source: Caselaw Access Project

author: PER CURIAM

license: Public Domain

text:
    IN RE: Jennifer E. GAUBERT
    NO. 2018-B-1980
    Supreme Court of Louisiana.
    February 11, 2019
    ATTORNEY DISCIPLINARY PROCEEDING
   PER CURIAM

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel ("ODC") against respondent, Jennifer E. Gaubert, an attorney licensed to practice law in Louisiana, but currently ineligible to practice.

FORMAL CHARGES

On April 6, 2012, respondent was a passenger in a taxi cab driven by Hervey Farrell. Respondent was highly intoxicated. At some point, Mr. Farrell and respondent had a sexual encounter in the vehicle. Mr. Farrell then used his cell phone to take a sexually explicit video of respondent.

Following the encounter, Mr. Farrell called 911 to report that he had been sexually assaulted by respondent. As a result, respondent was charged in New Orleans Municipal Court with simple battery. Mr. Farrell also filed a civil suit against respondent on March 1, 2013, alleging that he suffered tort damages as a result of her sexual advances in the cab.

On April 5, 2013, one year after the incident, respondent went to the Third District Station of the New Orleans Police Department to report that she was the victim of the crimes of extortion and video voyeurism perpetrated by Mr. Farrell. According to the police report, respondent claimed that her friend and attorney, Brigid Collins, flagged down a cab in the French Quarter and told the driver, Mr. Farrell, to take respondent to an address in Lakeview. Respondent admitted that she was intoxicated during the ride and got into the front seat and began kissing Mr. Farrell. Mr. Farrell later stopped the cab in the Lakeview area and used his cell phone to record a video of respondent, during which she exposed her genitalia. Respondent claimed that Ms. Collins received a copy of the video via e-mail and that Mr. Farrell indicated that if he received $ 1,000, the video and the charges he filed would "go away."

Mr. Farrell was later arrested on charges of video voyeurism and extortion. As a result of his arrest, Mr. Farrell spent about thirty hours in jail.

Following an investigation of respondent's complaint against Mr. Farrell, on October 1, 2013, the state charged respondent with one count of false swearing for the purposes of denying a constitutional right, a felony, in violation of La. R.S. 14:126.2. Respondent was arraigned and pleaded not guilty. She subsequently elected a bench trial.

On April 2, 2014, while the state charges were pending, respondent was tried in Municipal Court on the simple battery charge brought by Mr. Farrell. She was found guilty of that offense and fined costs. Following the denial of respondent's motion for new trial, her conviction of simple battery became final.

On June 13, 2014, the state amended the bill of information to charge respondent with one count of false swearing for the purposes of violating public health or safety, a felony, in violation of La. R.S. 14:126.1. On the same day, respondent pleaded not guilty to that charge.

On January 16, 2015, a one-day bench trial was held in Criminal District Court before Judge Arthur Hunter. The state called two witnesses: Ms. Collins and the police officer who took respondent's criminal complaint. Ms. Collins testified that she never received an e-mail or any other communication from Mr. Farrell or his attorney requesting $ 1,000 for the charges and the video to "go away." She stated that she did receive a copy of the video and that she received a demand for between $ 50,000 and $ 60,000 in connection with the settlement negotiations of the civil suit.

At the close of the state's case, respondent moved for a judgment of acquittal. Judge Hunter deferred his ruling. Respondent then called several witnesses who testified to seeing the sexual encounter in the cab. The witnesses denied having any knowledge of the extortion attempt. Respondent also testified on her own behalf.

At the end of the trial, Judge Hunter denied respondent's motion for a judgment of acquittal. Finding no evidence that Mr. Farrell or his attorney ever made a demand for $ 1,000 and crediting Ms. Collins' testimony that the $ 60,000 demand was in connection with the civil suit, Judge Hunter found respondent guilty of the lesser included offense of criminal mischief, a misdemeanor, based on her false report of extortion. On February 25, 2015, Judge Hunter denied respondent's motions for new trial and post-verdict judgment of acquittal. Judge Hunter sentenced respondent to serve one day in parish prison, suspended; one day of inactive probation with the condition that she not purchase or possess a gun during probation; and ordered her to pay costs.

Respondent appealed her conviction and sentence. The Fourth Circuit Court of Appeal affirmed, holding the record supported the district court's finding that respondent's report of an extortion threat was false. State v. Gaubert , 15-0774 (La. App. 4th Cir. 12/9/15), 179 So.3d 982. The court of appeal reasoned:

The district court credited the testimony of Mr. Farrell, Ms. Collins, and Officer Moran over the testimony of Ms. Gaubert and concluded that the State proved Ms. Gaubert's report of extortion was false. The demand for $ 60,000.00 was not a threat; it was a settlement demand in the context of a civil lawsuit. The record is devoid of any evidence, save for Ms. Gaubert's testimony, that Mr. Farrell or his attorney ever made a demand for $ 1,000.00. No other monetary demand was identified. Nor was an email or any other mode of communication documenting an extortion threat produced. The record thus supports the district court's finding that Ms. Gaubert's report to Officer Moran of an extortion threat was false. Viewing the evidence in the light most favorable to the prosecution, the State proved beyond a reasonable doubt Ms. Gaubert's guilt of criminal mischief. This assignment of error is without merit. [Internal footnote omitted.]

The court of appeal subsequently denied respondent's application for rehearing. Respondent then applied to this court for review. On January 23, 2017, we unanimously denied writs. State v. Gaubert , 16-0122 (La. 1/23/17), 215 So.3d 681. As such, her conviction of criminal mischief is final.

The ODC alleged that respondent's conduct violated Rule 8.4(b) (commission of a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer) of the Rules of Professional Conduct.

DISCIPLINARY PROCEEDINGS

In July 2017, the ODC filed formal charges against respondent, as set forth above. Respondent failed to answer the formal charges. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). No formal hearing was held, but the parties were given an opportunity to file with the hearing committee written arguments and documentary evidence on the issue of sanctions. Respondent filed nothing for the hearing committee's consideration.

Hearing Committee Report

After considering the ODC's deemed admitted submission, the hearing committee found that the factual allegations set forth in the formal charges were deemed admitted. The committee added that respondent "submitted nothing" and chose not to respond to the ODC. Based on those facts, the committee determined respondent violated Rule 8.4(b) of the Rules of Professional Conduct.

The committee determined respondent negligently, knowingly, and intentionally violated duties owed to the legal profession, causing actual harm to the legal profession. After considering the ABA's Standards for Imposing Lawyer Sanctions , the committee determined the baseline sanction is suspension. The committee did not mention the presence of any aggravating factors and noted that no mitigating factors were present.

In light of the above findings and after reviewing this court's prior jurisprudence addressing similar misconduct, the committee recommended respondent be suspended from the practice of law six months. The committee further recommended she be assessed with the costs and expenses of this proceeding.

In August 2018, respondent submitted a written response to the hearing committee's report. In her response, respondent disputed the committee's finding that she "submitted nothing." Respondent indicated that she met with Deputy Disciplinary Counsel James W. Standley, IV pursuant to a subpoena after she left the practice of law in 2012. She further indicated that in October 2013, she provided the ODC with a statement of facts. Respondent concluded by characterizing her convictions as "wrongful" and suggesting that she was not the perpetrator of a sexual assault upon Mr. Farrell.

Disciplinary Board Recommendation

After review, the disciplinary board acknowledged that the factual allegations of the formal charges were deemed admitted and proven, and are supported by the evidence submitted. The board also determined that the legal conclusions of the committee are supported by the factual allegations asserted in the formal charges and/or by the evidence submitted in support of the factual allegations. Based on these findings, the board concluded that the committee correctly applied the Rules of Professional Conduct.

The board determined respondent knowingly and intentionally violated duties owed to the public and the legal profession. The board noted that respondent was convicted of the crimes of battery and criminal mischief, which, by definition, involve intentional acts. The board determined that her actions caused significant harm to the victim of the crimes she committed and reflected adversely on the legal profession. After considering the ABA's Standards for Imposing Lawyer Sanctions , the board determined the baseline sanction is suspension.

The board found the following aggravating factors are present: a dishonest or selfish motive, multiple offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, refusal to acknowledge the wrongful nature of the conduct, and illegal conduct. The board found the following mitigating factors are present: absence of a prior disciplinary record and imposition of other penalties or sanctions.

Considering all of the circumstances, including respondent's convictions, her discontinuance of the practice of law six years ago, her failure to respond to the formal charges or participate in the proceeding before the committee, and her demeanor and presentation before the board panel, and considering the ABA Standards and after reviewing this court's prior jurisprudence addressing similar misconduct, the board recommended respondent be suspended from the practice of law for one year and one day. The board further recommended she be assessed with the costs and expenses of this proceeding.

Neither respondent nor the ODC filed an objection to the disciplinary board's recommendation.

DISCUSSION

In an attorney disciplinary proceeding based on the lawyer's criminal conviction, the issue of her guilt may not be relitigated. Because the lawyer's conviction, whether based on adjudication or guilty plea, is tantamount to a finding of her guilt beyond a reasonable doubt, the clear and convincing standard of proof that applies to disciplinary proceedings has already been satisfied. In re: Bankston , 01-2780 (La. 3/8/02), 810 So.2d 1113 ; Louisiana State Bar Ass'n v. Wilkinson , 562 So.2d 902 (La. 1990). In this type of proceeding, the sole issue to be determined is whether the crime warrants discipline, and if so, the extent thereof. Supreme Court Rule XIX, § 19(E); In re: Boudreau , 02-0007 (La. 4/12/02), 815 So.2d 76.

Respondent was convicted of simple battery and criminal mischief, thereby violating Rule 8.4(b) of the Rules of Professional Conduct. By her convictions, respondent violated duties owed to the legal profession, causing substantial actual injury to the public and to Mr. Farrell, who spent about thirty hours in jail as a result of respondent's false accusations of video voyeurism and extortion. These crimes, by definition, involve intentional acts. The baseline sanction in this case is suspension. The record supports the aggravating and mitigating factors as found by the disciplinary board.

With regard to crimes involving false police reports, the case of In re: Lightfoot , 11-1950 (La. 3/13/12), 85 So.3d 56, is instructive. In that case, a bankruptcy attorney deliberately filed a false bankruptcy pleading. Additionally, he counseled his clients to use fictitious names on their bankruptcy petition and counseled them to secure a temporary post office box and to list that address on the petition. The attorney was not charged with any crime. Based on this conduct, we imposed a six-month suspension, with all but thirty days deferred.

With regard to respondent's conviction for simple battery, the case of In re: Crabson , 13-0312 (La. 4/12/13), 115 So.3d 452, provides some guidance. In that case, the attorney was convicted of simple battery following an altercation with another shopper in a shopping center parking lot. We imposed a one year and one day suspension.

Based on these cases, and the aggravating factors present in this case, we agree that the one year and one day suspension recommended by the board is appropriate.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Jennifer E. Gaubert, Louisiana Bar Roll number 30375, be and she hereby is suspended from the practice of law for one year and one day. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court's judgment until paid.

Crichton, J., additionally concurs and assigns reasons.

Crichton, J., additionally concurs and assigns reasons.

I agree with the Court's imposition of a one year and one day suspension in this matter. I write separately to point out, as I have in the past, that I consider it troublesome when attorney respondents fail to participate meaningfully in the proceedings against them. See In re: Klaila , 18-0093 (La. 3/23/18), 238 So.3d 949 (Crichton, J., additionally concurring); In re: Reid , 18-0849 (La. 12/5/18), --- So. 3d ----, 2018 WL 6382109 (Crichton., J., dissenting) (noting that "lack of cooperation with ODC, the Hearing Committee, the Disciplinary Board, and this Court demonstrates [a] stunning indifference to this noble profession"). In my view, respondent's disdain for the disciplinary process and her disregard for the Rules of Professional Conduct warrant the suspension imposed.

      On June 1, 2017, respondent was declared ineligible to practice law for failing to comply with mandatory continuing legal education requirements. She is also ineligible to practice for failing to pay bar dues and the disciplinary assessment.


author: Hughes, J., concurring.

text:
    STATE of Louisiana v. John DRUMMER, Jr.
    No. 2018-K-1139
    Supreme Court of Louisiana.
    February 11, 2019
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, THIRD CIRCUIT, PARISH OF AVOYELLES
    Writ denied.
    HUGHES, J., concurs and assigns reasons.
   Hughes, J., concurring.

The statement of the minor child to her father is properly admissible. However, the later statement to the police officer is not "res gestae." Nor is the "other crimes" evidence admissible. But given the totality of the evidence, these errors are harmless.


text:
    STATE of Louisiana v. Kacey SEVERIN
    No. 2018-KK-1844
    Supreme Court of Louisiana.
    February 11, 2019
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT FOR THE PARISH OF ORLEANS
   PER CURIAM

Writ granted in part. The trial court abused its discretion in admitting evidence of the prior obstruction of justice charge against defendant, as such evidence does not aid the prosecution in "proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident" with respect to his second degree murder charge. La. C.E. art. 404(B). The application is otherwise denied, particularly insofar as it challenges the admissibility of evidence of defendant's prior act of engaging in a vehicle-to-vehicle shooting.

CLARK, J., would deny.


author: PER CURIAM:

text:
    STATE of Louisiana v. Berry CHANDLER
    No. 2018-KP-1350
    Supreme Court of Louisiana.
    February 11, 2019
    ON SUPERVISORY WRITS TO THE FOURTH JUDICIAL DISTRICT COURT, PARISH OF OUACHITA
   PER CURIAM:

Denied. Relator fails to show that the state withheld material exculpatory evidence in violation of Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). As to his remaining claim, relator fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

Clark, J., recused.


author: JOHNSON, C.J., would grant.

text:
    STATE of Louisiana v. Clarence E. DIXON
    NO. 2018-K-0542
    Supreme Court of Louisiana.
    February 11, 2019
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIFTH CIRCUIT, PARISH OF JEFFERSON
    Writ denied.
   JOHNSON, C.J., would grant.

HUGHES, J., would grant.

CRICHTON, J., would grant and docket and assigns reasons.

CRICHTON, J., would grant and docket and assigns reasons:

As the defendant in this matter has no crimes of violence on his record, and no history of firearms violations, I would grant and docket this matter to fully examine the record on the issue of excessiveness of sentence.


text:
    STATE of Louisiana v. Anthony Carnell WILLIAMS
    No. 2018-KH-0265
    Supreme Court of Louisiana.
    February 11, 2019
    ON SUPERVISORY WRITS TO THE FOURTH JUDICIAL DISTRICT COURT, PARISH OF OUACHITA
   PER CURIAM:

Denied. Relator does not identify an illegal term in his sentence, and therefore, his filing is properly construed as an application for post-conviction relief. See State v. Parker , 98-0256 (La. 5/8/98), 711 So.2d 694. As such, it is subject to the time limitation set forth in La.C.Cr.P. art. 930.8. Relator's application was not timely filed in the district court, and he fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189.

Relator has now fully litigated several applications for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE of Louisiana v. Jerry J. PINESTRAW
    No. 2018-KH-0227
    Supreme Court of Louisiana.
    February 11, 2019
    ON SUPERVISORY WRITS TO THE TWENTY-FIRST JUDICIAL DISTRICT COURT, PARISH OF LIVINGSTON
   PER CURIAM:

Denied. Relator fails to show that he received ineffective assistance of counsel under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As to his remaining claims, relator fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2. The application is also repetitive. La.C.Cr.P. art. 930.4.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE of Louisiana v. Thomas LAM
    No. 2018-KH-0108
    Supreme Court of Louisiana.
    February 11, 2019
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

Denied. Relator fails to show that he received ineffective assistance of counsel under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Relator also fails to show that the state withheld material exculpatory evidence in violation of Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). As to his remaining claims, relator fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE of Louisiana v. Leonard DOUGLAS
    No. 2017-KP-2068
    Supreme Court of Louisiana.
    February 11, 2019
    ON SUPERVISORY WRITS TO THE NINETEENTH JUDICIAL DISTRICT COURT, PARISH OF EAST BATON ROUGE
   PER CURIAM:

Denied. Relator fails to show that he received ineffective assistance of counsel under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Relator's remaining claims are repetitive. La.C.Cr.P. art. 930.4(A).

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended La.C.Cr.P. art. 930.4 to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in state collateral proceedings in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    IN RE: Brian L. MCCULLOUGH
    NO. 2019-B-0169
    Supreme Court of Louisiana.
    February 11, 2019
    ORDER
   Considering the Joint Petition for Interim Suspension filed by respondent, Brian L. McCullough, and the Office of Disciplinary Counsel,

IT IS ORDERED that Brian L. McCullough, Louisiana Bar Roll number 31256, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19.3, pending further orders of this court. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately.


text:
    IN RE: Aubrey E. DENTON
    NO. 2019-B-0014
    Supreme Court of Louisiana.
    February 11, 2019
    ATTORNEY DISCIPLINARY PROCEEDING
   PER CURIAM

The Office of Disciplinary Counsel ("ODC") commenced an investigation into allegations that respondent mismanaged his client trust account. Following the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline in which respondent admitted that his conduct violated Rules 1.15(a)(b)(f) of the Rules of Professional Conduct. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Aubrey E. Denton, Louisiana Bar Roll number 4880, be suspended from the practice of law for a period of one year and one day. This suspension shall be deferred in its entirety, subject to respondent's successful completion of a two-year period of probation governed by the conditions set forth in the petition for consent discipline. The probationary period shall commence from the date respondent and the ODC execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court's judgment until paid.


text:
    IN RE: Christopher G. YOUNG
    NO. 2019-B-0006
    Supreme Court of Louisiana.
    February 11, 2019
    ATTORNEY DISCIPLINARY PROCEEDING
   PER CURIAM

Respondent pleaded guilty to accessory after the fact to interstate transmission of obscene and child pornography images. Following the filing of formal charges, respondent and the Office of Disciplinary Counsel submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Christopher G. Young, Louisiana Bar Roll number 22189, be and he hereby is suspended from the practice of law for a period of one year and one day, retroactive to September 28, 2018, the date of his interim suspension.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court's judgment until paid.


text:
    IN RE: Lauren G. COLEMAN
    NO. 2018-B-2099
    Supreme Court of Louisiana.
    February 11, 2019
    ATTORNEY DISCIPLINARY PROCEEDING
   PER CURIAM

The Office of Disciplinary Counsel ("ODC") commenced an investigation into allegations that respondent employed a disbarred attorney as a paralegal in her law firm. Following the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline, in which the parties stipulated that the employment violated Rule 5.5 of the Rules of Professional Conduct. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Lauren G. Coleman, Louisiana Bar Roll number 14150, be suspended from the practice of law for a period of one year and one day. This suspension shall be deferred in its entirety, subject to respondent's successful completion of a one-year period of unsupervised probation. The probationary period shall commence from the date respondent and the ODC execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court's judgment until paid.


text:
    STATE EX REL. Jose ALFARO v. STATE of Louisiana
    No. 2017-KP-2150
    Supreme Court of Louisiana.
    February 11, 2019
    ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON
   PER CURIAM:

Denied. Relator fails to show that he received ineffective assistance of counsel under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As to his remaining claims, relator fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

Hughes, J., would grant to order an evidentiary hearing.


text:
    STATE of Louisiana v. James L. COLVIN
    No. 2017-KP-1840
    Supreme Court of Louisiana.
    February 11, 2019
    ON SUPERVISORY WRITS TO THE FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO
   PER CURIAM:

Granted. The district court conducted a hearing and properly concluded that the state was materially prejudiced in its ability to respond to, negate, and rebut the allegations of the petition as a result of events not under its control which have transpired since the date of original conviction. See La.C.Cr.P. art. 930.8(B). Therefore, respondent's application for post-conviction relief is dismissed.

Respondent has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Respondent's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, respondent has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE of Louisiana v. Sean Bernard NEWTON
    No. 2017-KP-0926
    Supreme Court of Louisiana.
    February 11, 2019
    ON SUPERVISORY WRITS TO THE FOURTEENTH JUDICIAL DISTRICT COURT, PARISH OF CALCASIEU
   PER CURIAM:

Writ granted. Relator has adequately demonstrated that his application for post-conviction relief, arguing several alleged violations of Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), overcomes the procedural bars of La.C.Cr.P. arts. 930.4(E) and 930.8(A) by proving application of the exception found in La.C.Cr.P. art. 930.8(A)(1). See State ex rel. Cormier v. State , 98-2111 (La. 12/18/98), 731 So.2d 274 ("[T]he discovery of new evidence excepting a claim from the prescriptive period of La.C.Cr.P. art. 930.8 would necessarily except a claim from the repetitiveness bars of La.C.Cr.P. art. 930.4...."). The matter is remanded to the district court for further consideration.

Weimer, J., would deny.

Guidry, J., would deny.

Genovese, J., recused.


text:
    STATE of Louisiana v. TAM LE
    No. 2018-KP-0085
    Supreme Court of Louisiana.
    February 18, 2019
    ON SUPERVISORY WRITS TO THE TWENTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF ST. TAMMANY
   PER CURIAM:

Denied. Relator fails to show he received ineffective assistance of counsel under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

Hughes, J., would grant and assigns reasons.

Hughes, J., dissents and would grant the writ.

In this case a police officer with twenty-two years experience testified before the jury that the victims were telling "one-hundred percent the truth," and a school counselor was accepted as an expert and testified that from her "professional perspective" that she saw nothing "inconsistent" with sexual child abuse. It cannot be said that the jury's verdict was surely attributable to these errors, and they are therefore not harmless.


text:
    IN RE: Justice of the Peace Terri M. CROSBY
    NO. 2019-O-0232
    Supreme Court of Louisiana.
    February 13, 2019
    ORDER
   Considering the motion for interim disqualification filed by Justice of the Peace Terri M. Crosby, and the concurrence thereto by the Judiciary Commission of Louisiana,

IT IS ORDERED, ADJUDGED AND DECREED that Justice of the Peace Terri M. Crosby, Ward 6, Tangipahoa Parish, State of Louisiana, be and she hereby is disqualified from exercising any judicial function during the pendency of further proceedings in this matter, pursuant to La. Const. art. V, § 25 (C) and Supreme Court Rule XXIII, § 27. This order shall be effective immediately.

IT IS FURTHER ORDERED that the joint motion for expedited consideration be and hereby is granted.


text:
    Sherry BOOTHE and Barry Boothe Individually and on Behalf of Their Minor Children, Amber and Amanda Boothe v. State of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT and Parish of East Baton Rouge
    NO. 2018-C-1746
    Supreme Court of Louisiana.
    January 28, 2019
    On Writ of Certiorari and/or Review, Nineteenth Judicial District Court, Parish of East Baton Rouge, No. 585,216, Division D; Court of Appeal, First Circuit, No. 2018 CA 0120.
    Granted.
    And, whereas, the Court has this date, pursuant to Article 5, Section 5, of the Constitution of Louisiana, made and issued the following order, to wit- "It is ordered that the writ of review issue; that the District Court and the Court of Appeal send up the record in Duplicate of the case: and that counsel for all parties be notified."
    Now, therefore, the said District Court and the Court of Appeal is hereby commanded, in the name of the State of Louisiana and of this Honorable Court, to send up forthwith to this Court, in accordance with Supreme Court Rule 1, at the City of New Orleans, the record in duplicate of the above-entitled case.


text:
    IN RE: Appeal of the DECISION OF the DISCIPLINARY BOARD NO. 18-PDB-053
    NO. 2018-OB-1900
    Supreme Court of Louisiana.
    January 28, 2019
    Leave to appeal denied.


text:
    STATE of Louisiana v. Anthony FARRIER
    NO. 2018-KH-1944
    Supreme Court of Louisiana.
    January 28, 2019
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE EX REL. Ahmed Rashad MORNING v. STATE of Louisiana
    NO. 2017-KH-1262
    Supreme Court of Louisiana.
    January 28, 2019
    Not considered. See La.S.Ct.R. IX § 6.


text:
    STATE EX REL. Lakeisha Shanae ADAMS v. STATE of Louisiana
    NO. 2017-KH-1301
    Supreme Court of Louisiana.
    January 28, 2019
    Not considered. See La.S.Ct.R. IX § 6.


text:
    Lloyd RICHARD (DOC# 125784) v. Willie J. MARTIN, Jr. - Sheriff, et al.
    NO. 2018-CP-1341
    Supreme Court of Louisiana.
    January 28, 2019
    Not considered. See La.S.Ct.R. IX, § 6.


text:
    BROOKLAWN DISPOSAL INDUSTRY, LLC and Brooklawn Disposal, Inc. v. LOUISIANA LAND ACQUISITIONS, LLC, Gordon Burr, Jr. and Earnest Mathis
    NO. 2018-CC-2087
    Supreme Court of Louisiana.
    January 28, 2019
    Stay denied. Writ denied.


text:
    Gloria JONES v. AMERICAN HOME ASSURANCE COMPANY, et al.
    NO. 2018-C-1374
    Supreme Court of Louisiana.
    January 28, 2019
    Denied.
    WEIMER, J., would grant and docket.
   GENOVESE, J., would grant in part as to the issue of legal interest only.


author: GUIDRY, J., would grant.

text:
    STATE of Louisiana IN the INTEREST OF D.K., Jr.
    NO. 2017-CK-2017
    Supreme Court of Louisiana.
    January 28, 2019
    Denied.
   GUIDRY, J., would grant.


text:
    STATE EX REL. Cornell MORRIS v. STATE of Louisiana
    NO. 2018-KH-0106
    Supreme Court of Louisiana.
    January 28, 2019
    Denied. Relator has previously exhausted his right to state collateral review and fails to show that any exception permits his successive filing. See State ex rel. Morris v. State, 15-1925 (La. 1/9/17), 208 So. 3d 877.


author: HUGHES, J., would grant.

text:
    Gerard MCGOVERN v. Timothy F. HAND and The Hand Law Firm, APLC
    NO. 2018-CC-1735
    Supreme Court of Louisiana.
    January 28, 2019
    Denied.
   HUGHES, J., would grant.


text:
    Brian LEWIS v. LOUISIANA STATE JUDICIAL REVIEW BOARD
    NO. 2018-C-1856
    Supreme Court of Louisiana.
    January 28, 2019
    Denied.


text:
    STATE of Louisiana v. Reginald HARRIS
    NO. 2018-KH-0164
    Supreme Court of Louisiana.
    January 28, 2019
    Denied. Untimely filed pursuant to La.S.Ct.R. X § 5.


text:
    FAMILY WORSHIP CENTER CHURCH, INC. On Its Own Behalf and Derivatively on Behalf of Health Science Park, L.L.C. v. Gary N. SOLOMON, Stephen H. Jones, Terry D. Jones, and Health Science Park, L.L.C.
    NO. 2018-C-1778
    Supreme Court of Louisiana.
    January 28, 2019
    Denied.


text:
    DIAMOND B CONSTRUCTION COMPANY, LLC v. LAFAYETTE AIRPORT COMMISSION
    NO. 2018-CC-1937
    Supreme Court of Louisiana.
    January 28, 2019
    Denied.


text:
    STATE EX REL. Edward James MCKINNEY v. STATE of Louisiana
    NO. 2017-KH-1181
    Supreme Court of Louisiana.
    January 28, 2019
    Not considered. See La.S.Ct.R. IX, § 6.


text:
    Paul O. SCHWARZENBERGER, M.D., and Clinical Oncology Research Associates, L.L.C. v. LOUISIANA STATE UNIVERSITY HEALTH SCIENCES CENTER- NEW ORLEANS and The LSU Board of Supervisors
    NO. 2018-CC-1966
    Supreme Court of Louisiana.
    January 28, 2019
    Denied.


text:
    STATE of Louisiana v. Demonta Deontre PRIER
    NO. 2018-KK-2098
    Supreme Court of Louisiana.
    January 28, 2019
    Denied.


text:
    STATE of Louisiana v. Charles JONES
    NO. 2018-KK-2102
    Supreme Court of Louisiana.
    January 30, 2019
    Denied.


text:
    Benny HERNANDEZ v. ASAP EMPLOYMENT SERVICE, INC., Louisiana Construction & Industry, CF Industries, and Excel Fab
    NO. 2018-C-1881
    Supreme Court of Louisiana.
    January 28, 2019
    Denied.
   JOHNSON, C.J., would grant.

HUGHE'S, J., would grant.


text:
    STATE of Louisiana IN the INTEREST OF A.A., A.A., and A.W.
    NO. 2018-CJ-2060
    Supreme Court of Louisiana.
    January 28, 2019
    Denied.


text:
    IN RE: COMMITTEE ON BAR ADMISSIONS CFN-946017
    NO. 2019-BA-0157
    Supreme Court of Louisiana.
    February 7, 2019
    Granted. Petitioner is allowed to take the Louisiana State Bar Examination. Upon satisfactorily passing the examination, petitioner may apply to this court for the appointment of a commissioner in accordance with Supreme Court Rule XVII, § 9, to take evidence and report to this court as to whether petitioner has the appropriate character and fitness to be admitted to the bar and allowed to practice law in the State of Louisiana.


text:
    STATE of Louisiana v. Dwight HARVEY
    NO. 2019-KK-0188
    Supreme Court of Louisiana.
    February 4, 2019
    Stay denied. Writ denied.


text:
    STATE of Louisiana v. Dwight HARVEY
    NO. 2019-KK-0172
    Supreme Court of Louisiana.
    January 31, 2019
    Stay denied. Writ denied.


text:
    STATE of Louisiana v. Sheri BELL
    NO. 2019-KK-0173
    Supreme Court of Louisiana.
    January 31, 2019
    Denied.


text:
    STATE of Louisiana v. Errol VICTOR, Sr.
    NO. 2016-KO-1516
    Supreme Court of Louisiana.
    February 11, 2019
    Not considered. See La.S.Ct.R. IX, § 6.


text:
    IN RE BAR ADMISSION OF CFN-2071
    NO. 2019-BA-0171
    Supreme Court of Louisiana.
    February 7, 2019
    Granted. Petitioner is allowed to take the Louisiana State Bar Examination. Upon satisfactorily passing the examination, petitioner may apply to this court for the appointment of a commissioner in accordance with Supreme Court Rule XVII, § 9, to take evidence and report to this court as to whether petitioner has the appropriate character and fitness to be admitted to the bar and allowed to practice law in the State of Louisiana.


text:
    IN RE: COMMITTEE ON BAR ADMISSIONS CFN-838880
    NO. 2019-BA-0181
    Supreme Court of Louisiana.
    February 7, 2019
    Granted. Petitioner is allowed to take the Louisiana State Bar Examination. Upon satisfactorily passing the examination, petitioner may apply to this court for the appointment of a commissioner in accordance with Supreme Court Rule XVII, § 9, to take evidence and report to this court as to whether petitioner has the appropriate character and fitness to be admitted to the bar and allowed to practice law in the State of Louisiana.


text:
    STATE of Louisiana v. Damon L. PATTERSON
    NO. 2019-KH-0061
    Supreme Court of Louisiana.
    February 11, 2019
    Denied.


text:
    STATE of Louisiana v. Wayne TERRIO
    NO. 2018-KK-2103
    Supreme Court of Louisiana.
    February 11, 2019.
    Stay denied. Writ denied.
   HUGHES, J., would grant.


text:
    Justin STOLLENWERCK, Individually and as Natural Tutor of His Minor Son, Ryse Stollenwerck v. Robert SCHWEGGMAN, Jr. and Scottsdale Insurance Company
    NO. 2018-C-1884
    Supreme Court of Louisiana.
    February 11, 2019
    Denied.
   JOHNSON, C.J., would grant.

HUGHES, J., would grant.


text:
    Annabelle BUGGAGE v. TOURO INFIRMARY
    Grace Buggage, Rodney Buggage, and Gail Holmes on Behalf of Their Deceased Mother, Annabelle Buggage v. American Home Assurance Company, Healthcare Casualty Insurance Limited, Aggreko, LLC and Touro Infirmary
    NO. 2018-C-1832
    Supreme Court of Louisiana.
    February 11, 2019
    Denied.


text:
    STATE of Louisiana v. James R. TOWNLEY, Jr.
    NO. 2018-KH-1908
    Supreme Court of Louisiana.
    February 11, 2019
    Denied.


text:
    Charles W. KOUBA and Jeri S. Kouba v. CITY OF NATCHITOCHES
    NO. 2018-C-1994
    Supreme Court of Louisiana.
    February 11, 2019
    Denied.


text:
    SUCCESSION OF Benjamin SANTIFER, Sr., et al.
    NO. 2018-C-2014
    Supreme Court of Louisiana.
    February 11, 2019
    Denied.


text:
    STATE of Louisiana v. Jordan HOLLERMAN
    NO. 2018-KK-2045
    Supreme Court of Louisiana.
    February 11, 2019
    Denied.
    GENOVESE, J., would grant for reasons assigned by Judge Love.


text:
    STATE of Louisiana v. Covonta MAGEE
    NO. 2018-KO-0509
    Supreme Court of Louisiana.
    February 11, 2019
    Denied.


text:
    STATE of Louisiana v. Darken ROBINSON
    NO. 2018-KK-2008
    Supreme Court of Louisiana.
    February 11, 2019
    Denied.
   JOHNSON, C.J., would grant.

CRICHTON, J., would grant.


text:
    Amanda BERTRAND v. PROGRESSIVE SECURITY INSURANCE COMPANY
    NO. 2018-C-2011
    Supreme Court of Louisiana.
    February 11, 2019
    Denied.


author: WEIMER, J., would grant.

text:
    CENTRAL EDWARDS v. TOWN OF GLENMORA, et al.
    NO. 2018-CC-1602
    Supreme Court of Louisiana.
    February 11, 2019
    Denied.
   WEIMER, J., would grant.

GUIDRY, J., would grant.

CRICHTON, J., would grant.


text:
    ST. BERNARD PORT, HARBOR & TERMINAL DISTRICT v. VIOLET DOCK PORT, INC., LLC
    St. Bernard Port, Harbor & Terminal District v. Violet Dock Port, Inc., LLC
    St. Bernard Port, Harbor & Terminal District v. Violet Dock Port Inc., LLC
    NO. 2018-C-1696
    Supreme Court of Louisiana.
    February 11, 2019
    Denied.
    WEIMER, J., would grant and docket.
    CRICHTON, J., would grant and docket.


text:
    Timothy MARTIN v. NATIONAL CITY MORTGAGE COMPANY
    NO. 2018-C-2046
    Supreme Court of Louisiana.
    February 11, 2019
    Denied.
   HUGHES, J., would grant.


author: GENOVESE, J., would grant.

text:
    STATE of Louisiana v. LaBroderick ALEXANDER
    NO. 2018-KO-0805
    Supreme Court of Louisiana.
    February 11, 2019
    Denied.
   GENOVESE, J., would grant.


text:
    ST. BERNARD PORT, HARBOR & TERMINAL DISTRICT v. VIOLET DOCK PORT, INC., LLC
    St. Bernard Port, Harbor & Terminal District v. Violet Dock Port, Inc., LLC
    St. Bernard Port, Harbor & Terminal District v. Violet Dock Port Inc., LLC
    NO. 2018-C-1692
    Supreme Court of Louisiana.
    February 11, 2019
    Denied.
    JOHNSON, C.J., would grant and docket.
    WEIMER, J., would grant and docket.
    HUGHES, J., would grant and docket.


text:
    Patricia CHANOVE v. PLAQUEMINES PARISH GOVERNMENT, Police Jury Associates of Louisiana, Inc., and XYZ Insurance Company
    NO. 2018-CC-2019
    Supreme Court of Louisiana.
    February 11, 2019
    Denied.
   HUGHES, J., would grant.


author: Judge Daniel L. Dysart

text:
    Kenneth H. LOBELL v. Cindy Ann Rosenberg DENN, et al.
    NO. 2018-CA-0559
    Court of Appeal of Louisiana, Fourth Circuit.
    DECEMBER 19, 2018
    Roderick R. Alvendia, ALVENDIA KELLY & DEMAREST, L.L.C., 909 Poydras Street, Suite 1625, New Orleans, LA 70112, Matthew L. Pepper, LAW FIRM OF WONDERLY & PEPPER, 25211 Grogans Mill Road, Suite 450, The Woodlands, TX 77380, COUNSEL FOR PLAINTIFFS/APPELLANTS
    Harry Rosenberg, PHELPS DUNBAR, L.L.P., 365 Canal Street, Suite 2000, New Orleans, LA 70130-6534, Brian D. Katz, Herbert A. Cade, HERMAN HERMAN & KATZ, L.L.C., 820 O'Keefe Avenue, New Orleans, LA 70113, COUNSEL FOR DEFENDANTS/APPELLEES/PLAINTIFFS IN RECONVENTION
    (Court composed of Judge Daniel L. Dysart, Judge Joy Cossich Lobrano, Judge Dale N. Atkins )
   Judge Daniel L. Dysart

This action, a commercial lease dispute, has been the subject of protracted litigation, resulting in numerous decisions over the years from this Court and from the Louisiana Supreme Court. What remains before this Court are concrete, distinct issues arising from a March 23, 2018 judgment appealed by plaintiffs-appellants, Kenneth H. Lobell and K.H.L. Canal, L.L.C. (hereafter, collectively, "Lobell").

A separate appeal from this judgment was taken by defendants-appellants, Cindy Rosenberg Denn, Craig Rosenberg, Ricky Rosenberg, Harry Rosenberg, Lenore Rosenberg Bramblett, Ann Rosenberg Silberman, Carla Rosenberg Waggoner, Paige Rosenberg Hirschkop, Rosalie Rosenberg Samuelson, and Larry Rosenberg, and 2025 Canal Street, L.L.C. (hereafter, collectively, the "Rosenbergs"), also decided this date.

As will be discussed more fully here, we have reviewed the record in its entirety and we affirm the trial court's judgment as to the issues raised in this appeal, finding no abuse of the trial court's discretion in failing to amend the judgment. We also grant the Rosenbergs' Motion to Strike Lobell's reply brief, but decline to award sanctions.

FACTS AND PROCEDURAL BACKGROUND

This case has a lengthy history which has been detailed in several decisions and we summarize those facts as follows.

The lease at issue, concerning property located at 2025 Canal Street, New Orleans, Louisiana, was originally executed in 1957 between Simon and Herman H. Rosenberg to Eagle Enterprises, Inc. for a 60 year term, expiring on May 31, 2017. In 1997, Mr. Lobell acquired the leasehold interest from the then-leaseholder and executed a "Consent and Agreement" ("lease") with the Rosenbergs (the heirs of Simon and Herman Rosenberg), by which Mr. Lobell assumed the terms of the original lease. Among the requirements of the lease were the obligations of Lobell to pay monthly rent, to pay all ad valorem taxes, maintain insurance coverage of $2.6 million, place any insurance proceeds in a trust for the lessors to use to repair the building, repair damages within six months of the date of damage and generally keep the building in good repair.

The leased building was damaged in the aftermath of Hurricane Katrina and disputes arose between Lobell and the Rosenbergs, and, in particular "the disbursement and use of insurance proceeds, the payment of rent, and repairs to the building." The Rosenbergs then sent a default letter to Lobell on December 28, 2007, following which Lobell sent a partial payment of past due rents which the Rosenbergs refused to accept. After sending a supplemental default letter to Lobell on February 12, 2008, further detailing the manner by which the Rosenbergs believed Lobell had violated the lease, the Rosenbergs sent Lobell a notice to vacate the premises on May 29, 2008.

Lobell then instituted this action as a petition for a writ of possession and a possessory action for damages for the Rosenbergs' alleged failure to provide him the opportunity to cure the default; the Rosenbergs responded with an incidental demand based on Lobell's alleged breach of the lease. Following a trial on the merits, the district court rendered judgment on August 22, 2013 in favor of the Rosenbergs and dismissed Mr. Lobell's claims. The court terminated the lease of the property and rendered a money judgment in favor of the Rosenbergs in the amount of $3,647,127.81."

On appeal to this Court, the judgment dismissing Lobell's claims against the Rosenbergs was affirmed, although the Court vacated that portion of the trial court judgment that terminated the lease and awarded damages. This Court determined that the Rosenbergs had not properly terminated the lease because they had not afforded Lobell an opportunity to remedy his default. Lobell sought review of this decision with the Louisiana Supreme Court.

After granting certiorari, the Louisiana Supreme Court reversed this Court's decision in Lobell II , finding that Lobell was not entitled to a cure period under the lease. The Court agreed with the trial court's findings that Lobell breached the lease in many manners and thus, "the Rosenbergs had ground[s] to terminate the lease." Thus, the Court found no error in the trial court's determination that the lease had been properly terminated. The Court remanded the matter to this Court to review the trial court's award of damages, as that issue had been pretermitted in the decision under review.

After remand, this Court considered the trial court's August 22, 2013 judgment awarding damages to the Rosenbergs of the following amounts: past due rent of $193,749.69; $56,766.67 in ad valorem taxes; restoration costs of $3,230,126.72; and attorney's fees in the amount of $166,484.73. In Lobell IV , this Court observed:

Mr. Lobell, on remand, reiterates his attack on the trial court's award of restoration costs but additionally and for the first time argues that we must now modify the awards of judicial interest and past due rent. We reject his arguments on these last two issues. His rent argument is premised upon the contention that the Supreme Court implicitly overruled the trial court's termination of the lease and instead concluded that the Rosenbergs' December 28, 2007, January 31, 2007, and February 12, 2008 letters terminated the lease. Thus, he argues, the award must be recalculated to reflect that no rent was due after February 2008. The trial judge, however, rejected this assertion and we explicitly affirmed his ruling on this point. Mr. Lobell failed to seek review of this ruling with the Supreme Court, which noted that this aspect of the trial judge's ruling is final. And we refuse to reopen the matter.

Lobell IV , pp. 6-7, 184 So.3d 850 at 854. The Lobell IV Court then addressed the issue of the award for restoration costs, finding "that the award for restoration costs was sufficiently substantiated by the evidence and is not clearly wrong." Id. , p. 8, 184 So.3d at 855. Lobell applied to the Louisiana Supreme Court for a writ of certiorari to review this Court's opinion, which was denied on May 27, 2016. Lobell v. Rosenberg , 16-0669 (La. 5/27/16), 192 So.3d 744.

Thereafter, on June 21, 2016, Lobell filed a Motion to Amend Judgment under La. C.C.P. art. 1951, seeking to have the trial court's "original judgment" (the August 22, 2013 judgment) amended so as to correct "errors of calculation." He argued that the judgment improperly awarded rents beyond the period of August 2005 through February 2008, and improperly ordered Lobell to pay taxes beyond 2008, the date on which he argued that the lease was terminated as per the Supreme Court decision in Lobell III . He further argued that the August 22, 2013 judgment awarded judicial interest in derogation of our jurisprudence regarding interest on restoration awards.

In July, 2016, the Rosenbergs filed several motions, including:

- A Motion and Order for the release of proceeds held by FNBC Bank pursuant to an irrevocable letter of credit based on the finality of the judgment following the Supreme Court's May 27, 2016 denial of Lobell's application for a writ of certiorari and review of this Court's decision in Lobell IV ;
- A Motion to Assess and Order Payment of Post-Trial Unpaid Rent, Unpaid Taxes, Unpaid Insurance and Interest Thereon (hereafter, "Post-Trial Motions") by which the Rosenbergs maintained that they were entitled to rent, taxes and insurance which accrued from April 30, 2013 (the date the trial court determined that the lease had been terminated) and June 7, 2016 (the date on which the Lobell IV decision became final pursuant to La. C.C.P. art. 2166E );
- A Motion to Confirm Calculation of Judicial Interest, seeking judicial interest on the August 22, 2013 judgment from the date of judicial demand (June 20, 2008) through the date on which the judgment is paid;
- A Motion for Sanctions pursuant to La. C.C.P. art. 863, alleging that Lobell's Motion to Amend Judgment violates article 863 ; and - A Motion to Assess and Order Payment of Post-Trial Attorney Fees and Interest Thereon.

The trial court heard arguments on the first two of the Rosenbergs' motions and by judgments dated September 6, 2016, the trial court granted the motion for the release of the proceeds held by FNBC Bank but denied the motion for post-trial unpaid rent, taxes, insurance and interest. The Rosenbergs then filed a Motion to Withdraw Funds from the Registry of the Court on September 23, 2016 and by judgment dated September 28, 2016, the trial court authorized the withdrawal of $4,750,000.00.

The remaining motions were heard by the trial court on August 31, 2016 and by judgment dated September 27, 2016, the trial court denied Lobell's motion to amend the judgment. The judgment further found the Rosenbergs' motion to confirm the calculation of judicial interest to be "unnecessary" on the basis that the "LSBA's Judicial Interest Calculator is an appropriate calculator;" the motion to confirm amount of court costs and interest thereon to be "unnecessary" because "[t]rial court costs and appellate court costs are what they are;" and granted the motion for payment of post-trial attorney's fees and interest "with the issue of reasonableness and the starting date for calculating judicial interest reserved" and to be decided by the court if the parties could not agree as to the amount.

The Rosenbergs filed a motion for a devolutive appeal of the September 6, 2016 judgment, while Lobell filed a motion for a devolutive appeal of the September 27, 2016 judgment. On appeal, this Court found that the judgments at issue were not final judgments, declined to convert the appeals into applications for supervisory writs and dismissed both appeals.

In the interim and while Lobell V was pending in this Court, the trial court issued a judgment on September 12, 2017, granting in part and denying in part the motion for post-trial attorney's fees and interest. It awarded the Rosenbergs the sum of $393,536.28, with legal interest from the date of the judgment until paid.

On November 21, 2107, the Rosenbergs filed a Third-Party Petition for Alternative Writ of Mandamus and for Cancelation of Lis Pendens , by which they sought to have Dale Atkins, as Clerk of Court for Orleans Parish, cancel a Notice of Lis Pendens which had been filed in 2012.

Thereafter, on January 8, 2018, the Rosenbergs filed a Motion to Re-schedule the hearing on its Third Party Petition. Lobell then filed a motion for the trial court to certify all of the judgments (at issue in Lobell V ) to be declared final, appealable judgments pursuant to La. C.C.P. art. 1915. All matters were considered by the trial court at a hearing on February 2, 2018 and by judgment dated March 23, 2018, the trial court issued a judgment which ordered the lis pendens to be canceled and ordered all parties to bear his/its respective costs and attorney's fees incurred in connection with the cancelation of the lis pendens . The trial court also ordered that its September 12, 2017 judgment on attorney's fees and interest be designated as final. It then deemed its prior judgments (at issue in Lobell V ) to be final judgments; no substantive changes were made. Finally, the trial court ordered that legal interest shall accrue on unpaid attorney's fees as of September 12, 2017, which would continue to accrue until paid by Lobell.

Lobell timely appealed this Judgment.

Motion to Strike

After this appeal was lodged and briefs were filed, Lobell filed a Reply Brief, in response to which the Rosenbergs filed a Motion to Strike on the basis that it was untimely, exceeded the page limitation allowed by the Local Rules for the Courts of Appeal, and contained "offensive ... false statements."

The Local Rules for the Courts of Appeal provide that a "reply brief ... of the appellant shall be filed not later than 10 calendar days after the appellee's brief is filed." Uniform Rules of Court, Rule 2-12.7. A reply brief "shall not exceed eighteen pages." Uniform Rules of Court, Rule 2-12.2 D(1).

Lobell's brief failed to meet either of these rules. The Rosenbergs' brief was filed on August 13, 2018. Under Rule 2-12.7, therefore, Lobell's reply brief was required to be filed no later than August 23, 2018. It was not filed until September 10, 2018, clearly well beyond the deadline for its filing. Likewise, Lobell's brief consists of thirty-two pages, almost twice the number allowed by Rule 2-12.2. At no time did Lobell move for an order of this Court permitting him to exceed the page limitation.

We note that under Rule 2-12.2, a motion to file a brief which exceeds this limitation "will be granted for extraordinary and compelling reasons." However, in this case, no motion to exceed the page limitation was filed. While there is case law indicating that, where a motion to exceed the page limitations would likely have been granted, due to the "length of the trial ... and the nature of the assigned errors," Vaughn v. Progressive Sec. Ins. Co ., 03-1105, p. 3 (La. App. 3 Cir. 3/2/05), 896 So.2d 1207, 1213, this is not the case presented here. We do not believe that a motion to exceed the page limitation would have been granted in this case, particularly considering that much of the argument is a rehashing (in some instances, almost verbatim) of the argument contained in the original brief. See also Colson v. Colfax Treating Co., LLC , 17-913, p. 4 (La. App. 3 Cir. 4/18/18), 246 So.3d 15, 19 ("This court has discretion to allow a reply brief when in the interest of justice. In the present matter, we do not find that the interests of justice are furthered by allowing this departure from our rules. The ... motion to strike the ... reply brief is granted.").

Because the reply brief was untimely and failed to meet the page limitation, coupled with our view that the interests of justice would not be served by considering the reply brief, we grant the Rosenbergs' motion to strike. However, we decline to order sanctions against Lobell. First, the Rosenbergs do not expressly seek an award of sanctions; rather, they simply state that this "Court may determine such egregious conduct by Appellants justifies sanctions." Second, an award of sanctions may only be made by an appellate court for frivolous appeal. See Hampton v. Greenfield , 618 So.2d 859, 862 (La. 1993) ("the ability to impose sanctions under art. 863 is limited to the trial court .... [T]he court of appeal's authority [is limited] to awarding damages solely [for]

frivolous appeals."); see also Cannatella v. Cougle , 12-610, pp. 8-9 (La. App. 5 Cir. 5/16/13), 119 So.3d 94, 99, quoting Hampton ("Because the authority to impose sanctions under La. C.C.P. art. 863 is limited to the trial court, we cannot award sanctions under this article... An appellate court's authority to regulate conduct before it is governed by La. C.C.P. art. 2164, which provides in pertinent part, '[t]he [appellate] court may award damages for frivolous appeal.' ").

DISCUSSION

In this appeal, Lobell has not set forth any assignment of errors; rather, only issues are raised. However, in the interest of justice, we will treat the issues as assignments of error. See , e.g. , Brown v. Hiaton , 03-0155, p. 2 (La. App. 4 Cir. 12/17/03), 863 So.2d 671, 674 ("we 'will review only issues which were submitted to the trial court and which are contained in specifications or assignments of error, unless the interest of justice clearly requires otherwise,' " quoting Rule 1-3, Uniform Rules-Courts of Appeal ); Rochel v. Terrebonne Par. Sch. Bd. , 637 So.2d 753, 758 (La. App. 1 Cir. 5/20/94) ("[w]e treat LIGA's briefing of the issue as an assignment of error.").

Four out of five of Lobell's issues essentially challenge the trial court's August 22, 2013 judgment, which Lobell sought to amend through the June 21, 2016 Motion To Amend Judgment. First, Lobell argues that the trial court erred in failing to amend the judgment under La. C.C.P. art. 1951 which allows a final judgment to be amended "to alter the phraseology of the judgment, but not its substance, or to correct errors of calculation." Lobell maintains that the Supreme Court's decision in Lobell III and this Court's decision in Lobell IV "changed the trial court judgment" which should be amended "so that it comports with the rulings of the two higher ... Courts." He contends that the judgment should be amended "to correct the miscalculation of damages." In this regard, Lobell argues that the judgment should have been amended because the trial court erred in awarding damages for restoration, in failing to reduce the amount of rent, and in awarding judicial interest.

As to the restoration damages, Lobell maintains that various valuations of the building at issue reflect that its value has appreciated over time, and an award of restoration damages "would constitute a breathtaking windfall, and a profit not allowable under the lease agreement." He then argues that, even if such an award is permissible, the trial court erred in awarding replacement costs, as the proper measure of damages should have been actual cash value.

Lobell next argues that the trial court erred in failing to reduce the amount of rent and property taxes because the Supreme Court decision in Lobell III determined that the lease had been terminated as of March 2008, rather than 2013, as the trial court found.

With respect to the award of interest, Lobell argues that pre-judgment interest on an award for restoration costs is impermissible. Lobell then makes the statement that, as to attorney's fees, interest runs from the date of the award, not any other date, and as such, "defendant's claim for pre judgment interest on attorney's fees is simply not warranted by the case law."

Lastly, Lobell contends that the trial court erred in "cherry picking" language from the lease agreement. Although Lobell's argument on this point is entirely unclear, he suggests that "according to the plain language of the paragraph [concerning the distribution of insurance proceeds following a loss] 'the terms of the lease remain in effect .' " (Emphasis supplied). He likewise suggests that, under the terms of the lease, "the limits of plaintiffs' liability to the Lessor is $100,000 in insurance money," which amount "is to be held by Lessor in trust for the benefit of the Lessee for repairs to the building." (Emphasis supplied).

None of these issues is new to this Court and all have been previously considered and rejected. What Lobell proposes is not an amendment "to alter phraseology" or to "correct errors of calculation" in the August 22, 2013 judgment as contemplated by La. C.C.P. art. 1951. Rather, Lobell seeks to change the substance of the judgment, which has been challenged, reviewed and ruled on repeatedly by the courts.

As the Louisiana Supreme Court has made clear, our jurisprudence "is well established that Article 1951 contemplates the correction of a 'clerical error' in a final judgment, but does not authorize substantive amendments." Denton v. State Farm Mut. Auto. Ins. Co. , 08-0483, p. 6 (La. 12/12/08), 998 So.2d 48, 52. That is, a " 'judgment may be amended by the court where the amendment takes nothing from or adds nothing to the original judgment.' " Id. , pp. 6-7, 998 So.2d at 52, quoting Bourgeois v. Kost , 02-2785, p. 5 (La. 5/20/03), 846 So.2d 692, 595. Thus, "there is no specific grant of statutory authority for a trial court to clarify substantive provisions of a final judgment." Id. , p. 7, 998 So.2d at 53. The Denton Court found that "an amendment to a judgment which increases the interest amount [owed under] an insurance policy not of record, constitutes a substantive amendment that La.Code Civ. Proc. art.1951 prohibits." Id.

In the instant matter, the award of damages for restoration costs was addressed by this Court in Lobell IV , where we "reviewed the record and the exhibits introduced at trial, and [found] that the award for restoration costs was sufficiently substantiated by the evidence and is not clearly wrong." Lobell IV , p. 8, 184 So.3d at 855. When the Supreme Court denied Lobell's application for a writ of certiorari to review this Court's decision in Lobell IV , that judgment became final. See Ave. Plaza, L.L.C. v. Falgoust , 96-0173, p. 8 (La. 7/2/96), 676 So.2d 1077, 1080 (a judgment affirming an eviction "was a final judgment which became res judicata and conclusive between the parties when it was rendered, with the exception of appeal or other direct review. LSA-R.S. 13:4231. The judgment acquired the authority of the thing adjudged and became final and definitive when this court denied certiorari."); Jenkins v. Jackson , 16-482, p. 18 (La. App. 5 Cir. 2/22/17), 216 So.3d 1082, 1094, writ denied , 17-0652 (La. 9/6/17), 224 So.3d 984, quoting Poole v. Fuselier , 15-1317, p. 7 (La. App. 1 Cir. 10/28/16), 213 So.3d 18, 23 ("a final judgment becomes final and definitive and acquires the authority of the thing adjudged ... if the Supreme Court denies an application for certiorari ....").

We, therefore, find no merit to Lobell's argument that the trial court erred in refusing to amend the judgment awarding restoration costs. Under Lobell's interpretation of our codal articles and our jurisprudence, no judgment would ever be final and definitive; and repeated challenges raising the identical issues, despite repeated rejections by the courts, would be permissible.

We likewise find that Lobell is foreclosed from raising issues concerning the award of past-due rent and interest. In Lobell IV , Lobell raised the very same issues of past-due rent and the award of interest. This Court refused to consider those issues, stating:

[Lobell] for the first time argues that we must now modify the awards of judicial interest and past due rent. We reject his arguments on these last two issues. His rent argument is premised upon the contention that the Supreme Court implicitly overruled the trial court's termination of the lease and instead concluded that the Rosenbergs' December 28, 2007, January 31, 2007, and February 12, 2008 letters terminated the lease. Thus, he argues, the award must be recalculated to reflect that no rent was due after February 2008. The trial judge, however, rejected this assertion and we explicitly affirmed his ruling on this point. Mr. Lobell failed to seek review of this ruling with the Supreme Court, which noted that this aspect of the trial judge's ruling is final. And we refuse to reopen the matter. We further observe that Mr. Lobell's interest argument was not presented to the trial judge. Generally, issues not raised in the trial court will not be given consideration for the first time on appeal. See Rule 1-3, Uniform Rules-Courts of Appeal ; Scott v. Zaheri , 14-0726, p. 14 (La. App. 4 Cir. 12/3/14), 157 So.3d 779, 788.

Lobell IV , pp. 6-7, 184 So.3d at 854.

The finality of the trial court's judgment as to past-due rent and interest cannot seriously be contested. As we have determined that the award for restoration costs is final, so, too, is the award for past due rent and the award of judicial interest on the award of attorney's fees. This Court noted in Lobell IV that:

Mr. Lobell, in his initial appeal of the trial court's judgment, did not ask us to vacate or modify the trial court's awards to 2025 Canal for past due rent, unpaid ad valorem taxes, interest, and attorney's fees. Rather, he sought only to modify the trial court's award of restoration costs."

Lobell IV , p. 5, 184 So.3d at 854. The time for challenging the award for past-due rent and judicial interest was in Lobell's initial appeal and we, thus, decline to address this issue. See , e.g. , Square v. Hampton , 13-1680, p. 17 n.23 (La. App. 4 Cir. 6/4/14), 144 So.3d 88, 99 ("appellate courts will not consider issues raised for the first time, which were not pleaded in the trial court below and which the trial court has not addressed"); State in Interest of D.A. , 14-1078, p. 2 (La. App. 3 Cir. 3/4/15), 2015 WL 904755 (unpib.)("[a]n appellate court lacks appellate jurisdiction to address issues regarding a judgment which has not been timely appealed."). Lobell cannot resurrect this issue simply by filing a motion to amend a judgment which is final in its entirety.

As to Lobell's contention that the trial court "cherry pick[ed]" certain elements of the lease, while ignoring other elements, the objective of this argument is entirely unclear. To the extent that Lobell seeks a determination by this Court, as he suggests in his brief, that "the terms of the lease remain in effect," as the decisions of this Court and the Supreme Court have repeatedly made clear (and as Lobell concedes in other parts of his brief), there is no question that the lease was terminated and we need not address this argument.

Turning to Lobell's remaining issue, Lobell argues that the trial court erred "by exhibiting a lack of impartiality" and in allowing the Rosenbergs to obtain funds from the registry of the court in satisfaction of their judgment. Lobell argues that, because his counsel contacted the trial court and advised that the September 26, 2016 judgment would be appealed, the trial court prematurely and improvidently disbursed the funds to the Rosenbergs.

The record reflects that, on September 23, 2016, the Rosenbergs filed a Motion to Withdraw Funds from the Registry of the Court. On September 26, 2013, the trial court issued an order that $4,750,000 be withdraw from the court's registry. We find no error in that ruling.

As discussed herein, Lobell IV became final on June 7, 2016, when the Supreme Court denied certiorari. As we have further found, all aspects of the judgment at issue in Lobell IV became final at that time as well (despite Lobell's Motion to Amend that judgment) because La. C.C.P. art. 2166 E provides that "[w]hen an application for certiorari to the supreme court is timely filed, a judgment of the court of appeal becomes final and definitive after a delay of five days, exclusive of legal holidays, commencing to run on the day after the clerk has mailed the denial by the supreme court of the application for certiorari."

Accordingly, the trial court was authorized to release the funds being held in the registry of the court in satisfaction of the final judgment. See , e.g. , Bertrand v. Richard , 94-274, p. 4 (La. App. 3 Cir. 10/5/94), 643 So.2d 383, 385 ("Suspensive appeal bonds are not deposited by the losing litigant with no strings attached; they are tendered to the court for disbursement after the merits are determined, even if by forfeit. When ... the judgment awarding the sum in favor of plaintiff in the lower court became final ... the amount represented by the previously suspensively appealed bond reverted to plaintiff in satisfaction of the lower court judgment.").

As a final note, in their appellate brief, the Rosenbergs suggest that "Lobell should be sanctioned under La. C.C.P. art. 2164 because he asks this Court to violate its duty, assume jurisdiction it lacks, re-try this 2008 case post-Final judgment, and issue a decision that would be an absolute nullity."

Under Article 2164, "[t]he court may award damages, including attorney fees, for frivolous appeal or application for writs, and may tax the costs of the lower or appellate court, or any part thereof, against any party to the suit, as in its judgment may be considered equitable."

This Court has noted that damages for a frivolous appeal may be awarded by an appellate court " 'if the appellant is trying to 'delay the action' or 'if the appealing counsel does not seriously believe the law he or she advocates.' " Sullivan v. Malta Park , 16-0875, p. 5 (La. App. 4 Cir. 1/31/17), 215 So.3d 705, 709, quoting Hunter v. Maximum Grp. Behavioral Servs., Inc. , 10-0930, p. 6 (La.App. 4 Cir. 3/16/11), 61 So.3d 735, 739 (internal quotation omitted). In Sullivan , we also noted:

" '[A]ppeals are always favored and, unless the appeal is unquestionably frivolous, damages will not be granted' due in part to the possible chilling effect on the appellate process." Johnson v. Johnson , 08-0060, pp. 5-6 (La.App. 4 Cir. 5/28/08), 986 So.2d 797, 801, quoting Tillmon v. Thrasher Waterproofing , 00-0395, p. 8 (La. App. 4 Cir. 3/28/01), 786 So.2d 131, 137. Likewise, because the statute allowing the imposition of damages for frivolous appeal is penal in nature, it "must be strictly construed in favor of the appellant." Hunter , 10-0930, p. 6, 61 So.3d at 739.

Id. , pp. 5-6, 215 So.3d at 709.

We are not prepared to find that Lobell's arguments are wholly without any basis. We therefore decline to award sanctions.

CONCLUSION

For the reasons set forth more fully herein, we affirm the trial court's judgment as to all issues raised in this appeal. We further grant the Rosenbergs' motion to strike Lobell's reply brief, although we decline to award sanctions against Lobell in connection with this appeal, including the Rosenberg's request for sanctions pertaining to Lobell's reply brief.

AFFIRMED

LOBRANO, J., CONCURS IN PART, DISSENTS IN PART, AND ASSIGNS REASONS

LOBRANO, J., CONCURS IN PART, DISSENTS IN PART, AND ASSIGNS REASONS.

I respectfully concur in part and dissent in part. Considering only the issues raised by Lobell in this appeal, I concur in the majority's affirmation of the district court's March 23, 2018 judgment.

I dissent from the majority's denial of sanctions to the Rosenbergs. The majority relies on Lobell's "perspective," that Lobell subjectively believes his arguments do not wholly lack any basis. This subjective standard applied by the majority is incorrect.

"Damages for frivolous appeals, like sanctions at the trial court level, are utilized to curtail the filing of appeals that are intended to delay litigation, harass another party, or those that have no reasonable basis in fact or law." Hunter v. Maximum Grp. Behavioral Servs., Inc. , 2010-0930, p. 6 (La. App. 4 Cir. 3/16/11), 61 So.3d 735, 739 (quotation omitted). La. C.C.P. art. 2164 and the jurisprudence of this State empower the appellate court to award frivolous appeal damages "if the appellant is trying to delay the action", if the appeal "does not present a substantial legal question," or "if the appealing counsel does not seriously believe the law he or she advocates." Id. (quotations omitted). Likewise, La. C.C.P. art. 863"require[s] the attorney or litigant who signs a pleading to make an objectively reasonable inquiry into the facts and the law. Subjective good faith does not satisfy the duty of reasonable inquiry." Diesel Driving Acad., Inc. v. Ferrier , 563 So.2d 898, 902 (La. App. 2nd Cir. 1990).

As acknowledged in the majority opinion, Lobell's brief is replete with arguments that have been previously considered and rejected by this Court. I find this appeal objectively frivolous. The Rosenbergs should be awarded damages for frivolous appeal in the amount of $2,500.00.

      The various decisions from the Courts are referenced throughout this opinion. For ease of reference, they will be referred to as follows:
      - Lobell v. Rosenberg , 10-0983, (La. App. 4 Cir. 4/6/11), 62 So.3d 823 ("Lobell I ").
      - Lobell v. Rosenberg , 14-0060, (La. App. 4 Cir. 1/7/15), 158 So.3d 874writ granted , 15-0247 (La. 5/1/15), 169 So.3d 366, and rev'd , 15-0247 (La. 10/14/15), 186 So.3d 83 ("Lobell II ").
      - Lobell v. Rosenberg , 15-0247, (La. 10/14/15), 186 So.3d 83 ("Lobell III ").
      - Lobell v. Rosenberg , 14-0060, (La. App. 4 Cir. 1/27/16), 184 So.3d 850, writ denied , 16-0669 (La. 5/27/16), 192 So.3d 744. ("Lobell IV ").
      - Lobell v. Rosenberg , 17-0111 (La. App. 4 Cir. 10/4/17), 228 So.3d 1241 ("Lobell V ").

      Mr. Lobell transferred his interest in the property to K.H.L. Canal, L.L.C., on May 4, 1998 through an Act of Contribution of Property. Lobell II, p. 4, 158 So.3d at 878. (Footnote omitted).

      The Rosenbergs transferred their collective interest in the property to 2025 Canal St., L.L.C. on May 30, 2008. Lobell I , p. 7, 62 So.3d at 827.

      See , e.g. , Oreck v. Oreck , 513 So.2d 1237, 1238 (La. App. 4 Cir. 1987) ("correction of a judgment rests within the sound discretion of the trial judge").

      Lobell III , p. 1, 186 So.3d at 84.

      Lobell III , p. 2, 186 So.3d at 85.

      Lobell III , pp. 2-3, 186 So.3d at 85.

      Lobell III, p. 3, 186 So.3d at 85.

      Lobell III, p. 3, 186 So.3d at 85.

      Lobell also claimed damages for anticipatory breach of contract, and wrongful eviction during the lease term, while the Rosenbergs alleged that Lobell "breached the lease and consent agreement by failing to pay rent and taxes, maintain $2.6 million in hazard insurance, place insurance proceeds in trust, spend the insurance proceeds for the purpose of repairing the building and improvements, and keep improvements in good repair." Id. , pp. 4-5, 186 So.3d at 86-7.

      Lobell III , p. 4, 186 So.3d at 86.

      Lobell III , p. 5, 186 So.3d at 87.

      Lobell III , p. 7, 186 So.3d at 88.

      Lobell III , p. 12, 186 So.3d at 91.

      Lobell III , p. 12, 186 So.3d at 91.

      Lobell III , p. 12, 186 So.3d at 91.

      Lobell IV , pp. 4-5, 184 So.3d at 853-54.

      La. C.C.P. art. 2166 E provides that "[w]hen an application for certiorari to the supreme court is timely filed, a judgment of the court of appeal becomes final and definitive after a delay of five days, exclusive of legal holidays, commencing to run on the day after the clerk has mailed the denial by the supreme court of the application for certiorari."

      La. C.C.P. art. 863 D provides that "[i]f, upon motion of any party or upon its own motion, the court determines that a certification has been made in violation of the provisions of this Article, the court shall impose upon the person who made the certification or the represented party, or both, an appropriate sanction which may include an order to pay to the other party the amount of the reasonable expenses incurred because of the filing of the pleading, including reasonable attorney fees."

      Lobell V , 228 So.3d at 1241.

      It is unclear from the judgment (and the trial court's Reasons for Judgment) what was partially denied by the trial court. No appeal was taken from this judgment.

      As noted, the Rosenbergs appealed the March 23, 2018 judgment, which is addressed in appeal number 2018-CA-0600, decided this date as well.

      We note that Lobell's brief fails to comply with Rule 2-12.4 A of the Uniform Rules for the Courts of Appeal insofar as it fails to include a table of contents, a table of authorities, a jurisdictional statement and an assignment of the alleged errors of the trial court. Nor does Lobell's brief attach a copy of the trial court's judgment as required by Rule 2-12.4 B(1).

      Those issues are phrased as follows: (1) "Did the trial court err in determining that Appellant's Motion to Amend judgment was without merit without giving any reason therefore, and was Appellant entitled to the relief sought by its Motion to Amend given that neither the trial Court or [sic] the 4th Circuit Court of appeals [sic] previous panel fully implemented the Supreme Court's judgment in this matter;" (2) Did the trial Court Err by simply applying the judicial interest calculator in derogation of Gravolet v. Fair Grounds ..., "given that the damages issued were for restoration where Gravolet states that granting damages for restoration and legal interest is double dipping and deeming a review of the Gravolet precedent as UNNECCESARY?;" (3) "Did the trial Court err by failing to institute the full order of the Louisiana Supreme Court by failing to reduce the amount of rent given that the Supreme Court's decision terminating the lease in March of 2008, and finding that plaintiff was evicted rather than judicially termination [sic] the lease in 2013 as the trial court did;" and (4) "Did the trial court err by cherry picking certain language of the lease between the parties and not enforcing all other provisions of the lease and the consent and agreement between the parties?"

      We note that no argument is made with respect to the trial court's "impartiality" and there is no suggestion that this Court make a finding on this issue; rather, this statement appears to be nothing more than an aside. We decline to address, or to even comment, on this statement.

      I dissent separately in the companion appeal, Lobell v. Rosenberg , 2018-0600 (La. App. 4 Cir. 12/19/18), --- So.3d ----, 2018 WL 6683527, in which I explain that I would reverse, in part, the March 23, 2018 judgment, with respect to the district court's denial of post-trial rent, insurance, taxes, and interest to the Rosenbergs. Those issues are not raised in Lobell's appeal.


author: JUDGE SANDRA CABRINA JENKINS

text:
    Paul O. SCHWARZENBERGER, M.D. and Clinical Oncology Research Associates, L.L.C. v. LOUISIANA STATE UNIVERSITY HEALTH SCIENCES CENTER-NEW ORLEANS and the LSU Board of Supervisors
    NO. 2018-CA-0812
    Court of Appeal of Louisiana, Fourth Circuit.
    JANUARY 9, 2019
    Samantha P. Griffin, J. Dalton Courson, STONE PIGMAN WALTHER WITTMANN L.L.C., 909 Poydras Street, Suite 3150, New Orleans, LA 70112--4042, COUNSEL FOR PLAINTIFF/APPELLANT
    Katherine B. Muslow, Meredith Cunningham, LSU HEALTH SCIENCES CENTER, 433 Bolivar Street, Suite 820, New Orleans, LA 70112, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins, Judge Dale N. Atkins )
   JUDGE SANDRA CABRINA JENKINS

Paul O. Schwarzenberger, M.D. and Clinical Oncology Research Associates, LLC ("CORA") (collectively, "Appellants") appeal the Amended Judgment rendered by the trial court on May 22, 2018, following a bench trial and a hearing on a motion for partial new trial. For the reasons that follow, we find that the Amended Judgment lacks necessary decretal language, and is, therefore, not a valid appealable judgment. Accordingly, we lift the stay previously issued by this Court on December 10, 2018, dismiss the appeal without prejudice, and remand this matter to the trial court so that a valid appealable judgment can be rendered.

PROCEDURAL BACKGROUND

In January 2018, a bench trial was conducted regarding claims raised in a reconventional demand filed by Louisiana State University Health Sciences Center-New Orleans and LSU Board of Supervisors ("LSU" or "Appellee") against Appellants. Following the trial, the trial court issued a judgment on March 1, 2018, granting LSU's reconventional demand and awarding damages. LSU then filed a motion for partial new trial seeking, in part, additional damages and attorneys' fees. Following a hearing on the motion for partial new trial, the trial court rendered an "Amended Judgment" on May 22, 2018. The Amended Judgment reads, in pertinent part, as follows:

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the Reconventional Demand is GRANTED , and this Court awards Plaintiff-in-Reconvention FORTY-FOUR THOUSAND DOLLARS AND NO CENTS ($44,000.00) with judicial interest running on this amount from December 9, 2004; and FORTY-ONE THOUSAND EIGHT-HUNDRED FORTY-TWO DOLLARS AND TWENTY-NINE CENTS ($41,842.29) with judicial interest running on this amount from date of judicial demand. The Court, further, awards Plaintiff-in-Reconvention attorneys' fees under Civil Code article 1958 in the amount of $100,000.00, this amount being reasonable in light of ....

This appeal of the May 22, 2018 Amended Judgment followed.

JURISDICTIONAL ISSUE

Appellate courts have a duty to determine, sua sponte , whether the court has proper jurisdiction to consider the merits of an appeal filed in the court. Moon v. City of New Orleans , 15-1092, 15-1093, p. 5 (La. App. 4 Cir. 3/16/16), 190 So.3d 422, 425. An appellate court cannot determine the merits of an appeal unless its jurisdiction is properly invoked by a valid final judgment. Bd. of Supervisors of La. State Univ. and Agric. and Mech. College v. Mid City Hol dings, L.L.C. , 14-0506, p. 2 (La. App. 4 Cir. 10/15/14), 151 So.3d 908, 910. A valid final judgment must contain specific "decretal language", spelling out in definite, unmistakable language the result being decreed. Id. "In the absence of the necessary decretal language, the judgment is not final and appealable." Urquhart v. Spencer , 15-1354, 15-1355, p. 3 (La. App. 4 Cir. 12/1/16), 204 So.3d 1074, 1077 (citing Tsegaye v. City of New Orleans , 15-0676, p. 3 (La. App. 4 Cir. 12/18/15), 183 So.3d 705, 710 ).

The necessary decretal language for a valid final judgment must state (1) the name of the party in favor of whom the ruling is ordered; (2) the name of the party against whom the ruling is ordered; and (3) the specific relief granted or denied. Urquhart , 15-1354, 15-1355, p. 3, 204 So.3d at 1077 (quoting Mid City Holdings , 14-0506, p. 3, 151 So.3d at 910 ). "The specific relief granted must be apparent on the face of the judgment without reference to an extrinsic source such as pleadings or reasons for judgment." Schiff v. Pollard , 16-801, p. 6 (La. App. 4 Cir. 6/28/17), 222 So.3d 867, 873 (citing Moon , 15-1092, 15-1093, p. 6, 190 So.3d at 425 ).

In a multiple defendant case such as this one, a valid final judgment must specifically identify the particular defendant cast in judgment, the degree of fault of each, and the obligation of each, as explained by this Court in Urquhart , as follows:

[T]he "failure to name the particular defendant cast in judgment results in the invalidity of the judgment." Freeman v. Zara's Food Store, Inc. 16-0445, p. 14 (La. App. 4 Cir. 11/2/16), 204 So.3d 691, 701 (citations omitted). As we have stated, " '[t]he failure to name the defendant against whom the judgment is rendered in a case with multiple defendants makes the judgment fatally defective, because one cannot discern from its face against whom it may be enforced.' " Id. , 16-0445, p. 15, 204 So.3d at 701 (quoting Jenkins v. Recovery Tech. Investors , 02-1788, p. 3 (La. App. 1 Cir. 6/27/03), 858 So.2d 598, 600 ).
Another important requirement for a valid appealable judgment is that it contain decretal language "express[ing] the degree of fault of each defendant as a percentage." Id. 16-0445, p. 15, 204 So.3d at 701. A judgment also lacks the necessary decretal language when it "does not set forth any determination as to whether the defendants are jointly or solidarily liable such that it is unknown what amount each defendant is obligated to pay." Id. , 16-0445, p. 15, 204 So.3d at 701, n. 15 (citing Caillier v. Strictly Stars Touring , 16-390, pp. 5-6 (La. App. 3 Cir. 6/22/16), 195 So.3d 1237, 1241 ).

15-1354, 15-1355, p. 4, 204 So.3d at 1077-78.

Applying these principles to the instant appeal, we find that the Amended Judgment rendered on May 22, 2018 fails to satisfy the requirements for a valid final judgment. The Amended Judgment fails to specifically identify the parties against whom the judgment is rendered, making the Amended Judgment fatally defective "because one cannot discern from its face against whom the judgment may be enforced." Urquhart , supra . In addition, the Amended Judgment fails to express the degree of fault of each party cast in judgment or state whether those parties are jointly or solidarily liable for the damages and attorneys' fees. In the absence of the necessary decretal language, there is no valid appealable judgment. Consequently, we lack appellate jurisdiction to consider the merits of the appeal.

When confronted with a judgment in an appellate context that is not final and appealable, this Court has the discretionary authority to convert the appeal to an application for supervisory writs. Forstall v. City of New Orleans , 17-0414, p. 5 (La. App. 4 Cir. 1/17/18), 238 So.3d 465, 469. However, this Court has exercised its discretion to convert the appeal to a writ only when the following two conditions are met:

(i) the motion for appeal has been filed within the thirty-day time period allowed for the filing of an application for supervisory writs under Rule 4-3 of the Uniform Rules, Courts of Appeal.
(ii) When the circumstances indicate that an immediate decision of the issue sought to be appealed is necessary to ensure fundamental fairness and judicial efficiency, such as where reversal of the trial court's decision would terminate the litigation.

Joseph v. Wasserman , 17-0603, p. 8 (La. App. 4 Cir. 1/10/18), 237 So.3d 14, 20 (citing Mandina, Inc. v. O'Brien , 13-0085, pp. 7-8 (La. App. 4 Cir. 7/31/13), 156 So.3d 99, 103-04 ). In this case, neither condition is met.

Furthermore, as a general rule, appellate courts will refrain from exercising their supervisory jurisdiction when an adequate remedy exists by appeal. Wasserman , 17-0603, p. 8, 237 So.3d at 20 ; Urquhart , 15-1534, 15-1355, p. 4, 204 So.3d at 1078. In this case, an adequate remedy by appeal will exist upon the entry of a precise, definite, and certain judgment containing the necessary decretal language outlined by this Court. Accordingly, we decline to exercise our discretion to convert the appeal to a writ.

CONCLUSION

For the foregoing reasons, we find there is no valid appealable judgment before this Court and, therefore, this Court lacks appellate jurisdiction. In addition, we decline to exercise our supervisory jurisdiction. Accordingly, we lift the stay previously issued by this Court, dismiss the appeal without prejudice, and remand this matter to the trial court. Once a valid appealable judgment is signed, a new appeal may be filed with this Court.

STAY LIFTED; APPEAL DISMISSED WITHOUT PREJUDICE; REMANDED

      On December 10, 2018, this Court issued a stay of this appeal and the motion to dismiss appeal filed by Appellee, pending the outcome of writ 2018-CC-1966 filed in the Louisiana Supreme Court by Appellee. The disposition of the writ pending before the Louisiana Supreme Court could have an impact on the procedural posture of this case and the appeal rights of the parties. In light of that, the parties might await the outcome of Louisiana Supreme Court writ 2018-CC-1966 prior to obtaining a valid final judgment to appeal.

      The underlying facts of this case are not relevant to the dismissal of the appeal.

      The trial court previously dismissed with prejudice all claims asserted in the original petition filed by Appellants against LSU, leaving only LSU's claims in reconvention to be tried. See Schwarzenberger v. Louisiana State Univ. Health Sciences Center-New Orleans , 18-0480, p. 3 (La. App. 4 Cir. 10/3/18), --- So.3d ----, 2018 WL 4778871 ; Schwarzenberger v. Louisiana State Univ. Health Sciences Center-New Orleans , 17-0024 (La. App. 4 Cir. 8/24/17), 226 So.3d 1200.

      For the same reasons discussed infra regarding the May 22, 2018 Amended Judgment, we note that the March 1, 2018 judgment also lacks necessary decretal language and is not a valid appealable judgment.

      First, the motion for devolutive appeal was filed more than thirty days after the notice of judgment. Second, as previously noted, this Court issued a stay of the appeal pending a disposition on a writ filed in the Louisiana Supreme Court by LSU/Appellee that could potentially impact the procedural posture of the appeal of this matter and the appeal rights of the parties.

      Pursuant to Rule 2-1.14, Uniform Rules, Courts of Appeal, the record of this appeal may, with leave of court, be used, without necessity of duplication, in a subsequent appeal filed in this matter.