text:
    A CARING HOME CARE SERVICES, LLC v. Richard DE LA HOUSSAYE, et al.
    17-31
    Court of Appeal of Louisiana, Third Circuit.
    07/05/2017

      Lucretia Pecantte, Lucretia Pecantte & Associates, LLC, Post Office Box 9010, New Iberia, Louisiana 70562-9010, (337) 374-1202, Counsel for Plaintiff/Appellant: A Caring Home Care Services, LLC
    Kay Pitman Clark, Attorney at Law, 715 North Lewis Street, Suite A, New Iberia, Louisiana 70563, (337) 376-6900, Counsel for Defendant/Appellee: Janis d'é la Hous-saye, individually and as executrix of the Succession of Richard de la Houssaye
    Court composed of Elizabeth A. Pickett, Phyllis M. Keaty, and D. Kent Savoie, Judges.
   KEATY, Judge.

|! Plaintiff/Appellant, A Caring Home Care Services, LLC, appeals the trial court’s judgment in favor of Defendant/Ap-pellee, Janis de la Houssaye, individually and as executrix of the Succession of Richard de la Houssaye. For the following reasons, the trial court’s judgment is affirmed.

FACTS AND PROCEDURAL BACKGROUND

In this breach of contract matter, Janis signed an Employment Contractual Agreement with Caring Home on October 30, 2013, for home health care services for her husband, Richard, who suffered from early onset Alzheimer’s disease. Omar W. D. Pecantte, the Chief Executive Officer (CEO) of Caring Home, signed on its behalf. The contract obligated Caring Home “to provide basic independent living services” for “a minimum of 15 hours per week.” Janis was obligated to “guarantee this contractual agreement for 36 months” and was “responsible for the full price of the contract in- the event ... [she] terminate[d] the agency’s services for any reason.” The contract was to “begin on October 24, 2013[,] and end on October 24, 2016.” On September 3, 2014, Janis advised Caring Home that she no longer wanted its services. In October 2014,-Janis attempted to resume services; however, Caring Home did not respond to her attorney’s request until December 15, 2014, at which time Janis had already secured other care for Richard. Richard passed away on March 23, 2016, and Janis was appointed as executrix of his succession.

laOn February 19, 2015, Caring Home filed a Petition for Monies Due for Breach of Contract against the de la Houssayes. On March 9, 2015, the de la Houssayes filed their answer and reconventional demand. On January 11, 2016, Caring Home filed its answer to the de la Houssayes’ reconventional demand. Following trial on September 20, 2016, the trial court ruled in favor of Janis and orally issued its reasons for judgment. The trial court’s written judgment was signed on September 23, 2016, Caring Home appealed the trial court’s judgment;

On appeal and in its sole assignment of error, Caring Home contends the trial court erred by dismissing all of its claims against the de la Houssayes. Janis has not filed an appellate brief in this matter.

STANDARD OF REVIEW

In Menard v. Stroy, 16-609, p. 3 (La. App. 3 Cir. 12/21/16), 210 So.3d 302, 304-05, this court discussed the applicable standard of review as follows:

“Factual findings of a trial court are reviewed under the manifest error-clearly wrong standard of review.” Thibodeaux v. Comeaux, 11-127, p. 5 (La.App. 3 Cir. 6/15/11), 69 So.3d 674, 679 (citing Fontenot v. Patterson Ins., 09-669 (La. 10/20/09), 23 So.3d 259). An appellate court may not disturb a finding of fact unless the record establishes that a factual, reasonable basis does not exist and the finding is clearly wrong or manifestly erroneous. Id.

DISCUSSION

Caring Home contends the trial court erred by dismissing its breach of contract claim. “In order to succeed on a breach of contract claim, the plaintiff must prove the existence of the contract, a breach of the obligations therein, and damages.” Ledet v. Campo, 12-1193, p. 7 (La. App. 3 Cir. 3/6/13), 128 So.3d 1034, 1039. A party to a contract breaches it by (1) undertaking an obligation to perform; (2) failing to perform that obligation; and (3) the party entitled to performance | .-¡suffers damages from the failure to perform. Sanga v. Perdomo, 14-609 (La.App. 5 Cir. 12/30/14), 167 So.3d 818, writ denied, 15-222 (La. 6/19/15), 172 So.3d 650. “A failure to perform results from nonperformance, defective performance, or delay in performance.” La.Civ.Code art. 1994. “In case of doubt that cannot be otherwise resolved, a provision in a contract must be interpreted against the party who furnished its text.” La.Civ.Code art. 2056.

In the trial court’s reasons for judgment, it found that Omar wrote the contract and “if there’s any doubt, it should be construed against him.” It noted the contract failed to define what constituted termination of services. The trial court explained that “[n]o one has a right to terminate those services, not stated in [the] contract. They’re both obligated to perform them, unless the parties agree amongst them that the obligation no longer exists or unless it’s breached.” The trial court found a breach occurred “by the actions or inactions of the attendants and employees of [Caring Home], regardless of whether or not that was reported to the employer, [Caring Home].” It explained that Caring Home “relied upon its employees to perform the services. When the employees don’t perform the services, it’s breached, regardless if the employer knows about it or not.”

The trial court’s judgment was based upon the evidence and testimony at trial. At trial, Caring Home presented witness testimony and submitted into evidence the contract, log sheets, time sheets, and employee pay checks. A review of the log sheets and time sheets reveal Caring Home’s employees often failed to meet the fifteen-hour minimum required by the contract. For example, Callie Parkerson worked thirteen hours during the week ending on November 11, 2013, and fourteen and one-half hours during the week ending on November 30, 2013. Callie and another Caring Home employee, Dwryne Guillory, worked a total of | ¿twelve and one-half hours during the week ending on April 5, 2014. Joanne Washington, another employee, worked fourteen hours during the week ending on December 14, 2013, and fourteen and one-half hours during the week ending on January 4, 2014. Darcian-na Narcisse, another Caring Home employee, worked thirteen and one-half hours during the week ending on February 1, 2014, and fourteen hours during the week ending on March 13, 2014. The log sheets and time sheets contain no explanation as to why those employees failed to meet the fifteen-hour minimum.

Neither could Caring Home’s CEO, Omar, explain this discrepancy at trial. Omar, who testified on Caring Home’s behalf, acknowledged drafting and executing the contract with the de la Houssayes. Omar explained that log sheets and time sheets are documents signed by the client at the end of every week to authenticate that services were performed. Omar testified that concerns or complaints regarding services rendered are to be transmitted to Caring Home by the client, in writing, on the log sheets and/or time sheets. Omar noted the log sheets and time sheets executed by Janis contained no written complaints. Omar testified that Janis never orally voiced any concerns or complaints to him. Neither did Janis voice her concerns to Lillian Jacobs, a Caring Home supervisor who testified at trial on its behalf. Omar further revealed that on September 3, 2014, Janis went to his office, turned in a binder, and, without offering any explanation, said she no longer wanted Caring Home’s services. According to Omar’s testimony, Caring Home thereafter sent her a demand letter for the outstanding balance pursuant to the contract.

1 fiOmar agreed that Janis’ attorney contacted his attorney approximately one month after Janis turned in the binder and requested Caring Home continue services pursuant to the contract. Omar stated the only caveat was that the de la Houssayes did not “want to pay for the time in which it stopped to the time in which they were willing to restart it.” Omar noted that agreeing to forego payments would unlawfully alter the terms of the contract. Omar acknowledged his attorney responded to the request on December 15, 2014. Janis, who testified at trial on behalf of the defense, acknowledged Caring Home’s response was delayed a “long time,” and she had retained other care for Richard by December 15, 2014. Janis revealed Richard was ultimately placed under Hospice’s care until he passed away on March 23, 2016.

On cross-examination, Omar agreed the contract was signed on October 30, 2013, although it stated services were to begin on October 24, 2013. According to Omar’s testimony, services did not begin until November 11, 2013, when Callie presented to the de la Houssaye’s residence. At trial, Janis was unable to explain the delay in the rendering of initial services under the contract. Omar also identified other Caring Home employees who assisted Richard, including: Doreen Guillory, Christy Marshall, Darcianna Narcisse, and Joanne Washington.

Callie, who testified on Caring Home’s behalf, stated Janis was satisfied with her treatment of Richard. When asked whether Janis discussed the contract with her, Callie responded: “Maybe one time, she had maybe said something about she didn’t realize that the contract ... was for that long and that, due to finances, that she didn’t think she would be able to keep it for that long.” On cross-examination, Callie admitted she logged less than fifteen hours per week on days when Janis remained home or returned home from work early. Callie’s | ^testimony reveals on those days, Janis told her that she could care' for Richard without Callie’s assistance. Callie testified that “once or twice” when Janis had sent her home Callie “would call the office and let them know[.]” Callie revealed that, “[i]f it was less time than our schedule required, we had to call the office and let them know that she didn’t need me to stay the full schedule, that I’m going home. And they would tell me okay.”

Taylor de la Houssaye, Janis and Richard’s daughter, was presented as a defense witness at trial. Taylor testified she was attending college in another state when Richard became ill, and, thereafter, she transferred to a local college to help care for him. Taylor explained that when she was at her parents’ home, she noticed Caring Home’s employees were often on their phones rather than providing attention to Richard. Taylor testified that Caring Home’s employees failed to show up “at least once every two weeks,” which forced her to miss school or Janis to miss work in order to care for Richard. Taylor acknowledged that she never reported the absences to Caring Home because she was not privy to the contract at issue.

Taylor testified regarding an attendant named Dee, with the last name of either Guillory or Narcisse. While there is no other evidence or .testimony in the record identifying a Caring Home employee named Dee, the log sheets and Omar’s testimony indicate that Doreen Guillory and Darcianna Narcisse were Caring Home’s employees who rendered care to Richard. In that regard, Taylor indicated Dee would bring her children.to work with her. Taylor’s testimony is confirmed by Janis’ testimony that a certain employee,' who was also a young mother, brought her children to work. Janis revealed that she was uncomfortable with the situation although she did not complain because the young mother, showed up ■ for work. 17Omar’s testimony indicates that employees are prohibited from bringing their children to work with them.

Taylor testified that Dee also used her laptop to take online courses. At trial, Omar noted such activity was prohibited. Taylor revealed she subsequently confronted Dee, who admitted to using it, apologized, and said it would not happen again. Janis’ testimony indicates she also confronted an employee who used Taylor’s computer. Taylor revealed that after Caring Home’s services stopped, she and Janis took turns -caring for Richard until they obtained assistance from another home health ageney. According to Taylor’s testimony, Hospice ultimately cared for Richard until he passed away.

At trial, Janis revealed Caring Home’s employees ran late or left early at least once a week. Janis testified the .employees “used-their phones a lot.” Janis revealed one occasion wherein she gave an employee permission to drive Richard to get a snowball. Janis later found out.that during their outing, the employee also picked up her children from school. Omar testified that employees are prohibited from running personal errands while working. Janis-explained she never contacted Caring Home with concerns or complaints because she did not “want to do anything that would upset the assistant^.” Janis wanted to know that .Richard was receiving the best care when she was not home. Janis said she did not want to sound confrontational and that she needed their help because she was “beyond stressed, of having to care for so many people and-trying to stay out of debt,” On the other hand, Omar said he would not have retaliated against Janis by . providing substandard care to Richard if she would have-complained.

Janis revealed another occasion wherein Dee failed to show up to care for Richard following his dental surgery. Janis reported Dee’s absence to Caring |RHome, who was unable to advise her as to Dee’s whereabouts, Janis noted that a few days later, Caring Home sent another émploy-ee, Christy, to their house. After their initial meeting, Janis stated that Christy missed work. At that, point, according to Janis’ testimony, she put Richard into the car, drove to Caring Home’s office, dropped off the binder, and ended its services.

Katherine Speckman, Janis’ sister, was the defense’s final witness. Katherine testified that she learned from Janis, during telephone conversations, that Caring Home’s employees often failed to show up for work. According to Katherine’s testimony, this failure caused chaos for Janis because she would have to miss work. Katherine experienced this chaos firsthand while visiting Janis at her home when a Caring Home employee failed to show up. Katherine explained that she watched Richard for one week in 2014 because Janis could not get anybody else. Katherine indicated Caring Home constantly sent new employees, which caused Richard stress. According to her testimony, Katherine attempted to alleviate Richard’s stress by remaining with him when new employees began assisting Richard.

The above testimony and evidence indicates Caring Home undertook the obligation to provide home health services to Richard. Pursuant to the terms and conditions of the contract, Richard was guaranteed at least fifteen hours of care per week. The log sheets, time sheets, and witness testimony reveal that Caring Home failed to perform that obligation when numerous employees failed to log fifteen hours of work. The evidence and testimony shows that Caring Home’s failure to perform, or its defective performance, caused Janis to sustain damages, which included missing work, spending money on other home health services, and experiencing increased stress. The trial court, therefore, was not manifestly 1erroneous in finding that Caring Home breached the contract, and this assignment of error is without merit.

DECREE

The trial court’s judgment in favor of Defendant/Appellee, Janis de la Houssaye, individually and as executrix of the Succession of Richard de la Houssaye, is affirmed. All costs of this appeal are assessed to ■ Plaintiff/Appellant, A Caring Home Care Services, LLC.

AFFIRMED.

      .The captioned-matter, Plaintiff/Appellant's brief, and the record provide multiple ways to spell the Defendants'/Appellees’ last name. For clarity, we will spell their last name as “de la Houssaye" as noted in Defendants’/Ap-pellees’ answer.

      . Janis signed the contract in her capacity as Richard’s authorized representative.

      . Richard died prior to trial.

      . .Omar testified that anything written by a client would be in the binder. Janis testified that it also contained time sheets.


source: Caselaw Access Project

author: SAVOIE, Judge.

license: Public Domain

text:
    Christopher G. BRADFORD v. AVOYELLES PARISH SHERIFF DEPT., et al.
    16-831
    Court of Appeal of Louisiana, Third Circuit.
    07/05/2017

      H. Bradford Calvit, Provosty, Sadler & deLaunay, APC, P. 0. Drawer 1791, Alexandria, LA 71309-1791, (318) 767-3133, COUNSEL FOR DEFENDANTS/AP-PELLEES: Avoyelles Parish Sheriff Department, Doug Anderson, Sheriff of Avo-yelles Parish, Deputy Ernest Rabalais, Deputy Darren Bordelon, Deputy Cynthia Manuel
    Derrick M. Whittington, Whittington Law Firm, P. 0. Box 127, Marksville, LA 71351, (318) 253-5852, COUNSEL FOR DEFENDANT/APPELLEE: City of Marksville
    Christopher G. Bradford, 595 Legion Drive, Marksville, LA 71351, (318) 264-2644, IN PROPER PERSON: Christopher G. Bradford
    Court composed of Marc T. Amy, D. Kent Savoie, and Van H. Kyzar, Judges.
   SAVOIE, Judge.

|, Christopher G. Bradford appeals two judgments of the trial court, granting the Exceptions of No Cause of Action and Prescription filed by the defendants and dismissing Bradford’s claims. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Christopher G. Bradford filed a Suit for Money Owed in the trial court on May 5, 2016, naming “(APSO) Avoyelles Parish Sheriff Department, Officers, ET AL” as defendants. In the petition, he alleged that he was arrested by the Avoyelles Parish Sheriff Department on August 2, 2013, and was later released to the “Marksville Sheriff Department.” He alleges that while he was in the transportation van, he had a seizure and was refused medical treatment. He requested one hundred thousand dollars ($100,000.00) in damages for “refusal of medical Attention, definition [sic] of Character, [and] attempted manslaughter.” In his prayer he cited “Doug Anderson Sheriff Department (APSO)Marksville, LA” to appear, and he later requested that Avoyelles Parish Deputies Ernest Raba-lais, Darren Barlone, and Cathina Manuel be served with the petition.

In response, the City of Marksville filed a Peremptory Exception of No Cause of Action and Prescription, which was set for hearing on June 20, 2016. The exceptions were orally granted, with Bradford appearing in proper person. Judgment was signed on July 5, 2016. This is one of the judgments that Bradford now appeals.

Doug Anderson, Sheriff of Avoyelles Parish, and the Avoyelles Parish Sheriff Department also filed Peremptory Exceptions of No Cause of Action and Prescription. In addition, a Peremptory Exception of Prescription was filed by Deputies Ernest Rabalais, Darren Bordelon and Cynthia Manuel. These were set 12for hearing on June 27, 2016. After allowing Bradford thirty days to obtain counsel, the trial court rendered judgment on August 2, 2016, granting the exceptions. Bradford now appeals this judgment, as well.

The Avoyelles Parish Sheriff Department, Sheriff Doug Anderson, and Deputies Ernest Rabalais, Darren Bordelon, and Cynthia Manuel filed a Motion and Order to Strike in this court, requesting this court enter an order striking the documents attached to Bradford’s Appellant Brief, Notice of Appeal and Suit for Money Owed.

DISCUSSION

I. Motion to Strike

We must first address the defendants’ motion to strike the documents attached to Bradford’s Appellant Brief, Notice of Appeal and Suit for Money Owed. Defendants complain that the documents were not introduced into evidence at the hearing on the exceptions, and, therefore, should not be considered by this court. We agree that these documents should not be considered.

This court in Chavers v. Bright Truck Leasing, 06-1011, pp. 2-3 (La.App. 3 Cir. 12/6/06), 945 So.2d 838, 841, writ denied, 07-304 (La. 4/5/07), 954 So.2d 141 (alteration in original), addressed this issue finding:

Pursuant to La. [Code Civ.]P. art. 2164, an appellate court must render its judgment upon the record on appeal. The record on appeal is that which is sent by the trial court to the appellate court and includes the pleadings, court minutes, transcript, jury instructions, judgments and other rulings, unless otherwise designated. La.[Code Civ.]P. arts. 2127 and 2128; Official Revision Comment (d) for La.[Code Civ.]P. art. 2127. An appellate court cannot review evidence that is not in the record on appeal and cannot receive new evidence. Davis v. Anderson, 451 So.2d 1302 (La.App. 1st Cir.1984). Tranum v. Hebert, 581 So.2d 1023, 1026 (La.App. 1 Cir.1991), writ denied, 584 So.2d 1169 (La.1991). Additionally, “[t]he appellate briefs of the parties are not part of the record on appeal, and this court has no authority to consider on appeal facts referred to in appellate briefs, or in exhibits attached thereto, if those facts are not in the record on appeal.” Id. at 1027 (citing Capital Drilling Co. v. Graves, 496 So.2d 487 (La. App. 1 Cir.1986); Fred H. Moran Constr. Corp. v. Elnaggar, 441 So.2d 260 (La.App. 1 Cir.1983)).

The documents at issue were not introduced as evidence at the hearings on the exceptions. As such, we cannot consider them. The Motion and Order to Strike is granted.

I. Exception of Prescription

As we stated in Arton v. Tedesco, 14-1281, p. 3 (La.App. 3 Cir. 4/29/15), 176 So.3d 1125, 1128, writ denied, 15-1065 (La. 9/11/15), 176 So.3d 1043 (citations omitted):

The standard of review of a grant of an exception of prescription is determined by whether evidence was adduced at the hearing of the exception. If evidence was adduced, the standard of review is manifest error; if no evidence was adduced, the judgment is reviewed simply to determine whether the trial court’s decision was legally correct. The party pleading the exception of prescription bears the burden of proof unless it is apparent on the face of the pleadings that the claim is prescribed, in.which case the plaintiff must prove that it is not.

In the instant case, no evidence was adduced at either the June 20, 2016 hearing on exceptions or the June 27, 2016 hearing on exceptions. Therefore, our standard of review is whether the ruling of the trial court was legally correct.

The prescriptive period for a delictual action is ' governed by La.Civ.Code art. 3492 which provides, in part that “[delic-tual actions are subject to a liberative prescription of one year. This prescription commences to run from the day injury or damage is sustained.”

14In his Suit for Money Owed, Bradford states that his cause of action arises out of an incident which occurred on April 3, 2013. Bradford was asked directly by the court during the June 27, 2016 hearing whether that date was correct, and he was responded that it was. Suit was filed May 5, 2016. This is over three years after the date of the alleged injury and well past the one-year liberative prescription period. On the face of the pleadings, this case is prescribed.

If the case is prescribed on the face of the pleadings, the burden shifts to the plaintiff to prove that it, in fact, has not prescribed. Bradford did not bear this burden, He did not file any evidence into the record at either hearing. At the June 27, 2016 hearing, the trial court asked Bradford why he waited so long to file suit. Bradford responded that he filed another case in Alexandria, Louisiana arising out of the same incident. It is unclear how this prevented him from filing the present suit. He also mentioned false information that he was given regarding the arrest, but he doesn’t explain how it impacted his ability to file this matter. Bradford was present on the date that he was arrested and transported. Therefore, he was clearly aware of Defendants’ alleged actions.

This case ⅛ prescribed on the face of the pleadings; therefore, it is Bradford’s burden to prove that the case has not prescribed. He did not meet this burden. For these reasons, the trial court’s rulings on the defendants’ exceptions of prescription are legally correct. Consequently, the trial court’s rulings on the defendants’ exceptions of no cause of action are rendered moot.

DECREE

For the foregoing reasons, the motion to strike filed by the Avoyelles Parish Sheriff Department, Sheriff Doug Anderson, and Deputies Ernest Rabalais, Darren Borde-lon, and Cynthia Manuel is granted. The trial court’s judgments dated July 5, |fi2016 and August 2, 2016, granting the exceptions of prescription filed by the defendants are affirmed. All costs of this appeal are assessed to Christopher G. Bradford.

MOTION TO STRIKE GRANTED; AFFIRMED.


author: JUDGE SANDRA CABRINA JENKINS

text:
    FMB DEVELOPMENT, L.L.C. v. HIBERNIA NATIONAL BANK, Capital One Financial Corporation and Bank South
    NO. 2016-CA-1057
    Court of Appeal of Louisiana, Fourth Circuit.
    JULY 12, 2017

      Charles V. Giordano, Anthony J. Milazzo Jr., HEBBLER & GIORDANO, L.L.C., 3501 North Causeway Blvd., Suite 400, Metairie, LA 70002, COUNSEL FOR PLAINTIFF/APPELLANT
    Thomas J. Lutkewitte, Conor T. Lut-kewitte, FAVRET, DEMAREST, RUSSO, LUTKEWITTE & SCHAUMBURG, 1515 Poydras St., Suite 1400, New Orleans, LA 70112, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins, Judge Regina Bartholomew Woods)
   JUDGE SANDRA CABRINA JENKINS

| ;This appeal arises from a series of commercial mortgage loans used to finance the purchase of land for the development of a high rise condominium complex on the lakefront in New Orleans. FMB Development, LLC (“FMB”) appeals the trial court’s July 18, 2016 judgment granting a motion for summary judgment filed by appellees, Capital One N.A., and Capital One Financial Corporation (cobeetively, “Capital One”), and dismissing all claims by FMB against Capital One, with prejudice. For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL HISTORY

Between September 10, 2004 and July 21, 2005, FMB entered into five “Multiple Indebtedness Mortgages” (collectively, the “Mortgage Contracts”) with Capital One to secure loans in the total principal amount of $3,625,000.00. These loans financed FMB’s purchase of various parcels of land in the general area fronting Lake Marina Avenue, West Robert E. Lee Boulevard, and Regent Street in New Orleans (the “Mortgaged Property”). The parcels of land were partially [{.improved with “several old single-family, doubles, and multi-family buildings, with other portions vacant and grassy.”

As part of the loan process, Capital One ordered an appraisal of the Mortgaged Property from Bird and Associates (“Bird”). Bird submitted an appraisal to Capital One dated August 26, 2004, as amended on July 12, 2005. In the appraisal, Bird reported that all of the Mortgaged Property was located in “FEMA Flood Zone AO.” The appraisal specifically stated as follows:

This report is prepared for the sole and exclusive use of the client identified in the report, and it may not be used for any purpose other than that which is specified in the report. No third parties are authorized to rely upon this report without written consent of the appraiser, and in any event, only in its entirety.

On August 29, 2005, Hurricane Katrina struck the New Orleans area and the subsequent flooding allegedly destroyed the residential buildings on the Mortgaged Property, which was not covered by flood insurance.

After Hurricane Katrina struck, the condominium project languished. In March 2008, Capital One agreed to renew and decrease FMB’s original loans to $3,360,000.00, with a renewal for three years. On April 17, 2008, FMB executed a promissory note in favor of Capital One in the principal amount of $3,360,000.00, with a maturity date of April 17, 2011 (the “Note”).

On June 17, 2011, and January 27, 2012, FMB executed two Agreements Regarding Loan Modification (collectively, the “Loan Modifications”), which ^extended the maturity date of the Note.to January 17, 2012 and April 16, 2012, respectively. In each of the Loan Modifications, FMB agreed as follows:

BORROWER ACKNOWLEDGES THAT THIS MODIFICATION REPRESENTS CHANGES TO ANY EXISTING DEBT OWED TO BANK. IN CONSIDERATION OF BANK’S CONSENT .TO SUCH CHANGES UPON THE TERMS SET FORTH HEREIN, BORROWER HEREBY AGREES THAT ALL DISPUTES AND CLAIMS WHATSOEVER OF ANY KIND OR NATURE WHICH BORROWER PRESENTLY HAS OR MAY HAVE AGAINST BANK ARE FULLY AND FINALLY RELEASED, COMPROMISED AND SETTLED. BORROWER ... DOES HEREBY EXPRESSLY RELEASE AND FOREVER RELIEVE, DISCHARGE AND GRANT FULL ACQUITTANCE TO BANK FOR AND FROM ANY AND ALL CAUSES OF ACTION, SUITS, CLAIMS, DEBTS, OBLIGATIONS OR LIABILITIES OF ANY NATURE WHATSOEVER,' KNOWN OR UN-KOWN, ALLEGED OR NOT ALLEGED, WHICH BORROWER HAS OR MAY HAVE AGAINST BANK, ITS AGENTS, OFFICERS, EMPLOYEES, DIRECTORS AND SHAREHOLDERS AS OF THE EFFECTIVE DATE HEREOF. THIS RELEASE SHALL BE CONSTRUED TO HAVE THE BROADEST POSSIBLE SCOPE. [Emphasis added.-]

On May 16⅛ 2013, FMB filed a Petition for Damages against defendants Hibernia National Bank, Capital One Financial Corporation, and Bank South, alleging that in August 2005, Hurricane Katrina caused a total loss by flooding of all structures on FMB’s Mortgaged properties. According to FMB, the defendants breached the provisions of the Mortgage Contracts by failing to notify FMB that the properties were in a special flood hazard area, failing to notify FMB of the amount of flood insurance that was required by Capital One, and failing to place the required flood insurance on the property when FMB did not. On -July 3, 2013, FMB filed a First Supplemental and Amended Petition adding Capital One, N:A. as a defendant.

|4On August 24, 2015, Capital One filed a Motion for Summary Judgment seeking dismissal of FMB’s claims 'on the following grounds: (1) FMB’s claims were barred by the res judicata effect of the 2011 and 2012 Loan Modifications; (2) Capital One had no duty under the Mortgage Contracts to notify FMB that the properties were in a special flood hazard area, or to procure or maintain flood insurance on the Mortgaged Properties; and (3) Capital One had no fiduciary duty to notify FMB that the properties were in a special flood- hazard area.

On July 18, 2016, the trial court held a hearing on Capital One’s Motion for Summary Judgment. On July 18, 2016, the trial court signed a final judgment granting Capital Oné’s Motion for Summary Judgment and dismissing all of FMB’s claims and demands against' Capital One, with prejudice. FMB appealed,

DISCUSSION

On appeal, FMB asserts four assignments of. error:

(1) The trial court erroneously ruled that the claims by FMB were barred by res judicata;
(2) The trial court erred .in finding that Capital One did not breach the contract with FMB;
(3) The trial court erred in ruling that FMB did not have'a claim for detrimental reliance against Capital One;
(4) The trial court erred in ruling that Capital One did not owe a fiduciary duty to FMB.

Summary Judgment Criteria/Standard of Review

This court applies a de novo standard' of review when considering rulings on motions for summary judgment, using the same criteria' that governed the trial court’s determination of whether summary judgment was appropriate. Bank of New York Mellon v. Smith, 15-0530, p. 8 (La. 10/14/15), 180 So.3d 1238, 1243. Capital One’s Motion for Summary Judgment is governed by criteria set forth in the version of La. Code Civ. P. art. 966 in effect prior to the 2015 amendments.

A court must grant a motion for summary judgment “[i]f the pleadings, depositions, answers 'to interrogatories, and admissions on file, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine -issue as- to material fact, and that mover is entitled to judgment as a matter of law.” La. Code Civ. P. art. 966(B)(2) (2015).

Before the 2015 amendments, the summary judgment standard was as follows:

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mov-ant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

La. Code Civ. P. art. 966(C)(2) (2015).

Assignment of Error No. 1: Res Judicata

FMB contends that its claims are not barred by the res judicata effect of the release language in the Loan Modifications. Given our disposition of FMB’s individual claims in FMB’s second through fourth assignments of error, we pretermit any discussion of this first assignment of error.

¡¿Assignment of Error No. 2: Mortgagee’s Duty to Procure and Maintain Flood Insurance

In light of our disposition of FMB’s second through fourth assignments of error, we first address FMB’s second assignment of error. FMB contends that the trial court erred in ruling that Capital One did not have a duty to notify FMB that the Mortgaged Properties, were in a special flood hazard area so that FMB could obtain flood insurance. FMB asserts that Capital One’s duty arises under the language of the Mortgage Contracts and the provisions of the National Flood Insurance Act.

FMB relies on the following language from the Mortgage Contracts to support its claim that Capital One was obligated to nbtify FMB that the Mortgaged Properties were in a special flood hazard area:

Required Insurance. So long as this Mortgage remains in effect, Mortgagor shall, at its’ sole host, keep and or cause others, at their expense, to keep' the Property constantly insured against loss by fire, by hazards included within the term- “extended coverage,” and by such other hazards (including flood insurance, where applicable) as may be required by Mortgagee. .
* * * *
Should thé .Real Property be located' in aii area designated by the Director of the Federal Emergency Management Agency as a special flood hazard' area, Mortgagor agrees to obtain and maintain Federal Flood Insurance, if available, within 45 days after notice is given by Mortgagee that the Property is located in a special flood hazard area, for the full unpaid principal balance of the loan and any prior liens on the property securing the loan, up to the maximum policy limits set under the National Flood Insurance Program, or as otherwise required by Mortgagee, and to maintain such insurance for the term of the loan.

Capital One cites pertinent language in the Mortgage Contracts providing that Capital One was not obligated to purchase insurance if FMB failed to do so:

ADDITIONAL ADVANCES FOR SPECIFIC PURPOSES. Mortgagee shall have the right, within Mortgagee’s sole option and |7discretion, to make Additional Advances on Mortgagor’s behalf for the following purposes:
Insurance. If Mortgagor should for any reason fail to maintain insurance on the Property as required under this Mortgage, Mortgagee may make Additional Advances on Mortgagor’s behalf for the purpose of purchasing and maintaining, and Mortgagee may purchase and maintain such insurance coverage. ...
No obligations. Nothing under this Mortgage shall obligate Lender to make any such Additional Advances or to take any of the above actions on Grantor’s behalf, or as making Lender in any way responsible or liable for any loss, damage or injury to Grantor, or to any other person or persons, resulting from Lender’s election not to advance such additional sums or take such action or actions. [Emphasis added.]

“The interpretation of a contract is the determination of the common intent of the parties.” La. Civ. Code art. 2045. “When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent.” La. Civ. Code art. 2046.

Based on the clear and unambiguous language of the Mortgage Contracts, FMB, as the mortgagor, was the only party contractually obligated to procure and maintain flood insurance on the Mortgaged Property (“Mortgagor shall, at its sole cost, keep and or cause others, at their expense, to keep the Property constantly insured.”). If FMB failed to obtain the required flood insurance, however, Capital One had no contractual obligation to procure that insurance on FMB’s behalf (“If Mortgagor should for any reason fail to maintain insurance on the Property as required under this Mortgage, Mortgagee may make Additional Advances on Mortgagor’s behalf for the purpose of purchasing and maintaining, and Mortgagee may purchase and maintain such insurance coverage.”). Finally, although the Mortgage Contracts obligated FMB to purchase flood insurance if notified by FMB |sthat the property was in a special flood area, there is no provision in the Mortgage Contracts which required Capital One to provide such notification.

Accordingly, we find that Capital One had no contractual obligation to notify FMB that the Mortgaged Property was in a special flood hazard area, or to purchase such flood insurance on FMB’s behalf when it failed to do so. See Paternostro v. Wells Fargo Home Mortg., Inc., 09-469, p. 10 (La. App. 5 Cir. 12/8/09), 30 So.3d 45, 51; Doss v. Cuevas, 07-1803, p. 5 (La. App. 1 Cir. 3/26/08), 985 So.2d 740, 744; Oliver v. Central Bank, 26,932, pp. 10-11 (La. App. 2 Cir. 5/10/95), 658 So.2d 1316, 1323; Blackstone v. Chase Manhattan Mortg. Corp., 802 F.Supp.2d 732, 738 (E.D. La. 2011), aff'd, 503 Fed.Appx. 251 (5th Cir. 2012); Morris v. Countrywide Home Loans, No. 06-5472, 2008 WL 638615, at *3 (E.D. La. Mar. 5, 2008). Capital One, therefore, is entitled to summary judgment on FMB’s breach of contract claim.

FMB also contends that Capital One was obligated to inform FMB that the Mortgaged Property was in a special flood hazard area pursuant to the National Flood Insurance Act (“NFIA”), 42 U.S.C. § 4001, et seq.

The NFIA was originally enacted in 1968 -with the goals of providing affordable flood insurance to home owners living in high-risk areas and easing the burden that flood disasters place on the federal treasury. 42 U.S.C. § 4002. In 1973, the NFIA was amended to prohibit federally regulated lending institutions from making any real estate loans in a special flood hazard area unless the property is covered by flood insurance. 42 U.S.C. § 4012a(b)(1). Under the NFIA, when improved property is in a special flood hazard area, the lender must notify the borrower of the requirement to have flood insurance. 42 U.S.C. § 4012a(e)(1). If the borrower fails to buy such insurance within forty-five days of being notified, lathe lender is required to buy it for the borrower and charge the costs back to the borrower. 42 U.S.C. § 4012a(e)(2). A lender that has a “pattern or practice” of violating Section 4012a shall be assessed civil penalties “by the appropriate Federal entity.” 42 U.S.C. § 4012a(f)(1)-(2).

State and federal courts, including the United States Fifth Circuit and Louisiana federal district courts, have uniformly found that a borrower has no express or implied private right of action for violations of the NFIA. Audler v. CBC Innovis Inc., 519 F.3d 239, 253 (5th Cir. 2008); Wentwood Woodside I, L.P. v. GMAC Commercial Mortg. Corp., 419 F.3d 310, 323 (5th Cir. 2005); Till v. Unifirst Fed. Sav. & Loan Ass’n, 653 F.2d 152, 161 (5th Cir. Unit A Aug. 1981); Blackstone, 802 F.Supp.2d at 736; Williams v. EFCU Fin. Fed. Credit Union, No. 17-73-JWD-RLB, 2017 WL 1659056, at *4 (M.D. La. Apr. 12, 2017); Highmark Fed. Credit Union v. Hunter, 814 N.W.2d 413, 417 (S.D. 2012); Bagelmann v. First Nat. Bank, 823 N.W.2d 18, 24 (Iowa 2012); R.B.J. Apartments, Inc. v. Gate City Sav. & Loan Ass’n, 315 N.W.2d 284, 289 (N.D. 1982).

In Audler, the Fifth Circuit’s decision rested in part on its conclusion that “the purpose of the [NFIA’s] requirement that a lender obtain a flood zone determination is not to inform the borrower of the home’s flood zone status, but rather to protect the lender and the federal government from the financial risk that is posed by uninsured homes located in flood zones. The flood zone was prepared for the benefit of the lender, and indirectly the federal government.” Audler, 519 F.3d at 252 (internal citation omitted).

In finding no private right of action, these federal and state courts reasoned that: (1) borrowers are not the primary beneficiaries of the NFIA because the principal purpose of enacting the statute was to reduce the massive economic | mburden on the federal government in providing flood disaster assistance; (2) the statute’s legislative history revealed no evidence of specific legislative intent to vest borrowers with any federal right to damages for violations of the NFIA; and (3) enforcement of the flood hazard notice requirement is vested in federal agencies, which have the authority to issue cease and desist orders, terminate unsafe or unsound practices, and impose administrative remedies, including monetary penalties.

Although the decisions of these courts are not controlling, we agree with their reasoning. Accordingly, we find that FMB has no private right of action under the NFIA based on Capital One’s alleged failure to notify FMB that the property was in a special flood hazard area.

FMB contends that even if there is no private right of action under the NFIA, FMB has a state-law negligence action against Capital One based on its alleged violations of the NFIA,

We need not reach the merits of this argument. The allegations in FMB’s Petition clearly show that any negligence claim has long prescribed, given that FMB did not file suit until 2013, eight years after Hurricane Katrina. Furthermore, FMB has not presented sufficient facts to interrupt prescription pursuant to the | n doctrine of contra non valentum In re Med. Review Panel for Claim of Milton, 593 So.2d 795, 797 (La. App. 4th Cir. 1992).

FMB’s second assignment of error has no merit.

Assignment of Error No. 3: Detrimental Reliance

FMB contends that Capital One is liable for damages because FMB detrimentally relied upon Capital One to notify it that the Mortgaged Properties were in a special flood hazard area and that flood insurance was required. To establish detrimental reliance, a party must prove three elements by a preponderance of the evidence: (1) a representation by conduct or word; (2) justifiable reliance; and (3) a change in position to one’s detriment because of the reliance. Louisiana Office of Risk Mgmt. v. Richard, 13-0890, p. 5 (La. 10/15/13), 125 So.3d 398, 402. In Louisiana, “it is difficult to recover under the theory of detrimental reliance because estoppel is not favored in Louisiana law.” Id. Furthermore, detrimental reliance usually only comes into play when no written contract exists or the contract is found to be unenforceable. Boes Iron Works, Inc. v. Gee Cee Group, Inc., 16-0207, p. 18 (La. App. 4 Cir. 11/16/16), 206 So.3d 938, 952, writ denied, 17-0040 (La. 2/10/17), 216 So.3d 45.

After our de novo review of the record, we find that FMB cannot satisfy its burden of proof with respect to the first element of detrimental reliance. As the evidence in the record shows, Capital One made no promises that it would notify FMB that the property was in a special flood hazard area, or that it would purchase insurance on FMB’s behalf. See Oliver, 26,932, p. 12, 658 So.2d at 1323 (affirming dismissal of detrimental reliance claim where borrower did not establish a promise by lender to procure and maintain flood insurance on plaintiffs property); Doss, 07-1803, p. 6, 985 So.2d at 744-45 (affirming summary judgment dismissing detrimental reliance claim where mortgage contract required -borrowers to obtain flood insurance, lender had no contractual obligation to purchase insurance, and borrowers presented no evidence that lender agreed to acquire flood insurance prior to loan closing); Blackstone, 802 F.Supp.2d at 740 (dismissing claim of detrimental reliance where borrower failed to identify any representation by mortgage lender that it would maintain flood insurance on property); Brown v. Am. Modern Home Ins. Co., No. 16-16289, 2017 WL 2290268, at *7 (E.D. La. May 25, 2017) (dismissing detrimental reliance claim where mortgage contract did not require lender to purchase insurance and borrower did not allege a promise by lender to obtain insurance that altered the mortgage contract). This assignment of error has no merit.

Assignment of Error No, 4: Breach of Fiduciary Duty

FMB contends that the Mortgage Contracts between Capital One and FMB imposed a fiduciary duty on Capital One to inform FMB that the Mortgaged Property was in a special hazard flood area. Under Louisiana law, in order for a “fiduciary relationship to exist between -a bank and its customer, there must be a written agency or trust agreement.” Gulf Coast Housing & Dev. Corp. v. Capital One, 16-0296, p. 4 (La. App. 4 Cir. 10/5/16), 203 So.3d 366, 369 (citing La. R.S. 6:1124) (emphasis in original). This statute provides:

No financial institution or officer or employee thereof shall be deemed or implied to be acting as a fiduciary, or have a fiduciary obligation or responsibility to its customers or to third parties other than shareholders of the institution, unless there is a written agency or | istrust agreement under which the financial institution specifically agrees to act and perform in the capacity of a fiduciary....

La. R.S. 6:1124 (emphasis added).

There is no language in the Mortgage Contracts or in any other written agreement whereby Capital One specifically agreed to act and perform in the capacity as a fiduciary. Accordingly, FMB failed to offer factual support sufficient to establish that it will be able to satisfy its eviden-tiary burden of proof at trial bn any alleged breach of fiduciary duty claim. Seals v. Omni Bank Ins. Companies, 12-0863, p. 14 (La. App. 4 Cir. 11/28/12), 104 So.3d 667, 674.

Moreover, La. R.S. 6:1124 expressly provides that any action by FMB pertaining to an alleged breach of fiduciary duty by Capital One must be initiated within one year of the first occurrence of the breach. FMB did not file suit until May 2013. Any claim for breach of fiduciary duty, therefore, is prescribed.

This assignment of error is without merit.

CONCLUSION

For all these reasons, we affirm the trial court’s July 18, 2016 judgment granting Capital One’s Motion for Summary Judgment and dismissing FMB’s claims, with prejudice.

AFFIRMED

      . The mortgages were in favor of Hibernia National Bank and "any future holder or holders.” Hibernia was eventually acquired by Capital One.

      . The parties dispute whether the loans were intended to be secured by the structures on the property. Capital One asserts that it considered the property "vacant land” so that no insurance was required. In the Mortgage Contracts, however, the encumbered property is described as "[t]he immovable (real) property specifically described,” together with "any and all present and future buildings, constructions, component parts, [and] improvements.”

      . La. Code Civ. P. art. 966 was amended by 2015 La. Acts No. 422, § 1. The Act’s provisions became effective on January 1, 2016, after Capital One filed its Motion for Summary Judgment on August 24, 2015. The provisions of Act 422 do "not apply to any motion for summary judgment pending adjudication or appeal on [January 1, 2016],” 2015 La. Acts No. 422, § 2.

      . We note that most courts addressing this issue have barred state-law negligence claims based on alleged violations of the NFIA. See Bagelmann, 823 N.W.2d at 25-27 (collecting cases) ("We therefore agree that it would be inconsistent with the lack of a private right of action under the NFIA to authorize a negligence action based upon a duly that exists only because of the NFIA.”); Highmark, 814 N.W.2d at 418 ("If the NFIA does not create a private right of action, then it follows that an individual cannot use the NIFA to establish a duty in an individual civil claim.”); R.B.J. Apartments, 315 N.W.2d at 290 (“The separation-of-powers doctrine and principles of federalism militate against the adoption of the federal statute as the standard of care in a state negligence action when no private right of action, either explicit or implicit, exists in . the federal statute.”). The U.S. Fifth Circuit and at least two Louisiana federal district courts have refused to recognize a state-law negligence claim based on violations of the NFIA. See Audler, 519 F.3d at 253 (collecting cases); Duong v. Allstate Ins. Co., 499 F.Supp.2d 700, 704 (E.D. La. 2007); Barras v. Community Home Loan, LLC, No. 06-2000, 2007 WL 165213, at *2 & n.12 (W.D. La. Jan. 18, 2007).

      . In exceptional circumstances, the doctrine of contra non valentum may serve to interrupt prescription “[w]here the cause of action is not known or reasonably knowable by the plaintiff, even though his ignorance is not induced by the defendant." Renfroe v. State ex rel. Dept. of Transp. & Dev., 01-1646, p. 9 (La. 2/26/02), 809 So.2d 947, 953.


author: Judge Daniel L. Dysart LOMBARD, J.,

text:
    STATE of Louisiana v. Darren FOSTER
    NO. 2017-KA-0290
    Court of Appeal of Louisiana, Fourth Circuit.
    JULY 12, 2017
    Leon A. Cannizzaro, Jr., ORLEANS PARISH DISTRICT ATTORNEY, Donna Andrieu, ASSISTANT DISTRICT ATTORNEY, Christopher J. Ponoroff, ASSISTANT DISTRICT ATTORNEY, J. Taylor Gray, ASSISTANT DISTRICT ATTORNEY, CITY OF NEW ORLEANS, 619 South White Street, New Orleans, LA 70119, COUNSEL FOR AP-PELLEE/STATE OF LOUISIANA
    Christopher A. Aberle, LOUISIANA APPELLATE PROJECT, P.O. Box 8583, Mandevüle, LA 70470-8583, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Chief Judge James F. McKay, III, Judge Edwin A. Lombard, Judge Daniel L. Dysart)
   Judge Daniel L. Dysart

| garren Foster appeals a judgment of the trial court granting the State’s Motion to Correct an Illegal Sentence. For the reasons that follow, we reverse the ruling of the trial court and remand for further proceedings.

BACKGROUND:

Darren Foster was charged by bill of information on December 23, 2013, with one count of possession with intent to distribute marijuana, a violation of La. R.S. 40:966 A(2). He initially entered a plea of not guilty. Foster failed to appear three times for various stages of his prosecution, with the trial court forfeiting his bond and issuing warrants for his arrest each time. On April 16, 2015, the State offered Foster a plea of fifteen years in the custody of the Department of Corrections, which he declined. A trial date was set, but Foster again failed to appear and a bond forfeiture was granted and a warrant was issued.

Foster was arrested on the warrant on May 11, 2016. On May 19, 2016, the State filed an additional bill of information charging Foster with one count of bail jumping on a felony case, a violation of La. R.S. 14:110.1 C. Following an |?arraignment on the new charge, and a plea of not guilty, the trial court granted Foster’s motion to leave the jurisdiction. On July 8, 2016, new plea negotiations transpired, and a trial date of August 23, 2016 was set.

On that date, the State placed in the record the following plea offer: “The State is offering fifteen years to Mr. Foster as to both cases. That will be concurrent as a no bill.” Two years was offered on the bail jumping charge. Foster answered in the affirmative when asked if he understood the plea agreement. However, when asked if he accepted it, he replied: “Pretty much .... Yes, I was hoping I can stay out a little longer.” He then asked the court “[i]s there any way I can be considered for some type of probation?” The State interjected that it had no objection to the court recommending any and all programs for the defendant. Court was reset for August 29, 2016.

On August 29, the trial court first advised Foster as to his Boykin rights. Foster, through counsel, withdrew his plea of not guilty as to both counts, and entered a plea of guilty to possession with intent to distribute marijuana and to bail jumping. The court then questioned Foster as to whether his pleas were entered knowledgeably, and advised him as follows:

Do you understand the sentencing range with respect to the possession with intent to distribute marijuana is five to thirty years, and that your sentence will be fifty [sic] years to the Department of Public Safety and Corrections, to be served via Home Incarceration, pursuant to Code of Criminal Procedure, Article 894.2?
And do you understand that your sentence will be two years Department Safety and Corrections, with credit for time served, to be |,.¡served via Home Incarceration, pursuant to Code of Procedure, Article 894.2?

Foster responded in the affirmative. After he was again informed of all of the consequences of pleading guilty, Foster, his counsel and the judge signed the Felony Waiver of Constitutional Rights Plea of Guilty Form. The completed form reads in part:

I understand that my sentence in this case will be 15 years DOC with home incarceration pursuant to Criminal Code Art. 894.2, must provide current address, must continue working, must provide pay check stubs and, work schedule, at monthly court dates, must drug test at monthly court dates, must pay a supervision fee, must have an ankle monitor, court costs $337, .... can leave the house to go to work and church, must provide address and name of church.

Foster’s plea was accepted as having been entered knowingly, intelligently and voluntarily. He waived all delays and the -trial court imposed the sentence, additionally stating:

So, Mr. Foster, the court as [sic] opposed to sending you to the Department of Public Safety and Corrections Facility, based on the information that has been provided at the various hearings, in terms of your working, in terms of your work record, in terms of your life, you haven’t gotten any new arrests since the charges, the Court deems that it is—let me get the right language.
So, pursuant to Code of Criminal Procedure 894.2(A)(3), the Court determines that Home Incarceration is more suitable than imprisonment, or supervised probation, without home incarceration, and that would serve the best interest of justice.- So, at this time, the Court orders Home Incarceration in lieu of a term of imprisonment.

On September 1, 2016, the State filed the subject Motion and Order to Correct Illegal Sentence 'pursuant to La. Code Crim. Proc. art; 882. Despite being present during the sentencing hearing and not objecting to the sentence imposed, the State argued that Foster was not eligible to be sentenced -pursuant to La. Code Crim. Proc. art. 894.2, as he did not meet the criteria for being sentenced to home incarceration; Specifically, Foster was not eligible for probation-as he had pleaded Lguilty to a charge which required a sentence at hard labor. La. Code Crim. Proc. art. 894.2 A(1). Further, the maximum period of time allowed for home. incarceration in felony cases is four years. La. Code Crim. Proc. art. 894.2 H. The State contends that it never recommended that Foster’s sentence be served under home incarceration. La. Code Crim. Proc. art. 894.2 A(2)(b).

After a contradictory hearing at which defense counsel argued that Foster should be allowed to withdraw his plea of guilty, the State argued that Foster’s plea agreement was clear, and- the additional conditions offered by the trial court were separate from the actual plea agreement signed by Foster. The trial court granted the State’s motion, stating:

... [T]his Court was amenable to a plea agreement of fifteen years D.O.C.; however, I indicated on the'Record that I felt that it would be best served through home incarceration. Now, when we discussed this plea agreement I have to be very -clear, the State was very clear about its position and plea offer, which is reflected in the record prior to Mr. Foster entering the guilty plea .... It’s fifteen'year to Department of Public Safety and Corrections.
...[T]he law is the law in this case...I basically put myself out there trying to impose the home incarceration.
Foster now appeals that ruling of the trial court.

DISCUSSION:

Foster’s sole assignment of error is that the trial court erred in not allowing him to withdraw, his pleas of guilty. He argues that he was induced into accepting the plea agreement as he understood his sentence-was to.be served -under home incarceration.

A recent decision of this Court discusses constitutionally infirm guilty pleas. In State v. Allah, 16-0952, pp. 8-9 (La.App. 4 Cir. 4/12/17), 216 So.3d 162, 168, we stated:

I tilt is well established that a trial court. ' may set aside a guilty plea and sentence when the facts surrounding the guilty plea show it to be constitutionally deficient. State v. Smith, 406 So.2d 1314 (La. 1981). A guilty plea is constitutionally infirm when a defendant is induced - to enter that plea by what he justifiably believes was a plea bargain, and that bargain is not kept. State v. Dixon, 449 So.2d 463 (La. 1984). As the Court further noted:
This court has consistently permitted a constitutionally infirm guilty plea to be withdrawn after sentencing by way of- appeal or- post conviction relief. State v. Hayes, 423 So.2d 1111 (La. 1982), and cases cited therein. It is by now settled law that a guilty plea is constitutionally infirm when a defendant is induced to enter that plea by a plea bargain or by what he justifiably believes was a plea bargain, and that bargain is not kept. In such a case a defendant has been denied due process of law because the plea was not given freely and knowingly. State v. Hayes, supra; State ex rel. LaFleur v. Donnelly, 416 So.2d 82 (La. 1982); State v. Jones, 398 So.2d 1049 (La. 1981); State v. Neitte, 363 So.2d 425 (La. 1978); State ex rel. Clark v. Marullo, 352 So.2d 223 (La. 1977).

Dixon, 449 So.2d at 464.

Further, in State v. Epperley, 14-0259, p. 20 (La.App. 4 Cir. 10/2/14), 151 So.3d 721; 735, this Court stated:

A guilty plea is constitutionally infirm when the terms of the plea agreement are not honored. State v. LaGarde, 618 So.2d 545, 546 (La.App. 4th Cir.1993); State v. Dixon, 449 So.2d 463, 464 (La. 1984). When a plea agreement is breached, the defendant has the option of specific performance of the agreement or nullification or withdrawal of the plea. State v. Solomon, [20]11-0236, pp. 5-6 (La.App. 4 Cir. 11/23/11), 80 So.3d 605, 608 writ granted in part, 12-0202 (La. 6/22/12), 90 So.3d 1040.

The State argues that Foster agreed to the fifteen-year sentence on August 23, 2016, and that the sentence should be enforced.

Our review of the entire record, in particular the August 23, 2016, transcript reflects that Foster- did not unconditionally accept the plea as. offered. This is evidenced by his request to “stay out a little longer.” The trial court explained toRhim that it was working toward helping him remain in the community, and would look into whatever, programs were available for it to recommend.

The transcript of the August 29, 2016 hearing and the Felony Waiver of Constitutional Rights Plea of Guilty form, demonstrate that Foster was influenced by the offer of home incarceration when he entered his guilty plea. Foster- does not argue that he is entitled by statute to home incarceration; rather, he argues that he should be allowed to withdraw the plea under these circumstances, and to renegotiate another plea or go to trial, We agree.

It is clear that Foster entered a guilty plea based on the trial court’s representations that he would be allowed to serve his sentence under home incarceration. We therefore find that his guilty plea is unconstitutionally infirm, and reverse the ruling of the trial court granting the State’s Motion and Order to Correct Illegal Sentence. This,matter is remanded for further proceedings.

REVERSED AND REMANDED

LOMBARD, J.,

CONCURS WITH ADDITIONAL REASONS

hi write separately in support of the majority opinion to point out the very recent decision pertaining to the sanctity of plea bargains in which the Louisiana Supreme Court trenchantly observed:

The concept of fundamental fairness is inherent in the Due Process Clause of the U.S. Fourteenth Amendment and in La. Const. Art. I, § 2, which do not dictate a particular procedure, only a fundamentally fair result. See In re C.B., 97-2783, pp. 10-11 (La. 3/4/98), 708 So.2d 391, 397. The pleas bargaining process proposes fairness- in .agreements be- . tween an accused and a prosecutor, See Santobello v. New York, 404 U.S. 257, 261, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971). When a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled. Id., 404 U.S. at 262, 92 S.Ct. at 499.
As a general matter, in determining the validity of agreements not to prosecute or of plea agreements, the courts generally refer to analogous rules of contract law, although a defendant’s constitutional rights to fairness may be broader than his or her rights under the law of contract. State in Interest of E.C., 13-2483, p. 4 (La. 6/13/14), 141 So.3d 785, 787 (per curiam); State v. Cardon, 06-2305, p. 1 (La. 1/12/07), 946 So.2d 171, 171-72 (per curiam); State v. Givens, 99-3518, p. 14 (La. 1/17/01), 776 So.2d 443, 445; State v. Louis, 94-0761 (La. 11/30/94), 645 So.2d 1144, 1148-49; State v. Lewis, 539 So.2d 1199, 1204-05 (La. 1989); State v. Nall, 379 So.2d 731, 734 (La. 1980): see also United States v. Ringling, 988 F.2d 504, 506 (4th Cir. 1993) (“plea bargains rest on contractual principles, and each party should receive the benefit of its bargain. Yet, the analysis of the plea agreement must be conducted at a more stringent level than in a commercial contract because the rights involved are generally fundamental and constitutional based.”).
|2When a district attorney or assistant district attorney makes a good faith bargain with a person accused of a crime and the defendant, in reliance on that bargain, relinquishes a fundamental right, the State cannot repudiate the bargain. State v. Tanner, 425 So.2d 760, 763 (La. 1983); State v. Hingle, 242 La. 844, 859, 139 So.2d 205, 210 (1962) (on rehearing). “[C]ourts should give effect to such agreement[s]. for it would not be consonant with the pledge of the [S]tate’s public faith, reposed in these officers by the legislative branch of our government, to permit them to repudiate bargains made with persons accused of crimes who are acting in good faith, and in reliance thereon, comply with their commitments by relinquishing valuable and fundamental rights.” State v. Hingle, 242 La. at 865, 139 So.2d at 212.

State v. Karey, 2016-0377 (La. 6/29/17), - So. 3d -, 2017 WL 2836168 (emphasis added).

The State is free to withdraw from the plea agreement up until the time the plea is entered. Id. (citing State v. Caminita, 411 So.2d 13, 16 (La. 1982), cert denied, 459 U.S. 976, 103 S.Ct. 314, 74 L.Ed.2d 291 (1982)). In this case, however, the State failed to withdraw from the plea agreement or raise any objection to it when, in ascertaining whether the defendant entered into the plea agreement knowledgeably, the trial judge specifically and repeatedly asked Mr. Foster whether he understood that his sentence was “to be served via Home Incarceration.” The defendant indisputably entered into the plea agreement with the understanding that his fifteen year sentence would be served via Home Incarceration, as did the State by failing to object to the trial judge’s representation of the plea agreement in her colloquy or withdraw from the agreement before it was finalized.

It is elementary contract law that a contract, once completed, is binding except in cases where the agreement was induced by fraud or ill-practices. Clearly, there was no fraud or ill-practice on the part of Mr. Foster in this process and, as such, it could be argued that the State is bound by the agreement. At the very least, it is clear that—contrary to the State’s argument— Mr. Foster entered into the agreement for a fifteen year sentence [sto Home Incarceration, not a fifteen-year term of imprisonment. Therefore, to hold him to the length, but not means, of the sentence to which he agreed is fundamentally unfair.

The decision to grant the State’s motion to correct an illegal sentence while, at the same time, denying the defendant’s motion to withdraw his constitutionally infirm guilty plea is inequitable and an egregious abuse of discretion. Therefore, I strongly support the decision to reverse and remand this matter.

LOMBARD, J., CONCURS WITH ADDITIONAL REASONS,

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

      . A review of the record for errors patent reveal's none.


author: Judge Daniel L. Dysart

text:
    Martin C. MUNGER v. Yuliya SIRENKO
    NO. 2016-CA-0778
    Court of Appeal of Louisiana, Fourth Circuit.
    JULY 12, 2017

      Bennett Wolff, WOLFF & WOLFF, 3017 21st Street, Suite 100, Metairie, LA 70002-4939, COUNSEL FOR PLAINTIFF/APPELLANT
    Allyson D. Tuttle, CATHOLIC CHARITIES/PROJECT SAVE, 701 Loyola Avenue, New Orleans, LA 70113, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Chief Judge James F. McKay, III, Judge Edwin A. Lombard, Judge Daniel L. Dysart)
   Judge Daniel L. Dysart

liOn May 6, 2016, the trial court rendered a judgment dismissing Martin Mun-ger’s Petition for Protection from Abuse, and granting Yuliya Sirenko’s Order of Protection. Mr. Munger appeals the judgment. After review, we affirm the trial court’s judgment.

BACKGROUND:

The parties were married in the United Arab Emirates on December 17, 2014. The couple moved to the United States in early 2015, with their young son, Nikolas, who was nineteen months old at the time this trial began on March 21, 2016. Mr. Mun-ger testified that the couple moved here to live, but Ms. Sirenko testified that the move was temporary.

Following an incident on August 21, 2015, Mr. Munger filed a Petition for Protection from Abuse in the Civil District Court. In connection with the filing of | gthe petition, Ms. Sirenko was granted supervised visitation with their son at Harmony House.

On September 11, 2015, Ms. Sirenko sought relief pursuant to La. R.S. 46:2131, et seq She claimed that she had acted in self-defense during the altercation on August 21, and that Mr. Munger had-abused her. Subsequent to filing her first petition, Ms. Sirenko filed two additional petitions. In the subsequent petitions, Ms. Sirenko set forth additional instances of abuse, both in the United States and'abroad.

After numerous continuances, the trial court began a trial on the merits of all the petitions on March 21, 2016. Mr. Munger presented his case first. He'testified that on August 21, 2015, he arrived home seeking to celebrate his first paycheck with his wife, son and mother. He testified that Ms. Sirenko did not want to go out to dinner. The couple then discussed plans for their son’s birthday party. Mr. Munger wished to invite his 12-year-old daughter from a previous relationship, his sister-and her family and his mother. Ms. Sirenko was opposed to planning a party, and specifically did not want Mr. Munger’s daughter to be invited. According to Mr. Mun-ger, Ms. Sirenko began typing a text to his daughter | ¡^threatening to drag her out of the party by her hair and to kill her if she attended the party. Not wanting Ms. Sir-enko to send such a message to his daughter, he claims-that he grabbed the phone from Ms. Sirenko and held her hands to prevent her from punching and scratching him. The two fell to the sofá, with Ms. Sirenko landing on top of him. As they straggled, Ms. Sirenko bit him on his chest near his armpit. When he saw that he was bleeding from the bite, he drove himself to an urgent care -facility for treatment. He testified that he consulted with his mother and sister, an attorney, and decided to call the Orleans Parish Coroner to obtain a protective order. After he had the protective order in hand, he called the police (about two hours after incident). He admitted that he never looked for Ms. Sirenko, who had left the apartment with their son.

When the police arrived at the apartment building, they went upstairs and interviewed Mr. Munger. They then arrested Ms. Sirenko, who had been in the. lobby of the building with the child, and returned the boy to. Mr. Munger. Ms. Sirenko was charged .with. domestic battery and spent twenty days in jail. She subsequently pleaded nolo contendere to a. charge of disturbing the peace. On the day of her plea, a Louisiana Uniform. Abuse Protection Order was issued in Mr.. Munger’s favor for an eighteen month period.

In her case-in-chief, Ms. Sirenko testified that she had been a victim of a pattern . of abuse, beginning in Moscow, continuing in Dubai, and ending with the incident of August 21, 2015, in New Orleans. She claimed that Mr. Munger slapped her across her face while in Moscow when she asked him to help her take Reare of their son. She testified that shé called the police, but either the line was busy or no one answered. After the couple moved to Dubai, she testified that Mr. Munger punched her in the mouth. She said he told her he was having a nervous breakdown, having just learned that his mother was in a serious automobile accident in New Orleans. After striking her, he picked up a large knife and held it to her throat. She ran from them apartment and called the police. When the police arrived, Mr. Mun-ger apologized for his behavior. Ms. Siren-ko testified that she forgave him and did not press charges as her injuries “were not that bad.”

Ms. Sirenko testified that after moving to New Orleans, which she believed to be for a temporary visit, Mr. Munger threatened to have her deported. He repeatedly told her that the child would be awarded to him in a custody battle, as the child was a United States citizen and it would be in his best interest to remain here. Ms. Sirenko admitted that prior to the August 21, 2015, incident she continued to have sex with Mr. Munger. She testified that Mr. Mun-ger would sleep in the living room of the apartment, but would occasionally come to the bedroom to talk to her. The child always slept in the bed with her.

Ms. Sirenko testified that about a month prior to the August 21 incident, she awoke to find Mr. Munger lying on the opposite side of the bed, masturbating on his son’s face. She screamed and he jumped up from the bed, explaining to her that he would start taking his pills again for his mental disorders. She did not call |fithe police on this occasion as she testified she only wanted a quiet divorce and plane tickets for her and her son to return to Dubai.

Mr. Munger categorically denied ever abusing his wife in any way. He explained that he had consulted a psychiatrist for one visit to discuss his inability to concentrate in school and for tests. The doctor prescribed Adderall, which Mr. Munger would take on an as-needed basis. He denied having any mental disorders or having told Ms. Sirenko that he did.

The trial judge gave extensive reasons for judgment on the record. She stated that she believed Ms. Sirenko to be credible, and that the incidents she related to the Court demonstrated a classic pattern of domestic abuse. She explained that Ms. Sirenko’s version of the events of August 21, 2015, was more believable, and that Ms. Sirenko had bitten Mr. Munger in self-defense. Although the judge believed that Ms. Sirenko had threatened to text Mr. Munger’s daughter, there was no proof that the text was ever delivered. The trial judge also did not believe that Mr. Munger had intended to sexually assault his son, and expressed cogent and well-considered reasons for her decision.

The trial court granted a protective order in Ms. Sirenko’s favor, prohibiting Mr. Munger from contacting her except as it relates to their son’s health, education or welfare. She awarded temporary joint custody to the parties, with Ms. Sirenko designated as the primary custodial parent. Mr. Munger was awarded unsupervised visitation two days per week and every other weekend. She assessed | fiall costs to Mr. Munger and ordered that the child’s passport be placed into the registry of the court. As both parties were unemployed at the time, the court ordered Mr. Munger to pay $233 per month child support pending further orders, and to provide the court with proof of insurance for the child. Ms. Sirenko was ordered to post a bond of $500 to insure that she would not leave the jurisdiction with the child. Last, the trial court dismissed Mr. Munger’s petition for protection finding that he did not meet the criteria for issuing the order, but had sought the order in an attempt to prevent Ms. Sirenko from fleeing with the child.

DISCUSSION:

Protective orders are issued in domestic violence matters pursuant to the Domestic Abuse Assistance Act, La. R.S. 46:2131, et seq. The purpose of the law is to provide relief to victims of domestic violence by-establishing a civil remedy for domestic violence that affords the victim(s) immediate and easily accessible protection. Dvilansky v. Correu, 16-279, p. 6 (La.App. 4 Cir. 10/26/16), 204 So.3d 686, 689, writ denied, 16-2081 (La. 1/9/17), 214 So.3d 871; Alfonso v. Cooper, 14-0145, p. 13 (La.App. 4 Cir. 7/16/14), 146 So.3d 796, 805. La. R.S. 46:2135 and 46:2136 require that there be “good cause shown” for the issuance of a protective order. “Good cause shown” is defined in La. R.S. 46:2135 as a showing of “immediate and present danger of abuse.” Additionally, the definition of domestic abuse includes, but is not limited to, physical or sexual abuse or any offense against the person, physical or non-physical, as defined in the Louisiana Criminal Code, except negligent injury and defamation, committed by one family or |7household member against another. La. R.S. 46:2132(3). The court may grant a protective order to bring about a cessation of abuse of a party. La. R.S. 46:2136 A.

Louisiana courts have held that the definition of domestic abuse in La. R.S. 46:2132(3) does not include nonphysical acts, such as general harassment and family arguments, if those acts do not rise to the level of physical or sexual abuse in violation of the criminal code, or an offense against a person. Dvilansky, 16-0279, p. 7, 204 So.3d at 689; Lee v. Smith, 08-455, p. 9 (La.App. 5 Cir. 12/16/08), 4 So.3d 100, 106; also see Rouyea v. Rouyea, 00-2613, p.5 (La.App. 1 Cir. 3/28/01), 808 So.2d 558, 561.

An appellate court reviews domestic protective orders for abuse of discretion. Dvilansky, 16-0279, p. 7, 204 So.3d at 689; Alfonso, 14-0145, p. 13, 146 So.3d at 805. Moreover, the standard of review applicable to fact findings of the trial court has been clearly enunciated by our Supreme Court in Rabalais v. Nash, 06-0999, p. 4 (La. 3/9/07), 952 So.2d 653, 657:

It is well-settled that a court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of manifest error or unless it is clearly wrong .... To reverse a fact-finder’s determination, the appellate court must find from the record a reasonable factual basis does not exist for the finding of the trial court, and that the record establishes that the finding is clearly wrong. Mart v. Hill, 505 So.2d 1120, 1127 (La. 1987). Where the [fact-finder’s] findings are reasonable, in light of the record reviewed in its entirety, the court of appeal may not reverse. Even where the court of appeal is convinced that it would have weighed the evidence differently to reach a different result, reversal of the trial court is improper unless the trial court’s ruling is manifestly erroneous, or clearly wrong.

| sIn matters of credibility, an appellate court must give great deference to the findings of the trier-of-fact. Franz v. First Bank Sys., Inc., 03-0448, p. 9 (La. App. 4 Cir. 2/11/04), 868 So.2d 155, 162 (citing Rosell v. ESCO, 549 So.2d 840 (La. 1989)). The trial court is in the best position to view the demeanor and mannerisms of the witnesses. Id. When conflicting testimony exists, reasonable evaluations of credibility and reasonable inferences of fact made by the trial court are not to be disturbed. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882-83 (La. 1993).

In his first assignment of error, Mr. Munger argues that the trial court was manifestly erroneous in granting a protective order to Ms. Sirenko pursuant to La. R.S. 46:2131, et seq. In support of his argument, he makes several arguments concerning the credibility of Ms. Sirenko. In particular,. he points to testimony in which she admits to making a false claim of abuse in an attempt to manipulate Mr, Munger. He argues that this testimony alone indicates that Ms. Sirenko is not credible,- and that the .trial court erred, in believing her version of events. He also argues that her version of the events that occurred on August 21, 2015, should not be believed and is not supported by the record.

Our review of the record indicates that the trial judge was thorough in her deliberations. The judge explained why she believed Ms. Sirenko’s testimony, and commented that the events related by Ms. Sirenko were indicative of a classic pattern of abuse,-including the victim’s reactions to the abuse. The judge |sexamined- the pictures submitted into evidence and determined that the bruises to Ms. Sirenko’s arms, legs and neck were consistent with her testimony, Mr. Munger argues that if Ms. Sirenko’s story is to be believed, she should have had bruises on the front of her body. However, the judge opined that the bruises to the backs of her limbs could have been caused by being pushed down onto the sofa. As stated above, the trial judge observed the demeanor and mannerisms of the witnesses, and was in the better position to judge credibility. As all of Mr. Munger’s arguments are based on the credibility determinations of the trial court,' we cannot say that the trial court was manifestly erroneous in its findings.

Mr. Munger also argues that the trial court erred in not admitting , into evidence a letter from the Office of Community Service relative to a report of abuse of a child in his care. The letter does not contain any reference to the facts of the complaint,-by whom the complaint was made, or what child was involved. We fail to see the relevance of the letter, and therefore agree with the trial court’s ruling.

In .his second assignment of error, Mr. Munger complains that the trial .court was manifestly erroneous in dismissing his petition for protection from abuse. Pursuant to the Domestic Abuse Assistance Act, La. R.S, 46:2131, et.seq,, a trial court’s decision to deny a petition for protection from abuse is reversible only upon a showing of abuse of discretion. Shaw v. Young, 15-0974, p. 4 (La.App. 4 Cir. 8/17/16), 199 So.3d 1180, 1183.

| inThe’record supports the trial court’s finding that Mr. Munger was the aggressor. The trial court heard the testimony and reviewed the evidence. Our standard of review does not allow this Court to substitute our judgment for that of the trial court if the record supports the trial court’s findings. Stobart, supra at 882-83.

In his last assignment of error, Mr, Munger argues that the trial court erred in assessing all costs of court to him. Louisiana Revised Statute 46:2136.1 provides that the trial court shall assess.court costs and attorney fees to the perpetrator of domestic violence. As we find no error in the trial court’s findings of fact, i.e., Mr. Munger was the aggressor, we likewise find no error in the assessment of costs.

Accordingly, for the reasons set forth above, we affirm the judgment of the trial court.

AFFIRMED

      . Nikolas was bom in Moscow, Russia, on August 17, 2014. He is a U.S, citizen, as is Mr. Munger. Ms. Sirenko is a citizen of Kazakhstan.

      . Harmony House (a subsidiary service of Kingsley House) addresses the needs of parents, children, the courts and the communities of New Orleans and the surrounding areas by providing a safe,- supportive, environment for supervised visitation and monitored exchanges with equal regard' for parent and child safely.

      .The purpose of the Domestic-Abuse Assistance Act is to provide relief to victims of domestic violence by establishing a civil remedy for domestic violence that affords the victims immediate and easily accessible protection. Dvilansky v. Correu, 16-279 (La.App. 4 Cir. 10/26/16), 204 So.3d 686, writ denied, 16-2081 (La. 1/9/17), 214 So.3d 871.

      . Protection orders pursuant to La.R.S. 46:2131, et seq., expire after thirty days. Dvilansky v. Correu, 16-279 (La.App. 4 Cir. 10/26/16), 204 So.3d 686, writ denied, 16-2081 (La. 1/9/17), 214 So.3d 871.

      . The parties were living with Mr. Munger⅛ mother in her apartment.

      . Ms. Sirenko was in this country on a tourist visa, obtained by Mr. Munger as her sponsor.

      . At the time of trial, Mr. Munger was unemployed and was enrolled in school to obtain ■ either an M.B.A. or a second baccalaureate degree.

      . The pictures contained in the record aré totally black. The only picture that is discern-able is of the bite to Mr. Munger's armpit.