-5075, COUNSEL, FOR DEFENDANTS/AP-PELLEES: Terry Weaver, Progressive Gulf Ins. Co. . ‘ .

      Court composed of D. Kent Savoie, David E. Chatelain, and Van H. Kyzar, Judges.
   DAVID E. CHATELAIN JUDGE

|,The plaintiff, Liberty Mutual Fire Insurance Company (Liberty Mutual), appeals the trial court’s judgments granting the peremptory exceptions of res judicata of the defendants, Allmerica Financial Benefit Insurance Company (Allmerica), Terry Weaver (Weaver), and Progressive Gulf Insurance Company (Progressive) (collectively “the defendants”). We affirm.

PROCEDURAL HISTORY

On March 28, 2016, Liberty Mutual filed a petition alleging a violation of La.R.S. 23:1102(C)(1) against the defendants. In its petition, Liberty Mutual alleged that it had intervened and asserted a workers’ compensation lien in a separate tort action filed by Mary Ortega (Ortega), and that on September 19, 2015, the defendants entered into a settlement agreement with Ortega without obtaining Liberty Mutual’s consent as required by La.R.S. 23:1102(0(1).

On July 12, 2016, Weaver filed a peremptory exception of res judicata alleging that in the prior suit “the action was between the same parties on the same cause of action as this action[,] and that Liberty Mutual’s claim in the tort action had been resolved pursuant to a judgment of dismissal rendered on October 27, 2015.” On thát same day, Progressive also filed a peremptory exception of res judicata asserting the same reasons as Weaver. Likewise, on August 2, 2016, Allmerica filed a peremptory exception of res judica-ta and a motion for sanctions. Allmerica asserted that the current suit is “founded on the same cause of actions, ^demands the same thing, and is between the same parties and formed by them in the same quality as” the prior suit. On August 19, 2016, Liberty Mutual filed a memorandum in opposition to the defendants’ peremptory exceptions of res judicata to which it attached three exhibits: (A) the trial court’s judgment in the prior suit signed on October 27, 2015; (B) its petition of intervention in the prior suit filed on July 25, 2014; and (C) the September 17, 2015 settlement agreement between the defendants and Ortega in the prior suit.

The trial court held a hearing on the exceptions on August 25, 2016. Liberty Mutual offered its memorandum in opposition with its attachments for the record. The defendants offered no evidence at the hearing. On September 19, 2016, the trial court entered two judgments in this matter, one submitted by Liberty Mutual and one by the defendants; it is impossible to determine which judgment the trial court signed first. Although the two judgments differed in phraseology, the decretal language was the same—the trial court granted the peremptory exceptions of res judi-cata and denied the motion for sanctions. Liberty Mutual timely appealed both judgments.

RES JUDICATA: ISSUE PRECLUSION

In the present case, Liberty Mutual relies upon La.R.S. 23:1102(C)(1), contending that because of the settlement Ortega reached with the defendants without Liberty Mutual’s prior written approval, it is entitled to “a total amount of $103,748.71 and all additional workers’ compensation payments that may accrue or occur subsequent to the resolution of this litigation as a matter of law.” Liberty Mutual further argues that because the settlement at issue was entered into before its intervention was dismissed in the earlier lawsuit, this constitutes a new and different cause of action to which res judicata is inapplicable. We disagree.

| ;¡“Res judicata is an issue and claim preclusion device found both in federal law and state law.” Terrebonne Fuel & Lube, Inc. v. Placid Ref. Co., 95-654, 95-671, p. 12 (La. 1/16/96), 666 So.2d 624, 631. “The purpose of both federal and state law on res judicata is essentially the same; to promote judicial efficiency and final resolution of disputes by preventing needless relitigation.” Id. Although prior to 1991, Louisiana law on res judicata was substantially narrower than federal law, the 1991 amendments expanded the law to include issue preclusion. Id.; Williams v. City of Marksville, 02-1130 (La.App. 3 Cir. 3/5/03), 839 So.2d 1129.

Under the principle of issue preclusion set forth in La.R.S. 13:4231(3), “[a] judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.” Although both claim and issue preclusion are termed res judicata under our law, these two concepts are alike in result but distinctly different. In Hudson v. City of Bossier, 33,620, p. 7 (La.App. 2 Cir. 8/25/00), 766 So.2d 738, 743, unit denied, 00-2687 (La. 11/27/00), 775 So.2d 450 (emphasis added), the appellate court explained this distinction:

Under claim preclusion, a final judgment on the merits precludes the parties from relitigating matters that were or could have been raised in that action. Under issue preclusion or collateral estoppel, however, once a court decides an issue of fact or law necessary to its judgment, that decision precludes relitigation of the same issue in a different cause of action between the same parties.

Comment (b) to La.R.S. 13:4231 further states, in part:

R.S. 13:4231 also changes the law by adopting the principle of issue preclusion. This principle serves the interests of judicial economy by preventing reliti-gation of the same issue between the same parties. For example, if a plaintiff brings an action against a defendant to recover for injuries sustained in an automobile accident, the judgment rendered in that action would preclude relitigation of any issue raised in a subsequent action brought by defendant against plaintiff to recover for his injuries sustained in the same accident | ¿provided that the issue had been actually litigated and essential to the judgment, e.g., fault of either party. This proviso insures that the issue would have been fully developed by the parties in the first action and makes it fair to hold the parties bound to that initial determination. '

“[Ojnce a court decides an issue of fact or law necessary to its judgment, that decision precludes relitigation of the same issue in a different cause of action between the same parties.” Hudson, 33,620, p. 7, 766 So.2d at 743. Thus, under La.R.S. 13:4231(3) the three requirements for issue preclusion are: “(1) a valid and final judgment; (2) identity of the parties; and (3) an issue that has been actually litigated and determined if its determination was essential to the prior judgment.” Horrell v. Horrell, 99-1093, p. 1 (La.App. 1 Cir. 10/6/00), 808 So.2d 363, 373, writ denied, 01-2546 (La. 12/7/01), 803 So.2d 971.

At the heart of Liberty Mutual’s contention in . the present case, La.R.S. 23:1102(C)(1)' states, in pertinent, part:

When a suit has been filed against a third party defendant in which the em■ployer or his insurer has intervened, if the third party defendant or his insurer fails to obtain written approval of the compromise from the employer or his insurer at the time of or prior to such compromise and the employee fails to pay to the employer or his insurer the total amount of compensation benefits and .medical benefits out of the funds received as a result of the compromise, the third party defendant or his insurer shall be required to reimburse the employer or his insurer to the extent of the total amount of compensation benefits and medical benefits previously paid to or on behalf of the employee to the extent said amounts have not been previously paid to the employer or his insurer by the employee pursuant to the provisions of. Subsection B of this Section.

As a corollary to La.R.S. 23:1102(0(1), La.R.S. 23:1101(0) further provides:

For purposes of this Section, “third person” shall include any party who causes injury to an employee at the time of his employment or at any time thereafter provided the employer is obligated to pay benefits under this Chapter because the injury by the third party has aggravated the employment related injury.

In support of its contention herein, Liberty Mutual’s petition alleges: (1) it intervened to assert its workers’ compensation lien in a tort action against Ortega; R(2) pursuant to La.R.S. 23:1101(B), it had a right to bring a direct action against a tortfeasor for reimbursement or indemnification of all sums paid in compensation and medical benefits for Ortega’s workers’ compensation claim; (3) pursuant to La. R.S. 23:1102(C)(1), if a settlement is considered in a suit in which a lienholder has intervened and written approval of the lienholder is not obtained, then the third party defendant is required to pay the workers’ compensation carrier the total amount of compensation and medical benefits previously paid on behalf of the workers’ compensation claimant; and (4) on September -17, 2015, Ortega settled her claim against the defendants without Liberty Mutual’s written approval.

As well recognized in the jurisprudence, not every “third person” qualifies as a “third person” contemplated by La.R.S. 23:1101—1102. To the contrary, the application of La.R.S. 23:1102(C) is framed by the definition of “third person” as delineated in La.R.S. 23:1101(C). See Haynes v. United Parcel Serv., 05-2378 (La. 7/6/06), 933 So.2d 765; Travelers Ins. Co. v. Joseph, 95-200 (La. 6/30/95), 656 So.2d 1000; Ryan v. ESIF/Ryan Constr., 46,916 (La. App. 2 Cir. 4/4/12), 88 So.3d 719, writ denied, 12-1023 (La. 6/29/12), 92 So.3d 344; Champagne v. State, La. State Univ., 01-242 (La.App. 1 Cir. 3/28/02), 819 So.2d 1059; Callihan v. Gulf Coast Marines, Inc., 97-1705 (La.App. 1 Cir. 5/15/98), 714 So.2d 199, writ denied, 98-1633 (La. 9/25/98), 725 So.2d 489.

More importantly, our earlier decision in Ortega v. Progressive Gulf Insurance Co., 16-42 (La.App. 3 Cir. 6/1/16), 2016 WL 3090344 (unpublished opinion) specifically rejected Liberty Mutual’s third-party defendant contention. In our affirmation of the dismissal of Liberty Mutual’s intervention in the underlying tort action, we specifically determined the issue of whether the tort action involved an injured employee’s suit against a “-third party defendant.” .In rejecting Liberty Mutual’s claim, we observed that Liberty Mutual had “admitted that Ortega was not in the | «course and scope of her employment” when the auto accident took place and further found that Liberty Mutual failed to prove that it had incurred any additional expenses as a result of the auto accident at issue. Id. at *4.

“Issue preclusion requires the issue to be precluded to have been a dispositive issue which the prior court must have considered in a contest between the same parties.” Goodman v. Spillers, 28,933, p. 11 (La.App. 2 Cir. 12/23/96), 686 So.2d 160, 167, units denied, 97-225, 97-423 (La. 3/27/97), 692 So.2d 393, 400. Considering this court’s decision in Ortega, one that was adverse to Liberty Mutual and involved the same parties, it- is evident that the “third-party defendant” issue that was decided there is the same one at play in the present action. Thus,- under La.R.S. 13:4231(3) - there being a valid and final judgment between identical parties, and an issue that has been actually litigated and determined which was essential to the pri- or judgment and equally essential to the present'action, we find that the trial court correctly granted the defendants’ peremptory exception of res judicata.

Additionally, a court of appeal may raise the peremptory exception of no cause of action.sua sponte: “the failure to disclose a cause of action or a right or interest in the plaintiff to institute the suit ... may be noticed by either the trial or appellate court on its own motion.” La. Code Civ.P. art. 927(B); see Moreno v. Entergy Corp., 10-2268 (La. 2/18/11), 64 So.3d 761. After carefully reviewing Liberty Mutual’s petition, it is void of any allegation of fact that the third party tortfea-sor meets the criteria detailed in La.R.S. 23:1101(0). Thus, we further 7conclude Liberty Mutual has failed t'o state a cause of action and dismiss its petition with prejudice.

DECREE

We affirm the trial court ’judgments which granted the peremptory exceptions of res judicata filed by Allmerica Financial Benefit Insurance Company, Terry Weaver, and .Progressive Gulf Ins. Company. We further recognize sua sponte the peremptory exception of no cause of action and dismiss with prejudice Liberty Mutual Insurance Company’s petition against Terry Weaver, Allmerica Financial Benefit Insurance Company, and Progressive .Gulf Insurance Company. Costs of this appeal are assessed to Liberty Mutual Insurance Company.

AFFIRMED; CASE DISMISSED WITH PREJUDICE.

       Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

      . As explained more fully herein, we also recognize sua sponte that Liberty Mutual has failed to state a cause of action.

      . Liberty Mutual also named Phillips Distributing, L.L.C. of MS. (Phillips) as a party in its petition. Phillips was a party in the prior suit and signed the settlement agreement at issue. However, in this case Phillips neither answered Liberty Mutual’s petition nor filed an exception and the trial court’s judgments did not name Phillips as a party.

      .Progressive also filed a declinatory exception of insufficiency of service, but at the hearing in this case the insufficiency of service was admitted to have been remedied.

      . Although Liberty Mutual correctly notes that its present cause of action, premised on Ortega’s settlement, arose after the rendition of the final judgment and could not have been asserted earlier, such factor is of no moment in the assessment of issue preclusion. Specifically, La.R.S. 13:4231(3) contemplates the use of "an actual, essential issue “in any subsequent action between them."

      . Considering this court s decision in Ortega v. Progressive Gulf Insurance Co., 16-42 (La. App. 3 Cir. 6/1/16), 2016 WL 3090344 (unpublished opinion), which specifically rejected Liberty Mutual’s third-party contention, it is evident that Liberty Mutual cannot .amend its pleadings to remove the grounds of the peremptory exception of no cause of action which we recognize.