author: PERRY, Judge.

text:
    Phillip Edward CARPENTER v. GUILLORY INVESTMENT, INC.
    CA 18-571
    Court of Appeal of Louisiana, Third Circuit.
    February 27, 2019 Rehearing Denied April 10, 2019
    Barry A. Roach, Larry A. Roach, Inc., 2917 Ryan St., Lake Charles, LA, COUNSEL FOR DEFENDANT/APPELLANT: Guillory Investments, Inc.
    Marcus Myers, Myers Law Firm LLC, 2917 Ryan St., Lake Charles, LA, CO-COUNSEL FOR DEFENDANT/APPELLANT: Guillory Investments, Inc.
    Brian Arabie, Arabie Law Firm LLC, 1011 Lakeshore Dr., Suite 200, Lake Charles, LA, COUNSEL FOR PLAINTIFF/APPELLEE: Phillip Carpenter
    Court composed of Billy Howard Ezell, Van H. Kyzar, and Jonathan W. Perry, Judges.
   PERRY, Judge.

This case focuses on a predial servitude created by destination of the owner and involves a residential water line. We affirm but remand to allow the trial court to amend the judgment in accordance with this opinion.

FACTS

Phillip E. Carpenter and Susan R. Carpenter ("Carpenters") own residential rental property at 703 Murbelle Road ("Murbelle property") in Calcasieu Parish. They acquired this property in September of 2013 from Moffett Realty. Guillory Investments, Inc. ("Guillory Investments") owns a much larger eighteen-acre tract (the "Common Street" property) to the north and adjoining the Murbelle property. Two water meters are located on the northwest corner of the Common Street property-meter number 07101188 and meter number 13801239.

On direct testimony, Gerald Lee Guillory ("Guillory"), an officer of Guillory Investments, explained that at one time "Mr. Cole" owned the Common Street property and the Murbelle property as one estate. Later, the record does not show exactly when, Mr. Cole put a water line to the residence at 703 Murbelle where family member lived; that water line is serviced by meter number 13801239 on the Common Street property. Guillory further testified that at the time of Mr. Cole's death, the Murbelle property remained connected to one of the Common Street meters.

The Carpenters' property at 703 Murbelle receives its water supply from the city of Lake Charles through water meter number 13801239, located at the northwestern corner of Guillory Investment's Common Street property. At the time of their purchase, the Carpenters formally transferred the billing on this water meter with the Lake Charles Water Department ("Water Department") into their personal names. Their water line runs approximately 1,100 feet from the meter parallel to the northern boundary of the Common Street property and across the width of that property to the Carpenters' rental house on Murbelle. From the time of their purchase of the property the Carpenters have paid a water bill to the city of Lake Charles for the minimum usage every month based on the water meter registered to 703 Murbelle.

Notwithstanding the existence of this water meter, in early 2014 the Carpenters, when remodeling the Murbelle residence, learned from an employee of the Water Department that the Murbelle property's water supply had been re-connected to another water meter, number 07101188, just south of the Murbelle property water meter; that meter was registered to Guillory Investments. When confronted with this fact, Guillory Investments informed the Carpenters that prior to the Carpenters' purchase of the Murbelle property, the city had disconnected water service to their water meter. At that time, Guillory Investments disconnected the line for the Murbelle property water meter, located north of its meter, and connected it to its meter, when it learned that the water line connected to the Murbelle meter also supplied water to cattle and chickens located on Guillory Investments' property. Guillory Investments explained its actions by stating that when the water service to this other water meter was disconnected, the animals on the Common Street property became water-deprived.

On two occasions after the Carpenters' purchase, one on July 4, 2016 and again on March 27, 2017, the continuous flow of water to the Murbelle property was interrupted; the former for approximately one day and the latter precipitated the Carpenters' lawsuit against Guillory Investments because the water to the Murbelle property remained disconnected.

PROCEDURAL HISTORY

On April 1, 2017, the Carpenters filed suit against Guillory Investments, seeking a preliminary injunction, a permanent injunction, and declaratory judgment. After conducting a hearing on April 21, 2017, the trial court granted the preliminary injunction and ordered Guillory Investments to immediately restore the water service to the 703 Murbelle Road property, burdening Guillory Investments' Common Street property. The trial court further ordered the Carpenters to pay Guillory Investments $ 40.00 per month for the water provided.

On June 15, 2017, the trial court conducted a hearing on the Carpenters' request for a permanent injunction. After hearing testimony from Phillip Carpenter and Guillory, the trial court, relying upon Wagner v. Fairway Villas Condominium Associates , 01-0734 (La.App. 3 Cir. 3/13/02), 813 So.2d 512, found that the common predecessor in title of these two estates created a predial servitude, that by virtue of the presence of the water meter on the Common Street property this servitude was apparent under La.Civ.Code art. 741, that the common owner never disavowed the existence of this predial servitude, and thus, Guillory Investments' Common Street property was burdened with a water utility service servitude in favor of the Murbelle property. Accordingly, the trial court granted the permanent injunction, enjoining Guillory Investments from "further interruption of the water service to the Murbelle Property."

Guillory Investments appeals, contending the trial court erred when it: (1) misapplied Wagner , finding there was a predial servitude in favor of the Carpenters; and (2) found a predial servitude in favor of the Carpenters when the former common owner of the Guillory Investments and Murbelle properties had not filed a "formal declaration establishing the destination" sufficient to establish the servitude as required in La.Civ.Code art. 741.

STANDARD OF REVIEW

Appellate courts "review judgments regarding servitudes under the manifest error standard of review." Allen v. Cotten , 11-1354, p. 3 (La.App. 3 Cir. 5/2/12), 93 So.3d 681, 683. More particularly, whether an apparent servitude has been created by destination of the owner is a factual determination reviewed under the manifest error-clearly wrong standard of review. Naramore v. Aikman , 17-1621, 17-1622 (La.App. 1 Cir. 6/4/18), 252 So.3d 935. "An appellate court may not set aside a trial court's findings of fact unless they are manifestly erroneous or clearly wrong." Allen , 93 So.3d at 683. "To reverse under the manifest error rule, an appellate court must find from the record that there is no reasonable basis for the trial court's finding and that the record shows the finding to be manifestly erroneous." Id.

PREDIAL SERVITUDES

Guillory Investments contends the trial court erred and advances a threefold argument: the water lines were not visible; the water meter was not near the common boundary of the two properties; and neither the current owner of the Common Street property nor the Murbelle property knew at the time of their respective purchases that the Common Street meter supplied water to the Murbelle property. For reasons that follow, we find no merit to Guillory Investment's argument.

A predial servitude is either apparent or nonapparent. La.Civ.Code art. 707. An apparent servitude is "perceivable by exterior signs, works, or constructions; such as a roadway, a window in a common wall, or an aqueduct." Id. Nonapparent servitudes have "no exterior signs of their existence; such as the prohibition of building on an estate or of building above a particular height." Id. Apparent servitudes are acquired by "title, destination of the owner, or by acquisitive prescription." La.Civ.Code art. 740. Nonapparent servitudes can only be acquired by title, "including a declaration of destination under Article 741." La.Civ.Code art. 739. Whether a servitude is classified as apparent or nonapparent is dependent on the facts and circumstances of each case. Wagner , 813 So.2d at 512.

Louisiana Civil Code Article 741 describes "destination of the owner":

Destination of the owner is a relationship established between two estates owned by the same owner that would be a predial servitude if the estates belonged to different owners.
When the two estates cease to belong to the same owner, unless there is express provision to the contrary, an apparent servitude comes into existence of right and a nonapparent servitude comes into existence if the owner has previously filed for registry in the conveyance records of the parish in which the immovable is located a formal declaration establishing the destination.

This codal article recognizes that when there is only one owner, there is no servitude because no one can have a servitude on his own property. See Yiannopoulos and Scalise, 4 La. Civ. L. Treatise, Predial Servitudes § 6:38 (4th ed. September 2018 Update). "But, when the single estate is divided, or two estates cease to belong to the same owner, an apparent servitude comes into existence of right unless the common owner disavows its existence." Naramore , 252 So.3d at 940.

Thus, there is a two-fold requirement for the creation of a predial servitude by destination of the owner: (1) there must be a relationship between two estates or two parts of the same estate belong to the same owner that would be an apparent servitude if there were two different owners; and (2) the ownership of one of the estate or of a part of an estate must be transferred by an act that does not negate, by express provision, the creation of a servitude by destination of the owner.

In the present case, the trial court found that an apparent servitude existed in favor of the Murbelle property. Expressly relying on this court's earlier decision in Wagner , 813 So.2d 512, the trial court concluded, "While the water lines, alone, are nonapparent, the water meter constitutes a perceivable exterior sign, work, or construction that makes it apparent there are water lines running underneath the surface." Thus, applying the provisions of La.Civ.Code art. 741, the trial court found a predial servitude came into existence by destination of the former common owner of the two estates. Finding the trial court was not manifestly erroneous, we agree.

It cannot be denied that the water line in question was buried and not visible. It can also not be denied that the water meter that services the Murbelle property is located on the Common Street property, approximately 1,100 feet from the Murbelle property, and is visible. Nevertheless, Guillory testified that at the time of Guillory Investments' purchase, the realtor pointed out the two water meters located at the northwestern corner of the Common property and purportedly told him the meters were his. Notwithstanding Guillory Investments' assertion of water meter ownership, the uncontroverted evidence shows that the Carpenters have received a water bill associated with the Murbelle property coinciding with their 2013 purchase and continuing thereafter. Phillip Carpenter's testimony is likewise uncontroverted that the Water Department records dating back to 2004 show two separate meters on the Common Street property - one to Guillory Investments and a separate one to the Murbelle property. Additionally, when the trial court asked Guillory for any evidence that would have shown that Guillory Investments paid for the monthly water bill for the Murbelle property water meter, Guillory had nothing to present to the court.

We find it inconsequential that Guillory Investments had no particularized knowledge that the water meter on its property serviced the water line connected to the Murbelle property. Under the provisions of La.Civ.Code art. 741, the current servient estate owner's knowledge is immaterial. Rather, the focal point clearly rests with the actions of the former common estate owner, Mr. Cole.

Although the trial court may have relied upon dicta in Wagner relating to the presence of the water meter to support its resolution of this matter, we find Combyv. White , 98-1437 (La.App. 3 Cir. 3/3/99), 737 So.2d 94, more supportive of the question now before us. That case, like the present one, involved prior common owners who installed a water meter and constructed a water line which ran across subdivision property to a residence. Later, the common owners divested themselves of all the property, divvying it up among various individuals, effectively leaving the water meter on property other than the residence it serviced.

As shown in Comby , Cygnal White, Jr. and his wife owned the property on which the water meter was located; Harvey and Vicky Comby owned the property serviced by the water line that commenced at the water meter on the Whites' property. When the water line broke under the Whites' driveway, they denied access to the Combys to repair the broken water line. Instead, the Combys were forced to run a much longer water line at a tremendous cost. Contending that their estate was favored with a predial servitude over the Whites' estate, the Combys sued the Whites for the added expense they incurred.

On the facts presented in Comby , including the presence of the water meter on the servient estate, the trial court found a predial servitude existed and awarded damages for the added expenses the Combys incurred. Commenting on the application of La.Civ.Code art. 741 to those facts and the trial court's determination that the water line constituted an apparent servitude, this court stated:

The property at issue in this case was originally owned in its entirety by Cygnal White, Sr. and his wife, and the lines would have constituted a predial servitude had the property been owned by separate parties. Consequently, when the White, Srs.' property ceased to belong to them alone a servitude was created by destination of owner. Because the servitude in question was apparent it came into existence of right for the benefit of the Combys. The trial court was correct in finding that an apparent servitude exists.

Comby , 737 So.2d at 96.

The same is true in the present case. The water meter constituted an exterior sign characteristic of the water service servitude that made it apparent there were water lines running underneath the surface. Guillory Investments' argument that the water meter is located approximately 1,100 feet from the Murbelle property is likewise not a determinative factor of apparency that was critical under La.Civ.Code art. 741. Although under the present facts the length of the water line evidences the extent of the servitude, it is the visible presence of the water meter, an exterior sign characteristic of the water service servitude, that is paramount to the resolution of the issue before the trial court and us as a reviewing court. Guillory not only testified that he saw the multiple water meters at the time of his purchase, but he further testified that the Murbelle property remained connected to the water meter dedicated to service that property at the time of Mr. Cole's death. Therefore, we find the trial court did not err when it found Guillory Investments' property was burdened with a predial servitude in favor of the Carpenters' Murbelle property.

Having affirmed the trial court's determination that this water line constituted an apparent predial servitude, we pretermit Guillory Investments' second assignment of error. Under the provisions of La.Civ.Code art. 741, there was no need for the registry of a formal declaration by the prior common owner, establishing the destination in the conveyance records.

However, we observe that a predial servitude is "[a] charge on a servient estate for the benefit of a dominant estate." La.Civ.Code art. 646. It "is inseparable from the dominant estate and passes with it." La.Civ.Code art. 650. Additionally, "[t]he right of using the servitude cannot be alienated, leased, or encumbered separately from the dominant estate," and the servitude "continues as a charge on the servient estate when ownership changes." Id. Because predial servitudes are charges on estates, it is necessary for the judgment to specifically delineate by property description the servient and dominant estates. See, e.g. , Sustainable Forests, L.L.C. v. Harrison , 37,152 (La.App. 2 Cir. 5/22/03), 846 So.2d 1283 (recognizing the importance of describing both the servient and dominant estates in the public records). Accordingly, we find it necessary to remand this matter for the trial court to conduct a hearing in which the parties may introduce the property descriptions of the dominant and servient estates because those property descriptions are not part of this record. After allowing the introduction of this evidence, the trial court shall amend its judgment to particularly describe the servient and dominant estates.

For the foregoing reasons, the judgment of the trial court is affirmed and the case is remanded to the trial court to amend the judgment consistent with this opinion. Costs are assessed to Guillory Investments, Inc.

AFFIRMED; CASE REMANDED WITH INSTRUCTIONS.

Kyzar, J., dissents and assigns written reasons.

KYZAR, J., dissents and assigns reasons.

I respectfully disagree with the majority opinion. Based on the scant record from the trial of this case, I find that the trial court erred in its finding that the servitude in question was an apparent servitude, subject to acquisition by destination of owner as per the provisions of La.Civ.Code art. 740. It was the plaintiff's burden to show by the facts presented that the servitude for the hidden, underground waterlines servicing the Carpenter property over 300 yards away from the Guillory property was an apparent servitude. He did not, based on a review of this record. The only testimony in the record is that of Mr. Carpenter and of Mr. Guillory. Mr. Carpenter testified that when he purchased his property, the Murbelle Property, through a foreclosure sale, he was told by his realtor that the water supplied to the property was supplied through the City of Lake Charles. He had a meter installed and paid a flat monthly water bill each month and assumed the meter he had connected sourced his water lines.

Mr. Guillory testified that when he purchased his property, the Common Property, he had two meters for the lines supplying water to the overall property. One meter was on lines supplying part of the property and the other supplying a horse barn towards the rear of the property. At one point, the city disconnected the meter supplying the horse barn, nearly causing the death of the livestock as it was not noticed that water had been disconnect for approximately two weeks. At the time, unbeknownst to Mr. Guillory, disconnecting that meter also disconnected water to the Murbelle property. Mr. Guillory reconnected the lines supplying the rear horse barn to his other meter, such that he only had one bill for the joint lines, thus also reconnecting water to the Murbelle property owned by Mr. Carpenter as well.

While there was much discussion about the existence of water meters, particularly the two on Mr. Guillory's property, it is clear that at least at one time both were actively metering water supplied to the Guillory property. Thus, it was inherently reasonable for him to believe they were metering only lines under his property, not someone else's property more than 1100 feet away and on another street altogether. Indeed, the only testimony at trial that directly dealt with this came from Mr. Guillory himself.

Q Is there anything - - is there anything that told you, prior to buying the property or after buying the property, that there was a piece of pipe going under your land that supplied the property on Murbelle Road?
A No, sir.

The question before the trial court and this court is rather simple, while the resolution thereof is problematic for both property owners. Was the water line running beneath Mr. Guillory's property supplying water to the Carpenter's Murbelle Property an apparent servitude, or a non-apparent servitude? La.Civ.Code art. 707. If it is an apparent servitude, Mr. Guillory's property is burdened therewith as the servient estate. La.Civ.Code art. 740. If it is a non-apparent servitude, it was not properly recorded as such in the public records by the previous common owner, such that Mr. Guillory's estate is not burdened with any servitude. La.Civ.Code art. 741.

The trial court and the majority of this court find that the mere existence of a water meter is a sufficient work or visible sign to make the hidden water lines supplying water to the Murbelle Property some 1100 feet away and on another street an apparent servitude. The majority concludes that it is "inconsequential that Guillory Investments had no particularized knowledge that the water meter on its property serviced the water line connected to the Murbelle property" ... and that "[U]nder the provisions of La.Civ.Code art. 741, the current servient estate owner's knowledge is immaterial." Rather, the majority asserts that "the focal point clearly rests with the actions of the former common estate owner, Mr. Cole." I disagree wholeheartedly. The focus is on one important factor and one only: Was there some work or visible sign to make Mr. Guillory or anyone else in his position at the time he purchased the Common Property aware that there were buried water lines under the property supplying water to another property owner? The answer to that question is of extreme import to anyone in this state that acquires property henceforth. If there is a visible work or sign, a non-apparent servitude, one hidden from sight, becomes apparent, and runs with the servient estate, without more, for the very reason that it is obvious. If it is not such as to alert one to the hidden servitude, it remains non-apparent and does not burden the property and owner of the servient estate unless the common owner declared such in the public record. The majority, like the trial court, found that the mere existence of a water meter unquestionably metering a water line supplying water to Mr. Guillory's own property, is a sufficient visible work or sign. Under the bare facts presented in this case, I find that it was not.

The majority relies on two decisions by this court in determining that the water lines running under the Guillory Common Property supplying water to the Carpenter's Murbelle Property, constitute an apparent servitude. The first, also relied upon by the trial court is Wagner v. Fairway Villas Condo. Assocs ., 01-0734 (La.App. 3 Cir. 3/13/02), 813 So.2d 512. The other is Comby v. White , 98-1437 (La.App. 3 Cir. 3/3/99), 737 So.2d 94, which the majority concludes is more supportive of the question now before us than Wagner . I disagree, finding that neither are dispositive of the issue.

In Comby , Cygnal White, Sr. and his wife acquired certain real estate adjacent to the Toledo Bend Reservoir in Sabine Parish, Louisiana. The White, Sr.'s built a house on Lot 199 and partly on another portion of the overall parcel and in conjunction with that construction, a water line, electric line, and cable television line were connected to the residence. These lines originate on Lot 30 of Whispering Pines Subdivision and run across the subdivision property and part of another portion and terminated at the residence on Lot 199. The meter for the water lines was located on Lot 30. Thereafter, White Sr. sold a partial tract including the house on Lot 199 to Comby and another tract including Lot 30 and other parcels to White, Jr. The water meter billing was changed from White, Sr. to Comby after they purchased the property including Lot 199, even though the meter remained on Lot 30. The water line at issue in this case traversed the driveway of White, Jr. and continued use of the dirt driveway eventually resulted in a breakage of the line. The White, Jr's. turned off the water at the meter and notified the Combys of the break. White, Jr. refused to allow the Comby's to repair the lines, requiring Comby to totally relocate the water lines to their property at significant expense. Suit followed.

A panel of this court in Comby agreed with the trial court that there existed an apparent servitude under the facts of the case, relying on Fuller v. Washington, 19 So.2d 730 (La.App. 2 Cir.1944), wherein the court found that a sewer line running across property constituted an apparent servitude, and Nash v. Whitten, 326 So.2d 856 (La.1976), which primarily discussed prior circuit court cases finding that these courts had improperly applied the test to determine whether a servitude was "continuous" or "discontinuous" while recognizing in that case that the "apparent" nature of the servitude was not disputed. At the time, Louisiana Civil Code of 1870 art. 767 required that for title by destination of owner a servitude be "continuous" and "apparent." Bertrand v. Halley, 460 So.2d 705 (La.App. 3 Cir.1984). This "continuous" nature of the servitude no longer is applicable, however, as current Louisiana Civil Code art. 741 requires only that the servitude be "apparent." Accordingly, the court in Comby held that the water, electric and cable lines across White, Jr.'s property constituted an apparent servitude. The specific reasons for that determination are not discussed. There was no specific reliance by this court on the mere existence of the water meter on the White, Jr.'s property servicing the lines to the Comby property on Lot 199. It is obvious from the facts in the Comby decision, however, that that it was known to the parties that the meter on the White, Jr. property serviced the Comby property as the billing setup for the meter had been transferred into the Comby's name after they purchased the property from White, Sr. It is also clear from a reading of the opinion that the existence of the water lines became obvious, and visible even to White, Jr., as they were exposed under the driveway and cut, as White, J. notified Comby when this was done. It is also obvious that electric and cable lines were also involved, though it is unclear if these lines were visible, emanating from Lot 30 to Lot 199 or also buried underground, though given the time period involved it is most likely these were overhead lines and thus were visible and clearly apparent. Thus, Comby does not support a conclusion that the mere existence of a water meter on one parcel, without more, is a visible sign of a water line servitude running underground servicing property hundreds of yards away. Id. at 96.

The majority and the trial court here also rely on Wagner, although in that case, another panel of this court found that under the facts presented there the pipes supplying water to the condominiums on the plaintiff's estate constituted a nonapparent, rather than an apparent, servitude and did not burden the defendant's estate though the entire property was commonly owned by another at one time. There, the court stated as follows:

No evidence was admitted establishing that the pipes could be perceived by any exterior works, such as a meter. Lee Musick, the general manager of Hodges Gardens, testified that there were no individual meters on the water lines leading from the resort to the condominiums. Rather, he stated that the resort's water meter was located across Highway 171 on Hodges Garden's property approximately one mile from the resort's water tank.

Id. at 517.

Clearly, the statement by the court in Wagner concerning the meter was pure dicta. The language does not stand for the proposition that the mere existence of a water meter is a visible work or sign such that the non-apparent servitude becomes an apparent one. Indeed, it only suggests that a joint water meter servicing many condominiums located far away from the served property is not a visible sign. That being the case, it supports the conclusion that Guillory's meter here was also not a visible work or sign of the hidden water lines in this case as well.

The conclusion that the water meter in this case, without more, is a visible sign of hidden water lines under the property servicing an estate hundreds of yards away is fiction. There was no evidence that the existence of the lines should have triggered defendant to know the meter serviced any water line other than his own. Had the meter been close to the adjacent property, such as on or near the boundary, it may have. That is not the case here. Had there been some marking or labeling on the meter indicating that it serviced more than one property, it may have. That was not the case here. The only evidence was that there was a meter 1100 feet away, on another property on another street. Under these facts, the court erred in concluding that this was a visible sign of the hidden lines serving plaintiff's estate.

The precedent set by this rational is extremely onerous. Any prospective property purchaser must now question prior to any purchase whether a servitude exists by the mere presence of any water meter, even when it supplies the subject property. It matters not whether there is any other property adjacent or in close proximity to the land proposed for purchase, as hidden lines may service property miles away. The ruling will simply be another reason for "caveat emptor" or buyer beware! The cost to the servient estate is significant, in the form of decreased valuation of the property by having the burden of the servitude, by the burden of decreased potential use as any particular development may be excluded because of the existence of the buried lines, and the inconvenience costs of periodic maintenance of the buried lines.

For these reasons, I respectfully dissent.

      The record is replete with hearsay testimony, none of which either party lodged an objection. The facts that follow regarding the ownership of the two properties, the common chain of title, the information about the water meters, the payment history of the parties, the history of exactly when or how the water service to the properties came to be-none of these are supported by documentary evidence. However, neither party has disputed these facts. All sorts of evidence, including oral testimony, may be used to prove the creation of servitudes by destination of the owner. See Rozier v. Maginnis, 12 La.Ann. 108 (1857) overruled on other grounds in Buras Ice Factory, Inc. v. Department of Highways of La., 235 La. 158, 103 So.2d 74 (1958) ; see also Yiannopoulos and Scalise, 4 La. Civ. L. Treatise, Predial Servitudes § 6:42 (4th ed. September 2018 Update). When inadmissible hearsay evidence is admitted without objection it may be considered and given the substantive weight to which it is entitled. Gray v. Great Am. Indem. Co. , 121 So.2d 381 (La.App. 1 Cir. 1960) ; Bourque v. Bouillion , 95-909 (La.App. 3 Cir. 10/18/95), 663 So.2d 491.

      The evidence also shows the presence of a third water meter on the Common Street property. It appears to provide water to another tract of Guillory Investments' property located adjacent to and further north of the Common Street property. The third meter is not involved in this litigation.

      Guillory testified that he learned these facts from Alex, his barber. As noted above, see note 1, supra , no documentary evidence was entered to show when this common owner purchased the two tracts or when the city of Lake Charles first provided metered water service to these properties. As noted above, Guillory Investments provided this testimony and did not contest the facts associated with that evidence.

      Although the Carpenters have not made this an issue, our review of the record shows that Guillory Investments did not file any pleading specifically designated as an answer to the Carpenters' petition. However, the record does reflect two memoranda that Guillory Investments filed in opposition to the Carpenters' petition. "While compliance with the requirements of the Code of Civil Procedure is highly indicative that a document is an answer, it is not necessarily decisive." Citadel Builders, L.L.C. v. Dirt Worx of La. , L.L.C. , 14-495 (La.App. 5 Cir. 11/25/14), 165 So.3d 117, 122, writ granted, reversed on other grounds , 14-2700 (La. 5/1/15), 165 So.3d 908. In determining whether a pleading constitutes an answer, "a court should consider, based on the totality of the circumstances surrounding the pleading, whether the substance of the document ... is an answer." Id. at 121-22. Guillory Investments' first memorandum sets forth its opposition to the issuance of a TRO and injunction; its second memorandum asserts that the water line is nonapparent and not subject to acquisitive acquisition or susceptible to acquisition by destination of the common owner. Under the totality of the circumstances and mindful of the focus on the substance of the pleadings, we find Guillory Investments' memoranda, which respond to and oppose the Carpenters' allegations, achieve the substantive purpose of an answer.

      We reference this statement simply because it underscores the extrinsic manifestation of the servitude. Although the duty of Guillory to investigate the presence of the second water meter is immaterial to the question now before us, such a duty would have been implicated in another aspect. Under La.Civ.Code art. 2500 a seller does not warrant against the lack of knowledge of encumbrances such as "apparent servitudes and natural and legal nonapparent servitudes, which need not be declared."

      Although the record shows that the trial court's judgment on the temporary restraining order delineates property descriptions, out of an abundance of caution and for the integrity of future title examination, we find it more prudent to remand this matter to the trial court for the proper introduction of the property descriptions into the record.


source: Caselaw Access Project

author: KYZAR, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Prince RECORD
    18-614
    Court of Appeal of Louisiana, Third Circuit.
    February 27, 2019
    Paula C. Marx, Louisiana Appellate Project, P.O. Box 82389, Lafayette, LA 70598-2389, (337) 991-9757, COUNSEL FOR DEFENDANT/APPELLANT: Prince Record
    Herbert Todd Nesom, District Attorney, Joe Green, Assistant District Attorney, Thirty-Third District Court, P.O. Box 839, Oberlin, LA 70655, (337) 639-2641, COUNSEL FOR APPELLEE: State of Louisiana
    Court composed of Billy H. Ezell, Van H. Kyzar, and Jonathan W. Perry, Judges.
   KYZAR, Judge.

Defendant, Prince Record, appeals his convictions and sentences for simple escape and transactions involving proceeds from drug offenses. For the reasons herein assigned, we affirm the convictions but vacate the sentences imposed and remand to the trial court for resentencing.

FACTS AND PROCEDURAL HISTORY

Defendant, Prince Record, was convicted by a unanimous jury verdict on May 11, 2017, of simple escape, a violation of La.R.S. 14:110, and transactions involving proceeds of drug offenses, a violation of La.R.S. 40:1041. Defendant was originally charged by way of a bill of information with seven counts. He proceeded to trial on only four of the original seven, being one count of distribution of cocaine, one count of possession with the intent to distribute marijuana, one count of simple escape, and one count of transactions involving proceeds from drug offenses. The State voluntarily dismissed the remaining three offenses prior to trial. Defendant was acquitted of the charges of possession of marijuana with the intent to distribute and distribution of cocaine.

The facts leading to his convictions were detailed in his jury trial through multiple witnesses. The Allen Parish Narcotics Team sent an informant to the residence of Defendant on February 19, 2014, to make an illegal narcotics buy from Defendant in an undercover sting operation. The informant was given $ 15.00 in marked bills, a $ 10 bill and a $ 5 bill. The transaction was recorded via audio and video recording devices. Once completed, agents secured the cocaine purchased by the informant and secured a search warrant for the residence in which Defendant was known to stay and an arrest warrant for his arrest. The following day, on February 20, 2014, the agents executed the warrants. At the residence designated in the warrant, they apprehended Defendant and searched the residence. There, they found him in possession of $ 1,300 in cash, including the marked $ 10 bill used in the undercover buy operation. They also found marijuana, drug paraphernalia, and other indicia of involvement in illegal drug sales. Defendant was arrested and handcuffed during the search, but at some point, with handcuffs on, Defendant escaped and fled the scene. Officers could not catch him at the time. He was not apprehended until a year and a half later.

Following the convictions but prior to sentencing, the State filed a multiple offender bill of information charging that Defendant was a third felony offender, having been previously convicted of two separate narcotics offenses. Defendant was adjudicated a third felony offender on September 13, 2017, and written reasons in support of the finding were signed on September 26, 2017, as per the provisions of La.R.S. 15:529.1(D)(3), as follows:

The Court finds that the State proved beyond a reasonable doubt that Prince Record was convicted in this Court on August 22, 2011 in the matter of State of Louisiana vs. Prince Record, criminal docket number 2008-3126, for the offenses of Possession with the Intent to Distribute Schedule II, to wit: Cocaine, La. R.S. 40:967(A)(1) and Obstruction of Justice, La. R.S. 14:130.1. Further, defendant was convicted on September 14, 20112 [sic] on September 14, 2012[sic], in this Court in the matter entitled State of Louisiana vs. Prince Record, criminal docket number 2012-1434, for Possession with Intent to Distribute a Schedule II
Controlled Dangerous Substance, to wit: Cocaine, La. R.S. 40:967(A)(1).

On September 13, 2017, after finding Defendant a third felony offender, the trial court sentenced Defendant to two and a half years for simple escape and to ten years for transactions involving proceeds from drug offenses, with the sentences to run consecutively to each other and consecutively to any other sentences Defendant was serving at the time. Defendant thereafter filed a pro se notice of appeal in docket number 18-85. This court issued an order on February 6, 2018, remanding the matter for an evidentiary hearing to determine whether Defendant was entitled to court-appointed counsel or whether he had made an intelligent and voluntary waiver of counsel after an affirmative showing on the record that the trial court had informed him of the dangers and disadvantages of self-representation. The trial court found Defendant indigent and appointed counsel at a hearing on April 5, 2018. Defendant has now filed the present appeal, seeking to have his convictions vacated, a new trial ordered, or a remand for the purpose of reconsidering his sentences.

Defendant asserts on appeal three assignments of error, the first two of which are intertwined. Defendant first urges that the trial court erred in denying his challenge for cause of a prospective juror, and alternatively, if the error was not preserved for appeal by objection of trial counsel, Defendant asserts that his convictions should be reversed for ineffective assistance of counsel. He also asserts that the trial court erred in denying his motion to reconsider his sentences as being untimely filed.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find that there are errors patent, one involving the jury deliberation process that we will address first and the other involving sentencing.

Replacement of Primary Juror with Alternate

After the jury retired to deliberate, one of the principal jurors, David Briscoe, became ill and requested to be excused. Because of the nature of the illness, the trial judge granted the request and designated the first alternate juror, Beverly Thomas, to replace Mr. Briscoe. The record does not reflect that the entire jury was brought back to the courtroom during the time of the release of juror Briscoe and the swearing and appointment of alternate juror Thomas to replace him, such that the jury could be instructed to begin its deliberations anew, as prescribed by La.Code Crim.P. art. 789, which states the following regarding the selection and use of alternate jurors:

A. The court may direct that not more than six jurors in addition to the regular panel be called and impaneled to sit as alternate jurors. Alternate jurors, in the order in which they are called, shall replace jurors who become unable to perform or disqualified from performing their duties. Alternate jurors shall be drawn in the same manner, shall have the same qualifications, shall be subject to the same examination and challenges for cause, shall take the same oath, and shall have the same functions, powers, facilities, and privileges as the principal jurors. If the court determines that alternate jurors are desirable in the case, the court shall determine the number to be chosen. The regular peremptory challenges allowed by law shall not be used against the alternate jurors. The court shall determine how many additional peremptory challenges shall be allowed, and each defendant shall have an equal number of such challenges. The state shall have as many peremptory challenges as the defense. The additional peremptory challenges may be used only against alternate jurors. Except in capital cases, an alternate juror who does not replace a principal juror may be discharged when the jury retires to consider its verdict.
....
C. If the court, as provided in Paragraph A, replaces a principal juror with an alternate juror after deliberations have begun, the court shall order the jury to begin deliberations anew.

The record supports the trial court's finding that juror Briscoe was unable to serve after the jury retired to deliberate and thus the trial court was authorized by La.Code Crim.P. art. 789 to replace juror Briscoe with alternate juror Thomas. See State v. Spencer , 446 So.2d 1197 (La.1984). There is, however, no indication in the record that the trial court instructed the jury to begin deliberations anew as required by La.Code Crim.P. art. 789(C). Although it appears the alternate juror was appointed near the beginning of the deliberation process, the record is unclear as to whether the jury had already begun deliberating as reflected by the trial courts' following statements:

Let the record reflect we will go back into criminal session. We'll continue with the trial in State of Louisiana versus Prince Record, CR-2015-3272. The Court has been advised from the bailiff that Mr. Briscoe, juror number 31, when he was leaving the Courtroom he fell ill and this is just for the record and he was vomiting and was escorted. He tried to continue with deliberations or I guess to begin deliberation and so he was escorted to the restroom by one of the bailiffs. He has continued to throw up, he has soiled his clothes and he's feeling very faint and ill and he does not think that he can continue with deliberations although he tried. So he is requested [sic] from the COURT that he be excused and the COURT will grant that request and order that Alternate # 1, Beverly Thomas, be seated and so we will go ahead and bring Ms. Thomas in and swear her in as a juror and then send her to the jury room for deliberations. Could you bring Ms. Thomas in? ... Okay, Ms. Thomas, please come over here. And you were previously sworn in as an alternate juror. Now we have to swear you in as a juror because you're going to have to go in and participate in deliberations because that other gentlemen [sic] is not able to continue. So please raise your right hand and the clerk will give you your jurors['] oath.

The fourth circuit addressed a similar error in State v. Clark , 97-1757 (La.App. 4 Cir. 4/7/99), 732 So.2d 138. Unlike the present case, the issue in Clark was assigned as error on appeal. At some point after the jury retired for deliberations in Clark , it was discovered that a person chosen for the jury (Ms. Reed) had mistakenly been excused, and a person who had been excused (Ms. Brown) had been seated as a juror. Clark , 732 So.2d at 142. Upon discovering the mistake, the State moved to excuse Ms. Brown and replace her with the alternate, Mr. Camp. Id. The court agreed with the State's motion and ordered the jury to stop deliberating, if it had already begun to do so. Id. When the trial court replaced Ms. Brown with the alternate, Mr. Camp, the trial court ordered the jury "to begin deliberations." Id. Clark moved for a mistrial, which the trial court denied. Id. On appeal, Clark argued the trial court erred in denying her motion for mistrial "because the excused juror had participated in deliberations up to the point the mistake was realized, and this participation tainted the jury." Id. The fourth circuit addressed the error as follows:

Substitution of the alternate for a properly-seated juror who became unable to sit, even after deliberations had begun, would be a valid course of action if the trial court ordered the jurors to begin deliberations anew with the alternate juror. La.C.Cr.P. art. 789, provides in part that alternate jurors "shall replace jurors who become unable to perform or disqualified from performing their duties", and that if a court replaces a seated juror with an alternate juror after deliberations have begun, the court "shall order the jury to begin deliberations anew ." [Emphasis added.]
The presumption of prejudice as a result of an unauthorized communication, contact, or tampering directly or indirectly by a nonjuror with a juror during trial is not conclusive, but the burden rests heavily upon the State to establish, after notice to and hearing of the defendant, that such contact with the juror was harmless to the defendant. State v. Bibb , 626 So.2d 913 (La.App. 5 Cir.1993), writ denied , 93-3127 (La. 9/16/94), 642 So.2d 188, citing Remmer v. United States , 347 U.S. 227, 229, 74 S.Ct. 450, 451, 98 L.Ed. 654 (1954) ; State v. Marchand , 362 So.2d 1090, 1092 (La.1978). The State must show that the outside influence was not prejudicial. Id.
In State v. Howard , 573 So.2d 481 (La.1991), the alternate juror participated in the jury's deliberation, although he did not participate in the vote. The defendant was convicted by a margin of 10-2. In a per curiam opinion, the Supreme Court stated: "The alternate juror's participation in the jury deliberations (as opposed to the alternate juror's mere presence in the jury room) constituted an extraneous influence on the jury. Evidence of this participation established a prima facie case of prejudice to the defendant." The Supreme Court reversed the defendant's conviction and remanded the case for further proceedings.
In State v. Duplissey , 550 So.2d 590 (La.1989), the Louisiana Court held that an unauthorized communication to the jury by the bailiff was presumed to be prejudicial when it was about a matter pending before the trial court. The bailiff communicated with the jurors concerning the proper manner for the jurors to conduct deliberations where one juror could not read or write. The Supreme Court found that the State did not show that the unauthorized communication was not prejudicial. The conviction and sentence were reversed, and the case was remanded for a new trial.
In the present case, the incorrect juror who was seated was a juror who was excused by the State. When the defendant moved for a mistrial, the State argued that there was no prejudice to the defendant because the juror had been excused by the State and was acceptable to the defense. Defense counsel, however, pointed out that he did not have an opportunity to object to that prospective juror because the State had already excused her.
The record does not indicate how long after the jury retired that it discovered the discrepancy in the verdict slips. The minute entry indicates only that the jury retired at 4:30 p.m. and returned with a verdict at 5:20 p.m. It does not reflect that a juror was replaced. The record does not show that the incorrectly seated juror did not participate in the deliberations until the error was found. The outside influence of the incorrectly seated juror on the jury is presumed to establish a prima facie case of prejudice to the defendant. However, the State may rebut the presumption by showing the defendant was not harmed. Under the circumstances, the State failed to meet its burden of proving that there was no outside influence of the incorrect juror on the jury during deliberations, and that any outside influence was not prejudicial to the defendant.
Further, when the incorrect juror was replaced by the alternate juror, the record does not establish that the trial court ordered the jury to begin the deliberations anew as mandated by La.C.Cr.P. art. 789. The only reference in the trial transcript is the statement by the court to the sheriff that he was to replace Ms. Brown with the alternate juror, and once the alternate juror was in place, "then you can tell the jurors to commence deliberations."
Accordingly, the defendant's conviction and sentence are reversed. The case is remanded for a new trial.

Id. at 143-44.

Unlike Clark , the instant case does not involve any unauthorized communication with the jury as Mr. Briscoe was properly chosen as a juror and became unable to continue to serve only as a result of an illness. According to the record, Ms. Thomas did not participate in deliberations until she was sworn in as a juror. Thus, this case is distinguishable from Clark in that the only error that occurred in the present case was the trial court's failure to instruct the jurors to begin deliberations anew. Further, the error in the present case has not been directly raised on appeal, and no motion for mistrial was made in the trial court.

While we can find no case where this error has been recognized as an error patent, this court has, however, addressed a comparable error patent in the trial court's failure to sequester the jury. In State v. Breaux , 08-1061, pp. 8-9 (La.App. 3 Cir. 4/1/09), 6 So.3d 982, 988-89, this court stated:

Louisiana Code of Criminal Procedure Article 791(B) provides, "[i]n capital cases, after each juror is sworn he shall be sequestered, unless the state and the defense have jointly moved that the jury not be sequestered." A review of the record does not indicate whether the trial court sequestered the jury or whether the parties moved to not have the jury sequestered. However, Defendant did not object at trial for failure to sequester, and he did not assign this issue on appeal. Nevertheless, this court has recognized this error as an error patent and applied the harmless error analysis. [ State v. Schrader , 518 So.2d 1024 (La.1988) ]; [ State v. Marcantel , 98-825 (La.App. 3 Cir. 12/22/99), 756 So.2d 366 ]; State v. D.T. , 08-814 (La.App. 3 Cir. 12/11/08), 998 So.2d 1258.
As noted above, the:
[P]resumption of prejudice for "capital cases" does not apply to a "capital case" where the defendant never faced the prospect of the death penalty and where counsel failed to press the point in the trial court, or object to the lack of sequestration. In the absence of actual prejudice, this right to sequestration is waived.
Schrader , 518 So.2d at 1037. See also , Marcantel , 756 So.2d 366.
In this case, the death penalty could not be imposed, and the State did not seek it. Additionally, Defendant fails to assign this error in his appeal, and he fails to allege or prove any prejudice suffered by this possible error. Accordingly, we conclude that this error is harmless.

Likewise, Defendant in the present case did not assert any objection as to the alternate juror in the trial court, does not assign any such issue on appeal, and does not allege any prejudice resulting from the issue. Further, we find no prejudice to Defendant here. The minutes of court from May 11, 2018, reflect that the jury retired to deliberate at 6:02 p.m. and that at 6:10 p.m. the court was advised that primary juror Briscoe "fell ill, began to vomit, could not continue with deliberations, and has requested to be excused" which request was granted. The trial court thereafter swore alternate juror Thomas in and sent her to deliberate with the remaining jurors, also at 6:10 p.m. Thus, the original jury had only been in the jury room to begin deliberations for a total of eight minutes during which time juror Briscoe was ill, vomiting, and could not continue. Alternate juror Thomas was not in the jury room participating during those eight minutes. At 7:26 p.m. the jury returned its verdict of not guilty of counts one and two, and guilty of count three, simple escape, and count four, transactions involving proceeds from drug offenses.

We find that any error that occurred by the failure to instruct the jury to begin deliberations anew to be harmless error. This court has previously determined that the improper replacement of a primary juror with an alternate juror, for reasons unrelated to illness, disability, or death, was structural in nature and not subject to a harmless error analysis. In the present case, the trial court properly allowed the replacement of the primary juror for severe illness, which prohibited him from deliberating. The record further shows only a lapse of eight minutes between the original jury's withdrawal to deliberate and the replacement of the juror. It is equally clear that the alternate juror had not previously participated in deliberations, and there was no objection by either the State or Defendant.

Sentencing

In addition, we find that the trial court applied the wrong version of La.R.S. 15:529.1 when sentencing Defendant. The crimes for which Defendant was convicted occurred in 2014. The trial court, in sentencing here, applied the habitual offender statute as amended by 2017 La. Acts No. 257. The amendment provided that the change "shall have prospective application only to offenders whose convictions became final on or after November 1, 2017."Id. § 2. In State v. Purvis , 17-1013 (La.App. 3 Cir. 4/18/18), 244 So.3d 496 and State v. Williams , 17-1753 (La. 6/15/18), 245 So.3d 1042 (per curiam), the new version of the statute as amended in 2017 was applied to sentences enhanced for crimes occurring before 2017 as convictions not yet final after the effective date of the new law. However, effective August 1, 2018, the legislature amended the habitual offender statute to specifically state that the habitual offender penalty provision in effect on the commission date of the offense being enhanced is the penalty provision that must be applied. La.R.S. 15:529.1(K). In a recent case, the second circuit found the 2018 amendment was a curative provision. State v. Edden , 52,288 (La.App. 2 Cir. 11/14/18), 259 So.3d 1196. Additionally, the second circuit stated:

Because the 2018 amendments are procedural and this decision is being decided after August 1, 2018, we find that Edden was sentenced under the proper habitual offender law in effect in 2014, the date of the underlying offense.

Id. 1202.

Both the second and first circuits have found the 2018 amendment effectively abrogated State v. Purvis , 244 So.3d 496 and State v. Williams , 245 So.3d 1042. In State v. Floyd , 52,183, p. 7 (La.App. 2 Cir. 8/15/18), 254 So.3d 38, 43, the court stated "the legislature clearly stated its intent to diminish the penalties for certain habitual offenders, but equally clearly stated its intent not to reopen or relitigate cases that arose before the effective date" and that "jurisprudence also holds that the version of the habitual offender law in effect at the time of the crime is the version that applies; amended provisions apply only to offenses committed after their effective dates." Consequently, despite the 2017 ameliorative changes to the habitual offender statute, the first and second circuits have applied the habitual offender penalty provision in effect when the offense was committed, as directed by the 2018 amendment and the Legislative mandate to do so. We agree that the version of La.R.S. 15:529.1 at the time of the commission of the offenses, February 19 and 20, 2014, applies to Defendant's convictions and sentences.

For the reasons specified herein, we vacate the sentences imposed and remand to the trial court with instructions to resentence Defendant, applying the version of the law at the time of the offense being subject to sentence enhancement herein.

Assignment of Error No. 1 : Challenge for Cause

In his first assignment of error, Defendant alleges the trial court erred when it denied his challenge for cause of juror Amber Monk. He contends the trial court abused its discretion by denying the challenge because of Ms. Monk's "past and present connections to law enforcement and trial witnesses."

[ Louisiana Code of Criminal Procedure Article] 800(A) requires an objection at the time of the ruling, which denies a challenge for cause, in order to preserve the claim for appellate review. Article 800(A) also mandates that the nature of the objection and the grounds therefor be stated at the time of the objection. With respect to that provision, this court has made clear:
Our law is also settled that an objection need not be raised by incantation. "It is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take, or of his objections to the action of the court, and the grounds therefor." C.Cr.P. 841 ; State v. Boutte , 384 So.2d 773 (La. 1980). The requirement that objection be raised contemporaneously is not meant to be inflexible, but is designed "to promote judicial efficiency and to insure fair play." State v. Lee , 346 So.2d 682, 684 (La. 1977). Article 800 should not be read to differ in this respect from Article 841.
State v. Vanderpool , 493 So.2d 574, 575 (La. 1986).

State v. Clark , 12-508, p. 99 (La. 12/19/16), 220 So.3d 583, 663, cert. granted, judgment vacated on other grounds , --- U.S. ----, 138 S.Ct. 2671, 201 L.Ed.2d 1066 (2018).

The Clark court found the defendant could not assign error to the denial of a challenge for cause as he failed to lodge a contemporaneous objection to the trial court's denial. Likewise, in State v. Anderson , 06-2987, p. 28 (La. 9/9/08), 996 So.2d 973, 996, cert. denied , 556 U.S. 1165, 129 S.Ct. 1906, 173 L.Ed.2d 1057 (2009), our supreme court cited La.Code Crim.P. art. 800 and stated, "A defendant must object at the time of the ruling on the refusal to sustain a challenge for cause of a prospective juror."

However, this court has not always followed that rule. In State v. Queen , 17-599 (La.App. 3 Cir. 1/4/18), 237 So.3d 547, writ denied , 18-211 (La. 11/20/18), 257 So.3d 186, this court determined that a defendant's failure to object to the denial of challenges for cause did not prohibit review of the issue on appeal. This court quoted State v. Pinion , 06-2346, p. 10 (La. 10/26/07), 968 So.2d 131, 136, noting, "In jury selection, counsel satisfies the requirements of Louisiana's contemporaneous objection rule by stating his grounds for a cause challenge and then by removing the juror with one of his remaining peremptory challenges when the court declines to excuse the juror for cause." Queen , 237 So.3d at 563.

Our supreme court has not consistently determined whether a party must lodge an objection to the denial of a challenge for cause in order to preserve the issue for appeal. Thus, while we could follow Clark , 220 So.3d 583, and Anderson , 996 So.2d 973, and hold that Defendant here may not complain of Ms. Monk's presence on the jury because he did not specifically object to the trial court's denial of his challenge for cause, we choose instead to follow the directive in Pinion , 968 So.2d 131, and review the denial of the challenge for cause. Although counsel did not lodge an objection, counsel did note his reasons for his challenge for cause of juror Monk and, thereafter, exercised a peremptory challenge when the challenge for cause was denied.

A party may challenge a juror for cause on grounds that he "is not impartial" or that a "relationship, whether by blood, marriage, employment, friendship, or enmity between the juror and the defendant, the person injured by the offense, the district attorney, or defense counsel, is such that it is reasonable to conclude that it would influence the juror in arriving at a verdict[.]" La.Code Crim.P. art. 797(2) and (3).

A challenge for cause should be granted even when a prospective juror declares his ability to remain impartial if the juror's responses, as a whole, reveal facts from which bias, prejudice, or inability to render judgment according to law may be reasonably inferred. State v. Hallal , 557 So.2d 1388, 1389-90 (La. 1990). Prejudice is presumed when a challenge for cause is denied erroneously by a trial court and the defendant ultimately exhausts his peremptory challenges. State v. Robertson , 92-2660, pp. 3-4 (La. 1/14/94), 630 So.2d 1278, 1280 (citing State v. Ross , 623 So.2d 643, 644 (La. 1993) ).

Clark , 220 So.3d at 663 (footnote omitted).

A trial judge is vested with broad discretion in ruling on challenges for cause, and such a ruling is subject to reversal only when a review of the entire voir dire reveals the judge abused his discretion. Robertson , 630 So.2d at 1281. The trial judge's refusal to excuse a prospective juror on the ground he is not impartial is not an abuse of discretion where, after further inquiry or instruction (frequently called "rehabilitation"), the prospective juror has demonstrated a willingness and ability to decide the case impartially according to the law and the evidence. Id.

State v. Dotson , 16-473, p. 5 (La. 10/18/17), 234 So.3d 34, 39.

"In summary, where all peremptory challenges have been used ... a defendant need only demonstrate the erroneous denial of a challenge for cause to establish reversible error warranting reversal of a conviction and sentence." Id. at 38.

Clearly, La. C.Cr.P. art. 797(2) does not require that a prospective juror state with absolute certainty that he/she cannot be impartial in order to be removed for cause. However, in the absence of such a statement, the trial court's denial of a challenge for cause will not be reversed if, on review of the entire voir dire examination, the prospective juror demonstrates a willingness and ability to decide the case impartially according to the law and evidence. [State v. ] Passman , 345 So.2d [874] at 880 [ (La. 1977) ]. Reversal is appropriate only where it appears, upon review of the voir dire examination as a whole, that the trial judge's exercise of that discretion has been arbitrary or unreasonable, resulting in prejudice to the accused. Id. ; see [State v. ] Dorsey , 10-0216 at 28 [ (La. 9/7/11) ], 74 So.3d [603] at 625 ; State v. Lee , 93-2810 (La. 5/23/94), 637 So.2d 102, 108. This standard of review is utilized "because the trial judge has the benefit of seeing the facial expressions and hearing the vocal intonations of the members of the jury venire as they respond to questions by the parties' attorneys." Lee , 93-2810 at 9, 637 So.2d at 108. "Such expressions and intonations are not readily apparent at the appellate level where review is based on a cold record." Id. As noted in State v. Miller , 99-0192 (La. 9/6/00), 776 So.2d 396, because of the "complicated and oftentimes daunting" task faced by a trial court in deciding "challenges for cause of prospective jurors who give equivocal ... responses during voir dire ," "an appellate court should accord great deference to the [trial] court's ruling on a challenge for cause, which is necessarily based, in part, on the court's personal observations during questioning." Id. , 99-0192 at 14, 776 So.2d at 405-06.

Dotson , 234 So.3d at 45.

The Dotson court found that the trial court's determination of the juror's competency was not arbitrary or unreasonable and did not result in the "prejudicial injury of the defendant in obtaining a fair and impartial trial." Id. Thus, the appellate court erred by reversing the trial court's denial of the challenge for cause.

According to Clark , 220 So.3d 583, a party is limited on appeal to arguing the grounds he stated in his challenge for cause. At trial, the Clark defendant failed to argue a potential juror's "unspecified familial relationship to law enforcement officers was a basis for challenging her[.]" Id. at 667. Thus, he did not properly preserve that argument for appeal and was limited on appeal to the concerns he had expressed at trial.

Here, Defendant's counsel expressed concern about Ms. Monk. There and in further colloquy with the trial judge and the State's counsel, that concern addressed Ms. Monk's friendship with Brandon Johnson, of the Oakdale Police Department, who testified at trial, with Johnson's wife, and with their family. However, on appeal, Defendant further complains of Ms. Monk's association to law enforcement in addition to her friendship with the Johnsons. As per the rational set forth in Clark , 220 So.3d 583, Defendant did not preserve any argument about Ms. Monk's association with law enforcement at trial. Thus, this court will consider only Defendant's argument about Ms. Monk's friendship with the Johnsons in determining whether the trial court erred in denying his challenge for cause concerning her.

During voir dire , Ms. Monk said she and Detective Johnson were good friends, and she and Detective Johnson's wife were best friends. Ms. Monk stated that she was able to separate that friendship, listen to the evidence, apply the facts to the evidence, and give Defendant a fair and impartial trial. She stated she would not give his testimony any more credit than anyone else's or "take [his] side just because of what he says." She considered herself "a fair person."

Ms. Monk had known Detective Johnson's wife about six years at the time of trial; they were best friends. She considered Mrs. Johnson more like a sister, more like family than best friends. Ms. Monk did not think her feelings about Mrs. Johnson, her family, or Detective Johnson would affect her decision making.

The trial court found Ms. Monk could be fair and impartial and denied Defendant's challenge for cause. Defense counsel stated no objection to that decision. Defense counsel did not initially use a peremptory challenge on Ms. Monk and thereafter exercised two more peremptory challenges, before he used one on Ms. Monk, and he used one more from that venire group before additional potential jurors were questioned. Both of his remaining peremptory challenges were exercised against potential jurors called from the last venire group. Defendant has not identified any other juror for which he would have used a peremptory challenge had he not used the challenge to exclude Ms. Monk.

Prospective jurors' associations with law enforcement agencies or personnel require careful scrutiny by the trial judge.
State v. Ford , 489 So.2d 1250, 1259 (La.1986), vacated on other grounds , 479 U.S. 1077, 107 S.Ct. 1272, 94 L.Ed.2d 133 (1987), on remand , 503 So.2d 1009 (La.1987). If bias or prejudice may be reasonably attributed to the relationship, a juror should be excused for cause. State v. Lewis , 391 So.2d 1156 (La.1980).

State v. Alexander , 620 So.2d 1166, 1167 (La.1993) (per curiam).

Ms. Monk never expressed any doubt and never wavered about her ability to be a fair and impartial juror. She never expressed any bias or prejudice. Defense counsel never brought out any way that Ms. Monk's relationship with the Johnson family would impact her jury service. Ms. Monk maintained she could be fair and impartial, and Defendant failed to show she could not. Accordingly, we find that the trial court did not err by denying Defendant's cause challenge concerning Ms. Monk.

Assignment of Error No. 2: Ineffective Assistance of Counsel

Defendant next contends, should this court find review of the denial of the challenge for cause of Amber Monk is precluded by counsel's failure to object on all grounds and for failure to object to the denial of the challenge for cause, counsel's failure constitutes ineffective assistance of counsel. This assignment is rendered moot by our finding that the trial court did not err in its denial of the challenge for cause as to juror Amber Monk. To the extent that our determination may raise any additional claim of ineffective assistance of counsel, such is more appropriately addressed in an application for post-conviction relief, where an evidentiary hearing can be conducted in the trial court. State in the Interest of A.B. , 09-870 (La.App. 3 Cir. 12/9/09), 25 So.3d 1012.

Assignment of Error No. 3 : Reconsideration of Sentence

Defendant contends the trial court erred when it denied Defendant's request for reconsideration of his sentence as untimely because it was filed thirty days after sentencing. Having previously vacated the sentences imposed on Defendant and remanding for resentencing, with instructions, this assignment of error is rendered moot.

DECREE

For the reasons set forth herein, we affirm the convictions of Defendant, Prince Record, but vacate the sentences imposed, and remand to the trial court for resentencing to apply the provisions of La.R.S. 15:529.1 in effect at the time of the commission of the offense.

CONVICTIONS AFFIRMED, SENTENCES VACATED, AND REMANDED FOR RESENTENCING

      See State v. Tennors , 05-538 (La.App. 3 Cir. 2/15/06), 923 So.2d 823.

      The habitual offender statute in effect at the time Defendant committed the offenses for which he was adjudicated a third habitual offender provided, in pertinent part:
      (3) If the third felony is such that upon a first conviction, the offender would be punishable by imprisonment for any term less than his natural life then:
      (a) The person shall be sentenced to imprisonment for 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; or
      (b) If the third felony and the two prior felonies are felonies defined as a crime of violence under R.S. 14:2(B), a sex offense as defined in R.S. 15:540 et seq. when the victim is under the age of eighteen at the time of commission of the offense, or as a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for ten years or more, or any other crimes punishable by imprisonment for twelve years or more, or any combination of such crimes, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence.
      Under this penalty provision, Defendant's sentencing range for simple escape, third habitual offender, was a minimum of 3.3 years imprisonment and a maximum of ten years imprisonment. La.R.S. 14:110(B)(4). Thus, Defendant's sentence of 2.5 years for simple escape, third habitual offender, would be illegally lenient. Applying this penalty provision to the offense of a transaction involving drug proceeds, third habitual offender, Defendant would have faced a mandatory life sentence - both the sentence being enhanced (transaction involving drug proceeds) and the two prior felonies (possession with the intent to distribute cocaine committed on January 30, 2007 and possession with the intent to distribute cocaine committed on May 11, 2010) were violations of the Uniform Controlled Dangerous Substances Law punishable by ten years or more. Thus, under the habitual offender penalty provision in effect at the time Defendant committed a transaction involving drug proceeds, Defendant's sentence of 10 years would be illegally lenient.

      Under the amended version, Defendant's sentence for simple escape, third habitual offender, is subject to a minimum term of imprisonment of 2.5 years and a maximum term of imprisonment of 5 years. Thus, Defendant's sentence of 2.5 years is legal. As for Defendant's sentence for a transaction involving drug proceeds, third habitual offender, the November 1, 2017 amendment drastically reduced Defendant's sentencing exposure by removing persons with a current and prior felony conviction under the Uniform Controlled Dangerous Substance law from the group of persons subject to a life sentence. Under the amended version, Defendant's sentence for a transaction involving drug proceeds, third habitual offender, is subject to a minimum term of imprisonment of five years and a maximum term of imprisonment of 20 years. Thus, Defendant's sentence of 10 years for a transaction involving drug proceeds, third habitual offender, is a legal sentence under the November 2017 amendment.


author: LILJEBERG, J.

text:
    STATE of Louisiana v. Timothy P. ROUSSEL
    NO. 18-KA-585
    Court of Appeal of Louisiana, Fifth Circuit.
    March 06, 2019
    COUNSEL FOR PLAINTIFF/APPELLANT, STATE OF LOUISIANA, Honorable Ricky L. Babin, Lindsey D. Manda, Donald D. Candell, Gonzales, Charles S. Long, Robin C. O'Bannon, New Orleans
    COUNSEL FOR DEFENDANT/APPELLEE, TIMOTHY P. ROUSSEL, Ralph Capitelli, New Orleans, Brian J. Capitelli, Justine Geiger
    Panel composed of Judges Marc E. Johnson, Stephen J. Windhorst, and Hans J. Liljeberg
   LILJEBERG, J.

The State of Louisiana appeals the trial court's judgment granting defendant Timothy P. Roussel's motion to recuse St. James Parish District Attorney Ricky Babin. We find the trial court erred by denying the parties an evidentiary hearing. Therefore, we vacate the trial court's judgment granting defendant's motion to recuse District Attorney Babin and remand for an evidentiary hearing.

FACTUAL AND PROCEDURAL BACKGROUND

On September 28, 2016, a St. James Parish grand jury indicted defendant with six counts of malfeasance in office in violation of La. R.S. 14:134. The indictment states that, in his capacity as the St. James Parish President, defendant committed six counts of malfeasance in office when he improperly utilized St. James Parish resources for the benefit of a private business and individuals in violation of La. Const. Art. 7 § 14 and La. R.S. 42:1461. In Count 1, the indictment states defendant "gave/donated/loaned" a gas line, meter and labor costs to a local business without a contract "for the payment of the gas line, meter and labor costs, for the cost of the gas, or the use of or transportation of gas through parish lines." Count 2 alleges that defendant authorized St. James Parish to pay $9,100.00 to drive 24 piles on private property. In Counts 3, 4 and 5, respectively, the State alleges that defendant authorized Blaise Gravois, St. James Parish Director of Operations and Public Works, to use public employees and equipment on private properties to remove a shed (Count 3), demolish a mobile home (Count 4) and remove a playhouse and debris (Count 5). Finally, in Count 6, the State alleges that defendant authorized the use of public employees and public equipment to enhance and/or improve private property for the sole benefit of the private property owner at a cost to St. James Parish in the amount of $25,000.00. The indictment alleges that the work provided by the Parish in each of these instances served no legitimate public purpose.

Defendant was arraigned on November 21, 2016, and pleaded not guilty. On that same date, defendant filed his first motion to recuse District Attorney Babin. Defendant argued recusal was mandated pursuant to La. C.Cr.P. art 680(1) because the District Attorney's conduct demonstrated his "personal interest in the cause or grand jury proceeding which is in conflict with fair and impartial administration of justice." Defendant specifically alleged that District Attorney Babin served defendant with a grand jury subpoena relating to the charges at issue in this matter, just days after defendant refused to seek a supplemental pay request for the attorney assigned by the District Attorney's Office to serve as legal counsel to the St. James Parish Council and President. Defendant further alleged that he was involved in additional budget disputes with District Attorney Babin.

On the day of the August 21, 2017 hearing, defendant filed a supplemental memorandum in support of his motion to recuse. Defendant first noted the trial court overseeing the proceedings pending against Mr. Gravois dismissed the indictments against him due to a finding of improper conduct by Assistant District Attorney Mohon and the suppression of material evidence.

Defendant further argued District Attorney Babin had a conflict of interest due to his dual role as prosecutor in these proceedings and as the legal advisor to defendant in his capacity as the Parish President. Defendant noted District Attorney Babin recently recused his entire office from prosecuting the Ascension Parish President to avoid the appearance of conflict because several members of District Attorney Babin's staff contributed funds to that individual's campaign. Defendant argued the same policy should apply in his matter as three assistant district attorneys contributed to his campaign.

After hearing only oral argument, the trial court took the matter under advisement. On September 15, 2017, the trial judge denied the motion to recuse and explained in written reasons that defendant failed to prove by a preponderance of the evidence that District Attorney Babin had a personal interest in conflict with the fair and impartial administration of justice.

On February 2, 2018, defendant filed a Renewed Motion to Recuse the District Attorney's Office. Defendant reincorporated the arguments set forth in his first recusal motion. Defendant also asked the trial court to recuse District Attorney Babin for three additional reasons. Defendant first directed the trial court to this Court's findings regarding prosecutorial misconduct in State v. Gravois, 17-341 (La. App. 5 Cir. 12/13/17), 234 So.3d 1151, writs denied , 18-100 (La. 3/23/18), 239 So.3d 292 and 18-80 (3/23/18), 239 So.3d 298. Defendant also argued that he recently learned another assistant district attorney had a conflict of interest because he participated in parish council meetings as a legal advisor to the parish government, while simultaneously handling the grand jury investigation of defendant.

Finally, defendant argued the entire District Attorney's Office should be recused because two assistant district attorneys and potentially other employees in the District Attorney's Office, would be material witnesses. Defendant alleged that the attorneys both privately benefitted from the exact same type of parish services the State alleges were illegally provided in the malfeasance charges filed against defendant. Defendant argued the entire District Attorney's Office should be recused because District Attorney Babin failed to follow proper precautions to insulate the office from the recusal issues. Defendant further argued that recusing the entire District Attorney's Office would not present a hardship because the Louisiana Attorney General's Office was already serving as lead counsel in these proceedings.

At the hearing held on April 16, 2018, defendant notified the trial court that he intended to call several witnesses to testify regarding the issues raised in his motion to recuse. The trial judge ruled that he would not allow testimony and asked the attorneys to proceed with argument. After considering counsel's argument, the trial court granted defendant's renewed motion and recused the entire District Attorney's office. In its oral reasons, the trial court indicated it based its ruling on direction this Court provided in Gravois , supra , regarding conflicts of interest in the District Attorney's office:

... the Fifth Circuit again has given us some direction and they've gone over major concerns that they have regarding conflict of interest of the district attorney's office and the appearance of such. So the Court is going to grant the motion to recuse the District Attorney's office.

On April 17, 2018, the trial court issued written reasons for its decision to grant the recusal motion, again relying on this Court's ruling in Gravois , supra :

The Louisiana Fifth Circuit Court of Appeal has made it clear in Roussel's companion case, State v. Gravois , that a conflict of interest exists within the District Attorney's Office. See State v. Gravois, 17-341 (La. App. 5 Cir. 12/13/17), 234 So.3d 1151. (footnote omitted.)
Under the facts of Mr. Roussel's companion case, the Fifth Circuit found that the potential conflict of interest faced by Mr. Mohon is obvious. Based on the Fifth Circuit's ruling in Mr. Roussel's companion case, State v. Gravois , this Court finds a conflict of interest does, in fact, exist. Therefore, this Court granted the Defendant's Renewed Motion to Recuse the District Attorney.

The State appeals the trial court's judgment granting the motion to recuse pursuant to La. C.Cr.P. art. 912(B)(6).

DISCUSSION

On appeal, the State argues the trial court erred by granting defendant's motion to recuse the entire District Attorney's Office when defendant failed to produce any evidence in support of his motion and by relying on a record from a related case.

La. C.Cr.P. art. 680 provides the grounds for recusation of a district attorney as follows:

A district attorney shall be recused when he:
(1) Has a personal interest in the cause or grand jury proceeding which is in conflict with fair and impartial administration of justice;
(2) Is related to the party accused or to the party injured, or to the spouse of the accused or party injured, or to a party who is a focus of a grand jury investigation, to such an extent that it may appreciably influence him in the performance of the duties of his office; or
(3) Has been employed or consulted in the case as attorney for the defendant before his election or appointment as district attorney.

To prevail on a motion to recuse a district attorney, a defendant bears the burden of proving by a preponderance of the evidence that the district attorney has a personal interest that is in conflict with the fair and impartial administration of justice. State v. King , 06-2383 (La. 4/27/07), 956 So.2d 562, 565. The Louisiana Supreme Court has interpreted La. C.Cr.P. art. 680(1)"to embody a policy requiring a district attorney's recusal when the situation presented raises questions as to whether the district attorney's ability to fairly and impartially perform his duties has been impaired, even unconsciously and despite his earnest assertions to the contrary." Id. at 567. " La. C.Cr.P. art. 680(1) does not envision a subjective determination as to whether the district attorney would, in fact, be unfair. The article employs an objective decision as to whether a reasonable person would believe the facts at issue regarding the district attorney's personal interest in the cause would impair his ability to act fairly and impartially in conducting defendant's prosecution." Id.

In State v. Marcotte, 229 La. 539, 86 So.2d 186, 188 (La. 1956), the Louisiana Supreme Court determined it was improper for the trial judge to refuse to hear evidence on a motion to recuse a district attorney, when the allegations, if sustained by a preponderance of evidence, required recusal. Furthermore, in State v. Magee , 16-1674, p. 11 (La. App. 1 Cir. 6/13/17), 2017 WL 2558330, writ denied , 17-1226 (La. 10/27/17), 228 So.3d 1234, the appellate court found that because a defendant must prove that applicability of La. C.Cr.P. art. 680(1) by a preponderance of the evidence, it was improper for the trial court to grant a motion to recuse a district attorney based upon the contentions and allegations made by defense counsel without any specific evidence.

Defendant's recusal motion presents a unique and complex scenario involving allegations of District Attorney Babin's personal interest arising from alleged political vendettas, prosecutorial misconduct and conflicts of interest. In the present matter, the trial court did not allow defendant the opportunity to introduce any evidence to satisfy this burden. We understand the trial court's inclination to rely on findings rendered by this Court in Gravois , supra , considering the similarity of the charges pending against the defendants. However, Gravois involved a different defendant, different trial court, evidentiary record and different issues - two motions to quash the indictments filed against Mr. Gravois.

Considering the burden on defendant to prove the grounds for recusal by a preponderance of evidence, we vacate the trial court's judgment granting defendant's motion to recuse District Attorney Babin and remand the matter for an evidentiary hearing to allow both parties the opportunity to introduce evidence relevant to the recusal issues.

DECREE

Based on the foregoing, we vacate the trial court's judgment granting defendant's motion to recuse District Attorney Babin and remand this matter for an evidentiary hearing.

JUDGMENT VACATED; REMANDED FOR FURTHER PROCEEDINGS.

      On September 26, 2018, the grand jury also returned an indictment against Mr. Gravois, which included five counts of malfeasance in office in violation of La. R.S. 14:134, identical to Counts 1 through 5 charged against defendant. The District Attorney is prosecuting Mr. Gravois in separate proceedings before a different trial court.

      Pursuant to La. R.S. 16:2, the District Attorney serves as the legal advisor to the St. James Parish Council, Parish President and all parish departments, offices and agencies. The District Attorney appointed Assistant District Attorney Bruce Mohon to serve as the legal advisor in accordance with La. R.S. 16:2.

      The bill of indictment filed against defendant was signed by a representative of the Louisiana Attorney General's Office.

      The State also contends the trial court erred by finding a conflict of interest involving one assistant district attorney disqualifies the entire District Attorney's Office. Because we find that the trial court erred by denying an evidentiary hearing, we pretermit consideration of this assignment of error.