author: CRAIN, J.

text:
    Gerald P. MOORE and GM Enterprises, L.L.C. v. CHEVRON USA, TRMI Holdings Inc., Star Enterprise, State of Louisiana, Department of Environmental Quality, Evangeline Street Texaco, Inc.
    NO. 2016 CA 0805
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: MAY 25, 2017

      Eroll J. Ware, New Orleans, Louisiana, Attorney for Plaintiffs/Appellants, Gerald P. Moore and GM Enterprises, L.L.C.
    Richard D. McConnell, Jr., Chelsea Gomez Caswell, Samuel 0. Lumpkin, Baton Rouge, Louisiana, Attorneys for Defendants/Appellees, Chevron Environmental Management Company, Texaco Inc., Star Enterprise, and TRMI Holdings, Inc.
    Michael A. Patterson, Mark L. Barbre, S. Brooke Barnett-Bernal, Baton Rouge, Louisiana, Attorneys for Defendant/Appel-lee, State of Louisiana, Department of Environmental Quality
    BEFORE: WELCH, CRAIN, AND HOLDRIDGE, JJ.
   CRAIN, J.

|aThis is the appeal of a judgment granting summary judgments and dismissing plaintiffs’ claims for property damages and redhibition. We affirm.

FACTS

On January 7, 2009, Gerald P. Moore instituted this suit for damages arising from the alleged environmental contamination of immovable property he owns in East Baton Rouge Parish. Chevron Environmental Management Company, Texaco Inc., Star Enterprise, TRMI Holdings, Inc., (collectively, “the Chevron defendants”), and the Louisiana Department of Environmental Quality (LDEQ) were included as defendants in the suit. Moore contends the contamination was caused by leaking underground storage tanks and the mishandling of hazardous substances during the operation of a gas station on the property by a previous owner. Moore alleges environmental site assessments performed in 2003, as a requirement for financing to build his own gas station on the property, revealed contamination. Moore alleges both LDEQ and Chevron Environmental Management Company were notified of the site assessment results and investigated the alleged contamination until 2008, when LDEQ issued a report concluding no further action was required.

In 2016, the Chevron defendants and LDEQ filed motions for summary judgment seeking dismissal of the suit based upon prescription. After a request for a continuance was denied, and evidence submitted by Moore was excluded, the trial court granted summary judgment and dismissed Moore’s suit. Moore now appeals.

| «DISCUSSION

After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show there is no genuine issue as to material fact and mover is entitled to judgment as a matter of law. La. Code Civ. Pro. art. 966A(3). A “material fact” is one that potentially ensures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. A “genuine issue of material fact” is a material fact about which reasonable people can disagree; if reasonable people can reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Jackson v. City of New Orleans, 12-2742 (La. 1/28/14), 144 So.3d 876, 882. For purposes of summary judgment, the materiality of facts is determined by the substantive law applicable to the case. Jackson, 144 So.3d at 882.

Liberative prescription is a method of barring actions when there is inaction for a period of time. La. Civ. Code art. 3447. Delictual actions are subject to a liberative prescription of one year, which commences to run on the date the injury or damage is sustained. La. Civ. Code art. 3492. However, “[w]hen damage is caused to immovable property, the one[-]year prescription commences to run from the day the owner of the immovable acquired, or should have acquired, knowledge of the damage.” La. Civ. Code art. 3493. Thus, the one-year prescription' applicable to claims for damage to immovable property is triggered by actual or constructive knowledge of damage. Hogg v. Chevron USA Inc., 09-2632 (La. 7/6/10), 45 So.3d 991, 997; Rebstock v. Seismic Exchange, Inc., 13-0540, 2013 WL 5915140, p.2 (La. App. 1 Cir. 11/1/13).

Constructive knowledge sufficient to begin prescription is “whatever notice is enough to excite attention and put the injured party on guard or call for inquiry.” Hogg, 45 So.3d at 997. Stated another way, it “is the acquisition of sufficient | information, which, if pursued, will lead to the true condition of things.” Marin v. Exxon Mobil Corp., 09-2368 (La. 10/19/10), 48 So.3d 234, 246 (quoting Young v. International Paper Co., 179 La. 803, 155 So. 231 (La. 1934)). Whether a party had constructive knowledge is ultimately determined by the reasonableness of the party’s action or inaction in light of the surrounding circumstances. Hogg, 45 So.3d at 997-998. A plaintiff is deemed to know what he can learn through the exercise of reasonable diligence and cannot rely on ignorance attributable to his own willfulness or neglect. See Marin, 48 So.3d at 246.

Prescription is a defense typically asserted by means of a peremptory exception, but may be raised by motion for summary judgment. Hogg, 45 So.3d at 997. When prescription is raised by motion for summary judgment, review is de novo, using the summary judgment criteria. Hogg, 45 So.3d at 997. In a case seeking damages to immovable property, the party moving for summary judgment on the basis of prescription must prove, based solely on documentary evidence, there is no disputed genuine issue of material fact regarding the date when the plaintiff knew or should have known of the damage sufficient to commence the running of prescription. Hogg, 45 So.3d at 998. The burden then shifts to the plaintiff to show why the claim is not prescribed. See Hogg, 45 So.3d at 998.

The Chevron defendants and LDEQ assert that by May, 2003, more than five years prior to filing suit in January, 2009, Moore knew or should have known of damage to his property. In support of their motions for summary judgment, the defendants submitted Moore’s deposition testimony where he testified he consulted an attorney who sent Chevron-Texaco a letter dated May 19, 2003, stating environmental assessments revealed significant contamination of the property, apparently from fuel tanks used when a Texaco gas station was operated on the property. The letter claimed Moore lost a business opportunity and now faced the cost of rehabilitating the property. In his deposition, Moore acknowledged that [¡¡both the source of the contamination and the identity of the company that allegedly caused it were identified in the 2003 letter. He testified that he contacted a second attorney in early 2004, who also contacted ChevronTexaco about the property.

The defendants also submitted Moore’s original and amending petitions in support of their motions for summary judgment, which stated the 2003 environmental site assessments revealed the property was contaminated. Therein, Moore alleged he “immediately presented [those] findings to both Chevron and LDEQ.” Moore further claimed the contaminated property was “virtually worthless,” and was “unlikely to recover the value it would have had if this contamination had never taken place.” According to the defendants, these allegations and Moore’s deposition testimony reveal sufficient knowledge to commence prescription in 2003.

In opposition, Moore argued the prescriptive period was not triggered in 2003, because he was only investigating at the time, and prescription was tolled by the defendants’ actions. Moore claims that Texaco failed to disclose the contamination to his predecessor in title, that Chevron said it was responsible for and would repair the damage, and that LDEQ said not to file suit until LDEQ completed its investigation. Thus, according to Moore, prescription stopped or was otherwise interrupted by operation of contra non va-lentón. Moore does not claim he was prevented from filing suit by the defendants’ actions, but argues “time stopped” when LDEQ entered the controversy.

Contra non valentón prevents liberative prescription from running in four situations: 1) where some legal cause prevents the courts or their officers from taking cognizance of or acting on the plaintiffs action; 2) where some condition coupled with the contract or connected with the proceedings prevents the creditor from suing or acting; 3) where the debtor does some act to prevent the creditor from availing himself of his cause of action; or 4) where the cause of action is | (¡neither known nor reasonably knowable by the plaintiff, even though plaintiffs ignorance is not induced by the defendant. Marin, 48 So.3d at 245. In property damage cases, the prescriptive period is triggered by actual or constructive knowledge of the damage, encompassing the fourth category of contra non valentem known as “the discovery rule.” Marin, 48 So.3d at 245.

In support of his arguments, Moore offered sixteen documents—fourteen letters with attached documentation, one affidavit, and the sale document where Moore’s predecessor purchased the property. The Chevron defendants and LDEQ filed reply memoranda objecting to Moore’s documents. The trial court determined the affidavit, although of questionable value, was the only competent evidence offered by Moore. The other documents were found inadmissible for .purposes of the motion for summary judgment. Moore contends this was error.

Louisiana Code of Civil Procedure article 966, revised by Acts 2015, No. 422, § 1, now clarifies that “[t]he only documents that may be filed in support of or in opposition to the motion [for summary judgment] are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions.” Because the letters and sale document offered by Moore are not in the categories of documents allowed by Article 966A(4), they are not competent summary .judgment evidence. The trial court correctly excluded those items as opposition to the motions for summary judgment.

Consequently, the only evidence properly considered in support of Moore’s arguments is the affidavit of Adrean T. Wilkerson. In 2004 she worked as a customer service representative with Cingular Wireless and part time with GM Automotive. She contacted a senior attorney “in the Chevron Products Company Law Department” in February 2004, and discussed Moore’s contaminated 17property. She said after informing the attorney that Texaco operated the only gas station on the property, the attorney responded, “[t]here would be no need to file .suit against Chevron, because they’re willing to commit to cleaning up the contamination.”

There is no disputed issue of material fact regarding when the plaintiff acquired actual or constructive knowledge of the damage sufficient to commence prescription. Compare Hogg, 45 So.3d at 998. We find that in 2003, Moore had sufficient knowledge to pursue a claim for damages for the alleged contamination, and took informal steps, but no formal legal steps, to do so. The one-year prescriptive period was triggered. The burden of proof then shifted to Moore to show why the claim is not prescribed. See Hogg, 45 So.3d at 998. The Wilkerson affidavit fails in this regard. It does not identify any relationship between Wilkerson and Moore, does not suggest Wilkerson told Moore of her discussion with the attorney, and simply does not support Moore’s assertion that his case is not prescribed. The words of Wilkerson are not sufficient to support the application of any of the four categories of contra non valentem so as to prevent the running of prescription. No other legal theories argued by Moore apply to the established facts. We find no legal basis for Moore’s claim that “time stopped at the point [LDEQ] entered the controversy.” The suit for property damages was untimely and is prescribed.

Moore’s suit also alleged claims for red-hibition. Louisiana Civil Code article 2520 provides:

The seller warrants the buyer against redhibitory defects, or vices, in the thing sold.
RA defect is redhibitory when it renders the thing useless, or its use so inconvenient that it must be presumed that a buyer would not have bought the thing had he known of the defect. The existence of such a defect gives a buyer the right to obtain rescission of the sale. A defect is redhibitory also when, without rendering the thing totally useless, it diminishes its usefulness or its value so that it must be presumed that a buyer would still have bought it but for a lesser price. The existence of such a defect limits the right of a buyer to a reduction of the price.

Moore acquired the property by donation. He alleges the contaminants and hazardous materials on his property constitute redhibitory defects and, through his donor’s title, he is subrogated to all causes of action in warranty.

Generally, a redhibition action involving residential or commercial immovable property against a seller who did not know of the defect, prescribes one year from the date the property is delivered to the buyer. La. Civ. Code art. 2534A(2). Where the seller knew or is presumed to know of the defect, the redhibition action prescribes one year from the date the buyer discovers the defect. La. Civ. Code art. 2534B. Prescription is triggered by knowledge of the defect, not, as Moore argues, by knowledge of the concealment of the defect.

Moore knew of the alleged defect in 2003. He failed to present any evidence that the prescriptive period was interrupted or the suit is not prescribed. The redhi-bition claim filed in 2009 was untimely.

Moore claims the judgment should be reversed because the trial court erred in denying his motion to continue. He argues he should have been allowed more time to present evidence and legal arguments to support his theories. Moore argues he was denied an evidentiary hearing related to the applicability of the federal doctrine of equitable tolling, the affirmative defense of fraud and its effect on tolling prescription, the opportunity to establish a continuing tort claim, and the opportunity to make a case that “time stopped” when LDEQ entered the controversy. Moore contends these errors denied him due process.

| ¡Article 966 requires “an opportunity for adequate discovery” before summary judgment is granted. There is no absolute right to delay a motion for summary judgment until discovery is complete. The parties must, however, be given a fair opportunity to present their claims. Ellis v. Louisiana Bd. of Ethics, 14-0112 (La. App. 1 Cir. 12/30/14), 168 So.3d 714, 725, writ denied, 15-0208 (La. 4/17/15), 168 So.3d 400. This case was pending for seven years before the motions for summary judgment were filed. Moore was allowed to present evidence in opposition to the motions, but failed to do so. The trial court did not abuse its discretion in denying Moore’s motion to continue.

CONCLUSION

The judgment of the trial court is affirmed. Costs of this appeal are assessed to the appellants, Gerald P. Moore and GM Enterprises, L.L.C.

AFFIRMED.

      . GM Enterprises, L.L.C., is also a plaintiff to this suit. Moore is the sole member/manager and registered agerit for GM.

      . Moore alleged the property was donated to him. He further alleged his predecessor in title purchased the property from Star Enterprise and Texaco, Inc., which was succeeded by Chevron Corporation, Chevron Corporation, the parent corporation of Texaco, Inc., was named as a defendant, but was dismissed on Moore’s motion.

      . “Any objection to a document shall be raised in a timely filed opposition or reply memorandum. The court shall consider all objections' prior to rendering judgment. The court shall specifically state on the record or in writing which documents, if any, it held to be inadmissible or declined to consider,” La. Code Civ. Pro. art. 966(D)2.

      , On appeal, Moore contends that his argument that "time stopped” when LDEQ became involved is supported by Louisiana Revised Statute 30:2025C(3). We disagree. That section details the requirements of the assistant secretary for the office of environmental compliance upon determining a violation of the Louisiana Environmental Quality Act. It does not affect the prescriptive period for a landowner to bring suit.

      . In his appellate brief, Moore suggests that the trial court applied a different legal standard due to Moore’s pro se status at the time of the summary judgment hearing. We find no merit to Moore’s argument, The trial court considered Moore’s request for a continuance using the correct legal standards and, for the reasons set forth herein, did not abuse its discretion in denying the request.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Issa L. LAMIZANA Jr.
    NO. 2016-KA-1017
    Court of Appeal of Louisiana, Fourth Circuit.
    MAY 31, 2017
    Rehearing Denied August 8, 2017

      Leon A. Cannizzaro, Jr., District Attorney, Orleans Parish, Kyle C. Daly, Assistant District Attorney, Parish of Orleans 619 South White Street New Orleans, LA 70119 COUNSEL FOR THE STATE OF LOUISIANA
    Sherry Watters, LOUISIANA APPELLATE PROJECT, P. 0. Box 58769 New Orleans, LA 70158 COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Judge Edwin A. Lombard, Judge Roland L. Belsome, Judge Daniel L. Dysart)
   hThe defendant, Issa Lamizana, Jr., appeals his convictions and sentences for aggravated rape. After review of the record in light of the applicable law and arguments of the parties, we vacate the defendant’s convictions and sentences, remanding the matter back to the trial court for further proceedings.

Relevant Facts and Procedural History

The defendant married the victims’ mother, Ebone Janelle Thomas, in December 2010. Ms. Thomas had two children, a daughter (E.T. 1) and a son (E.T. 2), from a previous relationship. The relationship between the defendant and Ms. Thomas was rancorous.

The defendant was charged by bill of information on December 20, 2012, with two counts of aggravated rape in violation of La. Rev. Stat. 14:42(A)(4), one count relating to each of his step-children. The defendant’s first trial ended in a mistrial. On January 20, 2016, after a two-day trial, the defendant was convicted on both counts. On February 19, 2016, the district court sentenced him to life 12imprisonment at hard labor without the benefit of ’probation/parole or suspension of sentence, on each conviction.

The defendant timely appeals his convictions and sentences.

Discussion

In his appellate brief, the defendant raises five assignments of error. For the reasons that follow, we pretermit a full discussion of those assignments of error.

Prior to trial, the defendant sought to subpoena Department of Children and Family Services (DCFS) investigator Monique Hayes, who was apparently the first actor to interview victim E.T. 1 and the defendant’s wife, Ms. Thomas. In response, DCFS filed a motion to quash which was granted by the trial court.

The Sixth Amendment" of the United States Constitution and Article I; Section 16 of the Louisiana Constitution (1974) both guarantee a criminal defendant the right to compulsory process to present a defense. The defendant’s right to compulsory process is the right to demand subpoenas for witnesses and the right to have those subpoenas served. State v. Gordon, 01-734 (La.App. 5 Cir. 11/27/01), 803 So.2d 131, 148. Under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 216 (1963), the State is required to disclose to an accused evidence in its possession that is favorable to the accused and material to his guilt or punishment; for purposes of Brady rule, “no distinction exists between exculpatory and impeachment evidence.’’ State v. Kemp, 00-2228 (La. 10/15/02), 828 So.2d 540, 545 (citing U.S. v. Agurs, 427 U.S. 97, 96 S.Ct., 2392, 49 L.Ed.2d 342 (1976)). Records containing statements pertaining to a juvenile’s veracity as a witness may be material to impeach the juvenile’s ^credibility. State v. Ortiz, 567 So.2d 81, 82 (La.1990) . Thus, where the pertinent statute contemplates some use of those records in judicial proceedings and does not absolutely prevent their disclosure in criminal prosecutions, such records are. discoverable by a, criminal défendant when a court of competent jurisdiction concludes that, they are relevant and material to his defense. Ortiz, supra (citing Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987)).

As is clear from the relevant state statute, Louisiana does not require absolute confidentiality of DCFS records but, rather, has an established procedure for discovery of those records:

In the event of the issuance óf a subpoena or subpoena duces tecum served upon the custodian of case records or other qualified witnéss or employee of the department in a civil action in which the department is not a party, or in any criminal proceeding, and such subpoena requires production for trial or discovery of any or all of the department’s records, it shall be sufficient compliance if the custodian or other qualified employee delivers by registered mail or by hand a true and correct copy of all records described in such subpoena to the clerk of court or other tribunal, together with an affidavit of their authenticity, to be sealed by the court and made available only to the litigants, after an in camera inspection by the court for a determination of relevance and/or discoverability, who shall be bound by the limits of confidentiality.

La. Rev. Stat. 46:56(H)(2) (emphasis added).

In Ortiz, the Louisiana Supreme Court determined that La. Rev. Stat. 46:56(H)(2) allowed for disclosure of DCFS investigations and case records.

|4The record in this case is somewhat oblique. The motion to quash filed by the DCFS and the trial court ruling do not appear in the appellate record, although it is clear that the trial court granted DCFS’s motion to quash the subpoena and that the defendant was not allowed to call Ms. Hayes as a witness at the motion hearing or at trial. The record does show that defense counsel moved for a mistrial at the close of oral arguments based on the exclusion of the testimony of Ms. Hayes and the DCFS report prepared by Msi Hayes. The trial court denied the motion, noting defense counsel’s objection. Defense counsel again raised the issue after the verdict in the defendant’s motion for a new trial (which is in the appellate record), noting the trial court’s failure to perform the statutorily required in camera inspection of Ms. Hayes report before granting the DCFS motion to quash as follows:

•A representative for Monique Hayes, Kristen Stringer,, from the child protective services arrived with Mrs. Hayes and contested her being called to the stand to testify. This representative brought with her a sealed manila folder with papers in it that the judge was supposed to review in making his decision before he would allow Mrs. Hayes to testify. When the judge reviewed the papers it was discovered that this representative brought the wrong, papers, the papers were not even of the allege [sic] juvenile victims that were the subject of the case at hand, they were for different individuals not even involved in this case.. The judge could not even carry out the mandate of the statute the representative stated, which required the judge to do an in camera review of the papers before he could decide to allow Monique Hayes an employee of CPS to testify or not because Mrs. Stringer brought the wrong papers. The judge asked her to get the proper papers and the response was it could take up to 5 days for her to get the correct papers that were relevant to this case and with' thése juveniles. The judge could not make a proper determination as to if Monique Hayes should have been allowed to testify according to the statute the representative mentioned because the representative brought the wrong papers. Instead of making the representative get the correct papers to- do the correct in camera review the judge denied defense counsel the ability to call Mrs. Monique Hayes up to the stand all together [sic], and Mrs.. Hayes was present in court pursuant to the defense subpoena but again defense was denied the ability to call her Ifito the stand ■ to testify all together. [Sic]. This denial violated Mr. Lamiza-na’s Constitutional rights under the United States Constitution, in particular the 6th Amendment.

On February 19, 2016, the trial court denied the motion for new trial and imposed sentence. Defense counsel then filed a motion for appeal which was granted by the trial court, along with defense counsel’s motion to withdraw and appointment of the Louisiana Appellate Project as the defendant’s counsel on appeal.

Appellate counsel asserts as Assignment of Error 2 that the exclusion of testimony by Ms. Hayes (the first investigator to interview the children and his wife) constituted a denial of the defendant’s fundamental right to present a defense and confront witnesses because Ms. Thomas (the defendant’s wife) compelled the children to make accusations against him as a result of their acrimonious marital relationship.

As determined by the Louisiana Supreme Court in Ortiz, La. Rev. Stat. 46:56(H)(2) allows for disclosure of DCFS investigations and case records. The statutory requirement that the records must be first produced to the trial court is presumably designed to allow the trial court to issue any necessary protective orders prior to issuing the subpoena. In this case, however, the trial court granted the DCFS motion to quash without waiting for DCFS to submit the correct records and, thus, without making a determination as to whether Ms. Hayes’s testimony was material to the defense.

Rape, particularly involving juvenile victims, is unquestionably an egregious crime. In this case, however, there is no physical evidence to support the convictions, the defendant and his wife clearly had an adversarial relationship, and |Bthe State’s case rested solely on the jury’s credibility determination in accepting the victims’ testimony that the defendant raped them. Thus, the trial court’s decision to grant the DCFS’s motion to quash, thereby implicating the defendant’s fundamental rights of presenting a defense, using compulsory process, and confronting witnesses without examining the DCFS report in camera as required by La. Rev. Stat. 46:56(H)(2) or ascertaining what Ms. Hayes would have testified (although she was apparently present and available to testify) greatly concerns us. Without evidence in the record as to the content of the DCFS filed by Ms. Hayes or what her testimony would have been, we cannot determine whether her testimony and/or report were material and of impeachment value and, thus, a reversible error. It does appear, however, that trial court’s apparent decision to summarily grant the DCFS motion to quash without regard to the statutorily required in camera inspection was error and implicates the defendant’s right to procedural due process.

Appellate counsel does not assign as error the trial court’s denial of the defendant’s motions for a mistrial or new trial, arguing only that the defendant’s fundamental rights were denied. On the record before us, we cannot determine whether the defendant’s constitutional rights were violated but it does appear that, at the very least, the defendant’s trial was flawed procedurally. The defendant was restricted from developing a complete record when the trial court summarily denied his right to compulsory process with regard to Ms. Hayes without examining the DCFS report in camera as required by La. Rev. Stat. 46:56(H)(2) or ascertaining what Ms. Hayes’ testimony would be, although she was apparently present and available to testify.

17Because the defendant’s fundamental rights may have been impaired by pretrial procedural defects and, at the very least, his opportunity to develop a full record was curtailed by the trial court rulings, the trial court’s denial of the defendant’s motions for mistrial and new trial was error. See La. Code Crim. Proc. art. 775 (a legal defect in the proceedings is ground for mistrial); La. Code Crim. Proc. art. 851 (motion for new trial based on supposition that injustice has been done to defendant; the court shall grant defendant’s motion for new trial when court’s ruling on a written motion or objection made during proceedings shows prejudicial error and/or the ends of justice would be served by granting new trial even if defendant may not be entitled to new trial as a matter of strict legal right).

Defense counsel objected to the denial of the defendant’s motion for a mistrial and moved for an appeal immediately after the trial court denied the defendant’s motion for a new trial, thereby preserving those rulings for review. Accordingly, in the interest of justice we expand the scope of our review to consider the correctness of those decisions. See Rule 1.3, Uniform Rules-Courts of Appeal (this court reviews only issues submitted to the trial court and assigned as error in the appeal before this court “unless the interest of justice dearly requires othermse.”)(emphasis added).

As previously noted, Ms. Hayes did not testify and the DCFS records relating to her interview are not part of the appellate record. Due to the DCFS’s submission of the wrong file and the trial court’s decision to summarily rule on the motion (rather than waiting for the right file to be brought for his inspection), we cannot discern whether the testimony of Ms. Hayes or the records relating to her interview would undermine the credibility of the victims’ testimony and, if so, the extent to which the absence of Ms. Hayes’ testimony or records relating to her |8interview contributed to the verdict. Nonetheless, the trial court’s failure to comply with La. Rev. Stat. 46:56(H)(2) and, thereby, ascertain whether the testimony of Ms. Hayes was material—and thus preserve the record for our review—undermines our confidence in the verdict. Accordingly, we find that the trial court erred in denying the defendant’s motions for a mistrial and for a new trial.

Conclusion

For the foregoing reasons, the defendant’s convictions and sentences are vacated and the matter is remanded to the trial court for further proceedings.

VACATED AND REMANDED.

      . As is the custom of this court, the juvenile victims are referred to only by their initials.

      . La. Rev. Stat. 14:42 was amended by Acts 2015, Nos. 184 and 256, to change "aggravated rape” to “first degree rape.” No substantive changes were made to La. Rev. Stat. 14:42(A)(4).

      . In Ortiz, the Louisiana Supreme Court also noted that in a pretrial proceeding such as this one, the “the concept of materiality to be applied is to be given its ordinary meaning in the law of evidence,” quoting Professor ■ McCormick’s observation:
      There are two components to relevant evidence: materiality and probative value. Materiality looks to the relation between the propositions for which the evidence is offered and the issues in the case. * * *. But matters in the range of dispute may extend somewhat beyond the issues defined in the pleadings. * * * In addition, the parties may draw in dispute the credibility of the witnesses and, within limits, produce evidence assailing and supporting their credibility.

        Ortiz, supra (quoting McCormick on Evidence (3rd Ed.) § 185 at p. 341.


author: HIGGINBOTHAM, J.

text:
    Gary BOUDREAUX v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS
    NO. 2016 CA 0995
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: JUNE 02, 2017

      Gary Boudreaux, Angola, LA, Plaintiff-Appellant, In Proper Person
    Terri L. Cannon, Angola, LA, Attorney for Defendant-Appellee, Louisiana Department of Public Safety and Corrections
    BEFORE: HIGGINBOTHAM, THERIOT, AND CHUTZ, JJ.
   HIGGINBOTHAM, J.

| Jn this appeal, Gary Boudreaux challenges the district court’s judgment dismissing his motion for reconsideration. Specifically, Mr. Boudreaux contends that the district court erred in not allowing his writ of mandamus to be converted to a petition for judicial review.

FACTS AND PROCEDURAL HISTORY

On July 15, 2015, Mr. Boudreaux, an inmate in the custody of the Louisiana Department of Public Safety and Corrections (“DPSC”), filed a writ of mandamus in the Nineteenth Judicial District Court to compel DPSC to respond to his lost personal property claim that he filed on February 2, 2015. In his lost property claim, Mr. Boudreaux contends that his personal hobbycraft, including several tools, was lost. After being served with Mr. Boudreaux’s mandamus request, DPSC accepted his lost property claim on July 31, 2015, and stated that it would respond within forty days. While waiting on a response from DPSC, on October 1, 2015, Mr. Boudreaux filed an amended petition requesting that in the interest of judicial economy his writ of mandamus be converted into a petition for judicial review. Specifically, Mr. Boudreaux claimed that DPSC had deliberately refused to consider his Administrative Remedy Procedure (“ARP”) claim, and he submitted that he was therefore legally entitled to move on to the next step in the judicial review, process. On November 13, 2015, DPSC sent Mr. Boudreaux a response denying his lost property claim. According to Mr. Boudreaux, he then proceeded to the second step in the administrative process on November 16, 2015. However, the record before us does not contain any ruling or action, pending or otherwise, taken by the secretary of DPSC.

On January 27, 2016, DPSC filed an exception of lack of subject matter jurisdiction asserting that because DPSC had answered Mr. Boudreaux’s lost property claim as requested, the mandamus request was moot, and thus the district Rcourt no longer had subject matter jurisdiction. Mr. Boudreaux responded and again requested that the court consider his motion to convert his writ of mandamus into a petition for judicial review.

The action was initially referred to the Commissioner for judicial screening pursuant to La. R.S. 15:1178 and La. R.S. 15:1188. On April 4, 2016, the Commissioner issued a screening report finding that the mandamus request was moot leaving the district court without subject matter jurisdiction to further entertain the suit. Therefore, the Commissioner recommended that Mr. Boudreaux’s suit be dismissed, but that the cost of the suit be borne by DPSC because of its failure to timely complete the administrative process necessitated Mr. Boudreaux’s suit for mandamus.

After de novo review of the entire record, including the Commissioner’s screening report and Mr. Boudreaux’s timely filed traversal, the district court rendered judgment on May 4, 2016, adopting the recommendations set forth in the Commissioner’s screening report, dismissing the matter without prejudice, and assessing all costs to DPSC. Thereafter, Mr. Boudreaux filed a motion for reconsideration of the May 4,2016 judgment contending, that the district court did not consider his request to convert his writ of mandamus to a petition for judicial review.

I ,tThe Commissioner’s screening report on the motion for reconsideration recommended that Mr. Boudreaux’s motion be denied because Mr. Boudreaux should have filed a petition for judicial review within thirty days of receiving his second step response as allowed by La. R.S. 15:1177(A), and he did not do so. Furthermore, the Commissioner pointed out that because it had twice considered and denied Mr. Boudreaux’s request to convert his mandamus application to a petition for judicial review, his motion for reconsideration should likewise be denied. On May 25, 2016, the district court signed a judgment denying Mr. Boudreaux’s motion for reconsideration. It is from this judgment that Mr. Boudreaux appeals, contending that the district court erred in not converting his writ of mandamus into a petition for judicial review.

LAW AND ANALYSIS

Procedures set out in the Corrections Administrative Remedy Procedure (CARP) provide the exclusive remedy available to inmates that arise while an offender is within the custody of DPSC with appellate review first at the district court and then the court of appeal. See La. R.S. 15:1171 (B) and La. R.S. 15:1177(A)(10). The district court is precluded from entertaining an inmate’s ARP complaint until he has exhausted the remedies provided to him by the ARP process. See La. R.S. 15:1172(B) and (C). If suit is filed prior to exhaustion of administrative remedies, the district court lacks jurisdiction over the matter, and the suit shall be dismissed without prejudice. See La. R.S. 15:1184(A)(2) and La. R.S. 15:1172(C); Rochon v. Young, 2008-1349 (La.App. 1 Cir. 2/13/09), 6 So.3d 890, 892, writ denied, 2009-0745 (La. 1/29/10), 25 So.3d 824, cert. dismissed, 560 U.S. 921, 130 S.Ct. 3325, 176 L.Ed.2d 1216 (2010).

Section 325 of Title 22, Part I, of the Louisiana Administrative Code (LAC) outlines the rules and procedures to be followed in formally addressing inmate complaints under the general ARP process. Further procedures are provided for the |Btime period after the grievance has been accepted by the DPSC. See LAC 22:1.325(J). While Section 325(J) entitles an inmate to move to the next step in the administrative process upon expiration of the time limits for the DPSC’s response, the general ARP procedure does not apply to lost property claims. Rather, lost property claims are handled through a specialized administrative remedy procedure, and the procedure for lost property claims has no similar provisions setting forth deadlines within which the DPSC must act or for allowing the inmate to proceed to the next step at the expiration of any particular time limit. See LAC 22:1.325(I)(1)(b)(ii); 325(K)(1), and 325(L); Foster v. Louisiana Dept. of Public Safety & Corrections ex rel. Louisiana State Penitentiary, 2012-0349 (La.App. 1 Cir. 11/2/12), 2012 WL 5386608, **2-3 (unpublished), writ denied, 2013-0070 (La. 5/24/13), 117 So.3d 100.

The specialized rules governing lost property claims also require compliance with a second-step review process before an inmate can proceed with filing a suit. Specifically, the specialized lost property rules provide that an inmate who is not satisfied with a lost property claim resolution should indicate such “by checking the appropriate box on the lost personal property claim response” and then submit this to the screening officer within five days. The screening officer is then obligated to forward the claim to the chief of operations/office of adult services for review. LAC 22:1.325(L)(l)(d); Foster, 2012 WL 5386608, *3 n.8.

The record clearly reflects that at the time Mr. Boudreaux requested that his writ of mandamus be converted into a petition for judicial review, his lost property claim had been accepted, and his administrative remedy process was ongoing, but had not yet been completed. Mr. Bou-dreaux did not complete the administrative remedy appeal process provided to him by DPSC’s lost property claim rule and CARP, La. R.S. 15:1171, et seq,, prior to filing his request to convert his mandamus application into a petition for judicial review. Thus, the district court was without | ^jurisdiction to consider a petition for judicial review and correctly dismissed Mr. Boudreaux’s petition and denied his motion for reconsideration.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the district court. Costs of this appeal are assessed against appellant, Gary Boudreaux.

AFFIRMED.

      . Mr. Boudreaux's motion for reconsideration should be treated as a motion for new trial. See Pouncy v. Winn-Dixie Louisiana, Inc., 2014-496 (La. App. 5th Cir. 9/24/14), 150 So.3d 909, 912. Pursuant to La. Code Civ. P. art 1972, a new trial shall be granted upon contradictory motion of any party, in the following cases:
      (1) When the verdict or judgment appears clearly contrary to the law and the evidence.
      (2) When the party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial.
      (3) When the jury was bribed or has behaved improperly so that impartial justice has not been done.


author: DREW, J.

text:
    STATE of Louisiana, Appellee v. Cedric Lynn HARVEY, Appellant
    No. 51,262-KA
    Court of Appeal of Louisiana, Second Circuit.
    May 2, 2017.
    Rehearing Denied June 15, 2017

      LOUISIANA APPELLATE PROJECT, By: Carey J. Ellis, III CEDRIC LYNN HARVEY, Counsel for Appellant
    JAMES E. STEWART, SR., District Attorney, REBECCA ARMAND EDWARDS, MEKISHA SMITH CREAL, Assistant District Attorneys, Counsel for Appellee
    Before DREW, LOLLEY, and PITMAN, JJ.
   DREW, J.

| Cedric Lynn Harvey was convicted of simple burglary, in violation of La. R.S. 14:62. He was sentenced to 16 years at hard labor as a third-felony habitual offender. We affirm the conviction. We amend the sentence to require that it be served without benefit of probation or suspension of sentence, as per statute.

FACTS

Shreveport Police Officer Tina Howes testified:

• she responded to a call from John Pickens Clothiers (“the store”) in the early morning hours of January 14, 2014;
• she noticed a broken window on the southeast comer of the building;
• she found a loose brick inside the building;
• backup arrived and the store was searched;
• no one was found inside the building at that time;
• she took photographs at the scene; and
• she had no other involvement in the case.
John Pickens (“Pickens”), the store owner, testified:
• he received a phone call from his security company alerting him that the alarm and motion detector had been activated at the store;
• he immediately went to the store and found the broken window;
• Shreveport police officers were already there;
• missing were a leather briefcase, several pairs of blue jeans, and other sportswear, all valued at $5,000, including the damages to the store;
• he had never met the defendant; and
• the store had operable video cameras, and he gave the tapes to the police.
laShreveport Police Officer Robert Cerami testified:
• earlier on the night of January 13, 2014, he responded to a “suspicious persons” call at the intersection of Thornhill Avenue and Abilene Street;
• he spoke with Cedric Harvey and a black female;
• he verified the man’s identity using a statewide database, which yielded a photograph of the individual, and which showed no outstanding warrants;
• he briefly detained the two subjects and then released them;
• he later received a call regarding the alarm at the store;
• he was driving down Pierremont Road toward the store when he was notified that Officer Howes had arrived at the store, so he proceeded to Fairfield Avenue to set up a perimeter of the crime scene;
• he then saw the same two people he had seen earlier than night;
• as the couple was at the comer of Fairfield Avenue and Evangeline Place, only two blocks from the crime scene, he approached them;
• the couple split up, with the male walking east on Evangeline Place and the female walking south on Fairfield Avenue;
• he activated his lights and the male began running;
• though it was about 3:00 a.m., the street was well-lighted and he could see that the man was wearing a dark, windbreaker-type jacket with a hood;
• the man was bald, approximately 6'8" tall, and weighed 180 lbs;
• he got a good look at the man’s face before the chase began;
• he exited his vehicle, held the female for approximately 10 seconds until another officer arrived, then pursued the defendant until K-9 officers arrived;
• during the pursuit, the defendant dropped a brown handbag and blue jeans;
• he turned over his interview card to the detective who arrived on scene; and
h* he identified the defendant in court, noting the similarities between him and the burglar depicted in the video, further noting the closeness in time and geography between the initial encounter, the crime, the flight, and the jacket being worn by the defendant that night.
Shreveport Police Officer James Til-ley testified:
• on the morning of the crime, he set up a perimeter of the crime scene;
• another officer had stopped the defendant and Dumas earlier in the night;
• that same officer saw the two in the immediate area about 10 minutes later;
• the two subjects fled, and Dumas was detained;
• numerous items that had been reported as stolen from the store were recovered in the vicinity of the two suspects;
• the officer who first approached the defendant saw him drop one item;
• detectives returned to the store on the day after the burglary, viewed the surveillance video, and identified. Harvey;
• he did not arrest or Mirandize the defendant; nor did he know whether any of the stolen goods was found on the defendant; and
• he did not know whether an arrest warrant had been issued.
After a two-day trial, the defendant was convicted of simple burglary.

A third-felony habitual offender bill of information was timely filed.

In a pro se motion for post-verdict judgment of acquittal, adopted by defense counsel, the defendant argued:

• the police came onto his private property, arrested him without a warrant or probable cause, and failed to advise him of his Miranda rights;
• the arresting officer falsified an arrest report, which stated that the defendant was observed on surveillance video stealing items from John Pickens Clothiers;
J» during the preliminary examination, the testifying officer could not identify him and the arresting officer never testified;
• the evidence presented was insufficient to support his conviction;
• the state withheld exculpatory evidence; and
• the state engaged in malicious prosecution.

The defendant requested permission to represent himself in all further proceedings because he did not believe that his attorney would adopt his other motions that he wished to be filed on his behalf. The trial denied all pro se motions, though the defendant was allowed first to argue the motions on his own behalf, without adoption by defense counsel. The defendant was allowed to keep his lawyer for purposes of the habitual offender adjudication. He was subsequently adjudicated a third-felony habitual offender and sentenced as noted above.

DISCUSSION

Assignment of Error: Insufficiency of Evidence

The defendant argues that the state failed to prove that he was the individual who committed the crime. He contends that there were no fingerprints, no DNA evidence, no eyewitnesses, and no clear video linking him to the burglary.

The state argues that the testimony of Officer Cerami established the identity of the perpetrator. The officer had a prior encounter with Harvey hours before the burglary. The officer found the defendant two blocks fi’om the store within minutes of the burglary, at which time the defendant was carrying a leather bag which had just been stolen from the store. Worst of all, the defendant fled from the officer for no apparent reason. The state | ¿argues that the circumstances were sufficient for a reasonable trier of fact to conclude that the state got the right man. We agree.

The standard of appellate review for a sufficiency evaluation is well settled.

For this conviction to be upheld, the record must establish that the state proved beyond a reasonable doubt all of the elements of simple burglary. The breaking of a window to gain entry demonstrates that Harvey intended to enter the premises. The event occurred around 3:00 a.m., at | ¿which time the store was closed for business. Pickens testified that he is the owner of the store and he did not know the defendant. Pickens further testified that a leather briefcase, several pairs of blue jeans, and other clothing items were stolen from the store. The video footage showed the briefcase being removed from the front window of the store by the perpetrator. The evidence was sufficient for a rational trier of fact to conclude that Harvey entered the store without authority and with the intent to commit a theft. Simple burglary was proven beyond a reasonable doubt.

Especially damning to the position of the defendant was the testimony of Officer Cerami, who saw the defendant hours before the burglary, and mere minutes after the burglary, just a couple of blocks away from the crime scene, with items stolen during the crime.

The officer carefully viewed video surveillance footage of the crime and concluded that Harvey was the burglar, to a reliability factor of 100%.

Viewing the evidence in the light most favorable to the prosecution, a reasonable trier of fact could have found that the state presented sufficient evidence at trial to establish the essential elements of simple burglary beyond a reasonable doubt and to negate any reasonable probability of mis-identifícation. The evidence presented at trial was clearly sufficient to sustain the conviction.

Pro Se Assignment of Error: Alleged unlawful arrest/seizure

The defendant has filed a pro se assignment of error, alleging:

• because the arresting officer did not have an arrest warrant or probable cause to arrest, his initial arrest was illegal;
• an officer came to his home on January 22, 2014, without probable cause or a warrant, to make the arrest and failed to advise him of his Miranda rights;
[?• the arresting officer was not named, and did not testify, at the preliminary examination or at the trial;
• the state lacked probable cause to prosecute;
• the only evidence adduced at the preliminary examination was hearsay evidence, which was not based upon any facts; and
• the trial court failed to Boykinize him after the preliminary examination.

All pleas or defenses raised before trial, other than mental incapacity to proceed, or pleas of “not guilty” and of “not guilty and not guilty by reason of insanity,” shall be urged by a motion to quash. La. C. Cr. P. art. 531. The failure of a defendant to file a motion to quash or to object to any error relative to his arrest in the trial court fails to preserve such argument for appeal. State v. Alexander, 12-807 (La.App. 5 Cir. 5/16/13), 118 So.3d 1138, writ denied, 2013-1454 (La. 1/10/14), 130 So.3d 320; La. C. Cr. P. art. 841(A).

Any issue concerning probable cause to charge a defendant with an offense at the preliminary examination is moot after conviction. La. C. Cr. P. arts. 296, 298. An evidentiary shortfall to establish probable cause at the preliminary examination entitles the defendant to only relief from custody or bail and does not prevent the state from proceeding against him. State v. Turner, 46,683 (La.App. 2 Cir. 12/14/11), 82 So.3d 449, writ denied, 2012-0165 (La. 6/22/12), 91 So.3d 965.

The Constitution requires that a lawful guilty plea must reflect that the defendant was informed of and waived his constitutional right against compulsory self-incrimination, the right to trial by jury, and the right to confront one’s accusers. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); State v. Gay, 48,832 (La.App. 2 Cir. 2/26/14), 136 So.3d 919, writ denied, 2014-0605 (La. 10/24/14), 151 So.3d 600. This defendant did not plead guilty; he was convicted by a petit jury.

No pretrial motion to quash or any other objection relative to Harvey’s arrest is contained in this record. It is unclear whether an arrest warrant was obtained in this case. The officer who testified at the preliminary examination was not the arresting officer. The arrest report and offense report indicate that Harvey was arrested on the corner of Natalie and Dow-dell Streets, not at or in his residence. The minutes do not reflect that any pretrial motions were filed, other than motions for discovery and bond reduction. We can find no pretrial rulings related to the legality of Harvey’s arrest. It does not appear that any issue related to the arrest has been preserved for appeal. Furthermore, none of the above matters in the slightest.

Just as ridiculous is the defendant’s argument that the state lacked probable cause to prosecute, which is also moot after conviction. A jury found that this crime was proven beyond a reasonable doubt.

Error Patent: The trial court failed to impose the defendant’s sentence without the benefit of probation or suspension of sentence.

An illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review. La. C. Cr. P. art. 882. At the time of the offense, La. R.S. 15:529.1 provided, in pertinent part:

(3) If the third felony is such that upon a first conviction, the offender would be punishable by imprisonment for any term less than his natural life then:
(a) The person shall be sentenced to imprisonment for a determinate term not less than two-thirds of the longest possible sentence for the conviction and not more than twice the longest possible sentence prescribed for a first conviction.
nmLl' * #
G. Any sentence imposed under the provisions of this Section shall be at hard labor without benefit of probation or suspension of sentence.

Harvey was sentenced, as a third-felony offender, to 16 years at hard labor. The trial court did not impose Harvey’s sentence without the benefit of probation or suspension of sentence, as mandated by La. R.S. 15:529.1(G). We accordingly amend the sentence to require that it be served without benefit of probation or suspension of sentence.

DECREE

The conviction is affirmed. The sentence is amended to require that the sentence be served without benefit of probation or suspension of sentence,

CONVICTION AFFIRMED AND SENTENCE AMENDED.

APPLICATION FOR REHEARING

Before WILLIAMS, DREW, LOLLEY, PITMAN and COX, JJ.

Rehearing denied.

      . The motion was denied in open court, without argument, on August 24, 2015, with the trial court noting that “in the motion Mr. Harvey reallege[d] certain objections to his arrest. Those matters [were] preserved for appeal, but the court ruled on those matters pretrial and did not see the need to disturb any rulings about any evidence or arrest that was conducted illegally.”

      . The standard is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La. 5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Ward, 50,872 (La.App. 2 Cir. 11/16/16), 209 So.3d 228. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. Ward, supra; State v. Dotie, 43,819 (La.App. 2 Cir. 1/14/09), 1 So.3d 833, writ denied, 2009-0310 (La. 11/6/09), 21 So.3d 297. The appellate court does not assess the credibility of witnesses or reweigh evidence. Ward, supra, State v. Smith, 94-3116 (La. 10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. Ward, supra; State v. Eason, 43,788 (La.App. 2 Cir. 2/25/09), 3 So.3d 685, writ denied, 2009-0725 (La. 12/11/09), 23 So.3d 913.
      The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La. 1983); Ward, supra; State v. Speed, 43,786 (La.App. 2 Cir. 1/14/09), 2 So.3d 582, writ denied, 2009-0372 (La. 11/6/09), 21 So.3d 299. La. R.S. 14:62 defines simple burglary as “the unauthorized entering of any dwelling, vehicle, watercraft, or other structure, movable or immovable, or any cemetery, with the intent to commit a felony or any theft therein.”
      When a defendant claims that he was not the person who committed the crime, the Jackson rationale requires that the state negate any reasonable probability of misidentifi-cation in order to carry its burden of proof. State v. Percy, 48,922 (La.App. 2 Cir. 4/9/14), 137 So.3d 184; State v. Hughes, 2005-0992 (La. 11/29/06), 943 So.2d 1047; State v. Neal, 2000-0674 (La. 6/29/01), 796 So.2d 649. In the absence of internal contradiction or irreconcilable conflict with physical evidence, the testimony of one witness, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Nelson, 44,762 (La.App. 2 Cir. 10/28/09), 25 So.3d 905; Percy, supra; Neal, supra. Such testimony alone is sufficient even where the state does not introduce medical, scientific or physical evidence to prove the commission of the offense by the defendant. Nelson, supra.


author: PITMAN, J. PITMAN, J.

text:
    STATE of Louisiana, Plaintiff-Appellee v. Torris RICHARDSON (Lexington National Insurance Corporation), Defendant-Appellant
    No. 51,367-CA, No. 51,368-CA, No. 51,369-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered May 2, 2017.
    Rehearing Denied August 3, 2017

      WILLIAM NOLAND Counsel for Appellant
    J. SCHUYLER MARVIN, District Attorney, GRAYDON K. KITCHENS, JR, JOHN M. LAWRENCE, Assistant District Attorneys Counsel for Appellee
    Before DREW, LOLLEY, and PITMAN, JJ.
   PITMAN, J.

11 Lexington National Insurance Corporation (“Lexington”) appeals the district court’s order in favor of the State of Louisiana. For the following reasons, we reverse the order of the district court and declare the bond forfeiture judgment to be a nullity.

FACTS

On March 4, 2013, Torris Richardson filed a motion to reduce bond. He stated that he was arrested on or about January 28, 2013, and was tentatively charged with distribution of Schedule II controlled dangerous substance (“CDS”), with bond set at $25,000; distribution of Schedule II CDS, with bond set at $15,000; possession with intent to distribute Schedule I CDS, with bond set at $25,000; and possession of a firearm by a convicted felon, with bond set at $25,000.

A bond reduction hearing was held on March 18, 2013. Based on the agreement between the State and Richardson, the district court reduced the bond amount to $45,000 in total.

On March 18, 2013, Lexington, as surety, through its agent Sheryl Humphries (the “Agent”), posted appearance bonds for each of the four charges, and Richardson was released from custody. The appearance bonds stated that Richardson agreed to appear in court on April 1, 2013. These appearance bonds were posted through Lexington’s power of attorney.

|2Richardson was present in court on April 1, 2013, and the district court ordered him to return on April 29, 2013, for arraignment.

On April 25,2013, the State filed a bill of information in Docket Number 87280 (Docket Number 51,367 on appeal) charging Richardson with two counts of distribution of Schedule II CDS. The State filed a bill of information in Docket Number 87281 (Docket Number 51,368 on appeal) charging Richardson with distribution of Schedule I CDS. On April 26, 2013, the State filed a bill of information in Docket Number 87282 (Docket Number 51,369 on appeal) charging Richardson with possession of a firearm by a convicted felon.

On April 29, 2013, Richardson was present in court and entered a plea of not guilty. The district court scheduled a status conference for June 10, 2013, and a trial date for July 22, 2013. Richardson appeared in court on June 10, 2013, and the status conference was reset for August 12, 2013, and the trial date was reset for October 21, 2013. Richardson appeared in court on August 12, 2013, and the matter was reset for September 23, 2013. Richardson appeared in court on September 23, 2013, and the status conference was reset for November 18, 2013, and the trial for January 13, 2014. Richardson appeared in court on November 18, 2013, and refused to be fingerprinted. The district court scheduled a hearing on the fingerprinting issue for November 22, 2013, and stated that the status conference was reset for January 13, 2014. Richardson appeared in court on November 22, 2013, and the district court stated that the next court date was January 13, 2014. Richardson appeared in court on January 10, 2014, to be fingerprinted. The district court stated that the status conference was reset for March 31, 2014, and the trial for April 28, 2014. Richardson was present in court on JjMarch 31, 2014, and the district court stated that the trial date was maintained for April 28, 2014. Richardson was present in court on April 28, 2014, and the district court reset the matter for further proceedings on June 9, 2014.

On June 9, 2014, Richardson failed to appear in court. Accordingly, the district court issued a bench warrant and a bond forfeiture, but held it in abeyance until a July 21 hearing. Richardson was present at the July 21, 2014 hearing, and the district court recalled the bench warrant and set aside the bond forfeiture. It then scheduled the trial for October 27, 2014.

On October 27, 2014, Richardson failed to appear in court. The district court issued a bench warrant and a bond forfeiture. The assistant district attorney noted that Richardson was incarcerated in Arkansas.

On November 25, 2015, a 72-hour hearing was held regarding contempt of court, and Richardson did appear.

On December 14, 2015, Richardson appeared in court for a status hearing, wherein the district court reset the status conference for February 1, 2016 and trial for March 7, 2016,

On December 15,. 2015, AA Class Bail Bonds wrote to “all parties concern [sic]” that it agreed “to stay on the bond” of Richardson.

A status hearing was held on December 18, 2015, and Richardson was present. The district court noted that it did not believe the contempt of court charges for failure to appear in court would be pursued because Richardson was incarcerated in Arkansas at the time. It noted that Richardson had made all court appearances except for the October 27, 2014 court date. It stated that it was lifting the detainer and noted that “the bond as verified by [the] bondsman is to remain in full force and effect.” It further noted that the |4entire bond satisfied any charge pending at the correctional center. It scheduled the status conference for February 1, 2016, and trial for March 7, 2016.

On February 1, 2016, Richardson appeared in court, and the district court stated that the trial date was maintained for March 7,2016.

On March 7, 2016, Richardson failed to appear in court, and the district court issued a bench warrant and bond forfeiture.'

•'A bond forfeiture hearing was held on March 18, 2016. The State introduced as evidence the bills of information, the appearance bonds, the powers of attorney and certified minutes of the district court. The district court filed a judgment in favor of the State and against Richardson, 'Lexington and its Agent in the full sum of $45,000, together with legal interest from the date of judgment and for all costs of the proceedings.

On May 9,- 2016, Lexington filed a petition for declaration of nullity of judgment of bond forfeiture. It argued that the March 18, 2016 bond forfeiture judgment should be annulled pursuant to La. C.O.P, arts. 2002 and 2004 due. to the State’s failure to comply with La. C. Cr. P. arts. 344(C), 349.2(A) and 349.3(C). It stated that it did not receive notice of multiple court dates, including the March 7, 2016 court date. It also noted that, at the bond forfeiture hearing, the prosecuting attorney did not introduce into evidence proof of notice to Lexington or its Agent of the March 7, 2016 court appearance date, or for another court appearance date subsequent to October 27, 2014, It argued that, due to the State’s failure to complete the bond forfeiture process and to mail notice to it or its Agent of the signing of the bond forfeiture within 60 days, it was released of all obligations under the bonds it posted on March 18, 2013. It contended that, because it had Lbeen released of all obligations, any evidence of bail contracts presented at the bond forfeiture hearing did not support the issuance-of a judgment of bond forfeiture that cast it in judgment in the amount of $45,000.

On July 26, 2016, the State filed an answer to the petition for declaration of nullity of judgment of bond forfeiture and requested that Lexington’s demand be rejected. It noted that La. C. Or. P. art. 344(C) does not require any notice to the agent or bondsman when the defendant appears as ordered, so it was not required to give notice to Lexington when Richardson was present in court. It contended that no judgment of bond forfeiture was rendered by the district court on October 27, 2014, nor was such a judgment required, because La. C. Cr. P. art. 349.2(A) makes it discretionary for the district attorney to make a motion for a bond forfeiture judgment. It also argued that, because there was no bond forfeiture judgment, La. C. Cr. P. art. 349.3(C) had no application and did not release the surety of its obligations under the bond.

A hearing on Lexington’s petition was held on August 5,2016.

On September 9, 2016, the district court filed an opinion and order denying Lexington’s petition. It detailed the history of court appearances and the notice received by Richardson at each stage of the proceedings and stated that, at the March 18, 2016 bond forfeiture hearing, the State presented appropriate proof to establish that a bond forfeiture judgment was warranted.

Lexington appeals the September 9, 2016 order of the district court.

^DISCUSSION

In its sole assignment of error, Lexington argues that the district court erred in finding that the State had complied with the provisions of La. C. Cr. P. arts. 344(C) and 349.2(A), and in denying Lexington the relief it had requested in its petition for declaration of nullity of judgment of bond forfeiture. It contends that, pursuant to La. C. Cr. P. art. 344(C), the State was required to give notice to it or its Agent for the March 7, 2016 court appearance date, or for some earlier court appearance date subsequent to Richardson’s failure to appear in court on October 27, 2014. It argues that the State’s failure to issue that notice subjects the March 18, 2016 judgment of bond forfeiture to being set aside as a nullity pursuant to La. C.C.P. art. 2002(A)(2). It further argues that, pursuant to La. C. Cr. P. art 349.2(A), the State was required to introduce into evidence at the March 18,2016 bond forfeiture hearing proof of notice to it or its Agent for the March 7, 2016 court appearance date, or for some earlier court appearance, date subsequent to Richardson’s failure to appear in court on October 27, 2014. It contends that, because no notice was issued, no such notice was offered into evidence at the hearing. It further contends that the State’s failure to place into evidence the notice required by La. C. Cr. P. art. 344(C) subjects the March 18, 2016 judgment of bond forfeiture to being set aside as a nullity pursuant to La. C.C.P. art. 2004(A). It requests that this court reverse the order of the district court and set aside as a nullity the judgment of bond forfeiture rendered on March 18,2016.

The State argues that the district court correctly granted the judgment of bond forfeiture and denied the relief requested by Lexington to nullify the judgment. It contends that it presented appropriate proof at the March 18, j72016 hearing for the district court to determine that a bond forfeiture judgment was warranted. It adopts the reasoning of the district- court in its September 9, 2016 opinion and order. It also contends that it gave proof of notice, followed the procedures set forth in La. R.S. 15:85 and strictly complied with the terms of the statutory provisions regulating bond forfeiture, as required in State v. DeLaRose, 391 So.2d 842 (La. 1980).

The general rule is that bond forfeitures are not favored. Bankers Ins. Co. v. State, 37,080 (La.App. 2 Cir. 4/11/03), 843 So.2d 641, writ denied, 03-1240 (La. 6/27/03), 847 So.2d 1268, citing State v. Bailey, 567 So.2d 721 (La. App. 2 Cir. 1990). A bond forfeiture is basically a civil proceeding; however, it is subject to the special rules set forth in the Code of Criminal Procedure. Bankers Ins. Co. v. State, supra, citing State v. Likens, 577 So.2d 285 (La. App. 3 Cir. 1991), writ denied, 580 So.2d 386 (La. 1991). In order to obtain a judgment of bond forfeiture against a surety the state must comply strictly with the terms of the statutes regulating bond forfeitures. State v. DeLa-Rose, supra; Bankers Ins. Co. v. State, supra. La. C. Cr. P. art. 344(C) stated in pertinent part:

If the defendant fails to appear as ordered, or the proceeding is not continued to a specific date, the ... agent or bondsman who posted the bond for the commercial surety shall be given notice of the new appearance date.

La. C. Cr. P. art. 349.2(A) provided that:

Upon motion of the prosecuting attorney, and upon proof of the bail contract, the power of attorney if any, notice to the defendant and surety as required by Article 344, and the |sdefendant’s failure to appear as required, a bond shall be forfeited and a judgment of bond forfeiture shall be signed.

The nullity of a final judgment may be demanded for vices of either form or substance, as provided in La. C.C.P. arts. 2002 through 2006. La. C.C.P. art. 2001. An action for nullity is available with respect to bond forfeiture judgments. Bankers Ins. Co. v. State, supra, citing State v. Likens, supra. A final judgment shall be annulled if it is rendered against a defendant who has not been served with process as required by law and who has not waived objection to jurisdiction, or against whom a valid judgment by default has not been taken. La. C.C.P. art. 2002(A)(2). A final judgment obtained by fraud or ill practices may be annulled. La. C.C.P. art. 2004(A).

Pursuant to La. C. Cr. P. art. 344(C), when Richardson failed to appear in court on October 27, 2014, the State was required to give notice to Lexington or its Agent of Richardson’s new appearance date. There is no evidence in the record that Lexington or its Agent was given that requisite notice. Such evidence was required by La. C. Cr. P. art. 349.2(A) to establish that a bond forfeiture is warranted. Therefore, the record in this ease does not support the district court’s conclusion that proper evidence was presented by the State to support a judgment of bond forfeiture.

While Richardson is the defendant in the criminal proceeding, Lexington and its Agent occupy the position of defendants in these civil proceedings with regard to the bond forfeiture judgment. See State v. Berry, 29,359 (La.App. 2 Cir. 4/2/97), 691 So.2d 375. Lexington or its Agent was entitled to receive notice of Richardson’s new appearance date, but the State did not give them such notice. Therefore, the March 18, 2016 bond forfeiture judgment shall be annulled pursuant to La. C.C.P. art. 2002(A)(2).

| .Accordingly, this assignment of error has merit.

CONCLUSION

For the foregoing reasons, we reverse the order of the district court in favor of the State of the Louisiana and against Lexington National Insurance Corporation. We declare the March 18, 2016 bond forfeiture judgment to be a nullity. Costs of this appeal in the amount of $6,408.58 are assessed to the State of Louisiana.

REVERSED AND RENDERED,

PITMAN, J.

We grant rehearing to reconsider the trial court’s order denying Lexington National Insurance Corporation’s petition for declaration of nullity of judgment of bond forfeiture. For the following reasons, we affirm the trial court’s order.

On February 1, 2016, Richardson appeared in court and received notice that his trial date was maintained for March 7, 2016. When Richardson failed to appear in court on March 7, 2016, the trial court issued a bench warrant and bond forfeiture. At the bond forfeiture hearing on March 18, 2016, the state introduced as evidence the bills of information, the appearance bonds, the powers of attorney and certified minutes of the district court. The certified minutes from February 1, 2016, stated that Richardson was present in court and that the trial date was maintained for March 7, 2016. The state provided sufficient evidence pursuant to La. C. Cr. P. art. 349.2(A) for Richardson’s bond to be forfeited,

Lexington’s argument that it did not receive notice after Richardson’s failure to appear in court on October 27, 2014, is not relevant to the March 18, 2016 bond forfeiture judgment. As stated by the trial court in its opinion, the December 14, 2015 letter from AA Class Bail Bonds “acknowledged the validity of the original bond and that the surety had not been released.” Following this letter from AA Class Bail Bonds, Richardson was present in court for all hearings until he failed to appear on March 7, 2016. Through his appearance in court on February 1, 2016, Richardson was properly notified of the March 7, 2016 trial date. These are the relevant facts upon which the trial court granted the judgment of bond forfeiture.

For the foregoing reasons, we affirm the order of the district court in favor of the State of the Louisiana and against Lexington National Insurance Corporation. Costs of this appeal are assessed to Lexington National Insurance Corporation.

AFFIRMED.

APPLICATION FOR REHEARING

Before DREW, PITMAN, GARRETT, STONE and BLEICH, JJ.

Rehearing denied.

      . Although the transcript states that this $45,000 sum was for $15,000 per count, this is not what is reflected in the appearance bonds. Also, $15,000 per count would total $60,000. The minutes state that the total bond is $45,000.

      . The bond amount for one count of distribution of Schedule II CDS was $15,000; the bond amount for the other count of distribution of Schedule II CDS was $10,000; the bond amount for distribution of Schedule I CDS was $10,000; and the bond amount for possession of a firearm by a convicted felon was $10,000.

      . La. C. Cr. P. art. 344 was repealed by Acts 2016, No. 613, effective January 1, 2017. Notice requirements to the surety or its agent if the defendant fails to appear in court are now codified in La. C. Cr. P. art. 330(C).

      . La. C. Cr. P. art. 349.2 was repealed by Acts 2016, No. 613, effective January 1, 2017. The proof necessary at a bond forfeiture hearing is now codified in La. C. Cr. P. art. 336.

      . We note that the original opinion erroneously states that the date of this letter is December 15, 2015. The correct date is December 14, 2015.