text:
    Cynthia BRIDGES, Secretary, Department of Revenue, State of Louisiana v. NELSON INDUSTRIAL STEAM COMPANY
    Cynthia Bridges, Secretary, Department of Revenue, State of Louisiana v. Nelson Industrial Steam Company
    Nelson Industrial Steam Company v. Calcasieu Parish School Board Sales and Use Tax Department, et al.
    Nelson Industrial Steam Company v. Calcasieu Parish School Board Sales and Use Tax Department, et al.
    17-981 17-982 17-983 17-984
    Court of Appeal of Louisiana, Third Circuit.
    May 2, 2018
    Linda S. Akchin, Angela W. Adolph, Jason R. Brown, Kean Miller LLP, 400 Convention Street, Suite 700, Baton Rouge, Louisiana 70802, (225) 387-0999, Counsel for Defendant/Appellant: Nelson Industrial Steam Company
    H. Alan McCall, Stockwell, Sievert, Viccellio, Clements & Shaddock, Post Office Box 2900, Lake Charles, Louisiana 70602-2900, (337) 436-9491, Counsel for Defendant/Appellant: Nelson Industrial Steam Company
    Russell J. Stutes, Jr., Stutes & Lavergne, LLC, 600 Broad Street, Lake Charles, Louisiana 70601, (337) 433-0022, Counsel for Defendant/Appellee: Calcasieu Parish School System Sales and Use Tax Department
    Court composed of Shannon J. Gremillion, Phyllis M. Keaty, and D. Kent Savoie, Judges.
   KEATY, Judge.

The taxpayer, Nelson Industrial Steam Company (NISCO), appeals a judgment rendered in its favor in these consolidated tax cases, granting its exceptions of lack of subject matter jurisdiction and improper cumulation to an Amended Answer and Reconventional Demand (AA&RD) filed by the Calcasieu Parish School System Sales and Use Tax Department (CPSS), and dismissing the foregoing pleading without prejudice. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

This matter involves four consolidated tax cases. Two are suits by Cynthia Bridges, Secretary, Louisiana Department of Revenue, State of Louisiana (LDR) against NISCO to collect taxes and two are suits by NISCO against CPSS for the refund of taxes paid under protest. NISCO is in the business of generating electric power in Lake Charles, Louisiana. NISCO sells steam, electricity and ash. Limestone is bought and used for the dual purpose of inhibiting sulfur in the production of electricity and producing ash. NISCO contends that its purchase of limestone, with respect to its production of ash, is subject to the "further processing exclusion" of La.R.S. 47:301(10)(c)(i)(aa), which narrows the scope of taxable sales.

These cases have been before this court twice before. In Bridges v. Nelson Industrial Steam Co. , 14-1250, pp. 2-3 (La.App. 3 Cir. 6/24/15), 169 So.3d 711, 713, we stated:

The trial court initially heard cross-motions for summary judgment on the further processing issue and granted summary judgments in favor of the State and the Parish in the first three suits. On appeal, this court affirmed.
Bridges v. Nelson Industrial Steam Co. , 12-477 (La.App. 3 Cir. 11/7/12), 106 So.3d 147. The Louisiana Supreme Court granted NISCO's writ application and vacated the summary judgment rulings, finding that genuine issues of material fact precluded summary judgment. Bridges v. Nelson Industrial Steam Co. , 13-171 (La. 3/8/13), 108 So.3d 1168. On remand, following a trial on the merits which included the fourth suit, the trial court rendered judgments again in favor of the State and the Parish, signing four separate judgments, one for each of the consolidated cases.

This court affirmed the trial court's rulings. Id. Upon NISCO's application for writ of certiorari, the supreme court granted writs, reversed, and remanded "to the trial court to fix the amount of the judgment in a manner consistent with [its] opinion." Bridges v. Nelson Indus. Steam Co. , 15-1439, p. 17 (La. 5/3/16), 190 So.3d 276, 287. Thereafter, NISCO submitted proposed judgment to LDR and CPSS; however, when the parties were unable to agree on who would pay costs, NISCO filed a Motion for Entry of Judgment and Rule for Taxation for costs, which LDR opposed. Following a December 12, 2016 contradictory hearing, NISCO circulated judgments to the parties for signature, and the trial court signed a Judgment After Remand on January 11, 2017.

In the interim, CPSS filed an ex-parte Motion and Order for Leave to File Amended Answer and Reconventional Demand on December 29, 2016, which the trial court signed. Soon after it was served with that pleading, NISCO filed declinatory exceptions of lack of subject matter jurisdiction and insufficiency of citation and service of process; a dilatory exception of improper cumulation; a motion to vacate the order granting CPSS leave to file the AA&RD; and a motion to strike the AA&RD. CPSS opposed the exceptions and motions. The exceptions and motions came before the trial court for contradictory hearing in March 2017. After hearing argument from counsel, the trial court ruled that it would "dismiss the reconventional demand without prejudice." CPSS then filed a separate suit against NISCO in the Fourteenth Judicial District Court asserting facts identical to those contained in the AA&RD, which, it concedes, was improperly filed in this matter.

The parties appeared before the trial court again in June 2017 for a hearing on a Motion for Entry of Judgment filed by NISCO after they were unable to agree on the wording for the judgment granting NISCO's exceptions and motions. While there were initially three issues in dispute, the parties worked out two of those issues before the hearing began. After listening to argument from counsel, the trial court chose the exact wording it wanted in the judgment, which it ordered counsel for CPSS to prepare for signature. The resulting judgment was signed on June 29, 2017. NISCO now appeals, asserting that:

1. The district court erred in not granting NISCO's Motion to Vacate the Ex Parte Order granting leave to file CPSS's "Amended Answer and Reconventional Demand" and not striking the "Amended Answer and Reconventional Demand" from the record.
2. The district court erred in including incorrect and misleading language in the judgment indicating that it was granting NISCO's exception of lack of jurisdiction over the principle actions in the captioned matter, when the basis of NISCO's exception, and the court's ruling in open court, was that the court lacked subject matter jurisdiction over CPSS's reconventional demand .

DISCUSSION

Appellate courts review questions of law de novo, determining whether the trial court's ruling was correct. Gladney v. Anglo-Dutch Energy, L.L.C. , 16-468 (La.App. 3 Cir. 12/21/16), 210 So.3d 903, writ denied , 17-365 (La. 4/13/17), 218 So.3d 120.

Louisiana Code of Civil Procedure Article 1031, titled "Incidental demands allowed," provides in pertinent part: "A. A demand incidental to the principal demand may be instituted against an adverse party."

In its exceptions to the AA&RD filed by CCPS's, NISCO asserted:

1.
Pursuant to La. C.C.P. art. 925(A)(6), NISCO raises the declinatory exception of lack of subject matter jurisdiction, on the ground that this court was divested of jurisdiction by entry of orders of suspensive appeal on June 30, 2014.
2.
The remedy for granting of the declinatory exception of lack of subject matter jurisdiction is dismissal. See La. C.C.P. art. 932(B).[ ] The School Board must file the claims asserted in its "Reconventional Demand" as an Original Petition, and submit said Original Petition to the Clerk of Court for random allotment.
....
5.
Pursuant to La. C.C.P. art. 926(A)(7), NISCO raises the dilatory exception of improper cumulation, on grounds that the Court lacks subject matter jurisdiction over the "Reconventional Demand" because it has been divested of jurisdiction over the principle actions. See La. C.C.P. art. 462. Pursuant to La. C.C.P. art. 464,[ ] the appropriate remedy for granting of this exception is dismissal of the "Reconventional Demand."

In the prayer for relief contained in its exceptions, NISCO asked that CPSS's AA&RD be "dismissed for lack of subject matter jurisdiction." Alternatively, NISCO asked the trial court to vacate its order granting CPSS leave to file the AA&RD, to strike the AA&RD from the record, and to dismiss the claims asserted in the AA&RD.

At the March 2017 hearing, after hearing argument from counsel in support of and in opposition to NISCO's exceptions and motions, the trial court remarked:

Okay. I find that the remand to this Court was very specific and limited, and the Court has complied with what it was remanded-what the remand required and ordered. And I think this is a brand new action under new laws, new facts, new tax years and there is a concern for judicial economy. I certainly understand that. Unless or if the case is re-filed as an ordinary proceeding after today and then randomly allotted and comes to me, then that's one thing. But if it goes to someone else then there is an argument for judicial economy, but I don't think that trumps this Court's finding that the case that we tried is over. And it was over prior to the supplemental answer and reconventional demand. The case had been tried and all of the issues were-were litigated and decided and concluded, and that concluded the case. So there was nothing to attach or reconvene with respect to a principle demand because the principle demand had been resolved. I think this reconventional demand and the answer in reconventional demand is an improper accumulation[sic]. I guess the [ La.Code Civ.P. art.] 1155 argument that it required a contradictory hearing is now moot because we are here contradictorily. I think there has to be allotment of the new pleading.

As mentioned previously, the parties failed to come to an agreement regarding the language that should be contained in the judgment to reflect the rulings the trial court made at the March 2017 hearing. NISCO circulated a proposed judgment that provided in relevant part: "Accordingly, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that NISCO's Declinatory Exception of Lack of Subject Matter Jurisdiction is GRANTED." CPSS, on the other hand, preferred that this portion of the judgment state: "Accordingly, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that NISCO's Declinatory Exception of Lack of Subject Matter Jurisdiction over the above-captioned consolidated matters is GRANTED."

In the argument presented at the June 2017 hearing concerning the wording of the judgment, counsel for both parties quite candidly admitted that their concerns about the wording of the judgment stemmed from their anticipation that NISCO would later assert that the claims brought by CPSS in its AA&RD are prescribed. After hearing what essentially amounted to a rehashing of the merits of NISCO's exceptions, the trial court stated:

I'm going to keep that language in there. Because at that time I did lack subject matter jurisdiction over the captioned matters, except to the extent that I had to comply with the remand. And I couldn't do anything else. And that's consistent with what I did then. I set aside the reconventional demand because I was without authority to act as it applied-as it was attempted-as the filing was a reconventional filing.

The judgment that was ultimately signed and which NISCO now appeals reads:

[T]he Court finds as follows:

The Court's subject matter jurisdiction in the above captioned consolidated matters is limited by the Supreme Court's order of May 3, 2016, in Bridges v. Nelson Indus. Steam Co. , 2015-1439 (La. 5/3/16), 190 So.3d 276, providing: "We remand this matter to the trial court to fix the amount of the judgment in a manner consistent with this opinion," and the Court has complied with that mandate.
Because the above captioned consolidated matters were fully adjudicated to the merits, CPSS's "Answer and Reconventional Demand" has no pending Petition to respond to or reconvene against.
CPSS's "Amended Answer and Reconventional Demand" is a new action improperly cumulated with the above-referenced actions;
CPSS's "Reconventional Demand" for collection of tax for the period from January 1, 2013 through December 31, 2015 must be dismissed, without prejudice, re-filed as a new action and randomly allotted.
Accordingly, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that NISCO's Declinatory Exception of Lack of Subject Matter Jurisdiction over the above captioned consolidated matters is GRANTED;
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that NISCO's Dilatory Exception of Improper Cumulation is GRANTED;
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that CPSS's pleading entitled "Amended Answer and Reconventional Demand" BE AND IS HEREBY DISMISSED WITHOUT PREJUDICE;
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that in light of the foregoing orders, NISCO's Declinatory Exception of Insufficiency of Citation and Service of Process, NISCO's Exception of Improper Use of Incidental Action, NISCO's Motion to Vacate Order Granting CPSS Leave to file "Amended Answer and Reconventional Demand" and NISCO's Motion to Strike CPSS's "Amended Answer and Reconventional Demand["] are mooted.

On appeal, NISCO insists that the judgment's inclusion of the phrase "over the above captioned consolidated matters" amounts to a "gross mischaracterization of its declinatory exception." It admits that the trial court obviously had jurisdiction of the consolidated matters and that it filed its exception of lack of subject matter jurisdiction "in response to and aimed at the reconventional demand" filed by CPSS.

NISCO's Motion to Vacate the Ex Parte Order granting leave to file CPSS's "Amended Answer and Reconventional Demand"

In its first assigned error, NISCO asserts error in the trial court's failure to grant its Motion to Vacate the Ex Parte Order granting CPSS leave to file its AA&RD and its failure to strike the AA&RD from the record.

We have performed a de novo review of the record in this matter. The primary relief sought in its exceptions and motions was to have the trial court dismiss CPSS's AA&RD. That ruling was in conformity with the dictates of La.Code Civ.P. art 932(B). Upon its dismissal of the AA&RD, the trial court did not have to rule on NISCO's Motion to Vacate its order granting CPSS's motion to file that pleading. We conclude that under the circumstances, NISCO was not entitled to a judgment vacating the order granting CPSS leave to file its AA&RD. NISCO's first assignment of error lacks merit.

The Language of the Judgment

In its second assigned error, NISCO asserts that the trial court "erred in including incorrect and misleading language in the judgment." NISCO submits that the basis of its exception was that the trial court lacked subject matter jurisdiction over CPSS's reconventional demand. According to NISCO, the trial court agreed at the March 2017 hearing that it lacked subject matter jurisdiction over CPSS's reconventional demand; however, the judgment that the trial court signed wrongly indicated "that it was granting NISCO's exception of lack of jurisdiction over the principle actions in the captioned matter." In its appellant brief, NISCO admits that the judgment "correctly states" that CPSS's AA&RD is dismissed without prejudice. It further asserts therein that "[t]he effect of a dismissal without prejudice is as if the action were never filed, thus preserving for NISCO[ ] any prescription defense available to it in the subsequent re-filing of the action."

In the exceptions and motions that NISCO filed in response to CPSS's AA&RD, it asserted that the trial court was divested of jurisdiction when it signed an order on June 30, 2014, allowing NISCO to suspensively appeal the final judgments rendered in these consolidated cases on June 2, 2014. Thereafter, citing La.Code Civ.P. art. 932(B), NISCO correctly stated that "[t]he remedy for granting of the declinatory exception of lack of subject matter jurisdiction is dismissal." As we stated in response to NISCO's first assigned error, the trial court found merit to NISCO's arguments and it dismissed CPSS's AA&RD. Again, NISCO received the relief it sought in the trial court. Moreover, we conclude that dismissal of CCSS's AA&RD was the relief to which NISCO was entitled under the Louisiana Code of Civil Procedure. There is no merit to NISCO's second assignment of error.

DECREE

For the foregoing reasons, the judgment rendered in favor of Nelson Industrial Steam Company, granting its exceptions of lack of subject matter jurisdiction and improper cumulation to the Amended Answer and Reconventional Demand filed by the Calcasieu Parish School System Sales and Use Tax Department and dismissing the foregoing pleading without prejudice is affirmed. All costs of this appeal are assessed against Nelson Industrial Steam Company.

AFFIRMED.

      Coincidentally, that matter was randomly allotted to the trial judge who presided over this suit.

      We note that the judgment did not state the year in which it was signed.

      "If the grounds of the objection cannot be so removed, or if the plaintiff fails to comply with an order requiring such removal, the action, claim, demand, issue, or theory subject to the exception shall be dismissed...." La.Code Civ.P. art 932(B).

      "When the court lacks jurisdiction of, or when the venue is improper as to, one of the actions cumulated, that action shall be dismissed." La.Code Civ.P. art. 464.


source: Caselaw Access Project

license: Public Domain

text:
    639 JULIA STREET PARTNERS v. The CITY OF NEW ORLEANS, et al.
    NO. 2017-CA-0940
    Court of Appeal of Louisiana, Fourth Circuit.
    May 2, 2018
    Miles G. Trapolin, TRAPOLIN LAW FIRM, 4603 S. Carrollton Avenue, Suite F, New Orleans, LA 70119, COUNSEL FOR PLAINTIFF/APPELLANT
    Rebecca H. Dietz, City Attorney, Derek M. Mercadal, Kimlin S. Lee, Churita H. Hansell, Assistant City Attorneys, Parish of Orleans, 1300 Perdido Street, Room 5E03, New Orleans, LA 70112, Christopher R. Teske, Elizabeth A. Chickering, GIEGER, LABORDE & LAPEROUSE, L.L.C., One Shell Square, 701 Poydras Street, Suite 4800, New Orleans, LA 70139, Richard G. Duplantier, Jr., Peter A. Bourgeois, GALLOWAY JOHNSON TOMPKINS BURR & SMITH, One Shell Square, 701 Poydras Street, 40th Floor, New Orleans, LA 70139, COUNSEL FOR DEFENDANTS/APPELLEES
    (Court composed of Judge Roland L. Belsome, Judge Sandra Cabrina Jenkins, Judge Regina Bartholomew-Woods)
    Judge Regina Bartholomew-Woods In this negligence case, Plaintiff-Appellant, 639 Julia Street Partners, appeals the August 21, 2017 judgment granting the joint exception of prescription in favor of Defendants-Appellees, the City of New Orleans through its Department of Parks and Parkways, the Downtown Development District, and Bayou Tree Service, Inc. For the reasons that follow, we reverse and remand for further proceedings.
    FACTUAL AND PROCEDURAL HISTORY
    Plaintiff-Appellant, 639 Julia Street Partners ("Appellant"), owns a two (2) story, red brick building ("building") situated at the corner of Saint Charles Avenue and Julia Street in New Orleans, Louisiana. Peter Trapolin ("Trapolin"), Appellant's managing partner, alleged that in 2010, he noticed "new cracks in the building that seemed to coincide with the maturation of Chinese pistachio trees that were planted as saplings years before by (Defendants-Appellees) the City of New Orleans ("the City") and the Downtown Development District ("the DDD") (collectively, "Appellees"). Trapolin asserted that he wrote to Appellees and requested that the trees be removed; however, Appellees refused, and on April 5, 2011, Appellant filed suit in the Civil District Court for the Parish of Orleans. Appellant asserts that suit was filed within a year of his knowledge of the new cracks in the building, which he attributed to the maturation of the Chinese pistachio trees.
    In 1998, Appellant filed suit against the City for damage caused to the building by red oak trees that the City had planted along Saint Charles Avenue in preparation for the 1984 World's Fair. In his brief, Appellant explains that "the roots of the mature oak trees had grown under the foundation and pulled the moisture out of the clay causing the foundation and walls to crack." In 2001, the trial court rendered judgment finding the City negligent and awarded damages in favor of Appellant.

      The building's address is 639 Julia Street, New Orleans, Louisiana.

   In the present matter, Appellees contend that the Chinese pistachio trees at issue in this appeal were planted between 1996 and 1998. Appellees deny that the building has sustained any damage caused by the trees, but argue that Appellant "acquired or should have acquired knowledge of the damage caused by the trees in September 2000," during the pendency of the earlier lawsuit. Appellees argue further that this is a delictual action involving an immovable property subject to one (1)

year liberative prescription; therefore, Appellant's claim has prescribed because the present suit was filed more than ten (10) years after Appellant acquired or should have acquired knowledge of the damage.

Appellant asserts that, in 1998, the Chinese pistachio trees were planted as saplings and were small, young trees during the pendency of the earlier suit. Appellant further asserts that at issue in this suit is new damage along the Julia Street side of the building where the roots of the now-mature Chinese pistachio trees have reached and damaged the building's foundation. By contrast, the damage in the earlier suit was on the St. Charles side of the building.

On April 27, 2017, Appellees filed a joint exception of prescription. On August 21, 2017, the trial court rendered judgment with incorporated reasons maintaining the exception and dismissing Appellant's claims. It is from this judgment that Appellant appeals.

DISCUSSION

Appellant raises the following assignments of error:

1. Whether the trial court committed manifest error in maintaining Appellees' joint exception of prescription, because Appellees did not introduce any evidence into the record to support its exception? Accordingly, in the absence of evidence, the joint exception of prescription must be decided solely on the facts alleged in Appellant's petition.
2. Alternatively, if this court finds that Appellees did, in fact, introduce evidence into the record, whether the trial court committed manifest error in maintaining Appellees' joint exception of prescription, because there is no evidence that the Chinese pistachio trees, planted as saplings along the Julia Street side of the building between 1996-1998, had the potential to damage the building prior to 2000?

Standard of Review

This Court, in Wells Fargo Fin. Louisiana, Inc. v. Galloway , reasoned that:

[a] peremptory exception generally raises a purely legal question. See Metairie III v. Poche' Const., Inc., [20]10-0353, p. 3 (La. App. 4 Cir. 9/29/10), 49 So.3d 446, 449. Nonetheless, evidence may be introduced in the trial court to support or controvert a peremptory exception of prescription. See La. C.C.P. art. 931 (providing that "evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition"). The standard of review of a trial court's ruling on a peremptory exception of prescription turns on whether evidence is introduced. State v. Thompson , [20]16-0409, p. 18 (La. App. 4 Cir. 11/23/16), 204 So.3d 1019, 1031 (citing Miralda v. Gonzalez , [20]14-0888, pp. 17-18 (La. App. 4 Cir. 2/4/15), 160 So.3d 998, 1009 ).
When no evidence is introduced, "the judgment is reviewed simply to determine whether the trial court's decision was legally correct." Arton v. Tedesco , [20]14-1281, p. 3 (La. App. 3 Cir. 4/29/15), 176 So.3d 1125, 1128.

2017-0413, pp. 7-8 (La. App. 4 Cir. 11/15/17), 231 So.3d 793, 799-800.

Additionally, the Louisiana Supreme Court stated that "[i]n the absence of evidence, the exception of prescription must be decided on the facts alleged in the petition, which are accepted as true." Denoux v. Vessel Mgmt. Servs., Inc. , 2007-2143, p. 6 (La. 5/21/08), 983 So.2d 84, 88. "[T]he standard controlling our review of a peremptory exception of prescription also requires that we strictly construe the statutes against prescription and in favor of the claim that is said to be extinguished." Felix v. Safeway Ins. Co. , 2015-0701, p. 6 (La. App. 4 Cir. 12/16/15), 183 So.3d 627, 631.

Analysis

Presently, Appellant argues that similar to Denoux v. Vessel Mgmt. Servs., Inc. , Appellees in the instant matter "failed to formally admit any evidence" at the hearing on the exception of prescription. Denoux, 2007-2143, p.5 (La. 5/21/08), 983 So.2d at 88. In Denoux, the Louisiana Supreme Court explained that "[e]vidence not properly and officially offered and introduced cannot be considered, even if it is physically placed in the record. Documents attached to memoranda do not constitute evidence and cannot be considered as such on appeal." Id. Further, the "[a]ppellate courts are courts of record and may not review evidence that is not in the appellate record, or receive new evidence." Id. ; La. C. Civ. P. art. 2164. The Louisiana Supreme Court also explained that "[f]ailure to adequately prepare the record by neglecting to offer matters into evidence can alter the outcome of a case, especially in an exception of prescription ..." Cichirillo v. Avondale Indus., 2004-2894, p. 5 La. 11/29/05, 917 So.2d 424, 428, n. 7.

In response, Appellees argue that there was no need to formally introduce evidence into the record at the hearing on the exception of prescription because the evidence, as attached to their memoranda, was made part of the appellate record and was relied on by the trial court. To advance their position, Appellees rely on Fontaine v. Roman Catholic Church of Archdiocese of New Orleans , 625 So.2d 548, 554 (La. App. 4th Cir. 1993), a case in which this Court was "convinced" that a matter was prescribed by relying on evidence not properly introduced into the record and citing "[j]udicial economy and logic." Despite the fact that Fontaine has not yet been expressly overruled, it is evident that the Louisiana Supreme Court, via Denoux and Cichirillo , has departed from Fontaine .

Appellees also rely on Hunt Petroleum Corp. v. Texaco, Inc. , 2004-0729 (La. App. 4 Cir. 12/1/04), 891 So.2d 36, for the same assertion. However, Hunt concerned a motion for summary judgment. The Louisiana Supreme Court in Cichirillo , clarified difference in considering evidence in support of a motion for summary judgment, as opposed to evidence in support of a peremptory exception of prescription. The Court stated the following:

[t]he failure to appropriately file exhibits into evidence is problematic. Some confusion apparently arises due to the differences in a court's consideration of motions for summary judgment and peremptory exceptions. In considering a motion for summary judgment, the court shall render judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law." LSA-C.C.P. art. 966. Appellate review of motions for summary judgment is de novo. Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342, 345 (La. 1992). Thus, the appellate court considers the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits submitted by the parties.
On the other hand, at the trial of a peremptory exception of prescription, "evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition." LSA-C.C.P. art. 931. Appellate review of the record following a hearing on exceptions is governed by manifest error when evidence has been introduced at the hearing. Carter v. Haygood, [20] 04-0646, p. 9 (La. 1/19/05), 892 So.2d 1261, 1267 ; Perez v. Trahant, 2000-2372 (La. App. 1 Cir. 12/28/01), 806 So.2d 110, writs denied, [20]02-0847, [20]02-0901 (La. 8/30/02), 823 So.2d 953. In the absence of evidence, the exception of prescription must be decided on the facts alleged in the petition, which are accepted as true. Waguespack v. Judge, [20]04-0137 (La. App. 5 Cir. 6/29/04), 877 So.2d 1090.

Cichirillo , 2004-2894, 917 So.2d at 428, n. 7.

Appellees further argue that even if they did not formally introduce evidence into the record, Appellant waived its ability to object when it failed to timely object to the evidence that was attached to the memoranda and presented to and considered by the trial court, at the time of the hearing on the exception. In response, Appellant argues that because Appellees failed to formally introduce any evidence into the record at the hearing, there was no occasion to object. See In re Med. Review Panel on Behalf of Laurent , 1994-1661, p. 17 (La. App. 1 Cir. 6/23/95), 657 So.2d 713, 724 ("It is a well-established rule of law that an objection to evidence must be made at the time of its offering ....") [emphasis added].

Based on the aforementioned jurisprudence, we agree with Appellant's position and find that because Appellees failed to formally introduce or offer any evidence into the record at the hearing on the exception of prescription, there was no occasion for Appellant to object; therefore, we must accept the facts alleged in Appellant's petition as true. In doing so, we find that the bare allegations contained in Appellant's petition are sufficient to overcome the exception of prescription. Appellees did not meet their burden of proof that Appellant's claim had prescribed on the face of the petition.

Based on our findings regarding Appellant's first assignment of error, we pretermit discussion of Appellant's second assignment of error.

DECREE

For the foregoing reasons, we reverse the trial court's granting of Appellees' joint exception of prescription and remand this matter for further proceedings.

REVERSED AND REMANDED

      La. C.C. art 3493 provides that "[w]hen damage is caused to immovable property, the one-year prescription commences to run from the day the owner of the immovable acquired, or should have acquired, knowledge of the damage."


author: KYZAR, Judge.

text:
    Ronda Maxwell HUDSON v. Clint Tucker STROTHER
    17-1044
    Court of Appeal of Louisiana, Third Circuit.
    May 2, 2018
    Susan Ford Fiser, P. O. Box 12424, Alexandria, LA 71315-2424, (318) 442-8899, COUNSEL FOR DEFENDANT/APPELLANT: Clint Tucker Strother
    Darrell Keith Hickman, P. O. Box 48, Alexandria, LA 71309-0048, (318) 448-6353, COUNSEL FOR PLAINTIFF/APPELLEE: Ronda Maxwell Hudson
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders and Van H. Kyzar, Judges.
   KYZAR, Judge.

Appellant, Clint Tucker Strother, appeals the judgment of the trial court denying his rule for a change of custody of the parties' minor daughter. For the reasons set forth herein, we affirm.

FACTS AND PROCEDURAL HISTORY

Mr. Strother and Appellee, Ronda Maxwell Hudson, are the unmarried parents of Kristen Marie Strother, born on June 16, 2010. By judgment rendered on November 10, 2011, based upon the stipulations of the parties, and signed on January 10, 2012, the parties agreed to share joint custody of Kristen, with Ms. Hudson being designated as the primary custodial parent and with Mr. Strother having reasonable visitation rights. The parties entered into another Consent Judgment on June 30, 2014, wherein Mr. Strother was awarded every-other-weekend custodial visitation and alternating weekly summer custodial visitation.

Subsequently, Mr. Strother filed a Rule for Change of Custody, Rule for Contempt and For Other Relief on June 2, 2017, based on numerous allegations, including that the child had excessive tardiness and unexcused absences from school, that Child Protection had telephoned him, and that the mother, Ronda Hudson, had been involved in physical violence with the man with whom she is living while the minor child was in the home. In this pleading, he also sought and obtained a Temporary Ex Parte Custody Order, whereby Ms. Hudson was given only supervised visitation at her mother's home until the matter could be heard.

On July 24, 2017, a hearing was held; at the conclusion of which the trial court denied the Rule for Change of Custody, holding that "the Court finds that there is insufficient evidence to take the child away from the mother and place it with the father at this point." This appeal by Mr. Strother followed.

On appeal, Mr. Strother alleges four assignments of error, as follows:

1. The trial court committed legal error by applying an incorrect legal standard to determine custody and visitation rights to the minor child, and thus a de novo review by this court is appropriate and necessary.
2. The trial court was manifestly erroneous in failing to recognize that the evidence presented established that sole or domiciliary custody for the father and supervised visitation for the mother would be in the best interest of the child and in failing to tailor a custody and visitation order in a manner that would minimize risk of harm to the minor child.
3. The trial court erred in failing to find that the violent acts against mother by her paramour in front of the child triggered the Post-Separation Family Violence Relief Act.
4. The trial court erred in failing to recognize that the [Appellee's] failure to call her paramour to testify or to explain his failure to testify about matters material to the case and peculiarly within his knowledge created an adverse presumption that his testimony would be damaging and unfavorable to her case.

Legal Standard Applied by the Trial Court for Change of Custody

Mr. Strother first asserts that the trial court erred in applying the incorrect standard of law in denying his rule for a change in the custody arrangements of the parties' minor child. As such, he argues, this court should review the trial court's decision de novo. The standard of review by this court in cases involving child custody issues is well settled.

An appellate court may not set aside a trial court's findings of fact in absence of manifest error or unless it is clearly wrong. Stobart v. State, Through DOTD , 617 So.2d 880 (La.1993). This is especially applicable in a child custody dispute wherein appellate courts accord substantial deference to the trial judge's conclusions. "The trial judge is in a better position to evaluate the best interest of a child from his observance of the parties and the witnesses and his decision will not be disturbed on review absent a clear showing of abuse." Deason v. Deason , 99-1811, p. 2 (La.App. 3 Cir. 4/5/00), 759 So.2d 219, 220 (citing State in the Interest of Sylvester , 525 So.2d 604, 608 (La.App. 3 Cir. 1988) (citing Bagents v. Bagents , 419 So.2d 460 (La.1982) ) ).
Every child custody case must be viewed within its own peculiar set of facts, and a trial court's award of custody is entitled to great weight and will not be overturned on appeal unless an abuse of discretion is clearly shown. Connelly v. Connelly , 94-527 (La.App. 1 Cir. 10/7/94), 644 So.2d 789. Both the Louisiana Legislature and the Louisiana Supreme Court have made it abundantly clear that the primary consideration and prevailing inquiry is whether the custody arrangement is in the best interest of the child. See Evans v. Lungrin , 97-541, 97-577 (La. 2/6/98), 708 So.2d 731.

Guidry v. Guidry , 07-1272, pp. 2-3 (La.App. 3 Cir. 3/5/08), 979 So.2d 603, 605.

"However, if a court of appeal finds that a reversible error of law or manifest error of material fact was made in the lower court, the [appellate] court, whenever possible, is required to review the facts de novo from the entire record and render a judgment on the merits." Jenkins v. Rougeau , 97-257, pp. 3-4 (La.App. 3 Cir. 10/8/97), 702 So.2d 841, 843, writ denied , 97-2849 (La. 1/30/98), 709 So.2d 715 (citing Ferrell v. Fireman's Fund Ins. Co. , 94-1252 (La. 2/20/95), 650 So.2d 742 ).

Mr. Strother asserts that the trial court applied the wrong legal standard as to his burden of proof at trial in ruling against his request for a change in custody. He claims that the trial court held him to the stricter standard of proof that is required for a change of custody from a considered decree. The burden of proof rule in change-of-child-custody cases has been previously stated:

When a trial court has made a considered decree of permanent custody the party seeking a change bears a heavy burden of proving that the continuation of the present custody is so deleterious to the child as to justify a modification of the custody decree, or of proving by clear and convincing evidence that the harm likely to be caused by a change of environment is substantially outweighed by its advantages to the child.

Bergeron v. Bergeron , 492 So.2d 1193, 1200 (La.1986) (referencing Bankston v. Bankston , 355 So.2d 58 (La.App. 2 Cir. 1978) and Languirand v. Languirand , 350 So.2d 973 (La. App. 2 Cir. 1977) ).

However, as noted by Mr. Strother, the custody decree from June 30, 2014 that he sought to change was not a considered decree but was, in fact, a consent decree.

Where, as here, the underlying custody decree is a stipulated or consent judgment, rather than a considered decree, the party seeking modification of the decree must prove that (1) there has been a material change of circumstances since the custody decree was entered, and (2) the proposed modification is in the best interest of [the] child. Hensgens v. Hensgens , 94-1200 (La.App. 3 Cir. 3/15/95), 653 So.2d 48, writ denied , 95-1488 (La. 9/22/95), 660 So.2d 478. The party is not required to prove under Bergeron that continuation of the present custody arrangement is so deleterious to the child as to justify modification or that the harm likely to be caused by a change of environment is substantially outweighed by the advantages to the child. Evans v. Lungrin , 97-0541 (La. 2/6/98), 708 So.2d 731.

Guidry , 979 So.2d at 606 (footnote omitted).

Mr. Strother states in brief that "it is clear that an incorrect legal standard was applied by the trial court," while also admitting in that same brief that "[i]t is unclear, exactly, what legal standard the trial court applied" in its decision to deny his request to modify custody. He cites no authority for his argument that it held him to the stricter standard. To attempt to establish his claim that the trial court applied the heavier burden of proof required by Bergeron , Mr. Strother points to language used by the trial court in its oral ruling on July 24, 2017. First, he notes the trial court's statement that "even with all the allegations of drug use being thrown about, there have been no drug charges ever filed against the mother." We do not find that this language supports Mr. Strother's argument. It is clear that the trial court found that the allegations of a change in circumstances based on alleged drug use were not proven, especially given the evidence of Ms. Hudson's clean urine screen, and thus, did not support a finding of a change of circumstances for the purposes of child custody. Showing a change in circumstances is still a prerequisite for amending child custody even when set by a consent judgment. Guidry , 979 So.2d 603.

Further, even Mr. Strother admits in brief that the language used by the trial court established that it "did not find it in the child's best interest to change the domiciliary status". Nevertheless, he continued to cite language from the trial court's oral ruling, particularly language concerning the child's schooling and Ms. Hudson's employment situation, to attempt to support his contention. While the trial court did note specific concerns it had in regard to Ms. Hudson's parenting style, it also specifically addressed Mr. Strother, stating:

Mr. Strother, I'm-I understand your concerns and your concerns are legitimate. At the same time, I-I want to advise you that-that the child may be better off with you at this time, but guess what, it's not sufficient to take the child away from the mother. All right.

The trial court explicitly found that the evidence produced did not support proof of a change in circumstances, nor was it proof that a change in custody was in the child's best interest at this time. A trial court's decision is afforded substantial deference and will not be disturbed on review absent a clear showing of abuse as the trial court is in a better position to evaluate the best interest of a child from his observance of the parties and the witnesses. Deason v. Deason , 99-1811 (La.App. 3 Cir. 4/5/00), 759 So.2d 219. We do not find that the language used by the trial court in denying the request for a change in custody supports Mr. Strother's claim that it utilized the wrong standard of proof required of him. As he has cited no factual or legal authority in support of the allegations, we find no merit therein. See Poiencot v. Lafayette Consol. Gov't , 16-1009 (La.App. 3 Cir. 5/31/17), 222 So.3d 733.

Manifest Error Argument

Mr. Strother next asserts that the trial court committed manifest error in failing to find that it was in the best interest of the child to grant him sole custody of the child and setting supervised visitation rights for Ms. Hudson. "The primary consideration in a determination of child custody is the best interest of the child. This applies not only in actions setting custody initially, but also in actions to change custody." Mulkey v. Mulkey , 12-2709, pp. 9-10 (La. 5/7/13), 118 So.3d 357, 364 (footnotes omitted).

In manifest error review, it is important that the appellate court not substitute its opinion when it is the [trial] court who is in the unique position to see and hear the witnesses as they testify. The trier of fact is not disadvantaged by the review of a cold record and is in a superior position to observe the nuances of demeanor evidence not revealed in a record.

In re A.J.F. , 00-948, p. 26 (La. 6/30/00), 764 So.2d 47, 62.

In brief, Mr. Strother contends that the trial court did not consider any of the best-interest factors listed in La.Civ.Code art. 134 when denying his request for domiciliary custody of the minor child. However, the evidence in the record does not support such a statement. The trial court heard the testimony of multiple witnesses, including both parties, all of whom testified to factors pertinent to determining the best interest of the child. After a full day of hearing witness testimony and arguments of counsel, the trial court stated:

The Court notes that ... the mother needs to seek employment so she's not dependent upon anyone else to take care of the child. The Court also notes that support for the child has not been forthcoming by Mr. Strother but has been provided for by the mother. The Court is concerned about the child's education in that there is no reason for the tardiness and/or absences by the mother. But with that said, the Court finds that there is insufficient evidence to take the child away from the mother and place it with the father at this point. So the child will remain with mother as the domiciliary parent[.]

The best interest of the child standard in a child custody case is a fact intensive inquiry that requires the weighing and balancing of factors favoring or opposing custody in the competing parties on the basis of the evidence presented. Gary v. LeBlanc , 16-1054 (La.App. 3 Cir. 6/7/17), 222 So.3d 784. The trial court is not required to make a mechanical evaluation of all of the factors enumerated in La.Civ.Code art. 134 in determining what is in a child's best interest for custody purposes, nor is it bound to give more weight to one factor over another; the relative weight of each factor is left to the discretion of the trial court. Galland v. Galland , 14-343 (La.App. 3 Cir. 11/26/14), 152 So.3d 1090, writ denied , 15-319 (La. 4/17/15), 168 So.3d 404.

It is clear from the trial court's oral reasons that it considered many factors when denying Mr. Strother's request to modify custody. A trial court's determination in a child custody case is entitled to great weight on appeal and will not be disturbed unless there is a clear abuse of discretion. Gremillion v. Gremillion , 07-492 (La.App. 3 Cir. 10/3/07), 966 So.2d 1228. "Every child custody case must be viewed based on its own particular facts and relationships involved, with the goal of determining what is in the best interest of the child." Mulkey , 118 So.3d at 367. Based on a thorough review of the record, we cannot say that the trial court was manifestly erroneous in determining that it was not in the best interest of the child to modify custody at this time.

Application of the Post-Separation Family Violence Relief Act

In his third assignment of error, Mr. Strother asserts that the trial court erred by failing to apply the Post-Separation Family Violence Relief Act to the current case based upon allegations of violent acts committed against Ms. Hudson by her live-in paramour. Mr. Strother claims that the parties' daughter witnessed the supposed violence and that the trial court's failure to apply the terms of the act is reversible error.

The Post-Separation Family Violence Relief Act is found in La.R.S. 9:361, et seq. "From a review of the Act as well as the case law, the apparent legislative intent in creating the Act was to protect victimized parties when domestic disputes arise in the course of separation and divorce." State ex rel. S.D.K. , 04-218, p. 5 (La.App. 5 Cir. 5/26/04), 875 So.2d 887, 890-91. Louisiana Revised Statutes 9:364(C)"was specifically designed to protect the child's interest by restricting the right of visitation of the abusing spouse in families with a history of family violence." Michelli v. Michelli , 93-2128, p. 5 (La.App. 1 Cir. 5/5/95), 655 So.2d 1342, 1346. Louisiana Revised Statutes 9:364 provides in pertinent part:
A. There is created a presumption that no parent who has a history of perpetrating family violence shall be awarded sole or joint custody of children. The court may find a history of perpetrating family violence if the court finds that one incident of family violence has resulted in serious bodily injury or the court finds more than one incident of family violence. The presumption shall be overcome only by a preponderance of the evidence that the perpetrating parent has successfully completed a treatment program as defined in R.S. 9:362, is not abusing alcohol and the illegal use of drugs scheduled in R.S. 40:964, and that the best interest of the child or children requires that parent's participation as a custodial parent because of the other parent's absence, mental illness, or substance abuse, or such other circumstances which affect the best interest of the child or children. The fact that the abused parent suffers from the effects of the abuse shall not be grounds for denying that parent custody.
....
C. If the court finds that a parent has a history of perpetrating family violence, the court shall allow only supervised child visitation with that parent, conditioned upon that parent's participation in and completion of a treatment program. Unsupervised visitation shall be allowed only if it is shown by a preponderance of the evidence that the violent parent has completed a treatment program, is not abusing alcohol and psychoactive drugs, and poses no danger to the child, and that such visitation is in the child's best interest.

Slayton v. Slayton , 05-1529, pp. 3-4 (La.App. 3 Cir. 5/3/06), 929 So.2d 865, 868-69.

Family Violence is defined by La.R.S. 9:362 (emphasis added), which states in pertinent part: "(4) 'Family violence' includes but is not limited to physical or sexual abuse and any offense against the person as defined in the Criminal Code of Louisiana, except negligent injuring and defamation, committed by one parent against the other parent or against any of the children ."

In the instant case, Mr. Strother is not asserting that Ms. Hudson has committed violent acts against him or their daughter Kristen. Rather, he contends that Ms. Hudson's boyfriend has been physically abusive to Ms. Hudson. He further asserts that Ms. Hudson, merely by remaining in her boyfriend's home, has "subjected her child to domestic violence on more than one occasion[.]" There are no allegations that Ms. Hudson's paramour committed physical violence against Kristen. "Application of the Act is mandatory when there has been one serious injury, resulting from abuse, or simply more than one act of violence during the marriage." Hicks v. Hicks , 98-1527, p. 5 (La.App. 3 Cir. 5/19/99), 733 So.2d 1261, 1264.

There is no jurisprudence to support Mr. Strother's assertion that Ms. Hudson is an abusive parent subject to the application of the Post-Separation Family Violence Relief Act based on the aforementioned facts. Further, Mr. Strother's allegations of domestic violence committed against Ms. Hudson were contradicted by Ms. Hudson herself. Though Ms. Hudson's mother testified that she had seen Ms. Hudson with bruises on her arms, no one could testify as to actually witnessing abusive behavior by Ms. Hudson's boyfriend. In fact, Ms. Hudson's mother testified that Ms. Hudson bruised easily, and the bruises on her arm could have been caused by her arm being grabbed too hard.

Additionally, Mr. Strother could only point to one specific incident, in which Ms. Hudson got into an argument with her boyfriend resulting in her and the minor child leaving the house and eventually being forced to spend the night at the Rapides Parish Sheriff's Office in 2016. Again, the only evidence of violence or abuse was some bruising found on Ms. Hudson's upper arm. She did not seek any help or medical care. Mr. Strother puts forth no other corroborating evidence nor does he cite any other time or incident of violence other than blanket statements that Ms. Hudson's boyfriend is abusive, which was denied by Ms. Hudson.

The provisions of the Post-Separation Family Violence Relief Act create a presumption against granting custody to any parent who is perpetuating family violence. La.R.S. 9:364. "The court may find a history of perpetrating family violence if the court finds that one incident of family violence has resulted in serious bodily injury or the court finds more than one incident of family violence." La.R.S. 9:364(A). In the instant matter, only one incident of family violence is even alleged, committed against and not by Ms. Hudson, which resulted in bruising to Ms. Hudson's arms, requiring no medical attention and involving no serious bodily injury. Ms. Hudson testified that she and her boyfriend merely yelled at each other and that the bruises came from his grabbing and throwing her on the bed. Mr. Strother offered no contradictory evidence. We find no error in the trial court's failure to apply the provisions of the Post-Separation Family Violence Relief Act based on the facts presented at trial. See Hollingsworth v. Semerad , 35,264 (La.App. 2 Cir. 10/31/01), 799 So.2d 658.

We also note that there is no indication in the record that Mr. Strother raised the argument for the application of the Post-Separation Family Violence Relief Act with the trial court. Appellate courts generally will not consider issues that were not addressed by the trial court and which are raised for the first time on appeal. Uniform Rules-Courts of Appeal, Rule 1-3 ; Allen v. Affordable Home Furnishings , 13-176 (La.App. 3 Cir. 11/13/13), 130 So.3d 345.

Adverse Presumption Evidentiary Rule

In his final assignment of error, Mr. Strother asserts that the trial court erred in not applying the adverse presumption rule. He argues that Ms. Hudson's paramour should have testified at trial and an adverse presumption that his testimony would be damaging and unfavorable to her case attaches because Ms. Hudson did not call him to testify.

The "uncalled witness" rule has been defined as an adverse presumption that arises when "a party has the power to produce witnesses whose testimony would elucidate the transaction or occurrence" and fails to call such witnesses. 19 Frank L. Maraist, Louisiana Civil Law Treatise: Evidence and Proof , § 4.3 (1999). A party's failure to call such witnesses gives rise to the presumption that "the witnesses' testimony would be unfavorable to him." Id. Although the advent of modern, liberal discovery rules has been recognized to limit this rule, it "remains viable." Id. Indeed, this court has recognized this rule applies when, as in this case, witnesses with peculiar knowledge of material facts pertinent to the case are not called. Stewart v. Great Atlantic and Pacific Tea Co. , 657 So.2d 1327, 1330 (La.App. 4 Cir.1995) ; Gurley v. Schwegmann Supermarkets, Inc. , 617 So.2d 41, 44 (La.App. 4th Cir.1993). We have also noted that "[t]he court may consider this presumption as it would any other relevant evidence in the case." Id.

Taylor v. Entergy Corp. , 01-805, pp. 14-15 (La.App. 4 Cir. 4/17/02), 816 So.2d 933, 941 (alteration in original).

While it is true that Ms. Hudson did not call her boyfriend to testify at trial, we do not find this simple fact enough to warrant the application of the adverse presumption rule. There is no evidence that Ms. Hudson's boyfriend had information "peculiarly within his knowledge" about matters material to the case which would require his testimony; any matters concerning Ms. Hudson's home life with Kristen had already been testified to by Ms. Hudson and her parents. "The admission of cumulative evidence is at the trial court's discretion." Mitchell v. Limoges , 05-832, p. 3 (La.App. 3 Cir. 3/1/06), 923 So.2d 906, 908, writ denied , 06-723 (La. 6/16/06), 929 So.2d 1285.

Further, Mr. Strother has offered no explanation as to why he himself did not call Ms. Hudson's paramour to testify. "The adverse presumption is inapplicable when the witness is equally available to both parties." In re Succession of Barattini , 11-752, p. 9 (La.App. 5 Cir. 3/27/12), 91 So.3d 1091, 1096 (citing Dixon v. Travelers Ins. Co. , 02-1364 (La.App. 4 Cir. 4/2/03), 842 So.2d 478, writ denied , 03-1482 (La. 9/26/03), 854 So.2d 366 ). There has been no showing or allegation that Ms. Hudson's paramour was in any way unavailable to Mr. Strother as a witness. Accordingly, we find no merit to this assignment of error.

DISPOSITION

Based on the foregoing, we affirm the judgment of the trial court maintaining domiciliary custody of the minor child with Ronda Hudson subject to visitation with Clint Strother. All costs of this proceeding are assessed against Mr. Strother.

AFFIRMED.


author: LILJEBERG, J.

text:
    STATE of Louisiana v. Osman ESPINOZA
    NO. 17-KA-629
    Court of Appeal of Louisiana, Fifth Circuit.
    May 16, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux
    COUNSEL FOR DEFENDANT/APPELLANT, OSMAN ESPINOZA, Bruce G. Whittaker
    Panel composed of Judges Stephen J. Windhorst, Hans J. Liljeberg, and Marion F. Edwards, Judge Pro Tempore
   LILJEBERG, J.

Defendant appeals his conviction and sentence for aggravated flight from an officer. For the following reasons, we affirm defendant's conviction and sentence. We also grant appellate counsel's motion to withdraw as counsel of record.

PROCEDURAL HISTORY

On July 6, 2017, the Jefferson Parish District Attorney filed a bill of information charging defendant, Osman Espinoza, with one count of aggravated flight from an officer, in violation of La. R.S. 14:108.1. Defendant pleaded not guilty at his arraignment.

On September 20, 2017, defendant withdrew his plea of not guilty, and after being advised of his Boykin rights, pleaded guilty as charged. In accordance with the plea agreement, defendant was sentenced to a three-year suspended sentence in the Department of Corrections, two years of active probation, and a five hundred dollar fine. Defendant was further ordered to comply with the felony conditions of probation as set forth on the probation form executed by defendant and ordered "to be assessed and complete all classes and programs recommended by the probation department."

On October 19, 2017, defendant filed a motion to withdraw his guilty plea, alleging that he "did not understand that he would be arrested by immigration officials when he showed up for probation." That same day, defendant also filed a motion for appeal. On October 25, 2017, the trial court denied defendant's motion to withdraw his guilty plea and granted his motion for appeal.

FACTS

Because defendant pleaded guilty, the facts of this case were not fully developed at a trial. The facts were gleaned from the bill of information which provides that on April 8, 2017, defendant "violated La. R.S. 14:108.1 in that he did willfully and unlawfully refuse to bring a vehicle to a stop knowing that he has been given a visual and audible signal to stop by a police officer, namely one Deputy B. Jenkins of the Jefferson Parish Sheriff's Office."

LAW AND DISCUSSION

Pursuant to the procedure adopted by this Court in State v. Bradford , 95-929, pp. 3-4 (La. App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110-11, appointed appellate counsel has filed a brief asserting that he has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles , 96-2669 (La. 12/12/97), 704 So.2d 241 (per curiam), appointed counsel requests permission to withdraw as counsel of record.

In Anders , supra , the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if he finds his case to be wholly frivolous after a conscientious examination of it. The request must be accompanied by " 'a brief referring to anything in the record that might arguably support the appeal' " so as to provide the reviewing court "with a basis for determining whether appointed counsel have fully performed their duty to support their clients' appeals to the best of their ability" and to assist the reviewing court "in making the critical determination whether the appeal is indeed so frivolous that counsel should be permitted to withdraw." McCoy v. Court of Appeals of Wisconsin, Dist. 1 , 486 U.S. 429, 439, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440 (1988).

In Jyles , 96-2669 at 2, 704 So.2d at 241, the Louisiana Supreme Court stated that an Anders brief need not tediously catalog every meritless pretrial motion or objection made at trial with a detailed explanation of why the motions or objections lack merit. The Court explained that an Anders brief must demonstrate by full discussion and analysis that appellate counsel "has cast an advocate's eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration." Id.

When conducting a review for compliance with Anders , an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. Bradford , 95-929, at 4, 676 So.2d at 1110. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel's motion to withdraw and affirm the defendant's conviction and sentence. However, if the court finds any legal point arguable on the merits, it may either deny the motion and order the court-appointed attorney to file a brief arguing the legal point(s) identified by the court, or grant the motion and appoint substitute appellate counsel. Id.

In the present case, defendant's appellate counsel asserts that after a detailed review of the record, he could find no non-frivolous issues to raise on appeal. He notes that defendant entered an unqualified guilty plea, thereby waiving all non-jurisdictional defects. Appellate counsel maintains that while defendant filed a motion to withdraw his guilty plea on the basis that he "did not understand he would be arrested by immigration officials when he showed up for probation," the record reflects defendant was fully advised by the court and via the waiver of rights form that his guilty plea could have serious immigration consequences, including deportation. Finally, appellate counsel asserts that defendant was informed of the sentence that would be imposed and the trial court imposed the agreed upon sentence, precluding defendant from challenging his sentence on appeal. The State has filed a brief in this case, concurring in appellate counsel's assertion that there are no non-frivolous issues to be raised on appeal.

Appellate counsel has filed a motion to withdraw as attorney of record in which he states that he believes the appeal is wholly frivolous, as explained in his accompanying brief, and that he has sent notice to defendant of his right to file a pro se brief in this appeal. Additionally, this Court sent defendant a letter by certified mail informing him that an Anders brief had been filed and that he had until December 22, 2017, to file a pro se supplemental brief. However, defendant has not filed a pro se brief in this matter.

An independent review of the record supports appellate counsel's assertion that there are no non-frivolous issues to be raised on appeal.

As reflected by the minute entries and commitment, defendant appeared at each stage of the proceedings against him, including his arraignment, his guilty plea proceeding, and his sentencing. As such, defendant's presence does not present any issues that would support an appeal. Also, the bill of information sufficiently identified defendant and the crime charged, per La. C.Cr.P. arts. 464 - 466.

Defendant pleaded guilty in this case. Generally, when a defendant pleads guilty, he waives all non-jurisdictional defects in the proceedings leading up to the guilty plea, and precludes review of such defects either by appeal or post-conviction relief.

State v. Wingerter , 05-697 (La. App. 5 Cir. 3/14/06), 926 So.2d 662, 664. In this case, defendant entered an unqualified guilty plea, and therefore, all non-jurisdictional defects were waived. Further, no rulings were preserved for appeal under the holding in State v. Crosby , 338 So.2d 584 (La. 1976).

Once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief. State v. McCoil , 05-658 (La. App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124. A guilty plea is constitutionally infirm if it is not entered freely and voluntarily, if the Boykin colloquy is inadequate, or when a defendant is induced to enter the plea by a plea bargain or what he justifiably believes was a plea bargain and that bargain is not kept. Id.

A review of the record reveals no constitutional infirmity in defendant's guilty plea. During the plea colloquy, defendant informed the court that he had completed high school, could read and write the English language, and had completed and signed the waiver of rights form, which he had reviewed with his attorney. The record shows defendant was aware he was pleading guilty to one count of aggravated flight from an officer, and he admitted that he was pleading guilty because he was, in fact, guilty. Defendant was also properly advised of his Boykin rights by the trial court and via the waiver of rights form. Defendant signed the waiver of rights form, indicating that he understood he was waiving these rights by pleading guilty.

Defendant was also informed that his guilty plea could be used to enhance a penalty for any future conviction. Defendant indicated that he understood the possible legal consequences of pleading guilty and confirmed that he had not been forced into entering his guilty plea. Further, defendant was informed during the colloquy, and by means of the waiver of rights form, of the sentencing range for the offense of aggravated flight from an officer as well as the actual penalty that would be imposed upon acceptance of his guilty plea.

Moreover, during the colloquy, after questioning by the trial court, defendant indicated that he was not a United States citizen but rather a citizen of Honduras. Accordingly, the trial court asked defendant whether he understood that because he was not a United States citizen, the entering of his plea "could have serious immigration consequences including but not limited to deportation." Defendant stated that he understood these consequences and wished to plead guilty. Additionally, the guilty plea form executed by defendant, his attorney, and the court also set forth the immigration warning verbally provided by the trial court. After his colloquy with defendant, the trial judge accepted defendant's guilty plea as knowingly, intelligently, freely, and voluntarily made.

Lastly, defendant's sentence does not present an issue for appeal. His sentence falls within the sentencing range prescribed by the statute. See La. R.S. 14:108.1(E)(1). Further, defendant's sentence was imposed pursuant to, and in conformity with, the plea agreement. La. C.Cr.P. art. 881.2(A)(2) precludes a defendant from seeking review of his sentence imposed in conformity with a plea agreement, which was set forth in the record at the time of the plea. State v. Moore , 06-875 (La. App. 5 Cir. 4/11/07), 958 So.2d 36, 46 ;

State v. Washington , 05-211 (La. App. 5 Cir. 10/6/05), 916 So.2d 1171, 1173.

Because appellate counsel's brief adequately demonstrates by full discussion and analysis that he has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal and an independent review of the record supports counsel's assertion, we grant appellate counsel's motion to withdraw as attorney of record.

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). Our review did not reveal any errors requiring corrective action.

DECREE

For the foregoing reasons, we affirm defendant's conviction and sentence. We also grant appellate counsel's motion to withdraw as counsel of record.

AFFIRMED; MOTION TO WITHDRAW GRANTED

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

      In Bradford , supra , this Court adopted the procedures outlined in State v. Benjamin , 573 So.2d 528, 530 (La. App. 4 Cir. 1990), which were sanctioned by the Louisiana Supreme Court in State v. Mouton , 95-0981 (La. 4/28/95), 653 So.2d 1176, 1177 (per curiam).

      Defendant was charged with having violated La. R.S. 14:108.1. Although the bill of information does not include a subsection of La. R.S. 14:108.1, the bill of information classifies defendant's crime as a class two felony and the record shows that defendant was aware he was pleading guilty to one count of aggravated flight from an officer.

      In Padilla v. Kentucky , 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), a case involving post-conviction relief proceedings, the Padilla court held that defense counsel engaged in deficient performance by failing to advise defendant that his plea of guilty made him subject to deportation.


author: McCALLUM, J.

text:
    STATE of Louisiana, Appellee v. Noel Thomas MEANS, Appellant
    51,926-KA 52,035-KA 52,036-KA 52,037-KA 52,038-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered May 23, 2018.
    LOUISIANA APPELLATE PROJECT, By: Peggy J. Sullivan, Counsel for Appellant
    J. SCHUYLER MARVIN, District Attorney, JOHN MICHAEL LAWRENCE, ALEXANDRA AIELLO, Assistant District Attorneys, Counsel for Appellee
    Before WILLIAMS, MOORE, and McCALLUM, JJ.
   McCALLUM, J.

These consolidated criminal appeals come to us pursuant to a plea agreement whereby Noel Thomas Means pled guilty as charged to five counts of unauthorized entry of a place of business in violation of La. R.S. 14:62.4. Means was sentenced to five consecutive terms of five years at hard labor for each conviction, making an aggregate sentence of 25 years. He was not fined for any of the five convictions. Means filed a timely motion to reconsider sentence, which the trial court denied. He now appeals his sentences on the grounds of constitutional excessiveness. For the reasons stated herein, we affirm Means' convictions and sentences.

FACTS

Means' criminal acts were captured on video surveillance. The factual basis for the guilty pleas as set forth in the record shows that on or about August 13 and August 20, 2016, and on three separate occasions on July 29, 2016, Means intentionally and without authorization entered into the Ellis Pottery premises located in Bossier Parish, Louisiana. On January 10, 2017, with representation from appointed counsel, Means pled guilty as charged to five separate counts of unauthorized entry of a place of business in violation of La. R.S. 14:62.4. He did so pursuant to a plea bargain with the State, which agreed not to file a multiple offender bill; the agreement left sentencing to the court. After accepting the pleas, the trial court ordered a presentence investigation report ("PSI report").

The defendant appeared for sentencing on May 30, 2017, and the trial court confirmed review of the PSI report and consideration of the La. C. Cr. P. art. 894.1 factors. The judge called Means' criminal history "astounding," as it consisted of 69 misdemeanor convictions, many of which were "theft related," and four felony convictions (excluding the five convictions in the instant case). The trial judge stated that Means had more criminal convictions than anyone he had ever seen in his 21 years of practicing law. He further related that when Means was not in jail, he "was committing a crime" and was unable to help himself or rather that he "helped himself to everything" he wanted.

The trial court imposed consecutive sentences of five years at hard labor on each conviction "for a total of twenty-five years at hard labor." On May 31, 2017, Means filed a motion to reconsider sentence, arguing that the sentences were constitutionally excessive. On June 9, 2017, the trial court denied the motion, noting its careful consideration of the PSI report. On July 21, 2017, the trial court also denied Means' pro se presentence motion requesting the trial court impose concurrent sentences.

The trial court denied both motions and this appeal followed. Additionally, Means has an extensive history of parole and probation violations, having had his parole revoked at least six times and his probation revoked at least twice.

DISCUSSION

On appeal, Means argues that his 25-year hard labor sentence is harsh and excessive. Means concedes that he has an extensive criminal history, but argues that this one factor should not be determinative. The defendant argues that three of the offenses occurred on the same day and there were no allegations that anything was taken in any of the cases. The defendant asserts that the trial court failed to take into account his supposed mental health issues, and also claims that he took responsibility for his actions. Means argues that his incarceration will put a significant financial burden on the state and that the sentence lacks a balanced approach and is merely punitive. Ultimately, it is Means' position that the offenses committed, even in light of his criminal history, do not justify the imposition of near-maximum consecutive sentences.

Based on his criminal history, the state argues that the trial judge did not abuse his discretion in sentencing Means. The state also points out that the defendant received a substantial benefit from the plea agreement: it protected him from habitual offender sentencing. Finally, the state argues that Means fits the definition of a career criminal who has shown no evidence of rehabilitation.

Law

For each of his five convictions of unauthorized entry of a place of business, Means faced maximum sentencing exposure of six years with or without hard labor, and a possible fine of up to $1000. Thus his aggregate total sentencing exposure, barring habitual offender sentencing, was 30 years' imprisonment and $5000 in fines. La. R.S. 14:62.4.

When a defendant's motion to reconsider sentence raises only a claim that the sentence imposed was constitutionally excessive, he is relegated to review of his sentence on that ground alone. La. C. Cr. P. art. 881.1 ; State v. Turner, 50,221 (La. App. 2 Cir. 1/20/16), 186 So.3d 720, writ denied , 2016-0283 (La. 2/10/17), 215 So.3d 700.

A sentence violates La. Const. art. I, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Shaikh , 2016-0750 (La. 10/18/17), 236 So.3d 1206 ; State v. Dorthey, 623 So.2d 1276 (La. 1993) ; State v. Bonanno, 384 So.2d 355 (La. 1980).

To constitute an excessive sentence, a reviewing court must find that the penalty is so grossly disproportionate to the severity of the crime as to shock the sense of justice or that the sentence makes no reasonable contribution to acceptable penal goals and, therefore, is nothing more than the needless imposition of pain and suffering. State v. Griffin, 2014-1214 (La. 10/14/15), 180 So.3d 1262. The trial court has wide discretion in the imposition of sentences within the statutory limits and such sentences should not be set aside as excessive in the absence of a manifest abuse of that discretion. State v. Williams , 2003-3514 (La. 12/13/04), 893 So.2d 7. On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. State v. Williams , supra ; State v. Fontenot , 51,072 (La. App. 2 Cir. 1/11/17), 211 So.3d 1236.

Where a defendant has received a significant reduction in sentencing exposure through a plea bargain, the trial court has great discretion in imposing even the maximum sentence for the pled offense. State v. Washington , 50,337 (La. App. 2 Cir. 1/13/16), 185 So.3d 852, writ denied , 2016-0224 (La. 2/3/17), 215 So.3d 688 ; State v. Sanders, 49,241 (La. App. 2 Cir. 10/22/14), 151 So.3d 160, writ denied , 2014-2536 (La. 1/16/15), 157 So.3d 1133.

La. C. Cr. P. art. 883, relating to concurrent and consecutive sentences, provides in pertinent part:

If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. Other sentences of imprisonment shall be served consecutively unless the court expressly directs that some or all of them be served concurrently.

Concurrent sentences arising out of a single course of conduct are not mandatory, and consecutive sentences under those circumstances are not necessarily excessive. State v. Scott , 50,920 (La. App. 2 Cir. 11/16/16), 209 So.3d 248, writ denied , 2017-0353 (La. 11/13/17), 229 So.3d 478 ; State v. Nixon , 51,319 (La. App. 2 Cir. 5/19/17), 222 So.3d 123 ; State v. Hebert , 50,163 (La. App. 2 Cir. 11/18/15), 181 So.3d 795. It is within the court's discretion to make sentences consecutive rather than concurrent. State v. Nixon , supra ; State v. Robinson , 49,677 (La. App. 2 Cir. 4/15/15), 163 So.3d 829, writ denied , 2015-0924 (La. 4/15/16), 191 So.3d 1034.

A judgment directing that sentences arising from a single course of conduct be served consecutively requires particular justification from the evidence or record. Nixon, supra. When a sentencing court directs that multiple sentences arising from a single course of conduct be served consecutively, the sentencing court is required to state the factors considered and its reasons for the consecutive sentences. State v. Craft, 49,731 (La. App. 2 Cir. 2/26/15), 162 So.3d 539, writ denied , 2015-0544 (La. 1/25/16), 184 So.3d 1288. The factors to be considered include: (1) the defendant's criminal history; (2) the gravity or dangerousness of the offense; (3) the viciousness of the crimes; (4) the harm done to the victims; (5) whether the defendant constitutes an unusual risk of danger to the public; (6) the potential for the defendant's rehabilitation; and (7) whether the defendant received a benefit as part of a plea bargain. Id. ; State v. Baker, 49,175 (La. App. 2 Cir. 8/27/14), 148 So.3d 217. However, the sentencing court's failure to articulate specific reasons for consecutive sentences does not require remand if the record provides an adequate factual basis to support consecutive sentences. State v. Nixon, supra ; State v. Boudreaux, 41,660 (La. App. 2 Cir. 12/13/06), 945 So.2d 898, writ denied , 07-0058 (La. 11/2/07), 966 So.2d 591.

Analysis

Because Means' motion to reconsider sentence raised only a claim that the sentence imposed was constitutionally excessive, he is relegated to appellate review of his sentence on that ground alone.

We agree with the assessment of the trial judge: the sheer number of the defendant's prior criminal convictions is astounding. At the time of the instant convictions, Means had actually been convicted an average of almost 2.5 crimes per year for the prior 30-year period. This is particularly noteworthy when the fact that the defendant has been intermittently incarcerated during that time is considered. Since 1987, he has been convicted of 69 misdemeanors and four felonies (excluding the five felonies in the instant case). As noted by the trial court, many of Means' misdemeanors are theft related, but they also include several instances of assaultive behavior.

Means' record indicates that he is an exceedingly poor prospect for rehabilitation. The trial judge imposed on him less than the six-year maximum on each count, and did not fine him for any of the instant felonies. It is also significant that Means received a substantial reduction in sentencing exposure from the plea bargain: the state agreed to forgo habitual offender proceedings, which, if successful, would have exposed the defendant to a sentencing range of 20 years to life imprisonment. This enhanced sentence would have been in addition to whatever sentences Means would have been given for the four other counts.

We hold that the five-year consecutive terms imposed for each count, including the three counts Means committed on July 29, 2016, can be justified on the record based upon Means' criminal history, his poor prospects for rehabilitation, and the substantial reduction in sentencing exposure he received via plea bargain. The defendant's 25-year sentence is toward the upper end of the sentencing range. However, as noted by the trial court, Means' 30-year history of criminal activity and his poor performance during prior periods of probation and parole indicate that he is unlikely to be rehabilitated and that he is likely to commit such crimes again. Given these factors, the sentence imposed, although harsh, does not shock the sense of justice. Thus, based upon this record, we cannot say the sentence imposed on this defendant is constitutionally excessive. Consequently, the assignment of error lacks merit.

DECREE

The defendant's convictions and sentences are AFFIRMED.

      The guilty plea for each of the five counts occurred at the same time but each count was charged by a separate bill of information and prosecuted under a different trial court docket number. The cases were consolidated for appeal by order of this Court on December 7, 2017.

      To wit: felony theft, 7/27/1998; illegal possession of stolen things, 1/29/2002; simple burglary, 9/3/2002; felony theft, 10/27/2009. For further detail, read n.3, infra.

      The PSI report shows that Means' felony record includes a 1997 felony theft conviction for which he received two years at hard labor, a 2001 illegal possession of stolen things conviction for which he received one year at hard labor, a 2002 simple burglary conviction for which he received six years' hard labor, and a 2008 felony theft conviction for which he received eight years' hard labor. Thus, with his present offenses in 2016, Means would have qualified as a fifth-felony offender, and possibly received a sentence of 20 years to life in addition to the sentences for the remaining four present convictions.

      This result would have obtained pursuant to La. R.S. 15:529.1(A)(4)(a), which governs habitual offender sentencing for fourth or subsequent felonies not constituting a crime of violence or sex offense. The PSI indicates Means' criminal record includes the following prior felony convictions: (1) felony theft, 1997; (2) illegal possession of stolen things, 2001; (3) simple burglary, 2002; (4) felony theft, 2008. The 10-year cleansing period could not have run as to any of these offenses, because less than 10 years passed between each such conviction as well as between the last such conviction and commission of the current offenses. La. R.S. 15:529.1(C).