text:
    Marlen NUNEZ v. Cesar R. BURGOS and XYZ Insurance Company (his professional liability carrier)
    NO. 16-CA-568
    Court of Appeal of Louisiana, Fifth Circuit.
    March 15, 2017

      COUNSEL FOR PLAINTIFF/APPELLANT, MARLEN NUNEZ, Steven F. Griffith, Sr.
    COUNSEL FOR DEFENDANT/AP-PELLEE, CONTINENTAL CASUALTY COMPANY, Judy L. Burnthorn, Andrew J. Baer, Suzan N. Richardson
    Panel composed of Jude G. Gravois, Marc E. Johnson, and Hans J. Liljeberg
   GRAVOIS, J.

| t Plaintiff/appellant, Marlen Nunez, appeals the trial court’s June 16, 2016 judgment that granted the motions to dismiss on the ground of abandonment filed by defendants, Continental Casualty Company (“CNA”) and Cesar Burgos. For the following reasons, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

On July 30, 2008, Ms. Nunez filed a petition for damages against Mr. Burgos, alleging that Mr. Burgos breached their partnership agreement regarding the opening of a new restaurant/bar and nightclub. On May 7, 2010, Mr. Burgos filed a third-party demand against CNA. Over the course of the next two years, the parties filed various pleadings into the record of the proceeding.

On June 23, 2015, CNA filed a Motion to Dismiss on the Ground of Abandonment, pursuant to La. C.C.P. art. 561. On that same day, Mr. Burgos also filed a Motion for Abandonment, specifically adopting the arguments set forth in CNA’s motion and memorandum. In its memorandum, CNA argued that the last step in the prosecution of the action occurred on June 20, 2012, when Mr. Burgos supplemented responses to Ms. Nunez’s prior discovery requests. Thus, CNA argued that the case was abandoned as a matter of law on or before June 20, 2015. In its memorandum, CNA also recognized, however, that on February 9, 2015, within the three-year abandonment period, Ms. Nunez e-fíled into the trial court record a second set of interrogatories directed to Mr. Burgos. CNA noted, however, that the e-filed interrogatories were not signed. In its memorandum, CNA argued first that the interrogatories did not interrupt abandonment since they were not served on all parties, and second that the interrogatories were null and void since they were not signed.

In an opposition memorandum, Ms. Nunez argued that the unsigned discovery was cured pursuant to La. C.C.P. art. 1420(C) when, as soon as it was ^called to the attention of Ms. Nunez’s counsel that the interrogatories were not signed, Ms. Nunez’s counsel signed the interrogatories and filed them into the trial court record, along with a proper certificate of service. Further, regarding service, Ms. Nunez argued that the interrogatories were electronically served on Mr. Burgos and CNA on February 9, 2015 via email, and that her certificate of email service clearly showed that the interrogatories were served on all parties through their counsel of record at their correct email addresses.

Following a hearing conducted on May 18, 2016, the trial court signed a judgment on June 16, 2016 granting the motions for abandonment. In its written reasons for judgment, the trial court relied on this Court’s holding in Florreich v. Entergy Corp., 09-414 (La.App. 5 Cir. 2/28/10), 32 So.3d 965, writ denied, 10-1057 (La. 9/3/10), 44 So.3d 691, that “unsigned discovery may not be relied upon as a step in the prosecution of litigation.” Based on this finding, the trial court stated that “(t)he discovery filed in this matter by plaintiff before the abandonment period would have ran were, it is uncontested, not signed, and they were not signed until after the abandonment period had ran.” For these reasons, the trial court granted the motions to dismiss on the ground of abandonment. This timely appeal followed. On appeal, Ms. Nunez asserts two assignments of error.

ASSIGNMENT OF ERROR NO. ONE

In her first assignment of error, Ms. Nunez questions whether the trial court overlooked the Louisiana Supreme Court case of Clark v. State Farm Ins. Co., infra, which she asserts clearly holds that a pleading filed in the record, albeit unsigned, is sufficient to defeat a claim of abandonment.

The controlling statutory provision in this case is La. C.C.P. art. 561, which provides, in pertinent part:

A. (1) An action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years,
B. Any formal discovery as authorized by this Code and served on all parties whether or not filed of record, including the taking of a deposition with or without formal notice, shall be deemed to be a step in the prosecution or defense of an action.
(Emphasis added.)

Article 561 thus requires three things: (1) that a party take some “step” in the prosecution or defense of the action; (2) that it be done in the trial court and, with the exception of formal discovery, on the record of the suit; and (3) that it be taken within three years of the last step taken by either party. James v. Formosa Plastics Corp., 01-2056 (La. 4/03/02), 813 So.2d 335, 338; Clark v. State Farm Ins. Co., 00-3010 (La. 5/15/01), 785 So.2d 779, 784; Chevron Oil Co. v. Traigle, 436 So.2d 530, 532 (La. 1983). A “step” in the prosecution or defense of an action is a formal action by a party before the Court intended to hasten the matter to judgment, or when a party takes a deposition with or without formal notice. Clark, 785 So.2d at 784; Chevron, 436 So.2d at 532; Melancon v. Continental Casualty Co., 307 So.2d 308, 312 (La. 1975). Whether or not a step in the prosecution of a case has been taken in the trial court for a period of three years is a question of fact subject to manifest error analysis on appeal. Florreich, 32 So.3d at 969.

Abandonment is self-executing; it occurs automatically upon the passing of three years without a step being taken by either party, and is effective without court order. Clark, supra; Giovingo v. Dunn, 11-781 (La.App. 5 Cir. 3/13/12), 90 So.3d 1098, 1101, writ denied, 12-0831 (La. 5/25/12), 90 So.3d 418. Once abandonment has occurred, action by the plaintiff cannot breathe new life into the suit, Clark, 785 So.2d at 789.

Finally, the jurisprudence has uniformly held that La. C.C.P. art. 561 is to be liberally construed in favor of maintaining a plaintiffs suit. Clark, 785 So.2d at 785. Abandonment is not meant to dismiss actions on mere technicalities, but to dismiss actions which in fact clearly have been abandoned. Id. at 786.

|4In her first assignment of error, Ms. Nunez argues that the trial court erred in not applying the principles of Clark to the discovery filed in the trial court record. Specifically, Ms. Nunez argues that the Supreme Court in Clark adopted the reasoning set forth by the Fourth Circuit in Kanuk v. Pohlmann, 338 So.2d 757 (La. App. 4th Cir. 1976), writ denied, 341 So.2d 420 (La. 1977). In Kanuk, the court found that an unsigned motion to fix for trial on the merits constituted a step in the prosecution of the case so as to prevent dismissal for abandonment. The court reasoned that:

The purpose of the C.C.P. art. 561 is to dismiss actions which have been abandoned, and the article provides for dismissal of those cases in which a plaintiffs inaction during a legislatively ordained period has clearly demonstrated his abandonment of the case. The article was not intended, however, to dismiss those cases in which a plaintiff has clearly demonstrated before the court during the prescribed period that he does not intend to abandon the action. The filing of the technically defective motion in this case was a step toward moving the suit to judgment and militated against any intention to abandon the action.
Furthermore, the purpose of C.C.P. art. 863⅛ requirement of signed pleadings is to place the responsibility for truthful and accurate allegations upon the attorney so as to subject him to disciplinary action for willful violation. {See C.C.P. art. 864, which also provides sanctions for scandalous or indecent matter in pleadings.) See also Berglund v. F. W. Woolworth Co., 236 So.2d 266 (La. App. 4th Cir. 1970). This purpose is completely unrelated to the application of the article in the present case and to the harsh, technical result of that application.

Kanuk, 338 So.2d at 758.

Ms. Nunez argues that in footnote 11 of Clark, supra, Kanuk is specifically “cited and approved.” In Clark, the Supreme Court quoted the first above-quoted paragraph from Kanuk when discussing the liberal construction standard of La. C.C.P. art. 561 and then footnoted the following:

In Karmk, for instance, the principle was applied to find the filing of a technically defective, unsigned motion refuted any inference that plaintiff intended to abandon the action. In finding this a step, the court stressed the lack of prejudice to the defendants.
Clark, 785 So.2d at 786 n.11.

|sMs. Nunez argues that with this footnote, the Supreme Court in Clark approved of an example where an unsigned pleading being filed.into the trial court record might be “technically defective,” but may still be relied upon as a step in the prosecution of the action. Thus, based on Clark’s ruling and its adoption of Kanuk’s “rationale,” Ms. Nunez argues that the trial court erred as a matter of law in finding that her case was abandoned.

The Fourth Circuit in Kanuk also considered the lack of proof of prejudice to the defendants in its finding that an unsigned motion to fix for trial on the merits constituted a step in the prosecution of the case so as to prevent dismissal because of abandonment, to-wit:

Pertinent is the following observation in 5 Wright & Miller, Federal Practice and Procedure § 1334 (1969), relative to Federal Rule 11, the source of C.C.P. art. 863:
“A failure to sign is a mere technical defect. Accordingly, in view of the basic policy of the federal rules to adjudicate actions on their merits rather than on procedural niceties, a motion to dismiss or to strike under this rule should not be granted unless the moving party has been severely prejudiced or misled by the pleader’s failure to sign. It is highly unlikely that a party will be able to show sufficient prejudice to justify dismissal. Moreover, the liberal philosophy of Rule 15 seems to encourage the court’s giving leave to amend to correct a failure to sign a pleading.”
Defendants have not even attempted to show any prejudice sustained because of plaintiffs’ failure to sign the motion to fix for trial.
(Emphasis added.)
Kanuk, 338 So.2d at 758.

In the present case, Ms. Nunez also argues that defendants have likewise failed to present proof of any prejudice sustained as a result of Ms. Nunez’s e-filing of interrogatories into the trial court record that were not signed. ■

In response, CNA and Mr. Burgos rely on this Court’s holding in Florreich, supra. In Florreich, the plaintiff relied on, among other things, an unsigned copy of discovery responses in support of his argument that his case had not been | f,abandoned. After the defendant argued that an unsigned copy of the responses could not constitute a step in the prosecution, the plaintiff filed a supplemental memorandum whereby he submitted a signed copy of the discovery responses. The plaintiff also submitted an affidavit by his counsel verifying that counsel had entrusted the physical mailing of the responses to the US Postal Service and his clerical assistant, but that he was unable to locate his pre-Hurricane Katrina clerical assistant, who supposedly had mailed the unsigned discovery responses to the parties. This Court found the following:

Because the original copy of tbe discovery responses was unsigned by Plaintiffs counsel, it was null and void and could not be used as evidence of mail service to Defendants. The signed copy of the discovery responses subsequently 'submitted by Plaintiff would have been sufficient to serve as proof of mailing, absent the accompanying affidavit of Plaintiffs counsel. The affidavit that was submitted provided clear and convincing evidence that Plaintiffs counsel did not physically mail discovery responses to Defendants. As a result, Plaintiff rebutted his own certificate of service. Therefore, we find that the [sic] neither the unsigned copy nor the signed copy of discovery responses interrupted abandonment of the case.
(Emphasis added.)
Florreich, 32 So.3d at 970.

Thus, in Florreich, this Court found that because the original copy of the discovery responses was unsigned, it was “null and void” and could not be used as evidence of mail service to the defendant, and therefore did not interrupt abandonment. Further, the signed copy of the discovery responses subsequently submitted by the plaintiff would have been sufficient to serve as proof of mailing, absent the accompanying affidavit of the plaintiffs counsel, because the accompanying affidavit of the plaintiffs counsel provided clear and convincing evidence that the plaintiffs counsel did not physically mail discovery responses to the defendant. The plaintiff in Florreich was thus not able to provide proof that the discovery responses had been mailed to the defendant so as to satisfy the service requirement of La. C.C.P. art. 561(B)—that the discovery responses were “served on all parties 17whether or not filed of record”—and thus the discovery responses could not serve as a step in the prosecution of the action to avoid abandonment of the action.

Upon review, we rely on this Court’s holding in Flomich, as the trial court correctly did, to originally find that, when the interrogatories were e-filed into the trial court record, they were unsigned and thus at that point were “null and void and could not be used as evidence of mail service to the defendant.” Florreich, supra. Our inquiry does not stop there, however, as it is evident as shown above that this Court’s opinion in Flomich was based more on lack of proof of service of the discovery responses, rather than on lack of signature on the discovery responses.

In the present case, we are further required to look to La. C.C.P. art. 1420 to address whether the subsequently signed interrogatories cured the defective discovery. Article 1420 provides, in pertinent part:

A. Every request for discovery, or response or objection thereto, made by a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be staked. A party who is not represented by an attorney shall sign the request, response, or objection and state his address.
C. If a request, response, or objection is not signed, it shall be stricken unless promptly signed after the omission is called to the attention of the person whose signature is required. A party shall not be obligated to take any action with respect to the request, response, or objection until it is signed.
(Emphasis added.)

Here, defendants filed their motions for abandonment on June 23, 2015 and therein brought to the attention of Ms. Nunez that her e-filed discovery was not signed. The very next day, on June 24, 2015, Ms. Nunez filed into the record a “Certificate |sof Service Pursuant to Article C.C.P. 1314(B)” with which she included a signed copy of the originally unsigned discovery. As such, Ms. Nunez promptly signed the discovery after the omission was called to her attention as authorized by La. C.C.P. art. 1420(C), and thus cured the defect in the previously filed unsigned discovery.

Nonetheless, defendants argue that the cure of the defect in the discovery came after the expiration of the abandonment period and therefore could not revive the action. We disagree with defendants’ assertion that curing the defect would revive Ms. Nunez’s action. Rather, in order to give proper and appropriate meaning and effect to La. C.C.P. art. 1420(C), we find that because the discovery was signed promptly after the omission was called to Ms. Nunez’s attention, as clearly authorized by La. C.C.P. art. 1420(C), it should be treated as having been signed and filed as of the original date it was e-filed into the trial court record—February 9, 2015. As previously stated, abandonment is not meant to dismiss actions on mere technicalities, but to dismiss actions which in fact clearly have been abandoned. Clark, 785 So.2d at 786. Under the particular facts and circumstances of this case, we find that Ms. Nunez clearly intended to take a step in the prosecution of her case by e-filing the interrogatories into the trial court record on February 9, 2015, and then by promptly submitting signed copies of the interrogatories the day after it was called to her attention that the filed interrogatories were not signed. Notwithstanding that Ms. Nunez signed the interrogatories after the abandonment period ran, given the circumstances of this case and that La. C.C.P. art. 1420(C) allows for unsigned discovery to be signed at a later time, we find that the trial court erred in finding the case abandoned based on the unsigned discovery.

LWe further find, like the Fourth Circuit found in Kanuk, swpm, that defendants have not shown that they sustained any prejudice as a result of Ms. Nunez’s e-filing interrogatories into the trial court record that were not signed.

We are further persuaded by the First Circuit’s holding in Martin v. Decker, 07-1838 (La.App. 1 Cir. 3/26/08), 985 So.2d 752, writ denied, 08-1405 (La. 10/3/08), 992 So.2d 1014, which involved the issue of whether an unsigned petition interrupts prescription. The statute relied on in Martin was La. C.C.P. art. 863, which was derived from Rule 11 of the Federal Rules of Civil Procedure, both of which allow a party to sign an unsigned document promptly after the omission is called to the attention of the pleader. The court looked at several federal cases which allowed for the correction of the signature, notwithstanding that the correction came after the time delays had expired. One ease in particular, Becker v. Montgomery, 532 U.S. 757, 764-65, 121 S.Ct. 1801, 1806, 149 L.Ed.2d 983 (2001), stated:

As plainly as Civil Rule 11(a) requires a signature on filed papers, however, so the rule goes on to provide in its final sentence that “omission of the signature” may be “corrected promptly after being called to the attention of the attorney or party.” “Correction can be made,” the Rules Advisory Committee noted, “by signing the paper on file or by submitting a duplicate that contains the signature.” Advisory Committee’s Notes on Fed. Rule Civ. Proc. 11, 28 U.S.C. App., p. 666.
* * *
Civil Rule 11(a) ... was formulated and should be applied as a cohesive whole. So understood, the signature requirement and the cure for an initial failure to meet the requirement go hand in hand. The remedy for a signature omission, in other words, is part and parcel of the requirement itself.

Martin v. Decker, 985 So.2d at 757-758.

11f)The First Circuit in Martin went on to find that notwithstanding the fact that the initially filed petition was unsigned, it still served to interrupt prescription even though the plaintiff cured the defect by filing a signed original of the unsigned petition that was originally filed after the prescription period had expired, to-wit:

Consequently, in Becker, the Supreme Court held that, pursuant to Civil Rule 11(a), a plaintiffs failure to sign his notice of appeal was curable, notwithstanding the fact that his proffered cure of the defect came after the pertinent time limitation had expired. According to the Supreme Court, the plaintiffs initial omission was not a “jurisdictional” impediment to the pursuit of his appeal. Given all of the foregoing precepts and the particular facts presented in the instant matter, we discern no error in the initially unsigned petition that would serve to disqualify it from serving to interrupt prescription herein.

Martin v. Decker, 985 So.2d at 758.

In conclusion, for the foregoing reasons, we find that under , the particular facts and circumstances of this case, the trial court erred in finding that the unsigned discovery that was e-filed into the trial court record during the abandonment period did not interrupt the abandonment period where the discovery was promptly signed—albeit outside of the abandonment period—after the omission was called to Ms. Nunez’s attention, as authorized by La. C.C.P. art. 1420(C).

ASSIGNMENT OF ERROR NO. TWO

In her second assignment of error, Ms. Nunez questions whether the record contains clear evidence of service of the interrogatories on the two defendants. Here, Ms. Nunez argues that the court erred when it failed to additionally rule that the electronic service requirements of La. C.C.P. art. 1313 were followed concerning plaintiffs discovery in question. Because of the trial court’s finding |nthat “unsigned discovery may not be relied upon as a step in the prosecution of litigation,” it did not present a ruling on the issue of whether service of the discovery was proper. In light of our finding above, that the trial court erred in finding the case abandoned based on the unsigned discovery, we remand the matter to the trial court for a determination as to whether service of the discovery on all parties, as required under La. C.C.P. art. 561(B), was proper.

CONCLUSION

For the foregoing reasons, the trial court’s judgment granting the motions for abandonment is reversed and the matter is remanded to the trial court for further proceedings.

REVERSED AND REMANDED

      . Noteworthy, the original unsigned discovery responses in Flcnreich were not contemporaneously filed into the trial court record, and thus there was no independent proof that they had actually been submitted by the plaintiff during the abandonment period. In the present case, however, it is undisputed that the interrogatories in question were contemporaneously e-filed into the trial court record during the abandonment period, albeit unsigned, and thus were clearly propounded during the abandonment period. Defendants claim, however, that they were never served with the interrogatories.

      . We note that defendants did not file a motion to strike the unsigned discovery prior to filing their motions for abandonment.

      . La. C.C.P. art. 863 provides, in pertinent part:
      A. Every pleading of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated. A party who is not represented by an attorney shall sign his pleading and state his address.

      C. If a pleading is not signed, it shall be stricken unless promptly signed after the omission is called to the attention of the pleader.

      (Emphasis added.)

      . La. C.C.P. art. 1313 provides, in pertinent part:
      A. Except as otherwise provided by law, every pleading subsequent to the original petition, and every pleading which under an express provision of law may be served as provided in this Article, may be served either by the sheriff or by:
      * * *
      (4) Transmitting a copy by electronic means to counsel of record, or if there is no counsel of record, to the adverse party, at the number or addresses expressly designated in a pleading or other writing for receipt of electronic service. Service by electronic means is complete upon transmission but is not effective and shall not be certified if the serving party learns the transmission did not reach the party to be served.
      B. When service is made by mail, delivery, or electronic means, the party or counsel making the service shall file in the record a certificate of the manner in which service was made.


source: Caselaw Access Project

author: WICKER, J.

license: Public Domain

text:
    IN RE: KREBS LASALLE LEMIEUX CONSULTANTS, INC.
    NO. 16-CA-586
    Court of Appeal of Louisiana, Fifth Circuit.
    March 15, 2017

      COUNSEL FOR PLAINTIFF/APPELLANT, KREBS LASALLE LEMIEUX CONSULTANTS, INC., J. William Beck-nell, II, Brian G. Meissner
    Panel composed of Fredericka Homberg Wicker, Robert A. Chaisson, and Stephen J. Windhorst
   WICKER, J.

bln this appeal, appellant, Krebs, La-salle, Lemieux Consultants, Inc. (“KLLC”), through its designated representatives, seeks review of a district court order denying its petition for reinstatement of corporate status. In the interim between the district court’s denial of the instant petition for reinstatement and our consideration of this appeal, we have determined that the law at the time of dissolution governs a request for corporate reinstatement. In light of this intervening statement of the law, we vacate the district court’s order and remand this matter to the district court to give KLLC a reasonable opportunity to seek an evidentiary hearing on the question of whether appellant has a lawful and valid purpose for seeking reinstatement.

FACTUAL AND PROCEDURAL BACKGROUND

On May 12, 2016, Krebs, Lasalle, Lem-ieux Consultants, Inc., through its designated representatives, Shelby P. Lasalle, Stephen W. Phillippi, and Ronald J. Danos, filed a petition to reinstate the corporation in the Twenty-Fourth Judicial District Court. According to this petition, KLLC was incorporated in Jefferson Parish on or about December 4, 1992. Pursuant to La. R.S. 12:142.1, KLLC was dissolved by affidavit on or about December 26,2012.

Between the time KLLC was dissolved in December 2012 and the time its designated representatives sought to reinstate the corporation in May 2016, the Louisiana Legislature repealed former La. R.S. 12:142.1 and replaced this statute with La. R.S. 12:1-1444 which, among other things, limits reinstatement to situations in which the terminated corporation requests reinstatement “no later than three years after the effective date of its articles or certificate of termination.” With over three years having passed since the date of dissolution, KLLC asserted in its petition for reinstatement that the district court should apply La. R.S.12:142.1, the law in effect at the time of dissolution. Thereafter, on June 13, |22016, the district court issued an order denying KLLC’s petition, with a citation to the current law, La. R.S. 12:1— 1444. The order also contains a notation indicating that, prior to signing the order, the district court sought to obtain a supplemental filing from the petitioners. After roughly three weeks, petitioner had not filed the requested supplement, and the district court denied the petition.

The appellant timely devolutively appeals the district court’s June 13, 2016 order.

DISCUSSION

In its sole assignment of error, KLLC argues the district court erred in denying its petition for reinstatement of corporate status because the district court should have applied former La. R.S. 12:142.1, the law in effect at the time of KLLC’s dissolution by affidavit.

The facts of this matter are not in dispute. This issue is purely one of legal interpretation. Therefore, we review the matter de novo, without deference to the legal conclusions of the court below. In re Reinstatement of S & D Roofing, LLC, 16-85 (La.App. 5 Cir. 9/22/16), 202 So.3d 177, 179; Turner v. Willis Knighton Med. Ctr., 12-0703 (La. 12/4/12), 108 So.3d 60, 62.

At the time the district court considered KLLC’s petition for reinstatement, this area of the law was in a state of significant flux. Between June 13, 2016, when the district court signed the order under review in this matter, and August 19, 2016, when petitioner filed its motion to appeal this order, this Court decided another matter involving KLLC. See Krebs, Lasalle, Lemieux Consultants, Inc. v. G.E.C., Inc., 16-024 (La.App. 5 Cir. 7/27/16), 197 So.3d 829, 832 (“Krebs F). In Krebs I, the Court determined that former La. R.S. 12:142.1—not newly enacted La. R.S. 12:1-1405, which sets out the effects of dissolution—applied to the corporation because KLLC was dissolved prior to the enactment of R.S. 12:1-1405. Applying Isformer R.S. 12:142.1, the Court held that KLLC did not have a right of action against an obligor on a promissory note because R.S. 12:142.1 provides for the survival of claims against the corporation dissolved by affidavit but does not provide for the survival of the corporation’s own claims. Recognizing that the district court did not have the benefit of Krebs I when it issued its order denying KLLC’s petition for reinstatement, we find that Krebs I instructs our decision in this matter. Having previously determined in Krebs I that the newly enacted provisions of the Business Corporation Act do not apply when determining the effects of KLLC’s pre-enactment dissolution, we find that these newly enacted provisions also do not apply to limit KLLC’s capacity to seek reinstatement, which is governed by La. R.S. 12:142.1, the law in effect at the time the corporation was dissolved by affidavit. Therefore, we find that KLLC has a right to pursue reinstatement. In this regard, KLLC has the burden of producing sufficient evidence that there is a valid and lawful purpose for reinstating KLLC.

An analysis of the former and the current statutes support this conclusion. At the time of KLLC’s dissolution, La. R.S. 12:142.1 provided:

A. In addition to all other methods of dissolution, if the corporation is not doing business, owes no debts, and owns no immovable property, it may be dissolved by filing an affidavit with the secretary of state executed by the shareholders, or by the incorporator if no shares have been issued, attesting to such facts and requesting that the corporation be dissolved. Thereafter, the shareholders, or the incorporator if no shares have been issued, shall be personally liable for any debts or claims, if any, against the corporation in proportion to their ownership in the shares of the corporation.
B. The secretary of state shall reinstate a corporation which has been dissolved pursuant to this Section only upon receipt of a court order directing him to so reinstate the corporation.

The Legislature repealed this statute, effective January 1, 2015. See Acts 2014, No. 328, §§ 5, 7. In its place, the Legislature enacted La. R.S. 12:1-1444, which provides, in pertinent part:

LA terminated corporation may be reinstated if the corporation satisfies both of the following conditions:
(1) Was not dissolved by a judgment of dissolution.
(2) Requests reinstatement in accordance with this Section no later than three years after the effective date of its articles or certificate of termination.

La. Civ. Code art. 6 provides:

In the absence of contrary legislative expression, substantive laws apply prospectively only. Procedural and interpretative laws apply both prospectively and retroactively, unless there is a legislative expression to the contrary.

See also La. R.S. 1:2 (“No Section of the Revised Statutes is retroactive unless it is expressly so stated.”); Manuel v. Louisiana Sheriff’s Risk Management Fund, 95-0406 (La. 11/27/95), 664 So.2d 81, 85-86. If the Legislature expresses an intent regarding retrospective or prospective application, then the inquiry is at an end. Sawicki v. K/S Stavanger Prince, 01-0528 (La. 12/7/01), 802 So.2d 598, 603. If the Legislature does not, we must determine whether the enactment is substantive, on the one hand, or procedural or interpretative on the other. Id.

When the Legislature repealed La. R.S. 12:142.1, it passed several transitional statutes, including La. R.S. 12:1-1701 and La. R.S. 12:1-1703. La. R.S. 12:1-1701 provides that the newly enacted Business Corporations Act, including La. R.S. 12:1— 1444, “applies to all domestic corporations in existence on its effective date that were incorporated under the laws of this state for a purpose or purposes for which a corporation might be formed under this Chapter.” The new law became effective on January 1, 2015, about three years after KLLC’s shareholders voluntarily dissolved the corporation by affidavit. See Acts 2014, No. 328, § 7. Because KLLC was not in existence at the time of the new law’s effective date, we find that, pursuant to La. R.S. 12:1-1701, the Legislature did not intend for La. R.S. 12:1-1444 to apply to it. Moreover, under La. R.S, 12:1-1703(A)(1) and (2),

LExcept as provided in Subsection B of this Section, the repeal of a statute by this Chapter does not affect any of the following:
(1) The operation of the statute or any action taken under it, before its repeal.
(2) Any ratification, right, remedy, privilege, obligation, or liability acquired, accrued, or incurred under the statute, before its repeal.

This statute also manifests the Legislature’s intention not to apply the reinstatement limitations of La. R.S. 12:1-1444 to corporations dissolved under prior law. Newly enacted La. R.S. 12:1-1444 expressly limits reinstatement to terminated corporations who request reinstatement “no later than three years after the effective date of its articles or certificate of termination.” Former La. R.S. 12:142.1, however, placed no such limit on a corporation’s capacity to seek reinstatement. The operation of former La. R.S. 12:142.1 involved the option to seek reinstatement at any time. Therefore, pursuant to La. R.S. 12:1-1703(A)(1), the repeal of La. R.S. 12:142.1 does not affect the operation of the statute in favor of permitting KLLC to seek reinstatement. Further, because the privilege of requesting reinstatement at any time accrued to KLLC prior to the repeal of La. R.S. 12:142.1, the repeal of this law did not affect KLLC’s capacity to seek reinstatement to the extent permitted by La. R.S. 12:142.1, the law under which it was dissolved. La. R.S. 12:1-1703(A)(2). We find that these transitional statutes clearly express the Legislature’s intention to apply La. R.S. 12:1-1444 prospectively to corporations dissolved under the current law. Therefore, because KLLC was not dissolved under this newly enacted statute, we find that the Legislature did not intend for La. R.S. 12:1-1444 to apply to it.

Further, even if the Legislature had not expressed its intention in this manner, the new time limitation on a corporation’s capacity to petition for reinstatement constitutes a substantive enactment which changed the fundamental rights of a corporation seeking dissolution and reinstatement. Thus, even absent | flthe Legislature’s expressed intention, the reinstatement provisions of La. R.S. 12:1-1444 only apply prospectively to corporations dissolved under the new law. La. Civ. Code art. 6; R.S. 1:2. Accordingly, we find that La. R.S. 12:1-1444 and its bar on seeking reinstatement three years after dissolution does not apply to KLLC.

On remand, KLLC should be given a reasonable opportunity to seek an eviden-tiary hearing to produce evidence from which the district court may determine whether or not KLLC has a valid and lawful purpose for reinstatement. See In re Reinstatement of Southern Labor Servs., L.L.C., 13-775 (La.App. 5 Cir. 5/14/14), 142 So.3d 60, 63-64 (finding, under the L.L.C. reinstatement statute which is nearly identical to former La. R.S. 12:142.1, that the court must conduct an evidentiary hearing before reinstating corporate status). Placing particular emphasis on what shareholders knew prior to dissolution and for what purpose dissolution and reinstatement are being pursued, Louisiana courts’ decisions involving corporate reinstatement demonstrate that this inquiry is a fact-intensive one, with the result often determined by the unique circumstances of each case. In re Reinstatement of S & D Roofing, LLC, 16-85, p.11 (La. App. 5 Cir. 9/22/16), 202 So.3d 177. Apparent throughout the varying facts and circumstances of this state’s corporate reinstatement jurisprudence is the principle that reinstatement, retroactive or not, cannot operate to shield shareholders from personal liability. Id.; Butcher v. Keith Hebert Carpentry/Vinyl Siding, Inc., 06-672 (La. App. 3 Cir. 12/20/06), 945 So.2d 914, 917-18 (“[T]he Louisiana Business Corporation Law (LBCL) does not absolve a shareholder or incorporator, who has voluntarily dissolved a corporation by affidavit, of the personal liability for subsequent debts arising out of those claims brought against the entity, or which could have been brought against it, prior to its dissolution.”). Although La. R.S. 12:142.1 is silent concerning what kind of evidence is sufficient for a court to order reinstatement of 17corporate status, Louisiana courts have held that the desire to maintain a pending lawsuit is a valid and lawful purpose for reinstatement. See In re Reinstatement of Venture Assocs., 04-439 (La. App. 1 Cir. 2/11/05), 906 So.2d 498, 500-02.

Therefore, we vacate the district court’s order denying KLLC’s petition for reinstatement and remand the case to the district court to give KLLC a reasonable opportunity to seek an evidentiary hearing for purposes consistent with this opinion.

VACATED AND REMANDED.

      . On June 13, 2016, when the district court issued its order, the retroactivity of La. R.S. 12:1-1444 had not been addressed by this Court or any other Louisiana appellate court.


author: LILJEBERG, J.

text:
    STATE of Louisiana v. Alexis R. SHELBY
    NO. 16-KA-634
    Court of Appeal of Louisiana, Fifth Circuit.
    March 15, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux
    COUNSEL FOR DEFENDANT/APPELLANT, ALEXIS R. SHELBY, Bruce G. Whittaker
    Panel composed of Jude G. Gravois, Marc E. Johnson, and Hans J. Liljeberg
   LILJEBERG, J.

| ^Defendant appeals his convictions and sentences for manslaughter and possession of a firearm by a convicted felon. For the following reasons, we affirm. We also grant appellate counsel’s motion to withdraw as counsel of record.

PROCEDURAL HISTORY

On November 7, 2013, defendant, Alexis R. Shelby, was charged by grand jury indictment with second degree murder in violation of La. R.S. 14:30.1 (count one) and possession of a firearm by a convicted felon in violation of La. R.S. 14:95.1 (count two). Defendant was arraigned and pleaded not guilty. On February 12, 2014, defendant filed a Motion to Appoint Sanity Commission to Determine Competency to Stand Trial. A hearing was held, and the trial judge found defendant competent to stand trial.

On August 11, 2015, the State amended count one of the indictment to allege that defendant committed manslaughter in violation of La. R.S. 14:31. On that same date, defendant withdrew his not guilty pleas and pleaded guilty to the amended charge of manslaughter and to possession of a firearm by a convicted felon. Afterward, on that same date, the trial judge sentenced defendant to imprisonment at hard labor for 40 years on count one and imprisonment at hard labor for 20 years on count two, with the sentence on count two to be served without benefit of parole, probation, or suspension of sentence. The trial court ordered the sentences on both counts to run concurrently with each other.

Also on August 11, 2015, the State filed a multiple offender bill of information alleging defendant to be a second felony offender to which defendant stipulated. Afterward, on that same date, the trial judge vacated the original sentence on count one and resentenced defendant under the multiple bill statute to imprisonment at hard labor for 40 years without benefit of probation or suspension |2of sentence, to run concurrently with the sentence on count two. Defendant appeals.

FACTS

Because defendant pleaded guilty, the underlying facts were not fully developed at a trial. Nevertheless, the State alleged in the amended indictment that on or about July 6, 2013, in Jefferson Parish, defendant violated La. R.S. 14:31 in that he committed manslaughter of Michael Gray (count one). The State also alleged in the amended indictment that on July 6, 2013, defendant violated La. R.S. 14:95.1 in that he had in his possession a firearm having been previously convicted of the crime of La. R.S. 40:971.1, distribution of a substance falsely represented to be a controlled dangerous substance, to wit: counterfeit cocaine, in case number 08-482, Division “C” of the 24 th Judicial District Court. Additionally, during the plea colloquy, defendant stated that he was pleading guilty to manslaughter and possession of a firearm by a convicted felon because he “was involved in a shooting that took the life of Mr. Michael Gray.”

LAW AND DISCUSSION

Under the procedure adopted by this Court in State v. Bradford, 95-929, pp. 3-4 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110-11, appointed appellate counsel has filed a brief asserting that he 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 counsel requests permission to withdraw as counsel of record.

In Anders, supra, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if he finds his case to be |-/wholly frivolous after a conscientious examination of it. The request must be accompanied by “ ‘a brief referring to anything in the record that might arguably support the appeal’ ” so as to provide the reviewing court “with a basis for determining whether appointed counsel have fully performed their duty to support their clients’ appeals to the best of their ability” and to assist the reviewing court “in making the critical determination whether the appeal is indeed so frivolous that counsel should be permitted to withdraw.” McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 439, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440 (1988).

In Jyles, 96-2669 at 2, 704 So.2d at 241, the Louisiana Supreme Court stated that an Anders brief need not tediously catalog every meritless pretrial motion or objection made at trial with a detailed explanar tion of why the motions or objections lack merit. The supreme court explained that an Anders brief must demonstrate by full discussion and analysis that appellate counsel “has cast an advocate’s eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration.” Id.

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. Bradford, 95-929, at 4, 676 So.2d at 1110. 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. However, if the court finds any legal point arguable on the merits, it may either deny the motion and order the court-appointed Rattorney to file a brief arguing the legal point(s) identified by the court, or grant the motion and appoint substitute appellate counsel. Id.

In the present case, defendant’s appellate counsel asserts that after a detailed review of the record, he could find no non-frivolous issues to raise on appeal. Appellate counsel states that the indictment and the multiple bill are in proper form, that the minutes indicate defendant was present with counsel for all critical court proceedings, and that the plea forms and accompanying colloquies are thorough and complete. He states that the trial judge heard and denied motions to suppress and that there is nothing to suggest that the trial court rulings were an abuse of discretion. In any event, he states that when defendant pleaded guilty, he did not reserve his right to seek review of the rulings on any of these motions.

Appellate counsel states that defendant, with the assistance of counsel, entered an unqualified guilty plea to the amended indictment, waiving all non-jurisdictional defects. Appellate counsel submits that during the plea colloquy, defendant indicated to the trial court that he had not been forced, coerced, or threatened to enter the pleas, that he was pleading guilty because he was guilty, and that he understood his rights, the charges, and the sentences he would receive in exchange for the pleas. He submits that there is no evidence in the record to support any claim that defendant’s pleas were constitutionally infirm.

Appellate counsel notes that the plea bargain appears to have been advantageous to defendant as he received a 40-year sentence on the amended charge of manslaughter rather than a life sentence had he been convicted at trial of second degree murder. He maintains that the sentences imposed are exactly the sentences defendant bargained for in his plea agreement and that this Court has recognized that a defendant is precluded from raising an excessiveness claim on appeal when the imposed sentence is the product of a plea agreement.

^Finally, appellate counsel notes that defendant filed a motion to appoint a sanity commission, after which the trial judge found him competent to proceed based upon the report of Dr. Richard Richoux and Dr. Rafael Salcedo, and the testimony of Dr. Richoux. He asserts that there is no evidence in the record to support a conclusion that the trial court erred by finding defendant competent to proceed.

Appellate counsel has filed a motion to withdraw as attorney of record, in which he states that he cannot find any non-frivolous issues to raise on appeal and that he has notified defendant that he filed an Anders brief and a motion to withdraw from the case. Appellate counsel also indicates that he informed defendant of his right to file a pro se supplemental brief in this appeal. Defendant has not filed a pro se supplemental brief in this matter.

An independent review of the record supports appellate counsel’s assertion that there are no non-frivolous issues to be raised on appeal.

The amended indictment properly charged defendant and plainly and concisely stated the essential facts constituting the offenses charged. It also sufficiently identified defendant and the crimes charged. See La. C.Cr.P. arts. 462-466. Further, as reflected in the minute entries, defendant and his counsel appeared at all crucial stages of the proceedings against him, including his arraignment, guilty pleas, multiple bill stipulation, and sentencing. As such, there are no appealable issues surrounding defendant’s presence.

Further, defendant pleaded guilty in this case. Generally, when a defendant pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea and precludes review of such defects either by appeal or post-conviction relief. State v. Turner, 09-1079, pp. 7-8 (La.App. 5 Cir. 7/27/10), 47 So.3d 455, 459. Here, defendant entered unqualified guilty pleas, and therefore, all non-jurisdictional defects were waived. No rulings were preserved for appeal under the holding in State v. Crosby, 338 So.2d 584 (La. 1976).

Once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief. State v. McCoil, 05-658, p. 7 (La.App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124. A guilty plea is constitutionally infirm if it is not entered freely and voluntarily, if the Boy-kin colloquy is inadequate, or when a defendant is induced to enter the plea by a plea bargain or what he justifiably believes was a plea bargain and that bargain is not kept. Id.

A review of the record reveals no constitutional infirmity in defendant’s guilty pleas. The record shows that defendant was aware he was pleading guilty to the crimes of manslaughter and possession of a firearm by a convicted felon. On the waiver of rights form and during the colloquy with the trial judge, defendant was advised of his right to a jury trial, his right to confrontation, and his privilege against self-incrimination as required by Boykin v. Alabama, supra. Defendant signed the waiver of rights form, indicating that he understood he was waiving these rights by pleading guilty. During the colloquy with the trial judge, defendant also indicated that he understood those rights.

During his guilty plea colloquy and on his waiver of rights form, defendant indicated that he had not been forced, coerced, or threatened into entering his guilty pleas. He was informed during the colloquy and on the waiver of rights form of the sentencing range for possession of a firearm by a convicted felon, the maximum sentence for manslaughter, and of the actual sentences that would be imposed if his guilty pleas were accepted. After the colloquy with defendant, the |7trial court accepted defendant’s pleas as knowingly, intelligently, freely, and voluntarily made.

A review of the record also reveals no constitutional infirmity in defendant’s stipulation to the multiple bill. The waiver of rights form, in conjunction with the colloquy between the trial judge and defendant, indicates that defendant was advised of his right to a hearing at which the State would have to prove his multiple offender status and of his right to remain silent throughout the hearing. Defendant was also advised of the potential sentencing range as a second felony offender and the actual sentence he would receive. Defendant indicated that he had not been forced or coerced into stipulating to the multiple bill. Afterward, the trial judge stated that the plea of “guilty” was accepted by the court as having been knowingly, intelligently, freely, 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, p. 5 (La.App. 5 Cir. 10/6/05), 916 So.2d 1171, 1173. This Court has applied this px-ovision to cases in which a defendant admits to the allegations in a habitual offender bill, as part of a sentencing agreement. See State v. Cross, 06-866, p. 4 (La.App. 5 Cir. 4/11/07), 958 So.2d 28, 30.

In the instant case, defendant’s sentences were imposed in accordance with the terms of the plea agreements set forth in the record at the time of the pleas and stipulation. Defendant’s sentences also fall within the sentencing ranges set forth in the statutes. See La. R.S. 14:31; La. R.S. 14:95.1; La. R.S. 15:529.1. Moreover, defendant’s plea agreement was beneficial to him in that he received a 40-year enhanced sentence as a second felony offender when he could have received an 80-year sentence, and the enhanced sentence and the sentence on count two were ordered to run concurrently.

1 «The transcript reflects that the trial judge advised defendant during the colloquy that if she accepted the guilty plea on count two, he would be sentenced to 20 years at hard labor in the Department of Corrections. The transcript and the commitment reflect that after accepting the guilty plea on count two, the trial judge sentenced defendant on count two to 20 years at hard labor in the Department of Corrections without benefit of parole, probation, or suspension of sentence. Defendant did not object to the restriction of benefits when the trial judge sentenced him on count two, even though he was not advised of these restrictions beforehand. Further, the trial judge’s failure to advise defendant that the sentence on count two would be imposed without these benefits did not affect the voluntariness of the guilty plea on count two.

In State v. Harrell, 09-364, pp. 31-33 (La.App. 5 Cir. 5/11/10), 40 So.3d 811, 323-24, writ denied, 10-1377 (La. 2/10/12), 80 So.3d 473, the defendant contended that his plea on count three was not knowing and voluntary because the trial court failed to advise him that the first five years of the sentence had to be served without the benefit of parole, probation, or suspension of sentence. On appeal, this Court found that the trial court’s failure in this regard did not render the defendant’s guilty plea unknowing or involuntary. It noted that the trial court advised the defendant of his Boykin rights, that the defendant indicated his willingness to plead guilty ^throughout the plea colloquy, that the defendant acknowledged that he had discussed the guilty plea with his attorney and that he still desired to plead guilty, and that the defendant received a substantial benefit for pleading guilty.

In the instant case, the record reflects that the trial judge advised defendant of his Boykin rights, and defendant indicated his willingness to plead guilty throughout the colloquy. Defendant acknowledged that he had discussed his guilty plea with his attorney and that he still desired to plead guilty. Moreover, defendant received a substantial benefit for pleading guilty. Also, the record does not reflect that receiving the benefit of parole was crucial to his guilty plea. Under these circumstances, defendant’s rights were not affected. Therefore, the trial judge’s failure to advise defendant that the sentence on count two would be imposed without the benefit of parole, probation, or suspension of sentence did not affect the voluntariness of the guilty plea on count two. See Harrell, supra.

Appellate counsel’s brief adequately demonstrates by full discussion and analysis that he 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. Accordingly, we affirm defendant’s convictions and sentences, and we grant appellate counsel’s motion to withdraw as attorney of record.

ERRORS PATENT

The record was reviewed for errors patent, according to La. C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d 175 (La. App. 5 Cir. 1990). The following two errors were noted.

First, the transcript reflects that the trial judge failed to impose the mandatory fíne of not less than $1,000.00 nor more than $5,000.00, as required by La. R.S. 14:95.1(B). While an appellate court has the authority to correct an illegal sentence, this authority is permissive rather than mandatory. La. C.Cr.P. art. 882. Defendant pled guilty and is indigent, as evidenced by his representation by the Louisiana Appellate Project. As such, even though defendant’s sentence is illegally lenient because of the lack of a fine, we decline to disturb defendant’s sentence on count two. See State v. Boston, 14-632, p. 10 (La.App. 5 Cir. 12/16/14), 167 So.3d 82, 88, writ denied, 15-0155 (La. 1/8/16), 184 So.3d 691.

|1ftSecond, the multiple bill contains a clerical error in the statutory citation of the predicate offense. In the multiple bill, the State alleged that the predicate offense was distribution of a falsely represented “CDS” in violation of La. R.S. 40:971; however, it appears that the correct statutory citation is La. R.S. 40:971.1.

The purpose of a bill of information is to inform a defendant of the nature and cause of the accusation against him as required by the Louisiana Constitution, Article 1, § 13. A clerical error in the statutory citation does not require a dismissal of the bill or reversal of a conviction if the error or omission does not mislead the defendant to his prejudice. La. C.Cr.P. art. 464; State v. Varnado, 01-367, p. 7 (La.App. 5 Cir. 9/13/01), 798 So.2d 191, 194.

In the instant case, there is no indication that defendant was prejudiced by the clerical error in the statutory citation of the predicate offense in the multiple bill. Although the statutory citation is incorrect on the multiple bill, it contains the proper description of the crime. Also, in the amended indictment, the correct statutory citation was used. Under these circumstances, any error in the statutory citation was harmless.

DECREE

For the foregoing reasons, we affirm defendant’s convictions and sentences. We also grant appellate counsel’s motion to withdraw as counsel of record.

AFFIRMED; MOTION TO WITHDRAW GRANTED

      . On August 11, 2015, the State also amended count two of the indictment to change the predicate conviction from a violation of La. R.S, 40:966(A) to a violation of La. R.S. 40:971.1.

      . In Bradford, supra, this Court adopted the procedures outlined in State v. Benjamin, 573 So.2d 528, 530 (La. App. 4 Cir. 1990), which were sanctioned by the Louisiana Supreme Court in State v. Mouton, 95-0981, pp. 1-2 (La. 4/28/95), 653 So.2d 1176, 1177 (per cu-riam).

      . The United States Supreme Court reiterated Anders in Smith v. Robbins, 528 U.S, 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).

      . This Court also sent defendant a letter by certified mail informing him that an Anders brief had been filed and that he had the right to file a pro se supplemental brief.

      . The State has filed a brief in this matter, concurring in appellate counsel's assertion that there are no non-frivolous issues to be raised on appeal.

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

      . The waiver of rights form does not show that defendant was advised that the sentence on count two would be imposed without the benefit of parole, probation, or suspension of sentence.