text:
    STATE of Louisiana IN the INTEREST OF H.J.
    NO. 2017-CA-0518
    Court of Appeal of Louisiana, Fourth Circuit.
    January 24, 2018
    Leon A. Cannizzaro, Jr., DISTRICT ATTORNEY, Donna Andrieu, Chief of Appeals, Christopher J. Ponoroff, ASSISTANT DISTRICT ATTORNEYS, Parish of Orleans, 619 South White Street, New Orleans, LA 70119, COUNSEL FOR APPELLEE/STATE OF LOUISIANA
    Annette Fuller Roach, LOUISIANA APPELLATE PROJECT, P. O. Box 1747, Lake Charles, LA 70602-1747, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Judge Daniel L. Dysart, Judge Rosemary Ledet, Judge Regina Bartholomew Woods )
    Judge Regina Bartholomew Woods In this juvenile delinquency case, the juvenile, H.J., appeals his adjudication of delinquency for simple burglary. H.J. raises three (3) assignments of error. Finding no merit in H.J.'s first two assignments of errors, we affirm the juvenile court's adjudication of delinquency. However, we find merit in H.J.'s third assignment of error and remand with instructions.
    STATEMENT OF THE CASE
    On April 21, 2016, the State charged H.J. by delinquency petition with simple burglary, a violation of La. R.S. 14:62. In its petition, the State alleged that on March 21, 2016, at approximately 10:24 p.m., H.J. entered a vehicle, a Toyota 4Runner, owned by Charles Hurme ("Hurme") without authorization and with the intent to commit a felony or a theft therein. On May 26, 2016, H.J. entered a denial to the delinquency petition. On October 21, 2016, defense counsel filed a motion to dismiss petition for failure to timely prosecute, which the juvenile court denied. Thereafter, defense counsel sought appellate review of the juvenile court's denial of its motion. This Court found no abuse of the juvenile court's discretion and denied defense counsel's writ. H.J.'s adjudication hearing was held on
    December 15, 2016. At the conclusion of this hearing, the juvenile court adjudicated H.J. delinquent.
    On May 11, 2017, the juvenile court committed H.J. to the custody of The Department of Public Safety and Corrections for a period not to exceed six (6) months. This sentence is to run concurrent with a three (3) year sentence imposed in Jefferson Parish for carjacking. The juvenile court credited H.J. for time served. It is from this adjudication of delinquency that H.J. appeals and raises three (3) assignments of error.
    STATEMENT OF THE FACTS
    At the adjudication hearing, Hurme testified that upon entering his vehicle, a black 2008 4Runner, which had been parked near 3840 Bienville Street in New Orleans, he noticed that the vehicle's door was ajar and that his vehicle had been burglarized. According to Hurme, the burglary occurred on March 21, 2016. Missing from his vehicle were a business book that contained checks, fifteen hundred dollars ($1,500.00) in cash that was stored in the vehicle's console, and other small items such as an auxiliary cord. Hurme stated that he went to work in Gentilly and then called the New Orleans Police Department ("NOPD") to report the burglary. However, NOPD never arrived at Hurme's Gentilly location. Hurme further testified that once he returned home that evening, he again contacted NOPD; this time, NOPD did report to Hurme's location. Hurme stated that he did not see the burglary occur. Hurme provided a written statement and video surveillance footage ("the footage") from his home to NOPD. The footage showed the area near Hurme's home where his vehicle was parked when the burglary occurred. Hurme stated that although a person's face can be seen on the footage, it is difficult to distinguish a person's facial features. Hurme testified that he was unable to identify anyone from the footage. When questioned by defense counsel, Hurme was not able to say whether H.J. was the person he observed on the footage.
    At the adjudication hearing, Shariffe Davis ("Det. Davis"), a detective assigned to NOPD's First District, testified that, at the request of Burglary Detective John Mitchell, he spoke with Hurme and retrieved the footage from Hurme's home. Once Det. Davis received the footage, he returned to the station and inserted the jump drive into the computer to ensure that the footage would play. Det. Davis testified that in doing so he observed an individual with whom he was familiar. Det. Davis explained that on the day prior to the burglary, he investigated an unrelated armed robbery, and located the subject who fit the description of the perpetrator of the armed robbery along with H.J. Although H.J. was not connected to the armed robbery, Det. Davis learned H.J.'s name. With this interaction "fresh in [his] mind," Det. Davis knew that the person in the footage was H.J. According to Det. Davis, he remembered H.J.'s face and height. After viewing the footage and identifying H.J., Det. Davis requested the task force unit's assistance in locating H.J. Det. Davis testified that upon arriving at H.J.'s last known address on Oak Street, he and Officer Vastola knocked on the door; Det.
    Davis observed H.J. run down the alley. The task force officers pursued and stopped H.J. near the Lafitte Housing Development; H.J. identified himself and was taken into custody.
    Det. Davis testified that he met with H.J.'s guardian, L.P. at juvenile detention. According to Det. Davis, H.J. was released at some point and he, L.P., and H.J. went to the NOPD First District station where Det. Davis showed the footage and identified H.J. According to Det. Davis, H.J. said "[t]hat ain't me. I don't have that jacket." Det. Davis further testified that L.P. responded "you don't have that jacket, but I'm looking at your face on the screen." Det. Davis stated that H.J. continued to deny that it was him on the footage. At that point, Det. Davis terminated the interview. When questioned, Det. Davis asserted that L.P. recognized H.J. in the surveillance video. According to Det. Davis, the hat and earrings that H.J. were wearing on that day were taken into evidence because those items were identifiable on the larger screen on which the footage was shown. With L.P.'s consent, NOPD officers searched H.J.'s bedroom exclusively for property connected with the burglary of Hurme's vehicle; however, no evidence was recovered. On cross examination, Det. Davis testified that he could see H.J.'s face on the footage because he had watched the footage on a screen larger than the screen in court; Det. Davis asserted that he was able see H.J.'s features clearly on the screen in court, but that "they could be large, larger."

      Pursuant to the requirements of confidentiality of juvenile proceedings as set forth in La. Ch.C. art. 412, the juvenile, who was fourteen (14) at the time of the charged offense, is referred to by his initials, H.J.

      La. R.S. 14:62 provides:
      A. Simple burglary is the unauthorized entering of any dwelling, vehicle, watercraft, or other structure, movable or immovable, or any cemetery, with the intent to commit a felony or any theft therein, other than as set forth in R.S. 14:60.
      B. Whoever commits the crime of simple burglary shall be fined not more than two thousand dollars, imprisoned with or without hard labor for not more than twelve years, or both.

      The petition states that the burglary of Hurme's vehicle occurred in the 200 block of North Scott Street.

      State in the Interest of H.J. , 2016-C-1243 (La. App. 4 Cir. 12/9/16) (unpub. ).

      Docket Number 15JU390.

      Det. Davis encountered these two individuals on Bienville Street, which is where Hurme's vehicle was parked when it was burglarized.

      This officer's name is spelled phonetically in the transcript.

      The guardian's initials are used pursuant to La. Ch.C. art. 412.

   When questioned at the hearing, L.P. testified that, upon viewing the footage, he asked H.J. whether that was him on the footage and implored H.J. to be truthful.

DISCUSSION

This Court has adopted a practice of conducting an errors patent review in juvenile delinquency cases. State in Interest of W.B. , 2016-0642, p. 4 (La. App. 4 Cir. 12/7/16), 206 So.3d 974, 978 ; See State in the Interest of S.J. , 2013-1025, p. 4 (La. App. 4 Cir. 11/6/13), 129 So.3d 676, 679 (citing State in the Interest of A.H. , 2010-1673, p. 9 (La. App. 4 Cir. 4/20/11), 65 So.3d 679, 685 ). A review of the record in this case revealed one error patent, which H.J. raised as his third assignment of error, below.

In his appellate brief, H.J. assigns the following errors:

1. Whether the evidence presented at the adjudication hearing was sufficient to prove beyond a reasonable doubt the identity of H.J. as the perpetrator of the simple burglary of Hurme's vehicle.
2. Whether the juvenile court erred in denying defense counsel's motion to dismiss for failure to timely adjudicate H.J.
3. Whether the juvenile court erred in failing to advise H.J. of the two (2) year prescriptive period for filing an application for post-conviction relief.

Assignment of Error Number One

In her appellate brief, defense counsel argued that the evidence presented at the adjudication hearing was insufficient to prove beyond a reasonable doubt the identity of H.J. as one of the two perpetrators of the simple burglary of Hurme's vehicle. This Court has set out the applicable standard of review:

In a juvenile adjudication proceeding, the state must prove beyond a reasonable doubt that the child committed a delinquent act alleged in the petition. La. Ch.C. art. 883 ; State in the Interest of D.M. , 97-0628, p. 4 (La. App. 1 Cir. 11/07/97), 704 So.2d 786, 789. On appeal, the standard of review for the sufficiency of evidence, enunciated in Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the state proved the essential elements of the crime beyond a reasonable doubt; this standard is applicable to delinquency cases. La. C.Cr.P. art. 821. Interest of D.M ., 97-0628 at p. 5, 704 So.2d at 789. Further, in a juvenile delinquency proceeding, an appellate court is constitutionally mandated to review the law and facts. La. Const. art. 5, § 10 (B). Accordingly, an appellate court must review the record to determine if the trial court was clearly wrong in its factual findings. State in the Interest of L.C. , 96-2511, p. 3 (La. App. 1 Cir. 6/20/97), 696 So.2d 668, 670 ; Interest of D.M. , 97-0628 at p. 4, 704 So.2d at 789-90.

State in Interest of K.L. , 2016-1151, p. 3 (La. App. 4 Cir. 4/10/17), 217 So.3d 628, 630. Here, because the sufficiency of the evidence relies on the identity of H.J. as the perpetrator, we will address these issues simultaneously.

H.J. has been adjudicated delinquent of simple burglary, a violation of La. R.S. 14:62. Simple burglary, as contemplated by La. R.S. 14:62, is the unauthorized entering of any dwelling, vehicle, watercraft, or other structure, movable or immovable, or any cemetery, with the intent to commit a felony or any theft therein. Defense counsel argued that there is no eyewitness to the simple burglary of Hurme's vehicle. Rather, the State's case hinges on an officer's identification of H.J. from video footage.

The Louisiana Supreme Court, in State v. Neal , opined that

[A]s a general matter, when 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 misidentification. State v. Smith, 430 So.2d 31, 45 (La. 1983) ; State v. Brady, 414 So.2d 364, 365 (La. 1982) ; State v. Long, 408 So.2d 1221, 1227 (La. 1982). However, positive identification by only one witness is sufficient to support a conviction. See State v. Mussall, 523 So.2d 1305, 1311 (La. 1988).

2000-0674, p. 11 (La. 6/29/01), 796 So.2d 649, 658.

Similar to the present case, in State v. Paul , an NOPD officer " 'immediately' recognized the defendant by name as the robber depicted in the photo made from the surveillance video" and "also viewed the surveillance video and had no doubt that the robber depicted therein was the defendant." State v. Paul , 2011-0252, p. 5 (La. App. 4 Cir. 4/18/12), 90 So.3d 1191, 1195.

In adjudicating H.J. delinquent, the juvenile court reasoned that "based on the officer's identification in that he made it in such a short period of time when he saw him ... the officer's memory was much more clear ... it seemed that it was less than 24 hours that he made the stop, saw them, got their identifications and then happened to watch this video." The juvenile court contemplated that neither Det. Davis nor L.P. was dishonest in their testimony, but H.J.'s adjudication of delinquency was based on Det. Davis' "identification in that close period of time and just his description ... a young man that is fairly tall and slender build, similar to what we saw on the video." The Louisiana Supreme Court, in State in the Interest of C.D. , cautioned that "an appellate court should ordinarily not assume the role of the fact-finder to weigh the respective credibilities of the witnesses and thereby second guess the credibility determinations of the trier of fact beyond ... sufficiency evaluations under the Jackson standard of review. 2011-1701, p.6 (La. 7/2/12), 93 So.3d 1272, 1276 (internal quotations, alterations, and citations omitted). For the aforementioned reasons, we find no merit in H.J.'s first assignment of error.

Assignment of Error Number Two

In its appellate brief, defense counsel argued that the juvenile court erred in denying H.J.'s motion to dismiss for failure to timely sentence defendant. On November 10, 2016, the juvenile court denied the motion to dismiss petition for failure to timely prosecute. Thereafter, defense counsel sought appellate review of the juvenile court's denial of its motion. This Court found no abuse of the juvenile court's discretion and denied defense counsel's writ. In its appellate brief, defense counsel re-urges the same argument asserted in his writ. Similar to State in the Interest of A.S. , this Court notes that H.J.'s "prior writ application concerned the very issue he raises on appeal [and] points to no new information or evidence in support of his current argument." 2013-0144, p. 2 (La. App. 4 Cir. 7/24/13), 156 So.3d 96, 97. This Court, in State v. Duncan , outlined the application of the law-of-the-case doctrine:

Under the law-of-the-case doctrine, courts of appeal generally refuse to reconsider their own rulings
of law on a subsequent appeal in the same case. Pitre v. Louisiana Tech University, 95-1466, p. 7 (La. 5/10/96), 673 So.2d 585, 589. This court has stated that an appellate court will not reverse its pretrial determinations unless the defendant presents new evidence tending to show that the decision was patently erroneous and produced an unjust result. State v. Gillet, 99-2474, p. 5 (La. App. 4 Cir. 5/10/00), 763 So.2d 725, 728. The "law of the case" doctrine applies to all prior rulings or decisions of an appellate court or the Supreme Court in the same case, not merely those arising from the full appeal process. State v. Molineux, 2011-0275, p. 3 (La. App. 4 Cir. 10/19/11), 76 So.3d 617, 619.

2011-0563, p. 26 (La. App. 4 Cir. 5/2/12), 91 So.3d 504, 521.

Here, the law-of-the-case doctrine is applicable; and this Court's writ denial will not be disturbed because defense counsel failed to present any new information or evidence. As such, we find no merit in defense counsel's second assignment of error.

Assignment of Error Number Three

In its appellate brief, defense counsel argued that the juvenile court erred in failing to advise H.J. of the two (2) year prescriptive period for filing an application for post-conviction relief. In addition to defense counsel raising this issue as an assignment of error, this Court, in its review of the record for errors patent, finds merit to this issue. There is no evidence in the record that the juvenile court advised H.J. of the two (2) year prescriptive period for filing an application for post-conviction relief as mandated by La. C.Cr.P. art. 930.8. We remand this matter to the juvenile court and instruct the juvenile court to advise H.J. in writing of the two (2) year prescriptive period for filing an application for post-conviction relief pursuant to La. C.Cr.P. art. 930.8. We further order the juvenile court to file proof of this notice in the record. State in Interest of C.P. , 2012-192, (La. App. 3 Cir. 6/6/12), 91 So.3d 1273 ; State ex rel. T.S. , 2004-1111 (La. App. 5 Cir. 3/1/05), 900 So.2d 77.

DECREE

For the aforementioned reasons, we affirm the juvenile court's adjudication of delinquency and remand with instructions.

AFFIRMED AND REMANDED WITH INSTRUCTIONS

      Defense counsel erroneously captioned the pleading as a motion to dismiss for failure to timely sentence; however, the substance of the motion relates to the adjudication of H.J.


source: Caselaw Access Project

author: Judge Tiffany G. Chase

license: Public Domain

text:
    Lucille PERRY v. DEPARTMENT OF LAW
    NO. 2017-CA-0609
    Court of Appeal of Louisiana, Fourth Circuit.
    January 31, 2018
    Joel P. Loeffelholz, Attorney at Law, 862 Crystal Street, New Orleans, LA 70124, COUNSEL FOR PLAINTIFF/APPELLEE
    Elizabeth S. Robins, Deputy City Attorney, Isaka Rachell Williams, Assistant City Attorney, Churita H. Hansell, Deputy City Attorney, Rebecca H. Dietz, City Attorney, Parish of Orleans, 1300 Perdido Street, Suite 5E03, New Orleans, LA 70112, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Chief Judge James F. McKay, III, Judge Daniel L. Dysart, Judge Tiffany G. Chase )
   Judge Tiffany G. Chase

The City of New Orleans Department of Law ("Department of Law"), seeks review of a March 27, 2017 order issued by the Civil Service Commission ("Commission"). The ruling found the Department of Law failed to restore all emoluments to Dr. Lucille Perry ("Dr. Perry") at the time of her reinstatement and awarded Dr. Perry attorney's fees. Dr. Perry answers on appeal and seeks review of the Commission's May 15, 2017 order awarding attorney's fees and argues that the amount is insufficient. After consideration of the record before this Court and the applicable law, we affirm the Commission's March 27, 2017 order but amend the May 15, 2017 order as to the amount of attorney's fees.

Facts and Procedural History

The facts of this case have previously appeared before this Court and are pertinent to the underlying appeal. Dr. Perry began working for the City of New Orleans Department of Health, as a classified employee on April 17, 1988. Initially, Dr. Perry's job title was "Senior Environmental Technician" and was changed, first, to "Environmental Tech 1" and then to "Environmental Specialist III." In March of 1998, Dr. Perry was transferred from the Department of Health to Municipal Court under a classified position of "Medical and Social Services Coordinator."

At Municipal Court, Dr. Perry's appointing authority was the Municipal Clerk of Court and she held the title of "Victim Services Coordinator," working with domestic violence cases. In 2003, the Department of Law began supervising Dr. Perry because it was determined that a conflict of interest existed for Municipal

Court to supervise the Victim Services Coordinator. A transfer document changed Dr. Perry's civil service status from classified employee to unclassified employee with the job title of "Assistant Attorney I," although she had no legal background.

In 2007, Dr. Perry's position was changed to "Urban Policy Specialist," an unclassified position with the Department of Law. Dr. Perry was subsequently terminated from the Department of Law in February 2010 due to lack of funding. She insisted that she only found out about her change in job status upon termination of employment. Upon Dr. Perry's termination from the unclassified position, she sought reinstatement to a classified position. When she was not reinstated she appealed to the Commission. The Commission denied the appeal and Dr. Perry sought review from this Court. On appeal, this Court found that:

Appellant was wrongfully deprived of her classified civil service status without due process. As a permanent classified employee, Appellant could be removed from classified status only for cause expressed in writing.
[T]he Civil Service Commission is ordered to reinstate Appellant to her classified position, with full back pay and all emoluments, and with an effective date of February 12, 2010.

This Court granted a rehearing regarding the availability of a position for Dr. Perry, since a classified position was no longer available. On rehearing this Court stated:

[T]he Appellant, Dr. Lucille Perry, was wrongfully deprived of her classified service status without due process and ordered that the Appellant be returned to her classified position. The record indicates that the position no longer exists. Therefore, we remand the matter to the Civil Service Commission to reinstate Dr. Perry in a position comparable to what was ordered in this Court's previous opinion.

On October 28, 2016, the parties appeared before a hearing officer as ordered by the Commission. The hearing officer was directed to determine whether or not the "appointing authority" was in compliance with the order of this Court regarding reinstatement and restoration of full emoluments of Dr. Perry's employment. The hearing officer submitted its findings to the Commission and in an order dated March 27, 2017, the Commission accepted the hearing officer's recommendations, finding that Dr. Perry proved the "appointing authority" did not restore her sick and annual leave balances timely and that it failed to return Dr. Perry's employment emoluments at the time of reinstatement. The Commission's order also awarded attorney's fees to Dr. Perry regarding this matter. This appeal followed.

The Department of Law submits the following assignments of error on appeal: (1) the Commission failed to enforce this Court's ruling that the Municipal Court was the violating entity; (2) the Commission erred in not reinstating Dr. Perry to a classified position; (3) the Commission erred in holding the Department of Law responsible for finding Dr. Perry a classified position, processing back pay calculation and reimbursing emoluments; and (4) the Commission erred in granting attorney's fees to Dr. Perry and naming the Department of Law as the responsible entity. Dr. Perry answered the appeal arguing that the award of attorney's fees is insufficient. She also requests damages and attorney's fees from the Department of Law for the filing of a frivolous appeal.

Standard of Review

Civil service cases are reviewed under a manifest error standard of review. In Russell v. Mosquito Control Board , this Court stated:

In Banks v. New Orleans Police Dep't., 2001-0859, p. 3 (La.App. 4 Cir. 9/25/02), 829 So.2d 511, 513-14, we articulated the standard of review in civil service cases. First, the review by appellate courts of the factual findings in a civil service case is governed by the manifest error or clearly erroneous standard. Second, when the Commission's decision involves jurisdiction, procedure, and interpretation of laws or regulations, judicial review is not limited to the arbitrary, capricious, or abuse of discretion standard. Instead, on legal issues, appellate courts give no special weight to the findings of the trial court, but exercise their constitutional duty to review questions of law and render judgment on the record. A legal error occurs when a trial court applies the incorrect principles of law and such errors are prejudicial. Finally, a mixed question of fact and law should be accorded great deference by appellate courts under the manifest error standard of review. See Stern v. New Orleans City Planning Comm'n, 2003-0817, pp. 5-6 (La.App. 4 Cir. 9/17/03), 859 So.2d 696, 699-700.

Since this matter involves the Civil Service Commission and is one regarding findings of law and fact, we will review this matter under a manifest error/clearly erroneous standard of review.

Appointing Authority

In Perry I , this Court ordered that the "Civil Service Commission" reinstate Dr. Perry to her previous classified position with an effective date of February 12, 2010. The Department of Law argues that the Commission violated this Court's ruling in Perry I by holding the Department of Law as the responsible entity because this Court found that Municipal Court was the violating department. This is an incorrect interpretation of this Court's ruling. The ruling in Perry I does not specifically delineate the responsible entity as either Municipal Court or the Department of Law as the violating department, but rather the Civil Service

Commission as a whole. The Commission hears all removal claims regarding city departments, including those involving the Department of Law.

This Court concluded, in Perry I , that Dr. Perry moved from a classified position with Municipal Court to an unclassified position with the Department of Law in violation of her due process rights. This initial transfer was implemented because it was determined that a conflict of interest existed with Municipal Court due to the nature of Dr. Perry's position. Additionally, funding for Dr. Perry's position shifted from Municipal Court to the Department of Law. Appointing authority is defined as "the agency, department, board, or commission, and the officers and employees thereof authorized by statute or by lawfully delegated authority to make appointments." "The appointing authority is the authority that selects the employee. ..."

Once Dr. Perry was transferred to the Department of Law, along with the funding used to pay her salary, it became her appointing authority and the entity responsible for employee/employment relations regarding Dr. Perry. In Perry I , this Court stated that "[A]ppellant received a letter of termination from City Attorney Penya Moses-Fields, her Appointing Authority, advising of the lack of funding for her position and her termination date of February 12, 2010."

Further, we note the untimeliness of the Department of Law's challenge to being named as the appointing authority. The Department of Law did not use the proper procedural vehicle to challenge being deemed the appointing authority in this matter. Pursuant to La. C.C.P. art. 928(B), a peremptory exception may be pled any time prior to the case being submitted to the trial court for a decision. The proper time for the Department of Law to challenge whether or not it was the appointing authority was before the Commission issued its final order. The record does reflect that the Department of Law continued to state that Municipal Court, not it, was the responsible department. However, the Department of Law failed to plead this issue before the Commission and as such, waived the right to do so before this Court.

Accordingly, we find the Department of Law was Dr. Perry's appointing authority at the time of her termination and the department responsible for following any court orders relative to this matter. We find no merit to this assignment of error.

Reinstatement

The Department of Law argues that the Commission failed to reinstate Dr. Perry per this Court's ruling in Perry I . Specifically, it contends that the Commission incorrectly imposed this obligation on the Department of Law. In granting the Department of Law's application for rehearing, this Court ordered that since Dr. Perry's previous position was no longer available, the Commission was ordered to reinstate her to a comparable position. In its brief, the Department of Law concedes that it found a classified position to offer to Dr. Perry within another city department. On April 18, 2013, the City of New Orleans Chief Administrative Office sent Dr. Perry correspondence advising of her reinstatement, effective April 22, 2013, to a classified position.

The order of this Court was for a comparable position to be located and compliance with that order occurred. It is of no consequence that the Department of Law was the entity that located Dr. Perry's reinstated position, especially considering that it is in fact Dr. Perry's appointing authority. As such, the Department of Law's assignment of error regarding which entity was responsible for locating a position for Dr. Perry is denied as moot.

Emoluments

The issue of back pay will not be addressed in this opinion as that issue has been filed under a separate appeal, which is currently pending before this Court.

Since we have already concluded above that the Department of Law is the proper appointing authority, it is responsible for following any court orders relative to this matter. This responsibility includes the payment of Dr. Perry's emoluments. Dr. Perry's emoluments have been paid by the Department of Law. As such, the Department of Law's assignment of error regarding which entity was responsible for paying Dr. Perry's emoluments is deemed moot.

Award of attorney's fees

The Department of Law argues that it should not be responsible for Dr. Perry's attorney's fees, which were awarded in the Commission's March 27, 2017 order due to the delay in reinstatement of her emoluments. It contends the delay was caused by the Commission and Dr. Perry's own actions. Essentially, the Department of Law argues that if the Commission had not placed the burden of finding Dr. Perry a comparable position on the Department of Law and completed the task itself, no delay would have occurred.

In Perry I , Dr. Perry argued that the Commission erred in failing to grant attorney's fees. This Court did not address the issue because Dr. Perry failed to cite any rule or statute which would support an award of attorney's fees. However, this Court noted that a future possible award for attorney's fees, relative to this matter, was possible. In Perry I , this Court stated:

We recognize that Civil Service Commission Rule II, § 11.4 provides that an employee may seek attorneys' fees for non-compliance with a final judgment of an order for reinstatement:
In the event that the reinstatement ordered in [Rule II,] Section 1[1].1 is not fully accomplished within forty-five (45) days from the date the judgement [sic ] becomes final, on application from the employee or his legal counsel, the Commission may assess appropriate attorney's fees for services occasioned by the City's failure to comply with the provisions of this Section in a timely manner. (adopted December 11, 1986, effective January 1, 1987).

In its March 27, 2017 order, the Commission found that the Department of Law's failure to timely restore all emoluments violated this Court's order in Perry I and as such, pursuant to Civil Service Commission Rule II, § 11.4, it would award attorney's fees. The Commission reasoned that attorney's fees were warranted because the Department of Law still had not fully restored Dr. Perry's emoluments, and the judgment ordering it to do so became final as of December 15, 2012. It has long been reasoned that attorney's fees are awarded at the discretion of the Commission. "An award of attorney fees is a discretionary act by the Civil Service Commission, generally premised on a finding that the action of the appointing authority was unreasonable, and an abuse of that discretion must be shown for the award to be modified or vacated." We will not disturb the Commission's order awarding attorney's fees. As such, we find that the award of attorney's fees was not an abuse of discretion by the Commission and find no merit to this assignment of error.

Dr. Perry's Answer to Appeal

Amount of attorney's fees

In her answer to the appeal, Dr. Perry argues that the Commission erred in the amount of attorney's fees granted in its May 15, 2017 order. Dr. Perry argues that the amount awarded was not reflective of the amount of time her attorney spent litigating this matter. The Commission ordered Dr. Perry to submit an invoice outlining the time spent litigating the emoluments issue. Dr. Perry submitted documentation reflecting 70.11 hours spent attempting to resolve the issues regarding the emoluments.

The Commission found that Dr. Perry's attorney's hourly rate of $175.00 was reasonable and, upon review of the documentation submitted, the Commission determined that an award of attorney's fees were appropriate for three events, totaling 13.5 hours. The Commission awarded Dr. Perry a total of $2,362.50 in attorney's fees.

There are certain factors that are considered in determining the reasonableness of attorney fees. Those factors include:

(1) the ultimate result obtained; (2) the responsibility incurred; (3) the importance of the litigation; (4) the amount of money involved; (5) the extent and character of the work performed; (6) the legal knowledge, attainment, and skill of the attorneys; (7) the number of appearances involved; (8) the intricacies of the facts involved; (9) the diligence and skill of counsel; and (10) the court's own knowledge. [T]hese factors are derived from Rule 1.5(a) of the Rules of Professional Conduct....

As stated above, an award of attorney's fees by the Commission is a discretionary act and absent an abuse of discretion will not be disturbed. However, we find that modification of the amount of attorney's fees is warranted when taking into consideration the Williamson factors outlined above coupled with the facts of this case. Although the Commission listed nine of these ten elements when considering the award of attorney's fees, Dr. Perry spent over five years litigating the emoluments issue and the amount of attorney's fees should be reflective of that effort and responsibility. As such, we find that the attorney's fees should be increased to $12,269.25 to include the entire 70.11 hours Dr. Perry's attorney expended litigating the emoluments compliance issue in this matter.

Frivolous appeal

In her answer to appeal, Dr. Perry argues that this Court should impose sanctions on the Department of Law for filing a frivolous appeal. "[A]ppeals are always favored and, unless the appeal is unquestionably frivolous, damages will not be granted due in part to the possible chilling effect on the appellate process." La. C.C.P. art. 2164, the statute which provides for frivolous appeals, must be strictly construed in favor of the appellant, as it is penal in nature. As such, we find that the imposition of damages for frivolous appeal is not warranted. Accordingly, we hereby deny the request for sanctions.

Conclusion

For the foregoing reasons, we find that the Department of Law is Dr. Perry's appointing authority and that the Commission did not err in directing its orders toward the Department of Law. We also find that the imposition of attorney's fees to Dr. Perry was warranted however, the Commission erred in its calculation. As such, Dr. Perry's award of attorney's fees is increased to reflect the entire 70.11 hours expended by her attorney for a total of $12,269.25.

ORDER AMENDED AND AFFIRMED AS AMENDED

      Lucille Perry v. City of New Orleans, 2011-0901, p. 1 (La.App. 4 Cir. 2/1/12), 104 So.3d 453, 454.

      Id.

      Id.

      Id. at 2.

      Id.

      Id.

      Id. at 3.

      Id. at 7.

      Id. at 9.

      Id. at 10.

      Russell v. Mosquito Control Bd. , 2006-0346, p. 7 (La.App. 4 Cir. 9/27/06), 941 So.2d 634, 639.

      Hereinafter, Lucille Perry v. City of New Orleans, 2011-0901, (La.App. 4 Cir. 2/1/12) 104 So.3d 453 shall be referred to as Perry I.

      Civil Service Rule 1.4.

      Miller v. State Department of Health , (La.App. 1 Cir. 11/20/61) 135 So.2d 570, 575.

      Perry , 104 So.3d 453 at 455.

      Id. at 10.

      Lucille Perry v. City of New Orleans , 2017-CA-0787.

      The Department of Law stated, during oral argument, that the emoluments have been paid.

      Perry , 104 So.3d 453 at 458.

      Id. at 9 n.9.

      Beverly Ray v. Department of Labor , 2008-0309, p. 4 (La.App. 1 Cir. 11/3/08), 998 So.2d 206, 209 ) (citing Morgan v. Louisiana State University , 06-0570 (La.App. 1 Cir. 4/4/07), 960 So.2d 1002, 1007 ) ).

      Rivet v. State, Dept. of Transp. and Development , 96-0145, pp. 11-12 (La. 9/5/96), 680 So.2d 1154, 1161-62 ) (citing State, DOTD v. Williamson , 597 So.2d 439, 442 (La. 1992) ).

      The Commission's May 15, 2017 order does not list "the responsibility incurred" as a factor taken into consideration in calculating attorney's fees.

      Sullivan v. Malta Park , 2016-0875 (La.App. 4 Cir. 1/31/17), 215 So.3d 705, 709 ) (citing Johnson v. Johnson , 08-0060, pp. 5-6 (La.App. 4 Cir. 5/28/08), 986 So.2d 797, 801 ) (quoting Tillmon v. Thrasher Waterproofing , 00-0395, p.8 (La.App. 4 Cir. 3/28/01), 786 So.2d 131, 137 ) ).

      Hunter v. Maximum Grp. Behavioral Servs., Inc. , 2010-0930 (La. App. 4 Cir. 3/16/11), 61 So.3d 735, 739 ) (citing Levy v. Levy, 02-0279, pp. 17-18 (La.App. 4 Cir. 10/2/02), 829 So.2d 640, 650 ) ).


author: Judge Terri F. Love

text:
    STATE of Louisiana IN the INTEREST OF J.S.
    NO. 2017-CA-0908
    Court of Appeal of Louisiana, Fourth Circuit.
    February 7, 2018
    Katherine M. Dowling, Department of Children and Family Services, 1450 Poydras Street, 16th Floor, New Orleans, LA 70112, COUNSEL FOR STATE OF LOUISIANA/APPELLANT
    Nzinga Hill, ORLEANS PUBLIC DEFENDERS, 2601 Tulane Avenue, Seventh Floor, New Orleans, LA 70119, COUNSEL FOR APPELLEE/D.S.
    (Court composed of Judge Terri F. Love, Judge Paula A. Brown, Judge Dennis R. Bagneris, Sr., Pro Tempore)
   Judge Terri F. Love

This case arises from the trial court's denial of the Department of Children & Family Services' ("State") petition to terminate parental rights. The trial court found that termination of the mother's parental rights was not in the best interest of the child considering the mother is attending and making progress in her therapy sessions, the close relationship shared by the parent and child, and Louisiana's reluctance to terminate parental rights but in the most extreme circumstances. Based on the totality of the circumstances presented, we find the decision to deny termination of parental rights was not manifest error. Accordingly, the trial court's ruling denying the State's petition to terminate parental rights is affirmed.

PROCEDURAL HISTORY AND FACTUAL BACKGROUND

On July 29, 2016, J.S. entered foster care, following allegations that her mother D.S. physically abused her for which D.S. was arrested. The State filed a Child in Need of Care petition, and J.S. was subsequently adjudicated a Child in Need of Care. Thereafter, the State filed a petition to terminate parental rights against D.S. based on a 16-year old conviction in Alaska relating to the abuse of her son. Meanwhile, D.S. was charged in Orleans Parish Criminal District Court with respect to the alleged physical abuse of her daughter J.S. D.S. later pled guilty pursuant to La. C.Cr.P. art. 894 to one count of domestic abuse battery in violation of La. R.S. 14:35.3 and was placed on probation. As a condition of probation, D.S. was required to enroll in and complete a court approved domestic abuse intervention program and court approved parenting classes. She complied with the requirements of her probation and all services ordered by the Orleans Parish Criminal District Court.

Evidence was presented at trial that D.S. also complied with all services requested by the State and orders of Orleans Parish Juvenile Court. Additionally, D.S. participated in programs offered through the Salvation Army, including "Tokens of Hope," a service that provides ongoing case management services for her and J.S.

At trial, D.S. acknowledged her prior conviction involving her son as well as her conviction relating to the abuse of J.S. With respect to the incident involving J.S., D.S. testified that she was angry at the person she was living with at the time, who had accused her of "sleeping around." D.S. stated that she took her anger out on J.S. by slapping her. She further testified that she has learned better ways to manage her anger and stress. She stated that when she begins to feel angry or stressed she can take a walk outside, confide in friends, and utilize the resources, services, and programs offered through her current support system.

Dr. Julie Larrieu ("Dr. Larrieu"), a Professor of Psychiatry in Behavior Sciences at Tulane University School of Medicine and member of the Tulane Parenting Education Program (T-PEP), testified as an expert in clinical psychology with an emphasis in parent-child relationships and infant mental health. Based on her evaluation of D.S., over the course of treatment, Dr. Larrieu testified that D.S. has difficulty opening up and trusting people. Dr. Larrieu opined that at the time of the trial, she did not believe D.S. could safely parent J.S. She testified that D.S. had only made "minimal clinical progress" over the course of 30 sessions. She explained that in order for D.S. to progress to the second stage of treatment, she must acknowledge and take responsibility for what happened to J.S. and understand what she needs to do differently to keep herself and her daughter safe.

Dr. Larrieu opined that because it could take years to rehabilitate, D.S. would be unable to make the progress needed to safely parent in a "timeframe sensitive for [J.S.]" Nevertheless, Dr. Larrieu admitted certain factors at the outset of her treatment slowed her progress. Dr. Larrieu acknowledged that D.S. explained that she was instructed initially not to discuss the allegations involving J.S. because criminal charges were pending at the time. Dr. Larrieu conceded, however, that when the criminal matter was resolved, D.S. had become more forthcoming as trust was built. Although in her opinion D.S. could not assess whether someone was safe or not, Dr. Larrieu further acknowledged that D.S. raised the issue voluntarily after she was offered assistance and support, on two separate occasions, from men she did not know well. Dr. Larrieu admitted that the discussion arose during therapy sessions and that afterwards D.S. did not accept assistance or make any arrangements with either individual.

Dr. Larrieu testified that depending on the parent's own trauma history, on average, it takes 35-50 sessions for a parent to "make real sustain[ed] behavior changes so that [misconduct] does not happen again." Dr. Larrieu indicated that D.S. had excellent attendance. At the time of the trial, D.S. had attended 30 sessions, and she and her daughter had been observed four times together. She expressed concern that because J.S. thinks she has to take psychological and emotional responsibility, she will be unable to develop her own identity and sense of self. Dr. Larrieu testified that it was apparent from observations together that J.S. and D.S. "really love each other."

Jessica Casby ("Ms. Casby"), a foster care social worker employed by DCFS, testified that J.S. has expressed a desire to live with her mother. Similarly, Sharon Alexis ("Ms. Alexis"), the Shelter Manager at The Salvation Army and "Tokens of Hope" program coordinator, testified as to her interactions with D.S. She stated that Tokens of Hope is an intensive case management program that aids homeless men and women to break the cycle of homelessness by assessing their needs and providing access to helpful resources. Ms. Alexis testified that D.S. is an active participant in the Tokens of Hope program and that her number one goal is to provide a safe home for her and her child.

Following argument from counsel, the trial court concluded that the termination of parental rights against the mother was not in the best interest of J.S. and denied the State's petition. The State timely files this appeal.

STANDARD OF REVIEW

The State claims that the trial court erred in denying the termination of D.S.'s parental rights. "A trial court's findings on factually-intense termination of parental rights issues are governed by the manifest error standard of review." State in Interest of C.A.C. , 11-1315, p. 7 (La. App. 4 Cir. 2/1/12), 85 So.3d 142, 146

(citing State ex rel. SNW v. Mitchell , 01-2128, p. 10 (La. 11/28/01), 800 So.2d 809, 816 ). Discussing the involuntary termination of parental rights, this Court explained:

...[C]ourts must balance the often competing interests of the natural parent and the child. Mitchell , 01-2128 at p. 8, 800 So.2d at 814-15. The child has an interest in terminating parental rights that preclude or delay adoption and inhibit establishing stable, long-term family relationships. State ex rel. G.J.L., 00-3278, p. 6 (La. 6/29/01), 791 So.2d 80, 86. Natural parents have a fundamental liberty interest in the care, custody, and management of their child that " 'does not evaporate simply because they have not been model parents.' " Mitchell , 01-2128 at p. 8, 800 So.2d at 814 (quoting Santosky v. Kramer , 455 U.S. 745, 753, 102 S.Ct. 1388, 1394-95, 71 L.Ed.2d 599, 606 (1982) ). Congruent with the parent's interest, the State has an interest in terminating parental rights under certain circumstances. State in the Interest of A.C. , 93-1125, pp. 9-10 (La. 10/17/94), 643 So.2d 743, 748 (citing La. Ch.C. arts. 1004 and 1015 ).

Id. , 11-1315,p. 7, 85 So.3d at 146.

Louisiana recognizes that "termination of the parental-child legal relationship is one of the most drastic actions the State can take against its citizens." Id. , 11-1315,p. 7, 85 So.3d at 146 (citing State ex rel. A.T., 06-0501, p. 4 (La. 7/6/06), 936 So.2d 79, 82. The two-part test for involuntary termination of parental rights requires; (1) the State to prove by clear and convincing evidence one of the statutory grounds for termination under La. Ch.C. art. 1015 ; and (2) only if the State has met its burden of proving a ground for termination exists, the trial court must then determine whether termination is in the best interest of the child. La. Ch.C. art. 1039. Id. , 11-1315,p. 8, 85 So.3d at 147 (citing State ex rel. L.B. v. G.B.B. , 02-1715, p. 5-6 (La. 12/4/02), 831 So.2d 918, 922 ).

DISCUSSION

On appeal, the State claims that it met its burden in establishing grounds for termination under La. Ch.C. art. 1015(4)(h). The State asserts that it presented clear and convincing evidence of D.S.'s prior felony conviction relating to the alleged abuse of D.S.'s son. The State avers that despite proving grounds for termination exist, the trial court gave undue weight to the parent's interest and insufficient weight to the child's interest in permanency.

In its first assigned error, the State claims that the trial court erred in not declaring D.S. a hostile witness and allowing the State to ask leading questions. "[W]hen a party calls...a witness identified with an adverse party, interrogation may be by leading questions." La. C.E. art. 611(C). Even still, the trial court maintains the discretion to permit the use of leading questions. La. C.E. art. 611(A) and (C). "[O]nly a clear abuse of that discretion which prejudices the [party]'s rights will justify [reversal]." State v. Law , 15-0210, p. 21 (La. App. 1 Cir. 2/24/16), 189 So.3d 1164, 1178 (citing State v. Young , 576 So.2d 1048, 1056 (La. App. 1 Cir. 3/5/91) ).

Counsel for D.S. contends that it is mere conjecture to argue that had the State, through leading questions, extracted testimony from D.S. about the abuse of her son, that the trial court would have viewed the case as extreme enough to warrant termination of D.S.'s parental rights as to J.S. As previously mentioned, "[n]atural parents['] fundamental liberty interest in the care, custody, and management of their child...does not evaporate simply because they have not been model parents." Interest of C.A.C. , 11-1315, p. 7, 85 So.3d at 146 (internal citations omitted).

Additionally, D.S.'s testimony does not suggest she was unwilling or unable to respond to the State's questions. Instead, review of the transcript suggests the State took issue with D.S.'s responses to its line of questioning. Moreover, the State is unable to show that it was prejudiced by the trial court's ruling. The State filed for termination of parental rights on the basis that D.S. abused her son-a child not at issue in the present case-in a life threatening manner, which resulted in a felony conviction. La. Ch.C. art. 1015(4)(h). The State admitted into evidence D.S.'s prior conviction pertaining to her son, and the trial court found the State met its burden of proving a statutory basis for termination of parental rights. Therefore, we find the alleged error to be harmless.

In its second assigned error, the State claims Dr. Larrieu was erroneously prevented from testifying to the content of the materials which formed the basis of her opinions because it contained hearsay. Under La. C.E. 703, an expert may rely on a number of sources, including inadmissible hearsay, to form her opinion or inference. However, an expert's testimony cannot be used to elicit inadmissible hearsay evidence. The objectionable testimony related to the State's attempt to impeach the testimony of D.S., a fact witness in this case. D.S. testified that she slapped J.S. Dr. Larrieu attempted to dispute D.S.'s testimony as though she were a fact witness. The testimony the State tried to elicit from Dr. Larrieu was not testimony that provided an opinion, using her specialized knowledge and training to aid the trial court in understanding the evidence or to determine a factual issue. See La. C.E. art. 702 ; C.M.J. v. L.M.C. , 14-1119, p. 21 (La. 10/15/14), 156 So.3d 16, 31. Therefore, we find the objection was properly sustained.

In its final assignment of error, the State maintains that the trial court failed to find that termination of parental rights was in the best interest of J.S. The State avers that termination of parental rights is presumed when the State establishes by clear and convincing evidence one of the enumerated grounds for termination under La. Ch.C. art. 1015. In State ex rel. S.L.W. , 06-1560, p. 6 (La. App. 4 Cir. 4/18/07), 958 So.2d 53, 57, this Court held that alleged violations of La. Ch.C. art. 1015 do not "create presumptions in favor of the State." The focus of an involuntary termination proceeding, this Court explained, "is not whether the parent should be deprived of custody, but whether it would be in the best interest of the child for all legal relations with the parents to be terminated." Id. (citing La.Ch.C. art. 1001 ). Therefore, while the State need only establish one ground for termination, the two-part test requires the trial court to also find that termination is in the best interest of the child.

The trial court determined that D.S. has made efforts to safely parent J.S. The trial court found that D.S. attends therapy regularly and participates in other programs and services designed to rehabilitate and reunite D.S. with her daughter, who has expressed the same desire. While Dr. Larrieu found D.S. was not progressing at the rate she would prefer, the trial court determined that D.S. is progressing nonetheless. The trial court noted that, according to Dr. Larrieu, it takes on average 35-50 therapy sessions for a parent to show sustained behavior changes, and at the time of trial, D.S. had only 30 sessions. Moreover, no evidence was presented to suggest that D.S. is not capable of being rehabilitated. Therefore, the trial court found termination of D.S.'s parental rights was not in J.S.'s best interest. Based on the totality of the circumstances, we cannot say the trial court committed manifest error in denying the petition for termination of D.S.'s parental rights.

DECREE

In light of the foregoing reasons, we find no manifest error in the trial court's denial of the State's petition for termination of parental rights against D.S. Accordingly, the denial of the petition for termination of parental rights is affirmed.

AFFIRMED

BROWN, J., CONCURS AND ASSIGNS REASONS

BROWN, J., CONCURS AND ASSIGNS REASONS

I write separately to reiterate the district court's finding that the State proved by clear and convincing evidence one of the statutory grounds for termination of parental rights under La. C.Ch. art. 1015, as I find the mother's actions toward J.S. inexcusable. However, I agree with the majority that the district court was not manifestly erroneous in finding it was not in the best interest of the child to terminate the mother's parental rights at this time. Based upon the record before this Court, I find that termination of the mother's parental rights would have been premature. Particularly persuasive and supported by the record was the district court's finding of the effort made by the mother; the district court stated:

One; the mother is participating in all her therapy sessions, she is progressing, but not at a rate in which DCFS [Louisiana Department of Children and Family Services] would like but, she is progressing according to the testimony of the [State's] expert [Dr. Larrieu]. Additionally, she is still in phase one and has not gotten to phase two. The doctor [Dr. Larrieu] could not tell us how long that would take and that currently right now Ms. S[ ] is not even at the average at what it will take she said anywhere from thirty-five to fifty sessions. According to the testimony Ms. S[ ] is currently at thirty sessions.

Accordingly, I concur with the majority to affirm the district court's judgment.

      The initials of the juvenile child are used to preserve the confidentiality of the juvenile proceedings. See La. Ch. C. art. 412. For the same reason, the mother is also referred to by her initials.


text:
    STATE of Louisiana v. Ronald OLIVIER
    NO. 2017-KA-0724
    Court of Appeal of Louisiana, Fourth Circuit.
    February 21, 2018
    Leon Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, ORLEANS PARISH, 619 S. White Street, New Orleans, LA 70119, COUNSEL FOR PLAINTIFF/APPELLEE
    Mary Constance Hanes, LOUISIANA APPELLATE PROJECT, P. O. Box 4015, New Orleans, LA 70178-4015, Ronald Olivier 323933, La State Penitentiary, Ash-3, Angola, LA, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Chief Judge James F. McKay, III, Judge Daniel L. Dysart, Judge Tiffany G. Chase )
   Judge Tiffany G. Chase

Defendant, Ronald Olivier (hereinafter "Mr. Olivier"), was convicted of second degree murder in 1993, when he was a juvenile, and sentenced to life imprisonment, without benefit of probation, parole or suspension of sentence. Mr. Olivier appealed and his conviction and sentence were affirmed by this Court in 1994. Following the United States Supreme Court decision in Miller v. Alabama , Mr. Olivier filed a motion with the trial court seeking to correct his sentence in accordance with Miller . After a hearing, the motion was denied. Mr. Olivier appealed and this Court affirmed the trial court's judgment. Mr. Olivier filed a petition for habeas corpus in the United States District Court for the Eastern District of Louisiana. The court granted relief and ordered Mr. Olivier to be resentenced. The trial court resentenced Mr. Olivier to life with eligibility of parole and without benefit of probation or suspension of sentence. Mr. Olivier appeals seeking review of his corrected sentence.

In addition to Mr. Olivier's appeal, his appellate counsel filed an Anders brief seeking to withdraw as counsel of record. Accordingly, for the reasons that follow, we affirm Mr. Olivier's sentence and grant appellate counsel's motion to withdraw.

Facts and Procedural History

On February 20, 1992, Mr. Olivier was indicted for first degree murder pursuant to La. R.S. 14:30. After a trial by jury, Mr. Olivier was found guilty of second degree murder, pursuant to La. R.S. 14:30.1, and sentenced to life imprisonment, without benefit of probation, parole or suspension of sentence. Mr.

Olivier appealed and his conviction and sentence were affirmed by this Court. On February 27, 2013, Mr. Olivier filed a motion to correct an illegal sentence arguing that Miller v. Alabama deemed his life sentence, without the possibility of parole, unconstitutional since he was a minor at the time of the offense. The trial court determined, on April 17, 2013, that Miller applied retroactively and granted a date to hear Mr. Olivier's motion. On November 25, 2013, the trial court found that Miller was not applicable to Mr. Olivier's case, based on the Louisiana Supreme Court's holding in State v. Tate , and denied his motion. Mr. Olivier appealed the trial court's ruling and, on September 3, 2014, this Court converted his appeal to a writ, granted the writ and affirmed the trial court's judgment.

On January 2, 2015, Mr. Olivier filed a petition for habeas corpus pursuant to 28 U.S.C § 2254 in the United States District Court for the Eastern District of Louisiana. On October 3, 2016 the federal court granted Mr. Olivier's petition. The United States District Court vacated Mr. Olivier's sentence and ordered the State to resentence him based on the United States Supreme Court's ruling in Montgomery v. Louisiana , within ninety (90) days or, alternatively, release him. On remand, the trial court vacated Mr. Olivier's sentence and resentenced him to life with eligibility of parole and without benefit of probation or suspension of sentence on December 8, 2016.

Thereafter, Appellate counsel concurrently filed a motion to withdraw with the Anders brief. Mr. Olivier then filed a pro se motion to file a supplemental brief in order to add additional arguments. This Court granted Mr. Olivier's motion on October 26, 2017 and ordered that he file a supplemental brief within forty-five (45) days of this Court's order. Mr. Olivier filed a supplemental brief on December 5, 2017.

Pro Se Assignments of Error

Mr. Olivier filed a pro se brief in which he assigns four assignments of error for our review. We will discuss each below.

Applicability of Miller and Montgomery

1. "The trial court violated the Appellant's constitutional protection of Ar. [sic] VI cl. [sic] 2 of the United States Constitution by disobeying the substantive constitutional rule change announced in Miller and Montgomery that the Eight Amendment demands that the court fashion 'an individualize' [sic] sentence juvenile offenders under the age of 18 years old 'whose crime reflects unfortunate yet transient immaturity.' "

By this assignment of error, Mr. Olivier argues that his resentence is unconstitutional because he did not receive an individualized sentence as required by Miller and the Eighth Amendment.

In Miller v. Alabama the United States Supreme Court held that it is unconstitutional to sentence juvenile homicide offenders to life in prison without the possibility of parole. The Supreme Court's decision did not explicitly ban sentencing juvenile homicide offenders to life in prison without possibility of parole, rather the decision mandated that the trial court follow a certain process and consider mitigating factors before imposing such a sentence. The Court reasoned that a severe risk of disproportionate punishment is created by not taking into consideration an offender's youth when imposing a harsh prison sentence.

Mr. Olivier argues that the trial court used a procedural hearing to satisfy the substantive rule change of Miller. Essentially, he argues that Miller was a substantive change in law and as such a procedural tactic is inappropriate to satisfy the requirements of the new law. Mr. Olivier further argues that the trial court should have imposed an individualized sentence enforced by the legislature.

In Montgomery , the United States Supreme Court determined that Miller applied to cases retroactively. The Supreme Court held "that when a new substantive rule of constitutional law controls the outcome of a case, the Constitution requires state collateral review courts to give retroactive effect to that rule." The Court further stated that:

Giving Miller retroactive effect, moreover, does not require States to relitigate sentences, let alone convictions, in every case where a juvenile offender received mandatory life without parole. A State may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them. See, e.g., Wyo. Stat. Ann. § 6-10-301(c) (2013) (juvenile homicide offenders eligible for parole after 25 years). Allowing those offenders to be considered for parole ensures that juveniles whose crimes reflected only transient immaturity-and who have since matured-will not be forced to serve a disproportionate sentence in violation of the Eighth Amendment.

Mr. Olivier's previous sentence was unconstitutional because it imposed a life sentence without parole eligibility. The Supreme Court in Miller determined this to be a violation of the Eighth Amendment and corrected that violation accordingly. Miller does not require "individualized" sentencing, only that parole eligibility is considered an option when sentencing youth offenders. As such, the trial court correctly applied the rulings under Miller and Montgomery.

Therefore, we find no merit to this assignment of error.

Fair Notice

2. "The trial court violated the Appellant's constitutional protection-Art. I, §§ 2, 3 and 13 of the Louisiana Constitution of 1974; U.S. Constitution Amendment Fifth and Fourteenth- of fair warning of what sentence he would receive if convicted of second degree murder."

By this assignment of error, Mr. Olivier argues that the sentence of life with eligibility of parole violates the Fifth Amendment protection of "fair notice" because it was not a sentencing option at the time the offense was committed. This argument has previously been rejected by a Louisiana appellate court, which reasoned that there is no deprivation of fair warning when the requirements to prove second degree murder have not changed and therefore, a defendant knew his conduct would constitute criminal behavior. Additionally, Mr. Olivier's right to fair notice has not been violated because life without possibility of parole is still an option when sentencing youth offenders. Thus, the only difference post Miller is that certain mitigating factors must be considered when determining if the sentence is appropriate. As such, Mr. Olivier's right to fair notice was not violated.

Therefore, we find no merit to this assignment of error.

Due Process

3. "The trial court violated the Appellant's constitutional guarantee- Art. I, §§ 2, 3, 13 and 20 of the Louisiana Constitution of 1974; U.S. Constitution Amendments Fifth and Fourteenth- to a substantive legislatively fixed penalty in response to Miller's substantive constitutional rule change."
4. "The trial court violated the Appellant's constitutional protection- Article I, §§ 2, 3, 13 and 20 of the Louisiana Constitution of 1974; U.S. Fifth and
Fourteenth- against retroactive judicial expansion of narrow and precise statutory language, i.e. R.S. 15:574.4(D)."

By these assignments of error Mr. Olivier argues that his sentence violated his due process rights because it exposed him to a sentence, created by the courts not the legislature, which was not in place at the time he committed the offense. He further argues that he should have been resentenced to the next lesser included offense.

After Montgomery the Louisiana Legislature amended La. C.Cr.P. art. 878.1 to provide resentencing guidelines. It provides, in pertinent part:

B. (2) If an offender was indicted prior to August 1, 2017, for the crime of first degree murder ( R.S. 14:30 ) or second degree murder ( R.S. 14:30.1 ) where the offender was under the age of eighteen years at the time of the commission of the offense and a hearing was held pursuant to this Article prior to August 1, 2017, the following shall apply:
(a) If the court determined at the hearing that was held prior to August 1, 2017, that the offender's sentence shall be imposed with parole eligibility, the offender shall be eligible for parole pursuant to R.S. 15:574.4(G).

This Court interpreted the amendment, stating:

'The Louisiana legislature promptly addressed the Miller directive against mandatory life-without-parole sentences for juvenile killers by devising a sentencing procedure which would require that a trial court sentencing a youthful offender review all pertinent factors before determining whether parole eligibility was warranted. By its very application to only murderers under the age of 18, the provisions of La. C. Cr. P. art. 878.1 mandating a sentencing hearing at which the defense will be given an opportunity to present mitigating factors-which obviously include the defendant's age as an important part of his social history-satisfy Miller's requirement that mitigating factors favoring a juvenile killer be heard in a proceeding held for that purpose...
...
[L]ife without parole is still a constitutionally acceptable sentence for adult killers and it is not a prohibited sentence for all juvenile killers. Our legislature carefully designed an adequate solution by adding a new statute pertaining to parole eligibility for juvenile killers which is to be read in conjunction with the first and second degree murder statutes. In the event that the trial court imposes a life sentence with parole eligibility, La. R.S. 15:574.4(E) provides conditions which must be satisfied before the defendant can apply to the parole board for parole consideration.'
Either sentencing scheme of life imprisonment with parole, or life imprisonment without parole, is proper and not unconstitutional under Miller v. Alabama , supra. Accordingly, we find the defendant was not entitled to be sentenced to the next available responsive verdict of manslaughter. See, State v. Graham , 2014-1769 (La. App. 1 Cir. 4/24/15), 171 So.3d 272.

Contrary to Mr. Olivier's contention, the Louisiana Legislature has amended the statutes to allow for implementation of Miller. Additionally, Mr. Olivier's argument that he should be resentenced to the next lesser included offense has been rejected by this Court, and multiple appellate courts, which have determined that sentencing an offender to life imprisonment with or without parole eligibility was proper, under Miller , and sentencing an offender to the next lesser included offense was not mandated.

The rulings in Miller and Montgomery were adopted by the legislature in La. C.Cr.P. art. 878.1 and La. R.S. 15:574.4(E). Although Mr. Olivier's initial sentence of life without the possibility of parole was determined to be illegal, that illegality was corrected when the trial court vacated the sentence and resentenced him based on Miller and Montgomery. As such, no legal grounds exist which would warrant

Mr. Olivier being sentenced under the lesser included offense and his due process rights were not violated.

Therefore, we find no merit to these assignments of error.

Errors patent

The record was reviewed for errors patent, in accordance with La. C.Cr.P. art. 920, and none were found.

Anders brief and motion to withdraw

Appellate counsel has filed an Anders brief pursuant to Anders v. California and State v. Jyles. Counsel is asserting that she has completed a thorough review of the trial court record and found no non-frivolous issues to raise on appeal. The United States Supreme Court in Anders determined that, after an examination of the trial court record, if appellate counsel finds the case to be frivolous, counsel should advise the court accordingly and seek withdrawal from the matter. Anders was interpreted by this Court in State v. Benjamin.

This Court has conducted an independent review of the record as required by Benjamin and determined that a review of the record supports appellate counsel's findings of no non-frivolous issues to raise on appeal.

Conclusion

After a thorough review of the record, this Court finds no merit to any assignments of error raised by Mr. Olivier. Further, we find no errors patent and that there are no non-frivolous issues to raise on appeal. Therefore, Mr. Olivier's resentence is affirmed. Additionally, appellate counsel's motion to withdraw is granted.

AFFIRMED; MOTION TO WITHDRAW AS COUNSEL OF RECORD IS GRANTED

      State v. Olivier , 93-2303 (La.App. 4 Cir. 11/17/94), 646 So.2d 1262 (unpublished).

      Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012).

      Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles , 96-2669, (La. 12/12/97), 704 So.2d 241, 242.

      Tate ruled that Miller did not apply retroactively. State v. Tate , 2012-2763, (La. 11/5/13) 130 So.3d 829 ) (abrogated by Montgomery v. Louisiana, --- U.S. ----, 136 S.Ct. 718, 723, 193 L.Ed.2d 599 (2016) ).

      In Montgomery , the Court found that Miller applies retroactively to cases on collateral review. Montgomery v. Louisiana, --- U.S. ----, 136 S.Ct. 718, 723, 193 L.Ed.2d 599 (2016).

      Although the United State District Court had already vacated Mr. Oliver's sentence, at the resentencing hearing the trial court vacated the sentence again out of an abundance of caution, stating: "[S]o although the sentence was vacated, out of an abundance of caution, I think I need to say it again, that the court, at this time, is going to vacate your sentence of April 12 of 1993, as I said, having found it to be illegal and unconstitutional under Miller versus Alabama and Montgomery versus Louisiana. " Transcript of Post-Conviction Relief Hearing at 39, State v. Olivier , No. 354-800 (12/8/16).

      Miller , 567 U.S. 460 at 483, 132 S.Ct. 2455.

      Id at 479, 132 S.Ct. 2455.

      Montgomery , 136 S.Ct. 718 at 729.

      Id. at 736.

      State v. Shaw , 51,325, pp. 11-12 (La.App. 2 Cir. 5/17/17), 223 So.3d 607.

      State v. Williams , 2015-0866 (La.App. 4 Cir. 1/20/16), 186 So.3d 242, 253 ) (quoting State v. Fletcher , 49,303, pp. 12-13 (La.App. 2 Cir. 10/1/14), 149 So.3d 934, 942 ) ).

      See Williams , 186 So.3d 242 at 253 ; State v. Jones, 15-157 (La.App. 5 Cir. 9/23/15, 176 So.3d 713 ; State v. Calhoun , 51,337 (La. App. 2 Cir. 5/17/17), 222 So.3d 903 ; State v. Graham , 2014-1769 (La. App. 1 Cir. 4/24/15), 171 So.3d 272.

      Anders , 386 U.S. 738, 87 S.Ct. 1396.

      State v. Benjamin , 573 So.2d 528 (La.App. 4 Cir. 1990).


text:
    The MATTER OF the ESTATE OF Frankie Don WARE, Deceased:
    Carolyn Ware, Executrix v. Richard Ware
    In the Matter of the Estate of Frankie Don Ware, Deceased:
    Carolyn Ware, as Executrix of the Estate of Frankie Don Ware v. Richard Ware
    NO. 2016-CA-00288-SCT NO. 2016-CA-01589-SCT
    Supreme Court of Mississippi.
    March 1, 2018
    ATTORNEYS FOR APPELLANT: RHETT R. RUSSELL, THOMAS A. WICKER
    ATTORNEYS FOR APPELLEE: CASEY LANGSTON LOTT, DUSTIN COLT CHILDERS
    BEFORE RANDOLPH, P.J., KING AND BEAM, JJ.
   RANDOLPH, PRESIDING JUSTICE, FOR THE COURT:

¶ 1. This case involves a dispute between a mother and son, Carolyn Ware ("Carolyn") and Richard Ware ("Richard"), regarding the distribution of shares of stock of three closely held corporations. The shares were being held by the estate of the deceased husband/father, Frankie Don Ware ("Frankie"). Frankie's will directed that the shares be distributed to a testamentary trust. The bylaws of the corporations (in which Frankie, Carolyn, and Richard were the sole shareholders) required any outstanding shares of stock be offered to the corporations prior to any transfer. Carolyn, the executrix, filed a petition to close Frankie's estate and to distribute Frankie's assets (including the shares) to the trust. Richard filed an objection to the closing of the estate, asserting the corporate bylaws of the three corporations. Carolyn responded, arguing that Richard lacked standing to object. The chancellor found for Richard and required Carolyn to offer the shares back to each corporation prior to transferring the shares to the trust. Carolyn subsequently appealed. The Court finds that Richard lacked standing to object to the closing of Frankie's estate.

FACTS AND PROCEDURAL HISTORY

¶ 2. On April 8, 2011, Frankie passed away, leaving a last will and testament. Frankie appointed his wife, Carolyn, to serve as executrix of his will. The will created "The Frankie Ware Family Trust," which was to receive all of Frankie's estate's assets available for distribution. Carolyn, Richard, and his two sisters, Angela and Dana, were named trustees of the Frankie Ware Family Trust. The primary purpose of the trust was to provide the income and principal to Carolyn during her lifetime. His will provided that upon Carolyn's death, Richard and his sisters were to receive only income benefits from the trust, and that his grandchildren were to receive the income and/or principal for their medical and educational needs.

¶ 3. Included in the assets available for distribution to the family trust were outstanding shares of stock equal to 25% of three closely held corporations: Ware Milling, Inc.; Chickasaw Farm Services, Inc.; and Chickasaw Grain Transportation, Inc. Carolyn also owned 25% of the shares of each corporation in her own name. Richard owned the remaining 50% of the shares in each of the corporations.

¶ 4. Three years after Frankie's will was admitted to probate, Carolyn, as executrix, filed a Petition to close the estate and to distribute the assets according to Frankie's will. Richard filed an objection to the closing of the estate, asserting a section of each corporation's bylaws that required shares to be offered back to the corporations prior to any transfer. Each of the corporation's bylaws contained the following provision:

No shareholder shall have the right to sell, assign, pledge, encumber, transfer, or otherwise dispose of any of any [sic] of the shares of the corporation without first offering the shares for sale to the corporation at the annually established net asset value of such shares. Such offer shall be in writing, signed by the shareholder. The written offer shall be sent by registered or certified mail to the corporation at its principal executive office, and shall remain open for acceptance by the corporation for a period of 120 days from the date of mailing.

Richard argued that because Carolyn, as executrix, had not yet offered the shares to the corporations, the estate, as holder of the shares, could not be closed until the corporate restrictions were satisfied. Carolyn responded that Richard lacked standing as an individual to object on behalf of the corporations. Furthermore, Carolyn argued that the objection was an unreasonable restraint on the disposition of Frankie's will, and the restriction in the bylaws did not apply to testamentary dispositions.

¶ 5. A hearing on Richard's objection was held on November 24, 2014. Richard and Carolyn testified about the share restriction of the corporations and its purpose, as well as Frankie's purpose in constructing his will. Richard testified that the intent of the share restriction was to limit stock ownership to the three original shareholders-Frankie, Carolyn, and Richard. Richard also offered an attorney, Albert Delgadillo, as an expert witness who opined that the word "transfer" in the share restriction applied to testamentary dispositions. Carolyn testified that her and her husband's intent with regard to the corporations was to ensure that the entire family benefitted from the businesses, and not just the original three shareholders. Carolyn also requested that if the trial court required the shares be offered back to the corporations, that the court also order an appraisal and audit of each corporation.

¶ 6. The trial court subsequently entered an order appointing The Koerber Company ("Koerber") to conduct a forensic audit and valuation of each corporation. Koerber conducted an extensive study of each corporation, and determined the net asset value of a 25% equity interest, established as of April 8, 2011 (the date of Frankie's death), totaled $2,109,000 after discount. Koerber applied a 20% discount for "lack of control," and a 20% discount for "lack of marketability," to decrease the value of a 25% equity interest in each corporation.

¶ 7. Carolyn disagreed with Koerber's valuation, arguing that the value of a 25% equity interest in the corporations was worth more than fifteen million dollars. Richard also disagreed with Koerber's valuation, arguing that it was too high, as the value of Ware Milling's accounts receivable, inventory, and cash on hand essentially were calculated twice in Koerber's valuation.

¶ 8. The trial court concluded that Carolyn was required to offer the stocks to the corporations for purchase, citing Mississippi Code Section 79-4-6.27(b) (Rev. 2013), which provides that "[a] restriction on the transfer or registration of transfer of shares is valid and enforceable against the holder or a transferee of the holder ...," though the trial court did not address section (c) of the statute, which provides when restrictions are authorized. The trial court then held that Carolyn was required to offer the shares to the corporation under West v. West , 88 So.3d 735, 738 (Miss. 2012), in which this Court held "that statutory restrictions [under Section 79-4-6.27 ] on the transfer of restricted shares of corporate stock apply to both voluntary and involuntary transfers of the shares ...."

¶ 9. The trial court accepted Koerber's valuation of the three corporations, including the discounts. Finally, the trial court found that the corporations should pay the estate a reasonable rate of interest (three percent) from the date the estate was opened until the corporations exercised their option to purchase the stock. The corporations never were made parties to this proceeding.

¶ 10. Carolyn soon thereafter filed a motion to alter or amend the judgment of the trial court, arguing that the trial court lacked jurisdiction to establish the value of the corporations. The trial court denied Carolyn's motion. Carolyn timely appealed to this Court.

¶ 11. Notwithstanding the appeal to this Court, this dispute continued at the lower court. One month after Carolyn's appeal, Richard filed a motion for declaratory judgment in the trial court, requesting the court to declare "the rights, status and legal relations" between Richard, Carolyn, and the three corporations at issue, though the corporations were not made parties to these additional proceedings. Richard informed the court that Carolyn had yet to offer the shares back to the corporations, and that Carolyn intended to block any stock repurchase by the corporations by combining her own 25% interest with the estate's 25% interest, creating a deadlock. Richard argued that the right to repurchase the stock belonged to the corporations-not the shareholders. Therefore, Richard requested that the trial court enter an order declaring that the board of directors of the corporations had the voting power to decide whether to purchase the stock. In the alternative, Richard asked the trial court to prevent Carolyn from voting because it would be "inherently unfair to allow a shareholder with an obvious conflict of interest to vote ...."

¶ 12. Three months after Carolyn's initial appeal, Richard filed an additional motion relating that Carolyn still had not offered the stock to the corporations. Richard filed a "Motion to Direct Specific Act of a Disobedient Party, or in the alternative, to Set Supersedeas Bond." Richard requested the trial court to compel Carolyn to offer the stock for purchase by the corporations. In the alternative, Richard requested the trial court to set a supersedeas bond against Carolyn in the amount of 125% of the value of the shares.

¶ 13. The trial court issued an order addressing both Richard's motion for declaratory judgment, and his motion to compel action by a disobedient party. The trial court held that the board of directors, and not the shareholders, had authority to vote on whether to repurchase the stocks. In support, the trial court cited Harper v. Harper , 491 So.2d 189, 195 (Miss. 1986), which provides that "[t]he management of a corporation is vested in its board of directors and not the stockholders." Further, the trial court cited Mississippi Code Section 79-4-8.01 (Rev. 2013), which provides that "[a]ll corporate powers shall be exercised by or under the authority of the board of directors of the corporation ...."

¶ 14. In addressing Richard's motion to compel action by a disobedient party, the trial court cited Mississippi Code Section 11-51-43 (Rev. 2015), which provides:

In any case of an appeal to the Supreme Court, where no special provision is made by law for a supersedeas of the judgment or decree appealed from, or for the bond to be given in such case, a supersedeas may be allowed by the court rendering the judgment or decree appealed from ... with such sureties as said court or judge may direct in the order for a supersedeas.

Accordingly, the trial court held that Carolyn should be required to post a supersedeas bond in the amount of $250,000, which the trial court held was sufficient to protect Richard's interests. Carolyn posted the bond in the set amount and subsequently appealed the trial court's second ruling.

ISSUES

¶ 15. Carolyn raises seven issues on appeal:

(1) Whether Richard had standing to object to the closing of the estate on behalf of the corporations.
(2) Whether the stock-transfer restriction applies to testamentary dispositions.
(3) Whether Richard's objection to the closing of the estate was timely.
(4) Whether the chancery court erred by appointing the Koerber Company's business valuations.
(5) Whether the chancery court erred by accepting the Koerber Company's twenty percent discount on the value of the stocks for "lack of control and marketability."
(6) Whether the chancery court erred in awarding the estate three percent interest on the value of the shares.
(7) Whether the chancery court erred by holding that the Board of Directors, and not the shareholders, may vote to purchase the stock.

Carolyn's first argument regarding Richard's standing is case-dispositive.

ANALYSIS

I. Standing

¶ 16. Carolyn argues that Richard's objection to the closing of the estate is a shareholder derivative action, and therefore Richard lacked standing to object. Despite Carolyn's raising this issue throughout the proceedings, the trial court declined to address Richard's standing.

¶ 17. "Standing is a jurisdictional issue." Hotboxxx, LLC v. City of Gulfport , 154 So.3d 21, 27 (Miss. 2015) (citations omitted). Therefore, "it may be raised by the Court sua sponte or by any party at any time, and the standard of review is de novo ." Id.

¶ 18. Carolyn cites Bruno v. Southeastern Services, Inc. , 385 So.2d 620, 622 (Miss. 1980), in which this Court adopted the rule

that an action to redress injuries to a corporation, whether arising in contract or in tort cannot be maintained by a stockholder in his own name, but must be brought by the corporation because the action belongs to the corporation and not the individual stockholders whose rights are merely derivative. The rule applies even though the complaining stockholder owns all or substantially all of the stock of the corporation.

¶ 19. Richard argues that his claim is not a shareholder derivative claim, but rather, an objection to the administration of the estate. Richard argues that because he is named a trustee of the trust created by Frankie's will, he has standing to object to the closing of Frankie's estate. Thus, Richard argues that Carolyn's standing argument, as it applies to shareholder derivative actions, is inapplicable. Notably, Richard cites no authority for his position that his title of trustee confers upon him standing to object to the administration of an estate. Regardless, his argument is without merit. Richard is attempting to prevent assets from being distributed to the trust. "A trustee shall take reasonable steps to enforce claims of the trust and to defend claims against the trust ." Miss. Code Ann. § 91-8-811(a) (Rev. 2013) (emphasis added). Richard's title of trustee alone is insufficient to confer standing unless he is enforcing claims on behalf of the Frankie Ware Family Trust or is defending claims against the family trust. Id.

¶ 20. In order to address standing, the Court must determine whether Richard "had the right to participate in this cause of action." City of Picayune v. Southern Reg'l Corp. , 916 So.2d 510, 519-520 (Miss. 2005). "Fundamental to this review" is what body of law applies to the dispute. Id. Accordingly, whether Richard's action is indeed a shareholder derivative action will determine what law applies, and in turn, determine Richard's standing.

¶ 21. "[I]n determining whether the action belongs to the corporation or the individual, the focus of the inquiry is whether the corporation or the individual suffered injury." Scafidi v. Hille , 180 So.3d 634, 647 (Miss. 2015) (quoting Mathis v. ERA Franchise Sys., Inc. , 25 So.3d 298, 303 (Miss. 2009) ). "The action is derivative if the gravamen of the complaint is injury to the corporation, or to the whole body of its stock or property without any severance or distribution among individual shareholders, or if it seeks to recover assets for the corporation or to prevent the dissipation of its assets." Id. Richard's objection to the closing of Frankie's estate is, in reality, a shareholder derivative claim. Richard was seeking solely to enforce a putative corporate right. As such, the law applying to shareholder derivative actions must apply. See City of Picayune , 916 So.2d at 519-520 (holding that "different standing requirements are accorded to different areas of the law," and finding that because corporate law applied to the action, citizens did not have standing to challenge actions by a corporation).

¶ 22. In Mississippi, a shareholder may not institute a derivative suit unless certain statutory conditions are met. 3 Miss. Practice Encyclopedia of Miss. Law § 22:210 (2d ed. 2017). Mississippi Code Section 79-4-7.41(1) (Rev. 2013) provides that a shareholder may not commence a derivative suit unless he or she was a shareholder at the time of the act or omission in question. Mississippi Code Section 79-4-7.41(2) requires that the shareholder fairly and adequately represent the interests of the corporation. Furthermore, Mississippi Code Section 79-4-7.42 (Rev. 2013) requires the complaining shareholder to make a written demand upon the corporation or appropriate officers prior to commencing the proceeding, and section two of that statute requires ninety days to elapse after the written notice, unless the corporation earlier rejects the demand, or unless irreparable injury to the corporation would result by waiting for the ninety-day period to elapse. Finally, our caselaw requires that the corporation is made a party to the derivative action. See Bruno , 385 So.2d at 622 ("The corporation is an indispensable party" to a shareholder derivative action); see also Fairchild v. Keyes , 448 So.2d 292, 294 (Miss. 1984) ( [T]he corporation is an indispensable party to a suit brought to protect its interest ....").

¶ 23. "The rationale for these procedural prerequisites has to do with the corporation's status as a creature of the State." 3 Miss. Practice Encyclopedia Miss. Law § 22:210 (2d ed. 2017). "Since the corporation is a separate entity, the shareholder has no legal interest in any of its property." Id. These conditions "avoid multiple lawsuits, preserve creditors' rights since any recovery will belong to the corporation, and provide for any recovery to benefit all shareholders." Id.

¶ 24. Richard failed to satisfy the statutory conditions required of shareholder derivative actions. Notwithstanding, Richard argues that, even if his action is considered a shareholder derivative action, the chancery court has discretion to disregard the procedural prerequisites and treat the claim as a direct action if it makes certain findings under the Derouen doctrine. Derouen v. Murray , 604 So.2d 1086, 1091 n.2 (Miss. 1992). The trial court declined to address the question of whether Richard's action was a shareholder derivative action, and never made any findings under Derouen . In Derouen , this Court did not overrule Bruno , but stated in a footnote that

[i]n the case of a closely held corporation ..., the [chancery] court in its discretion may treat an action raising derivative claims as a direct action, exempt it from those restrictions and defenses applicable only to derivative actions, and order individual recovery, if it finds that to do so will not (i) unfairly expose the corporation or the defendants to a multiplicity of actions, (ii) materially prejudice the interests of creditors of the corporation, or (iii) interfere with a fair distribution of the recovery among all interested persons.

Derouen , 604 So.2d at 1092. This Court later interpreted the Derouen doctrine to hold "that in derivative suits involving closely held corporations, the trial court may award damages on an individual basis, provided certain safeguards are met." Investor Res. Servs., Inc. v. Cato , 15 So.3d 412, 424 (Miss. 2009). Indeed, the facts of Derouen involved a shareholder seeking individual recovery for his fifty-percent equity interest in proceeds from the business. Derouen , 604 So.2d at 1089-90.

¶ 25. Here, Richard is not seeking individual recovery or individual damages. Rather, he has brought an action to enforce corporate bylaws. The Derouen doctrine does not apply because Richard does not seek individual recovery, but rather seeks to redress alleged wrongs to the three corporations.

¶ 26. The holding in Bruno applies in this case. Richard lacked standing to bring suit because the right belongs to the three corporations. It is of no consequence that Richard owns half of the shares of stock, as Bruno explicitly applies to closely held corporations, where "the complaining stockholder owns all or substantially all of the stock of the corporation." Bruno , 385 So.2d at 622. Accordingly, Richard lacked standing under Bruno to assert a claim individually on behalf of the corporations.

CONCLUSION

¶ 27. Richard lacked standing to bring suit on behalf of the three corporations, because the injury for which he seeks relief, and the gravamen of this matter, pertains to the corporations only. Therefore, the Court reverses and remands the trial court's judgment, and subsequent orders related to that judgment, for proceedings consistent with this opinion.

¶ 28. REVERSED AND REMANDED.

WALLER, C.J., KITCHENS, P.J., KING, COLEMAN, MAXWELL, BEAM, CHAMBERLIN AND ISHEE, JJ., CONCUR.

      Koerber valued a 25% equity interest in Ware Milling, Inc., at $1,880,000, Chickasaw Farm Services, Inc., at $161,000, and Chickasaw Grain Transportation, Inc., at $68,000.

      Mississippi Code Section 79-4-6.27(b) reads, in its entirety, as follows: "A restriction on the transfer or registration of transfer of shares is valid and enforceable against the holder or a transferee of the holder if the restriction is authorized by this section and its existence is noted conspicuously on the front or back of the certificate or is contained in the information statement required by § 79-4-6.26(b). Unless so noted, a restriction is not enforceable against a person without knowledge of the restriction." Section (c) continues: "A restriction on the transfer or registration of transfer of shares is authorized: (1) To maintain the corporation's status when it is dependent on the number or identity of its shareholders; (2) To preserve exemptions under federal or state securities law; (3) For any other reasonable purpose."