source: Caselaw Access Project

author: GREMILLION, Judge.

license: Public Domain

text:
    Joel GUZMAN v. JAGO SOLUTIONS, LLC, et al.
    17-340
    Court of Appeal of Louisiana, Third Circuit.
    November 2, 2017 Rehearing Denied March 21, 2018
    Kirk Lindsay Landry, Keogh, Cox & Wilson, Ltd., P. O. Box 1151, Baton Rouge, LA 70821, (225) 383-3796, COUNSEL FOR DEFENDANT/APPELLEE: LCI Workers' Comp
    Jeffrey Waltz, The Waltz Law Group, L.L.C., 1100 Poydras St., Suite 2620, New Orleans, LA 70163, (504) 264-5260, COUNSEL FOR DEFENDANT/APPELLEE: Jago Solutions, LLC
    William H. Beaumont, Roberto Luis Costales, Beaumont Costales, LLC, 3801 Canal St., Suite 207, New Orleans, LA 70119, (504) 483-8008, COUNSEL FOR PLAINTIFF/APPELLANT: Joel Guzman
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks and Shannon J. Gremillion, Judges.
   GREMILLION, Judge.

Plaintiff/appellant, Joel Guzman, appeals the dismissal of his workers' compensation claim on an exception of no right of action. For the reasons that follow, we reverse.

FACTS AND PROCEDURAL POSTURE

On May 19, 2016, Mr. Guzman filed a Disputed Claim for Compensation (1008) against Jago Solutions, LLC and LCI Workers' Comp alleging that he was injured on September 10, 2015, in Evergreen, Alabama, when he fell fifteen feet from a ladder. On September 9, 2016, LCI filed exceptions of lack of procedural capacity, vagueness and ambiguity, and insufficiency of service of process. These exceptions were mirrored by those filed by Jago Solutions. However, Jago Solutions asserted in its exception of lack of procedural capacity that it was no longer a juridical person because it had been dissolved by the filing of an Affidavit of Dissolution filed with the Louisiana Secretary of State on May 23, 2016.

On October 13, 2016, LCI filed peremptory exceptions of extinguishment of debt by confusion and no right of action. It asserted that, by operation of La.R.S. 12:1335.1, Mr. Guzman, as a member of Jago, personally assumed all obligations of the limited liability company upon its dissolution. Therefore, under La.Civ.Code art. 1903, the obligee and obligor were "united in the same person." Thus, the obligation was extinguished. Jago followed with identical exceptions.

The Workers' Compensation Judge (WCJ) heard the exceptions on November 4, 2016, and granted the exceptions by Judgment signed on November 7, 2016. Mr. Guzman thereafter perfected this appeal and argues that the WCJ erred in granting the exceptions because parties are precluded from presenting evidence in support of an exception of no right of action and from asserting affirmative defenses in such an exception.

ANALYSIS

"On the trial of the peremptory exception pleaded at or prior to the trial of the case, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition." La.Code Civ.P. art. 931. However, "[n]o evidence may be introduced at any time to support or controvert the objection that the petition fails to state a cause of action." Id. Evidence is admissible to support or controvert an exception of no right of action. Howard v. Adm'rs of Tulane Educ. Fund , 07-2224 (La. 7/1/08), 986 So.2d 47.

"The function of the exception of no right of action is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit." Reese v. State, Dep't of Pub. Safety and Corr. , 03-1615, p. 2-3 (La. 2/20/04), 866 So.2d 244, 246. Accordingly:

[t]he focus in an exception of no right of action is on whether the particular plaintiff has a right to bring the suit, but it assumes that the petition states a valid cause of action for some person and questions whether the plaintiff in the particular case is a member of the class that has a legal interest in the subject matter of the litigation.

Id.

Mr. Guzman rightly points out that this court has previously held that affirmative defenses are not appropriately raised or considered in exceptions of no right of action. See Beslin v. Anadarko Petroleum Corp. , 11-1523 (La.App. 3 Cir. 4/4/12), 87 So.3d 334 ; Madisonville State Bank v. Glick , 05-1372 (La.App. 3 Cir. 5/3/06), 930 So.2d 263 ; and Dugas v. Dugas , 01-669, (La.App. 3 Cir. 12/26/01), 804 So.2d 878, writ denied , 02-0652 (La. 5/24/02), 816 So.2d 307.

"[E]xtinguishment of the obligation in any manner" represents an affirmative defense. La.Code Civ.P. art. 1005. Accordingly, that issue was inappropriately urged before the WCJ in an exception of no right of action.

The judgment of the WCJ maintaining the exceptions of no right of action is reversed. All costs of this appeal are assessed as costs to Appellees, Jago Solutions, LLC, and LCI Workers' Comp.

REVERSED.

      In support of its exception, Jago attached a printout from the Louisiana Secretary of State's website that showed Mr. Guzman as the manager of Jago and the filing of the Affidavit of Dissolution.

      Louisiana Civil Code Article 1903 reads, "When the qualities of obligee and obligor are united in the same person, the obligation is extinguished by confusion."


author: CHEHARDY, C.J.

text:
    Claudia LARIOS and Marlon E. Funez v. Julio Gomez MARTINEZ and Imperial Fire and Casualty Insurance Company
    NO. 17-CA-514
    Court of Appeal of Louisiana, Fifth Circuit.
    February 21, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, CLAUDIA LARIOS AND MARLON E. FUNEZ, Miguel A. Elias, Paula J. Ferreira, Rolando A. Padilla, Jahida L. Lewis, Robert W. Goeke, Pablo C. Perez Luna, Elizabeth A. Zavala, Adam M. Klock, Mario D. Zavala, Jr., Kenner
    COUNSEL FOR DEFENDANT/APPELLANT, IMPERIAL FIRE AND CASUALTY INSURANCE COMPANY, Paul D. Oberle, Jr., Shreveport
    Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and Stephen J. Windhorst
   CHEHARDY, C.J.

In this personal injury case arising from an automobile collision, defendant, Imperial Fire and Casualty Insurance Company, appeals the district court's June 14, 2017 judgment in favor of plaintiffs, Claudia Larios and Marlon Funez. After review, we find Imperial is entitled to partial relief, and accordingly amend in part the district court's judgment, and affirm as amended.

FACTUAL AND PROCEDURAL HISTORY

On the evening of August 4, 2014, Claudia Larios was idling in her vehicle, waiting for a parking spot to open up in the lot of her apartment complex on Division Street in Metairie, Louisiana. Marlon Funez was in the passenger seat. Lindsay Vehorn, another resident in the complex, was stopped behind plaintiffs in her sport utility vehicle, a Honda Element. A white Dodge pickup truck rounded a corner from behind Ms. Vehorn's SUV and attempted to get in front of her, evidently not seeing plaintiffs in their sedan, a Hyundai Azera. The right front of the truck struck the rear left of Ms. Larios' vehicle. The passenger of the truck exited and tried to speak with plaintiffs, but was noticeably intoxicated. Ms. Larios was able to get a look at the driver of the truck before he abruptly drove away moments later. Ms. Larios called the police.

Though plaintiffs described the truck as white, Ms. Vehorn stated in her deposition that it was black or dark in color. Ms. Vehorn also stated that she was familiar with the truck from around the apartment complex and knew the driver lived there. She described the truck as a nuisance, explaining that the driver seemed to frequently come home drunk, taking up two or three parking spots with the truck bed full of empty beer cans.

The day after the collision, Ms. Larios encountered the passenger from the truck, to whom she gave her contact information with the request that it be passed along to the driver. Ms. Larios testified that thereafter, an individual who identified himself as Julio Martinez and whom she recognized as the driver of the truck provided her with documentation of his insurance. According to Ms. Larios, this individual also told her that he never meant to damage her car, that he left the scene because he was intoxicated, that he knew she had called the police, and that he already had a DWI.

As a result of the collision, Ms. Larios sought medical treatment for her neck and lower back; Mr. Funez sought treatment for his neck, lower back, and right knee. On July 7, 2015, plaintiffs filed a petition for damages, naming as defendants Julio Gomez Martinez and his insurer, Imperial Fire and Casualty Insurance Company. Plaintiffs were unable to locate and serve Mr. Martinez. Consequently, on April 20, 2017, the parties entered into a joint stipulation, whereby plaintiffs voluntarily dismissed all claims against Mr. Martinez and reserved all claims against Imperial pursuant to Louisiana's Direct Action Statute, La. R.S. 22:1269.

The matter proceeded to a bench trial on May 17, 2017 and the court issued its judgment on June 14, 2017. The court ruled in favor of plaintiffs and against Imperial. Ms. Larios was awarded $6,218 in past medical expenses and $15,100 in past pain and suffering, for a total of $21,318. Mr. Funez was awarded $5,267 in past medical expenses and $16,000 in past pain and suffering, for a total of $21,267. In its judgment, the court specifically ordered Imperial to pay plaintiffs these amounts. Imperial's timely suspensive appeal followed.

ASSIGNMENTS OF ERROR

On appeal, Imperial assigns four errors:

(1) The trial court erred in allowing Claudia Lorios to testify as to what she was told and/or the information she was allegedly provided on a sheet of paper (which she could not produce), over the hearsay objections of the appellant.
(2) The trial court erred in allowing the plaintiffs to introduce an A & B Inspection Report which had never been produced through discovery or
identified by the plaintiffs on the pretrial order where said document contained inadmissible hearsay evidence.
(3) The court erred in finding the plaintiffs proved through admissible evidence the identity of the tortfeasor, that he was an insured of Imperial, and that he was operating an insured vehicle.
(4) The court erred in awarding an amount in excess of the contractual policy limits provided by appellant.

DISCUSSION

Imperial's primary argument here on appeal, as it was at trial, is that plaintiffs failed to prove the tortfeasor's identity with admissible evidence, namely, that Imperial's insured, Julio Gomez Martinez, was the driver of the truck that rear-ended plaintiffs on August 4, 2014.

Assignment of Error One

In Imperial's first assignment of error, it argues that the district court erred in permitting the introduction of inadmissible hearsay evidence regarding the information Ms. Larios allegedly obtained from an individual in the days following the collision.

At trial, Ms. Larios testified that immediately after the collision, she observed both the driver and the passenger of the truck. She recognized the passenger the next day and asked him to forward her contact information to the driver. Thereafter, she explained that an individual who identified himself as Julio Martinez and whom she recognized as the driver of the truck provided her with documentation of his insurance and told her that he never meant to damage her vehicle and that he left the scene because he was intoxicated. At trial, defense counsel objected on hearsay grounds, arguing these alleged statements by this individual and the insurance documentation, which plaintiffs did not produce through discovery nor introduce at trial, constituted inadmissible hearsay. The district court overruled these objections and admitted Ms. Larios' testimony.

The trial court is given vast discretion in its evidentiary rulings, and its decision to admit or exclude evidence will not be reversed on appeal in the absence of an abuse of that discretion. Kenner Plumbing Supply, Inc. v. Rusich Detailing, Inc. , 14-922 (La. App. 5 Cir. 9/23/15), 175 So.3d 479, 503, writ denied , 15-2112 (La. 2/5/16), 186 So.3d 1165.

"Hearsay" is defined as "a statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted." La. C.E. art. 801(C). A "statement" is defined in pertinent part as "[a]n oral or written assertion." La. C.E. art. 801(A)(1).

We first consider the district court's ruling that the insurance information Ms. Larios obtained the day after the collision was admissible pursuant to La. C.E. art. 801(D)(3)(a), which provides: "A statement is not hearsay if...[t]he statement is offered against a party, and the statement is...[a] statement by an agent or employee of the party against whom it is offered, concerning a matter within the scope of his agency or employment, made during the existence of the relationship[.]" The court reasoned that Mr. Martinez, as the insured, was an agent of the insurer for purposes of La. C.E. art. 801(D)(3)(a).

We disagree. "An agent is one who acts for or in place of another by authority from the latter." Ross v. Ross , 02-2984 (La. 10/21/03), 857 So.2d 384, 397 n.9. There is no evidence in the record that Mr. Martinez, as the insured, was authorized by Imperial to act on its behalf. He was a customer of Imperial, not its agent, and thus La. C.E. art. 801(D)(3)(a) is inapplicable.

Nonetheless, we find that Ms. Larios' testimony describing her interaction with the alleged driver the day after the collision was admissible under another hearsay exception. The individual's providing Ms. Larios with his insurance information, his statement identifying himself as Julio Martinez, his statement that he never meant to damage Ms. Larios' vehicle, and his statement that he left the scene because he was intoxicated are admissible as statements against interest under La. C.E. art. 804(B)(3).

This exception to the hearsay rule "allows the admission of a statement by an unavailable witness which was made under such circumstances that it probably was true." 19 Frank L. Maraist, Louisiana Civil Law Treatise , Evidence and Proof, § 10:8, at 252-53 (2nd ed. 2007). "[A] declarant is 'unavailable as a witness' when the declarant cannot or will not appear in court and testify to the substance of his statement made outside of court." La. C.E. art. 804(A). "This includes situations in which the declarant...[i]s absent from the hearing and the proponent of his statement has been unable to procure his attendance by process or other reasonable means." La. C.E. art. 804(A)(5). We find Mr. Martinez qualifies as "unavailable" under these provisions.

A statement is against the declarant's interest if, at the time the statement was made, it was "so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability, or to render invalid a claim by him against another, that a reasonable man in his position would not have made the statement unless he believed it to be true." La. C.E. art. 804(B)(3). The Louisiana evidence treatise employs the following as an example of a statement against interest: "[I]f the driver of an automobile makes an inculpatory statement at the accident scene,...[and] if the driver is unavailable at trial, the driver's statement can be admitted against [a party] as a declaration against interest by the driver." Maraist, supra at 253.

Here, although the statements were not made at the scene of the collision, we find that the individual's providing his insurance information to Ms. Larios, his statement identifying himself as Julio Martinez, his statement that he did not intend to damage Ms. Larios' vehicle, and his statement that he left the scene because he was intoxicated, at the time of their making, were "so far contrary" to his interest and "tended to subject him to civil or criminal liability," that they were probably true. Accordingly, we find these statements against interest are not excluded by the hearsay rule.

Assignment of Error Two

In Imperial's second assignment of error, it argues that the district court erred in permitting the introduction of inadmissible hearsay evidence in the form of a report prepared by A & B Inspection Service, Inc. that identified the truck's owner and insurance coverage.

Plaintiffs' counsel argued at trial, and in brief to this Court, that this report qualifies under the hearsay exception as a record of regularly conducted business activity pursuant to La. C.E. art. 803(6). The district court, however, admitted this report into evidence without specifying if it was hearsay, and if so, what exception it was being admitted under.

We find that this report, as an out-of-court statement offered to prove the truth of the matter asserted, is hearsay. We also find that it is not admissible under La. C.E. art. 803(6) or any other hearsay exception.

Under La. C.E. art. 803(6), "records of regularly conducted business activity" are admissible hearsay if the proponent can establish the record was (1) made at or near the time by, or from information transmitted by, (2) a person with knowledge, (3) made and kept in the course of a regularly conducted business activity, and (4) that it was the regular practice of that business activity to make and to keep the information. Finch v. ATC/Vancom Mgmt. Servs. Ltd. P'ship , 09-483 (La. App. 5 Cir. 1/26/10), 33 So.3d 215, 220.

Additionally, the party who seeks to introduce written hearsay evidence pursuant to La. C.E. art. 803(6) must authenticate it by a qualified witness. Finch , supra . The witness laying the foundation for admissibility of business records need not have been the preparer of the records; rather, La. C.E. art. 803(6) permits the custodian of the record "or other qualified witness" to establish the essential foundational predicate. Id. A qualified witness only need have familiarity with the record-keeping system of the entity whose business records are sought to be introduced. Id. If the foundation witness cannot vouch that the requirements of the Code of Evidence have been met, the evidence must be excluded. Id.

In the instant case, the report sought to be introduced was prepared by A & B Inspection Service, Inc. at the behest of plaintiffs' counsel. At trial, over defense counsel's repeated objections, plaintiffs' counsel presented this report to Ms. Larios on the stand and questioned her about it before the court permitted its introduction. We find Ms. Larios is not a "qualified witness" to authenticate this report. There is no evidence in the record that she has any knowledge of the business activities or record-keeping practices of A & B Inspection Service, Inc. Without authentication of this report as a business record in accordance with La. C.E. art. 803(6), the district court abused its discretion by admitting this inadmissible hearsay.

Assignment of Error Three

In Imperial's third assignment of error, it reprises its general argument that plaintiffs failed to prove the tortfeasor's identity with admissible evidence. Though we find the district court erred in admitting the A & B report, we nonetheless determine that the record still supports the court's factual finding that Imperial's insured, Julio Gomez Martinez, was the driver of the truck that struck Ms. Larios and Mr. Funez on August 4, 2014.

We review this factual finding under the manifest error-clearly wrong standard of review. Under this standard, an appellate court will not set aside a finding of fact in the absence of "manifest error" or unless it is "clearly wrong." Vince v. Koontz , 16-521 (La. App. 5 Cir. 2/8/17), 213 So.3d 448, 458, writ denied , 17-429 (La. 4/24/17), 221 So.3d 67. Thus, in order to reverse a trial court's factual findings, the appellate court must: (1) find from the record that a reasonable factual basis does not exist for the finding of the trial court, and (2) determine that the record establishes the finding is clearly wrong or manifestly erroneous. Id.

The record here includes not only Ms. Larios' testimony regarding Mr. Martinez's inculpatory statements, but also her testimony that a white Dodge pickup truck rear-ended her. And this testimony is corroborated by Imperial's Endorsement Declaration, which reflects that Imperial insured Julio Gomez Martinez's Dodge Ram pickup truck and that this policy was in effect on August 4, 2014. Upon review of the evidence and testimony presented at trial, we conclude that the record contains a reasonable factual basis for the court's finding that Imperial's insured, Julio Gomez Martinez, was the driver of the Dodge truck that rear-ended Ms. Larios and Mr. Funez on August 4, 2014, and does not establish that this finding was clearly wrong.

Assignment of Error Four

In Imperial's fourth assignment of error, it argues that the district court erred in awarding plaintiffs damages in excess of its policy limits. Mr. Martinez's policy with Imperial provided bodily injury liability limits of $15,000 per person and $30,000 per accident. The district court rendered judgment against Imperial in favor of Ms. Larios and Mr. Funez in the respective amounts of $21,318 and $21,267, for a total judgment against Imperial in the amount of $42,585.

Louisiana jurisprudence recognizes that a liability insurer may be liable for a judgment against its insured in excess of the policy limits, when the insurer failed to deal in good faith with a claim against its insured. See Kelly v. State Farm Fire & Cas. Co. , 14-1921 (La. 5/5/15), 169 So.3d 328, 337 ; Smith v. Audubon Ins. Co. , 95-2057 (La. 9/5/96), 679 So.2d 372, 376 ("In the absence of bad faith, a liability insurer generally is free to settle or to litigate at its own discretion, without liability to its insured for a judgment in excess of the policy limits.")

This jurisprudence is not applicable here. There is no evidence in the record that Imperial failed to deal in good faith with plaintiffs' claims against Mr. Martinez, and a judgment was not rendered against the insured but against the insurer under the Direct Action Statute. The Direct Action Statute provides that an "injured person...shall have a right of direct action against the insurer within the terms and limits of the policy [.]" La. R.S. 22:1269(B)(1) (Emphasis added).

It is well settled that, absent conflict with statutes or public policy, insurers have the same rights as do individuals to limit their liability and to enforce whatever conditions they impose upon their obligations. See Cadwallader v. Allstate Ins. Co. , 02-1637 (La. 6/27/03), 848 So.2d 577, 583. Thus, it is the insurance policy that establishes the limits of liability and is the law between the parties. See id.

Here, the district court erred by awarding damages against Imperial in excess of the established policy limits. We therefore amend the district court's judgment to limit plaintiffs' recovery against Imperial to the policy limits of $15,000 per person/$30,000 per accident. Accordingly, the judgment in favor of Claudia Larios against Imperial is reduced from $21,318 to $15,000; and the judgment in favor of Marlon Funez against Imperial is reduced from $21,267 to $15,000.

DECREE

For the foregoing reasons, we amend in part the district court's June 14, 2017 judgment to reduce the award in favor of Claudia Larios against Imperial from $21,318 to $15,000, and to reduce the award in favor of Marlon Funez against Imperial from $21,267 to $15,000. We affirm this judgment as amended.

AMENDED IN PART; AFFIRMED AS AMENDED

      For hearsay purposes, in addition to an "oral or written assertion[,]" a "statement" can also be "[n]onverbal conduct of a person, if it is intended by him as an assertion." See La. C.E. art. 801(A).


author: GRAVOIS, J.

text:
    Alexander LOYA v. Sandra Cummings LOYA
    NO. 17-CA-555
    Court of Appeal of Louisiana, Fifth Circuit.
    February 21, 2018
    ALEXANDER LOYA, In Proper Person, for PLAINTIFF/APPELLANT
    Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and Stephen J. Windhorst
   GRAVOIS, J.

Plaintiff/appellant, Alexander Loya, appeals the trial court's June 21, 2017 judgment that denied his Petition for Contact with Minor Biological Children. For the reasons that follow, we affirm the judgment.

FACTS AND PROCEDURAL HISTORY

Plaintiff/appellant, Alexander Loya, and defendant/appellee, Sandra Cummings Loya, were married on January 10, 1998. Of their marriage, three children were born. Their oldest child, who was born in November 1999, is now a major; their second and third children, born in 2001 and 2003, respectively, are still minors. In 2009, Mr. Loya, then a Captain in the United States Army, was convicted by court-martial of several counts of various crimes involving sexual acts with his then-minor step-daughter, K.L., who is Mrs. Loya's daughter by a previous marriage. For his crimes, Mr. Loya was sentenced to "confinement for 50 years and dismissal from the service." As part of his sentence, Mr. Loya was also prohibited from writing, visiting, or making other contact with Mrs. Loya, and from "having any contact with minor children." On or about August 26, 2010, the couple divorced.

On January 13, 2017, Mr. Loya filed a "Petition for Contact with Minor Biological Children." At the time his petition was filed, Mr. Loya was incarcerated at the United States Disciplinary Barracks in Fort Leavenworth, Kansas. He is currently incarcerated in Pollock, Louisiana. In his petition, Mr. Loya averred that it was in the best interest of his minor children that he be allowed to contact them via telephone and/or U.S. mail, to send them gifts, and to have access to information and documentation pertaining to them, including but not limited to academic and athletic achievements such as report cards, standardized testing results, and any competitive awards or accomplishments. Mr. Loya requested that the court appoint a custody facilitator/parenting coordinator to arrange, facilitate, and supervise any telephone contact with the children and to receive and deliver cards, letters, and gifts to the children. He noted that he had completed the Army-sanctioned "Reason and Rehabilitation Class, Anger Management Class and Alpha Course."

Upon request of the trial court, Mr. Loya filed a memorandum of law in support of his petition. In his memorandum, Mr. Loya argued that pursuant to La. C.C. art. 136, he was seeking to establish a way to be part of his minor children's lives without the interference or prevention of Mrs. Loya. He also contended that La. R.S. 9:364.1, quoted infra , provided him, as an incarcerated parent, with a statutory basis for his request. Mr. Loya further relied on La. R.S. 9:351 to argue that at the very least, he should be provided with his minor children's medical, dental, and school records, including but not limited to extra-curricular activities.

On June 14, 2017, the trial court conducted a hearing on the petition. At the hearing, Mr. Loya's attorney argued that Mr. Loya was not convicted of anything involving his three biological children at issue herein. Counsel argued that Mr. Loya simply wanted contact with his children by sending cards, communicating via telephone, and/or receiving information about their health and education. Counsel further suggested that the trial court appoint someone to facilitate the contact to ensure the safety of the children. Counsel for Mr. Loya presented no witnesses and submitted no evidence at the hearing in support of his requests. His case consisted entirely of argument of counsel.

Mrs. Loya, appearing pro se , testified at the hearing and submitted exhibits in opposition to the petition. She provided that Mr. Loya has had no contact with the children since his arrest in 2009. When Mr. Loya was first sentenced, Mrs. Loya only told the children that he was accused of wrongdoing and that the court had found him guilty. She also told the children that if they wanted contact with their father, she would not stop it; however, she said that they had never brought up wanting to contact him. Mrs. Loya testified that the children are now together, healed, successful, and stable. She said that she did not want the children receiving gifts and cards from Mr. Loya, even through an intermediary, because their lives are stable and she did not want to do anything to jeopardize their current path of life. She stated that Mr. Loya previously attempted contact with the children by sending several letters to Mrs. Loya's mother, requesting that she give them to the children. However, the children never saw these letters. Mrs. Loya found them in her mother's possessions after her death. Copies of the envelopes containing the letters were submitted into evidence. Mrs. Loya also submitted into evidence correspondence she received from the Army stating that Mr. Loya was prohibited from having any contact with her and "with minor children." She further submitted a copy of the General Court-Martial Order listing Mr. Loya's convictions and sentence.

Mrs. Loya further testified that her daughter, K.L., the victim of Mr. Loya's crimes, although now a major, is "extremely mentally unstable." She stated that as a minor, K.L. had been sent to juvenile court several times. Additionally, she was hospitalized twenty-five times in a period of four years as a result of the trauma she received at the hands of Mr. Loya. Mrs. Loya denied the allegations by Mr. Loya that K.L. has since recanted some of the things she testified about regarding the charges against Mr. Loya, and that K.L. said that Mrs. Loya set it up for her to make the claims against Mr. Loya.

At the conclusion of the hearing, the trial court took the matter under advisement. On June 21, 2017, the trial court rendered a written judgment denying all of the claims and relief requested in Mr. Loya's petition. Written reasons for judgment were issued that same day. This timely appeal followed.

On appeal, Mr. Loya, appearing pro se , asserts in his first assignment of error (styled "Issue I" by Mr. Loya) that the trial court erred when it denied his petition based on Mrs. Loya's testimony. Though the trial court stated that it perceived Mrs. Loya to be honest, candid, and forthright, Mr. Loya argues that her statements on the record and the facts in his brief show that she was "consciously deceptive" and lied to the trial court. In support of his argument, Mr. Loya refers this Court to affidavits of Daurice Cummings Bealer and Tania Favela Loya attached to his brief.

Mr. Loya asserts in his second assignment of error (styled "Issue II" by Mr. Loya) that the trial court erred when it denied his petition based on the emotional trauma K.L. suffered, first because he denied that any abuse ever occurred, and second because the contact he presently seeks is with his three biological children, not with K.L. He argues that the suffering and emotional trauma in K.L.'s life was due to Mrs. Loya's own manipulation that caused her to accuse Mr. Loya falsely and unjustly put him in prison. He again refers to attachments to his brief as the support for his argument.

Finally, Mr. Loya asserts in his third assignment of error (styled "Issue III" by Mr. Loya) that the trial judge was "an old family friend" of Mrs. Loya and thus should have recused himself from the case, arguing that "this makes the Court appear unethical to the general public."

Mrs. Loya did not file an appellee brief with this Court.

ANALYSIS

The legal authority for visitation with incarcerated parents is found in La. R.S. 9:364.1, which provides:

A. If the court authorizes visitation with an incarcerated parent, as part of such visitation order the court shall include restrictions, conditions, and safeguards as are necessary to protect the mental and physical health of the child and minimize the risk of harm to the child.
B. A court considering the supervised visitation of a minor child with an incarcerated parent shall consider the best interest of the child, including but not limited to:
(1) The length and quality of the prior relationship between the child and the parent.
(2) Whether the child is in need of guidance, enlightenment, or tutelage which can best be provided by the parent.
(3) The preference of the child if he is determined to be of sufficient maturity to express a preference.
(4) The willingness of the relative to encourage a close relationship between the child and his parent or parents, including the willingness of the child's custodial parent, caretaker, or legal guardian to voluntarily take the child to the incarcerated parent's place of incarceration for supervised visitation.
(5) The mental and physical health of the child and the parent.
(6) The length of time that the child lived with the parent prior to the parent's incarceration.
(7) The desirability of maintaining the continuity of the relationship between the child and the incarcerated parent.
(8) The costs of travel and other expenses incurred by visitation at the place of incarceration, and who will bear responsibility for such costs.
(9) The effect upon the child of supervised visitation in the place of incarceration and the feasibility, if any, of alternative or additional use of technology for visitation pursuant to R.S. 9:357.
(10) Other testimony or evidence as the court may consider applicable.

In its written reasons for judgment, the trial court stated that it considered the provisions of La. R.S. 9:364.1 in finding that: 1) no evidence was adduced that would indicate that any contact would be in the best interest of the minor children; 2) no evidence was adduced to indicate the length and quality of the prior relationships between the father and the children; 3) no evidence was adduced to show how the father can provide guidance or enlightenment to the children; 4) no direct evidence was adduced to show the children's preference; and 5) no evidence was adduced to indicate how anything but the current arrangement of no contact would be beneficial to the children. The court found, in a nutshell, that nothing was proven to indicate that the children would benefit from granting any of the relief requested, and that the only proof adduced supported the mother's request to deny all relief. The court noted that it was impressed with the "sincerity of the mother," finding that Mrs. Loya's "trembling hands, shaking body, and wavering voice were proof positive to [the] court that she was being candid, forthright, and open in her testimony." The court ultimately found that all factors indicate that the best interests of the children would be for them to not have any contact with their father.

The best interest of the child is the sole criterion for determining a noncustodial parent's right to visitation. Dufresne v. Dufresne , 08-215 (La. App. 5 Cir. 9/16/08), 992 So.2d 579, 586, writ denied , 08-2843 (La. 12/17/08), 996 So.2d 1123 ; Smith v. Smith , 41,871 (La. App. 2 Cir. 1/24/07), 948 So.2d 386, 388, writ not considered , 07-0621 (La. 4/20/07), 954 So.2d 149. Because each case depends on its own facts, the determination regarding visitation is made on a case-by-case basis. Davis v. Davis , 494 So.2d 1315, 1317-1318 (La. App. 2nd Cir. 1986). Great weight is given to the trial court's determination, and the court's judgment will not be overturned unless a clear abuse of discretion is shown. Davis , 494 So.2d at 1317.

When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact's findings; for only the factfinder 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. Rosell v. ESCO , 549 So.2d 840, 844 (La. 1989).

Upon review, we find that the trial court did not abuse its discretion and was not manifestly erroneous or clearly wrong in crediting the testimony of Mrs. Loya in its decision to deny Mr. Loya's Petition for Contact. Mrs. Loya testified at length at trial as to why she felt Mr. Loya's Petition for Contact should be denied. Particularly, she provided that Mr. Loya had been absent for over eight years as a result of being convicted of sexual acts involving his step-daughter (the step-sister of his children that are the subject of this matter). She further testified that the children are now together, healed, successful, and stable, and that she did not want them receiving gifts and cards from Mr. Loya, even through an intermediary, because their lives are stable and she did not want to do anything to jeopardize their current path of life. The trial court even noted in its written reasons for judgment that it was impressed with the "sincerity of the mother," finding that Mrs. Loya's "trembling hands, shaking body, and wavering voice were proof positive to [the] court that she was being candid, forthright, and open in her testimony." Mrs. Loya further submitted documentation she received from the Army listing Mr. Loya's convictions and sentence and stating that Mr. Loya was prohibited from having any contact with her and "with minor children." In contrast, at the hearing on his petition, Mr. Loya presented only argument of counsel and no evidence whatsoever in support of his argument that the contact he requested would be in the best interest of his children.

On appeal, Mr. Loya's arguments mainly rely on affidavits and other documents attached to his appellate brief. However, none of those documents were before the trial court at the time of the hearing and were not considered by the trial court when rendering judgment. Pursuant to La. C.C.P. art. 2164, an appellate court must render judgment upon the record on appeal. The record on appeal is that which is sent by the trial court to the appellate court and includes the pleadings, court minutes, transcript, judgments, and other rulings, unless otherwise designated. La. C.C.P. arts. 2127 and 2128. An appellate court cannot review evidence that is not in the record on appeal and cannot receive new evidence. The appellate briefs of the parties are not a part of the record on appeal, and this Court has no authority to consider facts referred to therein if those facts are not in the record. Examination of exhibits attached to an appellate brief, but not offered into evidence at the trial court, is beyond the scope of appellate review. Distefano v. B & P Const., Inc. , 04-25 (La. App. 5 Cir. 5/26/04), 874 So.2d 407, 411, writ denied , 04-1735 (La. 10/15/04), 883 So.2d 1058. Further, the Louisiana Supreme Court has held that evidence not properly and officially offered and introduced cannot be considered, even if it is physically placed in the record. Denoux v. Vessel Management Services, Inc ., 07-2143 (La. 5/21/08), 983 So.2d 84, 88.

Considering the testimony and evidence presented by Mrs. Loya at the hearing, compared to the lack of evidence presented by Mr. Loya at the hearing, and the prohibition against our consideration on appeal of the affidavits and other documents attached to Mr. Loya's appellate brief, we find Mr. Loya's first and second assignments of error to be without merit.

Further, although Mr. Loya argues in his third assignment of error that the trial judge should have recused himself from the case because he allegedly was "an old family friend" of Mrs. Loya, Mr. Loya did not file a motion to recuse the trial judge in the trial court prior to rendition of the judgment, as required in La. C.C.P. art. 154, and thus, this issue may not be considered on appeal. See Boone v. Reese , 04-0979 (La. App. 3 Cir. 12/08/04), 889 So.2d 435, 442. Accordingly, this assignment of error is also without merit.

CONCLUSION

For the foregoing reasons, the judgment of the trial court on Mr. Loya's Petition for Contact with Minor Biological Children is affirmed.

AFFIRMED

      Previously, in 2012, Mr. Loya filed three motions to re-establish contact with his minor children, all of which were summarily, procedurally denied by the trial court.

      Specifically, the trial court ordered Mr. Loya to provide a memorandum of law addressing the statutory or other legal basis for the court to order the requested contact; the statutory or other legal basis for a custody facilitator/parenting coordinator to perform the duties requested; and the statutory or other legal basis allowing the court to communicate with any of the entities listed in the pleadings.

      La. C.C. art. 136, entitled "Award of visitation rights," provides, in pertinent part:
      A. A parent not granted custody or joint custody of a child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would not be in the best interest of the child.
      * * *
      C. Under extraordinary circumstances, any other relative, by blood or affinity, or a former stepparent or stepgrandparent may be granted reasonable visitation rights if the court finds that it is in the best interest of the child. Extraordinary circumstances shall include a determination by a court that a parent is abusing a controlled dangerous substance.
      D. In determining the best interest of the child under Paragraphs B and C of this Article, the court shall consider:
      a. The length and quality of the prior relationship between the child and the relative.
      b. Whether the child is in need of guidance, enlightenment, or tutelage which can best be provided by the relative.
      c. The preference of the child if he is determined to be of sufficient maturity to express a preference.
      d. The willingness of the relative to encourage a close relationship between the child and his parent or parents.
      e. The mental and physical health of the child and the relative.
      E. In the event of a conflict between this Article and R.S. 9:344, the provisions of the statute shall supersede those of this Article.

      La. R.S. 9:351, entitled "Access to records of child," provides:
      Notwithstanding any provision of law to the contrary, access to records and information pertaining to a minor child, including but not limited to medical, dental, and school records, shall not be denied to a parent solely because he is not the child's custodial or domiciliary parent.

      Although Mr. Loya made this argument in his memorandum, he did not assign as an error or raise as an issue for review in his appellate brief the trial court's failure to provide him with the relief provided for in this statute. Because the appellate court will only consider alleged errors of the trial court that are properly assigned and briefed, we do not address the trial court's failure to grant the relief requested by Mr. Loya in this argument. See Uniform Rules-Courts of Appeal, Rule 2-12.4(A)(5) and (6), respectively, which require the appellant to include in his brief "assignments of alleged errors" and "a listing of issues presented for review." See also Gooding v. Merrigan , 15-200 (La. App. 5 Cir. 11/19/15), 180 So.3d 578, 583.

      Being incarcerated, Mr. Loya did not attend the hearing.

      Mrs. Loya stated that her objection to Mr. Loya's receiving information such as the children's grades and medical records was "strictly punitive."

      In response to the judgment, Mr. Loya filed a motion for a new trial on June 30, 2017. The trial court denied the motion on July 11, 2017, noting that the proper remedy to address Mr. Loya's arguments was on appeal.

      We further note that Mr. Loya did not present any argument or evidence in the trial court to support this allegation.


author: WINDHORST, J.

text:
    STATE of Louisiana v. Henri LYLES
    NO. 17-KA-405
    Court of Appeal of Louisiana, Fifth Circuit.
    February 21, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Bridget A. Dinvaut, Justin B. LaCour
    COUNSEL FOR DEFENDANT/APPELLANT, HENRI LYLES, Bertha M. Hillman
    Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and Stephen J. Windhorst
   WINDHORST, J.

In this criminal appeal, defendant, Henri Lyles, appeals his sentence to life imprisonment without the benefit of parole, probation, or suspension of sentence as a third felony offender with the third underlying conviction for aggravated battery. Without considering the merits of the assignment of error contending that the habitual offender sentence was excessive, we vacate defendant's sentence and remand for resentencing for the following reasons.

After a jury trial on November 15-16, 2016, defendant was convicted of aggravated battery in violation of La. R.S. 14:34. On November 18, 2016, the State filed an habitual offender bill of information against defendant, alleging that he was a third felony offender with a 1990 predicate conviction of distribution of cocaine and a 2004 predicate conviction of manslaughter. The hearing on defendant's habitual offender bill was held on February 13, 2017. During the course of this hearing, the trial court sentenced defendant for the aggravated battery conviction to eight (8) years imprisonment with the Department of Corrections and imposed a $1,000 fine. After an evidentiary hearing on the habitual offender bill, the trial court found defendant to be a third felony offender and sentenced him to life imprisonment without the benefit of parole, probation or suspension of sentence in accordance with La. R.S. 15:529.1(A)(3)(b). Defendant filed a motion to reconsider his sentence, which the trial court denied. This appeal followed.

FACTS

Defendant and Imani Wilson met in 1992 and were involved in a relationship off and on for several years. In 2014, Ms. Wilson agreed to allow defendant to stay with her for a limited period of time. In January 2015, Ms. Wilson asked defendant to leave and offered to help him find work and a new residence. On February 1, 2015, defendant, Ms. Wilson, and her two (2) children from another relationship were at Ms. Wilson's home, and defendant informed Ms. Wilson that he would move out that week. That same day, while Ms. Wilson was in the kitchen cooking, defendant began staring at her and continued to do so for an extended period. Eventually, Ms. Wilson asked defendant why he was staring at her, and he did not respond. Because defendant continued to stare at her, she became nervous and warned her children who were home that they should call 9-1-1 if they heard anything.

After some time had passed, defendant began to approach Ms. Wilson and grabbed her by the throat with his left hand while simultaneously reaching for a knife with his other hand. Ms. Wilson pried defendant's fingers from her throat and ran from him. She fell and defendant held her down and grabbed her around the throat again. Defendant attempted to stab Ms. Wilson, and she tried to block the knife. She eventually blacked out and could not remember additional details. One of Ms. Wilson's children heard the commotion and called 9-1-1. The police arrived at the house before defendant was able to get away and arrested him for aggravated battery.

DISCUSSION

Defendant assigns as error that his sentence is unconstitutionally excessive. Because there are errors patent which necessitate that we vacate defendant's sentence and remand this matter for resentencing, we do not address whether defendant's sentence is unconstitutionally excessive. State v. Netter, 11-202 c/w 203 (La. App. 5 Cir. 11/29/11), 79 So.3d 478, 483-483, writ denied, 12-0032 (La. 8/22/12), 97 So.3d 357.

We have reviewed the record for errors patent as required by La. C.Cr.P. art. 920, and find the following which requires attention. See State v. Oliveaux, 312 So.2d 337 (La. 1975) and State v. Weiland, 556 So.2d 175 (La. App. 5 Cir. 1990). In this case, the record indicates that the trial court did not vacate defendant's original sentence for aggravated battery prior to imposing his enhanced sentence as an habitual offender. When a defendant's original sentence on an underlying offense has not been vacated by the court at the time of defendant's sentencing as an habitual offender, the original sentence remains in effect and the subsequent sentence as an habitual offender is null and void. State v. Netter, supra. Because defendant's underlying sentence for the aggravated battery conviction was not vacated, we find that defendant's habitual offender sentence is null and void. Accordingly, we vacate defendant's habitual offender sentence and remand this matter to the trial court for resentencing. The trial court is instructed to vacate defendant's sentence for aggravated battery before sentencing him as an habitual offender. State v. Wise, 13-247 (La. App. 5 Cir. 11/19/13), 128 So.3d 1220, 1224.

In light of our finding that defendant's habitual offender sentence is null and void, we cannot address defendant's assignment of error that his habitual offender sentence is excessive.

DECREE

Defendant's habitual offender sentence is vacated and the matter is remanded to the trial court for resentencing.

HABITUAL OFFENDER SENTENCE VACATED; REMANDED FOR RESENTENCING


author: EDWARDS, JUDGE PRO TEMPORE, J.

text:
    The LAW OFFICE OF JOHN D. SILEO, LLC v. Deborah KRUSE, Mark Kruse, and the Law Offices of Allan Berger & Associates, PLC
    NO. 17-CA-474 7-CA-639
    Court of Appeal of Louisiana, Fifth Circuit.
    February 21, 2018
    COUNSEL FOR PLAINTIFF/APPELLANT, THE LAW OFFICE OF JOHN D. SILEO, LLC, John D. Sileo, Casey W. Moll, New Orleans
    COUNSEL FOR DEFENDANT/APPELLEE, DEBORAH KRUSE, MARK KRUSE, AND THE LAW OFFICES OF ALLAN BERGER & ASSOCIATES, PLC, Edward P. Gothard, Metairie
    Panel composed of Judges Jude G. Gravois, Stephen J. Windhorst, and Marion F. Edwards, Judge Pro Tempore
   EDWARDS, JUDGE PRO TEMPORE, J.

This is an appeal from a judgment of the district court sustaining defendants' peremptory exceptions of no right of action, res judicata , and prescription, and defendants' declinatory exception of lack of subject matter jurisdiction, and dismissing all of plaintiff's claims against defendants, with prejudice. The suit originated out of a claim by plaintiff, The Law Office of John D. Sileo, LLC ("Sileo"), against its former clients, defendants, Deborah and Mark Kruse (the "Kruses"), to recover attorney fees and expenses pursuant to a contingency fee contract, and a claim for conversion against defendant, The Law Offices of Allan Berger & Associates, PLC ("Berger"), for its alleged wrongful appropriation of those attorney fees and expenses. For the following reasons assigned, we affirm the district court's grant of defendants' exception of no right of action and, consequently, pretermit review of the remaining exceptions on the grounds that they are moot.

FACTS AND PROCEDURAL HISTORY

On June 6, 2012, Sileo filed a complaint on behalf of the Kruses in the United States District Court, Eastern District of Louisiana, for damages related to Deborah's use of transvaginal mesh/American Medical Systems/Endo Corporation Sparc. The Kruses' suit was thereafter transferred on June 25, 2012 from federal district court in Louisiana into multi-district litigation pending in the United States District Court, Southern District of West Virginia (hereinafter "Mesh MDL").

On September 23, 2012, three months after filing the initial complaint on behalf of the Kruses in federal district court, Sileo entered into a contingency fee contract with Deborah Kruse regarding its representation of the Kruses' pending suit in the Mesh MDL litigation. The contract called for Sileo to receive forty percent of the total amount collected in the event settlement was achieved without the necessity of filing suit (even though suit had already been filed at the time the contingency fee contract was confected), or fifty percent of "whatever amount [was] collected" in the event an appeal. The contract also provided the following:

RIGHT TO DISCHARGE ATTORNEY: I understand that I have the right to discharge my attorney. If I do so, my Attorney is nevertheless entitled to the fees, expenses, loans and interest thereon, upon any settlement or judgment obtained on my claim, as set forth in this contract in accordance with law.

According to Sileo, during the two-and-a-half years after suit on behalf of the Kruses was filed, a substantial amount of legal work was performed and expenses pertaining to the Mesh MDL litigation were incurred by Sileo. By written correspondence dated February 9, 2015, the Kruses terminated Sileo's representation. Two weeks later, on February 24, 2015, the Kruses filed a motion to substitute defendant, Berger, as counsel of record for the Kruses in lieu of Sileo in the Mesh MDL litigation.

During the five months following his discharge, the record reflects that Sileo took no formal or informal action to protect its interest to attorney fees and costs incurred by the firm during its representation of the Kruses. Sileo did not file its contingency fee contract pursuant to La. R.S. 37:218, nor did it file a petition of intervention in to the federal court action. Moreover, the record is devoid of evidence that Sileo ever attempted to notify Berger in writing or otherwise to advise of its contingency fee contract and/or its intent to pursue its rights thereunder.

Because it had not yet withdrawn as counsel of record for the Kruses (though four-and-a-half months had lapsed since its discharge), Sileo received notice from the federal district court on June 30, 2015 via the federal court's electronic notification system advising that a settlement of the Kruses' claims in the Mesh MDL litigation had been reached, and that the court had issued an "inactive docket order" retiring the Kruses' case from the court's active docket. The order provided that the court would "reinstate the case to the active docket" upon a showing of good cause for such reinstatement.

On July 7, 2015, five months after having been discharged by the Kruses, Sileo filed a motion to withdraw as their counsel of record in the Mesh MDL litigation. Notably, on that same day, though it had received notice that the Kruses' suit had previously been settled and moved to the federal court's inactive docket, Sileo attempted to file a petition of intervention in the inactive suit seeking to enforce the contingency fee contract it entered into with Deborah Kruse and to recover attorney fees and the out-of-pocket expenses Sileo incurred during its representation of the Kruses prior to its discharge. Attached as an exhibit to Sileo's petition was a copy of the contingency fee contract. Though it did not include a motion for leave to file its petition of intervention, Sileo submitted a proposed order with its petition that would grant Sileo leave of court to file the petition into the record.

There is no indication in the record of the instant appeal, however, evidencing that the proposed order submitted by Sileo was ever signed or that the federal district court otherwise issued an order permitting Sileo's petition of intervention. In federal court, an intervention may only be filed with leave of court pursuant to a "timely motion." See Fed. R. Civ. Proc. 24. Accordingly, because Sileo did not obtain the required permission or authority to intervene, Sileo's petition of intervention was never actually filed. In short, the effect of Sileo's unsuccessful attempt to file its petition of intervention to recover attorney fees and costs was that the intervention was never actually "filed" and the claims asserted therein were never actually made or "pending."

On July 10, 2015, three days after its unsuccessful attempt to file the untimely petition of intervention, Sileo filed a motion to reinstate the Kruses' case to the active docket "so that the issues presented in [Sileo's] petition of intervention" could be litigated and resolved. On August 6, 2015, the federal district court entered an order denying Sileo's motion to reactivate the case. Implicit in the trial court's denial was its determination that Sileo's motion failed to establish the requisite showing of "good cause."

Notably, following the federal court's denial of Sileo's motion, Sileo took no remedial action. It did not file a motion for reconsideration or rehearing. It did not file a motion for new trial, a writ application or appeal, or any other request for review in the federal court action. Moreover, Sileo also failed to take any further action relative to the court's failure to sign the order granting leave to file its petition of intervention.

On September 9, 2015, seven months after it had been discharged, and aware that the Kruses' case had been settled three months prior and that its attempt to file a petition of intervention and/or reopen the case was unsuccessful, Sileo filed and recorded its 2012 contingency fee contract entered into with Deborah Kruse in Jefferson Parish.

For the next eight-and-a-half months, Sileo took no futher action.

On May 31, 2016, representing to the court that "all claims ha[d] been compromised and settled, including all claims, counterclaims, cross-claims and third party claims," the Kruses and the party made defendant in their suit in the Mesh MDL litigation filed a joint motion to dismiss the Kruses' suit with prejudice. A final order dismissing all claims "WITH PREJUDICE and STRICKEN from the docket" was issued by the federal district court that day. There is no indication that Sileo took any action to challenge the final order of dismissal, which order he alleges in the instant litigation resulted in its "loss of a property right, contractual right, and/or a privilege for fees and costs asserted in the Mesh MDL."

Thereafter, on October 24, 2016-twenty months after having been discharged, sixteen months after receiving notice that the Kruses' claims had been settled, fifteen months after having unsuccessfully filed a petition of intervention, fourteen months after its motion to reactivate the case for purposes of litigating the issue of its claim for attorney fees and costs was denied, thirteen months after having recorded the contingency fee contract in Jefferson Parish, and five months after the issuance of the final order of dismissal with prejudice of all claims in the Kruses' federal court-Sileo filed a petition for damages in the instant case against the Kruses and their successor attorney, Berger, seeking to enforce the contingency fee contract, and to obtain "earned attorney fees and legal costs wrongfully obtained and held by Berger." Sileo attached to its petition a copy of the contingency fee contract and a statement of all legal expenses incurred in its representation of the Kruses in the federal court action prior to being discharged. Accepting Sileo's statement of expenses as true solely for purposes of this appeal, it appears that the sole expenses Sileo incurred during its two-and-half-year representation included the initial fee for filing the Kruses' complaint in federal district court in 2012, and for costs associated with medical records it requested in June 2013. In short, Sileo's costs totaled $417.92. Despite Sileo's allegation that it performed a substantial amount of legal work [in the Mesh MDL litigation], including, but not limited to, significant legal research, discovery, participation in depositions, telephone conferences with parties to the MDL, and extensive verbal and written correspondence with all counsel involved in the litigation," Sileo identified no other expenses or costs.

In response to Sileo's original petition, defendants filed a declinatory exception of lack of subject matter jurisdiction, and peremptory exceptions of res judicata , prescription and no right of action. Thereafter, Sileo filed its first supplemental and amending petition broadening its claim against the Kruses to include a breach of contract claim, and to assert a claim for misrepresentation and ill practices against Berger for misrepresenting to the Mesh MDL court that all claims had been compromised in order to obtain a dismissal with prejudice when it knew that Sileo's petition for intervention was still "pending."

Defendants' exceptions came for hearing on February 6, 2017. Following the hearing, the trial court took the matter under advisement. On February 7, 2017, the trial court rendered judgment granting all four of the exceptions brought by Deborah and Mark Kruse; the judgment was silent as to the same exceptions urged against Sileo by Berger. An amended judgment was issued on February 9, 2017, which granted all of the exceptions in favor of both the Kruses and Berger. Subsequently, written reasons were requested by Sileo and thereafter provided by the trial court on February 24, 2017.

Sileo timely appealed from the trial court's February 9, 2017 judgment sustaining defendants' exceptions. Because this Court found that the judgment lacked the requisite decretal language to constitute a final, appealable judgment, we remanded the matter directing the trial court to amend its judgment of February 9, 2017, accordingly. As directed, the trial court issued an amended judgment on September 20, 2017, dismissing Sileo's action with prejudice, and declaring the judgment as final and appealable.

ISSUES PRESENTED FOR REVIEW

Sileo avers that the trial court erred in sustaining each of the four exceptions brought by defendants; namely, the declinatory exception of lack of subject matter jurisdiction, and the three peremptory exceptions of no right of action, prescription, and res judicata , respectively. Because we affirm the trial court's judgment dismissing Sileo's action against defendants' on the basis that, under the specific facts presented, Sileo has no right of action against defendants for attorney fees or expenses, we pretermit discussion of the remaining exceptions as they are now moot.

DISCUSSION

We find that our previous decision in Ferguson v. W. Jefferson Levee Dist. Bd. of Comm'rs , 96-385 (La. App. 5th Cir. 11/14/96), 685 So.2d 273, writ grantedin part denied in part , 96-3005 (La. 2/7/97), 688 So.2d 486, is dispostive of Sileo's claims against both the Kruses and Berger in this case.

In Ferguson v. West Jefferson Levee Dist. Bd. of Comm'rs , supra , the plaintiff, a discharged attorney, appealed a judgment granting an exception of no right of action dismissing his claim for attorney fees and expenses filed against his former client and the client's successor attorney. The plaintiff's suit alleged that he was entitled to attorney fees and reimbursement of expenses that he incurred during his legal representation of his former client in a federal tort action prior to his discharge.

Specifically, the plaintiff filed a federal court action on behalf of his former client and represented her in that litigation until his discharge two years later. On the same day the plaintiff received a written notice of his discharge from his former client, a copy of which was filed into the federal court record, the federal court judge issued an order dismissing the plaintiff as the attorney of record, but reserved to him the "right to intervene in [the] proceedings in order to protect his interest in his attorney's fees." The following week, the plaintiff's former client retained new counsel, who contacted the plaintiff in order to obtain his former client's file. Eight months later, the plaintiff's former client and her successor attorney entered into a settlement agreement with the federal court defendant, the settlement funds were disbursed, and the federal court case was closed. Three months after the federal case was closed-and over eleven months after the judge's order allowing the plaintiff to intervene-the plaintiff attempted to file a petition for intervention in the federal court action. Though the intervention was initially allowed, it was subsequently dismissed. The plaintiff did not seek writs, an appeal, or any other further review of the order dismissing his intervention. Consequently, the order became final in federal court. Thereafter, having lost in federal court, the plaintiff filed suit in state court seeking to recover attorney fees and expenses. In affirming the trial court's judgment dismissing the plaintiff's petition on an exception of no right of action, we held:

[P]laintiff could have availed himself of the provisions of La. R.S. 37:218, which would have protected him in case of settlement , but he failed to do so ." In Reis v. Fenasci & Smith , 93-1785, (La. App. 4 Cir. 4/14/94), 635 So.2d 1319, the court held that where an attorney fails to record his contract in accordance with La. R.S. 37:218, failure to record the contract results in a forfeiture of counsel's right to recover attorney fees against his client. Thus the trial judge correctly dismissed plaintiff's claim against [his former client].
Under Reis, supra , plaintiff might still have had a claim against [his former client's] successor attorney: (1) if subsequent counsel has been notified before settlement of the prior attorney's assertion of rights under an employment contract , and (2) if plaintiff were fired without cause.
Either intervention in the federal suit or filing under La. R.S. 37:218 would have constituted sufficient notice under Reis , supra.

Ferguson , 96-385, p. 6, 685 So.2d at 275. [Emphasis supplied.]

The plaintiff in Ferguson applied for a writ of certiorari and/or review of our decision with the Supreme Court; his application was granted in part, and denied in part. See Ferguson , 96-3005 (La. 2/7/97), 688 So.2d 486. Specifically, the application was denied as to the plaintiff's claims against his former client and the settling defendant in the federal court action. As to the plaintiff's claims for attorney fees and expenses made against his former client's successor attorney, the Supreme Court did not reverse our dismissal of that claim, but rather, remanded the case to the trial court for "reconsideration" of that claim in light of its recent decision in O'Rourke v. Cairns , 95-3054 (La. 11/25/96), 683 So.2d 697, which provides guidance to lower courts and litigants in cases of attorneys discharged with cause in the contingency fee context.

In the instant case, it is clear based on our previous decision in Ferguson , supra , that Sileo forfeited his right to pursue a claim against the Kruses when he failed to comply with La. R.S. 37:218 and timely file or record the contingency fee contract prior to the Kruses' settlement of their case in the Mesh MDL litigation. Sileo's reliance on Rush, Rush & Calogero v. Barrios , 97-1532 (La. App. 3 Cir. 4/22/98), 716 So.2d 23, to support his claim against the Kruses is misplaced. In Rush , the Third Circuit specifically rejected this Court's decision in Ferguson and our interpretation and application of La. R.S. 37:218 as to the discharged attorney's claim for attorney fees and costs against his former clients. Our decision in Ferguson has not been overruled and is still the law of this Circuit and controls the outcome of Sileo's right to pursue his claim against the Kruses. Due to his own dilatory actions, he has none.

Additionally, we note that Rush is also factually distinguishable from the instant case. In Rush , the discharged attorney properly filed a petition of intervention prior to the plaintiffs having reached a settlement in the case, putting both his former client and the client's successor attorney on notice of his intention to assert his right or privilege under the contingency fee contract to an amount of the proceeds derived in any future settlement or judgment. Rush , 97-1532, p. 2, 716 So.2d at 24. Also, while the discharged attorney later filed a motion to dismiss his petition for intervention, the trial court granted the motion without prejudice preserving the discharged attorney's right to later file suit to recover attorney's fees and expenses against his former clients and their successor attorneys. Id.

In the instant case, Sileo neither properly filed a petition of intervention nor attempted to file a petition of intervention prior to the settlement of the Kruses' federal court action. The record evidences that following his discharge, he did nothing to protect his rights under the contingency fee contract until over four months had passed and he received notice through the federal court's electronic notification system regarding settlement of the Kruses' case. Thereafter, while Sileo attempted to file a petition for intervention into the Mesh MDL litigation, it failed to make sure the petition was permitted into the record by the court, as the order granting leave to file the petition was never signed. Further, when Sileo's motion to reinstate the case to the active docket so that it could pursue a petition for intervention was denied, Sileo took no further action to challenge or seek reversal of the court's adverse ruling. In short, Sileo merely failed to take the necessary steps to protect its rights under the contingency fee contract before such rights were lost to it. The holding in Rush is not only in direct contravention to the controlling law in this Circuit, it is factually distinguishable and inapplicable to the instant case.

We further hold that, under the specific facts of this case as outlined in detail above, by its own failure to timely act, Sileo has also forfeited any rights it may have had to pursue a claim for attorney fees and costs against Berger, the Kruses' successor attorney. As noted above, in Ferguson , supra , we held that even though a discharged attorney forfeits his right to pursue a claim against his former client when he fails to timely comply with La. R.S. 37:218, he may still have a claim against the successor attorney if, prior to settlement , he notifies the successor attorney of his intention to assert his rights under the contingency fee contract, and he was fired without cause. Ferguson , 96-385, p. 6, 685 So.2d at 275. We determined that the discharged attorney's filing of an intervention prior to settlement of the underlying claim constitutes sufficient notice to the successor attorney of his intent to assert his rights. Id. The Supreme Court's remand in Ferguson , directing the trial court to reconsider its ruling as to the discharged attorney's claim against the successor attorney in light of its decision in O'Rourke , does not alter our decision in this case as to Sileo's claim against Berger.

First, the Supreme Court's remand in Ferguson was not a reversal of our decision upholding the dismissal of the discharged attorney's claim against the successor attorney; it was a remand for reconsideration. Second, in O'Rourke , supra , the attorney discharged with cause had timely filed a petition of intervention in his former client's ongoing case, clearly giving the successor attorney notice of his intention to assert a claim or privilege against any future settlement or judgment. In fact, the judgment appealed in O'Rourke was the judgment rendered following the trial of the discharged attorney's intervention, and at issue on appeal was the proper method of calculating the fees to be allocated to an attorney discharged for just cause. Unlike the instant case, whether the discharged attorney had timely given the successor attorney notice of his intention to assert his rights under the contingency fee contract, and thus properly preserved his right to later do so, was not an issue that was presented or addressed by the court. Consequently, O'Rourke has no bearing on our decision in this case. Here, aside from the fact that whether Sileo was discharged by the Kruses with or without just cause has never been determined (and such a determination is not necessary to our ruling herein), we do not even reach the proper allocation of fees that may be due to Sileo under O'Rourke because we find that, by Sileo's failure to timely file a petition of intervention or otherwise notify Berger in some manner of its intent to assert its rights under the contingency fee agreement prior to the settlement of the Kruses' federal court action, it forfeited its right to do so thereafter.

Moreover, we find that Sileo's reliance on the Fourth Circuit's decision in Murray, Murray, Ellis, Braden & Landry v. Minge , supra , to support his claim against Berger is misplaced. In Minge , the Fourth Circuit reversed the trial court's grant of exceptions to the plaintiff's claim for apportionment of fees between the firm and the client's successor attorney. Minge , 516 So.2d at 216. In doing so, the court made a specific finding that the discharged attorney had, on several occasions, informed the successor attorney of his intent to assert his rights under the contingency fee contract. Moreover, and significantly, the successor attorney "acknowledged the [contingency fee] contract and the fact that [the discharged attorney] would be entitled to a portion of the attorney fees." Id. Thus, though the discharged attorney in Minge had not complied with La. R.S. 37:218 or timely filed a petition of intervention prior to settlement, the court found, and the successor attorney acknowledged, that the discharged attorney had provided sufficient notice of his intent to assert his rights under the contingency fee contract, and, thus, was allowed to pursue them in a subsequent suit against the successor attorney. Conversely, in the instant case, there is nothing in the record before us to support a finding that Sileo informed Berger of its intent or took any action to assert its rights to attorney fees and expenses under the contingency fee contract prior to settlement of the Kruses' suit in the Mesh MDL litigation.

Accordingly, for the forgoing reasons, based upon the specific facts of this case, due to Sileo's own dilatory actions or inaction, we hold that the trial court properly sustained the defendants' exception of no right of action, dismissing Sileo's action against both the Kruses and Berger, with prejudice.

AFFIRMED.

      In Re: American Medical Systems, Inc. v. Pelvic Repair Systems Products Liability Litigation , USDC, Southern District West Virginia (Charleston), Case No.: 2-12-cv-02274, MDL No.: 2325, is the Kruses' individual case pending in the MDL.

      Defendant, Mark Kruse, did not sign the contingency fee agreement, nor does his name appear in the agreement.

      La. R.S. 37:218 provides:
      A. By written contract signed by his client, an attorney at law may acquire as his fee an interest in the subject matter of a suit, proposed suit, or claim in the assertion, prosecution, or defense of which he is employed, whether the claim or suit be for money or for property. Such interest shall be a special privilege to take rank as a first privilege thereon, superior to all other privileges and security interests under Chapter 9 of the Louisiana Commercial laws. In such contract, it may be stipulated that neither the attorney nor the client may, without the written consent of the other, settle, compromise, release, discontinue, or otherwise dispose of the suit or claim. Either party to the contract may, at any time, file and record it with the clerk of court in the parish in which the suit is pending or is to be brought or with the clerk of court in the parish of the client's domicile. After such filing, any settlement, compromise, discontinuance, or other deposition made of the suit or claim by either the attorney or the client, without the written consent of the other, is null and void and the suit or claim shall be proceeded with as if no such settlement, compromise, discontinuance, or other disposition has been made.
      B. The term "fee", as used in this Section, means the agreed upon fee, whether fixed or contingent, and any and all other amounts advanced by the attorney to or on behalf of the client, as permitted by the Rules of Professional Conduct of the Louisiana State Bar Association.

      The inactive docket order "DIRECT[ed] the Clerk to file a copy of this order in MDL 2325 and in the individual cases" and "to send a copy of this Order to counsel of record and any unrepresented party."

      The court's order further provided that the parties had until April 30, 2016 to submit an agreed order of dismissal with prejudice.

      According to Sileo's petition of intervention, it "performed a substantial amount of legal work, including but not limited to significant legal research, discovery, participation in depositions, telephone conferences with all parties to the MDL, and extensive verbal and written correspondence with all counsel in [the] litigation."

      Again, because Sileo's petition of intervention was never actually filed, or received, into the record of the Mesh MDL litigation, arguably Sileo's loss of any property right, contractual right, and/or privilege for fees and costs was a result of its own failure to timely act.

      The statement of expenses evidences a September 11, 2015 courier charge of $96.00 incurred by Sileo. Because Sileo's representation of the Kruses ceased seven months prior on February 9, 2015, this expense is unrelated to his representation of the Kruses.

      Contrary to Sileo's allegations herein that the petition of intervention it attempted to file was "still pending" when the parties presented the joint motion to dismiss with prejudice for signature attesting that all claims had been fully compromised, if the petition of intervention was never actually filed, it follows that at no time was the petition of intervention ever "pending."

      Specifically, the February 9, 2017 judgment indicated that the exceptions were "granted," but the specific relief granted could not be determined from the judgment as rendered.

      Out of an abundance of caution, Sileo filed a separate appeal of the trial court's September 20, 2017 judgment, as amended. Because a single amended judgment forms the basis of both appeals, the two appeals have been consolidated.

      Based on evidence in the record, the federal court judge found that the plaintiff had been fired by his former client for "malfeasance and/or nonfeasance" because the plaintiff had failed to "oppose one motion that was subsequently granted as unopposed and he [had] filed such garbled pleadings that the Court dismissed his state law claims." Accordingly, this Court found that the trial court correctly determined that the plaintiff had been discharged by his former client in the federal court litigation for just cause.

      In O'Rourke , a case involving a claim for attorney fees and cost asserted via intervention in the main demand by the attorney discharged by his former client with cause against the successor attorney, the Supreme Court held that in cases of discharge with cause of an attorney retained on contingency, the trial court should determine the amount of the fee according to the rule set forth in Saucier v. Hayes Dairy Products, Inc., 373 So.2d 102 (La. 1978), i.e. , that a claimant should be exposed to no more than one contingency fee. Accordingly, in allocating attorney fees in both with and without cause situations, the trial court is to calculate the highest ethical contingency to which the client contractually agreed in any of the contingency fee contracts executed. O'Rourke , 95-3054, pp. 21-22, 683 So.2d at 704. The trial court should then allocate the fee between or among discharged and successor counsel based upon the Saucier factors, i.e. , the factors set forth in Rule 1.5 of the Code of Professional Responsibility. Id. Thereafter, the trial court should consider the nature and gravity of the cause which contributed to the dismissal and reduce by a percentage amount the portion discharged counsel otherwise would receive after the Saucier allocation. Id.

      At issue in Rush was whether a discharged attorney has a right of action to recover against his/her client under a non-recorded contingency fee contract, after settlement was subsequently obtained by a successor attorney. Citing La. C.C. arts. 1948, 1949 and 1968, the Third Circuit determined that the contingency fee contract was governed by the laws of obligation and, as such, could not be rendered unenforceable absent a vice of consent, an error of cause, or a public policy violation. Rejecting this Court's ruling in Ferguson , supra , and the Fourth Circuit's holding in Murray, Murray, Ellis, Braden & Landry v. Minge , 516 So.2d 213 (La. App. 4 Cir. 1987), writ denied , 516 So.2d 369 (La. 1988), the Third Circuit refused to interpret La. R.S. 37:218 to mean that a discharged attorney's failure to record the contingency fee agreement resulted in a forfeiture of the attorney's right to recover from the former client on the basis that to do so would conflict with the rules of statutory interpretation and permit unjust enrichment.

      See Reis v. Fenasci & Smith, supra , decided by the Fourth Circuit subsequent to Minge , wherein the court held that, under the facts presented, the discharged attorney failed to state a cause of action in a suit against his former client's successor attorney to assert his rights under a contingency fee contract because he failed to establish that he had given the requisite "Murray notice" to the successor attorney prior to settlement of his former client's case. Reis , 93-1785, p. 7, 635 So.2d at 1322.