text:
    STATE of Louisiana v. Joseph DAVIS
    NO. 2017 KA 0168
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: FEBRUARY 27, 2018
    Hillar C. Moore, III, District Attorney, Dylan C. Alge, Assistant District Attorney, Baton Rouge, LA, Attorneys for Appellee, State of Louisiana
    Jane L. Beebe, Louisiana Appellate Project, New Orleans, LA, Attorney for Defendant-Appellant, Joseph Lee Davis
    Joseph Lee Davis, Morgan City, LA, In Proper Person
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
   HIGGINBOTHAM, J.

The defendant, Joseph Davis, was charged by bill of information on February 11, 2008, with possession of cocaine, a violation of La. R.S. 40:967(C). The State dismissed this bill without prejudice on February 2, 2009. Subsequently, on May 11, 2010, the State filed a second bill of information, for the same crime. The defendant filed a motion to quash the second bill of information as untimely filed. Following a hearing on the matter, the motion to quash was denied. The defendant pled not guilty and, following a jury trial, was found guilty as charged. He was sentenced to two years imprisonment at hard labor. The sentence was suspended, and the defendant was placed on two years of active, supervised probation. The defendant now appeals, designating one assignment of error.

FACTS

On November 9, 2007, at about 8:30 p.m., Sergeant James Cooper, with the East Baton Rouge Sheriff's Office, was patrolling eastbound on I-12, near the Sherwood Forest Boulevard exit. Deputy Holley, a trainee, was riding with Sergeant Cooper. He got behind an Oldsmobile Delta 88, being driven by the defendant. The license plate light was not working on the defendant's car. As Sergeant Cooper continued to follow the vehicle, the defendant swerved over to the far right lane a couple of times. Sergeant Cooper turned on his lights and siren and conducted a traffic stop. The defendant pulled over on the Sherwood Forest Boulevard exit-ramp.

Sergeant Cooper approached the driver's side and asked the defendant for his driver's license. Deputy Holley stood on the passenger's side of the defendant's car. While the defendant, still in his car with the door open, was looking for his driver's license, Sergeant Cooper shined a flashlight into the defendant's car. Sergeant Cooper saw what appeared to be (and was later identified as) crack cocaine inside a clear plastic bag in the driver's-side door panel; he seized the bag and tossed it on the roof of the defendant's car, toward Deputy Holley. According to Sergeant Cooper, The defendant was not aware that the drugs had been removed. Deputy Holley did not take possession of the drugs.

The defendant stepped out of his vehicle, and Sergeant Cooper told the defendant to turn around and put his hands behind his back. As the defendant turned toward his own car, he saw the cocaine on his roof. He grabbed the cocaine and put it in his mouth. A struggle ensued, whereby Sergeant Cooper tried to prevent the defendant from swallowing the drugs. Sergeant Cooper and the defendant fell to the ground and continued to fight over control of the cocaine. Sergeant Cooper, while yelling commands to the defendant to spit it out, kept one arm around the defendant's neck so that he could not swallow. Deputy Holley approached the defendant and used a drive stun on him. The taser had little to no effect on the defendant. As Sergeant Cooper and the defendant continued to struggle on the ground, more police showed up. One of the officers used a drive stun on the defendant, again producing little to no effect. Another officer sprayed mace in the defendant's face, which caused him to submit and to spit out the cocaine. As Sergeant Cooper stood up, he saw a second bag of crack cocaine on the ground next to the driver's side door of the defendant's car.

After the defendant was Mirandized, Sergeant Cooper asked the defendant where he got the crack cocaine from. The defendant told him that he had bought it in the Brookstown area earlier that day and that he intended to sell it to make some money. The total weight of the two bags of cocaine was 5.18 grams.

The defendant did not testify at trial.

ASSIGNMENT OF ERROR

In his sole assignment of error, the defendant argues the trial court erred in denying the motion to quash the bill of information. Specifically, the defendant contends the State failed to prosecute him in a timely manner.

The defendant was charged with possession of cocaine on November 9, 2007. The State filed the first bill of information on February 11, 2008. The State dismissed this bill without prejudice on February 2, 2009. The State filed a second bill of information, for the same crime, on May 11, 2010. Because the original bill of information had been nolle prossed , this new bill of information had a different docket number. On January 12, 2011, the defendant filed a motion to quash the bill of information, which alleged that the reinstitution of charges by the State was untimely. Three weeks later at a hearing on the motion to quash, the trial court denied the motion.

The defendant argues in brief that the trial court should have quashed the new bill of information because the State failed to prosecute him in a timely manner. According to the defendant, the State should have reinstituted the charge against him within six months, pursuant to La. Code Crim. P. art. 576, rather than one year and three months later. Further, the defendant avers, since more than two years had passed between filing of the bills of information, the State had the burden to prove that the dismissal of the first bill of information was not to avoid the two-year prescription under La. Code Crim. P. art. 578.

A trial court's ruling on a motion to quash should not generally be reversed in the absence of a clear abuse of the trial court's discretion. See State v. Odom, 2002-2698 (La. App. 1st Cir. 6/27/03), 861 So.2d 187, 191, writ denied, 2003-2142 (La. 10/17/03), 855 So.2d 765. A trial court's legal findings, however, are subject to a de novo standard of review. See State v. Smith, 99-0606, 99-2015, 99-2019, 99-2094 (La. 7/6/00), 766 So.2d 501, 504. In this case, the trial court's ruling on the motion to quash is based on a legal finding and is, therefore, subject to de novo review. See State v. Vernell, 2010-0990 (La. App. 1st Cir. 12/22/10), 68 So.3d 553, 555-56, writ denied, 2011-1912 (La. 2/3/12), 79 So.3d 1025.

The defendant was charged with possession of cocaine, a conviction for which the defendant was subject to imprisonment with or without hard labor for not more than five years. See La. R.S. 40:967(C)(2) (prior to the 2017 amendment). Louisiana Code of Criminal Procedure Article 572 provides in pertinent part:

A. Except as provided in Articles 571 and 571.1, no person shall be prosecuted, tried, or punished for an offense not punishable by death or life imprisonment, unless the prosecution is instituted within the following periods of time after the offense has been committed:
* * * * *
(2) Four years, for a felony not necessarily punishable by imprisonment at hard labor.

La. Code Crim. P. art. 578 provides in pertinent part:

A. Except as otherwise provided in this Chapter, no trial shall be commenced nor any bail obligation be enforceable:
(1) In capital cases after three years from the date of institution of the prosecution;
(2) In other felony cases after two years from the date of institution of the prosecution;
* * * * *
B. The offense charged shall determine the applicable limitation.

Under La. Code Crim. P. art. 578(A)(2), therefore, trial of a non-capital felony must be commenced within two years from the date of institution of the prosecution. "Institution of prosecution" includes the filing of a bill of information, which is designed to serve as the basis of a trial. La. Code Crim. P. art. 934(7) ; State v. Cotton, 2001-1781 (La. App. 1st Cir. 5/10/02), 818 So.2d 968, 971, writ denied, 2002-1476 (La. 12/13/02), 831 So.2d 982.

The district attorney has the power to dismiss a formal charge, in whole or in part, and it is not necessary that he obtain consent of the court. See La. Code Crim. P. art. 691 ; Vernell, 68 So.3d at 556. The dismissal of such a formal charge by the district attorney is not, subject to narrowly delineated exceptions, a bar to a subsequent prosecution. See La. Code Crim. P. art. 693 ; Vernell, 68 So.3d at 556.

Louisiana Code of Criminal Procedure Article 576 provides:

When a criminal prosecution is timely instituted in a court of proper jurisdiction and the prosecution is dismissed by the district attorney with the defendant's consent, or before the first witness is sworn at the trial on the merits, or the indictment is dismissed by a court for any error, defect, irregularity, or deficiency, a new prosecution for the same offense or for a lesser offense based on the same facts may be instituted within the time established by this Chapter or within six months from the date of dismissal, whichever is longer.
A new prosecution shall not be instituted under this article following a dismissal of the prosecution by the district attorney unless the state shows that the dismissal was not for the purpose of avoiding the time limitation for commencement of trial established by Article 578.
[Emphasis added.]

The defendant argued at the motion to quash hearing, and argues here in brief, that pursuant to La. Code Crim. P. art. 576, the State failed to reinstitute the charge within six months from the date of dismissal of the original bill of information. Six months, however, is not the applicable time period. Louisiana Code of Criminal Procedure Article 572, which provides the State in this case with a four-year time limitation to institute prosecution, is contained within the same chapter as La. Code Crim. P. art. 576. See Vernell, 68 So.3d at 556. Since La. Code Crim. P. art. 576 provides that a new prosecution for the same offense may be instituted within the time established by this Chapter or within six months from the date of dismissal, whichever is longer, the State's time allowance for instituting a new prosecution fell under the four-year period of La. Code Crim. P. art. 572 because it is longer than the six-month period under La. Code Crim. P. art. 576.

The defendant also argued at the motion to quash hearing, and argues here in brief, that, in any event, the State had no more than two years to institute prosecution under La. Code Crim. P. art. 578(2). Since two years and three months elapsed between the first and second filings by the State, the institution of prosecution, according to the defendant, was untimely.

At the motion to quash hearing, the prosecutor noted that at the previous hearing on February 2, 2009, wherein he dismissed the first bill of information, he informed defense counsel (who, at that time, was Kathleen Petersen) that he was dismissing the bill of information because three of his witnesses failed to appear. The prosecutor further pointed out at this February 2 meeting that the State was dismissing without prejudice, so that in the event the State was able to find the witnesses "and if we have a reasonably acceptable explanation for their actions, then we reserve the right certainly to pursue Mr. Davis for the alleged criminal conduct."

Regarding the missing witnesses, the prosecutor stated at the instant motion to quash hearing:

One of them was out of state in school. The second one was on active duty in Iraq. And Deputy Cooper, who we contacted, who is present in court today, by the way, who we contacted a couple of times, did not respond to our subpoena. So, as is, I think-I wouldn't call it customary, but I thought I was being fairly generous at the time out of courtesy to Ms. Peterson. But because my witnesses-because it was my fault that we could not proceed with the matter, I dismissed the case. And I didn't give it a second thought. But at the time I dismissed it, I noted for the record the State acted first. The State dismissed without prejudice. If we have a reasonable explanation for their actions, for the deputies not being present, then we reserve the right certainly to pursue Mr. Davis for the alleged criminal conduct. And that's precisely what happened. We reinstituted prosecution within the four-year time period allowed by statute. The dismissal was because my witnesses failed to appear, not to avoid the time limitation, the two-year time limitations for bringing this matter to trial.

The foregoing analysis by the prosecutor regarding the time limitations for prosecution was correct. The effect of a dismissal, or nolle prosequi, is to discharge the particular indictment, bill of information, or affidavit; however, it does not necessarily bar further prosecution if it was entered before the first witness was sworn. Vernell, 68 So.3d at 557. See La. Code Crim. P. arts. 576, 691, & 693. The second paragraph of La. Code Crim. P. art. 576 does not create a presumption that a prosecution has been dismissed in order to circumvent the time limitations for commencement of trial. Rather, the second paragraph of Article 576 would preclude a new prosecution unless the State shows that the dismissal was not for the purpose of avoiding the time limitation for commencement of trial established by La. Code Crim. P. art. 578. Vernell, 68 So.3d at 557.

A court's resolution of motions to quash in cases where the district attorney entered a nolle prosequi and later reinstituted charges should be decided on a case-by-case basis. Vernell, 68 So.3d at 556. In situations where it is evident that the district attorney is flaunting his authority for reasons that show that he wants to favor the State at the expense of the defendant, such as putting the defendant at risk of losing witnesses, the trial court should grant a motion to quash and an appellate court can appropriately reverse a ruling denying a motion to quash in such a situation. State v. Love, 2000-3347 (La. 5/23/03), 847 So.2d 1198, 1209. Herein, there is no evidence the district attorney was avoiding the time limitation for commencement of trial or was flaunting his authority at the expense of the defendant. The record indicates, rather, that a nolle prosequi was entered because witnesses for the State were not available to testify at trial. The defendant was alone when he was arrested by the police for possessing cocaine; and the defendant did not argue, nor ever made any showing, that he had lost a witness that would testify on his behalf because of the State's dismissal.

Moreover, the original charge against the defendant was dismissed only twelve months after the institution of the original prosecution. See Vernell, 68 So.3d at 557 (where the charges were dismissed only twelve months after the institution of the original prosecution). Thus, with the State having had another year to move forward with the original prosecution before dismissing under La. Code Crim. P. art. 578(2), it is clear the State did not enter a nolle prosequi to avoid the time limitation for commencement of trial. As such, there is no need to show that the defendant consented to the dismissal since there was no commencement of trial or swearing in of a witness prior to the dismissal of the original prosecution. See Vernell, 68 So.3d at 557. We find that the reinstitution of prosecution on the possession of cocaine charge, though made after six months from the original dismissal, was timely under the limitations set forth in La. Code Crim. P. art. 572, as the prosecution was reinstituted on May 11, 2010, less than four years after the November 9, 2007 commission of the offenses. See Vernell, 68 So.3d at 557.

The defendant, both in his filed motion to quash and at the motion to quash hearing, erred in calculating the time delay for commencement of trial from the date of the original, discharged bill of information. In non-capital felony cases, the State has two years from the reinstitution of prosecution to commence trial, barring any interruption or suspension of the time delay. See State v. Hearin, 409 So.2d 577, 578-79 (La. 1982) (where the State's re-indictment was not for the purpose of avoiding the time limitation established by La. Code Crim. P. art. 578, the new prosecution was found timely though instituted after the time limitations for commencement of trial had elapsed but within the time limitations for a new prosecution provided by La. Code Crim. P. art. 576 ); Vernell, 68 So.3d at 557-58. Since the effect of a dismissal is to discharge the particular indictment or bill of information, the two-year time limitation for commencement of trial cannot continue to run under a prosecution that no longer exists. Rather, this time period began to run anew with the filing of a new bill of information. Vernell, 68 So.3d at 558.

We find that the 2010 reinstitution of prosecution for the 2007 offense was timely, as it was not in violation of La. Code Crim. P. art. 572 and was not precluded by La. Code Crim. P. art. 576. See Vernell, 68 So.3d at 558. Accordingly, the trial court did not err in denying the motion to quash.

The assignment of error is without merit.

CONVICTION AND SENTENCE AFFIRMED.

      Deputy Holley's first name was not given at trial. Sergeant Cooper testified that Deputy Holley was no longer with the police department.

      Sergeant Cooper explained that a drive stun is the use of a taser device, wherein the barbs are removed and the exposed prongs on the device are applied directly to the body. This method, according to Sergeant Cooper, is not as effective as tasering with the barbs.

      A motion to quash is the proper vehicle to assert that the time limitation for the institution of prosecution or commencement of trial has expired. La. Code Crim. P. arts. 531 and 532(7).

      The defendant did not assert that his speedy trial rights were violated in brief, in the filed motion to quash, or at the motion to quash hearing.


source: Caselaw Access Project

author: HIGGINBOTHAM, J.

license: Public Domain

text:
    Brad D. MCCARY v. OCEANEERING INTERNATIONAL, INC.
    NO. 2017 CA 1163
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: FEBRUARY 27, 2018
    S. Patrick Skiles, Morgan City, LA, Willard P. Schieffler, Thibodaux, LA, Attorneys for Plaintiff-Appellee, Brad D. McCary
    Michael A. McGlone, Brett Fenasci, New Orleans, LA, Attorneys for Defendant-Appellee, Oceaneering International, Inc.
    Edward S. Johnson, Christopher L. Williams, New Orleans, LA, Attorneys for Intervenors-Appellants, International Marine Services, LLC and Signal Mutual Indemnity Association, LTD.
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
   HIGGINBOTHAM, J.

Plaintiff, Mr. Brad McCary, was injured on a vessel owned by defendant, Oceaneering International, Inc., during the course and scope of his employment with International Marine Systems, LLC (IMS). He received benefits under the Longshore and Harbor Workers' Compensation Act (LHWCA) from IMS and its insurer, Signal Mutual Indemnity Association, LTD (Signal). IMS and Signal (Intervenors) intervened in plaintiff's suit against the alleged third-party tortfeasor, Oceaneering, seeking subrogation for expenses and benefits paid on his behalf. In response, Mr. McCary and Oceaneering filed separate motions for summary judgment seeking dismissal of Intervenors' claims based on a Mutual Indemnity and Waiver Agreement entered into by Oceaneering and IMS. Both of their motions were granted, and Intervenors appealed.

FACTS

In March 2008, Mr. McCary was employed by IMS as an electronics technician. At that time, IMS was providing electrical services directly for Oceaneering. On March 3, 2008, in the course and scope of his employment with IMS, Mr. McCary was working on a job aboard a vessel owned and operated by Oceaneering and docked in Port Fourchon, Louisiana, when he fell while on the stairs of the vessel. After his fall, IMS's compensation insurer, Signal, paid compensation and medical benefits to Mr. McCary on behalf of IMS under the LHWCA.

On March 3, 2009, Mr. McCary filed suit against Oceaneering, alleging negligence on the part of Oceaneering and seeking damages for injuries he sustained as a result of the fall. On October 4, 2011, Intervenors filed a petition for intervention in Mr. McCary's suit seeking to recover the compensation and medical benefits that Intervenors paid to Mr. McCary, if there should be any recovery of damages by Mr. McCary from Oceaneering.

After numerous motions, discovery requests, and a change of counsel, on January 18, 2017, Mr. McCary filed a motion for summary judgment seeking dismissal of Intervenors' claims based on a "Mutual Indemnity and Waiver Agreement" between IMS and Oceaneering executed on September 27, 2006, in which Mr. McCary contends that IMS contractually agreed to waive all claims of subrogation and/or reimbursement (the agreement). On February 3, 2017, Oceaneering also filed a motion for summary judgment seeking dismissal of Intervenors' claims for the reasons laid out in Mr. McCary's motion. Intervenors opposed both motions contending that the agreement did not apply to this case. Specifically, Intervenors argued that under paragraph (a), the agreement only applies in situations when both IMS and Oceaneering are working for some common third party but not, as in this case, when IMS was doing work directly for Oceaneering.

The matter came before the trial court for hearing on May 3, 2017, at which time, the trial court found that under the clear language of the contract, "IMS and Oceaneering intended to modify their relationship and enter into this ... agreement to avoid disputes as to their respective property and employees." Thereafter, on May 23, 2017, the trial court signed a judgment granting both Mr. McCary and Oceaneering's motions for summary judgment and dismissing the claims of Intervenors. It is from this judgment that Intervenors appeal, contending that the trial court erred in its interpretation of the scope of the agreement.

LAW AND ANALYSIS

After an opportunity for adequate discovery, 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. Code Civ. P. art. 966(A)(3). The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of every action. La. Code Civ. P. art. 966(A)(2).

The burden of proof is on the mover. La. Code Civ. P. art. 966(D)(1). Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion, the mover's burden does not require that all essential elements of the adverse party's claim, action, or defense be negated. Rather, the mover must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, the adverse party must produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. La. Code Civ. P. art. 966(D)(1). If, however, the mover fails in his burden to show an absence of factual support for one or more of the elements of the adverse party's claim, the burden never shifts to the adverse party, and the mover is not entitled to summary judgment. Succession of Hickman v. State Through Bd. of Supervisors of Louisiana State Univ. Agricultural and Mechanical College, 2016-1069 (La. App. 1st Cir. 4/12/17), 217 So.3d 1240, 1244.

In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Reynolds v. Bordelon, 2014-2371 (La. 6/30/15), 172 So.3d 607, 610. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Succession of Hickman, 217 So.3d at 1244. In this case, the substantive law is based on interpretation of a contract.

The determination of whether a contract is clear or ambiguous is a question of law. Sims v. Mulhearn Funeral Home, Inc., 2007-0054 (La. 5/22/07), 956 So.2d 583, 590. When a contract can be construed from the four corners of the instrument without looking to extrinsic evidence, the question of contractual interpretation is answered as a matter of law and summary judgment is appropriate. Sims, 956 So.2d at 590 ; see also Claitor v. Brooks, 2013-0178 (La. App. 1st Cir. 12/27/13), 137 So.3d 638, 644-645, writ denied, 2014-0198 (La. 4/4/14), 135 So.3d 1182. The general rules which govern the interpretation of other contracts apply in construing a contract of indemnity. McKinney v. South Central Bell Telephone Company, 590 So.2d 1220, 1222 (La. App. 1st Cir. 1991), writ denied, 592 So.2d 1302 (La. 1992), citing Liem v. Austin Power, Inc., 569 So.2d 601, 608 (La. App. 2d Cir. 1990).

The following general codal principles guide our interpretation of the contract, including its indemnity provisions. Interpretation of a contract is the determination of the common intent of the parties. La. Civ. Code art. 2045. This is an objective inquiry; thus, "a party's declaration of will becomes an integral part of his will." La. Civ. Code art. 2045, 1984 Official Revision Comment (b). When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties' intent. La. Civ. Code art. 2046. The words of a contract must be given their generally prevailing meaning. La. Civ. Code art. 2047. Words susceptible of different meanings must be interpreted as having the meaning that best conforms to the object of the contract. La. Civ. Code art. 2048. Each provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole. La. Civ. Code art. 2050.

The obligation to indemnify may be express, as in a contractual provision, or may be implied in law, even in the absence of an indemnity agreement. Nassif v. Sunrise Homes, Inc., 98-3193 (La. 6/29/99), 739 So.2d 183, 185. Here, the indemnity obligation is expressed in a contract between the parties. As such, the contract of indemnity forms the law between the parties and must be interpreted according to its own terms and conditions. See Naquin v. Louisiana Power & Light Company, 2005-2103 (La. App. 1st Cir. 9/15/06), 943 So.2d 1156, 1161, writ denied, 2006-2476 (La. 12/15/06), 945 So.2d 691.

In this matter, the sole issue is whether the agreement entered into by IMS and Oceaneering in 2006 applies when IMS is providing services directly to Oceaneering. IMS takes the position that the language of the "whereas clause" in paragraph (a) in the agreement limits the agreement to circumstances where Oceaneering and IMS were providing equipment or personnel pursuant to agreements with third parties, and there is no language in the agreement expressing any intent of the parties to have the contract apply to other situations, including instances where IMS was hired to perform work directly for Oceaneering.

The introductory paragraphs provide the language that is in dispute and state:

This Mutual Indemnity and Waiver Agreement ("Agreement"), made as of this 27 day of September, 2006, between [IMS] a corporation with offices located at 2845 Hwy 311, Schriever, LA 70395 ... and [Oceaneering] a Delaware corporation with offices located at 1191 FM 529, Houston, Texas 77041..., witnesseth:
Whereas, a) [IMS] and [Oceaneering] have each entered into an agreement(s) (each a "Contract") with one or more third parties regarding the supply or performance of work, services, equipment and/or vessels associated with or incident to offshore operations utilizing the [IMS]'s and [Oceaneering]'s equipment and/or personnel (the "Operations"); and
b) The parties wish to modify their relationship at law and avoid entirely disputes as to their liabilities for damage or injuries to their respective property or employees by providing for a mutual indemnity regime between the parties with respect to their respective personnel and property;

In favor of their motions for summary judgment, Mr. McCary and Oceaneering rely on the language of the agreement and include additional evidence primarily to point out that at the time the agreement was entered into, IMS was hired to perform work directly for Oceaneering, which was the impetus for the agreement, and there was no evidence that IMS and Oceaneering at that time or on any occasion worked for any mutual third party. Mr. McCary attached Oceaneering's responses to interrogatories, which noted that in September 2006, Oceaneering hired IMS to perform certain upgrade work on one of its vessels. Oceaneering also attached an email chain, in which on September 1, 2006, Oceaneering sent a copy of the agreement and stated in an email: "[Oceaneering] requires all vendors who perform work or services on any of our vessels to sign the attached [agreement]." Oceaneering also attached the deposition of Wes Hill, a service manager for IMS, who acknowledged that all the work he was involved with which included Oceaneering would have been in situations where Oceaneering was hiring IMS to perform some type of services for them on their vessel.

The language of paragraphs (a) and (b) of the agreement does not limit the application of the contract to situations where Oceaneering and IMS were providing equipment or personnel pursuant to agreements with third parties. The clauses of a contract which begin with the word 'whereas' simply state the reasons for the confection and the mental intent of the parties. Succession of Ramp, 252 La. 660, 671, 212 So.2d 419, 423 (La. 1968). Keeping with the codal rules, we are unable to end our inquiry by mere examination of the contract's "introductory" provision. The contract must be read as a whole giving meaning to each passage. See U.S. Environmental Services, L.L.C. v. Nelson, 2010-1817, 2011 WL 3759922, *6 (La. App. 1st Cir. 8/25/11) (unpublished). See also La. Civ. Code art. 2050, which provides: "[e]ach provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole."

In the agreement, the clause after the introductory paragraph provides: "therefore, in consideration of the premises and reciprocal covenants contained herein, the receipt and sufficiency of which parties acknowledge the parties agree as follows:" in the following clauses, the parties unequivocally mutually agree to indemnify each other for any cause of action associated with the performance of work associated with or incident to offshore operations utilizing Oceaneering and IMS's equipment and or personnel. The relevant language provides "[IMS] shall be liable for, waives all right of recourse against [Oceaneering] with respect to, and shall release, indemnify and hold harmless [Oceaneering] from and against, any and all claims, demands or causes of action of every kind and character brought by any person or party, for injury to ...any member of [IMS] ...which injury arises out of or is incident to the Operations."

After review of the agreement, we find it can be construed from the four comers of the instrument without looking to extrinsic evidence; thus the question of contractual interpretation is answered as a matter of law and summary judgment is appropriate. We find no ambiguity that the agreement clearly governs situations where IMS was performing work directly for Oceaneering, including the work being performed by Mr. McCary when the incident occurred. Therefore, we affirm the decision of the trial court.

CONCLUSION

For the foregoing reasons, the judgment of the trial court granting summary judgments in favor of Mr. McCary and Oceaneering and dismissing the claims of IMS and Signal is affirmed. All costs of this proceeding are assessed to International Marine Systems, LLC, and Signal Mutual Indemnity Association, LTD.

AFFIRMED.

      Louisiana Code of Civil Procedure art. 966, regarding summary judgment, was amended and reenacted by La. Acts 2015, No. 422, § 1, with an effective date of January 1, 2016. The legal standard to be used by the courts in granting a motion for summary judgment remains unchanged by the recent legislative amendments to Article 966. See La. Code Civ. P. art. 966, 2015 cmt. (b).


author: HOLDRIDGE, J.

text:
    In the MATTER OF the SUCCESSION OF Don Michael BRIDGES, Sr.
    2017 CA 1291
    Court of Appeal of Louisiana, First Circuit.
    Judgment rendered: FEBRUARY 27, 2018
    Alex J. Peragine, Christina Falco Baldwin, Covington, LA, Attorneys for Appellee, Pamela Ann Gouedy Bridges
    Eric Oliver Person, New Orleans, LA, Attorney for Appellant, Don Michael Bridges, Jr.
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
   HOLDRIDGE, J.

Appellant, Don Michael Bridges, Jr. (Don Bridges), appeals a judgment denying numerous requests for relief in this succession proceeding. We affirm.

PROCEDURAL AND FACTUAL BACKGROUND

The facts forming the basis for this appeal are largely undisputed. Don Michael Bridges, Sr. (Mr. Bridges) and Pamela Ann Gouedy Bridges (Pamela) were married in 1979 and divorced in 1988. While they were divorced, on May 7, 2002, Mr. Bridges executed a testament by notarial act in which he directed, in pertinent part:

I, DON MICHAEL BRIDGES, SR., being of sound mind, do hereby make this my last will and testament, revoking any and all prior wills, testaments, and codicils.
I name and appoint my former wife PAMELA ANN GOUEDY BRIDGES as the Executrix of my estate with full seizen and without bond. As Executrix of my estate PAMELA ANN GOUEDY BRIDGES may act as an Independent Executrix.
I leave as a special bequest to my son DON MICHAEL BRIDGES, JR. the entirety of my interest in and to lot 5-A of a resubdivision of former lot 5 of Block F of Abita Springs Estates Subdivision measuring 120 feet on Abita Springs Drive, same depth in the rear, between equal and parallel lines of 401.47 feet.
I leave the remainder of my estate, regardless of whether movable or immovable, separate or community, or corporeal or incorporeal unto my former wife PAMELA ANN GOUEDY BRIDGES.
In the event my former wife PAMELA ANN GOUEDY BRIDGES should predecease me or not survive me by ninety days, then I leave the entirety of my estate to my son DON MICHAEL BRIDGES, JR.

Following the execution of the testament, on October 10, 2005, Mr. Bridges and Pamela remarried. They divorced a second time on May 25, 2016. On August 25, 2016, Mr. Bridges passed away.

On October 12, 2016, Pamela filed a petition to execute Mr. Bridges' testament and to be appointed as testamentary executor of the estate. In the petition, Pamela asked that the court issue a rule to show cause against Don Bridges, the decedent's only descendant, ordering him to show cause why the testament of his father should not be given the effect of probate and executed according to law, and to show cause why letters testamentary should not be issued, confirming her appointment as the testamentary executor of the decedent's estate. Pamela was confirmed as the independent executor of the succession by order of the court dated October 20, 2016.

On March 3, 2017, Pamela filed an ex parte petition for possession seeking to have the court recognize her as the sole legatee of the decedent and to be sent into possession of all property of the estate. Three days later, the trial court signed a judgment of possession recognizing Pamela as the sole legatee of Mr. Bridges' estate and sending her into possession of all assets of the estate.

Thereafter, on April 3, 2017, Don Bridges filed a summary motion to seeking to: (1) annul the probated testament; (2) vacate the order appointing Pamela as the administrator of the estate; (3) have the court recognize his succession rights; and (4) enjoin any and all actions by Pamela in the succession proceedings. In the motion, Don Bridges asserted that La. C.C. art. 1608 mandated revocation of the legacy to Pamela and her appointment as the executor of the estate.

Louisiana Civil Code article 1608 provides five modes of revoking a legacy or other testamentary disposition. Specifically, Article 1608(5) provides that a revocation of a legacy or other testamentary provision occurs when the testator "[i]s divorced from the legatee after the testament is executed and at the time of his death, unless the testator provides to the contrary." This mode of revocation also applies to all testamentary designations or appointments of the former spouse. La. C.C. art. 1608(5). Don Bridges argued that Article 1608(5) applied in this case because Pamela and his father had in fact remarried and divorced again after the testament was executed, and were thus divorced after the testament was executed and at the time of Mr. Bridges' death. He also argued that the testament contained no provision for it to remain in effect following Pamela and Mr. Bridges' second divorce. Don Bridges asked the court to annul the testament, annul the judgment of possession, appoint him as the administrator of the estate, and place him in possession of the entirety of his father's estate.

On April 7, 2017, the trial court issued a rule ordering that Pamela show cause why: (1) the testament admitted to probate in these proceedings should not be declared null; (2) she should not be removed as testamentary executor and beneficiary of a judgment declaring her to be the owner of the decedent's estate; and (3) Don Bridges should not be declared the administrator of the estate and sole heir of the estate. A hearing on the rule was held on May 11, 2017.

On May 17, 2017, the trial court signed written reasons for judgment denying all relief sought by Don Bridges. Therein, the court concluded that Article 1608(5) did not apply to the instant matter because Mr. Bridges and Pamela were not married at the time Mr. Bridges executed his testament. The trial court then concluded that the intent of the testator controlled interpretation of the testament, and found that Mr. Bridges clearly set forth his intent for his former wife to serve as the executor of and legatee to his estate. On June 7, 2017, the trial court signed a written judgment denying with prejudice all relief sought by Don Bridges in this proceeding.

APPLICABILITY OF LOUISIANA CIVIL CODE ARTICLE 1608(5)

In this appeal, Don Bridges contends that the trial court erred in failing to find that the bequest to Pamela and the appointment of Pamela as succession representative were revoked under Article 1608(5). He maintains that Article 1608(5) is silent as to the marital status of the decedent at the time the testament was written and clearly provides that the appointment of Pamela as succession representative and the bequest made to her were revoked when she and the decedent were divorced after the testament in her favor was executed. Don Bridges further asserts that the trial court erred in searching for the intent of the decedent, which led to the court's wrongfully denying him the right, as the only heir of the decedent, to be placed in possession of all property left by the decedent at the time of his death.

Pamela contends that Article 1608(5) presumes that the testator is married to the legatee at the time of the execution of the testament; otherwise, the provision would make no sense. She argues that she and Mr. Bridges' subsequent remarriage and divorce does not overcome the presumption that Mr. Bridges specified his former wife to be the executor and legatee of his estate. Pamela argues that for Article 1608(5) to apply, Mr. Bridges would have had to have been married to her when he executed the testament; and as he was not, the trial court appropriately found Article 1608(5) did not apply and that Mr. Bridges' testament reflected his clear intent for his former wife to serve as executor of and legatee to his estate.

We agree that in this unique factual situation, Article 1608(5) does not apply. While it is true that Mr. Bridges and Pamela were divorced a second time after the testament was executed, they were not married at the time the testament was executed. Both at the time the testament was executed and at the time of his death, Mr. Bridges was divorced from Pamela. Comments to Article 1608 indicate that the addition of the divorce revocation provision recognizes that when a testator becomes divorced from a spouse, more often than not, he does not want that spouse to serve as the executor of his estate. The new rule was added, consistent with Louisiana domestic relations laws, by providing that the divorce must have occurred after the testament was executed, and that there must have been no reconciliation. Comment (f) La. C.C. art. 1608. We find that the status of the parties at the time the testament is executed is controlling. Although Article 1608(5) does not specifically state that the parties must be married at the time the testament is executed for the provision to apply, it contemplates that the parties are married at the time of the execution of the testament and that a subsequent divorce would revoke the testament. Because Mr. Bridges and Pamela were divorced both at the time the testament was executed and at the time of Mr. Bridges' death, Article 1608(5) does not mandate revocation of the legacy to Pamela and her appointment as executor of the estate.

Moreover, a testator is free to provide contrary to Article 1608(5)'s revocation provision, so that even though the parties may be divorced, the testator may make a bequest to the former spouse and may provide for the former spouse to serve in a representative capacity as well. Comment (f) La. C.C. art. 1608. This is exactly what occurred in this case when Mr. Bridges named his "former spouse " as the executor of his estate and named his "former spouse " as his legatee. Considering the inapplicability of Article 1608(5), the trial court correctly sought to ascertain the intent of the testator at the time of the execution of the testament, the single most important guideline in the interpretation of a testament. La. C.C. art. 1611 ; In re Succession of Clark , 2008-1278 (La. App. 1st Cir. 2/13/09), 6 So.3d 266, 269, writ denied, 2009-0580 (La. 5/13/09), 8 So.3d 568. We agree with the trial court's conclusion that the testament reflected Mr. Bridges' clear intent to provide a legacy for Pamela and to appoint her as executor of his estate. At no time did Mr. Bridges indicate a desire that his testament be revised for his son to inherit his total estate. In fact, while he was divorced from his former wife, he selected her to be the executor of his estate and his universal legatee and only left one specific bequest to his son. There was no evidence presented by Don Bridges to prove that the Mr. Bridges had a different intent following his second divorce than he had following his first divorce when he executed his will. Accordingly, we find that the trial court correctly construed the testament so as to comport with Mr. Bridges' clear intent for Pamela to serve as executor of and legatee to his estate.

CONCLUSION

For the foregoing reasons, the judgment appealed from is affirmed. All costs of this appeal are assessed to appellant, Don Michael Bridges, Jr.

AFFIRMED.

Higginbotham, J. concurs.

      The Code of Civil Procedure provides for the appointment of "executors." La. C.C.P. arts. 3081, 3082, and 3083. The use of the masculine gender comprehends both sexes. La. C.C. art. 3506. See also La. C.C.P. art. 5251 (providing that the term "legal representative" includes an executor of an estate). Although Pamela is designated as the "executrix" in the testament, we shall refer to her appointment by the more appropriate term "executor."


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    Milton Lee HARRIS and Lisa Harris v. Stephen M. BREAUD, M.D.
    NO. 2017 CA 0422
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: FEBRUARY 27, 2018
    Alan K. Breaud, Timothy W. Basden, Lafayette, LA, Attorneys for Defendant-Appellee, Stephen M. Breaud, M.D.
    Steve Adams, Baton Rouge, LA, Attorney for Plaintiffs-Appellants, Milton Lee Harris and Lisa Harris
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
   HIGGINBOTHAM, J.

In this medical malpractice case, plaintiffs, Mr. Milton Lee Harris and his wife, Mrs. Lisa Harris, contend that the trial court erred in holding that all of their claims against defendant, Dr. Stephen M. Breaud, other than the claims related to the medical procedure performed on December 29, 2009, were prescribed.

Because the issues in this appeal and the related appeal, Harris v. Breaud 2017-0421 (La. App. 1st Cir. 22/27/8), 243 So.3d 572, 2018 WL 1059604 ( Harris , 0421 ), decided this same date were included in a single judgment pursuant to a rule to show cause issued by this court, we addressed the assignment of error laid out in this appeal by the Harrises in Harris , 0421. In Harris , 0421, we concluded that the trial court properly granted Dr. Breaud's peremptory exception raising the objection of prescription. Consequently, for the same reasons expressed in our opinion in the related Harris , 0421 appeal, we hereby affirm via summary opinion in accordance with Uniform Rules-Courts of Appeal, Rule 2-16.2, the granting by the trial court of Dr. Breaud's peremptory exception raising the objection of prescription. All costs of this appeal are assessed against plaintiffs, Mr. Milton Lee Harris and Mrs. Lisa Harris.

AFFIRMED.


text:
    Niran GUNASEKARA and Suzanne O'Neill v. CITY OF NEW ORLEANS, THROUGH its Director of Safety and Permits Dr. Jared E. MUNSTER
    NO. 2017-CA-0914
    Court of Appeal of Louisiana, Fourth Circuit.
    MARCH 28, 2018
    Madro Bandaries, MADRO BANDARIES, P.L.C., 938 Lafayette Street, Suite 204, New Orleans, LA 70156, COUNSEL FOR PLAINTIFF/APPELLANT
    Rebecca H. Dietz, CITY ATTORNEY, Mark Daniel Macnamara, DEPUTY CITY ATTORNEY, CITY OF NEW ORLEANS, 1300 Perdido Street, Suite 5E03, New Orleans, LA 70112, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Chief Judge James F. McKay, III, Judge Terri F. Love, Judge Regina Bartholomew-Woods)
    Judge Regina Bartholomew-Woods Plaintiffs, Niran Gunasekara and Suzanne O'Neill ("Appellants"), seek review of the district court's September 15, 2017 judgment sustaining the exception of no right of action filed by the City of New Orleans ("the City"). For the reasons that follow, we convert the appeal to a writ, grant the writ, deny relief, and remand for further proceedings.
    FACTUAL AND PROCEDURAL BACKGROUND
    Appellants filed a petition for writ of mandamus August 9, 2017, stating they were CPNC taxi cab drivers whose vehicles were regulated by the City of New Orleans Department of Safety and Permits ("the Department"), through its director, Jared Munster. Appellants noted that the Department requires taxi cab drivers and owners to submit their vehicles for inspection pursuant to the City of New Orleans Code of Ordinances, and that such inspection requires an application and payment of a fee. However, Appellants alleged that the Department does not enforce these requirements for "transportation network company" ("TNC") vehicles, which they describe as vehicles driving for "app-based services such as Uber and Lyft[.]" Appellants argued that the Department's failure in this regard "puts the public at risk, causes extra time constraints and expense to taxicab drivers and creates an unlevel playing field as to competition, as well as denying taxi drivers equal protection under the law." Accordingly, Appellants sought the issuance of a writ of mandamus ordering the Department to comply with the ordinances as they applied to TNCs.
    On August 21, 2017, the City filed an exception of no right of action in opposition to Appellant's petition, arguing, in part, that Appellants lacked standing to seek mandamus directed at a public official absent a showing of a special interest, separate and distinct from that of the public at large. The City argued that "mere competitive disadvantage" failed to meet such requirement.
    The district court heard arguments on August 25, 2017, ultimately sustaining the exception filed by the City. In its reasons for judgment, the district court found Appellants to have alleged a "special interest" in the form of "competitive disadvantage," which the district court found "insufficient ... to maintain a cause of action." Accordingly, the district court did not address the writ of mandamus further.
    We note that the judgment in question lacks the necessary decretal language to invoke this Court's appellate jurisdiction. Specifically, the judgment merely states, "the Defendant's exception of no right of action is hereby sustained." However, as our jurisprudence has made clear:
    A final judgment shall be identified as such by appropriate language. La.Code Civ. P. art. 1918. "A final appealable judgment must contain decretal language that names the party in favor of whom the ruling is ordered, the party against whom the ruling is ordered, and the relief that is granted or denied. Bd. Of Supervisors v. Mid City Holdings, L.L.C., 14-0506, pp. 2-3 (La.App. 4 Cir. 10/15/14), 151 So.3d 908, 910. The specific relief granted should be determinable from the judgment without reference to an extrinsic sourced such as pleadings or reasons for judgment." Id.

      Although it is a settled rule that an appeal is taken from a final judgment and not from the trial court's reasons for judgment, it is not improper for an appellate court to consider the reasons for judgment in determining whether the trial court committed a legal error. Winfield v. Dih , 2001-1357 (La.App. 4 Cir. 4/24/02), 816 So.2d 942, 948 (citing Donaldson v. Universal Eng'g of Maplewood, Inc., 606 So.2d 980, 988 (La.App. 3 Cir.1992).

   Tomlinson v. Landmark Am. Ins. Co. , 2015-0276 (La.App. 4 Cir. 3/23/16), 192 So.3d 153, 156. Nonetheless, this Court may invoke our supervisory jurisdiction and convert the appeal to a writ. Accordingly, we do so in this case, grant the writ, and now consider its merits.

STANDARD OF REVIEW

The standard of review of rulings on exceptions is well-settled, as described by this Court in Louisiana Citizens Prop. Ins. Corp. v. LAA Shoring, LLC , 2016-1136 (La.App. 4 Cir. 6/14/17), 223 So.3d 17, 23 :

"The determination of whether a plaintiff has a right of action is a question of law." Mendonca v. Tidewater Inc. , 03-1015, p. 3 (La. App. 4 Cir. 12/17/03), 862 So.2d 505, 508. "The standard of review of a trial court's ruling on an exception of no right of action is de novo. " N. Clark, L.L.C. v. Chisesi , 16-0599, p. 3 (La. App. 4 Cir. 12/7/16), 206 So.3d 1013, 1015. "Therefore, this court is required to determine whether the trial court applied the law appropriately." Mendonca , 03-1015, p. 3, 862 So.2d at 508.

LAW AND ANALYSIS

New Orleans Code of Ordinances, Section 162-48, provides that:

(a) It shall be the duty of the department of safety and permits, to see that all applications to own or operate taxicabs or other for hire CPNC licensed vehicles or transportation network company vehicles conform to all requirements established by this article and other articles of this chapter where applicable; and to certify that such requirements have been met; to execute all policies established; and carry out duties as may be assigned from time to time by the director of the department of safety and permits.
(b) It shall be the primary responsibility of the department of safety and permits to enforce all of the provisions of this chapter relative to taxicabs, other for-hire vehicles, and transportation network companies by instituting appropriate administrative actions and/or filing proper charges against the offender.

Appellants allege that the Department has enforced this provision against taxi cab drivers, but has failed to do so for TNCs, despite the mandatory language of the Ordinance. They argue mandamus is the proper procedural device to enforce the Ordinance, as its language leaves no room for discretion as to whether to enforce its provisions.

"A writ of mandamus may be issued in all cases where the law provides no relief by ordinary means or where the delay involved in obtaining ordinary relief may cause injustice." La.C.C.P. art. 3862. As this Court explained in Constr. Diva, L.L.C. v. New Orleans Aviation Bd. , 2016-0566, pp. 12-13 (La.App. 4 Cir. 12/14/16), 206 So.3d 1029, 1037 :

A writ of mandamus may be directed to a public officer to compel the performance of a ministerial duty required by law. See La. C.C.P. art. 3863. A " 'ministerial duty' is one in which no element of discretion is left to the public officer, in other words, a simple, definite duty, arising under conditions admitted or proved to exist, and imposed by law."
Landis Const. Co., LLC v. Reg'l Transit Auth. , 15-0854, p. 10 (La.App. 4 Cir. 5/25/16), 195 So.3d 598, 605, quoting Newman Marchive P'ship, Inc. v. City of Shreveport, 07-1890, p. 5 (La. 4/8/08), 979 So.2d 1262, 1266.
Mandamus is an extraordinary remedy that is to be used sparingly. [Wallace C. Drennan, Inc. v. Sewerage & Water Bd. of New Orleans] Id., 00-1146 [ (La.App. 4 Cir. 10/3/01) ], 798 So.2d [1167] at 1175. A writ of mandamus, therefore, may not be issued to compel a public official to exercise discretionary authority. Id., p. 11, 798 So.2d at 1175-1176. It never issues in doubtful cases. City of Hammond v. Parish of Tangipahoa, 07-0574, p. 11 (La.App. 1 Cir. 3/26/08), 985 So.2d 171, 181. Louisiana's jurisprudence, however, has shown that in the realm of public bid law, mandamus has been an appropriate remedy to award publicly bid contracts when the law requires. See, e.g., Concrete Busters of Louisiana, Inc. v. The Board of Commissioners of the Port of New Orleans , 10-1172, p. 10 (La.App. 4 Cir. 2/2/11), 69 So.3d 484, 489-490.

When seeking to compel the action of a public official, "the plaintiff must demonstrate that he has a special interest, which is separate and distinct from the general public." Sewell v. Huey , 2000-0385, p. 3 (La.App. 4 Cir. 1/24/01), 779 So.2d 1003, 1005. In Sewell , plaintiff filed a petition for writ of mandamus directed to the Orleans Parish Levee Board ("the Board"), which had granted rent relief to a casino. Plaintiff argued the Board's "failure to exercise its duty to collect [unpaid rents] to prevent flood and hurricane damage put him and his home at risk." Id. This Court found plaintiff had no right of action as plaintiff failed to assert a "special interest," reasoning that "plaintiff's allegations of jeopardy to his interest in hurricane and flood protection and a right not to drown are not, however, peculiar to him. Such interests are common to the public at large." Id. at 1006.

The City advances the same argument here; that is, Appellants have failed to allege a special interest in requiring the Department to enforce the relevant sections of the City Ordinances against TNCs.

We agree that Appellants have no standing to seek mandamus relief by arguing the Department's failure to regulate TNCs in the same manner as taxi cabs puts the public at risk. As in Sewell , the Department's failure in this regard places the public at large at risk, such that Appellants can assert no "special interest."

Appellants' argument that the Department's inaction places them at a competitive disadvantage also fails. Although Appellants disputed its applicability to the facts of this case, we find the City's reliance on Lauer v. City of Kenner , 536 So.2d 767 (La.App. 5 Cir. 1988), is not misplaced. In Lauer , plaintiff sought damages resulting from declined business after the City of Kenner granted a land use variance to plaintiff's business competitor. Id. at 768. In affirming the district court's judgment in favor of the City of Kenner, the Fifth Circuit reasoned:

In the present case, Lauer's only complaint is that competition from the [business competitor's] grocery has hurt his grocery business. This competition is a factor shared by all other grocers in the municipality, and is therefore not distinct to him. In the factual circumstances of this case, we hold that this mere competitive disadvantage is not such a particular interest as to confer standing upon Lauer to bring this suit.

Id. at 772. Though not a case concerning an exception of no cause of action, the same issue of standing to bring suit is implicated. Here, in order to bring suit, Appellants were required to show that they had standing by virtue of a special interest. The Court in Lauer squarely held that "competitive disadvantage" is insufficient to confer standing, as that disadvantage was not unique to plaintiff, but shared by all other similarly-situated grocers.

Here, only two New Orleans CPNC taxi cab drivers have filed suit, asserting a competitive disadvantage presented by the Department's failure to enforce the City Ordinance, as written. However, as the Court did in Lauer , we find that mere competitive disadvantage does not confer the requisite standing, as this disadvantage is shared by all other taxi cab drivers in the City of New Orleans.

Notwithstanding the aforementioned, we find that the granting of the exception of no right of action, without allowing for an amendment violates the mandates set forth in La.C.C.P. art. 934, which states:

When the grounds of the objection pleaded by the peremptory exception [e.g., no right of action] may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection raised through the exception cannot be so removed, or if the plaintiff fails to comply with the order to amend, the action, claim, demand, issue, or theory shall be dismissed.

The district court did not provide Appellants an opportunity to amend their petition as required by the Code of Civil Procedure. Accordingly, we remand this matter to the district court for further proceedings consistent with this decision.

CONCLUSION

For the foregoing reasons, we convert Appellants' appeal to a writ. The writ is granted, and relief is denied, and the matter is remanded for further proceedings.

APPEAL CONVERTED TO WRIT; WRIT GRANTED, RELIEF DENIED; REMANDED FOR FURTHER PROCEEDINGS


text:
    DAIGLE OIL DISTRIBUTORS, LLC v. Elizabeth Irene ISTRE, et al.
    CA 17-1069
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 2018
   Evelyn M. Oubre, 522 Clarence Street, Lake Charles, LA 70601, (337) 436-0337, COUNSEL FOR DEFENDANT/APPELLANT: Burton Wade Istre

Joseph Payne Williams, R. Bray Williams, Williams Family Law Firm, LLC, Post Office Box 15, Natchitoches, LA 71458-0015, (318) 352-6695, COUNSEL FOR PLAINTIFF/APPELLEE: L.M. Daigle Oil Distributors, LLC

Todd Samuels Clemons, Todd Clemons & Associates, 1740 Ryan Street, Lake Charles, LA 70601, (337) 477-0000, COUNSEL FOR DEFENDANT/APPELLEE: Elizabeth Irene Istre

Paul Joel Cox, Somer G. Brown, Cox, Cox, Filo, Camel & Wilson, LLC, 723 Broad Street, Lake Charles, LA 70601, (337) 436-6611, COUNSEL FOR PLAINTIFF/APPELLEE: L.M. Daigle Oil Distributors, LLC

Court composed of Elizabeth A. Pickett, Billy Howard Ezell, and Candyce G. Perret, Judges.

EZELL, Judge.

This case involves the embezzlement of $4,363,376.79 in funds from L.M. Daigle Oil Distributors, LLC (Daigle Oil) by Elizabeth Istre. On appeal, her husband, Burton Istre, claims that the trial court erred in failing to grant an exception of prescription for Daigle Oil's claims for fraudulent checks written by Elizabeth prior to April 17, 2013. He also claims that the trial court erred in its finding that he is liable in solido with his wife for the damages caused by his wife's embezzlement.

FACTS

Daigle Oil was owned by three brothers: Luther Mark Daigle, Jr., Brian Daigle, and Kevin Daigle. In 2004, Mark sold his interest to the other two brothers. Brian was the operations manager, and Kevin was in charge of outside sales and delivery. Elizabeth began working for Daigle Oil in January 2003 as a bookkeeper.

According to Brian Jones, a certified public accountant and fraud examiner hired to examine Daigle Oil's books, Elizabeth began embezzling funds almost immediately upon her employment. The embezzlement was discovered by Brian Daigle's daughter, Katy, who was training with Elizabeth in December 2013 to replace her as the bookkeeper. In February 2014, Katy discovered a check for $2,500.00 coded as a draw on her father's draw account. However, this entry in QuickBooks did not match the entry found on online banking. It was discovered that Elizabeth was coding checks in QuickBooks as payable to certain accounts and then actually printing the checks payable to either her or her husband. She was able to sign the checks with a rubber-stamped signature of Brian Daigle that was provided to her when she first started working at Daigle Oil. The checks were then deposited into her personal accounts, including a joint account with her husband at MidSouth Bank.

On April 17, 2014, Daigle Oil filed suit against Elizabeth and Burton for return of the misappropriated funds. After the Defendants filed answers, Daigle Oil filed a motion for summary judgment. A hearing on the motion was held on June 1, 2017. Judgment was signed on July 6, 2017, finding that Elizabeth was liable to Daigle Oil in the amount of $4,363,376.79. Burton was found liable in solido with Elizabeth for this amount. Only Burton appealed the judgment.

PRESCRIPTION

Burton first claims that the trial court erred in denying an exception of prescription. He claims that Daigle Oil should be denied the right to pursue damages for the fraudulent checks written by Elizabeth prior to April 17, 2013, because the thefts should have been discovered long before suit was filed on April 17, 2014.

Elizabeth filed an exception of prescription. By judgment dated May 24, 2016, the trial court found that her conduct constituted a continuing tort and denied her exception of prescription. Burton never filed an exception of prescription.

The objection of prescription is raised by peremptory exception and must be specially pleaded. La.Code. Civ.P. art. 927. A "peremptory exception may be pleaded at any stage of the proceeding in the trial court prior to a submission of the case for a decision." La.Code. Civ.P. art. 928(B).

In Kleinman v. Bennett , 11-947 (La.App. 3 Cir. 12/7/11), 80 So.3d 689, this court held that the issue of prescription could not be considered because it had not been specifically pleaded and had only been presented by oral motion at the summary judgment hearing.

"Prescription is a defense that must be raised and is effective in favor only of the party claiming it. It cannot be urged by one party defendant in favor of another, and the failure of one party defendant to claim it does not deprive another party defendant of the claim." Sadler v. Midboe , 97-2120, p. 8 (La.App. 1 Cir. 12/28/98), 723 So.2d 1076, 1081 ; Theriot v. State, Dept. of Transp. & Dev. , 01-1420 (La.App. 1 Cir. 9/25/01), 809 So.2d 279.

As noted by the supreme court in Flowers v. U.S. Fidelity & Guaranty Co. , 381 So.2d 378, 383 (La.1980) (on rehearing), and followed by this court in Bridges v. Bridges , 96-1191 (La.App. 3 Cir. 3/12/97), 692 So.2d 1186, "legal prescription is personal, and general benefits only the person with whom it originates or whose right has been acknowledged." This court then held that "[p]rescription can only accrue in favor of the individual members forming the community regime." Id. at 1192.

Furthermore, since we find that the trial court correctly found Burton liable in solido with his wife for the damages, which is discussed below, Burton "may not raise a defense that is personal to another solidary obligor." La.Civ.Code art. 1801.

SOLIDARY LIABILITY

Burton argues that the trial court erred in holding him liable in solido with his wife for the funds she embezzled and granting summary judgment in favor of Daigle Oil. Burton claims that he did not know his wife was committing the thefts so he should not be held liable in solido with his wife pursuant to La.Civ.Code art. 2324.

A moving party is entitled to summary judgment when it shows that there are no genuine issues of material fact and that it "entitled to judgment as a matter of law." La.Code Civ.P. art. 966(A)(3). "A fact is 'material' when its existence or nonexistence may be essential to [the] plaintiff's cause of action." Smith v. Our Lady of the Lake Hosp., Inc. , 93-2512, p. 27 (La. 7/5/94), 639 So.2d 730, 751. "A genuine issue of material fact is one as to which reasonable person could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate." Smitko v. Gulf S. Shrimp, Inc. , 11-2566, p. 8 (La. 7/2/12), 94 So.3d 750, 755. Summary judgment is favored by law and provides a vehicle by which "the just, speedy, and inexpensive determination" of an action may be achieved. La.Code Civ.P. art. 966(A)(2).

"An obligation incurred by a spouse during the existence of a community property regime for the common interest of the spouses or for the interest of the other spouse is a community obligation." La.Civ. Code art. 2360. "Except as provided in Article 2363, all obligations incurred by a spouse during the existence of a community property regime are presumed to be community obligations." La.Civ.Code art. 2361.

Louisiana Civil Code Article 2363 provides that "[a]n obligation resulting from an intentional wrong or an obligation incurred for the separate property of spouse is likewise a separate obligation to the extent that it does not benefit both spouses, the family, or the other spouse."

[T]he presumption that obligations incurred by a spouse during the existence of the community property regime are debts of the community is rebuttable. See Krielow v. Krielow , 622 So.2d 732 (La.App. 3 Cir.1993), writ granted , 93-2539 (La.1/7/94), 631 So.2d 432, reversed on other grounds , 93-2539 (La. 4/11/94[ ) ], 635 So.2d 180). In order to counter this presumption, a spouse must show that the debt in question was not incurred for the benefit of the community;
thus, it is necessary to examine the uses to which the borrowed money was put. See McConathy v. McConathy , 632 So.2d 1200 (La.App. 2 Cir. 1994) ; and Ledet v. Ledet , 496 So.2d 381 (La.App. 4 Cir.1986). Such evidence must be shown by an intermediate standard of proof "more traditionally stated as 'clear and convincing' " Salley v. Salley , 647 So.2d 1164 (La.App. 3 Cir.1994).

Keene v. Reggie , 96-740, pp. 13-14 (La.App. 3 Cir. 10/22/97), 701 So.2d 720, 728-29.

In Gardes Directional Drilling, Inc. v. Bennett , 01-80 (La.App. 3 Cir. 6/6/01), 787 So.2d 1201, writ denied, 01-1991 (La. 10/26/01), 799 So.2d 1154, this court followed the reasoning in First State Bank & Trust Co. v. Fireman's Fund Ins. Co. , 399 So.2d 729 (La.App. 1 Cir. 1981), to hold a husband liable for the return of funds his wife stole from her employer, even though the husband had no knowledge of the embezzlement activity. This court agreed with the trial court that the debt created a community debt for which the husband could be held liable and rendered him personally liable for the return of the funds taken by the wife.

The court in First State Bank & Trust Co. relied on what is now La.Civ.Code art. 2299 which provides that "[a] person who has received a payment or a thing not owed to him is bound to restore it to the person from whom he received it." The first circuit held that there was presumptive proof that the community benefitted when the funds were deposited into a community account. This presumption was not rebutted, so the husband was found liable in solido with his wife to her employer.

In Johnson v. Henry , 16-271 (La.App. 1 Cir. 10/31/16), 206 So.3d 916, the court found that the husband was liable with his wife in solido. The wife stole someone's social security number and used it to purchase a computer that the family used. Citing La.Civ.Code art. 2361, the court held that "an obligation resulting from an intentional wrong that was perpetrated for the benefit of the community is ... presumed to be community." Id. at 920.

Also relying on La.Civ.Code art. 2361, the second circuit held that a wife was liable in solido for her husband's fraudulent conduct even though she did not know that her husband's conduct was fraudulent because there was no evidence that the community did not benefit from her husband's conduct. Skannal v. Bamburg , 44,820 (La.App. 2 Cir. 1/27/10), 33 So.3d 227, writ denied , 10-707 (La. 5/28/10), 36 So.3d 254. In Lafayette Ins. Co. v. Pennington , 42,434 (La.App. 2 Cir. 9/19/07), 966 So.2d 136, the second circuit also found a husband liable in solido with his wife for monetary damages for money she stole from her employer.

Further explaining when a non-debtor spouse is personally liable, the second circuit, relying on La.Civ.Code art. 2357, in Lawson v. Lawson , 535 So.2d 851, 853 (La.App. 2 Cir. 1988), held that a non-debtor spouse "is not personally liable for separate or community debts incurred by the other spouse unless the non-debtor spouse has disposed of former community property ... and has done so for a purpose other than the satisfaction of community obligations." The court also found that personal liability could be imposed on the non-debtor spouse who assumed the liability in writing.

In the present case, Daigle Oil introduced evidence that 706 checks were made payable to Elizabeth Istre in the amount of $2,652,072.62 and 147 checks were made payable to Burton Istre in the amount of $1,711,304.17. Records of the expenditures from the accounts the checks were deposited into indicate that monies were used to pay Burton's child support obligation from a previous marriage, for trips to Cancun, and for common expenses of the household. Daigle Oil clearly established that stolen funds were used for the common interest of the spouses over the years. We agree with the trial court that Burton should be held personally liable for the funds embezzled by his wife from Daigle Oil. The trial court was correct in rendering judgment against Burton and holding him liable in solido with Elizabeth.

The judgment of the trial court is affirmed. Costs of this appeal are assessed to Burton Istre.

AFFIRMED.


author: THIBODEAUX, Chief Judge.

text:
    STATE of Louisiana v. Robbie Ray FRITH
    17-1004
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 2018
    James E. Boren, 830 Main Street, Baton Rouge, LA 70802, Telephone: (225) 387-5788, COUNSEL FOR: Defendant/Appellant-Robbie Ray Frith
    M. Bofill Duhé, District Attorney-16th Judicial District, W. Claire Howington, Assistant District Attorney-16th Judicial District, 300 Iberia Street-Suite 200, New Iberia, LA 70560, Telephone: (337) 369-4420, COUNSEL FOR: Plaintiff/Appellee-State of Louisiana
    Jane Hogan, 310 North Cherry Street, Hammond LA 70401, Telephone: (985) 542-7730, COUNSEL FOR: Defendant/Appellant-Robbie Ray Frith
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and Van H. Kyzar, Judges.
   THIBODEAUX, Chief Judge.

A jury convicted Robbie Ray Frith of five counts of aggravated incest, in violation of La.R.S. 14:78.1. Defendant was subsequently sentenced to serve thirty-five years at hard labor with the first twenty-five years served without benefit of probation, parole, or suspension of sentence on counts one and five; twenty-five years at hard labor without probation, parole, or suspension of sentence with regard to counts two and three; and ten years at hard labor plus a $50,000 fine with regard to count four. All of these sentences were ordered to run concurrently and Defendant was given credit for time served.

In a previous appeal, Defendant alleged three assignments of error: (1) that the trial court committed reversible error in denying Defendant's challenge for cause of Gilbert Blanchard; (2) that Defendant was incompetent to stand trial; and (3) that the trial court improperly interjected its religious beliefs into Defendant's sentencing hearing. This court found the first two assignments of error lacked merit, but remanded for resentencing due to the trial court's failure to observe the mandatory twenty-four-hour delay between ruling on a motion for new trial and sentencing or obtaining a waiver of the delay. See State v. Frith , 15-630 (La.App. 3 Cir. 4/27/16), 2016 WL 1688445 (unpublished opinion), writ denied , 16-1011 (La. 5/26/17), 221 So.3d 79. This court did not address the merits of Defendant's claim regarding the trial court's interjection of its religious beliefs into Defendant's sentencing hearing.

After remand and prior to resentencing, Defendant filed a "Motion to Recuse Trial Court Judge" seeking mandatory recusal of the trial judge under La.Code Crim.P. arts. 671(A)(1) and 671(A)(6). Both sections require recusal of a trial judge when the judge is unable to conduct a fair and impartial trial, with La.Code Crim.P. art. 671(A)(1) specifically being based on the judge being "biased, prejudiced, or personally interested in the cause."

The trial court held a hearing at which time it denied Defendant's motion to recuse without referring it to another judge and sentenced Defendant to the exact same sentences he had previously received. Defendant objected to the excessiveness of the sentences.

Defendant filed a "Motion for Reconsideration of Sentence," arguing his sentences were constitutionally excessive for a man of his advanced age suffering from physical and mental health issues. His motion was denied.

Defendant now appeals his sentences, raising two assignments of error: (1) the trial court erred in denying his motion to recuse without referring the motion to another judge; and (2) the sentences are constitutionally excessive. For the following reasons, we again vacate Defendant's sentences and remand to the trial court so that Defendant's motion to recuse may be heard by a randomly allotted judge pursuant to La.Code Crim.P. art. 675(B).

FACTS

On February 24, 2012, Defendant, Robbie Ray Frith, was charged with five counts of aggravated incest involving his five step-grandchildren, in violation of La.R.S. 14:78.1.1 Aside from count four, all other counts involved children under the age of thirteen. Counts two and three involved his two younger step-granddaughters, and Defendant was alleged to have kissed each of them inappropriately. With respect to count four, involving his oldest step-granddaughter who was over the age of thirteen, Defendant was alleged to have made an inappropriate comment while she was wearing a bathing suit, licked icing off her finger inappropriately and touched her leg inappropriately. With respect to counts one and five, involving two step-grandsons, Defendant was alleged to have engage[d] in an ongoing pattern of indecent behavior with the two boys.

State v. Frith , p. 1.

Recusal

Defendant's assertion that the trial court committed reversible error when it denied his motion to recuse without referring the matter to another judge is presented as a three-part argument: (1) the trial court applied the Louisiana Code of Civil Procedure to a criminal proceeding; (2) the trial court's conduct demonstrated a personal bias against Defendant; and (3) the trial court failed to follow the proper procedure in addressing the motion to recuse. This assignment of error has merit and his sentences are vacated and the case remanded for the trial court to follow the proper procedure in addressing the motion to recuse.

Initially, the trial court based its denial of Defendant's motion to recuse, at least in part, on its belief that "it's a back-door effort to revisit the issues that the courts have ruled on and/or have not ruled on." Neither this court nor the supreme court addressed the issue of whether the trial court's repeated comments invoking Christian scripture and ideology exhibited a judicial prejudice or bias against Defendant.

Defendant's motion to recuse alleged the trial judge revealed a personal, religious bias against Defendant when she repeatedly invoked God and Christian scripture during Defendant's sentencing hearing. A few examples include the trial court's statement that "these children, the offense is an offense against them, but the sin is a sin against God"; "[w]e are only made righteous through Jesus Christ, if He's your Lord and Savior"; and:

Those people who take care of the widows and children, the least of us shall be first in God's Kingdom. And so we all have a special place in our heart for children. And so those are the things that are considered.

The trial court also blamed Defendant for allowing the devil to enter his life:

You let the devil in when you first start looking at pornography, and that's where that seed is planted. We've all heard, "When you let the Devil ride, he's going to want to drive." You gave him a foothold in your life, and it was him acting through you using you to perpetuate evil because he only comes to kill, steal, and destroy. And we open the door to him when we open the door to pornography.

The motion specifically invoked La.Code Crim.P. art. 671(A)(1) and 671(A)(6), both mandatory grounds for recusal based upon an inability to conduct a fair and impartial trial. As the motion contained both accusations and factual support which, if proven, would be mandatory grounds for recusal of the trial judge, the motion should have been referred to another judge pursuant to La.Code Crim.P. art. 674, which states:

A party desiring to recuse a trial judge shall file a written motion therefor assigning the ground for recusation. The motion shall be filed prior to commencement of the trial unless the party discovers the facts constituting the ground for recusation thereafter, in which event it shall be filed immediately after the facts are discovered, but prior to verdict or judgment. If a valid ground for recusation is set forth in the motion, the judge shall either recuse himself, or refer the motion for hearing to another judge or to a judge ad hoc, as provided in Article 675.

As the basis for the motion to recuse is the alleged bias shown by the trial court during Defendant's sentencing, it would not have been possible for Defendant to file his motion prior to trial. Defendant raised the issue immediately in his direct appeal, as the case was no longer before the trial court once sentencing had occurred and notice of intent to appeal had been made. Once the supreme court denied Defendant's writ on May 26, 2017, Defendant fax-filed his motion to recuse the same day. Accordingly, Defendant could not have filed his motion to recuse in a timelier fashion. In Kidd v. Caldwell , 371 So.2d 247, 252 (La.1979), the supreme court acknowledged "the judge sought to be recused has a duty to stand aside and to appoint a judge ad hoc to pass upon the validity of the recusation."

At the resentencing hearing, defense counsel stated:

Well, I think the only thing to add, Your Honor, to just emphasize, is that I believe when a motion to recuse is filed urging the grounds that we urged that Your Honor cannot rule upon it and that you must refer the motion to recuse to another judge.

The trial court responded that it thought "that procedure is when you list something under 151. I don't see this is one of those things." As noted by Defendant, this is clearly a reference to La.Code Civ.P. art. 151, which lists the grounds for recusal of a judge in a civil case. The trial court's reliance on a Code of Civil Procedure article during a criminal proceeding is error. Furthermore, Defendant's claims in his motion to recuse, if proven, certainly fall into one of the grounds for recusal enumerated in La.Code Crim.P. art. 671. However, we note that "[t]here is a presumption that a trial judge is impartial, and in order to obtain a recusation based on bias, prejudice, and personal interest, the party seeking the recusation must establish more than conclusory allegations." State v. Anderson , 96-1515, p. 4 (La.App. 3 Cir. 4/29/98), 714 So.2d 766, 768, writ denied , 98-1374 (La. 10/9/98), 726 So.2d 25. The motion to recuse provides more than mere conclusory allegations, as it provides multiple examples of the trial court's invocation of Christian scripture and ideology.

In U.S. v. Bakker , 925 F.2d 728, 740 (4th Cir. 1991), the Fourth Circuit stated "[c]ourts, however, cannot sanction sentencing procedures that create the perception of the bench as a pulpit from which judges announce their personal sense of religiosity and simultaneously punish defendants for offending it." The defendant in Bakker was a televangelist convicted of fraud and conspiracy. The case mentions only a single comment by the trial court which was sufficient to constitute an abuse of discretion which required the defendant to be resentenced by a different judge: " 'He had no thought whatever about his victims and those of us who do have a religion are ridiculed as being saps from money-grubbing preachers or priests .' " Id. A neutral judge hearing Defendant's motion to recuse may find the trial court's statements likewise indicate a personal bias which requires resentencing carried out by a different judge.

As noted in La.Code Crim.P. art. 674, "[i]f a valid ground for recusation is set forth in the motion, the judge shall either recuse himself, or refer the motion for hearing to another judge or to a judge ad hoc, as provided in Article 675." Defendant's motion provides clear, fact-based allegations that the trial court is biased or prejudiced against him and that the trial court cannot conduct a fair and impartial hearing. Accordingly, the motion should have been referred to another judge.

Under La.Code Crim.P. art. 673, a trial court's authority to act on a case ceases when a motion to recuse is filed. Once Defendant filed his motion to recuse, the trial judge lacked authority to sentence him until another judge had ruled on the motion to recuse. Because the motion was improperly denied without referral to another judge pursuant to La.Code Crim.P. art. 675, the trial court lacked authority to sentence Defendant. Therefore, the sentences imposed upon Defendant on May 31, 2017, should be vacated, and the case should be remanded to the trial court so that the proper procedure for ruling on Defendant's motion to recuse may be followed.

Excessiveness of Sentence

Because Defendant's sentences are vacated and the case remanded to the trial court, this court need not consider Defendant's claim that his sentences are excessive at this time.

CONCLUSION

Defendant's sentences are vacated, and the case is remanded to the trial court so that Defendant's motion to recuse can be ruled upon following the proper procedure enunciated in La.Code Crim.P. arts. 671, et seq .

SENTENCES VACATED AND CASE REMANDED.

      We note that the crime of which Defendant was convicted has since been re-designated "aggravated crime against nature." See 2014 La. Acts No. 177, § 3 and 2014 La. Acts No. 602, § 8.