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    Jody Dwayne KOPNICKY v. CITGO PETROLEUM CORPORATION, et al. Jonathan Wieley Alex, et al. v. Citgo Petroleum Corporation, et al.
    No. CW 07-01483.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 3, 2008.
    Order Vacating Judgment on Grant of Rehearing May 7, 2008.

      Charles Nolen Harper, Marshall Joseph Simien Jr., Lake Charles, LA, Yul Dubart Lorio, Lafayette, LA, Joe McCaleb Bilbro, Metairie, LA, Dominic Joseph Gianna, for Citgo Petroleum Corporation.
    Kirk Albert Patrick III, Baton Rouge, LA, for R & R Construction Inc.
    Wells Talbot Watson, Richard Elliott Wilson, Lake Charles, LA, for Jody Dwayne Kopnicky, Jonathan Wieley Alex et al.
   ^MOTION TO STRIKE DENIED. The instant motion has been rendered moot by the Relator’s filing of an amended writ application in response to a prior order of this court.

RULE TO SHOW CAUSE DENIED.

WRIT GRANTED AND MADE PEREMPTORY: We find that the trial court erred in finding the Relator in contempt of court for failure to comply with its orders regarding the Plaintiffs’ demand for a La. Code Civ.P. art. 1442 deposition. The Relator was ordered, on two occasions, to provide “one or more” persons of its choice to appear for the deposition, and the Relator designated and provided such persons in compliance with these orders.

The Plaintiffs’ Notice or Re-Notice of Deposition did not demand that any specific person or persons be deposed and neither were any such persons listed or mentioned in the orders of the trial court regarding these notices. Further, no additional notices for deposition of these other persons have been made by the Plaintiffs and there are, therefore, no grounds for prospectively holding Mr. Kevin Stockstill, Mr. Jeff Bednar, or the Relator in contempt for failure to so provide such names.

Accordingly, the ruling of the trial court finding the Relator in contempt of court is hereby reversed, vacated and set aside. Additionally, we set aside the order compelling the specific attorneys to provide their client’s names, and the case is remanded for further proceedings consistent with this opinion.

REHEARING GRANTED

|,This- matter first came before this court when CITGO Petroleum Corporation (CITGO) filed an application for supervisory writs, seeking to have a trial court judgment finding it in contempt of court set aside. The underlying litigation arises from a June 2006 chemical spill that occurred at the CITGO facility in Calcasieu Parish, Louisiana. The plaintiffs in these consolidated cases seek to recover damages they claim to have sustained as a result of the chemical spill. The issues now before this court relate to matters that occurred in the discovery process. By a judgment dated January 8, 2008, this court vacated the trial court’s order finding CITGO in contempt of court and set aside the order compelling specific attorneys to provide their clients’ names. The matter is now before us on an application for rehearing filed by the plaintiffs. For the following reasons, we grant the plaintiffs’ motion for rehearing, vacate our prior judgment, and enter a new judgment as explained below.

|2On April 16, 2007, the plaintiffs served CITGO with a notice of corporate deposition, listing twenty-five items' or areas for examination. The notice further requested that, pursuant to La.Code Civ.P. art. 1442, CITGO “designate one or more officers, directors, managing agents, or other persons who consent to testify and/or are competent to testify on its behalf, regarding the [twenty-five areas of examination], as well as to such other relevant information as the witness may possess” and to produce any and all documents relating to these twenty-five areas.

CITGO responded to the notice by producing its environmental manager, David Hollis, as its Article 1442 designee. On April 25, 2007, the plaintiffs deposed Mr. Hollis. In that deposition Mr. Hollis testified concerning ten of the twenty-five areas of examination listed in the original notice. However, he could provide no information concerning the remaining fifteen areas.

The day after taking Mr. Hollis’ deposition, the plaintiffs filed a second notice of deposition seeking discovery of information regarding the fifteen items not addressed the day before. In their notice, the plaintiffs again requested that, pursuant to La.Code Civ.P. art. 1442, CITGO “designate one or more officers, directors, managing agents, or other persons” to be deposed on these remaining areas, and to produce all documents related to these areas.

CITGO responded to this filing on August 17, 2007, by filing a motion seeking to limit the scope of discovery and to quash the Article 1442 deposition. In its motion, CITGO asserted that it was facing hundreds of legal actions involving thousands of plaintiffs in both state and federal forums, and that the United States Department of Justice had begun an investigation to determine if federal laws were violated in the incident. Asserting that because its employees had become the subject of the federal investigation, and because these employees might require separate |scriminal counsel and might find it necessary to invoke the self-incrimination provisions of U.S. Const, amend. V during any deposition testimony, CITGO sought a stay order from the trial court prohibiting the plaintiffs from taking the testimony of any person under criminal investigation. However, CITGO did not identify these persons or explain how an individual employee’s testimony could be subject to criminal inquiry.

At a September 24, 2007 hearing on its motion, CITGO presented no evidence in support of the assertions in its August 17 motion despite the fact that the trial court gave the litigants specific evidentiary matters it would consider in determining whether a protective order should be issued. Instead, CITGO’s counsel asserted that the corporation would be hamstrung in responding to the litigation or in addressing settlement issues because of the federal criminal consequences of anything it might do in civil litigation. However, when questioned by the trial court, counsel for CITGO acknowledged that he had no information that anyone with CITGO had received a target letter from the federal prosecutors.

During the proceedings, counsel for CITGO deferred to a number of criminal defense attorneys who were present in the court room during the hearing. Although their status in the litigation lends little to the resolution of the issue now before us, one of the defense attorneys, Mr. Kevin Stockstill, acknowledged that his twenty-five clients were specific persons notified by CITGO that they were its Article 1442 Udesignees, although counsel for CITGO never made such an assertion.

In denying CITGO’s request for a protective order, the trial court stated:

Normally, when I usually get these situations where the law enforcement agency is asking that we hold off because they’re conducting an investigation is normally what happens. And it’s not happening in this case. The defendants are asking for this. Have you found that case? Where’s it at? Give it to me. I know it’s not important what the facts are, but a lot of times—it’s not a real big case. Okay, in this case, this Thibodeaux v. Thibodeaux this 538 So.2d 688 [ (3d Cir.1989) ], and it’s a Third Circuit Court of Appeal Louisiana Case. In this case, there was apparently a questioning of a witness. And that witness took the fifth and the Court of Appeals granted the writs and held that the District Court was to review each question to which the defendant exercised his privilege against self-incrimination in order to determine if privy was properly invoked. The trial court acted improperly in ordering defendant to answer all questions propounded at oral deposition and written interrogatory, insofar as, questions could have resulted in defendant incriminating himself in criminal activity. So, it seems like it comes to the trial judge’s responsibility to determine whether, or not, at some point, whether, or not, the question that they he took the fifth on could have involved some criminal conduct. That’s what it seems to say. Which I don’t have a problem with that. I thought that was the law anyway. Now, it was the good ol’ Third Circuit. They’re pretty compelling over Carter what the Third Circuit says. But anyway, this is what I’m going to rule. Number one, protective order is denied. It’s denied because it has not been established there is a serious, while there is apparently inquiries, some sort of investigation of some Citgo employees. Even some that worked the Lake Charles area plant. And it has not been established it’s to the point where folks have received target letters or folks are even questioned with a lawyer. Or even that there has been arrangements made to question about some type of criminal conduct. While there may be some inter relation between the civil case and the criminal case, like Mr. Ieyoub said there might be, I’m not at a point where I can make a judgment call as to whether, or not, any answer at a 1442 deposition would in fact violate fifth amendment of the person being questioned. So, I’m basically just going to deny the order. The law enforcement agency doesn’t seem to be too concerned about it. I’m not even convinced this is a serious, genuine investigation. But I will do this. When the 1442 deposition is had and those people are identified by the defendant for the plaintiffs opposed. And at some point, if in fact they take the fifth, then the Court will review, on motion of the plaintiff, will review those questions to determine whether, or not, they, in fact, they may expose the witness to criminal prosecution, okay? But we’re going forward with the deposition. We’re going forward with | fithe case and the best way to get around getting in people’s business, or letting the feds get in your business is to settle the case. But now if you don’t want to settle the case, the plaintiff has a right to prepare their case because they have the burden of proof. And I will deal with these fifth amendment questions at the appropriate time. But I can assure you I will not take advantage of that Court’s comments about looking at the question. I mean, a witness that takes the fifth on every question, take the fifth, take the fifth, take the fifth, just to waste time or delay the process of these proceedings, then that person might not—if I find it was a frivolous use of the fifth, or if it was done purely to retard the prosecution of this case, or that it was done to make a mockery out of the deposition process, then that person won’t have to worry about the feds. That person is going to jail by me. But I will hear it. If it’s a legitimate fifth case, if it’s something that I think it was reasonable for them take the fifth on, even though I don’t agree that it would expose them to criminal conduct, I will look at it and make a decision on it. But if I think it’s just a frivolous way of getting around answers or proceeding with this case, then it’s in contempt of court in my opinion and they’re going to go to jail. All right? And they’re not going to have to worry about the feds, we’re going to put them in the Calcasieu Parish jail.

In setting the parameters for compliance, the trial court said:

All right, why don’t we do this. Why don’t we give the defense, today is the 24th, Why don’t we give the defense until October 12th, to identify those people they plan to offer for 1442 deposition. And to schedule a deposition for at least, whatever number you all agree that you can depose on or before the 17th day of October. Now, if it’s so many people that you can’t take care of it, you’ll have to get together and do what you can. And then we’ll reschedule the rest. But I would like to see a deposition had on the 17th, a 1442 had on the 17th. I feel like the more you all talk, the more information is transferred, the more likely this case will settle. Otherwise, you’re going to be around, you’re going to be waiting on the feds to do something and I might be dead and gone before the feds do something.

Thus, in its reasons for judgment, the trial court did not single out the twenty-five individuals purportedly represented by the criminal defense lawyer referred to above, or for that matter any other unnamed employee of CITGO. Instead, the trial court simply ordered that CITGO comply with the requirements of La.Code Civ.P. art. 1442 and identify the appropriate person to testify concerning the matters remaining. The judgment arising from this hearing merely addresses the general obligations of CITGO and does not specify any particular person. It provides in pertinent part:

J¿T IS ORDERED, ADJUDGED AND DECREED that there be judgment in favor of plaintiff, JODY DWAYNE KOPNICKY, and against defendant, CITGO PETROLEUM CORPORATION, denying its Motion to Limit Initial Scope of Discovery and Motion for Protective Order Regarding Scope of Discovery and Quash 1442 Deposition;
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that CIT-GO PETROLEUM CORPORATION provide counsel for plaintiffs, the names of all witnesses who will testify in response to plaintiffs’ Notice of 1442 Deposition no later than October 12, 2007;
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that CIT-GO PETROLEUM CORPORATION provide counsel for plaintiffs, a date and location for the 1442 Deposition by October 12, 2007 and the 1442 deposition be held no later than October 17, 2007.

The trial court signed this judgment on October 1, 2007.

A subsequent judgment of the trial court extended the time CITGO was to produce the witness list to October 26, 2007, and extended the deadline for conducting the deposition to November 6, 2007. This judgment, which was signed on October 31,2007, provided:

IT IS ORDERED, ADJUDGED AND DECREED that defendant, CIT-GO PETROLEUM CORPORATION, is to provide a list of witnesses responsive to plaintiffs’ Article 1442 Deposition no later than October 26, 2007;
IT. IS FURTHER ORDERED, ADJUDGED AND DECREED that the Article 1442 deposition take place by November 6,2007;

Thus, it is clear that, at this point of the litigation, the trial court did not order CITGO to divulge the identity of the twenty-five individuals referred to in the September 24, 2007 hearing. It merely ordered that CITGO produce the appropriate La.Code Civ.P. art. 1442 designee. However, the record establishes that CIT-GO chose to, at best, circumvent the order or, at worst, ignore the order.

When the November 6, 2007 deposition took place, CITGO identified its designees as Mr. Hollis for thirteen of the fifteen remaining topics of discovery, and |7Phillip Andrews for the remaining two topics. With regard to Mr. Hollis’ testimony, nothing was accomplished.

When questioned concerning those areas to be addressed by his testimony, Mr. Hollis acknowledged that his employment duties had not changed since his last deposition wherein he professed to be unable to address these same areas. Additionally, he testified that since his last deposition, the primary individuals with whom he had communicated concerning the litigation were CITGO’s attorneys, and then only for three to four hours the day before the deposition. On the one hand, he claimed to have conducted no independent investigation of the facts surrounding the subject of the litigation, yet on the other hand, and on his private counsel’s advice, Mr. Hollis declined to answer any questions concerning his involvement or lack of involvement in any criminal investigation. He did acknowledge that he had taken part in casual conversations with other employees working in the unit involved in the chemical spills, but declined to identify those individuals, professing- not to remember them because “[they were] not people [he] generally [knew].” In other words, he provided absolutely nothing in the form of-significant discovery.

In response to their production obligation, CITGO provided the plaintiffs on the day of the deposition with twelve boxes of documents marked “Confidential.” Counsel for the plaintiffs declined to accept the documents as satisfactory discovery, given the lack of verification that any of the documents properly fit the definition of | sconfidentiality and the fact that there existed no showing that other documents may or may not have been withheld as privileged. Despite being submitted as the individual capable of providing information on the thirteen areas these documents referred to, Mr. Hollis could not provide any information concerning the documents’ content. In fact, when questioned concerning the content of a small file he brought with him, Mr. Hollis acknowledged that he did not assemble the material in the file and could not identify the person who did. Furthermore, when questioned concerning the specific fifteen categories about which he was designated to testify, Mr. Hollis provided little direct testimony and acknowledged that, on most of these issues, he was not the most knowledgeable individual at CITGO to address the subject. When the plaintiffs’ counsel attempted to elicit the names of those more knowledgeable, that question was met by an objection from CITGO’s counsel. Needless to say, the deposition’s end result was not considered satisfactory to the plaintiffs.

On November 9, 2007, and using Mr. Hollis’ own testimony that there were “people at CITGO with more knowledge” than he on the discovery subjects at issue, the plaintiffs filed another motion to hold CITGO in contempt and to have the corporation sanctioned for its failure to provide them with an appropriate designee pursuant to La.Code Civ.P. art. 1442. The trial court heard this motion on November 16, 2007, and it is the judgment rendered at that hearing which is the basis for the current supervisory writ application.

At the November 16, 2007 hearing, counsel for CITGO acknowledged Mr. Hollis’ admission at the November 6 deposition that others were better qualified than he to testify. He also acknowledged that while CITGO employees had received subpoenas to testify before a federal grand jury, none had received a federal investigation target letter. Still, despite the fact that no employee had been designated |9as a target for the federal investigation, he asserted to the trial court that each employee had retained criminal counsel.

After viewing portions of Mr. Hollis’ November 6 deposition; listening to the testimony of Dr. Charles O. Bettinger, a forensic economist; and considering the arguments of counsel for both sides, the trial court found CITGO in contempt of court. Based on that finding, the trial court then ordered CITGO to pay a $20,000.00 attorney fee award to the plaintiffs and to pay all of the plaintiffs’ costs associated with the taking of the deposition. With regard to the contempt citation, the trial court ordered that CITGO pay $50,000.00 into the registry of the court as a fine for its prior failure to comply and pay $10,000.00 per day, from November 20, 2007, until it fully complied with the former court order. It is at this point that the trial court erred by bringing into its judgment an element not a part of its prior court order.

When asked by CITGO’s counsel what compliance was required, the trial court stated that it must “[cjomply with the names of these 25 people.” Referring to the September 24, 2007 hearing, the trial court explained:

But all you have to do is give me those 25 names; it’s the same 25 people that Stockstill said he had and he identified; the same people everybody’s talking about they know exist, that they got subpoena letters, and it’s probably the same people that’s been subpoenaed by the Feds, and the same people that got target—if they got target letters, but certainly they were subpoenaed by the Feds, and they’ve been talked to by the Feds about this criminal complaint. And so we will—moreover, any deposition taken of these people will be confidential and be under seal of the Court until further orders of the Court.

When CITGO’s counsel inquired further concerning the requirement that the deposition testimony be under seal, the trial court stated the following:

It will be under seal—the names will be under seal, but they’re going to be deposed. I’m going to go through those names, based on the information you give me, and decide which ones they can depose, if not |inall of them. But I’m going to go through it and give you a chance to tell me why. And I’m mainly interested in people that have direct knowledge about what happened on this spill date and leading up to the spill, the cleaning up of the spill, and the operations of the mechanics of the system where the spill was caused at. And, I’m thinking these are the same people the Feds done already checked out and sent subpoena letters, and maybe a target letter. And I’m doing this because the lawyers are officers of the Court. The lawyers represented to the Court that they had 25 people, and the lawyers are holding these people back for whatever reasons, and the lawyers are directly defying the Court and are in contempt at this time. What I’m going to do about that contempt is going to be based on whether or not they will be willing to comply at this point on. So, that’s the order of the Court.

The trial court also ordered that Mr. Stockstill and Mr. Jeff Bedmar, the in-house counsel for CITGO, appear in court on November 28, 2007, and either divulge the names of the twenty-five people or explain why they should not do so. The trial court said that if these two attorneys—neither of whom were enrolled as counsel in this suit—did not appear on November 28 or turn over the names prior to that date, they would be arrested.

OPINION

In its supervisory writ application, CIT-GO asserted four specifications of error: (1) the trial court erred in finding that it had not fully complied with its obligation to produce the appropriate designee pursuant to La.Code Civ.P. art. 1442; (2) the trial court erred in awarding sanctions against it where the corporate representative was made available and where there was no indication that the designee was unable to offer proof of the issues on which he was to be deposed; (3) the trial court erred in requiring CITGO to identify as its corporate designee “persons who have not consented to testify on the company’s behalf and who, because of a federal criminal investigation, have confirmed they would likely invoke their right against self-incrimination if compelled to testify thereby raising an adverse presumption against the company;” and (4) the trial court erred in awarding a daily penalty until it was in lufull compliance.

When first presented with this supervisory writ application, this court rendered the following judgment:

WRIT GRANTED AND MADE PEREMPTORY: We find that the trial court erred in finding the Relator in contempt of court for failure to comply with its orders regarding the Plaintiffs’ demand for a La.Code Civ.P. art. 1442 deposition. The Relator was ordered, on two occasions, to provide “one or more” persons of its choice to appear for the deposition, and the Relator designated and provided such persons in compliance with these orders.
The Plaintiffs’ Notice or Re-Notice of Deposition did not demand that any specific person or persons be deposed and neither were any such persons listed or mentioned in the orders of the trial court regarding these notices. Further, no additional notices for deposition of these other persons have been made by the Plaintiffs and there are, therefore, no grounds for prospectively holding [the criminal defense counsel who addressed the trial court at the September 24, 2007 hearing], [CITGO’s in-house counsel], or the Relator in contempt for failure to so provide such names.
Accordingly, the ruling of the trial court finding the Relator in contempt of court is hereby reversed, vacated and set aside. Additionally, we set aside the order compelling the specific attorneys to provide their client’s names, and the case is remanded for further proceedings consistent with this opinion.

In reaching our previous decision, we placed much emphasis on the trial court’s fixation on the names of the twenty-five individuals whose identity arise only through the statement of their defense counsel, Mr. Stockstill, at the September 24, 2007 hearing. Upon further review, we find that our emphasis on that requirement caused us to err in the disposition of some of the issues before us.

Louisiana Code of Civil Procedure Article 1442 provides:

A party may in his notice name as the deponent a public or private corporation or a partnership or association or governmental agency and designate with reasonable particularity the matters on which examination is requested. The organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which he will testify. The persons so designated shall testify as to matters known or reasonably available to 112the organization. This Article does not preclude taking a deposition by any other procedure authorized in this Chapter.

As pointed out by CITGO in its brief to this court, La.Code Civ.P. art. 1442 is patterned after Rule 30(b)(6) of the Federal Rules of Civil Procedure. That provision’s purpose is to streamline the discovery process by placing the burden of designating and producing competent witnesses upon the party from whom discovery is requested. See Black Horse Lane Assoc., LP v. Dow Chemical Corp., 228 F.3d 275 (3d Cir.2000). As long as the deposing party sets out with reasonable particularity the matters on which examination is requested, it is incumbent upon the requested party to produce witnesses able to testify as to matters known or reasonably available to the organization. Id. Furthermore,

When a corporation or association designates a person to testify on its behalf, the corporation appears vicariously through that agent. If that agent is not knowledgeable about relevant facts, and the principal has failed to designate an available, knowledgeable, readily identifiable witness, than the appearance is, for all practical purposes, no appearance at all.

Id. at 303 (quoting Resolution Trust Corp. v. Southern Union Co., 985 F.2d 196, 197-98 (5th Cir.1993)).

In the matter now before us, the plaintiffs timely made application under La. Code Civ.P. art. 1442, requesting that CITGO designate the person to testify to the matters raised in the notice of deposition. When Mr. Hollis, CITGO’s designee, was unable to testify to fifteen of the twenty-five areas noticed in the deposition, the plaintiffs sought a new designation by CITGO. CITGO responded by attempting to obtain a protective order eliminating all discovery by the plaintiffs. The trial court denied CITGO this relief and CITGO sought no review of this ruling. The judgment arising from this ruling required that CITGO “provide a list of witnesses responsive to plaintiffs’ Article 1442 Deposition.” CITGO responded to this order by |1sresubmitting Mr. Hollis as its designee. As previously stated, Mr. Hollis provided little or nothing in the way of discovery of information addressing the thirteen areas for which he was submitted.

Counsel for CITGO asserted at the November 16, 2007 hearing, that the “sole reason” for the parties being in court was that the plaintiffs “disagree[d] with the designees” provided by CITGO. To be more precise, the sole reason for the parties returning to court on the discovery issue was the designation by CITGO of Mr. Hollis as the continued representative in the second deposition. While the trial court became sidetracked on other issues not pertinent to this particular issue, it is clear that the trial court agreed with the plaintiffs that CITGO’s designation of Mr. Hollis to testify in the second deposition about issues he had previously been unable to testify to constituted a failure on CIT-GO’s part to comply with the requirements of La.Code Civ.P. art. 1442.

CITGO acknowledges that there exist others within its corporate structure that are more knowledgeable about the issues in dispute than Mr. Hollis but asserts that it complied with the “mandatory provisions” of the trial court’s order with regard to an Article 1442 designation. Citing City of Monroe v. Evans, 385 So.2d 912 (La. App. 2 Cir.1980), CITGO seems to argue that, while it may not have complied with the spirit of the court order, it did comply with the letter of court order-and that compliance with the letter of the court order is sufficient. CITGO furthermore cites to federal jurisprudence interpreting Rule 30(b)(6) of the Federal Rules of Civil Procedure to the effect that, while a company must prepare its representative to give complete, knowledgeable, and binding answers in his or her deposition testimony, the person so designated need not be the individual within the company that is the most knowledgeable on the subjects at issue. Rodriguez v. Pataki, 293 F.Supp.2d 305, 311 (S.D.N.Y.2003), aff'd, 293 F.Supp.2d 315 (S.D.N.Y.) (“[I]t is settled law that a party need not produce the organizational representative' with the greatest knowledge about a subject; instead, it need only produce a person with knowledge whose testimony will be binding on the party.”). While we agree with the legal concepts raised by CITGO, we conclude that sending someone such as Mr. Hollis, who is unable or unwilling to provide any information, makes discovery absolutely useless. Thus, we find that CIT-GO complied with neither the letter nor the spirit of the requirements of La. Code Civ.P. art. 1442. Therefore, we find no merit in CITGO’s first two specifications of error.

While CITGO does not appear to contest the trial court’s order that it pay $20,000.00 in attorney fees and reimburse the plaintiffs for the costs of the deposition activity, we find that the imposition of these sanctions was proper. Louisiana Code of Civil Procedure Article 1471 governs the sanctions available for failure to comply with an order compelling discovery. It provides in pertinent part that, unless the failure was “substantially justified” or an award of expenses is unjust, the trial court shall order the opposing party “to pay the reasonable expenses, including attorney’s fees, caused by the failure” to comply with the discovery order. “The trial court has much discretion in imposing sanctions for failure to comply with discovery orders, and his choice of sanctions will not be reversed absent an abuse of discretion.” Case v. Prudential Prop. & Cas. Ins. Co., 98-1848, p. 6 (La. App. 3 Cir. 5/5/99), 736 So.2d 300, 303. Thus, we find no error in this award.

In addition to awarding attorneys fees and expenses as provided for in La. Code Civ.P. art. 1471, the trial court also found CITGO to be in contempt of court for its failure to comply with the discovery order. Such dual punishment is provided for in La.Code Civ.P. art. 1471(4), which provides that in addition to other relief provided 11Bfor in other sections of La.Code Civ.P. art. 1471, the trial court may issue “an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination.” While we find no error in the trial court finding that CITGO was in contempt of court for failure to comply with its discovery order, we do find merit in CITGO’s complaint that the trial court erred in requiring CITGO, as a means of absolving itself from contempt of court, to produce the names of the twenty-five individuals referred to by the criminal defense counsel in the September 24, 2007 hearing, and in imposing a penalty for failure to do so.

“Wilful disobedience of any lawful ... order ... of the court” is a constructive contempt. La.Code Civ.P. art. 224(2). The maximum fine that can be imposed for a party’s failure to comply with a discovery order is $500.00. La.R.S. 13:4611(d). Thus, the penalty imposed for the contempt of court finding is excessive and must be set aside.

Furthermore, for some reason not explained in the record before us, after determining that CITGO was in contempt of its prior discovery order the trial court became focused on the identity of these twenty-five individuals despite the fact that the plaintiffs never raised their identity as an issue. Thus, when the trial court ordered that CITGO divulge the identity of these twenty-five individuals, it was ordering relief not previously requested or ordered. We find this to be error as well. The judgment signed on October 1, 2007, only required that CITGO “provide counsel for plaintiffs the names of all witnesses who will testify in response to plaintiffs’ Notice of 1442 Deposition.” It does not single out the twenty-five individuals represented by Mr. Stockstill, the criminal defense attorney who addressed the trial | ifiCourt on September 24, 2007. Additionally, the motion that the plaintiffs filed on November 9, 2007, does not have as its basis for relief the identity of these individuals. Because we find that the trial court erred in ordering CITGO to divulge the identity of these twenty-five individuals, it follows that CITGO cannot be assessed a daily penalty for failure to comply with that portion of the judgment.

In our prior judgment, we set aside the portion of the trial court’s ruling stating that Mr. Bednar and Mr. Stockstill would be held in contempt if they did not appear in court on November 28, .2007, at 9 a.m., to either reveal the names of the twenty-five employees or explain why they would not do so. But that issue is not properly before us. This appeal is only from the ruling of November 16, 2007, finding CIT-GO in contempt of court.

DISPOSITION

For the foregoing reasons, we grant the plaintiffs’ motion for rehearing, vacate our judgment dated January 8,2008, and enter the following disposition:

WRIT DENIED IN PART, GRANTED IN PART, AND MADE PEREMPTORY: We find that the trial court did not err in finding CITGO Petroleum Corporation in contempt of court for failure to comply with its orders regarding the plaintiffs’ demand for a La.Code Civ.P. art. 1442 deposition. CITGO Petroleum Corporation was ordered to' provide “one or more” persons of its choice to appear for the deposition, and chose to submit an unqualified designee to give testimony on the issues presented. Thus, CIT-GO Petroleum Corporation did not comply with the orders of the trial court. We uphold the trial court’s award of attorney fees and costs for CITGO Petroleum Corporation’s failure to comply with the Article 1442 request because CITGO Petroleum Corporation does not contest this award. But we find that the trial court erred in imposing monetary penalties for CITGO Petroleum Corporation’s failure to identify the twenty-five employees referred to by Mr. Kevin Stockstill at' the September 24, 2007 hearing. We do not consider the issue raised by the trial court ordering Mr. Kevin Stockstill and Mr. Jeff Bednar to appear in court on a future date to either reveal the names of the twenty-five employees or offer grounds why they should not do so, finding that this issue is not properly before us.

SULLIVAN, J., would deny the rehearing.

      . The trial court suggested that it would consider a protective order after considering three basic areas: (1) exactly how the criminal investigation related to the pending civil proceedings; (2) whether those who may be deposed are targets of the criminal investigation; and (3) whether the subject matter of the suit suggested a violation of state or federal criminal law.

      . The record does not establish how many spectator attorneys were present at the hear-tag. It does make clear, however, that none of the attorneys who addressed the trial court were counsel of record for any party then before the court, that none would identify his client, and that none were under oath when presenting information to the trial court. Furthermore, neither counsel for CITGO nor any of the criminal defense lawyers who addressed the court suggested that any of those under criminal investigation would not consent to testify on behalf of CITGO.

      . As will be seen hereafter, the identity of these twenty-five employees immediately became the focus of the hearing, although nothing exists in the record to suggest the status of the other employees who had obtained criminal defense counsel.

      . The designation of Mr. Andrews is not at issue in this phase of the litigation.

      . As noted by counsel for the plaintiffs, Mr. Hollis’ private counsel was not counsel of record in the litigation. Yet he continuously asserted objections for the record in the litigation.

      .The deposition transcript contains a discussion concerning these documents. In that discussion, counsel for CITGO was unable to state whether the documents provided duplicated prior production, whether all or some were marked “Confidential,” who marked the documents as "Confidential” and/or why they were so marked, and whether the documents had been turned over to any other entity. In other words, counsel for CITGO seemed to have little or no knowledge of the content of the discovery produced in this regard.

      . Although CITGO professes to have no knowledge of how these individuals retained and paid for individual criminal defense counsel, the record strongly implies otherwise.

      . In fact, these twenty-five individuals are those represented by a single retained criminal defense counsel. The record contains numerous references to other unnamed individuals who are represented by other criminal defense attorneys.


source: Caselaw Access Project

author: AMY, J., concurring.

license: Public Domain

text:
    Janie LEJEUNE v. LOUISIANA MEDICAL MUTUAL INSURANCE COMPANY, et al.
    No. 13-845.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 12, 2014.
   AMY, J., concurring.

IT agree that an affirmation is appropriate in this case. Simply, the plaintiffs expert’s affidavit, even upon consideration of the attached narrative report, fails to address the standard of care owed by a urologist in this instance, the breach Of that standard of care, or that such a breach caused the plaintiffs death. Further-, as remarked upon by the trial court and by the lead opinion, the expert failed to correlate his own area of medical expertise with that of the defendant physician. Accordingly, I find that the trial court appropriately granted the motion for summary judgment.


text:
    STATE of Louisiana v. Alphonso ALLEN.
    No. KH 15-00196.
    Court of Appeal of Louisiana, Third Circuit.
    March 17, 2015.
    Alphonso Allen, pro se.
    Don M. Burkett, for State of Louisiana.
   J¿WRIT DENIED:

Although titled “Application for Writ of Habeas Corpus,” Defendant’s pleading, in reality, requests relief under La.Code Crim.P. art. 701. There is no time limitation for the contradictory hearing required by art. 701. In this case, the district court has scheduled a hearing for March 19, 2015. We find such time period reasonable. Accordingly, we deny Defendant’s writ.

AMY, J., concurs.


author:
SAVOIE, Judge.
      PETERS, J., SAVOIE, Judge.

text:
    STATE of Louisiana v. Cedric DANIELS.
    No. 15-147.
    Court of Appeal of Louisiana, Third Circuit.
    May 8, 2015.
    Opinion on Rehearing Nov. 12, 2015.
    Asa Allen Skinner, District Attorney, Leesville, LA, for Appellee State of Louisiana.
    Edward K. Bauman, Louisiana Appellate Project, Lake Charles, LA for Defendant/Appellant Cedric Daniels.
    Court composed of JIMMIE C. PETERS, JOHN E. CONERY, and DAVID KENT SAVOIE, Judges.
   SAVOIE, Judge.

hOn November 5, 2013, Defendant Ce-drick Daniels was charged by bill of information with possession of marijuana, in violation of La.R.S. 40:966(A)(1); and possession of marijuana, second offense, in violation of La.R.S. 40:966(C) & (E).

On August 28, 2014, Defendant pled guilty to possession of marijuana, second offense in connection with the instant matter. On that same date, he also pled guilty to possession of marijuana and possession of Oxycodone in connection with a separate matter bearing trial court docket number 85,718. In exchange for Defendant’s plea, the State dismissed the possession of marijuana charge in connection with the instant matter, and also dismissed trial docket 85,-719. Additionally, the State recommended that that a pre-sentence investigation be performed and that all sentences run concurrently.

On November 19, 2014, Defendant was sentenced to two years hard labor in connection with the instant matter. He was also sentenced to two years at hard labor in connection with count one of docket number 85,718 and four years at hard labor under count two of docket number 85,718. All three sentences were ordered run concurrently, and Defendant was given credit for time served.

On December 17, 2014, Defendant filed a pro se “Motion to Amend and Modify Sentence”, which was followed on December 22, 2014, by a counsel-filed “Motion to Reconsider Sentence.” Both motions were denied by the trial court.

Defendant timely filed the instant appeal, claiming the two-year sentence for possession of marijuana, second offense, under trial court docket number 85,591 is excessive.

FACTS

The following factual basis was presented by the State at the time of Defendant’s plea:

Your Honor, in 85,591, count two, it’s contended by the State of Louisiana on or about May 15, 2013 in Vernon Parish, Louisiana on Louisiana Highway 171 South, a Bill Tyree along with Agent Ben Burwell initiated a traffic stop involving Mr. Daniels on an improper turn on Highway 171 South. At that time, during the course of them investigation and with his permission to search his vehicle and statements made by him at the scene, he was—had what was later confirmed by the crime lab to be marijuana that he had recently ingested as well as had in his possession in his vehicle. He was charged—and we would offer all other discovery proved by the State of Louisiana herein in that matter. He was charged as a second offender in that matter based on a previous conviction in this court and I would offer as State Exhibit Number One an excerpt from the minutes from Wednesday, August 15th, 2001 showing his plea to possession of marijuana first offense.

ERRORS PATENT

In accordance with La.Code Crim.P art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find no errors patent.

ASSIGNMENT OF ERROR

In Defendant’s sole assignment of error, he alleges that his sentence is excessive. For the reasons set forth in State of Louisiana v. Cedric Daniels, 15-148 (La.App. 3 Cir. 8/5/15), 215 So.3d 761, the judgment of the trial court is affirmed. In light of the defendant’s drug problems, this case is remanded to the | atrial court with instructions to conduct a hearing on whether the defendant is a candidate for placement in a rehabilitation facility such as The Blue Walter Substance Abuse Treatment Program.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.

PETERS, J., concurs in part and dissents in part and assigns reasons.

PETERS, J.,

concurs in part and dissents in part and assigns reasons.

hFor the reasons set forth in my concurrence/dissent in State v. Cedric Daniels, 15-148 (La.App. 3 Cir. 8/5/15), 215 So.3d 761, I agree with the majority’s affirmation of the defendant’s sentence, but disagree with the remand to the trial court for a hearing on whether the defendant is a candidate for placement in a rehabilitation facility.

ON REHEARING

SAVOIE, Judge.

hWe granted a rehearing in this matter for the limited purpose of considering the rehearing motion filed by the State of Louisiana (state) seeking the removal of the sentence in the dispositional paragraph which reads: “In light of the defendant’s drug problems, this case is remanded to the trial court with instructions to conduct a hearing on whether the defendant is a candidate for placement in a rehabilitation facility such as The Blue Walter Substance Abuse Treatment Program.” Upon further review of this matter, we find that the state is entitled to this relief.

As pointed out by the state, the defendant did not seek this relief on appeal. The scope of appellate review of a sentence is found in La.Code Crim.P. art. 881.2(A)(1) which provides, in pertinent part, that “[t]he defendant may appeal or seek review of a sentence based on any ground asserted in a motion to reconsider sentence.” As a result, we amend the dispositional language of our opinion to read as follows.

DECREE

Defendant’s sentences are affirmed.

REHEARING GRANTED; AFFIRMED.

      . Defendant’s appeal of the trial court’s sentence in connection with trial court docket number 85,718 is addressed in State of Louisiana v. Cedric Daniels, 15-148 (La.App. 3 Cir. 8/5/15), 215 So.3d 761.


author: SAVOIE, Judge. PETERS, J., SAVOIE, Judge.

text:
    STATE of Louisiana v. Cedric DANIELS.
    No. 15-148.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 5, 2015.
    Opinion on Rehearing Nov. 12, 2015.

      Asa Allen Skinner District Attorney, Terry W. Lambright, First Assistant District Attorney, Leesville, LA, for Appellee State of Louisiana.
    Edward K. Bauman, Louisiana Appellate, Lake Charles, LA, for Defendant/Appellant Cedric Daniels.
    Court composed of JIMMIE C. PETERS, JOHN E. CONERY, and DAVID KENT SAVOIE, Judges.
   SAVOIE, Judge.

hOn December 3, 2013, Defendant, Cedric Daniels, was charged by bill of information with possession of marijuana, second offense, in violation of La.R.S. 40:966(0) and (E); and possession of Oxycodone, in violation of La.R.S. 40:967(0(2).

On August 28, 2014, Defendant pled guilty to both counts, as well as possession of marijuana, second offense, in trial court docket number 85,591. In exchange for Defendant’s plea, the State dismissed the possession of marijuana charge in docket number 85,591 and dismissed docket number 85,719. Additionally, the State recommended that a pre-sentence investigation be performed and that all sentences run concurrently.

On November 19, 2014, Defendant was sentenced to two years at hard labor under docket number 85,591; two years at hard labor under count one of docket number 85,718; and four years at hard labor under count two of docket number 85,718. All three sentences were ordered to be run concurrently, and Defendant was given credit for time served.

On December 17, 2014, Defendant filed a pro se “Motion to Amend and Modify Sentence,” which was followed on December 22, 2014, by a counsel-filed “Motion to Reconsider Sentence.” Both motions were denied by the trial court.

Defendant then timely filed this appeal, claiming his two-year sentence for possession of marijuana, second offense; and his four-year sentence for possession of Oxy-codone under trial court docket number 85,718 are excessive.

FACTS

|2The following factual basis was presented by the State at the time of Defendant’s plea:

In the other matter, Judge,—in 85,-718, on July the 16th of 2013, Officer Josh Foster of New Llano Police Department made contact with this defendant at Adolph’s Grocery in New Llano in Vernon Parish. He had certain outstanding warrants for him at that time. During his apprehension, he was found to have in his possession at that time what was later confirmed by the crime lab to be marijuana as well as Schedule—some Schedule II narcotics and drug paraphernalia. Similar to the previous plea, he was charged in bill of information 85,718, count one, with possession of marijuana second offense based on the conviction just recited in S-l. I would offer a certified copy of that particular excerpt for the purpose of the basis of facts in 85,718. It’s the same conviction. Also, we’d move likewise to orally amend the date of that first conviction as reflected in that exhibit which would also be S-l in this offering—that the date is August the 15th of 2001. And, as I mentioned in reference to both of these counts, the crime lab reports shows that part of what was seized from him at that date was marijuana. Count two was found to be Oxycodone and we would offer all other discovery filed by the State of Louisiana in 85,718 also as our basis of facts.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find no errors patent.

ASSIGNMENT OF ERROR

Defendant argues that all of his troubles relate to his drug addiction. He claims to have responded well to probation and treatment in the past; however, he also admits that, while on parole supervision following his prior incarceration for armed robbery, he was found in possession of marijuana. As noted by the trial court prior to sentencing, Defendant’s arrest in docket number 85,591 occurred roughly two months after he completed his post-incarceration supervision. His subsequent arrest, which led to the charges in this docket number, occurred just two months later.

| .¡Louisiana Code of Criminal Procedure Article 881.1 provides the mechanism for preserving the review of a sentence on appeal:

A. (1) In felony cases, within thirty days following the imposition of sentence or within such longer period as the trial court may set at sentence, the state or the defendant may make or file a motion to reconsider sentence.
E. Failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.

Louisiana courts have laid out the following guidelines with regard to excessive sentence review:

Sentences within the statutory sentencing range can be reviewed for constitutional excessiveness. State v. Sepulvado, 367 So.2d 762 (La.1979). In State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-838 (La.2/1/02), 808 So.2d 331, a panel of this court discussed the review of excessive sentence claims, stating:
La. Const. art. I, § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La. 1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

I ¿Further, in reviewing the defendant’s sentences, the appellate court should consider the nature of the crime, the nature and background of the offender, and the sentences imposed for similar crimes. State v. Lisotta, 98-648 (La.App. 5 Cir. 12/16/98), 726 So.2d 57 (citing State v. Telsee, 425 So.2d 1251 (La.1983)), writ denied, 99-433 (La.6/25/99), 745 So.2d 1183. In State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061, a panel of this court observed that:

While a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.” State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, 958.

State v. Soileau, 13-770, 13-771, pp. 4-5 (La.App. 3 Cir. 2/12/14), 153 So.3d 1002, 1005-06, writ denied, 14-452 (La.9/26/14), 149 So.3d 261.

Defendant pled guilty to possession of marijuana, second offense, which is punishable by a fine of “not less than two hundred fifty dollars, nor more than two thousand dollars, imprisonment with or without hard labor for not more than five years, or both.” La.R.S. 40:966(E)(2)(a). Defendant was sentenced to two years, which represents a low- to mid-range sentence. Additionally, Defendant pled guilty to possession of Oxycodone, which is punishable by imprisonment with or without hard labor for not more than five years and a possible fine of not more than five thousand dollars. La.R.S. 40:967(C)(2).

At sentencing, the trial court stated that it had considered mitigating factors under La.Code Crim.P. art. 894.1, noting that Defendant was only thirty-three years old, was married with a young daughter, and only had a tenth-grade education. The court also noted that Defendant was a second felony offender, having previously served a ten-year sentence for armed robbery; that he was found [fin possession of 'marijuana while under supervision following that incarceration; and that his arrest in the instant case came only four months after his release from supervision.

With respect to Defendant’s two-year sentence for possession of marijuana, second offense, this court in State v. Mayes, 07-1500 (La.App. 3 Cir. 4/30/08), 982 So.2d 265, writ denied, 08-1175 (La.2/6/09), 999 So.2d 768, upheld a sentence of four years at hard labor, with the first two years suspended, for possession of marijuana, second offense.

In regard to Defendant’s four-year sentence for possession of Oxycodone, the second circuit in State v. Montelbano, 44,405 (La.App. 2 Cir. 6/24/09), 15 So.3d 1227, held that a sentence of four years imprisonment for possession of Methadone, another violation of La.R.S. 40:967(C)(2) was not excessive. In Montelbano, the defendant had a prior felony conviction for a crime of violence, namely cruelty to a juvenile. Additionally, multiple companion charges were dropped as part of the defendant’s plea. Much like the defendant in Montelbano, Defendant has a prior felony conviction for a crime of violence, namely armed robbery, and benefitted from the dismissal of multiple charges against him, as well as having all of his sentences run concurrently.

“The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate.” State v. Barling, 00-1241, 00-1591, p. 12 (La. App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042, writ denied, 01-838 (La.2/1/02), 808 So.2d 331. Taking into consideration this court’s ruling in Mayes and the second circuit’s ruling in Montelbano, Defendant’s status as a second-felony offender, the fact that Defendant was arrested twice within four months of his release from supervision, and the trial ^court’s clear application of La.Code Crim.P. art. 894.1, we cannot say that the trial court abused its discretion in giving Defendant a sentence of two years at hard labor for possession of marijuana, second offense. Likewise, we cannot say the trial court abused its discretion in sentencing Defendant to four years at hard labor for possession of Oxycodone, particularly where Defendant’s sentences were run concurrently to each and to his two-year sentence in trial court docket number 85,591.

DECREE

Defendant’s sentences are affirmed. In light of the defendant’s drug problems, this case is remanded to the trial court with instructions to conduct a hearing on whether the defendant is a candidate for placement in a rehabilitation facility such as The Blue Walter Substance Abuse Treatment Program.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.

PETERS, J., concurs in part and dissents in part and assigns reasons.

PETERS, J.,

concurs in part and dissents in part and assigns reasons.

Iil agree with the majority’s affirmation of the defendant’s sentences, but disagree with the order of remand to the trial court for a hearing to determine the defendant’s eligibility for placement in a rehabilitation facility. I would simply affirm the sentence in all respects.

The defendant’s only assignment of error on appeal is his assertion that his previous poor choices caused him to have a substance abuse problem and that this problem is the cause of all of his criminal activity. He does not seek treatment in conjunction with his sentences, but suggests he is a candidate for probation because he has responded to treatment in the past. As the majority points out, the record does not support this argument as, after being released on parole for a previous armed robbery conviction, he was found to be in possession of marijuana; and the matter before us arose just two months “after he completed his post-incarceration supervision.”

The scope of appellate review of a sentence as it applies to this matter is found in La.Code Crim.P. art. 881.2(A)(1), which provides in pertinent part that “[t]he defendant may appeal or seek review of a sentence based on any ground asserted in a motion to reconsider sentence.” In his pro se motion to modify his | asentence, the defendant requested only that the charges be reduced or that his sentences be reduced by fifty percent. In the motion to reconsider the sentences filed by his trial counsel, the defendant argued, without setting forth any specifics, that the sentences were excessive. The trial court rejected both of these motions, and the only issue before us is whether the sentences- are excessive, not whether another sentence would be more appropriate,

Louisiana Code of Criminal Procedure Article 881.4 provides the parameters for remanding a sentencing matter to the trial court. As that Article applies to the matter before us, La.Code Crim.P. art. 881.4(A) provides that “[i]f the appellate court finds that a sentence must be set aside on any ground, the court shall remand for resentence by the trial court. The appellate court may give direction to the trial court concerning the proper sentence to impose.” Additionally, La.Code Crim.P. art. 881.4(D) provides that “[t]he appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed.”

The language of La.Code Crim.P. art. 881.4(A) requires a finding that a sentence should be set aside before a remand can be effected for a modification of the imposed sentence. However, in this case, the majority affirmed the sentences imposed by the trial court, specifically finding that the record supports those sentences. I would end the inquiry at that point and not remand for the trial court to consider relief the defendant has not requested.

ON REHEARING

SAVOIE, Judge.

hWe granted a rehearing in this matter for the limited purpose of considering the rehearing motion filed by the State of Louisiana (state) seeking the removal of the sentence in the dispositional paragraph which reads: “In light of the defendant’s drug problems, this case is remanded to the trial court with instructions to conduct a hearing on whether the defendant is a candidate for placement in a rehabilitation facility such as The Blue Walter Substance Abuse Treatment Program.” Upon further review of this matter, we find that the state is entitled to this relief.

As pointed out by the state, the defendant did not seek this relief on appeal. The scope of appellate review of a sentence is found in La.Code Crim.P. art. 881.2(A)(1) which provides, in pertinent part, that “[tjhe defendant may appeal or seek review of a sentence based on any ground asserted in a motion to reconsider sentence.” As a result, we amend the dispositional language of our opinion to read as follows.

DECREE

Defendant’s sentences are affirmed.

REHEARING GRANTED; AFFIRMED.

      . Defendant’s appeal of the trial court’s sentence in connection with trial court docket number 85,718 is addressed in State of Louisiana v. Cedric Daniels, 15-147 (La.App. 3 Cir. 5/8/15), 215 So.3d 759.


author: GENOVESE, Judge.

text:
    Vincent ALEXANDER v. Albert “Da Da” P. MENARD and The Honorable Becky P. Patin, Clerk of Court for the Parish of St. Martin.
    No. 15-910.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 28, 2015.

      Lucretia Pecantte, Attorney at Law, New Iberia, LA for Defendants/Appellees, Becky Patín, St. Martin Parish Clerk of Court Albert “Da Da” P. Menard.
    Vincent Alexander, In Proper Person, Breaux Bridge, LA.
    Court composed of BILLY HOWARD EZELL, JAMES T. GENOVESE, and DAVID KENT SAVOIE, Judges.
   GENOVESE, Judge.

I,The plaintiff candidate, Vincent Alexander, appeals from the trial court’s judgment dismissing his suit objecting to the candidacy of the defendant, Albert P. Me-nard, for the position of parish councilman. Finding no error in the trial court’s interpretation of the applicable statutes, and no manifest error in the trial court’s findings of fact, we affirm the judgment dismissing the suit.

I.

ISSUE

We must decide whether the trial court legally erred or was manifestly erroneous in dismissing the objection to candidacy filed by Mr. Alexander against Mr. Me-nard based upon Mr. Menard’s alleged failure to pay outstanding fees prior to noticing his candidacy for office.

II.

FACTS AND PROCEDURAL HISTORY

Mr. Alexander, a candidate for Parish Council, District 7, St. Martin Parish, filed suit objecting to the candidacy of Mr. Me-nard for the same position. Mr. Alexander’s suit is based upon Mr. Menard’s allegedly having falsely certified that he had no unpaid fines, fees, or penalties, pursuant to the Code of Governmental Ethics, at the time that Mr. Menard qualified for the Council position in the upcoming election.

Mr. Alexander entered into evidence a 2014 suit filed by the State of Louisiana Board of Ethics (BOE) against Mr. Me-nard in the Sixteenth Judicial District Court, St. Martin Parish, Docket No. 81825, challenging his candidacy in the 2014 election of Alderman for the City of Breaux Bridge. That suit asserted Rthat Mr. Menard had not paid two Late Fee Orders issued by the BOE for his failure to timely file Tier 3 Annual Personal Financial Disclosure Statements in 2009 ($200.00 assessment) and in 2010 ($1,500.00 assessment).

As a result of the suit by the BOE, Mr. Menard voluntarily withdrew his candidacy for the position of Alderman in the 2014 election, and the BOE filed a Motion and Order to Dismiss in Docket No. 81825 on September 25, 2014. The Order to Dismiss was signed by Judge Paul J. deMahy on March 2, 2015. Mr. Vincent contended at trial that the St. Martin Parish Clerk of Court was holding the dismissal in suit No. 81825 “for the deposit of $514.95.”

Mr. Menard entered into evidence documents showing that he had paid fees of $1,500.00 to the BOE on September 9, 2015. Mr. Menard testified that two hours before filing his notice of candidacy, on the same date, he drove to Baton Rouge and paid all of the fees or fines that the Baton Rouge office said he owed to the BOE, which was $1,500.00.

Following the testimony of the parties and the St. Martin Parish Clerk of Court, Becky P. Patín, the trial court dismissed Mr. Vincent’s suit in this case, challenging the candidacy of Mr. Menard in the current race for Parish Council. For the reasons expressed below, we affirm the trial court’s judgment of dismissal.

III.

STANDARDS OF REVIEW

“Questions of law, such as the proper interpretation of a statute, are reviewed by the appellate court under the de novo standard of review.” Land v. Vidrine, 10-1342 (La.3/15/11), 62 So.3d 36 (citations omitted). An appellate court may not set aside a trial court’s findings of fact in absence of manifest error or ^unless it is clearly wrong. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). In election suits, generally, great deference is given to the trier of fact’s findings regarding the credibility of witnesses. See Herpin v. Boudreaux, 98-306 (La.App. 3 Cir. 3/5/98), 709 So.2d 269 (citing Blackwell v. Kershenstine, 97-210 (La.App. 3 Cir. 2/27/97), 690 So.2d 247, writ denied, 97-545 (La.3/14/97), 689 So.2d 1390). Accordingly, in this case, we conduct a de novo review of the trial court’s findings regarding whether court costs are included in the definition of outstanding fines, fees, and penalties in La.R.S. 18:463(A)(2)(c)(ii)-(iii); and, we review for manifest error the trial court’s findings of fact regarding Mr. Me-nard’s payment of the outstanding late fees prior to signing his Notice of Candidacy, with appropriate deference to the trial court in evaluating the credibility of the witnesses testifying before the court.

IV.

LAW AND DISCUSSION

On September 9, 2015, Mr. Menard signed a Notice of Candidacy form wherein he was required to certify thirteen items of information in order to run for the office of Councilman. Item number eleven of that form states: “I do not owe any outstanding fines, fees, or penalties pursuant to the Code of Governmental Ethics.” Mr. Alexander’s suit is brought pursuant to La.R.S. 18:492(A)(6), providing that an action objecting to an individual’s candidacy can be brought on the grounds that he “falsely certified on his notice of candidacy that he does not owe any outstanding fines, fees, or penalties pursuant to the Code of Governmental Ethics as provided in R.S. 18:463(A)(2).” Louisiana Revised Statutes 18:463(A)(2)(c) (emphasis added) provides:

|4(ii) “Outstanding fines, fees, or penalties pursuant to the Code of Governmental Ethics” shall mean a fine, fee, or penalty equal to an amount of two hundred fifty dollars or more imposed by the Board of Ethics for which all appeals have been exhausted.
(iii) “Outstanding fine, fee, or penalty” shall not mean any fine, fee, or penalty that has been paid in full as of the time of the filing of the notice of candidacy.

Here, the trial court’s dismissal of Mr. Alexander’s suit was based upon the evidence that the BOE had dismissed its suit challenging Mr. Menard’s candidacy for Alderman in the 2014 election; and it was based upon the evidence that Mr. Menard had paid all of the outstanding fees owed to the BOE before filing his notice of candidacy for Councilman in the current election. Mr. Vincent contends that the trial court erred in finding that the previous suit against Mr. Menard had been dismissed and in finding no false certification as to item number eleven when Mr. Menard filed his Notice of Candidacy form.

Outstanding Fees

Mr. Alexander contends that State, Board of Ethics v. Darby, 06-1058 (La. App. 3 Cir. 8/24/06), 937 So.2d 929, is applicable. In that challenge to candidacy, this court reversed a dismissal of the suit because the candidate’s outstanding fees were not paid until after the candidate certified that he had no outstanding fees, even though the trial court had allowed the candidate an additional twenty-four hours to pay. Such is not the case here, where the record reveals that Mr. Menard paid his outstanding fees of $1,500.00 to the BOE on September 9, 2015, before he filed his Notice of Candidacy certifying that he owed no outstanding fines, fees, or penalties under the Code of Governmental Ethics. The copies of the dated money orders, receipt, and Notice of Candidacy in |Bthe record all bear the dates of September 9, 2015, and Mr. Menard testified that he paid the fees about two hours before filing the Notice. Mr. Alexander put on no evidence to refute Mr. Menard’s testimony that the fees were paid before the form was signed.

Mr. Alexander further argues that the court costs on the previous suit by the BOE, in the amount of $514.95, were the responsibility of Mr. Menard, and the nonpayment of the court costs before filing his Notice of Candidacy renders Mr. Menard in violation of La.R.S. 18:492(A)(6). We disagree. The statute defining the meaning of outstanding fees “pursuant to the Code of Governmental Ethics” clearly defines them as fees “imposed by the Board of Ethics,” not by the court. La.R.S. 18:463(A)(2)(c)(ii). At trial, Clerk of Court Becky Patin testified regarding the distinction between court costs owed to the court and fees owed to the BOE that affect candidacy. In discussing the Clerk of Court’s Notice of Candidacy form and the certification under item number eleven, Ms. Patín testified:

Q. Okay. They cannot owe any money to who?
A. The Board of Ethics.
Q. Does it say anywhere in this document that they cannot owe court cost to you?
A. No, ma’am.
Q. It’s cost, finest,] and penalties to who? Is it to you or is it to the Board of Ethics?
A. It’s to the Board of Ethics.
Q. And in this document they certify that they don’t owe anything to the Board of Ethics.
A. Right.
|(iQ. Was the court cost that was a[ss]essed in the previous case, was that cost for the Board of Ethics or was it cost—
A. It was our court cost.
Q. It was yours. So it had nothing to do with the Board of Ethics.
A. No, ma’am. It was court cost that was owed to us.
Q. So, Miss Patín, it’s your understanding!,] and I think it’s—let me get it—as to Number 11, he certified that he owed no outstanding fines, fees[,] or penalties to the Board of Ethics.
A. Correct.
Q. And the court cost that is the subject of this suit is court cost owed to the—
A. To me.
Q. —to the St. Martin Parish Clerk of Court.
A. Yeah, to the Clerk of Court[’]s Office.
Q. And not to the Louisiana Board of Ethics.
A. No, ma’am.

The testimony at trial was clear that Mr. Menard owed no fines, fees, or penalties to the BOE when he filed his Notice of Candidacy on September 9, 2015. Mr. Menard paid the outstanding fees owed to the BOE earlier in the day on September 9, 2015, such that his certification was not falsely made.

Dismissal of the Previous Suit by the BOE

Mr. Alexander argues that the dismissal signed by the trial court has no effect because BOE did not pay the court costs of $514.95, and, therefore, the suit is still pending. This argument is without merit. As indicated, the BOE had dismissed the suit a year earlier, on September 25, 2014, and the judge signed the ^dismissal on March 2, 2015. We further note that the 2014 suit was not for the unpaid late fees; the suit was filed by the BOE to challenge Mr. Menard’s candidacy because of the unpaid late fees. Mr. Menard was qualifying to run for his fifth term. The late fees were assessed because Mr. Menard had not timely filed his financial disclosure forms in 2010 under the Campaign Finance Disclosure Act. The 2014 suit was dismissed and cured when Mr. Menard withdrew his candidacy for Alderman in 2014.

Testimony at trial regarding the dismissal is clear that the previous suit was not pending when Mr. Menard filed his Notice of Candidacy on September 9,2015. In arguing this point on appeal, Mr. Alexander excerpted only part of the testimony of the Clerk of Court, Becky Patin. At trial, Ms. Patin testified regarding the dismissal:

Q. Okay. Dismissals, in reference to dismissals that are not filed in the record withheld court cost, they’re not filed, they’re not filed in the record until they’re paid in full; is that correct?
A. Yes, sir.
Q. Okay. Until court cost are paid[,] matters are not dismissed. They are placed in another file cabinet until they’re paid, so they’d be dismissed.
A. You are correct, but if a judge signs a dismissal, you know, it’s signed.
Q. They’re not dismissed till they paid. Is that correct?
A. Most of the time, but if a judge signs it before, you know, it’s like when a judge signs an order we have to abide by it, but sometimes we don’t send a copy to the opposing attorney unless they pay the court cost.
Q. What was the court cost in the matter of State Board of Ethics Versus Albert “DaDa” Menard, Docket 81825?
A. Five hundred fourteen dollars and ninety-five cents ($514.95).
IsQ. Okay. Did you receive a dismissal document from the Board of Ethics?
A. When they came to court, I’m suggesting that when they came to court that day[,] Judge deMahy signed the order on March 2nd, 2015.
Q. Okay.
A. The dismissal.
Q. Is it true that this dismissal document was not filed because you hadn’t received, you know, the payment.
A. We received and filed everything, but we didn’t send him a copy.
On cross examination by Mr. Menard’s attorney, Ms. Patin responded:
Q. Miss Patin, if I understand your testimony correctly, the dismissal was signed.
A. It was.
Q. When the suit was filed by the Board of Ethics were any court cost paid by the Board of Ethics?
A. No.
Q. Okay. Did y’all send them a copy of the dismissal?
A. We did.
Ms. Patin was further asked regarding the dismissal:
Q. And it was signed by the judge?
A. Yes. It was signed on March 2nd, 2015[,] by Judge deMahy.
Q. In that record is there a Judgment stating Mr. Menard owed money to the Board of Ethics?
A. No, they dismissed the suit.
Q. Is there an Order stating that Mr. Menard is ordered to pay any other additional fines and fees to the Board of Ethics?
A. No, sir.

UOn appeal, Mr. Alexander argues La. R.S. 13:4201 and La.Code Civ.P. art. 1671 in efforts to show that the suit was not dismissed. Mr. Alexander’s arguments are misplaced and without merit. These articles address whether a plaintiff is entitled to a voluntary dismissal with or without prejudice. In the 2014 suit, the plaintiff, the BOE, did not want a dismissal without prejudice in order to preserve their rights to bring the suit again. Rather, they sought a full dismissal, with prejudice to themselves, after they received certification from the Secretary of State that Mr. Menard had withdrawn his candidacy in the 2014 election. Mr. Alexander cannot challenge the BOE’s dismissal of Mr. Menard because court costs were not paid. A discontinuance, or judgment allowing the same, is not open to collateral attack as an absolute nullity because it fails to condemn the plaintiff for costs of the suit. De Renzes v. His Wife, 117 La. 817, 42 So.327 (La.1906).

The Louisiana Supreme Court has further held that a judgment granted on a voluntary motion to dismiss is effective even though the court costs linhave not been paid. Adams v. Aetna Cas. & Sur. Co., 252 La. 798, 214 So.2d 148 (La.1968). Further, the cited articles command that the court shall not refuse to dismiss the suit upon payment of all costs and grants to the judge the discretion as to whether voluntary dismissal will be granted where costs have not been previously paid. See id. Nonpayment of a court cost has no effect upon the validity of an order granting a dismissal or its application to a defendant. See id. Moreover, in filing the 2014 suit, the BOE, as a public board, informed the Clerk of Court in its cover letter that it was exempt from court costs pursuant to La,R.S. 13:4521. That statute requires the exempted board to assist the court in collecting the costs by asking the court to tax costs in accordance with La. Code Civ.P. art.1920, which allows the court to render a judgment for the costs against any party “as it may consider equitable.” Thus, the BOE was not liable for the costs. It asked the court to tax costs to Mr. Menard, and the court has the discretion to file suit for the costs, or not. No suit for costs has been filed against Mr. Menard by the Clerk of Court for failure to pay the costs of the previous suit, and it is solely within the purview of the Clerk of Court to do so, not the BOE.

V.

CONCLUSION

Finding that the previous suit by the BOE was dismissed, and that Mr. Menard owed no outstanding fines, fees, or penalties to the BOE, we affirm the | ¶7trial court’s dismissal of this suit against Albert Menard. Costs of this appeal are assessed to the plaintiff, Vincent Alexander.

AFFIRMED.

      . Louisiana Code of Civil Procedure Article 1671, entitled "Voluntary dismissal!)]” provides as follows:
      A judgment dismissing an action without prejudice shall be rendered upon application of the plaintiff and upon his payment of all costs, if the application is made prior to any appearance of record by the defendant. If the application is made after such appearance, the court may refuse to grant the judgment of dismissal except with prejudice.
      Louisiana Revised Statutes 13:4201, entitled "Voluntary dismissal or discontinuance; payment of costs before judgment rendered or signed[,]” provides:
      No order or judgment shall be rendered or signed by any court of the state dismissing or discontinuing any suit or reconven-tional demand, on the voluntary motion of any or all of the parties thereto, unless and until all costs and commissions due the clerk of court and the sheriff shall first have been paid, to be evidenced by certificates of those officers to be filed with and made part of the motion to dismiss or discontinue.

      . Under La.Code Civ.P. art. 1920, entitled "Costs; parties liable; procedure for taxing[:]"
      Unless the judgment provides otherwise, costs shall be paid by the party cast, and may be taxed by a rule to show cause.
      Except as odrerwise provided by law, the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable.


author: SAVOIE, Judge.

text:
    Michael J. LEGER, II v. Danielle Gotreaux LEGER.
    No. 15-151.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 30, 2015.
    Lynette Young Feucht, Eunice, LA, for Plaintiff/Appellee, Michael J. Leger, II.
    Viel Paul Caswell, Jr., Attorney at Law, Eunice, LA, for Defendant/Appellee, Danielle Gotreaux Leger.
    Bradford H. Felder, G. Andrew Veazey, Dona K. Renegar, Huval, Veazey, Felder & Renegar, L.L.C., Lafayette, LA, for In-tervenor/Appellant, John Jerome Fonte-not.
    James D. “Buddy” Caldwell, Attorney General, Emily G. Andrews, Angelique Duhon Freel, Assistant Attorneys General, Baton Rouge, LA, for Amicus Curiae, Attorney General for the State of Louisiana.
    Court composed of JIMMIE C. PETERS, JOHN E. CONERY, and DAVID KENT SAVOIE, Judges.
   SAVOIE, Judge.

11Appellant John Jerome Fontenot appeals the ruling of the trial court, wherein the court ruled that he did not have a right to avow his paternity of Gracelynn Leger pursuant to Louisiana Civil Code article 198. For the following reasons, we affirm.

Michael Leger and Danielle Gotreaux Leger were married in 2007. Three children were born during the marriage—Michael Joseph Leger, III, born January 4, 2007, Gracelynn Ann Leger, born August 21, 2012, and Emilee Camille Leger, born March 1, 2014. In the fall of 2011, John Jerome Fontenot, a local veterinarian, and Danielle Leger had an affair. During that time, Danielle became pregnant with Gra-celynn Leger. Dr. Fontenot submitted to a DNA test in October 2012, just two months after the birth, to determine whether he was the father of Gracelynn. The results indicated that there was a 99.99% percent probability that Dr. Fonte-not was Gracelynn’s father.

Michael and Danielle separated in August 2013. Danielle was pregnant with Emilee at the time of the separation. When Emilee was born in March 2014, the Department of Children and Family Services (“DCFS”) removed her from Danielle’s care because she tested positive for cocaine. Michael was working offshore at the time of the birth. When the infant was removed, a DCFS worker contacted Dr. Fontenot to take custody of Gracelynn because he was identified by Danielle’s mother as the father of Gracelynn.

On March 3, 2014, Michael was served with a petition for custody of Gracelynn, which alleged that Dr. Fontenot was Gra-celynn’s father. This was when Michael first became aware of the affair between Dr. Fontenot and Danielle and, that he might not be Gracelynn’s father.

12Panielle also told Michael that he was not the father of the newborn Emilee. Danielle told DCFS that Emilee was Dr. Fontenot’s child. However, DNA testing confirmed that Emilee was, in fact, the biological child of Michael.

Eventually, all three children were placed in Michael’s custody. During a hearing officer’s conference on the petition for custody in April 2014, the parties agreed on a visitation schedule for Dr. Fontenot and Gracelynn. No further action was taken in that matter.

In May 2014, Michael filed a petition for divorce against Danielle alleging adultery. Dr. Fontenot filed a Petition for Intervention, for Paternity, Custody, and Alternatively, Visitation. In the petition, Dr. Fon-tenot alleged that he was unable to file a timely avowal action because he feared for the safety of Danielle and Gracelynn. Michael filed a Peremptory Exception of Per-emption, No Right of Action, and No Cause of Action. The exception was withdrawn in relation to the visitation issue; however, the exception to the avowal action was heard on September 30, 2014.

The trial court ruled that La.Civ.Code art. 198 precluded Dr. Fontenot from establishing paternity of Gracelynn. The exception of preemption was granted. Dr. Fontenot now appeals.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, Dr. Fontenot argues that the trial court erred when it held that La.Civ.Code art. 198 precludes an avowal action when the mother deceives the biological father by telling him that she and the child would be in physical danger if her husband learned that the child was fathered by another man.

IsLouisiana Civil Code Article 198 reads:

A man may institute an action to establish his paternity of a child at any time except as provided in this Article. The action is strictly personal.
If the child is presumed to be the child of another man, the action shall be instituted within one year from the day of the birth of the child. Nevertheless, if the mother in bad faith deceived the father of the child regarding his paternity, the action shall be instituted within one year from the day the father knew or should have known of his paternity, or within ten years from the day of the birth of the child, whichever first occurs.
In all cases, the action shall be instituted no later than one year from the day of the death of the child.
The time periods in this Article are peremptive.

Generally, an avowal action may be brought at any time. However, La.Civ. Code art. 198 establishes a time period for filing such an action in two instances—if the child is presumed to be the child of another man and if the child dies. The first scenario applies to the instant case. “The husband of the mother is presumed to be the father of a child born during the marriage[.]” La. Civ.Code art. 185. Louisiana Civil Code Article 198 specifies that an action must be instituted “within one year from the day of the birth of the child” in this instance.

Michael and Danielle were married at the time of Gracelynn’s birth. In accordance with the above statute, Dr. Fontenot had one year from the birth of Gracelynn to file his avowal action. He did not do so. There is one exception to the one year time period. If the mother, in bad faith, deceives the father concerning his paternity, the father must institute an action within one year from the day he knew or should have known of the birth of the child or within ten years of the child’s birth, whichever first occurs. La.Civ.Code art. 198.

|4It is Dr. Fontenot’s contention that his avowal action was timely due to this exception. He believed that Danielle and Grace-lynn would be in physical danger if he were to expose the fact that he was Grace-lynn’s father. This was the reason he delayed the institution of the avowal action. He argues that the exception found in La.Civ.Code art. 198 should extend to these circumstances, .We disagree.

While Dr. Fontenot’s situation is unfortunate, the law is clear. Only “if the mother in bad faith deceived the father of the child regarding his paternity” does the exception apply. Id. (emphasis added). There is no evidence that Danielle deceived Dr. Fontenot regarding his paternity. She may have deceived Dr. Fontenot regarding the consequences of disclosing his paternity; however, Dr. Fontenot knew he was Gracelynn’s father. Within two months of Gracelynn’s birth, Dr. Fontenot submitted to a DNA test that clearly showed he was the child’s father. Furthermore, in his petition for intervention, Dr. Fontenot acknowledges that he knew that he is Gracelynn’s father for more than a year since her birth.

Even if we were to conclude that Danielle deceived Dr. Fontenot regarding his paternity, which we do not, the law requires that “the action shall be instituted within one year from the day the father knew or should have known of his paternity, or within ten years from the day of the birth of the child, whichever first occurs.” Id. It is fair to say that Dr. Fontenot knew or should have known that he was Grace-lynn’s father when the DNA testing was conducted in October 2012. This avowal action was filed in May 2014. Therefore, even if the exception applied, Dr. Fonte-not’s avowal action would still be untimely.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assignment of error, Dr. Fontenot argues that the trial court erred in holding La.Civ.Code art. 198 to be constitutional.

|fi“It is well-established that litigants must raise constitutional challenges in the trial court rather than in the appellate courts, and that the constitutional challenge must be specially pleaded and the grounds for the claim particularized.” Arrington v. Galen-Med, Inc., 06-2923, p. 3 (La.2/2/07), 947 So.2d 719, 720. The purpose of this requirement is to allow full argument and presentation of evidence at the trial court level in order to create a full record for appellate review. The supreme court has determined that its jurisdiction extends only over those issues that have been properly raised and ruled on at the trial court level.

Lopez v. Isle of Capri Casino, 13-418, pp. 6-7 (La.App. 3 Cir. 11/6/13), 127 So.3d 55, 60, writ denied, 13-2833 (La.2/21/14), 133 So.3d 684.

The pleadings allowed in civil actions are petitions, exceptions, written motions and answers. LSA-C.C.P. art. 852. Therefore, when the unconstitutionality of a statute is specifically pled, the claim must be raised in a petition (the original petition, an amended and supplemental petition or a petition in an incidental demand), an exception, a motion or an answer. It cannot be raised in a memorandum, opposition or brief as those documents do not constitute pleadings.

M.J. Farms, Ltd. v. Exxon Mobil Corp., 07-450, p. 1 (La.4/27/07), 956 So.2d 573, 573-74 (quoting Vallo v. Gayle Oil Co., Inc., 94-1238, p. 8 (La.11/30/94), 646 So.2d 859 (emphasis added) (citations omitted) (footnotes omitted)).

Upon review of the record, the constitutionality of La.Civ.Code art. 198 is not raised in any pleading filed by Dr. Fontenot. The first mention of this issue is found in Dr. Fontenot’s memorandum in opposition to Michael’s exceptions. As stated by the Louisiana Supreme Court in M.J. Farms, Ltd., constitutionality cannot be raised in a memorandum.

It should also be noted that the trial court did not rule on the issue of constitutionality in the October 22, 2014 judgment from which this appeal was filed. In its oral ruling, the trial court found La.Civ. Code art. 198 to be constitutional, however, this ruling was never put in writing. “[T]he district court’s oral or written reasons for judgment form no part of the judgment, and ... ^appellate court’s review judgments, not reasons for judgment.” Bellard v. Am. Cent. Ins. Co., 07-1335, 07-1399, p. 25 (La.4/18/08), 980 So.2d 654, 671.

Assignment of Error Number Two regarding constitutionality is not in proper posture for appeal, therefore, we decline to rule on this issue.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of these proceedings are assessed to Appellant John Jerome Fontenot.

AFFIRMED.


text:
    Joshua COLLETTE v. W. Glenn SOILEAU.
    No. 15-885.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 6, 2015.
   ORDER

After this court rendered its opinion dismissing the above-captioned appeal as premature due to the lack of a -written final judgment in the record, this court received a communication from the trial court informing this court that the record sent was deficient in that the written judgment had been inadvertently left out. Therefore, for good cause shown, we hereby rescind and vacate this court’s opinion issued on October 28, 2015, which ordered the dismissal of this appeal, and we hereby enter an order reinstating the appeal. Additionally, the Clerk of Court for the Sixteenth Judicial District Court for the Parish of St. Martin is hereby ordered to transmit a supplemental record providing this court with the trial court’s written judgment signed on June 12, 2015. La.Code Civ.P. art. 2132.


author: GENOVESE, Judge. GREMILLION, J.,

text:
    SUCCESSION OF Betty Jean PARKER.
    No. 15-464.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 16, 2015.

      Annette Roach, Roach & Roach, APLC, Wilford D. Carter, Lake Charles, Louisiana, for Plaintiff/Appellant, Curtis J. Parker, Sr.
    Timothy O’Dowd, Lake Charles, LA, for Defendants/Appellees, Sheryl R. Parker, Trade Y. Blanchette, Karen D. Parker, Curtis J. Parker, Jr., and Joy N. Parker, individually and as Independent Executrix of the Succession of Betty Jean Parker.
    Leslie Q. Knox, Lake Charles, Louisiana, for Defendant/Appellee, Joy N. Parker.
    Court composed of JAMES T. GENOVESE, SHANNON J. GREMILLION, and PHYLLIS M. KEATY, Judges.
   GENOVESE, Judge.

|, Plaintiff, Curtis J. Parker, Sr., suspen-sively appeals the dismissal of the petition to annul testament he filed against Defendants, Sheryl R. Parker, Tracie Y. Blan-chette, Karen D. Parker, Curtis J. Parker, Jr., and Joy N. Parker, individually and as Independent Executrix of the Succession of Betty Jean Parker, pursuant to the trial court’s grant of Defendants’ motion for directed verdict. The trial court entered judgment dismissing, with prejudice, Plaintiffs petition to annul testament when his counsel was absent on the day of trial. Plaintiff challenges the dismissal, arguing that he, though present at trial, was denied due process of law. For the following reasons, we reverse and remand.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff, Curtis J. Parker, Sr., alleges that his wife, Betty Jean Parker, died intestate on February 5, 2014. Defendants claim that Betty Jean Parker validly executed a last will and testament prior to her demise. The present appeal, however, centers on the trial court’s dismissal of Plaintiffs petition to annul testament, with prejudice.

This matter was set for trial on November 12, 2014. When court convened on the date of trial, Plaintiff was present; however, his counsel, Wilford Carter, |2was not. Defendants moved for and were granted a directed verdict. Plaintiff sought a new trial, which was also denied. Plaintiff has filed a suspensive appeal.

ASSIGNMENTS OF ERROR

Plaintiff raises the following assignments of error:

1. The trial court erred in denying [his] Motion for Continuance submitted to the court between October 23, 2014[,] and October 27,2014.
2. The trial court erred in denying [his] Motion for Continuance submitted to the court on or about November 7, 2014.
3. The trial court erred in denying [him] due process of law.
4. The trial court erred in granting a directed verdict, with prejudice, in this case.
5. The trial court erred in denying [his] Motion for New Trial.

LAW AND DISCUSSION

In assignments of error numbered three and four, Plaintiff argues that he was denied due process of law when the trial court granted Defendants’ request for directed verdict and dismissed, with prejudice, his petition to annul testament. We address this issue first, since a finding of merit would preclude the necessity of considering the remaining assignments of error.

Due process of law is guaranteed by the Fourteenth Amendment to the United States Constitútion, which restricts the government from depriving a person of the right to be heard. The Fourteenth Amendment to the United States Constitution provides in pertinent part, “nor shall any state deprive any person of life, liberty, or property, without due process of law.” The 1974 Louisiana [¡¡Constitution Article 1, § 2 echoes this provision. Louisiana Constitution Article 1, § 2 provides “[n]o person shall be deprived of life, liberty, or property, except by due process of law.”

Plaintiff contends that due process was denied when “he was denied his day in court.” He alleges that he was not given “an opportunity to present his case in the absence of counsel[.J” Considering the record before us, we find, merit in Plaintiffs contention.

The record before us confirms that Plaintiff was present in the courtroom on November 12, 2014—both the transcript and the judgment reflect this fact. It is also clear that Plaintiffs counsel, Wilford Carter, though in the courthouse, was not present in the courtroom. After Mr. Carter’s absence was discussed in open court with Plaintiff present, Defense counsel stated: “Your Honor, in failing on the part of the plaintiff to move—to proceed, we’d ask for a directed verdict failing to meet the burden of proof.” The trial court granted Defendants’ motion.

Pertinent to our review of this matter is whether Plaintiff was given any opportunity to be heard. Our- examination indicates that he was not. The trial court summarily verified Plaintiffs presence, then entertained and granted Defendants’ motion. The right of self-representation was never posed. Fairness and due process dictate that Plaintiff, who was present, should have been informed of the impending consequences sought by Defendants, and he should have been given the opportunity of self-representation, affording him the opportunity to have his claim heard. “Our courts have recognized the right of litigants in civil proceedings to represent themselves in court.” Farrington v. Law Firm of Sessions, Fishman, 96-1486, p. 3 (La.2/25/97), 687 So.2d 997, 999. “The right of self-representation has been recognized even in criminal cases. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).” Green v. Gary Mem’l Hosp., 505 So.2d 196, 198 (La.App. ,3 Cir,1987). The opportunity to be heard must be granted in a meaningful manner. See LaPointe v. Vermilion Parish Sch. Bd., 15-432 (La.6/30/15), 173 So.3d 1152.

In this case, Plaintiff was penalized for his counsel’s absence in the strictest manner—dismissal, with prejudice, of his claim. This does not constitute due process as mandated by the Fourteenth Amendment to the United States Constitution and Article 1, § 2 of the 1974 Louisiana Constitution. Consequently, we reverse the judgment of the trial court, and we remand this matter to the trial court for further proceedings consistent with this opinion.

DECREE

For the foregoing reasons, we find that Mr. Parker’s due process rights were violated because there is no proof in the record that he was given the opportunity to be heard at the November 12, 2014 trial. Accordingly, we reverse and remand for further proceedings consistent with this opinion. All costs of this appeal are assessed against Defendants/Appellees, Sheryl R. Parker, Trade Y. Blanchette, Karen D. Parker, Curtis J. Parker, Jr., and Joy N. Parker, individually and as Independent Executrix of the Succession of Betty Jean Parker.

REVERSED AND REMANDED.

GREMILLION, J., concurs and assigns written reasons.

GREMILLION, J.,

concurs.

hi write separately because I find that the majority opinion does not adequately address the facts leading to the trial court’s dismissal, nor does it address what the trial court should have done to properly deal with those facts.

Louisiana Code of Civil Procedure article 221 defines a “contempt of court” as “any act or omission tending to obstruct or interfere with the orderly administration of justice, or to impair the dignity of the court or respect for its authority.” That article also tells us that there are two kinds of contempt of court: direct and constructive.

The critical event in this matter was the November 12, 2014 trial. That trial date was agreed upon by all the parties. It was affirmed and reaffirmed by way of email exchanges among all the parties. Thereafter, the court formalized the date by both mailing and emailing notice to all the parties. Even after that, the court sent additional notices to the parties referencing the November 12,2014 trial date.

On November 7, 2014, counsel for Curtis Parker, Sr., filed a Motion to Continue the trial, pledging to the court that he was required to be in another room in the same courthouse regarding a matter that had been fixed prior to the trial in this matter. The trial court, however, determined that this assertion on the part of counsel was false. Therefore, the trial court denied counsel’s Motion to continue 12the trial, and sent yet another notice thereby nailing down the November 12, 2014 trial date.

The trial court’s “per curiam” indicates that on the morning of trial, counsel, Mr. Wilford Carter, sat idly in another courtroom in the same building and refused to even make an appearance in this courtroom, even when expressly ordered to do so by the trial court, and even when a bailiff instructed Mr. Carter that his client’s matter was going to proceed with or without him.

Mr. Carter was clearly in contempt of court. He clearly interfered with the orderly administration of justice, and his actions were calculated to impair the dignity of the court and show disdain, rather than respect, for its authority.

Louisiana Revised Statute 13:4611 lays out the punishment for contempt of court. For an attorney at law such as Mr. Carter, he could have been fined up to $100 or imprisoned for up to 24 hours. This is the punishment that should have been meted out to him. His client’s case should not have been dismissed.

To utterly refuse to even enter the courtroom while his client’s trial is being conducted is unconscionable. To refuse to enter that courtroom to spite the trial judge is contemptible.

      . Plaintiff, Curtis J. Parker, Sr., petitioned for appointment of an administrator in the succession of his deceased wife, Betty Jean Parker under docket number 53,782. Defendant, Joy N. Parker, petitioned to be appointed the executrix of her mother’s succession under docket number 53,794.

      . Curtis J. Parker, Sr„ disputes the validity of the purported last will and testament of Betty Jean Parker, which is dated January 12, 2014, alleging mental incapacity and physical infirmity.

      . "A judgment of dismissal with prejudice shall have the effect of a final judgment of absolute dismissal after trial.” La.Code Civ.P. art. 1673.

      .Although a directed verdict was advanced by Defendants and granted by the trial court, we note that the appropriate procedural device is an involuntary dismissal pursuant to La.Code Civ.P. art. 1672. A directed verdict, pursuant to La.Code Civ.P. art. 1810, is the procedural device that is used after the close of evidence in a jury trial. See Bonnet v. Lafayette Parish Sheriff's Office, 11-676 (La. App. 3 Cir. 11/9/11), 80 So.3d 32.