text:
    Wanda BLACKBURN v. Angelan GREEN, Rasier LLC, Rasier-CA, Rasier-DC LLC, and James River Insurance Company
    NO. 18-CA-583
    Court of Appeal of Louisiana, Fifth Circuit.
    February 27, 2019
   COUNSEL FOR PLAINTIFF/APPELLANT, WANDA BLACKBURN, Eric M. Carter, Sr.

COUNSEL FOR DEFENDANT/APPELLEE, ANGELAN GREEN, R. Todd Musgrave, Amanda H. Aucoin, New Orleans

COUNSEL FOR DEFENDANT/APPELLEE, RASIER, LLC; RASIER - DC AND RASIER - CA, LLC, Paula M. Wellons, New Orleans

COUNSEL FOR DEFENDANT/APPELLEE, JAMES RIVER INSURANCE COMPANY, James A. Prather, New Orleans, Jason M. Freas, Mandeville

Panel composed of Judges Marc E. Johnson, Robert A. Chaisson, and Hans J. Liljeberg

JOHNSON, J.

Plaintiff seeks review of a judgment sustaining an exception of prescription and dismissing her petition for damages with prejudice. Plaintiff initially filed suit on April 27, 2017 for injuries she sustained on April 29, 2016 when Defendant, Angelan Green, allegedly struck her with Defendant's vehicle while Plaintiff was standing behind her own vehicle. Plaintiff filed a second lawsuit on October 10, 2017 for the same injuries based on the same accident. The first suit was dismissed with prejudice on November 16, 2017 for insufficient service of process. Thereafter, Plaintiff's second lawsuit was dismissed based on prescription. We find that Defendants failed to carry their burden of proving Plaintiff's second lawsuit was prescribed, and the trial court erred in sustaining the exception of prescription. Therefore, we reverse the ruling of the trial court and remand the matter for further proceedings.

FACTS & PROCEDURAL HISTORY

On April 27, 2017, Plaintiff, Wanda Blackburn, filed a petition for damages in the 24th Judicial District Court, Docket No. 771-537, Division "B," against Ms. Green; Ms. Green's employer, Rasier LLC; and their liability insurer, James River Insurance, for injuries resulting from an April 29, 2016 automobile accident that occurred in Jefferson Parish when Ms. Green's vehicle allegedly struck Ms. Blackburn, while she was standing behind her own vehicle. On September 13, 2017, Defendants filed a Declinatory Exception of Insufficiency of Service of Process and Motion for Involuntary Dismissal.

While the declinatory exception was pending in the first lawsuit, Ms. Blackburn filed a second petition for damages on October 10, 2017 in the same court - 24th Judicial District Court, Docket No. 776-704, Division "E" - seeking the same damages for the same April 29, 2016 accident.

Shortly after the filing of the second lawsuit, the trial court held a hearing in the first lawsuit on the declinatory exception of insufficiency of service of process. In a judgment signed on November 16, 2017, the trial court sustained the exception and motion to dismiss and dismissed all of Ms. Blackburn's claims in the first lawsuit with prejudice. Ms. Blackburn did not appeal the November 16, 2017 judgment.

Three months later, on February 16, 2018, Defendants filed an exception of prescription, or alternatively, an exception of res judicata , in the second lawsuit - which is at issue in this appeal. Defendants argued that Ms. Blackburn's second lawsuit was prescribed because it was filed more than one year after the accident. They maintained that under La. R.S. 9:5801, Ms. Blackburn's first lawsuit did not interrupt prescription because her failure to timely request service of the lawsuit was in bad faith. Defendants further urged that the dismissal of the first lawsuit with prejudice resulted in the second lawsuit being barred under the doctrine of res judicata . After a hearing, the trial court sustained the exception of prescription and dismissed Ms. Blackburn's second lawsuit with prejudice. Ms. Blackburn appeals this judgment, which was signed on July 9, 2018.

ISSUES

On appeal, Ms. Blackburn challenges the trial court's ruling sustaining Defendants' exception of prescription. She argues that her first lawsuit, which was timely filed in a competent court of proper venue, interrupted prescription as to the current lawsuit because the trial court never found that she acted in bad faith in failing to timely effect service of the first lawsuit.

Conversely, Defendants urge this Court to find that Ms. Blackburn's lawsuit is barred not only by prescription, but also by the doctrine of res judicata .

DISCUSSION

Prescription

The party asserting an exception of prescription bears the burden of proof. However, if prescription is evident on the face of the pleadings, the burden shifts to the plaintiff to prove that the prescriptive period has been interrupted or suspended. McClellan v. Premier Nissan, LLC , 14-726 (La. App. 5 Cir. 2/11/15), 167 So.3d 934, 935.

At the hearing on the exception of prescription, evidence may be introduced to support or controvert the exception when the grounds for the exception do not appear from the petition. La. C.C.P. art. 931 ; Baker v. Louisiana Citizens Property Ins. Corp. , 12-480 (La. App. 5 Cir. 5/16/13), 119 So.3d 69, 72. When evidence is introduced at the hearing, the trial court's findings of fact are reviewed under the manifest error standard. In the absence of evidence, the exception of prescription must be decided on the facts alleged in the petition, and those alleged facts are accepted as true. Id.

In the present case, no evidence was introduced by either party during the hearing on the exception of prescription. Although the parties attached various documents to their memoranda in support of and in opposition to the exception of prescription, it is well-settled that documents attached to memoranda do not constitute evidence and cannot be considered as such on appeal. See Wilson v. Beechgrove Redevelopment, LLC , 09-1080 (La. App. 5 Cir. 4/27/10), 40 So.3d 242, 244. Evidence not properly and officially offered and introduced cannot be considered on appeal, even if the evidence is physically placed in the record. Because the parties failed to properly submit any evidence, the merits of the exception of prescription must be decided on the facts set forth in the petition.

Ms. Blackburn filed her petition on October 10, 2017, alleging that she sustained injuries in an April 29, 2016 accident. Delictual actions are subject to a prescriptive period of one year, beginning from the day injury or damage is sustained. La. C.C. art. 3492. While the petition was clearly filed beyond the one-year prescriptive period for delictual actions set forth in La. C.C. art. 3492, the petition specifically asserts that Ms. Blackburn filed the original petition on April 27, 2017 - within one year of the accident - in a court of proper jurisdiction and venue, and that the original petition was still pending; thus interrupting prescription of her current petition.

Pursuant to La. C.C. arts. 3462 and 3463, prescription is interrupted by filing suit in a court of competent jurisdiction and venue, and the interruption continues as long as the suit is pending. See also Pullin v. Chauvin , 17-1292 (La. App. 1 Cir. 3/15/18), 244 So.3d 472, 474, writ denied , 18-572 (La. 6/1/18), 243 So.3d 1061. Thus, under the facts alleged in the petition, the petition is not prescribed on its face, and it was incumbent upon Defendants, as movers, to prove the petition was prescribed.

During the exception hearing, Defendants argued that Ms. Blackburn's first lawsuit did not interrupt prescription as to her current petition because it was dismissed for failure to timely request service and that her failure was in bad faith. Under La. R.S. 9:5801, the interruption of prescription is considered never to have occurred as to a defendant who is dismissed from a suit because service of citation was not timely requested and the court finds that the failure to request service of citation was due to bad faith. See Theriot v. Archer Construction, LLC , 17-1304 (La. App. 1 Cir. 4/30/18), 250 So.3d 927, 932 n2, writ denied , 18-843 (La. 9/28/18), 253 So.3d 145. Because Defendants failed to introduce any evidence at the hearing, they failed to meet their burden of proving that the Plaintiff's first lawsuit was dismissed for insufficient service of process and that the Plaintiff acted in bad faith in failing to timely request service of process of her first lawsuit. Accordingly, Defendants failed to prove that Plaintiff's petition was prescribed, and we find that the trial court erred in sustaining the exception of prescription.

Res Judicata

In their appellate brief, Defendants urge this Court to additionally find, on our own motion, that Plaintiff's petition is barred by res judicata . While Defendants alternatively raised a peremptory exception of res judicata at the time they filed their exception of prescription, the trial court never ruled on the exception presumably because it found the Plaintiff's petition was prescribed.

Under La. C.C.P. art. 927, this Court, on our own motion, may notice an objection of res judicata . The doctrine of res judicata , found in La. R.S. 13:4231, precludes relitigation of claims and issues arising out of the same factual circumstances as a previous suit when there is a valid final judgment. Schnell v. Mendoza , 13-922 (La. App. 5 Cir. 5/21/14), 142 So.3d 238, 242. Five elements must be satisfied before res judicata bars a subsequent action: (1) the judgment is valid; (2) the judgment is final; (3) the parties are the same; (4) the cause(s) of action asserted in the second suit existed at the time of the final judgment in the first litigation; and (5) the cause(s) of action asserted in the second suit arose out of the transaction or occurrence that was the subject matter of the first litigation. Bovie v. St. John the Baptist Par., Dep't of Streets & Roads , 13-162 (La. App. 5 Cir. 9/4/13), 125 So.3d 1158, 1161. The party who urges an exception of res judicata bears the burden of proving its essential elements by a preponderance of the evidence. Id.

Similar to a declinatory exception, when the grounds for a peremptory exception do not appear from the petition, evidence may be introduced to support or controvert any of the objections pleaded. La. C.C.P. art. 931 ; Bovie, supra . In the absence of evidence, the exception must be decided on the facts alleged in the petition, which are accepted as true. Id.

In the present case, the grounds for an exception of res judicata do not appear from the petition, which merely states Plaintiff's claim against Defendants and asserts that another suit is pending. Insofar as the judgment upon which the exception is based is attached to Defendants' exception that was filed at the trial court level, this attachment was never properly and officially offered and introduced into evidence at the hearing and, thus, as discussed above, cannot be considered. See also, Bovie, supra .

An essential element of res judicata is a valid and final judgment. Neither the record nor the judgment from the prior suit has been introduced into evidence. Thus, on the record before us, Defendants fail to meet their burden of proof on the exception of res judicata .

DECREE

For the foregoing reasons, we reverse the trial court's July 9, 2018 judgment sustaining Defendants' exception of prescription and dismissing Plaintiff's claims with prejudice. Additionally, based on the record before us, we do not find Plaintiff's petition is barred by res judicata . This matter is remanded for further proceedings.

REVERSED AND REMANDED

      The facts regarding the first lawsuit, to the extent the parties agreed, were obtained from the parties' appellate briefs as none of the filings involved in the first lawsuit, Docket No. 771-537, Division "B", were introduced into evidence at any time in the second lawsuit, Docket No. 776-704, Division "E" - which is the subject of the current appeal - and no part of the first lawsuit was made a part of this appellate record.

      On motion of the parties, the second lawsuit, Docket No. 776-704, Division "E", was transferred to Division "B", the same division to which the first lawsuit was assigned, on May 15, 2018 - prior to the hearing on the exception of prescription.

      Paragraph 15 of the petition states:
      Plaintiff timely filed the original petition in this matter on April 27, 2017 in the court of proper jurisdiction and venue. Pursuant to [the] Louisiana Supreme Court in Bordelon v. Medical Center of Baton Rouge , 871 So.2d 1075 (La. 10/21/03) the timely filing of the petition on April 27, 2017 served to interrupt prescription under La. C.C. art. 3462 and under La. C.C. art. 3463 the interruption of prescription continues as long as the suit is pending. At the present time, this suit is still pending and no court in this matter has granted or signed a motion to dismiss pursuant to La. C.C.P. art. 1201.

      Compare Wyman v. Dupepe Const. , 08-477 (La. App. 5 Cir. 3/10/09), 10 So.3d 786, affirmed as amended , 09-817 (La. 12/1/09), 24 So.3d 848. In Wyman , the plaintiffs filed a negligence action outside the one-year prescriptive period but within one year of an involuntary dismissal of a prior timely filed suit. The defendants filed an exception of prescription. No evidence was introduced at the hearing on the exception. This Court recognized that the petition was, in fact, not prescribed because the first lawsuit interrupted prescription of the second lawsuit. However, this Court was constrained to find that the plaintiffs' petition was prescribed on its face absent an allegation that a first petition had been timely filed and involuntary dismissed without prejudice. As such, this Court affirmed the trial court's sustaining of the exception of prescription.
      The Louisiana Supreme Court granted writs and affirmed this Court's determination that the petition was prescribed on its face and that the plaintiffs failed to carry their burden to show otherwise. But, the supreme court amended this Court's judgment to allow the plaintiffs an opportunity to amend their petition "to allege facts that would show their claim [was] not prescribed."


source: Caselaw Access Project

author: CONERY, Judge.

license: Public Domain

text:
    Elda B. FORTNER, etc., et al. v. Quincy M. LEWIS, et al.
    18-638
    Court of Appeal of Louisiana, Third Circuit.
    February 27, 2019
    Jeff Landry, Attorney General, Donald Guidry, Assistant Attorney General, Louisiana Department of Justice, Litigation Division, 556 Jefferson Street, 4th Floor, Lafayette, Louisiana 70501, 337-262-1700, COUNSEL FOR DEFENDANT - RELATOR: State of Louisiana, through the Department of Transportation and Development.
    Hunter W. Lundy, Jackey W. South, T. Houston Middleton, IV, Lundy, Lundy, Soileau & South, L.L.P., Post Office Box 3010, Lake Charles, Louisiana 70602-3010, 337-439-0707, COUNSEL FOR PLAINTIFFS - RESPONDENTS: Elda B. Fortner, Individually and on Behalf of the Estate of Donald Fortner; Heather Fortner Kasak; Joshua W. Fortner; Christopher A. Fortner; and Matthew C. Fortner.
    Court composed of Billy H. Ezell, Shannon J. Gremillion, John E. Conery, Van H. Kyzar, and Jonathan W. Perry, Judges.
   CONERY, Judge.

Relator, Louisiana Department of Transportation and Development (DOTD), seeks supervisory writs from the judgment of the Thirty-First Judicial District Court, the Parish of Jefferson Davis, the Honorable Steve Gunnell, presiding, which denied Relator's motion for summary judgment based on the immunity granted to DOTD pursuant to the provisions of the Louisiana Homeland Security and Emergency Assistance and Disaster Act (LHSEADA), La.R.S. 29:735. For the following reasons, DOTD's writ application is granted.

FACTS AND PROCEDURAL HISTORY

This case involves a fatal automobile accident which occurred at approximately five o'clock on the morning of January 24, 2014. The National Weather Service issued weather advisories and freeze warnings due to the likelihood of a major ice storm affecting the roadways in Jefferson Davis Parish. Governor Bobby Jindal declared a State of Emergency later the same day. In his affidavit in support of DOTD's summary judgment motion, Mr. Donald L. Duberville, Assistant District Administrator of Operations for the State of Louisiana, DOTD District 7, which includes Jefferson Davis Parish, attested that he oversaw the emergency preparedness activities in Jefferson Davis Parish prior to the storm. In accordance with DOTD's Operations Plan (OPLAN) 13-01, Winter Response, Phase III-Operations, in the early morning hours of January 24, 2014, the DOTD dispatched personnel to spray potassium acetate on Interstate 10 cattle crossing at Milepost 62 in Jefferson Davis Parish in order to melt the ice accumulating on the roadway. The affidavit of Mr. Damon Lee Cooler, a DOTD engineer, stated that the roadway at issue was sprayed at 12:10 a.m. and 1:43 a.m.

At approximately five o'clock a.m., Mr. Donald Fortner was traveling on the portion of Interstate 10 at issue when, allegedly due to the icy roadway, he lost control of his vehicle and moved into the adjacent westbound lane of travel. His vehicle was struck on the driver's side by an eighteen wheeler driven by Mr. Quincy M. Lewis, who was accelerating to pass Mr. Fortner's vehicle. Mr. Fortner died as a result of the accident.

Mr. Fortner's wife, Mrs. Elda B. Fortner, filed suit individually and on behalf of the Estate of Donald Fortner, along with their four adult children, against DOTD, Mr. Lewis, his employer B.E. Delivery, and its insurer, Hallmark Specialty Underwriter, Inc. (Hallmark), Mr. Lewis, B.E. Delivery and Hallmark settled with respondents and were dismissed from the litigation. DOTD, the only remaining defendant, filed a motion for summary judgment based on immunity pursuant to LHSEADA, La.R.S. 29:735.

Following a hearing on July 3, 2018, the trial court denied DOTD's motion for summary judgement on the basis that there was a genuine issue of fact as to whether DOTD was entitled to immunity pursuant to La.R.S. 29:735. Respondents claimed DOTD's actions in addressing the icing conditions on Interstate 10 were prior to the actual signing of the Declaration of a State of Emergency by the Governor later in the day. The trial court ruled that there were questions of fact as to when the Governor signed the State of Emergency, and whether the immunity statute applied. The DOTD requested written reasons, which were issued by the trial court on July 16, 2018. The judgment was signed on the same date by the trial court. A timely request for supervisory relief was filed by DOTD on August 15, 2018.

SUPERVISORY RELIEF

Since the denial of a motion for summary judgment is an interlocutory ruling from which no appeal may be taken, the only practical remedy available to avoid a possible trial on the merits is to request that the appellate court exercise its supervisory jurisdiction to review the propriety of the trial court's ruling. Louviere v. Byers , 526 So.2d 1253 (La.App. 3 Cir.), writ denied , 528 So.2d 153 (La.1988).

On November 27, 2018 a writ was granted in this case pursuant to La.Code Civ.P. art. 966(H). We ordered this case assigned for briefing and possible oral argument. This court required that DOTD submit any additional briefing by December 11, 2018, and that respondents were to file any additional briefing by December 18, 2018. The parties were to notify this court no later than December 11, 2018, if oral argument was requested. No additional briefing or request for oral argument was timely filed by either party. Therefore, DOTD's request for supervisory relief is in the proper posture for decision by this court.

STANDARD OF REVIEW

Appellate courts review the grant or denial of a motion for summary judgment de novo, "using the same criteria that govern the trial court's determination of whether summary judgment is appropriate; i.e . whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law." Samaha v. Rau , 07-1726, p. 4 (La. 2/26/08), 977 So.2d 880, 882-83 ; La.Code Civ.P. art. 966(A)(3). "The only documents that may be filed in support of or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions." La.Code Civ.P art. 966(A)(4).

The immunity defense pursuant to La.R.S. 29:735 is an affirmative defense. Rogers v. State ex rel. Dep't of Public Safety & Corr. , 07-1060 (La.App. 3 Cir. 1/30/08), 974 So.2d 919, writ denied , 08-504 (La. 4/25/08), 978 So.2d 367. Accordingly, the burden of proof as to the application of an affirmative defense lies with DOTD to prove that the immunity under LHSEADA entitles it to summary judgment. La.Code Civ.P. art. 966(D). Additionally, immunity statutes are strictly construed against the party claiming the immunity. Banks v. Par. of Jefferson , 08-27 (La.App. 5 Cir. 6/19/08), 990 So.2d 26, writ denied , 08-1625 (La. 10/24/08), 992 So.2d 1043.

LAW AND DISCUSSION

DOTD argues that the LHSEADA, La.R.S. 29:735, and the definitions provided in La.R.S. 29:723 entitle DOTD to immunity for the accident involving Mr. Fortner.

Louisiana Revised Statutes 29:735(A)(1) (emphasis ours) provides:

Neither the state nor any political subdivision thereof, nor other agencies, nor, except in case of willful misconduct, the agents' employees or representatives of any of them engaged in any homeland security and emergency preparedness activities , while complying with or attempting to comply with this Chapter or any rule or regulation promulgated pursuant to the provisions of this Chapter shall be liable for the death of or any injury to persons or damage to property as a result of such activity .

The statute has no requirement that a State of Emergency must be declared by the Governor before immunity applies. Louisiana Revised Statutes 29:723(4) defines "emergency preparedness" as "the mitigation of, preparation for, response to, and the recovery from emergencies or disasters." Further, this portion of the statute indicates that "[t]he term 'emergency preparedness' shall be synonymous with 'civil defense', 'emergency management', and other related programs of similar name." Id.

Louisiana Revised Statutes 29:723(2) (emphasis ours) defines a "disaster" in pertinent part as "the result of a natural or man-made event which causes loss of life, injury, and property damage, including, but not limited to natural disasters such as hurricane, tornado, storm, flood, high winds, and other weather related events ..." Louisiana Revised Statutes 29:723(3)(a) defines an "Emergency" as "[t]he actual or threatened condition which has been or may be created by a disaster[.]"

Application of La.R.S. 29:735 And La.R.S. 29:723

Louisiana Revised Statutes 1:3 provides, with respect to the interpretation of a statute, as follows:

Words and phrases shall be read with their context and shall be construed according to the common and approved usage of the language. Technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning.

Louisiana Civil Code Article 9 provides, "When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature."

The uncontested information presented to the trial court by DOTD in the form of documentation and affidavits, coupled with the language of the LHSEADA, La.R.S. 29:735, as well as the definitions contained in La.R.S. 29:723, all demonstrate DOTD's actions in spraying Interstate 10 with potassium acetate in order to melt the ice accumulating on the roadway were the result of "emergency preparedness activities" contemplated in La.R.S. 29:735, and defined in La.R.S. 29:723(4) as "mitigation of, preparation for, [and] response to ... disasters." "Emergency," as defined in La.R.S. 29:723(3)(a) means, "[t]he actual or threatened condition which has been or may be created by a disaster." A "Disaster" is defined in La.R.S. 29:723(2) as a "natural ... event which causes loss of life" including "other weather related events," such as an ice storm in south Louisiana.

In his affidavit Mr. Duberville, the Assistant District Administrator of Operations for DOTD District 7, attested that "The Operation Plan [OPLAN] 13-01, Winter Response[s] was created in response to the Louisiana Homeland Security and Emergency Assistance and Disaster Act [LHSEADA] on or about November 30, 2013 and was applicable in the winter of 2014." The OPLAN "went into effect on or about November 30, 2013." We find that in making the necessary preparations, and then taking the action required by Phase III of the OPLAN, i.e. spraying Interstate 10 with potassium acetate on the morning of January 24, 2014, DOTD was acting under the auspices of La.R.S. 29:735 and its definitions in anticipation of a pending disaster.

DOTD's Actions Prior To The Declaration Of A State Of Emergency

Respondents oppose DOTD's motion for summary judgment on the basis that DOTD's actions preceded the signing of the Declaration of a State of Emergency by the Governor. Respondents rely on Banks , 990 So.2d at 32, which states, "Turning to the cases which have interpreted emergency preparedness immunity, emergency preparedness immunity pursuant to La.R.S. 29:735 has never been granted to activities performed outside of a declared state of emergency." The cases discussed by Banks involved hurricanes, in which the Declaration of a State of Emergency usually allows for an extended period for preparation and cleanup.

In Castile v. Lafayette City-Par. Consol. Gov. , 04-1569 (La.App. 3 Cir. 3/2/05), 896 So.2d 1261, writ denied , 05-860 (La. 5/13/05), 902 So.2d 1029, a state of emergency was declared by Governor Mike Foster after Hurricane Lili struck Lafayette on October 3, 2002. On October 5, 2002, the plaintiffs were injured in an automobile accident due to the alleged negligent placement of debris from the storm. A panel of this circuit granted immunity pursuant to La.R.S. 29:735, as the state of emergency was still in effect at the time of the accident.

In Clement v. Reeves , 05-616 (La.App. 3 Cir. 6/28/06), 935 So.2d 279, a panel of this court found that the immunity of La.R.S. 29:735 did not apply to the Lafayette City-Parish for its failure to maintain an advance-turn warning sign, as the state of emergency declaration from Hurricane Lili had expired six days before the accident at issue.

In Banks , 990 So.2d 26, homeowners filed suit against Jefferson Parish for damage to their homes created by construction work on the Gardere Canal, which construction was intended to improve flood control. A panel of our sister circuit in Banks found that La.R.S. 29:735 did not apply and denied the parish immunity. The panel found there was no need for the court to "find that the statute is limited to activities which occur during a declared state of emergency." Id. at 34. The panel found that La.R.S. 29:735"was intended to address actions taken pursuant to a particular emergency, not to general levee construction." Id. The Banks panel also found, "that emergency preparedness immunity applies only when the activities complained of are taken to address a discreet or specific condition or event." Id.

In this case, the "specific condition or event" was a winter weather advisory which began during the early morning hours of January 24, 2014 and required DOTD to immediately begin implementation of its OPLAN 13-01, Winter Response. See id.

Declaration Of A State Of Emergency and Time Of Signing By Governor

Finally, respondents argue that La.R.S. 29:735 does not allow immunity for the actions of DOTD prior to the Governor signing the Declaration of a State of Emergency. However, La.R.S. 29:735 does not contain any language requiring a formal signing of a Declaration of a State of Emergency before "emergency preparedness activities" can commence.

Louisiana Revised Statutes 29:735 does not contain the words, "During a declared state of emergency," unlike three other portions of the immunity statute which clearly provide that a Declaration of a State of Emergency must have been signed by the Governor for immunity to attach. These include the following:

Louisiana Revised Statutes 29:735.1 (emphasis ours):

During a declared state of emergency anywhere in the state, any health care provider who in good faith voluntarily renders emergency care or first aid to assist persons injured as a result of the emergency whether the aid is rendered in the area subject to the declaration of emergency or elsewhere shall not be civilly liable for causing the death of, or injury to, any person or damage to any property except in the event of gross negligence or willful misconduct.

Louisiana Revised Statutes 29:735.3(A) (emphasis ours):

A. During a declared state of emergency , medical personnel, who render or fail to render emergency care, health care services, or first aid, shall not be liable for any civil damages to a person as a result of an evacuation or treatment or failed evacuation or treatment conducted in accordance with disaster medicine protocol and at the direction of military or government authorities, unless the damage or injury is caused by willful and wanton misconduct.

Louisiana Revised Statutes 29:735.3.1(A) (emphasis ours):

A. During a declared state of emergency , any natural or juridical person, who gratuitously and voluntarily renders any disaster relief or recovery services in coordination with the state or its political subdivisions shall not be liable to the recipient thereof for any injury or death to a person or any damage to property resulting therefrom, except in the event of gross negligence or willful misconduct.

In Cooley v. Acadian Ambulance , 10-1299, pp.12-13 (La.App. 4 Cir. 5/4/11), 65 So.3d 192, 199, a panel of our sister circuit found:

Our review of the statutory definitions of an "emergency" and "emergency preparedness", as well as our review of the relevant case law, reveals that the declaration of an emergency, though not insignificant for the purposes of executing emergency preparedness procedures, is not relevant to determining whether immunity under La.Rev.Stat. 29:735 applies. From these cases, it is clear that applying immunity was not dependent upon an official declaration of emergency, but whether an emergency situation existed, and whether the defendant government was operating in a manner that promoted emergency preparedness and protection of persons and property.

We therefore do not accept respondents' argument that DOTD is not entitled to the immunity granted pursuant to La.R.S. 29:735 as soon as DOTD implemented its actual "emergency preparedness activities"

which, for purposes of this decision we will assume took place prior to the signing of the Declaration of a State of Emergency by the Governor. Rather, we find that DOTD was following its emergency preparedness plan and is entitled to immunity pursuant to La.R.S. 29:735.

CONCLUSION

We find for the foregoing reasons that although the Governor may not have signed the Declaration of a State of Emergency prior to the time DOTD began its "emergency preparedness activities" on Interstate 10, this does not bar DOTD from the immunity granted under the provisions of La.R.S. 29:735. We hereby grant the supervisory writ filed on behalf of the Department of Transportation and Development, overrule the decision of the trial court, and grant relator's motion for summary judgment dismissing the Department of Transportation and Development with prejudice at respondents' costs. All costs of this writ are likewise assessed to respondents, Elda B. Fortner, the Estate of Donald Fortner, Heather Fortner Kasak, Joshua W. Fortner, Christopher A. Fortner, and Matthew C. Fortner.

WRIT GRANTED AND MADE PEREMPTORY. SUMMARY JUDGMENT GRANTED IN FAVOR OF THE DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT. CASE DISMISSED.

EZELL, J., dissents.

      Louisiana Code of Civil Procedure Article 966(H) provides: "On review, an appellate court shall not reverse a trial court's denial of a motion for summary judgment and grant a summary judgment dismissing a case for a party without assigning the case for briefing and permitting the parties an opportunity to request oral argument."


author: LILJEBERG, J.

text:
    Daniel J. BERNAL, Jr. v. CRESCENT FOUNDATIONS, LLC and Paul C. Austin
    NO. 18-CA-495
    Court of Appeal of Louisiana, Fifth Circuit.
    February 27, 2019
    COUNSEL FOR PLAINTIFF/APPELLEE, DANIEL J. BERNAL, JR., Joseph G. Albe, Jr., Scott A. Ledbetter
    COUNSEL FOR DEFENDANT/APPELLANT, CRESCENT FOUNDATIONS, LLC AND PAUL C. AUSTIN, J. Christopher Alexander, Sr., Baton Rouge
    Panel composed of Judges Fredericka Homberg Wicker, Stephen J. Windhorst, and Hans J. Liljeberg
   LILJEBERG, J.

Defendants, Crescent Foundations, L.L.C. and Paul C. Austin, appeal the trial court's April 16, 2018 Judgment, which found defendants jointly and solidarily liable to plaintiff, Daniel J. Bernal, Jr., for damages totaling $ 43,000.00, plus judicial interest from the date of judicial demand and costs. On appeal, defendants raise the following assignments of error: 1) the trial court erred and abused its discretion by proceeding to trial without defendants because the parties reached a settlement prior to trial; 2) the trial court erred in awarding damages resulting from alleged fraudulent criminal charges defendants reported against plaintiff because the allegations were not included in plaintiff's petition and are not supported by the evidence; 3) the damages awarded for the replacement of plaintiff's tools and trailer were excessive; and 4) the trial court erred by trying this matter prior to resolving pending dilatory and peremptory exceptions filed by defendants.

For the reasons stated more fully below, we affirm the trial court's judgment.

FACTS AND PROCEDURAL BACKGROUND

On May 18, 2015, plaintiff filed a petition for damages against defendants seeking to recover damages for tools and a trailer he owned, because defendants refused to allow him to retrieve these items from their business premises. Plaintiff alleged that he used the tools and trailer to perform his duties as a diesel mechanic for Crescent until he sustained a work-related injury on March 18, 2015. Plaintiff first attempted to retrieve his property on April 17, 2015. Plaintiff contends he obtained permission to enter the premises from Crescent's project manager, Andrew. Plaintiff noticed the trailer was damaged and Andrew told him this occurred when Crescent employees attempted to load equipment onto the trailer which exceeded the trailer's weight limit.

Plaintiff then began loading his tools into his truck when Crescent's manager/owner, Paul C. Austin, arrived and threatened to have plaintiff arrested for theft and trespassing unless he removed the tools from his truck. Plaintiff alleged that Austin also verbally threatened him for retaining an attorney and filing a workers' compensation claim against Crescent due to his work-related injury. Plaintiff unloaded his truck and left without his tools and trailer. Plaintiff alleged that he made subsequent requests to retrieve his personal property, which Austin refused. Austin also threatened to have plaintiff arrested for theft and trespassing if he attempted to retrieve his belongings again.

Defendants filed exceptions and an answer in response to plaintiff's petition for damages. Austin, individually, filed a dilatory exception of vagueness or ambiguity of the petition alleging that, while the petition stated Crescent was vicariously liable for plaintiff's damages, the petition failed to "affirmatively state Defendant Austin is liable for the damages therein alleged." Austin alleged that due to plaintiff's failure to include this specific language in the petition, he could not determine whether plaintiff sought to hold him personally liable. Austin and Crescent also raised exceptions arguing the petition was vague and ambiguous because it contained open-ended allegations that Crescent is liable for "[a]ny and all other acts of negligence which will be shown at the trial hereof" and sought damages including "[a]ny and all other relief deemed appropriate under the premises of the case as presented at trial hereof." Defendants asked the trial court to strike these allegations as impermissibly vague.

Both defendants also raised exceptions of no right and no cause of action in response to plaintiff's request for punitive damages and attorney's fees in his concluding prayer for relief. Defendants argued that such relief was not warranted based on the factual allegations contained in plaintiff's petition. The trial court set the exceptions for hearing on September 8, 2015. The minute entry from that date states the exceptions were continued without date by agreement of the parties. Defendants did not move to reset the exceptions for hearing.

On May 15, 2017, plaintiff moved to set the matter for trial. In response, the trial court set a pre-trial conference on July 13, 2017, and ordered the parties to submit a pre-trial order prior to the conference. Plaintiff was the only party to submit a pre-trial order. In his filing, he explained that after he filed his petition, defendants allowed him to retrieve his property on November 15, 2015. He stated that when he went to Crescent's premises, he learned that Austin "cut up the Plaintiff's damaged trailer for scrap and disposed of it." He further alleged that most of his tools were damaged and unusable because they were left outside, unprotected and exposed to the weather. Plaintiff also alleged that Austin followed through on his prior threats and pursued criminal charges against him for fraud and theft in August 2015. Plaintiff stated that he was arrested and held in jail for 24 hours. He alleged that he incurred attorney's fees and missed time for work due to the baseless criminal charges.

Following the pre-trial conference, the trial court issued an order setting trial on April 9, 2018 at 9:00 a.m., and further ordered that the evidence at trial would be limited to the witnesses and exhibits listed by the parties in the pre-trial order.

On the morning of April 9, 2018, plaintiff's counsel appeared for trial. At the beginning of the transcript from these proceedings, the trial court noted it was 10:14 a.m. and that neither defendants nor their counsel appeared for trial at 9:00 a.m. The trial court further noted that numerous attempts were made to contact defense counsel.

Plaintiff's counsel informed the court that he spoke with an assistant in defense counsel's office, who indicated counsel was unavailable due to another court proceeding in Baton Rouge. The assistant also stated that defense counsel claimed he told plaintiff's counsel he was not going to appear on the morning of trial. Plaintiff's counsel responded that this was the "first I'd heard of it," and further represented that he told defense counsel the parties would all appear on the morning of trial to sign a consent judgment. Plaintiff's counsel explained that several days prior to trial, the parties reached an agreement on a settlement amount of $ 17,500.00, but did not reach an agreement on the date defendants would pay the settlement to plaintiff. Plaintiff's counsel further explained that he suggested defendants pay the settlement amount by April 13, 2018, and was willing to allow additional time. However, he never heard from defense counsel regarding his agreement to the date when defendants would pay the settlement amount. Plaintiff's counsel also emphasized that any settlement was conditioned on the parties appearing in court on the morning of trial to sign a consent judgment. The trial court determined the parties had not confected a settlement agreement and instructed plaintiff's counsel to proceed with the trial. The trial court noted again during the trial at precisely 11:51 a.m., that defense counsel had not yet responded to messages the court left with his office.

After hearing testimony and reviewing documents entered into evidence, the trial court entered judgment in favor of plaintiff and against defendants finding them jointly and solidarily liable for the following damages:

1) $ 24,000.00 for the replacement value of plaintiff's tools;
2) $ 6,500.00 for the value of plaintiff's trailer destroyed by defendants;
3) $ 2,500.00 for the reimbursement of attorney's fees incurred by plaintiff as a result of the fraudulent criminal charges defendants pursued; and
4) $ 10,000.00 for the two days of incarceration sustained by plaintiff as a result of the fraudulent criminal charges defendants pursued.

The trial court entered a written judgment on April 16, 2018. Defendants filed a motion for suspensive appeal, which the trial court granted on June 6, 2018, and set an appeal bond in the amount of $ 48,060.43. This Court converted defendants' appeal to a devolutive appeal after plaintiff filed a motion to convert based on defendants' failure to post the suspensive appeal bond ordered by the trial court.

DISCUSSION

No Evidence of Settlement Agreement

In their first assignment of error, defendants argue the trial court erred and abused its discretion by finding the parties did not reach a settlement agreement prior to trial and by proceeding to trial without defendants or defense counsel. The record does not contain evidence of a writing that would constitute a settlement agreement between the parties. We, therefore, find the trial court did not abuse its discretion by proceeding with the trial.

Defendants argue their counsel was in communication with plaintiff's counsel and the trial court on the morning of trial. They contend he had multiple scheduling conflicts that morning as another attorney in his office had a family medical emergency. Defense counsel claims he provided the trial court with information regarding the other court proceedings he attended that morning. However, the record does not contain this information. Defendants further contend the trial court was aware the parties agreed to settle the matter for $ 17,500.00, with payment due from defendants on April 13, 2018. Defense counsel states that he believed the trial would not proceed and that plaintiff's counsel would submit a proposed consent judgment to the trial court for its signature.

A compromise is a contract whereby the parties, through concessions made by one or more of them, settle a dispute or an uncertainty concerning an obligation or other legal relationship. La. C.C. art. 3071. A compromise shall be made in writing or recited in open court, in which case the recitation shall be susceptible of being transcribed from the record of the proceedings. La. C.C. art. 3072.

The record before this Court does not contain any evidence that the parties entered into a settlement or compromise in writing. Defendants did not introduce any evidence into the record explaining why defendants and their counsel failed to appear in court for trial. While plaintiff's counsel disclosed that the parties agreed to settle the matter for $ 17,500.00, he indicated they did not agree to a date on which defendants would pay the settlement and any settlement was conditioned on the parties appearing in court to sign a consent judgment. Based on the foregoing, we do not find the trial court abused its discretion by finding a written settlement agreement did not exist between the parties and by proceeding with trial.

Fraudulent Theft Charges - Evidence Supports Malicious Prosecution Claim

In their second assignment of error, defendants contend the trial court erred and abused its discretion by awarding plaintiff damages as a result of alleged fraudulent theft charges defendants reported against plaintiff. The damages awarded by the trial court included $ 10,000.00 for two days of incarceration and $ 2,500.00 for attorney's fees incurred to defend against the theft charges. Defendants ask this Court to overturn this award on three separate grounds - 1) plaintiff cannot recover because he did not include any facts supporting his claim in his petition for damages; 2) the claim arising from the alleged fraudulent theft charges is prescribed; and 3) the evidence does not support plaintiff's claim. We find these grounds are without merit and affirm the trial court's award.

Though plaintiff and the trial court did not specifically identify the cause of action upon which the trial court awarded damages for the alleged fraudulent theft charges, it is apparent from the parties' briefing and argument that plaintiff sought recovery pursuant to a cause of action for malicious prosecution. With respect to defendants' first argument, we do not find that plaintiff's malicious prosecution claim is precluded merely because he did not formally add the facts supporting this claim to his petition. The arrests occurred after plaintiff filed his original petition and plaintiff first provided notice of his intent to pursue a claim arising from the theft charges in his pre-trial order. While a pre-trial order is not equivalent to a petition, we find the evidence introduced by plaintiff at trial expanded the pleadings.

La. C.C.P. art. 862 provides that except in the case of a final default judgment entered pursuant to La. C.C.P. art. 1703, "a final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings and the latter contain no prayer for general and equitable relief." La. C.C.P. art. 1154 further provides that pleadings are expanded when evidence on issues not raised in a pleading are presented at trial without objection. Carollo v. Shoney's Big Boy Enterprises , 433 So.2d 803, 807 (La. App. 5th Cir. 1983), writ denied , 441 So.2d 213 (La. 1983) ; see also Official Revision Comment (b) to La. C.C.P. art. 1154.

Plaintiff provided notice of his intent to pursue a claim arising from the theft charges in his pre-trial order. Defendants failed to appear at trial and failed to object to the evidence relating to the malicious prosecution claim arising from theft charges brought against plaintiff. This evidence expanded the pleadings and therefore, pursuant to La. C.C.P. art. 862, the trial court did not err or abuse its discretion by awarding damages even though plaintiff never amended or supplemented his petition to add the malicious prosecution claim.

Defendants next argue, for the first time in their appellate brief, that the claim arising from the theft charges is prescribed. La. C.C.P. art. 2163 permits an appellate court to consider a peremptory exception of prescription filed for the first time on appeal. However, the peremptory exception must be raised in a formal pleading and is not properly raised in oral arguments or by appellate brief. See Cosse v. Orihuela , 12-456 (La. App. 5 Cir. 1/30/13), 109 So.3d 950, 953, writ denied , 13-680 (La. 4/26/13), 112 So.3d 850 ; Robertson Roofing & Siding v. Greenberg , 96-107 (La. App. 5 Cir. 5/28/96), 693 So.2d 158, 159, writs denied , 96-2011 (La. 11/8/96), 683 So.2d 270 and 96-2018 (La. 11/8/96), 683 So.2d 271. Accordingly, we will not consider defendants' argument regarding prescription raised for the first time in their appellate brief.

Defendants finally argue the evidence does not support the damages awarded for the malicious prosecution claims arising from the alleged fraudulent theft charges. The elements to prove a claim for malicious prosecution are as follows: 1) the commencement or continuance of an original criminal or civil judicial proceeding; 2) its legal causation by the present defendant against plaintiff who was defendant in the original proceeding; 3) its bona fide termination in favor of the present plaintiff; 4) the absence of probable cause for such proceeding; 5) the presence of malice therein; and 6) damage conforming to legal standards resulting to plaintiff. McClanahan v. McClanahan , 09-182 c/w 09-426 (La. App. 5 Cir. 10/13/09), 27 So.3d 862, 864, writ denied , 09-2455 (La. 1/29/10), 25 So.3d 833.

The trial court's factual findings and credibility determinations are entitled to great weight and will not be disturbed on appeal absent manifest error. Stead v. Swanner , 12-727 (La. App. 5 Cir. 5/16/13), 119 So.3d 110, 117, writ denied , 13-1285 (La. 9/20/13), 123 So.3d 174. When findings of fact are based on determinations regarding the credibility of witnesses, the manifest error standard demands great deference to the trier of fact's findings. Id.

The following is a summary of plaintiff's testimony relating to his malicious prosecution claim. Plaintiff testified that Austin was upset plaintiff filed a workers' compensation claim against Crescent and threatened to pursue criminal charges against him for trespass and theft when plaintiff tried to retrieve tools and a trailer he owned. Plaintiff explained that Austin followed through on these threats by reporting to police that plaintiff stole a fuel tank and motor. Plaintiff explained these charges were baseless because plaintiff used his personal vehicle while he was working for Crescent and Austin personally placed the fuel tank in the back of plaintiff's truck so he could transport fuel to machinery used by Crescent on job sites. Plaintiff testified that defendants did not inform him that his employment was terminated prior to the time he was arrested for possessing the fuel tank.

With respect to the motor plaintiff allegedly stole, plaintiff testified that Austin told him to determine if the motor could be rebuilt and if it could not, Austin said "he didn't want anything to do with it." Plaintiff testified that he brought the engine for testing as instructed and the engine "tested no good, so it was scrap" and "had no value."

As a result of Austin's police report, plaintiff was arrested for two felony theft charges and was in jail for two days. Plaintiff argues that Austin reported the alleged theft of the tank and motor as a retaliatory action for the workers' compensation claim he filed against Crescent. Plaintiff testified that he voluntarily returned the motor and tank when he went to retrieve his tools from Crescent in November 2015. Plaintiff also explained that he was only able to retrieve a small box of items, most of which were not his tools. Plaintiff explained that the criminal charges were dismissed, but he had to retain and pay a lawyer $ 2,500.00.

Defendants contend that the evidence does not exist to support the claim arising from the alleged fraudulent theft charges. We disagree. The first two elements of the malicious prosecution claim - commencement of criminal proceeding and legal causation by defendant - are satisfied by plaintiff's testimony that Austin filed a police report against him regarding the alleged stolen motor and fuel tank and as a result, police arrested plaintiff for two felony theft charges.

With respect to the third element - a bone fide termination in favor of plaintiff - the testimony from the plaintiff indicated that the theft charges were dismissed. In their brief, defendants argue the charges were not fraudulent because plaintiff admitted that he returned the fuel tank and motor to defendants. However, plaintiff explained that he voluntarily returned the motor and fuel tank to Crescent when he was finally allowed to retrieve a small box of his property from Crescent's premises. We review the trial court's factual and credibility findings for manifest error and therefore, cannot find that evidence does not exist to support this element of the malicious prosecution claim.

The fourth element requires an absence of probable cause. Plaintiff explained the charges are baseless because Austin placed the fuel tank on plaintiff's personal truck so he could refuel Crescent's equipment in the field. After plaintiff was injured, Crescent failed to inform him that he was no longer employed before reporting the alleged theft. Furthermore, the scrap metal was a motor that Austin told plaintiff he did not want. Plaintiff testified that he brought the motor to be tested as instructed by Austin and was told that it could not be rebuilt. Austin told plaintiff that he did not want anything to do with the motor if it could not be rebuilt. Consequently, the trial court was not manifestly erroneous in determining an absence of probable cause.

The fifth and sixth elements require evidence of malice by defendants and damages to the plaintiff, respectively. We find evidence of malice exists based on plaintiff's testimony that Austin reacted violently to plaintiff's filing of the workers' compensation claim against Crescent, made threats to have plaintiff arrested and followed through on those threats by filing a report with the police alleging theft of the fuel tank and motor. Finally, evidence of damages exist based on plaintiff's testimony explaining that he spent two days in jail and incurred attorney's fees in the amount of $ 2,500.00 due to his arrest for the theft charges.

Based on the foregoing, we cannot find that the trial court was manifestly erroneous by finding plaintiff proved a claim for malicious prosecution.

Damages Awarded for Tools and Trailer Are Not Excessive

In their third assignment of error, defendants complain the amounts the trial court awarded plaintiff to replace the trailer defendants destroyed ($ 6,500.00) and to replace plaintiff's tools ($ 24,000.00) are excessive. We find the award does not constitute an abuse of the trial court's discretion.

The trier of fact is accorded great discretion in its assessment of quantum for both general and special damages. Savage v. State Farm Mut. Ins. Co. , 09-852 (La. App. 5 Cir. 2/9/10), 33 So.3d 919, 922. A plaintiff is required to prove special damages by a preponderance of the evidence and the findings of the trier of fact are subject to the manifest error standard of review. Williams v. Walgreen La. Co. , 14-716 (La. App. 5 Cir. 2/25/15), 168 So.3d 812, 824, writ denied , 15-610, 15-613 (La. 6/1/15), 171 So.3d 262.

As discussed above, plaintiff worked as a heavy equipment mechanic for Crescent, used his own tools to perform his job and stored the tools on Crescent's business premises. Defendants complain the trial court erroneously based the $ 24,000.00 award on the costs of purchasing new tools and further plaintiff did not present evidence regarding the depreciated value and age of the tools. Defendants also argue the trial court awarded an excessive amount for the trailer because the value listed on the registration was $ 3,000.00, and the registration indicated the purchase date was after plaintiff quit working for Crescent.

At trial, plaintiff explained that defendants repeatedly prohibited him from retrieving the tools he owned and used to work as a mechanic. At trial, plaintiff introduced photos of the equipment he loaded into his truck the first time he attempted to retrieve his tools without success. Plaintiff indicated the pictures included only half of his tools, because the other half were missing from Crescent's premises. Once he was able to gain access to Crescent's premises, plaintiff only recovered one small box of items.

Plaintiff testified that he replaced virtually all of his tools in order to continue to work. He testified that the replacement value of the new tools he purchased cost almost $ 100,000.00. Plaintiff financed the replacement tools and at the time of the trial, he still owed $ 37,500.00 on the loan. He further testified that prior to trial, he made three years of payments on the loan in the amount $ 240.00 per week. He also explained that he purchased two rolling carts at $ 1,000.00 a piece and a big tool box for $ 10,000.00. Plaintiff contends that considering these amounts, the trial court clearly took into consideration that the tools plaintiff lost were used and only awarded plaintiff a reduced amount of $ 24,000.00 to replace the tools he never recovered from defendants.

Regarding his trailer, plaintiff testified that he purchased the trailer for $ 5,000.00 and spent another $ 1,500.00 in steel to have a welder make the bed entirely of steel instead of wood. This amount did not include the cost of the labor to repair the trailer. Plaintiff explained he purchased the trailer prior to January 2015, but did not apply for a new registration until a later date. Crescent employee, Mark Helmrich, testified that plaintiff stored a trailer on Crescent's business premises, and Austin crushed the trailer by rolling over it with a front end loader. Plaintiff also testified that Austin admitted to "cutting the trailer up" and scrapping it.

Based on the evidence outlined above, we do not find the trial court's awards for the lost tools and trailer were manifestly erroneous. The evidence indicates that plaintiff spent well in excess of $ 24,000.00 to replace his tools and equipment. Furthermore, plaintiff's testimony supports the award of $ 6,500.00 for the trailer.

Defendants' Exceptions are Waived

In their final assignment of error, defendants complain the trial court erred by proceeding to trial without ruling on their dilatory exceptions of vagueness and ambiguity and peremptory exceptions of no right and no cause of action. Defendants do not argue the merits of these exceptions, but rather argue this Court should vacate the April 16, 2018 Judgment and remand this matter to the trial court for consideration of the exceptions.

In response, plaintiff argues that defendants waived these exceptions, because they continued the initial hearing without date and did not request another hearing prior to the trial held almost three years later. Plaintiff also argues, in the event the trial court should have considered the exceptions, the error was harmless because plaintiff did not recover punitive damages or attorney's fees incurred to pursue the current litigation. We agree that defendants waived these exceptions due to their failure to request a ruling prior to trial and their failure to properly raise the merits of the peremptory exceptions with this Court.

La. C.C.P. art. 929(A) states that declinatory, dilatory and peremptory exceptions when pleaded before or in the answer shall be tried and decided in advance of the trial of the case. An exception of vagueness or ambiguity is a dilatory exception that serves merely to retard the progress of the action, not defeat it. La. C.C.P. art. 923. Louisiana courts interpreting La. C.C.P. art. 929(A) have held that a defendant's failure to insist upon a hearing and ruling on a dilatory exception, or to object to going forward on the day of trial, is deemed a waiver of the exception. In Re Succession of Adams , 51,914 (La. App. 2 Cir. 4/11/18), 247 So.3d 1014 ; Sims v. BFI Waste Services, L.L.C. , 06-1319 (La. App. 1 Cir. 5/16/07), 964 So.2d 998. Based on the foregoing, we find defendants' waived their exceptions of vagueness and ambiguity of the petition due to their failure to demand a hearing prior to trial.

This Court has also considered peremptory exceptions of no cause and no right of action to be abandoned when they are not ruled on prior to trial. See Drew Dev. Co. v. Hibernia Nat'l Bank , 442 So.2d 1229, 1230-31 (La. App. 5th Cir. 1983), writ denied , 445 So.2d 449 (La. 1984). In Leblanc v. Breaux , 00-897 (La. App. 5 Cir. 12/13/00), 777 So.2d 532, 540-41, this Court noted the record contained unresolved exceptions of no cause of action and found that "since the parties failed to urge that the peremptory exceptions of no cause of action be heard or judgment rendered and have not argued the exceptions on appeal, we conclude that the parties have waived or abandoned these exceptions."

As noted above, defendants did not reurge their peremptory exceptions of no cause or no right of action prior to trial and do not attempt to argue the merits of these exceptions on appeal. Defendants only argue that the trial court erred in trying the matter without resolving the exceptions and request remand. Based on the circumstances at issue in this matter, we find that defendants waived their peremptory exceptions and do not find the trial court was required to dispose of these exceptions prior to proceeding with the trial.

DECREE

For the reasons stated more fully above, we affirm the trial court's July 16, 2018 Judgment in favor of plaintiff, Daniel J. Bernal, Jr. and against defendants, Crescent Foundation, L.L.C. and Paul C. Austin.

AFFIRMED

      Plaintiff named Austin as a defendant in the petition for damages, alleged that he engaged in negligent and intentional tortious conduct against plaintiff and requested that the trial court enter a judgment against Austin awarding plaintiff damages.

      The total amount of payments at a rate of $ 240.00 per week for three years (156 weeks) is $ 37,440.00.

      With respect to the fees awarded as damages for the malicious prosecution claim, the trial court did not award attorney's fees incurred to litigate the lawsuit pending before this Court. Rather, the trial court awarded $ 2,500.00 for attorney's fees as damages incurred to defend against the underlying criminal theft charges. Attorney's fees incurred in a criminal proceeding are a proper item of compensatory damages in a subsequent suit for malicious prosecution. See Guillory v. City of New Orleans , 16-638 (La. App. 4 Cir. 8/2/17), 224 So.3d 1035, 1043, writ dismissed , 18-151 (La. 3/23/18), 238 So.3d 978 ; Ross v. Sheriff of Lafourche Parish , 479 So.2d 506, 513 (La. App. 1st Cir. 1985).

      We are aware that La. C.C.P. art. 927(B) allows this Court to raise peremptory exceptions of no right or no cause of action on its own motion on appeal. However, we find no basis for either exception as the trial court did not award punitive damages or attorney's fees incurred to bring the current proceedings.


author: CHEHARDY, C.J.

text:
    STATE of Louisiana v. Jose Moreno CERVANTES aka Ivan Moreno
    NO. 18-KA-535
    Court of Appeal of Louisiana, Fifth Circuit.
    February 27, 2019
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA: Paul D. Connick, Jr., Terry M. Boudreaux, Gretna, Gail D. Schlosser, Harahan, Blair C. Constant, Rachel L. Africk
    COUNSEL FOR DEFENDANT/APPELLANT, JOSE MORENO CERVANTES AKA IVAN MORENO: Holli A. Herrle-Castillo
    Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Stephen J. Windhorst
   CHEHARDY, C.J.

On appeal, defendant challenges the trial court's ruling on the State's motion in limine regarding prior reports of abuse that did not lead to prosecution. For the following reasons, we affirm defendant's conviction and sentence.

Procedural History

On July 27, 2017, a Jefferson Parish Grand Jury returned an indictment charging defendant, Jose Moreno Cervantes a/k/a Ivan Moreno, with first degree rape of a known juvenile, J.G., where the victim was under the age of thirteen, in violation of La. R.S. 14:42. Defendant pled not guilty at his arraignment on July 28, 2017.

On April 30, 2018, trial before a twelve-person jury commenced. After two days of testimony and evidence, the jury unanimously returned a verdict of guilty as charged. On May 7, 2018, the trial court sentenced defendant to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence and notified defendant of his lifetime obligation to register as a sex offender in accordance with La. R.S. 15:540, et seq. After sentencing, the trial court granted defendant's motion for appeal.

Facts

On August 26, 2015, Dana Williams-Sanders, who is social worker at several elementary schools in Jefferson Parish, saw J.G., a former student at her school, walking to school with her sister. Ms. Williams-Sanders observed that J.G. - a twelve-year-old sixth grader - was noticeably pregnant. Ms. Williams-Sanders reported her observations to the elementary school officials, who alerted the police, child protection, and a health services clinic.

On August 31, 2015, Detective Tyler Lopez of the Westwego Police Department met with J.G. and her mother, T.A., who reported that the mother's ex-boyfriend, Jose Cervantes a/k/a Ivan Moreno, had impregnated J.G. On September 14, 2015, Erica Dupepe of the Children's Advocacy Center interviewed J.G., who disclosed that defendant had raped her three times.

At trial, J.G., who was, by then, fifteen years old, testified that defendant did a "bad thing" to her three times. J.G. indicated that the first incident occurred when she was twelve years old. That day, she was in her bedroom coloring while her mother was taking a shower and her sisters were playing outside. That time, defendant came into her room, touched her chest, pulled down her pants, and put his "private part" inside her "front part." She testified that she cried while "it" happened, which was a long time. After defendant stopped, he just went back into her mother's room. J.G. did not tell anyone because she was afraid defendant was going to hurt her.

J.G. testified that the second incident occurred in her mother's car when defendant, his friend, she, and her sisters were going to Wal-Mart to buy groceries for her mother. After defendant dropped her sisters and his friend at Walmart, he drove J.G. to the back of a nearby apartment complex, got into the backseat with her, and put his "private part" into her. Afterwards, defendant went to a nearby fast food restaurant and bought food so that he could tell the others that he had left to get J.G. something to eat.

J.G. testified that the final incident took place when she accompanied defendant to Brother's Food Mart because he said he would buy her candy. She stated that "the same thing" happened in defendant's car.

J.G. further testified that she did not know that she was pregnant until her mother brought her to see the pediatrician in August. There, she learned that she was eight months pregnant at twelve years old.

On September 28, 2015, J.G. gave birth to a baby boy. After the child's birth, JPSO obtained buccal swabs for DNA testing from J.G. and her baby. When defendant was eventually apprehended in July of 2016, DNA testing admitted at trial revealed that there was a 99.99% chance that defendant was the father of J.G.'s child. Based on the foregoing testimony and evidence, the jury unanimously found defendant guilty of first degree rape of a victim under thirteen years of age.

Discussion

In his sole assignment of error on appeal, defendant argues that the trial court erred in granting the State's motion in limine to exclude allegations of sexual assault previously made by J.G. against another individual, which did not result in criminal charges against that individual. Defendant maintains that the evidence he presented at the hearing on the State's motion in limine was sufficient to establish that reasonable jurors could have found J.G. had previously made a false allegation of sexual assault, which could be admissible at his trial to call into question J.G.'s credibility. He surmises that, if he had been allowed to question J.G. about her prior accusations of sexual assault, the jury may have realized that the rape claim against him was false and that the affidavit regarding self-insemination was actually true.

In this case, the State filed a motion to exclude evidence of the victim's prior allegation of sexual assault. In that allegation, J.G. alleged that another adult male had sexually abused her but the Jefferson Parish District Attorney's office did not proceed with prosecuting that man. In its motion, the State averred that the District Attorney's refusal to prosecute does not prove the allegation to be false, which supports excluding evidence of that allegation.

At a hearing on its motion in limine , the State argued that any alleged "inconsistent statements" made by J.G.-a child-do not prove that the allegation was false. To rebut the motion in limine , defense counsel introduced into evidence numerous police reports from the incident in question, including the initial report in which J.G. told a police officer that an adult male ordered her to take her clothes off and, after she was naked, touched her stomach with his penis. According to the initial report, the victim's mother also advised that she observed J.G. naked and on top of an adult male.

In subsequent reports, the details of the victim's mother's allegation changed: in a second report, the victim's mother stated that her daughter was wearing underwear at the time of the alleged incident; in the third report, the victim's mother returned to her story that J.G. was naked; and, in the fourth report, the victim's mother later stated that she observed J.G. sitting on the adult male's lap wearing a t-shirt and underwear.

Likewise, the victim's account changed over time: in her first report to a clinician, J.G. informed Dr. Jamie Jackson at Children's Hospital that her underwear were off when her mother walked into the room and the alleged abuser was "almost about to do what the grownups do;" in a second police report, J.G. reported that she could not remember if the alleged abuser's genitals were exposed; in the third report, J.G. advised that she was dressed when the alleged abuser exposed his genitals to her; and in a fourth report, J.G. reported again that the alleged abuser told her to remove her clothes, straddle him, and then touched her stomach with his penis.

Finally, on November 9, 2015, the victim's mother submitted a letter to the Jefferson Parish District Attorney, stating that she wished to withdraw the charges of incident behavior with a juvenile against the alleged abuser. The District Attorney's office dismissed the charges against the alleged abuser.

After listening to the evidence presented, the trial court took the matter under advisement but noted the fact that "a mother makes an allegation, a child makes a statement, the child may have a fuzzy memory, that in and of itself does not arise to an unsubstantiated false accusation. The fact that the D.A. refused the charge does not arise to a false accusation which is unsubstantiated." Prior to the start of trial, the court granted the State's motion in limine .

As a general rule, a party may attack the credibility of a witness by examining him or her concerning any matter having a reasonable tendency to disprove the truthfulness of his or her testimony. La. C.E. art. 607(C). In cases involving sexually assaultive behavior, however, La. C.E. art. 412 bars the introduction of evidence of the victim's past sexual behavior, except under limited circumstances as set forth in the article. Specifically, La. C.E. art. 412 prohibits evidence regarding the past sexual behavior of the victim in sexual assault cases, except: (1) when there is an issue of whether the accused was the source of semen or injury, and (2) when the past sexual behavior is with the accused and there is an issue of whether the victim consented to the charged sexually assaultive behavior.

La. C.E. art. 412 does not apply when a defendant attempts to use evidence of a victim's false allegations of improper sexual behavior to impeach the victim's credibility. State v. Smith , 98-2045 (La. 9/8/99), 743 So.2d 199, 202-03. However, the admissibility of such evidence is still subject to all other standards for admissibility under La. C.E. arts. 403, 404, 607, 608, and 613. State v. Bolden , 03-0266 (La. App. 5 Cir. 7/29/03), 852 So.2d 1050, 1061-62 ; State v. Wallace , 00-1745 (La. App. 5 Cir. 5/16/01), 788 So.2d 578, 587, writ denied , 01-1849 (La. 5/24/02), 816 So.2d 297.

In considering a motion in limine seeking to admit or exclude such evidence, the trial judge must evaluate the evidence presented to determine whether reasonable jurors could find, based on the evidence presented by the defendant, that the victim had made prior false accusations. Smith , 743 So.2d at 203. Assuming that burden has been met, all other standards for the admissibility of evidence apply. Id. ; See also La. C.E. arts. 403, 404, 607, 608 and 613. The trial court's determination regarding the relevancy and admissibility of evidence will not be overturned on appeal absent a clear abuse of discretion. State v. Hernandez , 11-712 (La. App. 5 Cir. 4/10/12), 93 So.3d 615, 628, writ denied , 12-1142 (La. 9/28/12), 98 So.3d 834.

Additionally, while a defendant has a constitutional right to present a defense, constitutional guarantees do not assure the defendant the right to the admissibility of any type of evidence but rather only that which is deemed trustworthy and has probative value. State v. Governor , 331 So.2d 443, 449 (La. 1976) ; State v. Gaal , 01-376 (La. App. 5 Cir. 10/17/01), 800 So.2d 938, 950, writ denied , 02-2335 (La. 10/3/03), 855 So.2d 294.

This Court has consistently upheld the trial court's grant of the State's motion in limine , where the victim has not recanted the earlier allegation and there is no independent witness to testify that the allegation was false. See, State v. Gros , 17-374 (La. App. 5 Cir. 2/21/18), 239 So.3d 448, 452, writ denied , 18-0473, 2018 LEXIS 3427 (La. 12/17/18), 2018 WL 6630262; State v. Bryant , 12-591 (La. App. 5 Cir. 2/21/13), 110 So.3d 1191, writ denied , 13-0648 (La. 10/11/13), 123 So.3d 1218.

Here, we find no abuse of the trial court's discretion in granting the State's motion in limine prohibiting defendant from questioning J.G. about her allegation of sexual abuse against an individual other than defendant. First, we find that the evidence does not reveal that any of the exceptions in La. C.E. art. 412(A)(2) apply in this case: the DNA testing confirms that defendant is the child's father so there is no issue as to whether defendant was the source of semen or injury and there is no question of consent as the victim was under the age of thirteen at the time of the crime. Second, at the hearing on the motion, defendant only argued that the victim's reports of the other allegation were inconsistent, which is not evidence that the victim's prior allegation of abuse was false. Accordingly, this assignment of error lacks merit.

Errors Patent

The record was reviewed for errors patent, according to La. C.Cr.P. art. 920 ; State v. Oliveaux , 312 So.2d 337 (La. 1975) ; and State v. Weiland , 556 So.2d 175 (La. App. 5 Cir. 1990). The review reveals no errors patent in this case.

Conclusion

Based on the foregoing, we find no merit in defendant's assignment of error. We hereby affirm defendant's conviction and sentence.

AFFIRMED.

      At the time on the incidents in question, J.G., whose date of birth is January 23, 2003, was eleven or twelve years old. In the interest of protecting minor victims and victims of sexual offenses as set forth in La. R.S. 46:1844(W)(3), the judges of this Court have adopted a policy that this Court's published work will use only initials to identify the victim and any defendant or witness whose name can lead to the victim's identity. State v. Ross , 14-84 (La. App. 5 Cir. 10/15/14), 182 So.3d 983, 985 n.3.

      After the offense in this case, La. R.S. 14:42 was amended in 2015 by La. Act No. 184, to rename the offense of aggravated rape to first degree rape.

      At trial, the defense called Jefferson Parish Assistant District Attorney Laura Schneidau, who interviewed the victim and her mother when Ms. Schneidau was a screener for the District Attorney's office. Ms. Schneidau reported that, in December of 2016, the victim's mother signed an affidavit swearing that defendant did not have sex with the victim and that the victim had impregnated herself with a used condom. Ms. Schneidau testified that she questioned the veracity of the affidavit because the victim, when questioned, could not provide any details to explain the mechanics of using a condom to impregnate one's self.

      In Smith , supra , the victim admitted that she made prior accusations of improper sexual behavior and two witnesses corroborated that fact. At least one independent witness testified that the victim recanted those accusations. Smith , 743 So.2d at 200-01, 203. Smith is distinguishable from the instant case because there is no evidence that J.G. has retracted the prior allegation, and there is no independent witness to testify that the allegation was false.

      "Relevant evidence" is evidence that has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than without the evidence. La. C.E. art. 401. The trial judge in deciding the issue of relevancy must determine whether the evidence bears a rational connection to the fact at issue in the case. State v. Williams , 341 So.2d 370, 374 (La. 1976). Except as limited by the Code of Evidence and other laws, all relevant evidence is admissible and all irrelevant evidence is inadmissible. La. C.E. art. 402. Although relevant, evidence may nonetheless be excluded if the probative value is substantially outweighed by its prejudicial effect. See La. C.E. art. 403.

      La. C.E. art. 412(A) reads, in pertinent part:
      When an accused is charged with a crime involving sexually assaultive behavior, reputation or opinion evidence of the past sexual behavior of the victim is not admissible, ... except for: (a) Evidence of past sexual behavior with persons other than the accused, upon the issue of whether or not the accused was the source of semen or injury; ... or (b) Evidence of past sexual behavior with the accused offered by the accused upon the issue of whether or not the victim consented to the sexually assaultive behavior.

      Consent is not an element that must be proven in the crime of first degree rape of a child under thirteen years old. La. R.S. 14:42. Further, a child under twelve years of age is not capable of giving consent to sexual intercourse. State v. Folden , 135 La. 791, 795, 66 So. 223, 225 (1914)citing State v. Tilman , 30 La. Ann. 1249, 31 Am. Rep. 236 ; State v. Miller , 42 La. 1186, 8 So. 309, 21 Am. St. Rep. 418 ; and State v. Jackson , 46 La. 547, 15 So. 402.


author: MOLAISON, J.

text:
    STATE of Louisiana v. Frankie L. HOOKFIN
    NO. 18-KA-591
    Court of Appeal of Louisiana, Fifth Circuit.
    February 27, 2019
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Metairie, Terry M. Boudreaux, Gretna
    COUNSEL FOR DEFENDANT/APPELLANT, FRANKIE L. HOOKFIN, Lieu T. Vo Clark
    Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and John J. Molaison, Jr.
   MOLAISON, J.

Defendant appeals his sentence for aggravated flight from an officer that follows a guilty plea pursuant to a plea agreement with the State. For the reasons that follow, we affirm defendant's convictions, affirm defendant's sentences on Counts 1-6, vacate defendant's sentence on Count 7, and remand for further proceedings.

PROCEDURAL HISTORY

Defendant, Frankie Hookfin, was charged by the Jefferson Parish District Attorney's Office on June 21, 2013 with five counts of attempted second degree murder, in violation of La. R.S. 14:27:30.1, one count of aggravated criminal damage to property, in violation of La. R.S. 14:55, and, in Count 7, with aggravated flight from an officer in violation of La. R.S. 14:108.1. Defendant pled not guilty at his arraignment on June 25, 2013. Thereafter, on January 19, 2016, defendant pled guilty as charged to all counts. On April 25, 2016, defendant was sentenced as follows: 35 years at hard labor on Counts 1-5, 15 years at hard labor on Count 6, and 10 years on Count 7. All sentences were ordered to run concurrently and "coterminously with Federal case 14-168." After seeking post-conviction relief, defendant was ultimately granted an out-of-time appeal on April 13, 2018, and the instant appeal followed.

FACTS

Because defendant's convictions were the result of guilty pleas, the facts of the underlying offenses were not fully developed at trial. At the time of defendant's guilty pleas, the State provided a factual basis that it asked defendant to verify. In summary, the charges stemmed from a series of events that took place on April 23, 2013. On that date, defendant, with three other men, traveled to the Lapalco Apartments in Jefferson Parish with multiple firearms for the purpose of making a violent attack upon Vincent Jones because of an altercation at a nightclub. Defendant admitted that he was armed with an automatic rifle for that purpose. Upon arriving at Vincent Jones' apartment, an attack was perpetrated, during which time an assault rifle and handgun were fired. Five people were shot during the attack, and physical damage to property was caused by the shots fired. After the attack, defendant was in a car that police unsuccessfully attempted to pull over. Defendant admitted that, during the car chase, his vehicle reached speeds more than 30 miles per hour over the speed limit, he disregarded traffic signals as he eluded police, and the car chase "was done under circumstances where it was possible that human life could have been in danger."

LAW AND ANALYSIS

On appeal, defendant argues that his 10-year sentence for aggravated flight from an officer is illegal, as it exceeds the maximum penalty provided in La. R.S. 14:108.1, and it also violates his plea agreement with the State.

The State agrees that defendant is correct in his assertions, and the sentence on Count 7 is both in violation of the plea agreement and illegally excessive. The State urges that the sentence on Count 7 be vacated and remanded to the district court.

La. R.S. 14:108.1 provides, in relevant part:

E. (1) Whoever commits aggravated flight from an officer shall be imprisoned at hard labor for not more than five years and may be fined not more than two thousand dollars.
(2)(a) Whoever commits the crime of aggravated flight from an officer that results in serious bodily injury shall be imprisoned at hard labor for not more than ten years and may be fined not more than two thousand dollars. [Emphasis added.]

In the instant case, the record shows that the trial judge, during the plea colloquy with defendant on January 19, 2016, indicated that defendant's sentence for aggravated flight from an officer would be two years.

THE COURT:
And with regard to your plea of guilty to the crime of aggravated flight, the Court would sentence you to serve two years at hard labor in the custody of the Department of Corrections of the State of Louisiana. The Court would run that sentence concurrently and coterminously with your sentences in Federal Case Number 14-168 of the Eastern District of Louisiana. The Court would give you credit for time served pursuant to Code of Criminal Procedure Article 880...

However, on April 25, 2016, the date of sentencing, the trial court ordered:

THE COURT:
With regard to your plea of guilty to the crime of aggravated flight, a violation of Louisiana Revised Statute 14:108.1, the Court does hereby sentence you to serve 10 years at hard labor in the custody of the Department of Corrections of the State of Louisiana.

As noted by the State, while La. R.S. 14:108.1(E)(2)(a) does provide for a 10-year sentence when the flight results in a serious bodily injury, the facts of this case do not support such a sentence.

In State v. Lemelle , 06-2975 (La. 9/14/07), 964 So.2d 316, the Louisiana Supreme Court held that the sentences imposed by the trial court, which did not comply with the plea agreement, should be vacated and remanded for resentencing. As indicated above, in the instant case, a fair reading of the Boykin colloquy reveals that an agreement was reached in which defendant's sentence for aggravated flight from an officer would be two years. Accordingly, we vacate the sentence imposed for Count 7, and remand to the trial court for resentencing in compliance with the plea agreement.

ERRORS PATENT REVIEW

As is our routine practice, we have reviewed the record for errors patent, according to La. C.Cr.P. art. 920 ; State v. Oliveaux , 312 So.2d 337 (La. 1975) ; State v. Weiland , 556 So.2d 175 (La. App. 5 Cir. 1990). The following matter was discovered.

A review of the record reveals that the trial court failed to include that the sentences for violation of La. R.S. 14:27:30.1, five counts of attempted second-degree murder, were without benefits. The law mandates that the sentence be served without benefit of parole, probation or suspension of sentence. La. R.S. 15:301.1(A) provides that in instances where the statutory restrictions are not recited at sentencing, they are included in the sentence given, regardless of whether or not they are imposed by the sentencing court.

Furthermore in State v. Williams , 00-1725 (La. 11/28/01), 800 So.2d 790, the Louisiana Supreme Court ruled that paragraph A of the statute self-activates the correction and eliminates the need to remand for a ministerial correction of an illegally lenient sentence, which may result from the failure of the sentencing court to impose punishment in conformity with that provided in the statute. Hence, this Court need take no action to correct the trial court's failure to specify that the defendant's sentences be served without benefit of parole, probation or suspension of sentence. The correction is statutorily effected. State v. Phillips , 03-0304 (La. App. 4 Cir. 7/23/03), 853 So.2d 675.

DECREE

Defendant's convictions on Counts 1-7 and defendant's sentences on Counts 1-6 are affirmed. Defendant's sentence imposed for the offense of aggravated flight from an officer (Count 7) is vacated, and we remand the matter to the trial court for resentencing on Count 7 in accordance with the plea agreement.

CONVICTIONS AFFIRMED; SENTENCES ON COUNTS 1-6 AFFIRMED; SENTENCE ON COUNT 7 VACATED; REMANDED.

      These offenses were listed as Counts 1-5 in the bill of information.

      This offense constituted Count 6 in the bill of information.

      Boykin v. Alabama , 395 U.S. 238, 89 S.Ct.1709, 23 L.Ed.2d 274 (1969).

      When a plea bargain is breached, albeit inadvertently, by imposition of a sentence greater than that agreed upon, the defendant is entitled to specific performance of the plea bargain by resentencing in accordance with the agreement perfected, or withdrawal of the guilty plea, whichever due process requires under the facts of the case. State v. Louis , 446 So.2d 822, 824 (La. App. 2 Cir. 1984) ; State v. Ebright , 04-972 (La. App. 5 Cir. 1/11/05), 894 So.2d 359, 361.


author: GRAVOIS, J.

text:
    STATE of Louisiana v. Rene J. DECAY
    NO. 18-KA-626
    Court of Appeal of Louisiana, Fifth Circuit.
    February 27, 2019
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux, Darren A. Allemand
    COUNSEL FOR DEFENDANT/APPELLANT, RENE J. DECAY, Bertha M. Hillman
    Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and Hans J. Liljeberg
   GRAVOIS, J.

In this, defendant Rene J. Decay's third appeal, he argues that his life sentence as a third-felony offender is unconstitutionally excessive and contends that the trial court erred in denying his motion to correct an illegal sentence and request for resentencing. For the following reasons, we dismiss this appeal and grant defendant thirty days from the date of this opinion to file a writ application with this Court seeking review of the denial of his motion to correct an illegal sentence and request for resentencing.

PROCEDURAL HISTORY

On October 2, 2000, defendant was convicted of possession of over 400 grams of cocaine (count two), attempted possession of over 400 grams of cocaine (count ten), and possession of a firearm by a convicted felon (count three). Defendant was thereupon sentenced to forty years imprisonment at hard labor and fined $ 250,000 for the possession of cocaine conviction (count two); twenty years imprisonment at hard labor and fined $ 125,000 for the attempted possession of cocaine conviction (count ten); and fifteen years imprisonment at hard labor for the possession of a firearm by a convicted felon conviction (count three); with the sentences to be served consecutively. After a hearing, the trial judge found that defendant was a habitual offender, vacated his original sentence of forty years imprisonment at hard labor and fine of $ 250,000 for the possession of cocaine conviction (count two), and resentenced defendant under the habitual offender bill statute to life in prison, without the benefit of parole, probation, or suspension of sentence. See State v. Decay , 02-705 (La. App. 5 Cir. 11/26/02), 833 So.2d 459, 460.

In his first appeal, defendant argued that the trial court erred in denying his motion to suppress the evidence, conducting hearings outside of his and his attorney's presence, allowing a trooper to testify as to his opinions regarding matters that required expertise, and imposing a life sentence that was unconstitutionally excessive. See State v. Decay , 01-192 (La. App. 5 Cir. 9/13/01), 798 So.2d 1057, 1065, writ denied , 01-2724 (La. 8/30/02), 823 So.2d 939. This Court affirmed defendant's convictions and his sentences for attempted possession of over 400 grams of cocaine and possession of a firearm by a convicted felon. See State v. Decay , 798 So.2d at 1078. Because the majority of the panel of this Court reviewing defendant's appeal found that the record was unclear as to the number of previous felony convictions the State proved at defendant's habitual offender hearing, defendant's enhanced sentence was vacated and the case was remanded for resentencing. Id.

On April 19, 2002, defendant appeared before the trial judge for resentencing. That day, the trial judge determined that defendant was a third-felony offender, vacated defendant's original sentence for possession of cocaine, and imposed an enhanced sentence of life imprisonment without the benefit of parole, probation, or suspension of sentence, to run consecutively with the other two sentences. Defendant orally objected to the sentence. See State v. Decay , 833 So.2d at 460.

In his second appeal, defendant's sole assignment of error was that his life sentence was excessive and constituted cruel and unusual punishment. This Court affirmed defendant's enhanced sentence, finding that his mandatory minimum life sentence was not excessive. See State v. Decay , 833 So.2d at 463.

On May 8, 2018, defendant filed a pro se motion to correct an illegal sentence. On August 16, 2018, the trial court denied defendant's motion to correct an illegal sentence on counts two and three and granted the motion to correct an illegal sentence on count ten (attempted possession of over 400 grams of cocaine) after a hearing. As to count ten, the trial court resentenced defendant to imprisonment at hard labor for ten years, and ordered the sentences on counts two, three, and ten to run consecutively to each other.

On September 5, 2018, defendant filed a pro se notice of intent to seek supervisory review of the trial court's denial of his motion to correct an illegal sentence. On September 6, 2018, defense counsel filed a motion for reconsideration of sentence. On September 12, 2018, defense counsel filed a motion for an appeal that was granted. On September 20, 2018, the trial court denied the motion for reconsideration of sentence. This appeal followed.

LAW AND ANALYSIS

On appeal, defendant argues that his life sentence as a third-felony offender is unconstitutionally excessive. He contends that the trial court erred in denying his motion to correct an illegal sentence and request for resentencing.

A ruling denying a motion to correct an illegal sentence is not reviewable by this Court under its appellate jurisdiction. La. C.Cr.P. art. 912 ; State v. Smith , 14-359 (La. App. 5 Cir. 10/29/14), 164 So.3d 902 ; State v. Lee , 11-1128 (La. App. 5 Cir. 7/31/12), 99 So.3d 721, 723 ; State v. Hutchinson , 99-0034, 99-0035 (La. App. 4 Cir. 5/17/00), 764 So.2d 1139, 1140-41 ; State v. Benoit , 446 So.2d 921, 922-23 (La. App. 1st Cir. 1984), writ denied , 448 So.2d 113 (La. 1984). The appropriate avenue of review thereof is by way of a supervisory writ application. See State v. Schwartz , 12-183 (La. App. 5 Cir. 10/16/12), 102 So.3d 991, 993.

Accordingly, based on the foregoing, we dismiss this appeal and grant defendant thirty days from the date of this opinion to file a writ application with this Court seeking review of the denial of his motion to correct an illegal sentence and request for resentencing under this Court's supervisory jurisdiction.

CONCLUSION

For the foregoing reasons, this appeal is dismissed, and defendant is granted thirty days from the date of this opinion to file a writ application with this Court seeking review of the denial of his motion to correct an illegal sentence and request for resentencing under this Court's supervisory jurisdiction.

APPEAL DISMISSED

      During the resentencing hearing, the trial judge referred to count two as possession with intent to distribute cocaine over 400 grams; however, as was stated previously, defendant was actually convicted in count two of possession of over 400 grams of cocaine. Also, the trial judge referred to count ten as conspiracy to possess over 400 grams of cocaine; however, as was stated previously, defendant was convicted of attempted possession of over 400 grams of cocaine.

      By operation of La. C.Cr.P. art. 916(3), the district court retained jurisdiction to rule on defendant's motion for reconsideration of sentence.

      Defendant is only appealing his life sentence and not his resentencing on count ten.