text:
    STATE EX REL. Randolph ARMSTEAD v. STATE of Louisiana
    No. 2017-KH-0367
    Supreme Court of Louisiana.
    May 18, 2018
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

Denied. Relator fails to show that he received ineffective assistance of counsel under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Relator's remaining claim is repetitive. La.C.Cr.P. art. 930.4.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    STATE EX REL. Isaac Jerome KING v. STATE of Louisiana
    No. 2017-KH-0174
    Supreme Court of Louisiana.
    May 18, 2018
    ON SUPERVISORY WRITS TO THE NINETH JUDICIAL DISTRICT COURT, PARISH OF RAPIDES
   PER CURIAM:

Denied. Relator's application filed in the district court in or around September 2015 was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

GENOVESE, J., recused.


text:
    STATE EX REL. Bobby Charles BYRD v. STATE of Louisiana
    No. 2017-KH-0533
    Supreme Court of Louisiana.
    May 18, 2018
    ON SUPERVISORY WRITS TO THE FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO
   PER CURIAM:

Denied. Relator fails to show that he received ineffective assistance of counsel under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As to his remaining claims, relator fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Sedrick SIMMS v. STATE of Louisiana
    No. 2017-KH-0378
    Supreme Court of Louisiana.
    May 18, 2018
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

Denied. Relator fails to show that he received ineffective assistance of trial and appellate counsel under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Charles M. WYNNE, Jr. v. STATE of Louisiana
    No. 2017-KH-0092
    Supreme Court of Louisiana.
    May 18, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-SIXTH JUDICIAL DISTRICT COURT, PARISH OF WEBSTER
   PER CURIAM:

Denied. Relator fails to show the evidence was insufficient to support his convictions.

Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; State v. Mussall , 523 So.2d 1305 (La. 1988).

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Malcolm DIGGS v. STATE of Louisiana
    No. 2017-KH-0550
    Supreme Court of Louisiana.
    May 18, 2018
    ON SUPERVISORY WRITS TO THE THIRTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF TERREBONNE
   PER CURIAM:

Denied. Relator fails to show that he received ineffective assistance of counsel under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

WEIMER, J., recused.


text:
    STATE of Louisiana v. Greenville MAHOGANY
    NO. 2017-K-1416
    Supreme Court of Louisiana.
    May 18, 2018
    Denied.


text:
    STATE of Louisiana v. Fabian HARPER
    NO. 2017-KO-1423
    Supreme Court of Louisiana.
    May 18, 2018
    Denied.


text:
    Gustave J. LABARRE, Jr., et al. v. OCCIDENTAL CHEMICAL COMPANY, et al.
    NO. 2018-CC-0448
    Supreme Court of Louisiana.
    May 18, 2018
    Denied.


text:
    STATE of Louisiana v. Jerrod JACOBS
    NO. 2018-KK-0782
    Supreme Court of Louisiana.
    May 17, 2018
    Stay denied; writ denied.


text:
    STATE of Louisiana v. Christopher Lee GRIFFIN
    NO. 2017-KO-1687
    Supreme Court of Louisiana.
    May 18, 2018
    Denied.


text:
    STATE of Louisiana v. Frank DIAZ
    NO. 2017-KO-1722
    Supreme Court of Louisiana.
    May 18, 2018
    Denied.


author: WEIMER, J., would grant,

text:
    Pamelia Elmer VILLA, et al. v. GEICO CASUALTY INSURANCE CO., et al.
    NO. 2018-C-0439
    Supreme Court of Louisiana.
    May 18, 2018
    Denied.
   WEIMER, J., would grant,


text:
    PLAQUEMINES PARISH GOVERNMENT, as the Assignee and Subrogee of All South Consulting Engineers, LLC v. FIRST MERCURY INSURANCE COMPANY and All South Consulting Engineers, LLC
    NO. 2018-CC-0517
    Supreme Court of Louisiana.
    May 18, 2018
    Denied.


text:
    ARC INDUSTRIES, L.L.C. v. William NUNGESSER
    William H. Nungesser
    Michel B. Moreno, Emile Domesnil and Dynamic Industries, Inc.
    NO. 2018-C-0522
    Supreme Court of Louisiana.
    May 18, 2018
    Denied.


text:
    BAY PERISO v. BAN VU
    NO. 2018-C-0518
    Supreme Court of Louisiana.
    May 18, 2018
    Denied.


text:
    Pamelia Elmer VILLA, et al. v. GEICO CASUALTY INSURANCE CO., et al.
    NO. 2018-C-0520
    Supreme Court of Louisiana.
    May 18, 2018
    Denied.


text:
    Patricia POWELL v. RAPIDES PARISH SCHOOL BOARD
    NO. 2018-C-0505
    Supreme Court of Louisiana.
    May 18, 2018
    Denied.


author: GUIDRY, J., would grant.

text:
    Jose Guerrero ROMERO v. SAFECO INSURANCE COMPANY OF OREGON
    NO. 2018-CC-0500
    Supreme Court of Louisiana.
    May 18, 2018
    Denied.
   GUIDRY, J., would grant.


text:
    STATE EX REL. Malcolm WASHINGTON v. STATE of Louisiana
    No. 2016-kh-2068
    Supreme Court of Louisiana.
    May 18, 2018
    Not considered. See La.S.Ct.R. IX, § 1.


text:
    STATE EX REL. Daniel CHAMBERS v. STATE of Louisiana
    NO. 2016-KH-2207
    Supreme Court of Louisiana.
    May 18, 2018
    Not considered. See La.S.Ct.R. IX, § 6.


text:
    STATE EX REL. Gene Ellis WILLIAMS v. STATE of Louisiana
    NO. 2016-KH-2130
    Supreme Court of Louisiana.
    May 18, 2018
    Not considered. See La.S.Ct.R. IX, § 6.


author: HUGHES, J., would grant.

text:
    STATE EX REL. Jessie CARTER, Jr. v. STATE of Louisiana
    NO. 2016-KH-2171
    Supreme Court of Louisiana.
    May 25, 2018
    Reconsideration denied.
   HUGHES, J., would grant.


text:
    STATE of Louisiana v. Anthony Paul CAMINITA
    No. 2016-KO-2045
    Supreme Court of Louisiana.
    May 18, 2018
    Not considered. See La.S.Ct.R. IX, § 6.


text:
    STATE of Louisiana v. Ranita L. TONEY
    NO. 2018-KK-0759
    Supreme Court of Louisiana.
    May 18, 2018
    Denied.
   HUGHES, J., would grant.

GENOVESE, J., would grant.


text:
    STATE EX REL. Willie PRICE v. STATE of Louisiana
    NO. 2017-KH-0305
    Supreme Court of Louisiana.
    May 18, 2018
    Not considered. Relator has not demonstrated that he sought review in the court of appeal before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE EX REL. Tyrone K. DAVENPORT and Dale M. Elmore v. STATE of Louisiana
    NO. 2018-KH-0079
    Supreme Court of Louisiana.
    May 25, 2018
    Reconsideration denied.


text:
    STATE of Louisiana v. Gregory Lynn JOHNSON
    NO. 2017-KO-1792
    Supreme Court of Louisiana.
    May 25, 2018
    Denied.


text:
    NEXION HEALTH AT MINDEN, INC. d/b/a Meadowview Health and Rehabilitation Center v. LOUISIANA DEPARTMENT OF HEALTH & Louisiana Divison of Administrative Law
    NO. 2018-CC-0544
    Supreme Court of Louisiana.
    May 25, 2018
    Denied.


text:
    STATE of Louisiana v. Kyle James TOUPS
    NO. 2017-K-1363
    Supreme Court of Louisiana.
    May 25, 2018
    Denied.


text:
    STATE of Louisiana v. Morgan HUTCHINSON
    NO. 2018-KK-0554
    Supreme Court of Louisiana.
    May 25, 2018
    Not considered. Not timely filed. See Louisiana Supreme Court Rule X, § 5(a).


text:
    IN RE: CONFIDENTIAL PARTY
    No. 2017-OB-2053
    Supreme Court of Louisiana.
    May 25, 2018
    Reconsideration denied.


text:
    Craig VICTORIAN v. James LEBLANC and Louisiana Department of Public Safety and Corrections
    NO. 2017-CI-0517
    Supreme Court of Louisiana.
    May 25, 2018
    Denied.
   HUGHES, J., would grant.


text:
    STATE of Louisiana v. Raymond DARNELL
    NO. 2017-KO-1526
    Supreme Court of Louisiana.
    May 25, 2018
    Denied.
   HUGHES, J., would grant.

CRICHTON, J., recused.


text:
    STATE EX REL. Rickey Lionel LAURANT v. STATE of Louisiana
    NO. 2017-KH-0811
    Supreme Court of Louisiana.
    May 25, 2018
    Denied.


text:
    STATE of Louisiana v. Nathaniel MCCOY, Jr.
    NO. 2017-KO-1151
    Supreme Court of Louisiana.
    May 25, 2018
    Denied.


author: McCLENDON, J.

text:
    STATE of Louisiana IN the INTEREST OF D.M.
    2017 KJ 1417
    Court of Appeal of Louisiana, First Circuit.
    February 22, 2018
    Annette Roach, Louisiana Appellate Project, Lake Charles, Louisiana, Counsel for Appellant D.M.
    Hillar C. Moore, III, District Attorney, Cristopher J.M. Casler, Assistant District Attorney, Baton Rouge, Louisiana, Counsel for Appellee State of Louisiana
    BEFORE: McCLENDON, WELCH, AND THERIOT, JJ.
   McCLENDON, J.

The fifteen-year-old juvenile, D.M., was alleged to be delinquent according to petition number 111,578, filed by the State on July 3, 2017, pursuant to the Louisiana Children's Code. The petition was based upon the alleged commission of simple burglary, a violation of Louisiana Revised Statutes 14:62. The juvenile entered a denial to the allegation. Following an adjudication hearing, the juvenile was adjudicated delinquent. At the disposition hearing, the juvenile judge committed the juvenile to the custody of the Office of Juvenile Justice ("OJJ") until his twenty-first birthday. On appeal, the juvenile argues that the disposition imposed is excessive. For the following reasons, we affirm the juvenile's adjudication of delinquency and disposition.

FACTS

At the adjudication hearing, witness Jason Hunt testified that on May 25, 2017, he received a notification between 1:00 a.m.

and 5:00 a.m. that motion was detected on his driveway in Baton Rouge. When he viewed a surveillance recording of his driveway, he observed three men entering his truck. He testified that nothing was taken from his vehicle. He turned the surveillance video over to the East Baton Rouge Sheriff's Department. The video depicts the juvenile as one of the three men who entered Hunt's vehicle and the juvenile identified himself in the video.

The juvenile was also developed as a suspect in a rash of burglaries that took place in various subdivisions in the Shenandoah area of Baton Rouge. On June 30, 2017, the juvenile was placed under arrest at the residence where he lived with his parents, advised of his Miranda rights, and transported for questioning. Detectives searched the juvenile's house and located multiple cellular telephones, two tablet devices, rubber gloves, a .380 magazine, and a pair of tennis shoes that matched those worn by the juvenile in the surveillance video. Thereafter, a detective drove the juvenile around various neighborhoods, and the juvenile pointed out the unlocked vehicles that he and two other juveniles burglarized. The juvenile stated that he and the other two juveniles "hit" at least fifteen vehicles in one of the neighborhoods and sold stolen items to classmates and through "Letgo." He pointed out seven specific addresses where unlocked vehicles were parked. One of those addresses was 15414 Ferrell Avenue, which the juvenile noted they "hit" in early to mid-June. The juvenile specifically noted that a "Glock" was taken from the 15414 Ferrell Avenue address but denied that he was the person who took the firearm.

After testimony connected to the instant petition was introduced, the State called witnesses in connection with petition number 111,588, counts two and eighteen (simple burglary) and count nineteen (theft of a firearm). John Demopulos, who lived at 15414 Ferrell Avenue in Baton Rouge, testified that his two vehicles were burglarized at his home between June 13, 2017, at 11:30 p.m. and June 14, 2017, at 7:30 a.m. On the morning of June 14, 2017, Demopulos found that his Bible, 9 millimeter Glock pistol, checkbook, and address book were taken from one vehicle, and a prescription medicine bottle had been removed from the second vehicle.

DISCUSSION

In his sole assignment of error, the juvenile argues that the disposition imposed by the juvenile court is excessive. Specifically, he complains that the juvenile court failed to articulate specific reasons for the disposition and imposed a disposition in excess of that necessary for rehabilitation.

Louisiana Children's Code article 901B provides that the court shall impose on the child the least restrictive disposition authorized by Louisiana Children's Code articles 897 through 900, which the court finds consistent with the circumstances of the case, the needs of the child, and the best interest of society. Commitment of the child to the custody of the Department of Public Safety and Corrections may be appropriate under any of the following circumstances: (1) there is an undue risk that during a period of a suspended commitment or probation the child will commit another crime; (2) the child is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment; (3) a lesser disposition will deprecate the seriousness of the child's delinquent act; and (4) the delinquent act involved the illegal carrying, use, or possession of a firearm. LSA-Ch.C. art. 901C. In imposing a disposition, the juvenile court is required to indicate in the record consideration of the statutory disposition guidelines. LSA-Ch.C. art. 903A; see State in Interest of R.L.K., 95-1277 (La.App. 1 Cir. 12/19/95), 666 So.2d 427, 432, writ denied, 95-3120 (La. 1/26/96), 666 So.2d 1084.

The juvenile court ordered a predisposition report. The report notes that on August 16, 2017, the juvenile participated in a predisposition interview wherein he admitted committing the burglaries and explained that he did so because he needed money to reimburse his mother after he stole sixty dollars from her. According to the juvenile, his mother "kicked him out" of the house for stealing the money and told him that he could not return until he reimbursed her. He stated that he "hit a lick" because he did not want to stay outside. He further stated that he wanted money to purchase drugs. The juvenile told his probation officer, who was conducting the interview, that he used Ecstasy pills and marijuana and often takes Ecstasy before he "hits a lick."

The predisposition report listed the juvenile's prior adjudications and periods of detainment. On December 2, 2015, the juvenile was detained under petition number 108,920, based on the alleged commission of illegal carrying of weapons, illegal possession of a handgun by a juvenile, theft of a firearm, and possession of marijuana. He was released on bond on December 4, 2015. On March 31, 2016, the juvenile was detained under petition number 109,561, based on the alleged commission of possession of marijuana. He was released on April 11, 2016, and that petition was dismissed. On September 13, 2016, the juvenile was committed to OJJ custody for a period of six months in connection with petition number 108,920. While in OJJ custody, the juvenile received three referrals to juvenile court. On February 7, 2017, the juvenile was released from the OJJ and placed on parole supervision until August 30, 2017. According to the juvenile, he was placed into three different facilities due to behavioral issues. The juvenile's father reported that the juvenile was released from parole supervision in March 2017. Between May 24, 2017, and June 14, 2017, the juvenile committed multiple vehicle burglaries.

The report notes that the juvenile's June 29, 2017 and August 16, 2017 drug screens yielded positive results for marijuana. The juvenile admitted using Ecstasy and marijuana. The juvenile's father disclosed that the juvenile also used Xanax, codeinecough syrup, and drank vodka. The juvenile's father further indicated that he believed the juvenile may have been involved in a gang.

The juvenile's probation officer concluded that the juvenile appeared to have a "propensity for further criminal activity, substance abuse issues, mental health issues, and possible gang affiliations." The officer noted that reasonable efforts had been made to prevent removal of the juvenile from his home including supervised probation and parole, house arrest with GPS monitoring, and the Evening Reporting Center. The officer recommended that the juvenile be committed to the OJJ for a period not to exceed his twenty-first birthday.

At the juvenile's disposition hearing, his mother testified that they had some "small hiccups" since the juvenile returned home, but that he was in school. She requested that the juvenile be given a chance at probation. His mother confirmed that the juvenile had taken money from her in the past and that she had "kicked him out" of their house multiple times.

Prior to entering the disposition, the juvenile court stated that the juvenile had ten separate arrests and that this was not his "first rodeo." The juvenile court further explained that it was concerned about public safety, noting that the juvenile stole property, including a gun, after being released from OJJ custody. The court opined that there was no appropriate disposition other than commitment to OJJ custody until the juvenile's twenty-first birthday, but that the juvenile was eligible for parole. The juvenile court specifically stated that it was "up to [the juvenile]" as to how long he would remain in custody.

After reviewing the record in light of the excessiveness criteria, we find no abuse of discretion in the juvenile court's imposition of the disposition of OJJ custody until the juvenile's twenty-first birthday. The record reflects that the juvenile has a history of delinquent behavior as well as substance abuse and is in need of treatment that can best be provided in custodial care. Based on the juvenile's history, there is an undue risk that he will commit another crime during a period of suspended commitment or probation. See LSA-Ch.C. art. 901C(1). Accordingly, this assignment of error is without merit.

CONCLUSION

For the foregoing reasons, we affirm the juvenile court's adjudication of delinquency and disposition.

ADJUDICATION AND DISPOSITION AFFIRMED.

      The juvenile was also alleged to be delinquent according to petition number 111,588, filed by the State on July 7, 2017, and based upon the alleged commission of eighteen counts of simple burglary and one count of theft of a firearm, first offense. The juvenile was adjudicated delinquent on two of those simple burglary charges (counts two and eighteen) and the theft of a firearm charge (count nineteen). The juvenile court committed the juvenile to the custody of the Office of Juvenile Justice until his twenty-first birthday, to run concurrently with the disposition imposed under petition 111,578. The juvenile has also filed an appeal challenging that adjudication and disposition. See State in the Interest of D.M., 2017-1418 (La.App. 1st Cir. 2/21/18), --- So.3d ----.

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


author: CHAISSON, J.

text:
    STATE of Louisiana v. Javone D. MARTIN
    NO. 17-KA-558
    Court of Appeal of Louisiana, Fifth Circuit.
    March 14, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux
    COUNSEL FOR DEFENDANT/APPELLANT, JAVONE D. MARTIN, Cynthia K. Meyer
    Panel composed of Judges Susan M. Chehardy, Marc E. Johnson, and Robert A. Chaisson
   CHAISSON, J.

Defendant, Javone D. Martin, appeals several narcotics convictions and sentences, as well as the enhanced sentence imposed pursuant to his stipulation to the multiple offender bill of information. For the reasons that follow, we affirm defendant's convictions and sentences, and we further grant appellate counsel's motion to withdraw as attorney of record for defendant.

PROCEDURAL HISTORY

On September 10, 2013, the Jefferson Parish District Attorney filed a bill of information charging defendant with three counts of distribution of cocaine within 2,000 feet of Jesse Owens Playground, in violation of La. R.S. 40:981.3 (counts one, two, and five) and two counts of distribution of cocaine, in violation of La. R.S. 40:967(A) (counts three and four). At the November 6, 2013 arraignment, defendant pled not guilty. On June 29, 2016, defendant withdrew his not guilty pleas and, after being advised of his rights, pled guilty as charged. On July 18, 2016, in accordance with the plea agreement, the trial judge sentenced defendant, on each count, to imprisonment at hard labor for fifteen years with the first two years to be served without benefit of parole, probation, or suspension of sentence, to run concurrently.

The State then filed a bill of information, pursuant to the provisions of La. R.S. 15:529.1, seeking to have defendant adjudicated a second felony offender on count three. After being advised of his rights, defendant stipulated to the allegations in the multiple offender bill. The trial court then vacated defendant's sentence on count three and resentenced him, in accordance with the plea agreement, to imprisonment at hard labor for fifteen years with the first two years of the sentence to be served without benefit of parole, probation, or suspension of sentence and the remainder of the sentence to be served without benefit of probation or suspension of sentence. Defendant was subsequently granted an out-of-time appeal.

ANDERS BRIEF

Under the procedure adopted by this Court in State v. Bradford , 95-929 (La. App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110-11, appointed appellate counsel has filed a brief asserting that she has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles , 96-2669 (La. 12/12/97), 704 So.2d 241 (per curiam ), appointed appellate counsel requests permission to withdraw as attorney of record for defendant.

When conducting a review for compliance with Anders , an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel's motion to withdraw and affirm the defendant's conviction and sentence. State v. Bradford , 676 So.2d at 1110.

In this case, defendant's appellate counsel has complied with the procedures for filing an Anders brief. She sets forth the procedural history of the case as well as the circumstances surrounding defendant's guilty pleas and sentencing. She particularly notes that defendant entered unqualified guilty pleas, thereby waiving any pre-plea non-jurisdictional defects. Further, defendant's appellate counsel acknowledges that defendant was fully advised of his rights and the consequences of his guilty pleas to both the original and multiple offender bills of information. Also, counsel notes that defendant was advised of the sentences he would receive in exchange for the guilty pleas and was sentenced in accordance with the plea agreements. Defendant's appellate counsel concludes that after a conscientious and thorough review of the appellate court record, she can find no non-frivolous issues to raise on appeal and can find no ruling of the trial court that arguably supports an appeal. Therefore, she requests permission to withdraw as attorney of record for defendant.

This Court has performed an independent, thorough review of the pleadings, minute entries, bills of information, and transcripts in the appellate record. Our review supports appellate counsel's assertion that there are no non-frivolous issues to be raised on appeal.

We particularly note that the record reveals no constitutional infirmities or irregularities in defendant's guilty pleas to the five narcotics charges that would render them invalid. The transcript of the guilty plea proceedings and the acknowledgement and waiver of rights form show that defendant was aware of the nature of the charges against him, that he was properly advised of his Boykin rights, including the right to a jury trial, the right to confrontation, and the privilege against self-incrimination, and that he understood he was waiving these rights by pleading guilty. Further, the trial court, during its colloquy with defendant, informed him of the actual sentences that would be imposed upon acceptance of his guilty pleas. In addition, the waiver of rights form advised defendant of his maximum sentencing exposure and the actual sentences he would receive. Further, defendant acknowledged that he had not been forced, coerced, or threatened into entering his guilty pleas. After the colloquy with defendant, the trial court accepted defendant's pleas as knowingly and voluntarily made.

With respect to the multiple offender proceeding, the record shows that defendant was likewise adequately advised of his rights. Both the waiver of rights form and the transcript from the multiple offender proceeding reflect that defendant was advised of his right to a hearing at which the State would have to prove his habitual offender status, of his right to remain silent throughout the hearing, and of the potential sentencing range as a second felony offender, as well as the actual sentence that would be imposed. Defendant indicated in the waiver of rights form and during the colloquy that he had not been forced, coerced, or threatened into stipulating to the habitual offender bill. The trial court accepted the stipulation as being knowingly, intelligently, and voluntarily made by defendant.

With regard to defendant's sentences, La. C.Cr.P. art. 881.2(A)(2) precludes a defendant from seeking review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea. State v. Washington , 05-211 (La. App. 5 Cir. 10/6/05), 916 So.2d 1171, 1173. Additionally, this Court has consistently recognized that La. C.Cr.P. art. 881.2 precludes a defendant from seeking review of an enhanced sentence to which the defendant agreed. State v. Williams , 12-299 (La. App. 5 Cir. 12/11/12), 106 So.3d 1068, 1075, writ denied , 13-109 (La. 6/21/13), 118 So.3d 406. Here, defendant's original sentences and enhanced sentence were imposed in accordance with the terms of the plea agreements set forth in the record at the time of the pleas and stipulation. Furthermore, defendant's sentences fall within the sentencing ranges set forth in the statutes. See La. R.S. 40:967(A) ; La. R.S. 40:981.3 ; La. R.S. 15:529.1. Based on the foregoing, we find that defendant's guilty pleas, his stipulation to the multiple offender bill of information, and the sentences imposed pursuant to the plea agreements do not present any issues for appeal.

Lastly, we have review the record for errors patent and have found no errors that require corrective action. 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. 5th Cir. 1990).

DECREE

Because appellate counsel's brief adequately demonstrates by full discussion and analysis that she has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal, and an independent review of the record supports counsel's assertion, we grant appellate counsel's motion to withdraw as attorney of record for defendant, and we affirm defendant's convictions and sentences.

AFFIRMED; MOTION TO WITHDRAW GRANTED

      In Bradford , supra , this Court adopted the procedures outlined in State v. Benjamin , 573 So.2d 528, 530 (La. App. 4th Cir. 1990), which were sanctioned by the Louisiana Supreme Court in State v. Mouton , 95-981 (La. 4/28/95), 653 So.2d 1176, 1177 (per curiam ).

      In addition, defendant was notified of his right to file a pro se supplemental brief in this appeal. As of this date, defendant has not filed a pro se brief.

      See Boykin v. Alabama , 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

      It is noted that during its colloquy with defendant at the guilty plea proceedings, the trial court did not inform defendant of the maximum or minimum sentencing ranges on the original sentences as required by La. C.Cr.P. art. 556.1. However, the trial court's failure to advise defendant of the sentencing ranges in open court does not affect the validity of defendant's guilty pleas since defendant was in fact advised of the actual sentences that he would receive pursuant to the plea agreements. This Court has held that an advisement of the agreed upon sentence is sufficient for compliance with La. C.Cr.P. art. 556.1. State v. Craig , 10-854 (La. App. 5 Cir. 5/24/11), 66 So.3d 60, 64 ; State v. Faggard , 15-585 (La. App. 5 Cir. 1/13/16), 184 So.3d 837, 847, writ denied , 16-338 (La. 2/10/17), 215 So.3d 701.


text:
    Ryan Lee STRODER, Individually, Etc. v. HILCORP ENERGY COMPANY, et al.
    CA 17-1086
    Court of Appeal of Louisiana, Third Circuit.
    April 4, 2018
   Dan Edward West, McGlinchey, Stafford, 301 Main St., 14th Floor, Baton Rouge, LA 70825, (225) 383-9000, COUNSEL FOR DEFENDANT/APPELLEE: Westchester Surplus Lines Insurance Company

Mark Gerard Artall, Attorney at Law, 109 S. College Road, Lafayette, LA 70503, (337) 233-1777, COUNSEL FOR PLAINTIFFS/APPELLANTS: Ryan Lee Stroder, Ryan Lee Stroder as natural tutor of Olivia Stroder

Barry Jamar Rozas, LeBas Law Offices, 2 Flagg Place, Suite 1, Lafayette, LA 70508, (337) 236-5500, COUNSEL FOR INTERVENOR/APPELLEE: American Interstate Insurance Company

Robert Sartain Emmett, Christopher M. Hannan, Kimberly C. Delk, Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., 201 St. Charles Ave, Ste 3600, New Orleans, LA 70170, (504) 566-5200, COUNSEL FOR DEFENDANTS/APPELLEES: Monty "Monkey" Lanthier, Thomas Stevens and Associates, L.L.C.

Joseph Michael Guillot, Christy L. McMannen, Christovich & Kearney L.L.P., 601 Poydras St., #2300, New Orleans, LA 70130-6078, (504) 561-5700, COUNSEL FOR DEFENDANTS/APPELLEES: Freddie Grimaldo, Gulf Coast Brokerage, LLC

Kevin Paul Merchant, NeunerPate, P. O. Box 52828, Lafayette, LA 70505, (318) 237-7000, COUNSEL FOR DEFENDANT/APPELLEE: Hilcorp Energy Company

Catherine N. Thigpen, Degan, Blanchard & Nash, 400 Poydras Street, Ste 2600, New Orleans, LA 70130, (504) 529-3333, COUNSEL FOR DEFENDANT/APPELLEE: Darwin National Assurance Company

Court composed of Elizabeth A. Pickett, Billy Howard Ezell, and Candyce G. Perret, Judges.

EZELL, Judge.

Ryan Stroder appeals two judgments of the trial court below, one granting summary judgment in favor of Monty Lanthier and Thomas Stevens and Associates, L.L.C., and another granting summary judgment in favor of Freddie Grimaldo and Gulf Coast Brokerage, L.L.C. (hereinafter collectively referred to as the Defendants). For the following reasons, we reverse the decisions of the trial court and remand the case for further proceedings.

On October 17, 2012, Mr. Stroder was employed by MyVac, L.L.C. as a truck driver. That day, Mr. Stroder was called to a land based oil rig operated by Hilcorp Energy Company to transport drilling mud for waste disposal. Mr. Lanthier, an employee of Thomas Stevens and Associates, was acting as an independently contracted "company man" supervising the rig operations. Mr. Grimaldo, who was employed by Gulf Coast, was acting as solids control operator and was in charge of disposal of the drilling fluids.

Though he was capable of driving a tank or bottle truck, Mr. Stroder arrived at the rig in an open-ended dump truck, as ordered by Defendants. Upon viewing the mud to be transported, Mr. Stroder felt that it was too fluid to be hauled in that truck. Mr. Stroder had previously been warned not to haul mud that was "too liquidy" in the open-ended truck due to the likelihood of it sloshing or shifting during transport. Mr. Stroder was concerned enough that he offered to return to MyVac and get his bottle truck to haul the mud. Despite these concerns, Mr. Stroder claims he was assured multiple times that the load was safe to transport. The mud was ultimately loaded in the truck by Mr. Grimaldo, and Mr. Stroder left the rig. While driving through an "s" curve a few miles from the rig, the load shifted in the trailer, causing the truck to overturn. Mr. Stroder suffered severe injuries as a result.

Mr. Stroder filed suit against Hilcorp and eventually Defendants, who all filed motions for summary judgment. Hilcorp was dismissed on summary judgment, and that ruling was not appealed. Defendants each claimed that they owed no duty to Mr. Stroder, as federal and Louisiana administrative law imposed a duty on Mr. Stroder alone, as a commercial driver, to secure his load. The trial court agreed with Defendants and granted their motions for summary judgment. From those decisions, Mr. Stroder appeals.

On appeal, Mr. Stroder asserts three assignments of error, essentially claiming that the trial court erred in granting the summary judgments and in finding that Defendants owed no duty to him under federal and Louisiana administrative law. We agree with Mr. Stroder.

Summary judgment procedure is favored and "is designed to secure the just, speedy, and inexpensive determination of every action .... and shall be construed to accomplish these ends." La.Code Civ.P. art. 966(A)(2). In reviewing the trial court's decision on a motion for summary judgment, this court applies a de novo standard of review. Jackson v. City of New Orleans , 12-2742, 12-2743 (La. 1/28/14), 144 So.3d 876, cert. denied , --- U.S. ----, 135 S.Ct. 197, 190 L.Ed.2d 130 (2014).

The burden of proof is on the mover unless the mover will not bear the burden of proof at trial, in which case the mover is not required to negate all essential elements of the adverse party's claim, but only to point out to the court the absence of factual support for one or more of the elements necessary to the adverse party's claim. La.Code Civ.P. art. 966(D)(1). "The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law." Id .

"After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law." La.Code Civ.P. art. 966(A)(3).

A fact is material if it potentially ensures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute. A genuine issue of material fact is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate.
Jackson , 144 So.3d at 882.
In ruling on a motion for summary judgment, the judge's role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. Hines [v. Garrett, 04-806 (La. 6/25/04), 876 So.2d 764 ]. Despite the legislative mandate that summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent's favor .

Vanner v. Lakewood Quarters Ret. Cmty ., 12-1828, p. 6 (La. App. 1 Cir. 6/7/13), 120 So.3d 752, 755 (emphasis ours).

The trial court granted Defendants' motions for summary judgment on the grounds that Mr. Stroder failed to establish the essential element of duty to support his negligence claims. The determination of whether a duty exists is a question of law that may be properly decided by summary judgment. Seaman v. Howard , 98-1492 (La.App. 3 Cir. 6/2/99), 743 So.2d 694, writ denied , 99-1901 (La. 10/29/99), 748 So.2d 1165. Whether a duty exists may be resolved by summary judgment "when neither the facts nor the credibility of witnesses are in dispute and when it is clear that no duty is owed as a matter of law." Lee v. State Dep't of Pub. Safety & Corr ., 10-1013, p. 6 (La.App. 3 Cir. 3/30/11), 60 So.3d 106, 110.

In the instant action, the parties dispute whether Defendants, as the shippers of the mud, owed a duty to Mr. Stroder, the carrier. Mr. Stroder contends that Defendants are liable for its improper loading under Louisiana negligence law. Defendants respond that no duty was owed because the defective loading was obvious and apparent, rather than latent or concealed, which imposes the responsibility on Mr. Stroder as a carrier under federal law, notably 49 C.F.R. § 392.9 (2018). Louisiana has adopted 49 C.F.R. § 392.9 (2018) by way of the Louisiana Administrative Code. See 33 La.Admin.Code Pt. V § 10301. This is a case of first impression in Louisiana. Because we can find no cases dealing with the subject matter of this suit, and because the regulations detailing the duties of common carriers and shippers are federal in basis, we are forced to rely on federal law in deciding this matter.

Federal regulations impose a nondelegable duty upon a carrier to secure all loads safely. See 49 C.F.R. § 392.9 (2018) ; see also Rector v. General Motors Corp ., 963 F.2d 144 (6th Cir. 1992). In particular, a carrier or driver must ensure that his "vehicle's cargo is properly distributed and adequately secured." 49 C.F.R. § 392.9(a)(1) (2018). Moreover, a shipper cannot force a carrier to haul an unsafe load. Decker v. New England Pub. Warehouse, Inc ., 749 A.2d 762 (Me.2000) ; see 49 C.F.R. § 392.9(a) (2018). Therefore, a carrier is required to take steps to prevent or protect cargo from shifting or falling. 49 C.F.R. §§ 393.100 - 393.136 (2018). These federal regulations suggests that carriers "should have the final responsibility for the loads they haul" because no shipper can force a carrier to accept an unsafe load. Decker , 749 A.2d at 766 ; see also 49 C.F.R. § 392.9(a) (2018).

The predominant view regarding the duty of care in loading cargo was discussed at length in United States v. Savage Truck Line, Inc ., 209 F.2d 442 (4th Cir. 1953), cert. denied , 347 U.S. 952, 74 S.Ct. 677, 98 L.Ed. 1098 (1954). The Savage court summarized the rule concerning the proper allocation of duty as between the shipper and the carrier, as follows:

The primary duty as to the safe loading of property is ... upon the carrier.
When the shipper assumes the responsibility of loading, the general rule is that he becomes liable for the defects which are latent and concealed and cannot be discerned by ordinary observation by the agents of the carrier; but if the improper loading is apparent, the carrier will be liable notwithstanding the negligence of the shipper.

Id . at 445.

This Savage rule has been adopted by the majority of federal courts. Decker , 749 A.2d 762. See also Smart v. Am. Welding & Tank Co ., 149 N.H. 536, 826 A.2d 570 (2003) ; Brashear v. Liebert Corp ., 2007 Ohio App. Unrep. 296, 2007 WL 184888 (Oh.App. 10 Dist. 2007) ; W.J. Casey Trucking & Rigging Co. v. Gen. Elec. Co ., 151 N.J.Super. 151, 376 A.2d 603 (N.J.Super. Ct. Law Div. 1977). "Pursuant to the Savage rule, even if Defendant was negligent in the loading of Plaintiff's truck, Defendant would not be liable if the improper loading was apparent." Johnston v. Sappi Fine Paper N. Am., No. CIV. 06-11617, p. 2, 2007 WL 1011914 (E.D. Mich. 2007) (unpublished opinion). The Brashear court held that "the shipper is liable for defects that are latent and concealed and cannot be discerned by ordinary observation by the agents of the carrier; if the improper loading is apparent, however, the carrier will be liable notwithstanding that the shipper was negligent." Brashear , 2007 Ohio App. Unrep. 296 at p. 14.

Accordingly, the issue before the court is whether the fluidity of the mud was latent and concealed, therefore subjecting Defendants to potential liability, or whether they were clearly obvious, meaning Mr. Stroder alone bore the liability for his load's defects. Defendants argue liquidity of the mud was patent. Defendants point out that Mr. Stroder testified that he saw the mud, voiced concern over how liquid it was, and that he recognized that the liquidity of the mud rendered the load more difficult to secure. Mr. Stroder counters that there are genuine issues of material fact as to whether the defects were latent and concealed or patent. In support of this argument, Mr. Stroder states that he had only driven a truck commercially for three months at the time of the accident and that he was unfamiliar with the mud's actual viscosity. Moreover, Mr. Stroder alleges that when he voiced concern over the wateriness of the mud that he was assured by Defendants' employees that the mud was safe for transportation.

"[W]hether a defect in loading is obvious through ordinary observation or concealed is a question of fact." Smart , 826 A.2d at 575. While Mr. Stroder clearly was aware the mud was in somewhat of a fluid state, "this fact is not dispositive." Grantham v. Nucor Corp., No . 2:07-CV-229 TS, p. 2, 2008 WL 3925211 (D. Utah 2008) (unpublished opinion). The court in Grantham noted that several federal courts have found that summary judgment was inappropriate where inexperienced drivers were involved or where assurances of safety were made by shippers.

In Ebasco Services, Inc. v. Pacific Intermountain Express Co ., [398 F.Supp. 565 (S.D.N.Y. 1975) ] the court found summary judgment was not appropriate in a case where recovery was sought for damages done to a pump motor when the top part of the motor struck the underside of a bridge. The motor was one foot over the height limit, but it was represented to the carrier that the height of the motor had been measured and was safe to be driven. The court found that while the defect-the height of the shipment-was apparent to the naked eye, the question of whether the defect was patent was not appropriate for summary judgment because of the statements made by the employees of the shipper .
The case of Franklin Stainless Corp. v. Marlo Transport Corp ., [748 F.2d 865 (4th Cir. 1984) ] is remarkably similar to the case before the Court. In that case, the shipper loaded trucks with steel coils down the center of the trailer. The carrier informed the shipper that he had never hauled steel coils and asked whether the load was secure. The shipper assured the carrier that this was a standard loading method and that there would be no trouble with the load. The court found that the loading of the steel coils down the center of the trucks without strapping or chocking was open and obvious to the carrier. It did not follow, however, that the defect in that manner of loading was open and obvious. The court considered important the assurances that were given, the fact that the carrier relied on those assurances , and that the carrier believed that the loading was proper.
Another example is found in Alitalia v. Arrow Trucking Co . [977 F.Supp. 973 (D.Ariz. 1997).] That case involved the transportation of an engine which violated Arizona's height limit and was therefore damaged when it hit a bridge. There, the height of the engine was obvious but that did not mean that the defect was patent. The plaintiffs had presented evidence indicating that the excessive height may have been concealed by the shipper. Because a reasonable trier of fact could find that the defect was latent and concealed, summary judgment was inappropriate.
A more recent example can be found in Sygenta Crop Production, Inc. v. Doyle Brant, Inc . [3:06-CV-84-S, 2008 WL 167293 (W.D.Ky. 2008) (unpublished opinion) ]. In that case, the shipper had loaded the trailer by placing containers down the center of the trailer with no supports on the sides. The defendants argued that this defect was apparent, not latent and concealed. The court found that there were genuine issues of material fact as to whether the alleged defect in the loading of the trailer was apparent, which prevented summary judgment. In particular, the court looked to the following facts. The driver had testified that he had never hauled the type of container in which the product was shipped. The driver asked an employee of the shipper if the containers should be secured and was told by the employee that the containers would not shift and that no additional support was needed. The driver believed that the employee loading the trailer had loaded such containers before. Moreover, the shipper's shipping supervisor told the driver that, in his opinion, the load was safe . Based on these things, the court found summary judgment was inappropriate.

Id. at 2-3 (footnotes omitted)(emphasis ours).

A review of the evidence before this court reveals that, in light of federal jurisprudence allowing liability on shippers who make assurances regarding the safety of shipments they themselves loaded, genuine issues of material fact remain. While the defect-the liquidity of the mud-was obviously apparent to the naked eye, the question of whether the defect was patent is not appropriate for summary judgment because of statements made by Defendants.

Mr. Stroder testified that he had been driving commercially for a mere three months before this accident. He stated that when he saw the mud at issue, he felt it was "too liquidy" to haul in the open dump truck, though he also testified that he did not have the proper equipment to measure the actual viscosity of the drilling fluid. He then voiced his concerns to Mr. Grimaldo, who was the person loading the mud and who had apparently ordered the open dump truck, rather than the bottle truck. Mr. Stroder claims that he told Mr. Grimaldo he could go back to MyVac and get his bottle truck, but Mr. Grimaldo assured him the load was fine. He stated that Mr. Grimaldo then went into the company man trailer, presumably to talk to Mr. Lanthier, who was in charge of the rig. When Mr. Grimaldo returned from the trailer, he again assured Mr. Stroder of the safety of the load. Mr. Stroder, still apparently unsure about the safety of the load, called MyVac, who told him to rely on the opinions of Defendants. Defendants, of course, dispute these claims.

Here, both the facts concerning any assurances made by Defendants and the credibility of the witnesses are in dispute. Because reasonable persons could disagree as to whether Defendants actually gave the assurances claimed by Mr. Stroder, there exists a genuine issue of material fact as to whether Defendants indeed made these or any culpability inducing statements. Whether the assertions were made is clearly material to this case, as under the federal law cited above, making them could render Defendants potentially liable for the following accident. Accordingly, genuine issues of material fact exist in this matter, and Defendants are not entitled to summary judgment as a matter of law. The judgments granting them summary judgment are hereby reversed.

For the above reasons, we hereby reverse the judgments of the trial court granting summary judgment in favor of the Defendants. We remand the case for further proceedings in accordance with our judgment. Costs of this appeal are hereby assessed against Defendants, to be split equally between them.

REVERSED AND REMANDED.


author: THIBODEAUX, Chief Judge.

text:
    Succession of Keffer Thomas DELINO, II v. The JAKE DELINO TRUST, et al.
    17-1053
    Court of Appeal of Louisiana, Third Circuit.
    April 4, 2018
    Louis G. Garrot, III, P. O. Box 366, Abbeville, LA 70511-0366, Telephone: (337) 652-8618, COUNSEL FOR: Plaintiff/Appellee-Succession of Keffer Thomas Delino, II
    Lawrence L. Lewis, III, Onebane Law Firm, APLC, P. O. Box 3507, Lafayette, LA 70502-3507, Telephone: (337) 237-2660, COUNSEL FOR: Defendant/Appellant-Carole Delino Niebler
    Paul G. Moresi, III, P. O. Box 1140, Abbeville, LA 70511-1140, Telephone: (337) 898-0111, COUNSEL FOR: Defendants/Appellants-The Jake Delino Trust and James D. Delino, Jr.
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and Van H. Kyzar, Judges.
   THIBODEAUX, Chief Judge.

Plaintiff, the succession representative of the Succession of Keffer Thomas Delino, II, filed suit against the defendants, the Jake Delino Trust (Trust), Carole Delino Niebler (Carole), and James D. Delino, Jr. (Jimmy), seeking to annul a transfer of trust interest. Created in the testament of James D. Delino, Sr. (James), the Trust named both Jimmy and his brother, Keffer Thomas Delino, II (Keffer), income beneficiaries for life and directed the trustee, upon their deaths, to distribute the corpus of the trust to their "legal heirs." After Keffer's passing, a one-half interest in the corpus was transferred to Jimmy subject to a lifetime usufruct in favor of their mother, Carole, as directed by our law on intestacy. The trial court, however, found that Keffer's universal legatee was his only legal heir and granted the motion to annul the transfer.

Interpreting the Trust in accordance with the law in effect at the time of its creation, we find that the trial court legally erred in his judicial construction of the term "legal heir" and in his annulment of the transfer of trust interest. Accordingly, we reverse the trial court's judgment in its entirety.

I.

ISSUES

The defendants entreat us to consider:

(1) whether the trial court erred in refusing to consider the testamentary intent of James D. Delino, Sr. in creating the Jake Delino Trust and in regard to his disposition of the principal interest of the deceased income beneficiary in the corpus of the trust;
(2) what was the testamentary intent of James D. Delino, Sr. in instructing in his will that the principal interest in the corpus of the Jake Delino
Trust attributable to the deceased beneficiary would go to the deceased beneficiary's "legal heirs";
(3) whether the trial court erred in its determination of the meaning of the phrase "legal heirs" in James D. Delino, Sr.'s last will and testament;
(4) in view of the above issues, whether the trial court erred in annulling the Transfer of Trust Interest;
(5) whether the trial court erred in holding that Keffer Thomas Delino, II's interest in the Jake Delino Trust was an asset of his succession that passed under his will to his universal legatee, Brent Andrew Griffin; and
(6) whether the trial court erred in its finding that there was no language in James Delino, Sr.'s will signifying that he wanted to preclude his sons from leaving their estates at death to a third party (a non-Delino)?

II.

FACTS AND PROCEDURAL HISTORY

On May 17, 1989, James executed his last will and testament in which he provided that, upon his death, the vast majority of his estate would go into a spendthrift trust. He named as income beneficiaries his two sons, Keffer and Jimmy. The testament further provided that, upon the death of the first income beneficiary, the deceased beneficiary's interest in the Trust would terminate, and the Trust would continue as to the surviving income beneficiary until his death. Upon the termination of the Trust as to any interest, James directed the trustee to distribute the proportionate part of the trust corpus to the "legal heirs" of the deceased income beneficiary. In relevant part, the testament provided:

If it has not already been done, at my death I establish a trust to be called the Jake Delino Trust. I appoint my sister, Alfreda Delino as Trustee to serve
until her death or incapacity. When that occurs, I appoint my wife, Carole A. Hoffpauir, as Trustee.
I give and bequeath all of the balance of my separate property to the Jake Delino Trust. Further, I give the naked ownership of my interest in all community property to the Jake Delino Trust, together with the naked ownership of my interest in the residence and lot where my mother is presently residing[.]
The following provisions will apply to the Jake Delino Trust:
1. On December 15 of each year, all income produced by the Jake Delino Trust will be distributed equally to Keffer Thomas Delino, II and James Delino, Jr., my two sons. This distribution will be made after all taxes and expenses have been deducted from the income.
2. This trust shall terminate as to the interest of each beneficiary of income upon the death of each beneficiary of income, and continue as to the beneficiary of income who survives until his death.
3. Upon termination of the trust as to any interest, the trustee shall distribute the proportionate part of the corpus of the trust to the legal heirs of the income beneficiary who has passed away.
4. This shall be a "spend thrift trust", that is, voluntary and involuntary alienation by a beneficiary of his interest shall be prohibited to the maximum extent permitted by Louisiana Law.

James died on January 29, 1990. He was survived by his wife, Carole, and his two sons. Upon his death, the Trust was created, and the property transferred to the trustee. Thereafter, as lifetime income beneficiaries, Keffer and Jimmy received income from the Trust.

Keffer died on April 20, 2012, leaving no descendants and no surviving spouse. In his last will and testament, Keffer bequeathed his entire estate to his companion, Brent Andrew Griffin (Brent).

On June 6, 2013, Carole, as trustee, along with Jimmy executed an instrument entitled "Transfer of Trust Interest," which was then recorded in the Conveyance Records of the Parish of Vermillion. The transfer conveyed a one-half interest in the corpus of the Trust to Jimmy subject to Carole's lifetime usufruct. On June 4, 2014, Brent, as the testamentary executor of Keffer's succession, instituted the instant nullity action. Brent asserted that he was Keffer's "legal heir" and, therefore, the transfer of the immovable property to Jimmy and Carole should be annulled and the property included in Keffer's succession.

This matter was originally tried on October 12, 2015, and the trial court rendered judgment on December 28, 2015, setting aside the transfer and awarding judicial interest to the plaintiff. In his reasons, the trial court found that Brent, as Keffer's universal legatee, was "the only legal heir to inherit the estate of Keffer Delino, II." The defendants moved for a new trial and, on April 29, 2016, the trial court found that the award of judicial interest, which was not prayed for or provided by law, was clearly contrary to the law and the evidence. The trial court then granted a new trial as to all issues.

On March 1, 2017, the trial court, without allowing the introduction of any evidence, "reinstitute[d]" his original ruling of December 28, 2015. Defendants requested the opportunity to proffer witnesses and exhibits relative to testamentary intent. The trial court ordered the evidence be taken by depositions, which were conducted on April 3, 2017, and are now part of the record on appeal. On June 15, 2017, the trial court rendered judgment, annulling the transfer and awarding $50,000 in compensatory damages plus legal interest from September 16, 2016.

III.

STANDARD OF REVIEW

An appellate court reviews questions of fact under the manifest error-clearly wrong standard of review. In re Succession of Bernat , 11-368 (La.App. 3 Cir. 11/2/11), 76 So.3d 1287, writ denied , 12-263 (La. 3/30/12), 85 So.3d 122. However, when a trial court merely reviews and interprets testamentary language without the introduction of evidence, its interpretation is a question of law, which we review de novo. Succession of Leavines , 15-923 (La.App. 3 Cir. 3/2/16), 215 So.3d 800, writ denied , 16-0865 (La. 9/6/16), 205 So.3d 918.

IV.

LAW AND DISCUSSION

A trust is "the relationship resulting from the transfer of title to property to a person to be administered by him as a fiduciary for the benefit of another." La.R.S. 9:1731 (1990). The person "to whom title to the trust property is transferred" is the trustee. La.R.S. 9:1781 (1990). A trustee administers the property as a fiduciary of the "person for whose benefit the trust was created[,]" known as the beneficiary. La.R.S. 9:1801 (1990). There may be beneficiaries "as to income or principal or both." La.R.S. 9:1805 (1990). The income beneficiary is the one "to whom income is payable," whereas a principal beneficiary is "entitled to principal" or the corpus of the trust. La.R.S. 9:1725(2) & (4) (1990). While a lifetime "interest in income terminates upon the death of the designated beneficiary," the interest of a principal beneficiary, upon his death, "vests in his heir or legatees, subject to the trust" and the laws regulating successions and donations. La.R.S. 9:1964 & 1972 (1990).

Most importantly, though, the settlor is the "person who creates a trust." La.R.S. 9:1761 (1990). "A trust or a disposition in trust may be made subject to any conditions not forbidden in [the Louisiana Trust] Code and not against public order or good morals." La.R.S. 9:1736 (1990). Moreover, "[a] settlor may dispose of property in trust to the same extent that he may dispose of that property free of trust and to any other extent authorized by this Code." La.R.S. 9:1737 (1990). The settlor can also restrict, to the full extent permitted by law, the "alienation by a beneficiary of an interest in income or principal" through the creation of a spendthrift trust. La.R.S. 9:1725(7) (1990). Testamentary trusts, like the one at issue herein, "may be created only in one of the forms prescribed by the laws regulating donations mortis causa." La.R.S. 9:1751 (1990).

"In construing a trust, the settlor's intention controls and is to be ascertained and given effect, unless opposed to law or public policy." Richards v. Richards , 408 So.2d 1209, 1211 (La.1981).

[T]he words used in a trust instrument must be construed in that sense which will best effectuate the intent of the creator or settlor of the trust and, if possible, to avoid the destruction of the trust. In the determination of the settlor's intent, the words used will be taken in their usual, ordinary, or natural meaning in the absence of anything in the instrument under consideration to deflect from that meaning.

La.R.S. 9:1753 (1990), Comments-Prof. Leonard Oppenheim (quoting 90 C.J.S. § 161h). "A trust instrument shall be given an interpretation that will sustain the effectiveness of its provisions if the trust instrument is susceptible of such an interpretation." La.R.S. 9:1753. As with any testamentary disposition,

effect must be given to every part of the will as far as the law will permit. "Where it is a question of the choice between two interpretations, one of which will effectuate, and the other will defeat, a testator's intention, the court will carry out the intention of the testator." Additionally, Louisiana case law has recognized that in the interpretation of wills, the first and natural impression conveyed to the mind on reading the will as a whole is entitled to great weight. "The testatrix is not supposed to be propounding riddles but rather to be conveying her ideas to the best of her ability so as to be correctly understood at first view."

In re Succession of Helms , 01-1357, pp. 2-3 (La.App. 3 Cir. 3/6/02), 810 So.2d 1265, 1267-68 (citations omitted).

All trusts "shall be governed by the laws in effect at the time of their creation." La.R.S. 9:2252 (1990). "A testamentary trust is created at the moment of the settlor's death." La.R.S. 9:1821 (1990). Because James died in 1990, his Trust is governed by the law in effect at that time. In 1990, the Louisiana Trust Code directed that its provisions be liberally construed "in favor of freedom of disposition" and in pari materia with the general provisions of our law, except when a specific provision exempted application of the more general rule:

The provisions of this Code shall be accorded a liberal construction in favor of freedom of disposition. Whenever this Code is silent, resort shall be had to the Civil Code or other laws, but neither the Civil Code nor any other law shall be invoked to defeat a disposition sanctioned expressly or impliedly by this Code.

La.R.S. 9:1724 (1990).

The pivotal issue in this case is the proper interpretation of the provisions of the testamentary trust regarding the distribution of property upon the death of one of the income beneficiaries. To resolve this issue, we must determine the meaning of the term "legal heir" as that term was understood under the law in effect in 1990 so to ascertain the intent of the settlor, which is paramount.

Turning now to the provisions of the testament, it is not disputed that both Jimmy and Keffer were the named income beneficiaries. No one contests that the "proportionate part" of the property attributable to Keffer's root was to be distributed upon his death to his legal heirs. The dispute in the present matter arises over the proper interpretation of that term in light of the fact that Keffer died testate.

In rendering its decision, the trial court focused upon Keffer's testamentary intent. However, the property was transferred to the trustee by James. As the settlor, it is James's testamentary intent that ultimately controls the disposition of his property. As contemplated by the Trust Code, James explicitly provided that the respective interests of both his income beneficiaries would terminate upon their deaths. Therefore, upon his death, Keffer's interest in the Trust terminated, both by law and testament. In this manner, Keffer had no inheritable interest in the Trust to bequeath. And his naming Brent as his universal legatee is of no moment to the determination of the issue herein because the property was never part of Keffer's patrimony or his succession.

Rather, James directed the trustee to distribute the property attributable to Keffer's root to Keffer's "legal heirs." At the time of the Trust's creation, the Civil Code defined the term "legal heir" as one "who is called by law to the inheritance." La.Civ.Code art. 940 (1990). Moreover, caselaw had long held, in accordance with our civilian tradition, that "legal heirs" are "heirs of the blood." Succession of Justus , 44 La.Ann. 721, 723, 11 So. 95, 95 (1892). Jurisprudence further acknowledged the distinction, codified in our Civil Code since its inception, between testamentary heirs or legatees and legal heirs or heirs of the blood based upon the nature of successions:

According to our Civil Code, there are three sorts of successions: (1) The testamentary succession, or that which results from the institution of an heir contained in a testament executed by the deceased; (2) the legal succession, or that which the law has established in favor of the nearest relation of the deceased, and (3) the irregular succession, or that which is established in favor of certain persons, or of the State in default of heirs either legal or instituted by testament. Arts. 875, 876, 877, 878.
The kinds of heirs that correspond to these three species of successions are described in Article 879 as: (1) Testamentary or instituted heirs; (2) legal heirs or heirs of the blood, and (3) irregular heirs.

Succession of Wesley , 224 La. 182, 188-89, 69 So.2d 8, 10-11 (1953).

Through the revision of our Civil Code in 1981, the legislature, under the recommendation of the Louisiana Law Institute, amended the law to recognize only two types of successions: (1) the testate succession that "results from the will of the deceased," La.Civ.Code art. 874 (1990) ; and (2) the intestate succession that "results from provisions of law in favor of certain persons," La.Civ.Code art. 875 (1990). Under the revision, only two corresponding types of successors were recognized: "Testate successors, also called legatees. Intestate successors, also called heirs." La.Civ.Code art. 876 (1990).

With this understanding of the relevant law, it is clear that the term "legal heir" was, in 1990, a codified, as well as jurisprudentially recognized, reference to heirs of the blood and of the nearest relation to the deceased that were called by our law to inherit. Accordingly, we find that, at the time of the Trust's creation, the term "legal heir" was a term of art or legal shorthand, generally understood as referring to the class of successors "called by law" because of their kinship resulting from a blood relationship to a decedent. We further find that, through his use of this term, the settlor clearly intended for his property to be distributed to those persons called by law to inherit the property attributable to his sons' proportionate roots, i.e. , their heirs of the blood of nearest relation.

Under the law in effect in 1990,

If the deceased leaves no descendants but is survived by a father, mother, or both, and by a brother or sister, or both, or descendants from them, the brothers and sisters or their descendants succeed to the separate property of the deceased subject to a usufruct in favor of the surviving parent or parents.

La.Civ.Code art. 891 (1990). Pursuant to this provision, Keffer's legal heirs, as would have been contemplated by the settlor at the time of the Trust's creation, were, in fact and law, his brother and his mother. At the time of his death and the transfer of interest, Keffer's legal heirs were still, under the current law, his brother and his mother. La.Civ.Code art. 891.

Moreover, we note that to interpret the term "legal heir" in the manner in which the trial court did would effectuate a power of appointment prohibited under the law in 1990. Specifically, allowing Keffer's testamentary disposition to control would run afoul of the provisions of La.Civ.Code art. 1573 (1990), which provided, in pertinent part:

The custom of willing by testament, by the intervention of a commissary or attorney in fact, is abolished.
Thus the institution of heir and all other testamentary dispositions committed to the choice of a third person are null, even should that choice have been limited to a certain number of persons designated by the testator.

Under the trial court's interpretation, the settlor would have effectively granted to Keffer, a third party, the choice as to the disposition of the settlor's property. As such, the testamentary trust provision would have been contra bonos mores and, thus, not enforceable under either the Trust Code or the Civil Code. See La.R.S. 9:1736 ; La.Civ.Code art. 1573.

Because the transfer of trust interest at issue herein clearly comports with the intent of the settlor, as well as the law, we find the trial court legally erred in nullifying the transfer. Accordingly, we reverse the trial court's judgment in its entirety.

V.

CONCLUSION

For the foregoing reasons, we reverse the judgment of the trial court.

Costs of this appeal are assessed to the Plaintiff/Appellee, the succession representative of the Succession of Keffer Thomas Delino, II.

REVERSED.

      Brent is now deceased, having left his entire estate to a non-profit trust-The Brent Griffin Pet Trust-"to be formed to care for his dog, Bouvier, and to be used to benefit and care for abandoned and neglected dogs and cats in the Abbeville, Louisiana area." Debra Garrot, the trustee of the non-profit pet trust, now serves as representative of both Keffer's and Brent's successions.

      Louisiana Civil Code Article 891 was amended in 2004; but the amendment did not affect a change in the law on this particular issue, and the quoted language was retained verbatim.

      This holding renders all remaining assignments of error moot.