author: McClendon, j.

text:
    The MARIETTA TRUST and The Warren Trust v. J.R. LOGGING INC., Fair Hills Farm LLC, Jerry Avants, Jr., Thomas Keaty, Jr., and XYZ Insurance Company
    2016 CA 1136
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: May 11, 2017
    Rehearing Denied September 14, 2017

      Cecily Salley, Covington, Louisiana, Counsel for Plaintiffs/Appellees, The Marietta Trust and The Warren Trust
    Charles M. Reid, Amite, Louisiana and Donna U. Grodner, Baton Rouge, Louisiana, Counsel for Defendants/Appellees and Cross-Claimants, Fair Hills Farm, LLC and Thomas Keaty, Jr.
    Maureen 0. Sullivan, Jean Ann Billeaud, Jenna Harris, Lafayette, Louisiana, Counsel for Defendants/Appellants and Cross Claimants, JR Logging Inc., Jerry Avants, Jr. and Indemnity Ins. Co. of North America
    BEFORE: WHIPPLE, C.J., GUIDRY, and McClendon, jj.
   McClendon, j.

|2This is an appeal from a judgment that denied a motion to enforce a settlement agreement in a timber dispute. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On March 7, 2013, the plaintiffs, the Marietta Trust and the Warren Trust filed a petition for wrongful timber cutting and for property damage, penalties, interest, costs, and attorney fees. In their petition, the plaintiffs named as defendants, Fair Hills Farms, LLC and Thomas Keaty, Jr. (the Fair Hills defendants). Also named as defendants were J.R. Logging, Inc., Jerry Avants, Jr., and J.R. Logging’s insurer, Indemnity Insurance Company of North America (the J.R. Logging defendants)'. Fair Hills owns property adjacent to the plaintiffs’ property in Tangipahoa Parish, and the plaintiffs alleged that Fair Hills, along with its agent Mr. Keaty, wrongfully cut timber on the plaintiffs’ property. The plaintiffs also alleged that J.R. Logging and Mr. Avants were hired by Fair Hills and Mr. Keaty to cut the timber on the Fair Hills property and that J.R. Logging and Mr. Avants wrongfully cut the plaintiffs’ timber. Thereafter, the Fair Hills defendants and the J.R. Logging defendants filed cross claims against each other.

On November 9, 2015, the trial court held' a status conference, at which time the terms of a potential settlement were discussed. The plaintiffs and the J.R. Logging defendants proposed a settlement whereby the J.R. Logging defendants would pay to the plaintiffs $20,000.00 in consideration for a dismissal of all claims against the J.R. Logging' defendants and the Fair Hills defendants. The proposed settlement also included a dismissal of the cross claims between the defendants. On November 13, 2015, Charles Reid, counsel for the Fair Hills defendants, sent the following email to Cecily Salley, counsel for the plaintiffs, and to Maureen Sullivan, counsel for the J.R. Logging defendants:

la After much thought, my clients have agreed to the settlement proposal by the JR Logging/Ayants Defendants whereby the entire settlement amount will be paid by the JR Logging/Avants Defendants and no payment .made will be made by Fair Hills Farms LLC and Thomas Keaty Jr. This settlement requires all, parties ... to dismiss the claims against each other,- including the Cross Claims between the JR Logging/Avants defendants and the Fair Hills Farms/Keaty Defendants. It is my understanding that .-Maureen will' prepare the settlement agreement, releases and dismissal. Thank you in advance for your cooperation in this matter.

Ms. Sullivan responded by email that same day to Mr. Reid, with a copy to Ms. Salley, stating:

Thank you for the information Chuck. We will prepare the Settlement Agreement per your email. All claims, all parties released and dismissed with prejudice.
I will circulate the draft today. I will also request a check as soon as I. get information on exact Payees and W9s from Cecily.

Thereafter, a Release, Receipt and Settlement Agreement, with a motion and order for the dismissal of the cross claims, was drafted and circulated among all counsel by email on November 16, 2015. After some back and forth communications between counsel, a few changes were made, and on November 18, 2015, Ms. Sullivan, counsel for the J.R. Logging defendants, emailed the final version of the documents with the agreed changes to Ms. Salley, counsel for the plaintiffs. On December 3, 2015, Ms. Sullivan sent by mail the Receipt, Release and Settlement Agreement and the Joint Motion and Order to Dismiss all Claims to Ms. Salley for signature by the plaintiffs, with a settlement check in the amount of $20,000.00. A copy was also sent to Mr. Reid, counsel for the Fair Hills defendants.

Ms. Sullivan received the Receipt, Release and Settlement Agreement executed by the plaintiffs and Ms. Salley, as well as the Joint Motion and Order to Dismiss executed on behalf of the plaintiffs. On December 14, 2015, the documents were forwarded to Mr. Reid with instructions to “sign where indicated by tabs” as the attorney for Fair Hills and Mr. Keaty. On December 28, 2015, after the documents were not returned and attempts to contact Mr. Reid were unsuccessful, Ms. Salley emailed Mr. Reid advising him that she would contact the trial court if she and Ms. Sullivan did not hear from him regarding the status of the settlement documents. That day, Ms. [¿Salley was advised that Fair Hills and Mr. Keaty would not sign the Receipt, Release and Settlement Agreement, which would have dismissed their cross claims against the J.R. Logging defendants.

On January 28, 2016, the plaintiffs and the J.R. Logging defendants filed a Joint Motion to Enforce Settlement Agreement, asserting, that a valid and binding settlement had been reached. Following a hearing on the motion, the trial court denied the motion to enforce the settlement. The trial court signed a judgment on April 25, 2016. The J.R. Logging defendants have appealed.

LAW AND DISCUSSION

The two-part test for the appellate review of a factual finding is 1) whether there is a reasonable factual basis in the record for the finding of the trial court, and 2) whether the record further establishes that the finding is not manifestly erroneous. If a reasonable' factual basis exists, an appellate court may set aside a trial court’s factual finding only if, after reviewing the record in its entirety, it determines the trial court’s finding was clearly wrong. Mixed questions of law and fact are also subject to the manifest error standard of review. Dozier v. Rhodus, 08-1813 (La.App. 1 Cir. 5/5/09), 17 So.3d 402, 407, writ denied, 09-1647 (La. 10/30/09), 21 So.3d 294.

A compromise is a contract whereby the parties, through concessions made by one or more of them, settle a dispute or an uncertainty concerning an obligation or other legal relationship. LSA-C.C. art. 3071. A compromise shall be made in writing or recited in open court, in which case the recitation shall be susceptible of being transcribed from the record of the proceedings. LSA-C.C. art. 3072. A compromise, as any other contract, may be contained in two writings rather than one. Sims v. USAgencies Cas. Ins. Co., 10-1120 (La.App. 1 Cir. 12/22/10), 68 So.3d 570, 574, writ denied, 11-1927 (La. 11/14/11), 75 So.3d 943. The purpose of the writing requirement is to serve as proof of the agreement and the acquiescence therein. Sullivan v. Sullivan, 95-2122 (La. 4/8/96), 671 So.2d 315, 317; Sims, 68 So.3d at 574. Thus, for a transaction or compromise to be valid and enforceable, it must either be recited in open court and capable of being transcribed from the record of the proceedings or it must be reduced to writing and signed by the parties or their agents. Sullivan, 671 So.2d at 317-18. Until the parties sign a written document or documents evincing their consent to the terms of a proposed settlement agreement, a party is free to change his or her mind. Sullivan, 671 So.2d at 318; Doiron v. Louisiana Farm Bureau Mut. Ins. Co., 98-2818 (La.App. 1 Cir. 2/18/00), 753 So.2d 357, 362.

Louisiana Civil Code Article 2997 provides, in pertinent part, “Authority also must be given expressly to: ... (5) Enter into a compromise or refer a matter to arbitration.” The signature of a party’s attorney alone is not sufficient to effect a compromise unless the required authorization is expressly given as provided under LSA-C.C. art. 2997. Lemoine v. Thornton, 13-889 (La.App. 3 Cir. 2/12/14), 161 So.3d 666, 671, writ denied, 14-0541 (La. 4/25/14), 138 So.3d 648. The law is quite clear in our jurisprudence that a party’s counsel of record does not have authority to settle a client’s claim without his client’s clear and express consent. Lemoine, 161 So.3d at 671. The general authority granted to an attorney in an attorney/client contract of employment to settle the client’s case constitutes only authority to negotiate a settlement. Sims, 68 So.3d at 575; Bennett v. Great Atlantic & Pacific Tea Co., Inc., 95-0410 (La.App. 1 Cir. 11/9/95), 665 So.2d 84, 86, writ denied, 95-2981, (La. 2/9/96), 667 So.2d 536.

In this matter, the record reveals that no compromise was ever recited in open court, and there is no question that the Receipt, Release and Settlement Agreement was not signed by Fair Hills or Mr. Keaty. Nevertheless, the J.R. Logging defendants contend that a valid compromise was perfected by the emails between the attorneys and that Mr. Reid was acting as an agent for the Fair Hills defendants. Therefore, the ultimate issue before this court is whether the emails between counsel for the parties satisfied the requirement set forth in LSA-C.C. art. 3072 that a compromise be made in writing. Inherent in this inquiry is what express authority, if any, was granted to Mr. Reid by his clients. After a careful review of the facts of this case, applicable law, and | ^-jurisprudence, we find the emails between the attorneys insufficient to constitute a valid contractual settlement of the claims of the parties.

In denying the Motion to Enforce the Settlement Agreement, the trial court stated:

I just don’t think it’s clear enough that this is a writing that has the complete meeting of the minds and complete agreeings (sic) and the authority of Mr. Reid as an attorney for Fair Hills Farm and Mr. Keaty.

We agree with the trial court that the emails in this matter were insufficient to establish a binding compromise. The record shows that a settlement agreement was contemplated, as indicated by the emails of November 13, 2015. However, even assuming that the emails accurately reflected the terms that the palsies agreed to on that date, neither the emails nor anything else in the record establish that Mr. Reid had the specific authority to settle the case. Although Mr. Reid’s email states that his “clients have agreed to the settlement,” there is nothing in the record showing that Fair Hills and Mr. Keaty ever gave Mr. Reid the express consent necessary to accept the terms of the settlement on their behalf. Again, although attorneys are presumed to have the authority to negotiate a settlement proposal for their clients, attorneys may not enter into a binding compromise agreement without their clients’ clear and express authority. See LSA-C.C. art. 2997; Sims, 68 So.3d at 575. Therefore, given that the terms of the settlement were not reduced to writing and signed by the parties or their agents, there is no enforceable settlement agreement under LSA-C.C. art. 3071 et seq. Accordingly, based on the facts and record before us, we cannot say that the trial court was manifestly erroneous or clearly wrong in finding that there was no binding settlement agreement, and we find no error in the trial court’s denial of the Motion to Enforce Settlement Agreement.

^CONCLUSION

For the above reasons, we affirm the April 25, 2016 judgment of the trial court. All costs of this appeal are assessed to the J.R. Logging defendants, namely, J.R. Logging Inc., Jerry Avants, Jr., and Indemnity Insurance Company of North America.

AFFIRMED.

      . The Marietta Trust is composed of J. Thomas Lewis, Carl R. Schneider, and Frederick Á. Reimers, as Testamentary Trustees for Carl Reimers Schneider, John Frederick Schneider, and Fay Adele Schneider Bright, under the will of Frederick Williams Reimers.

      . The Warren Trust is composed of J. Thomas Lewis, Carl R. Schneider, and Frederick A. Reimers, as Testamentary Trustees for Frederick Anderson Reimers, Alison Jean Reimers Lyell, Margaret Warren R, Graves, and John Anderson Reimers, under the will of Frederick William Reimers,

      . The Receipt, Release'and Settlement Agreement contained a signature line for Ms. Sal-ley’s approval as the attorney for the plaintiffs.

      . Ms. Salley received a telephone call from attorney Donna Grodner, who had not yet enrolled as counsel of record for Fair Hills and Mr. Keaty.

      . The J.R. Logging defendants filed a motion to certify the judgment as a final appealable judgment under LSA-C.C.P. art. 1915B. The trial court granted the motion and certified the judgment as final. Having reviewed the record, we find no error in designating the judgment as immédiatply appealable. See R.J. Messinger, Inc. v. Rosenblum, 04-1664 (La. 3/2/05), 894 So.2d 1113.

      . We note that the affidavit of Thomas S. Keaty, III, submitted in opposition to the motion to enforce the settlement, did not address the authority of Mr. Reid.

      . Finding no binding and enforceable settlement agreement, we need not address the J.R. Logging defendants’ remaining assignments of error. Additionally, because the Fair Hills defendants neither appealed nor answered the appeal, we do not address the prayer for costs in their appellee brief. See Hospital Corp. of America v. Robinson, 499 So.2d 246, 249 (La.App. 1 Cir. 1986) (“Failure to appeal or answer an appeal precludes this court’s consideration of any issues subsequently asserted in brief.”).


source: Caselaw Access Project

author: GUIDRY, J.

license: Public Domain

text:
    CITY OF BATON ROUGE and Parish of East Baton Rouge v. Peter A. TERRITO, Jr.
    2016 CA 0925
    Court of Appeal of Louisiana, First Circuit.
    Judgment rendered: June 22, 2017
    Rehearing Denied August 21, 2017

      Leo J. D’Aubin, Baton Rouge, LA, Counsel for Plaintiff-Appellee, City of Baton Rouge/Parish of East Baton Rouge
    David M. Ellison, Jr., Oliver Scott Ellison, Baton Rouge, LA, Counsel for Defendant-Appellant, Peter A. Territo, Jr.
    BEFORE: WHIPPLE, C.J., GUIDRY, and McClendon, jj. -
   GUIDRY, J.

| ¿This appeal raises the res nova issue of whether in an expropriation proceeding, abandonment can accrue against an allegedly unperfected claim. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On October 5, 2010,. the City of Baton Rouge and Parish of East Baton Rouge (City-Parish) filed a petition to expropriate a portion of a tract of land owned by Peter A. Territo, Jr. in East Baton Rouge Parish for the Green Light Plan—Staring Lane (Highland Road to Perkins Road) Improvements project (Green Light project) as authorized by the Metropolitan Council of the Parish of East Baton Rouge and City of Baton Rouge. On October 14, 2010, the trial court signed an order decreeing expropriated the portion of Mr. Territo’s land identified by the City-Parish for the Green Light project and directing the City-Parish to deposit the sum of $25,329.00 into the registry of the court and Mr. Territo to surrender possession of the property. In accordance with the court’s order, the City-Parish deposited $25,329.00 in the registry of the court on October 22,2010.

On November 9, 2010, Mr. Territo filed an answer to the City-Parish’s petition, contesting the City-Parish’s right to expropriate a portion of his property and contending that the amount of $25,329.00 paid in just compensation is “wholly inadequate and should be increased.” Specifically, in his answer, Mr. Territo alleged:

Prior to the taking herein, Defendant was the owner of the entirety [of] Lot A, resubdivision of Lots 33 and 34, Staring Property, as described in the petition on which was a residence and other improvements including, but. not limited to, extensive landscaping and trees. Defendant’s property was located in a quiet neighborhood of closely knit neighbors and the taking, if allowed, will destroy the character of his property and the neighborhood, will decrease the value of Defendant’s remaining property, will destroy old and valuable live oak trees and other shrubbery and improvement for which he should be compensated. Defendant has engaged an |aappraiser but has not yet received a report and reserves the right specifically to claim additional compensation upon being furnished with such a report or for that matter reports.

On February 7, 2011, the trial ■ court issued an order to allow Mr. Territo to withdraw the deposited sum of $25,329.00 plus accumulated interest from the registry of the court. JPMorgan Chase Bank then intervened in the action, contending that it was the holder of a promissory note secured by a mortgage on the property at issue, and hence, it asserted its right to the amount of just compensation deposited in the registry of the court and “to any amended amount that is determined to be just and fair compensation.” Mr. Territo eventually withdrew the sum of $25,424.55 from the registry of the court on February 4, 2014.

No further action was taken in the trial court until June 12,2015, when Mr. Territo filed a motion requesting a status conference. In turn, the City-Parish filed a “Motion for Final Judgment and Dismissal for Abandonment,” averring that “any claim for an increase in compensation in this matter has been abandoned as provided by [•La.] R.S. 48:452.1.” Accordingly, the City-Parish requested that the trial court render final judgment- awarding Mr. Territo the-amount deposited in the registry'of the court as just compensation and- dismiss with prejudice any claim for an increase in compensation.

A hearing on the City-Parish’s motion for abandonment was held on February 29, 2016, following which the trial court granted the motion. In a judgment signed April 11, 2016, the court décreed Mr. Territo’s claim for additional compensation abandoned and fixed just compensation as the amount deposited in the registry of the court. After the trial court denied his motion for new trial, Mr. Territo filed a motion to devolutively appeal the April 11, 2016 judgment} which was granted by the trial court. Once the matter was lodged with | ¿this court, however, it was observed that the judgment appealed appeared to be defective in that it did not specify the amount of compensation deposited in the registry of the court. Hence, this court issued an order to the parties to show cause why the appeal should not be dismissed and further remanded the matter to the trial court for the limited purpose of allowing the trial court to amend the defective judgment. The-appellate record was subsequently supplemented with an amended judgment that was signed by the trial court on August 2,2616.

DISCUSSION

In his first of two assignments of error, Mr. Territo asserts that the trial court erred in finding that the November 9, 2010 answer filed by him satisfied the requirements of La. R.S. 48:450(B), such that abandonment could commence to run in this matter from the date of that filing.

, This matter involves an expropriation action by the City-Parish. Such expropriations are conducted in accordance with La. R.S. 48:441 through 460, providing for expropriation by a declaration of taking. See La. R.S. 19:131.1(B). The rules governing abandonment set forth in Title 48 of the Louisiana Revised Statutes prevail -over the more general provisions found in the Louisiana Code of Civil Procedure. State, Department of Transportation and Development v. August Christina & Brothers, Inc., 97-244, pp. 28-29 (La. App. 5th Cir. 2/11/98), 716 So.2d 372, 384. Section 452.1(A) of Title 48 provides:

An owner’s claim for an increase in the compensation is perfected when he timely files his answer as provided in B.S. 48:450 and is thereafter abandoned when he fails to take any step in the prosecution of that claim for a period of three years. This provision shall be operative without formal order, but on ex parte motion of the department the trial court shall render final judgment fixing just compensation in the amount deposited in the registry of the court and awarding that sum to the defendant and dismissing with prejudice any claim for any increase in compensation. [Emphasis added.]

The expropriation in this case involves the taking of only a portion of the | ¿tract of land owned by Mr. Territo, rather than the entire tract. As such, La. R.S. 48:450(B) provides:

Where a portion of a lot, block, or tract of land is expropriated, any defendant may apply for a trial to determine the measure of compensation to which he is entitled, provided:
(1) He files an answer within one year from the date he is served, in the same manner provided for service of the petition, with a copy of the department’s notice of acceptance, which has been filed with the clerk of court of the parish in which the action is pending, declaring that it has finally accepted the construction of the highway project for which the property was expropriated; provided however, that he may file his answer at any time prior thereto;
(2) His answer sets forth the amount he claims, including the value of each parcel expropriated and the amount he claims as damages to the remainder of his property;
(3) His damage claim is reasonably itemized;
(4) His answer has a certificate thereon showing that a copy thereof has been served personally or by mail on all parties to the suit who have not joined in the answer.

In the instant case, rather than wait until he was served with a copy of the City-Parish’s notice of acceptance of the completed Green Light project, Mr. Terri-to filed an answer to the City-Parish’s expropriation petition on November 9, 2015, which La. R.S. 48:450(B)(1) expressly allows. Nevertheless, the plain language of La. R.S. 48:452.1(A) provides abandonment commences to run on a claim for increased compensation once the claim is perfected.

According to La. R.S. 48:452.1, a claim is perfected once an answer is timely filed in accordance with La. R.S. 48:450. A timely filed answer under the applicable provisions of La. R.S. 48:450, is an answer filed any time up to one year after the City-Parish served proper notice of acceptance of the Green Light project Ron Mr. Territo. As it is without question that Mr. Territo filed his answer within the requisite time delay, his answer is indisputably timely. Nevertheless, Mr. Territo argues that in order for his claim to be “perfected,” and hence commence the running of the period for abandonment of said claim, his answer had to comply with all of the provisions of La. R.S. 48:450(B). Section 452.1(A), however, states that the claim is perfected when an owner “timely files his answer as provided in R.S. 48:450.” (Emphasis added.)

Even if Mr. Territo’s answer did not comply with all of the applicable provisions of La. R.S. 48:450, it was his choice to elect to file his answer prior to being served with notice of the City-Parish’s acceptance of the Green Light project, as La. R.S. 48:450(B)(1) clearly allowed him up to one year after receiving such notice to file an answer. See August Christina & Brothers, Inc., 97-244 at pp. 29-30, 716 So.2d at 385; State, Department of Transportation and Development v. James E. Townsend, Inc., 28,494, pp. 3-4 (La. App. 2d Cir. 8/21/96), 679 So.2d 499, 501. Thus, under a plain reading of La. R.S. 48:452.1, a claim is perfected when an answer is filed within the time delay provided in La. R.S. 48:450 and “is thereafter abandoned” when no step is taken in the prosecution of the claim for a period of three years.

Having therefore determined that the trial court properly found Mr. Territo’s claim to be perfected such that abandonment could commence running against the claim, we will now consider Mr. Territo’s second assignment of error wherein he claims he manifested sufficient intent to maintain his claim such that the trial court erred in finding his claim abandoned. In support of this argument, Mr. Territo alleges that he contacted “[n]o less than thirty (30) appraisers ... in East Baton Rouge and surrounding parishes” to engage to their services without success, until 17in 2015, he finally succeeded in obtaining the services of an appraiser to assist him in prosecuting his claim. Mr. Territo also points out “numerous” meetings he had with other landowners whose property was also impacted by the Green Light project and photographs they took to support their claims for additional compensation as actions manifesting his intent not to abandon his claim.

While La. R.S. 48:452.1 governs the determination of when abandonment is deemed to commence in an expropriation action, La. C.C.P. art. 561, in the absence of any opposing provision under La. R.S. 48:441-460, governs the determination of whether any actions taken by Mr. Territo are sufficient to constitute “steps” in the prosecution of his claim so as to interrupt the running of abandonment. See La. R.S. 48:454. Accordingly, La. C.C.P. art. 561(A)(1) provides, in pertinent part, that an action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years. Any formal discovery as authorized by the Code of Civil Procedure and served on all parties, whether or not filed of record, including the taking of a deposition with or without formal notice, shall be deemed to be a step in the prosecution or defense of an action. La. C.C.P. art. 561(B).

Formal discovery, as provided in the Code of Civil Procedure, is any of the following: depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property, for inspection and other purposes; physical and mental examinations; request for release of medical records; and requests for admission. La. C.C.P. art. 1421. While the actions taken by Mr. Territo clearly were for the purpose of obtaining additional evidence by which to prosecute his claim, none of those actions—attempts to hire an appraiser, strategy meetings with fellow | ^landowners, and taking photographs of their property and losses—could even loosely be construed as any act of formal discovery. Compare Louisiana Department of Transportation and Development v. Bayou Fleet, Inc., 10-1215 (La. 7/2/10), 39 So.3d 585.

Hence, Mr. Territo’s failure to take a “step” in the prosecution of his claim, in the mariner provided by law, for over three years resulted in his claim being abandoned. Accordingly, we find the trial court did not err in the judgment rendered herein.

CONCLUSION

Therefore, having determined that Mr. Territo’s claim was perfected upon his filing an answer within the time delay provided by La. R.S. 48:450(B)(1) and further finding that he failed to take a step in the prosecution of his claim for a period of three years following the filing of his answer, we affirm the August 2, 2016 judgment of the trial court. All costs of this appeal, in the amount of $1,022.50, are cast to the appellant, Peter A. Territo, Jr.

AFFIRMED.

      . In a supplemental memorandum opposing the City-Parish’s Motion for Final Judgment and Dismissal for Abandonment, Mr, Territo stated that the project was completed and accepted by the City-Parish on March 26, 2015.

      . In his opposition to the City-Parish’s Motion for Final Judgment and Dismissal for Abandonment, Mr. Territo explained that he filed his answer on November 9, 2010, to avoid a default judgment being rendered against him and to comply with instructions given in the citation served with petition.

      . In his brief on appeal, Mr. Territo states that he was never served with notice of the City-Parish’s acceptance of the Green Light project.

      . That statute provides, “[e]xcept as provided in this Part, these suits are tried in accordance with the provisions of the Code of Civil Procedure and general expropriation laws.”


author: CHEHARDY, C.J. WINDHORST, J.,

text:
    STATE of Louisiana v. Marilyn S. STILLER
    NO. 16-KA-659
    Court of Appeal of Louisiana, Fifth Circuit.
    July 26, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE, state of Louisiana Paul d. Connick, Jr., Terry M. Boudreaux, Juliet L. Clark
    COUNSEL FOR DEFENDANT/APPELLANT, MARILYN S. STILLER Davidson S. Ehle, III
    Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and Stephen J. Windhorst
   CHEHARDY, C.J.

| defendant, Marilyn S. Stiller, appeals her conviction of and sentence for exploitation of an infirmed person. For the reasons that follow, we affirm defendant’s conviction and sentence.

STATEMENT OF THE CASE

On .September 3, 2013, the Jefferson Parish District Attorney filed a bill of information charging defendant, Marilyn S. Stiller, with theft of the assets of a person who is aged, a .violation of La. R.S. 14:67.21(0(1). Defendant was arraigned arid pled not guilty. On March 17,2014, the Jefferson Parish District Attorney filed a superseding bill of information charging defendant with exploitation of an “infirmed person” in violation of La. R.S. 14:93.4. Defendant was arraigned on this charge and pled not guilty.

On May 14, 2014, defendant withdrew her not guilty plea and pleaded guilty under La. C.Cr.P. art. 893 and North Carolina v. Alford to exploitation of an “elderly person” in violation of La. R.S. 14:93.4. That same date, the court deferred imposition of sentence and placed defendant on two years of active probation, followed by three years of inactive probation. Following a restitution hearing on June 23, 2014, the court ordered defendant to pay restitution in the amount of $52,710.20.

On May 13, 2016, defendant filed a pro se application for post-conviction relief (APCR) raising claims of ineffective assistance of counsel, newly discovered evidence, and perjury. On June 1, 2016, the court dismissed defendant’s APCR without prejudice and permitted defendant to file an APCR requesting an out-of-time appeal within thirty days. On June 30, 2016, defendant, through counsel, | ¿filed an APCR seeking an out-of-time appeal that the court granted on July 20, 2016.

FACTS

Because defendant pled guilty, the underlying facts were not developed at trial. Yet, during defendant’s plea colloquy, the State provided the following factual basis:

Between the dates of December 3, 2009, and July 31, 2011, defendant exploited an infirmed and aged person, Creóla McCants, DOB: 4/16/1928, by using a power of attorney wherein defendant was the agent for the principal, Mrs. McCants, and that power of attorney was used, not for the principal, but for defendant’s own profit or advantage by means of fraudulent conduct, practice, or representation, that being submitting those two powers of attorney executed within the Parish of Jefferson to both the VA, Veterans Affairs, and to the Road Home Program to obtain funds that were payable to Mrs. McCants.

DISCUSSION

In her first assignment of error on appeal, defendant argues that her guilty plea was involuntary and unknowing because her trial counsel was ineffective in failing to investigate facts and defenses before she pleaded guilty. She contends that she informed her counsel that she was innocent, but that he did not inspect the evidence she provided to prove her innocence, nor did he present that evidence to the prosecutors and their investigators.

She also alleges that her counsel did not give her adequate information in advance of the potential plea bargain so she could intelligently consider her options and make a reasonable and informed decision. Defendant claims that her counsel falsely indicated that her case could be resolved through the diversion program and that her counsel did not inform her until the day she pled guilty that the program was not available to her. Defendant also claims that she was not aware that a plea bargain was offered until the morning of her guilty plea and that she did not have sufficient time to consider it.

13As a general proposition, the validity of a guilty plea turns on whether the defendant was informed of three fundamental constitutional rights—his privilege against compulsory self-incrimination, his right to trial by jury, and his right to confront his accusers—and whether, having been informed of those rights, the defendant knowingly and voluntarily waived them. State v. Lee, 15-108 (La. App. 5 Cir. 6/30/15), 171 So.3d 1214, 1217. Here, defendant argues that her plea was not knowing or voluntary on account of counsel’s ineffective assistance.

A defendant is entitled to effective assistance of counsel under the Sixth Amend-merit to the United States Constitution and Article I, § 13 of the Louisiana Constitution of 1974. State v. Francois, 13-616 (La. App. 5 Cir. 01/31/14), 134 So.3d 42, 58, writ denied, 14-431 (La. 9/26/14), 149 So.3d 261. Under the standard for ineffective assistance of counsel set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a conviction must be reversed if the defendant proves: (1) that counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms; and (2) counsel’s inadequate performance prejudiced defendant to the extent that the trial was rendered unfair and the verdict suspect. State v. Lyons, 15-2197 (La. 9/23/16), 199 So.3d 1140, 1141.

For claims like defendant’s that counsel’s ineffective assistance rendered a guilty plea invalid, the Strickland analysis under the first deficiency prong remains unchanged, whereas under the second prejudice prong, “the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985).

Generally, an ineffective assistance of counsel claim is most appropriately addressed through an application for post-conviction relief filed in the district court, where a full evidentiary hearing can be conducted, if necessary, rather than |4by direct appeal. State v. Ferrera, 16-243 (La. App. 5 Cir. 12/14/16), 208 So.3d 1060, 1066-67. But when the record contains sufficient evidence to rule on the merits of the claim and the issue is properly raised in an assignment of error on appeal, it may be addressed in the interest of judicial economy. Id. at 1067. If, on the other hand, the record does not contain sufficient evidence to fully explore a claim of ineffective assistance of counsel, the claim should be relegated to post-conviction proceedings. Id.

Here, the record is insufficient to fully consider defendant’s claim that counsel’s ineffective assistance rendered her guilty plea unknowing and involuntary. Based on the limited record here, defendant’s allegations of ineffective assistance of counsel would be more appropriately raised in an application for post-conviction relief in the trial court, where a full evidentiary hearing can be conducted, if necessary, and defendant can present evidence to support her allegations. Accordingly, we decline to consider the merits of defendant’s first assignment of error.

In defendant’s second assignment of error, she argues that the district court erred in its June 1, 2016 dismissal of her APCR. She contends that the court should have considered her APCR as a motion to withdraw her guilty plea. ■

In its June 1, 2016 ruling, the court dismissed defendant’s APCR pursuant to La. C.Cr.P. art. 924.1, which provides that “[a]n application for post-conviction relief shall not be entertained if the petitioner may appeal the conviction and sentence which he seeks to challenge, or if an appeal is pending.” In light of this provision, we cannot find the district court erred in dismissing defendant’s APCR as premature.

With regard to defendant’s contention that the court should have considered her APCR as a motion to withdraw her guilty plea, we find this is without merit because defendant had already been sentenced and was thus precluded from ^withdrawing her guilty plea by means of a motion to withdraw under La. C.Cr.P. art. 559(A). It is on this point that we respectfully .disagree with Judge Win-dhorst’s suggestion in his dissent that defendant may still file a motion to -withdraw her guilty plea. The basis of our disagreement regards whether defendant, whose imposition of sentence was “deferred”, under La. C.Cr.P. art. 893(E), has been “sentenced” for purposes of a motion to withdraw under La. C.Cr.P. art. 559(A) and for purposes of appealing a final judgment of conviction.

We concede that the law is need of clarity on this point, but are still persuaded that defendant has been “sentenced” such that she is precluded from filing a motion to withdraw and is permitted to appeal her judgment of conviction.

Louisiana Code of Criminal Procedure article 871(A) defines a “sentence” as “the penalty imposed by the court on a defendant upon a. plea of guilty, upon a verdict of guilty, or upon a judgment. of- guilt.” Under this definition, we are convinced that defendant was “sentenced” when, upon her plea of guilty, the court imposed two years of active probation, three years of inactive probation, and ordered her to pay restitution in the amount of-$52,710.20.

Yet despite the clarity of this definition, room for disagreement arises on account of the fact that La. C.Cr.P. art. 893(A) expressly provides a suspended sentence “shall be regarded as .a sentence for the purpose of granting or denying a new trial or appeal[,]” whereas La. C.Cr.P. art. 893(E) includes no such provision with regard to a deferred sentence. Accordingly, the inclusion of this language in La. C.Cr.P. art. 893(A) and its omission from La. C.Cr.P. art. 893(E) arguably supports the conclusion that the legislature did not intend "for a deferred sentence to be regarded as a sentence for purposes of new trial or appeal. Louisiana courts, | fihowever, have implicitly done so. See, e.g., State v. All Pro Paint & Body Shop, 93-1316 (La. 7/5/94), 639 So.2d 707, 710; State v. Webb, 13-611 (La. App. 5 Cir. 12/12/13), 131 So.3d 942, writ denied, 14-97 (La. 8/25/14), 147 So.3d 698; State v. Vicknair, 09-612 (La. App. 5 Cir. 1/26/10), 32 So.3d 238; State v. Puzzio, 08-484 (La. App. 5 Cir. 11/12/08), 1 So.3d 540; State v. Sander, 10-1640 (La. App. 4 Cir. 7/6/11), 69 So.3d 730, 732; State v. Deluzain, 09-1893 (La. App. 1 Cir. 05/07/10), 38 So.3d 1054, writ denied, 10-1318 (La. 1/14/11), 52 So.3d 898.

Thus, in view of the definition of “sentence” under La. C.Cr.P, art. 871(A) and the foregoing jurisprudence, we find that defendant has been “sentenced” for purposes of . a motion to withdraw guilty plea and for appealing a final judgment of conviction. Accordingly, the district court did not err. by declining to consider defendant’s APCR as a motion to withdraw her guilty plea.

This assignment of error is without merit.

ERRORS PATENT

The record was reviewed for. errors patent according to La. C.C.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d 175 (La. App. 5 Cir. 1990). Our review indicates the following errors patent require corrective action.

.First, there is a discrepancy between the sentencing transcript and the commitment minute entry. The transcript reflects that defendant’s sentence was deferred, while the commitment minute entry reflects that the sentence was both deferred and suspended. When there is a discrepancy between the commitment and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La. 1983). Accordingly, we remand the case for the district court to amend the commitment to correctly reflect the sentence as deferred. Furthermore, the Clerk of Court for the 24th Judicial District Court is ordered to transmit the original of the corrected commitment to the officer in charge of the institution to which ^defendant has been sentenced and to the Department of Corrections’ Legal Department. See State v. Long, 12-184 (La. App. 5 Cir. 12/11/12), 106 So.3d 1136, 1142.

Second, we find the district court failed to adequately comply with'the mandate of La. C.Cr.P. art. 896.1(A)(1) that “[t]he restitution payment shall be made, in discretion of the court, either in a lump sum or in monthly installments based on the earning capacity and assets of the defendant.”

At the restitution hearing on June 23, 2014, the court ordered restitution, instructed defendant to set up a payment plan with the Probation Collections Office, and advised her that periodic proof of payments will be required, with the first due on October 16, 2014. The court further informed defendant that she had 180 days, or until December 23, 2014, to pay the restitution in full. Under the payment plan set up by the collections office, defendant agreed to pay five monthly installments of $8,786.00, and a sixth of $8,780.20.

At the first proof of payment hearing on October 16, 2014, defendant acknowledged that she had only paid $500, but informed the court she was doing her best to comply with the restitution order in light of her limited means. The court instructed defendant to submit her pay stubs to the collection office to . determine her ■ income and ordered her back on November 10,. 2014.

We find this does not adequately comply with La. C.Cr.P. art. 895.1(A)(1) and so remand the matter with instructions to the district court to determine the manner of restitution payments after considering the earning capacity and assets of defendant. See State v. Webb, 13-611 (La. App. 5 Cir. 12/12/13), 131 So.3d 942, 947.

DECREE

For the foregoing reasons, defendant’s conviction and sentence, are affirmed. This matter is remanded to the district court for amendment of the commitment and I «for determination of the manner of restitution payments based on the defendant’s earning capacity and assets.

CONVICTION AND SENTENCE AFFIRMED; REMANDED WITH INSTRUCTIONS

WINDHORST, J.,

DISSENTS WITH REASONS

|nI respectfully dissent from the majority’s opinion and would dismiss this appeal for the following reasons.

This Court has appellate ‘jurisdiction over a final conviction where a sentence has been imposed. La. Const. Art. V, § 10; La. C.Cr.P. art. 912C(1); State v. Chapman, 471 So.2d 716 (La. 1985); State v. London, 316 So.2d 743 (La. 1975).

In this case, pursuant to the plea agreement, the imposition of defendant’s sentence was deferred, as required by La. C.Cr.P. art. 893E(l)(a). Pursuant to those provisions, the defendant was not sentenced, but was placed on pre-sentence probation. There was no commitment to the Department of Corrections. In other words, execution of sentence was not suspended subject to her compliance with conditions of probation; the defendant was given only the conditions of the pre-sen-tence probation, and her motive for compliance therewith was earning eligibility for the benefits of La. C.Cr.P. art. 893E(2) and possible subsequent expungement of her conviction (as opposed to serving a previously suspended sentence). Depending on the defendant’s compliance with and performance while on this pre-sentence probation, the trial court has the discretion to either dismiss the prosecution or impose an appropriate sentence, and in this case, the trial court still has that discretion.

| inIf, on the other hand, a trial court sentences a defendant, the defendant loses the benefits of La. C.Cr.P. art. 893E(2). In State v. Green, No. 08-KA-273 (La. App. 5 Cir. 2008), 997 So.2d 42, this Court stated:

As in Comardelle, the defendant in the instant case was not entitled to an expungement under LSA-R.S. 44:9(E)(1)(b) because her sentence was suspended, not deferred under LSA-C.Cr.P. art. 893(D). While the transcript, the commitment, and the waiver of rights form reflect that defendant’s guilty plea was entered under LSA-C.Cr.P. art. 893, there is no indication that the imposition of defendant’s sentence was to be deferred under Article 893(D). Further, the commitment reflects the trial court immediately imposed the hard labor sentence, suspended it, and committed defendant to the Department of Corrections for the execution of the sentence. As such, we find that defendant was not eligible for the benefit of dismissal afforded by LSA-C.Cr.P. art. 893(D), and therefore, was not entitled to expungement of her criminal record pursuant to LSA-R.S. 44:9(E)(1)(b). Citing State v. Comar-delle, 942 So.2d 1126 (La. App. 5 Cir. 9/26/06).

Prior to June 21, 2008, there were many cases in which defendants entered guilty pleas “under Article 893” clearly intending to avail themselves of the benefits of La. C.Cr.P. art. 893E(2), but were not entitled because the trial judge had mistakenly sentenced them. The legislature recognized this frequent dilemma and enacted La. C.Cr.P. art. 881.1A(3) as a remedial measure. It provides that if by “mutual mistake” the defendant was sentenced—instead of having his sentence deferred pursuant to La. C.Cr.P. art. 893E(l)(a)—the sentence may be reconsidered as if deferred, and the defendant may avail himself of the benefits of La. C.Cr.P. art. 893E(2). In the case before us, however, the trial judge followed La. C.Cr.P. art. 893E(l)(a) precisely and did not sentence the defendant, but deferred sentencing. Because the defendant in this case has not yet been sentenced, it is my opinion that this Court lacks appellate jurisdiction over defendant’s case.

|nTo the extent that defendant is seeking to challenge whether her guilty plea was entered knowingly and voluntarily, based on her claims of ineffective assistance of counsel, defendant may file a motion to withdraw her guilty plea with the trial court. The trial court has discretion to permit a withdrawal of a guilty plea at any time prior to sentencing pursuant to. La. C.Cr.P. art. 559A.

For these reasons I would dismiss this appeal and remand the case to the trial court for further proceedings.

      . 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).

      . La. C.Cr.P. art. 559(A) provides: "Upon motion of the defendant and after a contradictory hearing, which may he waived by the state in writing, the court may permit a plea of guilty to be withdrawn at any time before sentence.”

      . A defendant may only appeal from a final judgment of conviction when sentence has been imposed. See State v. Chapman, 471 So.2d 716 (La. 1985); State v. London, 316 So.2d 743 (La. 1975); State v. Moore, 260 La. 299, 256 So.2d 96 (1971); La. C.Cr.P. art. 912.

      . This is the effective date of Act 395 of the 2008 Ordinary Session, enacting C.Cr.P. art. 881.1 A(3).


author: WICKER, J. GRAVOIS, J., LILJEBERG, J.,

text:
    Johnna BARRON, ON BEHALF OF her husband, Michael BARRON v. Krystal Himel HUTZLER, Goldstar Electric, Inc. and Progressive Security Insurance Company
    NO. 16-CA-485
    Court of Appeal of Louisiana, Fifth Circuit.
    August 30, 2017
    COUNSEL FOR DEFENDANT/AP-PELLEE, KRYSTAL HIMEL HUT-ZLER AND PROGRESSIVE SECURITY INSURANCE COMPANY, John J. Erny, III

      COUNSEL FOR DEFENDANT/APPELLANT, LIBERTY MUTUAL INSURANCE COMPANY, H. Minor Pipes, III, Susan M. Rogge
    Panel composed of Judges Fredericka Homberg Wicker, Jude G, Gravois, Marc E. Johnson, Robert A. Chaisson, Stephen J. Windhorst, and Hans J. Liljeberg
   WICKER, J.

|! Liberty Mutual Insurance Company (“Liberty Mutual”) appeals the trial court’s judgment denying its motion for summary judgment and granting the motion for summary judgment filed by Progressive Security Insurance Company (“Progressive”) and Krystal Himel Hutzler. At issue before this Court is whether Ms. Hutzler’s verbal " cancellation of her Liberty Mutual policy was sufficient to effect cancellation of the policy. Because we find that the trial coúrt correctly determined that Ms, Hut-zler’s verbal request to cancel her Liberty Mutual insurance policy was insufficient to effect cancellation, we affirm the trial court judgment.

FACTS AND PROCEDURAL HISTORY

Ms. Hutzler obtained an automotive policy of insurance from Liberty Mutual, with an effective policy period from May IS, 2012 to May 13, 2013. On June 25, 2012, Ms. Hutzler purchased an automotive policy of insurance covering the same vehicle from Progressive, with an effective policy period-beginning on June 25, 2012. On July 10, 2012, Ms. Hutzler called Liberty Mutual to cancel her Liberty Mutual policy. While on the phone, Liberty Mutual conducted a policy review with Ms. Hutzler, after which Ms. Hutzler maintained her verbal request to cancel her policy. At Ms. Hutzler’s request, Liberty Mutual backdated her cancellation to June 25, 2012 (the date Ms. Hutzler purchased the Progressive policy). On July 10, 2012, Liberty Mutual sent Ms, Hutzler a final bill for $232.04, being the prorated premium amount due on her cancelled policy (ie., premium for the period from the policy’s May 13, 2012 inception date through the policy’s June 25, 2012 cancellation date). When Ms. Hutzler failed to pay the bill, |2Liberty Mutual sent hér an automated email on July 31, 2012, advising her that the prorated premium' balance due' oh her policy after cancellation needed to be paid immediately to avoid the bill being sent to a collection agency. On August 20, 2012, Liberty Mutual sent Ms. Hutzler’s account to a collection agency. On September 7, 2012, the collection agency received payment in the amount of $232.04 for the prorated premium amount due on Ms. Hutzler’s cancelled policy.

On July 31, 2012, Ms. Hutzler was involved in a' tragic automobile accident in which her vehicle collided with a motorcycle being driven by Michael Barron, resulting in serious personal injuries'to Mr. Barron. On August 25, 2012, Mr. Barron died and on June 18, 2013⅛ Johnna Barron, as plaintiff on behalf of herself and her deceased husband, filed a survival and wrongful death action against Ms. Hutzler and Progressive,,

On September 25, 2015, Progressive and Ms. Hutzler filed a third-party demand against Liberty Mutual, alleging that Ms. Hutzler’s Liberty Mutual policy was in effect on July 31, 2012, the date of the subject accident. The third-party • demand sought indemnity and/or contribution from Liberty Mutual for any and all amounts for which Ms. Hutzler was found liable.

On March 4, 2016, Liberty Mutual filed a motion for summary judgment, arguing that there was no indemnity or contribution available to Progressive or Ms. Hut-zler under the Liberty Mutual policy at issue because' that policy had been can-celled by Ms. Hutzler before the date of the subject accident. In response, Progressive and Ms. Hutzler filed a counter-motion for summary, judgment, seeking a. ruling that Liberty Mutual provided coverage to Ms. Hutzler for the subject accident, and asking the trial court to order Liberty Mutual to indemnify 1 ¡¡her for all amounts she is found liable to Mrs, Barron on the main demand as a result of the subject accident.

Following a hearing on the motions for summary judgment, in'a written partial final judgment rendered on June 2, 2016, the trial court denied Liberty Mutual’s motion for summary judgment, granted the motion for summary judgment filed by Progressive and Ms. Hutzler, and found that Liberty Mutual’s policy provided coverage to Ms. Hutzler for the July 31, 2012 accident. In its written reasons for judgment dated June 23, 2016, the trial court stated that it was “controlled” by the rulings of this Court and did not “have the option of ignoring [this Court’s] interpretation of La. R.S. 22:885” in Gandy v. United States Automobile Association, 97-1095 c/w 98-215 (La. App. 5 Cir. 10/14/98), 721 So.2d 34, writ denied, 98-2836 (La. 1/15/99), 736 So.2d 208. The trial court consequently found that La. R.S. 22:885 requires that an insured’s request to cancel his or her policy be in writing and, thus, Ms. Hutzler’s verbal request for cancellation was ineffective. Pursuant to this Court’s order, the trial .court issued an amended judgment, further ordering that Liberty Mutual indemnify Ms. Hutzler for any amounts she may be found liable to plaintiff, “up to the [Liberty Mutual policy’s] limits.” This timely appeal followed.

ANALYSIS

Appellate courts review a district court’s grant of summary judgment de novo, viewing the record and all reasonable inferences that may be drawn from it in the light most favorable to the non-movant. Parish of Jefferson v. Davie Shoring, Inc., 14-701 (La. App. 5 Cir. 2/11/15), 167 So.3d 925, 929, citing Bourgeois v. Boomtown, LLC of Delaware, 10-553 (La. App. 5 Cir. 2/15/11), 62 So.3d 166, 169. A motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to |4material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3).

Summary judgment procedure is favored and designed to secure the just, speedy, and inexpensive determination of every action, with specific, exceptions. La. C.C.P. art. 966(A)(2). The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or . defense, but rather to point out to the court the absence of factual support for one. or more elements essential to the adverse party’s claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. La. C.C.P. art. 966(D)(1); see also Paternostro v. Wells Fargo Home Mortg., Inc., 09-469 (La. App. 5 Cir. 12/8/09), 30 So.3d 45, 47-48.

La. R.S. 22:885, entitled “Cancellation by the insured; surrender,” provides, in pertinent part:

A. Cancellation by the insured of any policy which by its terms may be cancelled at the insured’s option or of any binder based on such [ ¡¡policy may be effected by written notice thereof to the insurer and surrender of the policy or binder for cancellation prior to or on the effective date of such cancellation. In the event the policy or binder has been lost or destroyed and cannot be surrendered, the insurer may in lieu of such surrender accept and in good faith rely upon the insured’s written statement setting forth the fact of such loss or destruction.
* * ⅜

(Emphasis added)

Likewise, La. R.S. 22:637, the precursor to La. R.S. 22:885, stated, in pertinent part:

A. Cancellation by the insured of any policy which by its terms is cancela-ble at the insured’s option or of any binder based on such policy may be effected by written notice thereof to the insurer and surrender of the policy or binder for cancellation prior to or on the effective date of such cancellation. In event the policy or binder has been lost or destroyed and cannot be so surrendered, the insurer may in lieu of such surrender accept and in good faith rely upon the insured’s written statement setting forth the fact of such loss or destruction.

(Emphasis added)

In its first assignment of error, Liberty Mutual argues that the trial court erred in relying on this Court’s decision in Gandy, supra, and its interpretation of La. R.S. 22:637, asserting that Gandy erroneously interpreted La. R.S. 22:637 (now La. R.S. 22:885) as mandating that the exclusive manner in which an insured can cancel his or her policy is by written request or surrender of the policy to the insurer. Liberty Mutual argues that Gandy is factually distinguishable and, thus, is not instructive to the facts of this case.

In Gandy, while the plaintiff was trading in a leased vehicle, the salesman at the dealership called the plaintiffs insured, United Services Automobile Association (“USAA”), to confirm that insurance was available and to inform USAA of the trade. The plaintiff asked the salesman to further inform USAA that he wanted to terminate the coverage on another vehicle, a Suzuki motorcycle, as of October 10, 1995. Sometime between 10:30 p.m. on October 10, 1995, and 6:00 a.m. on October 11, 1995, while the plaintiff was at work, his Suzuki motorcycle was stolen. The plaintiff made a claim with USAA, but the claim was ultimately denied because the plaintiff could not prove that the theft occurred during the policy period, that is before 12:01 a.m. on October 11, 1995. The plaintiff filed suit against USAA and then filed a motion for summary judgment on coverage. The trial court granted the plaintiffs motion for summary judgment. Gandy, 721 So.2d at 35.

IfiOn appeal, this Court considered La. R.S. 22:637 (now La. R.S. 22:885) to determine whether a verbal request to cancel a policy by the insured was sufficient to effect cancellation of the policy. Gandy, 721 So.2d at 37. This Court found that the legislature, in La. R.S. 22:637, set forth a mechanism by which an insured could validly cancel his or her policy. This Court specifically addressed the identical issue presently before us and held, “we find that a verbal request by the insured party to cancel the policy is not sufficient to effect cancellation - by the insured prior to the insurable event.” Gandy, 721 So.2d 34, 37. This is the current, binding law in this Circuit.

On appeal, Liberty Mutual argues that this Court’s interpretation of La. R.S. 22:637 (now La. R.S. 22:885) has been rejected by the Louisiana First Circuit in Erdey v. Progressive Sec. Ins. Co., 09-1115 (La. App. 1 Cir. 12/23/09), 31 So.3d 417, writ denied, 10-0123 (La. 4/5/10), 31 So.3d 364, and relies on Erdey’s analysis to support its argument that Ms. Hut-zler’s verbal cancellation of the Liberty Mutual policy was effective. In Erdey, the First Circuit was presented with the question of whether or not a verbal request by the insured to cancel a policy was sufficient to effect cancellation of the policy. The plaintiff in Erdey obtained an automotive policy of insurance, coincidentally also with Progressive, with an effective policy period from June 15, 2005 to June 15, 2006. Erdey, 31 So.3d at 417-418. On October 15, 2005, the plaintiff called Progressive and told a representative that he wanted to cancel his policy effective immediately. The next day, Progressive sent him a notice that his policy was cancelled as of October 15, 2005, and refunded his unused premium. On October 17, 2005, the plaintiff contacted Brown & Brown to obtain a new insurance policy. Though he did not have the necessary information at first, the plaintiff claims he purchased a liability policy through Brown & Brown effective immediately. On that same day, the plaintiff was involved in an automobile accident, damaging his vehicle. He |7submitted a proof of loss to Progressive; however, Progressive denied the claim on the basis that the policy had been can-celled prior to the accident. As a result, the plaintiff filed suit against Progressive, arguing that the Progressive policy was in effect at the time of the accident because Progressive failed to properly cancel the policy in writing, as required by Louisiana law and the terms of the policy. The trial court ruled in the plaintiff’s favor. Erdey, 31 So.3d at 418.

On appeal, the First Circuit considered the policy language, the language of La. R.S. 22:885, and also this Court’s decision in Gandy. Regarding Gandy, the First Circuit stated that it disagreed with this Court’s analysis to the extent it found the statute to be unnecessary if a policy could be cancelled by an insured absent a writing cancelled prior to the accident. Despite the statute’s title, which reads “Cancellation by the insured; surrender,” the First Circuit conclusively opined that the statute’s primary purpose is to address the return of an insured’s unused premiums upon cancellation. Erdey, supra. The First Circuit further concluded that the legislature intended for an insured to be able to cancel his or her policy in a manner other than those provided in the statute. It found that if the legislature had meant to limit methods of cancellation as to only those in the statute, “it could have used the word ‘shall’ or ‘must’ or some other definitive directive as it did with regard to the notice required by the insurer to effect cancellation.” Erdey, 31 So.3d at 420. The court further considered that the plaintiffs Progressive policy also used the permissive term “may” with regard to cancellation by the insured, and thus did not limit the insured to cancelling a policy in writing only. Id.

The starting point in the interpretation of any statute is the language of the statute itself. Faget v. Faget, 10-0188 (La. 11/30/10), 53 So.3d 414, 420. A law shall be applied as written when it is clear and unambiguous and its application does not lead to absurd consequences. La. C.C. art. 9. If, however, the law is susceptible to different meanings, the statute must be interpreted in a light best | ^conforming to the law’s purpose. La. C.C. art. 10. More specifically, if the words of the law are ambiguous, those words must be examined by looking at the context in which they occur and the text as a whole. La. C.C. art. 12.

The current split in the circuits, as well as the en banc consideration of this issue by this Court, demonstrates that the wording of La. R.S. 22:885 is not clear and unambiguous. Rather, it is susceptible to different meanings in the eyes of learned judges across this state. Given the ambiguity of La. R.S. 22:885 and the current posture of the law reflecting inconsistent interpretations of the law among the circuit courts of appeal, perhaps this issue is ripe for consideration by the Louisiana Supreme Court.

When the language of a’ statute is ambiguous, the Civil Code dictates the piroper method of interpretation is to pinpoint the purpose of the law and the legislative intent. We find that La. R.S. 22:885, which the legislature titled “Cancellation by the insured; surrender,” provides a means or method for an insured to cancel his,or her insurance policy. The statute provides that if the policy terms provide for cancellation, the insured may cancel the policy by written notice to the insurer and surrender of the policy or binder to the insurer prior to or on the effective date of such cancellation. Id. Additionally, the statute sets forth an exception to the second requirement (surrender of the policy), and allows for written notice alone to be sufficient “[i]n the event the policy or binder has been lost or destroyed and cannot be surrendered,” provided that the written statement sets forth the fact of such loss or destruction of the policy.' Id. Although the statute contains the traditionally permissive “may” language, this Court finds that the permissive language is related to the fact of cancellation, allowing an insured to | ^terminate his or her contract with the insurer, rather than the method of cancellation.

Upon en banc consideration of the record and applicable law, we find that Gandy is the applicable and instructive law in this Circuit. We therefore hold agáin that this Circuit’s interpretation of La. R.S. 22:885 instructs that an insured’s verbal request to cancel his or her insurance policy is ineffective.

Moreover, in this case, the language 'of the policy itself is similar to that provided in the statute. The policy language provides:

A. Cancellation. This policy may be can-celled during the policy period as follows:
1. The named insured shown in the Declarations may cancel by:
a. returning this policy to us; or
b. giving us advance written notice of the date cancellation is to take effect. (Emphasis through italics added.)

Accordingly, based on our above-stated interpretation of La. R.S. 22:885 and the permissive language contained in the Liberty Mutual policy itself, we find that Ms. Hutzler’s verbal request to Liberty Mutual on July 10, 2012 to cancel her policy was insufficient. Thus, Ms. Hutzler’s Liberty Mutual policy was in effect at the time of the subject accident and the trial court was correct in granting summary judgment in favor of Ms, Hutzler and Progressive as to the issue of coverage.

In its second assignment of error, Liberty Mutual asserts that the trial court erred in granting summary judgment on the issue of indemnity, ordering that Liberty Mutual must indemnify Ms. Hutzler for any amounts she is found liable, up to the amount provided in the Liberty Mutual policy. An action for indemnity | inis a separate substantive cause of action. Orlando v. E.T.I., 07-1433 (La. 12/12/08), 15 So.3d 951, 955 (quotations omitted)-. The Louisiana Supreme Court has stated that “[ijndemnity.. .means reimbursement, and may lie when one party discharges a liability which another rightfully should have .assumed... ”. Id. Although- a right of action for indemnity may be asserted through a third-party demand, as was filed -in this case, a cause of action for indemnity does not accrue until the party seeking indemnification or contribution suffers some loss, or is cast-in judgment. Id. at 958. Therefore, summary judgment on the issue of indemnity is inappropriate at this time. Accordingly, we reverse that portion of the trial court judgment ordering that Liberty Mutual indemnify Ms. Hutzler.

Accordingly, for the reasons provided herein, the trial court judgment granting Ms. Hutzler and Progressive’s motion for summary judgment, and denying Liberty Mutual’s motion for summary judgment, is affirmed in part, as to its finding that the Liberty Mutual policy at issue was in effect at the time of the July 31, 2012 accident, and reversed in part, as to the issue of indemnity.

AFFIRMED IN PART; REVERSED IN PART; REMANDED

GRAVOIS, J.,

DISSENTS WITH REASONS

|¶1 respectfully dissent from the majority’s opinion to affirm the .trial court’s June 2, 2016 partial final judgment that denied the motion for summary judgment filed by Liberty Mutual Insurance Company (“Liberty Mutual”) and granted the motion for summary judgment filed by Progressive Security Insurance Company (“Progressive”) and Krystal Himel Hutzler. Rather, for the following reasons, I would reverse both the trial court’s denial of Liberty Mutual’s motion for summary judgment and its grant of summary judgment in favor of Progressive and Ms. Hutzler. Further, because in my opinion it has been shown that there is no genuine issue as to material fact and that Liberty Mutual is entitled to judgment as a matter of law, I would also render judgment granting Liberty Mutual’s motion for summary judgment, finding that there is no coverage available under the Liberty Mutual policy for Progressive and Ms. Hutzler’s claims for indemnity and contribution, and would accordingly dismiss this matter with prejudice as to Liberty Mutual, at appellees’ costs.

As noted in the majority opinion, at issue before this Court is whether Ms. Hutzler’s undisputed verbal cancellation of her Liberty Mutual policy was sufficient to effect cancellation of the policy. Upon review, I respectfully acknowledge this Court’s interpretation of La. R.S. 22:637 (now La. R.S. 22:885) in Gandy, as well as the contrasting interpretation of La. R.S. 22:885 by the First Circuit in Erdey However, after due consideration and analysis of the facts and circumstances involved in Gandy, Erdey, and the present case, along with the pertinent language of La. R.S. 22:885, I agree with the First Circuit’s reasoning in Erdey that because permissive language is used in the statute, the legislature 12intended for an insured to be able to cancel his or her policy in a manner other than those provided for in the statute, ie., other than in writing or surrender of the policy. Just as the First Circuit found in Erdey, I would find that if the legislature had intended for it to be mandatory that cancellation by the insured occur only by written notice or surrender of the policy, the legislature could have used “shall” or some other definitive directive in the statute, rather than “may.” Corresponding statutes regarding cancellation by the insurer—specifically both La. R.S. 22:887 and La. R.S. 22:888 “—require mandatory compliance with the procedures set forth in the statute by using the phrase “only upon compliance with.” Such a phrase is noticeably absent from La. R.S. 22:885.

Further, importantly in my opinion, the Liberty Mutual policy in question also contains permissive language and would thus allow for cancellation by means other than in writing or surrender of the policy.

Also, in my opinion, the purpose of La. R.S. 22:885(A) is, in instances wherein the policy does not exclude a verbal cancellation at the insured’s option (as in the present case), to provide a method of effecting cancellation which is certain and indisputable. If the insurer accepts the verbal cancellation, and refunds or stops collecting the balance of the premium—as was done in the present case—11 asee no reason that the cancellation should not be effective, provided the policy does not exclude a verbal cancellation. This interpretation does not render La. R.S. 22:885(A) meaningless or unnecessary. Rather, if the insurer declines the requested cancellation, or requires a more onerous method of cancellation, the insured may, with certainty, cancel according to the method provided by La. R.S. 22:885(A).

Finally, in my opinion, the interpretation of La. R.S. 22:637 (now La. R.S. 22:885) by this Court in Gandy, as applied to the particular facts and circumstances of the present case, does not serve justice in the present case. In the present case, it is undisputed that on July 10, 2012—a full three weeks prior to Ms. Hutzler’s July 31, 2012 accident—Ms. Hutzler called Liberty Mutual and requested cancellation of her policy. From the record, it is clear that Liberty Mutual accepted this request for cancellation, backdated the cancellation at Ms. Hutzler’s request to June 25, 2012, and sent her a bill only for the prorated amount of her premium through the date of cancellation, noting on the bill that it had cancelled her policy per her request. Ms. Hutzler paid the prorated amount of her premium shortly after the bill was sent by Liberty Mutual to a collection agency. The facts are thus clear that the policy was cancelled by mutual agreement of Ms. Hutzler and Liberty Mutual. No evidence was presented that Ms. Hutzler was presented with any bill from Liberty Mutual for policy coverage at the time of the subject accident. Nor was any evidence presented that Liberty Mutual received any premium from Ms. Hutzler for coverage on her subject vehicle as of the time of the subject accident. Also, Progressive has readily admitted that it provided coverage for Ms. Hutzler’s subject vehicle involved in the subject accident effective from its policy inception date .of June 25, 2012 through the time of the subject accident. It is not appropriate, in my opinion, for Liberty Mutual to be cast in judgment and accordingly be held responsible for having to make payments to Ms. Hutzler Land/or Progressive under a policy that was undis-putedly verbally cancelled by Ms. Hutzler a full three weeks prior to the subject accident and for which Liberty Mutual un-disputedly received no premiums for coverage on her subject vehicle as of the time of the subject accident.

Accordingly, for the foregoing reasons, I respectfully dissent.

WINDHORST, J., DISSENTS

hi have considered the opinion of the majority, and I respectfully dissent for the reasons set forth by Judge Gravois.

LILJEBERG, J.,

DISSENTS

|J have considered the opinion of the majority, and I respectfully dissent for the reasons set forth by Judge Gravois.

      . In accordance with the policy of this Court, this appeal has been reviewed by this Court on banc. Chief Judge Susan M. Chehardy and Judge Robert M. Murphy have recused themselves from participating in this appeal.

      . This prorated bill included a $.04 unpaid balance carried over from Ms. Hutzler’s previous policy period with Liberty Mutual.

      . Mrs. Barron’s suit was originally filed in East Baton Rouge Parish, but was later transferred to Jefferson Parish (24th Judicial District Court),

      . Goldstar Electric, Inc, was also named as a defendant in said action; said entity is not involved in this appeal.

      . Although not relevant to our analysis, we point out that Ms. Hutzler verbally requested that her policy be cancelled retroactively. The language in La. R.S. 22:885 provides that an insured must give notice of cancellation "pri- or to or on the effective date of cancellation.” See also Walker v. Hebert, 13-495 (La. App. 3 Cir. 12/10/14), 155 So.3d 114, 117 (wherein the Third Circuit recognized long-standing jurisprudence in that circuit holding that an insured may not cancel his or her policy ret- , roactively).

        . See Whitley v. State, 11-0040 (La. 7/1/11), 66 So.3d 470 (wherein the Louisiana Supreme Court discussed an unrelated statute, which provided that' service of citation for the state "may be obtained” on various individuals. Although the Court applied the traditionally permissive "may” interpretation to hold that service may be effected on any of the individuals delineated in the statute, the Court implicitly found then that the language did not instruct that service "may be obtained'’ on any and all individuals, but only on the individuals delineated in the statute.- Similarly, La. R.S. 22:885 should be read to instruct that cancellation by the insured may be effected, only by the means delineated in the statute. Moreover, the Louisiana Supreme Court has recognized a jurisprudentially established exception to the general rule that "[t]he word ‘shall’ is mandatory and the word ‘may’, is permissive.” The Louisiana Supreme Court has found that ‘‘[i]n the'context of venue, this court has recognized that "the permissive ‘may’ and the mandatory 'shall' have often been interchanged.” Whitley, 66 So.3d at 477. This exception, at this time, has not been jurisprudentially extended to any other area of law.

      . Gandy v. United Services Automobile Association, 721 So.2d 34 (La. App. 5th Cir. 1998), writ denied, 98-2836 (La. 1/15/99), 736 So.2d 208.

      . Erdey v. Progressive Sec. Ins. Co., 09-1115 (La. App. 1 Cir. 12/23/09), 31 So.3d 417, writ denied, 10-0123 (La. 4/5/10), 31 So.3d 364.

      . La. R.S. 22:887 provides, in pertinent part:
      A. Cancellation by the insurer of any policy which by its terms may be can-celled at the option of the insurer, or of any binder based on such policy, may be effected as to any interest only upon compliance with either of the following: ... (Emphasis added.)

      . La. R.S. 22:888 provides, in pertinent part:

      B. Cancellation under this Section by the insurer of any policy or of any binder based on such policy, may be effected as to any interest only upon compliance with either or both of the following: ... (Emphasis added.)

      .Particularly, the Liberty Mutual policy contains the following pertinent language regarding cancellation by the named insured, to-wit:
      A. Cancellation. This policy may be can-celled during the policy period as follows:
      1. The named insured shown in the Declarations may cancel by:
      a. returning this policy to us; or
      b. giving us advance written notice of the date cancellation is to take effect.
      (Emphasis through italics added.)