text:
    STATE of Louisiana v. Christopher BAPTISTE
    NO. 16-KA-316
    Court of Appeal of Louisiana, Fifth Circuit.
    December 14, 2016

      COUNSEL FOR PLAINTIFF/APPEL-LEE, STATE OF LOUISIANA, Paul D, Connick, Jr., Terry M, Boudreaux
    COUNSEL FOR DEFENDANT/APPELLANT, CHRISTOPHER BAPTISTE, Lieu T. Vo Clark
    Panel composed of Fredericka Homberg Wicker, Jude G. Gravois, and Robert A. Chaisson '
   WICKER, J.

| defendant, Christopher Baptiste, appeals his convictions and sentences for distribution of heroin, aggravated criminal damage to property, aggravated battery, and resisting a police officer with the use of violence or threats of violence. Defendant’s appointed counsel has filed an appellate brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and further filed' a motion to withdraw as counsel of record. For the following reasons, we affirm defendant’s convictions and sentences and grant counsel’s motion to withdraw.

STATEMENT OF THE CASE

On January 27, 2014, the Jefferson Parish District Attorney filed a bill of information charging defendant with the following counts: (1) possession with intent to distribute heroin, in violation of La. R.S. 40:966(A); (2) aggravated criminal damage to property, in violation of La. R.S. 14:55; (3) aggravated battery, in violation of La. R.S. 14:34; and (4) resisting a police officer with the use of violence or threats of violence, in violation of La. R.S. 14:108.2.

Defendant eventually entered into a plea agreement wherein he pled guilty to distribution of heroin, rather than possession with intent to distribute heroin, on count one. At the commencement of the guilty plea Colloquy, defense counsel stated that defendant was pleading guilty as charged. However, the waiver of rights form signed prior to the -hearing reflects that defendant pled guilty to distribution of heroin. Moreover, during the guilty plea colloquy, defendant responded affirmatively when the trial judge asked him if he wished to plead guilty to distribution of heroin, and the judge accepted defendant’s guilty pleas as having been knowingly, intelligently, freely, and voluntarily made by defendant.

| ^Defendant also pled guilty as charged on all other counts alleged in the bill of information. In accordance with his plea agreement, defendant was sentenced to twelve years imprisonment in the Department of Corrections on counts one and two, ten years imprisonment in the Department of Corrections on count three, and three years imprisonment in the Department of Corrections on count four. The trial court ordered all of defendant’s sentences to be served concurrently.

At the conclusion of sentencing, the State filed a multiple offender bill of information as to count two, aggravated criminal damage to property, alleging defendant to be a second felony offender. However, defendant stipulated to being a second felony offender as to count three, aggravated battery. The trial court accepted defendant’s stipulation and vacated defendant’s sentence on count three. In accordance with the multiple offender plea agreement, the trial court sentenced defendant as a second felony offender to twelve years imprisonment in the Department of Corrections, without benefit of probation or suspension of sentence, to be served concurrently to the sentences previously imposed. The trial court further ordered defendant to pay restitution in the amount of $12,988.00, which had been previously stipulated by counsel for the State and defense as the total sum owed to victims of defendant’s fourth count, resisting arrest by force or violence.

On February 29, 2016, defendant filed an application for post-conviction relief requesting an out-of-time appeal, which the trial court granted on March 2, 2016.

DISCUSSION

Under the procedure set forth in State v. Benjamin, 573 So.2d 528, 530 (La. App. 4 Cir. 1990), defendant’s appointed appellate counsel has filed an Anders brief pursuant to Anders v. California, supra, and State v. Jyles, 96-2669 (La. 12/12/97), 704 So.2d 241, 242 (per curiam), asserting that she has thoroughly reviewed the trial court record and could find no non-frivolous issues to raise on appeal. Accordingly, appointed counsel requests to withdraw as counsel of record.

In Anders, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if he or she finds the case to be wholly frivolous after a conscientious examination of it. In State v. Jyles, the Louisiana Supreme Court explained that an Anders brief must demonstrate by full discussion and analysis that appellate counsel “has cast an advocate’s eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration.” Jyles, 704 So.2d at 241. An appellate court must conduct an independent review of the trial court record to determine whether the appeal is wholly frivolous. “When counsel files an Anders brief, an appellate court reviews several items: a) the Bill of Information to ensure that the charge .is proper, b) all minute entries to ensure that defendant was present at all crucial stages of the prosecution, c) all pleadings in the record, and d) all transcripts to determine whether any ruling of the trial court provides a basis for appeal.” State v. Dufrene, 07-823 (La.App. 5 Cir. 2/19/08); 980 So.2d 31, 33.

If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel’s motion to withdraw and affirm the defendant’s conviction and sentence. However, if the court finds any legal point arguable on the merits, it may either deny the motion and order the court-appointed attorney to file a brief arguing the legal point(s) identified by the court, or grant the motion and appoint substitute appellate counsel. Id.

In this case, appointed' appellate counsel’s brief demonstrates that after a detailed review of the record, counsel could find no non-frivolous issues to raise on appeal. The State agrees and urges this Court to grant defense counsel’s request to ^withdraw as counsel of record. An independent review of the record supports counsel’s assertion that there are no non-frivolous issues for appeal.

First, the bill of information properly sets forth the offenses charged and presents no non-frivolous issues for appeal. The bill of information plainly, concisely, and definitely states the essential facts constituting the offenses charged as well as sufficiently identifies defendant. See also generally La. C.Cr.P. arts. 464-466.

Second, the minute entries and commitment reflect that defendant appeared at each stage of the proceedings against him, including his arraignment, his guilty plea proceedings, and sentencing.

Further, defendant’s guilty plea agreement does not present any issues for appeal. Once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief. State v. McCoil, 05-658 (La.App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124. A guilty plea is constitutionally infirm if it is not entered freely and voluntarily, if the Boykin colloquy is inadequate, or when a defendant is induced to enter the plea by a plea bargain or what he justifiably believes was a plea bargain and that bargain is not kept. Id. None of these deficiencies are present here.

Although we note that the record reflects that defendant pled guilty to the uncharged offense of distribution of heroin, rather than the charged offense of possession with intent to distribute heroin in count one, we do not find that this raises any issue for appeal.

At the beginning of the colloquy of the guilty pleas, defense counsel stated that defendant “will withdraw his former pleas of not guilty and tender to the court pleas of guilty as charged.” However, the waiver of rights form, signed by defendant prior to entering guilty pleas, reflects that defendant was pleading guilty to distribution of heroin. When asked by the trial judge if he wished to plead guilty Rto distribution of heroin, defendant answered, “yes, sir,” and the judge accepted defendant’s guilty pleas as having been knowingly and voluntarily made. Moreover, the minute entry and commitment order reflect that defendant pled guilty to distribution of heroin.

La. R.S. 40:966(A) makes it unlawful to produce, manufacture, distribute, or dispense a Schedule I controlled dangerous substance (which includes heroin). La. R.S. 40:966(A) also makes it illegal to possess with the intent to produce, manufacture, distribute, or dispense a Schedule I controlled dangerous substance. Although both distribution of heroin and possession with intent to distribute heroin are prohibited by the same statute and subsection, they are separate and distinct crimes. See State v. Alexander, 08-580 (La.App. 5 Cir. 2/25/09), 8 So.3d 732, 738-39, writ denied, 09-717 (La. 12/11/09), 23 So.3d 912. Similarly, possession with intent to distribute heroin is not a responsive verdict to the charge of distribution of heroin.

While the bill of information charged defendant with possession with intent to distribute heroin, it is clear from his Boy-kin waiver and the colloquy transcript that defendant pled guilty to distribution of heroin. Therefore, we find that defendant pled guilty to distribution of heroin.

Though defendant pled guilty to an uncharged offense, this does not create an issue for appeal. A trial judge may accept a defendant’s knowing and voluntary guilty plea even if the plea is not responsive to that charged in the bill of information and the district attorney has not amended the bill of information to conform to the plea. State v. Jackson, 04-2863 (La. 11/29/05), 916 So.2d 1015, 1023. Defendant entered a free and voluntary guilty plea after properly being advised of his rights in accordance with Boykin. Although a nonresponsive guilty plea made without an amended bill might raise the concern that defendant did not | (¡understand the nature of the charges against him, in this case, the totality of the circumstances show otherwise. During the guilty plea colloquy and by the guilty plea form, defendant was informed of his right to a trial by jury or judge; the right to be presumed innocent until the State proves his guilt beyond a reasonable doubt; the right to force the State to call witnesses who under oath would have to testify against him at trial and to have defense counsel cross-examine each of those witnesses; the right to testify himself at trial if he chose to do so; the right to remain silent if he chose not to testify and not have his silence held against him or considered as evidence of his guilt; the right to present any witnesses that would testify on his behalf and/or present evidence that would be favorable to him; and the right to appeal any verdict of guilty that might be returned against him at trial.

Defendant stated that he understood the rights he was relinquishing by way of his guilty pleas and that he understood all the possible legal consequences of his guilty pleas and wished to plead guilty because he was in fact guilty. Defendant further stated that he was satisfied with the way his attorney and the trial court handled his case; he had not been forced, coerced, or threatened to enter his plea; and he understood the time delays to file a petition for post-conviction relief and appeal his sentences. Therefore, the transcript of the colloquy of the guilty pleas and the guilty plea form reflect that all constitutional requirements for accepting defendant’s guilty pleas were satisfied.

Next, we turn to an issue analogous to that discussed above in the context of the multiple offender bill of information and defendant’s stipulation thereto. At the conclusion of defendant’s guilty plea and sentencing hearing, the State introduced a multiple offender bill of information alleging that defendant was a second felony offender. The bill of information sought enhancement of defendant’s sentence resulting from his conviction on count two of the bill of information, aggravated criminal damage to property. However, in the multiple offender waiver of rights |7form and during the multiple offender colloquy, defendant stipulated to being a second felony offender as a result of his conviction on count three of the bill of information, aggravated battery.

A multiple offender bill of information “does not charge a crime but is merely the method of informing the sentencing court of the circumstances and requesting an enhancement of penalty.” State v. Alexander, 325 So.2d 777, 779 (La. 1976); see also, State v. Cureaux, 12-0335 (La.App. 4 Cir. 5/1/13), 116 So.3d 833, writ denied, 13-1270 (La. 12/2/13), 126 So.3d 499. In State v. Rowell, 306 So.2d 671, 675 (La. 1975), the Louisiana Supreme Court held that while a multiple offender bill must “inform the accused of the nature and cause of the accusation against him,” any information beyond informing the accused of a previous felony conviction within the time period established by La. R.S. 15:529.1 is unnecessary. A clerical error in the bill does not require a dismissal of the bill or reversal of a conviction if the error or omission does not mislead the defendant to his prejudice. La. C.Cr.P. art. 464; State v. Stevenson, 02-769 (La.App. 5 Cir. 1/28/03), 839 So.2d 340, 345, writ denied, 03-833 (La. 10/31/03), 857 So.2d 472. A defendant who fails to object contemporaneously to an alleged defect in a multiple offender bill is precluded from raising that issue on appeal. La. C.Cr.P. art. 841; State v. Biglane, 99-111 (La.App. 5 Cir. 5/19/99), 738 So.2d 630, 639.

Upon review of the multiple offender waiver of rights form and the hearing transcript, we find that defendant and his counsel were on notice that defendant was alleged to be a second felony offender pursuant to La. R.S. 15:529.1. The apparent error regarding which underlying conviction was being used to enhance defendant’s sentence does not invalidate defendant’s stipulation to the multiple offender charge. The waiver of rights form and the multiple offender proceeding gave defendant sufficient notice that his sentence was being enhanced on count three rather than count two. Moreover, enhancement under count three, rather than 1 «count two, of the bill of information resulted in exposure to a more favorable sentencing range for defendant. Accordingly, despite an error in the multiple offender bill, the absence of any prejudice to defendant renders this error harmless and requires no corrective action by this Court. See State v. Simmons, 03-1458 (La.App. 5 Cir. 5/26/04), 875 So.2d 1018, 1023. Furthermore, pursuant to La. C.Cr.P. art. 841, defendant’s failure to object during the multiple offender hearing renders this error abandoned on appeal.

Our review of the remainder of the multiple offender proceedings reveals no error. By way of his colloquy with the trial judge and his signed waiver of rights form, defendant indicated that he understood he was giving up his right to plead not guilty, his right to a hearing, and his right to remain silent. The trial judge advised defendant of his potential sentencing range and the actual sentence that would be imposed pursuant to defendant’s stipulation. Defendant told the trial judge that he understood the potential legal consequences of his stipulation and wished to stipulate to being a second felony offender. Defendant also stated that he was satisfied with the way his attorney and the trial court had handled the case and that he was not being forced, coerced, or threatened into stipulating to the multiple offender bill. The trial court found that defendant’s stipulation was made knowingly, intelligently, freely, and voluntarily. Accordingly, we find no error in the multiple offender proceedings.

Finally, defendant’s sentences do not present any non-frivolous issues to be raised on appeal. The imposed sentences fall within the sentencing ranges prescribed by statutes. See La. R.S. 40:966(B)(1); La. R.S. 14:55(B); La. R.S. 14:34(B); La. R.S. 14:108.2(C) and La. R.S. 15:529.1. Also, defendant was sentenced in conformity with a plea agreement. La. C.Cr.P. art. 881.2(A)(2) ^precludes a defendant from seeking review of his sentence imposed in conformity with a plea agreement, which was set forth in the record at the time of the plea. The record reflects that defendant was sentenced in conformity with the plea agreement and further that defendant’s sentences fall within the prescribed statutory sentencing ranges.

Upon an independent review of the record, we find that the record supports counsel’s assertions that the pleadings and proceedings leading to defendant’s convictions do not present any non-frivolous issues for appeal. We further find that appellate counsel’s brief adequately demonstrates by full discussion and analysis that she has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal.

ERRORS PATENT

Defendant requests an errors patent review. However, this Court routinely reviews the record for errors patent in accordance with La. C.Cr.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) regardless of whether defendant makes such a request. The record presents the following errors patent:

First, regarding the plea to the uncharged offense, we decline to set aside a guilty plea that was voluntarily and intelligently made on a technicality. Distribution of heroin and possession with intent to distribute heroin carry the same sentencing range. See La. R.S. 40:966(B)(1). By way of both the guilty plea colloquy and the guilty plea form, defendant was advised that he faced a sentencing range of five to fifty years at hard labor. Defendant was also advised by the guilty plea colloquy and through the guilty plea form that he would be sentenced to twelve years at hard labor. Thus defendant made an advantageous plea bargain.

| tnSecond, before accepting a guilty plea, a trial court must personally inform a defendant of the nature of the charge to which the plea is offered, including any restriction on benefits. La. C.Cr.P. art. 556.1(A)(1). ' Here, La. R.S. 40:966(B)(1) provides that “at least five years” of the sentence must be served without benefit of probation or suspension of sentence. However, the record shows no indication that defendant was informed of any restriction of benefits prior to entering his guilty plea. (Nevertheless, there is nothing in the record to suggest that any benefits or restriction thereof induced defendant t,o enter his guilty plea. Defendant’s guilty pleas were tendered voluntarily and knowingly, and he was sentenced in accordance with the terms of the plea agreement. Additionally, defendant has not assigned any errors regarding the trial judge’s omission. Accordingly, we find that the trial court’s failure to advise defendant of any restrictions on benefits was harmless error.

Likewise, we find that the trial court’s failure to affirmatively order that at least five years of defendant’s sentence on count one be served without benefit of probation or suspension of sentence requires no corrective action. A trial court’s failure to impose mandatory sentencing restrictions is. illegally lenient. See State v. Alfaro, 13-39 (La.App. 5 Cir. 10/30/13), 128 So.3d 515, 534, writ denied, 13-2793 (La. 5/16/14), 139 So.3d 1024. However, in this case, defendant’s sentence does not provide for any period of probation or suspended sentence on count one. Accordingly, we find that the trial judge’s sentence on count one imposed the legally mandated sentencing restriction.

Finally, our review reveals an error in the imposition of restitution during the multiple offender proceeding. During the original sentencing hearing, counsel for the State and defense stipulated to a total value of restitution in the amount of $12,988.00 as a result of medical expenses and property damages sustained by the victims of count four, resisting arrest by force or violence. However, the court [nordered the payment of restitution as part of the multiple offender enhanced sentence on count three, rather than on count four, the crime which led to the injuries compensable by restitution. Though the commitment order reflects that “[o]n count 4, the restitution is to be paid to the victims,” where there is a discrepancy between the minute entry and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La. 1983). Accordingly, we vacate the trial court’s restitution order and remand the case for imposition of the stipulated amount of restitution on count four.

CONCLUSION

Accordingly, for the reasons provided herein, defendant’s convictions and sentences are affirmed and appellate counsel’s motion to withdraw as attorney of record is hereby granted. We remand this matter to the trial court for correction the restitution order in accordance with this opinion.

CONVICTIONS AND SENTENCES AFFIRMED; MOTION TO WITHDRAW GRANTED; REMANDED FOR CORRECTION OF THE RESTITUTION ORDER

      . As will be discussed fully below, defendant was originally charged in count one of the bill of information with possession with intent to distribute heroin. However, he eventually pled guilty to distribution of heroin,

      . Though the trial judge sentenced defendant to imprisonment in die Department of Corrections, rather than to imprisonment at hard labor as required by the pertinent penalty statutes, this Court deems such a sentence necessarily at hard labor.

      . The responsive verdicts for distribution of a controlled dangerous substance are: guilty, attempted distribution, possession, attempted possession, and not guilty. La. C.Cr.P. art. 814(A)(48).

      . It is well settled that the law in effect at the time of the commission of the offense is determinative of the penalty which the convicted accused must suffer. State v. Sugasti, 01-3407 (La. 6/21/02), 820 So.2d 518, 520. The instant offenses were committed on April 16, 2014. Thus, we apply the penalties in effect at that time.


source: Caselaw Access Project

author: GRAVOIS, J.

license: Public Domain

text:
    STATE of Louisiana v. Carl SUTTON
    NO. 16-KA-317
    Court of Appeal of Louisiana, Fifth Circuit.
    December 14, 2016

      Terry M. Boudreaux, COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA.
    Jane L. Beebe, COUNSEL FOR DEFENDANT/APPELLANT, CARL SUTTON.
    In Proper Person, DEFENDANT/APPELLANT, CARL SUTTON.
    Panel composed of Fredericka Homberg Wicker, Jude G. Gravois, and Hans J. Liljeberg
   GRAVOIS, J.

| iDefendant, Carl Sutton, filed this appeal, seeking review of his habitual offender sentence. On appeal, he argues that the trial court erred in sentencing him as a habitual offender because the predicate conviction from Texas used in the habitual offender bill of information is not a felony. The State, in brief, concurs with defendant’s arguments that the predicate offense is ineligible to be used in the habitual offender bill of information. Both defendant and the State ask this Court to vacate defendant’s habitual offender sentence and remand the matter for further proceedings. Upon review, we find that the evidence and the law support the arguments made by defendant and joined in by the State, that an invalid predicate conviction was cited on the habitual offender bill of information. Accordingly, we vacate defendant’s habitual offender sentence, reinstate his original sentence, and remand the matter for further proceedings.

PROCEDURAL HISTORY

On June 13, 2013, the Jefferson Parish District Attorney filed a bill of information charging defendant, Carl Sutton, with attempted possession of cocaine in excess of 400 grams, in violation of La. R.S. 40:979 and La. R.S. 40:967(F). Defendant was arraigned on July 19, 2013 and pled not guilty to the charge. On February 18,2014, defendant withdrew his not guilty plea and pled guilty as charged. The trial judge then sentenced defendant to the Department of Corrections for seven years, six months. Also on February 18, 2014, the State filed a habitual offender bill of information alleging that defendant was a second felony offender, to which defendant stipulated. On that same date, the trial judge vacated defendant’s original sentence and resentenced defendant under the habitual offender statute to the Department of Corrections for seven years, six months, without the benefit of probation or suspension of sentence.

|2On July 28, 2014, defendant filed a pro se writ of habeas corpus arguing that he was not given credit for time served. On August 13, 2014, the trial judge denied that pleading. On August 31, 2015, defendant filed a motion to correct an illegal sentence, arguing that his enhanced sentence should be vacated because the predicate offense was a misdemeanor that was erroneously used in the habitual offender bill of information. On September 2, 2015, the trial judge ruled that the State or defendant could file documentary evidence or legal argument for consideration in connection with the motion to correct an illegal sentence on or before October 19, 2015. On October 13, 2015, defendant filed a motion to supplement the record with documentary evidence and legal argument in support of his motion to correct an illegal sentence. Attached to his motion was a Certificate of Disposition, the habitual offender bill of information in the instant case, an Order of Deferred Adjudication, an Order Affecting Community Supervision, and an indictment. On October 16, 2015, the trial court granted defendant’s motion to supplement the record.

Defendant filed a writ application with this Court. On February 18, 2016, this Court denied as moot defendant’s request for the district court to rule on his motion to supplement the record, but granted the writ application and remanded the matter for the district court to consider defendant’s pending motion to correct an illegal sentence as an application for post-conviction relief seeking an out-of-time appeal. See State v. Sutton, 16-KH-62 (La. App. 5 Cir. 2/18/16) (unpublished writ disposition). On February 29, 2016, the trial court granted defendant’s motion for an out-of-time appeal.

[«FACTS

Because defendant pled guilty, the underlying facts were not fully developed at a trial. Nevertheless, the State alleged in the bill of information that on or between March 27, 2013 and April 4, 2013, in Jefferson Parish, defendant violated La. R.S. 40:979 and La. R.S. 40:967(F) in that he knowingly or intentionally attempted to possess a controlled dangerous substance, to-wit: cocaine, in excess of 400 grams.

ASSIGNMENT OF ERROR

In his sole assignment of error, defendant argues, both through appointed counsel and in his pro se brief, that his underlying conviction from Texas was ineligible to be used as a predicate offense for the purpose of the habitual offender bill of information.

In reply, the State concurs that defendant was sentenced in error as a habitual offender. It explains that the predicate conviction from Texas was ineligible for use in a habitual offender proceeding because in the Texas proceeding, defendant was discharged, and the judge set aside the plea and dismissed the indictment. The State submits that this error should be corrected in the interest of justice. As such, the State asks this Court to uphold defendant’s conviction for attempted possession of cocaine in excess of 400 grams, vacate his habitual offender adjudication and sentence, and remand for further proceedings.

The record shows that on February 18, 2014, the State filed a habitual offender bill of information alleging that defendant was a second felony offender. The predicate offense alleged was a guilty plea on April 20, 2010 to possession of counterfeit records in the 179th District Court of Harris County, Texas, Case No. 1241540. The State indicated in the habitual offender bill of information that if the Texas offense had occurred in Louisiana, it would have been a violation of La. R.S. 14:223. Defendant stipulated to the habitual offender bill of information on February 18,2014.

In the instant case, defendant filed a motion to supplement the record with documentary evidence and legal argument in support of his motion to correct an illegal sentence. Attached to his motion was a Certificate of Disposition, the habitual offender bill of information in the instant case, an Order of Deferred Adjudication, an Order Affecting Community Supervision, and an indictment. On October 16, 2015, the trial court granted defendant’s motion to supplement the record. The documents attached to the motion to correct illegal sentence show that the Texas court deferred adjudication of guilt and placed defendant on community supervision, after which the deferred adjudication of guilt was terminated, defendant was discharged, and the case was dismissed. As such, it appears that the predicate offense used in the habitual offender bill was not a conviction. The State concedes this point.

La. R.S. 15:529.1 provides, in pertinent part:

A. Any person who, after having been convicted within this state of a felony, or who, after having been convicted under the laws of any other state or of the United States, or any foreign government of a crime which, if committed in this state would be a felony, thereafter commits any subsequent felony within this state, upon conviction of said felony, shall be punished as follows:

In State ex rel. Wilson v. Maggio, 422 So.2d 1121 (La. 1982), cited by defendant in his motion to correct an illegal sentence, the defendant contended that his adjudication in 1975 as a third felony offender was erroneous and his fifteen-year sentence was illegal because the State erroneously used a 1974 federal conviction as a predicate in the habitual offender bill of information. The Supreme Court found that the federal conviction could not be used to enhance the | ¿defendant's sentence because although it was a felony under federal law, it was not a felony under Louisiana law. Also, the Supreme Court determined that once the federal conviction was excluded, the 1967 conviction could not be used because more than five years had elapsed between the completion of the 1967 sentence and his commission of the subject offense. The Supreme Court held that the fifteen-year sentence was illegal and could be corrected at any time under La. C.Cr.P. art. 882. As such, it vacated the sentence that was imposed following the defendant’s erroneous adjudication as a habitual offender and remanded the matter for resen-tencing.

In State v. Reed, 11-1026 (La.App. 4 Cir. 11/30/11), 79 So.3d 492, cited by defendant in his motion to correct an illegal sentence, the defendant contended that the predicate offense was a misdemeanor rather than a felony as required by statute, and therefore, his enhanced sentence was illegal, relying upon State ex rel. Wilson v. Maggio, supra. The defendant pleaded guilty to attempted armed robbery and stipulated to the habitual offender bill of information. In accordance with a plea agreement, the district court sentenced the defendant as a habitual offender to twenty-five years imprisonment at hard labor. The defendant did not appeal his conviction and sentence. Many years later, the defendant filed a motion to correct an illegal sentence under La. C.Cr.P. art. 882, alleging that the predicate offense used to habitually bill him was not a felony conviction as required by La. R.S. 15:529.1(A). Without a hearing, the district court denied the motion, reasoning that the sentence was within the sentencing range for the crime of attempted armed robbery to which the defendant had pled guilty. The appellate court, however, found that the district court’s reliance on the number of years imposed on the defendant was misplaced, as the habitual offender sentence carried |fiwith it consequences that would not have flowed had he been sentenced to the same twenty-five years for only the underlying crime.

The appellate court found that, as in the Wilson case, the motion to correct an illegal sentence was based on the district court’s erroneous consideration of a misdemeanor as a predicate, that if the predicate was vacated, the enhanced sentence was illegal, and that the defendant properly raised this claim under La. C.Cr.P. art. 882. As such, the appellate court granted the writ, reversed the district court’s ruling summarily denying the motion to correct an illegal sentence, and remanded the matter for a hearing on the motion.

Though not exactly factually on point, these two cases hold that where it is shown that the predicate conviction is invalid for use for enhancement under La. R.S. 15:529.1, a court may, on appeal and pursuant to the authority found in La. C.Cr.P. art. 882, correct the illegal habitual offender sentence. In the instant case, we find that since the enhanced sentence was based on the invalid conviction from Texas used as a predicate in the habitual offender bill of information, the enhanced sentence is illegal and may be corrected under La. C.Cr.P. art. 882. Accordingly, we vacate defendant’s habitual offender adjudication and his enhanced sentence, reinstate the original sentence imposed on defendant, and remand the matter to the trial court for further proceedings.

ERRORS PATENT REVIEW

The record was reviewed for errors patent, according to La. C.Cr.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). The review reveals two errors patent that merit discussion.

First, the trial judge did not order defendant to pay the mandatory fíne as required by La. R.S. 40:979 and La. R.S. 40:967(F). However, since defendant |7appears to be indigent, as evidenced by his representation by the Louisiana Appellate Project, and his sentence resulted from a guilty plea, we decline to correct the illegally lenient sentence. See State v. McGee, 09-102 (La.App. 5 Cir. 9/29/09), 24 So.3d 235, 242.

Second, the transcript reflects that the trial judge did not order either the original sentence or the enhanced sentence to be served at hard labor; however, the commitment reflects that the trial judge ordered the original sentence and the enhanced sentences to be served at hard labor. The transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La. 1983). Nevertheless, the trial judge stated that the original sentence and the enhanced sentence were to be served in the Department of Corrections. Although the trial judge did not state that the sentences were to be served at hard labor, “a sentence committing a prisoner to the Department of Corrections is necessarily at hard labor.” State v. Lawson, 04-334 (La.App. 5 Cir. 9/28/04), 885 So.2d 618, 621 n.2, writ denied, 05-0244 (La. 12/9/05), 916 So.2d 1048. Accordingly, no corrective action is necessary.

CONCLUSION

For the foregoing reasons, defendant’s habitual offender sentence is vacated, defendant’s original sentence of seven years, six months at hard labor is reinstated, and the matter is remanded for further proceedings.

HABITUAL OFFENDER SENTENCE VACATED; ORIGINAL SENTENCE REINSTATED; REMANDED

      . It is noted that on June 20, 2016, appellatcounsel filed a brief in this Court pursuant Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), on behalf of defendant; however, on July 8, 2016, appellate counsel filed a supplemental brief raising one assignment of error. That same day, appellate counsel filed a motion to dismiss the motion to withdraw as attorney of record for defendant, which this Court granted.

      . Defendant did not specifically assign this error in his pro se brief; however, this is a summary óf his argument.

      . The State asserts that there are no grounds to vacate the guilty plea for attempted possession of cocaine in excess of 400 grams, as the record shows that defendant’s guilty plea was freely and voluntarily made, that the trial court explained to defendant the rights he was waiving, that the trial court sentenced defendant pursuant to the plea agreement; and that the sentence was beneficial to defendant and within statutory requirements. Defendant has not argued such.

      . La. C.Cr.P. art. 882(A) provides: "An illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review.”

      . La. R.S. 40:967(F)(1)(c) provides for a mandatory fine of not less than $250,000.00 and not more than $600,000.00. La. R.S. 40:979(A) provides: "Except as otherwise provided herein, any person who attempts or conspires to commit any offense denounced and/or made unlawful by the provisions of this Part shall, upon conviction, be fined or imprisoned in the same manner as for the offense planned or attempted, but such fine or imprisonment shall not exceed one-half of the longest term of imprisonment prescribed for the offense, the commission of which was the object of the attempt or conspiracy.”


text:
    WOODLANDS DEVELOPMENT, L.L.C., Anthony Reginelli, Jr., Shauna Landry Reginelli, Peter R. Steur, and Lee R. Steur v. REGIONS BANK, Soundra J. Temple and Johnson Property Group, L.L.C.
    NO. 16-CA-324
    Court of Appeal of Louisiana, Fifth Circuit.
    December 21, 2016

      COUNSEL FOR PLAINTIFF/APPELLANT, WOODLANDS DEVELOPMENT, L.L.C., ANTHONY REGI-NELLI, JR., SHAUNA LANDRY REGINELLI, PETER R. STEUR & LEE R. STEUR, Wiley J. Beevers, Shayna Beevers Morvant, Steven M. Mauterer
    COUNSEL FOR DEFENDANT/AP-PELLEE, REGIONS BANK, John A. Dunlap, J. Patrick Gaffney, Leann 0. Moses, Haley E. Nix
    Panel composed of Fredericka Homberg Wicker, Jude G. Gravois, and Robert A. Chaisson
   GRAVOIS, J.

|! Plaintiffs/appellants, Woodlands Development, LLC (‘Woodlands”), and Anthony Reginelli, Jr., Shauna Landry Reginelli, Peter R. Steur, and Lee R. Steur (collectively “the guarantors”), appeal the trial court’s December 10, 2015 judgment that granted Regions Bank’s (“Regions”) exception of res judicata regarding plaintiffs’ claims and causes of action, asserted in their fourth supplemental and amending petition, that the note and guarantees they signed in 2001 in favor of AmSouth Bank (now Regions) should be extinguished on the grounds of Regions’ alleged fraudulent conduct. After thorough review of the record, including all past appellate records of this matter, and the applicable law, we affirm the trial court’s grant of Regions’ exception of res judicata as to plaintiffs’ claims, asserted in their fourth supplemental and amending petition, that the guarantors’ liability on the guarantees should be extinguished on the grounds of Regions’ alleged fraudulent conduct.

FACTS AND PROCEDURAL HISTORY

This matter has been in litigation for many years and has been before this Court on multiple occasions. The first appeal was Woodlands Dev., L.L.C. v. Regions Bank, 11-263 (La.App. 5 Cir. 12/28/11), 83 So.3d 147, writ denied, 12-424 (La. 4/9/12), 85 So.3d 704 (hereinafter “Woodlands 11-263”), wherein plaintiffs sought reversal of the trial court’s grant of summary judgment in favor of Regions, dismissing plaintiffs’ suit for declaratory judgment brought under the Louisiana Credit Agreement Act, La. R.S. 6:1122, which sought, among other relief, extinguishment of the guarantees that the guarantors had signed on behalf of the principal debtor Woodlands, This Court affirmed the dismissal of plaintiffs’ suit. The facts of the matter are summarized therein as follows, to-wit:

|2In December of 1999, Woodlands purchased an apartment complex (the “property”) on Sandra Drive in New Orleans consisting of over 300 rental units. On June 28, 2001, Woodlands entered into a Loan Agreement with Am-South Bank, the predecessor to Regions. The loan was secured by a mortgage on the property, plus plaintiffs’ individual guarantees of Woodlands’ obligations to Regions. The loan matured on June 27, 2005, but was extended to October 27, 2005, and was then extended again to January 26, 2006. On that day, the parties entered into a Forbearance Agreement that extended the term of the loan until December 1, 2006 in order for plaintiffs to find a new owner for the property.
In September of 2006, Regions approved a purchase agreement between Woodlands and Johnson Property Group (“JPG”) and its principal, Soundra Temple. JPG purchased the property from Woodlands, assumed Woodlands’ note with Regions, and also paid a purchase price of $500,000 to Woodlands. According to the record, JPG paid $100,000 of the purchase price directly to Regions in order to bring the interest payments current. JPG executed a promissory note in favor of Woodlands for the remaining $400,000 owed on the purchase price, which was secured by a second mortgage on the property in favor of Woodlands. Temple and JPG personally signed guarantees of JPG’s obligations to Regions. A First Amendment to the Forbearance Agreement was executed whereby the loan was extended an additional year in.order to give JPG and Temple time to obtain permanent financing. Regions, JPG, Temple, and plaintiffs all executed the First Amendment in November of 2006, which extended the term of the loan until November 15, 2007 and under which plaintiffs remained as guarantors of Woodlands’ original loan with Regions.
A Second Amendment to the Forbearance Agreement was signed by all of the parties to the First Amendment in December of 2007, further extending the loan until December of 2008. Thereafter, on January 9, 2008, JPG sold the property to Crescent City Gates Fund; L.P. (“CCGF”), which assumed the indebtedness to- Regions. Plaintiffs alleged in their petition that they did not learn of this sale to CCGF until several months later, at a deposition of Donald Clark, JPG’s agent, in an unrelated matter. Plaintiffs also alleged that Regions knew of the contemplated sale to CCGF at the time the Second Amendment was executed, but did not inform them, which, they argued, breached the forbearance agreements. Neither Woodlands nor Regions entered into any written agreement with JPG'or CCGF in connection with the sale to CCGF, unlike the previous sale from Woodlands to JPG.
The sale from JPG to CCGF formed a basis for plaintiffs’ suit for a declaratory judgment against Regions seeking to void their guarantees to Regions on the underlying note and obligations in connection with the Loan Agreement and subsequent Forbearance Agreement and the amendments thereto. Plaintiffs alleged that Regions induced them to enter into the Second Amendment to the Forbearance Agreement by misrepresenting to them the true state of JPG/Temple’s financial health, by failing to conduct quarterly reviews |°of the project as per the forbearance agreements, and by failing to inform them of JPG’s failure to meet the benchmarks and other obligations in the First Amendment to the Forbearance Agreement, which actions of Regions plaintiffs alleged constituted fraud.
Plaintiffs argued that these misrepresentations by Regions damaged them in multiple ways, including releasing the collateral for the loan that Temple/JPG was contractually required to pay off by the end of the forbearance agreements without paying off the loan. They also argued that the sale to CCGF damaged them because the new buyer, CCGF, had no contractual obligation to renovate or even rent the complex, unlike the obligations of Temple and JPG under the First and Second Amendments to the Forbearance Agreement. Had Regions and JPG provided this information to plaintiffs prior to the signing of the Second Amendment to the Forbearance Agreement and the subsequent sale, plaintiffs argue they could have exercised several options regarding the property, including taking over the project again themselves, rather than allowing the sale to CCGF to be consummated, which they alleged was an underfunded “shell” company. Plaintiffs argued that Regions’ fraudulent conduct and misrepresentations to them to induce them to sign the Second Amendment to the Forbearance Agreement should thus relieve them of their written guarantees to the original loan.
Regions countered that there is no written credit agreement between Regions and plaintiffs, as is required by [La.] R.S. 6:1122, that purports to release plaintiffs from their obligations under their guarantees and the First and Second Amendments to the Forbearance Agreement, which ratified their guaranty agreements, prior to the full repayment of the loan. Thus, Regions argues, plaintiffs’ suit for a declaratory judgment must fail under [La.] R.S. 6:1121, et seq. ...
Plaintiffs also alleged in their opposition to the motion for summary judgment that they were prevented from conducting meaningful discovery because Regions had prevented the depositions of various bank officers who had allegedly mislead plaintiffs regarding the financial health of JPG and also “duped” them into signing the Second Amendment to the Forbearance Agreement only days before consummation of the sale of the property from JPG to CCGF.
The trial court heard the matter, after which it granted judgment for Regions, finding that the written credit agreements (the loan agreement, the guaranty agreements, and subsequent forbearance agreements) controlled, none of which purported to release plaintiffs from their continuing guarantees of Woodlands’ obligations on its loan from Regions, and therefore ruled in favor of Regions, dismissing plaintiffs’ claims against Regions.

Woodlands 11-263, 83 So.3d at 148-150. (Footnote added. Original footnotes omitted.)

This Court affirmed the trial court’s grant of Regions’ motion for summary judgment, reasoning that there was no evidence of any written credit agreement between Regions and plaintiffs, a requirement of La. R.S. 6:1122, that purported to relieve the guarantors of their obligations on the continuing guarantees on the note other than repayment in full. See Woodlands 11-263, 83 So.3d at 151-153.

In the meantime, prior to summary judgment being granted in favor of Regions on the declaratory judgment suit, Regions filed a reconventional demand against plaintiffs seeking payment of the note and enforcement of the guarantees. Ultimately, after other proceedings both in the trial court and this Court, Regions filed a motion for summary judgment on its reconventional demand, which sought to enforce payment of the note and enforcement of the guarantees. The trial court denied the motion in a judgment dated August 29, 2011, finding that plaintiffs’ allegations of fraud against Regions, asserted in their answer to Regions’ recon-ventional demand, constituted “affirmative defenses” thereto and created genuine issues of material fact that precluded judgment in favor of Regions. Regions sought this Court’s supervisory review of the trial court’s denial its motion for summary judgment. This Court denied Regions’ writ application. See Woodlands Dev. L.L.C. v. Regions Bank, 11-938 (La. App. 5 Cir. 10/19/11) (unpublished writ disposition).

While those matters were pending in this Court, plaintiffs sought further discovery regarding their allegations of fraud, which the trial court allowed to go forward. When Regions could not produce certain records, plaintiffs filed a motion for sanctions against Regions. The trial court granted the motion for sanctions, finding Regions’ electronic records retention policy to be in bad faith, Land dismissed Regions’ reconventional demand against plaintiffs with prejudice in a judgment dated June 21, 2012.

Regions appealed that judgment, and at the same time also appealed the earlier judgment denying its motion for summary judgment on its reconventional demand. This Court vacated the judgment dismissing with prejudice Regions’ reconventional demand, granted Regions’ motion for summary judgment to enforce payment of the note and enforcement of the guarantees against plaintiffs, and remanded for calculation of the current amount of Woodlands’ debt. See Woodlands Dev., L.L.C. v. Regions Bank, 12-754 (La.App. 5 Cir. 5/28/14), 141 So.3d 357, writ denied, 14-1732 (La. 11/7/14), 152 So.3d 179 (hereinafter “Woodlands 12-754”). Further, regarding plaintiffs’ fraud allegations against Regions, this Court held that the Louisiana Credit Agreement Act was not intended to insulate financial institutions from any and all liability that arise outside the parameters of a credit agreement, stating:

As previously noted in this opinion, the specific allegations of fraud made by Woodlands, which alleged conduct postdates the credit agreement by some six years, are not in regard to the negotiation for, or consummation of, its credit agreement with Regions, and therefore are clearly outside the parameters of the credit agreement. In our view, it would be inconsistent to find that Woodlands’ fraud allegations are not sufficient to raise a genuine issue of material fact for purposes of the motion for summary judgment on the credit agreement, yet find that those same fraud allegations are within the parameters of the credit agreement for purposes of the preclu-sive effect of [La.] R.S. 6:1122. While we disagree with the prior opinion’s adoption of Woodlands’ designation of their fraud allegations as “affirmative defenses” to Regions’ suit on the note, we find that the practical effect of the opinion (i.e., that Woodlands’ fraud allegations are still viable against Regions), is the correct result.
[La.] R.S. 13:4232(A)(1) provides: “A judgment does not bar another action by the plaintiff when exceptional circumstances justify relief from the res judi-cata effect of the judgment.” We find that such exceptional circumstances exist in this case because we agree with the prior opinion that Woodlands’ allegations of fraud are still viable, just not in the procedural posture of “affirmative defenses” to Regions’ suit on the note, We therefore reject Regions’ argument that res judicata precludes further litigation of Woodlands’ fraud allegations. | (While it is not entirely clear to this Court how the sale of the property to CCGF affected Woodlands’ security interests in the property itself, or how its obligations under the credit agreements were changed by the sale, Woodlands should nonetheless be given the opportunity to establish facts in support of their allegations. We therefore remand this matter to the trial court for further proceedings on Woodlands’ fraud allegations consistent with this opinion.

Woodlands 12-754, 141 So.3d at 365. (Footnote added.)

Thereafter, on August 20, 2015, plaintiffs filed their fourth supplemental and amending petition for damages, reiterating' the allegations of fraud against Regions previously made in their answer to Regions’ reconventional demand. Plaintiffs prayed therein for extinguishment of the guarantees and/or contracts of suretyship signed by plaintiffs, and also for damages for all fraudulent conduct and breaches of contract by Regions, and for punitive damages, attorneys’ fees, costs, and interest from date of judicial demand, as well as all other relief available.

In response to plaintiffs’ fourth supplemental and amending petition, Regions filed numerous exceptions, including an exception of res judicata expressly limited to plaintiffs’ asserted cause of action for ex-tinguishment of the guarantees. The trial court granted the exception of res judica-ta, finding that the issue of extinguishment of the guarantees had been previously litigated. However, the trial court did not dismiss the entire fourth supplemental and amending petition, only the claims and causes of action asserted by plaintiffs for extinguishment of the guarantees. The trial court granted several other exceptions, but gave plaintiffs time to amend their petition to cure the various defects noted in the judgment. This timely appeal followed.

ANALYSIS

Appellate courts review exceptions of res judicata using the de novo standard of review, because this exception presents legal questions. McLean v. Majestic Mortuary Servs., 11-1166 (La.App. 5 Cir. 5/22/12), 96 So.3d 571, 575.

JjjPlaintiffs acknowledge in brief that this Court previously granted Regions’ motion for summary judgment to enforce the note and the guarantees, and thus, the issue of the enforcement of the note and the guarantees is res judicata. They argue, however, that Regions’ conduct in withholding discovery to plaintiffs on their fraud allegations constitutes “exceptional circumstances” pursuant to La. R.S. 13:4232 and justifies an exception to the general rule of res judicata. Those “exceptional circumstances,” they argue, are Regions’ “intentional withholding of evidence and deposition testimony until after the ‘record of appeal’ was closed” in 2011. They argue that “the court has never been presented with the factual basis supporting [plaintiffs’] fraud claims Plaintiffs also argue that, now that they have obtained the relevant discovery, this Court should “enforce its prior order permitting [plaintiffs’] to develop and present their claims.”

At issue in this appeal is whether this Court’s “prior order,” in Woodlands 12-754, which allowed plaintiffs to assert their fraud allegations against Regions after granting, in that same opinion, summary judgment in favor of Regions on its recon-ventional demand (enforcing the note and the guarantees), served to allow plaintiffs to continue litigating their fraud allegations to extinguish the note and the guarantees. Upon review, for the following reasons, we find that it did not.

First, plaintiffs did, in their original petition filed in 2009, present the courts with Regions’ alleged fraudulent conduct surrounding the Second Amendment to the Forbearance Agreement and argued that such fraud should serve to extinguish the note and the guarantees. The original petition also asserted a cause of action for extinguishment of the guarantees under La. C.C. art. 3062. The issue of extinguishment of the note and the guarantees versus the enforcement thereof was decided against plaintiffs in Woodlands 12-754, as plaintiffs concede in brief.

Second, this Court’s “prior order” in Woodlands 12-754, allowing plaintiffs to proceed with development of their fraud allegations against Regions, was | slimited to “further proceedings on [plaintiffs’] fraud allegations consistent with this opinion.” Therein, this Court recognized that while the Louisiana Credit Agreement Act expressly prohibited an action by a debtor against a creditor based upon an oral credit agreement, and thus granted summary judgment in favor of Regions on its recon-ventional demand, enforcing the note and the guarantees, “[t]he Act is not intended to insulate financial institutions from any and all liability that arise outside the parameters of a credit agreement.” It is clear, therefore, that this Court’s “prior order” did not allow the retention and development of plaintiffs’ fraud allegations against Regions for the purpose of again arguing extinguishment of the note and the guarantees. Such a result would clearly be inconsistent with this Court’s opinion in Woodlands 12-754.

We further disagree with plaintiffs’ contention that “exceptional circumstances” exist that should allow them to keep litigating the issue of the extinguishment of the- note and the guarantees, under any theory of recovery. La. R.S. 13:4232(A) sets forth exceptions to the general rule of res judicata. It provides, in pertinent part:

A judgment does not bar another action by the plaintiff:

(1) When exceptional circumstances justify relief from the res judicata effect of the judgment;

This provision gives the court discretion to grant relief from the judgment because of exceptional circumstances. This discretion is necessary to allow the court to balance the principle of res judicata with the interests of justice. This discretion must be exercised on a case-by-case basis and such relief should be granted only in truly exceptional cases, otherwise the purpose of res judicata would be defeated. Schnell v. Mendoza, 13-922 (La.App. 5 Cir. 5/21/14), 142 So.3d 238, 243, quoting Arwood v. J.P. & Sons, Inc., 99-1146 (La.App. 5 Cir. 2/29/00), 759 So.2d 848, 850. As this Court noted in Schell, 142 So.3d at 243:

| ¡The First Circuit addressed the application of La. R.S. 13:4232 in Chaisson v. Oceanside Seafood, 97-2756 (La.App. 1 Cir. 6/29/98), 713 So.2d 1286, 1289. After analyzing various cases in which the exceptional circumstances provision had been considered, our brethren stated:
These cases suggest that the “exceptional circumstances” provision is likely to be applied most often in complex procedural situations, in which litigants are deprived of any opportunity to present their claims because of some quirk in the system which could not have been anticipated. “Exceptional circumstances” might also be applied to factual scenarios that could not possibly be anticipated by the parties or decisions that are totally beyond the control of the parties.

Upon review, we find that none of the above-mentioned “exceptional circumstances” exist in the present case. While this litigation has been protracted, it is not especially complex. Plaintiffs have asserted facts — that Regions committed fraud against them by, among other things, “duping” them into signing the Second Amendment to the Forbearance Agreement only days prior to the consummation of the sale of the property from JPG to CCFG — from the time they filed their original petition for declaratory judgment. These factual allegations, though perhaps not previously supported by evidence such as deposition testimony and affidavits that plaintiffs claim they now have, were found to be insufficient as a matter of law to extinguish the note and the guarantees under La. R.S. 6:1122. We find that the record as a whole fails to demonstrate that plaintiffs were deprived of an opportunity to present this claim because of a “quirk in the system,” or by unanticipated factual scenarios, or by decisions that were totally beyond their control. The reason that plaintiffs’ alleged fraud claims against Regions are not viable to extinguish the note and the guarantees is because no written credit agreement existed between plaintiffs and Regions that provided for extin-guishment of the note and the guarantees under the facts of this case. Accordingly, extinguishment of the note and the guarantees is not relief that is available to | mplaintiffs under the facts of this case, even if the alleged fraudulent conduct of Regions is later proven.

In light of the foregoing, we find that the trial court did not err in granting Regions’ exception of res judicata regarding plaintiffs’ claims that the note and the guarantees should be extinguished. This judgment does not otherwise prevent plaintiffs from developing and presenting their claims of fraud allegedly committed by Regions, just not for extinguishment of the note and the guarantees.

CONCLUSION

For the foregoing reasons, the trial court’s judgment that granted Regions’ exception of res judicata is affirmed.

AFFIRMED

      . The trial court entered a partial final judgment in favor of Regions Bank on December 10, 2015 that was certified as immediately appealable.

      . The discovery sought at that time, depositions of Regions’ officers, was disallowed because as evidence, as it was not a written credit agreement as per La. R.S. 6:1122, and thus could not serve to void the various written guarantees and forbearance agreements.

      . In the district court, Regions had argued that the dismissal of plaintiffs’ declaratory judgment action was res judicata precluding relitigation of plaintiffs’ fraud allegations.


author: MURPHY, J. WICKER, J.,

text:
    Lyle Joseph LUQUETTE v. GREAT LAKES REINSURANCE (UK) PLC and Ron Keller
    NO. 16-CA-422
    Court of Appeal of Louisiana, Fifth Circuit.
    December 21, 2016

      COUNSEL FOR PLAINTIFF/APPELLANT, LYLE JOSEPH LUQUETTE, Leonard J. Cline, Jr.

      COUNSEL FOR DEFENDANT/AP-PELLEE, GREAT LAKES REINSURANCE (UK) PLC AND RON KELLER, Isaac H. Ryan, Kermit L. Roux, III, Jimmy A. Castex, Jr.
    Panel composed of Fredericka Homberg Wicker, Robert A. Chaisson, and Robert M. Murphy
   MURPHY, J.

h Plaintiff, Lyle Luquette, has appealed the trial court judgment in favor of Great Lakes Reinsurance (UK) and Ron Keller. For the reasons that follow, we reverse the judgment of the trial court and enter judgment in favor of plaintiff.

FACTS AND PROCEDURAL HISTORY

On June 25, 2014, plaintiff filed a Petition for Damages alleging that he was injured when he slipped and fell on ice: on the ground of a carwash, which was owned by defendant Ron Keller and insured by defendant Great Lakes Reinsurance (UK). The matter proceeded to trial before a judge on February 23,2016,

At trial, plaintiff testified that at about 1:45 p.m. on January 7, 2014, he drove into the first bay at a carwash on Williams Boulevard in Kenner, Louisiana. He exited on the driver’s side of his 2-door Jeep Wrangler and walked around the back of the vehicle. As he walked around the other side of the vehicle, he decided to open the passenger’s door to get his jacket because he was cold. Plaintiff testified that as he grabbed the handle of the passenger door to open the door, he slipped and fell. Plaintiff, who was in good health and 35 years old at the time of the accident, was unable to get up. He called his mother to come assist him. While on the cement floor of the carwash bay, he took pictures of the ground of the carwash, which were admitted into evidence.

Both of plaintiffs parents came to his aid and took him to the emergency room of a nearby hospital. Plaintiff complained of injuries to his neck, back and shoulder. X-rays were taken of his chest at the hospital. He was given pain medication and released a short time later. On January 9, 2014, two days after the accident, plaintiff visited Dr. Ivo Barrone for complaints of pain in his neck, left shoulder and arm, and low back. He was prescribed an anti-inflammatory medication and a muscle relaxer. Physical therapy was also prescribed. Plaintiff |2attended some physical therapy sessions and performed home exercises two or- three times per week. Dr. Barrone ordered an MRI, which was performed on March 18, 2014. The MRI was interpreted by Dr. Lawrence Glorioso as showing a bulging disc at the L4-5 level. On April 2, 2014, Dr. Barrone referred plaintiff to an orthopedist. Plaintiffs last visit with Dr. Barrone was April 30, 2014.

Dr, David Wyatt, an orthopedist, examined plaintiff on April 11, 2014. Plaintiff complained of mid and low back pain, which he described as being 7 to 9 out of 10. Dr. Wyatt prescribed physical therapy, anti-inflammatory medication, and a muscle relaxer. Plaintiff returned to Dr. Wyatt on May 23, 2014, at which time he was discharged and told to return as needed.

Plaintiff returned to Dr. Wyatt on April 24, 2015 with complaints of low back pain. Dr. Wyatt prescribed anti-inflammatory medication and a muscle relaxer. When plaintiff returned to Dr. Wyatt on June 4, 2015 with continued complaints of low back pain, Dr. Wyatt recommended an epidural steroid injection. On June 18, 2015, plaintiff underwent an epidural steroid injection at the L4-5 level for continued complaints of low back pain. Plaintiff returned to Dr. Wyatt on July 16, 2015. A second epidural steroid injection at the same site was recommended and was performed on July 31, 2015.

At trial, plaintiff testified that he continues to experience low back pain. He continues to do home exercises and takes over the counter medication to treat this pain.

At the time of the accident, plaintiff was working as an insurance salesman and had a second job working at a bar. At the time of trial, he was no longer working as an insurance salesman; he was working at a restaurant and had a second job working at a bar. He testified that he did not miss any work as a result of this accident.

|sThe deposition of Dr. David Wyatt was introduced into evidence. Dr. Wyatt testified that plaintiff first visited him on April 11, 2014 for complaints of low back pain. He reviewed the films of the MRI taken in March 2014. He identified a small bulge at the L4-5 disc level on the sagittal views of the MRI. The bulge was not visible on the axial views. Dr. Wyatt prescribed physical therapy and anti-inflammatory medication. He discharged plaintiff on May 23, 2014 and told plaintiff to return as needed.

Plaintiff next visited Dr. Wyatt on April 24, 2015 stating that his low back pain had increased. Dr. Wyatt explained that because plaintiff had been treated conservatively with physical therapy and anti-inflammatory medication but continued to have pain, an epidural steroid injection was the next course of treatment. Plaintiff underwent two injections, which decreased plaintiffs pain. Dr. Wyatt opined that the fall at the carwash either caused or aggravated plaintiffs L4-5 disc bulge.

Plaintiff introduced numerous photographs of the carwash bay into evidence. The photographs, which were taken at the time of the accident, depict water running out of a hose and ice on the ground of the bay in which plaintiff was injured. Plaintiff also introduced weather reports into evidence which showed that at 1:45 p.m. on January 7, 2014, the temperature had been below 32 degrees for over eighteen hours.

The depositions of Ron Keller, the owner of the carwash, and Justin Olwell, Mr. Keller’s employee, were introduced into evidence. Mr. Keller testified that he opened his first carwash in 1977 and presently owned six carwashes. The carwash located on Williams Boulevard at which plaintiff was injured was opened in 1997. This carwash contained an automatic freeze system. Mr. Keller explained that when the temperature dropped below thirty-two degrees, this system comes on and J^turns on the hoses of the carwash to prevent the outside hoses from freezing. The system stays on and water runs continuously until the temperature goes above thirty-two degrees. There is nothing to alert Mr. Keller or his employees when the system comes on.

Mr. Keller testified that the carwashes are closed if the temperature drops below thirty-two degrees for “an extended time.” The carwashes are not closed when the temperature drops below thirty-two degrees “for one day.” Over the course of his career as a carwash owner, he had only closed the carwashes two or three times due to cold weather.

Mr. Keller could not recall if he had visited the Williams Boulevard carwash on January 7, 2014, but if he had seen ice at the carwash, he would have closed the carwash. Mr. Keller employed Justin Ol-well to perform maintenance and repairs on the carwashes. Mr. Olwell’s job duties included checking for hazards. Ronnie Ruzzoto was employed part-time to remove the trash from the Williams Boulevard carwash. There were no records kept as to when Mr. Keller or his employees visited the carwash. Mr. Keller never went more than two days without visiting the carwash.

Justin dwell testified that he had worked for Mr. Keller for eighteen or nineteen years. His job was to collect the money from the carwashes as well as to perform maintenance and repairs. There are no specific policies or procedures which he must follow with respect to his job duties. He does not visit every carwash every day. There are no records kept of when he visits which carwash. The longest period of time between his visits to each carwash is 36-48 hours.

Mr. Olwell explained that the automated freeze system circulates water through the hoses in the bays until the temperature rises above freezing. There is nothing to notify him when the automated freeze system goes on. It is not his job |fito monitor the weather for temperatures below thirty-two degrees. He did not recall ever closing the carwashes due to the presence of ice. He was never instructed to place signs to warn customers that there may be ice on the ground of the carwash.

The defense presented the testimony of Dr. John Joslyn, who was accepted by the court as an expert neuroradiologist. Dr. Joslyn reviewed the films of the MRI taken of plaintiffs low back. Dr. Joslyn opined that the MRI did not show a disc bulge at any level of plaintiffs lumbar spine. Dr. Joslyn further testified that if there was a disc bulge it would be visible on both the sagittal and axial views of the film. Dr. Joslyn identified no abnormalities or no bulging disc that would justify plaintiff undergoing epidural steroid injections. Dr. Joslyn expounded that the MRI showed an indent at the L3 level which is a common condition known as Schmorl’s node, which does not cause “any problem.”

At the conclusion of trial, the trial judge took the matter under advisement. Post-trial memoranda were submitted. On March 14, 2016, the trial judge rendered judgment in favor of defendants stating “[cjonsidering the law and evidence, this Court finds that the Plaintiff has failed to meet his burden of proof and finds no liability on the part of the defendant [sic] in this case.” The trial court did not issue any findings of fact or reasons for judgment. This timely appeal followed.

LAW AND DISCUSSION

On appeal, plaintiff argues that the trial court was clearly wrong in finding no liability on the part of defendant.

IfiThe appropriate standard for appellate review in this case is the manifest error-clearly wrong standard, which precludes the setting aside of a trial court’s finding of fact unless that finding is clearly wrong in light of the record reviewed in its entirety. Hayes Fund for the First United Methodist Church of Welsh, LLC v. Kerr-McGee Rocky Mt., LLC, 14-2592 (La. 12/08/15), 193 So.3d 1110, 1115-17. It is well settled that a court of appeal may not set aside a trial court’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” The Supreme Court has proclaimed a two-part test for the reversal of a factfinder’s determinations: (1) the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and (2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous). Lomont v. Myer-Bennett, 14-2483 (La. 06/30/15), 172 So.3d 620, 632-33; Stobart v. State through Dep’t of Transp. and Dev., 617 So.2d 880, 882 (La. 1993). Although deference to the factfinder should be accorded, the Louisiana Supreme Court has instructed that an appellate court has a constitutional responsibility to review the entire record and to determine whether, as a whole, it supports the judgment rendered by the trial court. Id. Nevertheless, even though we are required to give deference to the trial court’s findings, we are not obliged to “rubberstamp” all factual determinations made by the trial court. Lomont, supra.

Upon review of the record in this case in its entirety, we find that a reasonable factual basis does not exist for the trial court’s determination that plaintiff “failed to meet his burden of proof’ and' that there is “no liability” on the part of'the defendants.

La. C.C. art. 2317 provides: “We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for 17whom we are answerable, or of the things which we have in our custody.” La. C.C. art. 2317.1 provides:

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and. that he failed to exercise such reasonable care.

La. C.C. art. 2317.1, enacted in 1996, effectively abrogated the concept of “strict liability” in cases involving defective things and imposed a negligence standard based on the owner or custodian’s knowledge or constructive knowledge of the defect. Nicholson v. Horseshoe Ent., 46,081 (La.App. 2 Cir. 3/2/11), 58 So.3d 565, writ denied, 11-0679 (La. 5/20/11), 63 So.3d 980. To recover for damages caused by a defective thing, a plaintiff must prove that the thing was in the defendant’s custody, that the thing contained a defect which presented an unreasonable risk of harm to others, that this defective condition caused damage and that the defendant knew or should have, known of the defect. La. C.C. art. 2317.1. The defect must be of such a nature to constitute a dangerous condition, which would reasonably be expected to cause injury to a prudent person using ordinary care under the circumstances. Baudy v. Travelers Indem. Co. of Conn., 13-832 (La. App. 5 Cir. 4/09/14), 140 So.3d 125, 131.

The law requires a plaintiff seeking to recover under La. C.C. art. 2317.1 to prove that the defendant had actual or constructive knowledge of the vice or defect. The concept of constructive knowledge imposes a reasonable duty to discover apparent defects in things under the defendant’s custody. Boutin v. Roman Catholic Church of the Diocese of Baton Rouge, 14-313 (La.App. 5 Cir. 10/29/14), 164 So.3d 243, 246. Constructive knowledge can be found if the conditions that caused the injury existed for such a period of time that those Irresponsible, by the exercise of ordinary care and diligence, must have known of their existence in general and could have guarded the public from injury. Id.

Upon reviewing the record, we find that there is no evidence in the record to support the trial court’s finding that defendants are not liable for plaintiffs injury. Plaintiff introduced weather reports into evidence which showed that at 1:45 p.m. on January 7, 2014, the temperature had been below 32 degrees for over eighteen hours. The owner of the carwash, Mr. Keller, testified that this carwash contained an automatic freeze system. Mr. Keller explained that. when the temperature dropped below thirty-two degrees, this system comes on and turns on the -hoses of the carwash to prevent the outside hoses from freezing. He explained that the system stays on and water runs continuously until the temperature goes above thirty-two degrees. There is no mechanism to alert Mr. Keller or his employees when the system comes on. Mr. Keller testified that Mr. Olwell’s job duties included checking for hazards, Mr. Olwell testified that he was aware that the automatic freeze system, which ran water continuously through the hoses of the car wash, came on when the temperature dropped below thirty-two degrees. Mr. Olwell testified that it was not his job to monitor the outside temperature for temperatures below thirty-two degrees. There is no evidence as to when Mr. Keller or Mr. Olwell had visited the car wash prior to plaintiffs fall. Mr. Keller testified that if he would have seen ice at the carwash, he would have closed the carwash.

The -photographs introduced into evidence show that there is water running out of the hose of the carwash onto the ground of the carwash. The photographs depict that the wall directly below the hose and the cement floor of the carwash bay in which plaintiff was injured is covered with several patches-of clear ice.

| gOur review of the evidence presented by plaintiff indicates that plaintiff met his burden of proof under La. C.C. art. 2317.1. The evidence established (1) that the car-wash at which plaintiff was injured was in Mr. Keller’s custody, (2) that the carwash contained a defect, i.e., large patches of ice on the cement floor of the carwash bay, which presented an unreasonable' risk of harm to others, (3) that this defective condition, i.e., ice, caused plaintiff to fall, and (4) that the defendant knew or should have known of the defect, i.e., the presence of ice due to the activation of the automated freeze system. La. C.C. art. 2317.1.

Even though Mr. Keller was aware that the automatic freeze system was prone to create ice during freezing weather, he did not have any means in- place to protect users of the carwash in freezing weather, such as a mandatory employee inspection system, automatic closure of the carwash, or a sign at the carwash warning users of potential icy conditions on the cement floor of the carwash. Mr. Keller was at fault in creating the hazardous condition which resulted in Mr. Louquette’s fall.

Additionally, the Supreme Court has instructed that when “documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable factfinder would not credit the witness’s story, the court of appeal may find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination.” Stobart, 617 So.2d at 882. In this case, the defendant, Mr. Keller, testified that his carwash had an automated freeze system, which continually ran water through the hoses of the carwash bays when the temperature was below freezing, but he was unaware that the temperature had gone below thirty-two degrees on the day of plaintiffs accident. He further testified that had he visited the carwash and noted ice on the cement floor of the carwash bays, he would have closed the carwash. [inThe pictures introduced into evidence show several large patches of clear ice on the cement floor of the carwash bay where plaintiff fell. Although the trial court did not make an explicit credibility determination, we find that the trial court erred in ignoring Mr. Keller’s duty to protect patrons to his carwash from a defect that he created by ignoring the fact that the temperature was below thirty-two degrees which activated the automated freeze system thereby running water through the hoses of the car-wash bays and creating ice on the cement floor of the carwash bay.

For the foregoing reasons, we reverse the trial court judgment finding that defendants are not liable for plaintiffs fall.

Having made a determination that plaintiff carried his burden of proof under La. C.C. art. 2317.1, we must make a determination as to comparative fault under La. C.C. art. 2323. When a factfin-der does not reach an issue because of an earlier finding which disposes of the case, the appellate court, in reversing the earlier finding, must make a de novo determination of the undecided issues from the facts in the record. LeBlanc v. Stevenson, 00-157 (La. 10/17/00), 770 So.2d 766, 771-72.

Factors to be considered in allocating fault pursuant to La. C.C. art 2323 include: 1) whether the conduct was inadvertent or involved an awareness of the danger, 2) how great a risk was created by the conduct, 3) the significance of what was sought by the conduct, 4) the capacities of the actors, and 5) any extenuating factors which might require the actor to proceed with haste, without proper thought. Davis v. Vosbein, 12-626 (La.App. 5 Cir. 05/16/13), 119 So.3d 100, 102.

In applying these factors, we note that plaintiff testified that he had been to his office, then visited two clients prior to going to the car wash, thus he was aware lnof the low temperature. There was no compelling reason for plaintiff to wash his car at that particular time and there was nothing to stop him from waiting for warmer weather to wash his car. Further, the pictures presented by plaintiff depict suds as well as moisture on the cement floor of the carwash bay, thus, plaintiff should have been aware that the cement floor may be slippery. Finally, plaintiff testified that he was not looking at the cement floor of the carwash bay because he was looking at the signs in the carwash. For these reasons, we find plaintiffs conduct contributed to the fall and access him 25% contributory negligence.

We now turn to a determination of plaintiffs injuries and appropriate damages. Plaintiff submitted numerous medical records into evidence. The medical records indicate that plaintiff went to the emergency room immediately after falling and reported that he “was at a carwash today” and “slipped on some ice and fell to the ground.” Plaintiff complained of pain in his head, neck and back and described his pain as 7 out of 10. X-rays were taken and there was no evidence of fracture. He was given medication for pain and released.

On January 9, 2014, plaintiff was examined by Dr. Ivo Barrone for complaints of pain in his neck, left shoulder and arm, and low back. Dr. Barrone prescribed an anti-inflammatory medication, a muscle relaxer, and physical therapy. Although plaintiff did not attend all of the physical therapy sessions as prescribed, he testified that he performed home exercises two or three times per week. The medical records reflect that plaintiffs pain continued and Dr. Barrone ordered an MRI, which was performed on March 18, 2014. The MRI was interpreted by Dr. Lawrence Glorioso as showing a bulging disc at the L4-5 level. On April 2, 2014, Dr. Barrone referred plaintiff to an orthopedist. Plaintiffs last visit with Dr. Barrone was April 30, 2014.

112The orthopedist to whom plaintiff was referred, Dr. David Wyatt, examined plaintiff on April 11, 2014. Plaintiff complained of mid and low back pain, which he described as being 7 to 9 out of 10. Dr. Wyatt prescribed physical therapy, anti-inflammatory medication and a muscle relaxer. On May 23, 2014, Dr. Wyatt discharged plaintiff with instructions to return on an as needed basis.

Plaintiff again sought treatment from Dr. Wyatt for complaints of low back pain on April 24, 2015. Dr. Wyatt prescribed anti-inflammatory medication and a muscle relaxer. Plaintiff returned to Dr. Wyatt on June 4, 2015 with continued complaints of low back pain. Dr. Wyatt explained that because plaintiffs pain had not resolved with conservative treatment, he recommended an epidural steroid injection. On June 18, 2015, plaintiff underwent an epidural steroid injection at the L4-5 level for continued complaints of low back pain. Plaintiff returned to Dr. Wyatt on July 16, 2015. A second epidural steroid injection at the same site was recommended and was performed on July 31, 2015. Although the injections did not alleviate the pain completely, the medical records indicate that the pain decreased in severity.

Dr. Wyatt testified that because there was no MRI of plaintiffs back just prior to the fall, he could not say definitely that the disc bulge was caused by the fall. However, he explained that the fall either caused the bulge or aggravated the bulge. Dr. Wyatt further testified that when plaintiff returned to him in April of 2015, he reported no other intervening incidents, so he opined that plaintiff had an exacerbation of his injury from the fall.

We acknowledge that the defendants presented the testimony of a physician, hired solely for the purposes of this litigation, who opined that plaintiff did not have a bulging disc or any condition requiring epidural steroid injections. However, the general jurisprudential rule is that the testimony of a treating | ^physician is entitled to more weight than that of a physician consulted solely for the purposes of litigation. Barnes v. Bechtel Grp., Inc., 03-1484 (La.App. 5 Cir. 04/13/04), 873 So.2d 735, 738; Turner v. Delta Bev. Grp./Pepsi Am., 07-529 (La.App. 5 Cir. 11/27/07), 973 So.2d 764, 775. Based on the testimony of Dr. Wyatt, we find that plaintiff proved that he sustained an injury at the L4-5 level as a result of the slip and fall at defendant’s carwash.

When the trial court has made no award for damages because it found no liability on the part of defendant, the appellate court must make an award that is just and fair based on a de novo review of the record. See, Clement v. Carbon, 13-827 (La.App. 5 Cir. 04/09/14), 153 So.3d 460, 465. In conducting this type of de novo review, the appellate court is empowered to award an amount which represents appropriate compensation for the damages that are supported by the record. Id.

The record indicates that plaintiff injured his lower back in the fall and was treated for pain resulting from this injury for an extended period of time. Although plaintiff had undergone two epidural steroid injections for this pain, he testified at trial that he continued to experience pain. Based on our review of this record and awards for similar injuries, we find that plaintiff is entitled to $40,000 in general damages. Compare Lewis v. Jones, 11-1117 (La.App. 5 Cir. 5/22/12), 96 So.3d 559 ($40,000 general damage award aggravation of degenerative changes to spine, sporadic treatment, continued pain at trial); Ford v. Bituminous Ins. Co., 12-1453 (La.App. 3 Cir. 06/19/13), 115 So.3d 1253, 1258 ($50,000 general damage award for bulging disc and epidural steroid injections); Clement v. Carbon, supra ($30,000 award for low back injury, bulging cervical disc, one injection); Sanchez v. Dubuc, 12-526 (La.App. 5 Cir. 02/21/13), 110 So.3d 1140, 1146 ($47,462 award for ruptured disc without surgery, plaintiff still had pain 27 months after the | uaccident). In addition, we award special damages of $9,594.55 for medical expenses. These awards are decreased by 25% for plaintiffs comparative negligence.

CONCLUSION

We find that the trial court erred in finding plaintiff failed to meet his burden of proof and that there was no liability on the part of defendants. Given that the record is complete, after conducting a de novo review to adjudicate this matter, we find that plaintiff carried his burden to prove that he was injured when he slipped and fell on ice at a car wash owned and operated by defendant, Ron Keller. We further find that plaintiff has 25% comparative fault. Thus, we render judgment in favor of plaintiff, Lyle Luquette, and against defendants, Ron Keller and Great Lakes Reinsurance (UK), awarding Lyle Luquette $30,000.00 in general damages for past and future pain and suffering, as well as $7,195.91 in special damages.

REVERSED AND RENDERED

WICKER, J.,

CONCURS WITH REASONS

11 Although I agree fully with the outcome reached in this case, I respectfully do not believe that it is necessary for the Court to consider whether defendant had constructive knowledge of the defect under these facts. In this case, the defendant, Ron Keller, testified that he installed the automatic freeze system which caused the car wash hoses to run constantly whenever the outdoor temperature falls below freezing. Mr. Keller also testified that he knew ice could build up as a result of the continuously running hoses in freezing conditions. Mr. Keller created the unreasonably dangerous condition when he installed the automatic freeze system without simultaneously setting into place reasonable precautions to protect unsuspecting customers from the icy ground conditions caused by the constantly running hoses, such as an employee policy and procedure for inspecting the car wash in freezing conditions, automatic car wash closure during freezing conditions, or signs warning of icy ground conditions during freezing outdoor temperatures. Because Mr. Keller intentionally created the unreasonably dangerous condition himself, actual knowledge of the condition exists. Accordingly, the Court need not additionally inquire into the existence of constructive knowledge with its requisite period of existence requirement.

      . On March 10, 2014 the trial court issued a judgment in favor of defendant Great Lakes Reinsurance UK PLC. The judgment was then amended at defendants' request to include that the judgment was also rendered in favor of Ron Keller. The wording of the two judgments is identical except the second judgment includes the name of Ron Keller.

      . This code article requires that, in any action for damages, the degree or percentages of fault of all persons contributing to the injury shall be determined, regardless of the theory of liability. La. C.C, art. 2323.

      . Plaintiffs medical bills were admitted into evidence without objection.