author: Judge Edwin A. Lombard

text:
    429 BOURBON STREET, LLC v. RMDR INVESTMENTS, INC. 429 Bourbon Street, LLC v. RMDR Investments, Inc.
    NO. 2016-CA-0800, NO. 2017-C-0845
    Court of Appeal of Louisiana, Fourth Circuit.
    11/15/2017
    Rehearing Denied November 17, 2017

      James M. Garner, Ryan 0. Luminais, Jennifer H. Mabry, Brandon W. Keay, SHER GARNER CAHILL RICHTER KLEIN & HILBERT, L.L.C, 909 Poydras Street, Suite 2800, New Orleans, LA 70112, COUNSEL FOR PLAINTIFF/AP-PELLEE
    Robert G. Harvey, Sr., LAW OFFICE OF ROBERT G. HARVEY, SR., APLC, 600 North Carrollton Avenue, New Orleans, LA 70119, Donald C. Douglas, Jr., THE DOUGLAS LAW FIRM, LLC, 1070 West Causeway Approach, Suite B, Mandeville, LA 70471, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Judge Edwin A. Lombard, Judge Rosemary Ledet, Judge Paula A. Brown)
   Judge Edwin A. Lombard

hThe Appellant, RMDR Investments, Inc. (“RMDR”), seeks review of the district court’s May 31, 2016 judgment ordering its eviction from property owned by lessor 429 Bourbon St., LLC (“the Appel-lee”). The appeal has been consolidated with a supervisory writ application filed by RMDR, which seeks review of the denial of its Ex Parte Motion to Release Continuing Suspensive Appeal Bond. Finding that the judgment of the district court is not manifestly erroneous, we affirm. The exceptions of lack of justiciable controversy and no cause of action of RMDR are denied. The answer to appeal of the Appellee is denied. Lastly, the writ application of RMDR is also denied.

Facts:

In January 2006, RMDR began leasing commercial space at 429-433 Bourbon St. (“the Property”), in New Orleans, from the Appellee. RMDR, doing business as Babe’s Cabaret, operated a gentlemen’s club and bar at the leased location-for approximately a ten-year period.

The initial lease (“the Lease”) was executed by the parties in November 2005, and had a 60-month term commencing on January 1,2006. The Lease provided for a percentage-based rental payment obligating RMDR to pay the |gAppellee “a percentage rent of twenty (20%) percent of annual gross sales income, before any payments or adjustments of expenses of any kind, and such percentage of any and every sources of business at the premises, with a cap of $50,000 per month.” However, the Lease did not contain a definition of “annual gross sales income.” RMDR was also required to annually remit to the Ap-pellee 15% of its profits at the Property. Moreover, Chandru Motwani, the Appel-lee’s managing member, personally had a 15% ownership interest in RMDR. The' Lease further provided RMDR with three options to renew for an additional five-year period.

In 2009, RMDR’s ownership changed. That same year, the parties executed an amendment to the Lease (“Amended Lease”) imposing the following additional obligations upon RMDR to maintain and produce reports of its income and other financial records to the Appellee:

5.07 Maintenance of Books and Records. Throughout the term of this Lease, LESSEE shall maintain and preserve, for the longer of three (8) years or as required by federal and state tax authorities, after the dates of their preparation, full, complete and accurate books, records and accounts under and subject to generally-accepted accounting principles, including, but not limited to all income, of whatever source, generated by every source of business at the premises, LESSEE’S obligation to preserve such books, records and accounts shall survive the termination hereof. 5.08 Monthly Reports. LESSEE shall, at LESSEE’S expense, prepare and submit to LESSOR by the fifteenth (15th) day of each month (commencing March 15, 2009), a statement accurately reflecting for the immediately preceding month (or part thereof) all gross sales income, (including, but not limited to cover type charges, tip income), all expenses (including, but not limited to all alcohol and other inventory purchases, and payroll), and such other data or information as LESSOR may reasonably require.
5.09 Financial Statements. Within thirty (30) days following the end of each month during the term of this |3Agreement, LESSEE shall, at LES-' SEE’S expense, submit to LESSOR a balance sheet and an unaudited monthly profit and loss statement for every source of business at the premises. Each statement shall be signed by an authorized officer of LESSEE, attesting that it is true and correct. In addition, LESSEE shall, at LESSEE’S expense, submit to LESSOR, within ninety (90) days following LESSEE’S fiscal year end, a complete annual financial statement, prepared under and subject to generally accepted accounting principles by a certified public accountant reasonably satisfactory to LESSOR, showing the result of the operations of every source of business at the premises (“business”) during such fiscal year.
5.10 Additional Reports. LESSEE shall also submit to LESSOR, for review and audit, such other forms, périodic and other reports, records, information and data as LESSOR may reasonably designate, in the form and at the times and .places reasonably, required (from time to time) by LESSOR, upon request, including, but not limited, to sales tax statements and balance sheets. [Emphasis added.]

It is undisputed that RMDR tendered monthly rental payments to the Appellee throughout its tenancy. Nevertheless, in October, 2014, Mr. Motwani, acting on the Appellee’s behalf, sent correspondence to RMDR requesting monthly accounting reports required by the Lease from June 2009 through the date of the letter. RMDR, however, only submitted records for nine of the requested months. Moreover, after it delayed producing its books and records in New Orleans for the Appel-lee’s review, RMDR eventually produced some of the requested financials.

The Appellee later retained an independent accounting firm to examine RMDR’s books and records following another incomplete record submission by RMDR. Based upon the accounting firm’s report, prepared by Debbie Sawyer, CPA, the Ap-pellee concluded that' RMDR had underpaid its rent by $605,822,91 from January 2012 to December 2014. The $605,822.91 sum totaled $852,369.401 ¿with interest and penalties due under the Lease and/or Amended Lease. The Appellee placed RMDR in default and demanded the delinquent payments due be paid by June 10, 2015. It terminated the Lease the following month due to RMDR’s noncompliance.

The Appellee subsequently filed a petition for summary eviction, alleging that RMDR breached the Lease and Amended Lease. The Appellee alleged that RMDR breached the Lease or Amended Lease in the following three respects: 1) failed to pay the full rent required by the Lease; 2) failed to. provide complete financial' records; and 3) allowed unlawful activities to take place on the leased premises. Additionally, the Appellee asserted that RMDR’s attempt to exercise the second option to extend the Lease term was null and void.

During a four-day bench trial, the district court heard testimony from eight witnesses, including three experts: Charles Theriot, CPA, who testified for RMDR; Bert Verdigets, CPA, who testified on behalf of the Appellee; and Ms. Sawyer. The district court entered judgment on May 31, 2016, ordering the eviction of RMDR; RMDR was ordered to vacate the Property by June 6, 2016. The district court also issued Reasons for Judgment wherein it explained that RMDR breached the Lease and/or Amended Lease by: 1) failing to maintain and preserve full, complete and, accurate books, records and accounts for a three year period; 2) failing to have an authorized officer of RMDR sign the monthly balance sheet and profit and loss statements, attesting to their truth; 3) failing to produce complete Lannual financial statéments prepared by a CPA; and 4) failing to accurately report income and thus, not' paying the proper amount of monthly rent.

This timely appeal followed. RMDR presents the following three questions for review, which we understand to be- its assignments of error and will refer to them as such throughout this opinion:

1. The district court erred in ordering the eviction of RMDR when the Ap-pellee readily accepted the financial records of RMDR for many years, and there was no competent evidence [sic] and failed to show all of the records were inadequate;
2. The district court erred in ordering RMDR’s eviction, when the Appellee failed to prove that RMDR underpaid rent; and,
3. The district court erred in ordering RMDR’s eviction when the Court expressly found that the Appellee failed to prove that RMDR had any knowledge of alleged illegal activities on the-premises.

Standard of Review:

A trial court’s factual findings in an eviction matter are reviewed under the manifest error standard of review. Armstrong Airport Concessions v. K-Squared Rest., LLC, 15-0375, p. 9 (La. App. 4 Cir. 10/28/15), 178 So.3d 1094, 1100-01 [citations omitted]. “Under a proper manifest error review, the analysis by the reviewing court should focus on whether there was clear error for lack of a reasonable basis in the conclusions of the factfinder.” Hayes Fund for First United Methodist Church of Welsh, LLC v. Kerr-McGee Rocky Mountain, LLC, 14-2592, p. 67 (La. 12/8/15), 193 So.3d 1110, 1150. However, legal questions, such as contractual interpretations, are reviewed under a de novo standard of review. Armstrong Airport Concessions, 15-0375, p. 9, 178 So.3d at 1101 [citations omitted].

inadequacy of RMDR’s Financial Records

In its first assignment of error, RMDR argues that the Appellee failed to demonstrate the insufficiency of the financial records RMDR submitted such that there was a material breach of the Lease and/or Amended Lease. The evidence adduced at trial, it asserts, does not support the ■ Appellee’s claims for three reasons:

•. since 2009, RMDR provided monthly reports to the Appellee, which did not complain as to the insufficiency of those monthly reports until almost six [6] years later, in October of 2014. Moreover, the Appellee did not complain about the signing of those monthly reports by the company’s accountant rather than an RMDR ..... .officer until it filed its petition, for eviction;
• Mr. Motwani, on .the Appellee’s behalf, specifically told representatives for RMDR to stop sending the monthly financial records because it was costing him fees every time his attorney received and reviewed the financial records; and
• RMDR “fully and adequately” responded to all of the Appellee’s demand for records, including arranging, in December 2014, for its records to be shipped from New Jersey to New Orleans so that the Appellee, and Ms. Sawyer, could review the records they. had requested for the years, of 2012-2014, RMDR avers that it subsequently provided Ms. Sawyer with all of its records, including Z tapes, daily sheets, bank, statements, receipts, cash flow statements, general ledgers, for the requested years. Moreover, it answered two questionnaires drafted by Ms. Sawyer.

RMDR asserts that it substantially complied with the terms of the Lease and the Amended Lease. The Appellee failed to establish that RMDR’s financial records submissions. were inadequate; thus, according to RMDR, this claim cannot form a basis for eviction.

17Based upon our review of the testimony adduced at trial from Mr. Motwani and Ms. Sawyer, we find that RMDR’s arguments lack merit! First, Mr. Motwani testified that in 2009, attorneys representing the Appellee, requested that records be produced pursuant to the Lease via correspondence, He explained that he did not request records from RMDR from 2010 through October 2014 because of a family crisis. He testified that he was only receiving monthly income reports from RMDR, but he was not receiving a monthly statement signed by one of RMDR’s officers, attesting that the statement was true and correct, as required by the Lease and/or Amended Lease. Moreover, it is undisputed that the monthly income statements were being prepared George Carapella, who was not a CPA. Section 5.09 of the Amended Lease required that such statements be prepared by a CPA. The district court further noted that RMDR failed to comply with the Amended Lease when it did not produce monthly statements signed by an RMDR officer.

Additionally, Mr. Motwani admitted at trial that he asked RMDR to cease sending the requested statements to his former counsel and to remit the statements with the rent directly to him. Thus, he was not requesting that RMDR stop sending the statements' altogether.

Ms. Sawyer, who was accepted by the district court as an expert in accounting and auditing, testified as to the incompleteness of the records produced by RMDR. In her testimony, she explained that not all of the records that the Appel-lee requested were produced by RMDR. She explained that the general ledger was incomplete and that RMDR did not fully answer the questionnaire she composed in order to better understand how RMDR ran its business. Ms. Sawyer further opined that the irregularities she observed in RMDR’s records, including its general ledger, reflected a “systematic method that they [RMDR] have for not | «reporting all transactions and reporting complete and accurate records that’s [sic] required.”

A major issue at trial was how much revenue RMDR generated. RMDR asserted that the majority of credit card transactions that occurred at its establishment were from cash advances to customers, not sales that would count as revenue. However, Ms. Sawyer and Mr. Theriot both testified that RMDR only produced two months- of receipts from November and December 2014. Jack Teitelbaum, the manager of Babe’s Cabaret, testified that the other receipts had been destroyed to protect customers’ information. However, section 5.07 of the Amended Lease required that these receipts be kept for three years.

Considering the evidence and testimony adduced at trial, the district court had a reasonable basis to determine that RMDR breached the Lease and Amended Lease by submitting insufficient financial records to the Appellee.

Furthermore, RMDR argues that pursuant to Morris v. Friedman, 663 So.2d 19, 25 (La. 1995), and Versailles Arms Apartments v. Pete, 545 So.2d 1193 (La. App. 4th Cir. 1989), the Appellee is precluded from raising the issue of the insufficiency of the financial records under the doctrine of equitable estoppel. It maintains that the Appellee is estopped from claiming that the monthly reports provided by RMDR’s accountant from 2009 until 2014 did not fulfill the obligations stated in the Amended Lease because the Appellee did not complain as to the insufficiency of those monthly reports until almost six years later, in October of 2014. The Appel-lee’s silence, RMDR argues, now precludes it from asserting that the monthly reports were insufficient as RMDR justifiably relied for many years, in good faith, upon the Appellee’s acceptance of the reports. RMDR | flcontends that the Appellee should not be permitted to repudiate its longstanding conduct.

In Morris, the Louisiana Supreme Court defined equitable estoppel as:

‘the effect of the voluntary conduct of a party whereby he is precluded from asserting rights against another who has justifiably relied upon such’ conduct and changed his position so that he will suffer injury if the former is allowed to repudiate the conduct.’ John Bailey Contractor v. State, Dept. of Transp. & Dev., 439 So.2d 1055, 1059 (La.1983) (quoting American Bank and Trust Company v. Trinity Universal Insurance Company, 251 La. 445, 205 So.2d 35 (1967)). This Court has further held that the three elements required for application of equitable estoppel are: (1) a representation by conduct or work; (2) justifiable reliance thereon; and (3) a change of position to one’s detriment because of the reliance. Id. at 1059-60. However, a party having the means readily and conveniently available to determine the true facts, but who fails to do so, cannot claim estoppel. Id. at 1060. Further, estoppels are not favored in our law, and properly apply only as to representations of fact. State v. Mitchell, 337 So.2d 1186, 1188 (La.1976).

Morris, 94-2808, pp. 8-9, 663 So.2d at 25-26.

The facts presented in the instant matter do not satisfy all of the requirements for the application of this doctrine of last resort, under Louisiana law. Id. Specifically, RMDR cannot establish that it justifiably relied upon the Appellee’s conduct. As previously stated, Mr. Motwani testified that he requested records from RMDR prior to 2014. Also, RMDR’s alleged reliance was not justified, where pursuant to Section 16.1 of the Lease, the Appellee’s failure to insist upon-receiving the required documentation cannot be deemed a waiver:

LESSOR may-treat any Event of Default as a breach of this Lease. LESSOR’S failure to insist upon strict performance of any covenant, term or condition of this Lease or to exercise any right or remedy it has herein shall not be deemed a waiver or relinquishment for the future of the LESSOR’S right to insist upon LESSEE’S \ ^strict performance of such covenant, term or condition. [Emphasis added.]

As the First Circuit has explained, a lease contract is binding between the parties; and, as such, appellate courts are obligated to give legal effect to said contracts:

The lease contract is the law between the parties in defining their respective legal rights and obligations. Carriere v. Bank of Louisiana, 95-3058, p. 8 (La. 12/13/96), 702 So.2d 648, 666. We are obligated to give legal effect to contracts according to the true intent of the parties. La. C.C. art. 2045; Alco Collections, Inc. v. Poirier, 95-2582, p. 6 (La. App. 1 Cir. 9/27/96), 680 So.2d 735, 740, writ denied, 96-2628 (La. 12/13/96), 692 So.2d 1067. Further, each provision in an agreement must be interpreted in light of the other provisions so that each is given the meaning suggested by the agreement as a whole. La. C.C. art. 2050.

K & M Enterprises of Slaughter, Inc. v. Pennington, 99-0930, p. 3 (La. App. 1 Cir. 5/12/00), 764 So.2d 1089, 1091. When the “words of a- contract are clear, unambiguous, and lead to no absurd consequences, we may not look beyond the contract language to determine the true intent of the parties.” Rousset v. Smith, 14-1409, p. 6 (La. App. 4 Cir. 9/23/15), 176 So.3d 632, 637 (subsequent history omitted).

RMDR failed to comply with' the terms of the Lease and/or Amended Lease, which terms further preclude it from asserting that the Appellee waived its rights to receive and-review the required records with the passage of time; This assignment of error is without merit.

Underpayment of Rent

RMDR asserts that the Appellee did not prove that RMDR underpaid rent in the amount of $605,822.91, as opined by Ms. Sawyer; therefore, it contends that it should not have been evicted. It contends that Ms. Sawyer’s opinion that RMDR Inunderpaid rent is based upon her belief that all credit card transactions were sales. The crux of RMDR’s argument is that it made cash advances, which are not sales; however, Ms. Sawyer erroneously included the cash advances in calculating RMDR’s sales. RMDR maintains that from 2012-2014, more than half of its $3,153,618 total credit card transactions were cash advances. According to RMDR, the true amount of RMDR’s underpayment of rent, $21,261.60, was discovered by Mr. Theriot during his review of financial records; and RMDR immediately issued a check in that amount, plus interest and penalties to the Appellee.

RMDR maintains that there was overwhelming evidence at trial presented as to the existence of cash advances given to customers via financial records and the testimony of three witnesses: Mr. Teitel-baum, Mr. Theriot, and Charles Bass, who is one of RMDR’s owners and the President of RMDR.

.RMDR contends that the evidence at trial revealed that it had three revenue sources from 2012-2014: (1) bar sales; (2) occasional cover charges; and (3) usage, or rental fees from the entertainers in the dance areas. Its primary revenue source was from beverage sales. RMDR further explains that the entertainers performing at . the gentlemen’s club are independent contractors, who are not compensated by RMDR; rather they pay . RMDR a usage fee, or “rental,” for use of the dance area.

Mr. Teitelbaum, the manager for Babe’s Cabaret, testified as to how the entertainers are paid. He explained that the entertainers are paid solely in cash by customers, who often have insufficient amounts of cash to pay the entertainers. He related that this issue is typical of what all Bourbon Street gentlemen’s clubs [ ^experience. Therefore, since 2009, RMDR has allowed customers to obtain cash advances on their credit cards. Mr. Bass testified that this practice is customary in gentlemen’s clubs because it is a cash business.

Mr. Teitelbaum further related that for cash advances, the customer’s credit card and identification are copied and the transaction is ‘ run. If the credit card is not declined, the card and identification are taken to the manager, who makes further verifications prior to removing the money and handing it to an employee to deliver to the customer. He testified that this transaction is not' á sale as there is no guarantee how or where the customer will spend the money.

Additionally, Mr. Teitelbaum explained that the cash advances can be traced by a review of the financial records, by identifying the terminal the transaction originated from and by visual inspection of the register tape, which has a different font and title line that distinguishes it from a.bar sale receipt. He testified that cash advances are given at a credit card terminal that is located in the dance area, an area from which no bar sales can be conducted. He further testified that, unlike bar receipts, a cash advance receipt also includes a large, round number, without an order number, tip or sales tax included. He maintains that the existence of cash advances can also be traced through the financial records, such as Z tapes, daily-reports, EVO statements and Slim CD records. Mr. Teitelbaum, testified that a Babe’s Cabaret manager does obtain a copy of the credit card and a photo identification from every customer requesting a cash advance, but the records are destroyed, after six months to protect the customer’s personal information.

11sBy tracing the credit card transactions through the daily financial records of Babe’s Cabaret, RMDR asserts that Mr. Theriot was able to differentiate the credit card charges that were cash advances from those that were sales. Every item on the EVO statement, it avers, was accounted for as either coming through Slim CD or otherwise, and secondly, as coming directly from the credit card charges that were represented to be cash exchanges.

RMDR maintains that Ms. Sawyer “simply based her assumptions on the flawed premise that RMDR did not make cash advances,” although she recognized that RMDR’s business is cash-driven and that the entertainers are paid in cash by customers. It further maintains that Mr, Ver-digets did not review Ms. Sawyer’s methodology and did not opine as to whéther she or Mr. Theriot was correct. RMDR contends that the Appellee offered no testimony at trial refuting RMDR’s position that cash advances have .occurred since 2009 on the premises, nor did they consult with others in the gentlemen’s club industry to determine whether cash advances are customary and whether a cash advance is considered a “sale.”

The district court explained in its Reasons for' Judgment that RMDR’s failure to maintain and produce its records influenced the district court’s determination that RMDR also underreported its income:

Even if RMDR, as a gentlemen’s club, does make cash advances to customers; [sic] RMDR’s failure to maintain and preserve full, complete and accurate books, records and accounts, for a three year period, including preserving the only source record evidencing “cash advances, i.e., the credit card receipts; its failure to have an authorized .officer of RMDR sign the monthly balance sheet and profit and loss statements, attesting to- their truth; its failure to produce complete annual financial statements prepared by a CPA, makes it virtually impossible to determine how much in cash advances |URMDR would have made during that three year period; The Court .finds that RMDR’s failure to maintain and preserve accurate books and records, including receipts, and failure to produce other financial records required by the lease were material breaches of the lease by RMDR.
The Court further finds that plaintiff has met its burden of establishing, from all of the evidence submitted, that RMDR breached the lease by not accurately reporting income and thus, not paying the proper amount of rent each month. What the proper amount of rent for each month was, had to be determined from RMDR’s books and records; and RMDR failed to maintain, preserve, and produce complete and accurate books and records. The evidence does not support RMDR’s. argument that it processed as much or more money in cash advances than sales. Additionally, despite the large amount of cash that RMDR alleges it advanced to customers from 2012-2014, RMDR asserts that it made no profit from 2012-2013, and thus did not owe Mr. Motwani any percentage of profits for that period. The Court does not find that RMDR was in good faith in their actions.

At trial, Ms. Sawyer testified that in reviewing RMDR’s records, she principally relied upon EVO statements that were from a third-party and reflected all credit card sales, as well as Z tapes that were being recorded, and daily sales sheets. She explained that she discovered large discrepancies between the Z tapes, which are sales that are being run through RMDR’s point-of-sale system, and the EVO statements. She explained that the Z tapes are an internal RMDR record as opposed to the EVO statements, which are produced from a credit-card processing company. The issue Ms. Sawyer .discovered was that the Z tapes “were only capturing about 15 percent of the credit card sales we saw on the EVO statements.” She also noted that both Mr. Bass and Mr. Theriot attested to the unreliability of the Z tapes, which she viewed as a red flag.

Ms. Sawyer elaborated that she relied on EVO statements over the Z tapes because the EVO statements are a third-party document generated by an outside [^source for a fee. She explained that its reliability as an outside source is akin to a bank statement. She further explained that she conducted a review of the EVO transactions to determine if any were cash advances, but the records indicated that there were no cash advances, only sales.

Ms. Sawyer’s testimony conflicted with that of Mr. Theriot, who testified that he was able to determine that cash advances were made based on the records produced by RMDR and his conversations with Mr. Bass and Mr. .Teitelbaum. He further testified that RMDR advanced over $1.77 million in cash to its customers from 2012 to 2014. Nevertheless, RMDR contends that it made no profit in 2012 and 2018.

The district court had the discretion to determine upon which expert’s testimony-it would rely. “[WJhere there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.” Pelleteri v. Caspian Grp. Inc., 02-2141, p. 6 (La. App. 4 Cir. 7/2/03), 851 So.2d 1230, 1234-35 (citing Rosell v. ESCO, 549 So.2d 840, 844 (La.1989)). “When evaluating expert opinions, the fact finder has broad discretion in determining the effect and weight to be given expert testimony. The fact finder can either accept or reject any or all of an opinion expressed by an expert.” Cooper v. Bouchard Transp., 12-0868, p. 6 (La. App. 4 Cir. 3/27/13), 140 So.3d 1, 7 (citations omitted). Additionally, “[i]t is within the trial court’s discretion to substitute common sense and judgment when such a substitution appears warranted upon the record as a whole.” McKenzie v. Cuccia, 04-0112, p. 6 (La. App. 4 Cir. 6/23/04), 879 So.2d 335, 339 (citation omitted).

11fiMoreover, as previously stated, RMDR’s destruction of receipts and other documents associated with the cash ad-vanees, led the district court to conclude that there was no evidence that any cash advances had occurred. Both Mr. Theriot and Ms. Sawyer testified that none of the receipts produced reflected that there were cash advances and all of the produced receipts stated “sale.”

Louisiana Civ. Code art. 2704 provides that “[i]f the lessee fails to pay the rent when due, the lessor may, in accordance with the provisions of the Title ‘Conventional Obligations or Contracts’, dissolve the lease and may regain possession in the manner provided by law.” Additionally, “[w]hen a party to the lease fails to perform his obligations under the lease or under this Title, the other party may obtain dissolution of the lease pursuant to the provisions of the Title of “Conventional Obligations or Contracts.” La, Civ. Code art. 2719. In light of the testimony discussed earlier in this opinion and the district court’s thorough Reasons for Judgment, we find that the district court did not err in concluding that RMDR breached the Lease and Amended Lease by underpaying its rent and, therefore, ordering its eviction from the Property. This assignment of error is without merit.

Illegal Activities Allegations

|17We pretermit discussion of RMDR’s final assignment of error—that the district court erred in ordering its eviction despite the Appellant’s failure to prove RMDR had any knowledge of alleged illegal activities on the premises. Addressing this assignment of error would not alter our finding that the district court did not err in determining that RMDR breached the Lease and Amended Lease in several manners. Consequently, we pretermit discussion of this assignment of error.

Doctrine of Judicial Control

RMDR asserts that this Court should invoke the doctrine of judicial control of leases and reverse the district court’s order of eviction. The doctrine of judicial control is an equitable doctrine by which , the courts will deny cancellation of the lease when the lessee’s breach is of minor importance, is caused by no fault of his own, or is based on a good faith mistake of fact. Carriere v. Bank of La., 95-3058 (La. 12/13/96), 702 So.2d 648. The Second Circuit has further explained that “Louisiana courts are vested with discretion under certain circumstances to decline to grant a lessor cancellation of a lease although such right appears to be otherwise available to him.” KM, Inc. v. Weil Cleaners, Inc., 50,209, pp. 9-10 (La. App. 2 Cir. 1/13/16), 185 So.3d 112, 118 [citations omitted]. The court further expounded that “[c]ases which have applied judicial control of leases generally involve circumstances where a lessee had made a good faith error and acted reasonably to correct it.” Id. (citing Ergon, Inc. v. Allen, 593 So.2d 438 (La. App. 2d Cir. 1992)).

RMDR avers that the evidence and testimony at trial showed that it complied with the terms of the Lease and the Amended Lease and that RMDR should not be evicted. It further maintains that even if there was a breach, the hsAppellee’s interest was not substantially impaired, and RMDR at all times operated in good faith. Nevertheless, based upon the testimony adduced at trial as to RMDR’s poor financial record keeping, consistent underpayment of rent and lack of compliance with submitting the required records to the Lessee, we do. not find that RMDR acted in good faith. Moreover, its breaches were not of minor importance as the cumulative effect of the breaches interfered with its payment of the accurate rental amount due to the Appellee for the duration of its tenancy and the breaches were caused by RMDR’s own failures. Thus, we decline to apply this doctrine.

Peremptory Exceptions

Pursuant to La. Code Civ. Proc. art. 2163, RMDR filed peremptory exceptions of lack of justiciable controversy and no cause of action on appeal, asserting that as a result of the June 1, 2016 judgment of the district court, granting RMDR’s motion for suspensive appeal and requiring RMDR to deposit monthly rental payments of $25,000 into the registry of the court, any alleged default under the Lease was essentially cured by its payment of rent pursuant to the order. Thus, according to RMDR, the payment of rent made the Appellee’s original claims moot and there is no longer a justiciable controversy. Alternatively, it avers that the Appellee no longer has a cause of action because the rental payments were being made.

ImHowever, we note that there is no indication in the record that the Appellee accepted and/or received the monies RMDR deposited into the registry of the court prior to this Court dismissing RMDR’s suspensive appeal. Additionally,the Louisiana Supreme Court has explained that an exception of no cause of action is limited to a review of the petition:

The purpose of the peremptory exception of no cause of action is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the petition. Ramey [v. DeCaire, 03-1299, p.], at 7 [ (La.3/19/04) ], 869 So.2d [114] at 118; Everything on Wheels Subaru, Inc. [v. Subaru South, Inc.], 616 So.2d [1234] at 1235 [ (La.1993) ] . No evidence may be introduced to support or controvert the exception of no cause of action. LSA-C.O.P. art. 931. The exception is triable on the face of the pleadings, and, for purposes of resolving the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true. Fink v. Bryant, 01-0987, p. 4 (La.11/28/01), 801 So.2d 346, 349; City of New Orleans v. Board of Commissioners of Orleans Levee District, 93-0690, p. 28 (La.7/5/94), 640 So.2d 237, 253. The issue at the trial of the exception is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought. Ramey, at 7, 869 So.2d at 118.

Scheffler v. Adams & Reese, LLP, 06-1774, pp. 4-5 (La. 2/22/07), 950 So.2d 641, 646.

Considering that RMDR’s exception !of no cause of action is not based upon a defect in the Appellee’s petition and that there is ho proof that any monies deposited in the registry of the district court were received by the Appellee, we deny RDMR’s exceptions of no cause of action and lack of justiciable controversy.

Answer to Appeal

In' its Answer to Appeal, the Appellee asserts that RMDR allowed and/or permitted unlawful activity to take place at the leased premises. RMDR, the Appellee avers, violated various lease provisions requiring it to comply with laws and ordinances. Thus, the Appellee asserts that the district court erred in failing to | anfind that RMDR should have also been evicted for this violation. The Appellee- asserts that the district court erred by: 1) not finding that RMDR violated the Lease by allowing violations of law to occur at and through its business at the leased premises; and 2) not ordering the , eviction of RMDR due to its violation of the Lease for allowing violations of law to occur at and through its business at the leased premises.

In the matter sub judice, the district court rendered a judgment and Reasons for Judgment. The judgment at issue states in pertinent part:

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of 429 Bourbon Street, LLC and against RMDR Investments, Inc., and therefore:
IT IS FURTHER ORDERED, ADJUDGED AND DECREED 'that RMDR Investments, Inc., be, and the same is hereby evicted from the leased premises located at 429-433 Bourbon Street, New Orleans, Louisiana, 70130, and shall vacate and deliver possession of the said leased premises to plaintiff, no later than Monday, June 6, 2016 at 5:00 p.m.

The judgment at issue grants the Appellee the relief requested, notwithstanding that in. the district court’s Reasons for Judgment it explained that it did not find a basis for evicting RMDR based on alleged illegal activities. A judgment and reasons for judgment are two separate and distinct documents. La. Code Civ. Proc, art. 1918. Appeals are taken from the judgment, not the written reasons for judgment. See La. Code- Civ. -P. arts. 2082, 2083 [other citations omitted]. See Greater New Orleans Expressway Comm’n v. Olivier, 02-2795, p. 4 (La. 11/18/03), 860 So.2d 22, 24. Moreover, even if a trial court’s reasons for |¾1 judgement “are flawed, but'the judgment is' correct, the judgment controls.” Dufresne v. Dufresne, 10-963, p. 6 (La. App. 5 Cir. 5/10/11), 65 So.3d 749, 754 (citing Premier Games, Inc. v. State, Dept. of Public Safety and Corrections, Video Gaming Division, 99-0624, p. 5, n. 4 (La. App. 1 Cir. 5/12/00), 761 So.2d 707, 711, n. 4 (citations omitted). Accord: Smith v. Smith, 08-575, p. 14 (La. App. 5 Cir. 1/12/10), 31 So.3d 453, 462). Considering that this Court has álready determined that the judgment-is not manifestly erroneous or clearly .wrong, we pre-termit discussion of this assignment of error.

Denial of Ex Parte Motion to Release Continuing Suspensive Appeal Bond-Writ Application

In writ application number 2017-C-0845, RMDR seeks review of the October 6, 2017 judgment of the district court denying its “Ex Parte Motion to Release Continuing Suspensive Appeal Bond.”-

RMDR filed a motion for suspensive appeal in . the district court seeking this Court’s review of a judgment of, eviction in favor of the Appellee/Respondent. In the district court’s order of June 1, 2016, granting RMDR’s motion, the district court ordered that RMDR furnish security in the amount of $300,000 as well as ordering that RMDR deposit all future monthly-rental payments, in the. amount of $25,000 per month, into the registry of the Court “on or before the fifth day of each month” during the pendency of the suspensive appeal.

Subsequently, however, the Appel-lee/Respondent filed a motion to dismiss RMDR’s appeal. On October 3, 2016, this Court dismissed RMDR’s suspensive appeal; however, this Court found that RMDR timely perfected a devolutive appeal, and thus, maintained the appeal as a devolutive one. RMDR thereafter filed an “Ex Parte Motion to Release Appeal Bond” wherein it moved the Court to laarelease the $300,000 cash bond that it posted. The motion was granted by the district court on October 24, 2016.

On appeal, RMDR filed peremptory exceptions of lack of justiciable controversy and no cause of action, arguing that as a result of the district court’s June 1, 2016 judgment, ordering it to make the $25,000 monthly deposits in the registry of the Court, any alleged default under the Lease was cured. As previously discussed herein, this Court denies both exceptions.

Following oral argument of the underlying appeal, RMDR filed its Ex Parte Motion to Release Continuing Suspensive Appeal Bond. RMDR contends that if the monies remaining in the remaining the registry of the district court are indeed bond payments, then the remaining sum is returnable to RMDR. We do not find that the district court erred in determining that the sum remaining in the registry of the court served as a rental payment and was a part of the suspensive appeal bond.

In eviction matters, the district court has the discretion to set the amount of the suspensive appeal bond “in an amount sufficient to protect the appellee against all such damage as he may sustain as a result of the appeal.” La. Code Civ. Proc. art. 4735. Furthermore, in Lakewind E. Apartments v. Poree’, 629 So.2d 422, 423-24 (La. 4th Cir. 1993), we explained that a trial court generally must choose between two options when setting a suspensive appeal bond in eviction matters:

In order to set a suspensive appeal bond sufficient to protect the appellee in this type of case, the trial court has two choices. One alternative would be to attempt to estimate the amount of time the case might be on appeal, then multiply that number of months times the rental price. The other alternative would be to do exactly what the trial judge did in this case and require the appellant to post the rental amounts as the rent becomes due. Under the circumstances, we believe that the trial court’s |Msolution was the most reasonable since it protects the interests of both parties. Thus, we hold that the requirement that the appellant post the monthly rental at the first of each month is a valid portion of the requirement that the appellant post a Suspensive appeal bond.

The Lakemnd holding illustrates that where a district court orders an appellant taking a suspensive appeal from an order of eviction to deposit monthly rent into the registry of the court as it becomes due, the rental deposits form a part of the suspensive appeal bond.

Under the facts presented, we find that it would be untenable to return rental payments made as a part of the suspensive appeal bond to RMDR, which used the property for several months and, thus, precluded the Appellee/Respondent from using its property to generate income. Finding that the district court’s judgment is consistent with Lakemnd and that there is no abuse of discretion/manifest error, we deny the writ application of RMDR.

DECREE

For the foregoing reasons, the May 31, 2016 judgment of the district court is affirmed. The exceptions of lack of justicia-ble controversy and no cause of action of RMDR Investments, Inc. are denied. The Answer to Appeal of 429 Bourbon | MSt., LLC. is denied. Lastly, the writ application of RMDR Investments, Inc. is denied.

AFFIRMED; EXCEPTIONS OF LACK OF JUSTICIABLE CONTROVERSY AND NO CAUSE OF ACTION DENIED; ANSWER TO APPEAL DENIED; WRIT DENIED

      . RMDR exercised one option to renew the Lease on January 1, 2011. The Appellee contested RMDR’s attempt to exercise the second option due to RMDR’s alleged breaches of the Lease and Amended Lease. The district court explained in its Reasons for Judgment that because RMDR was in default under the Lease prior to attempting to exercise the second option, it was precluded from exercising the second option.

      . RMDR filed a motion for suspensive appeal, which was granted by the district court. Subsequently, this Court dismissed RMDR’s sus- ■ pensive appeal; however, this Court found that RMDR timely perfected a devolutive appeal, and thus, maintained the appeal as a devolutive one, by an order dated October 3, 2016.

      . RMDR admits that due to a sales tax error it underpaid rent to the Appellee from 2012-2014. It maintains that it paid the Appellee a total of $29,585.45, including interest and penalties.

      . Mr. Teitelbaum provided the following definitions of the financial records: the "daily report” is a report of the cash sales and the credit sales, including bar sales, cover charges, if any, and dance floor usage, or rental fees, but does not list cash advances; "Z tapes” and "Slim CD” records only report bar sales from the terminal located in the bar 'area; thus, they do not include cash advances; and "EVO statements" include all of the credit card transactions, both bar sales and cash advances,

      . The district court noted in its Reasons for Judgment that on the third day of trial, RMDR attempted to introduce into evidence copies of credit cards and photo identifications made in 2014 from customers allegedly requesting cash advances. Excluding the documents and granting the Appellee's motion for adverse presumption, the district court reasoned that RMDR was engaging in trial by ambush and failed to timely produce the requested documents during discovery.

      , “The appellate court may consider the peremptory exception filed for the first time in that court, if pleaded prior to a submission of the case for a decision, and if proof of the ground of the exception appears of record.’’ La. Code Civ. Proc. art. 2163.

      , The June 1, 2016 order grantingithe Appel-lee's suspensive appeal, in addition to setting forth a $300,000 appeal bond, stated “all future payments of the monthly rent due in the amount of $23,000 pursuant to the Lease be paid into the registry of the Court on or before the fifth day of each month while this suspensive appeal is pending.”

      . An "[alppeal is the exercise of the right of a party to have a judgment of a trial court revised, modified, set aside, or reversed by an appellate court.'’ La. Code Civ. Proc. art. 2082. "A final judgment is appealable, in all causes in which appeals are given by law, whether rendered after hearing, by default, or by reformation under Article 1814.” La. Code Civ. Proc. art. 2083(A).

      , The Lakewind court further explained on rehearing:
      ... as noted in our previous opinion, the requirement that the appellant deposit the rental monies into the registry of the court as each month’s rent becomes due is a special type of “continuing” suspensive appeal bond. This continuing obligation is the only reasonable solution for protecting the interests of both parties to an eviction case, while at the same time assuring that the requirements of La.C.C.P. art. 4735 that the appeal bond be “sufficient to protect the appellee against all such damage as he may sustain as a result of the appeal” are satisfied. Thus, the requirement is perfectly reasonable and logical. Id. at 424.


source: Caselaw Access Project

author: CHEHARDY, C.J.'

license: Public Domain

text:
    Eduardo SANCHEZ v. AIG INSURANCE & MEMCO, Inc.
    NO. 17-CA-116
    Court of Appeal of Louisiana, Fifth Circuit.
    October 25, 2017

      PLAINTIFF/APPELLANT, EDUARDO SANCHEZ, In Proper Person
    COUNSEL FOR DEFENDANT/AP-PELLEE, AIG INSURANCE & MEM-CO, INC., Elizabeth Lynn Finch, Metairie
    Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Stephen J. Windhorst
   CHEHARDY, C.J.'

|TOn appeal,- this pro se workers’ compensation claimant seeks review of the judgment denying indemnity and additional medical benefits. For the following reasons, we affirm.

Facts and Procedural History

On August 17, 2013, claimant, Eduardo Sanchez, an ironworker for his employer, MEMCO, Inc., slipped from a metal beam while he was working. Mr. Sanchez did not strike the beam and was immediately caught by his safety harness, which held him until his co-workers could lower him to the ground. After he was safely on the ground, Mr. Sanchez was examined by medical personnel at the worksite and sent home to rest.

The next day, Mr. Sanchez reported to work and complained of a headache and pain in his right lower back, his middle back, his “uppier neck,” and his right testicle, Mr. Sanchez was sent home and, the next day,- Mr. Sanchez’s supervisor at MEMCO sent him to Dr. David Reiss at Elmwood Industrial Medicine Center. On August 19, 2013, Mr. Sanchez’s chief complaint was “pain located in the lower back and neck.” Dr. Reiss noted that, upon physical examination, Mr. Sanchez had no bruising, spasm, or tenderness present in his lumbar spine and exhibited normal range of motion and normal sensation. Further, Dr. Reiss found, upon examination of his cervical spine, Mr. Sanchez had normal range of motion and no bruising present but did present tenderness in the “midline of the lower cervical spine.” X-rays of the, cervical and lumbar.spine were normal.-Dr. Reiss diagnosed Mr. Sanchez with a cervical strain and a lumbar strain and released Mr. Sanchez to return to work “as tolerated.”

On August 21, 2013⅝ Mr. Sanchez presented to the Emergency Department at Tulane-Lakeside Hospital in Metairie with complaints of chest pain, testicular pain, and lumbar pain. After reviewing x-rays of his chest and lower back and | ¿performing a physical examination, the Emergency Room physician, Mary Martin, M.D., diagnosed him with lumbosacral strain;. chest wall contusion; and a scrotal contusion. Dr. Martin prescribed Percocet and Flex-eril to Mr. Sanchez. That, day, another physician ordered a CT; scan of Mr. Sanchez’s chest to .further examine the contusion, which revealed no abnormality.

On August 22, 2013,. Mr. Sanchez returned to Dr. Reiss for a follow-up. That day, Mr. Sanchez indicated that .he had pain in his lower back but his neck was “okay.” Dr. Reiss noted that, upon physical examination, Mr. Sanchez had no bruising or spasm in his lumbar spine and exhibited normal movement of his lower back and normal sensation. Dr. Reiss diagnosed Mr. •Sanchez with a lumbar strain and found his cervical strain to be resolved. Dr. Reiss released Mr, Sanchez-to return to work on restricted duty “as tolerated.”

On September 3, 2013, Mr. Sanchez returned for his second follow-up with Dr. Reiss. He reported that he “feels good” and “is free from pain.” Dr. Reiss noted that, upon physical examination, Mr, Sanchez had no spasm or tenderness present in his lumbar spine and exhibited normal range of motion and normal sensation. Dr. Reiss found that the “clinical examination indicates that he has recovered” and diagnosed Mr, Sanchez with cervical strain, resolved, and a lumbar strain, resolved. Dr. Reiss released Mr. Sanchez to return to work, “full duty,” and discharged him from the clinic. At that point, Mr. Sanchez returned to .work, full duty.

On September 30, 2013, Mr. Sanchez returned to Dr. Reiss to report that he “hurts again” in the upper left lumbal’ region. Upon examination, Mr. Sanchez showed pain in his thoracic spine and tenderness • in the “left rhomboid' area.” Although lumbar and thoracic- x-rays were normal, Dr. Reiss diagnosed Mr, |aSanchez with thoracic strain and lumbar strain and released Mr. Sanchez to work “as tolerated.” Lastly, Dr. Reiss referred Mr. Sanchez to an orthopedist, Dr. Melvin Parnell.

On October 9, 2013, Mr. Sanchez presented ;to Dr. Parnell with complaints of pain in both sides of his back and waist. Dr. Parnell found that Mr. Sanchez had limited range of motion and discomfort in his thoracic, spine and lumbar spine-but “no significant abnormality present on physical examination to ■ indicate he sustained any major injury to these regions,” Dr. Parnell diagnosed Mr. Sanchez with a continuing lumbar strain but a resolved cervical strain. Dr. Parnell returned Mr. Sanchez to work with no physical restrictions.

On October 17, 2013, Mr. Sanchez returned for his follow-up with Dr. Parnell and reported “occasional episodes of discomfort but no significant pain and feels ... improved significantly since ... his last visit.” Dr. Parnell noted that his physical examination showed that Mr. Sanchez has regained full range of motion in both his thoracic and lumbar spine. Dr. Parnell found that Mr. Sanchez had reached maximum medical improvement. Dr. Parnell returned Mr. Sanchez to work with no physical restrictions and discharged him from care.

On October 28, 2013, Mr. Sanchez visited a chiropractor, Michael Haydel, D.C., at the Medical Rehab Accident Injury Center (“MRAIC”), who examined Mr. Sanchez and diagnosed .him with lumber sprain/ strain, lumbar neuritis, lumbago, and thoracic myofascitis. Dr. Haydel found that Mr. Sanchez’s prognosis was guarded, restricted him from all work, prescribed “aggressive physical therapy,” and referred Ms. Sanchez to his partner, Dr. Elliott Greenberg, for medication management.

l4On October 29, 2013, Mr. Sanchez returned to MRAIC for an appointment with orthopedist, Dr. Elliott Greenberg. At that visit, Dr. Greenberg found “limited range of motion with moderate ... tenderness, and spasm” in the “lower thoracic and lumber spines” and diagnosed Mr. Sanchez with lower thoracic and lumbar spinal strain/sprain.

On January 21, 2014, Mr. Sanchez filed a Disputed Claim for Compensation Form 1008 contending that MEMCO, Inc. and its insurer, AIG Insurance, Inc., (hereinafter “MEMCO”) were unlawfully refusing to pay wage benefits and/or medical treatment related to his injury of August 17, 2013. Mr. Sanchez also sought penalties, attorney fees, costs, legal interest, and SEBs. In response to the Disputed Claim, MEMCO denied all of Mr. Sanchez’s allegations and specifically pled that Mr. Sanchez had an intervening accident after October 17, 2013, which caused his current condition.

Later in 2014, after conservative treatment for one year, Dr. Haydel recommended an MRI of Mr. Sanchez’s lumbar spine, which was approved by the Louisiana Workforce Commission on October 1, 2014. On October 17, 2014, the radiologist found that the MRI of Mr. Sanchez’s lumbar spine revealed herniation of the disc between L5-S1. On October 27, 2014, Dr. Haydel recommended that Mr. Sanchez be examined by a neurosurgeon.

On February 11, 2015, Mr. Sanchez presented to his neurosurgeon, Dr. Kelly Scrantz, and reported moderate lower back pain and mild neck pain. Dr. Scrantz found that the MRI of Mr. Sanchez’s lumbar spine showed no herniation or compression but rather an “annular bulge.” Further, Dr. Scrantz did not believe that Mr. Sanchez exhibited sufficient sympto-mology to warrant injections or surgery.

On April 24, 2015, Mr. Sanchez presented to Dr. Jorge Isaza, an orthopedist. During this visit, Mr. Sanchez reported neck pain, headaches, and pain in his right | Jower back. Dr. Isaza diagnosed Mr. Sanchez with a cervical strain; annular tear in the disc between L5-S1; and SI joint dysfunction. Dr. Isaza recommended an epidural steroid injection to Mr. Sanchez’s sacroiliac joint. Although Mr. Sanchez reported that he received an injection, neither documentation of approval of that procedure nor the medical records for that procedure were introduced into evidence at trial.

On September 2, 2015, Mr. Sanchez returned to Dr. Parnell for an independent medical examination of his cervical and lumbar spines. On that day, Mr. Sanchez reported that he had continuing pain in the middle of his back and in his pelvis. Further, he has pain in. his right leg when he walks “a lot” and pain in his neck that causes headaches. When Dr. Parnell examined Mr. Sanchez, he found a mild limitation of cervical spine range of motion but a full range of motion in the lumbar spine. Dr. Parnell found “no objective evidence of either nerve root entrapment or mechanical abnormality of the cervical spine” and no evidence of “any permanent impairment to his cervical, thoracic, or lumbar spines as a result of his reported accident on August 17, 2013.”

On January 13, 2016, Mr. Sanchez underwent a second independent medical examination as ordered by the workers’ compensation judge. Dr. Ralph Katz, orthopedist, noted that Mr, Sanchez reported daily pain in the back of his head and in the mid-portion of the right lumbar spine but very little neck pain and no radiculopathy. During the physical examination, Dr. Katz noted that Mr. Sanchez exhibited pain in his scalp on the back of his head. When Dr. Katz examined Mr. Sanchez’s cervical spine, he observed full range of motion with no spasms and no tenderness. Upon examining Mr. Sanchez’s lumbar spine, Dr. Katz found no spasms but that Mr. Sanchez exhibited pain around the L3 area in the midline and on the right side at L5-S1.

IfiDr. Katz ordered and reviewed multiple x-rays of Mr. Sanchez’s lumbar and cervical spines, which showed overall good alignment. Further, an x-ray of the L5-S1 reflected “a very subtle small central bulge.” After reviewing all medical records, including the MRI, Dr. Katz agreed with Dr. Parnell that Mr. Sanchez’s original cervical and lumber strain, which were sustained in the work-related accident, were resolved. He found that Mr. Sanchez was at maximum medical improvement and should return to “full-duty work with no restrictions.”

Trial commenced on May 19, 2016. At the commencement of trial, the parties stipulated that Mr. Sanchez was an employee of MEMCO on the date of the accident, August 17, 2013. They also stipulated that the accident occurred in the course and scope of Mr. Sanchez’s employment. Further, the parties stipulated to the introduction of the claimant’s and MEMCO’s exhibits, which included the log of medical payments made by MEMCO for claimant, claimant’s wage statement, and extensive medical records. At the conclusion of trial, the workers’ compensation judge allowed the parties additional time to submit post-trial memoranda.

On August 8, 2016, the judge rendered judgment finding that claimant, Mr. Sanchez, failed to meet his burden that he was, as a result of his work-related injury, disabled from work and, thus, not entitled to, additional indemnity or medical benefits, and rendered judgment in favor of MEMCO. Mr. Sanchez, who appears in proper person, appeals that judgment.

jjLaw and Argument

On appeal, Mr. Sanchez alleges that the trial court erred in failing to find that he was owed “back pay ... for workers[síe ] compensation during the time of coming to the agreement” as well as payment for continuing medical treatment, including injections.

Initially, MEMOO responds by pointing out that Mr. Sanchez failed to -brief his assignment of errors, pursuant to Uniform Rules—Court of Appeal, Rule 2-12.4. As argued by MEMCO, where an appellant fails to brief an assignment of error, the appeal court may deem that assignment abandoned. Admittedly, Mr. Sanchez does, not substantially brief each assignment of error made, but with due consideration to this pro se litigant, we will address the relevant issues.

The Workers’ Compensation Act set up a court-administered system to aid injured workmen by. relatively informal and flexible proceedings. Rhodes v. Lewis, 01-1989 (La. 5/14/02), 817 So.2d 64. The provisions of the workers’ compensation law are to be interpreted liberally in favor of the worker. Coats v. AT & T, 95-2670 (La. 10/25/96), 681 So.2d 1243.

Factual findings in a workers’ compensation case are subject to the manifest error or clearly wrong standard of-appellate review. Banks v. Industrial-Roofing and Sheet Metal, 96-2840 (La. 7/1/97), 696 So.2d 551, 556. The determinations by the workers’ compensation judge as to whether the claimant’s testimony is credible and whether the claimant has discharged his burden of proof are factual determinations and will not be disturbed upon review in the absence of manifest error or unless clearly wrong. Bruno v. Harbert Int’l, Inc., 593 So.2d 357, 361 (La. 1992).

The reviewing court is compelled to review the record in its entirety to determine whether the trial court’s finding was clearly wrong or manifestly erroneous. Wise v. H.B. Zachary Co., 00-3 (La.App. 5 Cir. 4/25/00), 760 So.2d 500. In applying the manifest error/clearly wrong standard, the appellate court does not determine whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a' reasonable one. Id. If the factual findings are reasonable in' light of the recdrd reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Marange v. Custom Metal Fabricators, Inc., 11-2678 (La. 7/2/12), 93 So.3d 1253, 1257, 1260 (citing Stobart v. State, DOTD, 617 So.2d 880, 883 (La. 1993)).

In his argument, Mr. Sanchez contends that the workers’ compensation judge erred in failing to award him “back pay.” /Whether a workers’ compensation claimant seeks temporary or permanent total disability benefit's, the claimant bears the burden of proving, by clear and convincing evidence, his inability to engage in any type of employment. La. R.S. 23:1221(l)(c); La. R.S. 23:1221(2)(c); Jimmerson v. Johnson Storage & Moving Co., 13-962 (La. App. 5 Cir. 5/14/14), 142 So.3d 111, 116-117; Baker v. Harrah’s, 15-0229 (La. App. 4 Cir. 3/9/16), 190 So.3d 379, 393. A claimant must present objective medical evidence to establish by clear and convincing evidence that he is unable to engage in any type of employment. Fassitt v. Jefferson Parish Hosp. Serv., 07-695 (La. App. 5 Cir. 12/27/07), 974 So.2d 757, 760.

La. R.S. 23:1123 provides that the report of the appointed independent medical examiner “shall be prima facie evidence of the facts therein stated .... ” Although a workers’ compensation judge is not required to accept the conclusions of an independent medical examiner, Campbell v. Gootee Construction Co., 99-913 (La. App. 5 Cir. 1/12/00), 756 So.2d 449, 453, the medical conclusions of an independent medical examiner should be given significant weight, because the independent medical examiner is an objective party. Clark v. Godfrey Knight Farms, Inc., 08-1723 (La. App. 1 Cir. 2/13/09), 6 So.3d 284, 295, writ denied, 09-562 (La. 5/29/09), 9 So.3d 163.

In this case, the record before us contains evidence that Mr. Sanchez returned to work with MEMCO from a few days after his accident until October 29, 2013. During that time, Dr. Parnell found that Mr. Sanchez was at maximum medical improvement on October 17, 2013. Dr. Katz, in his independent medical examination, agreed with Dr. Parnell and also found that Mr. Sanchez was at maximum medical improvement.

As noted above, it is the claimant’s burden to prove by clear and convincing evidence that he is physically unable to engage in any. employment or self-employment due to his injury. However, the record before us does not contain clear and convincing evidence that Mr. Sanchez is physically unable to engage in any employment due,ho his injury,' In fapt, .at least three doctors, including his own neurologist and the .independent orthopedist, agree that he is able to return to work. Accordingly, we find no error in the workers’ compensation judge’s determination that Mr. Sanchez was not entitled to further indemnity benefits.'

Further, a workers’ compensation claimant may recover medical expenses that are reasonably necessary for the treatment of a medical condition caused by a work-related injury. Here, the claimant did not producé sufficient proof of the necessity of further medical treatment. Accordingly, we find no error in the workers’ compensation judge’s determination that Mr. Sanchez was not entitled to future medical benefits.

Conclusion

For the foregoing reasons, we find no error in the workers’ compensation judge’s ruling in this case. Accordingly, this judgment is affirmed.

AFFIRMED.

      . The medical records reveal that Mr. Sanchez had originally been scheduled to see Dr. Reiss on August 27, 2013, but postponed his appointment, against doctor's orders,, to take a trip to Honduras.

      . From October 2013, the me.dical records reflect Dr. Haydel restricted Mr. Sanchez from work until at least January IS, 2015. At trial on May 19, 2016, Mr. Sanchez reported that he had not worked since October 29, 2013.

      . We note that the judgment at issue was rendered "against claimant, Eduardo Sanchez, with prejudice,” but failed to include language of dismissal, i.e. “the claim is dismissed.” "[A] final judgment must contain decretal language and it must name the party in favor of whom the ruling is ordered, the party against whom the ruling is ordered, and the specific relief that is granted or denied." Morraz-Blandon v. Voiron, 16-112 (La. App. 5 Cir. 8/25/16), 199 So.3d 1220, 1221. "The specific relief granted or denied should be' determinable from the judgment itself without reference to an extrinsic source such as pleadings or reasons for judgment.” Id. Here, we can determine that the matter, was granted in favor of the lone defendant and against the lone claimant, Further, we know from the judgment that Mr, Sanchez's claims were denied "with prejudice,” which is sufficiently definite to determine the merits of this workers’ compensation controversy. See La, R.S. 23:1310.5; R.S. 23:1317, Consequently, although we know that, under La. R.S. 23:1317, the workers’ compensation judge shall not be bound by technical rules of procedure unless specifically provided, we point out that it is preferable to include definitive language of dismissal in a final judgment.


author: LILJEBERG, J.

text:
    STATE of Louisiana v. Derenne CARTER
    NO. 17-KA-148
    Court of Appeal of Louisiana, Fifth Circuit.
    October 25, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Metairie, Terry M. Bou-dreaux, Gretna
    COUNSEL FOR DEFENDANT/APPELLANT, DERENNE CARTER, Bruce G. Whittaker
    Panel composed of Judges Fredericka Homberg Wicker, Robert M. Murphy, and Hans J. Liljeberg
   LILJEBERG, J.

| defendant appeals his convictions and sentences for racketeering and conspiracy to distribute cocaine. For the following reasons, we affirm defendant’s convictions and sentences, and we remand for correction of the uniform commitment orders. We also grant appellate counsel’s motion to withdraw as counsel of record.

PROCEDURAL HISTORY

Defendant, Derenne Carter, was charged by indictment with racketeering, relating to a narcotics distribution network, in violation of La. R.S. 15:1352. He was also charged with conspiracy to distribute cocaine, in violation of La. R.S. 40:979 and La. R.S. 40:967(A). Defendant pleaded not guilty to both charges.

Thereafter, defendant withdrew his pri- or pleas of not guilty and pleaded guilty as charged. In accordance with the plea agreement, the trial court sentenced defendant to 15 years imprisonment at hard labor on count one (racketeering) and to 15 years imprisonment at hard labor, with the first two years without the benefit of probation, parole, or suspension of sentence, on count two (conspiracy to distribute cocaine). The sentences were ordered to run concurrently. The State filed a multiple offender bill of information on count two alleging defendant to be a second felony offender, to which defendant stipulated. The trial court vacated defendant’s sentence on count two and resentenced him as a second felony offender, pursuant to La. R.S. 15:529.1, to 15 years imprisonment at hard labor without the benefit of probation or suspension of sentence. Defendant appeals.

jflFACTS

Because defendant pleaded guilty, the facts were not fully developed at a trial. Count one of the indictment provides, in pertinent part:

At all times material to this Indictment, Derenne Carter, aka “D” the defendant herein,. .engaged . in conduct that furthered the aims of’an Enterprise by engaging in a pattern of Racketeering Activity. This conduct included operating a. narcotics distribution network that transported cocaine into the metropolitan New Orleans area from the State of Texas.
From on or around January 1, 2013, through February 26, 2015... defendant, . .did knowingly conduct and participate, directly and indirectly, in the conduct of the affairs of the Enterprise through a Pattern of Racketeering Activity .,. consisting] of acts that include, but are not limited to, the conduct alleged in .Counts Two and Three of the Indictment, and this conduct is incorporated as Racketeering Act 1 and 2.
Racketeering Act 5
On and between January 16, and January 19, 2014, Derenne Carter aka “D”.. .transported U.S. Currency -from Jefferson Parish to Houston, Texas for the purpose of acquiring cocaine.. .
Racketeering Act 6
On and between January 16, and January 19, ■ 2014, Derenne Carter aka “D”.. .transported kilograms of cocaine from Houston, Texas to Jefferson Parish.
Racketeering Act 7
On and between the January 21 and 22, 2014, Derenne Carter aka “D”.. .transported U.S. Currency to Houston, Texas for thé purpose of acquiring cocaine, and checked into a hotel room to await the order to deliver the ‘money and make the pickup of cocaine.

Count two of the indictment provides, in pertinent part:

From on or around January 1, 2013, through February 26, 2015.., defendant... and other persons known and unknown to the Grand Jury violated R.S. 40:979/967(A), in that they conspired among themselves and with persons known and unknown to the Grand Jury to distribute cocaine.

JaLAW AND DISCUSSION

Pursuant to the procedure adopted by this Court in State v. Bradford, 95-929, pp. 3-4 (La. App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110-11, appointed appellate counsel has filed a brief asserting that he has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669 (La. 12/12/97), 704 So.2d 241 (per curiam), appointed counsel requests permission to withdraw as counsel of record.

In Anders, supra, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if he finds his case to be wholly frivolous after a conscientious examination of it. The request must be accompanied by “ ‘a brief referring to anything in. the record that might arguably support the appeal’ ” so as to provide the reviewing court “with a basis for determining whether appointed counsel have fully performed their duty to support their clients’ appeals to the best of their ability” and to assist the reviewing court “in making the critical determination whether the appeal is indeed so frivolous that counsel should-be permitted to withdraw.” McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 439, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440 (1988).

In Jyles, 96-2669 at 2, 704 So.2d at 241, the Louisiana Supreme Court stated that an Anders brief need not tediously catalog every meritless pretrial motion or objection made at trial with a detailed explanation of why the motions or objections lack merit. The supreme court explained that an Anders brief must demonstrate by full discussion and analysis that appellate counsel “has cast an 1 ¿advocate's eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration.” Id.

When conducting a review for compliance with Anders, an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. Bradford, 95-929, at 4, 676 So.2d at 1110. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel’s motion to withdraw and affirm the defendant’s conviction and sentence. However, if the court finds any legal point arguable on the merits, it may either deny the motion and order the court-appointed attorney to file á brief arguing the legal point(s) identified by the court, or grant the motion and appoint substitute appellate counsel. Id.

In the present case, defendant’s appellate counsel asserts that after a detailed review of the record, he could find no non-frivolous issues to raise on appeal. He states that defendant entered an unqualified guilty plea, thereby waiving- all non-jurisdictional defects. Appellate counsel further asserts that the record does not support a claim that the plea was constitutionally infirm. The State has filed a brief in this matter, concurring in appellate counsel’s assertion that there are no non-frivolous issues to be raised on appeal.

Appellate counsel has filed a motion to withdraw as attorney of record, in which he states that he believes the appeal is wholly frivolous, as explained in his accompanying brief, and that he has sent notice to defendant of his right to file his own pro se brief in this appeal. Additionally, this Court sent defendant a letter by certified mail informing him that an Anders brief had been filed and that he had until May 6, 2017 to file a pro se supplemental brief. Defendant has not filed a pro se supplemental brief in this matter.

15An independent review of the record supports appellate counsel’s assertion that there are no non-frivolous issues to be raised on appeal.

The indictment properly charged defendant and plainly and concisely stated the essential facts constituting the offenses charged. It also sufficiently identified defendant and the crimes charged. See La. C.Cr.P. arts. 462-466. The record also shows that there are ho appealable issues surrounding defendant’s presence. The minute entries reflect that defendant and his counsel appeared at .all crucial stages of the proceedings against him, including his arraignment, guilty pleas, multiple bill stipulation, and sentencing.

Defendant pleaded guilty in this case. Generally, when a defendant pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea and precludes review of such defects either by appeal or post-conviction relief. State v. Turner, 09-1079 (La. App. 5 Cir. 7/27/10), 47 So.3d 455, 459. In the present case, defendant entered unqualified guilty pleas, and therefore, all non-jurisdictional defects are waived. Further, no rulings were preserved for appeal under the holding in State v. Crosby, 338 So.2d 584 (La. 1976).

Once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief. State v. McCoil, 05-658 (La. App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124. A guilty plea is constitutionally infirm if it is not entered freely and voluntarily, if the Boykin colloquy is inadequate, or when a defendant is induced to enter the plea by a plea bargain or what he justifiably believes was a plea bargain and that bargain is not kept. Id.

A review of the record reveals no constitutional infirmity in defendant’s guilty pleas. The record shows that defendant was aware he was charged with and | ¿pleading guilty to one count of racketeering and one count of conspiracy to distribute cocaine. On the waiver of rights form and during the colloquy with the trial judge, defendant was advised of his right to a jury trial, his right to confrontation, and his privilege against self-incrimination as required by Boykin, supra. Defendant signed the waiver of rights form, indicating that he understood he was waiving these rights by pleading guilty. During the colloquy with the trial judge, defendant also indicated that he understood those rights.

During his guilty plea colloquy and on his waiver of rights form, defendant indicated that he had not been forced, coerced, or threatened into entering his guilty pleas. Defendant was informed during the colloquy of the minimum and maximum sentences and of the sentences that would be imposed on each count if his guilty pleas were accepted. After the colloquy with defendant, the trial court accepted defendant’s pleas as knowingly, intelligently, freely, and voluntarily made.

Moreover, defendant’s underlying sentences do not present any issues for appeal. His underlying sentences were imposed pursuant to, and in conformity with, a plea agreement. La. C.Cr.P. art. 881.2(A)(2) precludes a defendant from seeking review of his sentence imposed in conformity with a plea agreement, which was set forth in the record at the time of the plea. See State v. Moore, 06-875 (La. App. 5 Cir. 4/11/07), 958 So.2d 36, 46; State v. Washington, 05-211 (La. App. 5 Cir. 10/6/05), 916 So.2d 1171, 1173. Further, defendant’s sentences fall within the sentencing ranges prescribed by the statutes. See La. R.S. 15:1354; La. R.S. 40:979; La. R.S. 40:967.

With regard to the multiple offender proceedings, the record shows defendant was sufficiently advised of his multiple offender rights. During the guilty plea colloquy, defendant admitted he was a second felony offender. The waiver of rights form and the colloquy between the trial judge and defendant show 17that defendant was advised of his right to a hearing at which the State would have to prove his multiple offender status and of his right to remain silent throughout the hearing. A defendant is barred from asserting on appeal that the State failed to produce sufficient proof of his multiple offender status hearing when he waived the hearing. State v. Schaefer, 97-465 (La. App. 5 Cir. 11/25/97), 704 So.2d 300, 304. Defendant also indicated that he had not been forced or coerced into stipulating to the multiple bill. His stipulation was accepted by the judge as knowingly, intelligently, freely, and voluntarily made.

Defendant was also advised that if the trial court accepted his stipulation, he would be sentenced to 15 years imprisonment at hard labor, to be served without the benefit of probation or suspension of sentence. However, on the waiver of rights form and during the guilty plea colloquy, defendant was incorrectly advised that the sentencing range for his enhanced sentence on count two was between 15 and 60 years. La. R.S. 15:529.1(A)(1) provides that:

If the second felony is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then the sentence to imprisonment shall be for a determinate term not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction.

Defendant’s conviction on count two, conspiracy to distribute cocaine, was punishable by imprisonment at hard labor for not less than two years nor more than 15 years, with the first two years without the benefit of parole, probation, or suspension of sentence. See La. R.S. 40:979 and La. R.S. 40:967. Accordingly, the correct sentencing range for the enhanced sentence on count two was actually between seven and one-half years and 30 years.

La. C.Cr.P. art. 556.1(A)(1) provides that, prior to accepting a guilty plea, the court must personally inform the defendant of the nature of the charge to which the plea is offered, any mandatory minimum penalty, and the maximum possible penalty. State v. Kent, 15-323 (La. App. 5 Cir. 10/28/15), 178 So.3d 219, 229, writ denied, 15-2119 (La. 12/16/16), 211 So.3d 1165. “Any variance from the procedures required by this Article which does not affect substantial rights of the accused shall not invalidate the plea.” La. C.Cr.P, art. 556.1(E). Violations of La. C.Cr.P. art. 556.1 that do not rise to the level of Boy-kin violations are subject to harmless error analysis. State v. Craig, 10-854 (La. App. 5 Cir. 5/24/11), 66 So.3d 60, 64.

In the instant case, although he was not informed of the correct sentencing range, defendant knew the sentence he would receive, and he received that sentence. An advisement of the agreed upon sentence is sufficient for compliance with La. C.Cr.P. art. 556.1. See Craig, supra; State v. Broadway, 40,569, p. 7 (La. App. 2 Cir. 1/25/06), 920 So.2d 960, 963. Accordingly, no substantial rights of defendant were affected.

With regard to defendant’s enhanced sentence, we note that it was imposed in accordance with the terms of the plea agreement set forth in the record at the time of the plea. Further, defendant’s sentence falls within the sentencing range set forth in the statutes. See La. R.S. 15:529.1; La. R.S. 40:979; La. R.S. 40:967. Moreover, defendant’s plea agreement was beneficial to him in that he received a 15-year enhanced sentence, when he could have received a 30-year sentence. Further, we note that defendant could have been exposed to an even higher sentence if the State had filed the multiple bill on count one.

The transcript reflects that the trial judge informed defendant that if he stipulated to the multiple bill, his 15-year enhanced sentence on count two would be served without the benefit of probation or suspension of sentence. Thereafter, the trial judge imposed the enhanced sentence without the benefit of probation or. | ¡¡suspension of sentence. However, the trial judge did not specify any . restriction on parole eligibility.

The restrictions on parole eligibility imposed on habitual offender sentences under La. R.S. 15:529.1 “are those called for in the reference statute.” State v. Esteen, 01-879 (La. App. 5 Cir. 5/15/02), 821 So.2d 60, 79 n.24, writ denied, 02-1540 (La. 12/13/02), 831 So.2d 983. La. R.S. 40:967(B)(4)(b) requires that the first two years of the sentence shall be without benefit of parole, probation, or suspension of sentence.

Because the underlying offense carries a parole restriction, the habitual offender sentence is to likewise be imposed without parole. See State v. Smith, 09-100 (La. App. 5 Cir. 8/25/09), 20 So.3d 501, 509, writ denied, 09-2102 (La. 4/5/10), 31 So.3d 357. Therefore, the trial court erred by not restricting parole eligibility on defendant’s enhanced sentence for the first two years,

La. R.S. 15:301.1(A) provides that in instances where the statutory restrictions are not recited at ■ sentencing, they are deemed Contained in the sentence whether or not specified by the sentencing court and are therefore statutorily effective. Thus, no corrective action is required to specify that the first two years of defendant’s sentence are to be servéd without benefit of parole. See State v. Young, 13-745, p. 2 (La. App. 5 Cir. 4/9/14), 140 So.3d 136, 140 n.2, writ denied, 14-1002 (La. 12/8/14), 153 So.3d 439.

Appellate counsel’s brief adequately demonstrates by full discussion and analysis that he has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal, and an independent review of the record supports counsel’s assertion. Accordingly, we affirm defendant’s convictions and sentences, and we grant appellate counsel’s motion to withdraw as attorney of record.

[^ERRORS PATENT

Defendant requests an error patent review. However, this Court routinely reviews the record for errors patent in accordance with La.' C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d 175 (La. App. 5 Cir. 1990) regardless of whether defendant makes such a request. The following errors were noted. '

The uniform commitment orders regarding defendant’s underlying sentence and his enhanced sentence both reflect that the offense date was January 1, 2013. However, the record indicates that the correct offense dates were between January 1, 2013 and February 26, 2015. We also note that the uniform commitment order dated June 21, 2016, pertaining to defendant’s multiple offender sentencing does not specify that the first two years of his sentence are to be served without' benefit of parole.

This Court has previously remanded other cases for correction of the uniform commitment order in its error patent review. See State v. Lyons, 13-564, p. 9 (La. App. 5 Cir. 1/31/14), 134 So.3d 36, 41, writ denied, 14-0481 (La. 11/7/14), 152 So.3d 170 (citing State v. Long, 12-184 (La. App. 5 Cir. 12/11/12), 106 So.3d 1136, 1142). Accordingly, we remand this matter to the trial court and order that the uniform commitment orders be corrected to reflect the correct dates of the offenses and that the first two years of defendant’s multiple offender sentence are to be. served without benefit of parole. We also direct the Clerk of Court for the 24th Judicial District Court to transmit the original of the. corrected uniform commitment orders to the officer in charge of the institution to which defendant has been , sentenced and the Department of Corrections’ legal department. See Long, 12-184 at 10-11, 106 So.3d at 1142.

[jjDECREE

For the foregoing reasons, we affirm defendant’s convictions and sentences, and we remand to the trial court for correction of the uniform commitment orders. We also grant appellate counsel’s motion to withdraw as counsel of record.

CONVICTIONS AND SENTENCES AFFIRMED; REMANDED FOR CORRECTION OF UNIFORM COMMITMENT ORDERS; MOTION TO WITHDRAW GRANTED.

      . Before the guilty colloquy began, the State filed a motion to place the plea agreement, including a document titled "Factual Basis,” under seal. On the record, defendant reviewed the information contained in the factual basis, without reading it aloud and confirmed that the information contained therein was accurate.

      . In Bradford, supra, this Court adopted the procedures outlined in State v. Benjamin, 573 So.2d 528, 530 (La. App. 4 Cir. 1990), which were sanctioned by the Louisiana Supreme Court in State v. Mouton, 95-0981, pp. 1-2 (La. 4/28/95), 653 So.2d 1176, 1177 (per curiam).

      . The .United States Supreme Court reiterated Anders in Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).

      . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

      , If multiple billed on count one (racketeering), defendant faced an enhanced sentence with a minimum of 25 years and maximum of 100 years imprisonment. See La. R.S. 15:529.1; La. R.S. 15:1354.