author: KYZAR, Judge.

text:
    SUCCESSION OF William Dalton PELT
    17-860
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 2018 Rehearing Denied May 30, 2018
    B. Gene Taylor, III, Gold, Weems, Bruser, Sues & Rundell, 2001 MacArthur Drive, P. O. Box 6118, Alexandria, LA 71307-6118, (318) 445-6471, COUNSEL FOR INTERVENOR/APPELLANT: Kristina Wright
    Jodi C. Andrews, 221 N. Washington Avenue, DeRidder, LA 70634, (337) 460-7987, COUNSEL FOR PETITIONERS/APPELLEES: Succession of William Dalton Pelt, Billy Ray Pelt, Rosemary Pelt Braun, Charleston L. Pelt, Charlene Faye Pelt O'Banion, Gayle Dianne Pelt Wentzel, James Douglas Pelt, Barbara Lee Pelt Cooley, Geraldine Pelt Governale
    Court composed of Phyllis M. Keaty, John E. Conery, and Van H. Kyzar, Judges.
   KYZAR, Judge.

Intervenor/Appellant, Kristina Wright (Kristina), appeals the granting of an exception of prescription dismissing her petition to establish filiation and her rights as a forced heir of her deceased alleged father, William Dalton Pelt. The Petitioners/Appellees are the brothers and sisters of the deceased through the Succession of William D. Pelt. For the reasons herein, we reverse and remand to the trial court for further proceedings.

FACTS AND PROCEDURAL HISTORY

The facts of this matter are fully set forth in the record hereof and are essentially uncontested. William Dalton Pelt (decedent) died intestate on April 18, 2016, at his residence and domicile in Vernon Parish, Louisiana. In 2016, Billy Ray Pelt, Rosemary Pelt Braun, Charleston L. Pelt, Charlene Faye Pelt O'Banion, Gayle Dianne Pelt Wentzel, James Douglas Pelt, Barbara Lee Pelt Cooley, and Geraldine Pelt Governale (collectively referred to as "Appellees"), the brothers and sisters of the deceased, filed a petition to open the succession of their brother and to have Barbara Lee Pelt Cooley (Barbara) appointed as administratrix of the succession. They claim in the succession filings that the decedent was never married, that no children were born to or adopted by the decedent, nor was the decedent adopted by anyone. An order was signed by the trial court on May 12, 2016, appointing Barbara as the administratrix of the succession.

Thereafter, Kristina filed a petition to intervene in the succession, to establish her filiation to the deceased as her father, to recognize her rights to his estate, and to remove Barbara as administratrix. Kristina also filed a rule for paternity testing. The petition alleges that she was born on September 28, 1973, at Lake Charles Memorial Hospital in Lake Charles, Louisiana, to Milbra Sue O'Banion, her mother, while her mother was married to her legal father, Ben O'Banion. Kristina asserts that her mother had an affair with the decedent while she was living in Louisiana and that she was conceived as a result of that relationship.

In response to the petition, Appellees filed an exception of prescription. A hearing on the exception was held on April 17, 2017, at the conclusion of which the trial court granted the exception, dismissing Kristina's petition at her costs. It is from this judgment that she now appeals.

Kristina asserts three assignments of error, as follows:

1. The trial court erred by not applying Article 197 as the law in effect on the date of decedent's death as required by the Louisiana law of successions, and further failing to recognize the legislative directive to apply Article 197 retroactively.
2. The trial court erred by failing to acknowledge the Louisiana Supreme Court's consistent holding that the language of the Filiation of Parents and Children Act evidences clear, plain, and unmistakable legislative intent that Article 197 be retroactively applied.
3. The trial court erred to the extent that the granting of the exception was incorrectly founded on the notion that retroactive application of Article 197 would revive a prescribed claim and/or disturb a right of collateral heirs to plead prescription, purportedly vested prior to the decedent's death and the existence of a succession.

DISCUSSION

The standard of review on the appeal of the granting of an exception of prescription depends in part on whether evidence was introduced at the hearing in trial court.

The exception of prescription is governed by La.Code Civ.P. art. 927. The standard of review of a grant of an exception of prescription is determined by whether evidence was adduced at the hearing of the exception. If evidence was adduced, the standard of review is manifest error; if no evidence was adduced, the judgment is reviewed simply to determine whether the trial court's decision was legally correct. Allain v. Tripple B Holding, LLC , 13-673 (La.App. 3 Cir. 12/11/13), 128 So.3d 1278. The party pleading the exception of prescription bears the burden of proof unless it is apparent on the face of the pleadings that the claim is prescribed, in which case the plaintiff must prove that it is not. Id.

Arton v. Tedesco , 14-1281, p. 3 (La.App. 3 Cir. 4/29/15), 176 So.3d 1125, 1128, writ denied , 15-1065 (La. 9/11/15), 176 So.3d 1043.

In addition, appellate review of an issue involving statutory interpretation in the trial court is de novo, as it presents questions of law. Stewart v. Estate of Stewart , 07-333 (La.App. 3 Cir. 10/3/07), 966 So.2d 1241.

This case turns on the interpretation and effect of the 2005 enactment of La.Civ.Code art. 197, and the repeal of the former article 209 dealing with the peremptive and prescriptive periods for the filing of filiation actions. Section C of former article 209 of the Louisiana Civil Code provided for the time limits for proving filiation by a child not entitled to legitimate filiation nor filiated by the initiative of the parent by legitimation or by acknowledgment, as follows:

The proceeding required by this article must be brought within one year of the death of the alleged parent or within nineteen years of the child's birth, whichever first occurs. This time limitation shall run against all persons, including minors and interdicts. If the proceeding is not timely instituted, the child may not thereafter establish his filiation, except for the sole purpose of establishing the right to recover damages under Article 2315. A proceeding for that purpose may be brought within one year of the death of the alleged parent and may be cumulated with the action to recover damages.

The legislature changed the law with the enactment of the Filiation of Parents and Children Act, effective June 29, 2005, per 2005 La. Acts No. 192, § 1. The legislature expressed that the Act would be "applicable to all claims existing or actions pending on its effective date and all claims arising or actions filed on and after its effective date. " 2005 La. Acts No. 192, § 3 (emphasis added). Louisiana Civil Code Article 197, as enacted in 2005, now reads as follows:

A child may institute an action to prove paternity even though he is presumed to be the child of another man. If the action is instituted after the death of the alleged father, a child shall prove paternity by clear and convincing evidence.
For purposes of succession only, this action is subject to a peremptive period of one year. This peremptive period commences to run from the day of the death of the alleged father.

In the case before us, Kristina turned nineteen years of age well before the effective date of Act No. 192, and her alleged natural father died after the effective date of the act. The question becomes whether her rights to establish filiation were forever lost after she reached her nineteenth birthday as per the law then in existence, or whether now-existing La.Civ.Code art. 197 is to be applied as the law at the time of her alleged father's death, under which her claim would still be viable.

In In re Succession of Smith , 09-969 (La.App. 3 Cir. 2/3/10), 29 So.3d 723, writ denied , 10-0829 (La. 6/18/10), 38 So.3d 325, this court considered an identical factual situation. There, an alleged child of the deceased brought an action to establish his filiation to the deceased and to establish heirship rights. He turned nineteen years of age well before the deceased's death, and the deceased died after the enactment of La.Civ.Code art. 197. This court concluded that his rights to claim filiation had been perempted, and the statute was not to be retroactively applied.

Here, Barnhill's right to bring a filiation action was extinguished and ceased to exist nineteen years after his birth.
Once that occurred, Smith and Appleby acquired the right to plead the exception of prescription. Passage of the 2005 amendment brought a substantive change to a party's right to plead the exception. Contrary to Barnhill's assertions, the Filiation of Parents and Children Act's command to apply the amendment's changes to "all claims existing or actions pending on its effective date" did not clearly and unequivocally express the legislature's intent to apply the 2005 amendment retroactively so as to revive his claim. We reiterate this court's pronouncement in In re Succession of McKay , 921 So.2d 1219, and our sister jurisdiction's holding in In re Succession of James , 994 So.2d 120, that, based on the language in section 3 of the Filiation of Parents and Children Act, the amendment applies to viable causes of action and not to ones that have already been extinguished. Unlike the mythological phoenix, Barnhill's filiation claim cannot rise from the ashes. Therefore, we find the trial court did not manifestly err by sustaining Smith and Appleby's exception of prescription.

Id. at 726.

Likewise, this court has held on other occasions that La.Civ.Code art. 197 does not have retroactive application to otherwise prescribed or perempted claims.

Similarly, in the present case, 2005 La. Acts No. 192 § 3, provides that "[t]he provisions of this Act shall be applicable to all claims existing or actions pending on its effective date and all claims arising or actions filed on and after its effective date." We find no "clear and unequivocal" expression by the legislature that Article 197 revives filiation claims which have already prescribed. It is clear that the intent of the legislature was to ensure that the provisions of the Act applied to causes of action that had not prescribed but were existing or already in litigation on June 29, 2005, the effective date of the Act. We, therefore, find that Article 197 is not applicable to these already-prescribed claims.

In re Succession of McKay , 05-603, pp. 5-6 (La.App. 3 Cir. 2/1/06), 921 So.2d 1219, 1223, writs denied , 06-504, 06631 (La. 6/2/06), 929 So.2d 1252, 1253.

In In re Succession of James , 07-2509 (La.App. 1 Cir. 8/21/08), 994 So.2d 120, writ denied , 08-2302 (La. 12/12/08), 996 So.2d 1119, the First Circuit considered the case involving a filiation action filed after the plaintiff had reached her nineteenth birthday while the former article 209 was in effect but where the alleged father died after the effective date of La.Civ.Code art. 197 in 2005. That court found that there is no retroactive application, based again upon the interpretation of the language "applicable to all claims existing or actions pending on its effective date and all claims arising or actions filed on and after its effective date" contained in the act.

The legislature did not clearly and unequivocally express, in either the act, the new law, or revision comments, an intent to have new article LSA-C.C. art. 197 apply retroactively to revive the right, claim, or cause of action at issue here. In the absence of retroactive application, article 209 controlled. See Succession of Faget , 2005-1434, 2005-1435 at p. 7 [ (La.App. 1 Cir. 6/9/06) ], 938 So.2d [1003] at 1007. Thus, Ms. Thibodeaux's action was no longer pending or viable at the time of the filing of the petition to establish filiation, and the trial court was correct in dismissing the intervention.

Id. at 125-26.

However, this state's supreme court has explicitly found this same language did show an intent by the Louisiana Legislature that the act be applied retroactively. In Mallard Bay Drilling , Inc. v. Kennedy , 04-1089, p. 12 (La. 6/29/05), 914 So.2d 533, 543, the court discussed the retroactivity of an act containing language that it "shall be applicable to all claims existing or actions pending on its effective date and to all claims arising or actions filed on and after its effective date." In response to this, Louisiana's supreme court stated, "It is plainly the legislature's intent that this Act be applied both retroactively and prospectively." Id. Further, in Morial v. Smith & Wesson Corp. , 00-1132, p. 10 (La. 4/3/01), 785 So.2d 1, 10, cert. denied , 534 U.S. 951, 122 S.Ct. 346, 151 L.Ed.2d 262 (2001), the court again addressed the legislature's intent by the use of this specific language, stating:

Act 291 contains a clear and unmistakable expression of legislative intent regarding its intended temporal effect. Section 2 of the Act states that its provisions "shall be applicable to all claims existing or actions pending on its effective date and all claims arising or actions filed on and after its effective date." By adopting this Section, the legislature has clearly indicated its intent that this Act be applied both retroactively and prospectively.

While it is clear that this, and other, Louisiana appellate courts have found that there is no legislative intent for the statute to be applied retroactively from the language present in 2005 La. Acts No. 192, § 3, identical language has been found to be a clear indicator of such intent by our supreme court. Such a discrepancy in our jurisprudence is far from ideal. Luckily, this court is not primarily required to determine the retroactive applicability of La.Civ.Code art. 197, solely in relation to the aforementioned language. Rather after a thorough review of the relevant jurisprudence, we have found that in all of the cases cited above regarding the applicability of La.Civ.Code art. 197, the courts appear to have interpreted La.Civ.Code art. 197 without considering the implications of La.Civ.Code art. 870 (emphasis added), which states:

A. The ownership of things or property is acquired by succession either testate or intestate, by the effect of obligations, and by the operation of law.
B. Testate and intestate succession rights, including the right to claim as a forced heir, are governed by the law in effect on the date of the decedent's death.

The Louisiana Supreme Court has long held that the Louisiana Civil Code is "a general system of law promulgated by legislative authority, and effect must be given to all of its provisions as such. Its various articles form parts of a complete system and must be construed with reference to each other and harmonized with its general purpose." Lowe v. Home Owners' Loan Corp. , 199 La. 672, 684, 6 So.2d 726, 730 (1942). Louisiana Civil Code Article 197 was enacted and became effective in 2005, while La.Civ.Code art. 870(B) was amended and became effective on June 22, 2001. 2001 La. Acts No. 560, § 1. The provision found in Subsection B of La.Civ.Code art. 870, which clearly provides that the law in effect on the date of the decedent's death shall govern succession rights, was in effect when former article 209 was repealed and the legislature enacted La.Civ.Code art. 197. We note that the legislature is presumed to know of all existing laws when enacting new ones. See State v. Johnson , 03-2993 (La. 10/19/04), 884 So.2d 568.

The second circuit recently discussed the applicability and scope of La.Civ.Code art. 870(B) in Succession of Younger , 50,876 (La.App. 2 Cir. 9/28/16), 206 So.3d 1088, 1092, writ denied , 16-2202 (La. 1/25/17), 215 So.3d 685 Similar to the instant facts and those in the above referenced cases, Younger involved an alleged illegitimate child of the decedent who turned nineteen while former article 209 was in effect, but whose alleged father died after the enactment of La.Civ.Code art. 197. As in the case at hand, the alleged child's claim was dismissed by the trial court pursuant to exceptions of prescription and peremption. However in a split from the previous jurisprudence, the Younger court considered the applicability and retroactivity of La.Civ.Code art. 197 in conjunction with La.Civ.Code art. 870. It began by noting that the pertinent clause of La.Civ.Code art. 197 begins with the phrase, "for purposes of succession only." Id. at 1092. As that court found:

This language is an unambiguous dictate by the legislature that puts the reader on notice that this specific clause only concerns the law of succession. Moreover, comment (e) to article 197 notes that the one year peremptive period remains in article 197 only "for the particular purpose of succession." Therefore, in considering the retroactivity of art. 197 in the context of a succession, we find La. C.C. art. 870 to be applicable.

Id.

We agree. It is clear that La.Civ.Code art. 870, as it currently appears, was in effect when the legislature enacted La.Civ.Code art. 197, and the legislature is presumed to have knowledge of its effects. See Johnson , 884 So.2d 568.

Regarding the scope and applicability of La.Civ.Code art. 870(B), we look to the legislature's intent, noting it specifically declared in 2001 La. Acts No. 560, § 3 that, "This Act is declared to be interpretative, curative, and procedural in nature and shall apply both prospectively and retroactively; however, this Act shall not apply to successions which have been judicially opened prior to the enactment of this Act." As the Younger court stated, regarding the effect of La.Civ.Code art. 870(B)'s directive that succession rights are governed by the law in effect on the date of the decedent's death and its relation to La.Civ.Code art. 197 :

Clearly, the legislature did not repeal former article 209 and enact article 197 in its place in a vacuum, isolated and meant to be interpreted and applied independently from the rest of the Civil Code. Instead, the legislature enacted article 197 in light of the laws governing successions; this conclusion is further supported by the legislature's language choice of "for the particular purpose of succession only," contained in the second clause of article 197. The effect of this language is that the second clause of article 197, which provides that a child not yet filiated has one year from death of the decedent to prove paternity, is triggered when a claim for filiation is filed in the context of a succession.

Younger , 206 So.3d at 1092. The court went on to find that the peremptive period of one year found in La.Civ.Code art. 197 only concerns the laws of succession, and as such, is governed by the law in effect at the time of the decedent's death pursuant to La.Civ.Code art. 870(B). In so finding, that court also analyzed the intent of the legislature when repealing former article 209 and enacting La.Civ.Code art. 197 in its place.

The former article 209 contained a peremptive period which required a child who was not filiated to establish paternity within nineteen years of birth or within one year from the death of the alleged biological father, whichever came first. See Succession of Grice , 462 So.2d 131 (La.), appeal dism'd , 473 U.S. 901, 105 S.Ct. 3517, 87 L.Ed.2d 646 (1985). It is undisputed that Kristina turned nineteen years old well before the repeal of former article 209. However, the current La.Civ.Code art. 197 contains no such peremptive period except for the purposes of succession, completely abolishing the requirement that a child must prove filiation within nineteen years of birth. La.Civ.Code art. 197. As the second circuit did in Younger , we look to the comments under La.Civ.Code art. 197 (emphasis added) to examine the legislature's intent in making this amendment, which state:

(e) ... Prior law required that a paternity action under former Civil Code Article 209 (rev. 1984) be instituted within nineteen years of the child's birth or within one year from the alleged parent's death, whichever first occurred. If the action was not timely instituted, the child could not thereafter establish his filiation for any purpose, except to recover damages under Civil Code Article 2315. That was a harsh result not justified by any policy consideration. For the particular purpose of succession, on the other hand, there is a time limit on instituting the action-to facilitate the orderly disposition of estates and the stability of land titles.

Based upon the foregoing, it is clear that the replacement of former article 209 with La.Civ.Code art. 197 by the Louisiana Legislature was based on equity and policy considerations. As such, it appears disingenuous that the legislature would intend to continue to enforce a rule that leads to a "harsh result not justified by any policy consideration" after the enactment of La.Civ.Code art. 197, based solely upon the illegitimate child's age at the time the statute was amended. This is especially pertinent considering La.Civ.Code art. 197 explicitly does away with the requirement that a filiation action be brought before the child reaches a certain age. When read in conjunction with La.Civ.Code art. 870(B), as required by La.Civ.Code art. 197's specific "[f]or purposes of succession only" language, however, it appears clear that this was not the legislature's intent.

Appellees urge, based upon Louisiana jurisprudence, that they acquired a vested right, the right to claim peremption, when Kristina reached nineteen years of age. Once a party acquires the right to plead prescription, a statute cannot apply retroactively to revive a prescribed cause of action, absent clear language of the legislature as to the retroactive application of the statute. Chance v. Am. Honda Motor Co., Inc. , 93-2582 (La. 4/11/94), 635 So.2d 177. This court has explained that generally prescriptive statutes are procedural, but as a party acquires a right to plead the exception of prescription, a change in this right to plead the exception is a substantive change in the law. McKay , 921 So.2d 1219. Because procedural statutes that also change substantive law must be construed to apply prospectively only, a clear and unequivocal expression of legislative intent is required for the statute to apply retroactively. Id. As this court and other Louisiana appellate circuits have found that the language of the Filiation of Parents and Children Act expressed no such legislative intent, they have declined to apply La.Civ.Code art. 197 retroactively. Id. While other courts, including our supreme court, have found that identical language to that contained in the Filiation of Parents and Children Act did express such a legislative intent, as discussed above, it is clear that "even where the legislature has expressed its intent to give a law retroactive effect, that law may not be applied retroactively if it would impair contractual obligations or disturb vested rights." Morial , 785 So.2d at 10.

Based upon such, this court ruled explicitly in Smith , 29 So.3d 723, that an illegitimate child's right to bring a filiation action was extinguished and ceased to exist nineteen years after birth. We went on to state that once that occurred, the decedent's surviving spouse and child acquired the right to plead the exception of prescription, apparently regardless of whether the alleged father was living or not. Id. at 726. However, this interpretation, while based upon sound legal reason, raises many troubling issues.

If the right to plead prescription vested in an alleged father's heirs when an illegitimate child turned nineteen under former article 209 of the Louisiana Civil Code, the heirs would be able to plead prescription in a filiation action even if the alleged father was still alive and chose not to do so. They cannot. "Under Louisiana law, a cause of action accrues when a party has the right to sue." Bourgeois v. A.P. Green Indus., Inc. , 00-1528, p. 10 (La. 4/3/01), 783 So.2d 1251, 1259.

A "vested right" is "that case when the right to enjoyment, present or prospective, has become the property of some particular person or persons as a present interest. The right must be absolute, complete and unconditional , independent of a contingency, and a mere expectancy of future benefit .... does not constitute a vested right."

W.R.M. v. H.C.V. , 06-702, pp. 6-7 (La. 3/9/07), 951 So.2d 172, 175-76 (Johnson, J., concurring), (quoting Sawicki v. K/S Stavanger Prince , 01-528, p. 10 (La. 12/7/01), 802 So.2d 598, 604 ).

It is clear that the decedent, Kristina's alleged father, acquired the vested right to plead the exception of prescription upon her nineteenth birthday under former article 209, which was in effect when Kristina turned nineteen. "For while the defendant does not acquire anything during the running of the prescriptive period, once the time period has elapsed, the legislature grants the defendant the right to plead the exception of prescription in order to defeat the plaintiff[']s claim. La.Code Civ.P. arts. 927 & 934." James , 994 So.2d at 123 (quoting Chance , 635 So.2d at 177-78 ). However, the same cannot be said of Appellees, who did not have any interest in Kristina's filiation action or, indeed, any interest in the succession until the decedent's death, and then only in their capacity as his potential heirs. "Succession occurs at the death of a person." La.Civ.Code art. 934. A succession cannot exist before the death of the deceased, and, therefore, a potential heir cannot have a right or vested claim before that time.

Kristina did not attempt to filiate while the decedent was still alive, and as such, no one can know if the decedent would have asserted his sole right to claim prescription. Kristina's action against her alleged father's succession could not have existed until after his death. Similarly, Appellees, the decedent's siblings, could not have known they would be his heirs until his death. At any time previous to that, the decedent could have written a last will and testament and named new heirs. At no time previous could Appellees have asserted an exception of prescription in Kristina's filiation action. It is clear that Appellees did not have a "vested right" as defined by Louisiana law. See W.R.M. , 951 So.2d 172.

While we are mindful of the conflicting jurisprudence regarding the current issue, we find that of those courts that ruled La.Civ.Code art. 197 did not apply retroactively, none considered the article in light of and in conjunction with the law governing succession as required by La.Civ.Code art, 870. The Louisiana Legislature, under both former article 209 and current La.Civ.Code art. 197, set a separate time period for bringing filiation actions based upon succession proceedings. The language, "For purposes of succession only" shows clear intent that a succession proceeding is governed by its own rules, even in filiation actions. As such, we find that La.Civ.Code art. 197 cannot be read without La.Civ.Code art. 870(B)'s directive that "succession rights ... are governed by the law in effect on the date of the decedent's death." Therefore, all filiation actions raised pursuant to a succession proceeding brought after the legislature passed 2005 La. Acts No. 192, § 1, must be governed by the provisions of La.Civ.Code art. 197 per La.Civ.Code art. 870(B). Accordingly, we find that the second clause of La.Civ.Code art. 197 allows a child not yet filiated, who was born and turned nineteen while the repealed former article 209 was still in effect, to bring an action to be recognized as an heir in a succession proceeding within one year of the death of the alleged father.

As the decedent died on April 18, 2016, well after the enactment of La.Civ.Code art. 197, and Kristina brought her action within one year of his death, her claim to establish filiation is not perempted under Louisiana law.

DISPOSITION

For the reasons set forth herein, we find that Kristina Wright's action was timely and not barred by prescription or peremption. Therefore, we reverse the ruling of the trial court granting Appellees' exception of prescription and dismissing Kristina Wright's claim and remand this matter to the trial court for further proceedings consistent herewith. The costs of this appeal are assessed against Appellees, Billy Ray Pelt, Rosemary Pelt Braun, Charleston L. Pelt, Charlene Faye Pelt O'Banion, Gayle Dianne Pelt Wentzel, James Douglas Pelt, Barbara Lee Pelt Cooley, and Geraldine Pelt Governale.

REVERSED AND REMANDED.


source: Caselaw Access Project

author: GREMILLION, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Dudley MELANCON, Jr. -aka- Dudley Melancon
    17-943
    Court of Appeal of Louisiana, Third Circuit.
    April 18, 2018
    John F. DeRosier, Fourteenth Judicial District Attorney, Carla S. Sigler, Assistant District Attorney, Elizabeth Brooks Hollins, Assistant District Attorney, 901 Lakeshore Drive, Suite 800, Lake Charles, LA 70601, (337) 437-3400, COUNSEL FOR APPELLEE: State of Louisiana
    Paula C. Marx, Louisiana Appellate Project, P. O. Box 82389, Lafayette, LA 70598-2389, (337) 991-9757, COUNSEL FOR DEFENDANT/APPELLANT: Dudley Melancon, Jr.
    Court composed of Shannon J. Gremillion, Phyllis M. Keaty, and D. Kent Savoie, Judges.
   GREMILLION, Judge.

Defendant, Dudley Melancon, Jr., and Jeremiah Christopher Jones were charged with first degree robbery, a violation of La.R.S. 14:64.1, on June 11, 2014, as the result of an incident on May 7, 2014, in which Defendant robbed the victim of a bank bag. Defendant pled not guilty and requested a jury trial. The charges against Defendant and Jones were severed, and Defendant was tried by himself. Defendant never contested the fact that he committed a simple robbery.

A jury convicted Defendant of the lesser charge of simple robbery, a violation of La.R.S. 14:65. The trial court sentenced Defendant to the maximum sentence of seven years at hard labor, to run consecutively to any other time being served. That sentence has since been vacated, and Defendant has been adjudicated a third felony offender. The appeal of that adjudication is before this court in docket number 17-944.

Appellate counsel has filed a brief pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), alleging no non-frivolous issues exist on which to base an appeal and seeking to withdraw as Defendant's counsel. Defendant was notified of the filing and given until January 22, 2018, to file a pro se brief. Defendant has not filed a brief. We grant the motion to withdraw, and Defendant's conviction is affirmed.

ANALYSIS

Pursuant to Anders , 386 U.S. 738, 87 S.Ct. 1396, Defendant's appellate counsel filed a brief stating she could find no errors on appeal that would support reversal of Defendant's conviction or sentence. Thus, counsel seeks to withdraw.

In State v. Benjamin , 573 So.2d 528 (La.App. 4 Cir. 1990), the fourth circuit explained the Anders analysis:

When appointed counsel has filed a brief indicating that no non-frivolous issues and no ruling arguably supporting an appeal were found after a conscientious review of the record, Anders requires that counsel move to withdraw. This motion will not be acted on until this court performs a thorough independent review of the record after providing the appellant an opportunity to file a brief in his or her own behalf. This court's review of the record will consist of (1) a review of the bill of information or indictment to insure the defendant was properly charged; (2) a review of all minute entries to insure the defendant was present at all crucial stages of the proceedings, the jury composition and verdict were correct and the sentence is legal; (3) a review of all pleadings in the record; (4) a review of the jury sheets; and (5) a review of all transcripts to determine if any ruling provides an arguable basis for appeal. Under C.Cr.P. art. 914.1(D) this Court will order that the appeal record be supplemented with pleadings, minute entries and transcripts when the record filed in this Court is not sufficient to perform this review.

Id. at 531.

Pursuant to Anders and Benjamin , we have performed a thorough review of the record, including pleadings, minute entries, the charging instrument, and the transcripts. Defendant was properly charged in the bill of information, he was present and represented by counsel at all crucial stages of the proceedings, the jury composition and verdict were correct, and review of the transcripts in the record provide only frivolous issues for appeal.

While it is not necessary for Defendant's counsel to "catalog tediously every meritless objection made at trial or by way of pre-trial motions with a labored explanation of why the objections all lack merit," counsel's Anders brief must " 'assure the court that the indigent defendant's constitutional rights have not been violated.' " State v. Jyles , 96-2669, p. 2 (La. 12/12/97), 704 So.2d 241, 241 (citing Jones v. Barnes , 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983), and quoting McCoy v. Court of Appeals of Wisconsin , 486 U.S. 429, 439, 442, 108 S.Ct. 1895, 1902-03, 100 L.Ed.2d 440 (1988) ). Counsel must fully discuss and analyze the trial record and consider "whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration." Jyles , 704 So.2d at 241 (citing United States v. Pippen , 115 F.3d 422 (7th Cir. 1997) ). Thus, counsel's Anders brief must review the procedural history and the evidence presented at trial and provide "a detailed and reviewable assessment for both the defendant and the appellate court of whether the appeal is worth pursuing in the first place." State v. Mouton , 95-981, p. 2 (La. 4/28/95), 653 So.2d 1176, 1177.

Counsel's brief to this court recites the facts found in the record. Counsel notes the State proved all the elements of the crime of simple robbery. Indeed, Defendant never contested his guilt and offered to plead guilty to that offense prior to trial. Counsel further notes the alleged impropriety of the Sulphur Police Department and the involvement of Sergeant Robbins, the victim's husband, in the investigation. Counsel concludes that any potential error resulting from this alleged impropriety would be harmless.

Defendant filed a motion to suppress the statement he gave to the victim's husband. Defendant withdrew the motion after he learned the statement could not be located. Likewise, Defendant filed a motion to produce the clothes he was wearing at the time of his arrest. The clothing was apparently lost after the arrest. The trial court allowed Defendant to wear clothing at trial that testimony established was similar to what he wore at the time of the offense. Counsel concludes any potential issue concerning the lost clothing was harmless. Finally, counsel addresses Defendant's request to tell the jury the penalty range for first degree robbery and simple robbery. The trial court allowed counsel to provide only the mandatory sentences. Counsel concluded the law did not require the trial court to provide the penalty range and found no appealable error.

Defendant made several objections in pre-trial motions and at trial that were overruled. However, Defendant admitted he committed simple robbery. He went to trial solely to defeat the allegation that he led the victim to believe he was armed with a dangerous weapon, the element that distinguishes simple robbery from first degree robbery. The overruled pre-trial and trial objections concerned that element of the charged offense. Thus, once the jury convicted Defendant of simple robbery, those pre-trial and trial issues were of no moment for Defendant and would not present any non-frivolous issues for appeal.

Defendant's sentence was ultimately vacated by the later multiple offender proceeding, and he was resentenced under the multiple offender guidelines. Thus, any appeal concerning the underlying sentence for simple robbery would be frivolous.

In short, our review of the record reveals no non-frivolous issues Defendant could raise on appeal. Accordingly, the motion to withdraw filed by counsel is granted, and Defendant's conviction is affirmed.

DECREE

Appellate counsel's motion to withdraw is granted and Defendant's conviction is affirmed.

MOTION TO WITHDRAW GRANTED; CONVICTION AFFIRMED .

ORDER

The above and foregoing Motion considered,

IT IS ORDERED that PAULA C. MARX be allowed to withdraw as attorney of record for DUDLEY MELANCON, JR. , Defendant-Appellant in this matter.

Lake Charles, Louisiana this _______ day of ____________, 2018.


author: SAVOIE, Judge.

text:
    STATE of Louisiana v. Michael Adam DOMINGUE
    17-786
    Court of Appeal of Louisiana, Third Circuit.
    April 18, 2018
    John Foster DeRosier, District Attorney, Fourteenth Judicial District Court, Cynthia Killingsworth, Elizabeth Brooks Hollins, Assistant District Attorneys, 901 Lakeshore Drive, Suite 800, Post Office Box 3206, Lake Charles, Louisiana 70602-3206, (337) 437-3400, COUNSEL FOR APPELLEE: State of Louisiana
    Annette Fuller Roach, Louisiana Appellate Project, Post Office Box 1747, Lake Charles, Louisiana 70602-1747, (337) 436-2900, COUNSEL FOR DEFENDANT/APPELLANT: Michael Adam Domingue
    Court composed of Sylvia R. Cooks, Billy H. Ezell, and D. Kent Savoie, Judges.
   SAVOIE, Judge.

On May 19, 2016, a Calcasieu Parish grand jury indicted Defendant Michael Adam Domingue for manslaughter, a violation of La.R.S. 14:31. The parties selected a jury on November 14, 2016; said jury began hearing evidence on November 15. On November 16, the jury returned a responsive verdict of negligent homicide.

On February 15, the district court sentenced Defendant to five years, however, the transcript fails to show whether this time is to be served at hard labor.

Defendant appeals, assigning four errors. For the following reasons, we affirm Defendant's conviction, vacate Defendant's sentence, and remand to the district court for imposition of a determinate sentence.

FACTS

The victim Donald Dean Trahan, Jr., aka "T-Don," and his girlfriend Jennifer Carlile lived in a trailer owned by Defendant. On March 22, 2016, Carlile went to a hospital with a broken nose and eye sockets, apparently the result of a beating from the victim. At about the same time that day, the victim was out fishing. Carlile returned to the trailer after her hospital visit; later Trahan arrived at the trailer and an argument ensued. Defendant came out of his room wearing a holstered handgun and ordered the victim to leave. The victim refused, and the argument escalated between the two men. At some point, the victim pulled off his hoodie; several witnesses interpreted this gesture as the beginning of a fight. Some witnesses said the victim advanced toward Defendant; there is no dispute the latter fired a lethal shot.

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 an error patent raised, which we address in Assignment of Error Number Three.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, Defendant argues the evidence adduced by the State at trial was insufficient to support his conviction for negligent homicide. More specifically, he contends the State failed to prove he did not shoot the victim in self-defense. There is no dispute regarding whether Defendant shot the victim; the issue is simply whether the shooting was justified.

"In reviewing the sufficiency of the evidence to support a conviction, an appellate court in Louisiana is controlled by the standard enunciated by the United States Supreme Court in Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).... [T]he appellate court must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt." State v. Captville , 448 So.2d 676, 678 (La.1984).... Furthermore, in a case in which defendant asserts that he acted in self-defense, the state has the burden of establishing beyond a reasonable doubt that he did not act in self-defense. State v. Brown , 414 So.2d 726, 728 (La.1982). When defendant challenges the sufficiency of the evidence in such a case, the question becomes whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that the homicide was not committed in self-defense. State v. Matthews , 464 So.2d 298 (La.1985).

State ex rel. D.P.B. , 02-1742, pp. 4-6 (La. 5/20/03), 846 So.2d 753, 756-57 (footnote omitted).

The applicable statute, La.R.S. 14:20, states, in part:

A. A homicide is justifiable:
(1) When committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger.
(2) When committed for the purpose of preventing a violent or forcible felony involving danger to life or of great bodily harm by one who reasonably believes that such an offense is about to be committed and that such action is necessary for its prevention. The circumstances must be sufficient to excite the fear of a reasonable person that there would be serious danger to his own life or person if he attempted to prevent the felony without the killing.
....
C. A person who is not engaged in unlawful activity and who is in a place where he or she has a right to be shall have no duty to retreat before using deadly force as provided for in this Section, and may stand his or her ground and meet force with force.
D. No finder of fact shall be permitted to consider the possibility of retreat as a factor in determining whether or not the person who used deadly force had a reasonable belief that deadly force was reasonable and apparently necessary to prevent a violent or forcible felony involving life or great bodily harm or to prevent the unlawful entry.

Generally, the witnesses appear to agree that the victim was arguing with his girlfriend in Defendant's trailer. Defendant came out of his room wearing a gun in a holster and told the victim that he needed to leave; the victim refused and the argument escalated. The victim took off or started to take off his hoodie in a manner that some witnesses interpreted as signifying he wanted to fight. Some witnesses also stated that the victim moved toward Defendant. There is no allegation that the victim was armed.

We find the core issue in this case is the proportionality of the use of force. Regardless of any possibility of whether the victim was dangerous or aggressive, it is undisputed that Defendant used armed, deadly force against an unarmed individual.

In State v. Mincey , 08-1315, pp. 2-5 (La.App. 3 Cir. 6/3/09), 14 So.3d 613, 615-16, this court opined:

Defendant does not deny that he shot and killed the victim, nor did he deny it at trial. Rather, he argues that the State failed to disprove that he acted in self-defense. Killing in self-defense is governed by La.R.S. 14:20(A), which states, in pertinent part, "[a] homicide is justifiable: (1) When committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger." (Emphasis added).
Defendant contends that the killing was justifiable because he had his back against the wall, and was surrounded by the victim and the victim's two friends, Doucet and Jones. Further, he contends that shooting the victim was the only way he could escape.
The essence of his defense is that he was justified in responding to an attempted punch by shooting his opponent in the chest at close range. We recognize that Dejean had two friends with him. Thus, Defendant may have genuinely felt endangered; further, some level of fear was objectively reasonable. However, the level of force he used to defend himself was far beyond what was necessary under the circumstances.
In the context of self-defense in a manslaughter prosecution, our court has observed in State v. Griffin , 06-543, pp. 12, 14 (La.App. 3 Cir. 9/27/06), 940 So.2d 845, 851, 854, writ denied , 07-2 (La.9/14/07), 963 So.2d 995, the following:
The State had the burden of proving the Defendant did not stab Marcus Conway in self-defense; therefore, we must determine whether the Defendant reasonably believed that he was in imminent danger of losing his life or receiving great bodily harm and that killing Marcus was necessary to save himself from that danger. The standard in La.R.S. 14:20 is whether the Defendant's subjective belief that he was in danger was reasonable. State v. Brown , 93-1471 (La.App. 3 Cir. 5/4/94), 640 So.2d 488.
Factors to consider in determining whether a defendant had a reasonable belief that the killing was necessary are the excitement and confusion of the situation, the possibility of using force or violence short of killing, and the defendant's knowledge of the assailant's bad character. State v. Hardeman , 467 So.2d 1163 (La.App. 2d Cir.1985). Although there is no unqualified duty to retreat, the possibility of escape is a factor to consider in determining whether a defendant had a reasonable belief that the use of deadly force was necessary to avoid the danger. State v. Brown , 414 So.2d 726 (La.1982).
State v. Spivey , 38,243, p. 6 (La.App. 2 Cir. 5/12/04), 874 So.2d 352, 357.
In cases where the defendant claims self-defense as a justification, the absence of a weapon from the victim's person or immediate reach is often a critical element of the state's proof. See State v. Davis , 28,662 (La.App.2d Cir.9/25/96), 680 So.2d 1296.... The absence of weapon on the victim, however, is not dispositive of the issue....
State in Interest of D.S. , 29,554, p. 3 (La.App. 2 Cir. 5/7/97), 694 So.2d 565, 567.
....
By returning the guilty verdict, the jury obviously did not believe the Defendant acted in self-defense. We find that a rational fact finder, after viewing the evidence in the light most favorable to the prosecution, could have found beyond a reasonable doubt that the State proved the homicide was not committed in self-defense. Accordingly, this assignment of error lacks merit.
Defendants in this case and in Griffin used deadly force against what were unarmed attacks. Thus, as in Griffin , the jury in the present case could rationally have concluded that Defendant did not act in self-defense.
This analysis applies even if the jury believed the testimony of Defendant's most favorable witness, Ms. Bryant, the Defendant's mother. Of course, the State presented evidence that was less favorable to Defendant. Jones testified that Defendant walked to the bar's bathroom, and bumped into the victim, then bumped into the victim again on his way back. The victim then told him to watch where he was going, "[a]nd the dude got crazy." According to Jones, Defendant indicated that he wanted to resolve the issue outside, so Jones and Doucet followed him out of the bar. When they arrived outside, Defendant got near a wall and put his hand under his shirt. Jones testified that he saw Defendant had a gun, so then he and Doucet began backing up. The victim then came out and got in front of Defendant. When the victim touched his hat, Defendant shot him. Jones opined that the victim did not see the gun in Defendant's waistband. Doucet's testimony was similar, although he acknowledged that he did not see the initial jostling that apparently triggered the incident.
Defendant did not deny shooting and killing the victim. His defense was justification. However, as mentioned earlier, responding to an oncoming punch by shooting the other person in the chest is an excessive response. Thus, the jury's determinations in the present case were not unreasonable. Therefore, the Defendant's reliance on self-defense is meritless.

In light of Mincey and the jurisprudence cited therein, we find Defendant used disproportionate force against the unarmed victim. This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assignment of error, Defendant complains the district court erred in not granting a mistrial due to improper remarks by the prosecutor during closing arguments. Specifically, he refers to the following passage:

Everyone has a right to own a weapon. That is a right that we have. And in this situation, what you need to understand is that you, as a jury, if you were to come back not guilty, you would be allowing somebody to shoot-

The court sustained Defendant's objection. Both parties also note an earlier portion of the prosecutor's argument:

Now that I've listed those two important parts, there was some other information that was provided to you, the jury. I'm sure you remember Mr. Casanave's opening statement, I do, where it was a dramatic leap across the room yelling and slamming his hand down right in front of you. I remember that, as if he was a linebacker attacking.
I told you what I was going to prove and show you in my opening. I don't believe that Mr. Casanave has proven his.

The court overruled Defendant's objection.

Further, he cites La.Code Crim.P. art. 774, which states, in part: "The argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case. The argument shall not appeal to prejudice." Trial counsel lodged an objection which the court sustained. After the prosecutor had finished, Defendant's trial counsel moved for a mistrial at the bench; the court denied the motion.

Defendant cites La.Code Crim.P. art. 771, which states, in part:

In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
(1) When the remark or comment is made by the judge, the district attorney, or a court official, and the remark is not within the scope of Article 770[.]

While Defendant acknowledges the court did not allow the prosecutor to finish her statement, he argues she said enough to unduly prejudice his case. Defendant cites some general jurisprudence on this issue but no analogous cases. He observes:

A prosecutor's predictions as to the consequences of a not guilty verdict, or the societal costs of such a result, are clearly improper and should be avoided. State v. Barrow , 410 So.2d 1070 (La.1982), cert. denied , 459 U.S. 852, 103 S.Ct. 115, 74 L.Ed.2d 101 [ (1982) ]. Accordingly, a prosecutor should refrain from argument which tends to divert the jury from its duty to decide the case on the evidence by injecting issues broader than the guilt or innocence of the accused. State v. Guillory , 461 So.2d 492 (La.App. 3d Cir.1984).

State v. Williams , 524 So.2d 1221, 1233 (La.App. 3 Cir.), writ denied , 530 So.2d 93 (La.1988).

Defendant also acknowledges "much credit should be accorded to the good sense and fair mindedness of jurors who have seen the evidence and heard the argument, and have been instructed repeatedly by the trial judge that arguments of counsel are not evidence." State v. Mitchell , 94-2078, p. 11 (La. 5/21/96), 674 So.2d 250, 258, cert. denied , 519 U.S. 1043, 117 S.Ct. 614, 136 L.Ed.2d 538 (1996). The State cites similar language from another case. Further, the State notes, "even assuming that such remarks were inappropriate, a conviction will not be reversed due to an improper remark during closing argument unless the court is thoroughly convinced that the remark influenced the jury and contributed to the verdict[.]" State v. Martin , 93-285, p. 18 (La. 10/17/94), 645 So.2d 190, 200, cert. denied , 515 U.S 1105, 115 S.Ct. 2252, 132 L.Ed.2d 260 (1995).

The State notes portions of the district court's final instructions to the jury:

The defendant is not required to call any witnesses or to produce any evidence. The defendant is not required to testify. No presumption of guilt may be raised and no inference of any kind may be drawn from the fact that the defendant did not testify.
Now that you have heard the relevant law of the offenses charged, I must explain to you your duties. Jurors should not be influenced by sympathy, passion, prejudice, bias, or public opinion. You are expected to reach a just verdict.

Defendant has not pointed to any analogous case that demonstrates the current situation gives rise to undue prejudice. Also, the first statement by the prosecutor appears to be more of an argument that the evidence did not support claims made by defense counsel in his opening statement, rather than an attempt to shift or comment on the ultimate burden of proof. In light of the cases cited by both parties and the district court's instructions to the jury, this assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER THREE

In his third assignment of error, Defendant argues that his sentence is indeterminate, and the State agrees. A determinate sentence is required by La.Code Crim.P. art. 879 which states, "If a defendant who has been convicted of an offense is sentenced to imprisonment, the court shall impose a determinate sentence." The parties agree that the transcript does not show whether the court sentenced Defendant to hard labor. Pursuant to La.R.S. 14:32(C)(1), a sentence for negligent homicide may be either with or without hard labor. Since the district court did not specify, the sentence is indeterminate and should be vacated. Further, the case should be remanded for the district court to impose a determinate sentence. State v. Mouton , 12-836 (La.App. 3 Cir. 2/27/13), 129 So.3d 49, writ denied , 14-1891 (La. 9/11/15), 176 So.3d 415 ; State v. Matthew , 07-1326 (La.App. 3 Cir. 5/28/08), 983 So.2d 994, writ denied , 08-1664 (La. 4/24/09), 7 So.3d 1193.

Accordingly, Defendant's sentence is vacated, and the matter is remanded to the district court in order to impose a determinate sentence. Based on the foregoing, discussion of the final assignment of error is pretermitted because it also challenges the sentence.

DECREE

Defendant's conviction is affirmed. Defendant's sentence is vacated, and the case is remanded to the trial court in order to impose a determinate sentence.

CONVICTION AFFIRMED; SENTENCE VACATED; AND REMANDED.

      Louisiana Code of Criminal Procedure Article 770 states:
      Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
      (1) Race, religion, color or national origin, if the remark or comment is not material and relevant and might create prejudice against the defendant in the mind of the jury;
      (2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;
      (3) The failure of the defendant to testify in his own defense; or
      (4) The refusal of the judge to direct a verdict.
      An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial.


author: SAUNDERS, Judge.

text:
    STATE of Louisiana v. Jacob PURVIS aka Jacob Dewayne Purvis
    17-1013
    Court of Appeal of Louisiana, Third Circuit.
    April 18, 2018
    James P. Lemoine, District Attorney, James D. White, Jr., Rhea Renee Nugent, Assistant District Attorneys, Thirty-Fifth Judicial District, P.O. Box 309, Colfax, LA 71417, (318) 627-2971, COUNSEL FOR APPELLEE: State of Louisiana
    Chad M. Ikerd, Louisiana Appellate Project, P.O.Box 2125, Lafayette, LA 70502-2125, (225) 806-2930, COUNSEL FOR DEFENDANT/APPELLANT: Jacob Purvis
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and Van H. Kyzar, Judges.
   SAUNDERS, Judge.

Defendant, Jacob Purvis, was convicted of aggravated arson, a violation of La.R.S. 14:51, and sentenced to twelve years at hard labor, with the first two years of the sentence to be served without benefit of probation, parole, or suspension of sentence, to run consecutively with any other sentence. Defendant was also ordered to pay a $5,000.00 fine, court costs, and a $1,000.00 fee to the Public Defender's Office. The Defendant's conviction and sentence were affirmed on appeal. State v. Purvis , 16-816 (La.App. 3 Cir. 4/12/17), 217 So.3d 470.

Defendant is before the court again as the result of a habitual offender proceeding. On October 4, 2016, the State filed a bill of information charging Defendant as a third felony offender pursuant to La.R.S. 15:529.1. Defendant was adjudicated a third offender at a hearing held on July 31, 2017. The trial court then vacated Defendant's twelve-year sentence and sentenced him to serve forty years at hard labor without benefit of probation, parole, or suspension of sentence, which was a deviation from the mandatory sentence of life imprisonment. Written reasons for judgment were issued by the trial court on August 3, 3017. A motion to reconsider sentence was filed on August 21, 2017, and was denied. A motion for appeal was filed on August 21, 2017, and was granted.

Defendant's appeal was lodged with this court on October 31, 2017. Therein, Defendant asserts that the trial court erred in sentencing him under the habitual offender sentencing scheme that was operative prior to November 1, 2017.

FACTS:

The facts supporting the underlying conviction of aggravated arson were set forth in Purvis , 217 So.3d at 472, as follows:

Defendant lived in a double-wide trailer with his mother, uncle, sister, and his sister's two daughters. During the morning of September 16, 2015, Defendant and his sister were arguing inside the trailer when he allegedly threatened to burn it down. He exited the trailer, threw a bug zapper against the wall on the front porch, and walked to the side of the house. A few minutes later, the trailer caught on fire and ended in a total loss. The occupants inside the trailer at the time, Defendant's sister, one of her daughters, and his uncle, exited before it burned down. Defendant's sister and her daughter received injuries from being burned as they exited the trailer.

At the habitual offender hearing, the trial court found Defendant had previously been convicted of operation of a clandestine laboratory on March 20, 2009, and conspiracy to produce methamphetamine on May 3, 2012. He was then sentenced as a third offender on his conviction for aggravated arson. The trial court gave the following reasons for its deviation from the mandatory sentence of life imprisonment: "Mr. Purvis, due to your age and due to the current push to reduce the incarcerations ... the Court does find that imprisonment for your natural life without benefit would be excessive." In its written reasons for judgment, the trial court additionally stated: "Considering the Defendant's age, his alleged addiction, combined with the fact that he has both the mental and physical ability to be a productive member of society, the trial court found that the mandatory life sentence would be constitutionally excessive under the circumstances."

ASSIGNMENT OF ERROR:

In his only assignment of error, Defendant contends that the trial court erred in sentencing him under the prior version of La.R.S. 15:529.1. He argues that his conviction for aggravated arson was not final at the time of his habitual offender sentencing. Therefore, he should have been sentenced under the new version of the statute, which applies to offenders whose convictions "became final on or after November 1, 2017." We find merit to this contention.

Habitual Offender Statute

The habitual offender statute in effect at the time Defendant committed the offense of aggravated arson, was convicted thereof, and was adjudicated a habitual offender and sentenced accordingly provided, in pertinent part:

(3) If the third felony is such that upon a first conviction, the offender would be punishable by imprisonment for any term less than his natural life then:
(a) The person shall be sentenced to imprisonment for a determinate term not less than two-thirds of the longest possible sentence for the conviction and not more than twice the longest possible sentence prescribed for a first conviction; or
(b) If the third felony and the two prior felonies are felonies defined as a crime of violence under R.S. 14:2(B), a sex offense as defined in R.S. 15:540 et seq. when the victim is under the age of eighteen at the time of commission of the offense, or as a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for ten years or more, or any other crimes punishable by imprisonment for twelve years or more, or any combination of such crimes, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence.

La.R.S. 15:529.1.

Louisiana Revised Statutes 15:529.1 was amended by 2017 La. Acts No. 257, § 1 and 2017 La. Acts No. 282, § 1 and now provides, in part:

(3) If the third felony is such that upon a first conviction, the offender would be punishable by imprisonment for any term less than his natural life then the following sentences apply:
(a) The person shall be sentenced to imprisonment for a determinate term not less than one-half of the longest possible sentence for the conviction and not more than twice the longest possible sentence prescribed for a first conviction.
(b) If the third felony and the two prior felonies are felonies defined as a crime of violence under R.S. 14:2(B), or a sex offense as defined in R.S. 15:541 when the victim is under the age of eighteen at the time of commission of the offense, or any combination of such crimes, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence.

Acst 257 and 282 both explicitly provide that their provisions "shall become effective November 1, 2017, and shall have prospective application only to offenders whose convictions became final on or after November 1, 2017." 2017 La. Acts 257, § 2; 2017 La. Acts 282, § 2.

The ameliorative changes made to La.R.S. 15:529.1 drastically reduced Defendant's sentencing exposure. Defendant's prior felonies, conspiracy to produce methamphetamine and operation of a clandestine laboratory, are both violations of the Uniform Controlled Dangerous Substance Law punishable by ten or more years, and Defendant's current offense, aggravated arson, is a crime of violence. See La.R.S. 14:26 ; La.R.S. 40:967 ; La.R.S. 40:983 ; La.R.S. 14:2(B)(18) ; La.R.S. 14:51. Thus, under the prior version of La.R.S. 15:529.1(A)(3)(b) Defendant was subject to a mandatory sentence of life imprisonment without benefits. The relevant amendments to La.R.S. 15:529.1(A)(3)(b) removed persons with a current or prior felony that was a violation of the Uniform Controlled Dangerous Substance Law punishable for ten years or more years from the group of persons subject to a life sentence as a third felony offender. Consequently, if the amended version of the habitual offender law is applicable to Defendant's adjudication as a third felony offender, Defendant would be subject to a sentence of ten to forty years, with two years of the sentence to be served without benefit of parole. See La.R.S. 15:529.1(A)(3)(a) ; La.R.S. 14:51 ; State v. Bentley , 15-598 (La.App. 3 Cir. 2/3/16), 185 So.3d 254.

Arguments of the Parties

Defendant notes that the bills amending La.R.S. 15:529.1 were signed by the Governor on June 15, 2017, and became effective November 1, 2017. He admits that the version of La.R.S. 15:529.1 under which he was sentenced as a habitual offender was still in effect at the time he was sentenced. However, his conviction for aggravated arson was not yet final because his pro se writ application was pending before the supreme court at the time of the habitual offender proceeding. Defendant points out that the new law does not state it is effective for new criminal activity occurring after November 1, 2017. Instead, it applies to convictions that "became final" on or after November 1, 2017. Thus, he suggests a ruling on the habitual offender bill filed in his case should have been postponed.

Defendant argues that the trial court's downward departure from the mandatory sentence provided for under the prior law does not affect which version of La.R.S. 15:529.1 is applicable to his case. Defendant notes that the State is not required to wait until after all appellate rights are exhausted before pursuing a habitual offender sentence and that the laws governing convictions regularly change from year to year. He, however, asserts that the timing of this case is unique and asks this court to vacate the sentence imposed on July 31, 2017, and remand the matter for resentencing under the amended version of La.R.S. 15:529.1.

The State acknowledges that Defendant's pro se writ application is pending in the supreme court. However, according to State v. Parker , 03-924 (La. 4/14/04), 871 So.2d 317, a habitual offender proceeding does not result in a conviction but is simply an enhanced penalty, and the sentence to be imposed is that in effect at the time of the commission of the offense. The State also discusses State v. Boutte , 10-928 (La.App. 3 Cir. 3/9/11), 58 So.3d 624, writ denied , 11-689 (La. 10/7/11), 71 So.3d 314. Therein, this court found Defendant's underlying conviction did not have to be final before an enhanced sentence for that offense could be imposed in a habitual offender proceeding. The State concludes that Defendant was sentenced under the correct version of La.R.S. 15:529.1.

Analysis

In Parker , 871 So.2d at 322-26, (alterations in original) the supreme court addressed whether a defendant should be sentenced according to the habitual offender law in effect at the time of the commission of the offense or that in effect at the time of the habitual offender adjudication and sentencing:

[T]his court has consistently held that habitual offender proceedings do not charge a separate crime but merely constitute ancillary sentencing proceedings such that the punishment for a new conviction is enhanced. See State v. Dorthey , 623 So.2d 1276, 1278-79 (La.1993) ; State v. Walker , 416 So.2d 534, 536 (La.1982) ; State v. Williams , 326 So.2d 815, 818 (La.1976). Additionally, it is generally settled that the law in effect at the time of the commission of the offense is determinative of the penalty which is to be imposed upon the convicted accused. See State v. Narcisse , 426 So.2d 118, 130 (La.1983). State v. Wright , 384 So.2d 399, 401 (La.1980) ; State v. Gros , 205 La. 935, 938, 18 So.2d 507, 507 (1944), cert. denied, 326 U.S. 766, 66 S.Ct. 170, 90 L.Ed. 462 (1945). Finally, "[t]he mere fact that a statute may be subsequently amended, after the commission of the crime, so as to modify or lessen the possible penalty to be imposed, does not extinguish liability for the offense committed under the former statute." Narcisse , 426 So.2d at 130.
....
... While it is true La. R.S. 15:529.1(D)(3) provides that defendant shall be sentenced as a habitual offender only "[w]hen the judge finds" that he has been convicted of a prior felony or felonies, this language merely references the determination required to be made by the judge at the conclusion of the habitual offender hearing. A defendant is not convicted of being a habitual offender. Rather, a defendant is adjudicated a habitual offender as a result of prior felony convictions. The sentence to be imposed following a habitual offender adjudication is simply an enhanced penalty for the underlying conviction.
....
Policy considerations also convince us that the applicable penalty provision is that existing on the date of the commission of the offense. The contrary determination that defendant is subject to the penalty provision in effect at the time of his adjudication as a habitual offender would allow the district attorney, rather than defendant's own act, to control the fixing of defendant's status as a habitual offender and the applicable penalty depending on when the habitual offender bill is filed. Concomitantly, if we were to adopt the position that the date of the habitual offender adjudication fixes the applicable penalty provision, some defendants might be encouraged to delay proceedings to coincide with the effective dates of more lenient sentencing provisions. Either of these situations would wreak havoc with our sense of fairness, and, in a practical sense, with the dockets of the courts.

In the instant matter, we find that pursuant to Parker , the trial court properly sentenced Defendant under the version of La.R.S. 15:529.1 that existed at the time he committed the offense of aggravated arson. The language of Section 2 of both Acts 257 and 282 points to the legislature's intent for the amendments to La.R.S. 15:529.1 to apply prospectively only. However, the legislature stated that the amendments were applicable to convictions that "became final" after November 1, 2017.

Louisiana Supreme Court Rule X, § 5(a) provides for the filing of writ applications as follows:

An application seeking to review a judgment of the court of appeal either after an appeal to that court, or after that court has granted relief on an application for supervisory writs (but not when the court has merely granted an application for purposes of further consideration), or after a denial of an application, shall be made within thirty days of the mailing of the notice of the original judgment of the court of appeal; however, if a timely application for rehearing has been filed in the court of appeal in those instances where a rehearing is allowed, the application shall be made within thirty days of the mailing of the notice of denial of rehearing or the judgment on rehearing. No extension of time therefor will be granted.

Louisiana Code of Criminal Procedure Article 922 address the finality of judgments on appeal:

A. Within fourteen days of rendition of the judgment of the supreme court or any appellate court, in term time or out, a party may apply to the appropriate court for a rehearing. The court may act upon the application at any time.
B. A judgment rendered by the supreme court or other appellate court becomes final when the delay for applying for a rehearing has expired and no application therefor has been made.
C. If an application for a rehearing has been made timely, a judgment of the appellate court becomes final when the application is denied.
D. If an application for a writ of review is timely filed with the supreme court, the judgment of the appellate court from which the writ of review is sought becomes final when the supreme court denies the writ.

This court's opinion in Purvis , 217 So.3d 470, was rendered on April 12, 2017. All parties agree Defendant filed a writ application with the supreme court. A letter received by this court in Defendant's prior appeal on June 12, 2017, from the Louisiana Supreme Court states: "This is to advise that the pleadings in the above entitled matter were received and filed on 6/5/2017. The filing was post marked on 5/8/2017." In that writ application, Defendant sought review of this court's ruling in Purvis.

Defendant's writ application was timely filed in the supreme court. Pursuant to La.Code Crim.P. art. 922(B), Defendant's conviction for aggravated arson will become final when the supreme court issues a ruling on that writ application and the delays for applying for a rehearing have lapsed and no application for rehearing has been made. Defendant's writ application is still outstanding. Therefore, his aggravated arson conviction is not yet final and will become so after November 1, 2017. Accordingly, we find that the amended version of La.R.S. 15:529.1 is now applicable to Defendant.

The fourth circuit has addressed the applicability of the 2017 amendments to La.R.S. 15:529.1 to a defendant sentenced prior to the effective date thereof. On appeal, the defendant in State v. Smith , 17-553, p. 14 (La.App. 4 Cir. 12/13/17), --- So.3d ----, ----, 2017 WL 6350335, argued that he was entitled to the application of " 'Act 282 and Act [Senate Bill# 139] effective August 1, 2017.' " The fourth circuit addressed the issue stating:

Acts 2017, No. 282, § 1, eff. Nov. 1, 2017, in pertinent part, amended the Habitual Offender Law to provide that the sentence for a second felony offender to be "not less than one-third the longest term and not more than twice the longest term prescribed for a first conviction." Previously, La. R.S. 15:579.1(A)(1) [sic] provided the minimum sentence to be one-half the longest term. Additionally, Section 2 of Acts 2017, No. 282 provides:
This Act shall become effective November 1, 2017, and shall have prospective application only to offenders whose convictions became final on or after November 1, 2017.
Pursuant to Section 2, the amended provisions of La. R.S. 15:579.1(A)(1) [sic] are inapplicable to Smith's sentence which was imposed on September 8, 2016. The assignment of error lacks merit.

Id. (footnote omitted). The fourth circuit, which incorrectly cited the habitual offender law as La.R.S. 15:579.1, did not delve into the wording of Section 2, did not address the finality of the defendant's conviction, or set forth any jurisprudence to support its conclusion. In fact, appellate counsel filed a brief pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and the issue was raised pro se.

In the instant matter, Defendant, like the defendant in Smith , was sentenced prior to November 1, 2017. However, Defendant's aggravated arson conviction is not yet final, and will become so after November 1, 2017. As such, we find that the language of Section 2 of Acts 257 and 282, applying the amended provisions of La.R.S. 15:529.1 to convictions that "became final on or after November 1, 2017," is applicable to Defendant. Accordingly, we vacate the trial court's ruling.

CONCLUSION:

For the foregoing reasons, we vacate Defendant's habitual offender sentence and remand the matter for resentencing under the version of La.R.S. 15:529.1 that became effective on November 1, 2017.

VACATED, WITH INSTRUCTIONS.

Kyzar, J., dissents with written reasons.

KYZAR, J., DISSENTS:

Defendant, sentenced as a habitual offender on July 31, 2017, asserts on appeal that the trial court erred in sentencing him under the habitual offender sentencing scheme that was operative prior to November 1, 2017, contending that he should have been sentenced under the new version of the law that became effective November 1, 2017. The habitual offender enhanced sentencing provision, La.R.S. 15:529.1, in effect at the time of the offense committed in the case, aggravated arson, provided for a life sentence for this Defendant who had been convicted previously of two prior violations of the Louisiana Uniform Controlled Dangerous Substance Law for offenses punishable by at least ten years in prison. At sentencing, the trial court in his discretion departed downward from the life sentence finding that such would be constitutionally excessive in this case. That decision is not at issue here. Louisiana Revised Statutes 15:529.1 was amended by 2017 La. Acts No. 257, § 1 and 2017 La. Acts No. 282, § 1 and now provides in pertinent part:

(A) ... (3) If the third felony is such that upon a first conviction, the offender would be punishable by imprisonment for any term less than his natural life then the following sentences apply:
(a) The person shall be sentenced to imprisonment for a determinate term not less than one-half of the longest possible sentence for the conviction and not more than twice the longest possible sentence prescribed for a first conviction.
(b) If the third felony and the two prior felonies are felonies defined as a crime of violence under R.S. 14:2(B), or a sex offense as defined in R.S. 15:541 when the victim is under the age of eighteen at the time of commission of the offense, or any combination of such crimes, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence.

Applying the prior version of La.R.S. 15:529.1 would require that Defendant's sentence be affirmed. Under the new version, the sentence range for this Defendant becomes a sentence of ten to forty years, with two years of the sentence to be served without benefit of parole, given that the maximum sentence for aggravated arson is twenty years. La.R.S. 14:51.

Act 257 and Act 282 both explicitly provide that their provisions "shall become effective November 1, 2017, and shall have prospective application only to offenders whose convictions became final on or after November 1, 2017." 2017 La. Acts No. 257, § 2; 2017 La. Acts No. 282, § 2 (emphasis added).

The majority concludes that because Defendant's aggravated arson conviction is not now final and will not become final until sometime in the future, the revised version of the Habitual Offender Law, La.R.S. 15:529.1, applied to his proceeding. Thus, the majority incorrectly proposes to vacate Defendant's sentence and remand for resentencing under the revised version.

I disagree with the majority based on my reading of the legislative intent provision. The plain reading of the legislative language is that the revised version of La.R.S. 15:529.1 applies prospectively only, not retroactively, and then only to those convictions that are final on or after November 1, 2017. The Defendant here was adjudicated and sentenced as a habitual offender on July 31, 2017; thus, the revised version of La.R.S. 15:529.1 as per 2017 La. Acts No. 257, § 2 and 2017 La. Acts No. 282, § 2 could not have applied. Nothing in the language of the acts allows for retroactive application of the statute before November 1, 2017. Further, the legislature specifically chose to utilize the wording "became final on or after November 1, 2017," whereas the majority's conclusion essentially changes the meaning of the phrase to "becomes final on or after November 1, 2017." While seemingly a minor distinction of semantics, it has significant consequences. A habitual offender proceeding does not result in a conviction but is simply an enhanced penalty, and the sentence to be imposed is that in effect at the time of the commission of the offense. State v. Parker , 03-924 (La. 4/14/04), 871 So.2d 317. An underlying conviction does not have to be final before an enhanced sentence for that offense can be imposed in a habitual offender proceeding. State v. Boutte , 10-928 (La.App. 3 Cir. 3/9/11), 58 So.3d 624, writ denied , 11-689 (La. 10/7/11), 71 So.3d 314. In State v. Smith , 17-553 (La.App. 4 Cir. 12/13/17), --- So.3d ----, the defendant argued that he was entitled to the application of " 'Act 282 and Act [Senate Bill # 139] effective August 1, 2017.' " The fourth circuit addressed the issue stating:

Acts 2017, No. 282, § 1, eff. Nov. 1, 2017, in pertinent part, amended the Habitual Offender Law to provide that the sentence for a second felony offender to be "not less than one-third the longest term and not more than twice the longest term prescribed for a first conviction." Previously, La. R.S. [15:529.1(A) ] provided the minimum sentence to be one-half the longest term. Additionally, Section 2 of Acts 2017, No. 282 provides:
This Act shall become effective November 1, 2017, and shall have prospective application only to offenders whose convictions became final on or after November 1, 2017.
Pursuant to Section 2, the amended provisions of La. R.S. [15:529.1(A) ] are inapplicable to Smith's sentence which was imposed on September 8, 2016. The assignment of error lacks merit.

Id. at 14.

This is precisely the case here, as Defendant was adjudicated and sentenced as a habitual offender on July 31, 2017, well prior to the November 1, 2017 effective date of the acts. Because Defendant's habitual offender hearing and enhanced sentence imposed as a result occurred before November 1, 2017, the prior version of the statute was correctly applied, and the sentence imposed by the trial court must be affirmed.


text:
    Wilbert Joseph LEVIER and Rose Richard Levier v. JEFF DAVIS BANCSHARES, INC.
    17-472
    Court of Appeal of Louisiana, Third Circuit.
    April 18, 2018
    Steven J. Diebold, Diebold Law Firm, LLC, Post Office Box 51836, Lafayette, Louisiana 70505, (337) 347-6640, COUNSEL FOR PLAINTIFFS/APPELLANTS: Wilbert Joseph Levier, Rose Richard Levier
    Stephen C. Polito, Stockwell, Sievert, Viccellio, Clements & Shaddock, L.L.P., Post Office Box 2900, Lake Charles, Louisiana 70602-2900, (337) 436-9491, COUNSEL FOR DEFENDANT/APPELLEE: Jeff Davis Bancshares, Inc.
    Court composed of Elizabeth A. Pickett, D. Kent Savoie, and Van H. Kyzar, Judges.
   SAVOIE, Judge.

In this case concerning the amendment of building restrictions, the trial court granted a motion for summary judgment filed by Defendant Jeff Davis Bancshares, Inc. (JD Bank), affirming the amendment to the restrictions at issue. Plaintiffs, Wilbert Joseph Levier and Rose Richard Levier, now appeal. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On December 3, 1949, Edward Patterson Smiley transferred ownership of a lot in the Smiley Subdivision to Otis Burton Stander. In the act which transferred ownership, the building restrictions for the Smiley Subdivision were formed. In the 1949 Restrictions, Smiley established general and special restrictions for all lots in the Smiley Subdivision, including a prohibition on commercial use. The restrictions also allow for amendment, in whole or in part, by a "vote of the majority of the owners of the lots in the subdivision."

Lots 13, 14, and 15 of Block F of the Smiley Subdivision are located on South Union Street. They are zoned by the City of Opelousas as a Neighborhood Mixed Use District. This type of zoning allows for commercial uses, including banks and financial institutions.

On May 9, 2016, James Maddock McCarthy, M.D. and the Joan Sybil Leblanc McCarthy Credit Shelter Trust (sellers) executed a purchase agreement with JD Bank, wherein JD Bank agreed to buy Lots 13, 14 and 15 of Block F of the Smiley Subdivision from the sellers. JD Bank planned to build a new bank branch on the lots. Before the purchase could be finalized, however, JD Bank needed to confirm that the zoning and building restrictions affecting the property allowed for the construction of the branch building.

JD Bank needed zoning approval for its signage and drive-through, which was obtained at an Opelousas City Council meeting on April 12, 2016. The last step in the process was to amend the 1949 Building Restrictions to allow for commercial use of the three lots in the Smiley Subdivision. To that end, Tina Vidrine, a JD Bank employee, went door to door to lot owners in the subdivision with a written document. She explained the proposed amendment, and the lot owners had a choice to either reject the amendment or sign the agreement as evidence of their approval. There are seventy-seven lots in Smiley Subdivision. The agreement and vote of the owners of 38.5 of the lots were required for an amendment of the restrictions to be valid. Vidrine ultimately acquired forty-one signatures. This document, with the signatures, was then duly acknowledged and filed in the St. Landry Parish Clerk of Court's Conveyance Records.

JD Bank, having received zoning approval and amendment of the 1949 Restrictions, purchased the lots at issue. On July 13, 2016, the Leviers, lot owners in Smiley Subdivision, filed a Petition for Declaratory Judgment and For Injunction against JD Bank, alleging that the amendment to the 1949 Restrictions was not valid. JD Bank subsequently filed a motion for summary judgment arguing that the amendment constitutes a "vote" by the majority of the lot owners as required to amend the building restrictions. After a hearing on the motion, the trial court ruled in favor of JD Bank, finding:

[T]hat the Amendment to Restrictions recorded on April 1, 2016, in the St. Landry Parish Clerk of Court's Conveyance Records, bearing Act. No. 1139450, constituted a vote as required by the Smiley Subdvision [sic] Building Restrictions created by the Mortgage Sale from Edward Patterson Smiley to Otis Burton Stander executed on December 3, 1949, and recorded in St. Landry Parish Clerk of Court's Conveyance Records, Book F-9, Page 43, Act No. 276728, and that, because a vote occurred with a majority of the owners of the lots voting in favor of the said amendment, the Amendment to Restrictions recorded on April 1, 2016, in St. Landry Parish Clerk of Court Conveyance Records, bearing Act. No. 1139450, validly amended the Smiley Subdivision Building Restrictions to allow commercial development on Lots 13, 14, and 15 of Block F of the Smiley Subdivision.
The Leviers now appeal.

ASSIGNMENTS OF ERROR

The Leviers contend that:

1) The [trial court] committed reversible error in finding that the Amendment to Restrictions instrument recorded under Act. No. 1139450 constituted a vote as required by the Smiley Subdivision Building Restrictions.
2) The [trial court] committed reversible error in finding that the Amendment to Restrictions validly amended the Smiley Subdivision Building Restrictions to allow commercial development of Lots 13, 14, and 15 of Block F of the Smiley Subdivision.
3) The [trial court] committed reversible error in granting summary judgment and dismissing the Leviers' case.

LAW AND DISCUSSION

The appellate standard of review for motions for summary judgment is set forth as follows:

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Duncan v. U.S.A.A. Ins. Co., 2006-363[,] p. 3 (La.11/29/06), 950 So.2d 544, 546, see La. C.C.P. art. 966. A summary judgment is reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court's determination of whether summary judgment is appropriate; i.e. whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law.
Wright v. Louisiana Power & Light, 2006-1181[,] p. 17 (La. 3/9/07), 951 So.2d 1058, 1070 ; King v. Parish National Bank, 2004-0337[,] p. 7 (La. 10/19/04), 885 So.2d 540, 545 ; Jones v. Estate of Santiago, 2003-1424[,] p. 5 (La. 4/14/04), 870 So.2d 1002, 1006.

Samaha v. Rau, 07-1726, pp. 3-4 (La. 2/26/08), 977 So.2d 880, 882-83 (footnote omitted).

Louisiana Civil Code Article 780 (emphasis added) provides:

Building restrictions may be amended, whether such amendment lessens or increases a restriction, or may terminate or be terminated, as provided in the act that establishes them . In the absence of such provision, building restrictions may be amended or terminated for the whole or a part of the restricted area by agreement of owners representing more than one-half of the land area affected by the restrictions, excluding streets and street rights-of-way, if the restrictions have been in effect for at least fifteen years, or by agreement of both owners representing two-thirds of the land area affected and two-thirds of the owners of the land affected by the restrictions, excluding streets and street rights-of-way, if the restrictions have been in effect for more than ten years.

In the present case, the act that established the 1949 Restrictions does include a provision for amendment of the restrictions. General Restrictions Section 15 (emphasis added) states:

The General Restrictions herein contained shall be binding on all purchasers, their heirs or assigns, and on all persons claiming under all purchasers, their heirs or assigns, and any special restrictions that may be set forth in any deed to any lot or parcel of ground in said subdivision, shall be binding on the particular purchasers, their heirs or assigns, and on all persons claiming under them, until January 1, 1975, at which time said restrictions shall be automatically extended for successive periods of ten years, unless by a vote of the majority of the owners of the lots in said subdivision it should be agreed to change the said restrictions in whole or in part.

The building restrictions do not contain a section explaining what constitutes a vote or how the vote is to be conducted. It is the Leviers' contention that a vote to amend the restrictions did not take place. The Leviers argue that the "generally prevailing meaning of the word 'vote' minimally requires some kind of a proposal put before all potential voters and a specific timeframe in which the vote will occur." That was not done in this case. We disagree.

"The words of a contract must be given their generally prevailing meaning." La.Civ.Code art. 2047. In that regard, we turn to the general and ordinary meaning of the word "vote" which is a "formal expression of opinion or will in response to a proposed decision" and/or "an indication of approval or disapproval of a proposal." Merriam-Webster's Collegiate Dictionary , 1403 (11th ed. 2004). The amendment document signed by the lot owner states, "that [she/he] does hereby approve the Amendment to Restrictions to permit Lots 13, 14 and 15 of Block F to be used for commercial purposes." We find this language to be unambiguous. Signing of the document clearly expresses approval of a proposal, which is the amendment of the building restrictions.

In addition, we find no authority that requires notice or a hearing on the matter. The drafters of the 1949 Building Restrictions could have included such language in the document, but they did not. Such requirements cannot now be read into the restrictions. We do not find that notice and hearing requirements attach with the addition of the word "vote."

Further, JD Bank attached the affidavit of Bruce Gaudin, a title attorney doing business in St. Landry Parish, Lafayette and Evangeline Parishes. He drafted the agreement to amend the subdivision restriction, and he avers "[t]hat using written agreements to amend building restrictions and recording said written agreement, as was done in this case with the 2016 Amendment, is the standard real estate practice in St. Landry Parish and the surrounding areas."

For these reasons, we find that the written document signed by the lot owners constituted an amendment of the 1949 Building Restrictions, permitting Lots 13, 14 and 15 of Block F of the Smiley Subdivision to be used for commercial purposes. The Leviers' assignments of error are without merit.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs associated with this appeal are assessed to Plaintiffs Wilbert and Rose Levier.

AFFIRMED.