author: PICKETT, Judge.

text:
    The SWEET LAKE LAND AND OIL COMPANY, et al. v. OLEUM OPERATING COMPANY, L.C., et al.
    17-464
    Court of Appeal of Louisiana, Third Circuit.
    10/18/2017

      Guy E. Wall, Paul E. Bullington, Jonathon R. Cook, Sara Lewis, Wall, Bullington & Cook, LLC, 540 Elmwood Park Blvd, Harahan, LA 70123, (504) 736-0347, COUNSEL FOR PLAINTIFF-RESPONDENT: Sweét Lake Land & Oil Co., LLC
    James P. Doré, Alan J. Berteau, Shan-nan Sweeney Rieger, Deborah J. Juneau, R. Benn Vincent, Jr., Matthew B. Smith, Hattie V. Guidry, Kean Miller LLP, P. O. Box 3513, Baton Rouge, LA 70821, (225) 387-0999, COUNSEL FOR DEFENDANTS-APPLICANTS: Sohio Petroleum Company, BP Exploration & Oil, Inc., BP Exploration, Inc., BP Products North America, Inc.
    Court composed of John D. Saunders, Elizabeth A. Pickett, and Shannon J. Gremillion, Judges.
   PICKETT, Judge.

| jDefendants-Relators, BP Products North America, Inc.; BP Exploration & Oil, Inc.; BP Exploration, Inc.; and Sohio Petroleum Company (“BP”), seek a supervisory writ from the judgment of the trial court which denied their Motion for Adoption of LDNR’s Most Feasible Plan Pursuant to La.R.S. 30:29 and ordered LDNR to submit a final plan by July 8, 2017.

STATEMENT OF THE CASE

•This case involves an oilfield' contamination lawsuit that is governed by the 2012 version of La.R.S. 30:29, which was originally enacted by 2006 La. Acts 312 (Act). The plaintiff, the Sweet Lake Land & Oil Company, LLC, (Sweet Lake) filed suit against BP, among other defendants, alleging environmental damage to its property caused by decades of oil and gas exploration activities. After trial, conducted from May 11 through May 27, 2015, the jury found BP 100% liable for the environmental damage. On September 11, 2015, the trial court referred the case to the Louisiana Department of Natural Resources, Office of Conservation, (LDNR) for a public hearing and the development of the most feasible plan under La.R.S. 30:29. The judgment also ordered BP to submit to LDNR a plan to “remediate to applicable regulatory standards the , contamination that resulted in the environmental damage to the Property.” LDNR held a public hearing from April 25 through April 28, 2016.

Based upon the evidence presented and in response to questions raised by the LDNR panel, the LDNR issued and filed in the trial court record its “Most Feasible Plan and Written Reasons' in Support as Required by La.R.S. 30:29” (LDNR plan) on October 3, 2016. Thereafter, on October 16, 2016, BP filed its motion for adoption of LDNR’s plan pursuant to La.R.S. 30:29. Sweet Lake opposed the adoption, arguing the motion was premature because the plan was not |ya “final plan” to clean up the property and was not even a “final plan” to evaluate the property. In reply, BP argued that the LDNR plan was a final plan, as La.R.S. 30:29 specifically contemplates that the final most feasible plan can require evaluation only, and the LDNR plan does much more.

At the February 15, 2017 hearing, the trial court denied BP’s motion, ordering LDNR to perform additional work because the plan was only partially a remediation plan. The trial court’s greatest concerns were those “parts” or areas of contamination, namely the groundwater and flow-lines, where LDNR admittedly did not have enough information to formulate a remediation plan. In its written judgment, signed on May 9, 2017, the trial court specifically required the final plan to address those questionable areas and provide a remedial plan of action for same:

a. Address groundwater remediation on the property. ... The final remediation plan may contain clean up options that depend upon the results of additional information and should be accompanied by an estimate of the cost to obtain the additional information. If LDNR is unable to provide the foregoing final remediation plan, it shall provide the Court with information to help the Court better order LDNR to do what needs to be done;
b. Specify the regulation or standard for each clean up activity so that the Court can enforce it;
c. Specify the flowlines on the property and include a remediation plan for flowlines that must be removed;- and
■d. State whether a response or command was received from any other agency to whom the October 3, 2016 LDNR plan was submitted pursuant to La. R.S. 30:29[C](3)(b)(i) and (ii).
The Department shall submit this final remediation plan within 60 days of this order but the Department may move the Court for an extension of this deadline.

BP filed this writ application seeking “prompt” review of the trial court’s rejection of LDNR’s most feasible. plan. We granted the writ for full briefing and to issue an 'opinion and stayed the trial court’s order directed at the LDNR, Sweet Lake Land & Oil Co., LLC v. Oleum Operating Co., L.C., an unpublished writ disposition bearing docket number 17-464 (La.App. 3 Cir. 6/13/17).

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.) A court of appeal has plenary power to exercise supervisory jurisdiction over trial courts and may do - so at any time, according to the discretion of the court. When the trial court’s ruling is arguably incorrect, a reversal will terminate the -litigation, and there is no dispute of fact to .be resolved, judicial efficiency and fundamental fairness to the litigants dictate that the merits of the application for supervisory writs should be decided in an attempt to avoid the waste of time and expense of a possibly useless future trial on the-merits. Herlitz Const. Co., Inc. v. Hotel Inv’rs of New Iberia, Inc., 396 So.2d 878 (La.1981) (per curiam).

- DISCUSSION

The proper interpretation and application of statutory provisions are subject to de novo review. Holly & Smith Architects, Inc. v. St. Helena Congregate Facility, Inc., 06-582 (La. 11/29/06), 943 So.2d 1037, The fundamental question in all cases of statutory interpretation is legr islative intent and the ascertainment of the reason or reasons that prompted the Legislature. to enact the law. In re Succession of Boyter, 99-0761 (La. 1/7/00), 756 So.2d 1122. “When a law is clear and unambiguous and its application does not lead to absurd consequences, the law. shall be applied as written and no further interpretation may be made in search of 14the intent of the legislature.” La.Civ.Code art. 9. Though the language of the law.may be susceptible, to different meanings, it must be interpreted as having the. meaning that best conforms to the purpose of the law, and the words of law must be given their generally prevailing meaning. La.Civ.Code arts. 10 and 11. The meaning of ambiguous terms must be sought by examining the context in which they occur and the text of the law as a whole, and laws on the same subject matter must be interpreted in reference to each other. La.R.S. 1:3; La.Civ. Code. arts. 12 and 13. “Courts should give effect to all parts of a statute and should not give a statute an interpretation that makes any part superfluous or meaningless, if that result can be avoided.” Boyter, 756 So.2d at 1129. “If application of the foregoing rules of interpretation fails to illuminate definitively the legislature’s intent, only then should the rule of strict construction apply to the interpretation of laws in derogation of common rights .... ” Hutchinson v. Patel, 93-2156 (La. 5/23/94), 637 So.2d 415/421.

Through its enactment of La.R.S. 30:29, the legislature established a sequenced protocol for the management of cases alleging environmental contamination and the remediation of contaminated properties. Once the factfinder determines that environmental contamination has occurred and that defendant caused or is legally responsible for such damage, La.R.S. 30:29(C)(emphasis added) sets forth the remediation protocol: -

C,(l) If at any time during the proceeding a party admits liability for environmental damage or the finder of fact determines that environmental damage exists and determines the party or parties who caused the damage or who are otherwise legally responsible therefor, the court shall order the party or parties who admit responsibility or whom the court finds legally responsible for the damage to develop a plan or submittal for the evaluation or remediation to applicable regulatory standards of the contamination that resulted in the environmental damage. The court shall order that the plan be developed and submitted to the department and the court within a, time that the court determines is reasonable and shall allow, | rthe plaintiff or any other party at least thirty days from the date each plan or submittal was made to the department and the court to review the plan or submittal and provide to the department and the court a plan, comment, or input in response thereto. The department shall consider any plan, comment, or response provided timely by any party. The department shall submit to the court a schedule of estimated costs for review of the plans or submit-tals of the parties by the department •and the- court shall ■ require the party admitting responsibility or the party found legally responsible by the court to deposit in the registry of the court sufficient funds to pay the cost of the department’s review of the plans of submittals. Any plan or submittal shall include an estimation of cost to implement the plan
(2)(a) Within sixty days from the last day on which any party may provide the department with a plan, comment, or response to a plan as provided in Paragraph. (C)(1) of this Section, the department shall conduct a public hearing on the plan or plans submitted. When a public hearing is held following a limited admission pursuant to the Code of Civil Procedure Article 1563, then the department shall not conduct an additional. public hearing pursuant to this Section for the same environmental damage. Within sixty days of the conclusion of the hearing, the department shall approve or structure a final plan, or if applicable, a preliminary plan pursuant to Subparagraph (C)(3)(b) of this Section, based on the evidence submitted which the department determines to be the most feasible plan to evaluate or remediate the environmental damage and protect the health, safety, and welfare of the people. The department shall issue written reasons for the plan it approves or structures. On motion of the department, for good cause shown, the court may grant the department additional time, not to exceed sixty days, within which to either conduct the hearing or approve a plan with reasons.
(b) Except as otherwise provided for in this -Section, from the date the party or parties, who admit responsibility or whom the court finds legally responsible for the damage, submit a plan to the department until after the department has filed with the court the approved .feasible plan for the evaluation or remediation of the environmental damage, no party to the litigation, either directly or indirectly, shall have ex parte communication with any employee, contractor, or representative of the department regarding the formation of the feasible plan or an agency providing comments to the department regarding the formation of the feasible plan. The feasible plan issued by the department shall contain a signed affidavit of compliance with this restriction. Any comments provided by an agency to the department shall also contain a signed affidavit of compliance with this restriction.
(3)(a) The department shall use and apply the applicable regulatory standards in approving or structuring a plan that the department determines to be the most feasible plan to evaluate' or remediate the- environmental damage.
(b)(i) If the department preliminarily approves or structures a preliminary plan that requires the application of regulatory standards of an agency other than the department or that provides \ fían exception from the department’s standards, within fifteen days of such preliminary structuring or approval, the department shall submit the plan to the Department of Agriculture and Forestry, the Department of Environmental Quality, and the Department of Natural Resources for review and comment. Within thirty days after the department’s submission of the plan to all of the agencies, each agency may provide written comments regarding the plan. Each agency providing written comments shall submit a schedule'of the agency’s costs for review of the plan to the court for reimbursement by the responsible party. Failure of an agency to respond to the department shall not affect the validity of the plan approved by the department. The department and agency heads shall coordinate in order to establish protocol to ensure inter-agency communication regarding plan development, timely delivery of all proposed plans to the appropriate agency heads, and timely receipt of all agency comments back to the department,
(ii) Within thirty days after the receipt of any agency’s written comments, the department shall file in the court record the final plan, with written reasons that the department determines to be the most feasible plan to evaluate or remediate the environmental damage under applicable regulatory standards, together with any comments submitted by an agency under Item (i) of this Subparagraph. Based on the findings of the department, the department may. issue any compliance order it deems necessary to either the operator of record or, where applicable, a party found responsible or admitting responsibility for implementing the most feasible plan to evaluate" or remediate the environmental damage under applicable regulatory standards. If a compliance order is issued against the responsible party who is not the current operator of record, the responsible party shall give the current operator of reeord notice of the compliance order within thirty days of the responsible party’s receipt of the compliance order.
(4) The plan approved by the department for submission to the court shall not be considered to be an adjudication subject to appellate review pursuant to R.S. 49:964 or R.S. 30:12.
(5) The court shall adopt the plan approved by the department, unless a party proves by a preponderance of the evidence that another plan is a more feasible plan to adequately protect the environment and the public health, safety, and welfare. The court shall enter a judgment adopting a plan with written reasons assigned. Upon adoption of a plan, the court shall order the party or parties admitting responsibility or the party or parties found legally responsible by the court to fund the implementation of the plan.
(6)(a) Any judgment adopting a plan of evaluation or remediation pursuant to this Section and ordering the party, or parties admitting responsibility or the party or parties found legally responsible by the court to deposit funds for the implementation thereof into the registry, of the court pursuant to this Section shall be considered a final judgment pursuant to the Code of Civil Procedure Article 2081 et seq., for purposes of appeal.
|7(b) Any appeal under this Section shall be a de novo review and shall be heard with preference and on an expedited basis.
(c) The appellate court may affirm the trial court’s adoption of a plan or may adopt a feasible plan in conformity with this Section and shall issue written reasons for its decision.

As contemplated by these provisions, a trial court, upon a finding of liability/responsibility, (1) refers the matter to LDNR to develop a remediation plan, (2) orders the responsible party to develop a plan for the “evaluation or remediation to applicable standards” of the contamination and submit same to LDNR and the court, and (3) allows the plaintiff and other parties to review the plan submitted by the responsible party and to provide to LDNR and the court a plan, comment, or input in response thereto. La.R.S. 30:29(C)(1). LDNR then conducts a public hearing on the submitted plans and either approves one of the submitted plans or, comes up with its own plan. La.R.S. 30:29(C)(2) <& (3). If LDNR’s plan requires the application of another agency’s regulatory standards or an exception from'LDNR’s standards, LDNR must submit its preliminary plan to the other agencies for review and comment, but failure of an agency to respond does not affect the validity of the plan. La.R.S. 30:29(C)(3)(b)(i). Thereafter, LDNR files its final plan with written reasons in the trial court record. La.R.S. 30:29(C)(3)(b)(ii). The statute then mandates: “The court shall adopt the plan approved by the department, unless a party proves by a preponderance of the evidence that another plan is a more feasible plan to adequately protect the environment and the public health, safety, and welfare.” La.R.S. 30:29(0(5).

' BP challenges the trial court’s refusal to adopt the LDNR plan herein as an error of law in contravention of the mandatory requirements of La.R.S. 30:29(0(5) cited above. First, BP claims the LDNR plan is, in fact, a final plan pursuant to the statutory provisions, which include, by their express terms, plans for “evaluation or remediation.” Under the Act, the plan filed with the trial Rcourt—whether an “evaluation” plan, a “remediation” plan, or both—should be considered the final plan. Therefore, BP argues the trial court had no authority to unilaterally determine the finality of the plan or to decide the LDNR plan was not “final” because it was not a “remediation-only” plan.

Second, BP asserts the LDNR plan satisfies the requirements of La.R.S. 30:29 as it was developed by a panel of LDNR personnel embodying a variety of environmental disciplines that heard the testimony of both parties’ witnesses- and received into evidence documents selected by each party supporting and opposing the plans submitted. Moreover, it contains the detailed findings on the nature and extent of any “environmental damage” and the steps required of BP to address that damage.

Third, BP argues the trial court imper-missibly narrowed the definition of a final most feasible plan to mean a remediation-only plan.. In support of its position, BP cites State v. La. Land & Expl Co., Inc., 82,162 (15th JDC), in which Judge Jerome Winsburg (Ad Hoc)', adopted an LDNR plan, which included a significant evaluation component (including evaluation, of groundwater- and soil). BP further notes this court denied writs, citing the availability of an appeal remedy. State v. La. Land & Expl. Co., Inc., 16-914 (La.App. 3 Cir. 11/30/16) (unpublished).

According to BP, it is undisputed that Sweet Lake did not introduce any evidence to demonstrate that another plan “is, a more feasible plan to adequately protect the environment and the public, health, safety -and welfare.” La.R.S. 30:29(C)(5). BP argues the trial court has essentially usurped the primary role, assigned to LDNR by statute and has no authority to unilaterally determine the finality of a plan in the absence of a showing, by a prepon-, derance of the evidence, of a more feasible plan.

|sIn opposition, Sweet Lake asserts that La.R.S. 30:29 is silent on (1) whether the trial court must accept a final plan, which calls for further evaluation, when it ordered a plan of remediation, as well as (2) the participation of the court and the landowner after a 'final plan is adopted by the court. The trial court'expressed concern that adopting a plan that merely requires the responsible party to submit a plan to LDNR to evaluate the property could lead to a remediation plah not approved by the trial court or with input from the landowner. Sweet Lake notes that no appellate court has addressed these issues despite BP’s claims that' numerous trial courts have adopted similar plans.

Sweet Laké also submits that an' LDNR plan, which orders a responsible party to prepare a plan of investigation and evaluation of groundwater and soil contamination in response to a trial court order requiring a remediation plan, is not a final plan. It further argues the term “evaluation” in La.R.S. 30:29 is used to cover situations where a party settles and assumes responsibility or formally admits responsibility before trial because otherwise damages are evaluated at trial. Moreover, according to Sweet Lake, it does not make sense to issue a final judgment where‘LDNR did not even estimate the cost of further evaluation as La,R.S. 30:29 contemplates the final judgment will order the responsible party to deposit into the trial-court's registry the funds needed to remediate the property. Additionally, Sweet Lake asserts the trial court has primary jurisdiction over-this matter, and LDNR’s stamping of a plan as final-is not determinative. Until LDNR submits a remediation plan, the trial court is not required to adopt the LDNR plan, as the most feasible plan under La.R.S. 30:29.

Alternatively, Sweet Lake.requests that, in the event this court reverses the trial court’s interpretation of La.R.S. 30:29,- this Court remand the matter to the trial court for hearing on the final plan in light of this court’s decision. It also |inclaims that it presented to the trial court an alternative to LDNR’s plan; so if this court grants BP’s writ and detennines remand is inappropriate, Sweet Lake requests that its feasible plan be adopted. Finally, Sweet Lake posits that State v. La. Land & Expl. Co., Inc., has no relevance to the instant matter as this court merely denied writs, and the issue therein was whether plaintiff, and not the responsible party, should perform remediation and evaluation.

This matter raises several res nova issues regarding the authority and roles of the trial court and LDNR after LDNR files its most feasible plan in the trial court record. The primary issue is whether the trial court can order LDNR to re-submit a plan for remediation when the judgment called for such a plan and the originally submitted plan still requires evaluation. Admittedly, the statute does not provide for a resubmission to LDNR but, rather, explicitly mandates the adoption of the plan submitted by LDNR, unless it has been shown by a preponderance of the evidence that a more feasible plan exists. Herein, although Sweet Lake apparently submitted a plan, there was no evidence, much less a preponderance of evidence, as to whether its plan was more feasible than LNDR’s plan. During the hearing, the experts mainly testified regarding the flaws and proper 'interpretation of the LDNR plan.

By the explicit terms of La.R.S. 30:29(C)(2), (3), & (5), the role of LDNR is to develop the most feasible plan and file the plan in the court record, while the role of the trial court is to adopt the plan unless evidence supports otherwise. Nevertheless,’ both the “court and the department shall retain oversight to ensure compliance with the plan.” La.R.S. 30:29(F). The problem herein is that the-judgment called for a remediation plan,-and no one disputes the LDNR plan is not strictly remedial because, even with the expert reports, LDNR did not have sufficient information to formulate a plan for remedial action in certain areas; 1 n namely groundwater contamination and flowlines. Furthermore, while La.R.S. 30:29(C)(5)(b) does provide for a preliminary plan,' the language of La.R.S' 30:29(C)(b)(ii) seems to indicate such, a plan becomes final when filed in the cóurt record and does not provide for preliminary review and comment by the trial court upon submission. Interestingly, the final sentence of the LDNR plan filed herein states: “This will be and/or-is being forwarded. It is being sent- to the other appropriate agencies set forth in La. R.S. 30:29 (C)(3)(b)(i) for comments prior to being finalized and filed with the Court in accordance with La. R.S. 30:29(C)(3) & (4).” The trial court noted the reference as well-, pondering whether it was merely an oversight or whether it indicated the plan was merely preliminary. Arguably,- the filing of the' plan in the trial court record -best indicates its finality as the statute does not provide for preliminary filings.

Moreover, the supreme court in M.J. Farms, Ltd. v. Exxon Mobil Corp., 07-2371, pp. 37-38 (La. 7/1/08), 998 So.2d 16, 32, stated in dicta; “Finally, it is the district court who considers the various restor ration plans, including any that the surface owner may choose to submit, determines which one is most feasible, and oversees the implementation of= the restoration plan. La.Rev.Stat. § 30:29(0(5).” In State v. Louisiana Land and Exploration Co., 12-884, p. 16 (La. 1/30/13), 110 So.3d 1038, 1049, the supreme court explained that “although the La. DNR has input into the plan to remediate the property, the final decision as to the remediation plan adopted rests with the. court. Throughout the remediation process, the' court remains the gatekeeper to ensure the purpose of the Act is accomplished—remediation of the property to the extent of" the public’s interest”

Inherent in the trial, court’s authority as gatekeeper in this statutory scheme is the option of rejecting an LDNR plan it determines is incomplete and ordering LDNR to fully comply with its original order pursuant to the statute. We find the 112trial court did not err here, where LDNR failed to submit a plan for groundwater or flowline remediation, and, instead, its plan consisted of further testing by BP the plan would be revised accordingly. The trial court determined that the submission by LDNR did not constitute a final plan, and, therefore, the submission was incomplete. The trial court ordered LDNR to supplement the plan submitted to the court to include options for groundwater remediation. Based on our interpretation- of the statute and the authority granted to the trial court under the statute, we find no error in the trial court’s failure to approve the final plan or in its order to supplement the plan.

CONCLUSION

After reviewing the judgment of the trial court and the submissions of the parties, we find no error in the trial court’s ruling. The application for supervisory writs filed by BP is hereby denied. The stay issued by this court on June 13 is hereby lifted, and the case is remanded to the trial court for further proceedings consistent with this opinion.

STAY LIFTED. WRIT DENIED.


source: Caselaw Access Project

author: GREMÍLLION, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Patrick Seth JONES
    17-88
    Court of Appeal of Louisiana, Third Circuit.
    10/18/2017

      Carey J. Ellis, III, Louisiana Appellate . Project, P O Box 719, Rayville, LA.71269, (318) 728-2043, COUNSEL FOR DEFENDANT/APPELLANT: Patrick Seth Jones
    Patrick Seth Jones, Camp C—-Wolf 1, Louisiana State Prison, Angola, LA 70712, In Proper Person
    John Foster DeRosier, Fourteenth Judicial District Attorney, Karen C. McLellan, Assistant. --District Attorney, P. O. Box 3206, Lake Charles, LA 70602-3206, (337) 437-3400, COUNSEL FOR APPELLEE: State of Louisiana
    Tara B. Hawkins, Attorney, at Law, P. O. Box 3756, Lake Charles, LA 70602, (337) 660-2232, COUNSEL FOR APPEL-LEE: State of Louisiana
    Court composed of Sylvia R. Cooks, Shannon J. Gremiliion, and Van H. Kyzar, Judges.
   GREMÍLLION, Judge.

hOn January 19, 2015, two men, one masked and the other unmasked, robbed the Royal Palace Casino and employees and patrons of the casino in Calcasieu Parish. Defendant, Mr. Patrick Seth Jones, appeals his convictions on four counts of armed robbery for being the masked gunman who perpetrated the .robberies, as well as his sentences for those crimes. For the reasons that follow, Defendant’s convictions and sentences are affirmed.

FACTS

Mr. Daniel Lavergne entered the Royal Palace Casino on the night of January 19, 2015, and shortly thereafter exited it. He repeated this behavior once again, before entering the casino a third time and walking to the bar, where he ordered a “Crown and Coke” from the assistant manager/cashier/bartender, Ms. Sarah Bushnell. When he was told that • he would be charged $6.00 for that drink, Mr. Lavergne declined.

Another individual entered the casino wearing a mask, gloves, dark pants, a red flannel shirt, and a jacket. The security-guard, Ms. Clara Williams, told him he must remove the mask to enter. This person struck Ms. Williams in the head, grabbed her by the shirt, and hurled her to the floor. He then began to frisk Ms. Williams, demanding to know where her gun was. By this time, the masked individual had produced a gun himself.

Mr. Lavergne then moved to the doors to act as a lookout while the masked man led Ms. Bushnell to the back. Ms. Bushnell and Ms. Williams opened the casino safe for the masked robber. Mr. Lavergne robbed items from the other casino customers. The two bandits fled in a dark SUV that had been backed into a Ighandicapped parking space just , outside the main entrance. Ms. Bushnell then called police.

Detective Shaun Stewart of the Sulphur Police Department investigated the crime. Detective Stewart obtained the surveillance video from the casino and contacted the Orange, Texas, Police Department. Members of that department identified Mr. Lavergne as the unmasked perpetrator from his distinctive hair style, facial hair, and neck tattoo. According to Detective Stewart, on May 4, 2015, he interviewed Mr. Lavergne, who gave a statement implicating Defendant as the masked gunman.

Additionally, Detective Stewart ascertained that Lavergne and Defendant had been to the L’Auberge du Lac Casino in Lake Charles that same night. Detective Stewart obtained surveillance video from that casino, and observed Lavergne and Defendant departing the casino in a dark SUV such as the one observed by Ms. Williams at the Royal Palace.

Defendant was arrested in Orange, Texas, in a convenience store parking lot. He was driving a dark green Toyota Sequoia SUV.

On March 18, 2015, Defendant was charged by bill of information with four counts of armed robbery, violations of Lá. R.S. 14:64, and four counts of armed robbery with a firearm, violations of La.R.S. 14:64.3. On May 3, 2016, the State amended, the bill to combine the charges and reflect only four counts of armed robbery with a firearm, violations.of La.R.S. 14:64 and 14:64.3.

At trial, Mr. Lavergne recanted his identification of Defendant as the masked perpetrator. Mr. Lavergne testified that he was subpoenaed to testify and was not doing so as part of his plea agreement. When asked if another individual was with him when he robbed the casino, My, Lav-ergne replied, “I’d rather not answer that.” [ ¡¡Mr.- Lavergne also denied giving a statement to Detective -Stewart. Although Mn Lavergne stated that the signature on a rights form looked like his signature, he did not .recall giving a statement or signing the-form. After being shown a transcript of the May 4, 2015, statement he gave to Detective Stewart, Mr. Lavergne denied giving the statement. Mr. Lavergne denied arriving at the LAuberge du Lac in a green Toyota Sequoia, and denied knowing how. Defendant arrived there. Mr. Lav-ergne testified that he could not recall how he had arrived at the Royal Palace. He further testified that he ,was picked up from the Royal Palace by a. taxi that returned him to Orange, Texas.

Cell phone transcripts were introduced that contained text messages exchanged between • Mr. Lavergne and Defendant. These text messages discussed splitting cash between the two men. Mr. Lavergne testified • that the money discussed represented Defendant’s winnings from playing blackjack at the Isle of Capri Casino. Mr. Lavergne had received $13,000.00 in a personal injury settlement, and he frequently carried substantial sums of cash. Defendant borrowed money from Mr. Lavergne in order to play blackjack and agreed to split his winnings with him.

Defendant testified at trial. He testified that after they left L’Auberge du Lac, he and Mr. Lavergne drove back to Orange, Texas, ánd he allowed Mr. Lavergne to borrow his Toyota Sequoia. Defendant testified that he had won $7,000.00 at the Isle of Capri, and the text messages between him and Mr. Lavergne concerned the equitable sharing of those winnings. He denied participating in the Royal Palace robbery.

On May 6, 2016, Defendant was found guilty by a unanimous jury of four counts of armed robbery with a firearm. On May 13, 2016, Defendant filed a | ¿Motion for New Trial. The trial court denied the motion for new trial on June 20, 2016, and Defendant waived the time delays for sentencing. On that same date, the trial court imposed the following sentences: 1) Count one—fifty years at hard labor, plus five years for the firearm enhancement; 2) Count two—twenty-five years at hard labor, plus five years for the firearm enhancement; 3) Count three—twenty years at hard labor, plus five years for the firearm enhancement; and 4) Count four— fifty years at hard labor, plus five years for the firearm enhancement. All sentences were ordered to run consecutively, for a total sentence of 165 years.

On June 29, 2016, Defendant filed a Motion for Appeal, which was granted on July 26, 2016. Now before the court is a brief filed by Defendant alleging an assignment of error as to the sufficiency of the evidence and an assignment of error as to the excessiveness of the sentences.

ANALYSIS

Error patent

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by staff for errors patent on the face of the record. After reviewing the record, we find that there are no errors patent; however, the sentencing minutes and the commitment order require correction.

After imposing Defendant’s sentences and providing him information regarding diminution of sentence, enhancement, and a prospective release date, the trial court stated, “Based on the statutes, he’s not eligible for parole.” There are two statutes at issue in this case, La.R.S. 14:64 and 14:64.3, both of which require the sentence imposed to be without benefit of parole, probation, or suspension of sentence. Neither the sentencing minutes nor the commitment order reflect that Defendant’s sentences are to be served without the benefit of parole, probation, or | ^suspension of sentence. “[Wjhen the minutes and the transcript conflict, the transcript prevails.” State v. Wommack, 00-137, p. 4 (La.App. 3 Cir. 6/7/00), 770 So.2d 365, 369, writ denied, 00-2051 (La. 9/21/01), 797 So.2d 62. Accordingly, the trial court is ordered to correct the sentencing minutes and the commitment order to reflect that all of Defendant’s sentences are to be served without the benefit of parole, probation, or suspension of sentence. See State v. Clayton, 10-1303 (La.App. 3 Cir. 5/4/11), 64 So.3d 418, writ denied, 11-1015 (La. 11/4/11), 75 So.3d 923.

Assignment or error number 1 (sufficiency of the evidence).

When the key issue is the defendant’s identity as the perpetrator, the standard by which the sufficiency of the evidence should be reviewed has been noted by this court:

As to the defendant’s assertions that the State failed to prove beyond a reasonable doubt that he killed White, the supreme court in State v. Hughes, 05-992, pp. 5-6 (La. 11/29/06), 943 So.2d 1047, 1051, held:

[W]hen the key issue is the defendant’s 'identity as the perpetrator, rather than whether the’ crime was committed, the State is required to negate any reasonable probability of misidentifícation. State v. Weary, 03-3067 (La. 4/24/06), 931 So.2d 297; State v. Neal, 00-0674 (La. 6/29/01), 796 So.2d 649. Positive identification by only one witness is sufficient to support a conviction. Weary, 03-3067 at p. 18, 931 So.2d at 311; Neal, 00-0674 at p. 11, 796 So.2d at 658; State v. Mussall, 523 So.2d 1305, 1311 (La. 1988). It is the factfinder who weighs the respective credibilities of the witnesses, and this court will generally not second-guess those determinations. State v. Bright, 98-0398, p. 22 (La. 4/11/00), 776 So.2d 1134, 1147.

State v. McCoy, 16-948, p. 2 (La.App. 3 Cir. 5/10/17), 219. So.3d 538, 541.

Although Mr. Lavergne identified Defendant as one of the robbers in his statement to Detective Stewart,. Mr. Lavergne denied making that .statement when Rhe testified at trial. Recently, this court addressed a case in which a key witness recanted her initial identification of the defendant as the perpetrator in State v. Fontenot, 16-226 (La.App. 3 Cir. 11/2/16), 207 So.3d 589. After noting- that La.Code Evid. art. 801(D)(1)(a) permits a- prior inconsistent statement -made by a witness to be used as substantive evidence of guilt when the prior inconsistent statement is corroborated, this court stated:

In the present case, the jury not only heard the evidence that corroborated Sara’s initial statement to police identifying the Defendant as the perpetrator, but. the- jury also heard evidence that discredited Sara’s recantation at trial. At trial, Sara testified that she waited until the Defendant was out of rehab to tell police he was not the person who stole the truck.- On cross-examination, however, she admitted that she waited Until after she. and the Defendant were married, shortly before trial, to recant her statement to police. We find that this discredits her claim that she framed the Defendant only to force him into rehab and bolsters the State’s theory that she changed her story for the purpose of keeping her husband out of jail. The jury heard the evidence as to Sara’s “scheme” and was able, to make a credibility determination. Additionally, Sara testified she stole the truck, and the truck had a standard transmission. The owner of the truck, however, testified the truck had an automatic transmission. Based on the foregoing, we find that the. evidence was sufficient for a reasonable juror to find that the Defendant was the perpetrator.

Id at 601.

As in Fontenot, the jury, in the present case heard evidence that corroborated Mr. Lavergne’s May 4, 2015, statement to police identifying Defendant as one of the perpetrators: Defendant possessed an STJV that matched the description of the SUV seen at the Royal Palace Casino- at the time of the robbery; Mr. Lavergne and .Defendant both admitted that they drove to L’Auberge the night of the robbery in Defendant’s green Toyota Sequoia; Mr. Lavergne testified about text messages concerning the split of money between him and Defendant the morning after the robbery; Detective Stewart testified about video footage showing Mr. Lav--ergne and Defendant going into and leaving L’Auberge about an hour before the robbery; |7both Detective Stewart and'Ms. Bushnell testified that the masked; robber appeared to be wearing layers of clothing; and Detective Stewart téstifíed the pants worn by Defendant in surveillance video obtained from the L’Auberge du Lac were similar to .the pants worn under the sweatpants of the masked robber. .

The jury also heard evidence that discredited Mr. Lavergne’s recantation at trial. Mr. Lavergne denied giving the Statement at all, even though Detective Stewart testified that Mr. Lavergne gave the statement, and the jury watched a video of the statement. The jury was also able to evaluate Mr. Lavergne’s explanation 'that he may * have wanted to retaliate against Defendant for Defendant’s accusation against hitó in another matter. The jury heard all 'of the evidence and was able to make a credibility determination. Based on the reasonableness of the jury’s credibility determination along with the other corroborating evidence, we find that the evidence was sufficient for a reasonable jury to find'beyond a reasonable doubt that Defendant was the perpetrator.

For the foregoing reasons, this assignment lacks merit. ...

Assignment of error number 2 (exces-siveness of sentence)

The penalty range for an armed robbery conviction is between ten and ninety-nine years at hard labor without benefit of parole, probation, or suspension of sentence. La.R.S. 14:64. Additionally, “[w]hen the dangerous weapon-used in the commission of the crime of armed robbery is a firearm, the offender shall be imprisoned at hard labor for an additional period of five years’ without benefit of parole, probation, or suspension of sentence.” La.R.S. 14:64.3, This enhancement of sentence is to be served consecutive to the sentence imposed under La.R.S. 14:64. Id. Defendant was convicted of four counts of armed robbery with: a firearm;*-therefore, he faced a potential sentence, including the enhancement under La.R.S. 14:64.3, of 416 years at hard labor without benefit of parole, probation, or suspension • of sentence.

Defendant neither objected to the sentence nor did he file a motion to reconsider the sentence. Pursuant to La. Code Crim.P. art. 881.1, his claim of excessiveness of sentence is barred. This court has on many occasions, however, considered bare claims of excessiveness, and we do so here.

In State v. Whatley, 03-1275, pp. 6-6 (La.App. 3 Cir. 3/3/04), 867 So.2d 955, 958, the standard of review for bare claims of excessiveness of sentence was stated as follows:

The Eighth Amendment to the United States Constitution and La. Const, art. I, § 20 prohibit the imposition of cruel or excessive punishment. “ ‘[T]he exces-siveness 'of a sentence becomes a question of law reviewable under the appellate jurisdiction of this court.”’ State v. Dorthey, 623 So.2d 1276, 1280 (La.1993) (quoting State v. Sepulvado, 367 So.2d 762, 764 (La.1979)). Still, the trial-court is given wide discretion nr imposing a sentence, and, absent a manifest abuse • of that discretion, we will not deem as excessive a sentence imposed within statutory limits. State v. Pyke, 95-919 (La.App. 3 Cir. 3/6/96), 670 So.2d 713. However, "[mjaximum sentences are reserved for the most serious violations and the-worst offenders.” State v. Farhood, 02-490, p. 11 (La.App. 5 Cir. 3/25/03), 844 So.2d 217, 225. The-only relevant question for us to consider on review is not whether another -sentence would be more appropriate, but whether the trial court abused its broad discretion fin sentencing a defendant. 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).

Even when a sentence falls within the statutory sentencing range, it still may be unconstitutionally excessive. In determining whether a sentence shocks the sense of justice or makes no meaningful contribution to acceptable penal goals, this eoürt has suggested that several factors may be considered:'

In deciding whether a sentence is shocking or makes no meaningful contribution to acceptable penal goals, an appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposéd for similar lflcrimes. State v. Smith, 99-0606 (La. 7/6/00); 766 So.2d 501.While a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.” State v. Cook, 95-2784 (La. 5/31/96); 674 So.2d 957, 958.

State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La. 5/30/03), 845 So.2d 1061.

The trial court initially noted that Defendant was a twenty-three-year-old male with some college education who worked as a plant laborer. The court also noted that it had received letters from Defendant’s family members asking for leniency. Two victims, Ms. Williams and Ms. Bushnell, further gave statements at the sentencing hearing. The State sought a minimum sentence of twenty years on each count to be served consecutively plus the .five-year firearm enhancement on each count. The State noted that Defendant had a prior felony conviction for burglary of a building in Texas, the impact of Defendant’s behavior on the victims, the Defendant’s use of a firearm, the disingenuous testimony of Defendant at trial, and Defendant’s lack of remorse.

On behalf of Defendant, defense counsel argued the following:

. Your Honor, I certainly agree- with Ms. Hawkins that armed robbery is one of the most seripus crimes there are [sic] and I certainly have sympathy for the two ladies who spoke this, morning. I know it would be a horrible thing for them to.have to endure.
Mr.—first of all, Mr. Jones exercised his right to a trial, a trial by jury. And, yet, he is being called- disingenuous by testifying- in his own' behalf,' also that he allegedly does not accept responsibility for his actions. He consistently has stated that he wasn’t present. And, I was not there. I can’t say whether he.was present or not. But, I do know that there have been cases where juries have improperly convicted persons based on a lot of—-a lot of evidence to the contrary.
| mBut, that being what it may, he has been convicted by .a jury,. and he has been convicted of some-very serious offenses. The Court has had the opportunity to read the letters. I read them. They were very uh—really disturbing letters about a particular instance in Mr. Jones’ background which was the suicide of his father when he was a young teenager in his presence and how Mr. Jones’ behavior changed substantially after that.
■■ One of the letters even pointed out that, even though, if we for the sake of argument state that it was Mr. Jones who committed the offense, even though he did-that, the—this second individual did do some heinous things, when the victim said, “Oh, I need my money. That’s my car note” he returned the purse, returned the wallet, and returned the money.
He is very young. His prior offense was a non-violent offense. He is ascribed to circumstances as to—as to the burglary, that it was a burglary of a school building. There were no individual— well, there was no one who was physically affected, although it was certainly a crime against property.
I would argue that any sentence that the Court issues should be concurrent. All of these matters happened at-the same time in the same course of events as is set forth in the Code of Criminal Procedure, and we would request as minimum of a sentence as possible, and that they be concurrent, all counts be concurrent.

The trial court considered the factors listed in La.Code Crim.P. art. 894.1, noting Defendant’s status as a second felony offender, noting that the offenses involved crimes of violence, and noting deliberate cruelty to Ms. Williams, an elderly wom'an, and Ms. Bushnell, a petite female:

The offender used threats or actual violence in the commission, specifically as to Victim 1, Ms. Williams, and Victim 4, Ms. Bushnell.- Those numbers are arbitrarily set by the Court when I just wrote down the names of the individuals.
• Again, a lesser degree to Victim 2 who was pushed to the ground when he attempted to try and leave the premises. Specifically, Ms. Williams was struck, and Ms. Bushnell was dragged around
the facility in an effort to locate the funds.

| nThe trial court noted the economic loss suffered by the victims, as' well as the emotional trauma they suffered. After noting Defendant used a dangerous weapon and noting his prior felony, the trial court stated:

He was the leader of this violation in concert with one or more persons with respect to whom he occupied a position as organizer, supervisor position, or a position of management? The Court basically had the opinion in reviewing this that he controlled the robbery. It appeared that based on Mr.—what was seen, Mr. Lavergne was sent in without any cover on a number of occasions until it appeared that it was something the parties decided to do, and then Mr. Jones became involved. And, you could tell from the video that he was calling pretty much the shots during the course of the robbery. So, I do find that he was the primary organizer.
Other aggravating circumstances have to do with the aggression that was noted on the video, as well' as verified by the testimony of the victims. Also, it’s noted that the defendant testified. And, the content based on the Court’s evaluation was one of anger with regard to going through the trial. At no time has the defendant ever acknowledged he was involved in the robbery, nor has he indicated any remorse or responsibility.

As for mitigating factors, the trial court noted Defendant’s close family ties’ and that Defendant returned money to Ms. Bushnell when she pleaded for him to do so. After the trial court imposed the sentences, it noted that Defendant appeared to have a lot of pent-up anger and that Defendant was a danger to society.

The sentences imposed are within the mid-range of those Defendant faced. The imposition of those sentences to be served consecutively represents the only issue that might render them excessive.

In State v. Thomas, 98-1144, pp. 1-2 (La. 10/9/98), 719 So.2d 49, 49-50, the supreme court stated the following regarding the imposition of consecutive sentences for crimes committed as part of a single transaction:

Although Louisiana law favors concurrent sentences for crimes committed as part of a single transaction, La.C.Cr.P. art. 883; State v. Underwood, 353 So.2d 1013, 1019 (La.1977), a trial judge retains discretion to impose consecutive penalties on the basis of other factors, including the offender’s past criminality, violence in the charged crimes, or the risk he or she poses to the general safety of the community. State v. Williams, 445 So.2d 1171, 1182 (La.1984); State v. Jacobs, 371 So.2d 727, 732-33 (La.1979) (on reh’g).... On appellate review of sentence, 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, p. 3 (La. 5/31/96), 674 So.2d 957, 959 (quoting State v. Humphrey, 445 So.2d 1155, 1165 (La.1984)), cert. denied, [519] U.S. [1043], 117 S.Ct. 615, 136 L.Ed.2d 539 (1996). In this context, a trial court “abuses its sentencing discretion only when it contravenes the prohibition of excessive punishment in La. Const. art. I, § 20, i.e., when it imposes ‘punishment disproportionate to the offense.’” State v. Soraparu, 97-1027 (La. 10/13/97), 703 So.2d 608 (quoting State v[.] Sepulvado, 367 So.2d 762, 767 (La.1979)) (emphasis added). Even granting the consecutive nature of the penalties imposed on all three-counts, the defendant’s total sentence remains within the 35 to 50 year range this Court' has found acceptable for first offenders convicted of armed robbery. See, e.g., State v. Nealy, 450 So.2d 634, 640 (La.1984); State v. Walker, 449 So.2d 474 (La.1984); State v. Dunns, 441 So.2d 745, 746 (La.1983); State v. Huntsberry, 439 So.2d 432, 433 (La.1983).

Our colleagues on the Second Circuit Court of Appeal have • identified several factors that should be considered by a trial court in imposing consecutive sentences for armed robbery: the defendant’s criminal history, the danger represented by the offense, the viciousness of the crime, the harm to the victims, whether the defendant poses an unusual risk to the public, the defendant’s potential for rehabilitation, and whether the defendant benefited from a plea bargain. State v. Coleman, 32,906, (La.App. 2 Cir. 4/5/00), 756 So.2d 1218, writ denied, 00-1572 (La. 3/23/01), 787 So.2d 1010. In its reasons for the sentences imposed, the trial court articulated many of the factors set forth in Coleman: Defendant’s status as a second felony offender, Defendant’s deliberate cruelty to two of the victims, Defendant’s position as leader of the robbery, Defendant’s lack of remorse, Defendant’s failure to accept responsibility,- Defendant’s pent-up anger, and | ^Defendant’s danger to society. Thus, the record supports the trial court’s imposition of consecutive sentences. The Louisiana Supreme Court has often noted “that sentence review under the Louisiana constitution does not provide an appellate court with a vehicle for substituting its judgment for that of a trial judge as to what punishment is more appropriate in a given case.” State v. Savoy, 11-1174, p. 5 (La. 7/2/12), 93 So.3d 1279, 1283 (citing State v. Walker, 00-3200 (La. 10/12/01), 799 So.2d 461; 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); and State v. Humphrey, 445 So.2d 1155 (La.1984)).

DECREE

For the foregoing reasons, the convictions and sentences of Defendant, Patrick Seth Jones, are affirmed. The trial court is ordered to correct the court sentencing minutes and the commitment, order to reflect that all of Defendant’s sentences are to be served without the benefit of parole, probation, or suspension-of sentence.

AFFIRMED.


author: SAUNDERS, Judge.

text:
    Cedrick LANDRY, Individually and on Behalf of the Minor Child, Cedrick Sengal v. Brittany USIE, et al.
    17-839
    Court of Appeal of Louisiana, Third Circuit.
    10/18/2017

      Joslyn Renee Alex,. The Alex Firm, 227 Rees Street, Breaux Bridge, Louisiana 70517, COUNSEL FOR PLAINTIFF/APPELLANT: Cedrick Landry, Individually 'and on Behalf of the minor child, Cedrick Sengal
    F. Dominic Amato, Boyer, Hebert, Abels & Angelle, LLC, 1280 Dei Estie Avenue, Denham Springs, Louisiana 70726, COUNSEL FOR DEFENDANTS/APPEL-LEES: St. Martin Parish'School Board, Brittany Usie, and Lottie P. Beebe
    Sara R. Buggs, Neuner Pate, One Petroleum Center, 1001 W, Pinhook Road, Suite 200, Lafayette, Louisiana 70503, COUNSEL FOR DEFENDANT/APPELLEE: City of Breaux Bridge
    Trevor Davies, McCranie, Sistrunk, An-zelomo, Hardy, McDaniel & Welch, LLC, 909 Poydras Street, Suite 1000, New Orleans, Louisiana 70112, COUNSEL FOR DEFENDANT/APPELLEE: Winn-Dixie Montgomery, LLC
    Court composed of John D. Saunders, Marc T. Amy, and Candyce G. Perret, Judges.
   SAUNDERS, Judge.

| ,This court issued a rule ordering Appellant, Cedrick Landry (Landry), Individually and on Behalf of the Minor Child, Cedrick Sengal (Sengal), to show cause, by brief only, why his appeal should not be dismissed for having been taken from a judgment lacking proper decretal language. See State v. White, 05-718 (La.App. 3 Cir. 2/1/06), 921 So.2d 1144. We dismiss the appeal without prejudice and remand the matter to the trial court for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

Appellant filed a petition for damages naming St, Martin Parish School Board (the School Board); Brittany Usie, the school bus driver, (Usie); Lottie P. BeeBe, the superintendent of St. Martin Parish School Board (BeeBe);- and XYZ Insurance Company as defendants. . The petition was later amended to .add Winn-Dixie Montgomery, LLC (Winn-Dixie), and its insurer, and -the City of Breaux Bridge (the City), and its insurer as defendants. Appellant alleged that Sengal was injured when the school bus in which he was a passenger struck a curb and ran into a pothole.

Defendants, the School Board, Usie, and Beebe, filed a motion for summary judgment alleging that they bore no liability for Bengal’s injuries. On November 23, 2016, the trial court signed a judgment granting the motion for summary judgment. It was noted in that judgment .that summary judgment was rendered on November 7, 2016, in open court. The signed judgment stated:

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the Motion for Summary Judgment filed on behalf of ST. MARTIN PARISH SCHOOL BOARD, BRITTANY USIE AND LOTTIE P. BEEBE, is. hereby - GRANTED at Plaintiffs costs[.]

laHowever, the judgment did not dismiss any or all of Appellant’s claims against the School Board, Usie, and Beebe.

Appellant filed a noticé of appeal of that judgment on January 3, 2017, and an order of appeal was signed. There is no date of signing on the order of appeal. The court issued a notice of appeal on January 13, 2017.

On November 17, 2016, prior to the filing of .the notice of appeal, Appellant filed a “motion to set aside summary judgment and reconsider motion for summary judgment.” A hearing on that motion was held on March 24, 2017, and the trial court denied the motion. A judgment reflecting that ruling was signed on June 12, 2017, and stated:

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the Motion for Rehearing on the Motion for Summary Judgment filed on behalf of ST. MARTIN PARISH SCHOOL ■ BOARD, BRITTANY USIE AND LOTTIE P. BEEBE, is hereby DENIED at Plaintiffs costs[.]

Again, the judgment made no determination as to what claims were dismissed by the granting of the summary judgment in favor of the School Board, Usie, and Beebe.

On July 10, 2017, Appellant filed a notice of appeal with respect to that judgment. An order of appeal was signed, but it was undated. When the record was lodged in this court, a rule was issued ordering Appellant to show cause why its appeal should not be dismissed for the above-stated reason.

DISCUSSION

The rule to show cause order indicated that Appellant was to show cause, if there was any, why the appeal should not be dismissed as having been taken from a judgment lacking decretal language. It must be noted that the motion for rehearing is treated like a motion for a new trial. See Bridgewater v. New Orleans Regional Transit Authority, 15-922 (La.App. 4 Cir. 3/9/16), 190 So.3d 408, writ denied, 16 632 (La. 5/20/16), 191 So.3d 1071. “As a general rule, when the motion for appeal refers to a specific judgment denying a motion for new trial, yet the appellant exhibits a clear intention to appeal instead the underlying judgment on the merits, then the appeal should be considered.” State v. Hampton, 50,118, p. 8 (La.App. 2 Cir. 10/7/15), 181 So.3d 175, 180 (citations omitted), writ denied, 15-2055 (La. 1/8/16), 184 So.3d 695. In this instance, both judgments lack decretal language.

“A final appealable judgment must contain decretal language, and it must name the party in favor of whom the ruling is ordered, the party against whom the ruling is ordered, and the relief that is granted or denied.” Thomas v. Lafayette Parish Sceh. Sys., 13-91, p. 2 (La.App. 3 Cir. 3/6/13), 128 So.3d 1055, 1056 (quoting White, 921 So.2d at 1146).

In Board of Supervisors of Louisiana State University & Agricultural & Mechanical College v. Mid City Holdings, L.L.C., 14-506, pp. 2-3 (La.App. 4 Cir. 10/15/14), 151 So.3d 908, 910, the court stated:

We cannot determine the merits of an appeal unless our jurisdiction is properly invoked by a valid final judgment. See Input/Output Marine Sys., Inc. v. Wilson Greatbatch, Tech., Inc., 10-477, p. 12 (La.App. 5 Cir. 10/29/10); 52 So.3d 909, 915. “A judgment is the determination of the rights of the parties in an action and may award any relief to which the parties are entitled.” La. C.C.P. art. 1841. “A valid judgment must be precise, definite and certain.... The decree alone indicates the decision.... The result decreed must be spelled out in lucid, unmistakable language.The quality of definiteness is essential to a proper judgment. Input/Output Marine, 10-477, pp. 12-13; 52 So.3d at 915-16 (citations omitted).
... “The specific relief granted should be determinable from the judgment without reference to an extrinsic source such as pleadings or reasons for judgment.” Input/Output Marine, 10-477, p. 13; 52 So.3d at 916.

The first judgment in this case clearly grants the motion for summary judgment filed by the School Board, Usie, and Beebe; however, it does not state whether any or all of the claims of Appellant asserted against these three Rdefendants are dismissed. This judgment “does not contain all of the necessary decretal language to meet the requirements óf a final judgment.” Dietz v. Dietz, 13-186, p. 8 (La.App. 3 Cir. 11/6/13), 128 So.3d 1215, 1220.

Appellant concedes that the second judgment, which denies the motion for rehearing, “does not adequately reflect whether the judgment is dispositive of all issues regarding these parties.” Therefore, we find that this judgment does not save the appeal since there,is still no judgment that decrees “the specific, relief granted.” Board of Supervisors, 151 So.3d at 910

Accordingly, the appeal must be' dismissed. When a final judgment on the motion for summary judgment is rendered with the proper decretal language, Appellant may file a new appeal with this court. See Smith v. State, Dep’t of Transp. & Dev., 15-962 (La.App. 4 Cir. 2/17/16), 186 So.3d 1180.

DECREE

For all the reasons given, this court lacks jurisdiction to consider the merits of the appeal because'it was taken from two judgments that both lack proper decretal language. Accordingly this appeal is dismissed without prejudice, and the matter is remanded to the trial court for further proceedings in accordance -with this opinion.

APPEAL DISMISSED WITHOUT PREJUDICE. REMANDED FOR FURTHER PROCEEDINGS.


author: GREMILLION, Judge.

text:
    Heriberto FLORES d/b/a HE Flores Construction v. BROWN BUILDERS, INC., et al.
    17-73
    Court of Appeal of Louisiana, Third Circuit.
    10/18/2017

      Jerald R. Harper, Harper Law Firm, 213 Texas St., Shreveport, LA 71101, (318) 213-8800, COUNSEL FOR DEFENDANTS/APPELLANTS: Brown Builders, Inc., Villa Broussard, LLC
    Craig Lewis Raster, Raster & Cop, LLC, 1076 Carney Road, Zachary, LA 70791, (225) 658-5450, COUNSEL FOR PLAINTIFF/APPELLEE: Heriberto. Flores, d/b/a HE Flores. Construction
    Court composed of Sylvia R. Cooks, Shannon J. Gremillion, and Van H. Kyzar, Judges. • ■
   GREMILLION, Judge.

11Defendants/appellants, Brown Builders, Inc., and Villa Broussard, LLC, (hereafter, “Defendants”), appeal the default judgment entered in favor of Heriberto Flores, d/b/a HE Flores Construction (HE Flores) in the amount- of $35,996.00, plus legal interest and costs of court. For the reasons that follow, we affirm. - '

FACTS AND PROCEDURAL HISTORY

On April 8, 2016, HE Flores filed suit against Defendants, alleging that he provided framing services as a subcontractor of Southern Framing and Construction,’ Inc., which, in turn, was the alleged subcontractor of Brown Builders, Inc. Brown Builders, Inc. was alleged to have been the prime contractor hired by Villa Broussard, LLC, to build a project on 8.39 acres in the Sugarcrest Retail Development in Lafayette, Louisiana. HE Flores alleged, in paragraph one of his petition, that Defendants were indebted to him for his framing services in the amount of $35,996.00, plus penalties, legal interest, court costs, and attorney fees, and prayed for that amount. In paragraph three, however, he alleged that the amount of labor and materials owed for the work was $35,811.00.

On May 11, 2016, Mr. Flores requested entry of a preliminary default against Villa Broussard. A preliminary default was entered that same day. On May 25, 2016, a preliminary default was sought and entered against Brown Builders.

Mr. Flores requested a hearing date to confirm the defaults by letter dated June 1, 2016. The matter was fixed by the trial court for June 13,2016.

|gThe trial court heard the testimony of Mr. Eduardo Flores, the brother of Heriberto Flores. Eduardo testified that he oversaw the- seven-man crew .of workmen who labored at the project from July 14, 2014 until August 12, 2014. Those men worked five days a week for ten hours a day, plus four hours a day on Saturdays and Sundays. Each employee was to. be paid an additional $30.00 per day for food. HE Flores was hired by Southern Framing through “Kent and Larry,” the owners of. the company, to frame buildings at the rate of $0.85 per square foot. Buildings one and two each totaled 12,350 square feet. Building three measured 14,350 square feet. Eduardo submitted the time for the employees to Mr. Tony Panti of Southern Framing, who paid for the first three days of work at $0.85 per square foot. Nothing was paid after July 17, 2014.

Judgment was signed in open , court on June 13, 2016. Defendants , filed a motion for new trial arguing, principally, that they had emailed a copy of the petition to their counsel and counsel’s spam filter intercepted the message. The trial court denied the motion for new trial on'June 24, 2016, which was denied. This appeal followed. Defendants argue that the trial court erred in granting the defaült judgment and in denying its motion for new trial.

ANALYSIS

Default judgments must be confirmed by proof sufficient to estáblish a prima facie case. La.Code Civ.P. art. 1702(A). On review, ah áppellate court is limited to determining whether the evidence was sufficient to establish a prima facie case., and the appellant must overcome a presumption that the evidence was sufficient. Byrd v. Int’l Paper Co., 594 So.2d 961 (La.App. 3 Cir. 1992).

Confirmation of a default judgment is similar to a trial.and requires,-with; admissible evidence, “proof of the demand sufficient to establish a prima, facie case,” The -elements of a prima facie case are | ..¡established with competent evidence, as fully as though each of the allegations in the petition were denied by the defendant. In other words, the plaintiff must present competent evidence that convinces the court that -it is probable that he would prevail at trial on the merits. A plaintiff seeking to confirm a default must prove both the existence and the validity of his claim. A default judgment cannot be different in kind from what is demanded in the petition and the amount of damages must be proven to be properly due.

Arias v. Stolthaven New Orleans, L.L.C., 08-1111, p. 7 (La. 5/5/09), 9 So.3d 815, 820 (Citations omitted).

Defendants contend that Mr. Heriberto Flores himself is required to appear and testify in order to establish a prima facie case. We disagree. The proper person to testify is the one with personal knowledge of the facts that will establish a prima facie case. Louisiana Code of Civil Procedure Article 1702 imposes no requirement that the plaintiff himself testify in cases other than delictual obligations; indeed, it allows proof of a conventional obligation in the form of affidavits and exhibits. La. Code Civ.P. art. 1702(B)(1). Eduardo Flores supervised the work performed by HE Flores’s employees. He was present every day that work was performed.

Defendants next contend that it was never 'established in the record whether HE Flores Construction is a natural person, i.e., Mr. Flores himself, or a juridical person, such as a corporation or a limited liability company. The petition is captioned “Heriberto Flores, • d/b/a HE Flores Construction.” The plaintiff is alleged to be “a person of the full age of majority domiciled in Travis County, Texas.” Eduardo testified that Heriberto Flores, his brother, owns and operates the construction business. The entry of judgment in favor of Heriberto Flores implies that the trial court was satisfied that the judgment was properly entered in favor of a natural person. We find no manifest error in this ruling.

|4HE Flores performed the framing on both buildings one and two. The amount due for that framing would total $20,995.00. Building three totals 14,350 square feet. At $0.85 per square foot, the amount owed for framing it would equal $12,197.50. This means that the amount owed, based upon the evidence presented at the hearing on the confirmation of default, would only total $33,192.50. Additionally, Southern Framing was to have paid HE Flores $30.00 per day for meals for each of its eight employees, totaling $6,720.00. The sums owed for framing and per diem for meals well exceeds the amount of the judgment in this matter.

Defendants’ second assignment of error complains of the trial court’s denial of their motion for new trial. Motions for new trial are governed by La.Code Civ.P. art. 1971 et seq. The Code of Civil Procedure sets forth peremptory grounds for granting a new trial, La.Code Civ.P. art. 1972, and discretionary grounds, La.Code CivJP. art. 1973. A new trial must be granted when the judgment appears clearly contrary to the law and evidence, when evidence important to the cause has been discovered since the trial, or when the jury was bribed or behaved improperly. “A new trial may be granted in any case if there is good ground therefor, except as otherwise provided by law.” La.Code Civ.P. art. 1973. Much of Defendant’s argument centers on statements made by HE Flores’s attorney at the hearing of their motion for new trial. We first note that an axiom of Louisiana law holds that arguments of counsel do not constitute evidence. To the extent that HE Flores’s attorney may have misstated facts in argument, it would be improper to consider them on motion for new trial; but the record divulges, based upon the facts we have already noted herein, that the judgment is not contrary to the law or evidence.

| ¿Defendants also assert that Louisiana case law holds that entry of a default judgment against a party solely through the fault of its attorney constitutes a “good ground” for granting new trial under Hardy v. Kidder, 292 So.2d 575 (La. 1973). We find that the present matter is readily distinguished from Hardy. In Hardy, the defendant, who was involved in a motor vehicle accident, filed bankruptcy and listed the plaintiffs claim in his bankruptcy proceeding schedules. Defendant’s counsel had appeared in the proceedings to enforce the mandatory bankruptcy stay. Defendant’s debts were discharged in bankruptcy in August 1970. Plaintiff confirmed a default judgment against the defendant in February 1971. Included in the evidence submitted in confirmation was a letter from the bankruptcy trustee advising that the defendant’s debts had been discharged, including the personal injury claim.

The supreme court held that:

We are concerned not with any legal requirement of notice, however, but rather with whether, in the interests of justice, a timely application for a new trial should be granted where, upon the face of the proceedings themselves, the defendant is shown to have an absolute defense to a suit, which has not been pleaded through the neglect of his attorney or because of the latter’s careless appreciation that the plaintiffs would not, after discharge, pursue efforts to obtain a judgment for a debt finally discharged in bankruptcy. See 28 La. L.Rev. 412 (1968).
Under the jurisprudence cited, this constitutes good ground for the grant of a new trial, upon timely application, in the interests of justice. To let stand a judgment to which the proceedings themselves show there to be an absolute defense, which was not pleaded solely because of the neglect of counsel, is to let stand a judgment which is substantively erroneous, only because of violation of a technical pleading rule which results from counsel’s neglect rather than from the client’s fault.

Id. at 579.

| t;In the present matter, we see no absolute defense comparable to discharge in bankruptcy. Further, the suit in the present matter was, served upon Defendants’ general counsel. Those pleadings were served on Villa Broussard on April 18, 2016, and on Brown Builders on May 5, 2016. The preliminary default against Villa Broussard was obtained on May 11, 2016. Defendants’ attorney was not even retained until May 16, 2016, almost a month after Villa Broussard was served. We cannot agree that, under these circumstances, the default was entered solely through counsel’s neglect, regardless of whether counsel’s spam filter intercepted the emailed petitions. We find no abuse of the trial court’s discretion in refusing to grant Defendants a new trial.

For the foregoing reasons, the judgment of the trial court in favor of Heriberto Flores, d/b/a HE Flores Construction, is affirmed. All costs of this appeal are taxed to Defendants/appellants, Brown Builders, Inc., and Villa Broussard, LLQ.

AFFIRMED.

      . Buildings one and two are each 12,350 sq. ft. in area. 24,700 sq.ft. * $0.85/sq.ft. = $20,995.00.

      . The difference between these amounts represents the filing fee for instituting suit, $185.00.


author: JOHNSON, J.

text:
    Scott W. TILLMAN v. Lawrence P. JOSEPH, Schneider National Carriers, Inc., Liberty Mutual Insurance Company, Schneider National Bulk Carriers, Inc. and Schneider National, Inc.
    NO. 17-CA-94
    Court of Appeal of Louisiana, Fifth Circuit.
    October 25, 2017
    COUNSEL FOR PLAINTIFF/APPEL-LEE, SCOTT .W. TILLMAN, Gregory P. DiLeo, Benjamin W. Gulick, New Orleans
    COUNSEL FOR DEFENDANT/APPELLANT, LAWRENCE P. JOSEPH, SCHNEIDER NATIONAL CARRIERS, INC., LIBERTY MUTUAL FIRE INSURANCE COMPANY AND INS INSURANCE, INC., Barry W. Ashe, Kathryn M. Knight, New Orleans
    Panel composed of Judges Marc E. Johnson, Robert M. Murphy, and Hans J. Liljeberg
   JOHNSON, J.

| iDefendants/Appellants, Lawrence P. Joseph, Schneider National Carriers, Inc., Schneider National Bulk Carriers, Inc., Schneider National, Inc., and Liberty Mutual Fire Insurance Company (hereinafter collectively referred to as “Defendants”), appeal the jury award for damages resulting from a collision in favor of Plaintiff/Ap-pellee, Scott W. Tillman, from the 24th Judicial District Court, Division “P”, For the' following reasons, we dismiss the appeal with prejudice. ‘

This matter arises from an automobile accident between Mr. Tillman and Mr. Joseph on March 25, 2010. Mr. Tillman was operating his mother’s 2008 Cadillac STS on Rye Street near'its intersection with Utica Avenue in Metairie, Louisiana, behind a 2006 Freightliner 5200 18-wheeler driven by Mr. Joseph, Mr. Joseph was operating the freightliner while in the course and scope of his employment with Defendant/Appellant, Schneider National Carriers, Inc. While placing the freightliner in reverse, Mr. Joseph backed into Mr. Tillman’s vehicle and pushed it an estimated 30 feet backward. In an attempt to control his vehicle, Mr. Tillman braced and locked his extended right arm on the steering wheel, applied his brakes with his right foot, and honked his- horn vnth his' left hand to alert Mr. Joseph. As a result of the collision, Mr. Tillman sustained physical (primarily to his right shoulder and right hip that necessitated numerous surgeries and future medical 'treatment) and mental injuries, and his car sustained property damages.

On March 24, 2011, Mr. Tillman filed a “Petition for Damages” against Defendants, wherein he alleged Defendants acted negligently and caused him resulting damages. Defendants conceded to liability for the accident in advance of the trial and only contested médical causation and the extent of Mr. Tillman’s alleged injuries caused by the accident.

IsThe matter proceeded to a jury trial on August 22, 2016. At the conclusion of the trial, the jury entered findings of damages in favor Mr. Tillman for a total amount of $3,205,000. Those findings were made the judgment of the trial court on September 1,- 2016. Subsequently, Defendants filed a “Motion for Judgment Notwithstanding the Verdict, Remittitur, or a New Trial,” which was denied by the trial court on September 26, 2016. The instant appeal of the judgment by Defendants followed, and the case was submitted to this .Court on September 6,2017.

On September 21, 2017, the parties to this appeal filed a “Joint Motion to Dismiss Appeal,” asserting they resolved and settled their disputes. In the motion, the parties requested that the appeal be dismissed, with prejudice, and each' party bear their own costs. Pursuant to La. C.C.P. art. 2162, an appeal can be dismissed at any time by consent' of all parties. Therefore, we grant the joint motion and dismiss the appeal with prejudice. The parties are ordered to bear their own costs for this appeal;

DISMISSED WITH PREJUDICE