text:
    WHITNEY BANK v. The GARDEN GATE NEW ORLEANS, L.L.C., Garden Gate Growers, L.L.C., Chad Everett Harris; and Jacqueline Kendall Harris
    NO. 17-CA-362
    Court of Appeal of Louisiana, Fifth Circuit.
    December 27, 2017
    COUNSEL FOR PLAINTIFF/APPELLEE, WHITNEY BANK, David F. Waguespack, Andrew Brien, New Orleans, LA
    COUNSEL FOR DEFENDANT/APPELLANT, THE GARDEN GATE NEW ORLEANS, L.L.C., GARDEN GATE GROWERS, L.L.C., CHAD EVERETT HARRIS ; AND JACQUELINE KENDALL HARRIS, Newark, NJ, Jason M. Cerise, New Orleans, LA, Bradley C. Knapp, Peyton C. Lambert, New Orleans
    Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Robert A. Chaisson
   GRAVOIS, J.

Defendants/appellants, The Garden Gate New Orleans, L.L.C. ("Garden Gate"), Garden Gate Growers, L.L.C. ("Growers"), Chad Everett Harris, and Jacqueline Kendall Harris, appeal the trial court's grant of summary judgment in favor of plaintiff/appellee, Whitney Bank ("Whitney"). For the reasons that follow, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

On July 20, 2016, Whitney filed suit for breach of promissory notes and an overdrawn checking account against Garden Gate and Growers as principals, and Mr. and Mrs. Harris as guarantors. The petition alleged that Whitney was the holder and owner of the following:

1) a certain promissory note dated May 19, 2015 executed by Garden Gate in the original principal amount of $1,100,000.00 ("Note 1");
2) a certain promissory note dated March 8, 2012 executed by Garden Gate in the original principal amount of $200,000.00 ("Note 2");
3) a certain promissory note dated July 22, 2013 executed by Garden Gate in the original principal amount of $250,000.00 ("Note 3");
4) a certain overdrawn checking account in the name of Garden Gate; and
5) a certain promissory note dated November 21, 2014 executed by Growers in the original principal amount of $82,355.88 ("Note 4").

Whitney alleged that defendants were justly, truly, and legally obligated and indebted to it for the outstanding principal sums due on the promissory notes, plus accrued interest, default interest, and late charges; the sum of the overdrawn account, plus interest, fees, charges, and other amounts as stated in the account agreement; and reasonable attorney's fees, all legal expenses and collection costs, and all costs of the proceeding. The petition further alleged that the indebtednesses of Garden Gate and Growers were personally guaranteed by Mr. and Mrs. Harris pursuant to various Commercial Guaranties executed by them, respectively.

According to the petition, Note 1 matured and became fully due and payable on May 19, 2016. Regarding the remaining notes, Whitney exercised its option to accelerate the maturity dates thereon due to nonpayment. The petition asserted that Garden Gate failed to make the payments due on Note 2 on September 8, 2015, and each successive month thereafter; Garden Gate failed to make the payments due on Note 3 on September 22, 2015, and each successive month thereafter; and Growers failed to make the payments due on Note 4 on September 21, 2015, and each successive month thereafter, with the exception of a credit applied on March 1, 2016. Whitney further asserted that it notified Garden Gate, Growers, and Mr. and Mrs. Harris of the acceleration and payments due on the notes and the overdrawn account by letter, and that the remaining unpaid balances have never been paid in full and remained due and owing.

Defendants requested and were granted an extension of time within which to answer the petition, and on September 23, 2016, they filed their answer and affirmative defenses. On October 4, 2016, Whitney filed a motion for summary judgment, supporting memorandum, statement of uncontested material facts, and supporting attachments, including the affidavit of Brian Berns, a Vice President of Whitney, and copies of the promissory notes, guaranties, and other loan documents. Whitney alleged that no genuine issue of material fact existed in this case and that it was entitled to judgment as a matter of law as prayed for in its petition. The attestations made by Mr. Berns in his affidavit included:

• that his duties included the handling of loan accounts of customers with defaulted loan relationships with Whitney, including the defaulted loan relationship of defendants;
• that in this capacity, he had access to all of the loan files and payment history records of defendants;
• that he had reviewed defendants' loan files and payment history prior to executing the affidavit;
• that based on his review of these documents, he had personal knowledge of the statements of fact made in his affidavit;
• that the notes became due and payable through maturity or acceleration of payments because of default in payments as stated in the petition;
• that defendants failed to pay the sums due and owing under the terms of the notes and the overdrawn account and otherwise defaulted in the performance of their obligations to Whitney;
• that the notes are in default as stated in the petition;
• that the amounts due on the notes are the amounts as stated in the petition, plus additional accrued interest;
• that the checking account is overdrawn;
• that the amounts due on the overdrawn checking account are the amounts as stated in the petition; and
• that the indebtednesses of Garden Gate and Growers were personally guaranteed by Mr. and Mrs. Harris, respectively, through the Commercial Guaranties signed by them referred to in the petition.

Thereafter, defendants filed an opposition to the motion for summary judgment, including a memorandum with affidavits of Mr. and Mrs. Harris attached thereto. In their opposition, defendants argued that Whitney's motion for summary judgment was premature, as they had not been afforded the opportunity to conduct any discovery in the matter. They further argued that genuine issues of material fact remain regarding whether Whitney had failed to mitigate its damages, and the validity of the personal guaranty of Mrs. Harris.

Following a hearing held on December 15, 2016, the trial court orally granted Whitney's motion for summary judgment. A written judgment to this effect was signed on January 3, 2017 in favor of Whitney and against defendants as prayed for in the petition. On January 11, 2017, defendants filed a motion for a new trial, which was subsequently orally denied by the trial court at a hearing held on February 9, 2017. A written judgment denying the motion for a new trial was signed on February 14, 2017. This appeal followed.

LAW AND ANALYSIS

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. Pouncy v. Winn-Dixie La., Inc. , 15-189 (La. App. 5 Cir. 10/28/15), 178 So.3d 603, 605. The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of every action. La. C.C.P. art. 966(A)(2). It shall be construed to accomplish these ends. Id. After an opportunity for adequate discovery, summary judgment shall be granted if the motion, memorandum, and supporting documents, including the pleadings, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations and admissions, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3) and (4).

The initial burden on a motion for summary judgment is on the mover to show that no genuine issue of material fact exists and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(D)(1). The burden then shifts to the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. Id. If the adverse party fails to do so, then summary judgment shall be granted. La. C.C.P. art. 966(A)(3).

Appellate courts review a judgment granting or denying a motion for summary judgment de novo , using the same criteria that governs the trial court's determination of whether a summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Bernard v. Ellis , 11-2377 (La. 7/2/12), 111 So.3d 995, 1002.

In American Bank v. Saxena , 553 So.2d 836, 846 (La. 1989), the Supreme Court held that summary judgment is an appropriate procedural device to enforce a negotiable instrument when the defendant establishes no defense against enforcement thereof. Once the plaintiff, as holder of a promissory note, proves the maker's signature, or the maker admits it, the holder has made out his case by mere production of the note and is entitled to recover in the absence of any further evidence. Johnson v. Drury , 99-608 (La. App. 5 Cir. 6/2/00), 763 So.2d 103, 109-110 ; Thomas v. Bryant , 597 So.2d 1065, 1068 (La. App. 2nd Cir. 1992). Once the plaintiff has met his burden of proof, the burden shifts to the defendant to prove the existence of a triable issue of material fact. Saxena , 553 So.2d at 845-46. In order to defeat summary judgment, the defendant must assert a valid defense to liability on the note, not separate and distinct claims that are unrelated to the question of liability. Id. at 844.

ASSIGNMENT OF ERROR NUMBER ONE

Insufficient time to conduct discovery

In their first assignment of error, defendants argue that they are entitled as a matter of law to conduct discovery as to issues contained in Whitney's motion for summary judgment. Defendants argue that because Whitney filed its motion for summary judgment only 11 days after defendants' answer was filed, they could not properly defend the motion.

A plaintiff's motion for summary judgment may be filed at any time after the answer has been filed. La. C.C.P. art. 966(A). This Court has found that La. C.C.P. art. 966 does not give parties an absolute right to delay a decision on a motion for summary judgment until all discovery is complete. Musa v. Litton-Avondale Indus. , 10-627 (La. App. 5 Cir. 3/29/11), 63 So.3d 243, 251, writ denied , 11-1256 (La. 9/23/11), 69 So.3d 1163. Yet, the law does require that parties be given a fair opportunity to present their claim. Id. It is within the trial court's wide discretion to render a summary judgment, if appropriate, or to allow further discovery. Id. Unless a party shows a probable injustice, a suit should not be delayed pending discovery when it appears at an early stage that there is no genuine issue of fact. Simoneaux v. E.I. du Pont de Nemours & Co. , 483 So.2d 908, 913 (La. 1986).

In the present matter, though the time period between the filing of the petition and the hearing on the motion for summary judgment was relatively short, there was still sufficient time prior to the hearing on the motion for summary judgment for discovery to have been conducted. However, defendants failed to propound any discovery, nor did they file for a continuance of the hearing on the motion in an effort to take discovery. Upon review, under the particular facts and circumstances of this case, we find that the trial court did not abuse its wide discretion in considering the subject motion for summary judgment, rather than delaying consideration of the motion so as to allow discovery. In any event, as fully developed below, we find that defendants have not shown there are any genuine issues of material fact for which discovery is necessary, and thus, defendants have not shown that a probable injustice has occurred. This assignment of error is without merit.

REMAINING ASSIGNMENTS OF ERROR

Existence of genuine issues of material fact

In their remaining assignments of error, defendants argue that genuine issues of material fact remain with regard to Whitney's cause of action in this matter. Specifically, defendants argue that genuine issues of material fact remain regarding the amount of the outstanding debt owed, Whitney's failure to mitigate its damages, and the validity of the personal guaranty of Mrs. Harris.

Amount of outstanding debt owed

Defendants first contend that the amount of the outstanding debt owed remains in dispute. They argue that they rejected the amount of the alleged indebtednesses set forth in Whitney's Statement of Uncontested Facts. Defendants allege that they have never been provided with, nor was there any documentation submitted into evidence of, a detailed accounting of the amount owed on the notes in light of payments made by defendants and in light of the March 2016 credit on Note 4.

In support of their motion for summary judgment, Whitney attached the affidavit of Mr. Berns, a Vice President of Whitney, who attested to the notes being in default and the exact amounts owed thereon by defendants, and the amount owed on the overdrawn checking account, and included as attachments to the affidavit copies of the notes, guaranties, and other loan documents. Upon review, we find Mr. Berns' affidavit with attachments to be sufficient evidence to support summary judgment under the particular facts of this case. The burden then shifted to defendants to prove that a genuine issue of material fact remained as to the amounts owed. However, defendants provided no specific allegations disputing the reported amounts owed, nor did they provide any evidence of any inaccuracies or discrepancies in the amounts asserted.

Additionally, the plea of payment is an affirmative defense, and the burden is upon the pleader to prove payment. In Louisiana, a defendant in a suit on a promissory note cannot establish payment as a defense by relying on the business records of his creditor. Franklin Credit Mgmt. Corp. v. Gray , 07-1433 (La. App. 4 Cir. 1/14/09), 2 So.3d 598, 605. In the present case, it was incumbent upon defendants to provide the necessary records to prove any payment on the notes, and they have failed to do so. Accordingly, we find that no genuine issue of material fact remains as to the amount owed.

Mitigation of Damages

Defendants next contend that a question of material fact exists surrounding Whitney's failure to mitigate its damages. According to defendants, as set forth in Mr. Harris' affidavit, Garden Gate and Growers procured a loan commitment from First Bank & Trust for the purpose of settling all outstanding debts owed to Whitney. On September 16, 2015, Mr. Harris met with representatives of Whitney, and the parties allegedly orally agreed that defendants would close their First Bank & Trust loan in 30 days and then retire their debt owed to Whitney. Mr. Harris was allegedly assured that the necessary paper work would be provided to him by Whitney the next day, but it was never received. Instead, on September 18, 2015, Mr. Harris was allegedly told via a telephone call from a Whitney representative that he needed to "leave Whitney Bank immediately" due to the closing of his brick and mortar store and his focusing on online retail. Defendants contend that, given the nature of the relationship between the parties, the actions of Whitney reneging on the acceptance of their agreement and instead accelerating the notes, over "an alleged overdue amount of $3,758.02," was unreasonable. Defendants thus argue that an issue of material fact remains regarding the potential reduction of defendants' liability and as to whether or not Whitney's actions were reasonable.

In this assignment, defendants rely on Whitney's alleged reneging on an alleged agreement with defendants. However, defendants have presented no documentation of any such agreement with Whitney. Mr. Harris even admitted that there was no written agreement between the parties when he noted in his affidavit that instead of receiving documentation of the parties' agreement, he received a phone call from Whitney telling him to leave Whitney immediately. In opposition to Whitney's claims, Mr. Harris relies solely on the alleged oral agreement between the parties. However, La. R.S. 6:1122 of the Louisiana Credit Agreement Statute provides:

A debtor shall not maintain an action on a credit agreement unless the agreement is in writing, expresses consideration, sets forth the relevant terms and conditions, and is signed by the creditor and the debtor. (Emphasis added.)

As such, any oral credit agreement between the parties is unenforceable. Further, defendants have provided nothing that precluded them from making payment on the debts in question. Accordingly, no issue of material fact remains as to the potential reduction of defendants' liability.

Furthermore, we find that the doctrine of mitigation of damages is inapplicable in the present case. La C.C. art. 2002 provides:

An obligee must make reasonable efforts to mitigate the damage caused by the obligor's failure to perform. When an obligee fails to make these efforts, the obligor may demand that the damages be accordingly reduced.

"This Article adjusts the conflict of interests that would otherwise exist when an obligee neglects to mitigate his damages and thereby exposes the obligor to further liability for consequences resulting from the obligor's failure to perform that were reasonably avoidable by the obligee." Lombardo v. Deshotel , 94-1172 (La. 11/30/94), 647 So.2d 1086, 1092. The duty of an injured party to mitigate his damages presumes that further damage has occurred following the tort or breach of contract. Schroeder v. DiPascal Cabinet Co. , 467 So.2d 1380, 1382 (La. App. 5th Cir. 1985).

Considering the foregoing, this Court in First Bank & Tr. v. Redman Gaming of La., Inc. , 13-369 (La. App. 5 Cir. 12/12/13), 131 So.3d 224, 230, rejected a similar argument that a bank failed to mitigate its damages following the granting of summary judgment in favor of the bank. In First Bank , the defendant/seller, pursuant to a purchase agreement, agreed to repurchase certain assets upon the buyer's default of its promissory note with the bank. Id. at 226. On appeal, the defendant argued that the bank failed to mitigate its damages when it failed to first pursue the buyer in order to reduce the amount of the defendant's liability. This Court found the doctrine inapplicable because there was no evidence the bank suffered further actual damages, nor had the defendants' liability increased beyond what was contemplated by the agreement. Id. Similarly, in the present case, defendants' liability has not increased beyond what is set forth in the notes and guaranties, and there is no evidence that Whitney suffered further actual damages. Accordingly, we find this doctrine inapplicable to the present case. This argument is without merit.

Personal guaranty of Mrs. Harris

Finally, defendants aver that a question of material fact exists regarding the validity of Mrs. Harris' personal guaranty. Mrs. Harris served as the Secretary of a separate business, Oasis Horticultural Services, Inc., and often signed business documents on behalf of Oasis. Mrs. Harris claims that on multiple occasions, she was given the signature pages of financing documents to sign, but was not given the whole documents. When signing for the present guaranties, she inquired as to the contents of the documents and alleges that she was told by a representative of Whitney that the bank "simply needed a second signature for their records." Mrs. Harris attested that she believed that she was signing the documents solely in her capacity as secretary of Oasis and did not understand that she was signing guaranties of debt for Garden Gate and Growers.

It is well settled that a party who signs a written instrument is presumed to know its contents and cannot avoid its obligations by contending that he did not read it, did not understand it, or that the other party failed to explain it to him. Aguillard v. Auction Management Corp. , 04-2804 (La. 6/29/05), 908 So.2d 1, 17. Unilateral error does not vitiate consent if the reason for the error was the complaining party's inexcusable neglect in discovery of the error. Scott v. Bank of Coushatta , 512 So.2d 356, 361 (La. 1987). A defendant bears the burden of proving the affirmative defense of error vitiating consent. Pannagl v. Kelly , 13-823 (La. App. 5 Cir. 5/14/14), 142 So.3d 70, 76.

In the present case, there is no dispute that Mrs. Harris signed the guaranties. She cannot now seek to avoid the obligations contained therein by claiming that she did not receive the full documents, or that she did not read, understand, or know what was in the documents, or know for what company she was signing on behalf of. Therefore, we find that defendants failed to bear their burden that Mrs. Harris executed the guaranties in error. This argument is without merit.

In summary, considering the foregoing, we find that defendants failed to assert any defenses to liability on the notes and the overdrawn checking account and thereby failed to raise a genuine issue of material fact. These assignments of error are without merit.

CONCLUSION

For the foregoing reasons, because no genuine issue of material fact remains and Whitney is entitled to judgment as a matter of law, the judgment of the trial court granting summary judgment in favor of Whitney is affirmed.

AFFIRMED

      Specifically, Whitney asserted that Garden Gate, Mr. Harris, and Mrs. Harris are obligated and indebted to Whitney, in solido , for the following amounts:
      • The principal sum of $1,100,000.00 due on Note 1, plus accrued interest thereon through July 18, 2016, in the amount of $37,592.57, plus default interest accruing on the unpaid principal balance commencing on July 19, 2016, at a per diem of $641.666, until paid, and plus late charges of $1,290.09.
      • The principal sum of $74,094.33 due on Note 2, plus accrued interest thereon through July 18, 2016, in the amount of $3,360.57, plus default interest accruing on the unpaid principal balance commencing on July 19, 2016, at a per diem of $37.047, until paid, and plus late charges of $1,879.00.
      • The principal sum of $72,386.04 due on Note 3, plus accrued interest thereon through July 18, 2016, in the amount of $2,837.83, plus default interest accruing on the unpaid principal balance commencing on July 19, 2016, at a per diem of $36.193, until paid, and plus late charges of $4,078.91.
      • The overdrawn account sum of $25,845.96, plus interest, fees, charges and other amounts as stated in the account agreement.
      Whitney further asserted that Growers, Garden Gate, and Mr. and Mrs. Harris are obligated and indebted unto Whitney, in solido , in the principal sum of $60,485.14 due on Note 4, plus accrued interest thereon through July 18, 2016, in the amount of $3,278.77, plus default interest accruing on the unpaid principal balance commencing on July 19, 2016, at a per diem of $30.243, until paid, plus late charges of $788.00.

      As additional security on the notes, Growers executed a Multiple Indebtedness Mortgage in favor of Whitney's predecessor-in-interest on immovable property located in Jefferson Parish. Growers also executed an Assignment of Leases and Rents in favor of Whitney's predecessor-in-interest related to the same immovable property located in Jefferson Parish. Further, both Garden Gate and Growers executed various Commercial Surety Agreements in which they granted security interests to Whitney in certain movable property.

      Specifically, the judgment first condemned Garden Gate, Mr. Harris, and Mrs. Harris, jointly, severally, and in solido , to pay to Whitney the following amounts:
      a) the principal sum of $1,100,000.00, plus accrued interest thereon through July 17, 2016 in the amount of $37,485.63, plus accrued default interest from July 18, 2016 through September 26, 2016 in the amount of $46,200.00, plus interest continuing to accrue thereafter at the default rate of 21 percent per annum , until paid, plus late charges of $1,290.09;
      b) the principal sum of $74,094.33, plus accrued interest thereon through July 17, 2016 in the amount of $3,350.80, plus default interest from July 18, 2016 through September 26, 2016 in the amount of $2,667.39, plus interest continuing to accrue thereafter at the default rate of 18 percent per annum , until paid, plus late charges of $2,442.70;
      c) the principal sum of $72,386.04, plus accrued interest thereon through July 17, 2016 in the amount of $2,829.29, plus default interest from July 18, 2016 through September 26, 2016 in the amount of $2,605.89, plus interest continuing to accrue thereafter at the default rate of 18 percent per annum , until paid, plus late charges of $4,078.91;
      d) the overdrawn account sum of $25,845.96, plus interest, fees, charges and other amounts as stated in the account agreement; and
      e) reasonable attorney's fees, all legal expenses and collection costs, and all costs of the proceeding.
      The judgment further condemned Garden Gate, Growers, Mr. Harris, and Mrs. Harris, jointly, severally, and in solido , to pay to Whitney the principal sum of $60,485.14, plus accrued interest thereon through July 17, 2016 in the amount of $3,269.53, plus default interest from July 18, 2016 through September 26, 2016 in the amount of $2,177.47, plus interest continuing to accrue thereafter at the default rate of 18 percent per annum , until paid, plus late charges of $945.00, together with reasonable attorney's fees, all legal expenses and collection costs, and all costs of the proceeding.
      Additionally, the judgment found in favor of Whitney and against defendants, respectively, recognizing, maintaining, and enforcing the Multiple Indebtedness Mortgage, the Assignment of Leases and Rents, and the Commercial Security Agreements.


source: Caselaw Access Project

author: GRAVOIS, J.

license: Public Domain

text:
    STATE of Louisiana v. Ben E. MARENCO
    NO. 17-KA-418
    Court of Appeal of Louisiana, Fifth Circuit.
    December 27, 2017
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux
    COUNSEL FOR DEFENDANT/APPELLANT, BEN E. MARENCO, Katherine M. Franks
    Panel composed of Judges Jude G. Gravois, Marc E. Johnson, and Hans J. Liljeberg
   GRAVOIS, J.

Defendant, Ben E. Marenco, appeals his conviction and sentence resulting from a guilty plea to forcible rape. His appointed appellate counsel has filed a brief in conformity with the procedure outlined in State v. Bradford , 95-929 (La. App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110-11, asserting that she has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles , 96-2669 (La. 12/12/97), 704 So.2d 241 (per curiam), appointed appellate counsel requests permission to withdraw as counsel of record for defendant. After thorough review of the record, we agree with counsel's assessment of the case and accordingly grant counsel's motion to withdraw. We affirm defendant's conviction and sentence, but remand the matter for correction of errors patent as noted in our errors patent review.

PROCEDURAL HISTORY

On January 12, 2015, the Jefferson Parish District Attorney filed a bill of information charging defendant with forcible rape in violation of La. R.S. 14:42.1. Defendant pleaded not guilty at his arraignment on February 23, 2015. Defense counsel also made an oral motion to appoint a sanity commission on that date. A sanity hearing was set for March 25, 2015. Thereafter, on March 25, 2015, the parties stipulated to the qualifications of experts in the fields of forensic psychiatry and psychology and their opinion of defendant's competency. The trial court accepted the stipulation and found defendant competent to stand trial.

Later on that same day, defendant withdrew his plea of not guilty and pleaded guilty to the charge of forcible rape pursuant to North Carolina v. Alford , 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). In accordance with the plea agreement, the trial court sentenced defendant to twenty years imprisonment at hard labor, without the benefit of probation, parole, or suspension of sentence, to run concurrently with the sentences being served in case numbers 13-5008, 14-1370, and 14-5075. The trial court also advised defendant of the sex offender notification/registration requirements.

Defendant subsequently filed a pro se Motion to Correct Illegal Sentence, which was denied by the trial court on June 15, 2015. On March 28, 2017, defendant filed an Ex Parte Motion for Special Proceeding, wherein he sought reinstatement of his appeal rights. On April 3, 2017, the trial court granted defendant an out-of-time appeal. This appeal followed.

FACTS

During the guilty plea proceeding, the State asserted that if the matter had proceeded to trial, it would have proved beyond a reasonable doubt that on or between September 13 and 14, 2014, in Jefferson Parish, defendant knowingly and intentionally violated La. R.S. 14:42.1 in that he had sexual intercourse with L.S. without her consent and with use of force, threats, or physical violence.

The bill of information similarly provides that on or between September 13 and 14, 2014, defendant violated La. R.S. 14:42.1 in Jefferson Parish by having sexual intercourse with L.S. without her consent and by force or threats of physical violence.

ANDERS BRIEF

Under the procedure adopted by this Court in State v. Bradford , supra , appointed appellate counsel has filed a brief asserting that she has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, pursuant to Anders v. California , supra , and State v. Jyles , supra , appointed counsel requests permission to withdraw as counsel of record for defendant.

In Anders , the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if she finds her 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 , 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 explanation of why the motions or objections lack merit. The 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 , 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 attorney to file a brief arguing the legal point(s) identified by the court, or grant the motion and appoint substitute appellate counsel. Id.

ANALYSIS

Defendant's appellate counsel asserts that after a detailed review of the record, she could find no non-frivolous issues to raise on appeal. Counsel asserts that defendant was informed of the forcible rape charge against him. She contends that the trial court advised defendant of his right to a jury trial, his right to confront his accusers, and his privilege against self-incrimination, and he acknowledged his understanding of these rights. She provides that defendant indicated his understanding of the sentencing range he faced and the terms of the plea agreement. Counsel notes that the State merely recited the bill of information when asked to provide a factual basis for the plea, but she points out that the preliminary hearing transcript included in the record contains additional evidence of defendant's guilt. She further mentions that defendant received a twenty-year sentence without benefits as the trial judge had previously apprised defendant during the colloquy and that defendant was advised of his obligation to register as a sex offender.

Appellate counsel has filed a motion to withdraw as counsel of record for defendant which states she has notified defendant of her motion. Additionally, this Court sent defendant a letter by certified mail informing him that an Anders brief had been filed on his behalf and that he had until September 14, 2017 to file a pro se supplemental brief. As of the date of the case's submission for decision, defendant had not filed a brief with this Court.

The State provides that defendant voluntarily and intelligently entered his plea of guilty and that his sentence should be upheld. Thus, the State agrees with appellate counsel's assertion that this case presents no non-frivolous issues for review and that her motion to withdraw should be granted.

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

The bill of information properly charged defendant and plainly and concisely stated the essential facts constituting the charged offense. It also sufficiently identified defendant and the crime charged. See La. C.Cr.P. arts. 464 - 466. As reflected by the minute entries and the commitment, defendant appeared at each stage of the proceedings against him. As such, defendant's presence does not present any issues supporting an appeal.

Further, defendant pled guilty to forcible rape, a violation of La. R.S. 14:42.1. If a defendant pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading to the guilty plea proceedings and 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. The record does not reflect that any rulings were preserved for appellate review under the holding in State v. Crosby , 338 So.2d 584 (La. 1976). Also, prior to defendant's guilty plea proceeding, the trial court found him competent to stand trial. Defendant's guilty plea waived his right to challenge his competency on appeal. See State v. Camp , 16-473 (La. App. 5 Cir. 3/15/17), 215 So.3d 969, 972 n.7.

The "best interest" or Alford plea is one in which the defendant pleads guilty while maintaining his innocence. State v. McCoil , 05-658 (La. App. 5 Cir. 2/27/06), 924 So.2d 1120, 1123. According to Alford , a defendant may plead guilty, without foregoing his protestations of innocence, if "the plea represents a voluntary and intelligent choice among the alternative courses of action open to defendant[,] ... especially where the defendant was represented by competent counsel whose advice was that the plea would be to the defendant's advantage." State v. Jones , 07-512 (La. App. 5 Cir. 12/27/07), 975 So.2d 21, 24-25, writ denied , 08-0325 (La. 9/26/08), 992 So.2d 982. Defendant pleaded guilty pursuant to Alford , supra , which requires the establishment of a factual basis for the plea when a defendant protests that he is innocent. When a defendant pleads guilty under Alford , constitutional due process requires that the record contain strong evidence of actual guilt. McCoil , 924 So.2d at 1122-23.

The State offered a factual basis for the plea, which the trial court found to be sufficient under Alford , supra . As mentioned, during the guilty plea proceeding, the State asserted that if the matter had proceeded to trial, it would have proved beyond a reasonable doubt that on or between September 13 and 14, 2014, in Jefferson Parish, defendant knowingly and intentionally violated La. R.S. 14:42.1 in that he had sexual intercourse with L.S. without her consent and with use of force, threats, or physical violence. We also find the State's factual basis to be sufficient. Further, the trial judge asked defendant whether he was withdrawing his plea of not guilty and pleading guilty because he was in fact guilty, to which defendant responded in the affirmative. Therefore, we find that the record demonstrates strong evidence of defendant's actual guilt as well as defendant's admission of his commission of the crime of forcible rape.

A review of the record reveals no irregularities in defendant's guilty plea. Once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief. A guilty plea is constitutionally infirm if it is not entered freely and voluntarily, if the Boykin 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. McCoil , 924 So.2d at 1124.

The record shows that defendant was aware he was pleading guilty to forcible rape in violation of La. R.S. 14:42.1. In the waiver of rights form and during the colloquy, defendant was advised of his right to a trial by judge or jury, his right to confrontation, and his privilege against self-incrimination, as required by Boykin . In the waiver of rights form, defendant placed his initials next to a provision indicating that his attorney had advised him of each of these rights and his waiver of those rights. Defendant signed his full name at the bottom of the waiver of rights form. In addition, during the colloquy, defendant verbally confirmed his understanding that he was waiving these rights by entering a guilty plea.

Also during the colloquy, defendant provided that he had a seventh grade level of education. He acknowledged that the act of pleading guilty must be free and voluntary and that no promises or threats were made to encourage him to enter his plea. He indicated that he understood the possible legal consequences of pleading guilty. He also stated that he was satisfied with the way his attorney had handled his case and had no questions for the trial judge. The trial judge also advised defendant that his guilty plea could be used to enhance a subsequent penalty. Defendant was further advised of his right to appellate review of an adverse verdict at trial and the right to the assistance of an attorney.

Further, defendant was correctly informed during the colloquy and in the waiver of rights form that he faced a sentencing range of five to forty years at hard labor for a conviction of forcible rape. The trial judge advised defendant that if he pleaded guilty, he would receive a sentence of twenty years at hard labor, and the waiver of rights form contains that defendant would receive a twenty-year sentence without the benefit of probation, parole, or suspension of sentence. Defendant subsequently received a sentence of twenty years at hard labor without benefits. The waiver of rights form provides that the trial court accepted defendant's plea as having been knowingly, intelligently, freely, and voluntarily made by defendant. This provision is contained directly above the signatures of defense counsel, defendant, and the trial judge, as well as the date of the guilty plea proceeding. Further, during the colloquy, the trial judge implicitly accepted defendant's plea to forcible rape.

Further, it is noted that the colloquy reflects that the trial court implicitly accepted defendant's guilty plea prior to advising defendant of the sex offender registration/notification requirements. La. R.S. 15:543(A) requires the trial court to "provide written notification to any person convicted of a sex offense and a criminal offense against a victim who is a minor of the registration requirements and the notification requirements of this Chapter." Notification must be given on the statutorily required form and "shall be included on any guilty plea forms and judgment and sentence forms provided to the defendant, and an entry shall be made in the court minutes stating that the written notification was provided to such offenders." Id.

Failure to advise a defendant of the requirements of registration and notification is a factor that may undercut the voluntary nature of a guilty plea. State v. Calhoun , 96-786 (La. 5/20/97), 694 So.2d 909. Upon review, this Court is required to consider the "totality of the circumstances" surrounding the plea to determine whether the guilty plea was freely, voluntarily, and knowingly made. State v. Blanchard , 00-1147 (La. 4/20/01), 786 So.2d 701, 704 ; State v. R.A.L. , 10-1475 (La. App. 3 Cir. 6/29/11), 69 So.3d 704, 708.

Here, the record reflects that defendant received notice of the sex offender registration requirements. After the acceptance of defendant's plea for forcible rape and the imposition of all defendant's sentences, the State asserted that in connection with defendant's conviction for forcible rape, the trial court was required to advise defendant of his obligation to register as a sex offender. The State further asserted that it "believe[d] Your Honor prepared a notification to Sex Offender of Registration obligations. Mr. Marenco has reviewed that with his attorney. He's executed that document. I'd ask that Your Honor sign that document as well in open court." The trial court then ordered defendant to notify and register as a sex offender, and the record reflects that the deputy provided defendant with a copy of the registration obligations in open court. The Notification to Sex Offender form contains both defendant and the trial judge's signatures and contains the date of March 25, 2015, the date of the guilty plea proceeding.

Therefore, we find that the record shows that defendant was aware of the notification/registration requirements despite the trial court's failure to advise him of the requirements during the plea colloquy. The State's comments indicate that prior to the entry of his plea, defendant executed the Notification to Sex Offender form and was advised of the notification/registration obligations by his attorney. Finally, defendant does not challenge his plea on the basis of the time he received notice of the sex offender registration requirements. Accordingly, under the totality of the circumstances of this particular case, we find that the trial court's failure to advise defendant of the sex offender registration and notification requirements before the taking of the plea did not affect its voluntariness and does not present an issue for appeal.

Last, defendant's sentence does not present an issue for appeal. His sentence falls within the sentencing range prescribed by statute. See La. R.S. 14:42.1. Furthermore, defendant's sentence was imposed pursuant to, and in conformity with, the plea agreement. 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. 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.

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

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. Weiland , 556 So.2d 175 (La. App. 5th Cir. 1990). The following matter requires corrective action.

The sentencing transcript reflects that defendant received a sentence of twenty years at hard labor without the benefit of probation, parole, or suspension of sentence. The statute requires that at least two years of the sentence be imposed without the benefit of probation, parole, or suspension of sentence. See La. R.S. 14:42.1(B). Thus, defendant was sentenced in accordance with the statute. However, neither the minute entry/commitment nor the Uniform Commitment Order reflects the trial court's restriction of the benefit of probation, parole, or suspension of sentence. Accordingly, we remand the matter and order that the minute entry/commitment and the Uniform Commitment Order be corrected to reflect the proper sentence handed down by the court. Further, the Clerk of Court for the 24th Judicial District Court is directed to transmit the original of the corrected commitment and Uniform Commitment Order to the appropriate authorities under La. C.Cr.P. art. 892(B)(2) and the Department of Corrections' legal department. See Long , 106 So.3d at 1142.

CONCLUSION

For the foregoing reasons, defendant's conviction and sentence are affirmed. Appellate counsel's motion to withdraw as counsel for defendant is granted. The matter is remanded for correction of the minute entry/commitment and the Uniform Commitment Order as noted herein.

AFFIRMED; MOTION TO WITHDRAW GRANTED; REMANDED FOR CORRECTION OF COMMITMENT

      Prior to the filing of the bill of information, on September 15, 2014, defendant filed an omnibus motion and order for pretrial motions, which only included a motion for a preliminary examination. The preliminary examination was conducted on October 1, 2014; probable cause was found to hold defendant on the subject charge.

      During the same proceeding, defendant pled guilty to the crime of cyberstalking in case number 13-5008, the crimes of simple burglary of an inhabited dwelling and possession of a firearm by a convicted felon in case number 14-1370, and the crime of possession of alprazolam in case number 14-5075. Defendant also stipulated to being a second felony offender on count one in case number 14-1370. All of defendant's sentences were ordered to run concurrently with each other.

      The trial court recommended defendant to participate in any available drug treatment, self-help programs, work release, and reentry programs.

      Here, defendant did not file a motion to reconsider his sentence. Thus, the delay for taking an appeal elapsed thirty days after the rendition of judgment on March 25, 2015. See La. C.Cr.P. art. 914(B)(1). Following the thirty-day delay from March 25, 2015, defendant's conviction and sentence became final. See State v. Counterman , 475 So.2d 336, 338 (La. 1985).
      After the time for appealing has elapsed, the conviction and sentence are no longer subject to review under the ordinary appellate process, unless the defendant obtains the reinstatement of his right to appeal. Id. The appropriate procedural vehicle for a defendant to exercise his right to appeal, after the delay provided by Article 914 has expired, is an application for post-conviction relief. Id. , 475 So.2d at 339. La. C.Cr.P. art. 930.8 provides time limitations for filing an application for post-conviction relief, including applications which seek an out-of-time appeal. Such applications shall not be considered if filed more than two years after the judgment of conviction and sentence has become final under the provisions of Article 914 or 922 (finality of judgment on appeal), unless certain exceptions apply. See La. C.Cr.P. art. 930.8(A). Therefore, defendant's Ex Parte Motion for Special Proceeding, postmarked on March 28, 2017, was timely filed within two years after the judgment of conviction and sentence became final.

      To observe the principle of protecting victims of sex offenses set forth in La. R.S. 46:1844(W)(3), the victim will be identified by initials only.

      Additionally, the record of this matter, which includes the preliminary examination transcript, contains strong evidence of defendant's guilt. At the preliminary examination, Detective David Ray testified that upon his arrival at the scene of a reported rape, he met with the victim who stated that she had been out with defendant, with whom she had been Facebook friends for a couple of months but only had recently met in person. Upon going back to a residence after a night out together, she was locked in the residence and forced by defendant to engage in various sexual acts without her consent. She stated that defendant told her if she did not cooperate, he would injure her and her family, and she believed him. According to the detective, the victim called 9-1-1 and placed the phone under the pillow in hopes that the police could trace the call. They could not, but a 9-1-1 call was logged in. The victim eventually left the residence after defendant fell asleep, whereupon she flagged down help.

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

      At the time of the offense, forcible rape was punishable by imprisonment at hard labor for not less than five years nor more than forty years, with at least two years of the sentence to be imposed without the benefit of probation, parole, or suspension of sentence. See La. R.S. 14:42.1(B).

      The trial judge never explicitly stated during the colloquy that defendant's guilty plea to forcible rape was accepted as freely and voluntarily made. However, the colloquy reflects that the trial court questioned defendant as to whether he understood all the possible legal consequences of pleading guilty and whether his rights had been fully explained to him. The trial court additionally asked defendant whether he had any further questions. Defendant acknowledged his understanding of the legal consequences and of his rights. He additionally denied having any questions. Following this exchange, defense counsel indicated that defendant "would like his plea, in this particular case, to be taken pursuit to Alford ." The trial court then stated: "All right. You waive all legal delays?" Therefore, we find that a review of the colloquy reflects an implicit acceptance of defendant's plea by the trial court.

      According to State v. Lynch , 441 So.2d 732, 734 (La. 1983), if "there is a discrepancy between the minutes and the transcript, the transcript must prevail." This Court has previously remanded a case for correction of the commitment and the Uniform Commitment Order in its errors patent review. See State v. Long , 12-184 (La. App. 5 Cir. 12/11/12), 106 So.3d 1136, 1142.


author: MURPHY, J.

text:
    SUCCESSION OF Charles Vincent TRIOLA
    NO. 17-CA-301
    Court of Appeal of Louisiana, Fifth Circuit.
    December 27, 2017
    COUNSEL FOR PLAINTIFF/APPELLEE, GARY VICTOR TRIOLA, Randolph P. Russell
    COUNSEL FOR DEFENDANT/APPELLANT, CHARLES TRIOLA, Ernest A. Burguieres, III
    Panel composed of Judges Susan M. Chehardy, Robert M. Murphy, and Stephen J. Windhorst
   MURPHY, J.

Plaintiff, Charles J. Triola ("Charles"), appeals the trial court's March 10, 2017 judgment granting an exception of prescription in favor of defendant, Gary V. Triola ("Gary"), dismissing, with prejudice, Charles' claims for an accounting and reimbursement or delivery of his alleged undivided interest in property that he inherited in the succession of his mother. Finding no error in the judgment below, we affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Charles and Gary are brothers. On September 15, 2011, their father, Charles V. Triola ("Decedent"), died testate leaving an olographic will and testament dated January 2, 2011, wherein he bequeathed his entire estate, including all bank accounts, home and contents, in full ownership, solely to Gary. The olographic will was presented for probate on March 2, 2012, and the trial court rendered a judgment of possession in favor of Gary.

Subsequently, on July 23, 2012, Charles filed the instant action seeking to annul the probated testament and to "recover un-reimbursed claims" against Decedent's succession. Specifically, Charles claimed he was entitled to "an accounting and the reimbursement or delivery of [his] one-quarter (1/4) interest in his mother's succession held in usufruct" by Decedent, which pertained to property Charles inherited from his mother in 1965, in the Succession of Margaret (Marguerite) Essie Doucet Triola .

In response to Charles' claims for an accounting and reimbursement or delivery of his interest in the property inherited from his mother, Gary filed an exception of prescription pursuant to La. C.C. art. 340, which provides that "[t]he action of the minor against his tutor, respecting the acts of tutorship, is prescribed by four years, to begin from the day of his majority." Gary argued that Charles' claims for an accounting and reimbursement or delivery prescribed on March 11, 1977, four years after Charles reached the age of majority, and thus his claims filed in 2012 came 35 years too late. Gary also argued that any claim Charles may have had against Decedent, or any of Decedent's "heirs, successors and assigns," for an accounting or for reimbursement or delivery of property arising out of Charles' mother's succession were released and forever discharged by virtue of a final receipt and release Charles executed in favor of Decedent on November 30, 1978.

Conversely, Charles argued that La. C.C. art. 340 was inapplicable because that codal provision deals with actions by a child against his tutor. Charles averred that he was not making a claim against his tutor, but rather, his claim was for "the return of his usufruct property" and, consequently, the law of usufruct applies. Similarly, Charles claimed that the 1978 receipt and release was irrelevant as it, too, dealt with tutorship issues and not with usufruct.

Gary's exception of prescription came for hearing on March 7, 2017. The trial court took the matter under advisement and, thereafter, on March 10, 2017, rendered judgment granting Gary's exception of prescription and dismissing, with prejudice, Charles' claims for an accounting and for reimbursement or delivery of property from the succession of his mother.

It is from this judgment that Charles timely filed the instant appeal.

ASSIGNMENT OF ERROR

On appeal, Charles avers that the trial court erred in granting the exception of prescription and thereby, in effect, dispossessing him of his interest in immovable property.

LAW AND ARGUMENT

An exception of prescription is a peremptory exception, which a defendant may raise at any time. La. C.C.P. art. 928(B). In reviewing a peremptory exception of prescription, the standard of review requires an appellate court to determine whether the trial court's findings of fact were manifestly erroneous. Herrera v. Gallegos , 14-935, pp. 12-13 (La. App. 5 Cir. 10/28/15), 178 So.3d 164, 169. An appellate court should not upset factual findings of a trial court absent manifest error or unless clearly wrong. Adams v. Grefer , 11-1157, p. 7 (La. App. 5 Cir. 9/11/12), 99 So.3d 1083, 1086. Although the factfinder is afforded deference, appellate courts have a duty to review the facts. State v. Lauricella Land Co., L.L.C. , 10-790, p. 11 (La. App. 5 Cir. 4/28/11), 65 So.3d 712, 718, citing State, Dept. of Transp. & Development v. Schwegmann Westside Expressway, Inc. , 95-261, pp. 8-9 (La. 3/1/96), 669 So.2d 1172, 1177.

In order for this court to determine whether the lower court manifestly erred in finding that Charles' claims against Decedent's succession for an accounting and reimbursement or delivery of his interest in property that he inherited from his mother's succession had prescribed, we find it necessary to recount the events and actions taken by Decedent for or on behalf of Charles and Gary following the death of their mother, Margaret. The following facts are gleaned from the record of the Succession of Margaret (Marguerite) Essie Doucet Triola , which record was admitted into evidence at the hearing on the exception of prescription.

1. Succession of Margaret (Marguerite) Essie Doucet Triola

Charles and Gary were the only children born of the marriage of Decedent and his first wife, Margaret. Margaret predeceased Decedent over 53 years ago, on April 26, 1964, when Charles and Gary were minors, aged nine and seven years old, respectively.

On May 11, 1965 , Decedent filed a petition, entitled "Succession of Margaret (Marguerite) Essie Doucet Triola," notifying the court that his wife had died, survived by himself and his two minor sons. In the petition, Decedent represented that Margaret died intestate, possessed of an undivided one-half interest in community property located in St. Bernard Parish and St. Tammany Parish. Recognizing that an inventory and appraisal of Charles and Gary's interest in his deceased wife's property was necessary, Decedent requested the court to issue an order that same be conducted. Decedent further petitioned the court that he be permitted to qualify as the natural tutor for his minor sons and requested the appointment of an undertutrix.

Following the court's appointment of a notary and two appraisers in both St. Bernard Parish and St. Tammany Parish, an inventory and appraisal of the minor boys' property was conducted on May 26, 1965, and certificates were issued and recorded, establishing a minor's mortgage in favor of the minor boys and against Decedent in both Parishes. The value of each minor child's interest in and to the property was established at $75.00 each for the property located in St. Tammany, and $5,400.00 each for the property situated in St. Bernard.

By judgment dated June 14, 1965 , Decedent was confirmed as the natural tutor for his minor sons; an undertutrix was also appointed. Oaths were filed and letters of tutorship were issued to Decedent and the undertutrix, Ruby Doucet Bairnsfather.

On that same day, June 14, 1965 , Decedent filed a petition, together with a sworn descriptive list and computation for inheritance tax purposes, seeking to be placed into possession of an undivided one-half interest of all the property belonging to the community, which existed between Decedent and Margaret, and to a usufruct of the remaining undivided one-half interest owned equally by his minor sons, Charles and Gary. A judgment of possession was signed that same date recognizing and decreeing Decedent to be the surviving spouse in community with Margaret and as the owner of an undivided one-half interest in and to the community property described in the judgment. Decedent was also recognized as the usufructuary of the remaining undivided one-half interest. The June 14, 1965 judgment of possession further recognized and decreed Charles and Gary as Margaret's sole heirs and, as such, placed them each into possession of their mother's undivided one-half interest in the community, subject to the usufruct in favor of their father, Decedent herein.

Also on June 14, 1965 , in his capacity as the "duly qualified natural tutor" of Charles and Gary, Decedent filed a petition seeking court approval to sell the real estate situated in St. Bernard Parish as described in the judgment of possession. The undertutrix concurred with the sale of the property. Thereafter, a judgment was issued authorizing Decedent, as the natural tutor of the minor boys, to sell the St. Bernard real estate in which Charles and Gary had an interest. In order to protect the minor's estate, the trial judge signed an order requiring Decedent to post an additional bond in the amount of $100.00.

On July 20, 1965, Decedent, in his capacity as the natural tutor of his minor sons, and with the concurrence of the undertutrix, petitioned the court to substitute a surety bond for the general mortgage recorded in St. Bernard Parish against Decedent in favor of the minors. Decedent's petition was granted and, accordingly, he posted a tutor's bond in the required amount of $10,900.00.

On June 5, 1965 , nine days prior to the trial court's signing of the June 14, 1965 judgments placing Decedent into possession of his first wife's succession and authorizing Decedent to sell the St. Bernard property, Decedent was remarried to Grace Margaret Kimball. Thus, even though the judgment of possession recognized Decedent as usufructuary of Charles and Gary's undivided one-half interest of their mother's share of the community-to which Decedent was entitled on the day he opened his first wife's succession on May 11, 1965 -pursuant to La. C.C. art. 890, Decedent's legal usufruct had actually terminated by operation of law prior to his being recognized as usufructuary. La. C.C. art. 890 provides:

If the deceased spouse is survived by descendants, the surviving spouse shall have a usufruct over the decedent's share of the community property to the extent that the decedent has not disposed of it by testament. This usufruct terminates when the surviving spouse dies or remarries , whichever occurs first. [Emphasis added.]

Accordingly, upon Decedent's remarriage on June 5, 1965, his usufructuary interest in his deceased wife's share of the community property terminated. Consequently, at the time of the remarriage, Charles and Gary became vested with full ownership of their mother's undivided one-half interest in the property formerly held in community with Decedent. No longer burdened with Decedent's legal usufruct, when placed into possession, Charles and Gary actually became perfect owners of a one-quarter share interest each in their deceased mother's share of the community, with Decedent owning the other one-half of the property. Thus, although the judgment of possession signed on June 14, 1965 recognized Charles and Gary as owners of an undivided one-half interest "subject to the usufruct of their father," we find this bore no legal consequence, since by operation of law, Decedent's usufruct had already been terminated by his remarriage. See La. C.C. art. 890. Moreover, following his remarriage, any remaining authority vested in Decedent with respect to Charles and Gary's full ownership interest in the property they each inherited from their mother was as the minor boys' natural tutor.

On July 23, 1965, one month after obtaining authorization as the minors' tutor to sell the St. Bernard property in which Charles and Gary each had a one-quarter interest in full ownership, Decedent purchased real estate located at 1304 Kent Avenue in Jefferson Parish. The Kent Avenue property was acquired by Decedent jointly with his second wife, Grace Margaret Kimball.

On November 30, 1978, over thirteen years after acquiring full ownership and after having reached the age of majority, Charles and Gary executed a final receipt and release of tutor in favor of Decedent relative to their respective undivided interests in and to the property they each inherited from their deceased mother. The receipt and release stated the following, in pertinent part:

PERSONALLY CAME AND APPEARED: CHARLES JOSEPH TRIOLA and GARY VICTOR TRIOLA, who declared and acknowledged that CHARLES VINCENT TRIOLA, their tutor, appointed and qualified in the said capacity, has rendered unto them a full and detailed account of his administration as appearers' tutor, with all proper and necessary vouchers in support of and accompanying said accounts; that they have carefully examined said accounts and vouchers during more than ten days prior to these presents; that they con sider and are fully satisfied that the said accounts are just, true and correct , and they approve the said accounts as well as administration, accounts and acts of the said CHARLES VINCENT TRIOLA as their tutor.
And the said CHARLES JOSEPH TRIOLA, whose birthday is March 11, 1955 and GARY VICTOR TRIOLA, whose birthday is January 22, 1957, both persons of the full age of majority , does hereby acknowledge to have presently received from CHARLES VINCENT TRIOLA, as tutor has in his possession or custody for the said appearers .
And the said CHARLES JOSEPH TRIOLA and GARY VICTOR TRIOLA, further declares and acknowledges that all other property, securities, effects and cash which the said tutor received for account of said appearers have been duly accounted for by him in said account to the full satisfaction of appearers , and do by these presents release and discharge and forever aquit [sic] CHARLES VINCENT TRIOLA, his heirs, successors and assigns of and from any and all liability of any nature and kind, including any claims and damages resulting from his administration as tutor . [Emphasis added.]

Additionally, Charles and Gary authorized and directed the recorder of mortgages in and for the Parishes of St. Bernard and St. Tammany to cancel and erase the minor's mortgage therein recorded. Thereafter, on December 19, 1978, a final order was issued directing the clerk of court for the Parish of St. Bernard to cancel and erase the minor's mortgage from its records, and to forward a copy of the motion and order to the clerk of court for the Parish of St. Tammany to have the minor's mortgage in that Parish likewise canceled and erased.

2. Succession of Decedent and Prescription of Charles' Claims

As previously noted, in the case sub judice , Charles sought an accounting and reimbursement or delivery of property he inherited from his mother's succession that Charles contended was being held in usufruct by his father until his father's death in 2011. At some point after filing the instant suit, however, Charles claimed he discovered his father's marriage license evidencing Decedent's remarriage to Grace Kimball, which Charles claimed "created an impression of usufruct." According to Charles, "[t]his usufruct was obtained by withholding the fact of the June 2, 1965 remarriage" when Decedent petitioned the court to sell the St. Bernard property. Further, Charles argued that, because his father's usufruct ended upon his remarriage, Decedent "had no right to request the use of the usufruct sale proceeds from the [St. Bernard property] to invest in the 1304 Kent Ave. house." For the first time on appeal, Charles contends that Decedent's actions in withholding the truth of his remarriage when he petitioned the court for authority to sell the usufruct property amounted to fraud pursuant to La. C.C. art. 1953, which states:

Fraud is a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other. Fraud may also result from silence or inaction.

Without citing to any authority, Charles contends that this fraud committed by his father was sufficient to interrupt prescription for the claims he has made in the instant case. Alternatively, Charles urges that the doctrine of contra non valentem should be applied for purposes of interrupting the prescription of his claims. Specifically, Charles avers that "if [Decedent] had told the truth in 1965[,] he would not have been able to use the usufruct property." In short, Charles claims that he was only 10 years old when his father remarried and that he "would have had no way of knowing that the timing of the remarriage of his father had any consequences on [his] inheritance from his mother[,]" and it would be "improper [for the court] to impose a prescriptive period on an issue in which he could not have expected to know the significance of as a ten (10) year old child; [i.e. ,] of improper use of his property under the doctrine of usufruct."

The fatal flaw negating Charles' arguments regarding the applicability of fraud and/or the doctrine of contra non valentem is that the record on appeal, specifically the record of the Succession of Margaret (Marguerite) Essie Doucet Triola as set forth in detail above, clearly demonstrates that all of the actions undertaken by Decedent in connection with the sale of the St. Bernard property were done solely in his capacity as the natural tutor of Charles and Gary, not in his capacity as usufruc turary as Charles posits. Moreover, the record establishes that the actions taken by Decedent on behalf of his minor sons were done with the concurrence of the undertutrix and with the approval of the court, all in accordance with the applicable provisions of the Louisiana Code of Civil Procedure and the Louisiana Civil Code. Thus, Charles' argument that La. C.C. art. 340 is not applicable to his claims because the instant action is not an action of a minor against the tutor, but rather, involves the law of usufruct, is without merit. The facts unequivocally demonstrate that Decedent's usufruct terminated prior to his having taken any action with respect to Charles' ownership interest in the property he inherited from his mother. The law of usufruct does not apply to the claims asserted by Charles against Decedent's succession; the facts fall squarely within the application of La. C.C. art. 340, a tutorship article.

The tutorship of a minor normally ends but in one way-the attainment of majority. Succession of Jarreau , 289 So.2d 887, 890 (La. App. 4 Cir. 1974). Louisiana Civil Code article 340 extends the right of the former minor to an examination into the acts of tutorship for four years beyond majority. A prerequisite for any claim by the former minor is an action against the tutor for an accounting. No absolute duty is imposed upon the tutor to file a final account after the expiration of the tutorship. A tutor must do so only after an order of court upon the application of the former minor. See La. C.C.P. art. 4392. This action for an accounting is barred after four years from the date the minor reaches majority. Succession of Jarreau , 289 So.2d at 890.

Applying these legal principles to the case sub judice , any claim Charles may have had against Decedent for an accounting and/or reimbursement or delivery of property Charles inherited from his mother, or other acts of Decedent's tutorship, were required to have been asserted within the prescriptive period of La. C.C. art. 340 and no later. Id. In this case, the claims asserted by Charles prescribed on March 11, 1977, four years after he reached the age of majority on March 11, 1973. Moreover, as evidenced by the final receipt and release of tutor, which Charles executed in November 1978 when he was 23 years old (after his rights to an accounting and/or reimbursement from Decedent had prescribed the previous year), the bond and minor's mortgage that had been put into place to protect Charles' interest was released.

For the foregoing reasons and finding no manifest error, the judgment of the trial court granting the exception of prescription in favor of defendant, Gary V. Triola, and dismissing, with prejudice, the claims of plaintiff, Charles J. Triola, for an accounting and reimbursement or delivery of property inherited from his mother's succession is affirmed.

AFFIRMED.

      The March 10, 2017 judgment also (1) granted a motion for partial summary judgment in favor of Gary and against Charles declaring the January 2, 2011 olographic testament of Charles V. Triola to be in valid form, (2) denied Gary's motion for costs and attorney fees, and (3) ordered that Gary's exception of res judicata was moot. Charles has only appealed that portion of the trial court's judgment granting Gary's exception of prescription.

      Proceedings No. 11-531, Twenty-Fifth Judicial District Court, Parish of St. Bernard.

      An inventory and appraisal of a minor's property are required by La. C.C.P. art. 4101, and the appointment of a notary and two appraisers is specifically required by La. C.C.P. arts. 3131 and 3132. See Griffith v. Roy , 263 La. 712, 731, 269 So.2d 217, 224 (La. 1972).

      At the time of these proceedings, La. C.C.P. art. 4131 (now La. C.C.P. art. 4134 ) provided that the natural tutor was not required to furnish bond, but was obliged to record the certificate of inventory required by La. C.C.P. art. 4101 when one applied for the appointment as tutor, which operated as a legal mortgage in favor of the minor. Griffith v. Roy , 263 La. at 731-732, 269 So.2d at 224.

      La. C.C.P. art. 4201 requires the appointment of an undertutor by the court at the time it renders judgment appointing a tutor.

      La. C.C.P. art. 4171 requires that every tutor take an oath before he enters upon his performance of his official duties, and the natural tutor include within his oath a list of the parishes in which he owns immovable property. See also La. C.C.P. art. 4172.

      Pursuant to La. C.C.P. Art. 4301, "[a] tutor may sell or exchange any interest of a minor in property, owned either in its entirety or in indivision, for any purpose, when authorized by the court as provided in Article 4271." La. C.C.P. Art. 4271 states:
      The tutor shall file a petition setting forth the subject matter to be determined affecting the minor's interest, with his recommendations and the reasons therefor, and with a written concurrence by the undertutor. If the court approves the recommendations, it shall render a judgment of homologation. The court may require evidence prior to approving the recommendations.
      If the undertutor fails to concur in the tutor's recommendations, the tutor shall proceed by contradictory motion against him. After such hearing and evidence as the court may require, the court shall decide the issues summarily and render judgment.
      Additionally, La. C.C.P. art. 4341 provides:
      In addition to the requirement of Article 4271, a petition for authority to sell property of a minor at private sale shall set forth a description of the property, the price and the conditions of the proposed sale, and the reasons which make it advantageous to the minor to sell at private sale.

      The St. Bernard Property at issue was the family home. According to the inventory and appraisal prepared by the notary and two appraisers appointed by the court to conduct an inventory and appraisal of the community property, the family home was valued at $20,000.00. The judgment authorizing Decedent to sell the property, in which his sons each had an ownership interest, directed him to sell it to the designated buyers for the appraised price of $20,000.00. According to the petition, in his capacity as tutor for his minor sons , Decedent sought the court's authority to sell the St. Bernard property in order to "procur[e] real estate of greater value that [would] enhance the interest of the minors."

      Pursuant to La. C.C.P. art. 4304, "[b]efore authorizing the sale of a minor's immovable property, the court may require the tutor to furnish additional security in an amount to be fixed by the court."

      La. C.C.P. Art. 4136 states:
      Any tutor who desires to give bond or security and thus release from an existing general or special mortgage the whole or a portion of the property covered thereby may do so with the approval of the court as provided in Article 4271, provided the bond or security tendered fully protects the minor.
      Any of the securities enumerated in Articles 4132 and 4133 may be substituted at any time either in whole or in part for any other kind, at the option of the tutor, and with the approval of the court as provided in Article 4271, which shall enter the necessary order to render the substitutions effective. If other security has been furnished instead of a general mortgage, the tutor may not revert to a general mortgage.
      When a bond or security is substituted only in part for the general or special mortgage, the amount thereof may be proportionately smaller based on the value of the property to be released from mortgage.

      Based on the appraisal and subsequent sale of the St. Bernard property for $20,000.00, Charles and Gary's one-quarter interest from the proceeds of the sale was valued at $5,000.00 each.

      According to the record on appeal, Grace Margaret Kimball predeceased Decedent and her undivided one-half interest in the Kent Avenue property was acquired by Decedent through a judgment of possession rendered on March 21, 2006.

      Charles turned 18 years old on March 11, 1973. During the previous year, in 1972, the Louisiana legislature reduced the age of majority from 21 years of age to 18 years of age. See La. C.C. art. 39 (formerly La. C.C. art. 37, which provided that "[m]inors are those who have not attained the age of 18 years.") Thus, Charles reached the age of majority on March 11, 1973; Gary reached the age of majority on January 22, 1975.

      La. C.C. art. 339 states:
      Every agreement which may take place between the tutor and the minor arrived at the age of majority, shall be null and void, unless the same was entered into after the rendering of a full account and delivery of the vouchers, the whole being made to appear by the receipt of the person to whom the account was rendered, ten days previous to the agreement.
      As evidenced by a review of the express terms set forth in the receipt and release Charles executed when he was of the full age of majority, the receipt complied with the requirements of La. C.C. art. 339.

      Charles' petition filed in his father's succession also sought to annul the probated olographic testament of his father, which issue is not before this court on appeal.

      The parties presumed that the proceeds from the sale of the St. Bernard property (i.e. , immovable property was converted to moveable corporeal goods (cash)), were used to purchase the Kent Avenue property, which is currently a part of Decedent's succession. Citing La. C.C. art. 568.1, Charles argued that when the St. Bernard property, which was "subject to the usufruct," was sold by Decedent, the usufruct attached to the proceeds of the sale. Thus, Charles averred that when the sale proceeds were then used to purchase the Kent Avenue property, he became vested with a one-quarter interest in Decedent's undivided one-half interest in that property. Put another way, Charles argued that his one-quarter interest in the St. Bernard property "which was acquired from his mother's estate became a 12.5% interest in [the] 1304 Kent Ave[nue]" property." It was this purported property interest for which Charles filed suit seeking an accounting and reimbursement or delivery from Decedent's succession.

      The doctrine of contra non valentem was created as an exception to the general rules of prescription. Standard Fire Ins. Co. v. Safeguard Storage Properties, L.L.C., 04-794, pp. 11-12 (La. App. 5 Cir. 1/25/05), 894 So.2d 502, 506-07. There are four situations in which the doctrine of contra non valentem can be applied to suspend the running of prescription:
      (1) where there was some legal cause which prevented courts or their officers from taking cognizance of or acting on plaintiff's action;
      (2) where there was some condition coupled with contract or connected with proceedings which prevented creditor from suing or acting;
      (3) where defendant himself has done some act effectually to prevent plaintiff from availing himself of his cause of action; and
      (4) where some cause of action is not known or reasonably knowable by plaintiff, even though his ignorance is not induced by defendant.
      Richards v. Choice Hotels Int'l, Inc. , 13-973, p. 6 (La. App. 5 Cir. 5/21/14), 142 So.3d 249, 252.

      La. C.C.P. Art. 4391 :
      A tutor shall file an account annually, reckoning from the day of his appointment, and at any other time when ordered by the court on its own motion or on the application of any interested person.

      La. C.C.P. Art. 4392 :
      A tutor may file a final account at any time after expiration of the tutorship.
      The court shall order the filing of a final account upon the application of the former minor after the expiration of the tutorship, or upon the rendition of a judgment ordering the removal of a tutor or authorizing his resignation.