source: Caselaw Access Project

author: KEATY, Judge.

license: Public Domain

text:
    GRACE RANCH, LLC v. BP AMERICA PRODUCTION COMPANY, et al.
    17-1144
    Court of Appeal of Louisiana, Third Circuit.
    July 18, 2018 Rehearing Denied September 12, 2018
    Donald T. Carmouche, Victor L. Marcello, John H. Carmouche, William R. Coenen, III, Brian T. Carmouche, Todd J. Wimberley, Ross J. Donnes, D. Adele Owen, Leah C. Poole, Caroline H. Martin, Christopher D. Martin, Talbot, Carmouche & Marcello, 17405 Perkins Road, Baton Rouge, Louisiana 70810, (225) 400-9991, Counsel For Plaintiff/Appellant: Grace Ranch, LLC
    Chad E. Mudd, David P. Bruchhaus, M. Keith Prudhomme, Matthew P. Keating, Mudd & Bruchhaus, L.L.C., 410 E. College Street, Lake Charles, Louisiana 70605, (337) 562-2391, Counsel for Plaintiff/Appellant: Grace Ranch, LLC
    Carl Duhon, Ike Huval, Duhon Law Firm, Post Office Box 52566, Lafayette, Louisiana 70505, (337) 237-9868, COUNSEL FOR DEFENDANTS/APPELLEES: Shirley Poirier Van Way, in her capacity as Independent Testamentary Executor of the Succession of J.P. Van Way
    George Arceneaux, III, Penny L. Malbrew, Court VanTassell, Brittan J. Bush, Liskow & Lewis, Post Office Box 52008, Lafayette, Louisiana 70505, (337) 232-7424, Counsel for Defendant/Appellee: BP America Production Company
    Mark L. McNamara, Kelly B. Becker, Kathryn Z. Gonski, Liskow & Lewis, One Shell Square, 701 Poydras Street, Suite 5000, New Orleans, Louisiana 70139-5099, (504) 581-7979, Counsel for Defendant/Appellee: BP America Production Company
    R. Keith Jarrett, Kelly T. Scalise, Liskow & Lewis, One Shell Square, 701 Poydras Street, Suite 5000, New Orleans, Louisiana 70139, (504) 581-7979, Counsel for Defendant/Appellee: BHP Billiton Petroleum (Americas) Inc.
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Phyllis M. Keaty, and D. Kent Savoie, Judges.
   KEATY, Judge.

In this oilfield legacy litigation, Plaintiff appeals the trial court's judgment granting motions for summary judgment and an exception of no right of action in favor of Defendants. For the following reasons, the trial court's judgment is affirmed.

FACTS & PROCEDURAL HISTORY

This mineral law case involves forty acres of immovable property located in Jefferson Davis Parish of which Grace Ranch, LLC ("Grace Ranch") is the owner. On October 10, 2011, Grace Ranch filed suit in contract and tort for contamination of its property resulting from the historical oil and gas exploration and production activities of multiple defendants, including J.P. Van Way ("JPVW"), BP America Production Company ("BP"), and BHP Billiton Petroleum (Americas), Inc. ("BHP") (collectively "Defendants"), pursuant to valid mineral leases.

The forty acres at issue was part of an approximate 166-acre tract ("subject tract") of immovable property owned by Ellen M. Davies in 1915. In 1944, Ms. Davies, as the lessor, executed a mineral lease with John J. Doyle, as the lessee ("subject lease"). That same year, Doyle assigned the subject lease to Stanolind Oil and Gas Company ("Stanolind"), BP's predecessor. In 1957, Stanolind merged into Pan American Petroleum Company ("Pan American"). In 1969, Pan American assigned the subject lease to Clinton Oil Company ("Clinton Oil"), BHP's predecessor. In 1972, Clinton Oil released all of its rights in the subject lease except for the forty acres at issue in this matter. In 1976, Clinton Oil changed its name to Energy Reserves Group, Inc. ("Energy"). In 1977, Energy assigned the subject lease to Tommy Littlepage Oil Properties ("Littlepage Oil"). In 1978, Littlepage Oil assigned half of its working interest in the subject lease to Jack Williams Pipe and Supply Company. In 1984, Littlepage Oil assigned the remaining half of its working interest to JPVW. The subject lease expired in 1985 or 1986 due to non-production.

With respect to the surface and mineral ownership of the subject tract, it was acquired by Ms. Davies' heirs in 1971. In 1972, Ms. Davies' heirs sold the same to Donald J. Leblanc and Janet Sue Cagle Leblanc ("the Leblancs"), reserving for themselves "all of the oil, gas and other mineral in, on or under said property, together with the right of ingress and egress for the purpose of exercising this mineral servitude." In 1973 and 1974, the Leblancs sold the subject tract to General Farms, Inc. ("General Farms"), subject to any outstanding servitudes and reservations of minerals and leases. In 1995, General Farms acquired one hundred percent of the minerals arising from the termination of the Davies servitude. In 1999, General Farms and the Leblancs transferred the subject tract to Daniel and Jeralyn Ewing ("the Ewings"), reserving an undivided one-half interest in the minerals. The Ewings subsequently sold the subject tract to Grace Ranch in 2006, subject to their one-half interest in the minerals. Grace Ranch acquired one half of the minerals in 2009 as a result of the expiration of General Farms' one-half mineral servitude. Grace Ranch acquired the other half of the minerals in 2016 as a result of the expiration of the Ewings' one-half mineral servitude.

In 2013, approximately two years after filing suit, Grace Ranch sought and obtained assignments of rights in tort and contract from General Farms and the Leblancs, or their heirs and assigns. On January 13, 2017, approximately four years after obtaining the assignments, Grace Ranch filed its First Amended Petition for Damages to assert its assigned claims. Defendants subsequently filed motions for summary judgment, seeking dismissal of Grace Ranch's suit. Additionally, JPVW filed an Exception of No Right of Action, seeking dismissal on similar grounds. The trial court heard the motions and exception on June 14, 2017, and took them under advisement. Pursuant to the trial court's written reasons for judgment dated July 12, 2017, and its subsequent judgment dated September 16, 2017, the trial court granted the motions and exception and dismissed Grace Ranch's case with prejudice. Grace Ranch appealed.

On appeal, Grace Ranch asserts the following assignments of error:

1. The trial court committed error in dismissing the plaintiff's claims on the basis of the subsequent purchaser rule.
2. The trial court committed error in failing to find that plaintiff has a right of action based on its assignments from prior owners of the surface and minerals.
3. The trial court committed error in finding that the assignment from General Farms to plaintiff was invalid based on General Farms' affidavit of dissolution.
4. The trial court committed error in relying in part on prescription in dismissing the claims of the plaintiff because prescription was not at issue.
5. The trial court committed error in applying the jurisprudential subsequent purchaser rule under circumstances where the Civil Code and Mineral Code provide statutory support for plaintiff's right of action.

STANDARD OF REVIEW

An appellate court utilizes the de novo standard of review when reviewing a trial court's judgment on a motion for summary judgment. Gray v. Am. Nat'l Prop. & Cas. Co. , 07-1670 (La. 2/26/08), 977 So.2d 839. The appellate court uses "the same criteria that govern the trial court's consideration of whether summary judgment is appropriate, i.e., whether there is a genuine issue of material fact and whether the mover is entitled to a judgment as a matter of law." Id. at 844 (quoting Supreme Servs. & Specialty Co., Inc. v. Sonny Greer, Inc. , 06-1827, p. 4 (La. 5/22/07), 958 So.2d 634, 638 ). An appellate court must be mindful of the movant's burdens of proof required in a motion for summary judgment, which is found in La.Code Civ.P. art. 966(D)(1) and provides:

The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.

Additionally, "[t]he only documents that may be filed in support of or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions." La.Code Civ.P. art. 966(A)(4).

Similarly, the standard of review regarding a "peremptory exception of no cause of action is de novo because it raises a question of law." Hebert v. Shelton , 08-1275, p. 3 (La.App. 3 Cir. 6/3/09), 11 So.3d 1197, 1201.

The function of the peremptory exception of no cause of action is to question whether the law extends a remedy to anyone under the factual allegations of the petition. The peremptory exception of no cause of action is designed to test the legal sufficiency of the petition by determining whether [the] plaintiff is afforded a remedy in law based on the facts alleged in the pleading. No evidence may be introduced to support or controvert the objection that the petition fails to state a cause of action. The exception is triable on the face of the papers and for the purposes of determining the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true.

Fink v. Bryant , 01-987, pp. 3-4 (La. 11/28/01), 801 So.2d 346, 348-49 (citations omitted).

DISCUSSION

I. Subsequent Purchaser Rule

In its first assignment of error, Grace Ranch contends the trial court committed error in dismissing its claims based upon the subsequent purchaser rule. The subsequent purchaser rule is a jurisprudential rule which provides that a property owner "has no right or actual interest in recovering from a third party for damage which was inflicted on the property before his purchase, in the absence of an assignment or subrogation of the rights belonging to the owner of the property when the damage was inflicted." Eagle Pipe & Supply, Inc. v. Amerada Hess Corp. , 10-2267, 10-2272, 10-2275, 10-2279, 10-2289, p. 8 (La. 10/25/11), 79 So.3d 246, 256-57.

Eagle Pipe involved a suit by landowners against oil and gas production companies for damages arising from pre-purchase contamination of the property pursuant to various surface leases. The supreme court reviewed Louisiana jurisprudence along with Louisiana statutory law regarding property rights and obligations as they apply to subsequent purchasers of property. Id. The supreme court concluded that damage to property constitutes damage to a property owner's right of enjoyment in the property, which is a right of ownership and, consequently, a real right in the property. Id. The supreme court noted that as a result, the tortfeasor becomes obligated to the owner of the property whereby the owner is granted a right to demand performance from the tortfeasor by seeking payment of damages. Id. The supreme court further concluded that the right to sue is personal and only enforceable by the property owner against the tortfeasor. Id. Thus, a subsequent owner of the property has no right to sue the tortfeasor for the previously inflicted damage absent an assignment or subrogation of the prior owner's personal right to sue for that damage. Id.

Grace Ranch contends that Eagle Pipe is inapplicable because it involved a surface lease, whereas the present matter involves a mineral lease. Grace Ranch's argument is based upon the following language found in a footnote in Eagle Pipe , 79 So.3d at 281, n.80 : "Moreover, because not factually relevant, we express no opinion as to the applicability of our holding to fact situations involving mineral leases or obligations arising out of the Mineral Code."

Our review of post- Eagle Pipe jurisprudence reveals that the subsequent purchaser rule has been applied to mineral leases. In Boone v. Conoco Phillips Co. , 13-1196 (La.App. 3 Cir. 5/7/14), 139 So.3d 1047, property owners brought an action against a prior mineral rights lessee for contamination resulting from its oil and gas drilling operations prior to the owners' acquisition of the property. In affirming the trial court's grant of the lessee's motion for summary judgment and exception of prescription, this court in Boone , 139 So.3d at 1055, held that, "Under the subsequent purchaser doctrine, [property owners] do not have a right of action to sue the lessee for damages occurring prior to their acquisition of the property."

In Bundrick v. Anadarko Petroleum Corp. , 14-993 (La.App. 3 Cir. 3/4/15), 159 So.3d 1137, writ denied , 15-557 (La. 11/16/15), 184 So.3d 24, the owners of interests in land brought an action against the former mineral lessees asserting claims of negligence and breach of the obligation to restore the property to its original condition, arising from the lessees' oil and gas activities prior to the owners' acquisition of the land interests. In affirming the trial court's grant of summary judgment in favor of the former mineral lessees, this court in Bundrick , 159 So.3d at 1143, agreed that "the subsequent purchaser rule applies in matters involving mineral leases."

We agree with this circuit's holding enunciated in Boone , 139 So.3d 1047, and Bundrick , 159 So.3d 1137, despite Grace Ranch's reference to Duck v. Hunt Oil Co. , 13-628, p. 6 (La.App. 3 Cir. 3/5/14), 134 So.3d 114, 119, writs denied , 14-703, 14-709, 14-715, 14-735 (La. 6/13/14), 140 So.3d 1189, 1190, wherein this court held that, "By its own terms, Eagle Pipe does not apply to situations involving mineral leases." We find that the foregoing language in Duck merely recognizes that a mineral lease was not at issue in Eagle Pipe . That same language does not equate to a finding that Eagle Pipe cannot apply to mineral leases. This is apparent based upon the Duck , 134 So.3d at 119-20, court's conclusion that "the right to sue the defendants for damages under the Burrill and Farrar Leases did not automatically pass to Duck when he acquired the land at issue." This conclusion mirrors the underlying principle in Eagle Pipe , i.e., the personal nature of a property owner's claim for damages. We further note that in Duck , 134 So.3d at 122, the plaintiff ultimately maintained a right of action to bring suit based upon this court's finding that "the Burrill and Farrar Leases [contained] a stipulation pour autrui for the benefit of third parties."

Other Louisiana circuits have also held that the subsequent purchaser rule applies to mineral leases. In Global Marketing Solutions, LLC v. Blue Mill Farms, Inc. , 13-2132 (La.App. 1 Cir. 9/19/14), 153 So.3d 1209, writ denied , 14-2572 (La. 4/23/15), 173 So.3d 1164, the first circuit affirmed the trial court's holding that the subsequent purchaser rule prevents claims against former mineral lessees under expired mineral leases. Likewise, in Walton v. Exxon Mobil Corp. , 49,569, p. 14 (La.App. 2 Cir. 2/26/15), 162 So.3d 490, 498, writ denied , 15-569 (La. 11/16/15), 184 So.3d 25, the second circuit affirmed the trial court's holding that the subsequent purchaser rule precluded landowners from asserting tort claims for pre-purchase damages against past and present mineral lessees and servitude owners because such claims "were the personal rights and claims of the former surface owners."

Accordingly, Grace Ranch's first assignment of error is without merit.

II. Right of Action

In its fifth assignment of error, Grace Ranch contends that the trial court committed error in applying the jurisprudential subsequent purchaser rule under circumstances where the Civil Code and Mineral Code provide statutory support for its right of action. Grace Ranch alleges that a mineral lease creates a real right by the landowner to sue for property damage that runs with the land. Thus, according to Grace Ranch, if a landowner grants a mineral lease, any and all subsequent purchasers of that property inherit the right to sue the former mineral lessee upon becoming the owner of that property. At trial, Grace Ranch's argument was dismissed by the trial court according to its reasons for judgment which state that, "[Grace Ranch] made several arguments against the application of the subsequent purchaser rule to the facts of this case, but their actions fail to support their argument."

In order to determine whether there is merit to Grace Ranch's assignment of error, we must review applicable Louisiana jurisprudential and statutory law. In Bundrick , 159 So.3d at 1143, the plaintiff argued that "mineral rights are real rights and, as such, pass with the property to a subsequent purchaser without the need for specific assignment or subrogation." In finding no merit to the plaintiff's argument, the third circuit noted: "[D]espite the language of La.R.S. 31:16 stating that mineral rights are real rights, that status is reserved to the mineral lessee and not the mineral lessor." Id.

The classification of mineral rights as real rights with respect to a lessee was succinctly explained by the U.S. District Court for the Western District of Louisiana in Minvielle v. IMC Global Operations, Inc. , 380 F.Supp.2d 755, 775 (W.D. La. 2004), as follows:

In the case of a mineral lease, the Mineral Code designates the right as a real one in order to protect the mineral lessee from losing his rights if the land is sold during the existence of the lease. This conclusion is apparent in the reasoning behind La.R.S. 31:16, which [is] illustrated in the Comments stating:
All things considered, the lease has the major characteristics of a real right: the mineral lessee may follow the land, regardless of transfers of ownership; the mineral lessee may assert his rights against the world just as the proprietor of any other real right; he may enjoy directly and draw from the land a part of its economic advantages by appropriating a wasting asset; he has certain rights of preference; and he holds a right that is in reality susceptible of a type of possession through exercise.
The fact that the real right created is the right held by the lessee, is specifically noted in the Comments to La.R.S. 31:154, "The mineral lease, though it creates a real right in the hands of the lessee is still an elaborate contractual relationship." Accordingly, the mineral lease gives real rights to the lessee, but the Mineral Code is void of any indication that it creates real rights in favor of the lessor. This is accounted for in the Comments to La.R.S. 31:16, which note:
It is true that there are certain distinctions from the normal real right which give the mineral lease markings of kinship to personal rights. Not all obligations created by the lease are binding on a subsequent owner of the land.

After reviewing Bundrick , 159 So.3d 1137, and the federal court's explanation in Minvielle , 380 F.Supp.2d 755, we find that Louisiana statutory law holds that a mineral lease creates a real right in favor of the mineral lessee rather than the lessor. Thus, Grace Ranch's argument that a mineral lease creates a real right which runs with the land and enables a landowner to sue for property damage, is without merit.

Grace Ranch next argues that upon the expiration of a mineral lease, the mineral lessee owes an end of the lease restoration obligation to both the mineral lessor and surface owner, which can be enforced by any subsequent purchaser of the property. In its amended petition, Grace Ranch alleged that Defendants violated the "implied obligation of lessees under" La.R.S. 31:122, which provides:

A mineral lessee is not under a fiduciary obligation to his lessor, but he is bound to perform the contract in good faith and to develop and operate the property leased as a reasonably prudent operator for the mutual benefit of himself and his lessor. Parties may stipulate what shall constitute reasonably prudent conduct on the part of the lessee.

The statute's express terms obligate the lessee to perform the contract in good faith and act as a reasonably prudent operator. Terrebonne Parish Sch. Bd. v. Castex Energy, Inc. 04-968 (La. 1/19/05), 893 So.2d 789. This article fails to impose an express duty to restore the surface. Id. "Rather, it simply adapts the general, 'good administrator' standard of La.Civ.Code art. 2710, applicable to all leases, to the specific context of a mineral lease." Id. at 797. "[I]n the absence of an express lease provision, Mineral Code article 122 does not impose an implied duty to restore the surface to its original, pre-lease condition absent proof that the lessee has exercised his rights under the lease unreasonably or excessively." Id. at 801.

In this case, Defendants have no implied duty to restore the surface of the property under La.R.S. 31:122 absent proof that they unreasonably exercised their rights under the lease. Thus, Grace Ranch's reliance on La.R.S. 31:122 is misplaced.

Moreover, Grace Ranch's argument presumes that a mineral lease burdens the lessee with a real obligation to restore property in favor of the landowner. To determine whether Grace Ranch's presumption is correct, we look to the relationship between real obligations and real rights. In that regard, "[a]n obligation is a legal relationship whereby a person, called the obligor, is bound to render a performance in favor of another, called the obligee." La.Civ.Code art. 1756. "A real obligation is a duty correlative and incidental to a real right." La.Civ.Code art. 1763. The comments to La.Civ.Code art. 1763 provide that real obligations are "incurred as a result of ownership or possession of a thing burdened by a real right[.]" "Mineral rights are real rights" which are subject to prescription of nonuse for ten years. La.R.S. 31:16. "The basic mineral rights that may be created by a landowner are the mineral servitude, the mineral royalty, and the mineral lease." Id . Under La.R.S. 31:114, "[a] mineral lease is a contract by which the lessee is granted the right to explore for and produce minerals."

In analyzing the foregoing articles with respect to mineral leases, we find that the mineral lessee is the owner of the real right. The corresponding real obligation, therefore, relates to the burden placed on the landowner's rights in property pursuant to the mineral lease, i.e., the property owner's obligation to let the mineral lessee enter the property and explore for oil and gas. Thus, Grace Ranch's presumption that the mineral lease burdens the lessee with a real obligation to restore property in favor of the landowner is misplaced.

Grace Ranch contends that it has a right of action to sue for pre-acquisition damages based upon the legal principles governing limited personal servitudes and usufructs. In that regard, we look to the dual nature of a mineral lease, i.e., featuring characteristics of both contracts and rights in property, as explained by the federal court in Minvielle , 380 F.Supp.2d at 775, as follows:

Thus, it is in the nature of a limited personal servitude that the mineral lease is a real right. The limited personal servitude is explained in the Comments to La. C.C. Art. 639 as constituting "an intermediary category between personal and predial servitudes. Like usufruct and habitation, they are charges on things in favor of a person rather than an estate; like predial servitudes, they are necessarily charges on an immovable belonging to another person and are confined to certain advantages of use or enjoyment." Although a right of use, i.e., a personal servitude, is a real right, it is one granted in favor of a person rather than an estate, and therefore it does not pass with the property upon sale of the property. Sustainable Forests, L.L.C. v. Harrison , 846 So.2d 1283, 1284 (2003).

Based upon our interpretation of Minvielle , along with Louisiana jurisprudence and statutory law, we find that although a mineral lease is a real right under La.R.S. 31:16, it is not purely a real right that automatically attaches to the property. Thus, Grace Ranch's argument does not defeat application of the subsequent purchaser rule whereby the right to sue for pre-acquisition damages is a personal right of action that a subsequent purchaser cannot acquire without an assignment or subrogation of rights. Accordingly, Grace Ranch's argument is without merit.

Grace Ranch further contends that as the surface owner, it has a right of action pursuant to La.R.S. 31:11(A), which provides:

The owner of land burdened by a mineral right or rights and the owner of a mineral right must exercise their respective rights with reasonable regard for those of the other. Similarly the owners of separate mineral rights in the same land must exercise their respective rights with reasonable regard for the rights of other owners.

Grace Ranch then compares La.R.S. 31:11(A) to its analogous provision contained in La.Civ.Code art. 667, which governs the limitations placed on a proprietor's use of his property.

A similar issue was addressed in Global Marketing , 153 So.3d 1209, wherein the plaintiff alleged that it had a real right of action against the defendants based upon La.R.S. 31:11 and La.Civ.Code art. 667. The first circuit held:

Even if we make the assumption that La. C.C. art 667 bestows real rights and obligations between owners of adjacent immovable property, Global never shared that relationship with the defendants. As the article is written, Global and the defendants were never "neighbors." The mineral leases were executed decades before Global purchased the property. By the time Global purchased the property in 2005, all of the defendants' mineral leases had expired. The defendants never did lease rights to the minerals under the property while Global owned it, which means they never could have been "neighbors," even in the broadest sense. Therefore, Global cannot enforce any rights against the defendants under La. C.C. art. 667. While Global insists that this article confers real rights to be enforced against the defendants, Global presents no statute or jurisprudence which supports this interpretation.
Article 11 of the Mineral Code confers correlative rights on the land owner and the owner of the mineral right to exercise their rights with reasonable regard for those of the other, and Article 134 states that in violation of a mineral lease, the aggrieved party is entitled to appropriate relief provided by law. Again, these articles contemplate the real rights and obligations that exist between parties who occupy the land contemporaneously with a mineral lease.

Id. at 1215 (footnotes omitted).

In this case, the evidence in the record reveals that the subject lease expired prior to Grace Ranch's acquisition of the property. Thus, Grace Ranch had no real right of action against Defendants pursuant to these articles because they were never neighboring proprietors. Accordingly, Grace Ranch's argument is without merit.

Grace Ranch contends that it acquired the right to enforce the end-of-lease obligations of the subject lease when it acquired one half of the mineral rights upon the expiration of General Farms' mineral servitude. In support, Grace Ranch cites Plaquemines Parish Government v. Getty Oil Co. , 94-1634 (La.App. 1 Cir. 5/5/95), 662 So.2d 773, and Reagan v. Murphy , 235 La. 529, 105 So.2d 210 (1958), for the proposition that when an owner acquires mineral rights, the ownership of the minerals and surface are merged, and the owner of the land thereby acquires the right to enforce the lessee's obligations arising from the prior lease. Our review of Plaquemines Parish Government , 662 So.2d 773, and Reagan , 105 So.2d 210, reveals that both cases involved leases that had not expired. In this case, the subject lease had expired by the time Grace Ranch acquired its interest. Accordingly, Grace Ranch's reliance on those two cases is misplaced.

Grace Ranch's fifth assignment of error is without merit.

III. Post-Sale Assignment of Rights

Grace Ranch's third assignment of error focuses on its right to assert claims based upon its assignments from previous property owners. Grace Ranch contends that it was assigned the right to enforce the restoration obligation of the subject lease from General Farms, in its capacity as owner of the mineral rights. It alleges that the right of restoration was also assigned by both General Farms and the Leblancs, in their capacity as surface owners, since their surface rights were subject to the lease. Grace Ranch contends that the trial court committed error in finding that the assignment from General Farms was invalid based on General Farms' affidavit of dissolution.

In its reasons for judgment, the trial court acknowledged that Grace Ranch "sought and obtained a number of assignments from previous owners of the property" "[i]n an attempt to comply with the subsequent purchaser rule[.]" The trial court explained that at the time General Farms assigned its claims, it was a dissolved corporation and as such, legally incapable of assigning claims. The trial court noted that General Farms had been previously dissolved by affidavit without formal liquidation in accordance with La.R.S. 12:142.1, which did not enable General Farms' own claims to survive. The trial court held that corporations such as General Farms which have been "dissolved by affidavit do not maintain any claims or causes of action to assert on its own behalf and therefore have nothing to assign."

On review, the record reveals that General Farms was dissolved by affidavit on January 25, 1999, pursuant to La.R.S. 12:142.1 and 12:250.1. Although La.R.S. 12:142.1 has since been repealed by 2014 La. Acts No. 328, § 5, the fourth circuit in Gendusa v. City of New Orleans , 93-1527 (La.App. 4 Cir. 2/25/94), 635 So.2d 1158, 1162, writ denied , 94-1508 (La. 9/23/94), 642 So.2d 1296, explained:

[Louisiana Revised Statutes] 12:142.1 provides for corporate dissolution by affidavit, without formal liquidation:
"A. In addition to all other methods of dissolution, if the corporation is not doing business and owes no debts , it may be dissolved by filing an affidavit with the secretary of state executed by the shareholders, ..., attesting to such facts and requesting that the corporation be dissolved. Thereafter, the shareholders, ..., shall be personally liable for any debts or claims, if any, against the corporation in proportion to their ownership in the shares of the corporation." (Emphasis added)

The Gendusa court interpreted the provision as follows:

This provision was added in 1982 to provide a means of avoiding the costs and delays of a formal liquidation, but is limited in its application to corporations no longer doing business. While the statute provides that shareholders are to assume any lingering corporate debts, there is no provision allowing survival of the corporation's inchoate claims. Where a corporation has such outstanding claims or obligations, the appropriate method of dissolution is through a voluntary liquidation, with appointment of a liquidator and the orderly collection of claims, payment of debts and transfer of assets.

Id. at 1162.

Application of Gendusa to the instant matter provides that General Farms' election to dissolve the corporation via La.R.S. 12:142.1 resulted in a waiver of its right to assert any outstanding claims since "there [was] no provision allowing survival of the corporation's inchoate claims." Gendusa , 635 So.2d at 1162. Accordingly, we find that General Farms was a dissolved corporation incapable of assigning claims to Grace Ranch.

With respect to the assignments from the Leblancs, the trial court held that the "only claims they could assign were those tort claims arising during their approximately 1.5 years of ownership of the surface of the tract of land." The trial court remarked that if those claims existed, they prescribed when Grace Ranch failed to timely supplement the petition. According to the trial court, Grace Ranch filed its original petition in 2011 and obtained assignments of the tort claims from the Leblancs and/or their heirs in January 2013. The trial court held that "[a]cquiring the rights does not cure the defect in the original Petition."

On review, we look to statutory and jurisprudential law to determine when an amendment relates back to the filing of the initial pleading. In that regard, La.Code Civ.P. art. 1153 provides: "When the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing the original pleading." An amendment relates back only if the plaintiff possessed a right of action to assert those claims at the time of the initial filing. See Boone , 139 So.3d 1047 ; see also Taylor v. Babin , 08-2063 (La.App. 1 Cir. 5/8/09), 13 So.3d 633, writ denied , 09-1285 (La. 9/25/09), 18 So.3d 76.

An amendment of claims was explained in Boone , wherein this court found that the plaintiffs' second supplemental petition, which was filed over two years after the filing of the initial petition, did not relate back. In Boone , 139 So.3d at 1061 (footnote omitted), the court stated:

Even if the September 2012 assignments from the previous owners had conferred valid and timely rights, the assignments arose two and a half years after the original petition was filed in May of 2010. As discussed, the tort rights had prescribed before the original petition was filed, and the assignments did not confer a right of action in contract. The rights sought to be bestowed in the assignments were not exigible at the time of suit in 2010. Therefore, the claims in the new petition were supplemental, not amending, no matter how the caption of the petition reads, and the relation back of La.Code Civ.P. art. 1153 applies only to amending petitions. Smith v. Cutter Biological , 99-2068 (La. App. 4 Cir. 9/6/00), 770 So.2d 392.
An "untimely filed original petition does not support the relation-back of a new cause of action[.]" Allen v. State, Dept. of Public Safety & Corrections , 12-430, p. 6 (La.App. 3 Cir. 11/7/12), 107 So.3d 106, 110 (quoting Cutter Biological , 770 So.2d at 413 ). Nor does an original petition filed by a party without a right of action to file it. See Naghi v. Brener , 08-2527 (La. 6/26/09), 17 So.3d 919.

The Boone court further discussed an amendment of pleadings under La.Code Civ.P. art. 1151 versus supplemental pleadings under La.Code Civ.P. art. 1155. The former allows a party to "amend its petition if the new claims accrued prior to filing the original suit" whereas the latter allows a party "to file a supplemental petition setting forth related items of damage or causes of action that became exigible after the original petition was filed[.]" Boone , 139 So.3d at 1061, n.3. The Boone court advised, however, that "relation back of [ La.Code Civ.P. art.] 1153 applies only to the amended petition." Id.

In this case, the evidence in the record confirms that Grace Ranch filed its original petition in 2011. In 2013, Grace Ranch sought several assignments of tort claims from the Leblancs and/or their heirs. According to La.Civ.Code art. 3493, "[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." In 2017, Grace Ranch filed a "First Amended Petition for Damages," asserting the tort claims it was previously assigned in 2013. According to the dictates of Boone , the rights sought to be bestowed in the assignments were not exigible at the time Grace Ranch filed suit in 2011. Thus, the claims asserted in Grace Ranch's 2017 pleading were supplemental rather than amending. Since relation back under La.Code Civ.P. art. 1153 applies only to amending petitions, the claims asserted in Grace Ranch's 2017 supplemental petition do not relate back to the original petition's filing. Since the claims do not relate back, the newly alleged tort claims prescribed before they were asserted.

On appeal, Defendants also contend that the mineral lease was expired. Defendants argue that General Farms could not validly assign claims under an expired mineral lease just as the LeBlancs could not validly assign rights that were subject to an expired lease.

On review, we look to LeJeune Brothers, Inc. v. Goodrich Petroleum Co., L.L.C. , 06-1557, p. 6 (La.App. 3 Cir. 11/28/07), 981 So.2d 23, 28, writ denied , 08-298 (La. 4/4/08), 978 So.2d 327, wherein this court agreed that it is "impossible to transfer rights to an assignee under an expired mineral lease." This court noted:

Although LeJeune Brothers argues it acquired the property from the mineral lessor, since the lease had expired at least two years before Baez sold the property to LeJeune Brothers, Baez was not a mineral lessor. Therefore, he could not assign any rights under the expired Baez lease in that sale. Further, we note LeJeune Brothers at the summary judgment hearing acknowledged it was not an assignee or party under the lease[.]

Id.

In this case, the evidence in the record reflects that General Farms owned the surface rights and mineral rights in the subject lease. The subject lease expired by 1986. Grace Ranch thereafter obtained the assignments in 2013. Grace Ranch, therefore, could not have been assigned any rights in the subject lease because "it [is] impossible to transfer rights to an assignee under an expired mineral lease." LeJeune , 981 So.2d at 28. Accordingly, Grace Ranch's third assignment of error is without merit.

Grace Ranch's fourth assignment of error alleges that "[t]he trial court committed error in relying in part on prescription in dismissing the claims of the plaintiff because prescription was not at issue." We decline to address this assignment based on our finding that Grace Ranch has no right of action.

DECREE

The trial court's judgment granting motions for summary judgment in favor of J.P. Van Way, BP America Production Company, and BHP Billiton Petroleum (Americas), Inc. and an exception of no right of action in favor of J.P. Van Way is affirmed. All costs associated with this appeal are assessed to Grace Ranch, LLC.

AFFIRMED.

Thibodeaux, Chief Judge, concurs in the result reached.

      In its brief, Grace Ranch argues that it is an "obvious fact that the mineral lease does not have to create a real right 'in favor of' the surface owner for the surface owner to seek remediation because the surface owner already owns real rights 'in his favor,' as he owns the bundle of real rights that constitutes surface ownership."

      According to La.Civ.Code art. 667 :
      [I]f the work [a proprietor] makes on his estate deprives his neighbor of enjoyment or causes damage to him, he is answerable for damages only upon a showing that he knew or, in the exercise of reasonable care, should have known that his works would cause damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.

      The trial court's reasons for judgment state that General Farms was dissolved by affidavit on January 25, 2009, although the record reflects that it was dissolved on January 25, 1999.


author: EDWARDS, JUDGE PRO TEMPORE, J.

text:
    Linda CANGELOSI v. TREASURE CHEST CASINO, L.L.C.
    NO. 18-CA-72
    Court of Appeal of Louisiana, Fifth Circuit.
    July 31, 2018
    COUNSEL FOR PLAINTIFF/APPELLANT, LINDA CANGELOSI, Linda Cangelosi
    COUNSEL FOR DEFENDANT/APPELLEE, TREASURE CHEST CASINO, L.L.C., Diane S. Mitnik
    Panel composed of Judges Fredericka Homberg Wicker, Stephen J. Windhorst, and Marion F. Edwards, Judge Pro Tempore
   EDWARDS, JUDGE PRO TEMPORE, J.

This is a personal injury action for damages sustained in a slip and fall near the entrance of the Treasure Chest Casino, L.L.C. (Treasure Chest). The judgment on appeal is the grant of summary judgment in favor of defendant/appellee, Treasure Chest. For the reasons set forth herein, we affirm that judgment.

FACTS AND PROCEDURAL HISTORY

Plaintiff/appellant, Linda Cangelosi, was walking with her son from the parking lot to the entrance of the Treasure Chest Casino on December 16, 2015. The fall occurred under the porte cochere, an outdoor open-ended tent that covers a portion of the roadway leading to and from the walkway entrance of the casino. A video of the fall shows that Ms. Cangelosi slipped and fell as she stepped from the roadway onto the walkway. The video also shows the ground was very wet, with puddles in both the roadway and the walkway.

Ms. Cangelosi testified in her deposition that on the day of the accident, she went to the casino at about 6:00 p.m. with her son and a friend. Ms. Cangelosi explained that she and her son went there about three times a month to listen to music. This had been their custom for a "couple of years." On the day of the accident, it had rained all day and the ground was wet. Ms. Cangelosi arrived by vehicle under the porte cochere. It appears that they took advantage of the valet service provided by Treasure Chest. Ms. Cangelosi got out of the vehicle and walked across two traffic lanes. Then, as she stepped onto the adjacent walkway, she slipped in a puddle. One foot went out in front and the other went back, causing her to fall and injure her knee, hip, back and arm. Treasure Chest employees came out to assist and an emergency medical team was called. Ms. Cangelosi declined an offer to be taken to a hospital and went into the casino. About 45 minutes later, when she began experiencing pain in her right hip, she left the casino and went home.

Ms. Cangelosi stated that she consulted Dr. Van Wormer the next day and treated with him for about a year. On Dr. Wormer's advice, Ms. Cangelosi consulted a neurologist who prescribed pain medication for her back pain. Since the accident, Ms. Cangelosi has been in pain and now requires the use of a walker.

Ms. Cangelosi filed this action for damages on March 24, 2016. Upon completion of discovery, Ms. Cangelosi filed a motion for summary judgment on July 3, 2017. On July 28, 2017, Treasure Chest filed a motion for summary judgment and a motion to strike the affidavit attached to Ms. Cangelosi's summary judgment motion. The trial court denied Ms. Cangelosi's motion for summary judgment and granted Treasure Chest's motion for summary judgment on November 16, 2017. Ms. Cangelosi timely appealed that judgment.

Ms. Cangelosi appears in proper person in this Court and has filed three motions to allow her son, Clayton Cangelosi, to orally argue for her before this Court. Considering that Clayton Cangelosi is neither a party to this litigation nor a duly licensed attorney, we denied the motions, finding that he cannot act in a representative capacity in this appeal.

LAW AND ANALYSIS

The first issue before this Court is the argument by Treasure Chest that the appeal should be dismissed and/or stricken because Ms. Cangelosi's pro se brief is not in conformance with Uniform Rules-Courts of Appeal, Rule 2-12.4. We agree with appellee that Ms. Cangelosi's brief is not in conformance with Rule 2-12.4 in that it does not contain several required items, including a statement of the jurisdiction of the court, a concise statement of the case, specification of errors, or issues for review. However, it does set forth the basic premise of her argument on appeal.

Rule 2-12.4 does not provide for the dismissal of the appeal as a penalty for violating the rule. Uniform Rules-Courts of Appeal, Rule 2-12.13, which addresses non-compliant briefs, provides that "[b]riefs not in compliance with these Rules may be stricken in whole or in part by the court, and the delinquent party ... may be ordered to file a new or amended brief." Thus, the sanction to be imposed for a non-conforming brief is left to the discretion of the court. In the matter before us, we find that striking Ms. Cangelosi's brief would deprive her of her right to appeal and would be an unreasonably. Accordingly, we maintain Ms. Cangelosi's appeal and will consider the arguments made in her brief.

In her first argument, Ms. Cangelosi asserts the trial court erred in denying her "Motion and Order to Release Evidence." The motion was filed on January 9, 2018 and relates to a "flash drive" video of the fall. The trial court denied that motion on January 10, 2018. Ms. Cangelosi argues she was unable to properly present her claim or prepare her brief without that flash drive. It is not clear from the brief which flash drive Ms. Cangelosi is referring to in this argument, or how the lack of access to the drive hindered the presentation of her claim or the preparation of her appeal brief. However, a video of the fall, and a flash drive were admitted into evidence in the trial court and have been made a part of the record in this Court. Although a party unrepresented by counsel is not permitted to withdraw a record from this Court, that party can make arrangements to view the record. Therefore, Ms. Cangelosi had access to the evidence and could have made arraignments with this Court to view the video. She made no such request. Accordingly, we find no merit in this argument.

The remainder of Ms. Cangelosi's arguments relate to the grant of the defense summary judgment. She asserts the walkway was defective and unreasonably dangerous, causing her to fall. Specifically, she argues the water on the walkway was brought in by passing cars and shuttle busses, and that a hazardous condition existed in the area of the fall due to improper drainage. Ms. Cangelosi also makes the claim that she has met her burden of proving a hazardous condition exists by her allegation that "all kinds of debris and liquids", including oils, dirt, and other dangerous slippery substances were on the walkway.

Treasure Chest responds that summary judgment was properly granted because Ms. Cangelosi cannot prove a defect that presented an unreasonably dangerous condition about which Treasure Chest failed to warn its patrons. Treasure Chest asserts it used a non-skid product on the walkway that was specifically identified in response to an interrogatory. Further, Treasure Chest argues that any reference to the parish drainage code cannot be considered since this is new evidence and this argument was not made in the district court. Finally, Treasure Chest maintains Ms. Cangelosi simply slipped on the wet walkway in rainy weather.

Summary judgment is a procedural device to secure the just, speedy, and inexpensive resolution of an action. Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories and admissions, together with the affidavits, if any, admitted for the purposes of the summary judgment motion reveal that there are no genuine issues of material fact. The party moving for summary judgment has the burden of establishing the absence of a genuine material fact. If the moving party will not bear the burden of proof at trial, the moving party must only point to an absence of factual support for one or more elements of the adverse party's claim, action or defense. The non-moving party, then, must produce evidence to show he will be able to meet his burden of proof at trial. If the non-moving party cannot show he will be able to meet his evidentiary burden, there is no issue of material fact, and the moving party is entitled to judgment as a matter of law. A fact is material for purposes of summary judgment if its existence or non-existence is essential to the plaintiff's cause of action or theory of recovery.

The appellate standard of review of a summary judgment is well-settled. Under that standard, the appellate court must review the summary judgment de novo , viewing the record and making all reasonable inferences that may be drawn from it in the light most favorable to the non-movant.

In the matter before us, Ms. Cangelosi makes the claim that an unreasonably dangerous condition of the walkway to the entrance of the Treasure Chest Casino caused her to slip and fall, resulting in injuries.

La. C.C. art. 2317.1 provides that; "(t)he owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care."

La. C.C. art. 2322 further provides that; "(t)he owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice or defect in its original construction. However, he is answerable for damages only upon a showing that he knew or, in the exercise of reasonable care, should have known of the vice or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care."

Thus, to prove liability for an unreasonably dangerous defect, a plaintiff has the burden to show that the thing was in the custodian's custody or control, it had a vice or defect that presented an unreasonable risk of harm, the defendant knew or should have known of the unreasonable risk of harm, and that the damage was caused by the defect.

Under article 2317.1, a defect is a condition creating an "unreasonable risk of harm," which requires the trier of fact to decide whether the social value and utility of a hazard outweighs, and thus justifies, its potential harm to others. The fact that a pedestrian fell on a walkway does not automatically elevate the condition of that walkway to that of an unreasonably dangerous defect. The defect must be of such a nature to constitute a dangerous condition, which would reasonably be expected to cause injury to a prudent person using ordinary care under the circumstances.

The degree to which the danger is evident to the plaintiff is one factor in determining whether the condition is unreasonably dangerous. If the facts of a particular case show that the complained of condition should be obvious and apparent to all, the condition may not be unreasonably dangerous and the defendant may owe no duty to the plaintiff. This Court has explained that:

Specifically, in a trip and fall case, the duty is not solely with the landowner. A pedestrian has a duty to see that which should be seen and is bound to observe whether the pathway is clear. The degree to which a danger may be observed by a potential victim is one factor in the determination of whether the condition is unreasonably dangerous. A landowner is not liable for an injury which results from a condition which should have been observed by the individual in the exercise of reasonable care or which was as obvious to a visitor as it was to the landowner.

In support of its motion for summary judgment, Treasure Chest attached the depositions of both Ms. Cangelosi and her son in which they acknowledge they knew it had rained much of the day and that the ground was wet. Ms. Cangelosi also admitted she was wearing open-back "crock" shoes with little or no tread when she slipped. Treasure Chest attached answers to interrogatories that show the surface of the stamped concrete walkway was treated with H & C SharkGrip Slip-Resistant Additive, a protective non-skid coating. Treasure Chest also provided affidavits from two employees that establish that about 2,759 patrons entered the casino on the day of the fall without incident, and that no complaints were received regarding slippery conditions near the entrance or under the porte cochere.

Ms. Cangelosi argues that a dangerous condition was established by her assertion that the stamped concrete portion of the walkway carried "not only water but all kinds of debris and liquids (oils, dirt, and other dangerous slippery substances etc.)." However, plaintiff offered no evidence that anything other than water was on the walkway, and there is no evidence in the video to support her claim.

The video shows the fall occurred on a concrete surface that was painted to mark the transition from the parking lot to the stamped concrete walkway into the casino. It is also clear from the video that the area was very wet due to the fact that it was a rainy day, and that there were some puddles caused by the rain. The video shows that Ms. Cangelosi stepped directly into a puddle, causing her to slip and fall. The puddle is an obviously hazard to be avoided.

Ms. Cangelosi also argues that Treasure Chest is not in compliance with the Kenner City Ordinance relating to proper drainage. However, Ms. Cangelosi presented no evidence to support this assertion.

The unreasonable risk of harm inquiry is a "disputed issue of mixed fact and law or policy that is peculiarly a question for the jury or the trier of facts." Thus, whether a defect presents an unreasonable risk of harm must be determined in light of facts and circumstances of each particular case.

Under the circumstances of the matter before us, we find there are no material facts, the existence or non existence of which is essential to plaintiff's cause of action, remaining at issue. Treasure Chest supported its motion with evidence that the walkway was not defective, and Ms. Cangelosi has presented no evidence establishing any genuine issue of material fact relating to her claim that it was unreasonably dangerous. Additionally, the hazard causing the fall, the wet ground and puddles, were obvious to the plaintiff. Thus, given the law cited herein, we find Ms. Cangelosi will not be able to meet her burden of proof under the law. Accordingly, we find the trial court did not err in granting the motion for summary judgment filed by the Treasure Chest. The judgment of the trial court granting the defense motion for summary judgment is hereby affirmed.

AFFIRMED

      The trial court also denied Treasure Chest's motion to strike as moot.

      Although the Uniform Rules-Courts of Appeal, Rule 2-12.4 requires an appellant in this court to assign errors in his brief, La. C.C.P. art. 2129 provides otherwise. See also Clark v. Dep't of Police, 2012-1274 (La. App. 4 Cir. 2/20/13), 155 So.3d 531, writ denied, 2013-0642 (La. 4/26/13), 112 So.3d 846, in which the court, relying on Rocque v. Dept. of Health and Human Resources, Office of Secretary, 505 So.2d 726, 728 (La.1987), held that an appellant in a civil service matter need not assign specific errors committed by the Civil Service Commission in his motion, application, or notice of appeal.

      Richardson v. N. Oaks Hosp. , 2011-1258 (La. App. 1 Cir. 2/13/12), 91 So.3d 361, 364-65.

      Uniform Rules-Courts of Appeal Rule 2-6.

      Boutall v. Christakis, P.M., Co. LLC , 17-402 (La. App. 5 Cir. 12/27/17), 236 So.3d 1268, 1272.

      La. C.C.P. art. 966.

      Id.

      Boutall, 236 So.3d at 1272.

      Id.

      La. C.C.P. art. 966(C)(2).

      Brown v. Manhattan Life Ins. Co. , 01-0147 (La. 6/29/01), 791 So.2d 74, 78.

      Boutall, 236 So.3d at 1272.

      Baudy v. Travelers Indem. Co. of Connecticut , 13-832 (La. App. 5 Cir. 4/9/14), 140 So.3d 125, 131, and cases cited therein.

      King v. Allen Court Apartments II , 2015-0858 (La. App. 1 Cir. 12/23/15), 185 So.3d 835, 840, writ denied, 2016-0148 (La. 3/14/16), 189 So.3d 1069.

      Monson v. Travelers Property, 06-921 (La.App. 5 Cir. 4/24/07), 955 So.2d 758, 761.

      Id.

      Moore v. Oak Meadows Apartments, 43,620 (La. App. 2 Cir. 10/22/08), 997 So.2d 594, 598.

      Pitre v. Louisiana Tech University, 95-1466 (La. 5/10/96), 673 So.2d 585, 591 (citations omitted).

      Babino v. Jefferson Transit , 12-468 (La. App. 5 Cir. 2/21/13), 110 So.3d 1123, 1126. (citations omitted)

      Reed v. Wal-Mart Stores, Inc. , 97-1174 (La. 3/4/98), 708 So.2d 362, 364 (quoting Tillman v. Johnson , 612 So.2d 70 (La. 1993).

      Todd v. Angel , 48,687 (La. App. 2 Cir. 1/15/14), 132 So.3d 453, 458-59, writ denied, 2014-0613 (La. 5/16/14), 139 So.3d 1027.


text:
    STATE of Louisiana v. Antoine GREEN
    NO. 18-KA-95
    Court of Appeal of Louisiana, Fifth Circuit.
    July 31, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Metairie, Terry M. Boudreaux, Gretna
    COUNSEL FOR DEFENDANT/APPELLANT, ANTOINE GREEN, Cynthia K. Meyer
    Panel composed of Judges Fredericka Homberg Wicker, Stephen J. Windhorst, and Marion F. Edwards, Judge Pro Tempore
   EDWARDS, JUDGE PRO TEMPORE, J.

Defendant, Antoine Green, appeals his convictions and sentences for forcible rape and aggravated burglary. For the reasons that follow, we affirm defendant's convictions and sentences and grant appellate counsel's motion to withdraw as counsel of record for defendant.

PROCEDURAL HISTORY

On January 14, 2016, a Jefferson Parish Grand Jury returned A True Bill indicting defendant, Antoine Green, for aggravated rape of a juvenile in violation of La. R.S. 14:42 (Count 1), and aggravated burglary in violation of La. 14:60 (Count 2). Defendant pled not guilty to both charges on January 26, 2016. On August 24, 2016, following a competency hearing, defendant was found competent to stand trial. On March 7, 2017, the State amended Count 1 of the True Bill to forcible rape. On that same date, defendant pled guilty to both counts of the amended True Bill and was sentenced to 20 years at hard labor for each count, with the sentences to run concurrently. On December 20, 2017, defendant was granted an out-of-time appeal.

SUMMARY OF FACTS

Because defendant's conviction was the result of a guilty plea, the facts underlying the crime of conviction are not fully developed in the record. However, at the time of defendant's guilty plea and sentence, the State provided the following factual basis:

THE STATE:

Your Honor, if the State of Louisiana were to proceed to trial against Antoine Green, the State would prove, beyond a reasonable doubt, that on or about July 10th of 2015, within the Parish of Jefferson, the Defendant violated Louisiana Revised Statute 14:42.1 and that he did commit Forcible Rape, now known as Second Degree Rape, upon a known juvenile, the date of birth of 8-12 of '99. If the State of Louisiana were to proceed to trial in Count 2, the State would prove beyond a reasonable doubt, that on July 10th of 2015, within the Parish of Jefferson, the Defendant Antoine Green also violated Louisiana Revised Statute 14:60, and that he did commit Aggravated Burglary of a Residence, located at 88 Clifford Court in Waggaman, belonging to a known juvenile, date of birth 8-12 of '99.

ANDERS BRIEF

Under 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 she has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, pursuant to Anders v. California , supra , 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) (internal citation omitted).

In State v. 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 supreme court explained that an Anders brief must demonstrate by full discussion and analysis that appellate counsel "has cast an advocate's eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration." 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 appellant counsel. Id.

ANALYSIS

Defendant's appellate counsel asserts that after a detailed review of the record, she could find no non-frivolous issues to raise on appeal. Appellate counsel provides that the trial court reviewed defendant's plea, went through a proper colloquy with him, and informed him of his sentencing exposure in the plea colloquy. Counsel indicates that the trial court sentenced defendant exactly as he had bargained for in his plea agreement. Appellate counsel further notes that she considered whether to raise the issue of defendant's competency to proceed to trial, but defendant made no objection to the trial court's ruling on competency to preserve this argument for appeal. Appellate counsel has filed a motion to withdraw as attorney of record and has mailed defendant a copy of her brief.

The State agrees with appellate counsel that there are no non-frivolous issues to be raised on appeal and urges that this Court should grant appellate counsel's motion to withdraw.

An independent review of the record supports appellate counsel's assertion that there are no non-frivolous issues to be raised on appeal. First, the bill of information properly charged defendant and plainly and concisely stated the essential facts constituting the offense charged. It also sufficiently identified defendant and the crime charged. See La. C.Cr.P. arts. 463 - 466.

Second, as reflected by the minute entry and commitment, defendant appeared at each stage of the proceedings against him, including his arraignment, guilty plea, and sentencing. As such, we find that there are no appealable issues surrounding defendant's presence.

Third, defendant pled 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 review of such defects either by appeal or post-conviction relief is precluded. State v. Turner , 09-1079, p. 8 (La. App. 5 Cir. 7/27/10), 47 So.3d 455, 459. Here, defendant entered an unqualified guilty plea, and therefore, all non-jurisdictional defects are waived. Our review of the record reveals no constitutional infirmity or irregularities in defendant's guilty plea. With regard to defendant's sentence, it was imposed in accordance with the plea agreement. This Court has consistently recognized that La. C.Cr.P. art. 881.2(A)(2) precludes a defendant from seeking review of a 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, p. 14 (La. App. 5 Cir. 4/11/07), 958 So.2d 36, 46, writ denied , 09-2046 (La. 8/18/10), 42 So.3d 394. In addition, defendant's sentence falls within the sentencing range set forth in the statute. Also, defendant was given a copy of the sex offender notification statutes and acknowledged receipt thereof.

Finally, no rulings were preserved for appeal under the holding in State v. Crosby , 338 So.2d 584 (La. 1976).

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

ERRORS PATENT

Pursuant to La. C.Cr.P. art. 920, this Court has reviewed the record for errors patent and found no errors that require correction. State v. Oliveaux , 312 So.2d 337 (La. 1975) ; State v. Weiland , 556 So.2d 175 (La. App. 5 Cir. 1990).

DECREE

For the foregoing reasons, we affirm defendant's convictions and sentences for forcible rape and aggravated burglary. We further grant appellate counsel's motion to withdraw as counsel of record for defendant.

CONVICTIONS AND SENTENCES AFFIRMED; MOTION TO WITHDRAW GRANTED

      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, pp. 1-2 (La. 4/28/95), 653 So.2d 1176, 1177 (per curiam).

      The United States Supreme Court reiterated Anders in Smith v. Robbins , 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).


author: WINDHORST, J.

text:
    STATE of Louisiana v. Ronald WALLACE
    NO. 17-KA-622
    Court of Appeal of Louisiana, Fifth Circuit.
    July 31, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Metairie, Terry M. Boudreaux, Gretna, Thomas J. Butler, Douglas W. Freese, Gretna
    COUNSEL FOR DEFENDANT/APPELLANT, RONALD WALLACE, Bertha M. Hillman
    Panel composed of Judges Marc E. Johnson, Robert A. Chaisson, and Stephen J. Windhorst
   WINDHORST, J.

Defendant, Ronald Wallace, appeals his conviction and sentence for purse snatching in violation of La. R.S. 14:65.1. For the following reasons, we affirm defendant's conviction and sentence.

Facts and Procedural History

On October 26, 2016, the Jefferson Parish District Attorney filed a bill of information charging defendant, Ronald Wallace, with second degree robbery in violation of La. R.S. 14:64.4. On April 10, 2017, the District Attorney amended the bill of information and charged defendant with purse snatching in violation of La. R.S. 14:65.1. Defendant pled not guilty. The matter proceeded to a bench trial on May 22, 2017, and the trial court found defendant guilty as charged. On June 26, 2017, the trial court sentenced defendant to twenty years imprisonment.

On June 29, 2017, the State filed a multiple offender bill of information, alleging defendant to be a second felony offender. Defendant stipulated to the multiple offender bill of information on August 24, 2017. The trial court vacated defendant's previous sentence and resentenced defendant as a second felony offender, to twenty years imprisonment, without the benefit of probation or suspension of sentence. La. R.S. 15:529.1. On August 27, 2017, defendant filed a motion for appeal, which the trial court granted.

Defendant's purse snatching conviction was based on the following facts. Linda Crane testified that on the morning of September 23, 2016, as she was leaving Bakers Dozen on Jefferson Highway and opening her car door, a man grabbed her hands, jerked her and took her wallet and her phone. She testified that she "held on for a little bit" and screamed "No," but the man "pulled it [the purse] so hard" and "yanked everything out of my hands." Ms. Crane fell to the ground during this encounter and sustained a broken hip for which she had to have surgery. As part of the investigation, Ms. Crane was later shown a photographic lineup, and she identified defendant as the perpetrator. She stated that she clearly observed her assailant and "positively" identified him because she would "never forget those eyes."

Two Bakers Dozen customers that morning also identified defendant as the person who attacked Ms. Crane. Troy Nunez stated that as he was exiting the bakery, he saw Ms. Crane on the ground, was informed by another person that she had been mugged, and saw the assailant fleeing the parking lot. Mr. Nunez identified defendant in a photographic lineup and at trial as the suspect he saw fleeing the scene. Joshua Mercadal was in his vehicle when he witnessed Ms. Crane getting attacked, and he followed the suspect down the street. Mr. Mercadal identified defendant in a photographic lineup and at trial as the man he saw attack Ms. Crane.

Sergeant Frank Renaudin in the Robbery Section of Jefferson Parish Sheriff's Office's Criminal Investigation Bureau investigated Ms. Crane's robbery and recovered physical evidence, including Ms. Crane's stolen wallet. As part of the investigation, the Sheriff's Office swabbed the wallet for a DNA analysis. Lucy Camarena, a DNA analyst with the Jefferson Parish Sheriff's Office, conducted the DNA analysis in this case. She testified that she obtained reference samples from defendant and Ms. Crane, as well as the forensic sample taken from the wallet. Based on her analysis, Ms. Camarena concluded the DNA profile that came from the wallet swab was consistent with being a mixture of at least two individuals, a major profile and a minor profile. She explained that the major contributor's DNA profile was consistent with defendant's DNA profile. Based on the evidence presented, the trial court found defendant guilty as charged.

Assignment of Error

In his only assignment of error, defendant asserts that his wavier of a jury trial was not knowing and intelligent because the court did not explain to him what the waiver entailed and he did not sign the waiver as required by La. C.Cr.P. art. 780. Defendant asserts that the record does not show he knew that a jury trial would involve a jury of people chosen from the community or that he could participate in jury selection. He contends he may not have waived his right to a jury trial if he had known that the trial judge makes rulings of law, but that the jury decides guilt or innocence, and the jury could not consider his prior convictions. Defendant asserts that because the jury waiver was not knowingly and intelligently made and did not comply with La. C.Cr.P. art. 780, his conviction and sentence should be reversed and the matter remanded for a new trial.

Law and Analysis

La. C.Cr.P. art. 780(A) provides that: "[a] defendant charged with an offense other than one punishable by death may knowingly and intelligently waive a trial by jury and elect to be tried by the judge." La. C.Cr.P. art. 780(B) provides that "[t]he waiver shall be by written motion filed in the district court not later than forty-five days prior to the date the case is set for trial. The motion shall be signed by the defendant and shall also be signed by defendant's counsel unless the defendant has waived his right to counsel."

Under well-established Louisiana law, a defendant's waiver of his right to a jury trial must be "knowingly and intelligently" waived. La. C. Cr. P. art. 780(A) ; State v. Howard, 10-869 (La. App. 5 Cir. 5/24/11), 66 So.3d 1160, 1165, writ denied, 11-1468 (La. 4/9/12), 85 So.3d 135. "Waiver of this right is never presumed." Id., citing State v. McCarroll, 337 So.2d 475, 480 (La. 1976) ; State v. Zeringue, 2003-697 (La. App. 5 Cir. 11/25/03), 862 So.2d 186, 193, writ denied, 2003-3523 (La. 4/23/04), 870 So.2d 298. Although it is preferred for the district court to advise a defendant of the right to a jury trial in open court before obtaining a waiver and for the defendant to waive the right to a jury trial personally, these practices are not statutorily required. Id."Counsel may waive the right on the defendant's behalf, provided the defendant's decision to do so was made knowingly and intelligently." Id.

We find that defendant was advised he had the right to a jury trial, and that he knowingly and intelligently waived that right. Defendant stated in open court on the record that he was informed by counsel of his right to a jury trial and that he was aware of what the right to a jury trial entails. He also indicated on the record that he understood the waiver of his right to a jury trial was his decision alone and told the court that he had a meaningful conversation with his counsel about waiving a jury trial. Defendant also indicated that he understood the waiver of a jury trial was irrevocable. Later on the same day, after the State amended defendant's bill of information and defendant was re-arraigned, the trial court asked defendant again if he had spoken with his counsel about the amended charge and the waiver of his right to a jury trial, as well as whether he still wanted to proceed with a judge trial. Defendant answered these questions affirmatively. The trial court then found that defendant was electing to proceed with a judge trial.

In addition to the above, defense counsel filed on defendant's behalf a Notice of Waiver of Trial by Jury. Although defendant did not sign the waiver, defense counsel did sign it. We find that the requirement of a written waiver of a jury trial must be subject to a harmless error analysis on appeal of a conviction. State v. Brundy, 2016-0263 (La. App. 4 Cir. 08/24/16), 198 So.3d 1247. As recognized in Brundy, if this type of error was not subject to a harmless error analysis, the defendant and/or the defendant's counsel could manipulate the system by not signing the written motion for a bench trial, orally move for same, then sit back, and await the trial judge's decision on defendant's guilt. If the decision after trial is unfavorable to the defendant, the defendant could then argue that the conviction is invalid because he never waived his right to trial by jury in writing. The defendant could further argue post-conviction that his counsel was ineffective because counsel never filed the formal written motion. The result would allow defendant to undermine both the prosecution and the court. Indeed, Louisiana courts have found that it would be an "absurd consequence" to read La. C.Cr.P. art. 780(B) in such a way as to require the court to grant a new trial based on a defendant's failure "to reduce to writing what is already known to the court...." Id.

The record reflects that defendant understood the choice confronting him, and that he knowingly, intelligently, and freely made the choice to have his guilt or innocence determined by a judge. While defendant did not sign the waiver form, he indicated in open court that he understood his rights and what he was waiving. The lack of defendant's signature on the Notice of Waiver of Trial by Jury is harmless error. We find no merit to the claim that defendant did not knowingly, intelligently, and freely waive his right to trial by jury. Thus, this assignment of error lacks merit. Defendant's conviction and sentence are affirmed.

Conclusion

For the reasons discussed above, we affirm defendant's conviction and sentence.

CONVICTION AND SENTENCE AFFIRMED