text:
    STATE of Louisiana v. Darryl ARCENEAUX
    NO. 18-KA-642
    Court of Appeal of Louisiana, Fifth Circuit.
    April 24, 2019
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Metairie, Terry M. Boudreaux, Darren A. Allemand, Gretna
    COUNSEL FOR DEFENDANT/APPELLANT, DARRYL ARCENEAUX, Kevin V. Boshea, Baton Rouge
    Panel composed of Judges Fredericka Homberg Wicker, Marc E. Johnson, and Robert A. Chaisson
   JOHNSON, J.

In this second appeal, Defendant challenges his 55-year sentence as a third felony offender, which was imposed after a resentencing hearing conducted in accordance with State ex rel. Esteen v. State of Louisiana , 16-949 (La. 1/30/18); 239 So.3d 233, as excessive. After review, we find that his enhanced 55-year sentence is unconstitutionally excessive and, therefore, we vacate his enhanced sentence and remand the matter for resentencing.

PROCEDURAL HISTORY

Defendant was convicted by a jury in November 1998 of distribution of cocaine in violation of La. R.S. 40:967(A) and was sentenced to 20 years imprisonment at hard labor. In October 1999, he was adjudicated a third felony offender based on two predicate convictions - a 1994 conviction for theft over $ 500 ( La. R.S. 14:67 ) and a 1992 conviction for simple robbery ( La. R.S. 14:65 ). His original sentence was vacated, and he was resentenced under the multiple offender statute to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. His conviction was affirmed on appeal. State v. Arceneaux , 99-1226 (La. App. 5 Cir. 2/29/00), 761 So.2d 833 (unpublished opinion).

On May 25, 2018, Defendant filed a pro se motion to correct illegal sentence, arguing that his enhanced life sentence was illegal in light of the ameliorative provisions provided in 2001 La. Acts 403. He argued that the ameliorative provisions retroactively applied to him through La. R.S. 15:308 as explained by the Louisiana Supreme Court in Esteen , supra . After considering Defendant's motion, the district court determined that Defendant was entitled to a resentencing hearing, which was held on July 26, 2018. At the resentencing hearing, the district court resentenced Defendant to 55 years imprisonment at hard labor without benefit of probation or suspension of sentence. Defendant filed a motion to reconsider the sentence on the basis it was excessive, which was denied. This appeal follows.

ISSUE

On appeal, Defendant challenges the district court's denial of his motion to reconsider sentence, arguing that his new 55-year enhanced sentence is overly harsh, illegally excessive, and per se unconstitutional. He asserts that under the newer changes to the sentencing laws made by 2017 La. Acts 257 and 282, the sentencing range for a third felony offender with his underlying offense and predicate offenses is 15 to 60 years. He contends that his near maximum sentence is excessive, considering that his underlying offense was based on a single sale of cocaine in the amount of $ 20.00.

FACTS

The facts of Defendant's underlying conviction were set forth in this Court's unpublished opinion in the first appeal. In summary, on October 4, 1996, an undercover officer went to the area of Highway 90 and Glendella Street in Avondale where he stopped his truck and made contact with a black male, asking the man if he had any crack cocaine. The man told him that he did, went and obtained something from the back of a store located in the area, and returned to the truck. The man handed the officer a substance later identified as crack cocaine in exchange for a $ 20.00 bill. The transaction was videotaped and Defendant was subsequently identified as the man on the videotape. As a result, in November 1998, Defendant was convicted of distribution of cocaine in violation of La. R.S. 40:967(A), and sentenced to 20 years at hard labor in January 1999. His sentence was vacated after his adjudication as a third felony offender, and he was resentenced to life imprisonment as a multiple offender.

DISCUSSION

When Defendant was initially sentenced in October 1999 as a third felony offender, he was properly sentenced to life imprisonment under La. R.S. 15:529.1(A)(1)(b)(ii), as it existed in October 1996 when he committed the underlying crime of distribution of cocaine. However, after the 2001 amendments to La. R.S. 15:529.1, Defendant's underlying and predicate crimes no longer subjected him to a life sentence.

In 2001, the Louisiana Legislature, through Act 403, amended the multiple offender laws to provide for more lenient penalty provisions; however, the amendments were given prospective application.

In 2006, the Louisiana Legislature enacted La. R.S. 15:308, which provided that the more lenient penalty provisions enacted by Act 403 applied retroactively to those defendants who committed, were convicted of, or were sentenced for certain enumerated offenses prior to June 15, 2001, if such application ameliorated the defendant's circumstances. One of the enumerated offenses was La. R.S. 15:529.1(A)(1)(b)(ii) and (c)(ii) - which addressed enhanced life sentences for third and fourth felony offenders.

Under the 2001 amendments to La. R.S. 15:529.1, Defendant's underlying conviction for distribution of cocaine and his predicate convictions for theft over $ 500 and simple robbery subject him to the sentencing provisions of La. R.S. 15:529.1(A)(1)(b)(i), which - as it existed in both October 1996 and in 2001 - provides for a sentencing range of 20-60 years. ,

Recently, in Esteen , supra , the Louisiana Supreme Court explained that a defendant's remedy for obtaining the ameliorative provisions enacted by Act 403 and made retroactive for certain offenses in La. R.S. 15:308 was through a motion to correct illegal sentence filed in the district court. In the present case, Defendant filed a motion to correct his illegal sentence and was resentenced to 55 years as a third felony offender, which he now contends is unconstitutionally excessive.

The Eighth Amendment to the United States Constitution prohibits cruel and unusual punishment. Article I, § 20 of the Louisiana Constitution also prohibits cruel and unusual punishment, but further explicitly prohibits excessive punishment. A sentence is excessive "if it makes no measurable contribution to acceptable goals of punishment and is nothing more than the purposeless imposition of pain and suffering and is grossly out of proportion to the severity of the crime." State v. Davis , 449 So.2d 452, 453 (La. 1984). A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Lawson , 04-334 (La. App. 5 Cir. 9/28/04), 885 So.2d 618, 622.

The "deliberate inclusion by the redactors of the [Louisiana] Constitution of a prohibition against 'excessive' as well as cruel and unusual punishment broadened the duty of [courts] to review the sentencing aspects of criminal statutes."

State v. Baxley , 94-2982 (La. 5/22/95), 656 So.2d 973, 977. This constitutional protection against excessive sentence allows courts to review a sentence within the statutorily prescribed range to determine whether the sentence of the particular offender is excessive. Id.

A trial judge is given wide discretion in the imposition of sentences within statutory sentencing ranges. State v. Dorsey , 07-67 (La. App. 5 Cir. 5/29/07), 960 So.2d 1127, 1130. However, a sentencing judge does not possess unbridled discretion to impose a sentence within statutory limits. State v. Sepulvado , 367 So.2d 762, 769-70 (La. 1979). "In providing a wide range of criminal sanctions for violations of a statute, the legislature obviously intends that the judge shall exercise his sentencing discretion to impose sentences gradated according to the individualized circumstances of the offense and the offender." Id. at 766. The "interactivity between the range of permissible statutory criminal sanctions and the individualized facts of each case creates a sliding, fact-variant spectrum for a trial judge's discretion under each criminal statute for each particular criminal defendant." State v. Hamdalla , 12-1413 (La. App. 4 Cir. 10/2/13), 126 So.3d 619, 627, writ denied , 13-2587 (La. 4/25/14), 138 So.3d 642.

A reviewing court should not set aside a sentence imposed by a trial court absent an abuse of discretion. Dorsey , supra . In reviewing a trial court's sentencing discretion, three factors are considered: (1) the nature of the crime; (2) the nature and background of the offender; and (3) the sentence imposed for similar crimes by the same court and other courts. State v. Pearson , 07-332 (La. App. 5 Cir. 12/27/07), 975 So.2d 646, 656. The relevant question on appellate review is not whether another sentence might have been more appropriate, but rather whether the trial court abused its sentencing discretion. Id. Part of the abuse of discretion inquiry requires a court to consider the crime and the punishment given in light of the crime's harm to society and gauge whether the penalty is so disproportionate as to shock the sense of justice. State v. Aguliar-Benitez , 17-361 (La. App. 5 Cir. 12/10/18), 260 So.3d 1247, 1262. The appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. Pearson , supra .

After applying these three factors, we find that the record does not support the sentence imposed, and that the near maximum 55-year sentence is unconstitutionally excessive in this case. Considering the first factor, the nature of the crime, we note that Defendant sold $ 20 worth of crack cocaine to an undercover officer who pulled his vehicle up to Defendant and inquired about purchasing the drug. The minimal drug sale suggests Defendant was a low level street drug pusher as opposed to a major drug dealer.

Regarding the second factor, the nature and background of the offender, Defendant has a prior conviction for theft over $ 500 and a prior conviction for simple robbery. We first recognize that simple robbery is serious and is a crime of violence, and we acknowledge that the habitual offender law is intended as punishment not only for the current conviction but also for all prior convictions as well. See State v. Johnson , 97-1906 (La. 3/4/98), 709 So.2d 672, 677. Second, we note that legislative changes to the theft statute since Defendant's 1994 conviction has increased the threshold for felony theft to $ 1,000. The record shows that Defendant stole a telephone booth valued at $ 700, which would now be a misdemeanor. See La. R.S. 14:67(B)(4). We are cognizant of the well-established law that the status of the offense is determined at the time of conviction.

State v. Sawyer , 350 So.2d 611, 615 (La. 1977). However, as noted by the Louisiana Supreme Court in State v. Clark , 391 So.2d 1174, 1176 (La. 1980) :

..."an assessment of contemporary values concerning the infliction of a challenged sanction is relevant to the application" of the Eighth Amendment's ban against cruel and unusual punishment. It is no less relevant to the inquiry of whether a particular penalty is excessive. And it has been acknowledged that legislative enactments provide an important means of ascertaining contemporary values. Inherent in mitigatory changes in penalty provisions of an offense is a legislative determination that the present law is inappropriate ... and that the lesser penalty is sufficient to meet the legitimate ends of the criminal law. [Internal citations omitted.]

Thus, consideration may be given to legislative changes in the penalty for the applicable offenses.

As to the third factor, sentences imposed for similar crimes in this and other courts, the jurisprudence fails to reveal the imposition of a near maximum sentence under similar circumstances. Rather, the jurisprudence shows that sentences imposed for third felony offenders convicted of distribution of cocaine facing a sentencing range of 20-60, range from 20 to 45 years. See State v. Thurman , 46,391 (La. App. 2 Cir. 6/22/11), 71 So.3d 468, 472-73, writ denied , 11-1868 (La. 2/3/12), 79 So.3d 1025 (where the defendant received a 45-year enhanced sentence as a third felony offender for each of his six convictions of distribution of cocaine with prior convictions for possession of cocaine (three separate convictions) and attempted possession of a firearm by a convicted felon); State v. Tomlinson , 06-892 (La. App. 5 Cir. 3/27/07), 957 So.2d 196, 198-99, writ denied , 07-1068 (La. 11/21/07), 967 So.2d 1154 (where the defendant received a 25-year enhanced sentence as a third felony offender for distribution of cocaine with prior convictions for breaking and entering in North Carolina and publishing a forged check with the intent to defraud in Florida); State v. Lott , 02-702 (La. App. 5 Cir. 12/30/02), 836 So.2d 584, 587-89, writ denied , 03-499 (La. 10/17/03), 855 So.2d 755 (where the defendant received a 25-year enhanced sentence as a third felony offender for distribution of cocaine with prior convictions for possession of cocaine and possession of stolen property); State v. Turner , 18-326 (La. App. 4 Cir. 11/28/18), 259 So.3d 1089, 1095-96 (where the defendant received a 25-year sentence as a third felony offender for distribution of cocaine with six prior convictions including second degree battery (a crime of violence) and numerous drug offenses; and State v. Bentley , 02-1564 (La. App. 4 Cir. 3/12/03), 844 So.2d 149, 156, writ denied , 03-1156 (La. 11/14/03), 858 So.2d 416 (where the defendant received a 20-year enhanced sentence as a third felony offender for distribution of $ 20 worth of cocaine with two prior convictions for possession of cocaine).

Considering these three factors, we find that the record does not support the near maximum sentence imposed. We emphasize that a criminal sentence must have some relationship to the crime for which the defendant has been convicted. Solem v. Helm , 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). While we are cognizant of the destructive impact of controlled dangerous substances on society, a sentence must be particularized to the offender and the offense. See State v. Riley , 587 So.2d 130 (La. App. 2d Cir. 1991) (where the court found the sentencing judge's concern over the severe social problems involving narcotics improperly outweighed his consideration of the individual offense and offender).

After review, we find that Defendant's near maximum 55-year enhanced sentence is disproportionate to the harm done and shocks one's sense of justice. Accordingly, we find Defendant's 55-year enhanced sentence as a third felony offender to be unconstitutionally excessive in this case and that the district court abused its discretion in imposing said sentence. Pursuant to La. C.Cr.P. art. 881.4(A), this Court may provide direction regarding a constitutionally reasonable sentence in a given case. Considering the factual circumstances of this case, we suggest an enhanced sentence of 30 years would adequately punish Defendant and fulfill the purpose of the habitual offender law.

We have reviewed the record for errors patent in accordance with La. C.Cr.P. art. 920 and have found no errors that require corrective action.

DECREE

For the foregoing reasons, we vacate Defendant's 55-year enhanced sentence as a third felony offender and remand the matter for resentencing.

ENHANCED SENTENCE VACATED; REMANDED FOR RESENTENCING

      Defendant also challenges his adjudication as a third felony offender. However, we find that this issue is not properly before us in this appeal. Defendant's conviction was affirmed by this Court in Defendant's first appeal, of which his multiple offender adjudication was a part. Arceneaux , supra . As such, this second appeal is limited solely to his resentencing. (See State v. Wise , 14-378 (La. App. 5 Cir. 10/15/14), 182 So.3d 63, 75, writ denied , 14-2406 (La. 9/18/15), 178 So.3d 143, where the defendant attempted to challenge his multiple offender adjudication in a second appeal after being resentenced. This Court noted that the defendant's conviction had been affirmed on appeal and, therefore, he could only appeal his resentencing, explaining that "issues not raised in defendant's original appeal, which could have been raised, are considered waived and are not within this Court's jurisdiction on appeal.")

      Defendant's third felony was distribution of cocaine, which had a sentencing range of five to 30 years in October 1996. La. R.S. 40:967(B). The predicate felonies were theft over $ 500, which at the time of the offense had a sentencing range of not more than ten years (La. R.S. 14:67(B)(1) ), and simple robbery, which was a crime of violence and had a sentencing range of not more than seven years (La. R.S. 14:65(B) ). Although the third felony, distribution of cocaine, and the predicate felony of simple robbery, a crime of violence, fell under La. R.S. 15:529.1(A)(1)(b)(ii) as amended in 2001, the predicate felony of theft over $ 500 did not.

      Under La. R.S. 15:529.1(A)(1)(b)(i), a third felony offender shall be sentenced to "a determinate term not less than two-thirds of the longest possible sentence for the conviction and not more than twice the longest possible sentence prescribed for a first conviction," provided the third felony is punishable by less than life imprisonment. As stated in footnote two, the sentencing range for distribution of cocaine in 1996 was five to 30 years. La. R.S. 40:967(B).

      We find no merit in Defendant's argument that the more recent 2017 amendments to La. R.S. 15:529.1 apply to his case. Under the 2017 amendments, effective November 1, 2017, Defendant would face a sentencing range of 15-60 years as a third felony offender, as opposed to 20-60 years under the 2001 version of the statute. See La. R.S. 15:529.1(A)(3)(a). The 2017 amendments made it clear that they were to have prospective application only - to those offenders whose convictions became final on or after November 1, 2017. In 2018, the legislature clarified that "notwithstanding any provision of law to the contrary, the court shall apply the provisions of this Section that were in effect on the date that the defendant's instant offense was committed." La. R.S. 15:529.1(K). Here, Defendant's conviction became final in 2000 after it was affirmed by this Court on appeal and no further review was sought. Although the underlying offense was committed in 1996, it is clear that under La. R.S. 15:308, the 2001 version of La. R.S. 15:529.1 applies to Defendant.


source: Caselaw Access Project

author: CHEHARDY, C.J.

license: Public Domain

text:
    STATE of Louisiana v. Antonio CUZA
    NO. 18-KA-716
    Court of Appeal of Louisiana, Fifth Circuit.
    April 24, 2019
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Metairie, Terry M. Boudreaux, Gretna
    COUNSEL FOR DEFENDANT/APPELLANT, ANTONIO CUZA, Katherine M. Franks
    DEFENDANT/APPELLANT, ANTONIO CUZA, In Proper Person
    Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and Hans J. Liljeberg
   CHEHARDY, C.J.

On appeal, defendant's appointed appellate counsel has filed an Anders brief, asserting that there is no basis for a non-frivolous appeal. Further, defendant filed a pro se supplemental brief. For the following reasons, we affirm defendant's multiple offender adjudication and sentence and grant counsel's motion to withdraw.

Procedural History

This is defendant's second appeal. On July 8, 2015, the Jefferson Parish District Attorney filed a bill of information charging defendant with aggravated battery, in violation of La. R.S. 14:34. On October 18, 2017, after a two-day trial, the six-person jury found defendant guilty as charged. On November 9, 2017, the trial judge sentenced defendant to ten years imprisonment at hard labor with credit for time served. This Court affirmed his conviction and sentence. State v. Cuza , 18-187 (La. App. 5 Cir. 11/28/18), 260 So.3d 754, 756.

On November 8, 2017, the State filed a multiple offender bill of information alleging defendant was a fourth-felony offender pursuant to La. R.S. 15:529.1. On May 3, 2018, pursuant to a negotiated plea agreement, the State amended the multiple bill to charge defendant as a second-felony offender and defendant stipulated to the amended multiple bill. After vacating the sentence for defendant's underlying aggravated battery conviction, the trial court, in accordance with the plea agreement, imposed the enhanced sentence, pursuant to La. R.S. 15:529.1, of twenty years imprisonment at hard labor without benefit of probation or suspension of sentence, to run concurrently with any other sentence defendant is serving.

On August 22, 2018, defendant filed an application for post conviction relief, which the trial court construed as a request for an out-of-time appeal and granted. In this second appeal, defendant's appointed appellate counsel has filed an Anders brief regarding his multiple offender stipulation and sentence. Defendant has also filed a pro se brief.

Facts

The underlying facts, which are not relevant to defendant's second appeal, can be found in this Court's opinion of defendant's first appeal. Cuza , supra , 260 So.3d at 756-57.

Anders

Under the procedure adopted by this Court in State v. Bradford , 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 , supra , and State v. Jyles , appointed counsel requests permission to withdraw as counsel of record.

In Anders , the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if she finds her 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."

In Jyles , the Louisiana Supreme Court stated that an Anders brief need not tediously catalog every meritless pre-trial 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."

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. 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 legal points identified by the court, or grant the motion and appoint substitute appellate counsel.

Discussion

Defendant's appellate counsel asserts that, after a detailed review of the record, she could find no non-frivolous issues to raise on appeal. Counsel notes that defendant was not advised of his right to a hearing or to remain silent in compliance with La. R.S. 15:529.1(D)(1)(a) when he was arraigned on the multiple offender bill on November 9, 2017. However, she notes that a failure to arraign defendant on a multiple bill is not error when defendant proceeds to a hearing without entering an objection, and the record fails to reflect that defendant objected to any deficiency. She further states that after the multiple bill was amended and defendant's stipulation tendered, defendant was advised of his right to a hearing on the allegations and of his right to remain silent, and defendant signed the waiver of rights form advising him of the same. Counsel provides that defendant was advised of the sentencing range he faced as a multiple offender and received the enhanced sentence in accordance with the plea agreement, which precludes him from seeking review of his enhanced sentence on appeal.

Appellate counsel has filed a motion to withdraw as attorney of record which states she can find no non-frivolous issues to raise on appeal and that she has advised defendant of the filing of her Anders brief and of his right to file a supplemental brief. Additionally, this Court sent defendant a letter by certified mail informing him that an Anders brief had been filed and that he had until February 7, 2019 to file a pro se supplemental brief. Defendant filed a pro se supplemental brief on February 20, 2019.

The State responds that counsel is correct in her assertion that this case presents no non-frivolous issues for appeal, and her brief shows a conscientious and thorough review of the record in accordance with procedures set forth in Anders and Jyles , supra . The State avers that counsel's motion to withdraw as counsel of record should be granted and the sentence upheld.

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

If a defendant pleads guilty, he normally 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. Additionally, an unconditional plea, willingly and knowingly made, waives any and all non-jurisdictional defects and bars a defendant from later asserting on appeal that the State failed to produce sufficient proof at the multiple offender hearing. State v. Schaefer , 97-465 (La. App. 5 Cir. 11/25/97), 704 So.2d 300, 304. Here, defendant stipulated to the multiple bill; consequently, all non-jurisdictional defects were waived.

Further, our review of the record reveals no constitutional infirmity in defendant's stipulation to the multiple bill. On November 9, 2017, defendant was set for arraignment on the original multiple bill.

That day, the State indicated that it could prove that defendant had three prior felony convictions, and the instant conviction, if enhanced, would subject him to an automatic life sentence. At that time, defendant waived reading of the bill, tendered a "plea of not guilty" to the multiple bill, and requested time to file a response to the multiple bill, which was granted.

La. C.Cr.P. art. 555 states:

Any irregularity in the arraignment, including a failure to read the indictment, is waived if the defendant pleads to the indictment without objecting thereto. A failure to arraign the defendant or the fact that he did not plead is waived if the defendant enters upon the trial without objecting thereto, and it shall be considered as if he had pleaded not guilty.

Here, defendant waived any irregularity when he waived formal reading of the original multiple bill. Although defendant was not arraigned on the amended multiple offender bill of information, he immediately stipulated to it as part of a negotiated plea agreement. This Court has consistently held that when a defendant proceeds to a multiple offender hearing without objecting to the lack of arraignment, any error in the failure to arraign is waived. State v. Suggs , 10-599 (La. App. 5 Cir. 5/31/11), 70 So.3d 60, 66, writ denied , 2011-1366 (La. 12/16/11), 76 So.3d 1199. Defendant did not object to any irregularity in failing to re-arraign him after the State amended the multiple bill on May 3, 2018. Therefore, any irregularity was waived when defendant stipulated to the multiple bill. Further, defendant filed an opposition to the allegations contained in the multiple bill so he was aware of the allegations contained in the multiple bill.

At the multiple offender hearing, the defendant may admit or deny the allegations of the multiple bill "after being duly cautioned as to his rights ..." La. R.S. 15:529.1(D)(3) ; State v. Johnson , 432 So.2d 815, 817 (La. 1983) (a trial court should, prior to a defendant's admission, advise defendant "of his right to a formal hearing, to have the [prosecution] prove its case under the multiple offender statute, [and] of his right to remain silent").

If the record reflects that the defendant was advised of his multiple offender rights by the trial judge and/or his attorney, then the defendant intelligently waived his rights. State v. Hart , 10-905 (La. App. 5 Cir. 5/10/11), 66 So.3d 44, 48, writ denied , 2011-1178 (La. 11/18/11), 75 So.3d 448. At the multiple bill hearing on May 3, 2018, the trial judge informed defendant of his rights and defendant executed a waiver of rights form, which advised him of his right to a hearing and to remain silent, prior to stipulating to the multiple bill. We find that the record reflects defendant was adequately advised of his multiple offender rights before his stipulation to the multiple bill, and he knowingly and intelligently waived those rights.

In addition, the trial court advised defendant that he faced a sentencing range of five to twenty years of imprisonment without benefit of probation or suspension of sentence. The waiver of rights form also contains the sentencing range defendant faced. Defendant was advised during the colloquy and via the waiver of rights form that he would receive a sentence of twenty years imprisonment without benefit of probation or suspension of sentence, and defendant thereafter received this sentence. The waiver of rights form additionally contains that no one had forced, coerced, or threatened defendant to enter "this guilty plea," and he understood the consequences of "pleading GUILTY." Defendant's initials appear beside these provisions. Defendant also denied during the colloquy that anyone was forcing or threatening him to stipulate to being a multiple offender. The trial court then indicated it was satisfied that defendant understood his multiple offender rights and accepted his stipulation to being a second-felony offender.

Regarding defendant's sentence, defendant's enhanced sentence of twenty years imprisonment at hard labor without probation or suspension of sentence was imposed pursuant to the plea agreement. 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 that was set forth in the record at the time of the plea. This Court has also applied La. C.Cr.P. art. 881.2(A)(2) to cases in which a defendant admits to the allegations in a multiple bill of information as part of a sentencing agreement. State v. Heath , 17-502 (La. App. 5 Cir. 12/27/17), 236 So.3d 732, 735. Although defendant received the maximum sentence, his enhanced sentence nonetheless falls within the sentencing ranges set forth in La. R.S. 15:529.1 and La. R.S. 14:34. Thus, defendant's twenty-year sentence of imprisonment at hard labor without benefit of probation or suspension of sentence was imposed pursuant to the plea agreement and does not present any non-frivolous issues which would support an appeal.

Because appellate 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 grant appellate counsel's motion to withdraw as attorney of record.

In his pro se assignments of error, defendant argues that his habitual offender adjudication and sentence is invalid because the trial court accepted a guilty plea that was made before Mr. Cuza was duly cautioned as to his rights and the habitual offender adjudication is invalid because the trial court did not comply with the procedures required by La. R.S. 15:529.1. We note that defendant failed to brief his specification that the trial court failed to comply with La. R.S. 15:529.1. All specifications or assignments of error made to the courts of appeal must be briefed; the court may consider as abandoned any specification or assignment of error which has not been briefed. Uniform Rules - Courts of Appeal, Rule 2-12.4 ; State v. Camp , 16-473 (La. App. 5 Cir. 3/15/17), 215 So.3d 969, 973. With regard to defendant's first assignment of error, we find, as discussed supra , that there is no constitutional infirmity in defendant's stipulation and sentencing as a multiple offender, and, thus, defendant's assignment lacks merit.

Errors patent

Finally, we have reviewed the record of defendant's multiple offender adjudication and sentencing 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). See State v. McClure , 15-237 (La. App. 5 Cir. 9/23/15), 176 So.3d 730, 734.

The Uniform Commitment Order ("UCO") of defendant's multiple offender sentence contains a discrepancy with the transcript that requires correction. The UCO fails to reflect the restriction of benefits of probation or suspension of sentence for the entirety of defendant's enhanced sentence. This Court has previously remanded a case for correction of the UCO in its error patent review. See State v. Lyons , 13-564 (La. App. 5 Cir. 1/31/14), 134 So.3d 36, writ denied , 2014-0481 (La. 11/7/14), 152 So.3d 170. See also State v. Woods , 15-247 (La. App. 5 Cir. 9/23/15), 176 So.3d 672, 676 (where this Court remanded the UCO for correction as it failed to reflect the defendant's enhanced sentence was imposed without benefit of probation or suspension of sentence).

Therefore, we order the trial court to correct the UCO to reflect that defendant's enhanced sentence is to be served in its entirety without the benefit of probation or suspension of sentence. Further, we direct the Clerk of Court for the 24th Judicial District Court to transmit the original of the corrected UCO to the appropriate authorities and to the Department of Corrections' legal department. See State v. Smith , 18-131 (La. App. 5 Cir. 10/17/18), 258 So.3d 973, 982-83.

Conclusion

For the foregoing reasons, defendant's multiple offender adjudication and sentence are affirmed. Further, since appellate 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 our independent review of the record supports counsel's assertion, we grant appellate counsel's motion to withdraw as attorney of record.

AFFIRMED; REMANDED FOR CORRECTION OF THE COMMITMENT; MOTION TO WITHDRAW GRANTED.

      Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

      The State alleged that defendant had three prior felony convictions: a 2010 felony conviction for false imprisonment with a dangerous weapon in violation of La. R.S. 14:46.1 ; a 2005 felony conviction for burglary in violation of Fl. R.S. 810.02; and a 2005 conviction for attempted possession with intent to distribute cocaine in violation of Fl. R.S. "893.13(2)(A)(1)/777.04."

      The State maintained that defendant had the 2010 predicate conviction for false imprisonment with a dangerous weapon, a violation of La. R.S. 14:46.1.

      During the same proceeding, defendant pled guilty under North Carolina v. Alford , 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) and State v. Crosby , 338 So.2d 584, 588 (La. 1976), to two counts of false swearing for purpose of violating public health or safety, violations of La. R.S. 14:126.1 (counts two and three). He was sentenced to time served. Defendant has not appealed those convictions or sentences.

      95-929 (La. App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110. The Bradford Court adopted its procedure from that of the Fourth Circuit, set forth in State v. Benjamin , 573 So.2d 528, 530 (La. App. 4 Cir.1990), and sanctioned by the Louisiana Supreme Court in State v. Mouton , 95-0981 (La. 4/28/95), 653 So.2d 1176, 1177 (per curiam ).

      96-2669 (La. 12/12/97), 704 So.2d 241, 242 (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).

      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).

      704 So.2d at 241.

      Id.

      Bradford , supra at 1110.

      Id.

      See State v. Packnett , 03-1446 (La. App. 5 Cir. 4/27/04), 873 So.2d 789, 793-94, writ denied , 2004-2559 (La. 6/24/05), 904 So.2d 736, where this Court found the fact that the defendant filed a written response to a revised multiple offender bill indicated he was aware of the amended allegations. Here, the State also filed a response to defendant's opposition on April 19, 2018, before the multiple bill was amended.

      At the time of the offense, La. R.S. 15:529.1(A)(1) provided:
      If the second felony is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then the sentence to imprisonment shall be for a determinate term not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction.

      La R.S. 14:34(B) provides: "Whoever commits an aggravated battery shall be fined not more than five thousand dollars, imprisoned with or without hard labor for not more than ten years, or both."

      Although defendant sets forth two assignments in his pro se brief, he only briefs assignment of error number one.


author: MOLAISON, J.

text:
    VILLAGE SHOPPING CENTER PARTNERSHIP v. KIMBLE DEVELOPMENT, LLC and Michael Kimble
    NO. 18-CA-740
    Court of Appeal of Louisiana, Fifth Circuit.
    April 24, 2019
    COUNSEL FOR PLAINTIFF/APPELLEE, VILLAGE SHOPPING CENTER PARTNERSHIP, Leonard A. Davis, New Orleans, Charles M. King
    COUNSEL FOR DEFENDANT/APPELLANT, KIMBLE DEVELOPMENT, LLC, David C. Fleshman, Baton Rouge, David B. Phelps, Ross A. Dooley, Baton Rouge
    Panel composed of Judges Fredericka Homberg Wicker, Robert A. Chaisson, and John J. Molaison, Jr.
   MOLAISON, J.

In this action based upon an alleged breach of a service contract between a landowner and commercial developer, the developer appeals the granting of a summary judgment in favor of the landowner on the issue of reimbursement of certain construction costs. For the reasons that follow, we affirm.

PROCEDURAL HISTORY

Appellant, Kimble Development, LLC. ("Kimble"), entered into a Contract for Development with appellee, Village Shopping Center Partnership ("Village"), in 2013 for the purpose of building an O'Reilly Auto Parts store on Village's property in St. Charles Parish. The contract provided that Village would pay Kimble a development fee of $ 35,000, and that Kimble would be responsible for all construction costs of the building that exceeded $ 688,944, with the exception of "unforeseen" or "uncontrollable costs" such as asbestos or environmental mitigation and site clean-up. A contract addendum executed by the parties in June of 2015, adjusted the project cost to $ 711,576.71 when power lines at the site were required to be run underground and the store's windows had to be upgraded according to building code standards. A subsequent change order dated August 4, 2015, increased the amount again by $ 1,837.77, for a total of $ 713,413.71. When the final price of the project reached $ 751,900.00, Village called upon Kimble for a reimbursement of $ 40,324.28, which was the amount exceeded in the contract addendum that Village had paid to Kimble, the general contractor as well as the vendors and subcontractors that Kimble hired for the project. After unsuccessfully trying to resolve the matter, Village filed the instant lawsuit on December 21, 2016, which further sought penalties, interest, attorney's fees and costs.

On February 17, 2017, Kimble filed a peremptory exception of no right of action, which was denied on May 17, 2017. After Kimble filed an answer to Village's petition for damages, Village filed a motion for summary judgment, which was granted by the trial court on July 20, 2018. Kimble timely sought the instant devolutive appeal from that judgment.

FACTS

Kimble asserts that the exceeded estimates in this matter occurred as a result of the cost of materials that it was required to purchase from O'Reilly, referred to as O'Reilly National Account items, which included components such as the building's shell and HVAC system. In the deposition testimony of Kimble's owner, Michael Kimble, he stated that in his prior experience developing O'Reilly's Auto Parts stores, the invoice for the National Account items at the end of the project never exceeded the $ 100,000 estimated amount. Mr. Kimble testified that in the construction of the O'Reilly's store on Village's property, however, the cost exceeded the estimated amount because the square footage of the building increased from 6,800 square feet to 7,125 square feet. Kimble contends that it "neither foresaw nor controlled the cost of the National Account items as is required under Section 5 of the Contract to hold Kimble Development responsible."

Conversely, Village argues that the cost overruns were the result of Kimble incorrectly conveying the correct square footage of the store to O'Reilly. As explained by Village in its brief:

Although the contract lists the size at 6,800 square feet, by early 2013, Kimble was aware that the building was actually 7,125 square feet. In April 2013, O'Reilly Auto Parts emailed Peter Glaser of Village a copy of a "Draft New Construction Building Lease Agreement for 7,125 square foot building," and Kimble's project manager, Scott Russell, was copied on the email.

In confirming these facts during his deposition testimony, Mr. Kimble acknowledged that the failure to adjust the estimate to 7,125 square feet was an "oversight." Village also contends that the contract between the parties specifically stated that Kimble, as the project's contractor, was responsible for all construction costs, which the National Account items were a part of.

In its motion for summary judgment, Village asserted that certain facts were undisputed: 1) whether Kimble had warranted that the final cost of the project would not exceed $ 713,413.71; 2) whether the total cost of the project paid by Village amounted to $ 761,700.99, and; 3) whether the costs of the project were foreseeable and controllable. In support of its motion for summary judgment, Village attached several exhibits, which were referenced at the hearing and in the trial court's reasons for judgment. Conversely, in opposing Village's motion for summary judgment, Kimble argued that the cost overruns for the project were both unforeseen and uncontrollable.

Assignment of error

On appeal, Kimble asserts that the trial court erred in granting Village's motion for summary judgment. Specifically, Kimble first argues that the trial court incorrectly applied the rules of contractual interpretation to limit the construction costs to environmental related site costs. Kimble also argues that the trial court erred in finding that the questions of fact it raised were inapplicable to the instant case in light of the wording of the contract.

LAW AND ANALYSIS

According to La. C.C.P. art. 966(3), "[a]fter an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law." A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact, and is favored and designed to secure the just, speedy, and inexpensive determination of every action. Populis v. State Dep't of Transportation & Dev. , 16-655 (La. App. 5 Cir. 5/31/17), 222 So.3d 975, 979, writ denied , 17-1106 (La. 10/16/17), 228 So.3d 753, quoting Pouncy v. Winn-Dixie La., Inc. , 15-189 (La. App. 5 Cir. 10/28/15), 178 So.3d 603, 605. A material fact is one that potentially insures or prevents recovery, affects a litigant's ultimate success, or determines the outcome of a lawsuit. Id. at 980. An issue is genuine if it is such that reasonable persons could disagree. If only one conclusion could be reached by reasonable persons, summary judgment is appropriate, as there is no need for a trial on that issue. Id.

The only documents that may be filed in support of or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions. La. C.C.P. art. 966(4). The initial burden is on the mover to show that no genuine issue of material fact exists. Pouncy, supra . If the moving party will not bear the burden of proof at trial, the moving party must only point out that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Id. The adverse party must then produce factual support to establish that he will be able to satisfy his evidentiary burden of proof at trial. Id. If the adverse party fails to do so, there is no genuine issue of material fact, and summary judgment should be granted. Appellate courts review summary judgments de novo , using the same criteria that govern the trial court's consideration of whether summary judgment is appropriate. Lincoln v. Acadian Plumbing & Drain, LLC , 17-684 (La. App. 5 Cir. 5/16/18), 247 So.3d 205, 209, writ denied , 18-1074 (La. 10/15/18), 253 So.3d 1302.

The interpretation of a contract's provisions is typically a matter of law that properly may be decided on motion for summary judgment. Hall v. Malone , 12-0264 (La. App. 4 Cir. 11/7/12), 104 So.3d 593, 596. In analyzing contracts, certain fundamental legal principles apply. According to the rules of construction, the responsibility of the judiciary in interpreting contracts is to determine the parties' common intent. See , La. C.C. art. 2045. Courts begin their analysis of the parties' common intent by examining the words of the contract itself. See , La. C.C. art. 2046. In ascertaining the common intent, words and phrases in a contract are to be construed using their plain, ordinary and generally prevailing meaning, unless the words have acquired a technical meaning, in which case the words must be ascribed their technical meaning. See, La. C.C. art. 2047.

La. C. C. art. 2056 states:

In case of doubt that cannot be otherwise resolved, a provision in a contract must be interpreted against the party who furnished its text.
A contract executed in a standard form of one party must be interpreted, in case of doubt, in favor of the other party.

As the Fourth Circuit noted in Landis Const. Co. v. St. Bernard Par. , 14-0096 (La. App. 4 Cir. 10/22/14), 151 So.3d 959, 962, writ denied, 2014-2451 (La. 2/13/15), 159 So.3d 467 :

The Civil Code instructs us in the proper method of contract interpretation. A contract constitutes the law between the parties. See La. Civil Code art. 1983. And "[i]nterpretation of a contract is the determination of the common intent of the parties." La. Civil Code art. 2045 (emphasis added). If the words of a contract are clear, unambiguous, and lead to no absurd consequences, the court need not look beyond the contract language to determine the parties' true intent. See La. Civil Code Art. 2046. Each provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole. See La. Civil Code Art. 2050. "When a contract is not ambiguous or does not lead to absurd consequences, it will be enforced as written and its interpretation is a question of law for a court to decide." Lalla v. Calamar , N.V., 08-0952, p. 8 (La.App. 4 Cir. 2/11/09), 5 So.3d 927, 932, quoting American Deposit Ins. Co. v. Myles , 00-2457, p. 5 (La. 4/25/01), 783 So.2d 1282, 1286. Meaning and intent of parties to a written instrument is ordinarily determined from the instrument's four corners and extrinsic evidence is inadmissible either to explain or to contradict the instrument's terms. See Lalla , 08-0952, p. 8, 5 So.3d at 932.

A contract is to be construed as a whole, and each provision in the contract must be interpreted in light of the other provisions. One provision of the contract should not be construed separately at the expense of disregarding other provisions. See, La. C.C. art. 2050. Neither should a contract be interpreted in an unreasonable or a strained manner so as to enlarge or to restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion. Edwards v. Daugherty , 03-2103 (La. 10/1/04), 883 So.2d 932, 941. Courts lack the authority to alter the terms of contracts under the guise of contractual interpretation when its provisions are couched in unambiguous terms. Cadwallader v. Allstate Insurance Co. , 02-1637 (La. 6/27/03), 848 So.2d 577, 580. The rules of contractual interpretation simply do not authorize a perversion of the words or the exercise of inventive powers to create an ambiguity where none exists or the making of a new contract when the terms express with sufficient clarity the parties' intent. Edwards, 883 So.2d at 941.

The Contract For Development Services

A contract or document is ambiguous when its written terms are susceptible to more than one interpretation, there is uncertainty as to its provision, or the parties' intent cannot be ascertained from the language used. Leftwich v. New Orleans Weddings Magazine , 14-547 (La. App. 5 Cir. 11/25/14), 165 So.3d 916, 921. When the terms of a contract are susceptible to more than one interpretation, there is uncertainty as to its provision, or the parties' intent cannot be ascertained from the language employed, parol evidence is admissible to clarify the ambiguity or show the intention of the parties. First Bank & Tr. v. Redman Gaming of Louisiana, Inc. , 13-369 (La. App. 5 Cir. 12/12/13), 131 So.3d 224, 228. In this posture, determining the intent of the parties becomes, in part, a question of fact, and the granting of summary judgment is appropriate only if there is no genuine issue as to the material fact. Id.

At issue is the interpretation of Section 5 of the Contract for Development Services. Specifically, Section 5 of the Contract for Development Services provided:

5. PROJECT COSTS-Kimble warrants that the Project construction costs shall not exceed $ 688,944. Kimble shall be responsible for all construction costs for the Project exceeding $ 688,944, except for unforeseen or uncontrollable costs such as asbestos or environmental mitigation and necessary site clean-up. [Emphasis added.]

Kimble argues that in finding that the "unforeseen or uncontrollable" costs are exclusively environmental in nature, the trial court altered the terms of the contract. Kimble asserts that the examples provided in Section 5 were merely illustrative. Village argues that this matter is governed by Section 2 of the contract, which states:

2. SERVICES- Kimble shall handle all aspects of the development and building construction of the Project, including all communications, contracting and invoicing. Further if the Project costs exceed $ 688,944, Kimble shall bear the risk and be responsible for all such costs over and above that amount. " [Emphasis added.]

To ascertain the intention of the parties, who disagreed on the contract's interpretation of the terms, the court properly considered parole evidence. Based upon the evidence presented, the trial court, in its Reasons For Judgment, found that the original contract was drafted by Kimble Development and/or its attorneys and that Kimble Development knew, prior to executing the contract and before the project began, that the proposed building was supposed to be 7,125 square feet yet did not amend its preliminary estimate for the O'Reilly's National Account materials. The trial court concluded:

Defendant maintains that the O'Reilly National account cost overruns were "unforeseen or uncontrollable" costs for which it is not responsible pursuant to Section 5 of the Contract. However, a plain reading of the above provision leads to the commonsense conclusion that the types of unforeseen and uncontrollable costs referenced in Section 5 are environmental-related site costs. In the instant case, the evidence established that the cost overruns resulted from underestimation, not unanticipated environmental costs . The "questions of fact" argument raised by the defendant regarding whether the costs were "unforeseen or uncontrollable" does not apply to the instant case in light of the wording of the contract. [Emphasis added.]

In the instant case, the initial contract between the parties, dated July 10, 2013, makes two references to liability for construction costs of the project, in Sections 2 and 5. Both of those sections are clear that Kimble would be liable for any overruns that qualified as construction costs, although that term is not defined in the contract itself.

CONCLUSION

The parties do not dispute that the additional expense incurred by Village beyond the stipulated amount of $ 713,413.71 in the development contract resulted from costs incurred from the actual building or "construction" of the O'Reilly store. Kimble argues that it was unforeseeable that the costs of the building itself would increase with the addition of square footage to the store. However, the record indicates that Kimble inadvertently and incorrectly estimated the initial construction cost of a 6,800 square foot store instead of a 7,125 square foot store. We agree with the trial court that Kimble's underestimating the cost of the building materials based upon its error in initially providing the accurate square footage of the completed store does not invoke the "unforeseen or uncontrollable costs" exception of Section 5 in the Development Contract between the parties, but instead is governed under section two of the contract which provides that "Kimble shall bear the risk and be responsible for all such construction costs over and above" the amount of its own estimate.

To the extent that Kimble relies on the trial court's reasons for judgment to make an argument that the court erred in finding that the "unforeseen or uncontrollable" costs are exclusively environmental in nature, we note that that appellate Courts do not review reasons for judgment as a part of the judgment itself. La. C.C.P. art. 1918 ; Burmaster v. Plaquemines Parish Governmen t, 07-1311 (La. 8/31/07), 963 So.2d 378, 379. The written reasons for judgment are merely an explication of the trial court's determinations.

State in the Interest of Mason , 356 So.2d 530, 532 (La. App. 1 Cir. 1977). Similarly, this Court has held that oral reasons for judgment are not part of the official judgment which the trial judge signs or from which appeals are taken. Par. of St. Charles v. Young , 99-411 (La. App. 5 Cir. 12/15/99), 750 So.2d 276, 278. The Louisiana Supreme Court has held, however, that a court of appeal can use reasons for judgment to gain insight into the district court's judgment, and we refer to them now for that purpose. See, Wooley v. Lucksinger , 09-0571 (La. 4/1/11), 61 So.3d 507.

Contrary to Kimble's assertion that the trial court made a finding that the "unforeseen or uncontrollable" costs referred to in section five are exclusively environmental in nature, it appears from the record as a whole that the trial court found it unnecessary to make a determination of whether any environmental concerns applied under section five of the agreement. As discussed above, because the trial court concluded that the increased cost was the result of underestimation, a cause that was neither unforeseen nor uncontrollable, he deemed it unnecessary to base his ruling on section five.

After de novo review, we conclude that Village established that it will be able to satisfy its evidentiary burden of proving the there was a meeting of the minds on the terms of the project construction costs provision of the contract. Accordingly, we find that Village is entitled to summary judgment, as a matter of law.

DECREE

The district court judgment sustaining Village's motion for summary judgment, and awarding $ 48,347.28, together with legal interest, is affirmed.

AFFIRMED

      As acknowledged by the trial court, these exhibits consisted of:
      Exhibit A- Deposition of Michael Kimble;
      Exhibit B- Emails between Amy Richardson and Dr. Glazer;
      Exhibit C- Email between Amy Richardson and Scott Russell;
      Exhibit D- Letter to Scott Russell from Amy Richardson;
      Exhibit E- Contract for Development Services;
      Exhibit F- Deposition of Kelly Sanders Morgan;
      Exhibit G-Contract Addendum;
      Exhibit H- Various Invoices and check images/payments;
      Exhibit I- O'Reilly Auto Parts Invoice;
      Exhibit J- Geotechnical Engineering Report;
      Exhibit K- O'Reilly Auto Part-Shell Package Only;
      Exhibit L- State of Louisiana-Fire Marshall;
      Exhibit M- Spreadsheet of O'Reilly's Account;
      Exhibit N- St. Charles Planning Department-Permit;
      Exhibit O- Site Order Request/Energy Management System;
      Exhibit P- Affidavit of Peter Glazer