author: CHEHARDY, C.J.

text:
    Ms. Dottie ADAMS, Mr. Herbert Adams, et al. v. Joseph GREFER, Camille Grefer, Rose Marie Grefer Hassi, et al.
    NO. 17-CA-250
    Court of Appeal of Louisiana, Fifth Circuit.
    December 13, 2017

      COUNSEL FOR PLAINTIFF/APPELLANT, AARON BOYD, DANA MICHELLE BOYD, ET AL, George F. Riess, New Orleans
    COUNSEL FOR DEFENDANT/AP-PELLEE, EXXON MOBIL CORPORATION AND MOBIL OIL EXPLORATION AND PRODUCING SOUTHEAST, INC., Glen M. Pilie, Martin A. Stern, Valeria M. Sercovich, David M. Stein, Raymond P. Ward, New Orleans
    COUNSEL FOR DEFENDANT/AP-PELLEE, ALPHA TECHNICAL SERVICES, INC., Caleb H. Didriksen, III, Gonzales, Erin Bruce Saucier, Carl A. Woods, III, Jeremy J. Pichón, New Orleans, Michael S. Finkelstein, New Orleans

      COUNSEL FOR DEFENDANT/AP-PELLEE, CONOCO PHILIPS COMPANY /SHELL OIL COMPANY, SHELL OFFSHORE, INC. AND SWEPI LP, Deborah D. Kuchler, Janika D. Polk, Michele H. DeShazo, Mark E. Best, Skylar B. Rudin, Joshua J. Doguet, New Orleans
    Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and Robert A. Chaisson
   CHEHARDY, C.J.

li Numerous plaintiffs appeal the trial court’s grant of summary judgments in favor of defendants, Exxon Mobil Corporation, Mobil Exploration and Producing North America, Inc. (hereinafter “Exxon”); Shell Oil Company, Shell Offshore, Inc., and SWEPI LP, ConocoPhillips Company; and Alpha Technical Services, Inc (hereinafter “Shell”). For the following reasons, we affirm the trial court’s judgments.

Facts and Procedural History

On October 11, 2005, over 1100 plaintiffs, colloquially known as “the Dottie Adams plaintiffs,” filed a petition for damages alleging that they were directly or indirectly exposed to naturally occurring radioactive material (“NORM”) by defendants’ contamination of the “Grefer tract,” a 33-acre industrial tract situated in Harvey, Louisiana. The “Dottie Adams” plaintiffs are “present or former residents of ... Harvey, Louisiana, or at some point worked near the ‘Grefer Tract,’ near Peters Road, Sixteenth Street, Pailet Avenue and Breaux Avenue;”

12After eleven years of litigation, Exxon filed its motions for summary judgment with respect to fifty-seven specific “Dot-tie Adams” plaintiffs on the basis that the plaintiffs were not able to substantiate, that either.they or their property were exposed to NORM above naturally-occurring background levels. To its. motions for summary judgment, , Exxon attached ■ an affidavit from its expert health physicist, John R. Frazier, Ph.D., with attached exhibits, including a deposition from Andrew Gross of Radiation Technical Services; two reports from the Louisiana Department of Environmental Quality; and a list of plaintiffs’ addresses. In his .affidavit, Dr. Frazier' attests that “no evidence of physical testing of Plaintiffs’ properties ... shows any NORM impacted dust or soil from operations on the [Grefer Tract].” In conclusion, Dr. Frazier surmises that “it is more likely than not that the properties owned by the subject Plaintiffs in Harvey, Louisiana, ... would have not been impacted by NORM from oil pipe scale from operations in the [Grefer Tract] in Harvey, Louisiana.”

Within days, Shell filed its own motion for summary judgment, incorporating and adopting Exxon’s motion for summary judgment and supporting exhibits, with respect to forty “Dottie Adams” plaintiffs on the basis that the plaintiffs were not able to substantiate that either they or their property were exposed to NORM above naturally-occurring background levels. To its motion for summary judgment, Shell attached a “Master Set of Requests for Admission, Interrogatories, and Requests for Production of Documents” propounded by Exxon and Shell to all remaining “Dot-tie Adams” plaintiffs on November 17, 2016. In support of its motion, Shell alleged that the plaintiffs named in its motion failed to respond within 30 days to the propounded interrogatories ■■ and, thus, Shell’s | .¡requests for admission were deemed admitted by operation of law under La. C.C.P. art. 1467(A). Specifically, Shell argued that the named plaintiffs “have admitted they have no evidence of their alleged exposure to NORM, including exposure to their persons and/or their properties.” Based on these supporting documents, Exxon and Shell contended that the plaintiffs at issue could not bear their burden of proof at trial and,, thus, Exxon and Shell were entitled to summary judgment. '

In their opposition, plaintiffs argued that summary judgment was not appropriate as the parties had already reached an agreement to settle. Plaintiffs attached documents, which were sealed, to their opposition, including a copy of the offer to settle from -2008 and other privileged communications. Plaintiffs argued that they have “suffered as a minimum ‘fear and fright’ as a result of the warnings posted by the DEQ,..., the high incidence of cancers related to radiation, and the settlement confected between the parties.”

After a hearing on January 30, 2017,, the trial court took the matter under advisement. On February 1, 2017, the trial judge granted Shell’s motion for summary judgment with respect to eighteen plaintiffs. On February 3,2017, the trial judge granted Exxon’s motions for summary judgment with respect to fifty-three represented plaintiffs. On February 24, 2017, the trial judge granted Exxon’s motion for summary judgment with respect to four pro se plaintiffs. All [ 4of those rulings were designated as final judgments under La. C.C.P. art. 1915. On Febrdary 24, 2017, fifty-six plaintiffs, filed a motion to appeal the trial court’s grant of summary judgment in favor of Exxon and Shell, which was granted.

Standard of Review

Appellate courts review the granting of summary judgment de novo using the same criteria governing the trial court’s consideration of whether summary-judgment is appropriate. Hogg v. Chevron USA, Inc., 09-2632 (La. 7/6/10), 45 So.3d 991, 996.

Law and Discussion

In their assignment of error, plaintiffs argue that the trial court erred by granting defendants’ motions for summary judgment as there had been a settlement between the parties.

A motion for summary judgment “shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(A)(2). “The court may only consider those documents filed in support of or in opposition to the motion for summary judgment.” La. C.C.P. art. 966(D)(2). “The only documents that may be filed in support of or in opposition to the motion are pleadings, memo-randa, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions.” La. C.C.P. art. 966(A)(4).

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. |ñLa. C.C.P. art. 967(A). The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits. Id.

The party moving for summary judgment bears the burden of proof. La. C.C.P. art. 966(D)(1). However, if the movant will not bear the burden of proof at trial, the movant’s burden on a motion for summary judgment does not require him to negate all essential elements of the adverse party’s claim, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Id; Patrick v. Iberia Bank, 05-783 (La. App. 5 Cir. 3/14/06), 926 So.2d 632, 634. If the adverse party fails to produce factual support sufficient to establish a genuine issue of material fact, summary judgment should be granted. La. C.C.P. art. 966(D)(1).

It is well-settled a plaintiff opposing summary judgment cannot rest on the mere allegations of his pleadings, but must set forth specific facts showing a genuine issue for trial exists. If the plaintiff does not set forth specific facts, summary judgment, if appropriate, shall be rendered against him. La. C.C.P. art. 967(B); Darr v. Marine Elecs. Solutions, Inc., 11-908 (La. App. 5 Cir. 5/22/12), 96 So.3d 527, 533, writ denied, 12-1442 (La. 10/8/12), 98 So.3d 860. Conclusory allegations and unsupported speculation will not support the finding of a genuine issue of material fact. Trench v. Winn-Dixie Montgomery LLC, 14-152 (La. App. 5 Cir. 9/24/14), 150 So.3d 472, 476.

In order to determine whether a plaintiff should prevail on a tort action, Louisiana courts employ a duty-risk analysis. Long v. State ex rel. Dept. of Transp. & Dev., 04-0485 (La. 6/29/05), 916 So.2d 87, 101. One element of the duty-risk analysis requires a plaintiff to provide proof that the defendant’s substandard conduct was a cause-in-fact of the plaintiffs injuries. Id.; Pitre v. Louisiana Tech Univ., 95-1466 (La. 5/10/96), 673 So.2d 585, 590, cert. denied, 519 U.S. 1007, 117 S.Ct. 509, 136 L.Ed.2d 399 (1996).

|fiOn appeal, appellants contend that the trial court erred in granting judgment in defendants’ favor as the parties had agreed to settle this matter. Both Exxon and Shell agree that they had settled with many other plaintiffs, but disagree that a settlement had been reached with these specific plaintiffs, who had refused to fulfill the necessary requirements of settling.

In our review, we find that Exxon and Shell supported their motions with an affidavit from their expert health physicist, Dr. John Frazier, who attested that “no evidence of physical testing of Plaintiffs’ properties ... shows any NORM impacted dust or soil, from operations on the [Grefer Tract].’,’ We find that defendants satisfied their burden to establish that plaintiffs lacked evidence to prove them exposure to NORM attributable to defendants. The burden shifted to plaintiffs to set forth specific facts showing a genuine issue for trial exists, but plaintiffs failed to provide any support in their opposition. Accordingly, based upon our de novo review of the record, we find no error in the trial court’s grant of summary judgment in favor of defendants.

Decree

Based on the foregoing, we affirm the trial court’s grant of summary judgment in favor of defendants and dismissal of these plaintiffs’ claims.

AFFIRMED.

      . Fifty-six appellants challenging the grant of summary judgment in favor of Exxon, et al are Aaron Boyd; Dana Michelle Boyd; Robert Boyd, Jr.; Mark Anthony Johnson; Melvi-na W. Lafayette; Timothy A. Lafayette; Bert Lancaster Parker; Sean Deangelo Parker; Trenice Sharper; Trenice Sharper o/b/o Shaq-uille O'Neal Sharper; Anthony Jenkins; Lisa Henderson; Montrice R Johnson; Shirley Gray; Kim Elana Henderson (named in the Petition as “Kim Elana Houston;” Grace Ann Jenkins; Dewitt Jenkins; Demetrius Ann Parker; Robert H. Boyd, Sr.; Stephen Reuben Boyd; Mary Ann Boyd-Smothers; Edward A. Burras; Dennis Butcher; Rita Mae Cason; Willard Clover. Ill: Coy Sabree Cola; Sherle-na McClure Davis; Sierra Denae Davis; Tier-ra Janae Davis; Charles Green, Jr.; Sharon Ingrid Guyton; Mattie Harrell; Elenor Harris; Toshiba L. Jenkins; Caroline Davis Johnson; Marcel Anthony Johnson; Maya Ashley Johnson; Montinique Angelí Johnson; Harrison Dwight Lomax; Ada Tonzo Mack; Charlie Mack, Jr.; Cheryl Jeanette Mack; Delores Mack; Sidney Allen Martin; Robert Charles Osgood; Harriet Polk; Shavone* Sharper; Ada Sandra Triggs; Anitra Marie Triggs; Jac-quet Triggs; Prentiss Sylvester Washington, III; Sylvia Smith Weatherspoon; Andrew Webster, Jr.; I C. Wilson; Rita Wilson; and Susan Yotte.

      . Eighteen appellants challenging the grant of summary judgment in favor of Shell, et al are Aaron Boyd; Dana Michelle Boyd; Robert Boyd, Jr.; Mark Anthony Johnson; Melvina W. Lafayette; Timothy A. Lafayette; Bert Lancaster Parker; Sean Deangelo Parker; Trenice Sharper; Trenice Sharper o/b/o Shaq-uille O’Neal Sharper; Anthony Jenkins; Lisa Henderson; Montrice R Johnson; Shirley Gray; Kim Elana Henderson (named in the Petition as "Kim Elana Houston;” Grace Ann Jenkins; Dewitt Jenkins; and Demetrius Ann Parker.

      . Defendants named in the original petition were Exxon-Mobil Corporation; the Grefer Family; Charles Holmes; Intracoastal Tubular Services, Inc.; Alpha Technical Services, Inc.; Chevron U.S.A., Inc.; Conoco, Inc,; Homeco, Inc.; Mobil Exploration & Producing Southeast, Inc.; Phillips Oil Company; Sexton Oil & Mineral Corporation; Shell Offshore, Inc.; Shell Oil Company; Shell Western E & P; Systems Fuels, Inc.; Texaco, Inc.; and Tubular Corporation.

      . There has been substantial litigation surrounding the personal injuries suffered as a result of the environmental damage at this site. See generally, Bailey v. Exxon, 15-225 (La. App. 5 Cir. 12/23/15), 184 So.3d 191; Oleszkowicz v. Exxon Mobil Corp., 14-0256 (La. 12/9/14), 156 So.3d 645, 646; Lester v. Exxon Mobil Corp., 12-1709 (La. App. 4 Cir. 6/26/13), 120 So.3d 767, 771; Lester v. Exxon Mobil Corp., 10-743 (La. App. 5 Cir. 5/31/12), 102 So.3d 148, writ denied, 12-2202 (La. 4/19/13), 111 So.3d 1028; Grefer v. Travelers Ins. Co., 04-1428 (La. App. 5 Cir. 12/16/05), 919 So.2d 758, 761; Grefer v. Alpha Technical, 02-1237 (La. App. 4 Cir. 3/31/05), 901 So.2d 1117, writ denied, 05-1259, 925 So.2d 1248 and 05-1590 (La. 3/31/06), 925 So.2d 1248, cert. granted, vacated and remanded on other grounds, 549 U.S. 1249, 127 S.Ct. 1371, 167 L.Ed.2d 156 (2007), on remand, 02-1237 (La. App. 4 Cir. 8/8/07), 965 So.2d 511.

      . On December 29, 2016, Exxon filed its motion for summary judgment regarding claims made by fifty-six plaintiffs. On January 6, 2017, Exxon filed its motion for summary judgment with respect to claims made by plaintiff, Demetrius Ann Parker.

      . Exxon reported to the trial judge that these fifty-seven plaintiffs were.the only remaining “Dottie Adams” plaintiffs who had declined Exxon's settlement offers.

      . Those represented plaintiffs are Aaron Boyd; Dana Michelle Boyd; Robert Boyd, Jr.; Mark Anthony Johnson; Melvina W. Lafayette; Timothy A. Lafayette; Bert Lancaster Parker; Sean Deangelo Parker; Trenice Sharper; Trenice Sharper o/b/o Shaquille O’Neal Sharper; Anthony Jenkins; Lisa Henderson; Montrice R Johnson; Shirley Gray; Kim Elana Henderson (named in the Petition as “Kim Elana Houston;” Grace Ann Jenkins; Dewitt Jenkins; and Demetrius Ann Parker. That same day, the trial judge granted voluntary dismissals with respect to the twenty-two other plaintiffs that had been named in Shell’s motion for summary judgment, Those rulings are not at issue in this appeal.

      . The represented plaintiffs were Aaron Boyd; Dana Michelle Boyd; Robert Boyd, Jr.; Mark Anthony Johnson; Melvina W. Lafayette; Timothy A. Lafayette; Bert Lancaster Parker; Sean Deangelo Parker; Trenice Shaiper; Trenice Sharper o/b/o Shaquille O'Neal Sharper; Anthony Jenkins; Montrice R Johnson; Kim Elana Henderson (named in the Petition as "Kim Elana Houston;” Dewitt Jenkins; Demetrius Ann Parker; Robert H. Boyd, Sr.; Stephen Reuben Boyd; Mary Ann Boyd-Smothers; Edward A. Burras; Dennis Butcher; Rita Mae Cason; Willard Clover. III; Coy Sabree . Cola; Sherlena McClure Davis; Sierra Denae Davis; Tierra Janae Davis; Charles Green, Jr.; Sharon Ingrid Guyton; Mattie Harrell; Elenor Harris; Toshiba L. Jenkins; Caroline Davis Johnson; Marcel Anthony Johnson; Maya Ashley Johnson; Mqntinique Angelí Johnson; Harrison Dwight Lomax; Ada Tonzo Mack; Charlie Mack, Jr.; Cheryl Jeanette Mack; Delores Mack; Sidney Allen Martin; Robert Charles Osgood; Harriet Polk; Shavone Sharper; Ada Sandra Triggs; Anitra Marie Triggs; Jac-quet Triggs; Prentiss Sylvester Washington, III; Sylvia Smith Weatherspoon; Andrew ■Webster, Jr.; I C. Wilson; Rita Wilson; and Susan Yotte.

      . The pro se plaintiffs were Shirley Gray, Lisa Henderson, Blanche Jenkins, and Grace Ann Jenkins.

      . Only one of the plaintiffs, Blanche Jenkins, is not appealing the grant of Exxon's and Shell’s motions for summary judgment.

      . La. C.C.P. art. 966 was amended by 2015 Acts 422, § 2, effective January 1, 2016.


source: Caselaw Access Project

author: CHAISSON, J.

license: Public Domain

text:
    PARISH OF JEFFERSON v. HOUSING AUTHORITY OF JEFFERSON PARISH and James Lawson, Jr., Chairman of the Board of Commissioners of Housing Authority of Jefferson, and Joseph Fennidy
    NO. 17-CA-272
    Court of Appeal of Louisiana, Fifth Circuit.
    December 13, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE, PARISH OF JEFFERSON, Michael J. Power, Loren C. Marino, P. Han-lon deVerges, Jr., Brad M. Richard
    COUNSEL FOR DEFENDANT/APPELLANT, JOSEPH FENNIDY, Robert T, Garrity, Jr.
    Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and Robert A. Chaisson
   CHAISSON, J.

|t This case involves a dispute regarding the correct dates of the terms of office for the nine commissioners of the Housing Authority of Jefferson Parish (hereinafter “the Housing Authority”) and a dispute regarding who, of two individuals, is the duly appointed commissioner representing Council At-Large Division “B” (hereinafter “Seat Four”) of the Housing Authority. One of those individuals, Joseph Fen-nidy, appeals the judgment of the trial court that declared David Martinez the duly appointed commissioner for Seat Four and permanently enjoined Mr. Fen-nidy from acting as a member' of the Housing Authority, and further permanently enjoined James E. Lawson, Jr., the chairman of the Housing Authority, from seating Mr. Fennidy at meetings of the Housing Authority. For the reasons that follow, we vacate that portion of the trial court’s judgment that declared Mr. Martinez the duly appointed commissioner for Seat Four and render judgment declaring Mr. Fennidy the duly appointed commissioner for Seat Four. We further vacate that portion of .the trial court’s judgment that issued permanent injunctions against Mr. Fennidy and Mr. Lawson.

FACTS AND PROCEDURAL HISTORY

On March 13, 2013, the Jefferson Parish Council adopted, a resolution appointing Reverend James Brown, Jr. as commissioner for Seat Four of the Housing Authority. This resolution did not indicate the dates of the term of office to which Reverend Brown was appointed. Two weeks later, on March 27, 2013, the Council adopted a resolution appointing Joseph Fennidy as commissioner for the same seat to which it had appointed Reverend Brown. This resolution, like the one appointing Reverend Brown, did not indicate the dates of the term of office to which Mr. Fennidy was appointed. Furthermore, although it did indicate that Mr. |aFennidy was replacing Reverend Brown, it did not indicate the reason why Reverend Brown was being replaced after only two weeks. Reverend Brown never qualified for the office by taking the oath of office pursuant to La. R.S. 42:141(A). Mr. Fennidy took the oath of office and served as commissioner for Seat Four during the next three years, with apparently no questions having been raised as to the validity of his appointment or his authority to act as a commissioner of the Housing Authority.

On June 8, 2016, the Jefferson Parish Council adopted a resolution appointing David Martinez as commissioner for Seat Four of the Housing Authority. Like the resolutions appointing his two predecessors, this resolution did not indicate the dates of the term of office to which Mr. Martinez was appointed. Furthermore, although it did indicate that Mr. Martinez was replacing Mr. Fennidy, it did not indicate the reason why Mr. Fennidy was being replaced at that particular point in time. Subsequent to the adoption of this resolution, James E. Lawson, Jr., the chairman of the Housing Authority, noticed a meeting of the Housing Authority. Mr. Lawson, taking the position that Mr. Fennidy’s term of office had not expired, that Mr. Fennidy had not been removed from his position, and that Mr. Martinez was therefore not properly appointed, provided notice of the meeting to Mr. Fenni-dy, but failed to provide notice of the meeting to Mr. Martinez. Due to this impasse regarding the competing claims of Mr. Fennidy and Mr. Martinez as the duly appointed commissioner for Seat Four, and the apparent disagreement and confusion regarding the correct dates of the terms of office for all nine commissioners of the Housing Authority, the Parish of Jefferson (hereinafter “the Parish”) filed a Petition for Preliminary Injunction, Permanent Injunction, and Declaratory Judgment on June 28, 2016.

| sIn its petition, the Parish alleged that Mr. Fennidy was appointed to finish the unexpired term of Reverend Brown, and that the term expired on July 16, 2013. The Parish further alleged that, pursuant to La. R.S. 40:532(A), Mr. Fennidy was merely continuing to serve until his successor was duly appointed, which occurred over three years later on June 8, 2016, when the Parish appointed Mr. Martinez. After subsequent research, the Parish determined that the term of office to which Mr. Fennidy was appointed commenced on February 10, 2013, and will end on February 10, 2018. Therefore, at the trial of the Permanent Injunction and Declaratory Judgment, the Parish abandoned its position that Mr. Fennidy’s term of office had expired on July 16, 2013, as alleged in its petition. Instead, the Parish took the position that Mr. Fennidy was never validly appointed to the Housing Authority because Seat Four was not vacant at the time of Mr. Fennidy’s purported appointment, Reverend Brown having been appointed to the seat two weeks earlier. The Parish reasoned that after the appointment of Reverend Brown on March 13, 2013, the seat was occupied by Reverend Brown, and thus not vacant, and that the earliest date upon which Seat Four could have again become vacant due to Reverend Brown’s failure to take his oath of office, was April 12, 2013, which was the end of the thirty-day period that the law allows a public officer, after receipt of his commission, to qualify for his office by taking the oath of office. The Parish argues therefore that Mr. Fennidy’s appointment on March 27, 2013, was not valid because Seat Four was occupied by Reverend Brown on that date and thus was not a vacant seat available for a new appointment.

In support of its argument that Seat Four was not vacant at the time of Mr. Fennidy’s purported appointment, the Parish, over the objection of Mr. Fennidy, called attorney Rubye Noble, a Parish employee, as an expert witness “in I ¿legislative analysis inclusive of state and municipal legislation.” The trial court accepted Ms. Noble as an expert in the field of legislative analysis and allowed her to testify. Subsequent to the trial of the Permanent Injunction and Declaratory Judgment, the trial court rendered judgment that declared the correct terms of office for all nine seats of the Housing Authority, as per the stipulation of the parties; declared Mr. Martinez the duly appointed commissioner for Seat Four; and permanently enjoined Mr. Fennidy from acting as a member of the Housing Authority, and further permanently enjoined Mr. Lawson from seating Mr. Fennidy at meetings of the Housing Authority. Mr. Fennidy now appeals that portion of the judgment that declares Mr. Martinez the duly appointed commissioner for Seat Four, and further appeals the injunctions issued against him and Mr. Lawson.

In his appeal, Mr. Fennidy states his sole assignment of error as follows: “Whether the trial court abused its discretion by admitting into evidence the expert testimony of Rubye Noble, an attorney employed by the Parish of Jefferson, if her legal interpretation was based on insufficient facts and her interpretation of law' was incorrect.”

DISCUSSION

La. R.S. 40:534 provides that “[a] certificate of appointment ... shall be conclusive evidence of the proper appointment of such commissioner.” The Parish relies upon this provision to support its appointment of Mr. Martinez as the last valid appointment made to Seat Four. We agree with the trial court’s interpretation of this provision, and its analysis that the certificate of appointment being conclusive evidence of a proper appointment, does not render the certificate unassailable, but rather creates a presumption of its validity that may be rebutted | fiby an opponent of the certificate. In order to rebut the presumption of the validity of the certificate of appointment of Mr. Martinez, Mr. Fennidy produced the certificate of appointment whereby.he was .appointed to the same seat during the same term of office prior to the appointment of Mr. Martinez. The certificate of authority appointing Mr. Fennidy is entitled to the same presumption of validity, and thus the burden was on the Parish to rebut the presumption of validity of the prior certificate appointing Mr. Fennidy. The Parish argues that the .certificate of appointment of Mr. Fennidy is not valid because Seat Four was occupied by Reverend Brown on the date that the resolution appointing Mr. Fennidy was adopted, and that none of the circumstances that would create a vacancy in the seat had occurred as of that date. In order to support its argument and meet its burden, the Parish called Ms. Noble as “an expert in legislative analysis inclusive of state and municipal legislation.” The Parish specifically questioned Ms. Noble regarding interpretation of state statutes regarding how a vacancy is created by failure .of the appointee to take the oath of office and regarding how a vacancy is created by resignation of a commissioner.

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (1) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (2) the testimony is based on sufficient facts or data; (3) the testimony is the product of reliable principles and meth'ods; and (4) the expert has reliably applied the principles and methods to the facts of the case. La. C.É. art. 702. Like other evidentiary matters, fythe trial court is afforded great discretion regarding the decision to allow expert testimony, and that decision will not bé overturned on appeal absent an abuse of that discretion. Aaron v. McGowan Working Partners, 16-696 (La. App. 5 Cir. 6/15/17), 223 So.3d 714, 732. However, where an attorney is proffered to the trial court as an expert in a particular area of law, various Louisiana Courts of Appeal, - including this Circuit, have adopted a jurisprudential rule that experts may not provide opinions regarding domestic (i.e., Louisiana) law. See, Normand v. Cox Communs. La., LLC, 14-563 (La. App. 5 Cir. 12/23/14), 167 So.3d 156, 163, writ denied, 15-158 (La. 4/10/15), 163 So.3d 815; Henderson v. Ruffino, 17-158 (La. App. 5 Cir. 10/25/17), 231 So.3d 912, 2017 WL 4803795, 2017 La. App. LEXIS 2046; Crowe v. Bio-Medical in re La., LLC, 14-0917 (La. App. 1 Cir. 6/3/16), 208 So.3d 473, 482-3; UTELCOM, Inc. v. Bridges, 10-0654 (La. App. 1 Cir. 9/12/11), 77 So.3d 39, 54; Martello v. City of Ferriday, 01-1240 (La. App. 3 Cir. 3/6/02), 813 So.2d 467, 475; Boone v. Boone, 39,544 (La. App. 2 Cir. 4/6/05), 899 So.2d 823, 829. The rationale for this' rule is that the judge, being trained in the law, is the ultimate arbiter of what the law is, and that to consider other legal opinions as to an interpretation of the law would be, if not in actuality, at least in perception, an abrogation of the judge’s responsibility.

In the case before us, Mr. Fenni-dy objected to Ms. Noble’s testimony based upon the fact that Ms. Noble, an attorney, was testifying as an expert as: to her interpretation of Louisiana law, the ultimate determination of which is the function of the judge. Mr. Fennidy further objected based upon the fact that Ms. Noble,. as aJjParish. employee, had a conflict of interest in testifying on behalf of the Parish. Our review of the .record reveals that Ms. Noble did in fact testify as to her interpretation of Louisiana law 'regarding the appointment of commissioners and the circumstances which create a vacancy in the office of commissioner. We conclude that the trial court erred in allowing Ms. Noble to testify as an expert regarding her interpretation of Louisiana law. However, we further conclude that this error was harmless. We first note that this was a bench trial, not a jury trial, so there was no potential for jury confusion by having an expert opine upon her interpretation of the law, which, in a jury trial, might conflict with the instructions on the law given by the judge. Furthermore, in overruling Mr. Fennidy’s objection, the trial court acknowledged the possible perception that Ms. Noble was usurping the role of the court, but stated that she would not allow Ms. Noble to usurp the role of the court regarding the interpretation of the law. Nothing in the record, or in the trial court’s reasons for judgment, indicates that the trial court allowed Ms. Noble to usurp the :role of the court regarding its interpretation of the law.

We therefore, address the issue that is the crux of this case, that being whether the trial court’s.statutory interpretations and ultimate judgment are correct. First, we, conduct a statutory analysis of the “vacancy status” of the seat during the interim period between the Parish’s adoption of the resolution .appointing Reverend Brown and his failure to take the oath of office within thirty days. Second, we review the trial court’s factual determination that Reverend Brown , had not resigned from Seat Four prior.to the appointment of Mr. Fennidy.

I ^Failure to Take Oath of Office

The Parish contends that adoption of the council resolution on March 13, 2013, appointing Reverend Brown to Seat Four, is the only requirement needed to fill the vacancy created by the council’s removal of his immediate predecessor. The Parish further contends that the requirement that the appointee take the oath of office within thirty 'days of receipt of his commission is nót a condition precedent necessary to extinguish the vacancy, but rather is a requirement that the appointee' must comply with in order to qualify for the office, failure of which results in a new, second vacancy in the office. Therefore, the Parish argues, that on March 27, 2013, the date on which the council adopted the resolution purporting to appoint Mr. Fennidy, Seat Four was held by Reverend Brown and thus was not vacant, invalidating the purported appointment of Mr. Fennidy.

Although Mr. Fennidy focuses his argument on the effective date of his oath of office to support his position that he properly complied with all of the requirements to qualify for the office, the pertinent inquiry before the trial court on this issue was not whether Mr. Fennidy had correctly fulfilled all of the requirements to qualify for the office, but rather whether the council resolution adopted on March 13, 2013, appointing Reverend Brown, completed the appointment process for Reverend Brown such that the seat was no longer vacant as of that date, or whether the seat remained vacant until the end of the time period allowed by law for Reverend Brown to take his oath of office.

Statutory interpretation begins with the language of the statute itself. Yount v. Handshoe, 14-919 (La. App. 5 Cir. 5/28/15), 171 So.3d 381, 386. Subpart F of the Housing Authorities Law, La. R.S. 40:531, et seq., provides for the appointment of commissioners to the Housing Authority and the filling of vacancies on the Board by the appointing authority. La. R.S. 40:531(C) provides, in pertinent part, that “[i]n the parish of Jefferson,... [s]even of the commissioners | ¡¡shall be appointed as provided in this Subsection...” La. R.S. 40:533 provides, in pertinent part, that “... [vacancies shall be filled by the same authority and in the same manner as the original appointment.” And La. R.S. 40:534 provides, in pertinent part, that “[a] certificate of appointment ... shall be conclusive evidence of the proper appointment of such commissioner.” Subpart F, dealing with the appointment of commissioners and the filling of vacancies, contains no other requirements in order to complete the appointment process to fill a vacancy.

La. R.S. 42:141(A), which provides, in pertinent part, that “[ejach public officer, within thirty days after receipt of his commission ... shall take the oath of office prescribed by law ... ,” is found in a completely separate title of the Revised Statutes, Title 42 entitled “Public Officers and Employees,” in Chapter Four entitled “Qualification by Taking Oath and Giving Bond.” Although this provision imposes obligations on the appointee in order to qualify for the office, and the authority of the appointee to act in his official capacity is conditioned upon compliance with these requirements, nothing in this statute indicates that it is part of the appointment process that the appointing authority must fulfill in order to complete the appointment process. Reading La. R.S. 42:141(A) as a component of the appointment process, rather than as a separate qualification process, has the potential to create ambiguity in the statutes where none exists. Furthermore, La. R.S. 42:141(C) provides, in pertinent part, that “[f]ailure to comply with the requirements of this Section [ie., take the oath of office] shall create a vacancy in the office, and the vacancy shall be filled in accordance with law as in other cases of vacancy.” (emphasis added). If an office were considered as remaining vacant during the time period that an appointee is given within which to take his oath, then his failure to take that oath cannot create a vacancy where a vacancy already | inexists. To suggest, as Mr. Fennidy does, that the office is vacant during this thirty-day interim period could potentially lead to absurd re-suits, whereby additional individuals could be appointed to the same office during the period that the law allows the first appointee to qualify for the office by taking the oath of office.

We therefore conclude that once a certificate of appointment is issued, the office for which it is issued is no longer vacant, regardless of the fact that the law allows the appointee thirty days within which to qualify for. the office by taking the oath of office. Although the appointee has no authority to act in his official capacity until such time as he takes the oath of office, the office is nonetheless occupied by the appointee during the thirty-day interim period and is not available for a new appointment until it becomes vacant again as provided by law. In the event that the appointee fails to take the oath of office within the allowed thirty-day period, then a new, second vacancy is thereby created for the office. We find that the trial court was therefore correct in its statutory interpretations of these provisions of law, and in its conclusion that the council resolution appointing Reverend Brown filled the vacancy created by the removal of his predecessor, as of the date of the resolution.

Resignation of Reverend Brown

We next address the issue regarding the trial court’s factual conclusion that Reverend Brown had not resigned from Seat Four prior to the time of Mr. Fenni-dy’s appointment, and that Seat Four was therefore not vacant at the time of Mr. Fennidy’s appointment due to a resignation by Reverend Brown. Regarding this issue, Ms. Noble testified for the Parish that her review of the Parish’s official records did not reveal any evidence of a resignation'by Reverend Brown.

Inin, response, Mr. Fennidy called as witnesses Reverend Brown and Elton La-gasse, the Parish councilman who nominated both Reverend Brown and Mr. Fennidy for Seat Four. Reverend Brown testified that Mr. Lagasse spoke to him about the appointment, but that a day or two later, after speaking with several leaders of his church, he determined that it was not in his or his church’s best interest to accept the appointment and he therefore advised Mr. Lagasse that he “respectfully declined the offer.” Reverend Brown also testified that he was never in attendance at a council meeting at which he was appointed, that he did not recall receiving notification of his appointment, and that he “didn’t know that I was officially appointed as such” until the start of this litigation. Reverend Brown, confirmed that he never took the oath of office and that he does not recall whether he provided “a resignation” from the Housing Authority Board. Mr. Lagasse testified that he attempted to appoint Reverend Brown- to Seat Four, but that Reverend Brown, after speaking with the leaders of his church, declined the appointment. Mr. Lagasse further testified that when Reverend Brown declined the offer, he considered the seat vacant and therefore nominated Mr. Fennidy for appointment to the seat. Lastly, both Reverend Brown and Mr. Lagasse read from a Times-Picayune newspaper article, dated March 27, 2013, the same date as Mr. Fennidy’s appointment, which confirms that the appointment was offered to Reverend Brown, but that after speaking to church leaders, he declined the appointment.

The trial court, in finding, that Reverend Brown had not resigned from his appointment at the time that Mr. Fennidy was appointed, stated in reasons for judgment that “Brown was unable to establish the dates of his conversations with LaGasse,” “Brown confirmed that he never resigned from the Board,” and |12“[n]othing in the certified records of the Offieé of the Parish Clerk for the Jefferson Parish Council shows that Brown resigned ...”

Our review of the law regarding appointments to, and vacancies created on, the. Housing Authority reveals no requirements of form necessary to effectuate a resignation from the Board...We find no requirement that a resignation be in writing, or that specific language be used to effectuate a resignation, including use of the word “resignation,” or some variation thereof, or that the “resignation” be filed in the official records of the appointing authority. Therefore, although the trial court was correct that the official records of the council, as presented, contain no evidence of a resignation by Reverend Brown, we do, not find this fact to be dispositive of the question of whether Reverend Brown had resigned at the time of Mr, Fennidy’s appointment. .

Contrary to the trial court’s finding, Reverend Brown did not confirm that he never resigned from the Board; he testified that he did not recall whether he had resigned. He did, however, clearly testify that he declined the appointment, never took the oath of office, and was not aware that he had ever been formally appointed until this litigation began. Mr. La-gasse confirmed that Reverend Brown de-dined the appointment. We conclude that in order to effectuate a resignation, there must be a clear expression of the commissioner’s intention not to serve in the capacity of a commissioner, regardless of whether that intention is to terminate service that has already begun, or to decline to begin service.- The uncontradicted testimony of Reverend Brown and Mr. La-gasse confirms that Reverend Brown clearly expressed this intention to Mr. La-gasse not to serve as a commissioner.. Furthermore, although Reverend Brown was unable to establish exact dates upon which these conversations took place, the Times-Picayune article dated March 274 m 2013, containing the substance of those conversations, is irrefutable proof that the conversations took place no later than March 27, 2013, the date of Mr. Fennidy’s appointment. Additionally, it would be highly unlikely that the entire Jefferson Parish Council, or someone on their staffs, would either not recall that they had appointed Reverend Brown to the • same seat two weeks earlier, or, recalling Reverend Brown’s appointment, would nevertheless proceed -to appoint Mr. Fennidy to the same seat, unless they had been informed that Reverend Brown' was declining the appointment.

We therefore conclude that the trial court was manifestly erroneous in its finding that Reverend Brown had not resigned from the Board prior to the appointment of Mr. Fennidy. The evidence clearly establishes that Reverend Brown had expressed his intention not to serve as a commissioner prior to the appointment of Mr. Fennidy, thereby creating a vacancy in Seat Four at the time that Mr. Fennidy was appointed. Because the seat was vacant, there was no impediment to Mr. Fennidy’s appointment, and we find that he was legally appointed to Seat Four on March 27, 2013. Since Mr. Fennidy’s term had. not expired by June 8, 2016, and no circumstances existed on that date, that would have created a vacancy for Seat Four, the Parish’s purported appointment of Mr. Martinez on that date was not valid.

DECREE

For the foregoing reasons, we vacate that portion of the trial court’s judgment that declared Mr. Martinez the duly appointed commissioner for Seat Four of the Housing Authority of Jefferson Parish and render judgment declaring Mr. Fennidy the duly appointed commissioner for Seat Four, effective immediately. We further vacate .that portion of the trial court’s judgment that 114issued permanent injunctions against Mr. Fennidy and Mr. Lawson, also effective, immediately.

JUDGMENT VACATED IN PART; JUDGMENT RENDERED

      . Prior to the trial on the Petition for Declaratory Judgment and Permanent Injunction, the parties were able to research the histories of all nine seats on the Housing Authority since its inception, and thereafter stipulated to the correct dates for the terms of office for all nine commissioners. Consequently, no party has appealed that portion of the trial court’s judgment that established the correct terms of office, and that issue is not before this Court on appeal. . .

      .Although proceedings were held and a judgment rendered regarding the request for Preliminary Injunction, that portion of the litigation is not pertinent to resolution of the issues raised in this appeal, and is therefore not further discussed in this opinion.

      . La. R.S. 40:532(A) provides that "[a]ll commissioners shall ... continue to serve until their successors have been duly appointed.”

      . See La. R.S. 42:141.

      / Although not concisely stated in his assignment of error, Mr. Fennidy, in brief, argues that Ms. Noble’s legal interpretations are incorrect, and that the trial court’s adoption of those legal interpretations led the trial court to the erroneous conclusion that Mr. Martinez is the duly appointed commissioner for Seat Four. Further, in his prayer for relief, Mr. Fennidy prays that the judgment against him be reversed and all injunctions against him be removed. Therefore, in the interest of justice, we will address the issue that is the crux of this case, which is whether the trial court’s statutory interpretations and ultimate judgment are correct.

      . To find otherwise would render the statutory provisions providing for the method of removal of a commissioner meaningless, inasmuch as, if the certificates of appointment are unassailable, the Parish could at any time during a commissioner’s term merely adopt a new resolution appointing a different individual to the commissioner’s seat, with the re? moved commissioner having no legal recourse.

      . There are other circumstances by which a vacancy may be created in the office of commissioner {i.e„ the expiration of the commissioner's term of office without the appointment of a successor commissioner; the death of the commissioner; the moye of the commissioner out of the housing authority's area of operation; the convictipn of the commissioner of a felony; and the appointing authority’s removal of the commissioner for cause). None of these circumstances are applicable to this case.

      . We acknowledge that there are reported Louisiana appellate decisions indicating that attorneys have been allowed to testify as experts regarding a particular area of Louisiana law; - however, in each of those cases, the attorney testifying as an expert witness regarding Louisiana law was not raised as an issue on appeal, and those opinions therefore contain no discussion of the propriety of the attorney being allowed to so testify. See generally, Successions of Powell, 10-480 (La. App. 5 Cir. 3/29/11), 64 So.3d 267; First National Bank of Lake Charles v. Austin, et al., 00-385 (La. App. 3 Cir. 10/11/00), 771 So.2d 788; In re Succession of Manheim, 98-2051 (La. App. 4 Cir. 4/21/99), 734 So.2d 119; Nelson v. Nelson, 09-479 (La. App. 5 Cir. 12/29/09), 30 So.3d 870.

      . Due to our finding that it was legal error for the trial court to allow Ms. Noble to testify as an expert regarding her opinions as to Louisiana law, we need not opine upon the' objection raised as to Ms. Noble:s potential bias as an employee of the Parish.

      . The allowance of attorney expert testimony "is generally harmless error in a judge trial.” La. Bd. Of Ethics v. Holden, 12-1127 (La. App. 1 Cir. 6/25/13), 121 So.3d 113, 116; La. State Bar Ass'n v. Carr & Assocs., Inc., 2008-2114 (La. App. 1 Cir. 5/8/09), 15 So.3d 158, 171; Succession of Allison, 31,495 (La. App. 2 Cir. 1/29/99), 727 So.2d 683, 684.

      .Although we do not suggest that an examination of the correctness of the expert's opinion is necessary .in order to conduct a “harmless error” analysis, we. note that in this particular case, we do not agree, with Mr. Fennidy’s assessment that Ms. Noble’s statutory interpretations of the pertinent statutes are erroneous.

      . All parties agree that Seat Four is one of the seven seats that is appointed by the Jefferson Parish Council.

      . We note that, had the Legislature intended the office to remain vacant during the interim period that the appointee is given to take his oath, it presumably would have provided that the failure to take the oath would result in a continuation of the existing vacancy.

      . Although counsel for Mr. Fennidy neglected to introduce the newspaper article as an exhibit, there was neither an objection to Reverend Brown or Mr. Lagasse reading from the article, nor an objection that their testimony regarding the content of the article, or the date of the article, was not an accurate reflection of the article's content and date.

      . We acknowledge that the better practice, for all parties involved, would be to require that a resignation be in writing and filed into the official records; however, we find that the current law does not mandate siich formalities.

      . The standard of review for findings of fact is manifest error. In re Succession of Gore, 17-68 (La. App. 5 Cir. 5/31/17), 223 So.3d 628, 632.


text:
    STATE of Louisiana v. Willie J. ELLISON, Jr.
    NO. 17-KA-319
    Court of Appeal of Louisiana, Fifth Circuit.
    December 13, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux, Andrea F. Long
    COUNSEL FOR DEFENDANT/APPELLANT, WILLIE J. ELLISON, JR., Kevin V. Boshea
    Panel composed of Judges Susan M. Chehardy, Robert A. Chaisson, and Hans J. Liljeberg
   CHEHARDY, C.J.

| T Defendant Willie J. Ellison, Jr. appeals his multiple offender sentence of fifty years imprisonment at hard labor as' a fourth felony offender. For the reasons that follow, we affirm defendant’s sentence and remand the matter for correction of the Uniform Commitment Order.

This is defendant’s fifth appeal and this Court’s third opinion in this case. This matter has returned twice to the district court for resentencing and defendant has been sentenced five times on the underlying conviction that forms the. basis of these several appeals. This tortuous history belies the simplicity of the matter at issue: the imposition of a multiple offender sentence in accordance with a plea agreement. Below we reprise the history of this case.

PROCEDURAL HISTORY

On October 31, 2007, the Jefferson Parish District Attorney filed a bill of information charging defendant with possession with intent to distribute heroin, a violation of La. R.S. 40:966(A) (count one), and possession with intent to distribute cocaine, a violation of La. R.S. 40:967(A) (count two), On August 23, 2010, defendant pled guilty as charged, and sentencing was set for September 22, 2010. At the time of his guilty plea, defendant was advised that if he reported to the home incarceration office and then appeared for sentencing on September 22, he would receive two concurrent fifteen-year sentences as a second felony offender. He was further advised that if he failed to report to the home incarceration office and failed to appear for sentencing on September 22, he would be multiple billed as a fourth felony offender and would be facing a sentence of fifty years to life imprisonment. Defendant verbally indicated that he understood Rthese conditions and his waiver of rights form reflected the same.

Despite these warnings, defendant failed to report to the home incarceration,-office and failed to appear for sentencing on September 22. He later appeared in court on September 28, 2010, where he filed a motion to withdraw his guilty pleas, which the court denied that day. In accordance with the court’s prior warning, defendant was sentenced to fifty years imprisonment: thirty years on count one and twenty years on count two,-to be served consecutively. Also that day, the State filed a multiple offender bill of information alleging defendant to be a fourth felony offender, but later withdrew it.

More than a month later, on October 29, 2010, defendant filed a motion to reconsider-sentence and a motion for appeal. Defendant’s motion for appeal was granted and his appeal was lodged in this Court under Case No. ll-KA-377, but was later removed from the docket and remanded to the district court for consideration as an out-of-time appeal. On remand, defendant’s motion for an out-of-time appéal was granted.

Back before this Court on appéal, defendant argued that the district court erred by denying his motion to withdraw his guilty pleas. This Court found no merit to this argument, but did find that the district court had erred in failing to sentence defendant in conformity with his plea agreement, since his fifty-year sentence was the result of two consecutive underlying sentences and not the result of adjudication as a fourth felony offender. State v. Ellison, 12-910 (La. App. 5 Cir. 6/27/13), 121 So.3d 139, 146, writ denied, 13-1829 (La. 2/14/14), 132 So.3d 411. Accordingly, this Court affirmed defendant’s convictions, but vacated his sentences and remanded the matter. Id.

On. remand on October 16, 2013, the district court resentenced defendant to imprisonment for fifteen years at hard labor on each of the two counts, to be served concurrently. Thereafter, on October 22, 2013, the State filed a multiple offender | cjbill of information alleging defendant to be a fourth felony offender. On May 22, 2014, the court adjudicated defendant a fourth felony offender, vacated his original sentence on count one, and resentenced defendant to thirty years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence, to be served concurrently with his fifteen-year sentence on count two.'

Defendant appealed, challenging his multiple offender adjudication and enhanced sentence. State v. Ellison, 14-790 (La. App. 5 Cir. 2/25/15), 168 So.3d 862. This Court determined that one of defendant’s predicate convictions had erroneously been used to adjudicate defendant a fourth felony offender because the plea colloquy of that conviction established that he was not advised of, nor waived, his right against self-incrimination. Id. at 868-69. Accordingly, this Court vacated defendant’s adjudication as a fourth felony offender,. rendered judgment ■ adjudicating defendant a third felony offender, and remanded the matter for resentencing. Id. at 869. On count two, finding in an errors patent review that the district court had improperly restricted sentence benefits, this Court amended defendant’s .sentence on count two and affirmed that sentence as amended. Id. at 870.

Both defendant and the State sought writs of certiorari. The Louisiana Supreme Court declined review of defendant’s writ, State v. Ellison, 15-559 (La. App. 5 Cir. 1/25/16), 184 So.3d 1288, but granted the State’s and found that this Court had erred in vacating defendant’s adjudication as a fourth felony offender. State v. Ellison, 15-612 (La. 1/25/16), 186 So.3d 634. The supreme court reversed this Court’s ruling and reinstated defendant’s fourth felony offender adjudication. Id. The court did not, however, reinstate defendant’s thirty-year enhanced sentence, agreeing with the State that it was illegally lenient. Id. As a result, the matter was remanded to the district court for resentencing on defendant’s fourth- felony offender adjudication. Id.

|40n remand on February 25, 2016, the district court sentenced defendant as a fourth felony offender on count one to twenty years imprisonment at hard labor without benefit of probation or suspension of sentence, to be served concurrently with his sentence on count two. Defendant filed a motion to reconsider sentence and a motion for appeal on February 29, 2016. The district court granted defendant’s motion for appeal and issued a rule to show cause on his motion to reconsider. On March 18, 2016, the State filed a motion to reconsider and/or correct illegally lenient .sentence. The court referred the State’s motion to the rule to show cause hearing.

The matter was continued over the next several months, during which time, on September 30, 2016, defendant filed a motion in this Court seeking to dismiss his appeal on the grounds that-he and the State were engaged in negotiations. This Court dismissed defendant’s appeal under Case No. 16-KA-280 on October 4, 2016.

Finally, on March 10, 2017, the district court held the heariiig on defendant’s motion to reconsider and on the State’s motion to reconsider and/or correct illegally lenient sentence. Defendant withdrew his motion to reconsider. Without issuing a ruling on the State’s motion and without vacating defendant’s twenty-year enhanced sentence on count one, the court1 sentenced defendant as a fourth felony offender to fifty years at hard labor without benefit of probation or suspension of sen-fence, to be served concurrently with his sentence on count two. Then, apparently acting in an abundance of - caution, but without vacating defendant’s- sentence on count two, the court sentenced defendant on count two to | ¿fifteen years at hard labor to be served concurrently with his sentence on count one.

Defense counsel orally moved to repon-sider defendant’s fifty-year enhanced sentence on count one and orally moved for an appeal. A written motion for appeal followed on March 31, 2017, which the court granted on April 4, 2017. Defendant’s written motion to reconsider followed on April 10, 2017. On April 26, 2017, defendant filed a motion to correct illegal sentence as to his enhanced sentence on count one. These motions were heard and denied on May 25, 2017. Defendant has appealed the denials of these motions.

ASSIGNMENTS OF ERROR

On appeal, defendant assigns two errors: (1) the district court- erred in its denial of his motion to reconsider sentence; and (2) the district court erred in its denial of his motion to -correct illegal sentence.

PRELIMINARY ISSUE

Before addressing defendant’s assignments of error, we first consider the effect of the district court’s failure to vacate defendant’s previous sentences before resentencing him on March 10,2017.

Generally, in cases where a trial court fails to vacate a defendant’s original sentence before imposing an enhanced sentence pursuant to a multiple, bill, this Court has considered the original sentence to be still in effect, vacated the enhanced sentence as null and void, and remanded for resentencing with the instruction to vacate the original sentence before imposing the enhanced sentence. See State v. Wise, 13-247 (La. App. 5 Cir. 11/19/13), 128 So.3d 1220, 1224, writ denied, 14-253 (La. 9/12/14), 147 So.3d 703; State v. Netter, 11-202 (La. App. 5 Cir. 11/29/11), 79 So.3d 478, 484, writ denied, 12-32 (La. 8/22/12), 97 So.3d 357.

| (¡However, in a case where the commitment/minute entry reflected that the trial court had vacated an original sentence before imposing an enhanced sentence and the transcript did not, on certiorari review the Louisiana Supreme Court did not follow “the transcript prevails” directive of Lynch and found the enhanced sentence valid. See State v. Mayer, 99-3124 (La. 3/31/00), 760 So.2d 309. The court explained:

To the extent that the... commitment/minute entry reflects that the trial judge vacated the defendant’s original sentence and thereby eliminated any possible confusion as to the terms of the defendant’s confinement, the failure of the transcript of the multiple offender hearing to show that the court did so before sentencing the defendant as a multiple offender did not affect the substantial rights of the defendant.

Id. at 310; see also State v. Stewart, 10-389 (La. App. 5 Cir. 5/10/11), 65 So.3d 771, 783 (citing Mayer, supra).

In the present case, unlike the foregoing, the issue is not the district court’s failure to vacate an original sentence before imposing an enhanced sentence, but, as to count one, the court’s failure to vacate a previous enhanced sentence before imposing a more severe enhanced sentence, and, as to count two, the court’s failure to vacate a previous original sentence before imposing the same sentence again.

Although the present case is procedurally distinguishable from Mayer, we find the rationale in Mayer equally applicable here. Because the March 10, 2017 commitment/minute entry reflects that the district court vacated defendant’s twenty-year enhanced sentence on count one before imposing the fifty-year enhanced sentence, like Mayer, we find there is no possible confusion as to the terms of defendant’s confinement on count one. And as to count two, although neither the March 10, 2017 commitment/minute entry nor the transcript reflects that the court vacated defendant’s sentence on count two before resentencing him, |7because the court reimposed the same sentence, we similarly find there is no possible confusion as to the terms of defendant’s confinement on count two.

It is clear that defendant’s sentence on count one is fifty years imprisonment at hard labor without benefit of probation or suspension of sentence and defendant’s sentence on count two is fifteen years imprisonment at hard labor, of which the first two years are without benefit of probation, parole, or suspension of sentence. We now consider defendant’s assignments of error.

DISCUSSION

Although defendant assigns as error the district court’s denials of his motion to reconsider sentence and his motion to correct illegal sentence, his brief presents one argument that his fifty-year sentence is excessive because it was imposed as retribution for exercising his right to appeal.

In a motion to correct an illegal sentence, a defendant may only raise claims relating to the legality of the sentence itself under the applicable sentencing statutes. See State v. Parker, 98-256 (La. 5/08/98), 711 So.2d 694, 695. When a defendant fails to point to a claimed illegal term in his sentence, he does not raise a claim cognizable in a motion to correct an illegal sentence. See id.

In defendant’s April 26, 2017 motion to correct illegal sentence, he argued that his enhanced sentence of fifty years on count one was excessive because it was imposed as retribution for exercising his right to appeal. This argument fails to point to a claimed illegal term in defendant’s sentence under the applicable sentencing statutes and is therefore not cognizable in a motion to correct an illegal sentence. In any event, as the following demonstrates, defendant’s fifty-year sentence on count one is legal under the applicable sentencing statutes.

IsDefendant was adjudicated a fourth felony offender on the basis of his conviction for possession with intent to distribute heroin. At the time of that offense (October 19, 2007), La. R.S. 40:966 carried a penalty of imprisonment for not less than five nor more than fifty years at hard labor at least five years of which shall be served without benefit of probation or suspension of sentence. And as a fourth felony offender, La. R.S. 15:529.1 carried a penalty of not less than fifty years at. hard labor without the benefit of probation or suspension of sentence. Defendant’s enhanced sentence on count one of fifty years at hard labor without benefit of probation or suspension of sentence complies with the applicable sentencing statutes. This argument is without merit.

In defendant’s April 10, 2017 motion to reconsider sentence, he moved the district court to reconsider his sentence pursuant to La. C.Cr.P. art. 881.1 due to its “excessive and harsh nature.” In his brief on appeal, defendant argues that his fifty-year sentence is excessive because it was imposed as retribution for exercising his right to appeal.

Where a defendant’s motion to reconsider sentence alleges mere excessiveness, the reviewing court is limited to a review of whether the sentence is constitutionally excessive. La. C.Cr.P. art. 881.1; State v. Mims, 619 So.2d 1059 (La. 1993). However, when the sentence imposed is the product of a plea agreement, a defendant is precluded from raising a claim of exces-siveness on appeal. State v. Cross, 06-866 (La. App. 5 Cir. 4/11/07), 958 So.2d 28, 30. Under La. C.Cr.P. art. 881.2(A)(2), “[a] defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea.”

|9For example, in State v. Roche, 09-684 (La. App. 5 Cir. 3/23/10), 39 So.3d 706, 707, writ denied, 10-930 (La. 11/19/10), 49 So.3d 396, the defendant pled guilty to distribution of cocaine and was warned in open court that if he failed to appear for sentencing he would not receive the agreed-upon ten-year sentence with a-boot camp recommendation, but would face a possible maximum sentence of up to sixty-five years and additionally could be multiple billed by the State. The defendant indicated he understood, but he failed to appear for sentencing. Id. at 708. As a result, he was sentenced to thirty years at hard labor. Id. On appeal, he argued this sentence was excessive, but -this Court found the defendant was precluded from challenging the excessiveness of his sentence on appeal because his sentence was imposed in conformity with a plea agreement that was set forth in the record at the time of the plea. Id. at 709. This Court noted that the “[d]e-fendant was clearly informed of the two possible sentences, which were dictated by his actions, when he entered his plea.” Id.

The present .case is similar. Defendant pled guilty as charged and was advised that he would receive two concurrent fifteen-year sentences as a sécond felony offender if he complied with tKe terms of home incarceration and appeared for sentencing. He was also warned that if he did not comply with the terms of home incarceration and not appear for sentencing, he would be multiple billed'as a fourth felony offender and would facé a sentencing range of fifty years to life imprisonment. Defendant indicated that he understood and agreed to these conditions.

But defendant failed to appear and, as promised, was sentenced to a term of fifty years (consecutive sentences of thirty and twenty years on counts one and two, respectively). However, because those sentences were inconsistent with the plea agreement in that the fifty years did not result from a fourth felony offender adjudication, this Court vacated the sentences and remanded the matter. State v. 10Ellison, 12-910 (La. App. 5 Cir. 6/27/13), 121 So.3d 139, 146, writ denied, 13-1829 (La. 2/14/14), 132 So.3d 411. On remand, as promised, defendant was multiple billed and adjudicated a fourth felony offender on count one, Thereafter, defendant received two illegally lenient enhanced sentences on count one before his plea agreement was eventually satisfied when he was sentenced to fifty years at hard labor as a fourth felony offender on March 10, 2017. Because defendant’s enhanced sentence on count one was imposed in conformity with his plea agreement; he cannot now challenge it as excessive on appeal,

Defendant’s assignments of. error are without merit.

ERRORS PATENT REVIEW

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

The Uniform Commitment Order incorrectly reflects the adjudication . date for count one as September 28, 2010. Accordingly, this matter is remanded to the district court to amend the Uniform Commitment Order to reflect the correct adjudication date on count one as the date of defendant’s guilty pleas, August 23, 2010. The Clerk of Court for the 24th Judicial District Court is ordered to transmit the original of the amended Uniform Commitment Order to. the officer in charge of the institution to which defendant has been sentenced and to the Department of Corrections’ Legal Department. See State v. Long, 12-184 (La. App. 5 Cir. 12/11/12), 106 So.3d 1136, 1142.

DECREE

For the foregoing reasons, defendant’s sentences are affirmed and the matter is remanded for correction of the Uniform Commitment Order..

SENTENCES AFFIRMED; REMANDED

      . See State v. Ellison, 12-910 (La. App. 5 Cir. 6/27/13), 121 So.3d 139, writ denied, 13-1829 (La. 2/14/14), 132 So.3d 411; State v. Ellison, 14-790 (La. App. 5 Cir. 2/25/15), 168 So.3d 862, writ denied, 15-559 (La. 1/25/16), 184 So.3d 1288, writ granted, rev'd in part, 15-612 (La. 1/25/16), 186 So.3d 634.

      . Defendant was sentenced on September 28, 2010, October 16, 2013, May 22, 2014, February 25, 2016, and March 10, 2017.

      . While the transcript does not reflect that the court vacated defendant's enhanced sentence on count one before resentencing defendant, the March 10, 2017 commitment/minute entry does.

      . Neither the transcript nor the March 10, 2017 commitment/minute entry reflects that the court, vacated defendant’s sentence on .count two before resentencing defendant.

      . See State v. Lynch, 441 So.2d 732, 734 (La. 1983) (holding that when there is a discrepancy between the minutes and the transcript, the transcript must prevail).

      . Although on March 10, 2017 the district court failed to specify that the first two years of defendant’s sentence on count two are to be served without benefit of probation, parole, or suspension of sentence in accordance with La. R.S. 40:967(B), this restriction of benefits is imposed by operation of law pursuant to La. R.S. 15:301.1(A). See State v. Williams, 00-1725 (La. 11/28/01), 800 So.2d 790, 798-99.

      . A defendant should be sentenced in accordance with the version of La. R.S. 15:529.1 in effect at the time of the commission of the charged offense. State v. Parker, 03-924 (La. 04/14/04), 871 So.2d 317, 326.