author: Judge Tiffany G. Chase

text:
    Jeremy VILLAVASSO v. James P. FARWELL and Chubb Group of Insurance Companies
    NO. 2017-CA-0993
    Court of Appeal of Louisiana, First Circuit.
    MAY 2, 2018
    Eugene P. Redmann, Law Office of Eugene P. Redmann, L.L.C., 2632 Athania Parkway, Metairie, LA 70002, James A. Harry, ATTORNEY AT LAW, 27830 Church of God Road, Springfield, LA 70462, COUNSEL FOR PLAINTIFF/APPELLANT
    Joseph Maselli, Jr., Scott H. Mason, PLAUCHE MASELLI & PARKERSON L.L.P, 701 Poydras Street, Suite 3800, New Orleans, LA 70139-7915, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Judge Terri F. Love, Judge Joy Cossich Lobrano, Judge Tiffany G. Chase )
   Judge Tiffany G. Chase

The Appellant, Jeremy Villavasso (hereinafter "Mr. Villavasso") brought suit against James Farwell (hereinafter "Mr. Farwell") and his insurer, Great Northern Insurance Company to recover for his personal injuries arising from a rear-end collision between the parties. Following a bench trial in First City Court for the Parish of New Orleans, the trial court ruled in favor of Mr. Farwell, dismissing Mr. Villavasso's petition for damages with prejudice. This appeal followed, with Mr. Villavasso asserting ten assignments of error. After a thorough review of the record and finding that the trial court's ruling was not manifestly erroneous, we affirm the trial court.

FACTS

The facts of this July 8, 2015 accident are undisputed. Mr. Villavasso was rear-ended by Mr. Farwell near the intersection of Magazine Street and Jefferson Avenue in New Orleans. Just prior to the accident, a police officer was directing traffic at the intersection, allowing each lane of traffic to alternate every few minutes. Mr. Farwell was stopped behind Mr. Villavasso when Mr. Farwell's foot left the brake. Mr. Farwell's vehicle rolled into the back of Mr. Villavasso's vehicle. It is disputed as to whether Mr. Farwell made contact with Mr. Villavasso's vehicle once or hit it twice. No one disputes that Mr. Farwell was traveling less than five miles per hour when the accident occurred. After the accident, each party exited their vehicle and determined there was no property damage. At the accident scene, Mr. Villavasso indicated to Mr. Farwell and a police officer that he was not injured. Mr. Villavasso concedes that he did not experience any pain immediately after the accident. Within ten minutes of leaving the accident scene, Mr. Farwell received a call from an attorney representing Mr. Villavasso, notifying him that Mr. Villavasso intended to make a claim.

On August 23, 2015, six weeks after the July 8, 2015 accident, Mr. Villavasso was "T-boned" by another vehicle on Earhart Boulevard after another vehicle ran a red light. The parties agreed that the August accident was far more serious than the July accident. Mr. Villavasso alleges that he injured his neck and back in the August accident and sought treatment.

Mr. Villavasso filed suit, seeking to recover damages for four months of treatment for injuries to his back which he maintains he incurred as a result of the July accident. He began treatment in July 2015 but treated concurrently with the same doctor for both the July 2015 and August 2015 accidents. Mr. Villavasso was discharged from treatment for both accidents on November 19, 2015.

This matter proceeded to a one day bench trial on July 13, 2017. The parties stipulated that the vehicles made contact, with Mr. Farwell rear-ending Mr. Villavasso. At trial, Mr. Villavasso confirmed that he called his attorney immediately following the accident, before experiencing pain or seeing a doctor. During cross-examination, the defense attorney questioned Mr. Villavasso about approximately six prior accidents in which he successfully made claims. The record reflects that Mr. Villavasso admitted to making accident claims in September 2011; February 13, 2012; February 9, 2014; July 10, 2014; July 30, 2014; and then more recently on April 1, 2016. Mr. Villavasso testified that he injured his back in each of these accidents, including the July 8, 2015 accident. For many of these claims, Mr. Villavasso's attorney referred him to Dr. Gloria Kang of Health Care Center.

Mr. Villavasso's credibility was an issue at trial. Initially, he testified in his deposition, and at trial, that he voluntarily left his position at Capital One Bank. After being questioned, Mr. Villavasso admitted he was actually fired from Capital One Bank. Tyeshia Scott Boyd, Mr. Villavasso's former supervisor at Capital One Bank, testified at trial to contradict Mr. Villavasso's testimony. Ms. Boyd explained that Mr. Villavasso was fired because of frequent shortages in his register. At the conclusion of trial, the trial court took the matter under advisement. The trial court issued a judgment on July 18, 2017, in favor of Mr. Farwell and against Mr. Villavasso, along with extensive and well-reasoned reasons for judgment. The trial court dismissed all of Mr. Villavasso's claims with prejudice, noting a lack of objective evidence in the record to establish that he suffered damages as a result of this accident.

DISCUSSION

Mr. Villavasso asserts ten assignments of error on appeal; however, we find the sole issue before this Court is whether the trial court erred in determining that Mr. Villavasso failed to meet his burden of proof that the injuries to his back were a direct result of the July 8, 2015 accident, i.e. , did the plaintiff prove medical causation?

A trial court's finding of fact will not be set aside unless it is clearly wrong or manifestly erroneous. Rosell v. ESCO , 549 So.2d 840, 844 (La. 1989). Great deference is afforded to the trier of fact's finding regarding credibility determinations, "for only the fact-finder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said." Id.

In a personal injury suit, plaintiff bears the burden of proving a causal relationship between the injury sustained and the accident which caused the injury. American Motorist Insurance Co. v. American Rent-All, Inc., 579 So.2d 429 (La.1991) ; Aucoin v. State Farm Mut. Auto. Ins. Co., 505 So.2d 993 (La.App. 3d Cir.1987) ; Richard v. Walgreen's Louisiana Co., 476 So.2d 1150 (La.App. 3d Cir.1985). Plaintiff must prove causation by a preponderance of the evidence. Morris v. Orleans Parish School Bd., 553 So.2d 427 (La.1989). The test for determining the causal relationship between the accident and subsequent injury is whether the plaintiff proved through medical testimony that it is more probable than not that the subsequent injuries were caused by the accident. Mart v. Hill, 505 So.2d 1120 (La.1987) ; Villavaso v. State Farm Mut. Auto. Ins. Co., 424 So.2d 536 (La.App. 4th Cir.1982). Maranto v. Goodyear Tire & Rubber Co. , 1994-2603, p.9 (La. 2/20/95), 650 So.2d 757, 759.

Maranto v. Goodyear Tire & Rubber Co. , 1994-2603, p.9 (La. 2/20/95), 650 So.2d 757, 759. As such, this Court must look at the objective medical evidence presented by Mr. Villavasso, along with the testimony presented at trial to determine whether the trial court committed manifest error in determining that Mr. Villavasso failed to prove medical causation, Urquhart v. Spencer , 2017-0069, p.12 (La.App. 4 Cir. 7/27/17), 224 So.3d 1022, 1031.

In the reasons for judgment, the trial court noted the lack of medical testimony offered to distinguish Mr. Villavasso's other injuries from the July 8, 2015 accident and his other back injuries, concluding that there was a lack of objective evidence in the record to establish he suffered damages as a result of the July accident. The trial court also determined that Mr. Villavasso's testimony, along with his reports of pain to Dr. Kang related to this accident, was not wholly credible, due to his lack of candor in other areas. These conclusions are well supported in the record before this Court. The key factors in the trial court's ruling related to the medical evidence and Mr. Villavasso's credibility.

Medical Evidence

In the trial court's reasons for judgment, the court indicated that Mr. Villavasso failed to meet his burden of proof to show that his back injury was caused by Mr. Farwell in the July 8, 2015 accident. The trial court specifically noted the lack of medical testimony offered to distinguish the injuries in this matter from his other back injuries. As such, the trial court found that Mr. Villavasso could not differentiate his injuries or prove that they were not the result of the accident that occurred on August 23, 2015, noting the accidents and injuries seemed to be concurrent. The trial court held that there was simply a lack of objective evidence.

At trial, medical records from Dr. Kang of Health Care Center were submitted as evidence by Mr. Villavasso, but no medical expert testimony was presented at trial. The medical records consisted of subjective complaints by Mr. Villavasso to Dr. Kang. Further, testimony revealed that Mr. Villavasso was involved in a more serious accident approximately six weeks after the July 8, 2015 accident. He underwent treatment for the July 2015 and August 2015 car accidents concurrently with Dr. Kang, beginning his treatment on July 13, 2015. A letter dated November 20, 2015, submitted into evidence from Dr. Kang, indicated Mr. Villavasso's symptoms from both the July 8 and August 23, 2015 accidents were resolved and she discharged him from her care on November 19, 2015, the date of his last visit. The medical records make no clear distinction between the treatment and injuries of the July 8, 2015 nor the August 23, 2015 accident.

Mr. Villavasso submits that his testimony and medical records were sufficient to establish causation. We disagree. Mr. Villavasso initially indicated he was not injured following the accident, but later sought treatment. On direct examination, Mr. Villavasso alleged that he injured his back on July 8, 2015 and again on August 23, 2015, but failed to elaborate further. In fact, Mr. Villavasso testified that he injured his back in every single car accident he was involved in prior to July 8, 2015. Mr. Villavasso alleged his back was also injured in the August 23, 2015 and April 1, 2016 accidents subsequent to the July 8, 2015 accident. He indicated, in his testimony, that his back pain would vacillate, feeling better some days and sometimes feeling worse, both prior to and following the July 8, 2015 accident. He also acknowledged that his back pain following this accident did not occur until several days later and admitted he could not connect this pain directly with the July 8, 2015 accident, as opposed to his prior accidents. Mr. Villavasso admitted the August 23, 2015 accident was far more serious, agreeing he injured both his neck and back as a result of it, but acknowledged the neck injury was solely attributable to the August 23, 2015 accident. Mr. Villavasso testified that all his symptoms from the accidents prior to July 8, 2015 had resolved but no objective medical records evidence was offered to demonstrate those injuries were fully healed prior to this accident. He admitted the trial court would need to believe his testimony that this particular accident caused new back pain to develop, which was different from the pain he suffered in the prior and subsequent accidents. However, he offered no additional testimony regarding his back pain. Further, the medical records presented consisted of subjective reports of pain to Dr. Kang, which she relied upon in prescribing treatment.

Illustrating the facts and evidence necessary to establish causation can be found in our decision in Urquhart v. Spencer, 224 So.3d 1022. In Urquhart , two plaintiffs were involved in a car accident. The plaintiffs submitted objective medical evidence and extensive testimony which established causation between the injury and subsequent treatment. Similar to the case sub judice , both plaintiffs in Urquhart suffered from various pre-existing conditions. Id. at 1026-27. However, unlike the case sub judice, the plaintiffs in Urquhart testified extensively regarding their previous injuries; when they healed from those previous injuries, including activities they resumed once they healed (prior to the car accident that was the subject of the litigation); and the limitations suffered as a result of the car accident. The Urquhart plaintiffs submitted testimony of family members regarding the change in activity level and abilities following the car accident. In fact, one plaintiff provided expert medical testimony establishing causation, i.e., linking the need for the plaintiffs back surgery to the car accident subject to the litigation. Id. at 1026-27. In stark contrast to the evidence presented in Urquhart , Mr. Villavasso offered inadequate evidence establishing the July 8, 2015 accident caused his subsequent need for medical treatment.

In the case sub judice , the trial court found insufficient evidence presented that Mr. Villavasso's injuries were caused by the negligence of Mr. Farwell. As noted above, Mr. Villavasso offered limited medical evidence, had no medical expert or treating physician testimony and did not distinguish his injuries from the numerous automobile accidents he was involved in prior to, and after, the accident at issue. Therefore, we find the trial court's conclusion that Mr. Villavasso had not met his burden reasonable.

Credibility of Mr. Villavasso

In the trial court's reasons for judgment, it highlighted Mr. Villavasso's litigious nature together with his lack for truthfulness. False testimony is always a relevant credibility factor. Turner v. Cleveland Tr. Co. , 1995-2488, p.20 (La.App. 4 Cir. 5/22/96), 686 So.2d 871, 879-80, writ denied , 96-1531 (La. 9/27/96), 679 So.2d 1350.

The only evidence supporting Mr. Villavasso's claim for damages was his testimony, along with medical records submitted from Dr. Kang's office, which consisted of his subjective report of pain to Dr. Kang for treatment. Thus, Mr. Villavasso's credibility was paramount to the litigation. The trial court noted, and the record reflects, that Mr. Villavasso was admittedly less than truthful in his testimony regarding his termination from his former employer, an issue wholly unrelated to his claim for damages. When asked about his employment at Capital One Bank, Mr. Villavasso testified that he left voluntarily. After being repeatedly asked this question and being reminded that lack of candor on the stand was a serious offense, Mr. Villavasso finally admitted that he was fired. Ms. Boyd, his former supervisor, confirmed at trial that Mr. Villvasso was fired after being repeatedly warned about drawer shortages. This lack of candor was of major concern since the treatment Dr. Kang prescribed was based solely on the medical history provided by Mr. Villavasso. At trial, Mr. Farwell's counsel impeached Mr. Villavasso, pointing out he provided false testimony in his deposition and at court, bringing his credibility into question regarding his subjective complaints of back pain.

Mr. Villavasso's lack of candor during his testimony, coupled with inconsistent statements regarding his injuries, affected the trial court's findings regarding his credibility. The plaintiff's credibility, especially as to causation, was of great importance in this case, as it was in Turner v. Cleveland Tr. Co. Id. In Turner , this Court found that the plaintiff's credibility problems coupled with the lack of objective medical evidence resulted in the plaintiff's failure to demonstrate a causal connection between her fall and the injuries she sustained. Id. This Court found the trial court properly dismissed most of Turner's claims for subsequent injuries because she failed to link those injuries to her fall instead of her subsequent car accident. Id. at 879-80. Similarly, the plaintiff in Turner suffered additional injury in a car accident which occurred after her initial fall and treatment with a chiropractor. Id. at 874. While the plaintiff in Turner reported the fall to her neurosurgeon, she failed to tell him about the car accident she suffered after the fall, but prior to seeking treatment from him. Id. at 876. Due to this lack of candor, the trial court declined to accept her neurosurgeon's assessment regarding the causation of her injuries, which this Court upheld. Id. at 879. Most significantly, in Turner, the neurosurgeon admitted that "his determination of [medical] causation depends largely on the patient's credibility and what the patient relates to him." Id. In Turner, the plaintiff had the burden of establishing causation but failed to do so, as Mr. Villavasso has likewise failed to do so, by submitting medical evidence which relies largely on his subjective complaints of pain and hinges on his credibility. Id. at 879.

Mr. Farwell testified at trial that his vehicle rolled into the back of Mr. Villavasso's vehicle when he let his foot off the brake. He conclusively stated that he was traveling at less than five miles per hour. Mr. Farwell's testimony was that he made contact with Mr. Villavasso's vehicle only once, while Mr. Vilavasso maintained that his vehicle was impacted twice. The record reflects that the accident involved minimal impact and resulted in no property damage. Immediately after the accident, Mr. Villavasso advised he was not injured and testified he experienced no immediate pain following the accident. Mr. Villavasso testified that shortly after the accident, he contacted his attorney, whose office, according to Mr. Farwell's testimony, contacted him just ten minutes after he left the accident scene. Mr. Villavasso acknowledged he was involved in no less than six car accidents in a very short period of time, all of which resulted in injuries to his back and claims for damages. Mr. Villavasso's inconsistent statements about his injury also contributed to the trial court's determination that he was not credible.

Mr. Villavasso contends that the trial court improperly relied upon his litigiousness in evaluating his credibility. The trial court specifically stated that Mr. Villavasso's litigiousness was not the sole basis for its finding, noting his lack of candor during his testimony coupled with his inconsistent statements about his injury created doubt. Further, the trial court rejected the findings of Dr. Kang as her diagnosis and treatment relied heavily upon Mr. Villavasso's subjective complaints of pain. We must give great deference to the findings of the trier of fact. Rosell, 549 So.2d 840 (La. 1989). Hence, we find nothing in the record to suggest that the trial court was manifestly erroneous by finding Mr. Villavasso failed to meet his burden of proof.

CONCLUSION

Accordingly, we find no error in the ruling of the trial court dismissing Mr. Villavasso's claim. For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRM

LOBRANO, J., CONCURS IN THE RESULT

      Erroneously identified as Chubb Group of Insurance Companies in Mr. Villavasso's original petition.

      Mr. Urquhart died prior to trial, but his deposition testimony was presented for the trial court.

      Mr. Villavasso admitted he contacted his attorney prior to seeking any medical treatment.


source: Caselaw Access Project

author: COX, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Fabian HARPER, Appellant
    No. 51,539-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered August 9, 2017
    LOUISIANA APPELLATE PROJECT By: Annette Fuller Roach, Counsel for Appellant
    FABIAN HARPER, Pro Se
    JAMES EDWARD STEWART, SR., District Attorney, LAURA OWEN WINGATE FULCO, REBECCA ARMAND EDWARDS, Assistant District Attorneys, Counsel for Appellee
    Before DREW, GARRETT, and COX, JJ.
   COX, J.

The defendant, Fabian Harper ("Harper"), was previously convicted for the second degree murder of Miss Eddie Jo Johnson, in violation of La. R.S. 14:30.1, when the defendant was 16 years old. He was sentenced to life imprisonment at hard labor, without benefit of probation, parole, or suspension of sentence. His conviction and sentence were affirmed on appeal. State v. Harper , 27,278 (La. App. 2 Cir. 8/23/95), 660 So.2d 537, writ denied , 95-2318 (La. 1/12/96), 666 So.2d 320.

Following the decisions in Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L. Ed. 2d 407 (2012), and Montgomery v. Louisiana , --- U.S. ----, 136 S.Ct. 718, 193 L. Ed. 2d 599 (2016), as revised (Jan. 27, 2016), the defendant filed a motion to modify his sentence according to the penalty for manslaughter. On November 29, 2016, the trial court denied the motion and resentenced Harper in accordance with the per curiam decision in State v. Montgomery , 13-1163 (La. 6/28/16), 194 So.3d 606, to life imprisonment at hard labor, with eligibility for parole. Harper now appeals. For the following reasons, we affirm the defendant's sentence.

FACTS

On September 5, 1990, Harper and his friend, Eddie Sloan ("Sloan"), decided to steal some money and a vehicle. After leaving Sloan's older brother shopping at a Shreveport pawn shop, the two wandered down a side street, tracking a gray truck they wanted to steal. Deciding the truck would be too difficult to steal, the two moved on and spotted a small car with a handicapped license plate coming down the street.

Pariss Washington and her daughter, Eddie Jo Johnson, had just returned home from the grocery store when a teenage boy knocked on their door looking for someone. After repeatedly telling the young man that the person he sought did not live there, Eddie Jo became alarmed and called to her mother to bring a gun. The young man pulled out a gold-painted .22 caliber gun and shot Pariss Washington in the head, severely wounding her. He then shot Eddie Jo in the head twice, killing her. The young man stole Eddie Jo's purse and ran off with his companion.

Later that same day, police arrested Sloan, who had in his pocket a check made out to Eddie Jo Johnson. When confronted about the shootings, Sloan confessed he was there, but named Harper as the shooter. The two were subsequently charged with the first degree murder of Eddie Jo Johnson.

Sloan later pleaded guilty to conspiracy to commit armed robbery, while Harper's charge was amended to second degree murder, with a second charge added for the attempted second degree murder of Pariss Washington. Harper was found guilty as charged of Eddie Jo Johnson's murder and sentenced to life imprisonment at hard labor, without benefits. He was acquitted of the attempted second degree murder of Pariss Washington.

On appeal, this Court found there was sufficient evidence to support the conviction, and the mandatory imposed sentence of life imprisonment at hard labor without benefits was not constitutionally excessive. State v. Harper , supra.

Amid the decisions in Miller v. Alabama , supra ; Montgomery v. Louisiana , supra ; and State v. Montgomery , supra , Harper filed several motions seeking to modify his sentence. The parties appeared for argument on Harper's motions on November 29, 2016. The State submitted its argument without any evidence of aggravating circumstances and recommended that the court resentence Harper to life imprisonment with parole eligibility.

The defense reiterated that Harper, at age 16, was convicted of the second degree murder of Eddie Jo Johnson by a 10-2 jury vote, but was acquitted of attempted second degree murder in the shooting of Pariss Washington. They argued that Harper, now age 43, deserved a lesser sentence than the mandatory life sentence in La. R.S. 14:30.1 because he has led an "exemplary" life while imprisoned. The defense presented a portfolio of documents detailing Harper's accomplishments, including his GED and paralegal diploma. The State argued that La. C. Cr. P. art. 881 does not authorize the remedy Harper seeks, and neither Miller nor Montgomery requires the trial court to consider and render a new verdict.

The trial court denied Harper's motions and written objections on the grounds that they were not supported by the law and evidence. The trial court resentenced Harper to life imprisonment at hard labor, without benefit of probation or suspension of sentence, but with the benefit of parole eligibility. Harper was advised he had two years from the finality of judgment of his conviction and sentence to pursue post-conviction relief.

Harper filed and presented a written motion to consider sentence, in which he raised the same claims as before, and insisted he deserved to be sentenced to 21 years for manslaughter. The trial court denied the motion. Harper then filed a written motion to appeal his new sentence, which the trial court granted.

LAW

For those offenders convicted of second degree murder in Louisiana, La. R.S. 14:31 provides for a sentence of life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. However, in Miller , supra , the United States Supreme Court held that "the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders." The Miller court did not establish a categorical prohibition against life imprisonment without parole for juvenile homicide offenders. Instead, the case requires the sentencing court to consider an offender's youth and attendant characteristics as mitigating circumstances before deciding whether to impose the harshest penalty for juveniles convicted of a homicide offense. State v. Williams , 12-1766 (La. 3/8/13), 108 So.3d 1169 ; Montgomery v. Louisiana , supra. Miller drew a line between children whose crimes reflect transient immaturity and those whose crimes reflect irreparable corruption. Life without parole is the correct sentence for the latter group.

In response to Miller , our legislature enacted La. C. Cr. P. art. 878.1. If the trial court imposes a life sentence without parole eligibility, La. R.S. 15:574.4(E) was added to require many conditions, such as serving 35 years of the sentence before making application to the parole board.

In Montgomery , supra , retroactivity was added to the holding in Miller , supra. The court alleviated concerns that the retroactive application of Miller would place an undue hardship on states. On remand, the Louisiana Supreme Court in Montgomery , supra , held that courts should utilize La. C. Cr. P. art. 878.1 and La. R.S. 15:574.4(E) when reviewing sentences for juvenile homicide defendants sentenced before Miller.

This Court and other circuits have addressed and rejected claims that La. C. Cr. P. art. 878.1 and La. R.S. 15:574.4(E) are unconstitutional in light of the requirements of Miller. See State v. Sumler , 51, 324 (La. App. 2 Cir. 5/2/17), 219 So.3d 503 ; State v. Fletcher , 49,303 (La. App. 2 Cir. 10/1/14), 149 So.3d 934, writ denied , 14-2205 (La. 6/5/15), 171 So.3d 945 ; and State v. Doise , 2015-713 (La. App. 3 Cir. 2/24/16), 185 So.3d 335, writ denied , 2016-0546 (La. 3/13/17), 216 So.3d 808.

Likewise, arguments that sentences under La. R.S. 15:574.4(E) are ex post facto violations have been rejected. State v. Sumler , supra. The focus of the ex post facto inquiry is whether a new law redefines criminal conduct or increases the penalty by which the crime is punishable. State v. Billizone , 16-478 (La. App. 5 Cir 12/14/16), 215 So.3d 360.

DISCUSSION

The defendant's counsel sets forth four assignments of error: (1) the trial court erred in applying La. C. Cr. P. art. 878.1 and La. R.S. 15:574.4(E) in resentencing the defendant because the courts were without authority to impose such a sentence and, therefore, the sentence is illegal; (2) the trial court erred in denying the defendant's motion to amend his illegal sentence pursuant to La. C. Cr. P. art. 881 or art. 821(C) or (E), arguing his conviction should have been reduced to manslaughter and his sentence modified accordingly; (3) the trial court erred in sentencing the defendant pursuant to La. C. Cr. P. art. 878.1 and La. R.S. 15:574.4(E) because simply granting him parole eligibility after serving 35 years does not comply with Miller 's directive to provide juvenile defendants with a meaningful opportunity for parole; and, (4) the trial court erred in not allowing the defendant a full sentencing hearing so he could present his prison and education record, in order that the trial court could consider a downward departure in sentencing.

The defendant sets forth six pro se assignments of error: (1) the trial court erred in imposing an indeterminate sentence that also violates ex post facto laws; (2) the trial court erred in imposing a sentence that violated the fair notice requirements of the Due Process Clause; (3) the trial court erred in sentencing the defendant without a full sentencing hearing; (4) the trial court erred in imposing a sentence that was not individualized to the defendant or proportionate to his offense; (5) the trial court erred in sentencing the defendant to life with eligibility for parole because the sentence is cruel, unusual, and excessive; and, (6) the trial court erred in sentencing the defendant pursuant to La. R.S. 15:574.4(E) because the statute is unconstitutional in that it creates a de facto mandatory sentencing scheme and deprives the sentencing court the discretion to impose an individualized and proportionate sentence.

Harper's argument that his sentence imposed under La. R.S. 15:574(E) violates due process by failing to provide fair notice is without merit. The elements required for proof of second degree murder have not changed since the crime was committed in 1990, and the potential sentence for committing that crime remains life imprisonment at hard labor. The only difference now is that the court may impose the sentence with the benefit of parole eligibility, which is a less harsh sentence. Thus, Harper was not deprived of fair warning that his conduct would constitute criminal behavior or prejudiced because his potential sentence was not made more severe by application of La. R.S. 15:574.4(E).

Additionally, Harper's sentence is not illegal, and the judiciary did not usurp legislative power in creating a "sentencing range" for juvenile homicide offenders. The defendant received the mandatory minimum sentence available under Miller , La. R.S. 14:31, and La. C. Cr. P. art. 878.1. As this Court noted in Fletcher , supra , the legislature was not required to amend the murder statutes to provide for sentencing of juvenile homicide defendants. Further, the legislature designed an adequate solution to Miller by creating statutes relating to parole eligibility for juvenile homicide defendants, which are to be read in conjunction with the murder statutes. This scheme is reasonable and satisfies Miller , supra.

As stated, this Court and other circuits have rejected claims that La. C. Cr. P. art. 878.1 and La. R.S. 15:574.4(E) are unconstitutional in light of the requirements of Miller. Likewise, Harper's argument that his sentence under La. R.S. 15:574.4(E) is an ex post facto violation has been rejected. The new law does not redefine criminal conduct or increase the penalty by which the crime is punishable.

Finally, Harper's arguments that he was entitled to a full evidentiary hearing, the imposition of an individualized sentence, and consideration of whether he should be sentenced according to the lesser included responsive verdict are without merit. Miller imposed no such requirement in cases where parole eligibility was permitted. In Miller , the Supreme Court explained that the Eighth Amendment does not prohibit a court from imposing a sentence of life imprisonment with the opportunity for parole for a juvenile homicide offender or require the court to consider the mitigating factors of youth before imposing such a sentence. Instead, a sentencing court's obligation to consider youth-related mitigating factors is limited to cases where the court imposes a sentence of life, or its equivalent, without parole. Miller , supra. The sole question to be answered in a Miller hearing is whether the defendant should have a chance for parole. The trial court granted Harper all to which he was entitled. Thus, these arguments have no merit.

It should be noted that the post-conviction relief instruction provided by the trial court was in error. Resentencing alone does not restart the time period for applying for post-conviction relief. La. C. Cr. P. art. 930.8. The post-conviction time limitation period in La. C. Cr. P. art. 930.8 does not begin to run anew when the sentence originally imposed is vacated and the respondent is resentenced. State v. Brumfield , 13-2390 (La. 11/14/14), 152 So.3d 870. La. C. Cr. P. art. 930.3, which sets out the exclusive grounds for granting post-conviction relief, provides "no basis for review of claims of excessiveness or other sentencing error post-conviction." State ex rel. Melinie v. State , 93-1380 (La. 1/12/96), 665 So.2d 1172 (per curiam ).

CONCLUSION

For the foregoing reasons, we affirm the defendant's sentence of life imprisonment at hard labor, with eligibility for parole.

AFFIRMED.

      Article 878.1. Sentencing hearing for juvenile offenders.
      A. In any case where an offender is to be sentenced to life imprisonment for a conviction of first degree murder (R.S. 14:30 ) or second degree murder (R.S. 14:30.1 ) where the offender was under the age of eighteen years at the time of the commission of the offense, a hearing shall be conducted prior to sentencing to determine whether the sentence shall be imposed with or without parole eligibility pursuant to the provisions of R.S. 15:574.4(E).
      B. At the hearing, the prosecution and defense shall be allowed to introduce any aggravating and mitigating evidence that is relevant to the charged offense or the character of the offender, including but not limited to the facts and circumstances of the crime, the criminal history of the offender, the offender's level of family support, social history, and such other factors as the court may deem relevant. Sentences imposed without parole eligibility should normally be reserved for the worst offenders and the worst cases.


author: DREW, J.

text:
    Charles H. PARKER #336890, Plaintiff-Defendant v. Kristen WOLKART, RN, MHA, President/CEO, St. Francis Medical Center, Defendants-Appellees
    No. 51,533-CA
    Court of Appeal of Louisiana, Second Circuit.
    August 9, 2017
    CHARLES H. PARKER, Pro Se Appellant
    BREAZEALE, SACHSE & WILSON, L.L.P. By: Thomas R. Temple, Jr., Jordan L. Faircloth, Baton Rouge, Counsel for Appellees
    Before DREW, GARRETT, and COX, JJ.
   DREW, J.

Charles H. Parker appeals from a judgment sustaining the defendants' exceptions of prescription and dismissing all of his claims against St. Francis Medical Center, Inc., and Kristin Wolkart (collectively referred to as "defendants"). We affirm the judgment of the trial court.

FACTS

Charles H. Parker was an inmate at the Ouachita Parish Jail under the supervision of the Louisiana Department of Corrections. While in custody, Parker began experiencing severe stomach pains. He was taken to a specialist, who recommended that Parker be prepared for emergency surgery at once to remove his gall bladder. Due to the unavailability of E.A. Conway Medical Center, Parker underwent surgery on January 10, 1995, at St. Francis Medical Center. During his stay at St. Francis, Parker alleges that an employee approached him to discuss payment of his bill. The employee asked Parker if he would like to pay his bill up to the current date and later be refunded by the Sheriff's Department after the hospital billed the department. According to Parker, he agreed to this suggestion and wrote a check for $8,361.25 on January 16, 1995. He was then discharged from St. Francis on January 17, 1995.

Parker was sent once more to St. Francis for treatment associated with the previous surgery on March 4, 1995. While there, a St. Francis employee allegedly asked Parker to pay a deposit on his bill. Parker agreed and wrote a second check to St. Francis in the amount of $15.00.

Parker allegedly wrote his first letter to St. Francis demanding a refund of the money he had paid on May 25, 1996. From 1996 until the time he filed suit in March 2016, he has sent an estimated 44 letters requesting a refund. St. Francis never responded to any of these letters until president and C.E.O. of St. Francis, Kristin Wolkart, replied in a letter dated June 16, 2015, stating that St. Francis was not going to refund Parker. In response to the letter, Parker filed suit on March 15, 2016, against defendants claiming that they should be required to refund the money pursuant to La. R.S. 15:824(B)(1)(c). Subsequently, defendants filed exceptions of prescription, no cause of action, nonconformity, and vagueness, seeking dismissal of the claims.

The exceptions came for hearing before the trial court on September 21, 2016. The court denied the exceptions of vagueness and nonconformity.

After being continued, the exceptions of prescription and no cause of action came for hearing on October 25, 2016. In regard to the exception of prescription, the defendants argued that the latest Parker could have filed was May 2006, 10 years after the first letter was sent to St. Francis seeking a refund. In response, Parker called Kristin Wolkart as a witness and contended that the doctrine of contra non valentem rendered his lawsuit timely. Parker argued that the prescriptive period did not begin running under this doctrine until June 16, 2015, when he became aware that St. Francis would not be refunding the money.

The trial court granted the exception of prescription filed by the defendants, dismissed the petition seeking refund, and found the exception of no cause of action to be moot.

DISCUSSION

On appeal, Parker asserts that the trial court erred in granting defendants' exception of prescription, dismissing all of his claims against them.

Parker argues on appeal that his claim was filed timely because it was filed less than a year after he received the letter from Kristin Wolkart and became aware of his cause of action. When evidence is introduced at the hearing on the peremptory exception of prescription, the district court's findings of fact are reviewed under the manifest error-clearly wrong standard of review. Cooksey v. Heard, McElroy, & Vestal, LLC , 44,761 (La App. 2 Cir. 9/23/09), 21 So.3d 1011.

The prescriptive period for personal actions is set forth in La. C.C. art. 3499, "Unless otherwise provided by legislation, a personal action is subject to a liberative prescription of ten years." Generally, the party raising the peremptory exception of prescription bears the burden of proof at the trial of the exception; however, when prescription is clear from the face of the pleadings, the plaintiff bears the burden of proving that the cause of action has not prescribed. In re Medical Review Panel ex rel. Rachal , 48,984 (La. App. 2 Cir. 6/25/14), 144 So.3d 1199, writ denied , 2014-1887 (La. 11/14/14), 152 So.3d 886.

The doctrine of contra non valentem agere nulla currit praescriptio , which means that prescription does not run against someone who could not bring his suit, has occasionally been applied to lessen the harshness of prescriptive statutes. Id. at 1203. There are four factual circumstances where this doctrine applies, preventing the running of liberative prescriptions:

1) Where there was some legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiff's action;
2) Where there was some condition coupled with the contract or connected with the proceedings which prevented the creditor from suing or acting;
3) Where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action; or
4) Where the cause of action is neither known nor reasonably knowable by the plaintiff even though plaintiff's ignorance is not induced by the defendant.

Plaquemines Parish Comm. Council v. Delta Dev. Co. , 502 So.2d 1034 (La. 1987).

Parker argues that he did not become aware of his cause of action until he received the letter from the defendants dated June 16, 2016. Therefore, under the doctrine of contra non valentem , prescription did not begin running until that date. However, Parker has failed to specify which factual event applies here. Parker's arguments appear to suggest that he is relying on category four, which involves cases where the cause of action is not known or reasonably knowable by the plaintiff. In such cases, this doctrine operates to suspend the running of prescription until such a time that the plaintiff knew or reasonably should have known that his damages were the fault of the defendant's negligent act. Id. at 1203. The doctrine, however, does not apply if the plaintiff's ignorance is attributable to his own willfulness or neglect. Id.

The latest that Parker either knew or reasonably should have known of his reimbursement claim was May 25, 1996, after mailing his first request for reimbursement. The defendants did not make any promises to reimburse him of such funds, acknowledge any debt owed, or take any action to conceal Parker's claim. After failing to receive a response after the third or fourth letter, Parker should have reasonably known that the defendants were not planning to reimburse him. The silence of the defendants did not impede Parker from filing suit; it was Parker's decision alone to delay filing suit.

In addition, Parker did not raise any other arguments to establish circumstances which impeded him from filing suit. Although Parker was an inmate during the entire course of prescription, this alone did not hinder him from filing suit; Parker did not raise any allegations that anyone obstructed him from filing suit. He had access to the courts, and it was solely his decision to delay the filing of this suit. Because Parker has not met his burden of showing that the cause of action has not prescribed, the peremptory exception of no cause of action is moot.

DECREE

For the reasons stated herein, we affirm the trial court judgment sustaining the exceptions of prescription filed by defendants. With all costs to be paid by Parker, in accordance with La. C.C.P. art. 5188, the judgment is AFFIRMED.

      A demand bill from St. Francis attached to his petition reflects that a personal check for that amount was received.

      A ledger containing the dates of 37 written letters to St. Francis was attached to plaintiff's synopsis filed March 15, 2016.


author: GARRETT, J.

text:
    STATE of Louisiana, Appellee v. Antonio M. JACKSON, Appellant
    No. 51,527-KA
    Court of Appeal of Louisiana, Second Circuit.
    August 9, 2017
    Douglas Lee Harville, Counsel for Appellant
    ANTONIO M. JACKSON, pro se
    JAMES E. STEWART, SR., District Attorney, Counsel for Appellee
    LAURA W. FULCO, TOMMY J. JOHNSON, Assistant District Attorneys
    Before WILLIAMS, MOORE, and GARRETT, JJ.
   GARRETT, J.

The defendant, Antonio M. Jackson, received the mandatory sentence of life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence for a second degree murder committed in 1994 when he was a juvenile. Following Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), and Montgomery v. Louisiana , 577 U.S. ----, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016), the defendant filed motions to correct an illegal sentence. In compliance with State v. Montgomery , 2013-1163 (La. 6/28/16), 194 So.3d 606, the trial court vacated his sentence and resentenced him to life imprisonment without the benefit of probation or suspension of sentence, but with the possibility of parole. The defendant appeals. We affirm.

FACTS

In 1994, the defendant and two accomplices committed an armed robbery, during the course of which two victims were killed. At the time of the offenses, the defendant was 17 years old. He was convicted of one count of manslaughter, for which he was sentenced to 40 years at hard labor, and one count of second degree murder, for which he received the mandatory sentence of life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. The sentences were ordered to be served consecutively. This court affirmed his convictions and sentences in State v. Jackson , 29,470 (La. App. 2 Cir. 8/20/97), 707 So.2d 990.

In Miller v. Alabama , supra , the United States Supreme Court held that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without the possibility of parole for juvenile homicide offenders. The Miller court did not establish a categorical prohibition against life without parole for juvenile homicide offenders; instead, the case required the sentencing court to consider certain factors, including the offender's youth, before deciding whether to impose life with or without parole.

Following the Miller decision, the defendant filed a pro se motion to correct illegal sentence in August 2012. Relying upon the principles of State v. Craig , 340 So.2d 191 (La. 1976), he argued that he should be resentenced to no more than 40 years at hard labor. Counsel was appointed to assist the defendant. The motion was denied in December 2013.

In 2013, the Louisiana Legislature enacted La. C. Cr. P. art. 878.1 and La. R.S. 15:574.4(E) to address cases under Miller . The former required district courts to conduct a hearing to determine parole eligibility, while the latter provided conditions under which juvenile homicide offenders could become eligible for parole consideration. In 2016, the United States Supreme Court, in Montgomery v. Louisiana , supra , held that Miller applied retroactively to defendants whose convictions and sentences were final prior to the decision in Miller .

In May 2016, the defendant filed another pro se motion to correct illegal sentence. He again urged the Craig solution. At a hearing on June 21, 2016, the motion was denied, as was the defendant's request for appointment of counsel. However, to bring the defendant's sentence in compliance with Miller , the trial court vacated his sentence on the second degree murder conviction and imposed a sentence of life without the possibility of probation or suspension. Because it was unable to articulate adequate grounds for consecutive sentences and also to enhance the defendant's opportunity for parole eligibility in conformity with Miller , the court further ordered that this sentence be served concurrently with the defendant's sentence for manslaughter.

On remand in the Montgomery case, the Louisiana Supreme Court issued a per curiam decision on June 28, 2016, in which it directed lower courts to conduct hearings at which La. C. Cr. P. art. 878.1 and La. R.S. 15:574.4(E) were applied to determine whether to impose life imprisonment with or without parole eligibility. See State v. Montgomery , supra .

In July 2016, the defendant filed a pro se notice of appeal, as well as a motion for appointment of counsel, which was granted.

In August 2016, the defendant filed a pro se motion to reconsider sentence, in which he alleged violations of the ex post facto and due process clauses. The trial court issued a written ruling denying the motion.

On September 27, 2016, the defendant and appointed counsel appeared for a hearing on another motion to reconsider sentence. The trial court granted the motion, vacated the sentence imposed in June 2016, and set the matter for resentencing on October 26, 2016. At that subsequent hearing, following the guidelines set forth by the Louisiana Supreme Court in State v. Montgomery , supra , the trial court again imposed a life sentence without the benefit of probation or suspension of sentence, but with the possibility of parole. It also ordered the defendant's sentences to run concurrently. In November 2016, both the defendant, proceeding pro se, and defense counsel filed motions to reconsider sentence, which were denied by a written ruling in December 2016.

The instant appeal follows. Defense counsel asserts two assignments of error. In a pro se brief, the defendant sets forth four assignments of error.

MONTGOMERY HEARING

The defendant concedes that the sentence imposed upon him was within the parameters established by the Louisiana Supreme Court in State v. Montgomery , supra. However, he assails that court ruling as being improper and unconstitutional. We find no merit to these arguments.

Law

In Miller , the United States Supreme Court held that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without the possibility of parole for juvenile offenders. In Montgomery , 136 S.Ct. at 734, the Court clarified "that Miller drew a line between children whose crimes reflect transient immaturity and those rare children whose crimes reflect irreparable corruption," and life without parole can only be a proportionate sentence for the latter. The Supreme Court also determined in Montgomery that Miller announced a substantive rule of constitutional law that applies retroactively. The Court addressed the issue of retroactivity as follows:

Giving Miller retroactive effect, moreover, does not require States to relitigate sentences, let alone convictions, in every case where a juvenile offender received mandatory life without parole. A State may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them. See, e.g., Wyo. Stat. Ann. § 6-10-301(c) (2013) (juvenile homicide offenders eligible for parole after 25 years). Allowing those offenders to be considered for parole ensures that juveniles whose crimes reflected only transient immaturity-and who have since matured-will not be forced to serve a disproportionate sentence in violation of the Eighth Amendment. [Emphasis added.]
Montgomery v. Louisiana , 136 S.Ct. at 736.

As previously noted, the Louisiana Legislature responded to Miller by enacting La. C. Cr. P. art. 878.1 and La. R.S. 15:574.4(E), which became effective on August 1, 2013. These provisions were designed to implement Miller 's"meaningful opportunity to obtain release" for those juveniles who commit murder but are not found to be irreparably corrupt. In State v. Tate , 12-2763 (La. 11/5/13), 130 So.3d 829, the Louisiana Supreme Court held that Miller was not subject to retroactive application, and that La. C. Cr. P. art. 878.1 and La. R.S. 15:574.4(E) applied prospectively only.

In State v. Montgomery , supra , the Louisiana Supreme Court held that, absent new legislation to the contrary, courts should utilize La. C. Cr. P. art. 878.1 and La. R.S. 15:574.4(E) when conducting resentencing hearings for juvenile homicide defendants sentenced prior to Miller to determine whether they should be granted or denied parole eligibility.

La. C. Cr. P. art. 878.1 requires a trial court to conduct a hearing before imposing a life without parole sentence on a juvenile homicide offender. We note that, after this case was submitted before us, the Louisiana Legislature amended that statute. See Acts 2017, No. 277, effective August 1, 2017. It now states, in Subsection (B)(2):

If an offender was indicted prior to August 1, 2017, for the crime of first degree murder ( R.S. 14:30 ) or second degree murder ( R.S. 14:30.1 ) where the offender was under the age of eighteen years at the time of the commission of the offense and a hearing was held pursuant to this Article prior to August 1, 2017, the following shall apply:
(a) If the court determined at the hearing that was held prior to August 1, 2017, that the offender's sentence shall be imposed with parole eligibility, the offender shall be eligible for parole pursuant to R.S. 15:574.4(G).

At the time of the defendant's hearing, La. R. S. 15:574.4(E) set forth the conditions that had to be met before a juvenile homicide offender who was serving a life sentence for first or second degree murder and had been judicially determined to be entitled to parole eligibility, pursuant to La. C. Cr. P. art. 878.1, would be eligible for parole consideration. Among these conditions were the programs the defendant had to complete and the length of time the defendant was required to serve before being considered for parole. La. R.S. 15:574.4 was also amended in 2017. The amended statute reduces the time to be served from 35 years to 25 years. For juvenile homicide offenders indicted on or after August 1, 2017, Subsection E now deals with first degree murder while Subsection F addresses second degree murder. Juvenile homicide offenders who were serving life imprisonment for first or second degree murder and were indicted before August 1, 2017, such as the defendant in the instant case, are covered by Subsection G. It mirrors the provisions of the previous Subsection E, except for the reduction from 35 years to 25 years.

Discussion

The defendant argues that only the legislature has the authority to create the possible sentencing ranges available at a Miller / Montgomery resentencing. He complains that in State v. Montgomery , the Louisiana Supreme Court gave only two options-life with parole eligibility or life without parole eligibility. He contends that the sentencing options should be limited to only life without parole (for "the rare juvenile offender whose crime reflects irreparable corruption"), Craig -relief (resentencing to the most serious penalty for the next lesser included offense, manslaughter in the instant case), or Dorthey -relief (resentencing under State v. Dorthey , 623 So.2d 1276 (La. 1993), i.e., making a downward departure from a mandatory sentence which is unconstitutional as applied to a particular defendant).

As quoted above, Montgomery itself stated that permitting juvenile homicide offenders to be considered for parole, rather than relitigating their sentences, was an appropriate remedy for a Miller violation. Such a solution is provided in the Louisiana statutory provisions adopted by our legislature.

These provisions have withstood constitutional scrutiny. In State v. Fletcher , 49,303 (La. App. 2 Cir. 10/1/14), 149 So.3d 934, writ denied , 2014-2205 (La. 6/5/15), 171 So.3d 945, cert denied , --- U.S. ----, 136 S.Ct. 254, 193 L.Ed.2d 189 (2015), this court rejected a constitutional attack on La. C. Cr. P. art. 878.1 and La. R.S. 15:574.4(E). We also rebuffed the argument that the legislature should have amended the sentencing provision of the second degree murder statute to comply with Miller , finding that Miller did not preclude life without parole for juveniles. See also State v. Doise , 2015-713 (La. App. 3 Cir. 2/24/16), 185 So.3d 335, writ denied , 2016-0546 (La. 3/13/17), 216 So.3d 808.

Furthermore, the defendant's proposed Craig solution has been soundly rejected by the courts. See State v. Shaffer , 2011-1756 (La. 11/23/11), 77 So.3d 939 ; State v. Leason , 2011-1757 (La. 11/23/11), 77 So.3d 933. See also State v. Plater , 51,338 (La. App. 2 Cir. 5/17/17), 222 So.3d 897, 2017 WL 2131499 ; State v. Calhoun , 51,337 (La. App. 2 Cir. 5/17/17), 222 So.3d 903, 2017 WL 2131500 ; State v. Williams , 2015-0866 (La. App. 4 Cir. 1/20/16), 186 So.3d 242, writ denied , 2016-0332 (La. 3/31/17), 217 So.3d 358 ; State v. Graham , 2014-1769 (La. App. 1 Cir. 4/24/15), 171 So.3d 272, writ denied , 2015-1028 (La. 4/8/16), 191 So.3d 583.

The sole question to be answered in a Miller hearing is whether the defendant should have a chance for parole. State v. Calhoun , supra . Accordingly, there is no consideration of whether there should be a downward departure from the mandatory sentence of life imprisonment at hard labor. Rather, the trial court considers only whether that mandatory sentence should include parole eligibility. State v. Brown , 51,418 (La. App. 2 Cir. 6/21/17), --- So.3d ----, 2017 WL 2665128 ; State v. Shaw , supra. Access to the parole board for consideration of parole meets the requirements of Miller. State v. Kelly , 51,246 (La. App. 2 Cir. 4/5/17), 217 So.3d 576 ; Doise , supra .

Based on the foregoing, we find no merit to this assignment of error.

FAILURE TO DETERMINE TIME OF PAROLE ELIGIBILITY

The defendant also argues that the trial court erred when it sentenced him to life with parole without determining when he would become parole board eligible. He contends that, pursuant to La. R.S. 15:574(B)(1), he is not eligible for parole unless his sentence is converted to a term of years. The defendant's argument fails to recognize that La. R.S. 15:574.4(B)(1) has provided exceptions for juvenile homicide offenders since 2013. This assignment of error lacks merit.

PRO SE ASSIGNMENTS OF ERROR

In his pro se brief, the defendant raises four assignments of error. The identical assignments of error were raised and rejected by this court in State v. Plater , supra ; State v. Calhoun , supra ; and State v. Shaw , supra . We likewise find no merit to any of these assignments, which are discussed below.

Fair Notice Violation

The defendant claims that the sentence of life with parole eligibility violates the Fifth Amendment protection of "fair notice" because it was different from the sentence he could have expected at the time the offense was committed in 1994, i.e., life imprisonment without parole eligibility.

The requirements to prove the offense of second degree murder have not changed since the crime was committed in 1994, and the potential sentence for committing that crime remains life imprisonment at hard labor. The only current difference is that the trial court may impose the sentence with the benefit of parole eligibility, which is a less harsh sentence, even where La. R.S. 15:574.4(E) provided for conditions for parole, because the defendant was not at all previously eligible to be considered for parole. Therefore, he was not deprived of fair warning that his conduct would constitute criminal behavior and he was not prejudiced because his potential sentence was not made more severe by the application of La. R.S. 15:574.4(E). State v. Shaw , supra .

Ex Post Facto Clause Violation

The defendant contends that applying La. R.S. 15:574.4(E) in resentencing a defendant pursuant to Miller violates the ex post facto clause.

The law in effect at the time of the crime determines the penalty to be suffered by the criminal. State v. Sugasti , 2001-3407 (La. 6/21/02), 820 So.2d 518 ; State v. Calhoun , supra . Art. I, § 10 of the United States Constitution and La. Const. art. I, § 23 prohibit ex post facto application of the criminal law by the state. The focus of the ex post facto inquiry is whether a new law redefines criminal conduct or increases the penalty by which the crime is punishable. State v. Williams , 2000-1725 (La. 11/28/01), 800 So.2d 790 ; State ex rel. Olivieri v. State , 2000-0172 (La. 2/21/01), 779 So.2d 735, cert. denied , 533 U.S. 936, 121 S.Ct. 2566, 150 L.Ed.2d 730 (2001). Application of La. R.S. 15:574.4(E) in the instant matter did neither.

Sentence at Time of Offense

The defendant complains that the newly imposed sentence violated due process because it was not prescribed by the legislature at the time of conviction. He contends that due process requires that he receive a sentence fixed by the legislature, not the parole board. However, even the defendant admits in his brief that the United States Supreme Court stated in Montgomery that Miller 's retroactivity could be implemented by parole eligibility.

Lack of Individualized Sentence

The defendant argues that he did not receive an individualized sentence as required by Miller because the trial court simply granted him parole eligibility.

To the extent that the defendant argues that he was entitled to a hearing and the imposition of an individualized sentence, Miller did not impose such a requirement in cases where parole eligibility was permitted. In Miller , the Supreme Court explained that the Eighth Amendment does not prohibit a court from imposing a sentence of life imprisonment with the opportunity for parole for a juvenile homicide offender, nor does it require the court to consider the mitigating factors of youth before imposing such a sentence. Instead, a sentencing court's obligation to consider youth-related mitigating factors is limited to cases in which the court imposes a sentence of life, or its equivalent, without parole. State v. Plater , supra ; State v. Calhoun , supra .

CONCLUSION

The defendant's convictions and sentences for second degree murder and manslaughter are affirmed.

AFFIRMED.

      One of the victims was shot by either the defendant or his uncle. Both denied killing the victim. Although the defendant claimed to have been hiding at the time of the shooting, his palm prints were found near that victim's body.

      In State v. Craig , supra , the Louisiana Supreme Court held that the mandatory death sentence for aggravated rape was unconstitutional and that the appropriate remedy to correct an illegal sentence was to remand the case for resentencing of the defendant to the most serious penalty for the next lesser included offense.
      In the instant case, the defendant argues that the next lesser included offense for which parole is available is manslaughter and that it carries a maximum sentence of 40 years.

      Tate , supra , was abrogated by Montgomery . State v. Shaw , 51,325 (La. App. 2 Cir. 5/17/17), 223 So.3d 607, 2017 WL 2152520.

      In fact, comparison of the pro se briefs in these cases and the instant one reveals that, not only are all the assignments of error identical, but large portions of the supporting arguments are also virtually the same.


text:
    James DAVIS, Plaintiff-Appellee v. EUROPEAN MOTORS and Jeff Stegall, Defendants-Appellants
    No. 51,522-CA
    Court of Appeal of Louisiana, Second Circuit.
    August 9, 2017
    THE PARHMS LAW FIRM, LLC By: Carlton L. Parhms Counsel for Appellant, European Service, Inc.
    JAMES DAVIS In Proper Person Appellee
    Before BROWN, GARRETT, and BLEICH (Pro Tempore ), JJ.
   GARRETT, J.

The defendant, European Service, Inc., appeals from a city court judgment that ordered it to pay damages to a customer whose car has never been returned after being left for repairs that were supposed to take three weeks. We affirm.

FACTS

What should have been a relatively easy matter to resolve in city court with minimal expense or delay to the parties has now spanned almost five years.

In July 2012, the plaintiff, James Davis, took his 1996 Mercedes Benz C220 to a repair shop located at 2111 Louisville Avenue in Monroe. According to the invoice given to Davis, the shop's name was "European Motors." Davis apparently dealt with Jeff Stegall, the service manager, and Ali Moghimi, the apparent owner. According to Davis, he was told that the repairs would take three weeks. He paid a deposit of $2,000 for the work to be performed. However, the car has never been returned and the record does not disclose what has become of it.

On October 19, 2012, Davis, acting in proper person, filed a fill-in-the-blanks form petition in Monroe City Court, alleging that his car had been in for repairs for more than three months at European Motors. He sought the return of his vehicle, and a refund of his $2,000 deposit and the small claims filing fee. In addition to European Motors, Davis named Stegall as a defendant, and the plaintiff requested that service be made on "European Motors/Jeff Stegall," at the Louisville Avenue address.

On October 29, 2012, Stegall, in proper person, filed an answer denying the allegations. He claimed that, as service manager, he was an agent or employee of European Motors and did not deal with the plaintiff in his individual capacity. Although he admitted the repairs were incomplete, he stated it was because the plaintiff failed to pay the amount requested in advance. He further asserted that more parts and labor were expended on the car than had been paid for by the plaintiff. In November 2012, Stegall filed a motion for summary judgment, alleging that he had no liability in the instant matter. The motion was eventually granted in February 2013, but all of the plaintiff's claims against European Motors were reserved.

On March 15, 2013, a declinatory exception of insufficiency of service of process was filed by Moghimi, acting in proper person. He contended that service was improperly made, first upon Stegall, and then upon himself "d/b/a European Motors." He asserted that it was not valid because (1) he was not the registered agent for service of process for European Motors, Inc., which was domiciled in Rapides Parish; (2) he was not doing business as European Motors; and (3) the place where service was made was a business, not "the domicile, dwelling house or usual place of abode" of him or European Motors. He claimed that the entity doing business at the Louisville Avenue address was a different company, "Ouachita European Auto Service, LLC," for which he was not the registered agent and which had its charter revoked. Attached to the pleading was a document from the Louisiana Secretary of State which showed that Ouachita European Auto Service, LLC, had a revoked charter. The address given for this company was the Louisville Avenue address. However, it also showed that Moghimi had been both the registered agent and an officer of this entity, and that he had a West Monroe address.

On April 4, 2013, Moghimi filed a "motion to traverse certificate of readiness and to set aside fixing for trial," which stated it was "for the purpose of preventing a miscarriage of justice." He stated that he had received a notice that the matter had been set for trial on May 6, 2013. He then enumerated reasons why he believed the matter was not ready for trial.

On May 2, 2013, an answer was filed for European Service, Inc., by Moghimi as CEO. He asserted that the plaintiff was quoted a total price of $5,300 ($3,500 for used engine, $1,500 for replacing wiring harness and motor mounts, and $300 for replacing oil seals), and that the plaintiff agreed to pay and made a deposit of $2,000. He said that the defendant stopped work on the car after installing the replacement engine because it was apparent the plaintiff was not going to pay. He alleged that the plaintiff was told that the parts would be removed and he could come get the vehicle if he did not make full payment. The plaintiff neither paid nor retrieved the car. The defendant further asserted the affirmative defense of failure of consideration. In addition to the answer, Moghimi also propounded extensive discovery requests.

At a hearing on the exception on May 2, 2013, Moghimi insisted that the matter was moot because the work had been performed on the car and it was ready to be picked up. He declared his intention to file a reconventional demand for payment once Davis picked up his car. Davis said that this was the first time he had been informed that the car was ready. The trial court subsequently continued the May 6, 2013 trial date, noting that Davis had just hired an attorney and each side had requested that the trial be continued. On May 3, 2013, the court issued a written ruling which also granted the defendant's exception and gave the plaintiff 30 days to amend his petition to include the proper party.

On May 31, 2013, the plaintiff's attorney filed a first supplemental and amending petition. Named as defendant was European Service, Inc., which was domiciled in Monroe and whose agent for service of process was Dr. Nejad. The petition alleged that on July 9, 2012, the plaintiff took his 1996 Mercedes C220 to European Motors for repairs after the head-gasket broke and that it was decided that a working used engine and a new wiring harness would be installed. Stegall told the plaintiff that the used engine would cost $2,500 and the wiring harness $1,000. Moghimi told the plaintiff that he would need one-half of the total repair cost; the plaintiff put down a deposit of $2,000. Although the plaintiff was told that the work would only take two to three weeks, he was subsequently given a myriad of excuses why the work was not completed. According to the petition, he still had not gotten his car back. He requested the return of his deposit; return of his car or its value; reimbursement for alternative transportation; and other damages, including inconvenience and loss of use, as well as attorney fees and court costs. The petition requested service upon Dr. Nejad at his Bramble Drive address in Monroe.

On June 4, 2013, "Ali Moghimi dba European Motors" filed a motion to dismiss the lawsuit due to the plaintiff's alleged failure to amend his petition and a motion to compel the plaintiff to respond to discovery matters. In a memorandum opposing these motions, plaintiff's counsel recounted conflicting information she received as to whether the amended petition had been served. In particular, the plaintiff noted that he had received notice from the deputy clerk of court that service on Dr. Nejad could not be achieved because "SUBJECT UNKNOWN AT ADDRESS." As a result, pursuant to La. C.C.P. art. 1261(B)(1), counsel for the plaintiff requested personal service on Moghimi as secretary/treasurer, which occurred at the Louisville Avenue address on July 15, 2013.

On July 30, 2013, another declinatory exception of insufficiency of service of process was filed by Moghimi as "officer of Defendant Pro Se European Service, Inc." He complained that service was made on him, not the registered agent, and that the plaintiff filed his amended petition without leave of court. On January 21, 2014, the plaintiff responded to this exception, stating that service was properly made on Moghimi pursuant to La. C.C.P. art. 1261(B)(1) because service on Dr. Nejad could not be achieved.

In September 2014, plaintiff's counsel withdrew because she had been hired for a corporate position that precluded her from continuing to handle the case. In August 2015, the plaintiff, again in proper person, filed an amended petition in which he alleged that European Service, Inc., initially quoted him a price of $2,000 to repair his car, kept the vehicle for more than three months without repairing it, and later requested more money for the repairs. He requested return of the $2,000 payment, plus $5,000 attorney fees, filing fees and return of the car. He requested service on the defendant at the Louisville Avenue address. The record shows it was served on Destin Cook, the sales manager, on August 5, 2015.

On August 10, 2015, another hearing was held. During a lengthy discussion of addresses, it was revealed that Moghimi and Dr. Nejad both lived at the Bramble Drive address. The judge inquired why the bill given to the plaintiff had "European Motors" at the top-not "European Service," the company Moghimi claimed was the proper defendant-and questioned whether Moghimi was trying to evade service. Moghimi asserted that the design of the bill heading was due to a computer program which provided too few lines at the top of the page. Although the trial court stated that it believed service had been perfected, it directed the plaintiff to have the clerk of court serve the petition and amended petition at the Bramble Drive address. The court ordered the parties to return for a hearing on November 3, 2015, and scheduled trial for November 17, 2015. No one objected to these settings.

On October 29, 2015, Elham Moghimi, Moghimi's wife ("substituting Ad hoc for her husband"), filed a motion for continuance on the basis that her husband was on a trip to Iran and would not be able to return in time for the November 3, 2015 hearing because he had been "unavoidably detained." No other details were given. She further requested that "the trial presently fixed for March 24, 1995" be refixed. This motion was denied in open court on November 3, 2015. At the conclusion of that hearing, the trial court stated that all of the defendant's motions were denied at that point.

Trial was held on November 17, 2015. Davis testified as to the details of his dealings with Moghimi and Stegall, including the many excuses they gave him for their failure to complete the car repairs. He stated that he had never gotten his car back and had no knowledge of where it was. He further testified that, until he bought another car in early 2013, his lack of transportation caused him to lose 20 days as a substitute teacher for the Ouachita Parish School Board. The plaintiff's brother, Andrew Jones, testified that he was present at the repair shop during a discussion of the deposit his brother paid, and he verified the plaintiff's testimony about his lack of transportation. Numerous exhibits were introduced to corroborate the testimony. The trial court ruled in favor of the plaintiff and awarded him the following: $3,175.00 for the Kelley Blue Book value of the unreturned car; $2,000 for the money given to the defendant for repairs; $634.70 for car rental; $1,200 for loss of wages; and all court costs. Judgment was signed on November 23, 2015.

On December 9, 2015, European Services, Inc., (now represented by an attorney) filed a motion for new trial, which raised several issues: the denial of the motion to continue; the amended petitions; the alleged failure to properly serve the registered agent; the damages awarded; and the assessment of all costs to the defendant. A hearing was held on February 3, 2016, at which Moghimi and his attorney were present. Although served, Davis did not attend. Moghimi contended that he was unable to attend the trial because, while he was in Iran to resolve family matters arising from his father's death earlier in the year, his mother also died. Due to her death, he allegedly experienced blood pressure problems; was given an improper dosage of blood pressure medication by a pharmacist; and was seriously injured in a fall caused by the medication. He claimed to have a phone record that corroborated his assertion that he had contacted Davis, who allegedly agreed to the continuance. However, he did not bring the phone record to court. The trial court left the record open to allow Moghimi to produce additional proof of the alleged agreement with Davis to continue the trial. Although the record was left open for several months, no such proof was ever provided.

Meanwhile, on May 25, 2016, a judgment debtor exam was held, at which Moghimi resumed his self-representation. He stated that the judgment the plaintiff had was against a corporation that was no longer doing business and had no assets. He further stated that he might loan money to the corporation so that it could pay the debt in monthly increments of $250.

The motion for new trial was eventually denied in July 2016, after the court determined that enough time had passed for Moghimi to provide additional documents and he had failed to do so.

The defendant, once again represented by counsel, filed a devolutive appeal.

SERVICE OF PROCESS

The defendant contends that proper service of process was never made on European Service, Inc., because his father-in-law, as registered agent, was never served.

Law

La. C.C.P. art. 1261 provides, in relevant part:

A. Service of citation or other process on a domestic or foreign corporation is made by personal service on any one of its agents for service of process.
B. If the corporation has failed to designate an agent for service of process, if there is no registered agent by reason of death, resignation, or removal, or if the person attempting to make service certifies that he is unable, after due diligence, to serve the designated agent, service of the citation or other process may be made by any of the following methods:
(1) By personal service on any officer, or director, or on any person named as such in the last report filed with the secretary of state.(2) By personal service on any employee of suitable age and discretion at any place where the business of the corporation is regularly conducted.

Discussion

The record reflects that the plaintiff's counsel received a notice from the deputy clerk of court that the requested service upon Dr. Nejad had been attempted but not made because the subject was "unknown at address." Thereafter, counsel had service made on Moghimi as an officer of the corporation. Such a procedure is authorized by La. C.C.P. art. 1261(B). Consequently, we find that service was proper and that the defendant's arguments are without merit.

AMENDED PETITIONS

The defendant argues that the plaintiff's amended petitions should not have been allowed because they were filed without leave of court.

Law

In pertinent part, La. C.C.P. art. 1151 states:

A plaintiff may amend his petition without leave of court at any time before the answer thereto is served. He may be ordered to amend his petition under Articles 932 through 934. A defendant may amend his answer once without leave of court at any time within ten days after it has been served. Otherwise, the petition and answer may be amended only by leave of court or by written consent of the adverse party.

La. C.C.P. art. 932 specifies, in relevant part:

When the grounds of the objections pleaded in the declinatory exception may be removed by amendment of the petition or other action of plaintiff, the judgment sustaining the exception shall order the plaintiff to remove them within the delay allowed by the court.

Discussion

Contrary to the defendant's assertion in brief that the plaintiff amended his petition three times without leave of court, the record reveals that only two amended petitions were filed.

When the trial court sustained the defendant's first declinatory exception of insufficiency of service of process, it directed the plaintiff to file an amended petition within 30 days. The first amended petition was filed during that time period. There is no necessity to require permission of the Court to file an amended petition, complying with an order of the Court to do so, where an exception was maintained. See King v. Burris , 57 So.2d 779 (La. App. 1 Cir. 1952).

The second amended petition was filed on August 4, 2015. The only significant difference between this amended petition and the plaintiff's original petition was a request for attorney fees. However, this was also prayed for in the first amended petition and, at any rate, the trial court denied that request at trial. Consequently, we find the failure of the plaintiff, acting in proper person, to secure leave of court before filing the second amended petition was of no consequence in the instant case.

DENIAL OF CONTINUANCE

The defendant argues that the trial court erred in failing to grant the motion for continuance filed on its behalf by Moghimi's wife, who is not an attorney. It contends that it articulated "good grounds" for a continuance.

Law

A continuance may be granted in any case if there is good ground therefor. La. C.C.P. art. 1601. A motion for a continuance shall set forth the grounds upon which it is based, and if in writing shall comply with the provisions of Article 863. La. C.C.P. art. 1603.

A denial of a motion for continuance will not be disturbed on appeal absent a showing of an abuse of discretion by the trial court. Johnson v. Byrd , 48,411 (La. App. 2 Cir. 9/25/13), 125 So.3d 1220.

Discussion

A motion for continuance was filed by Moghimi's wife "substituting Ad hoc for her husband." She is not an attorney, and nothing in the record established that she was "a duly authorized partner, shareholder, officer, employee, or duly authorized agent or representative" of the corporation under the provisions of La. R.S. 37:212, and thus entitled to represent European Services, Inc. Furthermore, the motion merely stated that Moghimi had traveled to Iran on September 22, 2015, with an anticipated return date of October 17, 2015, and that "his departure has been unavoidably detained." She asserted that his inability to return from Iran was good grounds for a continuance. No mention was made of Moghimi's subsequent claims pertaining to his mother's death or his own ill health.

Based on the record before us, we find no abuse of the trial court's denial of a motion for continuance filed by an unauthorized person which failed to state good grounds for the requested continuance. See and compare Mayeaux v. Christakis , 619 So.2d 93 (La. App. 5 Cir. 1993).

MOTION FOR NEW TRIAL

In his last assignment of error, the defendant asserts that the trial court erred in denying its motion for new trial. It maintains that Moghimi had actively defended the lawsuit and would have continued to do so if a continuance had been granted.

Law

A new trial shall be granted, upon contradictory motion of any party, when the verdict or judgment appears clearly contrary to the law and the evidence. La. C.C.P. art. 1972(1). Although the grant of a new trial under this provision is mandatory, the jurisprudence interpreting it recognizes the trial judge's discretion in determining whether the judgment is indeed contrary to the law and evidence. Nugent v. Car Town of Monroe, Inc. , 50,910 (La. App. 2 Cir. 9/28/16), 206 So.3d 369. A new trial may be granted in any case if there is good ground therefor, except as otherwise provided by law. La. C.C.P. art. 1973.

The standard of review in ruling on a motion for new trial is whether the trial court abused its discretion. Nugent v. Car Town of Monroe, Inc. , supra.

The casting of costs is within the discretion of the trial judge. La. C.C.P. art. 1920 ; Johnson v. European Motors-Ali , supra.

Discussion

In his motion for new trial, the defendant argued that the trial court erred in several respects, including its failure to grant a continuance, its award of damages, and its assessment of all court costs to the defendant. However, in the defendant's discussion in brief of this assignment of error, the only issue specifically addressed in any detail is the motion for continuance. That matter was discussed infra and resolved adversely to the defendant.

As to the merits, the defendant argued only that the motion for new trial was "submitted upon good grounds." After reviewing the record, we find the trial court did not abuse its discretion in denying the motion for new trial. Given the facts of the case, especially the extensive period of time the plaintiff has been deprived of his vehicle, the damages are not unreasonable and were fully supported by the evidence adduced at the trial.

CONCLUSION

The judgment is affirmed. Costs are assessed against the appellant, European Service, Inc.

AFFIRMED.

BLEICH, J. (Pro Tempore ), concurs with written reasons.

BROWN, C.J., concurs with the opinion and Judge Bleich's written reasons.

BLEICH, J. (Pro Tempore ), concurs.

Louisiana C.C.P. art. 2164 provides for the imposition of damages for frivolous appeals. This court may award such damages when there is no serious legal question presented and when it is evident that the appellant's counsel and/or appellant does not seriously believe in the position that he advocates. It is also clear that the court may award frivolous appeal damages against both the claimant and his attorney. Mitchell v. Brown Builders , 39,673 (La. App. 2 Cir. 05/11/05), 902 So.2d 1288, 1292. Because this provision is penal in nature, it must be strictly construed. Id. Damages will not be awarded unless it appears that the appeal was taken solely for the purpose of delay , serious legal questions are not raised, or the appellate counsel does not seriously believe in the position he advocates. Id. (Emphasis added).

Considering the straightforward issue before the trial court, clearly addressed by Judge Garrett, and the inordinate amount of time it took for Davis to obtain relief, it is apparent that this appeal was simply one additional step in Moghimi's systematic pattern to delay paying Davis and avoid his patently clear, legal, and moral obligation. Damages should be awarded to Davis, payable only by Moghimi, for having to address and defeat this most frivolous appeal.

Furthermore, in this case, Ali Moghimi was involved in a method of deception that involved hiding or obscuring the truth to the extent I believe he should not enjoy the luxury of protection of his corporate (or LLC) entity. It is evident by this record that solely due to Moghimi's subterfuge, (1) the course of seemingly straightforward litigation in city court was needlessly extended for a period, to this date, of five years, and, (2) Davis was left with a judgment against a corporation no longer in business and without assets.

It is well settled that a corporation is a distinct legal entity, separate from the individuals who comprise it. La. C.C. art. 24 ; Kemper v. Don Coleman, Jr., Builder, Inc. , 31,576 (La. App. 2 Cir. 07/29/99), 746 So.2d 11, 18, writ denied , 1999-2954 (La. 01/07/00), 752 So.2d 861, and writ denied , 1999-2955 (La. 01/07/00), 752 So.2d 861. However, on the record before us, it is difficult to see any separation between Moghimi and European Service, Inc. (or European Motors, or Ouachita European Auto Service, LLC, for that matter); Moghimi and his business(es) simply and completely merge into a single entity (or person, i.e. Moghimi), leaving Davis with virtually no legal recourse or relief.

Although the trial court was not called to address specifically the issues of fraud, malfeasance, or wrongdoing, at the end of the day, James Davis was out $2,000.00, as well as his vehicle, with no cogent explanation by Moghimi. Now, Davis is left with a judgment against a corporation that Moghimi claims is no longer in business or has any assets. And despite Moghimi's claim he has over a million dollars in the bank, he has offered only to pay Davis $250 a month. Fortune, based upon fraud, should not cause Moghimi to escape further relief being afforded Davis.

      City courts and parish courts are trial courts of limited jurisdiction. La. C.C.P. art. 4832. Thus, it may be said that city courts, like parish courts, were created to provide a forum for plaintiffs in small, uncomplicated cases with relatively small damages. See In re Gas Water Heater Prod. Liab. Litig. , 97-2028 (La. 4/14/98), 711 So.2d 264.

      At a May 2, 2013 hearing, Moghimi informed the court that "European Motors" was an entity which sold cars at that location, but "European Service" was the company that provided service on European cars. He then stated that the owners of European Motors were himself; "Mr. Nejad" (apparently his father-in-law, Dr. Jahangir J. Jahanfir-Nejad, a retired oncologist, who is hereinafter referred to as "Dr. Nejad"); and Destin Cook. However, he specifically named himself as the sole owner of European Service. At a judgment debtor rule conducted on May 25, 2016, Moghimi contradicted that statement by declaring that European Service was owned by his father-in-law.

      The transcript of the hearing on the motion for summary judgment demonstrates that Moghimi was present and requested that the court allow him time for "discoveries." We point this out to show that Moghimi was actively involved in this protracted litigation from its inception. In fact, there is a complaint in the defendant's subsequent motion for new trial about having "to undergo the expense" of the motion for summary judgment to remove Stegall from the litigation.

      Moghimi apparently has a lengthy history of self-representation in Monroe City Court for a variety of companies in which he has ownership interests. Many of these cases have been further litigated before this court or the Louisiana Supreme Court as appeals or writs. They include Craig v. Moghimi , 2015-0325 (La. 4/24/15), 169 So.3d 360 ; H.D. Graphics, L.L.C. v. It's Permanent, L.L.C. , 49,405 (La. App. 2 Cir. 10/1/14), 150 So.3d 936 ; Johnson v. European Motors-Ali , 48,513 (La. App. 2 Cir. 11/20/13), 129 So.3d 697, writ denied , 2013-2964 (La. 2/28/14), 134 So.3d 1178 ; Davis v. European Servs., Inc. , 2013-0376 (La. 4/1/13), 110 So.3d 588 ; Moghimi v. Rawls , 2013-0398 (La. 4/1/13), 110 So.3d 590 ; and Watkins v. Freeway Motors , 29,385 (La. App. 2 Cir. 4/2/97), 691 So.2d 854.

      When he subsequently filed a memo in support of the exception on May 2, 2013, Moghimi attached two other such documents from the Louisiana Secretary of State. One was for "European Motors Incorporated," an inactive business on Rapides Avenue in Alexandria, whose registered agents were Joseph Stone and David A. Sheffield. The other was for "European Service, Inc.," which listed the Louisville Avenue in Monroe; it also listed Moghimi as Secretary/Treasurer (with the Louisville Avenue address) and Dr. Nejad as both an officer and the registered agent. The address given for Dr. Nejad as an officer was the Louisville Avenue one, but the registered agent address was on Bramble Drive in Monroe. It stated that the charter was revoked on May 18, 2012, and reinstated on May 1, 2013.

      The transcript reflects that the court had two separate trials on that day involving Moghimi. The plaintiff in the other case, Golden Craig, appears to be the same litigant as in Craig v. Moghimi , supra.

      We note this statement with great interest in light of Moghimi's insistence throughout the proceedings that European Service, Inc., was the proper entity to be sued.

      The information gleaned from this hearing included Moghimi's declaration that he personally had more than $1 million in a bank, two aircraft, and property, but that European Service had no bank accounts and no property. He further stated that the corporation was owned by his "ailing father-in-law, Dr. Nejad," who was now bedridden and "incoherent." This differed from Moghimi's statement at the May 2, 2013 hearing when he declared that he owned all the stock in European Service.

      La. R.S. 37:212(C) provides:
      C. Nothing in this Section shall prohibit any partnership, corporation, or other legal entity from asserting or defending any claim, not exceeding five thousand dollars, on its own behalf in the courts of limited jurisdiction or on its own behalf through a duly authorized partner, shareholder, officer, employee, or duly authorized agent or representative. No partnership, corporation, or other entity may assert any claim on behalf of another entity or any claim assigned to it.