text:
    Pat COOPER v. LAFAYETTE PARISH SCHOOL BOARD
    NO. 2017-C-0968
    Supreme Court of Louisiana.
    October 27, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. K, No. 2014-5941; to the Court of Appeal, Third Circuit, No. 16-169.

| denied.

HUGHES, J., would grant.

GENOVESE, J., recused.


source: Caselaw Access Project

license: Public Domain

text:
    LOUISIANA INDEPENDENT PHARMACIES ASSOCIATION v. CATAMARAN CORPORATION, et al.
    NO. 2017-CC-1257
    Supreme Court of Louisiana.
    October 27, 2017
   Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. O, No. 632,961; to the Court of Appeal, First Circuit, No. 2017 CW 0160;

JjDenied.

HUGHES, J., would grant.


text:
    Kerry MAGGIO v. James PARKER; The Sandwich Kings, LLC (d/b/a Jimmy John’s); Republic-Vanguard Insurance Company; and Metropolitan Property and Casualty Insurance Company
    NO. 2017-CC-1112
    Supreme Court of Louisiana.
    October 27, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Ascension, 23rd Judicial District Court Div. E, No. 113,206; to the Court of Appeal, First Circuit, No. 2016 CW1075 R;

11 Granted.


text:
    Cynthia DENT v. Genevieve Willis DENT and State Farm Insurance Company
    NO. 2017-C-1140
    Supreme Court of Louisiana.
    October 27, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. I, No. 2015-3898; to the Court of Appeal, Fourth Circuit, No. 2016-CA-1010;

|rNot considered. Not timely filed—See Supreme Court Rule X, § 5(a) and (d).


text:
    SHEET LAKE LAND AND OIL COMPANY, LLC v. OLEUM OPERATING COMPANY, L.C., et al.
    NO. 2017-C-1107
    Supreme Court of Louisiana.
    October 27, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. E, No. 2010-1272; to the Court of Appeal, Third Circuit, No. 16-429

| denied.


text:
    GLASSELL PRODUCING COMPANY, INC., et al. v. Junius A. NAQUIN, et al.
    NO. 2017-C-1253
    Supreme Court of Louisiana.
    October 27, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Lafourche, 17th Judicial District Court Div. A, No. 126754; to the Court of Appeal, First Circuit, No. 2016 CA 0549;

11 Denied.


text:
    Ella J. ROYAL, ON BEHALF OF the minor children, Keviyon Antoinette MOTT and Tre’Juan Anthony Royal v. Juan S. BLANCH, M.D., Lakeland Medical Center, L.L.C., and its Insurer, Health Care Indemnity, Inc., and Louisiana Patients’ Compensation Fund Ella J. Royal, on Behalf of the Minor Children, Keviyon Antoinette Mott and Tre’Juan Anthony Royal v. Juan S. Blanch, M.D., Lakeland Medical Center, L.L.C., and its Insurer, Health Care Indemnity, Inc., and Louisiana Patients’ Compensation Fund
    NO. 2017-C-1255
    Supreme Court of Louisiana.
    October 27, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. G, No. 2004-6136 C/W 2005-9384; to the Court of Appeal, Fourth Circuit, No. 2016-CA-1215 C/W 2016-CA-1216

| j Denied.


text:
    STATE of Louisiana v. Joshua LUCKEY
    NO. 2017-K-0432
    Supreme Court of Louisiana.
    October 27, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. A, No. 13-0751; to the Court of Appeal, Fifth Circuit, No. 16-KA-494

11 Denied.


text:
    STATE of Louisiana v. Reid Matthew ROMERO
    NO. 2017-KK-1123
    Supreme Court of Louisiana.
    October 27, 2017
   Applying For Supervisory and/or Remedial Writs, Párish of Lafayette, City Court of Lafayette, Nos. DT201500182, CT201505070; to the Court of Appeal, Third Circuit, No. KW17-00388;

| j Denied.


text:
    STATE of Louisiana IN the INTEREST OF R.W.
    NO. 2017-CK-0411
    Supreme Court of Louisiana.
    October 27, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Juvenile Court Orleans Parish, No. 2016-148-02 DQ F; to the Court of Appeal, Fourth Circuit, No. 2016-CA-1187;

| ¶ Denied.


text:
    Allison TAYLOR, Individually and on Behalf of her Deceased Father, Francis P. Degruy, Sr. v. TOTAL HEALTH SERVICES, L.L.C. and Dr. Nicholas J. Angelica Allison Taylor, Individually and on Behalf of her Deceased Father, Francis F. Degruy, Sr. v. Total Health Services, L.L.C. and Dr. Nicholas J. Angelica
    NO. 2017-CC-1197
    Supreme Court of Louisiana.
    October 27, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. G, No. 16-10995; to the Court of Appeal, Fourth Circuit, No. 2017-C-0383 C/W 2017-C-0387;

| denied.


text:
    Michael LEWIS v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY & CORRECTIONS, Secretary James LeBlanc
    NO. 2016-CI-I474
    Supreme Court of Louisiana.
    October 27, 2017
   Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. F, No. 638,571; to the Court of Appeal, First Circuit, No. 2015 CA1495

| denied.


text:
    Joseph BERGERON d/b/a Design/build Associates v. Neal PATEL d/b/a Louisiana Party Company
    NO. 2017-C-1270
    Supreme Court of Louisiana.
    October 27, 2017
   Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. B, No. 638556; to the Court of Appeal, First Circuit, No. 2016 CA 0600

h Denied.


text:
    Charles R. SALEMI v. TMR EXPLORATION, INC., Park Exploration, Inc., and Vitol Resources, Inc., et al.
    NO. 2017-C-1161
    Supreme Court of Louisiana.
    October 27, 2017
   Applying For Writ of Certiorari and/or Review, Parish of W. Baton Rouge, 18th Judicial District Court Div. A, No. 41653; to the Court of Appeal, First Circuit, No. 2016 CA 0567

h Denied.


text:
    Bobby EHRMAN v. GRAPHIC PACKAGING INTERNATIONAL, INC.
    NO. 2017-C-1131
    Supreme Court of Louisiana.
    October 27, 2017
   Applying For Writ of Certiorari and/or Review Office of Workers’ Compensation District IE, No. 14-08271; to the Court.of Appeal, Second Circuit, No. 51,237-WCA;

| j Denied.


text:
    Calvin J. HILL, Individually and as the Executor of the Succession of Elnora Johnson Hill v. TMR EXPLORATION, INC., Park Exploration, Inc., and Vitol Resources, Inc.
    NO. 2017-C-1163
    Supreme Court of Louisiana.
    October 27, 2017
   Applying For Writ of Certiorari and/or Review, Parish of W- Baton Rouge, 18th Judicial District Court Div. A, No. 41245; to the Court of Appeal, First Circuit, No. 2016 CA 0566

11 Denied.


text:
    STATE EX REL. Ricky C. MCGOWAN v. STATE of Louisiana
    NO. 2017-KH-1675
    Supreme Court of Louisiana.
    October 27, 2017
   Applying For Writ of Certiorari and/or Review, Parish of. Jefferson, 24th Judicial District Court Div. F, No. 14-5547; to the Court of Appeal, Fifth Circuit, No. 16-KA-13G

liWrit not considered. Untimely filed pursuant to La.S.Ct.R. X, § 5.


text:
    Errol G. WILLIAMS, Assessor, Parish of Orleans v. OPPORTUNITY HOMES LIMITED PARTNERSHIP and Louisiana Tax Commission
    NO. 2017-C-0957
    Supreme Court of Louisiana.
    October 27, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. C, No. 2015-8441; to the Court of Appeal, Fourth Circuit, No. 2016-CA-1185;

h Granted.


text:
    Kent BILLIOT and Tequila Billiot v. Joseph NAZIO, Lafourche Fire District No. 3 and American Alternative Insurance Corporation Emile Daigle v. Joseph Nazio, Lafourche Fire District No. 3, a.k.a. Lafourche Fire District No. 3, and American Alternative Insurance Corporation Eric Bruce v. Joseph Nazio, Lafourche Fire District No. 3 and American Alternative Insurance Corporation
    NO. 2017-CC-1696
    Supreme Court of Louisiana.
    October 27, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Lafourche, 17th Judicial District Court Div. D, No. 126797 C/W 127907 C/W 128717; to the Court of Appeal, First Circuit, No. 2017 CW 0902

| denied.


text:
    STATE of Louisiana v. Kenneth HALLEY
    NO. 2017-K-0421
    Supreme Court of Louisiana.
    October 27, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. I, No. 517-259; to the Court of Appeal, Fourth Circuit, No. 2016-KA-0713;

11 Denied.


text:
    THREE RIVERS CONDOMINIUM ASSOCIATION v. Donna GRODNER, et al.
    NO. 2017-C-0974
    Supreme Court of Louisiana.
    October 27, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Livingston, 21st Judicial District Court Div. E, No. 144487; to the Court of Appeal, First Circuit, No. 2016 CA 0067;

11 Granted.


text:
    ACADEMY, LTD. v. Davita SMITH
    NO. 2017-C-1124
    Supreme Court of Louisiana.
    October 27, 2017
   Applying For Writ of Certiorari and/or Review Office of Workers’ Compensation—#4, No. 10-03420; to the Court of Appeal, Third Circuit, No. 16-727;

| iDenied.

GENOVESE, J., recused.


text:
    Leonard JOHNSON, Sr., Husband of/and Merline Johnson v. HAMP’S CONSTRUCTION, LLC, Hamp’s Enterprises, LLC, Jose Doe and XYZ Insurance Company and Woodrow Wilson Construction Company, Inc. and Amerisure Insurance Company and Board of Secondary and Elementary Education and Louisiana Department of Education d/b/a Recovery School District
    NO. 2017-C-1130
    Supreme Court of Louisiana.
    October 27, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. L, No. 2012-09618; to the Court of Appeal, Fourth Circuit, No. 2017-CA-0033

| denied.


text:
    Darleen LEVY and Carleen M. Jacobs, a Professional Law Corporation v. Jessica A. LEWIS, Steakhouse New Orleans, L.L.C., Maryland Casualty Company and Progressive Security Insurance Company
    NO. 2017-01228
    Supreme Court of Louisiana.
    October 27, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. E, No. 2012-02546; to the Court of Appeal, Fourth Circuit, No. 2016-CA-0551 , , .

| iDenied.

WEIMER, J., would grant.


text:
    STATE of Louisiana v. Roderick Wayne PRESTON, Sr.
    NO. 2017-CJ-1248
    Supreme Court of Louisiana.
    October 27, 2017
   Applying For Writ of Certiorari and/or Review, Parish of St. Mary, 16th Judicial District Court Div. B, No. 08-NS-211; to the Court of Appeal, First Circuit, No. 2016 CA 1664

I iDenied.


text:
    Raymond Doyle CHANLER, Jr. and Pamela Turner Chanler v. JAMESTOWN INSURANCE COMPANY, O’Nealgas, and Roger Moore
    NO. 2017-01251
    Supreme Court of Louisiana.
    October 27, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Bienville, 2nd Judicial District Court Div. C, No. 41-773; to the Court of Appeal, Second Circuit, No. 51,-320-CA

| iDenied.


text:
    IN RE: Appeal of the DECISION OF the DISCIPLINARY BOARD
    NO. 17-PDB-003
    NO. 2017-OB-1342
    Supreme Court of Louisiana.
    October 27, 2017
   Applying For Appeal of the Decision of the Disciplinary Board Office of Disciplinary Board, No. 17-PDB-003;

LNot considered. Not timely filed. See Supreme Court Rule XIX, § 30(C).


text:
    STATE EX REL. Kevin WISE v. STATE of Louisiana
    NO. 2016-KH-1109
    Supreme Court of Louisiana.
    October 27, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div, P, No. 12-632; to the Court of Appeal, Fifth Circuit, No. 16-KH-260;

| tDenied.


text:
    Darleen LEVY and Darleen M. Jacobs, A Professional Law Corporation v. Jessica A. LEWIS, Steakhouse New Orleans, L.L.C., Maryland Casualty Company and Progressive Security Insurance Company
    NO. 2017-C-1171
    Supreme Court of Louisiana.
    October 27, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. E, No. 2012-02546; to the Court of Appeal, Fourth- Circuit, No. 2016-CA-0551;

hDenied.


text:
    Allison TAYLOR, Individually and on Behalf of Her Deceased Father, Francis P. Degruy, Sr. v. TOTAL HEALTH SERVICES, L.L.C. and Dr. Nicholas J. Angelica Allison Taylor, Individually and on Behalf of Her Deceased Father, Francis P. Degruy, Sr. v. Total Health Services, L.L.C. and Dr. Nicholas J. Angelica
    NO. 2017-CC-1220
    Supreme Court of Louisiana.
    October 27, 2017
   , Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. G, No. 16-10995; to the Court of Appeal, Fourth Circuit, No. 2017-C-0383 C/W 2017-C-0387. '

| denied.


text:
    Errol G. WILLIAMS, Assessor, Parish of Orleans v. OPPORTUNITY HOMES LIMITED PARTNERSHIP and Louisiana Tax Commission
    NO. 2017-C-0955
    Supreme Court of Louisiana.
    October 27, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. C, No. 2015-8441; to the Court of Appeal, Fourth Circuit, No. 2016-CA-1185

h Granted.


text:
    Reginald CROCKERHAM v. WEYERHAEUSER HOLDEN WOOD PRODUCTS
    NO. 2017-C-1121
    Supreme Court of Louisiana.
    October 27, 2017
   Applying For Writ of Certiorari and/or Review Office of Workers’ Compensation District 6, No. 14-00401; to the Court of Appeal, First Circuit, No. 2016 CA 0331

11 Denied.


text:
    STATS EX REL. Donald M. BOSWELL v. STATE of Louisiana
    NO. 2017-CP-1133
    Supreme Court of Louisiana.
    October 27, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Webster, 26th Judicial District Court Div. E, No. 74890; to the Court of Appeal, Second Circuit, No. 51,615-CW.

bNot considered; not timely filed. See State v. Crandell, 05-1060 (La. 3/10/06), 924 So.2d 122; Morris v. Stueben, 01-0137 (La. 3/16/01), 781 So.2d 1220.


text:
    Bonnie Simon FRAZIER v. COVENANT SERVICES WORLDWIDE & ESIS
    NO. 2017-C-1125
    Supreme Court of Louisiana.
    October 27, 2017
   Applying For Writ of Certiorari and/or Review Office of Workers’ Compensation District 9, No. 14-06678; to the Court of Appeal, Fifth Circuit, No. 16-CA-744;

11 Denied.


text:
    Darleen LEVY and Darleen M. Jacobs, a Professional Law Corporation v. Jessica A. LEWIS, Steakhouse New Orleans, L.L.C., Maryland Casualty Company and Progressive Security Insurance Company
    NO. 2017-C-1119
    Supreme Court of Louisiana.
    October 27, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. E, No. 2012-02546; to the Court of Appeal, Fourth Circuit, No. 2016-CA-0551;

1 denied.


text:
    ADVANCED RADIOGRAPHICS, INC. v. COLONY INSURANCE COMPANY, et al.
    NO. 2017-CC-1261
    Supreme Court of Louisiana.
    October 27, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. D, No. 20151205; to the Court of Appeal, Third Circuit, No. 17-243

Denied.


text:
    STATE of Louisiana v. Corey Dewayne WILLIAMS
    NO. 2016-KP-1114
    Supreme Court of Louisiana.
    October 27, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. 1, No. 193,258; to the Court of Appeal, Second Circuit, No. 50702-KW

| i Denied.

JOHNSON, C.J., would grant and remand for an evidentiary hearing.

WEIMER, J., would grant and remand for an evidentiary hearing.

CRICHTON, J., recused.


text:
    William Artmer LUCKY, IV v. Lindsay Diane WAY
    NO. 2017-CJ-1657
    Supreme Court of Louisiana.
    October 27, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Bossier, 26th Judicial District Court Div. F, No. 126,336; to the Court of Appeal, Second Circuit, No. 51,-706-CA

It Denied.


text:
    Brandon Scott LAVERGNE v. LOUISIANA DEPARTMENT OF SAFETY AND CORRECTIONS
    NO. 2016-CI-1459
    Supreme Court of Louisiana.
    October 27, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. F, No. 629,831; to the Court of Appeal, First Circuit, No. 2016 CW 0296

| iDenied.

GENOVESE, J., recused.


text:
    STATE of Louisiana v. Joshua LUCKEY
    NO. 2017-KO-0617
    Supreme Court of Louisiana.
    October 27, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial. District Court Div. A, No. 13-751; to the Court of Appeal, Fifth Circuit, No. 16-KA-494;

11 Denied.


text:
    STATE of Louisiana v. Therone A. MAGEE
    NO. 2017-KK-1226
    Supreme Court of Louisiana.
    October 27, 2017
   Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. H, No. 572372; to the Court of Appeal, First Circuit, No. 2016 KA1674

| , Denied.


text:
    STATE of Louisiana v. Francisco Jesus VASQUEZ-RAMIREZ
    NO. 2017-KO-0351
    Supreme Court of Louisiana.
    October 27, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. L, No. CR 147463; to the Court of Appeal, Third Circuit, No. 16-325;

| iDenied.


text:
    Jane NEWMAN, Individually and on Behalf of Clifton Newman, deceased and Linda Canady, Henry Newman and Darrell Newman v. LSU HEALTH SCIENCES CENTER and Shreveport and Dr. Patrick Juneau, III, M.D.
    NO. 2017-C-1196
    Supreme Court of Louisiana.
    October 27, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. B, No. 564,021; to the Court of Appeal, Second Circuit, No. 51,-375-CA;

h Denied.

CRICHTON, J., would grant and docket for briefing, oral argument and opinion.


text:
    IN RE: COMMITTEE ON BAR ADMISSIONS CFN-523690
    NO. 2017-BA-1577
    Supreme Court of Louisiana.
    October 27, 2017
   Applying For Petition to Transfer Bar Application Fees from July 2017 Exam to February 2018 Exam

I petition to transfer bar exam fees granted.


text:
    Levi ROBERTSON individually in his own right and as Class Representative of All Persons Who Suffered Damages to their property and their Person as a Result of the Flood Waters Beginning on the 11th Day in the Month of March, 2016 in the Tangipahoa River Flood Basin Above and Below Interstate 12 as a Result of the Diversion of the Natural Flow of the Waters of the Tangipahoa River v. The STATE of Louisiana and the Department of Transportation and Development Levi Robertson individually in his own right and as Class Representative of All Persons Who Suffered Damages to their property and their Person as a Result of the Flood Waters Beginning on the 11th Day in the Month of March, 2016 in the Tangipahoa River Flood Basin Above and Below Interstate 12 as a Result of the Diversion of the Natural Flow of the Waters of the Tangipahoa River v. the State of Louisiana And the Department of Transportation and Development
    NO. 2017-CC-1164
    Supreme Court of Louisiana.
    October 27, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Tangipahoa, 21st Judicial District Court Div. C, No. 2016-0000719 C/W 2016-0002272; to the Court of Appeal, First Circuit, No. 2017 CW 0165;

| iDenied.


text:
    Lorens A. RANDAZZO v. ST. BERNARD PARISH GOVERNMENT, et al.
    NO. 2017-C-1209
    Supreme Court of Louisiana.
    October 27, 2017
   Applying For Writ of Certiorari and/or Review, Parish of St. Bernard, 34th Judicial District Court Div. C, No. 118-844; to the Court of Appeal, Fourth Circuit, No. 2016-CA-0902;

| denied.


text:
    Eugene BAKER v. LOUISIANA MEDICAL MUTUAL INSURANCE COMPANY and A. Kenison Roy, III, M.D.
    NO. 2017-CC-1269
    Supreme Court of Louisiana.
    October 27, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. I, No. 590^415; to the Court of Appeal, Fifth Circuit, No. 17-C-305;

h Denied.


text:
    STATE of Louisiana v. Francisco Jesus VASQUEZ-RAMIREZ
    NO. 2017-K-0188
    Supreme Court of Louisiana.
    October 27, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. L, No. CR 147463; to the Court of Appeal, Third Circuit, No. 16-325

| t Denied.


author: PICKETT, Judge.

text:
    LABORATORY CORPORATION OF AMERICA v. PROGRESSIVE ACUTE CARE DAUTERIVE, LLC, et al.
    17-84
    Court of Appeal of Louisiana, Third Circuit.
    10/04/2017
    Gordon Paul Serou, Jr., Attorney at Law, 650 Poydras St., Suite 1002, New Orleans, LA 70130, (504) 207-1910, COUNSEL FOR PLAINTIFF-APPELLANT: Laboratory Corporation of America
    Gary Jude Delahoussaye, Gachassin Law Firm, P.O. Box 80369, Lafayette, LA 70598, (337) 235-4576, COUNSEL FOR DEFENDANT-APPELLEE:. Hospital Service District No. 1 of Iberia Parish
    Hector R. Lopez, Attorney at Law, P.O. Box 2656, Covington, LA 70434, (800) 516-3075, COUNSEL FOR DEFENDANT-APPELLEE: Progressive Acute Care Dauterive, LLC
    Court composed of Marc T. Amy,< Elizabeth A. Pickett, and Billy Howard Ezell, Judges.
   PICKETT, Judge.

1 , Laboratory Corporation of America (Lab Corp) appeals a judgment of the trial court sustaining a “Peremptory Exception of No Right or Cause of Action” filed by Hospital Service District No. 1 of Iberia Parish d/b/a Iberia Medical Center (IMC), and dismissing Lab Corp’s claims against IMC with prejudice.

’ FACTS

Lab Corp provided laboratory testing services for Progressive Acute Care Dau-terive, LLC d/b/a Dauterive Hospital. Lab Corp’s petition on open account alleges that it provided services to Dauterive Hospital for which it has not been paid. It is undisputed that all charges alleged in Lab Corp’s petition were incurred while Progressive Acute Care Dauterive, LLC, operated Dauterive Hospital. In 2015, IMC began operating Dauterive Hospital. Lab Corp alleges, in its petition that as the successor corporation of Progressive Acute Care Dauterive, LLC, IMC is responsible for the charges. IMC filed a “Peremptory Exception of No Right or Cause of Action,” denying that it is a successor corporation. IMC. claims that it only purchased the assets of Dauterive Hospital, and attached the sale document to its exception as evidence of this fact.

Following a hearing in which the trial court considered the documents attached to IMC’s exception, the trial court granted the “Peremptory. Exception of No Right or Cause of .Action” and dismissed Lab Corp’s claims against IMC with prejudice. Lab Corp now appeals that judgment.

ASSIGNMENTS OF ERROR

Lab Corp asserts four assignments of error:

1. The trial court erred by granting IMC’s exception, of no cause of action.
| g2. The trial court erred by considering information outside the four corners of plaintiffs petition in deciding the exception of no cause of action, and by making findings of fact.
3. The trial court erred by granting IMC’s exception of no right of action.
4. The trial court erred by dismissing Lab Corp’s action with prejudice, without granting leave to amend.

DISCUSSION

A peremptory, exception of.no right of action and a peremptory exception of no cause of action are two separate legal theories. The supreme court explained the purpose of an exception of no cause of action in Scheffler v. Adams and Reese, LLP, 06-1774, pp. 4-5 (La. 2/22/07), 950 So.2d 641, 646-47 (case citations omitted):

As used in the context of the peremptory exception, a “cause of action” refers to the operative facts which give rise to the plaintiffs right to judicially assert the action against the defendant. The purpose of the peremptory exception of no cause of action is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the petition. No evidence may be introduced to support or controvert the exception of no cause of action. LSA-C.C.P. art. 931. The exception is triable oh the face of the pleadings, and, for purposes of resolving the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true. The issue at the trial of the exception is whether, on the face of the petition, the' plaintiff is legally entitled to the relief sought.
Louisiana retains a system of fact pleading, and mere conclusions of the plaintiff unsupported by facts will not set forth -a cause or right of action.

The party who filed the exception disputing the existence of a cause of action bears the burden of demonstrating that a petition fails to state a cause of action. Id.

An appellate court reviews the trial court’s ruling on an exception of no cause of action de novo “[bjecause the exception of no cause of action raises a question of law and the district court’s decision is based solely on the sufficiency of the petition.” Scheffler, 950 So.2d at 647. Ultimately, the court must determine I s“whether, in the light most favorable to the plaintiff, and with every doubt resolved in the plaintiffs favor, the petition states any valid cause of action for relief.” Id,

This court explained the pujóse of an exception of no right of action in Mississippi Land Co. v. S & A Properties II, Inc., 01-1623, pp. 2-3 (La.App. 3 Cir. 5/8/02), 817 So.2d 1200, 1202-3:

Under La.Code Civ.P. art. 927, a defendant may raise the peremptory exception of no right of action. An exception of no right of action has the function of determining whether the plaintiff has any interest in the judicially enforced right asserted. St. Jude Medical Office Bldg., Ltd. Partnership v. City Glass and Mirror, Inc., 619 So.2d 529 (La. 1993). The function of this exception is to terminate the suit brought by one who has no judicial right to enforce the right asserted in the lawsuit. Yolanda F.B. v. Robert D.R., 00-958 (La.App. 3 Cir. 12/6/00); 775 So.2d 1107. The determination of whether a plaintiff has a right of action is a question of law. Horrell v. Horrell, 99-1093 (La.App. 1 Cir. 10/6/00); 808 So.2d 363, writ denied, 01-2546 (La.12/7/01); 803 So.2d 971. Accordingly, we review exceptions of no right of action de novo. Id.

Appellate review of a ruling on an exception of no right of action “should focus on whether the particular plaintiff has a right to bring the suit and is a member of the class of persons that has a legal interest in the subject matter of the litigation, assuming the petition states a valid cause of action for some person.” Eagle Pipe and Supply, Inc. v. Amerada Hess Corp., 10-2267, 10-2272, 10-2275, 10-2279, 10-2289, p. 7 (La. 10/25/11), 79 So.3d 246, 256.

While the trial court seemingly treated the “Peremptory Exception of No Right or Cause of Action” as one issue,-we must bifurcate the issues, as each has different standards; Furthermore, La.Code Civ.P. art. 931 (emphasis added) makes clear that, while evidence may be .submit.ted. to support a peremptory exception of no right of action, no evidence may be taken to support an exception of no cause of action:

On the trial.of the peremptory exception pleaded at or prior to the trial of the .case, evidence may be introduced to support or | ¿controvert any of the objections pleaded, when the grounds thereof do not appear from the petition.
When the peremptory exception is pleaded in the trial court after the trial of the case, but prior to a submission for a decision, the plaintiff may introduce evidence in opposition thereto, but the defendant may introduce no evidence except to rebut that offered by plaintiff.
No evidence may be introduced at ally time to support or controvert the objection that the petition fails to state a cause of action.

Thus, to the extent that the trial court relied on the evidence attached to the pleading filed by IMC to rule on the exception of no cause of action, we find the trial erred. In our de novo review of the judgment of the trial court, we shall not consider that evidence.

The petition filed by Lab Corp incorporates the language of Hollowell v. Orleans Regional Hospital LLC, 217 F.3d 379 (5th Cir. 2000). The court in Hollowell considered the extent of the liability of a successor corporation for the .debts • of-a business it purchased if it is a “mere continuation” of the same business. Accepting the facts of the petition as true for the purpose of determining if Lab Corp has asserted a cause of action against IMC, we find that Lab Corp.has stated a cause of action. The peremptory exception of no cause of action is overruled. During trial, of course, .IMC will have the opportunity to present evidence to support its theory that it is not liable .for the debts incurred by Dauterive Hospital prior to the sale.

As for the peremptory exception of no right of action, we find that, assuming'that Lab Corp has stated a valid Cause of action, it is the proper party to prosecute the claims raised in the petition. Lab Corp provided services for which it claims it was not paid, and it has a right of action to bring suit to recover those sums. The peremptory exception of no right of action is overruled.

lfiThe final assignment of error raised by Lab Corp, seeking amendment of its petition, is moot.

CONCLUSION

For the reasons assigned, the judgment of the trial court is reversed, the exceptions of no cause of action and no right of action are overruled, and the case is remanded to the trial court for further proceedings consistent with this opinion. Costs of this appeal are assessed to Hospital Service District No. 1 of Iberia Parish d/b/a Iberia Medical Center.

REVERSED AND REMANDED.


author: Judge Edwin A. Lombard

text:
    STATE of Louisiana v. Freddie W. JOHNSON
    NO. 2017-KA-0396
    Court of Appeal of Louisiana, Fourth Circuit.
    OCTOBER 4, 2017
    Leon A. Cannizzaro, Jr., DISTRICT ATTORNEY,' Donna Andrieu, ASSISTANT DISTRICT ATTORNEY, ORLEANS PARISH DISTRICT ATTORNEY’S OFFICE, 619 South White Street, New Orleans, LA 70119, COUNSEL FOR THE STATE OF LOUISIANA
    Christopher J. Murell, Cornac S. Boyle, CAPITAL APPEALS PROJECT, 636 Baronne Street, New Orleans, LA 70113, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Judge Terri F. Love, Judge Edwin A. Lombard, Judge Roland L. Belsome)
   Judge Edwin A. Lombard

_JjThe defendant, Freddie W. Johnson, appeals his conviction for attempted second degree murder and being a felon in possession of a firearm. After review of the record in light of the applicable law, we dismiss the appeal without prejudice.

Relevant Facts and Procedural History

The defendant was convicted on June 15, 2016. On July 19, 2016, he filed his Motion for New Trial. The district court denied his motion and sentenced the defendant to twenty years at hard labor. Counsel was appointed to represent the defendant on appeal and the State filed a multiple offender bill of information.

The defendant’s appeal was lodged in this court on May 8, 2017. On May 15, 2017, counsel for the defendant filed a motion to supplement the record and suspend the briefing schedule. On May 18, 2017, the motion was granted in two .separate orders and the briefing schedule was suspended.

On June 15, 2017, counsel for the defendant file a Second Motion for a New Trial in the district court. On that same date, counsel for the defendant filed a motion in this court requesting a stay of appellate proceedings pending the district court’s determination of his Second Motion for a New Trial; concomitantly, in | accordance with La. Code Crim. Proc. art. 853(C), the defendant also requested remand to the district court for consideration of the defendant’s Second Motion for New Trial. On June 22, 2017, the defendant’s motion was granted.

The defendant’s Motion for New Trial is pending in the district court.

Discussion

Because the district court has not yet ruled on the defendant’s Second Motion for New Trial, the instant appeal is hereby dismissed without prejudice. The defendant’s right to appeal his conviction and sentence is preserved and his new appeal may be filed after, the district rules upon the pending Second Motion for New-Trial.

Conclusion

The defendant’s appeal is dismissed without prejudice.

APPEAL DISMISSED.


author: Judge Joy Cossich Lobrano

text:
    Kenneth H. LOBELL v. Cindy Ann ROSENBERG Kenneth H. Lobell v. Cindy Ann Rosenberg
    NO. 2017-CA-0111, NO. 2017-CA-0381
    Court of Appeal of Louisiana, Fourth Circuit.
    OCTOBER 4, 2017

      Louis C. LaCour, Jr., Ronald J. Sholes, ADAMS AND REESE LLP, 701 Poydras Street, 4500 One Shell Square, New Orleans, LA 70139, Matthew L. Pepper, 25211 Grogans Mill Road, Suite 450, The Woodlands, TX 77380, Roderick Alvendia, ALVENDIA, KELLY & DEMAREST, L.L.C., 909 Poydras Street, Suite 1625, New Orleans, LA 70112-4500, COUNSEL FOR PLAINTIFFS/APPELLANTS/AP-PELLEES
    Brian D. Kátz, Herbert A. Cade, HERMAN, HERMAN & KATZ, LLP, 820 O’Keefe Avenue, New Orleans, LA 70113, Harry Rosenberg, PHELPS DUNBAR, LLP, 365 Canal Street, Suite 2000, New Orleans, LA 70130-6534, COUNSEL FOR DEFENDANTS/APPELLANTS/APPEL-LEES
    (Court composed of Chief Judge James F. McKay, III, Judge Edwin A. Lombard, Judge Joy Cossich Lobrano)
   Judge Joy Cossich Lobrano

I, These consolidated appeals arise from post-trial motions in a commercial lease dispute. 2025 Canal Street, L.L.C., Cindy Rosenberg Denn, Craig Rosenberg, Ricky Rosenberg, Harry Rosenberg, Lenore Rosenberg Bramblett, Ann Rosenberg Sil-berman, Carla Rosenberg Waggoner, Paige Rosenberg Hirschkop, Rosalie Rosenberg Samuelson, and Larry Rosenberg (collectively the “Rosenbergs”) appeal the district court’s September 6, 2016 judgment denying their Motion to Assess Payment of Post-Trial Unpaid Rent, Unpaid Taxes, Unpaid Insurance, and Interest Thereon. Kenneth H. Lobell and KHL Canal, L.L.C. (collectively “Lobell”) separately appeal the district court’s September 27, 2016 judgment denying their Motion to Amend Judgment under La. C.C.P. art. 1951. Finding that this Court lacks appellate jurisdiction to review the consolidated appeals, for the reasons that follow, we dismiss the appeals. .

The procedural history of this matter is detailed in this Court’s prior opinion, Lobell v. Rosenberg, 2014-0060 (La. App. 4 Cir, 1/7/15), 158 So.3d 874, writ granted, 2015-0247 (La. 5/1/16), 169 So.3d 366, and rev’d, 2015-0247 (La 10/14/15), 186 So.3d 83 (“Lobell II”) ; the Louisiana Supreme Court’s opinion, Lobell v. Rosenberg, 2015-0247 (La. 10/14/15), 186 So.3d 83 (“Lobell III”); and this Court’s opinion on remand, and Lobell v. Rosenberg, 2014-0060 (La. App. 4 Cir. 1/27/16), 184 So.3d 850, reh’g denied (3/9/16), writ denied, 2016-0669 (La. 5/27/16), 192 So.3d 744 (“Lobell TV”). As summarized by the Supreme Court:

Mr. Lobell filed a petition for writ of possession and a • possessory action against the Rosenbergs, [footnote omitted] alleging damages arising out of the Rosenbergs’ failure to allow him time to cure the default pursuant to the 1957 lease provisions, anticipatory breach of contract, and wrongful eviction during the lease term. The Rosenbergs responded by filing an incidental demand against Mr. Lobell, alleging he breached the lease and consent agreement by failing to pay rent and taxes, maintain $2,6 million in hazard insurance, place insurance proceeds ⅛ trust, spend the insurance proceeds Tor the purpose of repairing the building and improvements, and keep improvements'in good repair, [footnote omitted]. Following a trial on the merits, the district court rendered judgment in favor of the Rosenbergs and dismissed Mr. Lobell’s claims. The court terminated the lease of the property and rendered a money judgment in favor of the: Rosenbergs in the amount of $3,647,127.81.
Mr, Lobell appealed. On appeal, the court of appeal affirmed the portion of the judgment dismissing Mr. Lobell’s causes of action and claims for damages against the Rosenbergs. However the court of appeal vacated the portion of the district court’s judgment which terminated the lease and awarded damages. In finding the lease was not properly terminated, the court of appeal found the Rosenbergs’ default letters failed to afford Mr. Lobell a period of time to remedy his default...

Lobell III, 2015-0247 at pp. 4-8, 186 So.3d at 86-88 (internal citations omitted).

|sUpon the application of the Rosen-bergs, the Supreme Court granted cer-tiorari, reversed this Court’s judgment insofar as it vacated the district court’s judgment, and “reinstate[d] the district court’s judgment holding that the lease was properly terminated.” Id., 2015-0247 at p. 11, 186 So.3d at 91. Because this Court pretermitted consideration of the district court’s award of damages, the Supreme Court remanded the. case to this Court for consideration of this issue. Id. On remand, this Court affirmed the district court’s award of restoration costs. Lobell IV, 2014-0060 atp. 1, 184 So.3d at 852. Lobell then applied for a writ of certiorari, which the Supreme Court denied. Lobell v. Rosenberg, 2016-0669 (La. 5/27/16), 192 So.3d 744.

After the conclusion of the prior appeal, the district court heard eight post-trial motions- on August 31, 2016, including the two motions that are the subject of these consolidated appeals.

The Rosenbergs filed a motion to assess payment of post-trial rent, taxes, insurance, and interest arguing that, because Lobell sought suspensive appeal of the August 22, 2013 judgment, the Rosenbergs were deprived of use of the leased property but continued to incur and were required to pay taxes, insurance, and maintenance costs on the property while the suspensive appeal was pending. Lobell opposed the Rosenbergs’ motion, contending that the Supreme Court held that the lease was terminated in 2008 by default letters sent by the Rosenbergs to Lobell and that the Rosenbergs are not entitled to recover post-termination damages.

| ¿Lobell raised a similar argument in his motion to amend the August 22, 2013 judgment, in which he contended that the Supreme Court’s opinion requires that the district court’s award of damages be recalculated. Lobell argues that damages should be reduced to reflect a lease termination date in 2008, and the award of judicial interest should be amended to reflect that interest on restoration costs is due only from the date of judgment, not from the " date of judicial demand. The Rosenbergs opposed Lobell’s motion, arguing that Lobell is seeking substantive amendments to a final judgment, which are prohibited by La.C.C.P. art. 1951, and that Lobell’s arguments regarding the lease termination' date and interest were not raised at trial in 2013 or to the Supreme Court on the prior appeal and were waived.

The district court rendered judgments on September 6, 2016 and September 27, 2016 denying both motions. The Rosen-bergs devolutively appealed the September 6, 2016 judgment, Lobell devolutively appealed the September 27, 2016 judgment, and the appeals were consolidated on Lo-bell’s motion. Before addressing the merits, this Court must determine whether we have jurisdiction to consider the appeals.

Turning to the September 6, 2016 judgment, it is evident from the record that the district court’s denial of the Rosenbergs’ motion to assess post-trial rent, taxes, and insurance resolved some, but not all, of the Rosenbergs’ remaining | ^claims against Lobell. We must therefore consider whether it is an appealable judgment. La. C.C.P. art. 1915(B) provides:

(1) When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the-claims, demands, issues, or theories against a party, whether in an original demand, reconventional demand, cross-claim, third-party claim, or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is -no just reason for delay.
(2) In the absence of such a determination and designation, any such .order or decision shall not constitute a final judgment for the purpose of an immediate appeal and may be revised at any time prior to rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties.

The record reveals that the Rosenbergs also filed a motion for.post-trial attorneys’ fees. In the September 27, 2016 judgment, in which the district court ruled on many of the post-trial motions heard on August 31, 2016, the district court granted the motion for post-trial attorneys’ fees, but reserved the issues of reasonableness of fees and start date for calculation of judicial interest. The September 27, 2016 judgment anticipated that the parties would attempt to reach an agreement on attorneys’ fees,-and then litigate the issue if needed. The parties subsequently filed memoranda and exhibits with the district court in support of their respective positions on fees: The amount of attorney’s fees has not been adjudicated by the district court, and this issue between the parties remains to be resolved. Accordingly, the September 6, 2016 judgment is a partial judgment |fiwithin the ambit of La. C.C.P. art. 1915(B). Therefore, it is not appealable absent designation as a final judgment by the district court. No such designation appears in the record, nor do the Rosenbergs assert that they have sought or obtained one. We therefore lack appellate jurisdiction to review the September 6, 2016 judgment. See Delahoussaye v. Tulane Univ. Hosp. & Clinic, 2012-0906, p. 4 (La. App. 4 Cir. 2/20/13), 156 So.3d 560, 562.

Next, considering the September 27, 2016 judgment, the district court’s ruling, denying Lobell’s motion to amend the August 22, 2013 judgment, is an interlocutory decree and is not part of an unrestricted appeal from a valid final judgment. See Dunker v. New Orleans Baptist Theological Seminary, 411 So.2d 71, 72 (La. App. 4th Cir. 1982) (holding that there was no right to appeal an order denying a motion for correction of judgment, which was filed after delays for applying for new trial and appeal expired). See also Input/Output Marine Sys., Inc. v. Wilson Greatbatch, Techs., Inc., 2010-477, p. 15 (La. App. 5 Cir. 10/29/10), 52 So.3d. 909, 917 (declining to consider on appeal post-trial interlocutory rulings denying motion to reform judgment). We find that the district court’s denial of Lobell’s Motion to Amend Judgment under La.C.C.P. art. 1951 is a non-frappealable interlocutory ruling, and we lack appellate jurisdiction to review the September 27, 2016 judgment. See id.

The parties urge; this Court, in the alternative, to convert their respective appeals to applications for supervisory writ. As this Court explained in Delahoussaye, 2012-0906 at pp. 4-5, 155 So.3d at 562-63:

The proper procedural vehicle to seek review of an interlocutory judgment that is not immediately appealable is an application for supervisory writ. La.C.C.P. art. 2201; Gieck v. Tenet Healthcare Corp., 2007-1597, p. 3 (La. App. 4 Cir. 1/23/08), 976 So.2d.767, 769; Lalla v. Calamar, N.V., 2008-0952, pp. 5-6 (La. App. 4 Cir. 2/11/09), 5 So.3d 927, 931. Under certain circumstances, this court has exercised its discretion to .convert the appeal of an interlocutory judgment into an application for supervisory writ. Reed v. Finklestein, 2001-1015, p. 3 (La. App. 4 Cir. 1/16/02), 807 So.2d 1032, 1033-34; Lalla v. Calamar, supra, Favrot v. Favrot, 2010-0986, p. 2 (La. App. 4 Cir. 2/9/11), 68 So.3d 1099, 1102. [footnote omitted] However, we do so only when the motion for appeal has been filed within-the. thirty-day time-period allowed for the filing of an application for supervisory writs under Rule 4-3 of the Uniform Rules, Courts of Appeal. See: Reed v. Finklestein, supra; Francois v. Gibeault, 2010-0180, p. 2 (La. App. 4 Cir. 8/25/10), 47 So.3d 998, 1000; Jones v. Next Generation Homes, LLC, 2011-0407, p. 2 (La. App. 4 Cir. 10/5/11), 76 So.3d 1238, 1240, writ denied, 2011-2401 (La. 11/23/11), 76 So.3d 433; Barham, Warner & Bellamy, L.L.C. v. Strategic Alliance Partners, L.L.C., 2009-1528, pp. 4-5 (La. App. 4 Cir. 5/26/10), 40 So.3d 1149, 1152. Additionally, this court has found it appropriate to exercise its supervisory jurisdiction only in cases where the circumstances indicate that immediate decision of the issue sought to be appealed is necessary to ensure fundamental fairness and judicial efficiency, such as where reversal of the trial court’s decision would terminate the litigation. Reed v. Finklestein, supra. See also, Jones v. Next Generation Homes, LLC, supra (court found that the issue—revocation of appointment of counsel pro hoc vice—would become moot by the'time the trial court’s decision was ripe for appeal).

We find none of these conditions present here. The motion for devolutive appeal of the district court’s judgment rendered September 6, 2016 was filed sixty-four (64) days later, on November 9, 2016. As to the judgment rendered on | ^September 27, 2016, the motion for devolutive appeal was filed fifty-five (55) days later, on November 21, 2016. “[W]hile the motion for appeal could be construed to be a notice of intent to seek supervisory writs, it could not be construed as a timely one where it was filed more than thirty days from the court’s ruling,” Babineaux v. Univ. Med. Ctr., 2015-292, p. 7 (La. App. 3 Cir. 11/4/15), 177 So.3d 1120, 1125 (stating that “the motion [for appeal] was filed untimely for a writ application, and if we allowed the conversion, the writ application would be dismissed because of untimeliness”). Further, because there are issues remaining to be litigated between the parties, review of the district court’s decision at this juncture would not result in termination of the litigation. We find that reviewing this matter in its current procedural posture would promote piecemeal appeals and contravene the principles of judicial economy.

The parties have not lost their right to appeal either judgment once a final judgment has been rendered as to all claims and all parties, and the parties have not lost the option of requesting that the''district court certify the September 6, 2016 judgment as final pursuant to La. C.C.P. art. 1915(B). See Delahoussaye, 2012-0906 at pp. 5-6, 155 So.3d at 563; see also Input/Output Marine, 2010-477 at p. 16, 52 So.3d at 917.

For these reasons, we decline to exercise our discretion to consider the respective motions for appeal as applications for supervisory writs. Accordingly, we dismiss the consolidated appeals for lack of jurisdiction.

IbAs a final matter, Lobell assigns as error in his briefs the district court’s “lack of impartiality” which he argues was demonstrated by the release of funds held in the registry of the court. These funds, in the amount of $4,750,000.00, were held pursuant to a letter of credit in lieu of suspensive appeal bond in satisfaction and/or partial satisfaction of the August 22, 2013 judgment. The judgment releasing the funds from the court’s registry was rendered on September 28, 2016. The September 28, 2016 judgment is not properly before us, and we do not address Lobell’s arguments concerning this judgment.

The record contains no motion or order of appeal relative ;to the September 28, 2016-judgment. On September 6, 2016, the district court rendered a separate judgment—in addition to the judgment the Rosenbergs appeal—which ordered the deposit of the funds represented by the letter of credit into the district court’s registry; however, the record does not reflect that Lobell filed a motion for appeal or answer to appeal relative to either judgment rendered on September 6, 2016. There is no indication that Lobell attempted to attack either the September 6, 2016 or September 28, 2016 ruling by seeking supervisory writs. Rather, Lobell challenges the court’s release of funds ancillary to his devolutive appeal of the September 27, 2016, judgment. There is no indication in the record that an incorrect date was inserted into Lobell’s motion for appeal;

We acknowledge that in certain cases, courts of appeal -have opted to review a judgment where such judgment is identified by an incorrect date in the motion for appeal and where it is evident from the record and the briefs that all parties Imhave treated the appeal as though it encompassed the misidentified judgment. Cf. State, Dep’t. of Transp. & Dev. v. Estate of Summers, 527 So.2d 1099, 1100 (La. App. 1st Cir. 1988). However, we find such cases distinguishable from the record herein, as Lobell’s appeal specifically seeks reversal of the denial of his motion to amend judgment. “There must be some certainty and definiteness as to which judgment is being appealed.” Carpenter v. Travelers Ins. Co., 402 So.2d 282, 284, n. 1 (La. App. 3d Cir. 1981). To review the district court’s judgment releasing funds from its registry would require us to adopt an activist position that we decline to undertake on the facts before us. We thus do not address Lobell’s arguments regarding the September 28, 2016 judgment.

For the reasons stated above, the consolidated appeals are dismissed.

APPEALS DISMISSED

      . In Lobell v. Rosenberg, 2010-0983 (La. App. 4 Cir. 4/6/11), 62 So.3d 823 ("Lobell I"), this Court reviewed the district court’s judgment granting exceptions of lack of personal jurisdiction and no cause of action, which are not at'issue in the present appeal.

      . The district court judgment, on appellate review in Lobell II, Lobell III, and Lobell TV, was rendered on August 22, 2013.

      . La. C.C.P. art, 1951 provides in pertinent .part: ''[o]n motion of the court or any party, a final judgment may be amended at any time to alter the phraseology of the judgment, but not its substance, or to correct errors of calculation. .. ”

      . See Lobell IV, 2014-0060 at pp. 7-8, 184 So.3d at 854-55.

      . A judgment granting attorney's fees but not assessing the amount of those fees is not a final judgment. Andrew Paul Gerber Testamentary Tr. v. Flettrich, 2016-0065, p. 5 (La. App. 4 Cir. 11/2/16), 204 So.3d 634, 638 (citing Steele v. Compass Welding Co., 590 So.2d 1235, 1238 (La. App. 1st Cir. 1991)).

      . We disagree with the Rosenbergs' argument that the September 6, 2016 judgment is final and appealable pursuant to La. C.C.P. art. 1915(A)(5), which provides: "[a] final judgment may be rendered and signed by the court, even though it may not grant the successful party or parties all of the relief prayed for, or may not adjudicate all of the issues in the case, when the court: ... [sjigns a judgment on the -issue of liability when that issue has .been, tried separately by the court, or when, in a jury trial, the issue of liability has been tried before a jury and the issue of damages is to be tried before a different jury.” The record before us contains no indication that liability and damages on this issue were tried separately. We find that subsection (A)(5) does not apply to the September 6, 2016 judgment.

      . "Judicial economy and the avoidance of piecemeal appeals remain guiding appellate principles.” Evans v. Evans, 2002-691, pp. 3-4 (La. App. 5 Cir. 11/19/02), 833 So.2d 427, 428.

      . See also Wilson v. Transp. Consultants, Inc., 2004-0334, p. 4 (La. App. 4 Cir. 3/2/05), 899 So.2d 590, 596 ("An. error misstating the date of judgment in a motion for appeal does not require dismissal where the: 1) appellant actually intended to appeal from a related judgment of the trial court; 2) errors assigned in brief on merits were adjudicated by a related judgment; or 3) parties were aware of which judgment appellant intended to appeal, and the appellee was not prejudiced by the error in date”).


author: EZELL, Judge.. Pickett, J.,

text:
    STATE of Louisiana v. Danial Lewayne LAFLEUR -aka-Daniel Lafleur -aka- Daniel Lee Lafleur -aka- Danial Lefleur
    KA 17-284
    Court of Appeal of Louisiana, Third Circuit.
    10/04/2017
    Rehearing Denied November 22, 2017.

      Edward Kelly Bauman, Louisiana Appellate Project, P.O. Box 1641, Lake Charles, LA 70602-1641, (337) 491-0570, COUNSEL FOR DEFENDANT/APPELLANT: Danial Lewayne LaFleur
    Jeffrey M. Landry, Attorney General, P.O. Box 94005, Baton Rouge, LA 70804, (225) 326-6200, COUNSEL FOR: State of Louisiana
    Andrea Barient, Assistant , Attorney General, 1885 North Third Street, Baton Rouge, LA 70802, (225) 326-6258, COUNSEL FOR: State of Louisiana
    Daniel LaFleur, 4944 S. Sherwood Forest Blvd, Apt. 233, Baton Rouge, LA 71301, (318) 792-2345
    Court composed of Marc T. Amy, Elizabeth A. Pickett, and Billy Howard Ezell, Judges.
   EZELL, Judge..

lain Defendant’s previous appeal, this court described the procedural history of the case:

On December 17, 2013, Defendant Danial Lewayne Lafleur was charged by a bill of information with one count of aggravated assault with a firearm, a violation of La.R.S. 14:37.4. The State filed a “Motion for Appointment of Sanity Commission,” and on September 10, 2014, the trial court ordered a sanity commission to determine whether Defendant was competent to assist in his own defense. On July 10, 2015, a sanity commission hearing was held regarding Defendant’s capacity to proceed to trial. It was determined that Defendant was incapable of assisting in his defense at trial. Defendant was ordered into treatment at the Eastern Louisiana Mental Health System, Forensic Division. A mental competency hearing was held on October 2, 2015. The trial court found Defendant to be competent to proceed to trial. A jury trial commenced on December 15,2015. Defendant was found guilty as charged on December 16, 2015. A presentence investigation report was ordered by the trial court. Defendant was sentenced on March 16, 2016, to the maximum sentence of ten years imprisonment at hard labor. Defendant filed a timely “Motion to Reconsider Sentence,” in which he asserted that the sentence was excessive under the circumstances of his case. The motion was denied without a hearing on March 16,2016.
Defendant has perfected a timely appeal/ Defendant’s appellant counsel asserts that the imposition of the maximum sentence of ten years at hard labor was constitutionally excessive under the circumstances of the case. For the following reasons, we find merit with this assignment of error. Therefore, we vacate the sentence and remand the case to the trial court for resentenc[ing]. However, we find no merit to any of Defendant’s pro-se assignments of error.

State v. Lafleur, 16-467, p. 1 (La.App. 3 Cir. 1/4/17), 209 So.3d 927, 928-29.

On March 9, 2017, the trial court conducted a resentencing hearing and sentenced Defendant to ten years at hard labor with three of those years suspended. Also, the trial court ordered five years of probation, Defendant now appeals, alleging the new sentence is illegal.

FACTS ■

The previous appeal recited the following facts:

pin the early evening of October 31, 2013, on Halloween, the victim, David Savoy, and his family were out trick-or-treating, Mr. Savoy was sitting in his truck in a neighbor’s driveway after hiswife and children had gotten out of the truck. As Mr. Savoy sat waiting, Defendant approached the truck, pointed a rifle at Mr. Savoy, and asked Mr. Savoy something about Defendant’s baby and a neighbor’s swimming pool. Mr. Savoy testified Defendant stood about ten yards away and held the gun on him for about ten to fifteen seconds. Defendant then lowered the rifle and walked away. Mr. Savoy said he did not know what Defendant was asking him and that he was in fear for his life.

Id. at 929.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find there is one error patent.

The trial court improperly advised Defendant he had “two years from this day to file any post-conviction relief petitions.” Louisiana Code of Criminal Procedure Article 930.8 provides the prescriptive period for filing post-conviction relief is two years which begins to run when a defendant’s conviction and sentence become final under the provisions of La.Code Crim.P. arts.. 914 or 922. Therefore, the trial court is instructed to correctly inform Defendant of the provisions of. Article 930,8 by sending appropriate written notice to Defendant within, ten days of the rendition of this opinion and to file written proof in the record that Defendant received the notice.

ASSIGNMENT. OF ERROR

In his sole assignment of error, Defendant argues that his sentence of ten years with three suspended and five years of probation is excessive. In addition, he complains that, the trial court did not take his mental health into account as ordered by this court. This court stated: “[W]e vacate the sentence and remand the ease to the trial court for resentencing to consider Defendant’s mental illness at the time of the offense as a mitigating factor.” Id. at 941.

| ^Defendant's counsel filed á written motion to reconsider sentence, which the trial court denied in open court. The motion merely alleged excessiveness and did not raise the mental health issue; also, at the resentencing hearing counsel did’ not raise the trial court’s non-compliance with'this court’s ruling. Therefore, we will not address the trial court’s failure to consider Defendant’s mental health as a mitigating factor.

The analysis for excessive-sentence claims is well-established. This court has explained:

In State v. Fontenot, 06-226, pp. 7-5 (La.App. 3 Cir. 7/12/06), 934 So.2d 935, 940-41 (alteration in original), we stated that the analysis for excessive sentence claims is well-settled and wrote:
To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a, needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 (La. 5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615 136 L.Ed.2d 539 (1996).

State v. Barling, 00-1241, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-838 (La. 2/1/02), 808 So.2d 331.

Further, in State v. Whatley, 03-1275, p. 6 (La.App. 3 Cir. 3/3/04), 867 So.2d 955, 959, this court stated, “The fifth circuit, in [State v.] Lisotta, [98-648 (La.App. 5 Cir. 12/16/98),] 726 So.2d [57] at 58, [writ denied, 99-433 (La.6/25/99), 745 So.2d 1183] stated that the reviewing court should consider three factors in reviewing the trial court’s sentencing discretion: 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. Brannon, 07-431, pp. 15-16 (La. App. 3 Cir. 12/5/07), 971 So.2d 511, 521-22, writ denied, 07-2465 (La. 5/9/08), 980 So.2d 689 (alterations in original).

Regarding the nature of the crime, it can logically be viewed as one that caused fear to the victim, as Defendant pointed a rifle at him. Regarding Defendant’s nature and background, the prior opinion noted:

The only information regarding Defendant’s background came from the presentence investigation report. The report indicated that Defendant was essentially raised by his grandparents and had no relationship with his parents or siblings. There was evidence of physical and emotional abuse. Defendant began doing drugs and alcohol at a very early age. He dropped out of high school in the ninth grade but obtained his GED. At the time of the report, Defendant was thirty-nine years old.
The report also contained a summary of his mental health history, taken from the reports submitted by Doctor Hayes and Doctor Anderson. The presentence investigation report also noted Defendant’s criminal history, Which was as follows: 1999; aggravated assault, one year unsupervised probation; 2001, an arrest in Texas for assault with bodily •injury of a family member, dismissed; 2003, aggravated assault, six months in the parish jail,; suspended, one year unsUpervised probation; • 2006, driving while' intoxicated • in Texas, - sixty-three days jail, twelve months’ probation; and the current offense.
Except for the above information, nothing was revealed at the sentencing hearing which supported the trial court’s imposition of the maximum sentence other than Defendant’s bad behavior towards the trial court, the prosecutor, and even his own counsel.

LaFleur, 209 So.3d at 934-35.

At the resentencing, hearing, the trial court explained:

THE COURT:
All righty.
The—for the. record, I guess I need to say that I—I was appointed by the Louisiana Supreme Court to sit on all of Mr, Lafleur’s cases. In this particular case, the criminal matter,, the Judge recused himself, the district attorney’s office re-cused themselves, and the general attorney [sic] was appointed, and I was appointed.
On the civil case, I was appointed on that. I contacted the judicial administrator’s office and they indicated that the Supreme Court wished for me to—to handle all of his matters, and I had advised him of that when I appeared in court.
|7The Court of Appeals’ opinion—this matter was tried by the jury. The jury returned a guilty verdict. I ordered a Presentence, and—and the- - defendant was remanded to the Department of Corrections—the custody of the Department of .Corrections. The Court- of Appeals’ opinion, as I said a little bit earlier, affirmed the conviction but sent it back because I had indicated—I had—I had ordered him to serve the. maximum sentence. The Court of Appeals indicated that at the time of the sentencing I was angry at the defendant for his many outbursts in the courtroom. They even pointed out that I—his outbursts continued, and at one point during the sentencing, I advised him that if he did not maintain order in this courtroom that I was going to have his mouth duct taped. I was not angry at Mr. Lafleur. I was upset that—what had just happened.
We met—I met with the assistant attorney general handling the case and with Mr. Marcantel. When I got the Presentence Report, we went over it. I indicated that I was—I was considering a sentence in jail that partially was suspended on—conditioned that he not insult, threaten, or have any other outbursts of the kind that we’ve been having on and on. And in the particular case of—of his civil matter, the Court granted a protective order after hearings with a number of people testifying, including the mother of his child, and I think her family was here, everybody was here. Had a second hearing later after that protective order stopped where he was—he was continuing to either threaten them or convey threats to them of—of fear that they were harming his child, and I granted a permanent injunction in the civil case.
So I have the background of information that I had the civil case by order of the Supreme Court, and it involved threats. I have this case, and the Pre-sentence involved a number of prior threats. I advised Mr.—and Pm not sure that Mr. Marcantel even had an opportunity. Mr. Lafleur on the day of sentencing was very upset. I’m not sure that he had—you had—you had a chance. I know you went and met with him to show him the Presentence Report, but immediately upon coming in the courtroom, my assumption is he understands I’m going to suspend a portion of his sentence on the condition that he not threaten or—and immediately he cursed and threatened—I think he called the assistant attorney general an imbecile, and he threatened myself, and he threatened Judge Gunnell. He was— he was in a very angry manner at the sentencing. To me, at the time, obviously, he did not want to partake in any conditions of probation, and he would not comply with any conditions of probation. So I gave him the maximum sentence.
This—this recommendation by the attorney general’s office, I mean, that’s— I’m not sure that this will work unless Mr.—we may be back .here on a motion to revoke probation if that—if he continues to threaten someone, but I’m going to follow the recommendation that the attorney general’s office , had made, and the Court sentences the defendant to-a term of seven years of which three of the seven are to be suspended. He’s placed on probation for a five-year period of time after his release, and the conditions of probation are as outlined in the prepared order by the attorney general’s office.
IsThis is another chance for—at some period of time for him to be released before the ten years is up. If you continue—and—and, Mr. Lafleur, I’ve told you this in court before: If you continue to threaten and insult court officials that your suspended sentence is not available for you. Any part of a sentence cannot be suspended if you’re not going to abide by the conditions.
So with that in mind, the sentence of the—I follow all the recommendations of the—of the . attorney general’s office. I’ve changed the date on it ’cause it was set for February but Concordia did not transport him here for the date and the time, but we had all comé before. They brought him yesterday. He’s here today. It’s completed. I have signed that, and I have all the other orders in here, and I dated it today, the 9th of March, 2017, and that will be the order of the Court.

The record provides an explanation for both the prior sentence and the current sentence, including the thinking behind the term of probation. The transcript of the rehearing reveals a correction to the seven year sentence expressed above when the defense counsel stated: “I think that what you orally stated was his sentence doesn’t conform with this order[J” To which the trial judge responded: “Ten years hard labor of which three are suspended.” Thus, the trial court sentenced him to ten years at hard labor with three years suspended, not seven years with a three-year suspended sentence.

The third Lisotta factor is a survey of sentences for similar crimes in this and other courts. However, the legislature amended La.R.S. 14:37.4 in 2012 to increase the maximum penalty from five years to ten years. The only case we have found under the newer sentencing regime is the prior appeal of the present case. When five years was the maximum sentence, various cases approved maximum or near-maximum sentences: State v. Fomond, 05-540 (La.App. 3 Cir. 1/18/06), 921 So.2d 1103 (four years each on two concurrent counts); State v. Jackson, 43,818 (La. App. 2 Cir. 1/14/09), 1 So.3d 841 (four years and three months); and State v. Johnson, 39,813 (La.App. 2 Cir. 8/17/05), 908 So.2d 1261 (five years). We also note State v. Qualls, 40,630, p. 36 (La.App. 2 Cir. 1/27/06), 921 So.2d 226, 248, a habitual offender case in |3which the underlying offense was a violation of La.R.S. 14:37.4 (ten years for defendant who had “chronic difficulties with obeying the law” and discharged a weapon near a large crowd).

Looking to the trial court’s reasoning, we note that if Defendant refrains from illegal conduct after he is released, he could serve seven years in prison, three years short of the maximum. We do not find Defendant’s sentence excessive.

DECREE

Defendant’s new sentence is affirmed. However, the trial court is instructed to correctly inform Defendant of the provisions of La.Code Crim.P. art. 930.8 by sending appropriate written notice to Defendant within ten days of the rendition of this opinion and to file written proof in the record thát Defendant received the notice.

AFFIRMED WITH INSTRUCTIONS’

PICKETT, J., dissents and assigns reasons.

Pickett, J.,

dissents and assigns reasons.

In State v. Lafleur, 16-467 (La.App. 3 Cir. 1/4/17), 209 So.3d 927, this court found this defendant’s ten year sentence to be constitutionally excessive. As a result, we vacated the sentence, ordering:

[W]e vacate the sentences and remand the case to the trial court for resentenc-ing to consider Defendant’s-mental illness at the time of the offense as a mitigating factor.

On remand, the trial court resenténced the defendant, but the record before us reflects the trial court did not take the defendant’s mental illness at the .time of 'the offense into account when resentencing the defendant. Therefore, I would again vacate the defendant’s sentence and remand to the trial court to comply with this court’s instructions.

      . State v. Lisotta, 98-648 (La.App. 5 Cir. 12/16/98), 726 So.2d 57, writ denied, 99-433 (La. 6/25/99), 745 So.2d 1183 (cited above in Brannon, 971 So.2d 511).


author: WELCH, J.

text:
    Bernell RANSON v. Evan C. COOPER
    No. 2016 CA 0029
    Court of Appeal of Louisiana, First Circuit.
    September 19, 2016

      Bernell Ranson, Gonzales, LA, In Proper Person—Appellee, Plaintiff—Bernell Ranson
    Stephen C. Poss, Baton Rouge, LA, Attorney for Appellant, Defendant —Evan C. Cooper
    BEFORE: WELCH, CRAIN, AND HOLDRIDGE, JJ.
   WELCH, J.

Defendant-appellant, Evan C. Cooper ("appellant”), appeals a ruling from the City Court .of Port Allen, Parish of West Baton Rouge, ordering him to pay plaintiff-appellee, Bernell Ranson (“appellee”), $425.00 with judicial interest. The $425.00 represents an advance of one-half month’s rent provided by the appellee to the appellant in connection with a mobile home. For the reasons which follow, we affirm the judgment.

FACTS AND PROCEDURAL HISTORY

In June of 2014, the appellee responded to an advertisement posted by the appellant on Craigslist for the rental of a mobile home located on Dene’s Legacy Lane in Port Allen, Louisiana (referred to herein as the “premises”). .The appellant initially informed the appellee that the premises had been rented; however, shortly thereafter, the appellant re-contactéd the appellee to inform him that the premises was. back on the market due to deficiencies in the finances of the prospective lessors.

On June 25, 2014, the appellee sent the appellant $850.00 as a deposit for the mobile home, and on. June 80, 2014, at the appellant’s request, the appellee sent an additional .$425.00 to cover one-half of the rent for July. The appellee notified the appellant that he would be traveling from Colorado to Louisiana to view the premises in person. The parties made arrangements to meet on July 7, 2014; however, the appellant did not show up. When the appellee arrived, he found that the electricity was not turned on as promised and there was no kennel for his dogs. Further, the appellee was displeased to learn that the premises was situated approximately 100 yards from a race car track and that a neighboring mobile home was located approximately 20 feet from the premises.

Text messages exchanged between the parties demonstrate that on -July 5, 2014, prior to the appellee’s arrival in Louisiana, the appellant offered , the appellee the opportunity to view another mobile home he was offering for' rent. The appellee ultimately declined both properties. A text message dated July 8, 2014 from the appellant states: “This evening you informed me neither trailer will work to your satisfaction, and requested a refund. When lost rent and time expended on re-renting the trailer is tallied, a complete accounting will be provided.” The appellant found another lessor for the premises, who moved in on August 15, 2014.

The appellant never returned the deposit and rental fees to the appellee, which led to the appellee filing suit with the Small Claims Division of the City Court of Port Allen. The suit was later transferred to the regular civil division of that court and set for trial.

A bench trial was held and the matter was taken under advisement. On September 28, 2015, the trial court rendered and signed a judgment finding that the appellant was entitled to retain the “advanced deposit” of $850.00. Further, the judgment granted the appellee an award in the amount of $425.00, together with judicial interest from the date of judicial demand until paid. Each party was ordered to bear their own costs. The trial court did not provide written or oral reasons for judgment, nor did either party request such reasons under La. C.C.P. art. 1917(A).

On September 28, 2015, the deputy clerk of court mailed notice of the judgment to the parties. On October 6, 2015, the appellant filed a motion for new trial, which was denied on October 15, 2015. Notice of the judgment denying the motion for new trial was mailed to the parties on October 16, 2015; however, there is no evidence in the record to demonstrate when the appellant received the denial on the motion for new trial. On November 10, 2015, the appellant filed a motion for suspensive appeal. The 25-day delay between the issuance of the judgment and the filing for appeal requires consideration of the timeliness of the appellant’s appeal, which we address below.

LAW AND DISCUSSION

Timeliness of Appeal

Louisiana Code of Civil Procedure article 5002 provides as follows with regard to appeal delays from parish and city courts:

A. An appeal from a judgment rendered by a city court or a parish court may be taken only within ten days from the date of the judgment or from the service of notice of judgment when such notice is necessary.
B. When an application for new trial is timely filed, however, the delay for appeal commences on the day after the motion is denied, or from service of notice of the order denying a new trial, when such notice is necessary.

[Emphasis added.]

Focusing on the phrase “from service of notice of the judgment,” the Louisiana Supreme Court and this court have held that the 10-day appeal delay provided for in La. C.C.P. art. 5002 commences to run upon receipt of notice rather than upon the mere mailing of said notice. See Myles v. Turner, 612 So.2d 32, 35 (La.1993); Keesler Federal Credit Union v. Rivero, 2014-0095 (La.App. 1 Cir. 9/19/14), 153 So.3d 1218, 1220.

Under La. C.C.P. art. 1914(C), the clerk of court is required to mail the denial of a motion for new trial, thus, the appeal delay herein commenced 10-days from receipt of the denial of a new trial. In the instant matter, the appellant’s appeal was filed 25 days after the mailing of the notice of denial; however, there is nothing in the record to indicate what date the appellant received said notice. Observing this deficiency, this court issued a remand order directing the trial court to hold a hearing to determine when the appellant received notice of the denial of the motion for new trial issued on October 16, 2015.

Following an August 16, 2016 hearing, the trial court issued an order finding that “there is no way to determine when [the appellant] actually received the notice of the denial of the Motion for a New Trial but, at the latest, notice was mail[ed] to his address of record on October 16, 2016.” The order notes that the appellant “did not specifically testify when he received the notice, nor did he specifically deny receiving the notice of the denial.” Appeals are favored in the law and should be maintained unless a legal ground for dismissal is clearly shown. See Richardson v. North Oaks Hospital, 2011-1258 (La.App. 1 Cir. 2/13/12), 91 So.3d 361, 364. An appeal is not to be dismissed for a mere technicality. Id. Further, unless the ground urged for dismissal is free from doubt, the appeal should not be dismissed. Thomas v. Bridges, 2012-1439 (La.App. 1 Cir. 6/28/13), 120 So.3d 338, 341, aff'd. 2013-1855 (La. 5/7/14), 144 So.3d 1001. Mindful of the favored status of appeals and the inconclusive record before us, despite efforts to clarify, we are constrained to find the appellant’s appeal timely and to consider the merits below. See Myles v. Turner, 612 So.2d at 35; Keesler Federal Credit Union v. Rivero, 153 So.3d at 1221; Hacienda Construction, Inc. v. Newman, 10-18 (La.App. 5th Cir. 6/29/10), 44 So.3d 333, 336.

The Existence of an Oral Lease

The only issues raised in this appeal are the $425.00 award to the appellee and the order that each party must bear his own costs. The appellant asserts that an oral lease was confected between the parties; thus, the appellee breached the lease when he refused to take possession of the premises. The appellant avers that the appel-lee’s breach entitles him to compensation for all lost rent incurred prior to his releasing of the property in the amount of $1,275.00. T he appellant, citing the trial court’s lack of reasons for judgment, alternatively argues that if the trial court’s judgment is based upon the assumption that no lease existed between the parties, then the trial court’s award of $425.00 to' the appellee amounts to a manifest error and must be reversed.

A lease may be made orally or in writing; nevertheless, there must be a contract. La. C.C. art. 2681. The essential elements of a lease are the thing, the price (rent), and consent of the parties. GE Commercial Finance Business Property Corporation v. Louisiana Hospital Center, L.L.C., 2013-0029 (La.App. 1 Cir. 9/13/13), 134 So.3d 616, 620. A contract is formed by consent of the parties established through offer and acceptance that may be made orally, in writing, or by action or inaction that is clearly indicative of consent. La. C.C. art. 1927. However, where there is no “meeting of the minds” between the parties, there is no consent, and thus, no enforceable contract. Key Office Equipment, Inc. v. Zachary Community School Board, 2015-1412 (La.App. 1 Cir. 4/15/16), 195 So.3d 54, 60, writ denied. 2016-0841 (La. 6/17/16), 192 So.3d 772.

Whether a lease exists is a question of fact. Southern Treats, Inc. v. Titan Properties, L.L.C., 40,873 (La.App. 2nd Cir. 4/19/06), 927 So.2d 677, 683, writ denied, 2006-1170 (La. 9/15/06), 936 So.2d 1271; see also Commercial Flooring & Mini Blinds, Inc. v. Edenfield, 2013-0523 (La.App. 1 Cir. 2/14/14), 138 So.3d 30, 36. A party claiming the existence of a contract has the burden of proving that the contract was perfected between himself and his opponent. See La. C.C. art. 1831; Pennington Construction, Inc. v. R A Eagle Corporation, 94-0575 (La.App. 1 Cir. 3/3/95), 652 So.2d 637, 639.

A court of appeal may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong, and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its. own evaluations and inferences are as reasonable. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Id.

Here, the record reveals conflicting testimony by the parties regarding a meeting of the minds between the parties as to the existence of a lease. During the trial, the trial court questioned the' appellee regarding his understanding of the agreement between the parties, to wit;

Q: The proposed rental before you came down and saw it? What were y’all—, what were your discussions with that?
A; Well the only thing I had, I had what was on Craig’s list [sic] $850. And he told me when I called him, he said yeah, $850 uh as a damage deposit, $850 per month and that was, that was it. So then when he got back in touch with me and told me that the property was available again, he said, sent me $850 the damage deposit. An uh then uh he said, well uh can you send me half a month’s rent? And I said sure, that’s not a problem, I’ll send you half a month’s rent. I just want to be able to see the property and verify whether or not I want to live there.
,Q: So you had not agreed—you’re saying, you’re saying over the phone, you had not agreed to rent the property?
A: No, I had not agreed.

After the appellee stated there was no agreement as to a lease, the trial court asked the appellee what he believed was the purpose of the deposit. The appellee explained that he wanted to show the appellant that he had the financial wherewithal to rent the property, and to distinguish himself from the prior potential lessors that had been unable to meet the financial requirements.

In contrast, the appellant testified that an oral lease existed between the parties as they had agreed to the term of one year and 'a monthly rent amount of $850.00. The appellant testified he removed- the listing from the internet after the appellee informed him that he wanted to rent the property, and also conferred with the ap-pellee’s banker to confirm that the appel-lee had the financial means for the lease. According to the appellant, “the deposit was to hold the trailer and then because he wasn’t arriving until later in the month, I asked him to transmit a uh a half month’s rent.” The appellant explained that at some point he and the appellee discussed the issue of toning on the electricity,' location of the premises, and other details regarding the property.

The appellant also introduced a series of text messages between the appellee and himself. Review of the text messages reveals a fluid situation. For example, 'on June 23, 2014 the appéllee texted “I want it [“the premises”] what do i have to do to secure this house.” However, on June . 24, 2014, the appellant texted the appellee as follows: “Did you decide not to rent my trailer” and the appellee responded, “Not yet you are still at the top of my list[.]” Review as a whole reveals messages regarding the transfer of funds for the deposit and rent, but no express evidence of a lease. Moreover, in a text message dated July 5, 2014, during the period which the appellant alleges that the lease was' in existence, the appellant offered for the ap-pellee’s consideration another mobile home for $900.00 per month as an alternative to the premises.

As noted above, the existence of a lease is a question of fact to be determined by the trial court. Here, the appellant had the burden of proving the existence of the lease. Based upon the conflicting nature of the testimony and text messages as to the existence of an oral lease, we cannot And that the holding of the trial court was manifestly erroneous when viewed in light of the evidence contained in the record.

Award of Costs

The appellant challenges the trial court’s'finding that both parties must bear their own costs associated with the lower court’s action. Both the trial and appellate courts are vested with discretion in the apportionment of costs. La. C. C.P. art. 1920. On review, a trial court’s assessment of court costs can be reversed by this court only on a showing of abuse of discretion. Ratcliff v. Mandeville, 551 So.2d 761, 763 (La.App. 1st Cir.1989), writ denied, 556 So.2d 37 (La.1990). We find no abuse of discretion in the trial court’s assessment that costs be borne by each party, and we will therefore not disturb the ruling.

CONCLUSION

For the above reasons, we affirm the September 28,' 2014, judgment of the City Court of Port Allen. All costs of this appeal are to be paid by the appellant/deferidant, Evan C. Cooper.

AFFIRMED.

      . Louisiana Code of Civil Procedure article 1917(A) provides:
      In all appealable contested cases, other than those tried by a jury, the court when requested to do so by a party shall give in writing its findings of fact and reasons for judgment, provided the request is made not later than ten days after the mailing of the notice of the signing of the judgment.

      . The instant matter involves the denial of a motion for new trial; however, the reasoning applied in Myles and Keesler to judgments rendered by a city court under La. C.C.P. art. 5002(A) would apply to the denial of a motion for new trial under La. C.C.P. art. 5002(B), as the delays in both instances commence "from service.”

      . The propriety of the $850.00 award to the defendant has not been challenged by the defendant in this appeal, nor has the plaintiff filed an answer to the appeal challenging the $850.00 award. Matters neither assigned as error nor argued, or, matters assigned as error but not argued may be considered abandoned. See Uniform Rules-Courts of Appeal 2-12.4.


author: WICKER, J.

text:
    STATE of Louisiana v. Mario CHAVEZ
    NO. 16-KA-445
    Court of Appeal of Louisiana, Fifth Circuit.
    December 07, 2016

      COUNSEL FOR PLAINTIFF/APPEL-LEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux
    COUNSEL FOR DEFENDANT/APPELLANT, MARIO CHAVEZ, Holli A. Herrle-Castillo
    Panel composed of Fredericka Homberg Wicker, Jude G. Gravois, and Hans J. Liljeberg
   WICKER, J.

h Defendant, Mario Chavez, challenges his fifty-year sentence for his sexual battery upon a known juvenile conviction in violation of La. R.S. 14:43.1. Because we find the trial judge imposed an indeterminate sentence, we vacate defendant’s sentence and remand for resentencing.

STATEMENT OF THE CASE

On October 17, 2014, the Jefferson Parish District Attorney filed a bill of information charging defendant with sexual battery upon a known juvenile under the age of thirteen, by touching the victim’s genitals, in violation of La. R.S. 14:43.1. Defendant pled not guilty at arraignment and the matter proceeded to trial by jury. On April 14, 2016, a twelve-person jury found defendant guilty as charged. On April 21, 2016, defendant filed a motion for new trial, which the trial judge denied. On that same date, after defendant waived sentencing delays, the trial judge sentenced defendant to imprisonment at hard labor for fifty years with “at least” twenty-five years of the sentence to be served without benefit of parole, probation, or suspension of sentence.

In this appeal, defendant’s sole assignment of error is the claim that his fifty-year sentence is excessive.

ERRORS PATENT

In each case, this Court reviews the record before us for errors patent, in accordance with La. C.Cr.P. art. 920 and State v. Oliveaux, 312 So.2d 337 (La. 1975), regardless of whether defendant makes such a request. State v. Bone, 12-34 (La. App. 5 Cir. 9/11/12), 107 So.3d 49, 68. The record in this case presents the following error patent requiring corrective action:

The sentencing transcript reflects that the trial judge sentenced defendant to fifty years at hard labor and stated that “at least 25 years shall be served without the benefit of parole, probation, or suspension of sentence.” The commitment ^reflects that the trial judge sentenced defendant to fifty years at hard labor with the first 25 years to be served without benefits. Where there is a conflict between the transcript and commitment, the transcript prevails. State v. Collins, 07-0310 (La. 10/12/07), 966 So.2d 534, 535; State v. Lynch, 441 So.2d 732, 734 (La. 1983); State v. Collins, 09-283 (La.App. 5 Cir. 12/8/09), 30 So.3d 72, 87.

A trial court must impose a determinate sentence. La.C.Cr.P. art. 879. Because the sentence imposed does not specify the period of time during which defendant is ineligible for parole, we find defendant’s sentence is not fully determinate and must be set aside. See State v. Matthews, 94-2702 (La. 3/10/95), 650 So.2d 1170 (holding that “[r]elator’s sentence of forty years at hard labor, ‘at least’ ten years of which must be served without parole eligibility, is vacated and this case is remanded to the district court with instructions to resen-tence relator to a determinate, sentence which specifies the extent of parole disability in a fixed number of years”); State v. Harris, 11-253 (La.App. 5 Cir. 12/28/11), 83 So.3d 269, 284-85, citing State ex rel Dawson v. Ballard, 460 So.2d 595 (La. 1984) (holding “[cjase remanded for reim-position of a fully determinate sentence as to duration of period without benefit of parole”). Accordingly, defendant’s sentence is vacated and this matter is remanded to the trial court for resentencing in compliance with La. R.S. 14:43.1.

SENTENCE VACATED; MATTER REMANDED