author: PICKETT, Judge.

text:
    Barry GIGLIO and Marla Giglio v. STATE of Louisiana, Department of Child and Family Services, State of Louisiana, through the Department of Public Safety, Division of State Police, Mindy Venable, Dwayne Venable, and Pam McGee
    17-405
    Court of Appeal of Louisiana, Third Circuit.
    09/20/2017

      Gregory K. Moroux, Sr., Special Assistant Attorney General, Onebane Law Firm, Post Office Box 3507, Lafayette, LA 70502, Telephone: (337) 237-2660, Facsimile: (337) 266-1232, Counsel for Applicants: State of Louisiana, Department of Public Safety and Corrections
    Patrick M. Wartelle, Special Assistant Attorney General, Leake & Andersson LLP, Post Office Drawer Z, Lafayette, LA 70501, Telephone : (337) 233-7430, Facsimile: (337) 233-8403, Counsel for Applicants: Dwayne and Mindy Venable
    Barry Giglio, 2774 Chicot Park Rd., Ville Platte, LA 70876, In Proper Person
    Marla Giglio, 213 Udstad St., Port Sul-phur, LA 70083, In Proper Person
    Court composed of Elizabeth A. Pickett, Billy H. Ezell, and Shannon J. Gremillion, Judges.
   PICKETT, Judge.

LThe defendants-relators, State of Louisiana, Department of Public Safety' and Corrections (DPSC), and Mindy and Dwayne Venable (the Venables), seek supervisory writ from the judgment of the trial court, which denied their motions to dismiss for abandonment.

STATEMENT OF THE CASE

On May 17, 2013, the plaintiffs, Barry and Marla Giglio, filed suit against DPSC and the Venables for damages plaintiffs allegedly sustained as a result of their wrongful arrest and investigation for child molestation arising out of the defendants’ “malicious, reckless, and false accusations.” DPSC and the Venables filed their motions for dismissal based on abandonment pursuant to La. Code Civ. P. art. 561 “after the lapse of three years with no activity to advance the case toward judgment since October 31, 2013, when a Protective Order was filed in the record.” Reviewing the record, the trial court found a letter from the Giglios’ counsel to the clerk of court requesting the issuance of a subpoena duces tecum to the Evangeline Parish Sheriff for records of the plaintiffs’ arrests, stamped with a clerk’s filing date of July 22, 2016. The trial court then ordered the parties to appear for a hearing to determine whether the letter would interrupt the running of abandonment. During the hearing, it was learned that the subpoena was issued, but the trial court found it was “safe to assume” that DPSC and the Venables were not served with notice of the subpoena. In fact, the defendants’ counsel did not even know plaintiffs’ counsel had enrolled or requested the subpoena until the trial court’s order to appear prompted an investigation of the physical record. While the defendants’ counsel argued the subpoena was formal discovery and had to be served on opposing counsel to interrupt the tolling of the abandonment period | «.under La. Code Civ. P. art. 561(B), plaintiffs’ counsel argued the subpoena issued to a third party was not discovery and constituted a step in furtherance of the litigation. After hearing arguments from both sides, the trial court ruled from the bench:

Here’s my dilemma, there was a request, there was a[n] actual issuance of the subpoena by this clerk’s office, all of which was in the record. I am perplexed as to whether that is sufficient to interrupt. .. I am somewhat concerned that, at the time of the filing of the Motion for Abandonment, the record did contain both a request for a subpoena, as well as an actual issuance of the subpoena by this clerk’s office. I am also convinced that defense counsel did not receive a copy of that. Whether one was sent or not, I don’t have proof of, but I do have that they tell me they didn’t receive it. I believe that they didn’t receive it. However, because I think it’s a question of novelty for me, and it’s a close question, as I said in the beginning, I don’t grant an abandonment if I have any doubt whatsoever. Because I do have doubt, I’m going to deny the abandonment, Request for Abandonment.

The trial court stated for the record that its “ruling is based upon the assumption that had [the defendants’ counsel] testified, that they would have testified that they never received a copy of the subpoena request by Mr. Richard.” DPSC and the Venables now seek review of the trial court’s ruling.

DISCUSSION

“The proper procedural vehicle to contest an interlocutory judgment that does not cause irreparable harm is an application for supervisory writs. See La. C.C.P. arts. 2087 and 2201.” Brown v. Sanders, 06-1171, p. 2 (La.App. 1 Cir. 3/23/07), 960 So.2d 931, 933. But see La. Code Civ. P. art. 2083, comment (b), “Irreparable injury continues to be an important (but not exclusive) ingredient in an application for supervisory writs.” (Citation omitted.) “A court of appeal has plenary power to exercise supervisory jurisdiction over trial courts and may do so at any time, according to the discretion of the court.” Herlitz Const. Co., Inc. v. Hotel Inv’rs of New Iberia, Inc., 396 So.2d 878 (La.1981), (per curiam). When the | atrial court’s ruling is arguably incorrect, a reversal will terminate the litigation, and there is no dispute of fact to be resolved, judicial efficiency and fundamental fairness to the litigants dictate that the merits of the application for supervisory writs should be decided in an attempt to avoid the waste of time and expense of a possibly useless future trial on the merits. Id,

Louisiana Code of Civil Procedure Article 561 sets forth the" rules governing abandonment, providing (emphasis added):

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

Abandonment occurs automatically upon the passing of three years without a step being taken by either party and is effective without court ordér. Lá. Code Civ. P. art. 561(A)(3). In this context, a “step” has long been defined as taking formal action before the court, which is intended to hasten the suit toward judgment, or the, taking of a deposition with or without formal notice. Clark v. State Farm Mut. Auto. Ins. Co., 00-3010, p. 6 (La. 5/15/01), 785 So.2d 779, 784. To preserve their suit, plaintiffs must, therefore, met three requirements: (1) plaintiffs must take some “step” towards prosecution of their lawsuit; (2) the step must be taken in the proceeding and, with the' exception of formal discovery, must appear in the record of the suit; and (3) the step must be taken .within the legislatively prescribed time period from the last step taken by either party. James v. Formosa Plastics Corp. of Louisiana., 813 So.2d 335 (La. 2002). Because abandonment is not meant to dismiss actions on mere technicalities, but to dismiss actions which in fact clearly have been abandoned, our courts liberally construe Article 561 in favor of maintaining a plaintiffs suit. Clark, 785 So.2d 779.

|4Our Code of Civil Procedure allows a party to request by letter the issuance of a subpoena duces ' tecum on non-parties. While the purpose of La. Code Civ. P. art. 1354 is to compel production of designated documents and things in trials or hearings, La. Code Civ. P. art. 1463 regulates pretrial discovery of documents and things. Relevant herein, La. Code Civ. P. art. 1463(B) provides (emphasis added):

B. In addition, a party may have a subpoena duces tecum served on a person not a party directing that person to produce documents .... A reasonable notice of the intended inspection, specifying the date, time, and place shall be served on all other parties.

The first circuit, in Paternostro v. Falgoust, 03-2214, pp. 6-7 (La.App. 1 Cir. 9/17/04), 897 So.2d 19, 23, writ denied, 04-2524 (La. 12/17/04), 888 So.2d 870, interpreted this provision in the context of abandonment, holding:

According to the plain language of La. C.C.P. art. 1463, requests for production of documents may be directed to non-parties. However, the exception to the formal action requirement, found in La. C.C.P. art. 561(B), only applies to formal discovery that is authorized by the Code and served on all parties. See Clark, 003010, p. 6 n. 6, 785 So.2d at 784 n. 6. This requirement of service is in keeping with the'concept of notice, which the supreme court recently addressed as follows: The rule requiring ,a party’s action to be on the record is designed to pro-tecta defendant. The rule is intended to ensure notice to the defendant of actions taken that interrupt abandonment. Clark, 00-3010, at p. 17, 785 So.2d at 790. Otherwise, actions interrupting abandonment could occur without opposing parties formally learning of them for months or years, to their possible prejudice. Clark, 00-3010 at p. 17, 785 So.2d at 790.
Therefore, we find that in order for request for production of documents to a non-party to be considered a step in the prosecution of a case, it must be served on all parties. In the instant action, plaintiff did not serve Dr. Palgoust with notice as required by La. C.C.P. art. 561(B) and did not file his requests for production of documents to non-parties into the record of the suit. Therefore, we find that plaintiff failed to establish that his requests for production of documents directed to non-parties qualified as steps in the prosecution of his suit.

DPSC and the Venables assert that the trial court erred in (1) denying their motions to dismiss, (2) considering the plaintiffs’ arguments after they failed to file |fiany briefs, on the issues, and (3) failing to consider that the plaintiffs have the burden of proof to show that a step was taken in the prosecution. Ultimately, the defendants’ position rests on their submission that the last step taken in the case toward prosecution sufficient to interrupt the running of the three-year abandonment period occurred on October 31, 2013, when the trial court entered the protective order. Under the terms of Article 561(B), they argue that the letter requesting a subpoena duces tecum cannot be deemed a step in the prosecution, because notice of same was not “served on all the parties, whether or not filed of record.” Citing Mosley v. Missouri Pacific R.R. Co., 36,907 (La.App. 2 Cir. 3/5/03), 839 So.2d 1218, writ denied, 03-989 (La. 5/30/03), 845 So.2d 1055 (holding notice of informal discovery must be .served on opposing counsel to constitute a step in the prosecution). The defendants even note that, to date, they have received nothing from plaintiffs’ counsel and--that there is no indication in the record that the subpoena was issued, served, satisfied, or returned. They are likewise critical of the manner in which the plaintiffs’ counsel requested the subpoena, as no notice of deposition under La. Code Civ. P. art. 1421 and 1438 were shown with the letter.

In opposition, plaintiffs assert the filing of the letter in the record was a step in the prosecution, as counsel had no intention other than proceeding to trial. While discovery is specifically mentioned in Article 561, the use of the court’s subpoena powers to mandate a third party’s production of records is not. Regardless, they claim it is still preparation and a step in the prosecution, which is not required to be disclosed to opposing counsel or formally served other than by regular U.S. mail. They argue that the record is proof and protection for all counsel, the court, and parties as-to actions outside of discovery requests. The LGiglios also take exception with the lack of candor evidenced in the affidavits, executed by the defendants’ counsel and attached to the motions to dismiss, in which counsel attested to personal knowledge of no existence in the record of a step in the prosecution when, in fact, it had discovered filings and yet still allowed said motions to remain before the court.

At issue herein is whether plaintiffs’ request for the issuance of a subpoena duces tecum on a, third party constitutes a step in the prosecution so as to interrupt the running of abandonment when it was filed in the record but not served on opposing counsel, Jurispruden-tially, a step , in the prosecution must appear in the record to ensure notice to the defendant of actions taken that interrupt abandonment. Clark, 785 So.2d 779. “When any party to a lawsuit takes formal action in the trial court, it is effective as to all parties.” Delta Dev. Co., Inc. v. Jurgens, 456 So.2d 145, 146 (La.1984). Louisiana Code Civil Procedure Article 561(B) sets forth an exception to this formal action requirement for formal discovery that is “authorized by this Code and served on all parties, whether or not filed of record.” Codification of this exception was directly prompted by criticism from judges and commentators of the formal requirement in formal discovery, namely depositions taken with the consent of both parties and in which both parties participated. Clark, 785 So.2d 779.

Here, the letter and subpoena both meet the formal action requirement, but were never served on the opposing parties, who did not even know they were filed. This flies in the face of the whole rationale for the judicial engraftment of the formal action requirement onto Article 561 in the first place. As Judge Tate explained, allowing informal, ex parte actions to serve as a step in the prosecution “might interrupt prescription against abandonment without the opposing parties ^formally learning of them for months or years, to their possible prejudice.” DeClouet v. Kansas City Southern Ry. Co., 176 So.2d 471, 476 (La. App. 3 Cir.), writ refused, 248 La. 383, 178 So.2d 662 (1965)(Tate, J., dissenting from denial of rehearing). That is exactly what happened in this case, as the relators had no knowledge of the request or subpoena for about seven months.

We find that the letter requesting the issuance of a subpoena is properly classified as a discovery request, a particular type of step in the prosecution of a case. Article 561(B) requires that for a discovery request to interrupt prescription, it must be served on all parties. The trial court clearly found that notice of the subpoena was not served on the defendants. Therefore, the matter should have been adjudged abandoned. The trial court’s ruling is reversed, and the case is remanded for the trial court to enter a formal order of dismissal as of October 31, 2016. See La. Code Civ. P. art. 561(A)(3).

Finally, DPSC and the Venables have filed a Motion for Sanctions and/or Dismissal for Failure to Comply with Signed Certificate, citing the failure of the plaintiffs to serve copies of their briefs to the defendants. Uniform Rules—Courts of Appeal Rules 2-14.1 and 2-14.2. There is no authority for this court to.award sanctions for failure to comply with these rules. See Williams v. Andrus, 11-239 (La.App. 3 Cir. 10/5/11), 74 So.3d 818, writ denied, 11-2464 (La. 1/20/12), 78 So.3d 144. Furthermore, in order to award sanctions, this court would have to take evidence to determine if the briefs were properly served, and we are not a court of record. The motions for sanctions and/or dismissal is denied.

MOTIONS DENIED. WRIT GRANTED AND MADE PEREMPTORY.

      . There is no formal judgment attached to this application. At the hearing, the trial court tasked plaintiffs with preparing a judgment. As of filing of this application, no judgment has been proposed, circulated, or submitted.


source: Caselaw Access Project

author: SAUNDERS, Judge.

license: Public Domain

text:
    ADVANCED RADIOGRAPHICS, INC. v. COLONY INSURANCE COMPANY, et al.
    17-144
    Court of Appeal of Louisiana, Third Circuit.
    10/4/2017

      Robin A. Sylvester, Sylvester Law Firm, LLC, 1019 Coolidge Blvd., Lafayette, LA 70503, (337) 513-0504, COUNSEL FOR PLAINTIFF/APPELLANT: Advanced Radiographics, Inc.
    Heather S. Duplantis, Phelps Dunbar LLP, P. O. Box 4412, Baton Rouge, LA 70821-4412, (225) 346-0285, COUNSEL FOR DEFENDANT/APPELLEE: Brown & Brown of Baton Rouge, LLC Kellie Stein
    Kristin L. Beckman, Barrasso, Usdin, Kupperman, Freeman and Sarver, LLC, 909 Poydras Street, 24th Floor, New Orleans, LA 70112, (504) 589-9700, COUNSEL FOR DEFENDANT/APPELLEE: Colony Insurance Company

      Court composed of John D. Saunders, John E. Conery, and D. Kent Savoie, Judges.
   SAUNDERS, Judge.

| ¾ This is a case involving an insurance dispute over coverage after Plaintiffs property was damaged,by fire. Following the loss, Plaintiff submitted a claim to its insurer, who denied the claim. Plaintiff subsequently sued its insurer for denying coverage. Plaintiff also sued the insurance brokerage, and the broker, through whom it had purchased the insurance, for breach of fiduciary duty as agent/mandatary.

Consequently, the insurance brokerage and the broker filed a peremptory exception of no cause of action, which the trial court granted! The sole issue before this court is whether the trial court was legally correct in granting the insurance brokerage and the broker’s exception.

FACTS AND PROCEDUREAL HISTORY:

Plaintiff, Advanced Radiographics, Inc. (“ARI”), who is in the business of storing medical records for health care providers in Lafayette, Louisiana, maintains a corporate office located at 856-B Ridge Road in Duson, a warehouse located at 862 Ridge Road, also in Duson, and eight (8) additional locations in which it stores medicals records. ARI purchased a commercial package policy that included both a general liability (“GL”) coverage part and a property insurance coverage part, from Colony Insurance Company (“Colony”). The GL coverage extended to all ten of ARI’s locations, including the warehouse, whereas the property coverage (which was limited to coverage for contents and business interruption/extra expense), extended only to ARI’s corporate office.

In November of 2014, a-vehicle crashed into ARI’s warehouse, resulting in a fire.Following the loss, ARI submitted a claim to Colony, which Colony denied. As a result of Colony’s refusal to pay the claim, ARI filed suit against Colony. ARI also sued Brown and Brown of Baton Rouge, LLC, (“Brown & Brown”), and 12(now former) Brown & Brown insurance broker, Kellie .Stein (“Stein”), the insurance brokerage (and broker) through whom ARI purchased the Colony Policy.

Defendants, Brown & Brown and Stein, filed a peremptory exception of no cause of action, which the trial court granted on July 25, 2016; On September 16, 2016, ARI filed a motion and order for devolutive appeal from the signed judgment of July 25, 2016, making the court’s July 25, 2016 ruling a final appealable judgment of the court.

DISCUSSION OF THE MERITS:

In their single assignment of error, ARI alleges that the trial court erred as a matter of law by granting the peremptory exception of no cause of action filed .by Brown & Brown and Stein. We disagree.

Exceptions of no cause of action present legal questions, which are reviewed using the de novo standard of review. Aycock v. Chicola, 09-563 (La.App. 3 Cir. 12/16/09), 27 So.3d 1005.

A cause of action, when used in the context of the peremptory exception, is defined as the operative facts that give rise to the plaintiffs right to judicially assert the action against the defendant. Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1238 (La.1993). The function of the peremptory exception of no cause of action is to test the legal sufficiency of the petition, which is done by determining whether the law affords a remedy on the facts alleged in the pleading. Id. at 1235, No evidence may be introduced to support or controvert an exception of no cause of action. La. C.C.P. art. 931. Consequently, the court reviews the petition and accepts well-pleaded allegations' of fact as true. Jackson v. State ex rel. Dept. of Corrections, 00-2882, p. 3 (La. 5/15/01), 785 So.2d 803, 806; Everything on Wheels Subaru, 616 So.2d at 1235. The issue at the trial of the exception is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought. Montalvo v. Sondes, 93-2813 (La. 5/23/94), 637 So.2d 127,131.
Louisiana has chosen a system of fact pleading. La. C.C.P. art. 854 cmt. (a); Montalvo at p. 6, 637 So.2d at 131. Therefore, it is not necessary for a plaintiff to plead the theory of his case in the petition. Kizer v. Lilly, 471 So.2d 716, 719 (La.1985). However, the mere conclusions of the . plaintiff unsupported by facts does not set forth a cause of action. Montalvo at p. 6, 637 So.2d at 131.

Ramey v. DeCaire, 03-1299, p. 7 (La. 3/19/04), 869 So.2d 114, 118.

Where there is an agreement to procure insurance, the Louisiana Supreme Court, in Isidore Newman Sch. v. J. Everett Eaves, Inc., 09-2161, pp. 6-7 (La. 7/6/10), 42 So.3d 352, 356-57, (quoting Karam v. St. Paul Fire & Marine Ins. Co., 281 So.2d 728, 730-31 (La.1973)), stated:

An insurance agent who undertakes to procure insurance for another owes an obligation to his client to use reasonable diligence in attempting to place the insurance requested and to notify- the client promptly if he has failed to obtain the requested insurance. The client may recover from the agent the loss he sustains as a result of the agent’s failure to procure the desired coverage if the actions of the agent warranted an assumption by the client that he was properly insured in the amount of the desired coverage.

After Karam, courts found that the “reasonable diligence” duty of the insurance agent/broker was fulfilled when the agent procures the insurance requested. This was reiterated by the Isidore Neuman Sch. court when it rejected the argument that an insurance agent/broker has a duty to inform the insured of different" coverage options available and the duty to explain the costs and potential benefits of those coverages, explaining:

An agent has a duty" of “reasonable diligence” to advise the client, but this duty has not been expanded to include the obligation to advise whether the client has procured the correct amount 'or type of insurance coverage. It is the insured’s responsibility to request the type of'insurance coverage, and the amount of coverage needed. It is not the agent’s obligation to spontaneously or'affirmatively identify'the scope or the' amount of insurance coverage- the client needs.

Isidore Newman Sch., 42 So.3d at 359.

In the instant case, ARI alleges in its petition the following regarding Brown & Brown and Stein:

25. ARI relied on Stein and on Brown & Brown- through its agent, Stein paying premiums required by the contract, and abiding by all terms of the agreement with State Farm [sic],
I ¿26. ARI relied on Stein and on Brown & Brown to advise ARI regarding its insurance needs and to make recommendations for insurance coverage that was adequate in kind and amount to cover potential losses,
27. Stein and Brown & Brown undertook to procure insurance for ARI and was acting as ARI’s broker; therefore, Stein and Brown & Brown are responsible for any damages suffered by ARI as a result of their fault or neglect in performing duties as ARI’s brokers.
28. Stein and Brown & Brown failed to inform ARI that Colony would deny coverage under the Policy for damages incurred as a result of this occurrence. 29. Stein and Brown & Brown breached their fiduciary duty as agent/mandatory to ARI.

These paragraphs from ARI’s petition fail to state a cause of action. Even if all of these paragraphs are taken as true, at no point does ARI allege that it requested certain insurance which Stein and/or Brown & Brown failed to procure. Our supreme court has been clear in its direction that relying bn an insurance broker/agent for advice and being disappointed by that advice is not, a breach of the duty of “reasonable diligence” owed by an insurance agent/broker to a client. The allegations in ARI’s petition attempt to impose a, duty upon Stein and Brown & Brown to identify the type and amount of insurance coverage ARI needed for their property. Louisiana does not impose this duty upon the insurance agent or broker but, instead, upon the insured.

CONCLUSION:

Advanced Radiographics, Inc. appeals the trial court’s judgment granting sued Brown and Brown of Baton Rouge, LLC, and Kellie Stein’s exception of no cause of action. We find no error by the trial court and affirm its judgment.

AFFIRMED.


author: SAUNDERS, JUDGE.

text:
    STATE of Louisiana v. Alex PERAZA
    17-136
    Court of Appeal of Louisiana, Third Circuit.
    10/04/2017
    Kay Karre’ Gautreaux, Public Defenders Office, 405 W. Convent St., Lafayette, LA 70501, (337) 232-7747, COUNSEL FOR DEFENDANT/APPELLEE: Alex Peraza
    Craig D. Little, Little and Bousquet, LLC, 233 N. College Road, Lafayette, LA 70506, (337) 234-1932, COUNSEL FOR DEFENDANT/APPELLEE: Financial Casualty and Surety, Inc., Adam Romero, All Knight Bonding
    Keith Stutes, District Attorney, Fifteenth Judicial District, Emilia Pardo, Assistant District Attorney, P.O. Box 3306, Lafayette, LA 70502, (337) 232-5170, COUNSEL FOR PLAINTIFF/APPELLANT: State of Louisiana
    Court composed of John D. Saunders, John E. Conery, and D. Kent Savoie, Judges.
   SAUNDERS, JUDGE.

hThis is a case in which Defendant, upon release after arrest, failed to appear for arraignment, the State moved for forfeiture of Defendant’s bond, and the trial court entered judgment of bond forfeiture. Surety subsequently moved to set aside the judgment of bond forfeiture, which the trial court granted. The State appealed.

The sole issue before the court is whether the trial court was legally correct in setting aside a bond forfeiture when the surety failed to timely file its motion pursuant to La.Code Crim.P. art. 349.5, and failed to prove a non-forfeiture situation pursuant to La.Code Crim.P. art. 349.9.

FACTS AND PROCEDURAL HISTORY:

Defendant, Alex Peraza, was arrested for violation of La.R.S. 14:35.3, Domestic Abuse Battery. Immediately following arrest, Defendant secured a commercial surety bond with Financial Casualty and Surety, Inc. (“Surety”), and AAA All Knight Bail Bonding (“Agent”), in the amount of $2,500. Defendant subsequently failed to appear in court, and the State moved for forfeiture of Defendant’s bond. A judgment of bond forfeiture in favor of the State against Defendant, as principal, and Surety, as commercial surety, in the amount of $2,500 was signed on May 14, 2014, and notice of signing of judgment mailed on May 27,2014.

On April 14, 2015, three hundred and twenty-two days after mailing of the notice of the signing of the judgment of bond forfeiture, Surety filed a motion to overturn judgment of bond forfeiture. Surety alleged that within the time frame of mailing of the notice of bond forfeiture, Defendant was continuously in and out of State custody until he was deported, and that it was only by the actions of | ¡.Immigration and Customs Enforcement (“ICE”), from whose custody he had allegedly been in, and the State, from whose custody he had been released, that he was placed outside of the availability of the bonding company to turn him in. On the basis of those allegations, Surety prayed for judgment overturning the bond forfeiture.

The surety’s motion was set for hearing on March 29, 2016, upon the State’s request. Subsequently, as a matter of courtesy to Surety’s counsel, the State requested that the hearing be reset for July 19, 2016.

On July 18, 2016, the State filed a memorandum in opposition to motion to overturn judgment on bond forfeiture. Counsel for Surety did not appear at the July 19, 2016, hearing. Rather, a stand-in appeared and requested a continuance to which the State objected. The hearing was continued to September 27, 2016.

On September 27, 2016, the State argued that Surety and its counsel did not comply with the requirements of La. Code Crim.P. art. 349.5 and La.Code Crim.P. art. 349.9 necessary to have the bond forfeiture overturned. After oral argument, the trial court granted Surety’s motion to have the surety bond obligation overturned, and judgment was signed on October 26, 2016. On November 3, 2016, the State filed a motion and order for devolu-tive appeal from the signed judgment making the ruling a final appealable judgment of the court.

ASSIGNMENTS OF ERROR:

1. The trial court improperly granted the motion to overturn judgment of bond forfeiture, as Surety did not timely file its motion pursuant to La. Code Crim.P. art. 349.5.
2. Surety failed to prove a non-forfeiture situation pursuant to La.Code Crim.P. art. 349.9.

ASSIGNMENT OF ERROR NUMBER ONE:

LThe State asserts that the. trial court erred in granting the motion to overturn judgment of bond forfeiture, as surety did not timely file its motion pursuant to La. Code Crim.P. art. 349.5. We agree.

When an issue raised on appeal posits a question of law, the standard of review is de novo wherein the appellate court determines whether the lower court was legally correct. Tran v. Williams, 10-1030 (La. App. 3 Cir. 2/9/11), 56 So.3d 1224.

Louisiana Code of Criminal Procedure Article 349.5 stated in pertinent part (emphasis added):

A.(l) The defendant and his sureties shall be entitled to assert defensés and actions in nullity by use of summary proceedings in the criminal matter before the trial court that issued the judgment of bond forfeiture within sixty days after the date of mailing the notice of signing of the judgment of bond forfeiture. Any summary proceeding brought by the defendant or his sureties within the sixty-day period shall be deemed by the court within one hundred eighty days of the date of mailing the notice of signing of the judgment of bond forfeiture.
(2) Nullity actions pursuant to Code of Civil Procedure Article 2001 et seq. not filed within the sixty days provided for filing summary proceedings shall be brought by use of ordinary civil proceedings.
B. The defendant and his sureties shall be entitled to assert defenses pursuant to Articles 345-349.9 by use of summary proceedings hi ,'thé criminal matter before the trial court that issued the judgment of bond forfeiture within one hundred eighty days after the date of mailing the notice of the signing of the judgment of bond forfeiture.

Civil in nature, a bond forfeiture is subject to the special rules set forth in the Louisiana Code of Criminal Procedure. Bankers Ins. Co. v. State, 37,080 (La.App. 2 Cir. 4/11/03), 843 So.2d 641, 644, writ denied, 03-1240 (La. 6/27/03), 847 So.2d 1268. See also, State v. Kenning, 563 So.2d 1209, 1211 (La.App. 5 Cir.1990). Prior to being repealed, yet applicable to the case before us, La.Code Crim.P. art. 349.5 allowed a surety and/or a defendant to bring defenses and actions in nullity 14by use of summary proceedings in the criminal matter before the trial court that issued the judgment of bond forfeiture. “Summary proceedings are those which are conducted with rapidity, within the delays allowed by the court, and without citation' and the observance of all the formalities required in ordinary proceedings.” La.Code Civ.P. art. 2591. Louisiana Code of Civil Procedure Article 2593 states, in pertinent part, “[a] summary proceeding may be commenced by the filing of a contradictory motion or by a rule to show cause, except as otherwise provided by law.”

Upon reasonable notice a summary proceeding may be tried in open court or in chambers, in term or in vacation; ,and shall be tried by preference over ordinary proceedings, and without a . jury, except as otherwise provided by law.
The court shall render its decision as soon as-practicable after the conclusion of the trial of a summary proceeding and, whenever practicable, without taking the matter under advisement.

La.Code Civ.P.art. 2595.

Here, on April 14, 2015, Surety filed a summary proceeding, via a contradictory motion to overturn judgment of bond forfeiture, three hundred and twenty-two days after" notice of signing of the judgment of bond forfeiture was mailed on May 27, 2014. This is clearly in excess of the sixty and one hundred and eighty day time limits allowable for summary proceedings under La.Code Crim.P. art. 349.5.

Given the above, we find that the trial court erred in granting Surety’s motion to overturn judgment of bond forfeiture via a summary proceeding. Therefore, we reverse the trial court’s judgment of October 26, 2016, granting Surety’s motion to set aside judgment of bond forfeiture. The original judgment of May 14, 2014, forfeiting the bond in this matter is reinstated.

ASSIGNMENT OF ERROR NUMBER TWO:

lsThe State asserts that Surety failed to prove a non-forfeiture situation pursuant to La.Code Crim.P. art. 349.9. Our finding in Assignment of Error Number One that the trial court erred in granting Surety’s motion to overturn judgment of bond forfeiture via summary proceeding because it was untimely under La.Code Crim. P. art. 345.9 pretermits this assignment of error.

CONCLUSION:

The State asserts two assignments of error as to why the trial court improperly granted Financial Casualty and Surety, Inc.’s and AAA All Knight Bail Bonding’s motion to overturn a judgment of bond forfeiture. We find merit to the State’s first , assignment of error that the use of contradictory motion, a summary proceeding, was improper in this matter as it was untimely under La.Code Crim.P. art. 349,5. This finding pretermits the State’s second assignment of error.

For the foregoing reasons,- we reverse the trial court’s October 26, 2016 judgment which vacated and set aside the bond forfeiture. Further, we reinstate the judgment of bond forfeiture rendered by the trial court on May 14, 2014.

REVERSED AND RENDERED.

      . Louisiana Code of Criminal Procedure Articles 343 to 349 were repealed by Acts 2016, No. 613, § 4, eff. Jan. 1, 2017. However, at all times relevant to this appeal, these provisions were in effect and applicable.


author: GREMILLION, Judge.

text:
    STATE of Louisiana v. Chadwick MCGHEE
    15-286
    Court of Appeal of Louisiana, Third Circuit.
    10/04/2017
    Charles A. Riddle, III, District Attorney, Twelfth Judicial District Court, Michael F. Kelly, Assistant District Attorney, P. O, Box -1200, Marksville, LA 71351, (318) 253-5815, COUNSEL FOR APPEL-LEE: State of Louisiana
    Paula C. Marx, Louisiana Appellate Project, P. O. Box 80006, Lafáyette, LA 70598-0006, (337) 991-9757, COUNSEL FOR DEFENDANT/APPELLANT: Chadwick McGhee
    Chadwick McGhee,' Louisiana State Penitentiary, Main Prison—Walnut 4, Angola, LA 70712, PRO SE
    Court composed of Shannon J. Gremillion, Phyllis M, Keaty, and Candyce G. Perrét, Judges,
   GREMILLION, Judge.

Jjln 2014, Defendant, Chadwick McGhee, was found guilty ‘of simple kidnapping, in violation of La.R.S. 14:45 and was adjudicated' a third-felony offender. Défendant was sentenced to life imprisonment without benefit of probation, parole, or suspension of .sentence. This court vacated Defendant’s conviction due to insufficient evidence. See See State v. McGhee, 15-285 (La.App. 3 Cir. 11/4/15), 179 So.3d 739, and 15-286 (La.App. 3 Cir. 11/4/15), 178 So.3d 316. The supreme court subsequently reversed that ruling and remanded to this court for consideration of the assignments of error this court’s prior rulings had rendered moot. State v. McGhee, 15-2140, 15-2141 (La. 6/29/17), 223 So.3d 1136.

ASSIGNMENT OF ERROR

Defendant rafees a single assignment of error, that his prior guilty plea to assault by drive-by shooting should not count as a predicate offense for his adjudication as a third-felony offender on the basis that he did not have conflict-free counsel, as his appointed attorney represented both Defendant and his co-defendant in that case. Defendant is precluded from raising this argument on review.

Under La.R.S. 15:529.1(D)(l)(b), “[a]ny challenge to a previous conviction which is not made before sentence is imposed may not thereafter be raised to attack the sentence.” Although Defendant objected to the use of his prior convictions as predicate offenses during the habitual offender adjudication, his argument was that Defendant was not properly Boykinized because he was not informed that he had thirty days within which to file an appeal, and furthermore that there appeared to be some confusion during Defendant’s plea to assault by drive-by shooting. At no point in time was there any allusion that Defendant’s counsel during the plea had a conflict and could not properly represent Defendant. |2As this court has previously noted, “Defendant failed to contemporaneously object to the evidence based on the alleged defect. Therefore, the error was not preserved for appellate review.” State v. Watson, 609 So.2d 1198, 1203 (La.App. 3 Cir. 1992), writ denied, 95-1689 (La. 2/21/97), 688 So.2d 530.

DECREE

Defendant’s sentence is affirmed.

SENTENCE AFFIRMED.


author: LILJEBERG, J.

text:
    STATE of Louisiana v. Jose PEREZ
    NO. 17-KA-119
    Court of Appeal of Louisiana, Fifth Circuit.
    August 30, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE, STATE OF LOUISIANA, Joel T. Chaisson, II, Hahnville, Louis G. Authement
    COUNSEL FOR DEFENDANT/APPELLANT, JOSE PEREZ, James S. Holt, Baton Rouge
    Panel composed of Judges Robert M. Murphy, Stephen J. Windhorst, and Hans J. Liljeberg
   LILJEBERG, J.

11 Defendant, Jose Perez, appeals his conviction 'and sentence following his agreement to enter into a guilty plea. For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND • -

On Julie 8,- 2016, the St, Charles Parish' District Attorney filed a bill of information charging'defendant, Jose Perez, with aggravated flight from an officer, in violation of Lá. R.S. 14:108.1. On November 3, 2016, defendant entered a plea of guilty as-charged.

Because defendant pleaded guilty, the facts were not fully developed at trial. However, in the bill of information, the State alleged that on or about April 9, 2016, defendant committed aggravated flight from an officer by the intentional refusal to bring a vehicle to a stop under circumstances wherein human life was endangered. The record further indicates that during his flight from the officer, defendant hit another vehicle head on causing serious bodily injuries to the occupant of the other vehicle.

In accordance with the plea agreement, the trial court sentenced defendant to six years-.imprisonment with the Department of Corrections. On November 28, 2016, defendant filed a motion for reconsideration of sentence, which was denied by the trial court on January 10, 2017. On January 18, 2017, defendant filed a motion for appeal, which was granted by the trial court on January 23, 2017. The instant appeal now follows.

DISCUSSION

In his first assignment of error, defendant 'first argues his sentence is constitutionally excessive. He argues his rudimentary understanding of the English ^language and laws and customs of this country impacted his behavior and the sentence imposéd is one demonstrably disproportionate to his actions, rendering his sentence cruel and unusual. He further argues the sentence imposed places an undue burden on the taxpáyers of 'Louisiana,' who must feed, house, and clothe defendant for the duration of his sentence. Also, he claims the trial court failed to consider his potential rehabilitation .with .the intention of making him a productive member of society.

In his second assignment of error, defendant contends the trial court erred in denying his motion for reconsideration of sentence. On appeal, as he did in his motion for reconsideration, he avers that as a Honduran National, he' should have been advised that under Article 36 of the Vienna Convention on Consular Relations, he had a right to contact his local Honduran Consulate. He' claims that because the police failed to inform him of his right to contact the consulate, his rights under Article 36 were violated. Specifically, he contends that by not advising him of his Article 36 rights, the police gave him a misleadingly incomplete picture of his legal options and that he had no. context to understand his Miranda rights. He claims that without the benefits that flowed from Article 36, he was subjected to inherently flawed and unfair proceedings. He argues the granting of his motion for reconsideration of sentence would have rendered his Article 36 rights effective.

The State responds that defendant's argument that his six-year sentence constitutes cruel and unusual punishment is without merit. The State cites La. C.Cr.P. art. 881.2, averring that defendant cannot appeal a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of lathe plea. The State maintains that defendant’s sentence is well within the ten-year maximum and that defendant fails to offer any support for his claims that his sentence constitutes cruel and unusual punishment and is excessive.

The State further responds that defendant’s argument regarding the violation of his Article 36 rights is without merit. The State argues defendant failed to how any assistance from the consulate would have provided him with greater representation than he received from his court-appointed attorney and translator.

The record reflects that before the trial court engaged in the guilty plea colloquy with defendant, an interpreter was sworn in and utilized throughout the proceedings. During the colloquy and on the waiver of rights form, the trial court informed defendant of the maximum sentence, ten years and a two thousand dollar fine, that could be imposed. The trial court also informed defendant of the - six-year sentence she would impose if she accepted his guilty plea. The trial court also properly advised defendant of his rights under Boykin. After receiving an explanation of his legal rights, as well as the sentence the trial court would impose, defendant chose .to plead guilty.

La. C.Cr.P. art. 881.2(A)(2) provides “[t]he defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea.” This Court consistently recognizes that Article 881.2(A)(2) precludes a defendant from seeking review of a sentence agreed upon at the time of the guilty plea. State v. Hayes, 15-771 (La. App. 5 Cir. 4/13/16), 190 So.3d 482; State v. Lindsay, 09-397 (La. App. 5 Cir. 12/8/09), 30 So.3d 7, 9-11, writ denied, 10-32 (La. 6/25/10), 38 So.3d 335.

LBased on the foregoing, we find defendant is not entitled to appellate review of his sentence. We further find the trial court did not err in denying defendant’s motion to reconsider sentence. See State v. Lee, 02-529 (La. App. 5 Cir. 10/29/02), 831 So.2d 395, 397 (wherein a defendant’s sentence was imposed in conformity with a plea agreement, and this Court precluded the defendant from raising a claim of excessiveness of sentence on appeal and further found the trial court correctly denied the defendant’s motion to reconsider sentence). Furthermore, an unqualified guilty plea generally waives all non-jurisdictional defects in the proceedings prior to entry of the guilty plea and precludes review of such alleged defects on appeal. State v. Cox, 02-333 (La. App. 5 Cir. 9/30/02), 829 So.2d 521, 523.

In his third assignment of error, defendant argues his trial counsel was ineffective based on his failure to object to his sentence because the sentence was demonstrably disproportionate to the actions of defendant. In his fourth assignment of error, defendant argues his trial counsel was ineffective because he failed to inform defendant of his rights under Article 36 of the Vienna Convention on Consular Relations and failed to take action to protect these rights. As a result of these alleged failures, defendant claims he was denied his Sixth Amendment right to effective assistance of counsel.

The State responds that defendant’s arguments to support these assignments of error for ineffective assistance of counsel have no merit because defendant’s trial counsel provided him with the level of criminal representation afforded to every criminal defendant under state and federal law, trial counsel’s performance did not fall below the minimum standards, and defendant failed to prove that but for the alleged errors, the outcome of his case would have been any different.

| ¡¡The Sixth Amendment to the United States Constitution and Article I, § 13 of the Louisiana Constitution safeguard a defendant’s right to effective assistance of trial counsel. State v. Thomas, 12-1410 (La. 9/4/13), 124 So.3d 1049, 1053. According to the United States Supreme Court’s opinion in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a defendant asserting an ineffective assistance claim must show: 1) that defense counsel’s performance was deficient and 2) that the deficiency prejudiced the defendant. The defendant has the burden of showing that “there is a reasonable probability that, but for counsel’s unprofessional errors, the results of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.

Generally, an ineffective assistance of counsel claim is most appropriately addressed through an application for post-conviction relief filed in the district court, where a full evidentiary hearing can be conducted, rather than by direct appeal. State v. Jones, 13-99 (La. App. 5 Cir. 8/27/13), 123 So.3d 758, 765. However, when the record is sufficient to rule on the merits of the claim and the issue is properly raised in an assignment of error on appeal, it may be addressed in the interest of judicial economy. Id.

With respect to defendant’s claim that his counsel failed to object to his sentence, as previously discussed, defendant was barred from seeking review of his sentence because it was imposed as part of the plea agreement. As such, we find defendant’s counsel was not ineffective by failing to object to the agreed-upon sentence. See Hayes, 190 So.3d at 485 (the defendant’s counsel was not ineffective for failing to file a motion to reconsider sentence or to object to the agreed upon sentences resulting from a plea agreement).

|fAs discussed above, defendant also claims ineffective assistance of counsel because his counsel should have informed defendant of his right to consular assistance and acted to protect that right. He contends this failure precluded him from exercising his right to consular assistance and prejudiced him in determining whether to plead guilty.

The Vienna Convention on Consular Relations (Convention), Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261, is a treaty governing the consular relations between its member nations; the United States has been a member since 1969. Article 36 of the Convention is the portion which pertains to the instant case and concerns consular officers’ access to their nationals detained by authorities in a foreign country. The article provides that:

“if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner.”

Art. 36(l)(b), id:, 21 U.S.T. at 101.

The United States Supreme Court in Sanchez-Llamas v. Oregon, 548 U.S. 331, 338-39, 126 S.Ct. 2669, 2675, 165 L.Ed.2d 557 (2006), explained in other words “when a national of one country is detained by authorities in another, the authorities must notify the consular officers of the detainee’s home country if the detainee so requests.” Article 36(l)(b) further states that “[t]he said authorities shall inform the person concerned [i.e., the detainee] without delay of his rights under this sub-paragraph.” Id.

In State v. Garcia, 44,562 (La. App. 2 Cir. 10/28/09), 26 So.3d 159, writ denied, 09-2583 (La. 2/11/11), 56 So.3d 992, the Second Circuit addressed a similar issue. In that case, the defendant argued his counsel was ineffective because he did not challenge the failure to inform the defendant of his rights to consular notification before trial to allow defendant to secure assistance from the |7Mexican Consulate. The appellate court found this claim was without merit. The Garcia court found this claim to be without merit and cited to Sanchez-Llamas v. Oregon, 548 U.S. at 349, 126 S.Ct. at 2681, which held that a defendant only has a right to have his consulate informed of his arrest, not to have the consulate intervene or to have proceedings halted until the consulate can provide assistance. Id. at 168. Furthermore, the appellate court found the defendant had not shown how he was prejudiced under Strickland, supra, as the record showed the defendant received adequate due process in the matter:

Furthermore, defendant has not shown how he was prejudiced by this as the record shows that he was provided adequate due process in this matter. Strickland puts the burden on a. defendant to show prejudice and defendant has failed to carry this burden. Defendant was interviewed by a police officer fluent in Spanish, he signed a form advising him of his rights in Spanish, his interview was videotaped, and he was appointed counsel to represent him. Defendant’s own attorney was likely far better to explain the United States legal -system to him than any consular official would have been. Breard v. Greene, 523 U.S. 371, 377, 118 S.Ct. 1352, 1355, 140 L.Ed.2d 529 (1993). Defendant has offered no evidence whatsoever that the Mexican consulate could (or would) have offered any assistance that his attorney did not. See, Murgas v. United States, Not Reported in F.Supp.2d, 2002 U.S. Dist. LEXIS 6277, 2002 WL 553462 (N.D.N.Y. 2002); Polanco v. United States, Not Reported in F.Supp.2d, 2000 U.S. Dist. LEXIS 10788, 2000 WL 1072303 (S.D.N.Y. 2000).

Id.

In the instant matter, we first find the record contains sufficient evidence to rule on the merits of this claim. We further find defendant’s ineffective assistance of counsel .claim fails because defendant has not demonstrated prejudice. Assuming, ar-guendo, that trial counsel failed to protect defendant’s rights under the treaty, defendant failed to demonstrate that, but for trial counsel’s errors, be would' not have pleaded guilty. His allegations áre conclu-sory and lack specificity. He does not establish what a consular officer would have done in his particular case, and defendant submitted no evidence to establish a consular officer would have obtained a different result. He does not allege any specific advice the | ¡^consular officer would have given which would have had some impact on specific aspects of his case.

The record shows defendant was represented by counsel at every critical stage of his criminal proceedings, including his guilty plea and sentencing, and that an interpreter was also utilized during these proceedings. The guilty plea transcript reflects defendant’s answers were responsive to the questions posed and he never indicated he did not understand the proceedings. The record reflects defendant received adequate due process in the matter. Accordingly, defendant has not demonstrated that, but for counsel’s alleged unprofessional conduct, the outcome would have been different. See State v. Seals, 09-1089 (La. App. 5 Cir. 12/29/11), 83 So.3d 285, 328-29, writ denied, 12-293 (La. 10/26/12), 99 So.3d 53, cert. denied, 569 U.S. 1031, 133 S.Ct. 2796, 186 L.Ed.2d 863 (2013). Therefore, we find defendant’s ineffective assistance of counsel claim is without merit.

ERROR PATENT DISCUSSION

The record was reviewed for errors patent, according to La. C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d 175 (La. App. 5 Cir. 1990). We discovered one error patent requiring corrective action.

Neither the sentencing transcript, the minute entry, nor the guilty plea form reflect that defendant was given a proper advisal of the time period for' seeking post-conviction relief as required by La. C.Cr.P. art, 930.8. If a trial court fails to advise, or provides an incomplete advisal, pursuant to La. C.Cr.P. art. 930.8, the appellate court may correct this error by informing the defendant of the applicable prescriptive period for post-conviction relief by means of its opinion. See State v. Brooks, 12-226 (La. App. 5 Cir. 10/30/12), 103 So.3d 608, writ denied, 12-2478 (La. 4/19/13), 111 So.3d 1030.

| flAccordingly, by way of this- opinion, we advise defendant that no application for post-conviction relief, including applications that seek an out-of-time appeal,, shall be considered if it is filed.more than two years after the judgment of conviction and sentence has become final under the provisions of La. C.Cr.P. arts. 914 or 922.

DECREE

For the foregoing reasons, we affirm defendant’s conviction and sentence.

CONVICTION AND SENTENCE AFFIRMED

      . Though the trial judge sentenced defendant to imprisonment in the Department of Corrections, rather than to imprisonment at hard labor as required by the pertinent penalty statute, this Court deems such a sentence necessarily at hard labor. See State v. Baptiste, 16-316 (La. App. 5 Cir. 12/14/16), 209 So.3d 321, 324, fn. 2.

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

      . Defendant's first and second assignments of error are addressed together because they are related.

      . La. 14:108.1(E)(2)(a) provides that "[w]ho-ever commits the crime of aggravated flight from an officer that results in ‘serious bodily injury shall be imprisoned at hard labor for not more than ten years and may be fined not more than two thousand dollars.”

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

      . We also address the third and fourth assignments of error together because they are related.


author: WICKER, J.

text:
    Jasmine RAYMOND v. DEPOSITORS INSURANCE COMPANY, Rubber & Specialties, Inc., and Lance M. Cook
    NO. 17-CA-132
    Court of Appeal of Louisiana, Fifth Circuit.,
    September 08, 2017
    COUNSEL FOR PLAINTIFF/APPEL-LEE, JASMINE RAYMOND, Stephen M. Huber, Brian P. Mareelle, Gina M. Palermo, Thomas M. Flanagan, Andy Dupre, Anders F. Holmgren, Edward J. Womac, Jr., Douglas J. Womac, Jr., New Orleans.
    COUNSEL FOR DEFENDANT/APPELLANT, DEPOSITORS INSURANCE COMPANY, RUBBER & SPECIALTIES, INC., AND LANCE M. COOK, Charles L. Chassaignac, IV, Baton Rouge, Emily S. Morrison Nahum D. La-venthal
    Panel composed of Judges Fredericka Homberg Wicker, Robert M. Murphy, and Hans J. Liljeberg
   WICKER, J.

hln this appeal, defendants, Depositors Insurance Company, Rubber & Specialties, Inc., and Lance M. Cook, sought review of the district court’s October 11, 2016 judgment, reflecting a twelve-person jury’s awards of general and special damages to plaintiff, Jasmine Raymond, for injuries she sustained as a result of a three-car motor vehicle collision on Interstate 10. Prior to submission of the case to the jury, the district court granted plaintiffs motion for directed verdict on the issue of liability for the motor vehicle, collision. Thus, the only issues before the jury were medical causation for plaintiffs injuries and damages. As discussed below, appellants, Depositors Insurance Company, Rubber & Specialties, Inc,, and Lance M. Cook, have filed a motion to dismiss this appeal. Upon consideration, we grant appellants’ motion and dismiss the appeal.

FACTUAL AND PROCEDURAL BACKGROUND

The Accident

On June 27, 2014, defendant, Lance Cook, was in heavy morning traffic on Interstate 10, heading eastbound, immediately before the Interstate 10/Interstate 610 split in Jefferson Parish. At the time, Mr. Cook was returning from a business trip for his employer, Rubber <& Specialties, Inc., and he was driving a truck insured by Depositors Insurance Company. Mr. Cook admitted to the responding officer at the scene and to the jury at trial that he looked down at his phone to check his GPS and made impact with the rear-end of plaintiffs vehicle at the same time as he looked up. The impact sent plaintiffs vehicle into the car in front of her vehicle, such that plaintiffs vehicle sandwiched between the two cars. Mr. Cook testified at trial that plaintiff was “visibly shaking” when he walked 'around to the side of her vehicle to check on her. Following this accident, as the record reflects, plaintiff— who was twenty-four-years-old at the time of the accident and who had no prior history of back or neck problems—underwent numerous procedures and I ^surgeries over the next two years in an effort to alleviate severe pain she experienced after the accident.

The Petition and Pre-Trial Order

On January 13, 2015, plaintiff filed a petition seeking damages for, among other things, past and future physical pain and suffering, past and future mental pain and suffering, past and future medical expenses, loss of past and future earnings and earning capacity, permanent disability, and loss of past and future enjoyment of life, arising out of “severe and disabling injuries” she sustained in the June 27, 2014 accident. Plaintiffs petition named three defendants: the driver, Mr. Cook; the driver’s employer, Rubber & Specialties, Inc.; and the insurer of the driver’s truck, Depositors Insurance Company. On February 20, 2015, defendants filed an answer in which defendants denied liability and alleged as an affirmative defense that plaintiff failed to mitigate her damages.

On January 26, 2016, the district court issued its pre-trial order, directing the parties, among other things, to prepare a consolidated pre-trial memorandum—including “[a] concise summary of the facts or contentions made by all parties” and “[a] list of contested issues of fact and law, specified with particularity”—no later than seven days (excluding weekends and holidays) prior to the August 25, 2016 pre-trial conference. The pre-trial order also required that “[fjinal expert or contradictory/rebuttal expert reports shall be exchanged no later than ninety (90) days before Trial.”

| ¡Pre-Trial Litigation and Jury Trial

On August 16, 2016, plaintiff and defendants filed their joint pre-trial memorandum in which defendants for the first time raised as a contested issue the “Applicability of ‘no pay, no play' [La. R.S. 32:866], as plaintiff was an unlicensed driver in her vehicle at the time of the incident.” Likewise, in providing a brief summary of plaintiffs “medical reports, including extent of injury, length of treatment, disability factor and medical expenses,” plaintiff cataloged the numerous surgeries and procedures she had undergone thus far and included the then-recent August 5, 2016 diagnosis from her treating physician, Dr. Rodriguez, of a recurrent disc herniation at L4-5 with right leg radiculopathy, reporting as his recommendation that “she is a candidate for a lumbar fusion surgery in the future.”

On September 8, 2016, defendants filed their “Expedited Motion to Continue Trial and to Compel Updated IME.” Defendants’ expert, Dr. Andrew Todd, performed an independent medical examination (“IME”) on plaintiff on November 20, 2015, after which he concluded plaintiff had suffered a soft-tissue injury. In their motion, defendants argued that, since that IME, plaintiffs medical condition did not progress in “a normal manner.” Rather, defendants maintained that, following her March 31, 2016 surgery, plaintiff experienced a “new medical condition,” necessitating in the interest of fairness a continuance of trial and an updated IME. In response, plaintiff rejected defendants’ assertion that her recurrent disc herniation was a “new medical condition.” Rather, she argued that Dr. Rodriguez’s recommendation of lumbar fusion surgery constituted the next measure in her continued treatment for her original disc herniation injury. Contending that defendants had not shown good cause for an updated IME, plaintiff represented that, on August 17, 2016, she provided defendants with new MRI films for their expert’s review and with an updated life care plan from plaintiffs expert in vocation assessment and life care planning analysis, Aaron | ¿Wolfson, Ph.D., reflecting Dr. Rodriguez’s opinion that plaintiff would need two lumbar fusion surgeries over the course of her lifetime and reflecting the estimated costs of these surgeries. Accordingly, she urged the district court to deny defendants’ motions. On September 15, 2016, five days before the beginning of trial, the district court denied defendants’ motions.

Related to Dr. Rodriguez’s fusion surgery recommendation, defendants sought to limit the testimony of two of plaintiffs nonmedical experts who would testify about the cost of the additional surgeries and the present value of those surgeries— the surgery she would need immediately and the second surgery she would need over the course of her lifetime. On September 15, 2016, the same day that the district court denied defendants’ motions to continue and for an updated IME, defendants filed their “Motion to Strike Late Expert Testimony,” seeking to limit the testimony of Aaron Wolfson, plaintiffs expert in vocational assessment and life care planning analysis, and of his brother, Shael Wolfson, plaintiffs expert in the field of forensic economics. According to defendants, despite the pre-trial order’s June 21, 2016 deadline for submitting final expert reports, plaintiff submitted supplemental reports from Aaron Wolfson on August 16, 2017, and from Shael Wolfson on August 22, 2016 and September 13, 2016., Defendants sought to limit the substance of their testimony to the information contained only in the reports submitted to defendants prior to the June 21, 2016 deadline. Prior to the beginning of trial, the district court held a hearing on defendants’ motion. Plaintiff argued that her medical experts would testify as to her need for these Usurgeries and could price the surgeries themselves, regardless of whether district court permitted the nonmedical experts to testify. Reviewing the fluctuations in her response to treatment, plaintiff emphasized that the difference between the present value of the future medical expenses reflected in Shael Wolfson’s September 2015 report and in his August 2016 report is roughly $121,000 (i.e., the difference between approximately $489,000 and approximately $610,000). Ultimately, the district court denied defendants’ motion, finding “that the reports are more just updated as to her condition, and it’s not a significant-change.”

Prior to trial, on September 1, 2016, plaintiff filed a “Motion to Strike ‘No Pay No Play1 Affirmative Defense” [sic], arguing that defendants could not raise this affirmative' defense because they did' not plead it in their answer and asserting that, in any event, the affirmative defense is not applicable in this matter because the vehicle plaintiff drove at the time of the collision was insured. Defendants opposed plaintiffs motion to strike. Prior to beginnings voir dire on the first day of trial, September 19, 2016, the district court took up defendants’ motion, Considering defendants had never sought in discovery or subpoenaed a copy of the policy insuring, the vehicle plaintiff drove at the time of-the accident,, the district court found that it could look at -this issue at any time and decided to defer - the matter until after' trial.

After three days of trial testimony,' the parties rested. After the district court granted plaintiff’s motion for directed verdict on-the issue of liability, the jury retired to consider the questions of medical causation and damages. Following deliberations, the jury returned a verdict in favor of plaintiff, awarding her (1) la$10,000 for past physical pain and suffering; (2) $190,000 for future physical pain and suffering; (3) $10,000 for past mental anguish; (4) $190,000 for future mental anguish; (5) $10,000 for past loss of enjoyment of life; (6) $190,000 for future’loss of enjoyment of life; (7) $114, 368.87 for . past medical expenses; (8) $610,125 for future medical-expenses; (9) $55,000 for past lost wages; (10) $30,000 for future lost wages and loss of earning capacity; and (11) $172,916 for disability. On October 11, 2016, the district court issued a judgment incorporating the jury’s verdict.

On October 18, 2016, defendants filed their motion for new trial. Although the record does not disclose any post-trial motion related to defendants’ asserted “nó pay, no play” affirmative defense, defendants mention in passing that the court “has yet to rule on the application off‘no pay, no play,’ as the plaintiff was to provide the Court with the policy of insurance for the vehicle.” The district court denied defendants’ motion for new trial the same day defendants filed it.

On November 9, 2016, defendants filed a motion for suspensive appeal of the district court’s October 11, 2016 judgment. The district court granted defendants’ motion on November 14, 2016.

DISCUSSION

Defendants alleged four assignments of error on appeal. First, defendants argued that the district court erred in denying their “Motion to Strike Late .Expert Testimony,” -permitting Aaron Wolfson and Shael Wolfson to testify to information contained in the supplemental reports plaintiff submitted after the June 19, 2016 discovery deadline. Second, defendants contended the district court erred in denying defendants’. “Motion, to Continue Trial and to Compel Updated IME” as Dr. Rodriguez’s surgery recommendation approximately one month prior to trial necessitated both a' continuance and an updated IME. Third, defendants maintained that the jury erred in awarding plaintiff future medical expenses in the |7amount of $610,125, as this amount was not supported by the record. Finally, defendants argued that this court should remand this matter to the district court for consideration of the applicability of La. R.S. 32:866, the “no pay, no play” statute.

On September 6, 2017,- the afternoon prior to oral argument, appellants, Depositors Insurance Company, Rubber & Specialties, Inc., and Lance M. Cook, filed a motion to dismiss their appeal. Therefore, we decline to consider the assignments of error raised on appeal and hereby grant appellants’ motion to dismiss their appeal.

CONCLUSION

Accordingly, for the foregoing reasons, this appeal is dismissed. "

APPEAL DISMISSED

      . The record contains the following trial stipulations, signed by both parties:
      1. Defendant, Lance Cook, was in the course and scope of his employment with Rubber & Specialties, Inc. on the date and time of the accident that forms the basis of this lawsuit.
      2. At the time of the accident which forms the basis of this lawsuit, Defendant, Depositor's [sic] Insurance Company, provided a policy of insurance, which provided coverage to Rubber & Specialties, Inc. and its employee, Lance Cook, for the accident which forms the basis of this lawsuit.
      At trial, plaintiff’s counsel read these stipulations into the record.

      . Both Aaron Wolfson and Shael Wolfson have earned doctorates in their respective fields. In the interest of clarity, we do not use the title "doctor” to refer to either gentleman in order to minimize confusion.

      . Defendants' counsel represented at the hearing that Shael Wolfson submitted two separate reports on September 13, 2016: "One is the wage claim. One is the future med claim. They're both dated—two separate reports dated that date.”

      . Aaron Wolfson testified at trial that he submitted two supplemental reports, as well: one in August 2016 and one on September 12, 2016.

      . Indeed, Aaron Wolfson testified that the pricing he used came from Dr. Rodriguez. According to Dr. Rodriguez, his office manager "usually.. .talks to the hospital and puts it all together,” and his office will then give those figures to the life care planning analyst.

      . None of these reports are contained in the record. Thus, as to the contents of the reports, we must rely on the parties' representations to the district court and on the district court’s observations as it reviewed the reports and discussed the matter with the parties at the hearing.