author: MADELINE JASMINE, Judge Pro Tempore.

text:
    ADVOCATE FINANCIAL, L.L.C. v. LONGENECKER & ASSOCIATES, LTD., a Law Corporation; Bernard, Cassisa, Elliot & Davis, a Professional Law Corporation; and Lafayette Insurance Company.
    No. 08-CA-490.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 25, 2008.
    Writ Denied Feb. 18, 2009.

      William J. Wegmann, Jr., Orr Adams, Jr., Wegmann & Adams, L.L.C., Mark C. Landry, Newman, Mathis, Brady, & Spe-dale, Metairie, Louisiana, for Defendant/Appellant.
    Andrew L. Kramer, Gary J. Elkins, Yvonne Chalker, Elkins, P.L.C., New Orleans, Louisiana, for Plaintiff/Appellee.
    Panel composed of Judges CLARENCE E. McMANUS, FREDERICKA HOMBERG WICKER, and MADELINE JASMINE.
   MADELINE JASMINE, Judge Pro Tempore.

| ^Appellant, Lafayette Insurance Company (Lafayette), appeals the grant of summary judgment in favor of plaintiff, Advocate Financial, L.L.C (Advocate). This suit arises out of a personal injury litigation, Pam Doran v. Lafayette Ins. Co. and House of Hubcaps. Advocate, a champerty lender who loaned money to Doran and her attorney, Robert L. Hackett, to finance this and other litigation, filed suit against Lafayette to enforce its rights under LSA-R.S. 10:9-412 after Lafayette tendered payment of litigation proceeds directly to Doran and her attorney, instead of paying Advocate after Advocate notified Lafayette’s litigation counsel that Doran and her attorney had assigned the proceeds of the litigation to Advocate.

For the following reasons, we affirm the judgment in favor of Advocate. Lafayette has also filed in this Court an Exception of No Cause of Action, which we also deny for the reasons below.

| :;On appeal, Lafayette assigns the following errors of the trial court:

1. The Trial Court erred in applying the non-uniform provisions of ■ R.S.10:9-411-412 of Louisiana’s Uniform Commercial Code-Secured to the transactions and judgment sued upon in this matter. La. R.S.10:9-109(d) provides the UCC does not apply to a transfer of an interest in or an assignment of a claim under a policy of insurance. R.S. 22:655(B)(i) gives an injured person a direct right of action against the liability insurer of a tortfeasor. This applies to both notices and to both the Doran indebtedness as well as to the Hack-ett indebtedness.
2. The Trial Court erred in finding that Lafayette Insurance Company was indebted to Robert Hackett et al in the Doran litigation. Advocate could have no greater rights against Lafayette than did Mr. Hackett. If Lafayette was not indebted to Mr. Hackett, then there would be nothing to seize.
3. The Trial Court erred in finding that a creditor’s attorney may provide “notification, authenticated by the debtor or the secured party.”
4. The Trial Court erred in finding that “notice” may be given to independent, litigation counsel rather than to a registered agent for service of process, to a director or officer of the corporation, or to the corporate offices and place of business.
5. The Trial Court erred in finding that the prerequisites for notice and authentication under R.S.10:9-411-412 had been properly met with respect to the Advocate-Do-ran indebtedness.
6. The Tidal Court erred in finding that the notice to an organization R.S.10:1-201, subsections 25, 26 and 27 (before amendment) had been properly met with respect to the Advocate-Doran indebtedness, viz., sent to litigation counsel.
7. The Trial Court erred in finding that the prerequisites for notice and authentication under R.S. 10:9-411-412 had been properly met with respect to the Advocate-Hack-ett indebtedness.
8. The Trial Court erred in finding that the prerequisites for notice had been met where the notice letter was sent with reference to “Robert L. Hackett” but the satisfaction of judgment check was made payable to “Pamela Doran and the Law Offices of Robert L. Hackett, LLC” a completely separate legal entity.
9. The Trial Court erred in finding that R.S.10:1-201, subsections 25, 26 and 27 (before amendment) had been properly met with respect to the Advocate-Hackett indebtedness.
|410- The Trial Court erred in failing to apply the defense of contributory and comparative negligence to the claim and all other defenses pleaded in the Answer, as well as the plea that Pamela Doran’s indebtedness has prescribed.
11. The Trial Court erred in granting the Motion for Summary Judgment, as there existed genuine issues of material fact, the existence or non-existence of which are essential to plaintiffs cause of action.

FACTS AND PERTINENT PROCEDURAL HISTORY

Pamela Doran was a client of attorney, Richard L. Hackett, whom Hackett represented on a contingency fee basis in her personal injury suit against Lafayette and its insured, House of Hubcaps, filed on January 26, 1996. During the course of Hackett’s representation of Doran, Hack-ett executed and delivered to Advocate two commercial guarantees of unlimited amount and security agreements. The first set, dated November 16, 1995, Hack-ett signed individually and as sole proprietor on behalf of Hackett and Associates, his law firm. Advocate’s security interests were perfected by the filing of a UCC-1 financing statement. On February 2, 1998, Hackett executed and delivered to Advocate the second commercial guaranty of unlimited amount, signed by Hackett individually and as sole proprietor on behalf of the Law Offices of Robert L. Hack-ett. Hackett secured his debt with Advocate by assigning his rights to his share of the proceeds in the Doran litigation to Advocate. On April 10, 2000, and on November 15, 2000, Hackett executed and delivered to Advocate promissory notes, which were admitted into the record.

Doran also borrowed money from Advocate. Doran’s indebtedness to Advocate was secured by a perfected security interest covering, among other things, all sums received by Doran in the Doran litigation, as evidenced by the |fipromissory note, client security agreement, and UCC-1 financing statement, which were admitted into the record.

The Doran litigation was tried to a jury September 9-11 of 2002, who reached a verdict in favor of Doran and awarded her money damages. Judgment was entered on November 12, 2002.

Shortly before trial, on September 6, 2002, Advocate’s counsel sent a letter, via certified mail, to Lafayette’s trial attorney in the Doran litigation, Geoffrey Longe-necker, notifying Lafayette of its perfected security interest in any sums tendered by Lafayette to Doran, specifically under LSA-R.S. 10:9-412. This letter was received by Lafayette’s attorney on September 11, 2002. Attached to it was Advocate’s documentation of the debt, including the UCC-1 filing statement.

On October 1, 2002, Lafayette, through its attorney Longenecker, issued a subpoena duces tecum and Notice of Deposition to Advocate for copies of “all notes, mortgages, liens, claims, checks, bills, medical records, medical bills, and any other document of whatsoever kind or nature with respect to Pamela R. Doran and the subject of the claim asserted by you in the attached correspondence or otherwise.”

On October 17, 2002, Advocate’s counsel sent another letter, via certified mail, to Mr. Longenecker as Lafayette’s attorney, notifying Lafayette of its perfected security interest in any sums tendered by Lafayette in the Doran litigation to Hackett. This letter was received by Lafayette’s attorney on October 19, 2002. It, also, included Advocate’s documentation of the debt.

| fiThe trial court’s judgment was appealed; appellate counsel for Lafayette was Howard B. Kaplan. This Court rendered a judgment on appeal on November 25, 2003.

On March 25, 2004, Lafayette tendered a check in the amount of $264,616.26 payable to “Pamela R. Doran and the Law Offices of Robert L. Hackett, L.L.C.” in satisfaction of the jury verdict in the Do-ran litigation.

On April 14, 2005, Advocate filed this suit against Lafayette Insurance Company. Judgment was entered in favor of Advocate on December 14, 2007. Written Reasons for Judgment were entered on January 30, 2008 This appeal followed.

ANALYSIS

As this Court recently stated in Muller v. Carrier Corp. 07-770 (La.App. 5 Cir. 4/15/08), 984 So.2d 883, 885:

Summary judgment will be granted if the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B). The party bringing the motion bears the burden of proof; however, where 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. LSA-C.C.P. art. 966(C)(2). Thereafter, if the adverse party fails to produce factual support sufficient to show that he will be able to meet his evidentiary burden of proof at trial, no issue of material fact exists and the moving party is entitled to summary judgment. Id. Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Pizani v. Progressive Ins. Co., 98-225 (La.App. 5 Cir. 9/16/98), 719 So.2d 1086. The decision as to the propriety of a grant of a Motion for Summary Judgment must be made with reference to the substantive law applicable to the case. 17Sun Belt Constructors, a Div. of MCC Constructors, Inc. v. T & R Dragline Service, Inc., 527 So.2d 350 (La.App. 5 Cir.1988).

The substantive law applicable to this case is LSA-R.S. 10:9-412, which states: § 9-412. Discharge of tortfeasor; notification and filing of assignment

(a) Discharge of tortfeasor. Subject to subsections (b) through (c), a person obligated on a tort claim may discharge its obligation by paying the debtor until, but not after, the person receives a notification, authenticated by the debtor or the secured party, that the amount due has been assigned and that payment is to be made to the secured party. After receipt of the notification, the person may discharge its obligation by paying the secured party and may not discharge the obligation by paying the debtor.
(b) When notification ineffective. Notification is ineffective under subsection (a) if it does not reasonably identify the rights assigned.
(c) Proof of security interest. If requested by the person obligated on the tort claim, a secured party shall seasonably furnish to the person reasonable proof that the assignment of the tort claim has been made. Unless the secured party complies, the person may discharge its obligation by paying the debtor, even if the person has received a notification under subsection (a).
(d)Enforcement. After notification, the secured party has the rights established under R.S. 13:3864 through 13:3868.

“When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.” LSA-C.C. art. 9. “The words of a law must be given their generally prevailing meaning.” LSA-C.C. art. 11.

Lafayette has filed an Exception of No Cause of Action in this Court, arguing first that LSA-R.S. 10:9-412 does not apply to a transfer of an interest in or an assignment of a claim under a policy of insurance. Second, Lafayette argues therein that Lafayette was never indebted to Haekett, or in the alternative, is only | ¡^indebted to Haekett for the amount of his fees in this litigation, which was not proved because the contingency fee contract was not introduced.

The Exception of No Cause of Action is designed to test the legal sufficiency of the petition by determining whether the plaintiff is afforded a remedy in law based on the facts alleged in the petition. Ackel v. Ackel, 97-70 (La.App. 5 Cir. 5/28/97), 696 So.2d 140 at 142. For the adjudication of the exception, the well-pleaded facts of the petition are accepted as true. No evidence may be introduced at any time to support or controvert the exception. Id.

It is clear' and undisputed that Lafayette is a “person obligated on a tort claim,” as per LSA-R.S. 10:9-412. It is also undisputed that Advocate is a secured party who notified Lafayette that Doran and Haekett, the debtors, had assigned their rights to the proceeds of this litigation to Advocate, as evidenced by the attachments to the notification letters. The arguments that Lafayette makes in the Exception are defenses to the action. Contrary factual assertions are considered defenses, which must be tried on the merits. Angelica v. Angelica, 608 So.2d 256 (La.App. 5 Cir. 1992). Accordingly, we deny the Exception. We note, however, that these arguments are also made in the appeal, and are discussed below.

Lafayette argues that material issues of fact remain in dispute, but fails to identify which facts. Our review of the record, furthermore, fails to support this contention.

First, Lafayette argues that the Trial Court erred in applying the nonuniform provisions of R.S.10:9^fll-412 of Louisiana’s Uniform Commercial Code-Secured to the transactions and judgment sued upon in this matter. Lafayette argues that La. R.S.10:9-109(d) provides the UCC does not apply to a transfer of an interest in or an assignment of a claim under a policy of insurance, but argues that R.S. 22:655(B)(i) gives an injured person a direct right of action against the liability Rinsurer of a tortfeasor. LSA-R.S. 10:9-412 states that “a person obligated on a tort claim may discharge its obligation. ...” Clearly, Lafayette was a person obligated on a tort claim. The statute does not limit its application to a “tortfea-sor.”

We find that this is not an assignment of a claim under an insurance policy. Doran and Hackett, as evidenced by the attachments to the “notification” letters sent by Advocate to Lafayette in September and October of 2002, assigned their rights to the proceeds of this lawsuit to Advocate. The fact that the proceeds were paid from an insurance policy issued by Lafayette to the tortfeasor does not make this an “assignment of a claim under a policy of insurance” or an assignment of “a tort claim by Pamela Doran against a tortfea-sor ....” We find that the assignment of the litigation’s proceeds was within the scope of this statute.

In its second Assignment of Error, Lafayette argues that the Trial Court erred in finding that Lafayette Insurance Company was indebted to Robert Hackett, et al in the Doran litigation. We disagree. Advocate points out that Lafayette, in the personal injury litigation, tendered its check to “Pamela R. Doran and the Law Offices of Robert L. Hackett, L.L.C.” jointly. This act recognized that the Law Offices of Robert L. Hackett, L.L.C. had a right to a portion of those proceeds of the litigation paid by Lafayette; hence, Lafayette was indebted to Hackett. Further, the guaranty that Hackett signed in 1998 was signed by Hackett individually and as sole proprietor of the Law Offices of Robert L. Hackett.

Lafayette argues that the amount of the proceeds due to Hackett (and thus assignable by him) is unproven, and the matter must be remanded for calculation. We disagree. Hackett, et al clearly assigned his share of the proceeds, not a particular dollar amount, of this lawsuit to Advocate, as security for various loans he accepted and the loan he guaranteed for Doran. The parties accept that he was hohired by Doran under a contingency fee contract, noting only that the terms of it are not in the record. As such, it is agreed that Hackett, et al was entitled to some percentage of the $264,616.26; it is undisputed that he assigned the whole of that to Advocate. No further calculations are necessary in this suit. If Doran and Hack-ett disagree with how Advocate applies these amounts to their debts, that is a matter between Advocate, Doran and Hackett, not Lafayette.

Lafayette next argues that the Trial Court erred in finding that a creditor’s attorney may provide “notification, authenticated by the debtor or the secured party.” Lafayette argues that Advocate and not its attorney should have provided the appropriate notice to Lafayette.

The trial court, however, disagreed, finding “it is a black-letter tenet of our law of mandate that when a client engages an attorney to perform legal services, a principal-agent relationship is established, in which the attorney acts as agent for the client.” The trial court concluded that Advocate’s counsel had the authority to act on Advocate’s behalf in this matter. We find no error in this conclusion. There is nothing in LSA-R.S. 10:9-412 that prohibits an attorney from acting on behalf of the secured party. Further, Lafayette argues that the notice is not “authenticated” by Advocate. We find that the notice was properly authenticated under this statute. LSA-R.S. 10:9 — 102(a)(7)(A) defines “authenticate” as “to sign.” We find that Advocate’s attorney’s signature on the notification letter fulfills this requirement.

Lafayette’s Assignments of Error 4, 5, 6, 7, 8, and 9 all deal with the adequacy of the notice of the assignment that Advocate sent to Lafayette. Lafayette argues that the trial Court erred in finding that notice may be given to independent litigation counsel rather than to a registered agent for service of process, to a director or officer of the corporation, or to the corporate offices and place of business.

_Jv¡Though this statute contains no definition of notice, notice is defined in Louisiana’s Commercial Laws, LSA-R.S. 10:1-201(25), (26), and (27), as follows:

(25) A person has “notice” of a fact when
(a) he has actual knowledge of it; or
(b) he has received a notice or notification of it; or
(c) from all the facts and circumstances known to him at the time in question he has reason to know that it exists. A person “knows” or has “knowledge” of a fact when he has actual knowledge of it.

(26) A person “notifies” or “gives” a notice or notification to another by taking such steps as may be reasonably required to inform the other in ordinary course whether or not such other actually comes to know of it. A person “receives” a notice or notification when

(a) it comes to his attention; or
(b) it is duly delivered at the place of business through which the contract was made or at any other place held out by him as the place for receipt of such communications.
(27) Notice, knowledge, or a notice or notification received by an organization is effective for a particular transaction from the time when it is brought to the attention of the individual conducting that transaction, and in any event from the time when it would have been brought to his attention if the organization had exercised due diligence. An organization exercises due diligence if it maintains reasonable routines for communicating significant information to the person conducting the transaction and there is reasonable compliance with the routines. Due diligence does not require an individual acting for the organization to communicate information unless such communication is part of his regular duties or unless he has reason to know of the transaction and that the transaction would be materially affected by the information.

LSA-R.S. 10:9-112 required that the person obligated on the tort claim receive notification that the amount due has been assigned and that payment is to be made to the secured party. Lafayette argues that litigation counsel was the improper person to send notice to, that notice should have gone to or been served upon the corporate agent for service of process.

_JjjWe agree with the trial court that a plain reading of LSA-R.S. 10:9-412 does not require service of the notification on the Lafayette’s registered agent for service of process. The notice definitions of LSA-R.S. 10:1-201(25), (26), and (27) are broad. We find nothing in LSA-R.S. 10:9-412 or 10:9-109 that says notification cannot be effectively given to an insurance company’s litigation counsel. Lafayette argues that Longenecker’s representation of Lafayette was limited in scope and did not include receiving notifications under LSA-R.S. 10:9-412. We find Lafayette’s argument unconvincing. This notification concerned a matter pertaining to this litigation specifically. This opinion holds that under the facts of this case, litigation counsel is a proper person to receive notice; it should not be construed to hold that litigation counsel is the only proper person who could be notified.

Further, it is undisputed that Lafayette had actual notice of the assignment, as evidenced by the subpoena duces tecum issued by Lafayette’s counsel following receipt of the notification letters, and as evidenced by the Bruce Holmes’s affidavit attached to the Motion for New Trial.

Next, Lafayette argues that the court erred in finding that the notice and authentication requirements had been met for both the Doran assignment and the Hackett assignment, and should have analyzed them separately. We find no merit to this assignment. In each case, Advocate’s attorney employed the same method to notify Lafayette.

In its tenth Assignment of Error, Lafayette argues that the Trial Court erred in failing to apply the defense of contributory and comparative negligence to the claim and all other defenses pleaded in the Answer, as well as the plea that Pamela Doran’s indebtedness has prescribed. Specifically, Lafayette argues the “lengthy |lshistory of inaction and delays on the part of Advocate Financial in enforcing its rights against both Ms. Doran and Mr. Hackett,.... ”

A plain reading of LSA-R.S. 10:9-412 shows that use of the remedy under that statute does not require the secured party to initiate or exhaust other legal remedies that may be available to it. “A security interest in rights under a judgment is perfected by filing a financing statement without the additional necessity of filing a notice in the court records or intervening in any judicial proceedings in which the judgment was rendered.” Further, Advocate’s cause of action arose under this statute when Lafayette failed to pay Advocate after receiving notification of the assignment in favor of Advocate. Advocate’s cause of action against Lafayette is independent of any other causes of action Advocate may have against its debtors.

Accordingly, for the reasons assigned above, the trial court’s judgment is affirmed.

AFFIRMED.

      . 24th JDC No. 488-819; 03-849 (La.App. 5 Cir. 11/25/03), 862 So.2d 204.

      . This case appears to be a matter of first impression, no other published case at this time having interpreted LSA-R.S. 10:9-412.

      . Whether this notice was legally effective under LSA-R.S. 10:9-412 is the subject of most of Lafayette's Assignments of Error, discussed below.

      . See footnote 1.

      .In brief, Lafayette seems to assert a prescription argument, and claims that it filed an Exception of Prescription in this Court. However, no such Exception was filed. Furthermore, we find that this suit does not sound in tort. Accordingly, the prescriptive period is not one year.

      . Lafayette's Reply Brief and Supplemental Memorandum, page 1.

      . The notice provisions found in R.S. 10:1-201 were redesignated as R.S. 10:1-202 in 2006.

      . Stuckey, James A., Louisiana's Non-Uniform Variations in U.C.C. Chapter 9, 62 La. L.Rev.793, 811 (2002).


source: Caselaw Access Project

author: TERRI F. LOVE, Judge. BELSOME, J.,

license: Public Domain

text:
    STATE of Louisiana v. Bryant K. BRASTFIELD.
    No. 2008-KA-0560.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 10, 2008.

      Keva Landi’um-Johnson, District Attorney, Graham L. Bosworth, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    John Harvey Craft, Louisiana Appellate Project, New Orleans, LA, for Bryant K. Brastfield.
    (Court composed of Judge TERRI F. LOVE, Judge DAVID S. GORBATY, Judge ROLAND L. BELSOME).
   TERRI F. LOVE, Judge.

| ^his appeal arises from the district court’s denial of the defendant’s objections to the state’s use of peremptory challenges. We find that the district court did not err and affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Bryant Brastfield (“Mr. Brastfield”) was charged with possession of cocaine. His first trial ended in a mistrial because the jury was unable to reach a verdict. While empaneling a second jury, the state used peremptory challenges to strike five African-American jurors. Mr. Brastfield objected, stating that the state was attempting to create an all white jury. The state presented allegedly race-neutral reasons for the use of the peremptory challenges. The second jury found him guilty as charged. Mr. Brastfield was sentenced to serve five years at hard labor. The district court granted his motion for appeal and the motion to reconsider his sentence was denied.

ERRORS PATENT

A review of the record reveals no errors patent.

BATSON CHALLENGE

Mr. Brastfield asserts that the district court erred in denying objections to the |.¿state’s use of peremptory challenges that resulted in the exclusion of all African-American venire members in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

Prior to trial, Mr. Brastfield contended that the state had intentionally utilized its peremptory challenges to preclude African Americans from serving as jurors and had impermissibly obtained an all white jury. After listening to the state’s reasons for using its peremptory challenges, the trial court disagreed.

Under Batson, a defendant objecting to a peremptory challenge must first establish a prima facie case of discrimination by showing facts and relevant circumstances which raise an inference that the prosecutor used the challenges to exclude potential jurors because of race. 476 U.S. at 96, 106 S.Ct. 1712. The burden then shifts to the prosecutor to provide a race-neutral explanation for the challenges. Batson, 476 U.S. at 97, 106 S.Ct. 1712. The explanation need not be persuasive, or even plausible, and “[u]nless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered may be deemed race-neutral.” Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995), quoting Hernandez v. Neto York, 500 U.S. 352, 360, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991). The trial court then must decide whether the defendant has proved purposeful racial discrimination. State v. Collier, 553 So.2d 815, 818 (La.1989). The ultimate burden of persuasion remains on the defendant to prove purposeful discrimination. Id.; Hernandez, 500 U.S. at 359, 111 S.Ct. 1859.

“The proper inquiry in the final stage of the Batson analysis is whether the defendant’s proof, when weighed against the prosecutor’s proffered race-neutral reasons, is sufficient to persuade the trial court that such discriminatory intent is present.” State v. Hobley, 98-2460, pp. 19-20 (La.12/15/99), 752 So.2d 771, 783. The trial judge’s determination of purposeful discrimination rests largely on credibility evaluations, and these findings are entitled to great deference by the previewing court. Batson, 476 U.S. at 99 n. 21, 106 S.Ct. 1712.

Mr. Brastfield made the Batson objection and the state proffered race-neutral reasons for its peremptory challenges. Once this was done, the issue of a prima facie case of discrimination became moot. See State v. Green, 94-0887 (La.5/22/95), 655 So.2d 272, 288 citing Hernandez, 500 U.S. at 359, 111 S.Ct. 1859. As such, the issue becomes whether the appellant’s proof, when weighed against the prosecutor’s proffered race-neutral reasons, is sufficient to persuade the trial court that such discriminatory intent was present. Green, 94-0887, 655 So.2d at 290.

The prosecutor in this case dismissed five African-American jurors. Jurors 2 and 11 were dismissed because they rendered a not guilty verdict in another case. The prosecutor excused these jurors out of a belief that they would be somehow biased against the prosecution, and this justification is plausible. The same is true regarding the state’s dismissal of Juror 9. Juror 9 was picked for a jury by the same prosecutor in a separate case the week before Mr. Brastfield’s trial, where a mistrial was declared. The prosecutor specifically stated that Juror 9 was dismissed out of concern for any confusion and bias. Lastly, Jurors 7 and 12 were dismissed because they had never served on a jury. The state also noted that Juror 12 appeared disinterested. “Because the trial record cannot indicate the interest level of the venire members during voir dire, this Court should defer to the trial court’s determination of whether this reason was legitimate and related to the particulars of the case.” State v. Knighten, 609 So.2d 950, 955 (La.App. 4 Cir.1992).

The only facts or circumstances supporting an inference that the state |4exercised its strikes in a racially discriminatory manner offered by Mr. Brastfield is that Juror 17, who is white, also indicated that he had never served on a jury, yet was selected as a juror for this case. Mr. Brastfield also noted that two jurors, who were not challenged by the state, numbers 14 and 18, had only civil jury experience. In response, the prosecutor noted that Juror 17 was an attorney and that he never dismissed an attorney. Regarding Jurors 14 and 18, the state maintained that it sought people who had previously served on a jury.

Mr. Brastfield relies upon Snyder v. Louisiana, — U.S.-, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008), in which the state dismissed a juror, Mr. Brooks, because it felt that he would be overly concerned with being absent from his student teaching assignment and that he might have been motivated to find the defendant guilty of a lesser included offense to obviate the need for a penalty phase. The court found the state’s reasons implausible, noting that Mr. Brooks was one of more than fifty venire members expressing concern that jury service would unduly interfere with their lives, some even more than Mr. Brooks, and those jurors were not dismissed by the state. More importantly, the state dismissed him despite the fact that court personnel contacted the university and had obtained reassurances that it would work with Mr. Brooks so that he could complete his student teaching assignment satisfactorily.

Snyder is clearly distinguishable from the case sub judice because the state uniformly dismissed jurors because they either never served on a jury or rendered a not guilty verdict. The one exception is Juror 17, who was not dismissed because | she was an attorney.

As the party alleging that he has been the victim of intentional discrimination, Mr. Brastfield carried the ultimate burden of persuasion. In this case, Mr. Brast-field’s proof, when weighed against the prosecutor’s proffered race-neutral reasons for exercising the challenges, was not sufficient to prove the existence of discriminatory intent. Therefore, the district court did not abuse its discretion in finding that the prosecutor did not strike these jurors because of their race.

DECREE

For the above mentioned reasons, we affirm the conviction and sentence. find that the district court did not err and

AFFIRMED.

BELSOME, J., concurs with reasons.

BELSOME, J.,

concurs with reasons.

| iWhile we must recognize and follow the mandates of Batson and its progeny, this writer finds the trend of catchphrases and code words with respect to juror challenges troubling. In a vacuum, the race-neutral explanations posed by the State in the instant case appear genuine. Considering the totality of the facts and circumstances, however, the sincerity of the State’s challenges is arguably questionable.

Notably, a recent law review article observed that while “demeanor-based challenges enjoy exceptional deference on appellate review, [ ] perhaps the inference of discrimination from pretext should outweigh demeanor-based deference.” Jury Selection—Batson Challenges, 122 Harv. L.Rev. 346, 351 (2008). The article submits that rather than providing clarity in the Batson jurisprudence, the Court’s holding in Snyder v. Louisiana, — U.S. -, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008), will simply encourage trial judges “who wish to insure against reversal [to] state for the record when they are persuaded by a juror’s demeanor,” because if the trial judge in Snyder had done so, “the [U.S. Supreme] Court could not have presumed that he impermissibly relied on the prosecutor’s pretextual explanation.” Id. at 354. Accordingly, the article maintains, the Snyder Court effectively circumvented more complex issues, such as “the appropriate way to balance a pretextual against a demeanor-based one, the broader problem of mixed and unconscious motivations, and the utility of peremptory strikes in general.” Id. at 350. ¡justification

By not clearly addressing such complex issues, the Court likewise omits a discussion of the possibility of an attorney’s unconscious bias, although the article notes that such bias might prove impracticable to identify or remedy. Id. at 352. The Court’s failure to recognize the prospect that jurors of different races might arrive at different conclusions actually protects a juror’s equal protection interest in the equal participation in the administration of law. Id. The article observes that the failure to acknowledge an attorney’s unconscious bias, however, “serves no similar constitutional interest.” Id.

Courts must not become complacent in reflexively accepting the rehearsed Batson language offered as justification for exercising peremptory challenges. Because the challenges raised by the State in this particular case did not rise to the level of specifically evidencing purposeful racial discrimination pursuant to the guidelines articulated in Batson and subsequent jurisprudence, I respectfully concur.

      . Juror 11 also rendered a guilty verdict in another case.

      . Juror 14 was challenged by the defense; juror 18 served.

      . Court personnel learned the information on Tuesday, and the state dismissed Mr. Brooks on Wednesday. Notably, after learning that his jury service would not interfere with his student teaching assignment, Mr. Brooks no longer expressed concern.


author: CHARLES R. JONES, Judge.

text:
    LONDON LIVERY, LTD. v. Michael BRINKS and Eugene Golizio.
    No. 2008-CA-0230.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 10, 2008.

      Jacques F. Bezou, Richard R. Ray, The Bezou Law Firm, Covington, LA, for London Livery, Ltd. and Alan B. Fisher.
    Salvador Anzelmo, Thomas Milliner, Brian J. Burke, Metairie, LA, for Defendants/Appellants.
    (Court composed of Judge CHARLES R. JONES, Judge TERRI F. LOVE, and Judge EDWIN A. LOMBARD).
   CHARLES R. JONES, Judge.

1 Appellants, Michael Brinks and Eugene Golizio, appeal the district court’s judgment denying their motion to dismiss on grounds of abandonment. For the reasons set forth below, we reverse and remand.

In 1997, the Appellee, London Livery, Ltd., initiated this action for defamation and unfair trade practices against the defendants, two of its former employees. The only issue before the Court at that time was whether London Livery’s action should be deemed abandoned pursuant to La. C.C.P. art. 561.

In their motion to dismiss on the grounds of abandonment, Appellants asserted that more than three years lapsed between December 9, 2002, and December 22, 2006, without any steps taken in the prosecution or defense of the claim. The record reflects the following: 1) December 9, 2002, London Livery filed a request for notice; 2) May 5, 2005, David Halpern enrolled as counsel of record for London Lively; and on 3) December 22, 2006, Reginald Laurent, enrolled as attorney of record and requested a status conference on behalf of London Livery.

The Appellants originally filed an ex parte motion to dismiss on grounds of abandonment in June of 2007. The motion to dismiss was denied on July 27, 2007. | gHowever, the district court’s clerk of court did not mail a notice of the order of denial until November 15, 2007. In the interim, the Appellants re-urged their motion to dismiss on September 6, 2007, and the matter was set for hearing on November 2, 2007. The district court denied the motion to dismiss from the bench. This timely devolutive appeal follows.

In their sole assignment of error, the Appellants assert that the district court erred in denying the motion to dismiss due to abandonment.

DISCUSSION

Whether an action has been abandoned is a question of law. Olavarrieta v. St. Pierre, 2004-1566, p. 3 (La.App. 4 Cir. 5/11/05), 902 So.2d 566, 568. This Court has held that with regard to abandonment actions pursuant to La. C.C.P. art. 561, the standard of review of the appellate court is simply to establish whether the lower court’s interpretive decision is correct. Escoffier v. City of Neiv Orleans, 2006-1005, p. 2 (La.App. 4 Cir. 4/11/07), 957 So.2d 216, 218.

An action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years. La. C.C.P. art. 561. In the present case, the only step that occurred between December 9, 2002, and December 22, 2006, was the May 5, 2005 motion to enroll as counsel of record filed on behalf of London Livery. However, as the Appellants correctly point out, it is well established that motions to withdraw, enroll or substitute counsel are not considered formal steps in the prosecution as contemplated by La. C.C.P. art. 561. Brumfield v. McElwee, 2007-0548, p. 2 (La.App. 4 Cir. 1/16/08), 976 So.2d 234, 237.

Since the May 5, 2005 motion to enroll cannot be considered a step in the prosecution or defense of an action, this date cannot be considered. The next filing | ;idate is December 22, 2006, wherein London Livery filed a motion to enroll counsel and a request for status conference. The time period between December 9, 2002, and December 22, 2006, is over three years. Because nothing was filed by either party within the legislatively prescribed period, the action is abandoned.

In opposition to the motion to dismiss, London Livery relies on the jurispru-dentially created exception to La. C.C.P. art. 561 concerning a defendant’s post-abandonment conduct. This exception holds that an otherwise abandoned cause of action may be ineligible for a claim of abandonment, either before or after the three-year period elapses, “when the defendant waives his right to assert abandonment by taking actions inconsistent with an intent to treat the case as abandoned.” Clark v. State Farm Mut. Auto. Ins. Co., 2000-3010, p. 7 (La.5/15/01), 785 So.2d 779, 785.

In May of 2007, Appellants filed a motion for extension of time to respond to plaintiffs first supplemental petition. The motion was denied on May 29, 2007. A second motion for extension of time filed by Appellants on September 10, 2007, was granted. London Livery maintains that the motions for extension of time created an exception to article 561, thereby serving as a waiver to Appellants’ right to plead abandonment.

Louisiana jurisprudence does recognize that certain actions taken by a defendant after the accrual of the abandonment period can constitute a waiver of the right to have a case dismissed for abandonment. Id.; Brown v. Michaels Stores, Inc., 2007-0772, p. 3 (LaApp. 5 Cir. 2/19/08), 980 So.2d 62, 64; Thibaut Oil Co., Inc. v. Holly, 2006-0313, p. 7 (La.App. 1 Cir. 2/14/07), 961 So.2d 1170, 1174; Slaughter v. Arco Chem. Co., 2005-0657 (La.App. 4 Cir. 4/26/06), 931 So.2d 387; In Re Succession of Wright, 37,670, p. 6 (La.App. 2 Cir. 9/24/03), 855 _|_ So.2d 926, 930. However, the waiver exception to article 561 has been applied only where, after the abandonment period has accrued, a defendant has taken steps that facilitated the judicial resolution of the dispute on the merits and were an expression of the defendant’s willingness or consent to achieve judicial resolution of the dispute. Satterthwaite v. Byais, 2005-0010, p. 4 (La.App. 1 Cir. 7/26/06), 943 So.2d 390, 393.

Addressing the abandonment exception, the Clark Court explained:

An inherent distinction has been noted between a plaintiffs acts in relation to abandonment and those of a defendant. Unlike a plaintiff whose post-abandonment actions cannot serve to revive an abandoned action, a defendant’s post-abandonment actions can serve to waive his right to plead abandonment. “Once abandonment has occurred, action by the plaintiff cannot breathe new life into the suit.” Maraist & Lemmon, supra § 10.4 at 243. “No ‘definite action’ by a plaintiff or inaction by a defendant after accrual of the [three-]year period can be construed as a waiver of abandonment by the defendant, although a defendant by ‘definite action’ may waive the abandonment.” Middleton, 526 So.2d at 860.

Clark, 2000-3010, at p. 15, 785 So.2d at 789. The Supreme Court in Clark further noted that the waiver analysis is consistent with the abandonment policy “dictating that courts consider substance over form” and that it is the “qualitative effect of the defendant’s conduct” that matters in waiver analysis, regardless of the form or formality that conduct may take. Id. at pp. 20-21, 785 So.2d at 792-93.

The following post-abandonment actions by a defendant have been found to constitute a waiver: Chevron Oil Co. v. Traigle, 436 So.2d 530 (La.1983) (submission of a case for decision); Bell v. Kreider, 2004-0594 (La.App. 5 Cir. 11/30/04), 890 So.2d 648 (filing an answer to a supplemental petition); Production Specialties v. Century Oil Tool Co., 602 So.2d 163 (La.App. 3 Cir.1992) (filing an answer and reconven-tional demand); Seagrave v. Dean, 98-1295 _|5_(La.App. 1 Cir. 7/6/99), 739 So.2d 923 (participation in a status conference and signing a case management schedule).

In the present case, Appellants argue that there is no basis to hold that their motion for extension of time in which to plead was a step in defense of the main demand. We agree.

Courts have generally held that a motion for an extension of time is not an article 561 step towards prosecution of a case because it is not deemed to be an action taken to hasten judgment. Campbell v. Hartford Ins. Co., 95-1484 (La.App. 3 Cir. 4/3/96), 671 So.2d 1133; Donald G. Lambert Contractor, Inc. v. State, 577 So.2d 341, 342 (La.App. 1 Cir.1991). Moreover, as the Supreme Court stated in Chevron, 436 So.2d at 532-33, a motion that grants to counsel the right to take steps, or to prepare to take steps, toward the prosecution or defense of a case, but does not itself hasten the matter to judgment, is not an article 561 “step.”

For the foregoing reasons, we find that London Livery’s action was abandoned due to the parties’ failure to take any step towards resolution of the dispute for a period of three years. Moreover, we conclude that Appellants’ motion for extension of time in which to plead did not serve as a waiver to the plea of abandonment under the jurisprudentially created exception to La. C.C.P. art. 561.

DECREE

The trial court erred in denying Michael Brinks’ and Eugene Golizio’s motion to dismiss on the grounds of abandonment. Accordingly, the judgment of the district court is reversed, and the matter is remanded for further proceedings consistent with this ruling.

REVERSED AND REMANDED.


author: GREG G. GUIDRY, Judge.

text:
    STATE of Louisiana v. Brandon JOHNSON.
    No. 08-KA-449.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 16, 2008.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District Parish of Jefferson, Terry M. Boudreaux, Andrea F. Long, Assistant District Attorneys, Gret-na, LA, for PlaintiffAppellee.
    Gwendolyn K. Brown, Attorney at Law, Louisiana Appellate, Baton Rouge, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and GREG G. GUIDRY.
   GREG G. GUIDRY, Judge.

1 ¿Defendant, Brandon Johnson, appeals from his guilty plea convictions for second degree kidnapping and armed robbery and his sentence on each offense to 15 years at hard labor, to be served without benefit of parole, probation or suspension of sentence and concurrently. For the reasons which follow, we affirm.

On June 23, 2006, the Jefferson Parish District Attorney’s Office charged the Defendant and a co-defendant, Ephraim G. Jenkins, with second degree kidnapping, a violation of La. R.S. 14:44.1, and in a second count with armed robbery with a firearm, in violation of La. R.S. 14:64 and La. R.S. 14:64.3. At his arraignment, the Defendant pled not guilty. The Defendant filed an omnibus |smotion that included a motion to suppress the confession, identification, and physical evidence.

On August 14, 2006, the Defendant withdrew his not guilty pleas on both counts, and pled guilty to second degree kidnapping and armed robbery. His attorney stated that the plea was being “entered under the Alford and Crosby cases.” After the Defendant waived sentencing delays, the trial judge sentenced the Defendant, as per the plea agreement, on each count to fifteen years at hard labor, to be served without benefit of parole, probation, or suspension of sentence and concurrently. The Defendant made an oral motion for appeal, followed by a timely written motion.

Because the Defendant pled guilty, there are no facts included in the record of this case. However, the bill of information does allege that, on May 13, 2005, the Defendant and co-defendant kidnapped Brian Deemer and robbed him while using a firearm.

At the outset we note that the Defendant has no right to appeal. A guilty plea under Crosby preserves for the Defendant the right to appeal any adverse pre-trial rulings specified at the time of the plea. The Defendant did not specify any rulings. The Supreme Court has held that a defendant’s failure to specify which pre-trial ruling he desires to contest on appeal may limit the scope of appellate review but does not necessarily preclude review altogether. State v. Joseph, 03-0315, pp. 1-2 (La.5/16/03), 847 So.2d 1196, 1196-97. “An appellate court should | ¿presume that the trial court permitted a Crosby reservation no broader than necessary to effectuate the underlying purpose of conditional guilty pleas, i.e., to preserve review of evidentiary rulings which ‘go to the heart of the prosecution’s case’ that a defendant would otherwise waive by entering an unqualified guilty plea.” Id. at 1-2, 847 So.2d at 1196-97. However, in this case, there were no pre-trial rulings. Thus, there was nothing to reserve for appellate review. State v. Gaspard, 01-1042 (La.App. 5 Cir. 5/29/02), 820 So.2d 1095.

It is well settled under both state and federal jurisprudence, an unqualified plea of guilty waives all non-jurisdictional defects occurring prior thereto, and precludes review thereof by appeal. State v. Crosby, 338 So.2d 584, 588 (La.1976). No jurisdictional defects have been asserted on appeal. Thus, based on the procedural posture of the case at the time the Defendant entered his plea, there was nothing reserved for appellate review and no ap-pealable issue asserted.

Furthermore, we note from the record that the Defendant did not object to the State’s failure to present a factual basis for the charged offenses during the plea proceedings or to the trial court’s acceptance or the plea without it. This Court has held that the defendant’s failure to object in such a case resulted in a waiver of review of the claim by this Court. State v. Sanders, 00-1369, p. 3 (La.App. 5 Cir. 2/28/01), 784 So.2d 19, 21. Therefore, we find the Defendant has no viable issues for appeal.

Nevertheless, having reviewed the case, we found no error in the acceptance of the guilty plea by the trial court without presentation of a factual basis by the prosecution. Although defense counsel stated that the plea was being entered under Alford and the Defendant “has not admitted that he is guilty,” neither defense counsel nor the Defendant asserted during the plea colloquy, or in brief here, that the Defendant was innocent of the crimes. This is essential for an Alford | golea. State v. Oman, 97-2089 (La.1/9/98), 704 So.2d 245 (per curiam). Thus we find, in accord with Orman, that, rather than an Alford plea, Defendant entered the equivalent of a nolo contendere plea which, unlike a plea accompanied by a claim of innocence, does not put the trial court on notice that it must ascertain a factual basis. A nolo contendere plea does not require the trial court to resolve the inherent conflict between the waiver of trial and a claim of innocence. Orman, 97-2089 at 1 (La.1/9/98), 704 So.2d at 245 (per curiam). For a nolo contendere plea to be valid, the trial judge only had to ensure that it was knowing and voluntary.

During the plea, the trial court advised the Defendant of his Boykin rights as well as his right to appeal and asked the Defendant if he understood he was giving up these rights by pleading guilty. The Defendant answered that he understood. The Defendant also answered that he was satisfied with his attorney’s representation and that he had not been promised anything in return for the plea. Further, considering that the sentencing exposure for armed robbery is 15 to 99 years at hard labor, without benefit of parole, probation or suspension of sentence, and five to 40 years at hard labor on the second degree kidnapping charge, we find the record supports the conclusion that the Defendant’s agreement to plead guilty for the imposed concurrent sentences of 15 years at hard labor without benefit, the minimum sentence allowed by law, was knowing and voluntary. Therefore, based on the record before us, we find no error in the trial court’s acceptance of the Defendant’s guilty plea.

ERROR PATENT DISCUSSION

The record was reviewed for errors patent, according to La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). The review reveals one error patent in this case.

| f;The sentencing hearing transcript indicates that the trial judge informed the Defendant that he had, “two years from the date that the sentence becomes final, to file post-conviction relief applications.” In addition, the defendant’s “Waiver of Constitutional Rights Plea of Guilty” form states, “any PosWConviction relief application must be filed within two (2) years of the date of this plea.

La.C.Cr.P. art. 930.8(A) states that a defendant has two years after the judgment of conviction and sentence has become final to file for post-conviction relief. This Court has previously held that the failure to accurately advise a defendant that the prescriptive period runs from the time his conviction and sentence become final renders the advisement incomplete. State v. Lauff, 06-717, p. 12 (La.App. 5 Cir.2007), 953 So.2d 813, 821. Therefore, we must remand the case to the district court to inform the Defendant of the correct prescriptive period for filing an application for post-conviction relief as set out in La.C.Cr.P. art. 930.8. The trial court is ordered to send appropriate written notice to the Defendant after the rendition of this Court’s opinion and to file written proof in the record that the Defendant received the notice. Id.

Accordingly, the Defendant’s guilty plea convictions, to second degree kidnapping and armed robbery, and his sentence on each count, to 15 years at hard labor, to be served without benefit of parole, probation or suspension of sentence and concurrently, are affirmed. The case is remanded to the district court to provide proof in the record of the Defendant’s receipt of appropriate notice of the prescriptive period for post-conviction relief as provided in La. C.Cr.P. art. 930.8.

AFFIRMED AND REMANDED.

      . The original bill of information in this matter was filed on August 3, 2005, in case number 05-4699, naming only the Defendant. That case was subsequently dismissed and then refiled under the current number, 06-3308, naming both defendants. The pleadings in 05-4699 were transferred to the current case.

      . The recoi'd does not show that the trial court ever ruled on Defendant's motions. Defendant waived all pending motions when he pled guilty without raising the issue that the motions had not yet been ruled on. See State v. Fletcher, 02-707 (La.App. 5 Cir. 12/30/02), 836 So.2d 557, 559, writ denied, 03-409 (La. 10/10/03), 855 So.2d 334.

      . North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970); State v. Crosby, 338 So.2d 584 (La. 1976).

      . Although the trial judge allowed the Defendant to enter his guilty pleas under Crosby, the Defendant did not challenge any specific adverse ruling by the trial court and, in fact, there were none.


text:
    STATE of Louisiana v. Melvin LEMON.
    No. 08-KA-619.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 16, 2008.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Anne Wallis, Appellate Counsel, Vince Paciera, Trial Counsel, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SUSAN M. CHEHARDY, and GREG G. GUIDRY.
   GREG G. GUIDRY, Judge.

^Defendant, Melvin Lemon, appeals from his guilty plea conviction to possession of cocaine and his sentence as a fourth offender to 35 years at hard labor to be served without benefit of probation or suspension of sentence. For the reasons which follow, we affirm and remand.

On March 21, 2007, the Jefferson Parish District Attorney filed a bill of information charging the Defendant with possession of cocaine, a violation of La. R.S. 40:967 C. The Defendant pled not guilty at his arraignment.

On November 15, 2007, the trial court held a hearing on the Defendant’s motions to suppress evidence and statement. On defense counsel’s request, the court ordered that the motions remain open pending trial.

|;iAt the hearing Sergeant David Short of the Jefferson Parish Sheriffs Office testified that on the afternoon of March 8, 2007, he was working in a high crime area known for drug trafficking. He was standing on Ames Boulevard watching traffic and looking for “violators.” At 4:12 p.m., Sergeant Short saw a car with a Louisiana license plate and a Texas state inspection sticker. The officer recognized this as a traffic violation, since a car registered in Louisiana is required to have a current Louisiana brake tag.

Sergeant Short testified that he and Deputy Al West got into their police vehicle and performed a traffic stop. The car the officers stopped had three occupants. Sergeant Short issued a traffic citation to the driver. The vehicle’s t-top roof was open, and the officers could see inside the car. Sergeant Short testified that the Defendant, a back seat passenger, had a substance lying at his feet in plain view that appeared consistent with crack cocaine. The officers ordered all of the occupants to get out of the car, and they retrieved the suspicious substance. According to Sergeant Short, the Defendant blurted out, “That’s mine. I’ll take my lick.”

Sergeant Short advised the Defendant of his Miranda rights. The Defendant was transported to the Jefferson Parish Correctional Center. Sergeant Short again advised the Defendant of his rights, and reviewed a rights of arrestee form with him. The Defendant waived his rights and agreed to answer Sergeant Short’s questions. The officer typed the Defendant’s responses and showed them to him at the conclusion of the interview. The Defendant signed the statement. The written statement shows the Defendant admitted the crack cocaine in the car was his. He had purchased it earlier and had not had an opportunity to smoke it.

14Following the hearing, on December 4, 2007, the Defendant withdrew his plea of not guilty and entered a guilty plea under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). The court then sentenced the Defendant to five years at hard labor.

On December 6, 2007, the State filed a habitual offender bill of information charging the Defendant as a fourth felony offender. The Defendant was arraigned on the habitual offender bill, and he plead not guilty.

The trial court held a habitual offender hearing on April 14, 2008, and found the Defendant to be a fourth offender. On April 28, 2008, the court vacated the Defendant’s original sentence and imposed an enhanced sentence of 35 years at hard labor without benefit of probation or suspension of sentence. The Defendant made a timely oral motion for appeal. He also filed a written motion for appeal, which the trial court granted. On appeal, the Defendant assigns two errors.

ASSIGNMENT OF ERROR NUMBER ONE

He argues that the State failed to meet its burden of proof as to one of the predicate convictions alleged in the habitual offender bill of information. Specifically, he argues his 1994 guilty plea to aggravated battery, in case # 370-971, was not proven to be knowingly and voluntarily entered.

The State responds that the Defendant did not challenge the validity of that guilty plea in the district court, and therefore did not preserve the issue for appeal. The State points out that at the hearing on the multiple bill, the Defendant only contested the proof relating to the April 23, 2001, guilty plea for unauthorized entry of an inhabited dwelling, in case # 00-1858.

IsUpon review, we find that the Defendant did not contest the validity of the 1994 guilty plea to aggravated battery that he refers to by name in brief on appeal. A defendant must make a contemporaneous oral objection or file a written response to a habitual offender bill in order to preserve for appeal the issue of sufficiency of proof of a prior conviction based on a guilty plea. State v. Richmond, 98-1015, p. 7 (La.App. 5 Cir. 3/10/99), 734 So.2d 33, 37. However, we find he did contest the validity of the 2001 plea in district court, and the transcript reference in his appellate brief is to this guilty plea proceeding. Therefore, we will address the validity of that plea since it was the only one preserved for review by timely objection and, arguably, briefed on appeal.

The Defendant testified at the hearing regarding his understanding of his 2001 guilty plea, stating that he declined to provide written agreement in the blanks next to a few of the questions on the waiver of rights form because he did not undei'stand them. But when cross examined, he explained that what he didn’t understand was that the guilty plea could be used to support a multiple offender charge.

To prove a defendant is a habitual offender, the State must initially prove the prior felony convictions, and that the defendant is the same person who was convicted of the prior felonies. State v. Shelton, 621 So.2d 769, 779-80 (La.1993); State v. Thomas, 06-654, p. 7 (La.App. 5 Cir. 1/16/07), 951 So.2d 372, 378, writ denied, 07-0464 (La.11/21/07), 967 So.2d 1153. The latter can be established through the use of expert testimony that the defendant’s fingerprints match those from the prior convictions. Thomas, 06-654 at 7, 951 So.2d at 378. When the State relies on a prior conviction that is based on a guilty plea to prove | fithe defendant’s habitual offender status and the defendant denies the habitual offender bill, the State’s burden of proof is governed by State v. Shelton, 621 So.2d 769, 779-80 (La.1993).

Under Shelton, it is initially the State’s burden to prove 1) the existence of the prior guilty pleas, and 2) that the defendant was represented by counsel when the pleas were taken. If the State satisfies that burden, the burden shifts to the defendant to produce affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea. If the defendant makes such showing, the burden of proving the constitutionality of the plea shifts to the State. This burden is met if the State produces a “perfect” transcript of the guilty plea, i.e., one which reflects a colloquy in which the judge informed the defendant of, and the defendant waived, his right to trial by jury, his privilege against self-incrimination, and his right of confrontation. Id., 621 So.2d 779-780.

If the State introduces anything less than a “perfect” transcript, such as a guilty plea form, a minute entry, an “imperfect” transcript, or any combination thereof, the judge must weigh the evidence submitted by each party to determine whether the State has met its burden of proving the prior guilty plea was “informed and voluntary, and made with an articulated waiver of the three Boykin rights.” Shelton, 621 So.2d at 780.

In this case, the State alleged in the habitual offender bill of information that the Defendant had three prior felony convictions: 1) unauthorized entry of an inhabited dwelling (La. R.S. 14:62.3) in 2001 in case number 00-4858 in Jefferson Parish; 2) possession of cocaine (La. R.S. 40:967 C) in 1996 in case number 384-454 in Orleans Parish; and 3) aggravated battery (La. R.S. 14:34) in 1994 in case number 370-971 in Orleans Parish. Evidence of the existence of each guilty plea Jjconviction and the fact that the Defendant was represented by counsel was introduced into evidence without objection.

The State also met its burden of proving identity at the habitual offender hearing. The State introduced a card containing fingerprints taken from Defendant in court that day and a card containing fingerprints taken from Defendant at the time of his arrest for the instant offense. The State also offered the testimony of Deputy Ais-cha Prudhomme, a latent fingerprint analyst with the Jefferson Parish Sheriffs Office, to the effect that the fingerprints on these cards matched and they matched those introduced with the submitted proof of the three prior guilty plea convictions offered in support of the habitual offender bill of information.

Once the State met its initial burden under Shelton, the burden shifted to the Defendant to establish an infringement of his rights or a procedural irregularity in the taking of the challenged plea. The Defendant testified at the habitual offender regarding his guilty plea to unauthorized entry of an inhabited dwelling in 2001. The Defendant testified that the trial judge went over his rights with him, and he signed the waiver of rights form filed into evidence with the other proof of that conviction. But he testified that he did not understand all of the specified rights. Specifically, he stated that he did not understand that this conviction could be used to enhance a future felony sentence. Defense counsel asked the Defendant about the following questions from page two of the waiver of rights form:

2. Do you understand the nature of the charges against you and the possible penalties? _
3. (Where applicable) Do you understand the enhanced penalties in the event of a second or subsequent conviction of the same crime? _
|s4. (a) Do you understand that the plea of guilty is your decision and that you have the right to plead not guilty or to maintain your plea of not guilty?
(b) Do you understand that no one can force you to plead guilty?
(c) Has anyone used any force, intimidation, coercion or promise of reward against either you or any member of your family for the purpose of making or forcing you to plead guilty?

Although each of the questions is followed by a blank, there is only one handwritten response: a “yes” to question two. Defendant testified that he did not respond to the other questions in that section because he did not understand them. There is a blank for the Defendant’s initials following that set of questions, but the Defendant did not enter his initials in the blank.

Defense counsel argued the guilty plea form for the 2001 conviction was “faulty” on its face, since the Defendant did not complete the section regarding whether he was coerced to plead guilty.

The State responded, noting that on cross examination the Defendant clarified that what he did not understand was the fact that the conviction could possibly be used to enhance future felony sentences. The prosecutor argued that this claim by the Defendant was negated by the fact that he had been multiple billed prior to his 2001 guilty plea, as well as following that offense. Due to his familiarity with the criminal justice system, the State argued that the Defendant’s testimony that he did not understand that the 2001 conviction could be used to enhance a future felony sentence was self-serving and untrue. The prosecutor argued that the State had proven Defendant to be a fourth felony offender.

The trial court found that the State met its burden of proof that the Defendant had been sufficiently “Boykinized,” and he had properly waived his rights before | ¡[entering the three predicate guilty pleas. The judge noted that the evidence established the Defendant’s familiarity with multiple offender proceedings before he entered the 2001 plea, and thus it discredited the Defendant’s contention that he did not know the plea could be used in a multiple offender adjudication.

In reviewing the matter, we find that the first page of the guilty plea form lists the three Boykin rights, with the Defendant’s acknowledgement that he understood those rights by writing “yes” in the blank that' followed them. The form is signed by the Defendant, his attorney, and the trial judge. The Defendant’s signature appears at the end of the guilty plea form after the following passage:

BY THE DEFENDANT:

I, as the defendant in this case, acknowledge: (1) that the foregoing has been read to me; (2) that my attorney and the trial judge have explained the nature of the crime to which I am pleading guilty; (3) that the trial judge has explained to me all of my rights and what rights I am waiving or giving up, as listed above, and that I have been given every opportunity by the trial judge to ask questions in open court about anything I do not understand and about all the consequences regarding my plea of guilty. I am completely satisfied with the explanation of my attorney and the trial judge.
I FURTHER ACKNOWLEDGE THAT MY ACT OF PLEADING GUILTY IS A KNOWING, INTELLIGENT, FREE AND VOLUNTARY ACT ON MY PART. I know that no one can force me to plead guilty. I know that by pleading guilty I admit I committed the said crime. I know this plea of guilty is more than a confession. It is also a conviction. Nothing further remains except for the toial judge to give judgment and give me my punishment. I waive all delays for sentencing and acknowledge I am ready for sentencing. (Emphasis in the original.)

The minute entry concerning this plea states that the Defendant was informed by the trial court of his right to a trial by judge or jury, his right to confront his accusers and his right not to incriminate himself and that- the Defendant waived those rights. The trial court was not required to advise the Defendant of the penalties for subsequent offenses prior to accepting his guilty plea. State v. Guzman, 99-1753 (La.5/16/00), 769 So.2d 1158. Where the omission does not affect substantial rights of the | inaccused, it does not rise to the level of reversible error. Id. Moreover, the Defendant’s testimony, that he did not know the conviction could be used to enhance the penalty for a subsequent offense, as found by the trial judge, lacks credibility. His criminal record, with two habitual offender enhancements, clearly indicates his familiarity with the proceedings and contradicts his testimony. Therefore, we find that despite the Defendant’s testimony that he did not understand that the conviction could be used to support a multiple offender charge, the State met its burden of proving the Defendant’s 2001 guilty plea was made with a knowing waiver of the three Boykin rights and was informed and voluntary. There was no error in the trial court finding that the State adequately proved that the Defendant was a fourth felony offender.

ASSIGNMENT OF ERROR NUMBER TWO

By this assignment of error the Defendant argues that his 35-year habitual offender sentence is constitutionally excessive because it is disproportionate to the underlying offense of cocaine possession. The State responds that the sentence is well within the statutory limits and does not represent abuse of the trial court’s sentencing discretion.

Defendant objected to the sentence below, but did not state specific grounds for his objection. The Defendant also failed to file a motion to reconsider sentence in accordance with La.C.Cr.P. art. 881.1. Thus, he is entitled only to a review for constitutional excessiveness. State v. Warmack, 07-311, p. 7 (La.App. 5 Cir. 11/27/07), 973 So.2d 104, 108.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is considered excessive, even when it is within the applicable statutory range, if it is grossly disproportionate to the offense or imposes needless and purposeless pain and lu suffering. State v. Wickem, 99-1261, p. 10 (La.App. 5 Cir. 4/12/00), 759 So.2d 961, 968, writ denied, 00-1371 (La.2/16/01), 785 So.2d 839.

In reviewing a sentence for ex-cessiveness, the appellate court must consider the punishment and the crime in light of the harm to society and gauge whether the penalty is so disproportionate as to shock our sense of justice. The trial judge is afforded wide discretion in determining sentence, and the reviewing court will not set aside a sentence for excessiveness absent a clear abuse of that discretion. State v. Brown, 04-230, p. 4 (La. App. 5 Cir. 7/27/04), 880 So.2d 899, 902. The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. Id. In reviewing a sentence for abuse of discretion, three factors are generally 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, pp. 15-16 (La.App. 5 Cir. 12/27/07), 975 So.2d 646, 656.

Defendant’s sentencing range as a fourth offender was 20 years to life imprisonment. La. R.S. 15:529.1 A(l)(c)(i). The trial court did not give reasons for sentencing, but the judge did comment, “I don’t think that [defendant’s] prior offenses are so heinous that he deserves the maximum sentence.”

The record shows the Defendant has a history of cocaine offenses and has at least five prior convictions. One of the predicate convictions alleged in the habitual offender bill was for possession of cocaine in 1996. There was also evidence that Defendant had an earlier conviction for possession of cocaine, in district court case number 89-5484. Defendant also had a history of violent offenses. One of the predicate convictions in his habitual offender bill was for aggravated battery.

| ^Defendant’s sentence is near the lower end of the sentencing range for a fourth offender and is not outside of the normal range of sentences imposed under similar facts and circumstances. In State v. Williams, 02-1016 (La.App. 5 Cir. 2/25/03), 841 So.2d 986, writ denied, 03-2205 (La.8/20/04), 882 So.2d 571, this Court upheld a 30-year habitual offender sentence on a fourth offender whose underlying conviction was for possession of cocaine. In that case the defendant also had prior felony drug convictions and a conviction for a violent felony. Id., 02-1016 at 16, 841 So.2d at 936.

Based on the foregoing, we find the Defendant’s sentence to 35 years at hard labor, under the circumstances presented, is not grossly disproportionate to the offense and does not impose needless and purposeless pain and suffering. We find no merit in the Defendant’s contention that the sentence is constitutionally excessive.

ERROR PATENT DISCUSSION

The Defendant requests an error patent review. This Court routinely reviews the record for errors patent in accordance with La.C.Cr.P. art. 920 regardless of whether a defendant makes such a request. State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990).

There is a discrepancy between the habitual offender commitment and the transcript. The commitment reflects that defendant “pleaded GUILTY” to the habitual offender bill, but in fact a hearing was held wherein the Defendant took issue with the State’s proof of his prior convictions. Therefore, the case must be remanded to the trial court to amend the habitual offender commitment to conform to the transcript.

Accordingly, for the foregoing reasons we affirm the Defendant’s conviction for possession of cocaine and his sentence as a fourth felony offender to 35 years imprisonment at hard labor and remand the case to district court for amendment of the habitual offender commitment to conform to the transcript.

AFFIRMED AND REMANDED.

      . The record does not show that the trial court ever ruled on Defendant’s motions. Defendant waived all pending motions when he pled guilty without raising the issue that the motions had not yet been ruled on. See State v. Fletcher, 02-707 (La.App. 5 Cir. 12/30/02), 836 So.2d 557, 559, writ denied, 03-409 (La. 10/10/03), 855 So.2d 334.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694(1966).

      . The minute entry reflects that the trial court found the Defendant to be a fourth felony offender. Furthermore, although the trial judge does not say the words "fourth” offender, he does state that the three prior offenses as well as the instant offense have been adequately proven, clearly implying that he is finding the Defendant to be a fourth offender. Additionally, at sentencing, reference was made to the Defendant as a “quad offender.”

      . The State must also prove that the prior convictions fall within the ten-year cleansing period prescribed by La. R.S. 15:529.1 C. State v. Guillara, 04-899, p. 13 (La.App. 5 Cir. 4/26/05), 902 So.2d 1061, 1072, writ denied, 05-1381 (La. 1/13/06), 920 So.2d 233.

      . Mention was made of some illegible writing on the bottom of the guilty plea form for the 1996 possession of cocaine conviction. No issues regarding that conviction have been raised in this appeal.

      . In his brief, defense counsel incorrectly re-fere to this testimony as pertaining to defendant's 1994 guilty plea to aggravated battery.

      . See State v. Anderson, 30,060, p. 4 (La.App. 2 Cir. 10/29/97), 702 So.2d 40, 42, in which the Second Circuit held that past records of drug offenses weigh heavily in the decision to uphold sentences imposed in contraband possession cases. Anderson did not involve a habitual offender sentence.


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    CARO PROPERTIES (A), LLC v. CITY OF GRETNA.
    No. 08-CA-248.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 16, 2008.

      Thomas A. Robichaux, Attorney at Law, New Orleans, LA, for Plaintiff/Appellant.
    Roger W. Kitchens, Attorney at Law, New Orleans, LA, for Plaintiff/Appellant.
    Mickey S. de Laup, Steven D. Enright, Jr., Attorneys at Law, Metairie, LA, for Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

_|¿Caro Properties (A), LLC (“Caro”) filed this lawsuit against the City of Gret-na (“City”) alleging that the City unlawfully destroyed a building without notice in violation of La. R.S. 33:4762 and the 14th Amendment to the United States Constitution. In response, the City filed an exception of no cause of action alleging Caro had assigned its right to bring suit to Essex Insurance Company (“Essex”) and was therefore not a proper plaintiff to the suit. The exception was granted and Caro filed the instant appeal. For the foregoing reasons, we affirm.

The relevant facts appear not to be in dispute. Caro formerly owned an apartment building in the Oakvale subdivision of Gretna, Louisiana with a municipal address of 1601 LeBouef Street. The apartment complex was significantly damaged during Hurricane Katrina in August 2005, and at some point shortly thereafter it was demolished by the City. It is not clear from the record precisely when the demolition occurred, though Caro alleges that it occurred lnwithin a month of Hurricane Katrina’s landfall. Caro admitted that the damage to the complex was significant, but maintained that it was committed to repairing and rebuilding the property.

Caro eventually filed a claim for the damage with Essex, which was the primary insurer of the apartment complex. Caro alleged that the building was valued at approximately $5 million, though no evidence of the value of the building was inti’oduced into the record. Essex paid Caro $650,000, which represented the policy limit on the building. On March 1, 2006, In Suk Caro, in her capacity as principal of Caro, signed a document entitled “Subrogation Agreement and Assignment of Rights” (the “Agreement”). The most relevant part of the Agreement states as follows:

In connection with the payment of the policy limits from the claim involving Hurricane Katrina on August 29, 2005, [Caro agrees] to assign any rights [it has] to recover from any responsible party including those responsible or at fault in connection with the demolition of the building, to and in favor of Essex Insurance Company.

The Agreement was also signed by Ronald Fornerette and Thomas Walker in his capacity as principal of Leontine Oliver Company, Inc. Both Fornerette and Leon-tine Oliver Company were named insureds on the Essex policy which provided coverage for the LeBouef Street building. No representative from Essex signed the Agreement.

Caro filed its petition on September 22, 2006 seeking compensation from the City for the allegedly unlawful demolition of the apartment building. In the petition, Caro alleged that the City had failed to meet notice and hearing requirements under both Louisiana statutory law and the United States Constitution. The City filed an answer on or about December 4, 2006, in which it denied the allegations and argued that Caro was solely responsible for the destruction of its property. On September 27, 2007 the City filed a Peremptory 14Exception of No Right of Action based upon the theory that by executing the Agreement, Caro had assigned its entire right to recover from the demolition of the property to Essex. The exception came on for hearing on October 29, 2007. At the hearing, Caro’s counsel argued that the exception was not well founded because Essex had re-assigned its right to bring suit back to Caro via a document dated October 26, 2007 and entitled “Assignment of Rights” (the “Second Agreement”). The trial judge disagreed, and granted the exception on November 6, 2007.

On appeal, Caro presents this Court with two distinct arguments in support of its contention that the trial .court erred in granting the City’s exception. First, Caro argues that by the Agreement it only assigned its right to sue the City for the $650,000 Essex paid under the insurance policy. Therefore, the argument follows, Caro did have the right to bring suit for the balance of its loss and the trial judge erred when he granted the exception. Alternatively, Caro argues that any rights that it purportedly assigned to Essex Insurance Company were not assignable under the Civil Code. Caro has not briefed its earlier contention that Essex made a valid re-assignment of rights via the Second Agreement and has therefore abandoned the argument. Rule 2-12.4, Uniform Rules, Courts of Appeal.

A proper analysis of an exception of no right of action requires a court to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the petition. Pitre v. Dufrene, 98-570, p. 4 (La.App. 5 Cir. 12/29/98), 726 So.2d 81, 83. The focus in an exception of no right of action is on whether the particular plaintiff has a right to bring the suit. See, e.g., Reese v. State, Dept. of Public Safety and Corrections, 03-1615, p. 2-3 (La.2/20/04), 866 So.2d 244, 246. When determining whether the exception should be sustained, a court must assume that the petition states a valid cause of action for some person and question whether the plaintiff in the particular case is a member |Bof the class that has a legal interest in the subject matter of the litigation. Id. The determination of whether a plaintiff has a right of action is a question of law, which we review de novo. See, e.g., Mississippi Land Co. v. S & A Properties II, Inc., 01-1623, p. 3 (La.App. 3 Cir. 5/8/02), 817 So.2d 1200, 1203.

Subrogation!Assignment of Right

Caro argues that the Agreement was a subrogation agreement rather than a full assignment of rights. Caro further contends that under the principles of sub-rogation it should be able to bring suit against the City and attempt to recover the balance of its loss.

Subrogation is the “substitution of one person to the right of another.” La. C.C. art. 1825. If the underlying obligation has been entirely satisfied, the rights of original obligee are extinguished in favor of the new obligee. La. C.C. art. 1826(A). However, an “original obligee who has been paid only in part may exercise his right for the balance of the debt in preference to the new obligee.” La. C.C. art. 1826(B).

Assignments of right are governed by Article 698 of the Louisiana Code of Civil Procedure. That provision states:

An incorporeal right which has been assigned, whether unconditionally or conditionally for purposes of collection or security, shall be enforced judicially by:
(1) The assignor and the assignee, when the assignment is partial; or
(2) The assignee, when the entire right is assigned.
La. C.C.P. art. 698

A cause of action in tort is both an incorporeal movable thing and property that is owned under Louisiana law. See La. C.C. arts. 448, 461, and 473; Heyse v. Fidelity & Casualty Co. of New York, 255 La. 127, 229 So.2d 724, 726 (La.1969); Conrad v. Swiss Chalet Picnic Grounds & Catering Service, 96-606 (La.App. 5 Cir. _|_12/30/96), 686 So.2d 1055. No particular form or words are necessary to constitute a valid assignment. Katz v. Saruessen, 476 So.2d 16, 19 (La.App. 5 Cir.1985).

With these rules in mind, we conclude that the document was a full assignment of right and consequently that Caro’s argument has no merit. The fact that the title of the Agreement mentions the word “sub-rogation” is not dispositive as “the character of a document is determined by examining the entire writing” and not merely the writing’s title. See, e.g., Vogt v. Vogt, 02-0066 (La.App. 5 Cir. 10/29/02), 831 So.2d 428, 432 (quoting Smith v. McKeller, 93-1944 (La.App. 1 Cir. 6/24/94), 638 So.2d 1192). Rather, the contract must be interpreted in light of the common intent of the parties. La. C.C. art.2045. If the words of a contract are “clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties intent.” La. C.C. art.2046. Here, Caro clearly “assign[ed] any rights” it had “from any responsible party including those responsible or at fault in connection with the demolition of the building, to and in favor of Essex Insurance Company.” These words are explicit and lead to the conclusion that Caro assigned all of its rights to Essex when In Suk Caro signed the Agreement on its behalf.

Caros argument that an insurer and the insured are co-owners of the right to recover in subrogation arising out of insurance contracts is misplaced. That axiom of law applies only to subrogation agreements, which is not the case here. For example, in Barreen v. Cobb, 95-1651 (La.2/28/96), 668 So.2d 1129, a case cited by Caro, the court was required to interpret two seemingly incompatible clauses of an insurance contract. The court concluded that a subrogation agreement existed and that the insurer and an insured had an equal right to recover based on a clause that read “the Plan will be subrogated (substituted) to all the Member’s rights of | ^recovery.” Barreca, 668 So.2d at 1131. Similarly, in Southern Farm Bureau Cas. Ins. Co. v. Sonnier, 406 So.2d 178 (La. 1981), the court found that a subrogation agreement existed and that both subrogor and subrogee had an equal right to recover when a clause in the insureds policy stated “11. Subrogation. Upon payment of any loss covered under this policy, the Company shall succeed to all the rights of recovery of the insured.” Sonnier, 406 So.2d at 180. In both Sonnier and Barreca, the clear and explicit language of the insurance policies warranted a finding that a subrogation agreement existed. The instant case is more akin to Falco Lime, Inc. v. Plaquemine Contracting Co., Inc., 95-1784 (La.App. 1 Cir. 4/4/96), 672 So.2d 856, where the court found that the assignee had fully assigned its rights to bring suit after signing a document transferring “any rights and actions” it had to the assignor. We therefore conclude that Caro fully assigned its rights to Essex Insurance Company on March 1, 2006.

The City also argued in its brief that Caro had judicially confessed that it had made a full assignment of rights in an earlier pleading. We see no need to consider the argument, as we have determined that the Agreement constitutes a full assignment of right on its face.

Non-Assignable Rights

In the alternative, Caro argues that the rights that it purportedly assigned to Essex were non-assignable under to La. C.C. art. 1826(B) because the right arose out of the intentional conduct and negligence of the City. Caro additionally avers that the right to file suit against the City was non-assignable because the right was strictly personal to it.

Article 1826(B) states:

An original obligee who has been paid only in part may exercise his right for the balance of the debt in preference to the new obligee. This right shall not be waived or altered if the original obligation arose from injuries | ¡^sustained or loss occasioned by the original obligee as a result of the negligence or intentional conduct of the original obligor.
La. C.C. art. 1826(B) (emphasis added)

All rights may be assigned, with the exception of those pertaining to obligations that are “strictly personal.” La. C.C. art. 2642. Strictly personal obligations on the part of an obligee are those for which “the performance is intended for the benefit of the obligee exclusively” La. C.C. art. 1766.

Both of Caro’s contentions fail. First, article 1826(B) applies only in the context of subrogation and subrogation agreements, not assignments of right. This is clear when article 1826(B) is read in conjunction with article 1826(A) and the comments to article 1826. The first portion of article 1826(A) reads “[w]hen subro-gation results from a person’s performance of the obligation of another, that obligation subsists in favor of the person who performed it.” La. C.C. art. 1826(A). See also id. at cmt. (e) (“[i]f the subrogee pays only a part of the obligor’s debt, the original obligee retains the right to be paid the balance by the obligor”). For the reasons described above, we have determined that the Agreement was a full assignment of Caro’s rights and not a partial subrogation agreement, making article 1826(B) wholly inapplicable to the instant appeal.

Second, Caro’s claims are not “strictly personal” to it and are therefore assignable. As aforementioned, La. C.C. art. 2642 provides that any right may be assigned except those pertaining to obligations that are strictly personal. It is well settled that most litigious rights can be assigned, transferred, or inherited and are therefore not strictly personal. See, e.g., Farrell Const. Co. v. Jefferson Parish, 693 F.Supp. 490 (E.D.La.1988) (RICO claims assignable); Guidry v. Theriot, 377 So.2d 319, 324 (La.1979) (victim’s action for recovery of tort damages is not strictly personal). Moreover, Civil Code article 2652 on redemption of litigious frights clearly implies that litigious rights can be assigned. (“[w]hen a litigious right is assigned ...”). There are some rights of action that cannot be transferred through assignment or subrogation, but none of those rights apply in the instant case. See, e.g., Ducote v. Commercial Union Ins. Co., 616 So.2d 1366, 1369 (La.App. 3 Cir. 1993) (noting that a transfer of a personal injury right of action is “clearly prohibited by the law”). We find that Caro’s right was not strictly personal and therefore assignable under Louisiana law. Therefore, the trial court did not err in failing to determine that Caro’s rights were nonassignable.

Accordingly, for the reasons stated, the judgment sustaining the exception of no right of action is affirmed. Costs to be paid by appellant.

AFFIRMED.