author: KEATY, Judge.

text:
    STATE of Louisiana v. Kyle James TOUPS
    16-993
    Court of Appeal of Louisiana, Third Circuit.
    07/05/2017

      Keith A. States, District Attorney, Michele S. Billeaud, Assistant District Attorney, Post Office Box 3306, Lafayette, Louisiana 70502-3306, (337) 232-5170, Counsel for Appellee: State of Louisiana
    Edward K. Bauman, Louisiana Appellate Project, Post Office Box 1641, Lake Charles, Louisiana 70602-1641, (337) 491-0570, Counsel for Defendant/Appellant: Kyle James Toups
    Court composed of Elizabeth A. Pickett, Phyllis M. Kéaty, and D, Kent Savoie, Judges.
   KEATY, Judge.

11 Defendant, Kyle James Toups, was indicted for negligent homicide, a violation of La.R.S. 14:32. After a jury trial, Defendant was found guilty-as charged. Defendant was sentenced on July 15, 2016, to two years imprisonment at hard labpr, with credit for time served, and ordered to pay restitution to the victim’s family in the amount of six thousand dollars. Defendant filed a Motion to Reconsider Sentence which was denied without a hearing.

Defendant has perfected a timely appeal wherein he claims that the State did not negate his self-defense claim, thereby failing to prove negligent homicide beyond a reasonable doubt, and that his sentence is excessive. For the following' reasons, we affirm Defendant’s conviction and sentence.

FACTS

After an evening of drinking in downtown Lafayette, Louisiana, Defendant; his brother, Travis Toups (Travis); and Jacob Landry encountered the victim, Luke Michael Darby, on the street just before 2:00 a.m. on Sunday, October 14, 2012. Travis and the victim bumped into each other and briefly argued before the victim punched Travis in the face. Defendant then took a knife from his pocket and swung toward the victim’s chest. Thereafter, the victim and Defendant fled the scene. On Monday morning, the victim was discovered dead outside a nearby business. An autopsy revealed his cause of death as a single stab wound to the heart.

DISCUSSION

Errors Patent

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this court for errors patent on the face of the record. After review, we have found Lone error patent. Defendant was advised that he had “two (2) years within which to file for post-conviction relief.” Louisiana Code of Criminal Procedure Article 930.8 (emphasis added) provides that a defendant has “two years after the conviction and sentence become final” to seek post-conviction relief. Because the advisement given to him was insufficient, we direct the trial court to inform Defendant of the provisions of La.Code Crim.P. art. 930.8 by sending written notice to him within ten days of the rendition of this opinion and to file written proof in the record that Defendant received the notice. See State v. Roe, 05-116 (La.App. 3 Cir. 6/1/05), 903 So.2d 1265, writ denied, 05-1762 (La. 2/10/06), 924 So.2d 163.

Sufficiency of the Evidence

‘In his first assigned error on appeal, Defendant asserts that the evidence presented at trial was insufficient to sustain his conviction for negligent homicide. At trial, Defendant- admitted that he stabbed the -victim, but he claimed that the killing was justified because he was acting in defense of his brother.

Negligent homicide is defined as “[t]he killing of a human being by criminal negligence.” La.R.S. 14:32(A)(1). Louisiana Revised Statutes 14:12 states that: “Grim-mal negligence exists when, although neither specific nor general criminal intent is present, there is such disregard of the interest of others that the offender’s conduct amounts to a gross deviation below the. standard of care expected to be maintained by a reasonably careful man under like circumstances.” A homicide is justifiable “[w]hen committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger.” La.R.S. 14:20(A)(1). In addition, La.R.S. 14:22 provides that “[i]t is justifiable to use force or violence or |sto kill in the defense of another person when it is reasonably apparent that the person attacked could have justifiably used such means himself, and when it is reasonably believed that such intervention is necessary to protect the other person.” When self-defense or defense of another is claimed as a justification for the homicide, the defendant does not bear the burden of proof on that issue; instead, the State is required to prove beyond a reasonable doubt that the defendant did not act in self-defense or in the defense of another. See State v. Prudhomme, 02-511, (La.App. 3 Cir. 10/30/02), 829 So.2d 1166, writ denied, 02-3230 (La. 10/10/03), 855 So.2d 324; State v. Addison, 97-1186 (La.App. 3 Cir. 3/6/98), 717 So.2d 648, writ denied, 98-938 (La. 9/4/98), 723 So.2d 955.

In State v. Alexander, 04-788, pp. 1-2 (La.App. 3 Cir. 11/17/04), 888 So.2d 401, 402 (alteration added), this court stated:

When reviewing the sufficiency of the evidence, appellate courts are controlled by the standard enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and must determine “whether the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.” State v. Captville, 448 So.2d 676, 678 (La. 1984).... Therefore, we must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that he did not act in self-defense.

Furthermore, on questions of the sufficiency of the evidence, the appellate court’s function is not to assess the credibility of witnesses or reweigh the evidence. State v. Smith, 94-3116 (La. 10/16/95), 661 So.2d 442.

The pertinent evidence presented at the trial of this matter is outlined below. Jared Istre, an officer in the Crimes Against Persons section of the Lafayette Police Department; was the first witness called by the State. Officer Istre testified that on the morning of October 15, 2012, he received a call to investigate a body Ldiscovered in the bushes outside an office on Polk Street. Officer Istre stated that the person who called the police thought the man was sleeping, but upon his arrival at the scene, he realized that the man was dead. According to Officer Istre, it became a homicide investigation after the coroner arrived and lifted the victim’s shirt to reveal a single stab wound to his chest. A driver’s license found in the victim’s wallet identified him as Luke Michael Darby. Police officers then began canvassing the area and were able to follow a blood trail to a parking garage on the corner of Vermilion and Polk Streets. Officer Istre learned that a stabbing had occurred nearby on the corner of Jefferson and Vermilion Streets just prior to the altercation at issue in this appeal and that at least five police officers had responded to that incident. Officer Istre was able to verify that all of the suspects and victims of that incident were accounted for, which ruled out the possibility that Mr. Darby was injured in that first stabbing. During the police’s search of the area in conjunction with this incident, an attendant for the parking garage on Vermilion Street informed another police officer that a knife had been found in the garage. The knife was collected and swabbed for DNA analysis.

According to Officer Istre, a tip .was called into the police department indicating that Mr. Landry was a witness to the victim’s stabbing. Mr. Landry was brought in for an interview during which Officer Istre learned that Defendant, a co-worker of Mr. Landry, had stabbed the victim. Thereafter, Mr. Landry and Officer Istre returned to the crime scene where Mr. Landry was videotaped as he described the events leading up to the victim’s stabbing. Mr. Landry pointed out where Defendant tossed the knife after the victim was stabbed, which location was consistent with where the parking garage attendant said the knife given to the police was found.

Is An arrest warrant was issued for Defendant, and he was taken into custody in Texas, where he was working. Officer Istre traveled to Texas on October 17, 2012, having Defendant sign an advice of rights form before questioning him about the stabbing. Officer Istre testified that initially Defendant denied being downtown on the night of the stabbing. However, after Officer Istre suggested to Defendant that perhaps he stabbed the victim in self-defense of his brother, Defendant began to cry and nodded his head in agreement when questioned about the stabbing.’ Eventually, Defendant told Officer Istre that as he, Travis, and Mr. Landry were passing the parking garage, the victim walked out and bumped shoulders with Travis. The victim then told Travis, “I’m going to fucking kill you,” and punched him in the face. Defendant stated that he pulled out his knife and swung at the victim’s chest. Although he believed he cut the victim* Defendant did not think he hurt the victim “that bad” because the victim ran away toward Polk Street. Defendant told Officer Istre that he then ran toward where his car was parked across the street in front of Parc San Souci, tossing his knife into the parking garage as he passed it. Defendant stated that he later asked Mr. Landry to see if he could retrievé the knife. Although Defendant acknowledged that he saw some officers nearby in connection with the earlier incident, he did not tell them about what had just occurred nor did he call the police to report that he had stabbed someone in self-defense after that person attacked his brother. Officer Istre | (¡testified that Defendant said he never saw a weapon bn the victim. A videotape of Defendant’s one-hour-and-eight-minute interview was played to the jury.

On direct examination, Officer Istre relayed that when he interviewed Travis three days after the stabbing, he saw no observable injuries to Travis’ face. He admitted on cross-examination, however, that Travis told him that his lip was cut where the victim had punched him. Officer Istre was questioned about a report he prepared wherein he noted that according to the information on their driver’s licenses, Defendant, Travis, and the victim were all about the same height, approximately 5'6" to 5'7" tall, and they all weighed between 140 and 16S pounds.

During his investigation, Officer Istre secured video from a nightclub across the street from-the parking garage which' showed a person believed to be the victim, who appeared to be injured, stumbling from the parking garage, and heading toward the office building where he was later found. That video was played to the jury. According to Officer Istre, he reviewed video taken by a security camera on,the corner of Jefferson and Vermilion Streets, which appeared to show the victim yelling at the crowd during the incident that the police responded to before he was stabbed. That video was not preserved. Officer Istre also reviewed a video recorded at the parking garage, but he saw nothing on it which he deemed important. That video was also not preserved.

The. State’s next witness was Darrell Francis, the parking garage attendant who was working on the day the victim’s body was found. He stated that his supervisor showed him a knife that she had found that morning, but he threw it away after realizing it was broken. When he later saw police officers investigating |7nearby, Mr. Francis told them about the knife and. showed them the trash can in which he. had disposed of it. The parties then jointly stipulated that if the parking garage supervisor was called to testify, she would state that she found the knife near the front comer of the garage by Parc San Souci.

The parties entered another joint stipulation that Claire Guidry, the Acadiana Criminalistics Laboratory technician who tested the knife in evidence, was an expert in her field and that her analysis revealed to a reasonable scientific certainty that the victim’s DNA was on the knife blade and that the knife handle contained a mixed DNA profile from which Defendant and the victim could not be excluded as potential contributors. Ms. Guidry’s report was admitted into evidence.

Mr. Landry was the next witness- to testify'for the State. He stated that he had known Defendant and Travis for several years from working with them. On October 13, 2012, he met‘up with the Toups brothers at a bar on Jefferson Street. Travis was heavily intoxicated, but hé did not see Defendant consume any alcohol. They left the bar at ‘about 1:30 a.m. and walked down the street single file, with him in the lead, followed by Defendant and then Travis. As they were walking passed the' parking garage, they encountered the victim and four or five of his friends. The victim said something to him, but Mr. Landry ignored it and kept walking. He then heard words being exchanged bétween Travis and the''victim, but he could not make out wliat was being said. Mr. Landry testified to hearing thé word “jackass,” but he did not know who said it. He acknowledged, however, that Lwhen interviewed by the police, he told them it was said by one of the Toups brothers.

Upon hearing the verbal exchange, Mr.' Landry turned around and saw the victim punch Travis in the face. Travis stumbled backwards but did not fall down. Immediately thereafter, in what Mr. Landry described as a protective manner, Defendant came up from behind Travis, pulled out his knife, and stabbed the victim in the chest. The victim, who did not appear to realize he had been stabbed, backed up and walked across the street, and Defendant ran toward his car. Mr. Landry confirmed that he did not see the victim with a weapon. Mr. Landry explained that after making sure that Travis was okay, the two of them met up with Defendant, and they all expressed shock about the situation and how quickly it had occurred. Mr. .Landry then left to rejoin his other friends. According to Mr. Landry, Defendant told him his knife was in the parking garage. Upon questioning by the State, Mr. Landry stated he did not recall Defendant asking him to dispose of the knife, but he could not dispute that he may have told the police that Defendant asked him to retrieve the knife and dispose of it. Over the objection of the defense, the jury was then shown the videotape of Mr. Landry demonstrating to the police where and how the victim was stabbed.

Upon cross-examination by the defense, Mr, Landry recalled that as he and the Toups brothers were making their way from the bar toward the parking garage, he saw a man covered with blood who appeared to have been in a brutal fight. At the time, it did not appear to him that the person who injured that man had been apprehended because the police were not yet on the scene. Mr.' Landry admitted that he was drunk that evening and that he may have been on “Mollies,” an Ecstasy-type drug. Mr. Landry stated he felt outnumbered when they encountered |9the victim with a group of five or so other people. He was also of the opinion that Travis was too intoxicated to have been able to defend himself that evening.

The next witness to testify was Travis, whom the State called on cross-examination. He stated that he was nine years older than Defendant. He admitted that he was very intoxicated the night of the incident and that he was not aware of whether or how much alcohol Defendant or Mr. Landry consumed that evening. After they left the bar and were passing the parking garage, a man bumped into him. Travis told the man, “Excuse the fück out of me/ ” and the next thing he knew, the man punched him in the face. -Travis explained that everything went “kind of black” for a while, and when he was able to focus again, he saw who he thought was the man that hit him jumping into a car. He ran after the car to confront the man, even though he “couldn’t fight to save his life at that point.” According to Travis, Mr. Landry then grabbed him saying they had to go. After being punched/Travis did not see Defendant until he and Mr. Landry found him in his car. When Travis got into the car and asked Defendant what had happened, Defendant told him that he “really didn’t know” and that “everything went crazy.” Travis said he' did not learn that Defendant had stabbed the victim until someone told him about it a day or so later. He then called Defendant, but Defendant told him they would talk about it when he got back from Texas.

On direct examination by the defense, Travis testified that he was missing a finger on one hand, had only partial use of and could not make a fist with the other hand. He also had a metal plate in one arm and half of his pelvic bone was missing due to an automobile accident. Travis testified that he and Defendant were very close, especially after losing their brother in an automobile accident.

I inDr. Christopher Tape, a forensic pathologist, performed the autopsy on the victim. He testified that the victim was stabbed once in the chest. The knife penetrated four inches into the victim’s chest cavity, perforating the sac that surrounded the heart and the right ventricle, and preventing his left lung -from expanding. Dr. Tape said it would have taken significant force to penetrate the chest cavity, going through both bone and the tough tissue around the heart. He noted that the knife went horizontally into the victim’s chest, which would not be consistent with him simply walking into the knife. Dr. Tape said it would have taken ten to twenty minutes for the victim to die, but he could possibly have been saved had he received immediate medical attention. The doctor testified that the toxicology report showed that the victim had several drugs in his system, including amphetamine; Xanax; the pain medicines, hydrocodone and bu-prenorphine; benzolylecgonine, a cocaine metabolite; and THC or marijuana. The victim also had a blood alcohol content of 0.215 percent, more than twice the legal limit to drive.

At trial, Defendant testified that he was thirty years old and was married with three children and was currently driving trucks for a living. He said he was in the National Guard because he wanted to serve his country. Defendant stated that since the stabbing, he had completely stopped drinking alcohol. Defendant explained that his parents divorced when he was two, and Travis was like a father to him. On the night of the stabbing, Travis had been drinking all day and had several drinks at the bar, but Defendant drank only three beers that evening. After leaving the bar, Defendant saw blood on the ground on Jefferson Street, and he was told that someone had been stabbed. He saw several police cars at the scene, but there was no indication that the perpetrator was in custody.

In Defendant testified that “as we were passing the parking garage, I heard some chatter, some scuffling I guess. When I turned to look, my brother was already pretty much being attacked, and then I heard the guy yell out, I’m going to fucking kill you!” Defendant stated the victim “looked hyped up, very crazed, [and] like he was out for blood.” The victim swung at Travis three times, but only one punch connected. Despite his involvement in the military and the fact that it was not easy for him to admit as much, Defendant stated he felt scared for his brother’s safety, and he believed that the victim was capable of hurting Travis and unlikely to respond to a request to not harm Travis. Moreover, Defendant believed his intervention was necessary to protect Travis, given his brother’s physical handicaps and intoxication and the fact that there had just been a stabbing nearby. Defendant explained that he pulled out his knife, pointed it at the victim, and as the victim was coming back toward Travis, his knife connected with the victim. He insisted that the situation happened very suddenly and that he did not have much time to think before intervening on his brother’s behalf.

After the incident, the victim took off running across the street and Defendant ran in the other direction, thinking his brother was right behind him. Defendant stated that he was “pretty shaken up,” and he tossed the knife into the parking garage area on the way to his car. Travis soon joined Defendant in his car, and Defendant told him that he may have stabbed a guy. Because they both had seen the victim run off and it appeared to them as though he was not “really hurt,” Defendant said that he and Travis “didn’t think much of it” and went home. About thirty minutes later, Defendant called Mr. Landry and asked him to pick up the knife that he had discarded if Mr. Landry was still downtown. At the end of his direct testimony, Defendant stated, “I want y’all to know that I am very sorry, very l^sorry for /allf’s] loss. This is not what I intended on doing. I don’t know if you can forgive me.”

On cross-examination, Defendant explained that he did not receive hand-to-hand combat training in the National Guard. Defendant agreed that he did not see the victim with a weapon, and he did not try to hit or push the victim away. Defendant again acknowledged that because he was so scared at the time, he did not tell the police in the area that he had stabbed a man who had attacked him and Travis, nor did he contact the police over the next few days. On re-direct, Defendant testified that in hindsight, he may have acted differently, but in the heat of the moment, he did what he thought was necessary to protect his brother.

As noted above, justification for a homicide committed in defense of another must be predicated on the reasonable perception that the person attacked could have justifiably used such means himself and that intervention was necessary to prevent harm. In brief, Defendant argues the State failed to prove that “the killing was not a justifiable act of self defense,” and he was clearly “only acting in self-defense of his brother Travis when he stabbed Darby as it appeared, in his mind, that Travis was going to receive great bodily harm at the hands of Darby.”

In the context of self-defense as is claimed in the current case, this court observed in State v. Griffin, 06-543, pp. 8-9 (La.App. 3 Cir. 9/27/06), 940 So.2d 845, 851 (alteration added), writ denied, 07-2 (La. 9/14/07), 963 So.2d 995:

The standard in La.R.S. 14:20 is whether the Defendant’s subjective belief that he was in danger was reasonable. State v. Brown, 93-1471 (La.App. 3 Cir. 5/4/94), 640 So.2d 488.
Factors to consider in determining whether a defendant had a reasonable belief that the killing was necessary are the excitement and confusion of the situation, the possibility of using force or violence short of killing, and the defendant’s knowledge of the | iaassailant’s bad character. State v. Hardeman, 467 So.2d 1163 (La.App. 2d Cir.1985). Although there is no unqualified duty to retreat, the possibility of escape is a factor to consider in determining whether a defendant had a reasonable belief that the use of deadly force was necessary to avoid the danger. State v. Brown, 414 So.2d 726 (La. 1982).
State v. Spivey, 38,243, p. 6 (La.App. 2 Cir. 5/12/04), 874 So.2d 352, 357.
In cases where the defendant claims self-defense as a justification, the absence of a weapon from the victim’s person or immediate reach is often a critical element of the state’s proof. See State v. Davis, 28,662 (La.App. 2d Cir. 9/25/96), 680 So.2d 1296.... The absence of [a] weapon on the victim, however, is not dispositive of the issue.
State in Interest of D.S., 29,554, p. 3 (La.App. 2 Cir. 5/7/97), 694 So.2d 565, 567.

In the instant case, Defendant produced a knife at a fist fight. The State contends that while Defendant had the right to defend his brother, the use of deadly force was not necessary under the circumstances and was unreasonable. The State further points out that despite the fact that the police were immediately available, Defendant made no effort to advise them of the incident.

At trial, Defendant asserted that because the victim ran away after being stabbed, neither he nor Travis thought the victim was badly hurt, so they left the scene without giving it much thought. On the other hand, Defendant threw the knife away and later asked Mr. Landry to retrieve it. As noted above, factors to consider when evaluating a claim of self-defense or defense of another are the confusion and excitement of the moment, whether the defendant could have used less than deadly force, and the defendant’s knowledge of the attacker’s poor character.

|14In brief, Defendant argues that he was on “heightened alert” and “went into his protective mode” when he saw Travis being attacked by a crazed man who was threatening to kill .Travis, However, while Defendant testified at trial that he saw blood on the sidewalk and saw police cars down the street, he did not see a stabbed person. Defendant did not know the victim prior to this incident, nor did he know that the victim was drunk and high on drugs. He was likewise unaware that security videotape taken during the earlier incident that evening showed the victim yelling into the crowd. Defendant claimed he heard the victim threaten to kill his brother, but Mr. Landry, who was observing the interaction between the victim and Travis, did not hear anything other than one of the Toups brothers say “jackass.” Moreover, although the testimony established that the victim, Travis, and Defendant were all about the same height and weight, Defendant admitted that he did not make an effort to push the victim away, hit him, talk him down, or pull his brother out of the victim’s, reach. Finally, the videotaped re-enactment of the incident as described by Mr. Landry showed - that Defendant simply swept past his brother and stabbed the victim in the chest without so much as a shout of warning.

In- light of the circumstances, we find that the level of violence inflicted on the victim was not necessary to protect Defendant’s brother from imminent danger of losing his life or receiving serious bodily, harm. Thus, considering the evidence in a light most favorable to the prosecution, we conclude that reasonable jurors could have found that the State met its burden of negating Defendant’s assertion that the killing was a justifiable act of self-defense.

Excessiveness of Sentience

Defendant was convicted' of negligent homicide. The sentencing range for the offense of negligent homicide is imprisonment of not more than five years, |iswith or without hard labor, and a fine of not more than five thousand dollars, or both. La.R.S. 14:32(C)(1). Defendant was sentenced to two years imprisonment at hard labor and was ordered to pay restitution to the family of the victim in the amount of six thousand dollars. Defendant argues that considering the circumstances of the case, a prison sentence of two years is a constitutionally excessive sentence.

“The trial judge is given wide discretion in imposing a sentence, and a sentence imposed within the statutory limits will not be deemed excessive in the absence of manifest abuse of discretion.” State v. Rogers, 07-276, p. 2 (La.App. 3 Cir. 10/3/07), 966 So.2d 1212, 1214 (quoting State v. Walker, 96-112, p. 4 (La.App. 3 Cir. 6/5/96), 677 So.2d 532, 534-35, writ denied, 96-1767 (La. 12/6/96), 684 So.2d 924. In State v. Pope, 47,486, 47,487 (La. App. 2 Cir. 9/26/12), 106 So.3d 600, 602-03 (citations omitted), the second circuit noted:

The test applied by the reviewing court in determining the' excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial court is not required to list every aggravating or 'mitigating circumstance so long as the record reflects that it adequately considered the guidelines of the article. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense, and the likelihood of rehabilitation. There is no requirement that specific matters be given any particular weight at sentencing.
Second, a sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice.

hJn reviewing the trial court’s sentencing discretion, an appellate court should consider; “1. The nature of the crime, 2. The nature and background of the offender, and 3. The sentence imposed for similar crimes by the same court and other courts.” State v. Whatley, 06-316 (La.App. 3 Cir. 11/2/06), 943 So.2d 601, 605, writ denied, 06-2826 (La. 8/31/07), 962 So.2d 424.

At the sentencing hearing, the trial court noted it had reviewed the presen-tence investigation report and letters sent to the trial court on behalf of the family of the victim and Defendant. The trial court heard testimony from the victim’s parents regarding the loss of their only child and from the victim’s uncle and grandparents. The trial court heard testimony given on Defendant’s behalf by his supervising sergeant with the Louisiana National Guard. Defendant’s wife also testified, stating that Defendant was the sole support of her and their three children. She also advised the trial court that she was pregnant with their fourth child at the time of the sentencing hearing. Defendant’s older brother, Ryan Toups, spoke about Defendant’s upbringing in a broken home and the difficulties Defendant faced as he grew up. Ryan also spoke of Defendant’s dedication to the church and how much Defendant helped with the needs of his' family and friends.

Following arguments by defense counsel and the State, the trial court stated for the record:

Mr. Toups, in mitigation, I know that you. are a—-technically, a first felony offender at this time. Your state of mind, you had just seen a stabbing. The victim hit your brother. You did. show remorse, and you quit drinking.
But in aggravation, once you stabbed him the one time in the heart, you offered no assistance to assist him and allowed him to wander off and die in the dirt.
li7I feel a appropriate sentence would be, and I will issue a sentence of two (2) years hard labor. You will be given credit for any time that you’ve served on this charge. You have' to pay restitution of $6,000 to the victim for part of their expensed The reason ! reduced it somewhat was because of the fact that you did. not initiate the violence that occurred that night.

Here, the trial court had the information provided by the presentenee investigation report. The trial court noted that Defendant was a first-time felony offender. The trial court also noted that he failed to report the stabbing, when he could have possibly helped the victim. Finally, the trial court had the benefit of Defendant’s background information given by his family at the sentencing hearing.

In Rogers, 966 So.2d 1212, the defendant was convicted of negligent homicide. The defendant was driving a friend and her young son home one evening at a speed of ninety miles per hour when he lost control of the vehicle and struck a tree. The friend burned to death in the vehicle. The defendant and the victim’s son were not seriously injured. The defendant hitchhiked with the boy and left him on his grandparents’ front porch. The defendant did not report the accident. Although he was additionally charged with hit-and-run driving, that charge was dismissed when he pled guilty to negligent homicide. He received three- and-a-half years imprisonment at hard labor. On appeal, the defendant claimed the sentence was excessive for the reason he had no prior criminal history and was qnly nineteen at the time of the accident. Citing State v. Beverly, 03-1348, p. 2 (La.App. 3 Cir. 3/3/04), 867 So.2d 107, 110 (footnotes omitted), this court noted in Rogers, 966 So.2d at 1214, that:

A trial court must look at the particular circumstances of the case and the defendant’s background in order to impose a sentence that is suited for him. On review, the issue is not whether another sentence woqld have been more appropriate; rather, it is.,whether the trial court abused its discretion.

|1sThis court found the defendant’s sentence appropriate and noted the following cases in comparison:

In State v. Hughes, 03-420 (La.App. 3 Cir. 12/31/03), 865 So.2d 853, writ denied, 04-663 (La. 9/24/04), 882 So.2d 1165, the maximum sentence of five years imposed on a conviction for negligent homicide was found not to be excessive even though Hughes was a first time felony offender and the mother of four children. In that case, Hughes attempted to commit suicide by driving at a high rate of speed into the path of an oncoming pick-up truck. The driver of the pick-up was killed. This court stated:
The trial court cited the applicable factors set forth in La.Code Crim.P. art. 894.1, noted Defendant’s lack of a criminal record and letters of support in her favor; but, concluded Defendant’s “wanton and reckless disregard for the lives and safety of others ... dictates a sentence that fits the nature of this offense.” The trial court did not abuse its discretion in sentencing this Defendant to the five-year maximum term of imprisonment.
Id. at 860.
In State v. Gregrich, 99-178 (La.App. 3 Cir. 10/13/99), 745 So.2d 694, this court affirmed a sentence of three years imposed on a conviction for negligent homicide. Gregrich, who was legally intoxicated at the time, drove his car left of center and hit an oncoming car head on, killing the driver. In State v. Clark, 529 So.2d 1353 (La.App. 5 Cir.1988), the fifth circuit affirmed a three-year sentence imposed on a conviction for negligent homicide. In that case, Clark was also determined to be intoxicated at the time and drove through a stop sign, striking the victim’s vehicle. The victim died as a result of the accident. Clark had previous convictions for driving while intoxicated.

Rogers, 966 So.2d at 1215.

Finally, in Pope, 106 So.3d 600, the defendant went to his estranged wife’s home where he argued with her for losing a credit card. Giving up on the argument, the defendant went out to his vehicle to leave. The wife followed him out and began beating his vehicle with a toy lawn mower. As he attempted to get into the vehicle, she grabbed him and a gun he was carrying discharged and' shot |inher in the head, killing her. The second circuit did not find the maximum sentence of five years to be excessive, stating:

Here, the trial court adequately considered the criteria set forth in La. C. Cr. P. art. 894.1, and neither sentence was excessive. First, the record reflects that' during Pope’s sentencing hearing, the trial court stated its consideration of the factors enumerated within La. C. Cr. P. art. 894.1. Specifically, as to the negligent homicide conviction, the trial court noted that it had read letters from both the defendant’s family and from the victim’s family. Further, the court noted that the crime involved the use of a firearm. Finally, the trial court stated that any lesser sentence than that given to Pope would deprecate the seriousness of the offense which Pope committed. As to the felony theft, this crime was committed while Pope was out on bond. Considering the seriousness of the convictions and Pope’s callous disregard for the law while on bond, the trial court’s sentences do not reflect a needless infliction of pain and do not shock the sense of justice.

Id. at 603.

In the current case, considering the nature of the offense, the circumstances surrounding the stabbing, and the comparison of similarly situated defendants, we cannot say that the trial court abused its vast discretion when it sentenced Defendant to two years imprisonment at hard labor, less than one half of the potential term of imprisonment. The sentence does not shock this court’s sense of justice, and thus, it will be affirmed.

DECREE

Defendant’s conviction and sentence are affirmed. We direct the trial court to inform Defendant of the provisions of La. Code Crim.P. art. 930.8 by sending written notice to him within ten days of the rendition of this opinion and to file written proof in the record that the Defendant received the notice.

AFFIRMED WITH INSTRUCTIONS.

      . In the interview, although Defendant admit- . ted that he was downtown the night of the stabbing, he initially denied that an incident occurred in front of the parking garage. Defendant said he was scared and did not want to say anything to hurt himself or to cause him to lose his family. He then mentioned having lost a brother in a drunk-driving accident.

      . Although Defendant later testified that he did not know his interview was being videotaped, the defense did not object to it being shown to the jury at trial.

      . Before questioning him about this matter, the State asked Mr. Landry why he was dressed in orange. He explained that he was currently incarcerated as a result of his being convicted of multiple burglaries and batteries :in three parishes. Mr. Landry admitted that he was nervous when first contacted by the police about this incident because he was on probation at the time and knew that he was not supposed .to be going into bars..:


source: Caselaw Access Project

author: SAUNDERS, Judge.

license: Public Domain

text:
    GBB PROPERTIES TWO, LLC and DBR Properties, LLC v. STIRLING PROPERTIES, LLC, Ambassador Infrastructure, LLC, Four Magnolias, LLC, and Ambassador Town Center JV, LLC
    17-384
    Court of Appeal of Louisiana, Third Circuit.
    7/5/2017

      Brent B. Barriere, Skylar Rosenbloom, Rebecca Sha, Fishman Haygood, L.L.P., 201 St. Charles Aye,' Suite 4600, New Orleans, ' LA 70170-4600,' .(604) 686-5252, COUNSEL .FOR DEFENDANT/RESPONDENT: Stirling Properties, LLC, Ambassador Town Center JV, LLC, Ambassador Infrastructure, LLC
    , Rickey W. Miniex, Clyde R. Simien, Ka-trena A. Porter, Simien and .Miniex, APLC, 104 Rue Iberville,. Lafayette, LA 70508, (337) 269-0222, COUNSEL FOR DEFENDANT RESPONDENT: Stirling Properties, LLC, Ambassador Infrastructure, LLC, Ambassador Town Center JV, LLC
    Patrick S. McGoey, Andrea V. Timpa, Ellie T. Schilling, Jacob K.' Weixler, Schonekas, Evans, McGoey & McEachin, LLC, 909 Poydras Street, Suite 1600, New Orleans, LA 70112, (504) 680-6050, COUNSEL FOR PLAINTIFF/APPLICANT: DBR Properties, LLC, GBB Properties Two, LLC
    Court composed of John D. Saunders, Elizabeth A. Pickett, and Shannon J. Gremillion, Judges.
   SAUNDERS, Judge.

11 This case concerns the construction of various infrastructure improvements in a commercial real estate development known as,“Ambassador Town Center” on a tract of land in Lafayette (the property), a. portion of which is owned by the plaintiff-in-reconvention, Ambassador Town Center JV, LLC (Town Center). The remainder of the property is owed by Relators (GBB Properties Two, LLC and DBR Properties, LLC). In 2014, Town Center and Re-lators planned to construct a pond on the property for drainage and storm water management purposes (pond). Initially, the parties agreed they would maintain the pond jointly and share expenses pró-rata and negotiated a written agreement that the reflected same titled “Pond Maintenance and Drainage Servitude Agreement” (PMDSA). This agreement was never signed, however, because the parties entered into discussions with the Parish of Lafayette to have the pond dedicated to the Lafayette Consolidated Government (LOG) and for LOG to maintain the pond. Consequently, the parties then entered into a Drainage Servitude Agreement (DSA) on December 19, 2014, which contained the same terms as the PMDSA, but with all references' to maintenance removed. It is not disputed that the DSA is the only written agreement between the parties and that it is silent regarding pond maintenance, but explicitly states that it “contains the complete understanding and agreement of the parties hereto with respect to all matters referred to herein, and all prior representations, negotiations, and understandings are superseded hereby.” After learning that LCG would not accept the dedication, Town Center requested that Relators jointly maintain the pond and share expenses as originally agreed upon, which Relators refused to do.

Relators then filed the present action against Town Center, among other defendants. Town Center, in turn, filed its re-conventional demand, seeking to | aenforce, under various theories, the original oral agreement. In response, Relators filed their peremptory exception of no cause of action, alleging the DSA superseded any previous oral agreements between the parties. Although both parties attached documents to their pleadings, no exhibits were formally introduced into evidence at the hearing on the exception, at the close of which the trial court took the matter under advisement.

On February 24, 2017, the trial court issued a minute entry, denying Relators’ exception:

Now, having considered the memoran-da, the applicable law, and the evidence admitted at the hearing, (which includes, but is not limited to the communications between the parties, and all attached exhibits such as the 12/9/14 e-mail from Mr. Becker concerning the “Pond” (See Exhibit 2) at issue, the Court finds as follows:
The Court finds that Town Center JV has stated a cause of action upon which relief can be granted. The evidence indicates that there was a meeting of minds, such that maintenance of the “Pond” became an asset which benefits all of the property owners.
As such, all parties are responsible for, and shall jointly share in the expenses related to .the Pond[’]s maintenance, notwithstanding, that the city, Lafayette Consolidated Government failed to execute a Notice of Acceptance of Perpetual Maintenance Agreement.
IT IS HEREBY ORDERED that [Relators]’ Peremptory Exception of No Cause of Action is Denied.

Thereafter, on March 27, 2017, the trial court signed a written judgment, likewise stating:

Having considered the memoranda, the applicable law, and the evidence admitted at the hearing (which includes, but is not limited to, the communications between the parties and all attached exhibits such as the 12/9/14 e-mail from Mr. Becker concerning the “Pond” (See Exhibit 2) at issue) and for the reasons set forth in the Court’s minute entry-dated February 24,2017,
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that [Rela-tors’] Peremptory Exception of No Cause of Action is DENIED.

| ¡¡Relators now seek review of the trial court’s judgment, particularly as to its “holding” on the merits.

SUPERVISORY RELIEF

“The proper procedural vehicle to contest an interlocutory judgment that does not cause irreparable harm is an application for supervisory writs. See La.C.C.P. arts. 2087 and 2201.” Brown v. Sanders, 06-1171, p. 2 (La.App. 1 Cir. 3/23/07), 960 So.2d 931, 933. But see La. Code Civ.P. art. 2083, comment (b), “Irreparable injury continues to be an important (but not exclusive) ingredient in an application for supervisory writs.” (Citation omitted.)

ON THE MERITS

A peremptory exception of no cause of action questions whether the law extends a remedy to anyone under the factual allegations of the petition. Everything on Wheels Subaru, Inc. v. Subaru S., Inc., 616 So.2d 1234 (La.1993). “Every reasonable interpretation must be accorded the language of the petition in favor of maintaining its sufficiency and affording the plaintiff the opportunity of presenting evidence at trial.” Indus. Cos., Inc. v. Durbin, 02-665 (La. 1/28/03), 837 So.2d 1207, 1213. Generally, “[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.” La.Code Civ.P. art. 931. However, a jurisprudentially recognized exception to this rule allows the court to consider evidence that is admitted without objection to enlarge the pleadings. Maw Enters., L.L.C. v. City of Marksville, 14-90 (La. 9/3/14), 149 So.3d 210.

It is well settled that the trial court’s “oral or written reasons for judgment form no part of the judgment, and that appellate courts review judgments, not reasons for judgment.” Bellard v. Am. Cent. Ins. Co., 07-1335, p. 25 (La. 4/18/08), 980 So.2d 654, 671; La.Code Civ.P. art. 1918. “The written reasons for judgment 14are merely an explication of the Trial Court’s determinations. They do not alter, amend, or affect the final judgment being appealed .... ” State in the Interest of Mason, 356 So.2d 530 (La.App. 1 Cir. 1977).

Relators assert that the trial court erred in deciding the merits of the reconventional demand and holding that (1) there was a “meeting of the minds” regarding maintenance of the pond and (2) “all parties are responsible for, and shall jointly share in the expenses related to the Pond’s maintenance” when the matter before the trial court was only a peremptory exception of no cause of action. A hearing on an exception, Relators advance, is not the proper procedural tool to determine fact-based findings or to make a judgment on the merits; the trial court’s duty is not to determine whether plaintiff can prevail, but merely whether, on the face of the pleadings, plaintiff is legally entitled to relief. Citing Everything on Wheels, 616 So.2d 1234; Friel v. La. Citizens Prop. Ins. Corp., 11-1032 (La.App. 4 Cir. 2/8/12), 85 So.3d 180. Herein, however, Relators argue that the trial court essentially granted Town Center’s reconventional demand without a trial and without permitting Re-lators the opportunity to present any evidence in defense. Therefore, the trial court’s judgment, which expressly incorporated its reasons cited above, should be reversed, its rulings on the merits vacated, and this matter remanded for a full trial on the merits. In a footnote, Relators claim this court could grant this writ and, based on the pleadings, dismiss Town Center’s claims.

In opposition, Town Center argues Rela-tors incorrectly treat the trial court’s reasons and findings in the minute entry as a judgment, but reasons are not part of a judgment. Looking only to the words and relief granted in the trial court’s formal judgment, Town Center notes that the judgment just denies Relators’ | ^exception, 1.e., it does not grant the reconventional demand or rule on any evidentiary matters. Therefore, Relators’ contention that the trial court erred based upon the language in its reasons, which are absent from its formal judgment, should be rejected. Town Center further asserts the trial court did not err in considering extrinsic evidence to which Relators did not object, as the law is clear such evidence may be introduced in consideration of an exception of no cause of action where the other party does not object. Citing Maw Enters., 149 So.3d 210; Stewart v. Stewart, 15-153 (La. App. 3 Cir. 6/3/15), 166 So.3d 448. Documents central to a petition and referenced therein, like the ones referred to by the trial court, may also be considered.

Relators, in reply, assert that, despite its title, the minute entry is an interlocutory judgment that is expressly incorporated into the formal judgment. They also distinguish Barlow as it involved a final judgment, not an interlocutory one. As to the trial court’s consideration of extrinsic evidence, Relators first assert they have not assigned error on this point. Second, they do not take issue with the trial court’s review of the documents, rather their position is that the trial court could not and should not have reached the conclusions on the merits reflected in' the minute entry.

The primary problem with Rela-tors’ argument is that it fails to take into account the well-settled rule that the trial court’s oral or written reasons for judgment form no part of the judgment, and that appellate courts review judgments, not reasons for judgment. Even in the minute entry, all language preceding the “decree” is merely explanatory and does not form part of the judgment subject to review by this court. Although the trial court does expressly incorporate those reasons into its formal judgment, they are still merely reasons. Therefore, although the trial court did arguably exceed its authority in discussing |Bthe merits of the claim, its judgment only speaks to the exception, which was properly before the court. Moreover, it logically follows that, if the trial court found Town Center could succeed on its claim, its pleadings as expanded by the un-objected to documents should be more than sufficient to withstand an exception of no cause of action. Accordingly, we deny this writ, as we find no error in the trial court’s ruling.

WRIT DENIED.

      . Town Center alleged five claims: (1) breach of oral contract, (2) declaratory relief, (3) intentional and negligent misrepresentation, (4) detrimental reliance, and (5) an alternative claim of unjust enrichment.

      . Citing Barlow v. Barlow, 13-1092, p. 4 (La. App. 3 Cir. 10/23/13), 161 So.3d 24, 28 (holding that document titled “Reasons for Judgment” was not a judgment in absence of formal decretal language, such as "ORDERED, ADJUDGED AND DECREED”).


author: THERIOT, J.

text:
    Roland LECOMPTE and Dinah LeCompte v. CONTINENTAL CASUALTY CO. and Michael Isabell, M.D.
    NO. 2016 CA 1359
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: JULY 12, 2017
    Rehearing Denied August 8, 2017

      J. E. Cullens, Jr., Edward J. Walters, Jr., Darrel J. Papillion, David Abboud Thomas, Jennifer W. Moroux, Baton Rouge, Louisiana and Sean E, Rastanis, New Orleans, Louisiana, Counsel for Appellant/Intervenors Terrebonne Parish School Board and Midwest Employer’s Casualty Company
    Nadia de la Houssaye, Donald. W. Washington, Lafayette, Louisiana, Counsel for Defendant/Appellee The Louisiana Patient’s Compensation Fund
    BEFORE: HIGGINBOTHAM, THERIOT, AND CHUTZ, JJ.
   THERIOT, J.

I ?The intervenors/appellants, Terrebonne Parish School Board (TPSB) and Midwest Employer’s Casualty Company (Midwest), appeal the Thirty-second Judicial District Court’s ruling sustaining an exception of no right of action in favor- of the defendant/appellee, Louisiana Patient’s Compensation Fund (PCF). For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On July 24, 2008, Roland LeCompte, an employee of TPSB, sustained injuries during'the course and scope of his employment when he fell eight feet from a ladder. He was immediately brought to the emergency room (ER) of Terrebonne General Medical Center (TGMC) for the injuries sustained to his hip, knee,-and elbow. Mr. LeCompte was treated by Dr. Michael Isabell , who ordered x-rays for his knee and hip, but not for his elbow. Mr. LeCompte’s wound' to his elbow was sutured without x-rays being taken.

Mr. LeCompte was discharged from TGMC the same day, but was called back to the ER when the x-rays taken of his hip indicated a possible fracture. On this second visit to the ER, x-rays were taken of his elbow. Mr. LeCompte was readmitted to TGMC for treatment of his hip and elbow.

The otherwise minor laceration to Mr. LeCompte’s elbow became severely infected due to the foreign material being left inside it. The infected tissue contained what is commonly known as “flesh-eating bacteria,” and the infection was nearly fatal for Mr. LeCompte. Although the infection was ultimately treated successfully, Mr. LeCompte developed another serious condition from the infection, called chronic inflammatory demyelinating polyneuro-pathy, or CIDP. Mr. LeCompte had to receive ^ongoing treatment for this debilitating condition. Mr. LeCompte was approximately 49 years old at the time of his accident, and it is estimated that he will continue to require treatment for CIDP for the rest of his life.

On February 2, 2012, a medical review panel (MRP) concluded that Dr. Isabell failed to comply with the appropriate standard of care as charged in the complaint against him, but that it was not a factor in the resultant damages. The MRP’s reasons state that Dr. Isabell should have ordered an x-ray of Mr. LeCompte’s injured elbow, but that his failure to do so did not change the fact that the wound was going to be infected. On April 5, 2012, Mr. LeCompte and his wife filed a petition for damages against Dr. Isabelle and his liability insurer, Continental Casualty Company, alleging that Dr. Isabell committed medical malpractice for the aforementioned reasons. Mr. LeCompte claimed in the petition that at the time of its filing, he had incurred $268,000.00 in expenses related to Dr. Isabell’s malpractice and would continue to incur expenses.

On May 1, 2012, TPSB and Midwest (hereafter “intervenors”) filed a petition for intervention in the malpractice lawsuit. They allege that Mr. LeCompte suffered the injury during the course and scope of his employment with TPSB, and thus TPSB had been paying his medical expenses pursuant to the Louisiana Workers’ Compensation Law. Midwest claimed in the petition for intervention that it provided workers’ compensation insurance to TPSB for amounts in excess of $300,000.00. The intervenors claimed they were entitled to reimbursement for sums they had paid to or on behalf of Mr. Le-Compte in workers’ compensation benefits, which could arise from an award of damages to Mr. and Mrs. LeCompte through a trial or compromise in their medical malpractice action.

|40n April 28, 2015, Mr. and Mrs. Le-Compte filed a motion to dismiss their claims against Dr. Isabell and Continental with prejudice, and the accompanying order was signed by the trial court the next day. Also, on April 28, 2015, the interve-nors filed an amending and supplemental petition for intervention, claiming that they were legally subrogated to the rights of Mr. LeCompte and were entitled to recover damages against Dr. Isabell and Continental up to the amount of benefits or compensation paid and to be paid on behalf of Mr. LeCompte and his dependents.

On August 24, 2015, the intervenors filed a petition to approve the settlement of the medical malpractice claims and admit Dr. Isabell’s liability with a reservation of rights for excess damages against the PCF. The intervenors claimed in the petition that Dr. Isabell had paid $100,000.00 to settle their claims against him, and by his payment admitted his medical malpractice. On September 17, 2015, the trial court approved the settlement thereby dismissing Dr. Isabell and Continental with prejudice; however, the trial court named Dr. Isabell as a nominal defendant only to the extent necessary for the intervenors to recover excess damages against the PCF.

On May 12, 2016, the PCF filed exceptions of no right of action and no cause of action, as well as a motion for summary judgment in the alternative. In its supporting memorandum, the PCF argued that the intervenors could not continue the litigation after Mr. LeCompte, as the plaintiff, dismissed the underlying claim with prejudice. After a hearing, the trial court granted the PCF’s exception of no right of action and declared the exception of no cause of action, motion for summary judgment to be moot, dismissing the PCF’s matter with prejudice. In its oral reasons for judgment, the trial court stated that under the Louisiana Medical Malpractice | sAct (LMMA), only natural persons have a right to pursue excess damages from the PCF, and since the intervenors are juridical persons, they have no such right of action. It is this judgment that the interve-nors appeal.

ASSIGNMENTS OF ERROR

The intervenors allege four assignments of error:

1. The trial court’s ruling that the in-tervenors are not “claimants” as defined by the LMMA is legal error.
2. The trial court committed legal error by failing to recognize that the intervenors’ independent cause of action pursuant to Louisiana Workers’ Compensation Law against third persons like Dr. Isabell was not lost because Mr. LeCompte unilaterally dismissed his personal claims.
3. The trial court committed legal error by allowing the PCF to have standing to raise any exceptions after the intervenors’ settlement with Dr. Isabell was approved pursuant to the LMMA.
4. The trial court committed legal error by not ruling that the PCF judicially admitted that the intervenors’ claims were subject to the LMMA.

STANDARD OF REVIEW

The standard of review of a ruling on an exception of no right of action, which presents a question of law, is de novo. See Lakewood Prop. Owners’ Ass’n v. Smith, 2014-1376 (La. App. 4 Cir. 12/23/15), 183 So.3d 780, 785, writ denied, 2016-0138 (La. 2/26/16), 187 So.3d 469. The function of an exception of no right of action is a determination of whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the petition. See La. C.C.P. art. 927. The exception of no right of action serves to question whether the plaintiff in the particular case is a member of the class of persons that has a legal interest in the subject matter of the litigation. Badeaux v. Southwest Computer Bureau, Inc., 2005-0612 (La. 3/17/06), 929 So.2d 1211, 1217.

[^DISCUSSION

A third person having an interest therein may intervene in a pending action to enforce a right related to or connected with the object of the pending action against one or more of the parties by joining with the plaintiff in demanding the same or similar relief against the defendant. La.C.C.P. art. 1091(1). This is precisely what the intervenors had set out to do when they filed their petition for intervention and adopted the language of Mr. LeCompte’s original petition for damages.

A “claimant” under the LMMA is defined as “a patient or representative or any person... seeking or who has sought recovery of damages or future medical care and related benefits under this Part. All persons claiming to have sustained damages as a result of injuries to or death of any one patient are considered a single claimant.” La. R.S. 40:1299.41. Although intervenors áre not directly addressed in the LMMA, we agree with the intervenors that they fit the definition of a “claimant.”

The right to recover future medical care and related benefits is included in La. R.S. 40:1299.43(C), as follows:

Once a judgment is entered in favor- of a patient who is found to be- in need of future medical care and related benefits that will be incurred after the date of the response to the special interrogatory by the jury or the court’s finding or a settlement is reached between a patient and the patient’s compensation fund in which the provision of medical care and related benefits that will be incurred after the date of settlement is agreed upon and continuing as long as medical or surgical attention is reasonably necessary, the patient may make a claim to the patient’s compensation fund through the board for all future medical care and related benefits directly or indirectly made necessary by the health care provider’s malpractice unless the patient refuses to allow them to be furnished.

|7As the district court pointed out, a “patient” as defined by the LMMA is a natural person. See La. R.S. 40;1299.41(A)(15). The statute does not impute the rights of La. R.S. 40:1299.43(C) to a “claimant.” Also, since a judgment was never entered in Mr. LeCompte’s favor for future medical care and related benefits, nor was a settlement reached between Mr. LeCompte and the PCF, the right imputed under this statute was never triggered. Furthermore, in rendition of such a judgment, the finder of fact must answer the question of whether the plaintiff is warranted an award of -future medical expenses before extra damages from the PCF can be pursued. See Hanks v. Seale, 2004-1485 (La. 6/17/05), 904 So.2d 662, 672. Louisiana Revised Statutes 40:1299.43(C) further states that the patient “may” make a claim to the'PCF, suggesting ‘ that the right of action originates with the patient and may only be exercised by the patient.

The Louisiana Supreme Court stated in Hanks, 904 So.2d at 670, that the legislature amended the LMMA to afford “malpractice victims recovery for future medical care and related benefits.” (Emphasis added.) The word “victim” is also frequently used in Kelty v. Brumfield, 633 So.2d 1210 (La. 1994), in discussing the future medical care provisions of the LMMA:

The [LMMA],.. must be strictly construed because [it] grant[s] immunities or advantages to special classes in derogation of the general rights available to tort victims.... Moreover, because the cap on damages imposed by.each act harshly impacts the most severely injured victims, mitigating benefits or advantages provided for them by the laws must be liberally construed, and any disparity of treatment between such claimants... will be given careful scrutiny.... (Emphasis added.)

Id. at 1216.

We note that the word “claimants” is used in the above excerpt; however, as it is qualified as “such claimants,” referring back to “victims," it prefers only to one specific subset of claimants. According to Black’s Law Dictionary, 6th Ed., a “victim” is a “person who is the object of a crime or tort.” While the definition further states that a person'who is a victim “may be individual, public Or private corporation, government, partnership, or unincorporated association,” under the circumstances of the instant case, the only person who can be the object of the tort of medical malpractice is the patient. Therefore, when the legislature intended for the LMMA to extend special rights of recovery to malpractice “victims,” the intent was to extend those rights to “patients.” Under the LMMA’s clear definition of “patient,” a person who has a right to claim future medical expenses from the PCF must be a natural person.

With respect to the PCF’s standing to raise the exception of no right of action in the instant case, we must first determine the PCF’s party status at the time the exception was filed. The Louisiana Supreme Court has stated that the LMMA neither contemplates the PCF as a party defendant, nor gives the PCF status as a co-obligor or insurer of the health care provider. Rather, the PCF is a statutory intervenor who has an interest in the proceedings between the claimant and the health care provider because any damages in excess of $100,000.00 are payable by the PCF. Khammash v. Clark, 2013-1564 (La. 5/7/14), 145 So.3d 246, 254. Therefore, the PCF in the instant casé became an inter-venor in its own right once the intervenors settled with Dr, Isabell and Continental and then pursued damages in excess of the $100,000.00. See Id.

Louisiana Revised Statutes 40:1299.44(C)(5) makes it clear that when a malpractice claimant settles with a qualified health care provider or his insurer for $100,000.00, that settlement triggers the PCF’s liability for |nexcess damages under La. R.S. 40:1299.42(B)(3). St. Romain v. Luker, 2000-1366 (La. App. 1 Cir. 11/9/01), 804 So.2d 85, 87, writ denied, 2002-0336 (La. 4/19/02), 813 So.2d 1083. The settlement in the instant case constituted a statutory admission of liability on the part of Dr. Isabell, one that the PCF was precluded from contesting.' However, the PCF is not attempting to contest the liability of the health care provider, but rather the right of the intervenors to seek excess damages from the PCF. We can find no jurisprudence that disallows the PCF from raising exceptions regarding anything other than the liability of the health care provider. We therefore find that the PCF has standing to raise the exception of no right of action in the instant case.

As to the contention that the PCF judicially admitted its liability and obligation to’pay excess damages, we can find no such admission in the record. A judicial confession or admission is an express acknowledgement of an adverse fact made by a party in a judicial proceeding and constitutes full proof against the party who made it. See La. C.C. art. 1853; Cordon v. Parish Glass of St. Tammany, Inc., 2015-1078 (La. App. 1 Cir. 4/15/16), 195 So.3d 109, 112, writ denied, 2016-0896 (La. 9/6/16), 205 So.3d 918. An admission made in an answer also falls within the ambit of La. C.C. art. 1853. Norwel Equipment Co. Ltd. Partnership v. Hardy, 2000-00934 (La. App. 3 Cir. 12/6/00), 773 So.2d 905, 907-908. No such express acknowledgement by the PCF exists in the record. While the PCF acknowledged the liability of Dr. Isabell under the LMMA, the PCF never expressly acknowledged its own liability to the intervenors.

DECREE

The granting by the Thirty-Second Judicial District Court of the exception of no right of action filed by the -appellee, the Louisiana Patient’s | ^Compensation Fund, is affirmed, and the petition of the appellants, Terrebonne Parish School Board and Midwest Employer’s Casualty Company, is dismissed with prejudice. All costs of this appeal are assessed to the appellants, Ter-rebonne Parish School Board,

AFFIRMED.

Chutz, J concur

Higginbotham, J. concurs.

      . Dr. Isabell’s name is spelled both as "Isa-bell" and "Isabelle” throughout the record. For consistency, we will use the former spelling throughout this opinion.

      . The record does not give a clear indication as to why Mr. and Mrs. LeCompte filed this motion.

      . The LMMA was re-designated as La. R.S. 40:1231 to 1231.10 by House Concurrent Resolution No. 84 of the 2015 Regular Session, with an effective date of June 2, 2015. Here .and throughout we refer to the prior version of the LMMA, which was in effect throughout the time period in question.

      . Also, Kelty predates the addition of the definition of "claimant” to the LMMA by 2008 La. Acts No, 558, § 1.


author: COOKS, Judge.

text:
    Randel BROWN v. EAST SIDE WATER SYSTEM, INC.
    16-882
    Court of Appeal of Louisiana, Third Circuit.
    07/12/2017
    Jonathan C. Vidrine, P. 0. Drawer 1019, Ville Platte, LA 70586, Telephone: (337) 363-2772, COUNSEL FOR: Plaintiffs/Ap-pellees—Randel Brown, et al.

      Jacob B. Fusilier, Fusilier & Associates, LLC, P.O. Box 528, Ville Platte, LA 70586, Telephone: (837) 363-6661, COUNSEL FOR: Defendant/Appellant—East Side Water System, Inc.
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and Elizabeth A. Pickett, Judges.
   COOKS, Judge.

hThe defendant corporation appeals the judgment of the trial court in favor of numerous members/shareholders of the corporation that “canceled and invalidated” an action by its board of directors to- increase the quorum required for elections from ten percent to fifty percent. The trial court also set dates for new elections to be held using the previous ten percent quo•rum.

FACTS AND PROCEDURAL HISTORY

The East Side Water System, Inc. (hereafter East Side), a non-profit corporation located in Evangeline Parish, Louisiana, was established in 1969. The articles of incorporation state in Article V that “[t]he corporate powers and management of this corporation shall be vested in, and exercised by, a board of directors of seven (7) members, to be elected annually...” The articles go on to state that “[a]t all elections for directors, as well as at the other meetings, of the members, each member shall be entitled to one vote, and a majority of all members shall decide all elections or any question coming before any such meeting.”

In accordance with the provision that “a majority of all members shall decide all elections,” it became practice that a quorum of fifty percent of the membership was required for a valid election. Article V also provided that a “majority of the directors shall constitute a quorum; and a quorum shall be necessary to consider any questions that may come before any meeting of the directors.” It was argued by the plaintiffs in this matter that the requirement of a majority to constitute a quorum was limited to the board of directors and was not required by the articles of incorporation for elections of the board of directors by the general membership. This is not correct. Although Article V did not use the word “quorum” when discussing the requirements for elections by the general membership, its wording makes clear that “a majority of all members shall decide all elections or any question coming before any such meeting.” Thus, in effect the particles of incorporation required a majority of the members for a quorum for elections or to transact business.

The trial court noted that “in the first years” of the corporation’s existence, there were less than 100 members, and it was “reasonably easy” to attain a fifty percent attendance of members to vote in the annual election of the board of directors. However, this became more difficult as the size of the corporation increased, and in 2004, the board of directors amended the bylaws of the corporation to make a quorum for a valid election of the board of directors ten percent of the membership of the corporation. The trial court noted the justification for this move was that with the significant growth of the membership, “a 10% quorum and voting requirement for a valid election was more feasible, appropriate and in the best interest of the corporation and its membership.”

Over ten years later, at a March 1.1, 2015 board meeting, the board of directors voted to raise the election quorum threshold from ten percent to fifty percent of the membership. It justified this move by arguing it was simply bringing the bylaws back into compliance with the articles of incorporation. Shortly thereafter, on May 14, 2015, a single shareholder, Randel Brown, filed a declaratory judgment suit seeking to overturn the board of directors’ decision to raise the election quorum to fifty percent and seeking reinstatement of the ten percent quorum. Plaintiff also requested the court order defendant to produce for copying and inspection certain corporate documents and financial information and further alleged there was a breach of fiduciary duties by the board of directors as to certain financial and operational expenditures and expenses.

Exceptions were filed and granted by the trial court because (1) the plaintiff did not have enough shareholders to meet the statutory requirements for a shareholder suit; and (2) an action for declaratory judgment was not the proper procedural device in this matter. The plaintiff amended his suit, adding sufficient |,.¡shareholders and changing the procedural device from an action seeking declaratory judgment to a writ of mandamus.

Trial on the merits was then held on June 17, 2016, The trial court denied East Side’s Exception of No Cause of Action alleging the writ of mandamus filed by Plaintiffs was not the appropriate procedural device for the relief sought. The trial court noted that Louisiana is a fact pleading state, and the petition sufficiently informed East Side of the nature of the cause of action asserted and alleged facts sufficient to allow East Side to prepare a defense. Several directors and shareholders were called to testify at the hearing. At the close of trial, the matter was taken under advisement by the trial court. A judgment was signed on July 15, 2016 (following the trial court’s written reasons for judgment rendered on June 30, 2016). The judgment dismissed Plaintiffs’ claims stemming from an alleged breach of fiduciary duty as to certain financial and operational expenditures by the board of directors. The trial court granted Plaintiffs’ request for access to review and copy certain corporate information and documentation. Lastly, the trial court declared the action by the board on March 11, 2015 to increase the election quorum from ten percent to fifty percent be “canceled and invalidated.” The court also ordered the “previous 10% quorum and voting membership for a valid election be and is hereby re-instituted immediately herein.” The trial court then set a date for á “replacement” election for September 6, 2016 and for staggered elections thereafter.

East Side has appealed the portion of the judgment pertaining to the quorum requirement for elections, assigning the following assignments of error:

1. The Trial Court committed manifest error when it held that the corporation’s board of directors breached their fiduciary duty to the company by voting to return the quorum threshold to required 50% from 10% of the membership,
lt2. The Trial Court committed manifest error when it allowed cause of action to continue despite the fact that it was procedurally incorrect vehicle for the plaintiffs relief sought.

ANALYSIS

In its second assignment of error, East Side argues the Plaintiff used a procedurally incorrect vehicle for the relief sought and granted by the trial court. It maintains the relief sought should have been urged by a writ of quo warranto, not by a writ of mandamus, and the trial court “committed manifest error when it denied the Defendant’s Exception of Use Improper/No Cause of Action.” The trial court specifically addressed this argument at the hearing below, and concluded as follows:

... the Court finds that the factual pleading of the petition and the supplemental petition is enough to uh.,. to put before the Court those issues that it’s put before the Court whether it’s called a Writ-of Mandamus, whether it’s called a Summary Judgment act or whatever it is, therefore, the Court finds that it is ready to go.

As the trial court noted, Louisiana is a fact pleading state under the Louisiana Code of Civil Procedure. Springer v. Nannie O’Neal Apts., 13-570 (La.App. 3 Cir. 11/13/13), 125 So.3d 606. Louisiana Code of Civil Procedure Article 854 provides that “[n]o technical forms of pleading are required.” A plaintiffs petition is sufficient as long as it fairly .informs the defendant of the general nature of the cause of action and alleges facts sufficient to allow the defendant to prepare a defense. Washington v. Flenniken Constr. Co., 188 So.2d 486 (La.App. 3 Cir.1966). Accordingly, we find no merit in East Side’s contention that the trial court erred in denying its exception of no cause of action.

In its first assignment of error, East Side argued the Board’s March 11, 2015 action to amend the bylaws to increase the election quorum 'from ten percent to fifty percent -was a breach of its fiduciary duty and the trial court "manifestly erred Lin finding otherwise. Although we agree the trial court did not err in invalidating the Board’s March 11, 2015 action, we do so for different reasons.

We note, initially, that the record before us includes the articles of incorporation and a copy of the bylaws when they were amended in- 2004, changing the quorum requirement from 50% to 10%. We have no copy of any previous bylaws, and are unclear as to how they read prior-to “amendment’ by the board of directors in 2004. Following the amendment in 2004, the bylaws at Article VII, Section 4 .specifically read as follows: • •

At any meeting of the members of the corporation, ten percent (10%) of the members of the corporation shall constitute a quorum for the transaction of business. The voting powers of the members of this corporation shall be' equal, each member shall have one vote only and no voting by proxy shall be allowed.

Apparently, this amended bylaw was followed as the procedure for general elections for ten years, until at a March 11, 2015 board meeting, the board of directors voted to raise the election quorum threshold from ten percent to fifty percent of the membership and amended the bylaws to so reflect.

The trial court ruled this 2015 action by the board was invalid, specifically finding East Side failed to provide “a valid or even reasonable reason or explanation in their testimony as to any benefit whatsoever that would result or occur pursuant to their action.” The trial court went on to state the following in regards to the evidence presented at trial: .

The evidence presented at the hearing, along with the corporate records indicates in every election recently held (2013-2015), which includes the election/re-election of all the current board of directors, shows that it has been very close to failing and struggled to reach to reached [sic] the required 10% membership voting quorum necessary for a valid election (the 2014 election had the most voting members with almost 200 members voting—1,100 members @ 10% = 110 voters required), and further shows that these last several annual-elections would have also failed to attain this newly amended 50% membership voting (1,100 members @ 50% = 550 voters' for valid election); thereby raising the real issue and possibility of the membership/shareholders of this corporation ever being able to | (¡achieve a “valid election” as to the election and/or re-election of the corporation’s board of directors in all future elections.
Additionally, and most interesting to this court and this issue, is the evidence and testimony at the hearing shows that, pursuant [to] East Side’s articles of incorporation and by-laws, that if the next and future election(s) fail to secure the new mandatory 50% of the voting membership and therefore being invalid, then the current board of directors are authorized to appoint to the board of directors their choice to serve as board of director members until the next valid election. Therefore, the court finds, whether intentionally or unintentionally, this new mandatory 50% of the voting membership does thereby create the great possibility and probability of allowing the current board of directors to be appointed and/or re-appointed following each invalid election, thereby maintaining and allowing the present directors to continue to serve basically at the current board of director’s own pleasure, and thus creating at least the appearance of improprieties; and therefore said action and vote [is] definitely not in the best interest of the corporation and its membership as required by Louisiana law.

Supporting this finding of the trial court was the testimony of John Vidrine, a member of East Side’s Board of Directors and the secretary-treasurer, who testified as follows concerning his opposition to the board’s attempt to change the quorum requirements:

... First of all fifty percent I felt was not ... was not doable. We’ve never had fifty percent of the membership vote. Not only that, for over ten years it had been running at ten percent so I felt that the only reason that we wanted to change was to make sure our mem... our Board members could not be replaced I felt was unfair.

John Todd Deville, who was a Board of Director’s member for thirteen years and the President of the Board for six years, testified at the time of trial there were approximately 1,050 members of the corporation. Mr. Deville stated in his testimony he could not remember any election during his time where 500 members showed, up to vote. This further buttressed the Plaintiffs’ point that a fifty percent quorum was not feasible to hold valid elections.

East Side’s primary argument to ovei’-turn the trial court’s judgment is that the trial court committed manifest error in finding the board of directors breached pits fiduciary duty because it contends all the board did was amend the bylaws back into compliance with the articles of incorporation. East Side notes that if the bylaws of a corporation are in conflict with the articles of incorporation, the articles of incorporation take precedence.

The testimony establishes the articles of incorporation have never been amended since adopted, except once to allow for members to vote by proxy. Passage and amendment of the bylaws cannot serve to amend the articles of incorporation. Louisiana Revised Statutes 12:237, sets forth the methods by which a corporation can amend its articles of incorporation:

A. A corporation may amend its articles in compliance with any method stipulated in its articles.
B. If the articles do not stipulate a method of amendment, or do not stipulate in detail the procedure for amendment thereof, an amendment altering the articles may be adopted by two-thirds in interest of the voting members present, at any annual or special meeting of members the notice of which set forth the proposed amendment or a summary of the changes to be made thereby. For purposes of this Subsection, a majority of the members shall constitute a quorum and a quorum must be present at the meeting at which the amendment to the articles is to be considered, The notice of such meeting must be transmitted to the members not less than thirty days prior to the meeting.

The court in Lain v. Credit Bureau of Baton Rouge, Inc., 93-1166, p. 5 (La.App. 1 Cir. 4/8/94), 637 So.2d 1080, 1085, writ denied, 94-2010 (La. 11/4/94), 644 So.2d 1049, discussed La.R.S. 12:237, explaining as follows:

As Louisiana Revised Statute 12:237 states, the articles must provide the method or detailed procedure for amendment. As the statute plainly provides, the method or detailed procedure must be set forth in the articles and not, as defendant contends, in the by-laws or by more general provisions of the Louisiana Non-Profit Corporation Law.

A review of East Side’s articles of incorporation reveal there is no procedure set forth in the articles delineating the required method for amending the articles of incorporation. In the absence of such procedure, La.R.S. 12:237(B) provides the method to be used to amend the articles of incorporation. A review of that statute ^indicates amendment of the articles requires, after proper notice is sent to the members, a quorum of a majority of the members and a two-thirds vote to amend the articles by the members in attendance. The Board’s 2004 unilateral decision to amend the bylaws to set forth a quorum of ten percent in order to hold valid elections and transact business was contrary to the procedure set forth in La.R.S. 12:237(B). Thus, the 2004 Board vote to amend the bylaws did not serve to amend the articles of incorporation. Moreover, this bylaw amendment conflicted with the articles of incorporation.

We share the trial court’s concern that the Board’s 2015 amendment of the bylaws to the 50% quorum creates a “great possibility and probability of allowing the current board of directors to be appointed and/or re-appointed following each invalid election, thereby maintaining and allowing the present directors to continue to serve basically at the current board of director’s own pleasure.”

As set forth, the articles of incorporation have provided from the inception of the corporation that “[a]t all elections for directors, as well as at the other meetings, of the members, each member shall be entitled to one vote, and a majority of all members shall decide all elections or any question coming before any such meeting.” This clearly establishes a required quorum of 50 percent of all members for a valid election of the board members to take place.

Louisiana Revised Statutes 12:1—206(B), plainly sets forth the bylaws of a corporation “may contain any provision for managing the business and regulating the affairs of the corporation that is consistent with law or the articles of incorporation.” (Emphasis added.) Thus, “if there is any inconsistency between the bylaws and the articles, the articles control.” Wells v. Fandal, 13-620 (La.App. 5 Cir. 2/12/14), 136 So.3d 83, 88.

We are mindful that the fifty percent quorum requirement is an onerous burden, but the law in this instance provides the procedure that is required to |schange the quorum requirement when it is impractical or impossible to secure the required attendance of the members. In the absence of a more specific provision in the articles of incorporation addressing the subject, La.R.S. 12:231(3), in pertinent part, provides as follows:

A members’ meeting properly called on due notice, if notice is required, may be organized for the transaction of business whenever a quorum is present. Unless otherwise provided in this Chapter or in the articles or by-laws, the following rules shall apply:
(3) If a meeting cannot be organized for lack of a quorum, those present may, except as otherwise provided in this Chapter, adjourn the meeting.to. the time and place which they determine. Notice of the second meeting shall again be attempted pursuant to R.S. 12:230. However, in the case of any meeting called for the election of directors, those who attend the second of such adjourned meetings, although less than a quorum as fixed in Paragraph (1) of this Section, or in the articles or by-laws, shall nevertheless constitute a quorum for the purpose of electing directors. In the case of a second such meeting called after the lack of a quorum for a purpose other than or in addition to the election of directors, including amendment of the articles of incorporation or dissolution of the corporation, any number of members present shall constitute a quorum, notwithstanding any other provision of law to the contrary.

This statute allows the members, if unable to gain a quorum in the first called meeting,- to establish a date and time for a second meeting pursuant to La.R.S, 12:230 (which requires written notice of the second meeting to be given at least ten days and not more than sixty days prior to said meeting). At that second meeting, | inthose who attend that second meeting, even if less that the required 50% quorum as set forth in the articles of incorporation, shall nevertheless constitute a quorum for the purpose of electing directors'’ This statute provides a reasonable, legally permissible remedy for the membership to avoid potentially onerous quorum rules for the election of directors.

DECREE

We therefore must reverse' that portion of the trial court’s judgment fixing the quorum'at ten percent. We further declare the board members action on March 11, 2015 changing the quorum requirement from ten percent to fifty percent was contrary to and exceeded the authority granted the Board by the articles of incorporation. The articles of incorporation grant only the members of the corporation the authority to elect the board of directors and to change the voté requirement for accomplishing this end.

We affirm the portion of the trial court’s judgmént essentially recognizing that the articles of incorporation provides for voting by proxy by the members of the corporation. We amend the trial court’s judgment to provide the current board of directors shall give proper notice in accordance with La.R.S, 12:230 to the members of the corporation that the staggered election which was originally scheduled for the first Monday of April, 2016, namely for the board of directors members, Todd Deville, Steve Vidrine and John Vidrine, will be held on the first Tuesday of September, 2017, being September 5, 2017. We further order that the staggered election of the next two directors, those positions from the 2014 election, shall be held on the regular annual election date of the 1st Monday of April 2018 and continuing each year in the staggered terms. This court further orders that these staggered elections shall be held in accordance with the articles of | ^incorporation or in accordance with La. R.S. 12:230 and 12:231 in the event a quorum is not present at the first meeting.

AFFIRMED IN PART, REVERSED IN PART, AND AMENDED.

Pickett, J., concurs in the result.

      . La.R.S. 12:230 provides:
      Unless otherwise provided in -the articles or by-laws, and except as otherwise provided in this Chapter, the authorized person or persons calling a members’ meeting shall cause written notice of the time, place and purpose of the meeting to be given to all members entitled to vote at such meeting, at least ten days and not more than sixty days prior to the day fixed for the meeting. Notice of the annual meeting need not state the purpose thereof, except as otherwise provided in this Chapter if a specified action is to be taken at the meeting. If. such written notice is placed in the United States mail, postage prepaid, and addressed to a member at his last known address, notice shall be deemed to have been given him. Notice of any meeting may be waived in writing by any member at any time; the written waiver need not specify the purpose of or the business to be transacted at the meeting; and such notice shall be deemed to have been given to, or waived by, all members present or represented at any such meeting except any member who, at the beginning of the meeting, objects to the transaction of any ■business because the meeting is not lawfully called or convened, .Notice need not be given to any member with whom communication is ' made unlawful by any law of the United States of America, or by any rule, regulation, proclamation or executive order issued under any such law; any action or meeting falten or held without notice to any such member shall have the same force and effect as if notice had been given to him as otherwise required.

      . The use of La.R.S 12:230 and 12:231 to avoid the onerous fifty percent quorum requirement currently found in the articles of incorporation does not prevent the members of the corporation at the first meeting (with prior notice) or at any validly held subsequent meeting from amending the quorum requirement to provide á more’ feasible percentage.


author: JAMES F. MCKAY III, CHIEF JUDGE

text:
    Roger D. PHIPPS v. Cynthia Nelson SCHUPP and Roland Lawrence Cutrer, Jr.
    NO. 2017-CA-0067
    Court of Appeal of Louisiana, Fourth Circuit.
    JULY 19, 2017

      EVANTHEA P. PHIPPS, PHIPPS & PHIPPS, 541 Exposition Boulevard, New Orleans, Louisiana 70118, Counsel for Plaintif&Appellant
    MARSHALL A. HEVRON, LOUIS C. LACOUR, ADAMS AND REESE LLP, One Shell Square, Suite 4500, 701 Poydras Street, New Orleans, Louisiana 70139, Counsel for Defendant/Appellee
    (Court composed of Chief Judge James F. McKay III, Judge Edwin A. Lombard, Judge Daniel L. Dysart)
   JAMES F. MCKAY III, CHIEF JUDGE

11 This case has been going back and forth between the trial court and this Court and the Supreme Court for more than a decade. At its core, the matter involves the rights of a landlocked estate to a servitude of passage over a neighboring estate to the nearest public road.

By way of background, the homes located at 541 and 543 Exposition Boulevard in New Orleans were originally built on the same lot by the same owner, Richard Katz. Mr. Katz subdivided the properties in 1978 and the homes were later sold to separate buyers. The act of subdivision of 1978 does not contain a reference to a servitude burdening 543, nor does it state that one of the properties lacks access to a public road. None of the subsequent acts of sale for either property contain a reference to a servitude.

Roger Phipps purchased the home at 541 Exposition Blvd. in 1982. At that time, there was a concrete driveway that ran across the rear of 543 Exposition Blvd., allowing Mr. Phipps to access his garage. Over the years, the property at 543 Exposition Blvd. was sold several times. Various owners made changes to the property that partially blocked the concrete driveway until the present owners built \9a fence around their property. This is when Mr. Phipps began his legal battle against them.

In the round of litigation immediately preceding the filing of the motion for nullity which gave rise to the instant appeal the trial court ruled in favor of Mr. Phipps, declaring him the owner of an enclosed estate and entitled to a La. C.C. art. 694 servitude on the Schupps’ property. This Court reversed and remanded, finding: 1) La. C.C. art. 694 does not apply to this case because because an art. 694 servitude will not apply to third parties if it is not recorded; 2) questions of fact remain over whether an art. 741 servitude was established; 3) if an art. 741 servitude was established, then the Schupps’ predecessor in title, who obstructed the driveway, is responsible for the cost of restoring the driveway; and 4) if a servitude under 741 was not established, then Mr. Phipps may not be entitled to an art. 689 servitude, but the passage need not necessarily be fixed through the Schupps’ property but could possibly be fixed through Audubon Park. Phipps v. Schupp, 2014-0672 (La.App. 4 Cir. 3/18/15), 163 So.3d 212. Mr. Phipps then took a writ to the Louisiana Supreme Court, which was denied.

That brings us to what is presently before this Court. Mr. Phipps filed a motion to annul this Court’s March 18, 2015 opinion in the trial court. His motion was a rehashing of the issues raised in his writ to the Supreme Court. The trial court denied his motion and his following motion for new trial. He then appealed this denial.

The pending matter is a petitory action brought by Roger Phipps in which he claims to own a servitude of passage through Cynthia and Roland Schupps’ backyard. The relief Mr. Phipps seeks would require the partial demolition of the Schupps’ house so that he can use their backyard as a driveway. The trial court has | anot decided these issues and its denial of the motion for nullity did not resolve any of the other underlying issues in this case. Instead, the trial court determined that the case may proceed to trial.

The trial court’s denial of Mr. Phipps’s motion for nullity is not a final judgment under La. C.C.P. arts. 1915, 1841 or 2083. A judgment is final and appealable when it “disposes of all remaining issues in th[e] case and thereby concludes the litigation.” Bennett v. Laperouse and Son, Ltd., 2009-1099 (La.App. 1 Cir. 2/12/10), 35 So.3d 364. An appellate court’s jurisdiction is not properly invoked in the absence of a valid final judgment. Input/Output Marine Systems, Inc. v. Wilson Greatbatch, Inc., 2010-477 (La.App. 5 Cir. 10/29/10), 52 So.3d 909; See also La. C.C.P. art. 2083. Accordingly, this Court lacks jurisdiction over this appeal because the judgment of the trial court denying Mr. Phipps’s motion to annul is not a final appealable judgment. We note however that the granting of a nullity action setting aside a previous judgment is final and appealable. See American Motorists Ins. Co. v. Miller, 383 So.2d 487 (La.App. 4 Cir. 1980).

An appeal can be dismissed at any time for lack of jurisdiction. Goal Props., Inc. v. Prestridge, 2014-422 (La. App. 3 Cir. 11/5/14), 150 So.3d 610; La. C.C.P. art. 2162. Even when the parties do not raise the issue, appellate courts have the duty to examine sua sponte whether they have subject matter jurisdiction, Frank v. City of Eunice, 2013-1118 (La. App. 3 Cir. 3/5/14), 134 So.3d 222.

In their appellee brief, Mr. and Mrs. Schupp seek attorney’s fees pursuant to La. C.C.P. art. 2164 on the grounds that this appeal is frivolous. While we are inclined to award attorney’s fees for a frivolous appeal, we are unable to do so in this case. The proper procedure for an appellee to request frivolous appeal damages is to file either an answer to the appeal or a cross-appeal. Roger A. Stetter, LA. PRAC. CIV. APP. § 11:18 (2016) (“Stetter”)(citing La. C.C.P. art. 2133 and Galle v. Orleans Parish School Bd., 623 So.2d 692 (La.App. 4 Cir. 1993)). “Damages for taking a frivolous appeal cannot be recovered if they are claimed only in a motion to dismiss.” Stetter, § 11:19. Similarly, “[a]n appellee cannot recover damages for taking a frivolous' appeal if the damages are first requested in the appellee’s brief.” Stetter § 11:19. “An appellee’s brief does not constitute an answer or appeal for purposes of requesting frivolous appeal damages.” Stetter, § 11:19, (citing Sears, Roebuck & Co. v. Appel, 598 So.2d 582 (La.App. 4 Cir. 1992)).

For the foregoing reasons, we find that the instant appeal is not properly before this Court and order that it be dismissed.

APPEAL DISMISSED