text:
    Jeffrey Mikal BERTHELOT v. Heather Leigh BERTHELOT
    2017 CA 1331
    Court of Appeal of Louisiana, First Circuit.
    Judgment rendered: JULY 18, 2018
    Nicole R. Dillon, Hammond, LA, Attorney for Plaintiff/Appellee, Jeffrey Mikal Berthelot
    Mary E. Heck, Barrios, Denham Springs, LA, Attorney for Defendant/Appellant, Heather Leigh Berthelot
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
   HOLDRIDGE, J.

Heather Leigh Berthelot appeals a judgment rendered in favor of Jeffrey Mikal Berthelot on May 22, 2017. For the reasons that follow, we affirm in part and reverse in part.

FACTUAL AND PROCEDURAL HISTORY

A companion case, Berthelot v. Berthelot, 2017-1055 (La. App. 1 Cir. 7/18/18), 254 So.3d 800, 2018 WL 3470591, also rendered by this court, contains a thorough recitation of the factual and procedural background of the parties' litigation.

Heather and Jeffrey were married on July 10, 1999, and two children were bom of the marriage. On July 14, 2010, Jeffrey filed a petition for divorce. Heather filed a petition for partition of community property on November 3, 2014. On April 17, 2015, the parties entered into a stipulated judgment, granting Jeffrey use of the 2007 Ford F-250 Super Duty King Ranch truck (truck) until the community property partition. The truck was titled in the name of both parties. A trial was held on November 3, 2016, on the parties' partition of community property and reimbursement claims, and the trial court awarded Jeffrey the truck valued at $9,000.00. The trial court signed a judgment in accordance with its ruling on January 31, 2017. Heather filed a Motion for New Trial that was denied by the trial court on April 4, 2017.

Incidental to the parties' divorce and community property partition, several disputes arose between the parties regarding the disposition of the truck. On March 24, 2017, Heather filed a Petition for Rule Nisi for Contempt related to Jeffrey's disposal of the truck. In the petition, Heather argued that Jeffrey obtained a new title for the truck issued only in his name then traded in the truck at Bill Hood Automotive, alienating the community property asset without her consent and before the community property partition was final. Specifically, she argued that Jeffrey disposed of the truck before the appeal delays had run for the Motion for New Trial she filed on February 13, 2017. Therefore, she argued that Jeffrey was in contempt of court for alienating a community asset in violation of a previous trial court judgment containing an injunction preventing him from doing so prior to the community property partition being final.

In response to Heather's petition, Jeffrey answered seeking sanctions against Heather's counsel for filing the Rule for Contempt with an intent to unnecessarily delay, harass, and increase the cost of litigation pursuant to La. C.C.P. art. 863. Jeffrey argued that Heather's counsel violated La. C.C.P. art. 863(B)(1) in that she continued to file pleadings for a truck that Heather testified that she did not want. Jeffrey further argued that the continuous filings regarding the disposal of the truck were disingenuous because Heather's counsel manipulated the facts to make it appear that Jeffrey's actions impaired Heather.

After a hearing on April 24, 2017, the trial court denied Heather's Rule for Contempt and sanctioned her counsel pursuant to La. C.C.P. art. 863(B), ordering her attorney to pay Jeffrey the sum of $1,000.00. The trial court signed a judgment in accordance with its ruling on May 22, 2017. Heather subsequently appealed assigning as error: (1) that the trial court erred in failing to hold Jeffrey in contempt of court for his actions in transferring ownership of the truck prior to the time community property partition was final; (2) that the trial court erred in finding that a party was required to request a stay of proceedings in order for a judgment not to be considered a final judgment while a Motion for New Trial was pending; and (3) that the trial court erred in assessing sanctions against Heather's counsel in the instant matter.

DISCUSSION

In Heather's first assignment of error, she argues that Jeffrey should be held in contempt of court because he alienated a community asset after the trial court rendered a judgment separating the community property, but before the trial court ruled on Heather's timely filed Motion for New Trial. We find that while there is a technical argument to be made that Jeffrey should not have alienated the community property without the consent of Heather until after the community property partition judgment was final, the actions of Jeffrey do not warrant a finding of contempt of court.

A contempt of court is any act or omission tending to obstruct or interfere with the orderly administration of justice, or to impair the dignity of the court or respect for its authority. See La. C.C.P. art. 221. Contempt of court are of two kinds, direct and constructive. Direct contempt is committed in the presence of the Court, and constructive contempt is committed outside of the presence of the Court. DeGruy v. DeGruy, 98-1416 (La. App. 4 Cir. 1/27/99), 728 So.2d 914, 919. Contempt proceedings are designed for the vindication of the dignity of the court rather than for the benefit of a litigant. Brunet v. Magnolia Quarterboats, Inc., 97-187 (La. App. 5 Cir. 3/11/98), 711 So.2d 308, 313, writ denied, 98-0990 (La. 5/29/98), 720 So.2d 343.

Louisiana Code of Civil Procedure article 224(2) defines constructive contempt of court as the "[w]ilful disobedience of any lawful judgment, order, mandate, writ, or process of the court[.]" To find a person guilty of constructive contempt, it is necessary to find that he or she violated the order of court intentionally, knowingly and purposefully, without justifiable excuse. Lang v. Asten, Inc., 2005-1119 (La. 1/13/06), 918 So.2d 453, 454. A trial court is vested with great discretion in determining whether circumstances warrant holding a party in constructive contempt of court pursuant to La. C.C.P. article 224 for willful disobedience of a court order. South East Auto Dealers Rental Ass'n, Inc., v. EZ Rent To Own, Inc., 2009-0011 (La. App. 4 Cir. 6/30/10), 42 So.3d 1094, 1099, writ denied, 2010-1810 (La. 10/29/10), 48 So.3d 1093.

Heather argues that Jeffrey is in contempt of court because he transferred ownership of the truck to Bill Hood Automotive before the time delays had expired for the community property partition judgment. Heather argues that Jeffrey's actions denied her the use of the truck "during the pendency of the property partition appeal ... [and] his actions placed the [truck] beyond the reach of the courts should the award of the [truck] be reversed by the appellate courts." Thus, Heather argues that Jeffrey trading in the truck before the time delays had expired for her Motion for New Trial was a willful disobedience of the law.

The record reveals that Heather did not want the truck and had her own vehicle. In its oral reasons, the trial court stated that it did not believe that a rule for contempt was "the appropriate remedy based upon what [Heather was] complaining about." We agree with the trial court's determination that found that Jeffrey did not violate the trial court judgment intentionally and no damages were sustained by Heather as a result of the truck being traded in to Bill Hood Automotive. Therefore, we find that the trial court did not abuse its discretion in denying Heather's rule for contempt. This assignment of error has no merit.

In Heather's third assignment of error, she argues that the trial court erred in imposing sanctions on her counsel in the sum of $1,000.00 pursuant to La. C.C.P. art. 863. Heather argues that her counsel filed the Petition for Rule Nisi for Contempt to bring to the attention of the trial court that Jeffrey had violated a ruling of the court. Heather further argues that to impose sanctions, a trial court must find one of the affirmative duties imposed by La. C.C.P. art. 863 has been violated and that there was no evidence that the actions of Heather's counsel violated the obligations imposed under this article.

Louisiana Code of Civil Procedure article 863 provides in pertinent part:

A. Every pleading of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated. A party who is not represented by an attorney shall sign his pleading and state his address.
B. Pleadings need not be verified or accompanied by affidavit or certificate, except as otherwise provided by law, but the signature of an attorney or party shall constitute a certification by him that he has read the pleading, and that to the best of his knowledge, information, and belief formed after reasonable inquiry, he certifies all of the following:
(1) The pleading is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.
(2) Each claim, defense, or other legal assertion in the pleading is warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law.
(3) Each allegation or other factual assertion in the pleading has evidentiary support or, for a specifically identified allegation or factual assertion, is likely to have evidentiary support after a reasonable opportunity for further investigation or discovery. (4) Each denial in the pleading of a factual assertion is warranted by the evidence or, for a specifically identified denial, is reasonably based on a lack of information or belief.
* * *
D. If, upon motion of any party or upon its own motion, the court determines that a certification has been made in violation of the provisions of this Article, the court shall impose upon the person who made the certification or the represented party, or both, an appropriate sanction which may include an order to pay to the other party the amount of the reasonable expenses incurred because of the filing of the pleading, including reasonable attorney fees.

Louisiana Code of Civil Procedure article 863 imposes an obligation on litigants and their attorneys to make an objectively reasonable inquiry into the facts and law; subjective good faith does not satisfy this duty of reasonable inquiry. Connelly v. Lee, 96-1213 (La. App. 1 Cir. 5/9/97), 699 So.2d 411, 414, writ denied, 97-2825 (La. 1/30/98), 709 So.2d 710. A trial court's determination regarding the imposition of sanctions is subject to the manifest error or clearly wrong standard of review. Stroscher v. Stroscher, 2001-2769 (La. App. 1 Cir. 2/14/03), 845 So.2d 518, 526. Once the trial court finds a violation of La. C.C.P. art. 863 and imposes sanctions, the determination of the type and/or the amount of the sanction is reviewed on appeal utilizing the abuse of discretion standard. Id.

In the trial court's oral reasons, it stated in pertinent part:

This matter has come before the court multiple times on this truck issue[.] ... However, as it relates to the Rule for Contempt, I don't believe that that is the appropriate remedy based upon what Ms. Berthelot is complaining about. And, Ms. Barrios, as her counsel, you should know that. The Motion for New Trial, [you filed] yes, that's [a] proper procedural device. Filing an appeal, that's a proper procedural device. What Rule for ... what contemptuous behavior Mr. Berthelot exhibited based upon following the court's ruling, I don't quite understand. Therefore, I am going to grant sanctions against Ms. Barrios[.]

It appears from the trial court's oral reasons that the trial court imposed sanctions on Heather's counsel for filing the Rule for Contempt on behalf of her client, which the trial court believed to be the incorrect remedy.

Louisiana Code of Civil Procedure article 863 imposes an obligation on litigants and their attorneys to make an objectively reasonable inquiry into the facts and law; subjective good faith will not satisfy this duty of reasonable inquiry. Louisiana Code of Civil Procedure article 863 does not empower a trial court to impose sanctions on lawyers simply because a particular argument or ground for relief is subsequently found to be unjustified; failure to prevail does not trigger an award of sanctions. This article is intended to be used only in exceptional circumstances; where there is even the slightest justification for the assertion of a legal right, sanctions are not warranted. Tubbs v. Tubbs, 96-2095 (La. App. 1 Cir. 9/19/97), 700 So.2d 941, 945. The test to determine whether to impose sanctions is not whether the trial court finds the arguments have merit, but whether there was the slightest justification for them. Id. Accordingly, we find that although the trial court did not agree with the argument made by Heather's counsel or find it meritorious, this is not the test to determine whether or not to impose sanctions in accordance with La. C.C.P. art. 863. Id. While we make no finding on the merits of those arguments, we find they were legally justified. For this reason and in light of the language mandated by La. C.C.P. art. 863 regarding sanctions, we find that the trial court abused its discretion in imposing sanctions on Heather's counsel in the sum of $1,000.00. See Id. Thus, we reverse in part the judgment of the trial court.

CONCLUSION

For the foregoing reasons, the judgment of the trial court imposing sanctions against Heather Leigh Berthelot's counsel in the sum of $1,000.00 is reversed in part. The judgment of the trial court is affirmed in part in regard to the claims for contempt of court. Costs of this appeal are assessed evenly between the parties.

AFFIRMED IN PART AND REVERSED IN PART.

      We use the spelling set forth in the parties' petition, but note that during these proceedings the parties have also used the spelling "Jeffery."

      Although the appellate record before us does not contain the transcript of the hearing on April 24, 2017, the transcript is included in the appellate record in 2017CA1055. Pursuant to the provision of Uniform Rules of Louisiana Courts of Appeal, Rule 2-1.14 that "[a]ny record lodged in this court may, with leave of court, be used, without necessity of duplication, in any other case on appeal or on writ[,]" we have reviewed the transcript included in the appellate record in 2017CA1055 that is necessary to adequately review the issues raised in this appeal. See Browne v. State ex rel. Dep't of Transp. & Development, 2015-0668 (La. App. 1 Cir. 2/4/16), 2016 WL 483228, p.1 n.2, writ denied. 2016-0442 (La. 4/22/16), 191 So.3d 1044.

      We pretermit discussion of Heather's second assignments of error in light of our discussion of Heather's first assignment of error.


source: Caselaw Access Project

author: HOLDRIDGE, J.

license: Public Domain

text:
    Jeffrey Mikal BERTHELOT v. Heather Leigh BERTHELOT
    2017 CA 1332
    Court of Appeal of Louisiana, First Circuit.
    Judgment rendered: JULY 18, 2018
    Nicole R. Dillon, April Ford Jackson, Hammond, LA, Attorneys for Plaintiff/Appellee Jeffrey Mikal Berthelot
    Mary E. Heck Barrios, Denham Springs, LA, Attorney for Defendant/Appellant Heather Leigh Berthelot
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
   HOLDRIDGE, J.

This appeal arises from a trial court judgment finding that Heather Leigh Berthelot was unjustly enriched pursuant to La. C.C. art. 2298. For the reasons that follow, we reverse.

FACTUAL AND PROCEDURAL HISTORY

A companion case, Berthelot v. Berthelot, 2017-1055, (La. App. 1 Cir. 07/18/18), 564 So.3d 800, 2018 WL 3470591, also rendered by this court, contains a thorough recitation of the factual and procedural background of the parties' ongoing litigation.

Heather Leigh Berthelot and Jeffrey Mikal Berthelot were married on July 10, 1999, and two children were born of the marriage. On July 14, 2010, Jeffrey filed a petition for divorce. On October 26, 2010, the trial court signed a stipulated judgment, which ordered Jeffrey to maintain health insurance coverage for the parties' two minor children. The judgment further ordered that "Jeffrey ... maintain Heather ... on his health insurance policy, until the divorce [was] finalized, unless Heather ... [chose] to leave the plan." Heather had been the policyholder of the family's insurance since 2006 and the policy provided additional coverage to Jeffrey and the two minor children. The parties' divorce became final on January 23, 2012. However, the parties remained cohabitating together until October 2014.

On April 17, 2015, the parties entered into another stipulated judgment, ordering Jeffrey to "provide medical, dental and vision insurance coverage for the minor children and [he] shall be responsible for the payment of said premiums." On May 27, 2015, Jeffrey filed a Rule to Clarify the Stipulated Judgment, stating that because Heather was the policyholder, only she had the authority to modify the insurance policy. Jeffrey alleged that he could not open a new insurance policy himself because of his preexisting medical conditions. Jeffrey stated that Heather refused to cooperate with the insurance company to have Jeffrey and the two minor children separated into a different insurance policy. Therefore, in order for Jeffrey to fulfill his court ordered duty to pay for the two minor children's insurance, he alleged that he also had to pay Heather's insurance premiums because she refused to remove herself from the insurance policy. From October 2014 through August 2016, Jeffrey attempted several times to remove Heather from the insurance policy, but was told that only Heather could make this change since the insurance policy was in her name.

On March 8, 2017, Jeffrey filed a Rule for Contempt of Court against Heather for failing to reimburse him for paying for her insurance premiums. Alternatively, Jeffrey argued that if the trial court determined that Heather's actions did not rise to the level of contempt, she had been unjustly enriched by Jeffrey. Jeffrey argued that Heather was obligated to reimburse him for the medical insurance premiums that he paid on her behalf from October 2014 through August 2016. Jeffrey argued that Heather was given notice and an opportunity to reimburse him for the medical insurance premiums he paid on her behalf; however, she refused to do so. In support of his argument, Jeffrey attached an exhibit that listed the payments he made on Heather's insurance premiums totaling $8,224.80.

On April 24, 2017, Jeffrey's Rule for Contempt was tried along with his unjust enrichment claim. After hearing the parties'

testimonies, the trial court determined that Heather "was enriched in the amount of $8,224.80." The trial court signed a judgment on May 22, 2017, in accordance with its oral ruling, ordering Heather to pay Jeffrey the sum of $150.00 per month beginning May 1, 2017, until said amount of $8,224.80 had been paid in full. Heather suspensively appealed the trial court's May 22, 2017 judgment. In her appeal, Heather argues that the trial court erred in ruling that Jeffrey met his burden of proving that she was unjustly enriched.

STANDARD OF REVIEW

The unjust enrichment remedy is only applicable to fill a gap in the law where no express remedy is provided. Mouton v. State, 525 So.2d 1136, 1142 (La. App. 1 Cir.), writ denied, 526 So.2d 1112 (La. 1988). Louisiana Civil Code article 2298 provides that "[a] person who has been enriched without cause at the expense of another person is bound to compensate that person. The term 'without cause' is used in this context to exclude cases in which the enrichment results from a valid juridical act or the law. The remedy declared is subsidiary and shall not be available if the law provides another remedy for the impoverishment or declares a contrary rule." To prevail on an unjust enrichment claim, the plaintiff must prove by a preponderance of the evidence all five elements: (1) an enrichment; (2) an impoverishment; (3) a connection between the enrichment and the resulting impoverishment; (4) an absence of justification or cause for the enrichment and impoverishment; and (5) the lack of another remedy at law. Davis v. Elmer, 2014-1298 (La. App. 1 Cir. 3/12/15), 166 So.3d 1082, 1087-88 ; see also Tandy v. Pecan Shoppe of Minden, Inc., 34,578 (La. App. 2 Cir. 4/4/01), 785 So.2d 111, 117. A plaintiff does not have the right to recover under the equitable theory of unjust enrichment because he did not successfully pursue another remedy. Id.

DISCUSSION

Heather argues that Jeffrey was not entitled to recover under the theory of unjust enrichment because he failed to prove two essential elements required for a claim of unjust enrichment. First, Heather argues that Jeffrey failed to prove an absence of a cause for the enrichment and impoverishment, arguing that the payment of her insurance premiums was to Jeffrey's benefit because he could only secure health insurance coverage for himself through her as the policyholder for the family policy. Secondly, Heather argues that Jeffrey could have pursued another remedy for his impoverishment making the unjust enrichment remedy unavailable pursuant to La. C.C. art. 2298. Specifically, she argues that Jeffrey declined to obtain a separate insurance policy for himself and the two minor children because he was concerned that he was uninsurable. Thus, Heather argues that Jeffrey voluntarily chose to avail himself by remaining on her insurance policy because he could not get a similar rate to the family insurance policy that she was the policyholder of.

In opposition, Jeffrey argues that the trial court correctly found that Heather was enriched in the sum of $8,224.80 due to the payments that he made on her insurance policy premiums. Jeffrey argues that obtaining his own individual insurance policy is not another legal remedy mandated by La. C.C. art. 2298 because he could not secure a similar policy for a similar amount. Jeffrey argues that he was forced to pay Heather's insurance premiums from October 2014 through August 2016 because she refused to remove herself from the family insurance policy.

In order to prevail on his claim, Jeffrey has the burden of proving all five essential elements of unjust enrichment. See La. C.C. art. 2298. The record reveals that Jeffrey cannot satisfy the second element of unjust enrichment because impoverishment can only be shown when the factual circumstances show that the impoverishment was not a result of the plaintiffs' own fault or negligence or was not undertaken at his own risk. Tandy, 785 So.2d at 117-18. Jeffrey's actions were unilateral and voluntary in continuing to pay Heather's insurance premiums, as he could have stopped paying them at any time between October 2014 and August 2016 by obtaining his own separate insurance policy to insure himself and the two minor children. Thus, Jeffrey is unable to satisfy the second element mandated by La. C.C. art. 2298, as his alleged impoverishment was a direct result of his voluntarily actions in such a way that caused both his impoverishment and whatever enrichment Heather may have received. Accordingly, we find under the circumstances presented, that Jeffrey failed to prove the type of alleged impoverishment necessary to substantiate a claim for unjust enrichment mandated by La. C.C. art. 2298. Therefore, we find that the trial court erred in finding that Heather was unjustly enriched by Jeffrey in the sum of $8,224.80.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is reversed. Costs are assessed to Jeffrey Mikal Berthelot.

REVERSED.

Higginbotham, J. concurs.

      We use the spelling set forth in the parties' petition, but note that during these proceedings the parties have also used the spelling "Jeffery."

      Although the appellate record before us does not contain the transcript of the hearing on April 24, 2017, the transcript is included in the appellate record in 2017CA1055. Pursuant to the provision of Uniform Rules of Louisiana Courts of Appeal, Rule 2-1.14 that "[a]ny record lodged in this court may, with leave of court, be used, without necessity of duplication, in any other case on appeal or on writ[,]" we have reviewed the transcript included in the appellate record in 2017CA1055 that is necessary to adequately review the issues raised in this appeal. See Browne v. State ex rel. Dep't of Transp. & Development, 2015-0668 (La. App. 1 Cir. 2/4/16), 2016 WL 483228, p.1 n.2, writ denied, 2016-0442 (La. 4/22/16), 191 So.3d 1044.

      Although Jeffrey testified that he may have been denied insurance coverage if he had to obtain his own insurance policy, there is no evidence in the record of an insurance company denying him coverage or evidence of him attempting to resubmit to obtain a new insurance policy for himself and the two minor children.


author: GREMILLION, Judge.

text:
    STATE of Louisiana v. Ebone Shirley WILSON
    17-1129
    Court of Appeal of Louisiana, Third Circuit.
    August 22, 2018
    Howard E. Conday, Law Offices of Howard E. Conday, 113 South Drive, Suite #4, Natchitoches, LA 71457, (318) 238-1756, ATTORNEY FOR DEFENDANT/APPLICANT Ebone Shirley Wilson
    Billy Joseph Harrington, Tenth Judicial District Attorney, Amanda McClung, Assistant District Attorney, 200 Church Street, 2nd Floor, Natchitoches, LA 71457, (318) 357-2214, ATTORNEYS FOR RESPONDENT State of Louisiana
    Court composed of Shannon J. Gremillion, John E. Conery, and Van H. Kyzar, Judges.
   GREMILLION, Judge.

Defendant, Ebone Shirley Wilson, was charged by bill of information filed in trial court docket number C24957-A on January 30, 2017, with vehicular homicide, a violation of La.R.S. 14:32.1. She was charged on the same date in trial court docket number T27295-A with driving left of center, a violation of La.R.S. 32:71 ; no safety belt, a violation of La.R.S. 32:295.1 ; and possession of open alcoholic beverages, a violation of La.R.S. 32:300.

A motion was filed on September 5, 2017, by which Defendant moved to suppress the results of a blood draw because the officers unlawfully advised her that she could not refuse consent, and no warrant for the blood draw was secured. Defendant argued that these actions were unconstitutional under the United States Supreme Court decisions in Birchfield v. North Dakota , --- U.S. ----, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016), and Missouri v. McNeely , 569 U.S. 141, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013). The trial court denied the motion at a hearing held on October 12, 2017.

Defendant timely filed a writ application with this court. Therein, she seeks review of the trial court's ruling denying her motion to suppress. For the reasons that follow, we deny Defendant's writ application.

ASSIGNMENTS OF ERROR

In her assignments of error, Defendant contends that the trial court erred in finding that the warrantless blood draw was justified because the United States Supreme Court has ruled that the Fourth Amendment does not permit warrantless blood tests incidental to an arrest for drunk driving, and that the trial court erred in finding that she voluntarily and validly consented to the blood draw.

ANALYSIS

Mixed findings of law and fact in motions to suppress are reviewed under the abuse of discretion standard. State v. Everett , 11-1311 (La.App. 3 Cir. 5/9/12), 89 So.3d 463. At the hearing on the motion to suppress, Defendant argued that if consent for the blood draw was given under the guise that there would be punishment for not consenting, the consent was not valid. Defendant further argued the officer unlawfully advised Defendant that she could not refuse the blood draw. The State admitted that police did not obtain a warrant to draw Defendant's blood.

Defendant cited McNeely , 569 U.S. 141, 133 S.Ct. 1552, 185 L.Ed.2d 696, and Birchfield , 136 S.Ct. 2160, in support of her argument. In McNeely , the Supreme Court held that in drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.

There were three defendants in Birchfield . One of the defendants, Birchfield, was arrested for drunk driving and advised of his obligation under North Dakota law to undergo blood alcohol concentration testing and that refusing to submit to a blood test would lead to criminal punishment. Birchfield refused to let his blood be drawn and was convicted of a misdemeanor for his refusal. He appealed, arguing that the Fourth Amendment prohibited criminalizing his refusal to submit to the test. Another defendant, Beylund, was arrested for driving while impaired. He was read North Dakota's implied consent advisory, informing him that test refusal was a crime. Beylund then agreed to have his blood drawn. Given the test results, Beylund's driver's license was suspended for two years after an administrative hearing. He appealed, arguing that his consent to the blood test was coerced by the officer's warning that refusing to consent would itself be a crime. In addressing these claims, the Supreme Court stated:

Because breath tests are significantly less intrusive than blood tests and, in most cases, amply serve law enforcement interests, we conclude that a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving. As in all cases involving reasonable searches incident to arrest, a warrant is not needed in this situation.
Having concluded that the search incident to arrest doctrine does not justify the warrantless taking of a blood sample, we must address respondents' alternative argument that such tests are justified based on the driver's legally implied consent to submit to them. It is well established that a search is reasonable when the subject consents, e.g. , Schneckloth v. Bustamonte , 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), and that sometimes consent to a search need not be express but may be fairly inferred from context, cf. Florida v. Jardines , 569 U.S. 1, 6-10, 133 S.Ct. 1409, 1415-1416, 185 L.Ed.2d 495 (2013) ; Marshall v. Barlow's, Inc. , 436 U.S. 307, 313, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978). Our prior opinions have referred approvingly to the general concept of implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply. See, e.g. , [
Missouri v. ] McNeely , supra , at 159-60, 133 S.Ct. [1552], at 1565-1566 [ (2013) ] (plurality opinion); [ South Dakota v. ] Neville , [459 U.S. 553] at 560, 103 S.Ct. 916, 74 L.Ed.2d 748 [ (1983) ]. Petitioners do not question the constitutionality of those laws, and nothing we say here should be read to cast doubt on them.
It is another matter, however, for a State not only to insist upon an intrusive blood test, but also to impose criminal penalties on the refusal to submit to such a test. There must be a limit to the consequences to which motorists may be deemed to have consented by virtue of a decision to drive on public roads.
....
[W]e conclude that motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense.
....
Petitioner Birchfield was criminally prosecuted for refusing a warrantless blood draw, and therefore the search he refused cannot be justified as a search incident to his arrest or on the basis of implied consent. There is no indication in the record or briefing that a breath test would have failed to satisfy the State's interests in acquiring evidence to enforce its drunk-driving laws against Birchfield. And North Dakota has not presented any case-specific information to suggest that the exigent circumstances exception would have justified a warrantless search. Cf. McNeely , 569 U.S., at 163-64, 133 S.Ct. at 1567. Unable to see any other basis on which to justify a warrantless test of Birchfield's blood, we conclude that Birchfield was threatened with an unlawful search and that the judgment affirming his conviction must be reversed.
....
Unlike the other petitioners, Beylund was not prosecuted for refusing a test. He submitted to a blood test after police told him that the law required his submission, and his license was then suspended and he was fined in an administrative proceeding. The North Dakota Supreme Court held that Beylund's consent was voluntary on the erroneous assumption that the State could permissibly compel both blood and breath tests. Because voluntariness of consent to a search must be "determined from the totality of all the circumstances," Schneckloth , supra , at 227, 93 S.Ct. 2041 we leave it to the state court on remand to reevaluate Beylund's consent given the partial inaccuracy of the officer's advisory.

Id. at 2185-86 (footnote omitted).

Phillip Tagliarino, formerly employed by the Louisiana State Police, testified at the hearing on the motion to suppress. He indicated that a traffic accident on November 15, 2016, resulted in the death of Derrik Williams. Defendant was transported to the hospital because of injuries from that accident. Tagliarino spoke to Defendant at the hospital and sought her version of what occurred. He testified that Defendant "had a strong odor of alcoholic beverage." He then stated, "When we got to that point, I advised her of her rights and proceeded with the paperwork, as required under a crash investigation." At the time he spoke to Defendant, Tagliarino was aware of the fatality. He did not have a warrant to draw Defendant's blood. When asked what he informed Defendant regarding the drawing of blood, Tagliarino stated, "We read the forms that are required to read, and I asked Ms. Wilson if she would consent, which she did, and she signed the consent papers. I think she signed two different consent papers."

Tagliarino was questioned about State's Exhibit 1, a form regarding the arrestee's rights and notice of withdrawal of driving privileges. The form contained Miranda warnings and indicated that a blood test was administered. The form also contained a statement that Defendant had fifteen days from the date of her arrest to apply to the court for a hearing regarding her driver's license, and if a hearing was not requested, her license would be suspended for one year without eligibility for a hardship license. The collector's report that was part of the blood kit was admitted as State's Exhibit 2. Defendant signed that form, granting permission for the blood draw. Tagliarino testified that he read the forms to Defendant, and she indicated that she understood everything. Defendant did not state that she did not want to have her blood drawn and did not ask if she could decline to do so.

Tagliarino was further questioned:

Q. And you're ... are you aware of the Louisiana Supreme Court law that says that even if she had not consented, that you would have been authorized to take blood in this case?
A. Yes, ma'am. I'm not familiar with the case law, but it is within our rights form that we do read.
Q. And you are familiar with that as part of your duties at Louisiana State Police at the time?
A. Yes, ma'am.
Q. Okay. But based on the fact that she signed these consent forms, that wasn't even something that you were...you weren't even seek ... were you seeking to take her blood without her permission that day?
A. No, ma'am. I asked ... I'll ask anybody that, if they'll voluntarily submit.
Q. And you believe her consent to be voluntary?
A. Absolutely.

The questioning of Tagliarino continued:

Q. So you're familiar with the state laws of Louisiana that gives implied consent when an individual is driving a vehicle, correct?
A. Yes, sir.
Q. Okay. And then you're also familiar with the laws that say that in regards to fatality, you don't actually need consent to draw for blood, correct?
A. Yes, sir.
Q. Do you make your subjects aware of that law?
A. Yes, sir, I read everything that's required.
Q. Okay. So did you make Ms. Wilson aware of those laws?
A. Yes, sir, I did.
Q. You did. Did you make her aware of those laws before she actually signed the consent form?
A. Yes, sir.
Q. Right. So, you basically told Ms. Wilson that by her driving that vehicle, it was implied that she was giving consent to submit to a chemical test, correct?
A. I read all the forms that she [sic] provided. The last thing I do is get the signature, and then we state that they understand.

Sergeant Paul Raines worked for the Louisiana State Police on November 15, 2016 and investigated the accident. He spoke to Defendant at the Natchitoches Parish Hospital. He recalled Tagliarino reading Defendant her rights from State's Exhibit 1, the arrestee's rights form and notice of withdrawal of driving privileges, and was present when the form was signed. Sergeant Raines filled out State's Exhibit 2, the collector's report from the blood kit. He was also present when Defendant signed Exhibit 2. Sergeant Raines testified Defendant never indicated she did not consent, nor did she ask questions about whether she could refuse.

Sergeant Raines was questioned about consent to the blood draw:

Q. You're also familiar with state laws that say when there is some type of fatality involved, that individual can't really...they can't not consent to a blood draw, correct?
A. There is a form that we read when it a ... when it's not a vehicle [sic] homicide case. Um, this form that we read, I believe it's 1, Exhibit 1, because we knew it was a vehicle [sic] homicide case, that portion is not on that form.
Q. It's not on which form?
A. The form that we read, that Trooper Tagliarino read.
Q. Okay. Did you advise her that it was in the implied consent?
A. No, we advise [sic] her what the State says we have to advise her on a vehicle [sic] homicide.
Q. What does the State say you have to advise?
A. That's what the ... that form is a state form for vehicle [sic] homicide advice.
Q. So, you have less ... less rights to advise when it's a homicide as opposed to a regular DUI?
A. I do what the State says do, sir.
Q. So, I know with the DUIs, it says that you have to tell them that their driving privileges can be suspended for refusing to submit to a chemical test, correct?
A. Yes, sir.
Q. And are you telling me that you did not let her know that situation?
A. We didn't read the rights for a DWI, we read the rights for a vehicle [sic] homicide.

Sergeant Raines indicated that Tagliarino was the first officer on the scene, and he would not know whether Tagliarino read Defendant her full rights before she was transported to the hospital.

After the testimony, the State argued Defendant consented to the blood draw, and there was no evidence that her consent was not voluntarily given. Defendant argued that warrantless blood draws were unlawful, and that a motorist could not be deemed to have consented to submit to a blood test on "pain of committing a criminal offense." Defendant further argued:

She submitted to a blood test, not necessarily in the pain of committing a criminal offense, but it's the pain of receiving some type of criminal punishment if she doesn't consent to the blood test. You have the officer who was on the scene at the beginning who admitted that he told her about the implied consent laws and he told her that in the case of a fatality, she basically cannot say, "I don't consent." And that's why she consented. That is not voluntary consent.

The State countered that it was conjecture to say that Defendant consented to the blood draw because she thought she could not refuse. Defendant argued that the form itself informed her that her consent is implied, and that if she failed to consent, she would receive punishment.

The trial court ruled:

I believe that Ms. Ebone Wilson's consent was valid and voluntary. In fact, there are two documents that indicate her consent. I believe that the blood draw was justified under the circumstances. Louisiana law allows law enforcement officers to draw blood from a motorist who has been involved in an accident in which there is a fatality. There was consent in this case. In fact, two documents. But even past that, the law allows under Louisiana R.S. 32:681(a) the operator of any motor vehicle which is involved in a collision, or an operator of any watercraft involved in a collision, crash, or other casualty, in which a fatality occurs should be deemed to have given consent to and shall be administered a chemical test or test of the blood, urine, or other bodily substances for the purposes of determining the presence of any abused substance or controlled dangerous substance as set forth in Louisiana R.S. 40:964, or any other impairing substance. So, point of fact, that she has given consent, additionally in accordance with this law and State v. Weber, which has been cited by the State, I believe that the blood draw was justified and the Motion to Suppress is denied.

In her writ application, Defendant discussed Birchfield , stating that police should have conducted a breath test to determine her blood alcohol concentration rather than a warrantless blood draw, which, she argued, is prohibited by the Fourth Amendment.

Louisiana's implied consent law and penalties for failure to acquiesce thereto can be found in La.R.S. 32:661. That statute provides:

A. (1) Any person, regardless of age, who operates a motor vehicle upon the public highways of this state shall be deemed to have given consent, subject to the provisions of R.S. 32:662, to a chemical test or tests of his blood, breath, urine, or other bodily substance for the purpose of determining the alcoholic content of his blood, and the presence of any abused substance or controlled dangerous substance as set forth in R.S. 40:964 in his blood if arrested for any offense arising out of acts alleged to have been committed while the person was driving or in actual physical control of a motor vehicle while believed to be under the influence of alcoholic beverages or any abused substance or controlled dangerous substance as set forth in R.S. 40:964.
(2)(a) The test or tests shall be administered at the direction of a law enforcement officer having reasonable grounds to believe the person, regardless of age, to have been driving or in actual physical control of a motor vehicle upon the public highways of this state while under the influence of either alcoholic beverages or any abused substance or controlled dangerous substance as set forth in R.S. 40:964. The law enforcement agency by which such officer is employed shall designate in writing and under what conditions which of the aforesaid tests shall be administered.
(b) In the case of all traffic fatalities, the coroner, or his designee, shall perform or cause to be performed a toxicology screen on the victim or victims of all traffic fatalities for determining evidence of any alcoholic content of the blood and the presence of any abused substance or controlled dangerous substance as set forth in R.S. 40:964 which shall include the extracting of all bodily substance samples necessary for such toxicology screen. The coroner, or his designee, shall be responsible for ensuring the body is not removed from his custody until such time as the bodily substance samples are extracted. The coroner's report shall be made available to the investigating law enforcement agency and may be admissible in any court of competent jurisdiction as evidence of the alcoholic content of the blood and the presence of any abused substance or controlled dangerous substance as set forth in R.S. 40:964 at the time of the fatality. The coroner, or his designee, shall determine, by the most current and accepted scientific method available, whether the presence of alcoholic content in the blood of the deceased is the result of pre-death ingestion of alcoholic beverages or the postmortem synthesis of ethanol. Nothing herein shall be construed to limit the authority of the investigating law enforcement agency from conducting an investigation of the accident scene concurrently with the coroner or his designee.
....
B. Any person who is dead, unconscious or otherwise in a condition rendering him incapable of refusal shall be deemed not to have withdrawn the consent provided by Subsection A of this section, and the test or tests may be administered subject to the provisions of R.S. 32:662.
C. (1) When a law enforcement officer requests that a person submit to a chemical test as provided for above, he shall first read to the person a standardized form approved by the Department of Public Safety and Corrections. The department is authorized to use such language in the form as it, in its sole discretion, deems proper, provided that the form does inform the person of the following:
(a) His constitutional rights under Miranda v. Arizona[, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).]
(b) That his driving privileges can be suspended for refusing to submit to the chemical test.
(c) That his driving privileges can be suspended if he submits to the chemical test and such test results show a blood alcohol level of 0.08 percent or above or, if he is under the age of twenty-one years, a blood alcohol level of 0.02 percent or above.
(d) That his driving privileges can be suspended if he submits to the chemical test and the test results show a positive reading indicating the presence of any controlled dangerous substance listed in R.S. 40:964.
(e) The name and employing agency of all law enforcement officers involved in the stop, detention, investigation, or arrest of the person.
(f) That refusal to submit to a chemical test after an arrest for an offense of driving while intoxicated if he has refused to submit to such test on two previous and separate occasions of any previous such violation is a crime under the provisions of R.S. 14:98.2 and the penalties for such crime are the same as the penalties for first conviction of driving while intoxicated.
(2) In addition, the arresting officer shall, after reading said form, request the arrested person to sign the form. If the person is unable or unwilling to sign, the officer shall certify that the arrestee was advised of the information contained in the form and that the person was unable to sign or refused to sign.

Defendant claims Tagliarino admitted that he read her the requirements that made her aware of the possible punishment for failure to consent to a warrantless blood draw or any other warrantless search. She argues that once she was read that language, she consented to the blood draw under "the pain of committing a criminal offense if she refused." Because the Supreme Court has held that motorists cannot be deemed to have consented to a warrantless blood draw "on pain of committing a criminal offense," Defendant argues, she cannot be deemed to have given valid and voluntary consent after being informed of the criminal punishment for refusing to consent to the warrantless blood draw.

Louisiana Revised Statutes 32:661, which was quoted above, sets forth Louisiana's general implied consent law. However, implied consent in cases involving fatalities is governed by La.R.S. 32:681, which provides:

A. The operator of any motor vehicle which is involved in a collision or the operator of any watercraft involved in a collision, crash, or other casualty in which a fatality occurs shall be deemed to have given consent to, and shall be administered, a chemical test or tests of his blood, urine, or other bodily substance for the purpose of determining the presence of any abused substance or controlled dangerous substance as set forth in R.S. 40:964 or any other impairing substance.
B. The test or tests shall be administered at the direction of a law enforcement officer having reasonable grounds to believe the person to have been driving or in actual physical control of a motor vehicle upon the public highways of this state which is involved in a collision or to have been operating or in physical control of a watercraft on the waterways of this state involved in a collision, crash, or other casualty in which a fatality occurs. The law enforcement agency by which such officer is employed shall designate in writing under what conditions the tests shall be administered.
C. In the case of all traffic or boating fatalities, the coroner, or his designee, shall perform or cause to be performed a toxicology screen on the victim or victims of all traffic fatalities for determining evidence of the presence of any abused substance or controlled dangerous substance as set forth in R.S. 40:964 or any other impairing substance which shall include the extracting of all bodily substance samples necessary for such toxicology screen. The coroner, or his designee, shall be responsible for ensuring the body is not removed from his custody until such time as the bodily substance samples are extracted. The coroner's report shall be made available to the investigating law enforcement agency and may be admissible in any court of competent jurisdiction as evidence of the presence of any abused substance or controlled dangerous substance as set forth in R.S. 40:964 or any other impairing substance at the time of the fatality. Nothing herein shall be construed to limit the authority of the investigating law enforcement agency from conducting an investigation of the accident scene concurrently with the coroner or his designee.
D. Any chemical test or tests of a person's blood, urine, or other bodily substance for the purpose of determining the presence of any abused substance or controlled dangerous substance as set forth in R.S. 40:964 or any other impairing substance shall be administered in the same manner and subject to the provisions of Part XIV of this Chapter.

Louisiana Revised Statutes 32:666 discusses refusal to submit to chemical testing, in pertinent part, as follows:

A. (1)(a)(i) When a law enforcement officer has probable cause to believe that a person has violated R.S. 14:98, 98.1, or any other law or ordinance that prohibits operating a vehicle while intoxicated, that person may not refuse to submit to a chemical test or tests if he has refused to submit to such test or tests on two previous and separate occasions of any previous such violation or in any case wherein a fatality has occurred or a person has sustained serious bodily injury in a crash involving a motor vehicle, aircraft, watercraft, vessel, or other means of conveyance. Serious bodily injury means bodily injury which involves unconsciousness, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or a substantial risk of death. The law enforcement officer shall direct that a chemical test or tests be conducted of a person's blood, urine, or other bodily substance, or perform a chemical test of such person's breath, for the purpose of determining the alcoholic content of his blood and the presence of any abused substance or controlled substance as set forth in R.S. 40:964 in his blood in such circumstances. The officer may direct a person to submit to a breath test, and if indicated, an additional blood test for the purpose of testing for the presence of alcohol, abused substances, and controlled dangerous substances. A refusal of any such test or tests shall result in the suspension of driving privileges as provided by the provisions of this Part. A physician, physician assistant, registered nurse, licensed practical nurse, emergency medical technician, chemist, nurse practitioner, or other qualified technician shall perform a chemical test in accordance with the provisions of R.S. 32:664 when directed to do so by a law enforcement officer.
....
(b) The law enforcement officer shall inform the person who is required to submit to such testing of the consequences of a refusal to submit to any testing as required by this Paragraph.
(c) Any person who refuses to submit to a chemical test as required by the provisions of this Paragraph shall be fined not less than three hundred dollars nor more than one thousand dollars and imprisoned for not less than ten days nor more than six months. Imposition or execution of sentence shall not be suspended unless:
(i) The offender is placed on probation with a minimum condition that he serve two days in jail and participate in a court-approved substance abuse program and participate in a court-approved driver improvement program; or
(ii) The offender is placed on probation with a minimum condition that he perform four eight-hour days of court-approved community service activities, at least half of which shall consist of participation in a litter abatement or collection program, participate in a court-approved substance abuse program, and participate in a court-approved driver improvement program. An offender who participates in a litter abatement or collection program pursuant to this Subparagraph shall have no cause of action for damages against the entity conducting the program or supervising his participation therein, including a municipality, parish, sheriff, or other entity, nor against any official, employee, or agent of such entity, for any injury or loss suffered by him during or arising out of his participation in the program, if such injury or loss is a direct result of the lack of supervision or act or omission of the supervisor, unless the injury or loss was caused by the intentional or grossly negligent act or omission of the entity or its official, employee, or agent.
(2) In all cases other than those in Paragraph (1) of this Subsection, a person under arrest for a violation of R.S. 14:98, 98.1, or other law or ordinance that prohibits operating a vehicle while intoxicated may refuse to submit to such chemical test or tests, after being advised of the consequences of such refusal as provided for in R.S. 32:661(C), subject to the following:
(a) His license shall be seized under the circumstances provided in R.S. 32:667.
(b) If he is a resident without a license or permit to operate a motor vehicle in this state, the department shall deny the issuance of a license or permit to such person for a period of six months after the date of the alleged violation.
(c) Evidence of his refusal shall be admissible in any criminal action or proceeding arising out of acts alleged to have been committed while the person, regardless of age, was driving or in actual physical control of a motor vehicle upon the public highways of this state while under the influence of alcoholic beverages or any abused substance or controlled dangerous substance as set forth in R.S. 40:964. Additionally, evidence of his refusal shall be admissible in any criminal action or proceeding arising out of acts alleged to have been committed while the person under twenty-one years of age was driving or in actual physical control of a motor vehicle upon the public highways of this state after having consumed alcoholic beverages. However, such evidence shall not be admissible in a civil action or proceeding other than to suspend, revoke, or cancel his driving privileges.
(3) In all cases where a person is under arrest for a violation of R.S. 14:98, 98.1, or other law or ordinance that prohibits operating a vehicle while intoxicated who refuses to submit to a chemical test or tests if he has refused to submit to a chemical test on two previous and separate occasions of any previous such violation shall be advised that the consequences of such refusal shall be subject to criminal penalties under the provisions of R.S. 14:98.2.

In State v. Weber , 13-1851, p. 2 (La. 5/30/14), 139 So.3d 519, 521, the Louisiana Supreme Court stated:

When an accident involving motor vehicles results in a fatality, the police need not have reasonable grounds to suspect that alcohol or drugs were involved to order a chemical test of the operator's blood, urine, or other bodily substances, as to which the operator of the vehicle is deemed by law to give his consent. La. R.S. 32:681(A). The officer authorizing the test must, however, have reasonable grounds to believe the person to have been driving or in actual physical control of a motor vehicle upon the public highways of this state. La. R.S. 32:681(B).

In State v. Watts , 14-429 (La.App. 1 Cir. 11/21/14), 168 So.3d 441, writ denied , 15-146 (La. 11/20/15), 180 So.3d 315, the defendant argued that the trial court erred in ruling he lawfully submitted to a blood alcohol test. He argued that pursuant to La.R.S. 32:666, prior to the 2012 amendment thereto, he had the right to refuse to submit to the blood test because there was no probable cause to believe he was operating a motor vehicle under the influence of alcoholic beverages at the time of the accident that killed the driver of the vehicle he struck. The first circuit, noting there were signs of impairment, discussed La.R.S. 32:681 and found that once police determined on the scene that defendant was the driver of the truck and a fatality had occurred, police had reasonable grounds to order defendant's blood drawn for analysis. The court stated, "Defendant, as the operator of the vehicle, was 'deemed to have given consent' to the blood test, and the trial court did not err in ruling that he lawfully submitted to the test." Id. at 450.

In the instant case, by virtue of La.R.S. 32:681, Defendant, as the operator of a vehicle involved in a collision resulting in a fatality, is deemed to have given consent to the blood test conducted. Additionally, under La.R.S. 32:666, Defendant could not refuse testing. Furthermore, the penalties set forth in La.R.S. 32:666 for refusal to submit to testing are inapplicable to Defendant. The forms signed by Defendant list no consequences other than suspension of Defendant's driver's license, and the license revocation procedure is a civil matter. State v. Page , 332 So.2d 427 (La.1975). Moreover, there was no direct testimony by Tagliarino or Sergeant Raines that they informed Defendant of any penalty regarding implied consent or refusal to submit to chemical testing. For these reasons, we find the Supreme Court's ruling in Birchfield is inapplicable to this matter.

The testimony of both Tagliarino and Sergeant Raines did not contain any evidence that Defendant's consent in this matter was involuntary. However, as previously noted, verbal or written consent to testing is not necessary under La.R.S. 32:666 and La.R.S. 32:681.

The trial court did not abuse its discretion in denying Defendant's motion to suppress. Accordingly, Defendant's writ application is denied.

WRIT DENIED.


text:
    HOLLOWAY DRILLING EQUIPMENT, INC., et al. v. Billy GUIDROZ, Jr., et al.
    18-209
    Court of Appeal of Louisiana, Third Circuit.
    August 22, 2018
   William H. Parker, III, Allen & Gooch, P.O. Box 81129, Lafayette, LA 70598, (337) 291-1000, COUNSEL FOR DEFENDANT/RELATOR: John W. Wright, LTD, A Certified Public Accounting Corporation

Michael A. Patterson, S. Brooke Barnett-Bernal, Rachel P. Dunaway, Long Law Firm, LLP, 1800 City Farm Drive, Building 6, Baton Rouge, LA 70806, (225) 922-5110, COUNSEL FOR DEFENDANT/RELATOR: Eric Broussard

Louis Clayton Burgess, Sean McAllister, L. Clay Burgess, APLC, 605 W. Congress St., Lafayette, LA 70501, (337) 234-7573, COUNSEL FOR PLAINTIFFS/RESPONDENTS: Holloway Drilling Equipment, Inc., Holloway Rentals, Inc.

Bernard Francis Duhon, Attorney at Law, 111 Concord Street, Suite B, Abbeville, LA 70511, (337) 893-5066, COUNSEL FOR DEFENDANT/RESPONDENT: Billy Guidroz

William E. Wright, Jr., Beverly A. DeLaune, Deutsch, Kerrigan, LLP, 755 Magazine St., New Orleans, LA 70130, (504) 593-0637, COUNSEL FOR DEFENDANT/RESPONDENT: Gregory Inzerella

James L. Brazee, Jr., Evan T. Edwards, Brazee, Cormier & Gallaspy, 2901 Johnston St., Ste. 206, Lafayette, LA 70503, (337) 237-0492, COUNSEL FOR DEFENDANT/RESPONDENT: Kyle Bodin

Bernard F. Duhon, 111 Concord Street, Suite B, Abbeville, LA 70511, (337) 893-5066, COUNSEL FOR DEFENDANT/RESPONDENT, Billy Guidroz

Kyle Bodin, Agent for Butterfly Bodies, LLC, 2114 Turnberry Drive, New Iberia, LA 70563, DEFENDANT/RESPONDENT

Billy Guidroz, Executor of the Estate of Danielle Pellerin Guidroz, 117 Cornish Place, Youngsville, LA 70592, DEFENDANT/RESPONDENT

Court composed of, Sylvia R. Cooks, Shannon J. Gremillion, and D. Kent Savoie, Judges.

Savoie, Judge.

Defendants-Relators, Eric Broussard and John W. Wright, Ltd., a Certified Public Accounting Corporation, seek supervisory writs from the trial court's judgment denying in part their Motion in Limine, which sought to exclude any reference to, evidence of, or reliance upon, the deposition testimony of Danielle Pellerin Guidroz (formerly Bodin) at the trial of this matter.

STATEMENT OF THE CASE

On March 11, 2010, Plaintiffs, Holloway Drilling Equipment, Inc., and Holloway Rentals, Inc. (collectively "Holloway"), filed suit against Danielle Pellerin Guidroz ("Bodin"), her ex-husband Kyle Bodin, and their business enterprise, Butterfly Bodies, LLC, asserting claims of theft, conversion, embezzlement, negligence, unjust enrichment, bad faith, and other allegations. In its second amended petition, Holloway named Eric Broussard ("Broussard"); Inzerella, Feldman, and Pourciau, APC (the "Inzerella Firm"); and John W. Wright, Ltd., A Certified Public Accounting Corporation ("Wright"), as additional defendants. On March 31, 2011, Holloway filed a Request for Review of Claim by a Certified Public Accountant Review Panel ("Request") with the Society of Louisiana Certified Public Accountants against Broussard, the Inzerella Firm, and Wright. Broussard and Wright, were voluntarily dismissed from the lawsuit on July 1, 2011, and July 6, 2011, respectively, to comply with the requirements of the Louisiana Accountancy Act, La.R.S. 37:101 -124.

On June 13, 2011, a hearing was held on the Inzerella Firm's Exception of Res Judicata related to a Receipt and Release Agreement. The exception was granted, and the Inzerella Firm was dismissed.

Holloway thereafter took Bodin's sworn statement on July 12, 2011, which occurred before a court reporter, Bodin's attorney, and Holloway's counsel ("Bodin Sworn Statement").

On July 28, 2011, Holloway filed a Motion for New Trial with respect to the Inzerella Firm's exception, asserting that the Bodin Sworn Statement provided new evidence that implicated Gregory Inzerella ("Inzerella") and Broussard of knowing and participating in Bodin's scheme to defraud Holloway. On July 29, 2011, counsel for the Relators received a copy of Holloway's Motion for New Trial and the Bodin Sworn Statement.

On November 9, 2011, counsel for Holloway and the Inzerella Firm took Bodin's deposition ("Bodin Deposition"). Present at the Bodin Deposition were counsel for Bodin, Holloway, the Inzerella Firm, and Kyle Bodin. During her deposition, Bodin confirmed her accusations against Broussard and Inzerella that were contained in the Bodin Sworn Statement. However, the deposition was specifically limited to the issues associated with the then-pending motion for new trial regarding the trial court's judgment granting the exception of res judicata.

On February 2, 2012, Bodin committed suicide. On that same day, Holloway filed its Fourth Supplemental and Amending Petition, which again listed Broussard as a defendant, who was again voluntarily dismissed. Also in this amending pleading, Plaintiffs added Gregory Inzeralla, individually, as an additional defendant.

On August 6, 2013, Holloway's counsel advised of its intentions to submit into evidence the Bodin Sworn Statement and the Bodin Deposition. Broussard and Wright were again made parties to the suit on May 5, 2016, pursuant to Holloway's fifth amending petition; Gregory Inzerella was also named as a defendant in that pleading.

On August 3, 2017, Inzerella filed a motion in limine seeking to bar Holloway from admitting into evidence the following: (1) the Bodin Sworn Statement; (2) Bodin's handwritten statement dated March 12, 2010; (3) a video interview of Bodin conducted by Broussard Police Department ("BPD") on March 12, 2010; (4) police reports prepared by BPD; and (5) the Bodin Deposition.

On August 4, 2017, Relators in the instant matter filed a similar motion in limine in anticipation of trial, which was scheduled for October 30, 2017. Their motion in limine sought to exclude: (1) the Bodin Sworn Statement; (2) the Bodin Deposition; (3) a deposition of Martha Edley dated November 9, 2011; (4) video interviews of Bodin conducted by BPD on March 12, 2010, and March 24, 2010; (5) police reports prepared by BPD; (6) Bodin's handwritten statement dated March 12, 2010; and (7) any statements made by Bodin, to or through others, because they are inadmissible hearsay and do not meet the requirements of any exception to the hearsay rule, pursuant to La.Code Evid. art. 801, et seq.

Holloway filed a Memorandum in Opposition to All Motions in Limine filed by the defendants ("Global Opposition"). Relators filed a Reply Memoranda. Following two hearings, the trial court took the motions in limine under advisement. On January 31, 2018, all Relators' Motions in Limine, in two separate judgments, were granted in part and denied in part, as the judgments did not exclude the Bodin Deposition. In its Reasons for Ruling, the trial court stated "that counsel for the Inzerella Firm was a party in a similar interest with the opportunity to cross-examine [Bodin] during her deposition. As such, the deposition of Ms. Bodin/Guidroz is admissible at trial." Relators filed a Notice of Intent to Apply for Supervisory Writs. Relators now submit their writ applications seeking reversal of the trial court's January 31, 2018 judgments denying their Motions in Limine, in part, by failing to exclude the Bodin Deposition.

SUPERVISORY RELIEF

"The proper procedural vehicle to contest an interlocutory judgment that does not cause irreparable harm is an application for supervisory writs." Brown v. Sanders , 06-1171, p. 2 (La.App. 1 Cir. 3/23/07), 960 So.2d 931, 933 (citing La.Code Civ.P. arts. 2087 and 2201 ). An appellate court has plenary power to exercise supervisory jurisdiction over trial courts and may do so at any time, according to the discretion of the court. Succession of Shaw v. Alexandria Inv. Grp., LLC , 17-582 (La.App. 3 Cir. 7/26/17), 248 So.3d 332, 2017 WL 5997264.

ON THE MERITS

Relators assert that the trial court erred as a matter of law in failing to apply La.Code Civ.P. art. 1450 by not excluding the Bodin Deposition at trial because they were not afforded the opportunity to cross-examine her. Louisiana Code of Civil Procedure Article 1450 provides:

A. At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the Louisiana Code of Evidence applied as though the witnesses were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions:
....
(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds:
(a) That the witness is unavailable;
....
(c) Upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used.
C. Conflicts between this Article and Code of Evidence Article 804, regarding the use of depositions, shall be resolved by the court in its discretion.

Relators contend that the requirements of La.Code Civ.P. art. 1450 are not met because they were not notified of the Bodin Deposition until December 1, 2011, after the hearing on Holloway's Motion for New Trial was held on November 21, 2011, when counsel for the Inzerella Firm provided the transcripts of all depositions taken on November 9, 2011. Relators argue that the Bodin Deposition cannot be used because they were not "a party present or represented at the taking of the deposition, or who had reasonable notice thereof" in accordance with La.Code Civ.P. art. 1450.

Relators note that the trial court's reasons for judgment state that it would not exclude the Bodin Deposition because "counsel for the Inzerella Firm was a party in a similar interest with the opportunity to cross-examine [Bodin] during her deposition[.]" They assert that the trial court cited Trascher v. Territo , 11-2093 (La. 5/8/12), 89 So.3d 357, for the foregoing proposition. Relators argue that the trial court's use of the phrase "similar interest" suggests that La.Code Evid. art. 804(B)(1) applies in this case. They suggest that the trial court's application of the law is misplaced because the supreme court in Trascher never addressed La.Code Evid. art. 804(B)(1), the "former testimony" exception to the hearsay rule, in determining whether to exclude prior deposition testimony under the facts of that case. Relators further suggest that the supreme court's inclusion of the phrase "or with similar interests to that party" is mere dicta, and, as such, the trial court erred by not excluding the Bodin Deposition based upon that dicta.

Relators assert that the use of the Bodin Deposition at trial is governed by La.Code Civ.P. art. 1450 and can only be admissible if it falls under an applicable exception to the hearsay rule. Relators contend that the Bodin Deposition fails to meet any of the hearsay exceptions found in La.Code Evid. art. 804(B), which provides, in pertinent part:

Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a party with a similar interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. Testimony given in another proceeding by an expert witness in the form of opinions or inferences, however, is not admissible under this exception.

According to Relators, because the Bodin Deposition is not testimony given by a witness at another hearing, it is not admissible under La.Code Evid. art. 804(B)(1) and should be excluded.

The use of depositions, which is governed by La.Code Civ.P. art. 1450, was interpreted by the supreme court in Trascher , 89 So.3d at 368, as follows: "For a deposition taken to perpetuate testimony to be admissible under La.[Code Civ.P.] art. 1450 where the witness is unavailable at trial, the party against whom it is being used or with similar interests to that party must have been given the opportunity to cross-examine the witness."

In this case, counsel for Holloway and the Inzerella Firm took Bodin's deposition on November 9, 2011. Approximately three months later on February 2, 2012, Bodin committed suicide. Thus, Bodin is an unavailable witness under La.Code Civ.P. art. 1450(A)(3)(a). Additionally, Relators herein, as the party against whom it is being used, were not given the right to cross-examine Bodin. Therefore, it must be determined whether a party with similar interests to Relators was given an opportunity to cross-examine Bodin.

In this case, the amended petition asserts the following:

During late 2002 through December 2008 individually and/or in the course and scope of Eric Broussard's employment with lnzerella, Feldman and Purciau [sic], a Professional Corporation and/or from January 2009 through March 2010 individually and/or in the course and scope of Eric Broussard's employment with John W. Wright, Ltd. (A Certified Public Accounting Corporation) he committed negligent and/or intentional acts including but not limited to fraud, breach of contract, breach of fiduciary duty by cooperating with and/or helping defendants, Danielle Bodin, Kyle Bodin and/or Butterfly Bodies, LLC, embezzle, transfer, make unauthorized payments to third payees, falsify accounting records and/or bookkeeping records and/or provide advice to defendants Danielle Bodin, Kyle Bodin and/or Butterfly Bodies, LLC, on how to steal, embezzle, convert and/or hide monies belonging to plaintiffs, Holloway Drilling Equipment, Inc. and/or Holloway Rentals, Inc.

In summary, the amended petition alleges that Broussard was employed by the Inzerella Firm and/or John W. Wright, Ltd. It alleges that during Broussard's employment with the Inzerella Firm or Wright, he conspired with Bodin to steal.

Similarly, Holloway's Fourth Supplemental and Amending Petition avers:

At all times as evidenced in the original and amending petitions, Greg Inzerella was the owner and managing partner of Inzerella, Feldman and Purciau [sic], a Professional Corporation.
Greg Inzerella, individually entered into a scheme with Danielle Bodin and/or Eric Broussard wherein he and/or his firm would gain financially and participated in the fraud to harm Holloway Drilling Equipment, Inc. and Holloway Rentals, Inc. financially through over billing and/or embezzlement.

According to the Bodin Deposition transcript, attorneys for the Inzerella Firm, Deutsch, Kerrigan & Stiles - William Wright, Jr., were present during the deposition. The transcript shows that Gregory Inzerella was also present in his individual capacity. Given the allegations contained in the amended petition, we find that at the time of the Bodin Deposition, the Inzerella Firm was a party with similar interests to all Relators. Although separate personal counsel for Relators was not present at the Bodin Deposition, they were represented by their corporate client, the Inzerella Firm, which had similar interests. Since the Inzerella Firm was present at the Bodin Deposition, it had an opportunity to cross-examine.

We further conclude that Relators' argument regarding the supreme court's alleged dicta in Trascher , 89 So.3d 357, is misplaced in light of La.Code Civ.P. art. 1450(A)(3)(c), which allows the deposition of a witness, whether or not a party, to be used for any purpose if the court finds "that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court[.]" The foregoing language gives the trial court discretion to allow the introduction of deposition testimony when warranted.

For these reasons, the trial court did not err when it denied Relators' motions in limine with respect to the Bodin Deposition.

WRIT DENIED.

      Likewise, in this court's docket number CW 18-229, Defendant-Relator, Gregory Inzerella, seeks review of a similar ruling entered by the trial court on his Motion in Limine.

      Danielle Pellerin Guidroz was formerly Danielle Bodin, as named in the Original Petition.

      Louisiana Revised Statutes 37:102 requires that all claims against Louisiana certified public accountants be submitted to a Certified Public Accountant Review Panel prior to commencing any action in court.

      Inzerella is the Relator in this court's docket no. CW 18-229

      Inzerella advances a similar argument in this court's docket no. CW 18-229


text:
    SUCCESSION OF Dinesh SHAW, M.D. v. Alexandria Investment Group, LLC
    17-1026
    Court of Appeal of Louisiana, Third Circuit.
    August 22, 2018
   William M. Ford, Attorney at Law, P. O. Box 12424, Alexandria, LA 71315-2424, (318) 442-8899, COUNSEL FOR PLAINTIFF/APPELLANT: Succession of Dinesh Shaw, M.D.

Michael M. Meunier, Imtiaz A. Siddiqui, Sullivan Stolier Schulze & Grubb LLC, 909 Poydras Street, Suite 2600, New Orleans, LA 70112, (504) 561-1044, COUNSEL FOR DEFENDANT/APPELLEE: Alexandria Investment Group, LLC

Billy R. Pesnell, J. Whitney Pesnell, W. Alan Pesnell, The Pesnell Law Firm, A P.L.C., H.C. Beck Building, Suite 1100, 400 Travis Street (71101), P. O. Box 1794, Shreveport, LA 71166-1794, (318) 226-5577, COUNSEL FOR PLAINTIFF/APPELLANT: Succession of Dinesh Shaw, M.D., John W. Munsterman, Executor

Barbara Bell Melton, Faircloth, Melton & Sobel, L.L.C., 105 Yorktown Drive, Alexandria, LA 71303, (318) 619-7755, COUNSEL FOR DEFENDANT/APPELLEE: Red River Bank

Court composed of Shannon J. Gremillion, Phyllis M. Keaty, and D. Kent Savoie, Judges.

SAVOIE, Judge.

The Succession of Dinesh Shaw, M.D. (Succession) appeals the judgment of the trial court, granting Red River Bank's (RRB) exception of no right of action and dismissing the Succession's claims. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On November 9, 2015, Dr. Dinesh Shaw became a member of the Alexandria Investment Group, L.L.C. (AIG), along with numerous other members. AIG co-owned and operated a hotel and convention center located at 2225 MacArthur Drive and also owned a tract of unimproved property located at 1810 Air Base Road. At the time the operating agreement was signed, Dr. Shaw was in the final stages of a fatal neurological disease called Amyotrophic Lateral Sclerosis, more commonly known as ALS or Lou Gehrig's Disease. Dr. Shaw died on May 15, 2016, as a result of the disease. On May 19, 2016, John W. Munsterman was appointed as the Independent Executor of Dr. Shaw's succession.

Dr. Shaw's percentage of ownership at the time of his death was 15 2/7%. The operating agreement provides that, in the event of the death of a member, AIG shall purchase the ownership interest of the deceased member for the Death Purchase Price (DPP). The operating agreement further provides that AIG shall pay, within ninety days following receipt of notice of death, twenty percent (20%) of the DPP to the member's succession representative, with the remaining eighty percent (80%) to be paid in equal monthly installments over a five-year period with an interest rate of one percent (1%) above the per annum interest rate paid on thirty-year treasury bills.

On June 7, 2016, Mr. Munsterman sent an e-mail to the attorney for AIG, advising that Dr. Shaw had passed away, attaching a copy of Dr. Shaw's Death Certificate and an order appointing Mr. Munsterman as the Independent Executor of Dr. Shaw's estate. Mr. Munsterman, in a telephone conversation, also explained to Dr. Reymond Meadaa, the managing member of AIG, that he believed the operating agreement provided for a mandatory buyout of Dr. Shaw's ownership interest in AIG upon his death. However, Dr. Meadaa advised that he believed the buyout to be optional. After some back and forth, Mr. Munsterman, in his position as Independent Executor of the estate of Dr. Dinesh Shaw, filed a Petition to Recover Payment of Membership Interest on October 18, 2016, alleging the above facts. He further alleged that the appraised value of AIG's assets at the date of death was $7,000,000. In an amending petition that number was increased to $8,600,000, with Dr. Shaw's portion alleged to be $1,314,571.42. AIG filed an Answer denying the allegations, stating the operating agreement speaks for itself.

On May 14, 2017, RRB filed a Petition of Intervention. RRB is the primary creditor of AIG, with a first-ranked security interest in substantially all of AIG's assets. It is also the holder of a commercial guaranty issued by AIG's members. In the intervention, RRB alleged that AIG is insolvent and operating at a deficit. The intervention further alleged that, on February 29, 2016, AIG executed a promissory note, held by RRB, in the principal amount of $5,500,000. This note is secured by a Multiple Indebtedness Mortgage filed and recorded in the records of Rapides Parish, Louisiana, on March 1, 2016, under File Number 1570714 in Mortgage Book 2924, at Page 703. This mortgage applies to the property located at 2225-2301 MacArthur Drive, Alexandria, Louisiana.

RRB stated in its intervention that Dr. Shaw absolutely and unconditionally guaranteed full and punctual payment and satisfaction of AIG's indebtedness to RRB when he issued the commercial guaranty. RRB argued that the Succession petition to recover conflicts with the covenants of the guaranty.

Thereafter, on May 18, 2017, RRB filed an Exception of No Right of Action alleging that, based on provisions in the commercial guaranty, the Succession's claim has been assigned to the bank and that it does not belong to the Succession or its heirs. As such, the Succession has no right of action. By judgment dated August 7, 2017, the trial court granted RRB's exception and dismissed the Succession's claims. The Succession now appeals.

LAW AND DISCUSSION

A peremptory exception of no right of action poses a question of law and is reviewed de novo. Washington Mut. Bank v. Monticello , 07-1018 (La.App. 3 Cir. 2/6/08), 976 So.2d 251, writ denied , 08-530 (La. 4/25/08), 978 So.2d 369.
....
In Louisiana, an exception of no right of action is raised through a peremptory exception pursuant to La.Code Civ.P. art. 927. The exception's function "is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit." Reese v. State Dep't of Pub. Safety & Corrs. , 03-1615, pp. 2-3 (La. 2/20/04), 866 So.2d 244, 246. The supreme court has noted that when reviewing a trial court's ruling on an exception of no right of action, an appellate court "should focus on whether the particular plaintiff has a right to bring the suit and is a member of the class of persons that has a legal interest in the subject matter of the litigation, assuming the petition states a valid cause of action for some person." Eagle Pipe & Supply, Inc. v. Amerada Hess Corp. , 10-2267, 10-2272, 10-2275, 10-2279, 10-2289, p. 7 (La. 10/25/11), 79 So.3d 246, 256. The burden of proof rests with the movant. Montgomery v. Lester , 16-192 (La.App. 3 Cir. 9/28/16), 201 So.3d 966, writ denied , 16-1944 (La. 12/16/16), 212 So.3d 1173. Evidence introduced in support of a peremptory exception is governed by La.Code Civ.P. art. 931, which provides, in pertinent part: "On the trial of the peremptory exception pleaded at or prior to the trial of the case, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition." Additionally, the court begins its analysis on an exception of no right of action "with an examination of the pleadings." Howard v. Adm'rs of Tulane Educ. Fund, 07-2224, pp. 17-18 (La. 7/1/08), 986 So.2d 47, 60.

Leone v. Ware , 17-638, pp. 1-3 (La.App. 3 Cir. 5/2/18), 246 So.3d 833, 835.

The pleadings show that the Succession is attempting to recover Dr. Shaw's membership interest in AIG at the time of his death, as discussed in the operating agreement. The operating agreement states, in pertinent part:

10.3 Death of a Member-
10.3.1. If a Member dies, then the Company shall purchase the Ownership Interest of the deceased Member for the Death Purchase Price (defined below). As used in this Section 10.3, the term "Death Purchase Price" shall mean the appraised value in the Company's multiplied by the Ownership Interest percentage of the deceased Member. The deceased Member's presumed succession representative shall immediately give written notice to the Company of the death of the Member (the "Death Notice"). If the Death Notice is not timely given, the Company may give such notice which shall also constitute the Death Notice.
10.3.2 Within ninety (90) days following the Death Notice, at a reasonable date, time and place set by the Company:
(i) the Company shall pay, in cash to the Member's presumed succession representative (or the heirs and legatees to the extent put in possession of the Ownership Interest of the Deceased Member), twenty (20%) percent of the Death Purchase Price for the Ownership Interest with the remainder to paid in equal monthly installments over a five (5) year period at the interest rate per annum being paid on thirty (30) year treasury bills at the time of the Death Notice plus one (1%) percent; provided, however, that if at any time during such five (5) year period the Company is paying one or more Members, or the Members' curators, trustees, etc., as the case may be, then the payments to all Members, or the Members' curators, trustees, etc., as the case may be, shall be reduced by one-half and paid in equal monthly installments over a ten (10) year period instead;
(ii) the deceased Member's presumed succession representative shall deliver to the Company the Ownership Interest, free and clear of all liens, charges, and encumbrances other than those created by this Agreement, together with proof of the right of the person to transfer ownership of such Ownership Interest; and
(iii) the deceased Member's presumed succession representative shall immediately pay the outstanding balance of any indebtedness owed by the deceased Member to the Company.

RRB argues that Dr. Shaw assigned his right to recover to RRB by way of the Commercial Guaranty that he signed to secure the Multiple Indebtedness Mortgage, and, therefore, the Succession has no right of action. The Commercial Guaranty states:

GUARANTOR'S SUBORDINATION OF RIGHTS ....Guarantor hereby assigns to Lender all claims which it may have or acquire against Borrower or any assignee or trustee of Borrower in bankruptcy; provided that, such assignment shall be effective only for the purpose of assuring to Lender full payment of Borrower's indebtedness guaranteed under this Guaranty.
GUARANTOR'S RECEIPT OF PAYMENT. Guarantor further agrees to refrain from attempting to collect and/or enforce any of Guarantor's collection and/or reimbursement rights against Borrower (or against any other guarantor, surety or endorser of Borrower's Indebtedness), arising by way of subrogation or otherwise, until such time as all of Borrower's Indebtedness that then remains is fully paid and satisfied....

The Commercial Guaranty lists Dr. Dinesh Shaw as the Guarantor, AIG as the Borrower and RRB as the Lender. Dr. Shaw signed the Commercial Guaranty on February 29, 2016.

The Succession counters that the assignment in the Commercial Guaranty was illegal and contrary to Section 10.1 of the Operating Agreement, which states:

Restrictions on Transfer- The Members shall have no right to sell, transfer, convey, alienate, donate, encumber, pledge or otherwise transfer, dispose of or hypothecate all or part of their Ownership Interests, including any transfer resulting from the divorce of a Member, (a "Transfer") except upon a vote of seventy-five (75%) percent of the Ownership Interest of the Members. Notwithstanding the foregoing, after written notice to the other Members and the Company, a Member may transfer all or part of his or her Ownership Interest to a trust, corporation, or other entity created by the Member solely for estate planning purposes and/or controlled by the transferring Member.

The Succession argues that "Ownership Interests" has the same meaning as "Membership Interests" for the purposes of this provision. It is the Succession's contention that, because there was no notice of a meeting and no meeting amending Section 10.1 of the Operating Agreement, there has been no valid amendment to the Operating Agreement. Therefore, it asserts Dr. Shaw could not have transferred any rights in the Commercial Guaranty.

We find no validity in this argument. Dr. Shaw did not transfer his "Membership Interest" or "Ownership Interest" in the Commercial Guaranty. Rather, he assigned his rights to any claims he may have against AIG. In this respect, the assignment does not exist in perpetuity. Instead, the assignment "shall be effective only for the purpose of assuring to Lender full payment of Borrower's indebtedness guaranteed under this Guaranty," at which point the Succession's claims will revert to the Succession.

The Succession next argues that the trial court erred in finding that the language of the guaranty was unambiguous. "A contract of guaranty is equivalent to a contract of suretyship, and the two may be used interchangeably." Cottonport Bank v. DD Group, Inc. , 06-328, p. 2 (La.App. 3 Cir. 9/27/06), 941 So.2d 90, 92. "Suretyship is an accessory contract by which a person binds himself to a creditor to fulfill the obligation of another upon the failure of the latter to do so." La.Civ.Code art. 3035. "Interpretation of a contract is the determination of the common intent of the parties." La.Civ.Code art. 2045. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties' intent, and courts must enforce the contract as written. La.Civ.Code art. 2046. In such circumstances, the question of contractual interpretation is answered purely as a matter of law, as is the determination of whether a contract is ambiguous or not. Sims v. Mulhearn Funeral Home, Inc. , 07-54 (La. 5/22/07), 956 So.2d 583.

The words in the Commercial Guaranty provisions are clear and explicit and do not lead to absurd consequences. Consequently, we do not find the contract provisions at issue to be ambiguous. Therefore, we need not look to the intent of the parties in order to interpret the contract.

We find most compelling the language found under the provision "GUARANTOR'S RECEIPT OF PAYMENT ," wherein the Guarantor (Dr. Shaw) agreed to refrain from attempting to collect or enforce his own collection and reimbursement rights against AIG "until such time as all of [AIG's] Indebtedness that then remains is fully paid and satisfied." We find that the facts of this case fall under this provision. The Succession is attempting to collect from AIG the DPP of Dr. Shaw's Ownership Interest prior to AIG's indebtedness being fully satisfied. This action is clearly prohibited under the terms of the Commercial Guaranty, to which Dr. Shaw agreed. As such, we find that the Succession does not have a right of action to recover at this time, based on the prematurity of the claim.

DECREE

For the foregoing reasons, the judgment of the trial court, granting Red River Bank's Exception of No Right of Action and dismissing the claims of the Succession of Dinesh Shaw, M.D. is affirmed. All costs of this appeal are assessed to the Succession of Dinesh Shaw, M.D.

AFFIRMED.