author: LOLLEY, J. GARRETT, J.,

text:
    The BRIDLINGTON COMPANY, L.L.C., Plaintiff-Applicant v. SOUTHERN DISPOSAL SERVICES, L.L.C. and Industrial Landfill Management, L.L.C., et al., Defendants-Respondents
    No. 51,138-CW
    Court of Appeal of Louisiana, Second Circuit.
    February 15, 2017.

      ROBERT IRVIN THOMPSON, III, Counsel for Applicant
    PATRICK RICHMOND JACKSON, Counsel for Respondents
    Before BROWN, LOLLEY and GARRETT, JJ.
   LOLLEY, J.

I iThis application for supervisory review arises from the 26th Judicial District Court, Parish of Bossier, State of Louisiana. The Bridlington Company, L.L.C. (“Bridlington”), seeks review of the trial court’s denial of its motion to compel discovery. This writ was granted specifically to review the applicability of La. C.E. art. 506(C)(a) and La. R.S. 12:1314 to the facts in this matter. After further review, and for the following reasons, we recall the writ. We affirm the trial court’s ruling, and remand this matter for further proceedings.

FACTS

Southern Disposal Services, L.L.C. (“Southern Disposal”), is composed of four members: Donald E. Jones; William J. Jones; C&C Management Enterprises, L.L.C. (whose only registered officer is Cecil Kenneth Covington); and Bridlington (whose sole member is David Shinpoch). Another named defendant, Industrial Landfill Management, L.L.C. (“Industrial Landfill”), is a wholly owned subsidiary of Southern Disposal. Coving-ton is currently, and was at the time this dispute arose, manager of Southern Disposal. Shinpoch formerly managed Southern Disposal, previous to Covington. Pleadings filed in this matter allege various abuses of the managerial role by both Covington and Shinpoch. However, those allegations are not discussed herein, because only the privileged nature of communications between Southern Disposal and its former attorney, Jeff R. Thompson, are at issue in this application.

Originally, on December 9, 2011, Bri-dlington filed a petition alleging that as a member of Southern Disposal it is entitled to inspect and copy certain records, and it followed the statutory procedure in requesting to do |aso. Bridlington requested to inspect Southern Disposal’s 2009 and 2010 tax returns, along with any financial records from those years. Specifically, Bri-dlington requested a list of records which included accounts payable and receivable, all invoices, and current balance sheets for both Southern Disposal and Industrial Landfill. Southern Disposal and Industrial Landfill sought a protective order claiming the customer identification information sought by Bridlington was beyond the scope of what a member of a LLC was entitled to, and further, was only sought by Bridlington for use as a business competitor, making this an unreasonable request.

At that time, Bridlington claimed these documents were necessary to confirm that the acquisition of Southern Disposal by Charles R. Keen was a transaction conducted at “arm’s length” and in accordance with Southern Disposal’s operating agreement. It also alleged suspicions of self-dealing. On August 13, 2012, the trial court denied Southern Disposal’s protective order, and ruled in favor of Bridlington, ordering Southern Disposal and Industrial Landfill to produce the requested information.

In 2015, Southern Disposal incurred expenses in excess of its income, and a “cash call” was made to all members. Bridlington was the only member not to contribute a pro rata share of the sum demanded, and its ownership share was diminished pursuant to Southern Disposal’s operating agreement. Subsequently, Southern Disposal’s assets were sold. Bridlington received its pro rata share of the sale price, based upon its diminished ownership percentage.

On March 2, 2015, Bridlington filed another petition within the original suit, alleging that the other members of Southern Disposal conspired to use the “cash call” as a fraudulent scheme designed to diminish laBridlington’s ownership interest in Southern Disposal and reduce its share of Southern Disposal’s eventual sale price. Bridlington asserted that the “cash call” was fraudulently conducted, and in violation of Southern Disposal’s operating agreement, because the other members used money procured through loans to meet their obligation in the “cash call.” During discovery, in addition to requesting all financial records and all records related to the management of Southern Disposal, Bridlington also requested all communications between Southern Disposal and any accountant or attorney. This request for production included a long list of financial documents for a time period of 2007 to 2014.

When its request was only partially complied with, Bridlington filed a motion to compel discovery, seeking an order requiring Southern Disposal to produce the requested communications, and requesting a subpoena duces tecum be issued to Thompson, Southern Disposal’s attorney. Southern Disposal responded by filing a motion for protective order, asserting the attorney-client privilege applied to all communication between it and its attorney. It also filed a dilatory exception claiming the petition was vague and ambiguous, accompanied by a motion to quash Bridlington’s 2015 petition. In order to determine which information Bridlington was entitled to, the trial court ordered Southern Disposal to file a privilege log and Bridlington to file a brief in support of its motion to compel discovery. Eventually, the motion to compel came before the trial court for a hearing, and it determined that Southern Disposal had complied with Bridlington’s request, with the exception of the documents for which Southern Disposal claimed privilege. The trial court took the matter under advisement, fallowing Bri-dlington more time to file any additional pleadings and Southern Disposal a period to file any response.

Subsequently, the trial court conducted an in camera inspection of the requested documents, and consequently, denied Bri-dlington’s motion to compel discovery, finding that all the requested communications between Southern Disposal and its attorney were privileged. The trial court further ruled that Bridlington would not be permitted to take the deposition of Thompson in order to acquire the information contained in the privileged communications. While the fraud allegations are still pending before the trial court, we now review the trial court’s ruling on Bridling-ton’s motion to compel discovery.

DISCUSSION

In its writ application, Bridlington sets forth three assignments of error for review.- Primarily, Bridlington argues the trial court erred in holding that the attorney-client privilege applies here. Next, Bri-dlington argues that if the attorney-client privilege does apply in this instance, the trial court erred in not finding an exception exists. Bridlington contends that it made a factual showing that the communications between Southern Disposal and Thompson were made in furtherance of a fraudulent scheme to deprive Bridlington of its ownership interest in Southern Disposal. It specifically argues the following exceptions apply here to vitiate privilege: the commission of a crime or fraud; the breach of duty by an attorney; common interests between clients; and, the identity of a client. Finally, Bridlington asserts the trial court erred in not allowing it to take discovery by deposition and request for production of documents from Thompson.

IsThe trial court has broad discretion in regulating pretrial discovery, and its decision will not be disturbed on appeal absent a clear abuse of that discretion. Bell v. Treasure Chest Casino, L.L.C., 2006-1538 (La. 02/22/07), 950 So.2d 654; H.D. Graphics, L.L.C. v. It’s Permanent, L.L.C., 49,405 (La.App. 2d Cir. 10/01/14), 150 So.3d 936, 941. That discretion may be abused when the trial court denies a motion to compel which seeks information that is properly discoverable, especially where the examination of the requested information may be the only means by which a party can defend the claims against it. H.D. Graphics, supra.

Louisiana C.E. art. 506(B) provides that a client has a privilege to refuse to disclose or prevent another from disclosing any confidential communication made for the purpose of facilitating the rendition of professional legal services to the client. Keith v. Keith, 48,919 (La.App. 2d Cir. 05/15/14), 140 So.3d 1202,1208. The purpose of the privilege is to encourage the client to confide fully in his counsel without fear that his disclosures could be used against him by his adversaries. Id. The party seeking to assert the attorney-client privilege has the burden of proving that the privilege is applicable. Id. at 1209.

In order to vitiate the attorney-client privilege, the trial court must make a finding that the attorney-client relationship was intended to further continuing or future criminal or fraudulent activity. Arabic v. CITGO Petroleum Corp., 2009-0569 (La. 05/15/09), 8 So.3d 558, 559; State v. Taylor, 502 So.2d 537 (La. 1987). The party challenging the privilege must (1) make an independent prima facie case that a crime has been committed, and (2) then demonstrate that the privileged information bears a relationship to the alleged crime or fraud. Cleco Corp. v. Sansing, 2009-0806 (La. | ,05/15/09), 8 So.3d 555, 556. The trial court must make specific findings regarding the intention to further fraudulent or criminal activity in order to determine if the document in question receives protection. Id.

The statutory definition of a “client” includes a corporation or partnership “to whom professional legal services are rendered by a lawyer.” La. C.E. art. 506(A)(1). When control of a corporation passes to new management, authority to assert or waive the attorney-client privilege also passes to the new management. Brown v. Car Ins. Co., 1993-2372 (La. 04/11/94), 634 So.2d 1163, 1166. Former managers may not assert or waive the privilege, even as to statements they may have made to counsel concerning matters within the scope of their corporate duties. Id.

The statutory exceptions to the attorney-client privilege set forth by La. C.E. 506(C), in pertinent part, are as follows:

There is no privilege under this Article as to a communication:
(l)(a) If the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client or his representative knew or reasonably should have known to be a crime or fraud.
(b) Made in furtherance of a crime or fraud.
# * ⅜ ⅜
(5) Which is relevant to a matter of common interest between or among two or more clients if the communication was made by any of them or their representative to a lawyer or his representative retained or consulted in common, when subsequently offered by one client against the other in a civil action.
(6) Concerning the identity of the lawyer’s client or his representative, unless disclosure of the identity by the lawyer or his representative would reveal either the reason for which legal services were sought or a communication which is otherwise privileged under this Article.

|7In support of its assignments of error, Bridlington argues that the trial court erred in its failure to recognize that the information sought was discoverable to all members involved in this litigation under Garner v. Wolfinbarger, 430 F.2d 1093 (5th Cir. 1970). Bridlington further argues the Louisiana Supreme Court in Brown, supra, adopted a nine-point test set out by Gamer, supra, for determining when attorney-client privilege should, be denied. We disagree with Bridlington’s interpretation of the jurisprudence offered and its argument for application on" these facts.

In Brown, supra, the Louisiana Supreme Court held that the Commissioner of Insurance, as liquidator of an insurance company, was the current manager of the company and, thus, had the power to waive the company’s attorney-client privilege with respect to communications that occurred before the company was placed in liquidation. The Louisiana Supreme Court stated:

In Garner v. Wolfinbarger, 430 F.2d 1093 (5th Cir.1970), the Court of Appeals held that the management of a corporation is not barred from asserting the corporation’s attorney-client privilege merely because stockholders demand access to the confidential information, but that where the corporation is in suit against its stockholders on charges of acting inimically to stockholder interests, protection of those interests as well as those of the corporation and of the public require that the availability of the privilege be subject to the right of the stockholders to show that there is good cause why the corporate management cannot claim the privilege in that particular case. Ward v. Succession of Freeman, 854 F.2d 780 (5th Cir. 1988), applied the principles expressed in Gamer and concluded that the shareholders had failed to show good cause to prevent management from invoking the corporation’s attorney-client privilege. The court recognized in Gamer and Ward that in the absence of such a showing of good cause by stockholders or of another exception, such as those provided for communications in contemplation of a crime or fraud, and for communications to a joint attorney, management may claim the privilege for the corporation.

| ¿Brown, supra, at 1166. The jurisprudence cited by Bridlington held that the attorney-client privilege is subject to the right of the stockholders to show cause why it should not be .invoked by corporate management in a particular circumstance. The “Gamer test” is essentially a balancing test, developed in the federal court, requiring the trial court to weigh the stockholders’ interests in the information claimed to be privileged against the interest of the company in keeping attorney-client communications confidential and undiscovera-ble. However, Louisiana law provides a framework for determining when attorney-client privilege is applicable to information and what exceptions exist; therefore, it is unnecessary and improper to apply the balancing test suggested by Bridlington. See La. C.E. 506; La. C.C.P. 1424. Further, the Gamer holding allows for managers to claim privilege on behalf of a corporation, subject to the stockholders’ right to have an opportunity to show cause why privilege should not apply.

Here, the trial court issued written reasons for its ruling, stating:

In reviewing the record, together with the in camera inspection of the privilege log, there exists nothing before this court that would, at this point in time, establish a prima facie showing of fraud, let alone a showing of fraud supported by a preponderance of evidence. In fact, the only thing before this court at the present time is unsubstantiated allegations of the Plaintiff claiming some scheme to diminish the interest of plaintiff in Southern Disposal.

Further, the trial court considered the breach of duty exception, stating that no showing was made to justify the exception. Thompson has never been alleged to represent Bridlington, and at all relevant times he represented only Southern Disposal. In Cleco Corp., supra, the Louisiana Supreme Court |9stated the trial court must make specific findings regarding the fraud exception to attorney-client privilege, which were not found by the trial court under these facts.

Notably, La. R.S. 12:1314 provides that managers and members of an LLC have fiduciary duties to one another. It also provides protection to managers of an LLC in good faith reliance upon the LLC’s records or the advice of the LLC’s attorney. Bridlington has produced no evidence that the “cash call” made by Covington, as manager of Southern Disposal, was unnecessary or made in bad faith. Instead, Bri-dlington continues to allege that the communications between Southern Disposal and Thompson will prove a conspiracy against Bridlington. It argues that, regardless of the advice given by Thompson to Covington, either in favor of the actions taken by Southern Disposal or against it, these communications will prove a conspiracy. Bridlington asserts that if Thompson advised “the action taken” (i.e., the “cash call”) then he is part of the conspiracy and liable. On the other hand, Bridlington argues, if Thompson advised against a “cash call” then Covington, as manager, violated his fiduciary duty to Bridlington, as member. Bridlington fails to acknowledge the possibility that the “cash call” was made in good faith and in the best interest of Southern Disposal and its members, and presents no evidence to contradict such a determination.

Here, Bridlington was allowed an opportunity to show cause why the attorney-client privilege should not apply. It merely suggested application of Gamer, and gave no other support for its assertion that the communications between Southern Disposal and Thompson would prove fraud was committed. The trial court found that Bri-dlington failed to prove |inthat any of the exceptions provided by the Louisiana Code of Evidence exist in this case, specifically, finding Bridlington failed to make even a prima facie showing that the communications requested were sought to enable anyone at Southern Disposal to commit what they knew to be fraud. Bridlington also failed to show that Thompson owed or breached any duty to it. Additionally, the trial court carefully reviewed the contested communications in camera and determined that not only does the attorney-client privilege apply, but no exception exists. Therefore, we find the trial court did not abuse its discretion in ruling to deny Bridlington’s motion to compel, and in disallowing Bridlington to take Thompson’s deposition in an attempt to circumvent its ruling. These assignments of error have no merit.

CONCLUSION

For the foregoing reasons, we recall the writ previously granted, affirm the trial court’s ruling denying Bridlington’s motion to compel discovery, and remand this matter for further proceedings. All costs associated with this writ for review are cast to The Bridlington Company, L.L.C.

WRIT RECALLED; REMANDED FOR FURTHER PROCEEDINGS.

GARRETT, J., concurs with written reasons.

GARRETT, J.,

concurring.

hi concur in the result, which affirms the ruling of the trial court on the motion to compel. I write separately to note that I was not a member of the original panel when this writ was granted to docket on August 25, 2016. One of the judges on the original writ panel is no longer serving on this court and I was added after the writ was granted to docket. After reviewing the writ application, I would not have voted to grant this writ to docket in the first place. I detect no error whatsoever in the trial court’s thorough reasons for its ruling on the motion to compel following its in camera inspection of the requested documents.

      . At all relevant times, Covington was manager of Southern Disposal,

      . Bridlington argues Gamer holds that courts should favor stockholders over corporations in disputes concerning the attorney-client privilege, but that is a misinterpretation.


source: Caselaw Access Project

author: GARRETT, J.

license: Public Domain

text:
    Eashell REED-SALSBERRY, Respondent v. STATE of Louisiana, THROUGH THE DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, YOUTH SERVICES, OFFICE OF JUVENILE JUSTICE, Applicant
    No. 51,104-CW
    Court of Appeal of Louisiana, Second Circuit.
    February 15, 2017

      JEFF LANDRY, LOUISIANA ATTORNEY GENERAL By: Kenneth A. Brister, Special Assistant Attorney General, Counsel for Applicant
    MIXON & CARROLL, PLC By: James L. Carroll, Counsel for Respondent
    Before PITMAN, GARRETT, & COX, JJ.
   GARRETT, J.

hThe plaintiff, Eashell Reed-Salsberry, filed a lawsuit in state district court alleging, inter alia, violations of the federal Americans with Disabilities Act (“ADA”) and seeking monetary damages. Her former employer, the State of Louisiana, through the Department of Public Safety and Corrections, Youth Services, Office of Juvenile Justice (“State”), responded with an exception of lack of subject matter jurisdiction, which asserted sovereign immunity against such a claim. The trial court denied the exception. The State filed a writ application in this court, which granted it to docket. For the reasons assigned below, we grant the writ, make it peremptory, and reverse the trial court’s denial of the exception of lack of subject matter jurisdiction as to the plaintiffs claims arising under the ADA. The matter is remanded for further proceedings.

FACTS

The plaintiff was a teacher at the Monroe Campus of Swanson Center for Youth—Southside Alternative High School. She claimed harassment by the principal due to a disability which limited her mobility. She filed an Equal Employment Opportunity Commission (“EEOC”) charge in July 2011, and received a right to sue letter from the EEOC, in June 2014. Thereafter, in September 2014, the instant suit seeking monetary damages was filed, alleging violations of Title VII of the 1964 Civil Rights Act, the | ?ADA, and the Louisiana Employment Discrimination Law (“LEDL”), La. R.S. 23:301, et seq.

In October 2014, the State filed peremptory exceptions of no cause of action as to the plaintiffs claim for exemplary and punitive damages and the plaintiffs failure to attach the right to sue letter to her petition, as well as a dilatory exception of vagueness or ambiguity pertaining to damages. On May 12, 2015, a judgment on the exceptions was signed which granted the exception of no cause of action on the damages issue. Due to the plaintiffs amended petition, it deemed as moot the other exceptions.

On May 20, 2015, the State filed its exception of lack of subject matter jurisdiction, which is the basis of the instant appeal. The plaintiff filed an opposition to the exception. The matter was heard on March 30, 2016. At the conclusion of lengthy oral arguments, the trial court denied the exception. The exact basis for the ruling is unclear from the record. Judgment denying the exception and finding that the court had subject matter jurisdiction over the ADA claim was signed on April 5, 2016.

The State filed a writ application seeking supervisory review of the trial court’s denial of its exception, which was granted to docket by this court.

I «LAW

U.S. Const. Amend. XI confirms sovereign immunity, stating:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

A foundational premise of the federal system is that states, as sovereigns, are immune from suits for damages, save as they elect to waive that defense. As an exception to this principle, Congress may abrogate the states’ immunity from suit pursuant to its powers under § 5 of the Fourteenth Amendment. Coleman v. Court of Appeals of Maryland, 566 U.S. 30, 132 S.Ct. 1327, 182 L.Ed.2d 296 (2012). In the case before us, it is the plaintiffs contention that the state has waived its rights to claim sovereign immunity.

I—I need to articulate this correctly. What I—what I impli—I’m buying your argument that the State in essence has waived its— any sovereign immunity it has in connection with this claim or this type of claim. A statement that I just over—well you—you’ve got the record.

La. Const. Art. 12 § 10(A) provides:

No Immunity in Contract and Tort. Neither the state, a state agency, nor a political subdivision shall be immune from suit and liability in contract or for injury to person or property.

However, La. Const. Art. 12 § 10(A) does not waive or cede Louisiana’s sovereign immunity in the federal system to unlimited Congressional power over state contracts. Holliday v. Board of Sup’rs of LSU Agr. & Mech. Coll., 2014-0585 (La. 10/15/14), 149 So.3d 227.

Furthermore, La. Const. Art. 1 § 26 states:

The people of this state have the sole and exclusive right of governing themselves as a free and sovereign state; and do, and forever hereafter shall, exercise and enjoy every power, jurisdiction, and right, pertaining thereto, which is not, or may not hereafter be, by them expressly delegated to the United States of America in congress assembled.

|4Two recent cases—one from the Louisiana Supreme Court and one from this court—have addressed the issues that are before us. In the Holliday case, the plaintiff filed a petition in state district court seeking damages for violations of the Family and Medical Leave Act (“FMLA”). She alleged that her former employer, the Board of Supervisors of LSU Agricultural and Mechanical College, Etc, (“State”), unlawfully terminated her employment while she was on leave, in violation of the FMLA’s “self-care” provision, which entitled her to a certain period of unpaid leave under certain circumstances. The State responded with an exception of no cause of action on the basis of sovereign immunity. The trial court denied the exception, and the appellate court denied supervisory writs. The Louisiana Supreme Court reversed, finding that the trial court erred as a matter of law in denying the exception. In so ruling, the Louisiana Supreme Court rejected the plaintiffs argument that, since the FMLA claims essentially arose from an employment contract, the State had waived its sovereign immunity in this case by the terms of La. Const. Art. 12 § 10(A).

In Nugent v. McNease, 50,529 (La.App. 2 Cir. 5/18/16), 195 So.3d 533, writ denied, 2016-1385 (La. 11/7/16), 229 So.3d 99, 2016 WL 6778878, a special education teacher at Swanson Center for Youth filed suit alleging, among other things, violations of the FMLA. The defendant, the State of Louisiana through the Department of Education, Special School District, Swanson Center for Youth, filed a motion for summary judgment in which it claimed that the State had not waived its sovereign immunity. The plaintiff asserted both an express waiver and a waiver by conduct. She pointed to the actions of the Louisiana Department of Education in | ^promulgating the FMLA policy, binding itself to federal laws and regulations for interpretation, application and enforcement. The trial court granted the State’s motion for summary judgment, finding that it was unable to conclude that that state had waived its sovereign immunity. On appeal, this court affirmed, finding that it was bound to follow the holding of Holliday, supra. It held that there had been no express waiver of sovereign immunity. Furthermore, the State’s adoption of the federal FMLA did not amount to a waiver of such immunity.

DISCUSSION

The plaintiff in the instant suit essentially makes the same arguments as those presented in the Holliday case and the factually similar Nugent case. The primary difference is that the federal legislation involved in Holliday and Nugent was the FMLA while the instant case deals with the ADA. The plaintiff contends that, by virtue of La. Const. Art. 12 § 10(A), the State has waived its sovereign immunity because the instant matter arises from her employment contract. She also claims that there was a specific waiver by the department head, as well as an implied waiver through the actions of the State’s agents. In particular, she asserts that the department head adopted the ADA in its personnel policies.

In All of these same basic arguments were rejected in the Holliday and Nugent cases. The plaintiff here has failed to persuasively distinguish the holdings in those cases from the instant case. Consequently, we find that the trial court erred in finding that the State waived its sovereign immunity for purposes of the plaintiffs ADA claims. Accordingly, we reverse the trial court’s denial of the State’s exception of no subject matter jurisdiction. The exception is hereby granted as to the plaintiff’s ADA claims.

CONCLUSION

The writ application is granted and made peremptory. The ruling denying the exception of lack of subject matter jurisdiction is reversed as to the plaintiffs claims arising under the ADA. The matter is remanded for further proceedings.

Costs of this appeal are assessed to the plaintiff/respondent, Eashell Reed-Sals-berry.

WRIT GRANTED AND MADE PEREMPTORY; REVERSED AND REMANDED.

      . The dismissal and notice of rights stated that the EEOC was closing the file on the plaintiff's charge because, based upon its investigation, it was unable to conclude that "the information obtained establishes violations of the statutes. This does not certify that the respondent is in compliance with the statutes. No finding is made as to any other issues that might be construed as having been raised by this charge.” The plaintiff was advised that she could file suit based upon the charge within 90 days of receipt of the notice. The accompanying letter stated that the employer provided a "legitimate non-discriminatory reason for the actions taken” against her.

      . During the course of these arguments, the trial court vacillated back and forth between the parties’ positions. Near the end of the transcript, it stated:

      .On April 21, 2016, the plaintiff filed a second amended petition, in which she added an allegation that she resigned in October 2012, in lieu of a retaliatory demotion and transfer to teach "in the dangerous general population at the Monroe facility.” The petition also added a section entitled "Breach of Contract.” Herein she alleged that there were violations of the Office of Juvenile Justice Policy No. A.2.13, which constituted a breach of contract for which she was entitled to contract damages.

      . The instant case involves Title I of the ADA. According to Board of Trustees of the Univ. of Alabama v. Garrett, 531 U.S. 356, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001), Title I of the ADA did not validly abrogate state sovereign immunity pursuant to § 5 of the Fourteenth Amendment.

      .The Nugent case was rendered less than two months after the exception in the instant case was argued; it involved tire same trial judge and the same two attorneys. Additionally, both Nugent and the instant case involve claims by teachers from the same state facility. However, in Nugent, supra, the trial court upheld the State’s assertion of sovereign immunity, whereas it rejected that claim in the instant case. (In the words of one of the attorneys at the conclusion of the exception hearing in the instant case, "I think we’re batting five hundred, one each.”) At the time this court granted the State’s writ application in the instant case, a writ application by the plaintiff was pending before the Louisiana Supreme Court in the Nugent case; it was subsequently denied.

      . In support of this argument, she cited La. R.S, 36:405, which gives the deputy secretary for youth services certain powers pertaining to employment. It appears that the trial court rejected that argument during the hearing on the exception,

      . While the contract claim was rebuffed in the Holliday case, the arguments of express waiver and implied waiver by conduct were rejected by the court in Nugent, supra.

      . The plaintiff still has other pending claims, including those arising under the LEDL. Although there was some discussion at the trial court hearing on the exception and at oral argument before this court as to whether the LEDL claims may be prescribed, no exception of prescription has been filed.


author: MOORE, J.

text:
    NATIONSTAR MORTGAGE LLC, Applicant v. Gena F. PARHAM a/k/a Gena Renee Fuller Parham and Brent Lee Parham, Respondents
    No. 51,102-CW
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered February 15, 2017
    McGLINCHEY STAFFORD, PLLC, By: Jonathan G. Wilbourn, Melissa M. Grand, Counsel for Applicant

      SPENCER HAYS, II, BODENHEIMER, JONES & SZWAK, LLC, By: David A. Szwak, Counsel for Respondents
    Before MOORE, PITMAN and GARRETT, JJ.
   MOORE, J.

| ] Nations tar Mortgage LLC and Federal Home Loan Mortgage Corp. (“Freddie Mac”) seek supervisory review of a ruling that denied their motion to strike a petition to annul a sheriffs sale and their dilatory and peremptory exceptions, notably an exception of no cause of action. For the reasons expressed, we grant the writ and make it peremptory, grant the motion to strike and sustain the exception of no cause of action, and remand for further proceedings.

Procedural Background

In 2008, Gena Parham and her then-husband, Brent, bought a house in Forest Hills Subdivision, in Haughton, 'La. They signed a promissory note in favor of Countrywide Bank FSB for $828,500, along with a mortgage with confession of judgment affecting the property. The mortgage and note were assigned to Nationstar in 2012.

On January 2, 2014, Nationstar filed this petition for executory process against the Parhams, alleging they had defaulted on the note, with over $312,000 still due. On January 6, the court issued a writ of seizure and sale. The Parhams, however, were not living in the house; service was made on a tenant. In February, the court appointed an attorney as curator ad hoc to represent the Parhams in the foreclosure.

On April 23, 2014, the property was sold at sheriffs sale and adjudicated to Na-tionstar; a proces verbal of the sale was filed on June 24. On May 12, Nationstar conveyed the property to Freddie Mac, and this was recorded in the conveyance records on July 21. On August 1, the clerk of court issued a writ of possession directing the sheriff to compel the Parhams, |aor any other occupants, to vacate the premises and deliver possession to Freddie Mac.

On August 8, 2014, Ms. Parham filed a “Petition to Annul Sale” in the foreclosure action. She alleged that she was never served with notice of the petition or execu-tory process, and that the curator ad hoc failed to notify her (or her ex-husband) of the suit. She requested that the sale be annulled and set aside, and the writ of possession revoked, by summary proceedings (she sought a temporary restraining order and permanent injunction).

Nationstar and Freddie Mac responded with a motion to strike; dilatory exceptions of unauthorized use of summary procedure,’ of. improper cumulation of actions and improper use of executory process; peremptory exceptions of res judicata, no cause of action and prescription; and a request for expedited consideration. In essence, these contended that the only authorized methods of contesting an executo-ry process were those stated in La. C. C. P. art. 2642 A: injunction proceeding to arrest the seizure and sale, or a suspensive appeal from the order of seizure and sale. Since Ms. Parham had pursued neither of these options, she had no cause of action.

Ms. Parham opposed the motion to strike and the exceptions, arguing that Nationstar was aware that she and her husband had moved to Georgia, knew their address, and had been in communication with Ms. Parham by email about modifying the mortgage, but still went ahead with the foreclosure and sheriffs sale without properly notifying them. Ms. Parham argued that her motion to annul the sale was properly filed in the executory ^process suit, as occurred in Brown v. Everding, 357 So.2d 1243 (La. App. 2 Cir. 1978).

Nationstar and Freddie Mac re-urged their motions to strike and various exceptions. They also argued that Brown v. Everding was inapposite because, in that case, the seizing creditor never questioned the validity of filing a nullity action in the executory process suit.

A hearing was set for April 25, 2015. The district court held what it called a “lengthy5’ pretrial conference, heard arguments and orally ruled in favor of Ms. Parham, denying the motion to strike and all exceptions. The court stated that there was no claim for money damages, only to annul the “judgment from executory process.” The court conceded that Brown v. Everding “did not reach where you would file the motion to annul, it just says that it needs to be filed,” but felt this was all that was necessary for Ms. Parham’s petition for nullity to proceed, and rendered judgment to that effect.

Nationstar and Freddie Mac took a writ application, which this court granted to docket on September 1, 2016. Oral argument was held on January 11, 2017.

The Parties’ Positions

The applicants designate seven assignments of error. Finding merit in two of these, we pretermit consideration of the others.

|4By their first assignment, they urge the court erred in denying their motion to strike.- The' Code of Civil Procedure does not permit the filing of a motion to annul sale as a response to a petition for executo-ry process. Article 2642 limits defenses and procedural objections to an injunction proceeding to arrest the seizure and sale and a suspensive appeal from the order directing the seizure and sale. Because Ms. Parham took neither of these approaches, they urge, she waived all defenses and objections. They further contend that Brown v. Everding is inapplicable because the seizing creditor in that case never challenged the validity of the debtor’s suit for nullity and thus waived its viable argument.

By théir sixth assignment, the applicants urge the court totally failed to address the merits of their exception, ie., that Ms. Parham waived her claims by failing to follow Art. 2642. They concede that the jurisprudence allows a debtor to file a direct action to annul a judicial sale, but only when the property was adjudicated and remains in the hands of the foreclosing creditor. Reed v. Meaux, 292 So.2d 557 (La. 1973); American Thrift & Fin. Plan Inc. v. Richardson, 07-640 (La.App. 5 Cir. 1/22/08), 977 So.2d 105. They also argue injunctive relief is not available after the conduct sought to be enjoined has already taken place. Dryades Sav. & Loan Ass’n v. Givens, 602 So.2d 325 (La. App. 4 Cir. 1992). They submit that the writ should be granted and judgment rendered granting the motion to strike and sustaining all exceptions.

Ms. Parham responds that a direct action can be brought by filing “a separate proceeding or by the filing of a pleading in the same proceeding as that in which the offending judgment was rendered,” citing cases that did not | ¿involve executory proceedings. She further argues that “R.S. 13:4112 is not the end-all to the matter”: even a debtor who failed to take a suspen-sive appeal or to enjoin the sale may, under limited circumstances, attempt to nullify the completed sheriffs sale. Gulf Coast Bank & Tr. v. Warren, 2012-1570 (La.App. 4 Cir. 9/18/13), 125 So.3d 1211; First Guarantee Bk. v. Baton Rouge Petroleum Ctr. Inc., 529 So.2d 834 (La. 1988); Wells Fargo Bk. NA v. Thompson, 14-3 (La.App. 5 Cir. 5/21/14), 142 So.3d 182. She submits that her action fits squarely within these permitted limits.

She also contends that because executo-ry process is such a harsh remedy, it must be strictly complied with. She refers to (but does not cite) “specific evidence” that Nationstar knew that she and her husband did not live at the house, but knew their current address and never sent them notice before filing suit, resulting in a substantive defect and denial of due process, in violation of Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983). She concludes that the writ should be denied and the district court’s decision affirmed in all respects.

Discussion

The assertion of defenses to an ex-ecutory proceeding is regulated by La. C. C. P. art. 2642 A, which provides in pertinent part:

Defenses and procedural objections to an executory proceeding may be asserted either through an injunction proceeding to arrest the seizure and sale as provided in Articles 2751 through 2754, or a suspensive appeal from the order directing the issuance of the writ of seizure and sale, or both.

| (¡The plain language of this article makes clear that unless an injunction or a suspensive appeal is taken, the opponent to executory process waives all defenses or objections. Gibsland Bk. & Trust Co. v. Boddie, 480 So.2d 906 (La. App. 2 Cir. 1985), and citations therein. This court has recognized that the permissive “may” in Art. 2642 A implies that other modes may be available to assert objections. Id.; Louisiana Ass’n for the Blind Inc. v. Robertson, 552 So.2d 580 (La. App. 2 Cir. 1989). However, other methods are possible only if they comport with the spirit of Art. 2642 and serve to arrest the sale or distribution. Gibsland Bk. & Trust v. Boddie, supra.

The action to nullify a judicial sale in executory proceedings is regulated by La. R.S. 13:4112, which provides, in pertinent part:

No action may be instituted to- set aside or annul the judicial sale of immovable property by reason of any objection to form or procedure in the executory proceedings, or by reason of the lack of authentic evidence to support the order and seizure, where the sheriff executing the foreclosure has either filed the proces verbal of the sale or filed the sale for recordation in the conveyance records of the parish.

The jurisprudence holds that the mortgagor who has failed to enjoin the sale of the property by executory process, or did not take a suspensive appeal from the order directing the issuance of the writ of seizure and sale, may maintain a direct action to annul the sale on certain limited grounds, provided that the property was adjudicated to and remains in the hands of the foreclosing creditor. Reed v. Meaux, supra; League Cent. Credit Union v. Montgomery, 251 La. 971, 207 So.2d 762 (1968); American Thrift & Fin. Plan v. Richardson, supra, and citations therein.

Ms. Parham filed the instant petition.to annul the sheriffs sale on August 8, 2014. This was after the court issued its writ of seizure and sale (January 6, 2014), after the sheriffs sale and adjudication to Na-tionstar 17(April 23, 2014), and, critically, after Nationstar conveyed the property to Freddie Mac (May 12, 2014, recorded July 21, 2014). Simply put, the option for her to nullify the sale was no longer available.

Ms. Parham’s (and the district court’s) reliance on Brown, v. Everding, supra, to reach the opposite result is unavailing. A close reading of that opinion shows that the affected property was still in the hands of the mortgagee, who had bought the property at the sheriffs sale, when the debtor filed his petition to annul the judicial sale. Moreover, the mortgagee failed to raise the defense of R.S. 13:4112 in the district court, leading this court to treat it as a waiver. Neither circumstance is present in the instant case.

With Ms. Parham, this court recognizes that executory process is a “harsh remedy, requiring for its use a strict compliance by the creditor with the letter of the law.” First Federal Sav. & Loan of New Iberia v. Moss, 616 So.2d 648 (La. 1993); Walter Mtg. Co. v. Turner, supra. However, Ms. Parham has not shown any failure of compliance on the part of Nationstar, such as improper venue, La. C. C. P. art. 2633, use of inauthentic evidence, Art. 2635, or, critically, lack of service on the attorney for an unrepresented defendant, Art. 2641. On Nations-tar’s motion, the district court appointed a curator ad hoc on February 6, 2014, and service was effected on February 11. The failure of the curator to communicate with the mortgagors does not negate the validity of the executory proceeding. La. C. C. P. art. 5098; Carter v. First South Farm Credit, 49,531 (La.App. 2 Cir. 1/14/15), 161 So.3d 928, unit denied, 2015-1166 (La. 9/18/15), 178 So.3d 151, cert. denied, — U.S. —, 136 S. Ct. 1199, 194 L.Ed.2d 183 (2016); Gulf Coast Bank & Tr. v. Warren, supra. The curator’s conduct may activate the limited remedies provided injgArt. 5098, but do not warrant nullifying the sale. At any rate, compliance with Art. 2642 appears to satisfy the due process requirement of “notice reasonably calculated under all the circumstances, to apprise interested parties of the action and afford them an opportunity to present their objections.” Mennonite Board of Missions v. Adams, supra; Walter Mortgage Co. v. Turner, supra.

Conclusion

For the reasons expressed, the writ is granted and made peremptory. The applicants’ motion to strike is granted and their exception of no cause of action is sustained. The matter is remanded to the district court for further proceedings consistent with this opinion. All costs are to be paid by the respondent, Gena F. Parham, a/k/a Gena Renee Fuller Parham.

WRIT GRANTED AND MADE PEREMPTORY. MOTION TO STRIKE GRANTED; EXCEPTION OF NO CAUSE OF ACTION SUSTAINED. MATTER REMANDED.

      . Ms. Parham simultaneously filed-a second supplemental and amending petition and, "out of an abundance of caution,” a separate petition, in a new docket number, alleging all the same things. She removed the separate petition to federal court; state court proceedings were dormant for 14 months until the federal district judge remanded the matter to the 26th JDC, in December 2015.

      . The other assignments contest the denial of applicants’ (2) dilatory exception of unauthorized use of summary procedure, (3) dilatory exception of improper cumulation of actions, (4) dilatory exception of improper use of exec-utory process, (5) peremptory exception of res judicata, and (7) peremptory exception of prescription.

      . Gazebo Inc. v, City of New Orleans, 97-2769 (La.App. 4 Cir. 3/23/98), 710 So.2d 354; Mooring Fin. Corp. 401(k) Plan v. Mitchell, 2008-1250 (La.App, 4 Cir. 6/10/09), 15 So.3d 311; Smith v. LeBlanc, 2006-0041 (La.App. 1 Cir. 8/15/07), 966 So.2d 66; Succession of Phillips, 2013-251 (La.App. 3 Cir. 8/21/13), 120 So.3d 955; Knight v. Sears, Roebuck & Co., 566 So.2d 135 (La. App. 1 Cir.), writ denied, 571 So.2d 628 (1990); Roach v. Pearl, 95-1573 (La.App. 1 Cir. 5/10/96), 673 So.2d 691; Dickey v. Pollock, 183 So. 48 (La. App. 2 Cir. 1938). She also cites this court’s recent opinion of Walter Mtg. Co. v. Turner, 51,007 (La. App. 2 Cir. 11/16/16), 210 So. 3d 425, 2016 WL 6777379 but that case actually reversed a judgment that nullified a sheriff’s sale deed, and contradicts the proposition for which it is cited.


author: STONE, J.

text:
    STATE of Louisiana, Appellee v. Robert YOUNG, Jr. a/k/a Robert Young, III, Appellant
    No. 51,101-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered February 15, 2017.

      LOUISIANA APPELLATE PROJECT By: Paula Corley Marx, Counsel for Appellant
    JAMES EDWARD STEWART, SR., District Attorney, REBECCA ARMAND EDWARDS, J. AARON CRAWFORD, JANET L. SILYIE, Assistant District Attorneys, Counsel for Appellee
    Before PITMAN, GARRETT and STONE, JJ.
   STONE, J.

liThe defendant, Robert Young, Jr., (“Young”) was charged by amended bill of information with possession with intent to distribute a Schedule II controlled dangerous substance (crack cocaine), pursuant to La. R.S. 40:967(A)(1). After a jury trial, Young was found guilty as charged. Young was sentenced to 14 years at hard labor, the first two years of which were ordered to be served without the benefit of parole, probation, or suspension of sentence. For the following reasons, Young’s conviction and sentence are affirmed.

FACTS

On November 18, 2014, Agent John Edward Witham (“Agent Witham”) and Agent Earlton John Parker (“Agent Parker”), officers with the Caddo-Shreveport Narcotics Task Force, were patrolling the Mooretown area of Shreveport in response to a complaint of drug activity. While patrolling, the agents observed a white Toyota pickup truck in the ,6300 block of Tinker Street partially parked in a driveway at the end of the dead-end street. As Agents Witham and Parker approached the truck, they observed three individuals exit the truck.

The individuals identified themselves as Timothy Newton (“Newton”), the driver, Kathy Sloan (“Sloan”), the front passenger, and Young, who had been seated in the rear passenger side of the truck. Agent Witham obtained consent from Newton to search the truck. Sloan was directed to stand near the rear passenger side of the truck and Young was directed to stand near the front passenger side. During the search, Agent Witham discovered a black RG .32 caliber revolver on the floorboard of the rear passenger seat of the truck. It was loaded with six .32 caliber bullets. 12While Agent Witham continued the search, Agent Parker walked over toward Young, who was still standing near the front of the truck, and noticed a pair of rolled-up black gloves on the ground near Young’s feet. Agent Parker picked up the gloves and unrolled them. Both Agent Parker and Agent Witham observed that the gloves contained 15 plastic bags, each filled with what was later identified as crack cocaine.

Agent Witham proceeded to give Newton, Sloan and Young their Miranda rights. Upon questioning, all three denied having any knowledge of the firearm or the drugs. Shortly thereafter, Young admitted to Agent Witham that the firearm belonged to his late father and he kept it for his protection. According to Young, he had been robbed two weeks earlier. Young also told Agent Witham that the drugs found in the gloves belonged to him, and that he had intended to sell the drugs because he needed money. Young was subsequently arrested. Newton and Sloan were released. Young was charged by an amended bill of information with one count of possession with intent to distribute a Schedule II controlled dangerous substance (crack cocaine) pursuant to La. R.S. 40:967(A)(1).

During Young’s jury trial, Agent Wit-ham recounted the events of November 18, 2014, as stated above. Agent Witham also testified that he did not pat down Young, Newton, or Sloan. According to Agent Wit-ham, after Young, Newton, and Sloan initially denied knowledge of the firearm or drugs, Young approached him and confessed to possession of the firearm and drugs. On cross-examination, Agent Witham stated he did not see Young in possession of the gloves nor did he witness Young making any land of throwing motion to suggest that he was disposing of anything.

|sAgent Parker provided a summary of the November 18, 2014, incident similar to that of Agent Witham. Agent Parker testified that, after all three individuals originally denied knowledge of the firearm or drugs, he saw Young walk up to Agent Witham while he was doing paperwork and heard Young’s confession to Agent Wit-ham. On cross-examination, Agent Parker stated that he did not see the gloves on the ground before he directed Young to stand near the front of the truck.

Lieutenant Carl Townley (“Lieutenant Townley”), an expert in the field of drug sales, and packaging, sales, use and distribution of cocaine, testified that the evidence and surrounding circumstances supported his conclusion that Young was in possession of the cocaine with the intent to distribute it. Lieutenant Townley explained that he based his opinion on the way the drugs were packaged; the amount of drugs in each baggie; the firearm, because it is common for drug dealers to carry firearms; and, the lack of paraphernalia associated with using drugs (e.g., needles or smoking pipes). Lieutenant Townley also testified that it would be uncommon for someone just to leave and abandon that amount of drugs on the ground.

Sloan testified as the defense’s sole witness. According to Sloan, the officers approached her, Young, and Newton with their guns drawn and ordered them out of the car. After they exited the vehicle, the officers handcuffed them and patted them down. Sloan said that neither she nor Young had black gloves and that she did not see a pair of black gloves on the ground near the truck. Sloan also testified that Young did not walk over to Agent Witham voluntarily, but that Agent Wit-ham called Young over to him. On cross-examination, Sloan conceded that she could not hear the conversation between Young and Agent Witham.

14The jury found Young guilty as charged. Thereafter, Young was sentenced to 14 years at hard labor, with the first 2 years to be served without the benefit of parole, probation, or suspension or sentence. Young did not file a motion to reconsider sentence. He now appeals.

DISCUSSION

Improper Admission of Evidence

During Agent Witham’s testimony, Young’s counsel made an objection and requested his objection be heard and addressed outside the presence of the jury. After the jury was excused, Young’s counsel contended that Agent Witham was getting ready to testify that he found a weapon in the vehicle. Young’s counsel argued that Young was not being charged with possession of the weapon and that the presence of the weapon in the car was irrelevant to the case. According to Young’s counsel, testimony and evidence regarding the gun would prejudice the jury against Young because the gun would “make [the jury] think that he’s a dangerous person or ... that somehow the weapon was involved in this case.”

After hearing arguments from both parties, the trial judge held that the evidence and testimony about the firearm found in the car was admissible. Young’s counsel maintained his objection to the trial court’s ruling throughout trial.

Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. La. C.E. Art. 401.

| r,Generally, evidence of other acts of misconduct is inadmissible because it creates the risk that the defendant will be convicted of the present offense simply because the unrelated evidence establishes him or her as a “bad person.” La. C.E. Art. 404(B)(1); State v. Jackson, 625 So.2d 146, 148 (La. 1993). This rule of exclusion stems from the “substantial risk of grave prejudice to the defendant” from the introduction of evidence regarding his unrelated criminal acts. State v. Prieur, 277 So.2d 126,128 (La. 1973).

Evidence of other crimes may be admissible if the state establishes an independent and relevant reason, i.e., to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding. La. C.E. Art. 404(B)(1); State v. Roberson, 40,809 (La. App, 2 Cir. 04/19/06), 929 So.2d 789.

This Court, quoting the Supreme Court’s ruling in State v. Odenbaugh, 10-0268 (La. 12/06/11), 82 So.3d 215, outlined the rule for introducing such res gestae evidence:

For other crimes to be admissible under this exception, they must bear such a close relationship with the charged crime that the indictment or information as to the charged crime can fairly be said to have given notice , of the other crime as well. Thus, evidence of other crimes forms part of the res gestae when said crimes are related and intertwined with the charged offense to such an extent that the state could not have accurately presented its case without reference to it. It is evidence which completes the story of the crime by showing the context of the happenings. Evidence of crimes committed in connection with the crime charged does not affect the accused’s character because the offenses are committed as parts of a whole. The inquiry to be made is whether the other crime is “part and parcel” of the crime charged, and is not offered for the purpose of showing that the accused is a person of bad character. The res gestae doctrine in Louisiana is broad and includes not only spontaneous utterances and declarations made before or |flafter the commission of the crime, but also testimony of witnesses and police officers pertaining to what they heard or observed during or after the commission of the crime if a continuous chain of events is evident under the circumstances. In addition, as this Court has observed, integral act (res gestae) evidence in Louisiana incorporates a rule of narrative completeness without which the state’s case would lose its “narrative momentum and cohesiveness, ‘with power not only to support conclusions but to sustain the willingness of jurors to draw the inferences, whatever they may be, necessary to reach an honest verdict.’ ”

State v. Cooley, 47,087 (La.App. 2 Cir. 05/16/12), 92 So.3d 1095, 1098, writ denied, 12-1395 (La. 01/11/13), 106 So.3d 546. Even when the other crimes evidence is offered for a purpose allowed under La. C.E. Art. 404, the evidence is not admissible unless it tends to prove a material fact at issue or to rebut a defense. State v. Rose, 06-0402 (La. 02/22/07) 949 So.2d 1236, 1243.

A trial judge is vested with wide discretion in determining relevance of evidence; his ruling on the admissibility of other crimes evidence will not be overturned absent a clear showing of abuse of discretion. State v. Scales, 93-2003 (La. 05/22/95), 655 So.2d 1326, cert. denied, 516 U.S. 1050, 116 S.Ct. 716, 133 L.Ed.2d 670 (1996); State v. Cooks, 36, 613 (La.App. 2 Cir. 12/04/02), 833 So.2d 1034.

Young argues the trial court erred in admitting other crimes evidence of a firearm at trial. Young asserts that the trial court erred in finding that the firearm was admissible as integral acts evidence under La. C.E. 404(B). In response, the state argues that admission of evidence and testimony about the firearm was proper under the res gestae exception in La. C.E. Art. 404(B).

It is well established in Louisiana that firearms and drugs frequently go hand-in-hand. State v. Warren, 05-2248 (La. 02/22/07)17, 949 So.2d 1215, 1229. (To substantial dealers .in narcotics, firearms are as much tools of the trade as are most common recognized articles of drug paraphernalia.) See also State v. Allen, 15-231 (La. App. 5th Cir. 10/14/15), 177 So.3d 771, 781. For this reason, Louisiana courts permit evidence of weapons and drugs under the res gestae exception found in La, C. E. Art. 404(B). Applying the rules and rationale regarding the admissibility of integral acts evidence, the Supreme Court in State v. Colomb, 98-2813 (La. 10/1/99, 4), 747 So.2d 1074, 1076, explained:

[Evidence of the defendant’s marijuana possession contemporaneous with the police discovery of the firearm in his truck provided not only narrative completeness to a case which began as a narcotics stop but also formed an integral part of the context facts in which jurors evaluated the state’s case—

In the instant matter, this Court finds no error by the trial court regarding the admissibility of testimony about issue with the admission of the firearm. The evidence of the firearm in Newton’s car was relevant insofar as it completed the narrative of Young’s arrest and provided circumstantial evidence with which the jury could evaluate Young’s exercise of dominion and control over the cocaine found on the ground. Furthermore, the firearm was relevant to show Young’s intent to distribute the cocaine.

Even if the firearm was improperly admitted, the admission is subject to review for harmless error, and will be deemed harmless if the verdict is surely unattributable to the error. Odenbaugh, supra-, State v. Parker, 42,311 (La.App. 2 Cir. 1 s08/15/07), 963 So.2d 497, writ denied, 07-2053 (La. 03/7/08), 977 So.2d 896. This Court finds that even if the trial court erred in allowing testimony and evidence related to the revolver, such error was harmless. The evidence against Young, including the testimony of Agents Witham and Parker and Young’s admission to the crime, was sufficient to support the jury’s verdict. Young’s argument is without merit.

Admission of Witness’s Criminal History

Young next argues the state improperly questioned Sloan about her criminal history. The following questioning and testimony occurred during Sloan’s cross-examination by the state:

DISTRICT ATTORNEY: Okay. And going through your criminal history, I just need to check on this, you have a prior arrest for possession of Schedule II; is that correct?
SLOAN: The charges were dropped.
DEFENSE COUNSEL: Objection, Your Honor.
DISTRICT ATTORNEY: Sorry, conviction of possession of Schedule II?
SLOAN: The charges were dropped.
DISTRICT ATTORNEY: From 1993?
⅜ * *
DISTRICT ATTORNEY: What were they dropped to?
SLOAN: I’m sorry?
DISTRICT ATTORNEY: You said they were dropped.
SLOAN: You said ’93?
DISTRICT ATTORNEY: Yes, ma’am.
SLOAN: That was not me. ’93 where? Here in Shreveport?
^DISTRICT ATTORNEY: Yes ma’am. In Caddo Parish.
SLOAN: Are you sure it was me? I don’t remember having a conviction in ’93.

Thereafter, the state continued to question Sloan about her criminal history. Sloan continuously denied conviction of any crime in Caddo Parish in 1993. Sloan was also questioned about a 2003 conviction of delivery of a controlled dangerous substance in Shreveport, which she denied. However, Sloan did admit to a delivery of cocaine conviction in Kansas City, but stated the conviction had been expunged.

La. C.E. Art. 609.1 places guidelines on the impeachment of a witness in a criminal proceeding with evidence of a prior conviction. See also State v. Henderson, 12-2422 (La. 01/04/13), 107 So.3d 566, 568.

La. C.E. Art. 609.1, states in pertinent part:

A. General criminal rule. In a criminal case, every witness by testifying subjects himself to examination relative to his criminal convictions, subject to limitations set forth below.
B. Convictions. Generally, only offenses for which the witness has been convicted are admissible upon the issue of his credibility, and no inquiry is permitted into matters for which there has only been an arrest, the issuance of an arrest warrant, an indictment, a prosecution, or an acquittal.
C. Details of convictions. Ordinarily, only the fact of a conviction, the name of the offense, the date thereof, and the sentence imposed is admissible. However, details of the offense may become admissible to show the true nature of the offense:
1. When the witness has denied the conviction or denied recollection thereof—

Information about a witness’s convictions can form an important source for impeachment of such witnesses. State v. Bratton, 49,434 (La.App. 2 Cir. 01/14/15), 161 So.3d 937, 945, writ denied, 15-0303 (La. 11/20/15), 180 So.3d 317. However, in criminal cases, “only an offense for which the witness has been convicted is admissible on the issue of credibility, and no inquiry is permitted into matters for which there has only been an arrest ... or an acquittal.” State v. Jackson, 629 So.2d 1374, 1382 (La. App. 2d Cir. 1993), writ denied, 637 So.2d 1046 (La. 1994).

In State v. Akins, 96-414 (La.App. 3 Cir. 12/11/96), 687 So.2d 489, the third circuit discussed the effect of a technical error, under La. C.E. Art. 609.1, made by counsel during impeachment of a witness:

In State v. Johnson, 94-1379 (La. 11/27/95), 664 So.2d 94 .... during the prosecution’s impeachment of the defendant, the prosecution misstated the true nature of defendant’s convictions, referring to the crimes for which the defendant had been charged rather than the crimes for which the defendant had actually been convicted. The prosecutor in the present case was not in error in stating that the accused had prior drug convictions, but rather his error was a mere technical misstatement of the crimes for which the defendant had been convicted. As such, it could not have contributed to defendant’s verdict.

Id. at 492-93. When a witness denies a conviction, La. C.E. Art. 613 authorizes the state to introduce extrinsic evidence of the conviction. While the state is not required to introduce positive evidence that the conviction exists, the state must have a credible factual basis for the line of questioning. State v. Selvage, 93-1435 (La.App. 1 Cir. 10/07/94), 644 So.2d 745, 751, writ denied, 94-2744 (La. 03/10/95), 650 So.2d 1174.

As with most evidentiary rules, the admissibility of a witness’s prior convictions and any extrinsic evidence is subject to the balancing test required by La. C.E. Art. 403. State v. Tolbert, 03-0330 (La. 06/27/03), 849 So.2d 32, 38. A trial court is afforded great discretion in controlling the scope and extent of cross-examination and its rulings will not be disturbed | absent a finding of an abuse of discretion. State v. Coleman, 32,906 (La.App. 2 Cir. 04/05/00), 756 So.2d 1218, 1244. Improper questioning under La C.E. Art. 609.1 is subject to harmless error analysis. Johnson, supra,-, Bratton, supra.

From the record, the state’s questions to Sloan about a previous arrest, which was immediately corrected, appears to be precisely the type of technical misstatement described in Akins, supra, and Johnson, supra. The transcript also suggests that the prosecutor was looking at or relying on something when he asked Sloan about her criminal history, making the following statements during cross-examination of Sloan: “... [G]oing through your history, I just need to check on this ... ”; “is this your social security number?”; “And maybe I’m reading it off wrong, or there’s a misunderstanding—”

Without any evidence to the .contrary, the state had a good faith basis for questioning Sloan about her previous criminal history. In addition, Young’s contention that the state did not publish or otherwise enter into evidence any documentation is inapposite. Finally, as noted correctly by the state in its appellate brief, any error during the cross-examination of Sloan was harmless. While Sloan’s testimony differed considerably from that of Agents Witham and Parker, Sloan admitted that she did not hear Young’s conversation with Agent Witham and therefore could not refute the officers’ testimony.

Improper State Rebuttal

Finally, Young claims the prosecutor’s argument in rebuttal was improper, specifically that the state’s remarks comparing defense counsel to |12a squid were “highly inflammatory and derogatory.” The following interaction occurred during the state’s rebuttal to defense counsel’s closing argument:

DISTRICT ATTORNEY: The Defense Attorney’s job in this case is, basically, to act like a squid. I know we’re all familiar with a squid. Some are large, some are small, but they have one big defense mechanism, and that defense mechanism is to squirt you when they are afraid so that they can have a cloud to, basically, get away unharmed.
And so, when he gets up in here and he argues—gets up here and he argues—
DEFENSE COUNSEL: Objection, Your Honor.
COURT: I think it is argument. She can argue.
DEFENSE COUNSEL: Well, Your Honor, the prosecution has made a closing argument. I have made a closing argument. I think her closing argument right at this point is in rebuttal and would be restricted to anything that I talked about.
COURT: You need to get on with rebutting what he had to say.
DISTRICT ATTORNEY: I am. That’s exactly what I’m doing, Your Honor. And my point in saying that is he’s got to murky the water. He’s got to put forth his argument to cloud the issues at hand—

After closing arguments, the trial court instructed the jury that the arguments made by counsel were made to assist the jury in deliberations, but that those statements should not be considered as evidence. Young contends | 13that the remarks created prejudice against Young and likely influenced the jury.

Louisiana C.Cr. P. Art. 774 sets forth the permissible scope of closing argument:

The argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.
The argument shall not appeal to prejudice.
The state’s rebuttal shall be confined to answering the argument of the defendant.

Certain remarks made during closing argument require the trial court to order a mistrial. La. C.Cr. P. Art. 770. If the comments made during closing arguments do not fall under the provisions of La. C.Cr. P. Art. 770, then, upon request of either the state or the defense, the trial court shall admonish the jury. La. C.Cr. P. Art. 771.

Even if the prosecutor exceeds the permissible scope of closing argument, “much credit should be accorded to the good sense and fair-mindedness of jurors who have seen the evidence and heard the argument, and have been instructed repeatedly by the trial judge that arguments of counsel are not evidence.” State v. Mitchell, 94-2078 (La. 05/21/96), 674 So.2d 250, cert. denied, 519 U.S. 1043, 117 S.Ct. 614, 136 L.Ed.2d 538 (1996)).

The trial judge has broad discretion in controlling the scope of closing arguments. State v. Paul, 15-501 (La. App. 5th Cir. 01/27/16), 185 So.3d 188, 203. A court will not reverse a conviction unless “thoroughly convinced that the argument influenced the jury and contributed to the verdict.” State v. Frank, 99-0553 (La. 05/22/07), 957 So.2d 724, 741.

| uWhile the analogy made by the state is frowned upon, reviewing courts regularly find that the comparisons, in and of themselves, do not warrant a mistrial or otherwise rise to the level of reversible error. The evidence presented at trial combined with the fact that the trial court instructed the jury that the statements and arguments of counsel were not evidence, support the determination that the jury was not swayed or otherwise improperly influenced by the analogy. Young’s argument is without merit.

Error Patent

Our review of the record revealed one error patent. The trial court failed to advise Young of the time within which to apply for post-conviction relief pursuant to La. C. Cr. P. Art. 930.8. The correct time period for Young to seek post-conviction relief is two years from the date his conviction and sentence become final. We hereby advise Young that he has two years from the date his conviction and sentence become final to apply for post-conviction relief.

CONCLUSION

For the foregoing reasons, the conviction and sentence of Robert Young, Jr., are affirmed.

AFFIRMED.

      . Young made an oral motion for new trial on November 2, 2015, which was subsequently denied.

      . See also United States v. Nguyen, 317 Fed. Appx. 424, 428 (5th Cir, 2009). (Firearms are considered “tools of the trade” in drug trafficking offenses and are relevant intrinsic proof of an ongoing conspiracy ... This court recently reiterated this conclusion in a drug trafficldng case where the amount and street value of the drugs made the possession of firearms foreseeable.) See United States v. Cisneros-Gutierrez, 517 F.3d 751, 766 (5th Cir. 2008).


author: BROWN, C.J.

text:
    Alice CUMPTON, Leo Burgess Cumpton, II, and Melissa Cumpton Morris, Plaintiffs-Respondents v. ST. FRANCIS SPECIALTY HOSPITAL, INC., Defendant-Applicant Louisiana Patient’s Compensation Fund, Intervenor-Respondent
    No. 51,079-CW
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered February 15, 2017

      GACHASSIN LAW FIRM, By: Gary J. DeLahoussaye, Nicholas Gachassin, III, Jade A. Forouzanfar, Counsel for Applicant, Specialty Extended Care Hospital of Monroe, LLC
    KARA HADICAN SAMUELS & ASSOCIATES, L.L.C., By: Kara H. Samuels, Nora R. Udell, Tiffany A. Morales, LAW OFFICES OF BRIAN E. CRAWFORD, LLC, By: Brian E. Crawford, Counsel for Plaintiffs/Respondents
    MCNEW, KING, and LANDRY, LLP, By: Brady D. King, II, April L. Martin, Counsel for Intervenor/Respondent Louisiana Patient’s Compensation Fund
    HAYES, HARKEY, SMITH, & CAS-CIO, LLP, By: Clint R. Hanchey, Paul F. Lensing, Jr., Counsel for Defendant, St. Francis Medical Center, Inc.
    Before BROWN, LOLLEY and STONE, JJ.
   BROWN, C.J.

| defendant, St. Francis Specialty Hospital, filed a writ with this Court complaining of a judgment rendered on March 4, 2016, by the district court denying its motion for partial summary judgment as to some of plaintiffs’ claims against defendant. This Court granted the writ and converted it to the instant appeal.

For the reasons set forth below, we affirm the ruling of the lower court.

Facts and Procedural History

Plaintiffs, Alice Cumpton, Leo Burgess Cumpton, II, and Melissa Cumpton Morris, are the wife and two adult children, respectively, of Leo Burgess Cumpton (“Mr. Cumpton”), a patient of defendant hospital in this case. Defendant, St. Francis Specialty Hospital, Inc. (“LTAC”), is the extended care facility where Mr, Cumpton was admitted on August 2, 2013, for treatment of his long-term respiratory condition.

Upon admittance to LTAC, Mr. Cump-ton was assessed by nurse practitioner Penny Montcalm (“Nurse Montcalm”) to determine the best means of treating Mr. Cumpton’s pre-existing pressure ulcers. Nurse Montcalm decided that Mr. Cump-ton needed a special mattress on a standard-sized bed frame to address the pressure ulcers. At the time, Mr. Cumpton was six feet, three inches in height and weighed 225 lbs. Mr. Cumpton’s wife, Alice, repeatedly requested that her husband be placed in a bed that fit his size. Alice Cumpton testified that her husband’s feet were resting on top of or hanging over the footboard, and pillows were used to try to prop Mr. Cumpton up so that his feet would not hang over the end of the bed.

laOn August 7, 2013, a nurse found Mr. Cumpton on the floor of his room, presumably because he fell from his bed. Due to the fall, Mr. Cumpton suffered a hemato-ma to his chest wall requiring immediate surgery. Mr. Cumpton survived the surgery but died on August 20, 2013, from complications related to the hematoma.

On December 17, 2013, plaintiffs filed a complaint with the Louisiana Patients’ Compensation Fund (“PCF”). On December 18, 2013, plaintiffs filed a petition in the Fourth Judicial District Court alleging that LTAC was negligent in providing Mr. Cumpton with an inadequately-sized bed and in failing to properly supervise and monitor Mr. Cumpton. Plaintiffs amended their petition on January 27, 2014, to add a claim for medical malpractice under the Louisiana Medical Malpractice Act (“LMMA”).

LTAC filed a dilatory exception of prematurity as to plaintiffs’ petition on March 14, 2014, alleging that the conduct at issue, ordering a bed that was too short for Mr. Cumpton’s size and stature, was an allegation of medical malpractice and not negligence, requiring plaintiffs to first seek relief from the PCF. The trial court heard arguments on LTAC’s exception on July 29, 2015, and determined that the exception was moot. LTAC sought review from this Court; the writ was denied.

LTAC requested permission to address the issue of whether the LMMA or general negligence principles applied to the case in a motion for partial summary judgment. The trial court allowed LTAC to do so, and LTAC filed its motion for partial summary judgment on August 28, 2015. LTAC argued that the issue of whether the alleged failure to provide Mr. |sCumpton with an appropriately-sized bed was an issue governed by the LMMA. Plaintiffs filed a memorandum in opposition to LTAC’s motion on October 2, 2015, arguing that the issue of bed size was subject to the rules governing general negligence actions.

The trial court held a hearing on the motion on October 14, 2015. The parties stipulated at that time that the allegations relating the failure to supervise and/or monitor the patient were related to medical malpractice and were covered by the LMMA. Therefore, the parties only presented their arguments regarding LTAC’s alleged failure to provide an appropriately-sized bed to Mr, Cumpton. On March 4, 2016, the trial court issued its written ruling denying LTAC’s partial motion for summary judgment. The trial court considered the factors provided by the Louisiana Supreme Court in Coleman v. Deno, 01-1517 (La. 01/25/02), 813 So.2d 303, and found that, considering the factors in their totality, the conduct of failing to provide an appropriately-sized bed was governed by the rules of general negligence. LTAC then applied for supervisory review from this Court.

Discussion

Defendant argues that Nurse Montcalm’s failure to provide" Mr. Cump-ton with a properly-sized bed is really a claim that Nurse Montcalm failed to properly assess, diagnose, and/or stabilize Mr. Cumpton regarding his need for a longer bed frame. Defendant states that plaintiffs’ allegations are related to' the medical treatment Nurse Montcalm provided as part of Mr. Cumpton’s admission to LTAC.

Plaintiffs argue that providing Mr. Cumpton with an inappropriately-sized bed was not treatment-related and did not require professional skill to determine whether the bed Mr. Cumpton was placed in was too small for Lhim. Plaintiffs further argue that no medical evidence is necessary to explain to the factfinder that Mr. Cumpton needed a longer bed frame to accommodate his stature. Plaintiffs further argue that Mr. Cumpton was admitted to LTAC to treat his respiratory problems and to address his pressure ulcers, both of which were unrelated to the bed frame size Mr. Cumpton required.

This matter comes before the Court on the trial court’s denial of a motion for partial summary judgment. Appellate review of a motion for summary judgment is de novo. Billeaudeau v. Opelousas Gen. Hosp. Auth., 16-0846 (La. 10/19/16), 218 So,3d 513, 2016 WL 6123862. Summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. Code Civ. Proc. Art. 966(A)(3). Since the issue here is statutory interpretation of the LMMA, there is no genuine issue of material fact in dispute and the sole issue before the court is a question of law and the correct interpretation of the LMMA. Bil-leaudeau, supra.

For the LMMA to apply, the law requires that malpractice claims: (1) be made by a patient; (2) against a PCF qualified healthcare provider; and (3) relate to health care or professional services rendered. La. R.S. 40:1231.1 et seq. The first two requirements are not in dispute in this case. The issue before this Court is a determination of whether the alleged failure of LTAC in providing Mr. Cumpton with an appropriately-sized bed is |fiencompassed within the LMMA’s definition of malpractice, i.e., whether this failure'is related to health care or professional medical services.

The LMMA defines malpractice in pertinent part as,

“[A]ny unintentional tort or any breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient, including failure to render services timely and the handling of a patient, including loading and unloading of a patient, [or] ... in the training and supervision of health care providers.... ”

The LMMA defines health care in pertinent part as,

“[A]ny act of treatment performed or furnished, or which should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient’s medical care, treatment, or confinement....”

La. R.S. 40:1231.1.

The Supreme Court has held that the LMMA should be strictly construed in favor of injured plaintiffs. Billeaudeau, supra; Williamson v. Hosp. Serv. Dist. No. 1 of Jefferson, 04-0451 (La. 12/01/04), 888 So.2d 782. Only a plaintiffs claims arising from medical malpractice are governed by the LMMA and all other tort liability on the part of the health care provider is governed by general negligence law. Billeaudeau, supra. The Supreme Court enunciated six factors to assist the courts in determining whether certain conduct by a qualified health care provider comprises malpractice as defined under the LMMA in Coleman v. Deno, 01-1517 (La. 01/25/02), 813 So.2d 303. Those factors are:

(1) whether the particular wrong is treatment related or caused by a dereliction of professional skill;
(2) whether the wrong requires expert medical evidence to determine whether the appropriate standard of care was breached;
(3) whether the pertinent act or omission involved assessment of the patient’s condition;
|fl(4) whether an incident occurred in the context of the physician-patient relationship, or was within the scope of activities which a hospital is licensed to perform;
(5) whether the injury would have occurred if the patient had not sought treatment; and
(6) whether the tort alleged was intentional.

Id. at 315-16.

Plaintiffs concede that the fifth factor, whether the injury would have occurred if the patient had not sought treatment, weighs in favor of defendant. Plaintiffs and defendant do not have a dispute as to the sixth Coleman factor, whether the alleged tort was intentional.

(1) Whether the particular wrong is treatment-related or caused by a dereliction of professional skill.

In Blevins v. Hamilton Med. Ctr., Inc., 07-127 (La. 06/29/07), 959 So.2d 440, the patient fell from a bed which was not properly locked down and was kept in the highest position; the bed rolled from underneath the patient causing him to fall and injure his knee. The supreme court in that case found that the reason the patient was being treated (a groin infection) was unrelated to the injury he sustained when the bed rolled out from underneath him. Id. The Court stated that the securing of a bed is an issue of routine maintenance performed by housekeeping or nurse’s aides and did not result from any dereliction of professional skill that was treatment-related. Id.

Mr. Cumpton was admitted to LTAC to recuperate from respiratory problems. In assessing Mr. Cumpton, Nurse Montcalm ordered a specialized mattress to aid Mr. Cumpton in the treatment of his pressure ulcers. Mr. Cumpton’s being too large for the bed which he was provided was unrelated to his respiratory problems or his pressure ulcers. Mr. |7Cumpton’s fall was also unrelated to his respiratory condition, his pressure ulcers, or the type of mattress he was provided. Providing a patient with a bed that is the correct size for his height or weight requires no professional skill. Any hospital employee could have seen that Mr. Cumpton’s feet were on top of or hanging over the footboard of the bed he was assigned. This factor weighs in favor of plaintiffs.

(2) Whether the wrong requires expert medical evidence to determine whether the appropriate standard of care was breached.

Expert medical evidence is not required to determine if a patient is in an appropriately-sized bed. A person need only use his or her eyes to make such a determination; even specific knowledge of the patient’s height and weight are unnecessary when the patient’s feet are seen on top of or hanging over the footboard of the bed. In Coleman, the Court observed that the case was not one in which the alleged wrongful conduct could be evaluated based on common knowledge and that expert testimony was needed to establish whether the standard of care for an emergency physician was breached. Id. at 317. In the instant case, common knowledge of how a person is supposed to fit into a bed is all that is required to determine if the standard of care was breached.

Additionally, when Nurse Montcalm was asked if she had specialized training on whether a patient is too large to fit in a bed, she answered, “no,” and said it was a matter of “common sense” about what type of bed a patient of a particular height and/or weight would need. When asked whether a patient needs a larger bed is something that a person could easily see or observe, Nurse Montcalm answered, “yes.” This factor weighs in favor of plaintiffs.

\h(8) Whether the pertinent act or omission involved assessment of the patient’s condition.

No assessment of Mr. Cumpton’s medical conditions, respiratory issues and pressure ulcers, was required to determine whether Mr. Cumpton needed a larger bed. LTAC asserts that Nurse Montcalm’s initial assessment of Mr. Cumpton took into account his height and weight in her determination of how to treat his pressure ulcers. That assessment was performed in order to determine solely what mattress to place Mr. Cumpton on, not what bed size Mr. Cumpton would need to fit his frame. See Blevins, 959 So.2d at 447. This factor weighs in favor of plaintiffs.

(If) Whether an incident occurred in the context of the physician-patient relationship or was within the scope of activities which a hospital is licensed to perform.

The alleged incident did not occur in the context of a physician-patient relationship or within the scope of activities that a hospital is licensed to perform, but rather occurred when Mr. Cumpton allegedly fell out of a bed which was too short for his frame. This factor weighs in favor of plaintiffs.

When examining the Coleman factors in their totality, the trial court was not in error and properly denied defendant’s motion for partial summary judgment.

Conclusion

For the above reasons, we AFFIRM the district court’s judgment and REMAND for further proceedings. Costs are assessed to defendant, St. Francis Specialty Hospital.

      . See Alice Cumpton v. Specialty Extended Care Hosp. of Monroe, No. 50,437-CW.

      . The legislature recodified and reorganized the LMMA in the 2015 legislative session. This provision was previously set forth in La. R.S. 40:1299.41. The pertinent sections of the law remain unchanged.