author: DREW, J.

text:
    HIBERNIA NATIONAL BANK, Plaintiff-Appellee, v. AERO-MECH, INC. Signs & Banners LLC & Gary Glen Holloway d/b/a Signs & Banners, Defendant-Appellant.
    No. 50,608-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 3, 2016.

      Bethard & Bethard, L.L.P. by Robert E. Bethard, Coushatta, LA, for Appellant.
    Newman, Mathis, Brady & Spedale by Mark Christopher Landry, Metairie, LA, John Arthur Brittain, Natchitoches, LA, for Appellee.
    Before CARAWAY, DREW & LOLLEY, JJ.
   DREW, J.

hGary Holloway appeals a judgment granting a motion to set aside an order of dismissal for abandonment in his favor.

After converting this appeal to an application for a supervisory writ and granting the writ, we affirm the judgment.

FACTS

On September 3, 2003, Hibernia National Bank confirmed a default judgment in Natchitoches Parish against Aero-Mech, Inc., Signs & Banners, LLC, and Gary Glen Holloway, d/b/a Signs & Banners. This judgment was revived on April 16, 2013.

In 2005, the judgment was assigned to Cadleway Properties, Inc., which was substituted as party plaintiff the next year. Two years later, the judgment was assigned to CadleRock Joint Venture II, L.P. (“CadleRock”), which became party plaintiff.

On February 7, 2011, CadleRock filed a petition in Red River Parish to make the judgment executory. CadleRock asserted that it had reason to believe that Popsie’s Carwash, LLC, Coushatta Hospitality, LLC, and Silver Dollar Liquor, LLC, possessed assets of Holloway’s that were subject to garnishment or a charging order. On that same date, a request for a writ of fieri facias against Aero-Mech, Signs & Banners, and Holloway, d/b/a Signs and Banners, was filed into the record.

In addition, on February 7, 2011, Cad-leRock filed a supplemental petition in which it prayed that Popsie’s Carwash, Coushatta Hospitality, and Silver Dollar Liquor be made garnishees. On February 10,2011, the trial court ordered them to be made garnishees.

|aThe trial court entered a charging order on February 7, 2011, demanding that Popsie’s Carwash, Coushatta Hospitality, and Silver Dollar Liquor pay any sums due to Holloway arising from his ownership interest in the companies.

On November 30, 2011, CadleRock filed a motion for accounting against Popsie’s Carwash, Coushatta Hospitality, and Silver Dollar Liquor, ordering them to account to CadleRock for all sums paid to Holloway from the date each was served with the charging order.

On January 9, 2012, CadleRock supplemented its petition to make GE & H Group a garnishee, which the court ordered done on that date.

On January 26, 2012, the trial court entered an order that, pursuant to the writ of fieri facias issued earlier, the Sheriff of Red River Parish was authorized to sell Holloway’s one-third membership interest in Coushatta Hospitality and his one-fourth membership interest in Silver Dollar Liquor.

On February 17, 2012, Silver Dollar Liquor sought an injunction preventing the sheriff from proceeding with the seizure and sale of Holloway’s one-fourth membership in Silver Dollar. Also on that date, Robert Bethard filed a petition for intervention and a motion for a temporary restraining order. He asserted that Holloway did not own a one-third interest in Coushatta Hospitality as that interest had been transferred to Bethard prior to the filing of the motion to seize Holloway’s interest in Coushatta Hospitality. He sought a recognition of his ownership of the one-third interest in Coushatta Hospitality formerly owned by Holloway, and injunctive relief prohibiting the Sheriff from seizing and selling that Lone-third interest. The trial court granted temporary restraining orders on February 27, with the orders set to expire on March 15, 2012.

On March 8, 2012, CadleRock filed an exception of no cause of action to the temporary restraining orders obtained by Silver Dollar and Bethard. On that same date, CadleRock also filed a motion to compel discovery against GE & H Group and Popsie’s Carwash, with the hearing set for May 3, 2012.

On March 8, 2012, CadleRock filed a rule for judgment pro confesso against GE & H Group as a garnishee on the grounds that it failed to file answers to garnishment interrogatories. GE & H Group was ordered to show cause on May 3, 2012, why judgment should not be rendered against them for the full amount due under the judgment rendered against Holloway.

On May 5, 2015, Holloway filed a motion to dismiss the suit for abandonment on the ground that no steps in its prosecution or defense had been taken since May 3, 2012. On May 7, 2015, an order was signed dismissing the suit.

On May 20, 2015, CadleRock filed a motion to set aside the dismissal. CadleR-ock contended that the matter could not be dismissed based on abandonment because the matter had been reduced to judgment. In his memo in opposition to the motion, Holloway argued that the validity of the judgment and whether CadleRock could seize assets of Holloway’s was not the issue before the court. Instead, the issue was whether a contested seizure could be abandoned in accordance with La. C.C.P. art. 561. He argued that CadleRock could still seize assets of Holloway’s to satisfy the judgment, but |4the seizure of Holloway’s alleged interest in Coushatta Hospitality had been abandoned.

On July 8, 2015, the court entered judgment granting the motion to set aside the dismissal. Holloway filed a motion for appeal on August 3, 2015.

DISCUSSION

Appellate jurisdiction

After the appeal was lodged, this court ordered the parties to show cause why the appeal should not be dismissed since the judgment that was appealed was not a final judgment. A judgment vacating a judgment of dismissal under La. C.C.P. art. 561 is an interlocutory judgment. La. C.C.P. arts. 1841 and 2083(C); Brown v. City of Shreveport Urban Dev., 34,657 (La.App.2d Cir.5/9/01), 786 So.2d 253. Following the parties’ responses, this court elected to refer the issue to the merits of the appeal.

CadleRock concedes that because a final judgment has already been entered in this matter, there will never be a subsequent final judgment from which Holloway could appeal.

The jurisprudence indicates that the decision to convert an appeal to an application for supervisory writs is within the discretion of the appellate courts. Stelluto v. Stelluto, 2005-0074 (La.6/29/05), 914 So.2d 34. Accordingly, after consideration of the matter, we convert the appeal to an application for a supervisory writ, and grant the writ.

Abandonment

La. C.C.P. art. 561(A)(1) states that “[a]n action, except as provided in Subparagraph (2) of this Paragraph, is abandoned when the parties fail to | stake any step in its prosecution or defense in the trial court for a period of three years, unless it is a succession proceeding!/]”

Article 561 imposes three requirements to avoid abandonment: (1) a party must take some “step” in the prosecution or defense of the action; (2) the step must be taken in the proceeding and, with the exception of formal discovery, must appear in the record of the suit; and (3) the step must be taken within three years of the last step taken by either party; sufficient action by either plaintiff or defendant will be deemed a step. Louisiana Dept. of Transp. & Dev. v. Oilfield Heavy Haulers, L.L.C., 2011-0912 (La.12/6/11), 79 So.3d 978.

Holloway argues that Art. 561 applies to the seizure of Holloway’s former interest in Coushatta Hospitality because the only exception to the article is for a succession proceeding. He asserts that the “action” in this matter would be the filing by CadleRock to enforce its legal right to collect on a judgment issued in a separate proceeding. Holloway contends that because the status of his interest in Coushatta Hospitality was contested, CadleRock had three years to assert its rights in the action that was the contested seizure.

Holloway explains that he is not requesting that the judgment against him be declared invalid or that any property owned by him cannot be seized to enforce the judgment. Rather, he is requesting that the seizure of any interest of his through these proceedings be considered abandoned, which would require CadleRock to reissue the charging order and garnishment to Coushatta Hospitality if it desired.

La. C.C.P. art. 561 has been applied to an action for executory process. See Semel v. Green, 252 La. 386, 211 So.2d 300 (1968); Nationstar Mortg., LLC v. Harris, 2013-1335 (La.App.4th Cir.5/14/14), 141 So.3d 829. However, its application to the enforcement of a money judgment is not apparent.

We note that La. C.C.P. art. 2294 specifically provides for a time limit on a seizure under a writ of fieri facias:

A seizure may be made under a writ of fieri facias only within one year from the date of its issuance.
At the expiration of that time the sheriff shall make a return on the writ unless a seizure has been made within the time. If a seizure has been made the sheriff shall proceed with the sale and thereupon make a return.

Comment (a) to the article states:

This article covers only the exceptional case when property seized by the sheriff during the effective life of the writ remains unsold on the expiration of the writ. The normal case of the seizure immediately after the issuance of the writ, and the judicial sale of the property seized within a few weeks thereafter, is covered by Art. 2254, supra.

If a seizure has been made under a writ of fieri facias, it is effective for the additional time required to bring the seizure to a conclusion. Sun Sales Co. v. Hodges, 256 La. 687, 237 So.2d 684 (1970).

We are mindful that La. C.C.P. art, 561 is to be liberally construed in favor of maintaining a plaintiff’s suit. See Clark v. State Farm Mut. Auto. Ins. Co., 2000-3010 (La.5/15/01), 785 So.2d 779.

In Clark, supra, the supreme court discussed the policy considerations underlying the concept of abandonment:

Abandonment is a device that the Legislature adopted “to put an end to the then prevailing practice of filing suit to interrupt | ^prescription, and then letting the suit hang perpetually over the head of the defendant unless he himself should force the issue.” Sanders v. Luke, 92 So.2d 156 (La.App. 1st Cir. 1957).
Abandonment is not a punitive concept; rather, it a balancing concept. Abandonment balances two equally sound, competing policy considerations: “on the one hand, the desire to see every litigant have his day in court, and not to lose same by some technical carelessness or unavoidable delay; on the other hand, the legislative purpose that suits, once filed, should not indefinitely linger, preserving stale claims from the normal extinguishing operation of prescription.” Sanders, 92 So.2d at 159.

Clark, supra, at pp. 9-11, 785 So.2d at 786-7.

The concern about preventing claims from lingering after suit has been filed is clearly not present in this matter because Holloway’s liability has already been reduced to a money judgment, and that judgment has been revived. CadleR-ock is merely trying to satisfy this judgment by awaiting payment within the bounds of the laws, especially that applicable to Louisiana limited liability companies.

In Department of Environmental Quality v. Rottman, 2001-0678 (La.11/28/01), 801 So.2d 343, the supreme court reversed a judgment that a Louisiana Department of Environmental Quality compliance order was abandoned under La. R.S. 30:2050.9. That statute provides:

A compliance order or a penalty assessment is abandoned when the department fails to take any steps to obtain final enforcement action for a period of two years after the issuance of an order or an assessment.

The supreme court concluded that La. R.S. 30:2050.9 was not applicable because the compliance order became a final enforcement action prior to the effective date of the statute. However, the supreme court stated in a footnote, with our emphasis added:

laEven if we were to conclude La. R.S. 30:2050.9 was applicable, the result would be the same. The abandonment provision of La. R.S. 30:2050.9 applies to a compliance order before it becomes a final enforcement action. Once the compliance order became a final enforcement action, the abandonment provisions no longer apply. LDEQ’s filing of the ex parte petition based on the final enforcement action is akin to a civil litigant taking steps to judicially enforce a final judgment. The situation is analogous to a civil judgment: once an action is prosecuted to the rendition of judgment, the principles of abandonment no longer apply.

Id., at p. 5, 801 So.2d at 345.

Based upon the foregoing, we conclude that La. C.C.P. art. 561 is not applicable to the efforts by CadleRock to satisfy its judgment against Holloway by use of writ of fieri facias, garnishment, and charging orders. The trial court did not err in setting aside the judgment of dismissal.

DECREE

At appellant’s cost, the judgment is AFFIRMED.


source: Caselaw Access Project

author: CHEHARDY, C.J.

license: Public Domain

text:
    Hector L. ALONSO, Husband of/and Maria D. Alonso v. TULANE UNIVERSITY MEDICAL CENTER, Columbia/HCA of New Orleans, Inc. doing business as Tulane University Medical Center, Franklin Rawlings, M.D. and Shehab A. Ebrahim, M.D.
    NO. 16-CA-420
    Court of Appeal of Louisiana, Fifth Circuit.
    December 07, 2016

      COUNSEL FOR PLAINTIFF/APPELLANT, HECTOR L. ALONSO, Hector L. Alonso
    COUNSEL FOR DEFENDANT/AP-PELLEE, SHEHAB A. EBRAHIM, M.D., Rodney A. Seydel, Jr.
    COUNSEL FOR DEFENDANT/AP-PELLEE, UNIVERSITY HEALTHCARE SYSTEM, L.C. D/B/A TULANE LAKESIDE HOSPITAL, Peter E. Sper-ling, James P. Waldron
    Panel composed of Susan M. Chehardy, Jude G. Gravois, and Hans J. Liljeberg
   CHEHARDY, C.J.

| ^Plaintiff, Hector Alonso, appeals the 24th Judicial District Court’s January 21, 2016 judgment sustaining the dilatory exception of prematurity and dismissing without prejudice Mr. Alonso’s medical malpractice claims against defendants, Dr. Shebab A. Ebrahim, M.D. and University Healthcare System, L.C. d/b/a/ Tulane-Lakeside Hospital. For the reasons that follow, we affirm this judgment of the district court.

FACTS AND PROCEDURAL HISTORY

On April 29, 2011, Dr. Ebrahim performed retinal surgery on Mr. Alonso at Tulane-Lakeside Hospital in Metairie, Louisiana. Mr. Alonso alleges that he awoke from anesthesia during the surgery in excruciating pain and implored the medical staff to stop the surgery. Instead, he claims.he was held down, tape was placed over his mouth, and the surgery continued. He alleges the surgery was unsuccessful, resulting in permanent damage to his right eye.

On March 30, 2012, Mr. Alonso filed suit in Orleans Civil District Court alleging medical malpractice and seeking damages for the injuries he sustained as a result. Mr. Alonso named as defendants Dr. She-bab Ebrahim and University Healthcare System, L.C. d/b/a/ Tulane-Lakeside Hospital. Mr. Alonso alleged that as the employer of Dr. Ebrahim, the hospital was vicariously liable for the acts of Dr. Ebra-him as well as its anesthesiologists, nurses, and other medical staff that treated Mr. Alonso. Also on March 30, 2012, Mr. Alon-so lodged a complaint with the Louisiana Division of Administration Patient’s Compensation Fund, requesting a medical review panel.

On November 16, 2012, the suit was transferred to the 24th Judicial District Court in accordance with La. C.C.P. At. 4873.

|?On August 28, 2014, the medical review panel issued its opinion that “the evidence does not support the conclusion that defendants .., failed to meet the applicable standard of care as charged in the complaint.”

On October 21, 2015, defendants pleaded the dilatory exception of prematurity, arguing Mr. Alonso’s medical malpractice action was premature because it had been filed before his complaint had been presented to the medical review panel. On January 21, 2016, following a hearing, the court issued its judgment, sustaining the exception and dismissing without prejudice Mr. Alonso’s claims against defendants. Mr. Alonso appeals this ruling in proper person.

DISCUSSION

An action is premature when it is brought before the right to enforce it has accrued. Williamson v. Hosp. Serv. Dist. No. 1, 04-0451 La. 12/1/04, 888 So.2d 782, 785 citing La. C.C.P. art. 423. The dilatory exception of prematurity questions whether a cause of action has matured to the point where it is ripe for judicial determination. LaCoste v. Pendleton Methodist Hosp., L.L.C., 07-0008 (La. 9/5/07), 966 So.2d 519, 523; Williamson, supra; Spradlin v. Acadia-St. Landry Med. Found., 98-1977 (La. 2/29/00), 758 So.2d 116, 119.

Under the Louisiana Medical Malpractice Act (“LMMA”), a medical malpractice claim against a private qualified health care provider is subject to dismissal on an exception of prematurity if such claim has not first been presented to a medical review panel. LaCoste, supra, “No action against a health care provider covered by this Part, or his insurer, may be commenced in any court before the claimant’s proposed complaint has been presented to a medical review panel established pursuant to this Section,” La. R.S. 40:1231.8(B)(1)(a)(i) (formerly La. R.S. 40:1299.47(B)(1)(a)(i)).

When the exception of prematurity is pled in the medical malpractice context, the burden of proving prematurity is on the exceptor, who must show that | ait is entitled to a medical review panel because the allegations fall within the LMMA. LaCoste, supra, at 523-24. Indeed, the LMMA and its limitations on tort liability for a qualified health care provider apply only to claims “arising from medical malpractice,” while all other tort liability on the part of the qualified health care provider is governed by general tort law. Id. at 524. Therefore, we conduct a de novo review of the district court’s ruling sustaining the dilatory exception of prematurity because the issue of whether a claim sounds in medical malpractice involves a question of law. Matherne v. Jefferson Parish Hospital Dist. No. 1, 11-1147 (La. App. 5 Cir. 5/8/12), 90 So.3d 534, 536, writ denied, 12-1545 (La. 10/12/12), 98 So.3d 873. Moreover, because no evidence was introduced at the hearing on the exception of prematurity, we must, as the district court did below, render our decision on the exception based solely upon the facts as alleged in the petition, accepting all allegations therein as true. See LaCoste, supra, at 525 (“Where no evidence is presented at trial of a dilatory exception, like prematurity, the court must render its decision on the exception based upon the facts as alleged in the petition, and all allegations therein must be accepted as true.”).

We begin our analysis with the definition of “malpractice” as defined by the LMMA:

[A]ny unintentional tort or any breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient, including failure to render services timely and the handling of a patient, including loading and unloading of a patient, and also includes all legal responsibility of' a health care provider arising from acts or omissions during the procurement of blood or blood components, in the training or supervision of health care providers, or from defects in blood, tissue, transplants, drugs, and medicines, or from defects in or failures of prosthetic devices implanted in or used on or in the person of a patient.

La. R.S. 40:1231.1(A)(13).

|4To assist in the determination of whether a claim sounds in medical malpractice under the LMMA, the Louisiana Supreme Court has set forth six factors to consider:

(1) whether the particular wrong is “treatment related” or caused by a dereliction of professional skill;
(2) whether the wrong requires expert medical evidence to determine whether the appropriate standard of care was breached;
(3) whether the pertinent act or omission involved assessment of the patient’s condition;
(4) whether an incident occurred in the context of a physician-patient relationship, or was within the scope of activities which a hospital is licensed to perform;
(5) whether the injury would have occurred if the patient had not sought treatment; and
(6) whether the tort alleged was intentional.

Coleman v. Deno, 01-1517 (La. 1/25/02), 813 So.2d 303, 315-16.

Our review of these factors in this case leads us to conclude that Mr. Alon-so’s claim sounds in medical malpractice under the LMMA. Under the first factor, it is clear that Mr. Alonso’s alleged injury is “treatment related” as it was sustained during a surgical procedure. Second, expert medical evidence is required to determine whether Dr. Ebrahim breached the appropriate standard of care in treating a patient who regained consciousness mid-surgery. Third, the pertinent act or omission, ie., the medical response to the patient’s regaining consciousness during surgery, involved an assessment of Mr. Alonso’s condition, ie., if and to what degree he was properly anesthetized. Fourth, it is apparent that Mr. Alonso’s injury, which is alleged to have occurred during a surgical procedure, occurred in the context of a physician-patient relationship. Fifth, where Mr. Alonso’s injury was the result of alleged error(s) committed during a surgical procedure, it is clear that the injury would not have occurred had he not sought the surgical treatment. And finally, Mr. Alonso does not allege intentional torts, asserting in his petition I sthat “[t]he proximate cause of [his] injuries is due to the negligence of [defendants],” who “failed to use adequate levels of care, skill or diligence in performance of their professional duties.”

Accepting as true the allegations in Mr. Alonso’s petition, we conclude that his claims as alleged therein fall within the purview of the LMMA. Because the record also reflects that Dr. Ebrahim and Tulane-Lakeside Hospital are both qualified health care providers under the LMMA, La. R.S. 40:1231.8(B)(1)(a)(i) mandates that Mr. Alonso’s complaint against them must be “presented to a medical review panel” before his action is commenced in court.

On the day that Mr. Alonso commenced his action in court, March 30, 2012, he also sent by certified mail a complaint to the Patient’s Compensation Fund requesting a medical review panel. The record reflects that the PCF received this complaint on April 3, 2012. Our review of La. R.S. 40:1231.8 leads us to conclude that a complaint requesting a medical review panel has not been presented to a medical review panel for purposes of La. R.S. 40:1231.8(B)(1)(a)(i).

Again, La. R.S. 40:1231.8(B)(1)(a)(i) provides; “No action against a health care provider covered by this Part, or his insurer, may be commenced in any court before the claimant’s proposed complaint has been presented to a medical review panel established pursuant to this Section.” The procedure for establishing a medical review panel pursuant to Section 1231.8 is set forth in Subsection (C). But before a medical review panel can be established in accordance with Subsection (C), the panel must first be requested pursuant to the procedure set forth in Subsection (A).

In this ease, Mr. Alonso completed the first step in this multi-step process on March 30, 2012 when he lodged his complaint requesting a medical review panel. On this same date, however, Mr. Alonso also commenced his action in court, at a time when the medical review panel had only been requested, not established. | ^Because his complaint could not have been presented to a medical review panel that had yet to be established, it follows that his action was commenced in court before his complaint was presented to a medical review panel. The district court correctly sustained the exception of prematurity.

DECREE

For the foregoing reasons, we affirm the January 21, 2016 judgment of the district court sustaining the dilatory exception of prematurity and dismissing without prejudice Mr. Alonso’s claims against defendants.

AFFIRMED

      . Mr. Alonso initially named other defendants, who he later voluntarily dismissed from the suit.


author: GRAVOIS, J.

text:
    STATE of Louisiana v. Ernest BILLIZONE, Sr.
    NO. 16-KA-478
    Court of Appeal of Louisiana, Fifth Circuit.
    December 14, 2016

      COUNSEL FOR PLAINTIFF/APPEL-LEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux, Douglas E. Rushton
    DEFENDANT/APPELLANT, ERNEST BILLIZONE, SR., In Proper Person
    Panel composed of Fredericka Homberg Wicker, Jude G. Gravois, and Robert A. Chaisson
   GRAVOIS, J.

| jDefendant, Ernest Billizone, Sr., appeals his convictions and sentences for possession of cocaine and possession of Gaba-pentin. For the reasons that follow, we affirm defendant’s convictions and sentences and remand the matter for correction of the commitment as noted herein.

PROCEDURAL HISTORY

On July 1, 2015, the Jefferson Parish District Attorney filed a bill of information charging defendant with one count of possession of cocaine, in violation of La. R.S. 40:967(C), and one count of possession of a legend drug, Gabapentin, without a prescription, in violation of La. R.S. 40:1238.1. Defendant appeared in proper person and pled not guilty to both counts at his arraignment on July 6, 2015. On July 26, 2015, defendant filed a motion to suppress evidence, which was denied after a hearing on September 3, 2015.

On September 25, 2015, defendant, in proper person, with the assistance of a legal advisor, withdrew his previous pleas of not guilty and pled guilty to both counts, with his guilty plea to count two being made pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). The trial court then sentenced defendant to forty months imprisonment at hard labor on each count, to run concurrently with each other. Immediately after sentencing, the State filed a habitual offender bill of information on count one, alleging that defendant was a triple felony offender, to which defendant stipulated. On that same date, the trial court vacated the original sentence on count one and resen-tenced defendant under the habitual offender statute to forty months imprisonment at hard labor, without the benefit of probation or suspension of sentence, to run concurrently with his sentence on count two. Subsequently, on February 1, 2016, defendant filed an | ¡¡.application for post-conviction relief seeking an out-of-time appeal, which was granted by the trial court on February 26, 2016. Defendant is self-represented on appeal. Defendant’s appeal follows.

FACTS

Because defendant pled guilty, the underlying facts were not fully developed at a trial. Nevertheless, the State alleged in the bill of information and further provided a factual basis during the guilty plea colloquy that on June 5, 2015, defendant violated La. R.S. 40:967(C) by knowingly and intentionally possessing cocaine, and violated La. R.S. 40:1238.1 by knowingly and intentionally possessing the legend drug, Gabapentin, without a prescription.

ASSIGNMENTS OF ERROR NUMBERS ONE, FIVE AND SIX

Illegally Enhanced Sentence

In these assignments of error, defendant first argues that his sentence was illegally enhanced because he was subjected to “double enhancement.” He alleges that the habitual offender bill of information used his felon in possession of a firearm conviction, as well as the predicate felony conviction on which it was based, in alleging him to be a third felony offender. Defendant also argues that the trial court violated the ex post facto clause of the United States Constitution because he was sentenced under the habitual offender statute. He claims that the | ¡¡habitual offender statute increases the punishment previously prescribed for his underlying offense, which he concludes violates the ex post facto clause. Defendant further argues that he was subjected to double jeopardy by his sentencing under the habitual offender statute. He avers that he already “paid the full penalty” of incarceration on his previous conviction that was used to enhance his sentence. As such, he contends that his enhanced sentence should be vacated and his original sentence should be reinstated, and that further habitual offender proceedings, if any, must be based on a proper habitual offender bill of information.

An unconditional plea, willingly and knowingly made, waives any and all non-jurisdictional defects and bars a defendant from later asserting on appeal that the State failed to produce sufficient proof at the habitual offender hearing. See State v. Spellman, 13-908 (La.App. 5 Cir. 4/9/14), 140 So.3d 751, 753-54, writ denied, 14-1315 (La. 2/6/15), 158 So.3d 815; State v. Schaefer, 97-465 (La.App. 5 Cir. 11/25/97), 704 So.2d 300, 304.

In the instant case, defendant stipulated to the habitual offender bill of information, which alleged that he was a third felony offender. Defendant indicated that he had reviewed the habitual offender bill of information with his legal advisor. During the colloquy and through the habitual offender waiver of rights form, defendant was informed that by stipulating to the allegations of the habitual offender bill of information, he waived his right to a hearing, where the district attorney would have to prove that he was the same individual who had a prior felony record and that the time period between the completion of the sentence for the listed prior felony and the date of the underlying crime was ten years or less. Defendant indicated that he had not been forced, threatened, or coerced into ^stipulating to the habitual offender bill of information. By stipulating to the habitual offender bill of information, defendant waived his right to a hearing and any possible non-jurisdictional defects. We thus find that defendant is barred from asserting on appeal that the State failed to produce sufficient proof at the habitual offender bill hearing.

On October 7, 2015, defendant filed an “Appeal Motion Requesting District Attorney to Prove Convictions Used to Enhance Sentence are Valid Convictions for Purpose of Multibill [sic] Statute 15:529.1.” In this motion, defendant argued, inter alia, that the habitual offender statute violated the double jeopardy clause because “the convictions which are a direct part and component of that prior sentence which has been satisfied by one punishment cannot be used again to punish for a new sentence.” This motion was denied as moot by the trial court on October 26, 2015. The trial court reasoned that the motion was dated September 22, 2015, that defendant had since “pled guilty to the multiple bill,” and that since a guilty plea normally waives all non-jurisdictional defects in the proceedings prior to the plea, defendant was not entitled to relief. Defendant did not specifically request a supervisory writ on this ruling.

Additionally, on April 27, 2016, defendant filed a “Motion to Vacate Unconstitutional Application of R.S. 15:529.1 and Reinstate Original Sentence via Habeas Corpus,” making nearly identical arguments as are set out in his appellate brief. Defendant alleged that his sentence was illegally enhanced due to “double enhancement,” and the trial court violated the ex post facto clause when it allowed his sentence to be enhanced. This motion was denied by the trial court on May 16, 2016, reasoning that it was divested of jurisdiction to rule on this issue because defendant’s motion for an out-of-time appeal had previously been granted on February 26, 2016. Defendant filed a supervisory writ application with this Court, not specifically challenging the trial court’s ruling or demonstrating how the trial |Rcourt erred in its denial of his motion to vacate, but raising similar arguments as were set forth in his motion to vacate. In a supplement to his writ application, defendant further pointed out that pursuant to La. C.Cr.P. art. 916(2) and (3), the trial court may take action in order to correct an error or deficiency in the trial court record or to correct an illegal sentence. This Court found that defendant failed to point to any error or deficiency to be corrected in the trial court record, or to an illegal term of his enhanced sentence, and concluded that the trial court did not err in finding that it was divested of jurisdiction and had no authority to act on defendant’s motion to vacate.

In so far as defendant argues on appeal that the habitual offender statute violates double jeopardy and ex post facto laws, we find that these arguments lack merit. In State v. Woods, 09-399 (La.App. 5 Cir. 3/9/10), 38 So.3d 391, 413, writ denied, 01-784 (La. 10/29/10), 48 So.3d 1096, the defendant similarly argued that he was placed in double jeopardy when he was sentenced as a habitual offender because he was punished for a second time for the same crimes. This Court found no merit to the defendant’s claim because a habitual offender hearing is not a trial, and therefore, legal principles such as res judicata, double jeopardy and the right to a jury trial do not apply. Id.

Further, the focus of the ex post facto inquiry is whether a new law redefines criminal conduct or increases the penalty by which the crime is punishable. However, this Court has noted that the Louisiana Supreme Court has recognized that a habitual offender proceeding does not charge a new crime, but is merely a method of increasing the punishment of subsequent offenders. State v. Smith, 00-1935 (La.App. 5 Cir. 5/30/01), 794 So.2d 41, 43, writ denied, 01-1921 (La. 6/7/02), 817 So.2d 1145. Moreover, the enhancement of the penalty for habitual offenders convicted of a new felony only addresses itself to the sentencing powers 1 fiof the trial judge after conviction and has no functional relationship to the innocence or guilt of the instant crime. Id. We thus find no merit to defendant’s claims that the application of the habitual offender statute to his case violates double jeopardy and ex post facto laws.

For the foregoing reasons, these assignments of error are without merit.

ASSIGNMENTS OF ERROR NUMBERS TWO, THREE, AND SEVEN

Excessive Enhanced Sentence

In these assignments of error, defendant argues that his sentences were excessive because the trial judge sentenced him to imprisonment instead of to a treatment center, which he alleges is cruel and unusual punishment. He contends that because the crimes of which he was convicted were non-violent, he should have been sentenced to a drug rehabilitation program. He further argues that the habitual offender statute is supposed to be reserved for violent offenders, and since he, a non-violent drug offender, was sentenced pursuant to its provisions, his sentence should be vacated. Defendant further argues that the habitual offender statute violates the Equal Protection Clause as he was treated differently than other offenders who violated La. R.S. 40:967(C) because he and other offenders are sentenced differently for violating the same crime.

La. C.Cr.P. art. 881.2(A)(2) precludes a defendant from seeking review of his sentence imposed in conformity with a plea agreement, which was set forth in the record at the time of the plea. State v. Moore, 06-875 (La.App. 5 Cir. 4/11/07), 958 So.2d 36, 46; State v. Washington, 05-211 (La.App. 5 Cir. 10/6/05), 916 So.2d 1171, 1173. This Court has also applied this provision to cases in which a defendant admits to the allegations in a habitual offender bill of information, as |7part of a sentencing agreement. State v. Cross, 06-866 (La.App. 5 Cir. 4/11/07), 958 So.2d 28, 30. The defendant is precluded from raising a claim of excessiveness on appeal when his sentence was imposed in conformity with a sentencing agreement, which is set forth in the record at the time that he admitted to the allegations in a habitual offender bill of information. State v. Dixon, 03-382 (La. App. 5 Cir. 9/16/03), 858 So.2d 16, unit denied, 04-1567 (La. 4/22/05), 899 So.2d 566. If a defendant pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea, which precludes review of such defects either by appeal or post-conviction relief. State v. Wingerter, 05-697 (La.App. 5 Cir. 3/14/06), 926 So.2d 662, 664.

In this case, defendant pled guilty to both counts, with his guilty plea to count two being pursuant to North Carolina v. Alford, supra, and his underlying sentences were imposed pursuant to a plea agreement. Further, defendant stipulated to the habitual offender bill of information, and his enhanced sentence was imposed pursuant to his plea agreement. Accordingly, we find that because both defendant’s original and enhanced sentences were imposed pursuant to a plea agreement, appellate review of his original and enhanced sentences is precluded.

Nonetheless, defendant argues that his sentence was excessive because he was sentenced to imprisonment instead of to a drug treatment center. When sentenced, the trial court recommended defendant for any and all self-help programs available through the Department of Corrections, including the Steven Hoyle Drug Treatment Program. Although the trial judge may recommend rehabilitative treatment to a defendant—and is encouraged to do so in certain cases—the trial court has no authority to dictate how a defendant’s sentence is to be served once he is in the custody of the Department of Corrections. State v. Goff, 13-866 (La. App. 5 Cir. 4/09/14), 140 So.3d 146, 152, writ denied, 14-1018 (La. 12/8/14), 153 So.3d 440. Accordingly, we find that the trial court did not err in “sentencing [defendant] to imprisonment instead of [to] a drug treatment center.”

Additionally, on June 2, 2016, defendant filed a “Motion to Correct Illegal Sentence Where the Term Restricts and Is Not in Compliance with the Law/Motion to Orally Argue Cause of Action,” wherein he argued, inter alia, that his sentence was illegally imposed as it denied defendant equal protection as “other offenders whom [sic] committed the same crime of possession, and have ten prior misdemeanor theft convictions will receive a totally different sentence for the exact same crime,” On June 22, 2016, this motion was denied by the trial court, which reasoned that defendant’s claims were not cognizable in a motion to correct an illegal sentence. On July 14, 2016, defendant filed a “Motion by Letter re: Notice of Intent to Appeal” regarding this denial. The trial court construed the motion as a notice of intent to seek a writ application; however, defendant did not actually file a writ application with this Court regarding the June 22, 2016 denial of his motion to correct an illegal sentence.

Upon review, we find that defendant’s argument that the habitual offender statute violates the Equal Protection Clause as applied to him is without merit. The Equal Protection Clause only dictates that all defendants be afforded the same sentencing considerations and does not compel any particular result. Results are measured only against the requirement that sentences not be excessive. State v. Day, 414 So.2d 349, 352 (La. 1982). Notably, defendant pled guilty in this case and was sentenced in conformity with his plea agreement. Nevertheless, defendant’s enhanced sentence of forty months or three years and four months falls well within the statutory limits. As a third felony offender, the sentencing range lsdefendant faced was two and one-half to ten years. See La. R.S. 40:967(C); La. R.S. 15:529.1.

For the foregoing reasons, these assignments of error are without merit.

ASSIGNMENT OF ERROR NUMBER FOUR

Excessive bail pending appeal

In this assignment of error, defendant argues that the trial court, during pretrial proceedings, subjected defendant to an unconstitutionally excessive bond. He also alleges that his motion for bond reduction should not have been denied because if the trial court had correctly considered the factors under La. C.Cr.P. art. 334, he would have been released. He contends that he should have been released pending his appeal and that the trial judge abused her discretion by failing to give specific reasons for the denial. Defendant’s argument focuses on the denial of the reduction of his bond pending appeal.

Subsequent to his guilty plea and sentencing, on January 4, 2016, defendant filed “Indigent Petitioner’s Motion Seeking Consideration of (R.O.R.) Release Pending Appeal,” which was denied on January 14, 2016, because at the time of filing, defendant did not have an appeal pending. On April 27, 2016, defendant filed a “Petition Requesting Appeal Bond;” the trial court set the appeal bond at $10,000 for each count. On June 23, 2016, defendant filed a “Motion to Reduce Bond to ROR Because of Excessiveness.” In its order denying the motion, the trial court stated it considered the factors in La. C.Cr.P. art. 334 and determined defendant was not entitled to a reduction in bond.

Following the denial of his motion to reduce bond, defendant sought a supervisory writ with this Court. However, this Court did not consider the writ | inapplication because defendant failed to attach a copy of the ruling on the motion to reduce bond. Nonetheless, this Court noted:

Bail after sentence but before final judgment is regulated by La. C.Cr.P. art. 332(C), which reads, in part, that “bail shall be allowed if a sentence of five years or less is actually imposed.” Here, relator was sentenced to 40 months in custody and, at his request, the trial judge set an “appeal bond” of $10,000 on each count. The denial of reduction in bail pending appeal is within the discretion of the trial judge. State v. Strickland, 398 So.2d 1062, 1068 (La. 1981).

This Court concluded that “even if we were to consider this writ application, we would find no abuse in the trial judge’s discretion in refusing bond pending final judgment.”

Although on appeal defendant contends the trial court erred by refusing to reduce his post-conviction bond pending appeal, the issue of whether or not the trial court has improperly refused bond reduction is neither properly nor timely raised on appeal. See State v. Insley, 04-1006 (La.App. 3 Cir. 2/2/05), 893 So.2d 209, 215. The correct procedure, rather, is to invoke the supervisory jurisdiction of this Court through La. C.Cr.P. art. 343. In State v. Gamberella, 633 So.2d 595 (La. App. 1 Cir. 1993), writ denied, 94-200 (La. 6/24/94), 640 So.2d 1341, the defendant appealed the trial court’s denial of his request for post-conviction bail pending his appeal. In affirming his conviction and sentence, the appellate court stated, “[a]s is evident from this case, once a conviction has been either affirmed or reversed on appeal, the issue of post-conviction bail pending appeal is moot.” Id. at 608. Although defendant did timely raise this issue in a supervisory writ application while his appeal was still pending, he did not attach a copy of the ruling, and this Court did not consider the writ application, but nevertheless noted that it would find no abuse in the trial judge’s discretion in refusing bail reduction pending final judgment. Now raised on appeal, we find that our decision in this appeal renders defendant’s claim moot. This assignment of error is without merit.

^ERRORS PATENT REVIEW

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. Wetland, 556 So.2d 175 (La. App. 5 Cir. 1990). Our review reveals that the commitment is inconsistent with the transcript. In the event of a conflict between the commitment and the transcript, the transcript controls. State v. Lynch, 441 So.2d 732, 734 (La. 1983). While the commitment reflects that defendant pled guilty to both counts pursuant to North Carolina v. Alford, supra, the transcript reveals that defendant only pled guilty pursuant to Alford on count two. We accordingly order the trial court to correct the error in the original commitment to insure an accurate record.

CONCLUSION

For the foregoing reasons, we affirm defendant’s convictions and sentences. We further remand the matter for correction of the commitment as instructed above.

AFFIRMED; REMANDED FOR CORRECTION OF COMMITMENT

      . In addition to this motion to suppress, defendant also filed numerous pro se pre-trial motions, which were also denied.

      . In Alford, the Court held that "[a]n individual accused of crime may voluntarily, knowingly, and understanding consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime.” 400 U.S. at 37, 91 S.Ct. 160.

      . Responding to defendant’s motion to this Court asking to represent himself on appeal, on June 28, 2016, this Court issued an order noting that the trial court had already granted defendant’s request to no longer be represented by the Louisiana Appellate Project; therefore, no action was required of this Court. See State v. Billizone, 16-KM-330 (La. App. 5 Cir. 6/28/16).

      .While defendant’s appellate record contains many supervisory writ dispositions from this Court, it appears that none of them, except one of them, infra, is relevant to defendant’s assignments of error on appeal insofar as specifically assigning the denial of the motion as error. One assignment specifically argues that the trial court erred by denying his motion to reduce bond. While raising on appeal nearly identical arguments as were raised in motions filed in the trial court, defendant does not assign the trial court’s denial of his motions as error, but argues the substance on appeal.

      . Although defendant delineates seven separate assignments of error, his arguments are not separated as such in his appellate brief. Under this heading, we address the following assignments of error, to-wit:
      1, Trial judge and district attorney misapplied R.S. 15:529.1. and subjected petitioner to double enhancement.
      5. Trial court and district attorney used an unfinal conviction and sentence which is still under review in a court of law to enhance his sentence.
      6. Trial court abused its discretion in failing to properly address or vacate petitioner’s illegal multiple offender sentence.

      . The ex post facto clause is contained in Article 1, Section 9 of the United States Constitution, which provides, in pertinent part:
      No ... ex post facto law shall be passed.
      Generally, an ex post facto law is a law that retroactively changes the legal consequences (or status) of actions that were committed, or relationships that existed, before the enactment of the law.

      . See State v. Billizone, 16-KH-328 (La. App. 5 Cir. 6/28/16) (unpublished writ disposition).

      . Under this heading, we address the following assignments of error, to-wit:
      2. Trial judge used the sentencing procedure to punish petitioner for his addiction to narcotics instead of sentencing him to Cenikor or similar drug treatment center, sent him to prison, [sic]
      3. Trial judge imposed R.S. 15:529.1. [sic] on a non-violent drug offender.
      7. Petitioner's sentence was excessive and disproportionate to the sentences handed down to others.

      . In State v. Billizone, 16-KH-430 (La. App. 5 Cir. 8/11/16) (unpublished writ disposition), this Court declined to consider defendant’s writ application concerning "what appear[ed] to seek review of the trial court's July 13, 2016 denial of his Motion to Correct Illegal Sentence” because he did not attach a copy of the ruling. Nevertheless, this Court stated that while his appeal was pending on direct review, his request for collateral review was premature.

      . The Equal Protection Clause is contained in the Fourteenth Amendment to the United States Constitution which provides, in pertinent part:
      No State shall ... deny to any person within its jurisdiction the equal protection of the laws.

      . Under this heading, we address the following assignment of error, to-wit:
      4. Trial judge vindictively refused to release petitioner on an unsecured (R.O.R.) bond before or after conviction as per constitutional and statutory provisions mandate [sic], denying due process, equal protection, and imposing undue restraint of liberty and cruel and unusual punishment.

      . See State v. Billizone, 16-KH-441 (La. App. 5 Cir. 8/8/16) (unpublished writ disposition).

      . It is noted that the Uniform Commitment Order correctly reflects that defendant pled guilty pursuant to Alford on count two.


author: MURPHY, J.

text:
    SUCCESSION OF Anthony SYLVESTER, Sr.
    NO. 16-CA-372
    Court of Appeal of Louisiana, Fifth Circuit.
    December 14, 2016

      PLAINTIFF/APPELLANT, SHARON SYLVESTER, In Proper Person
    COUNSEL FOR DEFENDANT/AP-PELLEE, JOYCE SYLVESTER, Justin E. Molaison, Harold E. Molaison
    Panel composed of Fredericka Homberg Wicker, Robert A. Chaisson, and Robert M. Murphy
   MURPHY, J.

| jAppellant, Sharon Sylvester, proceeding in forma pauperis and appearing in proper person, appeals the trial court judgment granting the Exception of No Right of Action filed by the succession representative. For the reasons that follow, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

This seemingly simple succession has a long and contentious procedural history. While the succession litigation involved parsing decedent’s interest in numerous pieces of property, the instant appeal concerns only two distinct pieces of property, 1208-1210 South Rampart Street and 1212-1214 South Rampart Street.

Sharon Sylvester (“Sharon”) is the surviving spouse of Anthony Sylvester, Sr., who died testate on January 9, 2005. Decedent was survived by four major children, who were the sole legatees of his estate. Sharon opened the succession proceedings by filing a petition to be appointed admin-istratrix of the estate on January 31, 2005. In March of 2005, decedent’s first wife and mother of his children, Joyce M. Sylvester (“Joyce”), filed an opposition to Sharon’s application to be appointed administratrix. In a consent judgment dated March 24, 2010, Sharon and Joyce were named co-independent administratrices of the estate. On November 19, 2010, Joyce filed a petition to partition the property held in co-ownership. On August 13, 2014, the district court signed a final partition judgment, which, among other things, (1) declared Sharon to be the full owner of 1212-1214 South Rampart Street, (2) determined that Sharon had no usufruct over decedent’s share of the community property because decedent’s testament disposed of decedent’s share of the community property, and (3) adopted the special master’s finding that the community did not include 1208-1210 South Rampart Street as decedent’s business, Anthony’s Plumbing, L.L.C—of which decedent was |2the only member—owned the property. These holdings were affirmed. Succession of Sylvester, 15-125 (La.App. 5 Cir. 12/9/15), 181 So.3d 250, writ denied, 16-350 (La. 5/20/16), 191 So.3d 1066.

On February 3, 2016, Sharon filed a pleading entitled “Rule to Show Cause why Joyce Sylvester, Sole Administrator herein Should Not Be Taxed with Fines and Damages for Neglect of Succession Property,” seeking fines and other damages against Joyce for her alleged failure to maintain 1208-1210 South Rampart Street and 1212-1214 South Rampart Street and for her failure to appear at a November 2015 administrative hearing at which, Sharon represents, the City of New Orleans (the “City”) levied fines against both of these properties. Joyce responded with Exceptions of No Cause of Action and No Right of Action. Following a hearing, the trial court issued a judgment granting Joyce’s Exceptions of No Right of Action and of No Cause of Action and dismissing Sharon’s Rule to Show Cause.

LAW AND DISCUSSION

The purpose of the peremptory exception of no right of action is to determine whether a plaintiff has a real and actual interest in an action or belongs to a particular class to which the law grants a remedy for a particular harm alleged. Dufrene v. Insurance Co. of State of Pennsylvania, 01-47 (La.App. 5 Cir. 5/30/01), 790 So.2d 660, 668. The burden of proof of establishing the exception of no right of action is on the exceptor. City of New Orleans v. Board of Directors of Louisiana State Museum, 98-1170 (La. 3/2/99), 739 So.2d 748, 755. The exception of no right of action tests whether the plaintiff has a “real and actual interest” in the action, but it does not raise questions of the plaintiffs ability to prevail on the merits or whether the defendant may have a valid defense. Lemmon Law Firm, LLC v. Sch. Bd. of St. Charles, 13-376 (La.App. 5 Cir. 12/12/13), 131 So.3d 231, 236. At the hearing on the exception of no right of action, the ^exception may be submitted on the pleadings, or evidence may be introduced either in support of or to controvert the objection raised when the grounds thereof do not appear from the petition. La. C.C.P. art. 931. An appellate court reviewing a lower court’s ruling on an exception of no right of action should focus on whether the particular plaintiff has a right to bring the suit and is a member of the class of persons that has a legal interest in the subject matter of the litigation, assuming the petition states a valid cause of action for some person. Eagle Pipe & Supply, Inc. v. Amerada Hess Corp., 10-2267 (La. 10/25/11), 79 So.3d 246, 256. The determination whether a plaintiff has a right to bring an action raises a question of law, which requires de novo review. Id.

Louisiana Code of Civil Procedure article 3191 provides in pertinent part: “A succession representative is a fiduciary with respect to the succession, and shall have the duty of collecting, preserving, and managing the property of the succession in accordance with law.” This fiduciary duty extends to legatees, creditors, and heirs. Succession of Linder, 11-633 (La.App. 5 Cir. 5/22/12), 92 So.3d 1158, 1172.

In the pleading which is the subject of this appeal, Sharon alleged that:

1. Joyce as the succession representative had a fiduciary duty to preserve the property of the succession pursuant to La. C.C.P. art. 3191;
2. this duty includes the duty to repair pursuant to La. C.C.P. art. 3211;
3. the “Rampart properties,” which are listed as “1208, 1210, 1212-1214 S. Rampart St.,” were previously preserved during the joint administration of Sharon and Joyce, had deteriorated during the sole administration of Joyce;
4. code violations were found by the city of New Orleans on the “Rampart St.” properties on January 28, 2015 and a judgment was issued on November 4, 2015 imposing fines for these violations;
1,5. the final partition judgment did not become final until October 23, 2015 when the Louisiana Supreme Court denied writs from the partition judgment.

In the Exception of No Cause of Action, Joyce argued that all causes of action Sharon had against Joyce should have been brought prior to the rendition of the partition judgment. Using this reasoning, Joyce argued that Sharon had no cause of action because these claims were res judicata to the partition judgment. In the Exception of No Right of Action, Joyce argued that the fiduciary duty of the succession representative extends to legatees, creditor, and heirs. Because Sharon was neither a legatee, creditor, nor an heir, she did not have standing to bring an action against Joyce under La. C.C.P. art. 3191 and 3211 for neglect.

These arguments were repeated at the hearing on the exceptions. At the conclusion of the hearing, the trial judge stated that the “exception of no right of action” is granted.

The succession representative is a fiduciary to the succession and has the duty to collect, preserve, and manage the property of the succession in accordance with law. La. O.C.P. art. 3191. This fiduciary duty extends to legatees, creditors, and heirs of the succession. Succession of Linder, supra.

With respect to 1208-1210 South Rampart Street, Sharon does not have a right of action because she does not have a legal interest in this property. The final partition judgment recognized this property as the separate property of the decedent and determined that decedent left no testamentary usufruct to Sharon. Therefore, Sharon is not a legatee of the estate and she has no legal interest in this piece of property.

Concerning the 1212-1214 South Rampart Street property, Joyce had no fiduciary duty to preserve and manage this property at the time the City issued the citation for code violations. The timeline here is critical Sharon claims that Joyce his personally liable for the damage sustained because the City found code violations at this property on January 28, 2015 and the final partition judgment did not become valid and enforceable until March 10, 2015. This assertion is incorrect. After the district court issued the final partition judgment on August 13, 2014, the distinct court granted Sharon a suspensive appeal and set the appeal bond at $65,000. Joyce filed a motion to traverse the appeal bond. Following a hearing on the sufficiency of the bond, the district court signed a judgment on January 20, 2015, converting Sharon’s suspensive appeal into a devolu-tive appeal, and the clerk of court issued a notice of signing judgment. The same day, Sharon filed a request for written reasons. On March 10, 2015, the district court issued a document it entitled a “judgment,” which contained no decretal language and which does not vacate the January 20, 2015 judgment. The substance of the judgment suggests the court intended for this document to serve only as its written reasons for judgment and not as the judgment itself. Nevertheless, the minute entry refers to this document as a “judgment.” Although Sharon attempts to cast the March 10, 2015 written reasons for judgment as the court’s judgment, the district court unequivocally converted Sharon’s suspensive appeal to a devolutive appeal on January 20, 2015. Moreover, the record also includes an “Ex Parte Motion for Stay Pending Writ application,” filed on February 25, 2015, in which Sharon sought a stay of the district court’s January 20, 2015 “signed judgment converting the suspensive appeal previously taken by the mover to a devolutive appeal” (emphasis added). The district court denied Sharon’s motion for stay, and the Fifth Circuit and Louisiana Supreme Court subsequently denied her application for supervisory writs. Thus, as a factual matter, Joyce did not have responsibility to maintain property that belonged to Sharon at the time the violations were levied. Because 1212-1214 South Rampart Street did not belong to | fithe estate at the time the City levied the fines of which Sharon complains, Sharon did not have a right of action against Joyce for these fines.

Accordingly, the trial court properly maintained Joyce’s exception of no right of action pursuant to La. C.C.P. art. 3191. This finding pretermits a discussion of Sharon’s assignment of error regarding the exception of no cause of action.

CONCLUSION

For the foregoing reasons, the judgment of the trial court granting the Exception of No Right of Action is affirmed.

AFFIRMED

      . In re: Succession of Anthony Sylvester, Sr., 15-219 (La. App. 5 Cir. 4/29/15).

      . In re: Succession of Anthony Sylvester, Sr., 15-1068 (La. 9/11/15), 176 So.3d 1044.

      . On appeal, Sharon also argues that the trial judge erred in setting the appeal bond for this appeal. The arguments regarding the appeal bond are moot. Sharon did not pay the bond due to her pauper status and the appeal proceeded without delay.


author:
CHEHARDY, C.J.
      JOHNSON, J.,

text:
    William DAWSON, Individually, and as Surviving Father of Willis Batiste v. Aswald FALGOUT, Ryan Singleton, Harry Lee, in His Capacity as Sheriff of Jefferson Parish, and ABC Insurance Company Phyllis Batiste, Individually and as the Natural Tutor of her Minor Children, Jasmine Sears and Bryant Sears, Jr. and William Batiste v. Harry Lee in his Official Capacity as Sheriff of Jefferson Parish; Asward Falgout, Individually, and in his Official Capacity as Jefferson Parish Deputy Sheriff; Ryan Singleton, Individually, and in his Official Capacity as a Jefferson Parish Deputy Sheriff; Hospital Service District No. 1, Jefferson Parish d/b/a West Jefferson Medical Center; and Boyd Edwards
    NO. 16-CA-373
    16-CA-374
    Court of Appeal of Louisiana, Fifth Circuit.
    December 21, 2016

      COUNSEL FOR PLAINTIFF/APPELLANT, PHYLLIS BATISTE, Phyllis Batiste
    COUNSEL FOR DEFENDANT/AP-PELLEE, ASWARD FALGOUT, RYAN SINGLETON AND NEWELL NORMAND IN HIS CAPACITY AS SHERIFF OF JEFFERSON PARISH, Daniel R. Martiny, James B. Mullaly
    Panel composed of Susan M. Chehardy, Marc E. Johnson, and Stephen J. Windhorst
   CHEHARDY, C.J.

hOn appeal, plaintiff seeks review of the trial court’s finding in favor of defendants and dismissal of all of plaintiffs’ demands. For the following reasons, we affirm the trial court’s ruling.

Facts

On the night of March 5, 2001, authorities received a 9-1-1 hang-up call originating from 1145 Tensas Drive in Harvey, Louisiana, in Jefferson Parish. According to policy, Jefferson Parish Sheriffs (“JPSO”) deputies were dispatched to the address to investigate. When Deputy Aswald Falgout, a 12-year veteran of the JPSO, arrived, he rang the doorbell and Ms. Phyllis Batiste answered the door. A few seconds later, Bryant Sears, Sr., Ms. Batiste’s longtime boyfriend, walked up behind her and told the deputy that there was no problem. When Deputy Falgout asked Ms. Batiste if there were any problems, Ms. Batiste told him that Mr. Sears had been beating her son, Willis, who had escaped from the house.

In the meantime, Deputy Ryan Singleton, a three-year employee of the JPSO, had arrived so the deputies began speaking with Ms. Batiste and Mr. Sears about the situation. Almost immediately, a young man rounded the corner of the house about 25 to 30 feet away and walked quickly toward them. As he approached, Deputy Falgout turned to ask Ms. Batiste the young man’s name and Ms. Batiste identified him as her son, Willis Batiste. Almost immediately, Deputy Falgout looked back at the young man, who was approaching quickly, and saw the glint of a knife in Willis Batiste’s hand. Immediately, Deputy Falgout drew his service revolver and shouted to Willis Batiste to drop the knife but Batiste raised the knife and struck Mr. Sears. Deputy Singleton, who was a few feet behind Deputy Falgout, also drew his service revolver and instructed Batiste to drop the knife.

D.Twice more, Willis Batiste struck Mr. Sears. Twice more, Deputy Falgout instructed Batiste to drop the knife. When Batiste refused to comply with the third request, Deputy Falgout shot him once in the lower right side.

After the shooting, Deputy Singleton approached Batiste, who had dropped the knife handle when he fell. At this point, the deputies observed that the knife blade had been broken during the struggle so Mr. Sears had not been stabbed.

Deputy Singleton testified that the period of time between the moment that Willis Batiste attacked Mr. Sears until he was shot by Deputy Falgout was two to three seconds. Further, the dispatch records reflect that the entire episode from the moment Deputy Singleton arrived on scene until he called for an ambulance for Willis Batiste was 46 seconds.

Procedural History

On March 2, 2002, plaintiff, William Dawson, individually, and as surviving father of Willis Batiste, filed suit against Aswald Falgout, Ryan Singleton, Harry Lee, in his capacity as Sheriff of Jefferson Parish, and JPSO’s insurer. On March 5, 2002, plaintiffs, Phyllis Batiste, individually and as the natural tutor of her minor children, Jasmine Sears, Bryant Sears, Jr., and William Batiste filed suit against Harry Lee, in his official capacity of Sheriff of Jefferson Parish, Aswald Falgout, Ryan Singleton, Hospital Service District No. 1 Jefferson Parish d/b/a West Jefferson Medical Center, and Boyd Edwards.

On June 10, 2002, William Dawson moved to consolidate the two matters for trial. On May 19, 2009, the trial judge signed the order of consolidation.

On December 15, 2015, the matter proceeded to trial before the bench. After hearing the testimony and reviewing all the evidence, the trial court found in Isfavor of defendants and dismissed all of plaintiffs’ demands. Plaintiff, Phyllis Batiste, in proper person, appeals that ruling.

Law and Argument

On appeal, Ms. Batiste contends that the trial court erred in failing to find that the deputies were negligent when they used “excessive and unreasonable force” against her son, Willis Batiste. Ms. Batiste further contends that the Jefferson Parish Sheriffs Office was negligent because “Officers Aswald Falgout and Ryan Singleton did not have the proper training to deal with this domestic issue.” Finally, Ms. Batiste contends that she “acquired ineffective assistance of counsel” because she was not advised by her attorney that the trial was before the judge, not a jury.

Standard of Review

It has long been “well-settled that a court of appeal may not set aside a trial court’s finding of fact in the absence of ‘manifest error’ or unless it is ‘clearly wrong,’ and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.” Rosell v. ESCO, 549 So.2d 840, 844-45 (La. 1989); Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La. 1978). Further, if the trial court’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Rosell, supra.

When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Where documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness’s story, the court of appeal may well find manifest error or clear Rwrongness even in a finding purportedly based upon a credibility determination. But where such factors are not present, and a fact-finder’s finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong.

Rosell, 549 So.2d at 844-45 (citations omitted). With these principles in mind, we must review the record and determine if the trier of fact erred in its conclusion.

Negligence

Louisiana has adopted a duty-risk analysis in order to determine whether to impose liability pursuant to La. C.G. art. 2315. To prove negligence, a plaintiff must prove: (1) the conduct in question was the cause-in-fact of the resulting harm; (2) defendant owed a duty of care to plaintiff; (3) the requisite duty was breached by the defendant; (4) the risk of harm was within the scope of protection afforded by the duty breached; and (5) actual damages. Faucheaux v. Terrebonne Consolidated Government, 615 So.2d 289, 292 (La. 1993); Mart v. Hill, 505 So.2d 1120 (La. 1987). Under the duty-risk analysis, all five inquiries must be answered affirmatively for plaintiff to recover for a defendant’s negligence. Mathieu v. Imperial Toy Corp., 94-0952 (La. 11/30/94), 646 So.2d 318, 322.

First, cause-in-fact is generally a “but for” inquiry. If the plaintiff probably would not have sustained the injuries but for the defendant’s conduct, such conduct is a cause-in-fact. Fowler v. Roberts, 556 So.2d 1, 5 (La. 1989). To the extent the defendant’s actions had something to do with the injury that the plaintiff sustained, the test of a factual, causal relationship is met. Under the instant set of facts, it is clear that Deputy Falgout’s actions were a cause-in-fact of Willis Batiste’s sustained injuries.

Second, whether a duty is owed by this defendant to this plaintiff is a question of law. Mundy v. Department of Health & Human Resources, 620 So.2d 811, 813 (La. 1993); Faucheaux, 615 So.2d at 292. The supreme court has held that the duty owed by police officers when approaching a subject prior to ^disarming him or her is one of reasonableness under the totality of the circumstances. Mathieu, supra, 646 So.2d at 323. Thus, both deputies owed Willis Batiste a duty of reasonableness under the totality of the circumstances.

Next, the inquiry is whether the duty owed by the officers to the subject was breached. In Mathieu, the supreme court held that the reasonableness of the officers’ actions under the particular circumstances of a case should be determined through consideration of the factors enunciated in Kyle v. City of New Orleans, 353 So.2d 969 (La. 1977), which articulated a standard of conduct for police officers to follow when making an arrest.

The Kyle factors to determine whether the officers acted reasonably under the circumstances are: (1) the known character of the arrestee; (2) the risks and dangers faced by the officers; (3) the nature of the offense involved; (4) the chance of the arrestee’s escape if the particular means are not employed; (5) the existence of alternative methods of arrest; (6) the physical size, strength, and weaponry of the officers as compared to the arrestee; and (7) the exigency of the moment. Whether the force used is reasonable depends upon the totality of the facts and circumstances in each case. Kyle, supra. A court must evaluate the officers’ actions against those of ordinary, prudent, and reasonable men placed in the same position as the officers and with the same knowledge as the officers. Kyle, supra.

The first Kyle factor is the known character of the subject. The information gleaned from the 9-1-1-hang-up call and available to the officers was very limited. When the officers arrived, Ms. Batiste informed them that Mr. Sears had beaten her son, Willis, who then left the house. There was no information that Willis Batiste was armed when he departed from the house.

The second Kyle factor is the risk of danger faced by the officers. The officers initially observed a man and a woman at the door of their home reporting an incident. The officers did not observe any weapons until Willis Batiste arrived Ron the scene, moving quickly toward Bryant Sears, with a knife. The risk of danger faced by these officers and Mr. Sears immediately escalated to imminent when Willis “lunged” at Mr. Sears within five feet of the deputies.

The third Kyle factor is the nature of the offense involved. In this case, the officers responded to a 9-1-1 hang-up call, which needed to be investigated. When Willis Batiste approached with a weapon, however, the nature of the offense transformed, and the officers had every reason to treat it, as serious and potentially life-threatening.

The fourth Kyle factor is the chance of the subjects’ escape if the particular means are not employed. Based on the fact that Willis Batiste had already left the scene and gone into the mostly residential area to arm himself once, it appears that the likelihood of escape in this case was substantial.

The fifth Kyle factor is the existence of alternative methods. In this case, there was no testimony that alternative methods for confronting an armed assailant attempting to stab an unarmed person existed. Further, even if other available alternative methods existed, that does not, in and of itself, render the method chosen unreasonable. Mathieu, 646 So.2d at 324. Here, as both deputies believed that Willis Batiste was stabbing Bryant Sears, there was nothing unreasonable about the alternative elected by Deputy Falgout under these circumstances.

The sixth Kyle factor is the physical size, strength, and weaponry of the officers as compared to the suspect. With two police units ultimately arriving at the scene, the officers enjoyed a tactical advantage against Willis Batiste but did not know if there were other armed individuals.

The seventh and final Kyle factor is the exigency of the moment. In this case, the dispatch records reveal that the entire exchange occurred in less than 46 seconds. Further, according to Deputy Singleton, only two to three seconds elapsed from the moment Willis Batiste entered the scene and began his attack on |7Mr. Sears until Deputy Falgout shot him. Given the above facts, we find the exigency of the circumstances was elevated.

After hearing the testimony and carefully examining all of the evidence, the trial judge found that, considering the totality of the circumstances surrounding the shooting in this case, the plaintiffs had not proven that the deputies’ actions were negligent in this case. Based on our review of the record before us in light of the Kyle factors, we find no error in the trial judge’s ruling.

Furthermore, finding no negligence by the deputies, we pretermit discussion of the remaining question regarding lack of proper training by the Jefferson Parish Sheriffs Office.

Finally, Ms. Batiste contends that she received “ineffective assistance of counsel” because she was not informed that the trier of fact would be the judge.

First, the Sixth Amendment to the United States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” Wheat v. United States, 486 U.S. 153,158-159, 108 S.Ct. 1692, 1697, 100 L.Ed.2d 140 (1988), citing Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963)(the Amendment “secures the right to the assistance of counsel, by appointment if necessary, in a trial for any serious crime.”). However, a civil litigant has no constitutional right to “effective assistance” of counsel.

Moreover, the Seventh Amendment of the United States Constitution, which insures the right to civil jury-trials “according to the rules of the common law,” is one of the few rights contained in the Bill of Rights that has not been made applicable to the states through the Fourteenth Amendment as a fundamental right of due process. Rudolph v. Massachusetts Bay Ins. Co., 472 So.2d 901, 905 (La. 1985). Thus, the right to a civil jury trial is not a constitutionally protected right in [ ¡¡Louisiana by virtue of either the state or national constitutions. Riddle v. Bickford, 00-2408 (La. 5/15/01), 785 So.2d 795; Rudolph, supra.

In Louisiana, the right to a jury trial in a civil case is provided for by statute. La. C.C.P. art. 1731 et seq. While the right to a jury trial is fundamental, it must be requested timely. Sharkey v. Sterling Drug, Inc., 600 So.2d 701, 705 (La.App. 1st Cir.), unit denied, 605 So.2d 1099, 1100 (La. 1992). If a request for a jury trial is not made timely, the right is waived.

The instant action in particular is governed by the Louisiana Governmental Claims Act (hereinafter “LGCA”), found at La. R.S. 13:5101 et seq., which applies “to any suit .,, for injury to person ... against ... a political subdivision of the state, as defined herein, or against an officer or employee of a political subdivision arising out of the discharge of his official duties or within the course and scope of his employment.” La. R.S. 13:5101(B). La. R.S. 13:5102(B) defines “political subdivision” to include sheriff and the sheriffs employees. Powell v. Regional Transit Authority, 96-0715 (La. 6/18/97), 695 So.2d 1326.

Further, La. R.S. 13:5105 provides, in pertinent part, that:

A. No suit against a political subdivision of the state shall be tried by jury. Except upon a demand for jury trial timely filed in accordance with law by the state or a state agency or the plaintiff in a lawsuit against the state or state agency, no suit against the state or a state agency shall be tried by jury.
B. Whenever a jury trial is demanded by the state, state agency, or the plaintiff in a lawsuit against the state or state agency, the party demanding the jury trial shall pay all costs of the jury trial, including the posting of a bond or cash deposit for costs in accordance with Code of Civil Procedure Articles 1733 through 1734.1, inclusive. (Emphasis added).

In this case, the record reflects that the plaintiff included a demand for a jury in her petition, however, there was no order attached to the demand. As a result, there was no bond set. By law, the plaintiff seeking a jury trial “shall pay all costs of the jury trial, including the posting of a bond or cash deposit for costs in | ^accordance with Code of Civil Procedure Articles 1733 through 1734.1.” The record before us does not reveal that a bond was posted as required and, thus, the demand for a jury was not properly made. Because the demand was not properly made, the right was waived.

Conclusion

For the foregoing reasons, we find no error in the trial court’s ruling in this case dismissing plaintiffs’ claims. The trial court’s judgment is hereby affirmed.

AFFIRMED.

JOHNSON, J., DISSENTS WITH REASONS

JOHNSON, J.,

DISSENTS WITH REASONS

hoi, respectfully, dissent from the majority opinion in this matter. I do not believe that Aswald Falgout’s use of lethal force on the night in question against Willis Batiste was reasonable.

According to the testimony presented, the officers arrived on the scene in response to a 911 hang up call. Once Mr. Batiste arrived on the scene, the risk of danger to the officers was relatively low because Mr. Batiste never attempted to attack either of the officers. Moreover, according to Officer Ryan Singleton, he and Mr. Falgout were not near Brian Sears when Mr. Batiste approached; thus, the risk of danger faced by those officers was not imminent. Additionally, under the circumstances of this case, the likelihood of Mr. Batiste’s escape was also low. Mr. Batiste walked onto the scene and started an altercation with Mr. Sears in the presence of the officers. Either of the officers could have apprehended Mr. Batiste prior to and during the altercation. Furthermore, there were clearly alternative, nonlethal methods, e.g., a shot to a non-lethal area of the body, available to disarm Mr. Batiste of the knife handle with the detached blade.

When considering these facts along with Mr. Falgout’s testimony that he did not recall any specifics about receiving use of deadly force training before or after the incident while on the police force, it is not hard to conclude that Mr. Falgout did not know what use of force was necessary or reasonable in that circumstance. Therefore, I would find that Mr. Falgout’s act of fatally shooting Mr. Batiste was not reasonable.

      . Although it is unclear from the record when it occurred, Newell Normand in his capacity as the Sheriff of Jefferson Parish, was substituted for Harry Lee as a defendant in these matters.

      . See fn. 1, supra.

      . The medical malpractice claims against West Jefferson Medical Center and Boyd Edwards were dismissed on exceptions of prematurity in 2002, Those claims are not the subject of this appeal.