author: SAUNDERS, Judge.

text:
    GBB PROPERTIES TWO, LLC, et al. v. STIRLING PROPERTIES, LLC, et al.
    18-158
    Court of Appeal of Louisiana, Third Circuit.
    October 24, 2018
    Brent B. Barriere, Skylar Rosenbloom, Rebecca Sha, Fishman Haygood, L.L.P., 201 St. Charles Ave., Suite 4600, New Orleans, LA 70170, (504) 586-5252, COUNSEL FOR DEFENDANT/APPELLEE: Stirling Properties, LLC, Ambassador Town Center JV, LLC, CBL & Associates Management, Inc., Four Magnolias, LLC, Ambassador Infrastructure, LLC
    Rickey W. Miniex, Clyde R. Simien, Katrena A. Porter, Simien & Miniex, APLC, 104 Rue Iberville, Lafayette, LA 70508, (337) 269-0222, COUNSEL FOR DEFENDANT/APPELLEE: Stirling Properties, LLC, Ambassador Town Center JV, LLC, CBL & Associates Management, Inc., Four Magnolias, LLC, Ambassador Infrastructure, LLC
    Patrick S. McGoey, Andrea V. Timpa, Ellie T. Schilling, Schonekas, Evans, McGoey & McEachin, LLC, 909 Poydras Street, Suite 1600, New Orleans, LA 70112, (504) 680-6050, COUNSEL FOR PLAINTIFF/APPELLANT: GBB Properties Two, LLC, DBR Properties, LLC
    Court composed of Sylvia R. Cooks, John D. Saunders, and Elizabeth A. Pickett, Judges.
   SAUNDERS, Judge.

This is a case involving the development of real property as a major mixed-use project. Appellants asserted various claims arising under a purchase agreement and a payment-in-lieu-of-taxes agreement relating to the development of infrastructure improvements to the "master tract" of the project.

The trial court granted a partial summary judgment dismissing Appellants' claims relating to the purchase agreement. Appellants appeal the dismissal of those claims.

FACTUAL AND PROCEDURAL HISTORY:

This lawsuit arises out of a commercial development known as Ambassador Town Center. The development spans 125 plus acres and includes a Costco, Dicks Sporting Goods, Lazyboy and other retailers.

In 2013, GBB Properties Two, LLC and DBR Properties, LLC (Collectively "Appellants") agreed to sell a portion of the 125 acre "master tract" to Four Magnolias, LLC. Prior to the Act of Sale, a Purchase Agreement was entered into by the parties which obligated Four Magnolias, LLC to buy at least 41 acres of the 125 acre "master tract." It also obligated Four Magnolias to pay for the construction of infrastructure improvements outside of the property it was to acquire, i.e., the remaining property in the "master tract." Section 2.B of the Purchase Agreement provided that if Four Magnolias, LLC did not incur a certain amount of costs to make the infrastructure improvements, it would owe Appellants a rebate. As such, under Section 2.B, Four Magnolias, LLC is required to account for the possibility that it would owe a rebate to Appellants once construction was completed. Thereafter, Four Magnolias, LLC assigned its interest in the land to Ambassador Town Center JV, LLC.

An Act of Sale was entered into between Appellants and Ambassador Town Center JV. The Act of Sale did not address these off-site infrastructure costs or the rebate.

Ambassador Infrastructure, LLC completed all of the public infrastructure on the land acquired in the Act of Sale. No such public infrastructure was done to the remaining land in the "master tract."

Appellants filed suit against Ambassador Infrastructure, LLC, Four Magnolias, LLC, and Ambassador Town Center JV (Collectively "Appellees"). Appellants asserted in its suit, inter alia , claims involving obligations stemming from the Purchase Agreement that were not included in the Act of Sale. Appellees filed a Motion for Partial Summary Judgment to dismiss those claims.

After a hearing, the trial court granted Appellees' Motion for Partial Summary Judgment. It is from this judgment that Appellants present two assignments of error.

ASSIGNMENTS OF ERROR:

1. The trial court erred in granting Defendants' Motion for Partial Summary Judgment dismissing not only Plaintiffs' breach of the Purchase Agreement claim but also their unjust enrichment claim.
2. The trial court erred in failing to defer ruling on the Defendants' Motion for Partial Summary Judgment until adequate discovery was completed.

ASSIGNMENT OF ERROR NUMBER ONE :

In their first issue assignment of error, Appellants contends that the trial court erred in granting Defendants' motion for partial summary judgment dismissing their breach of the purchase agreement and unjust enrichment claims. We find merit to this assignment of error.

A summary judgment is reviewed using the de novo standard of review by focusing on the identical criteria that govern the trial court's consideration of whether summary judgment is appropriate. Samaha v. Rau , 07-1726 (La. 2/26/08), 977 So.2d 880. As such, we are tasked to make a determination whether "the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law." La.Code Civ.P. art. 966(A)(3).

In adjudicating a motion for summary judgment, a court cannot "consider the merits, make credibility determinations, evaluate testimony[,] or weigh evidence." Prop. Ins. Ass'n of La. v. Theriot , 09-1152, p. 3 (La. 3/16/10), 31 So.3d 1012, 1014 (quoting Suire v. Lafayette City-Parish Consol. Gov't , 04-1459, (La. 4/12/05), 907 So.2d 37 ). Moreover, although "summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent's favor." Willis v. Medders , 00-2507, p. 2 (La. 12/8/00), 775 So.2d 1049, 1050.

"If the words of a contract are clear, explicit, and lead to no absurd results, it must be interpreted by reference to the 'four corners' of the document and no further interpretation can occur in search of the parties' intent." Hebert v. Ins. Center, Inc. , 97-298, p. 4 (La.App. 3 Cir. 1/7/98), 706 So.2d 1007, 1011, writ denied , 98-353 (La. 3/27/98), 716 So.2d 888 ; La.Civ.Code art. 2046. Louisiana Civil Code Article 1848 states, "[t]estimonial or other evidence may not be admitted to negate or vary the contents of an authentic act or an act under private signature." Comment (a) of La.Civ.Code art. 1848 iterates that Article 1848"incorporates exceptions recognized by the Louisiana jurisprudence."

One such exception is that of the prior or contemporaneous agreement between the parties.

Evidence is also admissible of a valid prior or contemporaneous agreement of a collateral nature between the parties about which the final written contract is silent. This rule of admissibility is important in real estate transactions. For example, an act of sale, the formal act of transfer of the property, may not contain each and every stipulation between the parties concerning the real estate, either intentionally or through oversight. However, a prior or contemporaneous collateral agreement regarding the real estate is nonetheless effective provided that the agreement is not at variance with the terms of the act of sale.

1 Peter S. Title, LOUISIANA REAL ESTATE TRANSACTIONS , § 7:46 (2d ed. 2016).

In this case, Appellees filed the motion for summary judgment. On appeal, they argue that because the Act of Sale does not include certain obligations set forth in the Purchase Agreement, those obligations are not enforcable between the parties. Appellees cite La.Civ. Code art. 1835 which states, "[a]n authentic act constitutes full proof of the agreement it contains, as against the parties, their heirs, and successors by universal or particular title." As such, according to Appellees, the trial court's dismissal of Appellants' claims relative to the Purchase Agreement was proper given that the Act of Sale was an authentic act. We find no merit to this argument.

Our reading of the applicable law, as accurately stated in 1 Peter S. Title, LOUISIANA REAL ESTATE TRANSACTIONS , § 7:46 (2d ed. 2016), is that provisions of a Purchase Agreement, as a collateral or contemporaneous agreement, that do not vary the terms of the Act of Sale can be presented as evidence of obligations between the parties. Thus, in this case, it was an error of law for the trial court to dismiss Appellants' claims relative to the Purchase Agreement under the guise of the Act of Sale being the "final expression of the parties' intent." The trial court must adjudicate those claims alleged to arise from the collateral or contemporaneous Purchase Agreement as long as those claims do not vary the terms of the Act of Sale. Accordingly, we reverse the trial court's granting of Appellees' Motion for Partial Summary Judgment.

ASSIGNMENT OF ERROR NUMBER TWO :

In their second assignment of error, Appellants assert that the trial court erred in failing to defer ruling on the Defendants' Motion for Partial Summary Judgment until adequate discovery was completed. Our finding in Assignment of Error Number One pretermits this assignment of error.

CONCLUSION:

GBB Properties Two, LLC and DBR Properties, LLC assert two assignments of error. We find merit to the first that the trial court erred in granting Ambassador Infrastructure, LLC, Four Magnolias, LLC, and Ambassador Town Center JV's Motion for Partial Summary Judgment. This finding pretermits the second assigned error. Costs of these proceedings are assessed to Ambassador Infrastructure, LLC, Four Magnolias, LLC, and Ambassador Town Center JV.

REVERSED AND REMANDED.


source: Caselaw Access Project

author: JOHNSON, J.

license: Public Domain

text:
    Joanell M. DARNELL, M.D. v. LOUISIANA HEALTH SERVICE & INDEMNITY COMPANY d/b/a Blue Cross Blue Shield of Louisiana
    NO. 17-CA-569
    Court of Appeal of Louisiana, Fifth Circuit.
    October 31, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, JOANELL M. DARNELL, M.D., Thomas A. Gennusa, II, Joseph S. Piacun, Metairie, Reid S. Uzee, Metairie
    COUNSEL FOR DEFENDANT/APPELLANT, LOUISIANA HEALTH SERVICE & INDEMNITY COMPANY D/B/A BLUE CROSS BLUE SHIELD OF LOUISIANA, Richard S. Vale, Metairie, William L. Brockman, Metairie, Charles A. O'Brien, III, Baton Rouge, Allison N. Pham, Baton Rouge
    Panel composed of Judges Marc E. Johnson, Robert A. Chaisson, and Stephen J. Windhorst
   JOHNSON, J.

Defendant/Appellant, Louisiana Health Service & Indemnity Company d/b/a Blue Cross Blue Shield of Louisiana (hereinafter referred to as "Blue Cross"), appeals the judgment in favor of Plaintiff/Appellee, Joanell M. Darnell, M.D., from the 24th Judicial District Court, Division "P," for damages associated with the breach of the duty of good faith and fair dealing. For the following reasons, we affirm the judgment.

FACTS AND PROCEDURAL HISTORY

The facts relevant to the instant appeal are as follows.

Dr. Darnell joined the Blue Cross network as a healthcare provider in 1986 as a licensed obstetrician and gynecologist. On December 1, 2003, Blue Cross terminated Dr. Darnell as a network provider for a one-year period. During the termination process, Dr. Darnell had telephone conversations and written correspondence with a Blue Cross representative regarding her reapplication and readmission into the network.

In December 2004, Dr. Darnell sued Blue Cross for various causes of action, namely: malicious prosecution, defamation, intentional infliction of emotional distress, intentional misrepresentation and abuse of right. Dr. Darnell attempted to apply for readmission into Blue Cross' provider network in 2007; however, her application was denied because she had an ongoing litigation against Blue Cross. Years later, on October 4, 2013, the parties entered into a "Settlement Agreement, Receipt and Release" (hereinafter referred to as "Settlement Agreement") for any and all damages arising from the termination of Dr. Darnell from Blue Cross' network. Dr. Darnell's 2004 action against Blue Cross was subsequently dismissed with prejudice.

In December 2013, after the completion of her prior litigation against Blue Cross, Dr. Darnell applied for reinstatement into the Blue Cross healthcare provider network. Blue Cross denied Dr. Darnell's application on February 13, 2014. In response, Dr. Darnell filed the instant action against Blue Cross on June 16, 2014.

In her "Petition for Declaratory Judgment and for Damages," Dr. Darnell asserted she was entitled to declaratory relief that would declare Blue Cross' denial of her application for readmission to be null and void and without any force or effect. Additionally, Dr. Darnell alleged that she had met Blue Cross' terms for her readmission into the network, and Blue Cross discriminated against her when it denied her readmission. Dr. Darnell further alleged she incurred damages due to Blue Cross' unfair trade practices and breach of its duty of good faith and fair dealing.

Prior to trial, on January 26, 2017, Dr. Darnell filed a "Motion to Strike Trial Exhibit," seeking to exclude the Settlement Agreement from evidence. The trial court took the motion under advisement. Blue Cross filed peremptory exceptions of res judicata and no cause of action on February 6, 2017, asserting Dr. Darnell was barred from raising claims that could have been litigated in her prior lawsuit and she had no valid cause of action. Those exceptions were overruled by the trial court on February 8, 2017, and the matter proceeded to a bench trial on the merits on February 13, 2017. At the conclusion of the trial, the trial court took the matter under advisement and allowed the parties to submit post-trial memoranda. On February 14, 2017, the trial court rendered a judgment granting the motion to strike and struck the Settlement Agreement from Blue Cross' exhibit list. The trial court later rendered a judgment on the merits of the petition on June 30, 2017.

In its judgment, the trial court awarded Dr. Darnell a total of $429,736.18 in damages against Blue Cross, which included $325,261 for past loss; $49,371 for future loss; and $55,104.18 for "breach." In its "Reasons for Judgment," the trial court found Dr. Darnell's testimony credible, while also finding portions of Blue Cross' representatives' testimonies incredible because their explanations were inconsistent and illogical. It opined that Blue Cross made a decision to deliberately cause damage to Dr. Darnell's reputation and business practice. The court found that the representations of Blue Cross' representative to Dr. Darnell created a contractual relationship between Blue Cross and Dr. Darnell, and Dr. Darnell accepted Blue Cross' offer by fulfilling the conditions set forth through its representative. The court further found that Blue Cross breached its duty of good faith and fair dealing by knowingly refusing to admit Dr. Darnell into the network, even though she satisfied all of Blue Cross' requirements for readmission. The instant suspensive appeal followed.

ASSIGNMENTS OF ERROR

On appeal, Blue Cross alleges the trial court erred in: 1) overruling its peremptory exceptions of res judicata and no cause of action; 2) granting Dr. Darnell's motion to strike; 3) finding that a contractual relationship came into existence between Blue Cross and Dr. Darnell from an alleged contract made in 2003; 4) awarding Dr. Darnell economic damages for past loss and future loss; and 5) awarding Dr. Darnell damages for a breach.

LAW AND ANALYSIS

Exceptions of Res Judicata and No Cause of Action

Blue Cross alleges the trial court erred in overruling its peremptory exception of res judicata on the basis that it was filed after the deadline for filing dispositive motions in the matter. Blue Cross argues that its exception was based on both the Settlement Agreement and the order entered in Dr. Darnell's first lawsuit that dismissed her claims against it with prejudice. It contends that Dr. Darnell's claims became exigible in 2007 and could have been asserted in her first lawsuit; thus, they are barred now by application of the principle of res judicata .

Dr. Darnell avers the trial court properly overruled Blue Cross' exception of res judicata because her two actions against Blue Cross arose from different transactions.

The peremptory exception may be pleaded at any stage of the proceeding in the trial court prior to a submission of the case for a decision. La. C.C.P. art 928. In this matter, Blue Cross filed its exception of res judicata on February 6, 2017, a few days prior to the scheduled trial date. The trial court, subsequently, denied the exception. Prior to the start of the trial, the trial judge explained that the exception was denied because it was filed after the "cutoff"

dates had passed, and the court was not considering any substantive motions at that time. Pursuant to La. C.C.P. art. 928, we find the trial court erred in overruling the peremptory exception on the basis that it was filed after the deadline had passed for filing dispositive motions, as it could have been pleaded at any stage prior to submission of the case. However, we find the error was harmless because this Court will address the merits of Blue Cross' exception of res judicata .

Appellate courts review exceptions of res judicata using the de novo standard of review because these exceptions present legal questions. McLean v. Majestic Mortuary Servs. , 11-1166 (La. App. 5 Cir. 5/22/12), 96 So.3d 571, 575. Louisiana's law concerning res judicata is set forth in La. R.S. 13:4231, which provides:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

The Louisiana Supreme Court has established the following five elements that must be satisfied for a finding that a second action is precluded by res judicata : 1) the judgment is valid; 2) the judgment is final; 3) the parties are the same; 4) the cause or causes of action asserted in the second suit existed at the time of the final judgment in the first litigation; and 5) the cause or causes of action in the second suit arose out of the transaction or occurrence that was the subject matter of the first litigation. Jenkins v. Jackson , 16-482 (La. App. 5 Cir. 2/22/17), 216 So.3d 1082, 1092, writ denied , 17-652 (La. 9/6/17), 224 So.3d 984.

In the case at bar, Dr. Darnell's second petition alleged she reapplied for admission as a network provider with Blue Cross after her first litigation against Blue Cross for improper and unlawful actions in terminating her from the healthcare provider network had been settled in 2013. Dr. Darnell asserted she was harmed as a result of Blue Cross' negligent handling of her application and its continued refusal to respond to her requests for information on the reason for denial. She also asserted Blue Cross refused to readmit her because she exercised her right to sue Blue Cross for illegally terminating her without cause. Dr. Darnell sought a judgment declaring Blue Cross' declination of her application for readmission as a provider in the network be null and void and without any force or effect. She also sought damages associated with her claims of unfair trade practices and breach of covenant of good faith and fair dealing. In contrast, Dr. Darnell's first lawsuit was premised upon her termination as a provider in Blue Cross' network.

Because the first action arose from Dr. Darnell's termination as a provider in Blue Cross' network and the second action arose from Blue Cross' denial of Dr. Darnell's readmission into the network, Blue Cross has failed to prove the fifth element for a finding that the second action is precluded by res judicata : the cause or causes of action in the second suit arose out of the transaction or occurrence that was the subject matter of the first litigation. See , Jenkins , supra . The causes of action in the two lawsuits arose from different transactions with Blue Cross; thus, the instant action is not precluded by res judicata . Therefore, after de novo review, we find that Blue Cross' exception of res judicata was properly overruled by the trial court.

Motion to Strike

Blue Cross alleges the trial court erred in granting Dr. Darnell's "Motion to Strike" and retroactively excluding the Settlement Agreement after the trial had concluded. It contends that the Settlement Agreement is relevant to both the breach of contract and the calculations of the damages and should have been considered by the trial court. It further contends that Dr. Darnell's counsel did not object to the Settlement Agreement at the time it was offered. As a result, Blue Cross urges this Court to reverse the trial court's ruling and give the Settlement Agreement due consideration.

Dr. Darnell avers there was an objection raised to the introduction of the Settlement Agreement in the pre-trial stage. Dr. Darnell further avers the Settlement Agreement cannot be considered now because Blue Cross failed to proffer it into evidence.

During the hearing on Dr. Darnell's motion to strike, counsel for Dr. Darnell argued that consideration of the Settlement Agreement was not relevant to the case and it would pose a problem for the confidentiality of the other parties involved in the settlement. In response, counsel for Blue Cross urged the trial court to consider the Settlement Agreement to determine the scope of Dr. Darnell's release and its effect on her request for damages. At the conclusion of the arguments, counsel for Blue Cross suggested the trial judge reserve his ruling on the motion until testimony on the basis of Dr. Darnell's damages claims was presented, and the trial court took the matter under advisement. In its February 14, 2017 judgment, the trial court granted Dr. Darnell's motion and struck the Settlement Agreement from Blue Cross' exhibit list.

The grant or denial of a motion to strike is reviewed under the abuse of discretion standard. Detillier v. Borne , 15-129 (La. App. 5 Cir. 9/23/15), 176 So.3d 669, 671, citing Pitre v. Opelousas Gen. Hosp. , 530 So.2d 1151 (La. 1988). The granting of a motion to strike rests in the sound discretion of the trial court. Id.

After review, there is no indication that the trial court abused its discretion in granting the motion to strike. The Settlement Agreement from Dr. Darnell's first action against Blue Cross involved the resolution of the issues and damages resulting from her termination as a network provider in 2003, not issues pertaining to the denial of her readmission in 2014. Blue Cross has failed to prove the relevance of the Settlement Agreement in connection to the 2014 breach of contract. Furthermore, as will be discussed infra , the damages resolved in the Settlement Agreement were excluded from the calculations for the damages awarded to Dr. Darnell for past and future losses and breach of contract in the instant matter. Consequently, Blue Cross has also failed to prove the relevance of the Settlement Agreement in correlation to the damages awards. Therefore, we cannot find the trial court abused its discretion in granting Dr. Darnell's motion to strike and excluding the Settlement Agreement between Dr. Darnell and Blue Cross.

Contract and Breach Award

Blue Cross alleges the trial court erred in awarding Dr. Darnell $55,104.08 in damages for breach of contract, as there was no contractual relationship that existed between it and Dr. Darnell. It argues that the written documentation-its letters sent to Dr. Darnell in 2003-was clear that Dr. Darnell would be allowed to reapply for admission into the network, and there was never any promise or guarantee to enter into a contract with her for readmission. It contends that the duty of good faith and fair dealing that arises when a contract comes into existence simply does not provide a basis for an award of damages in favor of Dr. Darnell in this matter. Alternatively, Blue Cross argues that the delay of Dr. Darnell's acceptance of its alleged offer in 2013 was unreasonable and untimely.

Blue Cross further argues Dr. Darnell never pleaded a breach of contract theory of recovery; thus, it was prejudiced by that theory of recovery being used as the sole basis for the trial court's judgment. To the extent the trial court based its breach award on the amount Dr. Darnell paid to Blue Cross in connection with her 2003 termination from the network, Blue Cross contends the trial court erred in awarding damages based on the breach of contract theory.

Dr. Darnell maintains that the evidence presented at trial unequivocally proves that she was informed that she would be readmitted into the Blue Cross healthcare provider network if she met the requisite conditions. She avers that she did exactly as directed by Blue Cross and complied with the terms, conditions and demands; yet, she was still denied readmission. Dr. Darnell contends that despite its repeated assurances and conditions for her readmission and her reliance upon them, Blue Cross ultimately never intended to readmit her into the network and uphold its contractual obligation. As a result, Dr. Darnell argues Blue Cross breached its duty of good faith and fair dealing.

At trial, Thomas Groves was called as a witness during Dr. Darnell's presentation of evidence. From 2000 to 2005, Mr. Groves was the Regional Manager of Network Development for Blue Cross for the Baton Rouge and New Orleans markets. He later became the Director of Network Development and was promoted to Vice-President from 2009 to 2014. Mr. Groves testified Dr. Darnell was terminated from the network in 2003 after an audit of her records. He was the manager who sent Dr. Darnell the October 14, 2003 termination letter. In that letter, Mr. Groves stated, in pertinent part,

After one year, you may reapply for participation in all of our networks subject to the following conditions: 1. all monies owed to [Blue Cross] and HMOLA are paid back in full, and 2. you are able to demonstrate that all coding and documentation discrepancies are corrected and correct coding can be followed to sufficiently file claims.

Although the termination letter did not state a specific reason for Dr. Darnell's termination from the network, Mr. Groves affirmed that he told Dr. Darnell, "Look, repay the money. Stay out a year, reapply, and you'll get back in[,]" during their conversations regarding her termination.

After Dr. Darnell repaid $55,104.18 to Blue Cross, Mr. Groves sent Dr. Darnell a second letter on December 30, 2003. That letter acknowledged receipt of the repayment, thanked Dr. Darnell for her quick response, and informed her that she had satisfied her obligation for that portion of her commitment. The letter further stated,

As previously discussed, you may reapply for participation in all of our networks after one year from the date of termination if you are able to demonstrate that all coding and documentation discrepancies are corrected and correct coding can be followed to sufficiently file claims.

Mr. Groves testified that he was aware that Blue Cross declined to contract with Dr. Darnell in 2014, after she reapplied in 2013. He affirmed that the business decision to not contract with Dr. Darnell was based upon its previous dealings with her, which originated from billing discrepancies and medical records issues when she was in the network. Mr. Groves later testified that he told Dr. Darnell that she had "the right to apply." When questioned directly by the trial judge about the 2014 readmission denial, Mr. Groves stated that it was the decision of senior management-to which he was partially involved-to not let Dr. Darnell "back in or let her reapply, rather." He explained that the decision was made prior to Dr. Darnell's meeting with Blue Cross' representatives but could not recall the exact date.

Dr. Darnell testified that she had discussions with Mr. Grove regarding the conditions she had to meet in order to be readmitted into the provider network. She stated that she believed she would be readmitted into the network and would not have outright repaid the $55,104.18 to Blue Cross-as she would have thoroughly reviewed every charge-if she would have known Blue Cross would not honor her agreement made with Mr. Groves. She affirmed that she acquired the coding credentials. Dr. Darnell also testified she first attempted to reapply to Blue Cross' provider network in 2007, but she was denied readmission because of the pending litigation she had against Blue Cross.

During Blue Cross' presentation of evidence, Tabatha Marchand was called as Blue Cross' corporate representative. She was the Manager of Blue Cross' Network Operations. Although Ms. Marchand was presented as the corporate representative for this case, she testified that she did not know the exact details of what was agreed upon with Mr. Groves and was not involved in the termination. During her testimony, Ms. Marchand stated that she had knowledge of the denial of Dr. Darnell's 2007 reapplication and disclosed that Dr. Darnell would not have been readmitted into the network any sooner than 2013 because of the pending litigation.

Ms. Marchand's February 13, 2014 denial letter to Dr. Darnell stated, in pertinent part,

We received and reviewed your application for participation in our health plan. At this time, [Blue Cross] must decline to accept your application to participate in [Blue Cross'] networks. When you were terminated in 2003, a number of areas of concern were identified and explained to you. Events subsequent to that termination do not show any actual attempt on your part to correct the problems which led to that termination.

Ms. Marchand testified that Dr. Darnell's 2013 application was evaluated based upon her credentials, and Dr. Darnell's application met the credentialing requirements. However, Dr. Darnell's application was denied prior to reaching the next step of the application process.

In its "Reasons for Judgment," the trial court found that Blue Cross breached its duty of good faith and fair dealing by knowingly refusing to readmit Dr. Darnell into its network and opined that Blue Cross deliberately caused damage to Dr. Darnell's reputation and business practice. It also found that Mr. Groves' representations to Dr. Darnell created a contractual relationship, to which Dr. Darnell accepted through the fulfillment of the conditions set forth by Mr. Grove. The trial court further found that portions of the testimonies of Mr. Groves and Ms. Marchand were incredible.

The judicial determination of good-faith (or bad faith) failure to perform a conventional obligation is always preceded by a finding that there was a failure to perform or a breach of the contract. Ledet v. Campo , 12-1193 (La. App. 3 Cir. 3/6/13), 128 So.3d 1034, 1039, citing Favrot v. Favrot , 10-986 (La. App. 4 Cir. 2/9/11), 68 So.3d 1099, 1110. The matter at bar involves an alleged oral contract. In DBR Assocs., L.L.C. v. Burnell , 15-629 (La. App. 5 Cir. 2/24/16), 186 So.3d 1225, 1229-30, this Court explained the following concerning the review of oral contracts:

A contract is formed by the consent of the parties established through offer and acceptance. Unless the law prescribes a certain formality for the intended contract, offer and acceptance may be made orally. If the amount of compensation a party is to receive was not agreed upon when the contract was formed, the law will imply in the contract a provision that the party would be paid a reasonable sum for his services.
La. C.C. art 1846 provides that an oral contract in excess of $500.00 must be proven by at least one credible witness and other corroborating circumstances. Only general corroboration is required, and it is not necessary for the plaintiff to offer independent proof of every detail. (Internal citations omitted).

The existence or non-existence of a contract is a question of fact. Ocampo v. Maronge , 17-403 (La. App. 5 Cir. 12/27/17), 237 So.3d 627, 634, citing Read v. Willwoods Cmty , 14-1475 (La. 3/17/15), 165 So.3d 883, 887. Similarly, the issue of whether there were corroborating circumstances sufficient to establish an oral contract is a question of fact. Id.

Here, Dr. Darnell testified she had discussions with Mr. Groves concerning her readmission into Blue Cross' network as a provider. These discussions occurred before and after Dr. Darnell received the October 14, 2003 notice that she would be terminated from the network. The October 14th letter from Blue Cross stated Dr. Darnell could reapply for participation in the network after one year if two conditions were met: 1) full payment of the money owed, and 2) demonstration that all coding and documentation discrepancies were corrected. After receiving the payment, Dr. Darnell received the December 30, 2003 letter informing her she could reapply after one year upon demonstration that all coding and documentation discrepancies were corrected. Although both the October 14th and December 30th letters informed her that she could reapply, Dr. Darnell attested that Mr. Groves gave her assurance she would be readmitted into the provider network if she met certain conditions. Mr. Groves' testimony corroborates Dr. Darnell's assertion when he affirmed that he told her, "Look, repay the money. Stay out a year, reapply, and you'll get back in." The conditions set forth in the letters confirm Dr. Darnell's assertion that Mr. Groves set forth terms for her to be readmitted. Accordingly, we find that the letters, in conjunction with the testimonies of Dr. Darnell and Mr. Groves, provided sufficient corroborating circumstances to establish that an oral contract was made between Dr. Darnell and Blue Cross.

In reference to Blue Cross' alternative argument that the delay of Dr. Darnell's acceptance in 2013 of its alleged offer was unreasonable and untimely, we find that argument has no merit. According to the testimony presented at trial, Dr. Darnell submitted her first application for readmission in 2007. That application was denied by Blue Cross, specifically, because Dr. Darnell had a pending litigation against it. Ms. Marchand's testimony corroborated that Dr. Darnell would not have been admitted into the network any sooner than 2013 because of the ongoing litigation. Although the determination that Dr. Darnell would not be allowed to reapply was made by senior management in 2003, Blue Cross led Dr. Darnell to believe that she was only being denied because of the pending litigation and could reapply after the litigation was over. In other words, Blue Cross extended the time frame for Dr. Darnell to accept its offer. Dr. Darnell reapplied within three months of the settlement of the litigation. In this particular situation, we find that Dr. Darnell's acceptance of Blue Cross' offer in 2013 was not unreasonable or untimely.

After review of the evidence presented at trial, there is support for the trial court's factual finding that there was a contractual relationship between Dr. Darnell and Blue Cross. Accordingly, we cannot find the trial court erred in its determination.

Furthermore, we note the trial court found in its "Reasons for Judgment" that Blue Cross breached its duty of good faith and fair dealing, which was a theory of recovery alleged in Dr. Darnell's petition. Blue Cross' argument to this Court that it was prejudiced by the breach of contract theory of recovery being used as the sole basis for the trial court's judgment is disingenuous. As previously mentioned, the judicial determination of good-faith (or bad faith) failure to perform a conventional obligation is always preceded by a finding that there was a failure to perform or a breach of the contract. See , Ledet , supra . However, a review of Dr. Darnell's petition reveals that the facts constituting a claim for breach of contract were alleged, and there was sufficient evidence presented at trial to support that theory of recovery. Thus, even if the trial court had based its decision simply on the breach of contract theory, it would not have done so in error.

The standard of reviewing an award of damages for breach of contract is whether the trial court abused its discretion. Phillips v. Doucette & Associated Contractors, Inc. , 17-93 (La. App. 5 Cir. 10/25/17), 229 So.3d 667, 672.

In this matter, there was no evidence presented at trial concerning an amount associated with the contract between Dr. Darnell and Blue Cross. The trial court awarded Dr. Darnell $55,104.18, which coincides with the amount Dr. Darnell repaid to Blue Cross, as a reasonable sum for damages for Blue Cross' breach. After finding there was sufficient evidence to support the trial court's determination regarding the contract, we cannot find the trial court abused its discretion in awarding Dr. Darnell $55,104.18 for breach of Blue Cross' duty of good faith and fair dealing.

Economic Damages Awards

Blue Cross alleges the trial court erred in awarding Dr. Darnell damages for past and future losses. It contends that, according to Dr. Darnell's tax returns and testimony at trial, Dr. Darnell virtually had no medical practice and no income from early 2000 through 2002, as she left her own medical practice in 2000 to care for her husband. It further contends that Dr. Darnell only practiced for an estimated six to eight months in 2003; worked on a part-time basis in another office in 2007, where she only saw patients 2 ½ days per week; ultimately ceased her obstetrics practice, the most lucrative part of her practice, in 2007; and had her clientele taper off to almost nothing by 2013. Consequently, Blue Cross asserts Dr. Darnell has no legally supportable claim against it for lost earnings in 2013 or any subsequent year because her practice had dwindled to nothing long before October 2013.

When referencing the testimony of Dr. Darnell's expert, Ralph A. Litolff, Jr., Blue Cross argues that Mr. Litolff's methodology was unreliable when computing Dr. Darnell's damages. Blue Cross asserts Mr. Litolff was instructed to disregard Dr. Darnell's actual statements and practice history by Dr. Darnell's attorney and presume Dr. Darnell would have a thriving OB/GYN practice but for Blue Cross choosing not to contract with her in 2014. As such, Blue Cross further asserts that Mr. Litolff's calculations were based upon nothing more than speculation and conjecture that would not be approved if subjected to peer review.

Dr. Darnell maintains that she presented sufficient evidence to support the trial court's awards for past and future losses. She avers that Mr. Litolff's testimony and report were uncontroverted, and Blue Cross failed to discredit Mr. Litoff's methods and calculations at trial.

In reviewing a court's factual conclusions with regard to special damages, an appellate court must satisfy a two-step process based on the record as a whole: 1) there must be no reasonable factual basis for the trial court's conclusions, and 2) the finding must be clearly wrong. Sid-Mar's Rest. & Lounge, Inc. v. State , 15-326 (La. App. 5 Cir. 12/9/15), 182 So.3d 390, 401. A trial court may accept or reject, in whole or in part, the opinion expressed by an expert. Purvis v. Jefferson Par. Hosp. Serv. , 16-434 (La. App. 5 Cir. 12/21/16), 209 So.3d 363, 377. "The effect and weight to be given to expert testimony [or report] is within the broad discretion of the trial judge." Sid-Mar's Rest. & Lounge, Inc., supra , quoting Phillip Family L.L.C. v. Bayou Fleet P'ship , 12-565 (La. App. 5 Cir. 2/21/13), 110 So.3d 1158, 1167.

In the case at bar, Mr. Litolff was admitted as an expert in economics and certified public accounting. He generated an expert report to render his professional opinion with respect to the economic losses sustained by Dr. Darnell resulting from the instant dispute. The primary documents relied upon for the report were tax returns for Dr. Darnell's medical practice. The report noted that Dr. Darnell was interviewed with respect to her past earnings levels, and she had taken significant time away from her practice from 2000 through 2003 due to her husband's illness. Mr. Litolff testified that he performed a "But For Analysis" to determine how to put the injured party, Dr. Darnell, in the same position she would have been if the alleged wrongful event had not happened. In his report, the loss period commencement date was set as January 1, 2013. In Scenario I, Mr. Litolff estimated that Dr. Darnell's remaining work life expectancy, as of the loss period commencement date, was approximately 4.8 years, spanning the loss period from January 1, 2013 through October 20, 2017.

For purposes of the loss calculations, activity from 2003 through 2012 was omitted, and an expected annual earnings level was established. Mr. Litolff explained at trial that he reviewed those years but omitted them from his calculations because it was his understanding that another legal issue covered certain time periods. He further explained that he would have considered certain time periods if those years were not hampered or were unrestricted by any limitations in Dr. Darnell's practice. When questioned by Blue Cross' counsel about statistics he used or studies he conducted for his methodology that would have been acceptable in a peer review, Mr. Litolff responded that he used an assumption, instead of statistics, and did not conduct any studies because writing a peer review is different from generating an expert report. No further questions regarding the standard of a peer review versus an expert report were asked.

The expected annual earnings for the benchmark income for Dr. Darnell was approximated at $72,371, which was opined to be extremely conservative for a gynecologist in the New Orleans area. The report stated that the adjusted ordinary income for Dr. Darnell from the year 2016 through assumed work life expectancy was set at zero, based upon the assumption she was unable to generate profits through her practice since she was no longer an "in-network" provider with Blue Cross. The report concluded in Scenario I that Dr. Darnell's past loss was $325,261, and her future loss would be $49,371, for a total loss of $374,632.

The trial court awarded Dr. Darnell $325,261 for past loss and $49,371 for future loss. In its "Reasons for Judgment,"

the trial court adopted Scenario I from Mr. Litolff's report in determining damages. At trial, Mr. Litolff explained the methodology used in his report and exactly what documentation he used for his calculations. Although Blue Cross argues that Dr. Darnell's practice had dwindled to nothing and she had no legally supportable claim against it for lost earnings in 2013 or any subsequent year, it failed to present any evidence at trial that would refute the methodology used in Mr. Litolff's report or assist the trial judge with an alternative method for determining the amount of Dr. Darnell's past or future losses. Because Blue Cross failed to controvert Mr. Litolff's report, we cannot find the trial court erred in adopting the report and rendering the amounts of its awards for past and future losses based upon the report.

DECREE

For the foregoing reasons, we affirm the June 30, 2017 judgment in favor of Joanell M. Darnell, M.D. and against Louisiana Health Service & Indemnity Company d/b/a Blue Cross Blue Shield of Louisiana. Louisiana Health Service & Indemnity Company d/b/a Blue Cross Blue Shield of Louisiana is to bear the costs for this appeal.

AFFIRMED

      In its appellate brief, Blue Cross stated that it would file an exception of res judicata , separate from its appellate brief, to address Dr. Darnell's offer and acceptance theory because that theory was not advanced to the trial court by Dr. Darnell until after the case had been submitted. An appellate court may consider a peremptory exception filed for the first time in that court, if pleaded prior to a submission of the case for a decision, and if proof of the ground of the exception appears of record. La. C.C.P. art. 2163. However, Blue Cross did not plead and argue the application of res judicata to the offer and acceptance theory with this Court; thus, it will not be addressed in this opinion.

      Although Blue Cross alleges the trial court erred in overruling its peremptory exception of no cause of action, its brief essentially focuses on the trial court's ruling on the exception of res judicata . Therefore, our review will focus on the arguments provided in Blue Cross' brief. See , Uniform Rules - Courts of Appeal, Rule 2-12.4(B)(4).

      We note that, despite raising the trial court erred in overruling the exception of res judicata as an assignment of error, Blue Cross acknowledged the instant action is not precluded by res judicata by stating the following in its appellate brief:
      In her "Petition for Declaratory Judgment and for Damages, Plaintiff referenced her previous lawsuit and the fact that it was settled in 2013 for a substantial sum. Furthermore, Plaintiff referred to a number of matters that were in the focus of the earlier lawsuit. However, apparently recognizing the res judicata effect of the previous Settlement Agreement, Receipt and Release and the Dismissal with prejudice, Plaintiff set forth theories of recovery that arose subsequently to the settlement of her previous lawsuit ....(Emphasis added) (Footnotes in the original omitted).

      Assignments of error numbers three and five will be discussed jointly because they are interrelated.

      It is unclear from the testimony exactly when Mr. Groves was promoted to Vice President.

      During Dr. Darnell's cross-examination, it was elicited by counsel for Blue Cross that the meeting occurred in 2003.

      Except as provided in Article 1703, a final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings, and the latter contains no prayer for general and equitable relief. La. C.C.P. art. 862. It is well-established that Louisiana is a fact-pleading state. Reynolds v. Brown , 11-525 (La. App. 5 Cir. 12/28/11), 84 So.3d 655, 658-59.
      The theory of the case doctrine, under which a party must select a theory of his case or defense and adhere to it throughout the litigation, was abolished. Solis v. NPK, LLC , (La. App. 5 Cir. 3/29/11), 63 So.3d 236, 238, writ denied , 11-1094 (La. 9/16/11), 69 So.3d 1145. A party must set forth the facts surrounding the cause of action but is not required to assert all theories of recovery. Id. Courts should construe pleadings so as to achieve substantial justice and, in order to reach the truth, should avoid the application of harsh, technical rules of pleading. Id. "As long as the facts constituting the claim are alleged, the party may be granted any relief to which he is entitled under the pleadings and the evidence...." Trust for Schwegmann v. Schwegmann Family Trust , 05-95 (La. App. 5 Cir. 5/31/05), 905 So.2d 1143, 1147, quoting First South Production Credit Ass'n v. Georgia-Pacific , 585 So.2d 545, 548 (La. 1991).


author: WINDHORST, J.

text:
    Tenisha CLARK v. WAL-MART STORES, INC.
    NO. 18-CA-52
    Court of Appeal of Louisiana, Fifth Circuit.
    October 31, 2018
    COUNSEL FOR PLAINTIFF/APPELLANT, TENISHA CLARK, Michal J. Harris, New Orleans
    COUNSEL FOR DEFENDANT/APPELLEE, WAL-MART STORES, INC., Sidney J. Hardy, Christine M. Berger, New Orleans
    Panel composed of Judges Jude G. Gravois, Marc E. Johnson, and Stephen J. Windhorst
   WINDHORST, J.

Appellant/plaintiff, Tenisha Clark, seeks review of the trial court's October 30, 2017 judgment, granting an exception of prescription filed by appellee/defendant, Wal-Mart Stores, Inc., and dismissing with prejudice plaintiff's claims against defendant. For the following reasons, we reverse and remand for further proceedings.

Facts and Procedural History

On July 6, 2016, while at defendant's store located at 300 W. Esplanade Avenue, in Kenner, plaintiff allegedly slipped and fell on a wet spot on the floor. As a result of this incident, plaintiff allegedly sustained injuries.

On July 4, 2017, plaintiff filed via facsimile a petition for damages with the Clerk of Court for the 24th Judicial District Court for the Parish of Jefferson. The Clerk of Court received the facsimile on July 5, 2017. Plaintiff's counsel prepared and mailed via the United States Postal Service, a certified mail package containing the original petition for damages and applicable fees to the Clerk of Court's address listed as P.O. Box 10, Gretna, Louisiana 70054. The certified mail package's return receipt requested card ("green card") was delivered to the P.O. Box address and was signed by Faye Simoneaux on July 13, 2017. On July 14, 2017, the Clerk of Court stamped as filed plaintiff's original petition for damages.

Defendant filed an answer and an exception of prescription. In its exception, defendant argued that plaintiff failed to satisfy the requirements of La. R.S. 13:850 B(1) because plaintiff's original copy was not delivered to and received by the Clerk of Court within seven days of the facsimile filing on July 4, 2017. Defendant contended that plaintiff's original copy was received on July 14, 2017, one day after the applicable seven-day time period, and plaintiff's claim was therefore prescribed.

In response to defendant's exception, plaintiff filed a memorandum in opposition arguing that she complied with La. R.S. 13:850 B because the original petition and applicable fees were mailed to the Clerk of Court via certified mail return receipt requested to the Clerk of Court's listed addressed and it was delivered to the Clerk of Court when the green card was signed by Ms. Simoneaux on July 13, 2017. In support of her opposition, plaintiff attached the affidavit of her counsel, wherein counsel stated that he mailed the original petition and applicable fees via certified mail, return receipt requested, to the address listed on all of the Clerk of Court's communications - Clerk of Court, P.O. Box 10, Gretna, Louisiana 70054 - and the green card was signed by Ms. Simoneaux on July 13, 2017. Plaintiff also attached a copy of the green card and a copy of the Clerk of Court's facsimile filing receipt. After a hearing, the trial court granted defendant's exception of prescription and dismissed plaintiff's claims against defendant. This appeal followed.

Procedural Issue

On March 16, 2018, plaintiff filed a motion to supplement the record on appeal by including an affidavit executed on March 13, 2018, by Ms. Simoneaux, the deputy clerk of court. Plaintiff argues that the affidavit and its attached exhibit are relevant and material to key issues of law before this Court and are required for a complete record.

On March 20, 2018, defendant filed an opposition to plaintiff's motion to supplement, arguing the trial court granted defendant's exception of prescription on October 30, 2017. Defendant contends that the affidavit sought to be included in the record was not previously introduced in the exception of prescription hearing in the trial court. Defendant argues that La. C.C.P. art. 2132 does not permit the introduction of new evidence after an appeal is filed in the appellate court. Further, defendant contends that La. C.C.P. art. 2164 precludes the appellate court from considering new evidence that is not part of the record on appeal. Defendant contends that Ms. Simoneaux's affidavit was not a part of the trial court record as it was executed on March 13, 2018, after the record was lodged for appeal with this Court. Therefore, defendant argues that this Court should deny plaintiff's motion to supplement the record on appeal. This Court referred the motion to the merits of this appeal.

An appellate court must render its judgment upon the record on appeal. La. C.C.P. art. 2164 ; In re Melancon, 05-1702 (La. 7/10/06), 935 So.2d 661, 666. A court of appeal is a court of record, which must limit its review to evidence in the record before it. La. C.C.P. art. 2164 ; Black v. Anderson, 06-891 (La. App. 5 Cir. 3/13/07), 956 So.2d 20, 23, writ denied, 07-0794 (La. 6/1/07), 957 So.2d 180. An appellate court cannot review evidence that is not in the record on appeal and cannot receive new evidence. Hover v. Farber, 05-613 (La. App. 5 Cir. 1/31/06), 922 So.2d 637, 638. Even after the record has been transmitted to the appellate court, the record can be supplemented by stipulation of the parties, by the trial court, or by order of the appellate court, only if the evidence was properly filed into the record in the trial court. La. C.C.P. art. 2132 ; Nuccio v. Robert, 99-1327 (La. App. 5 Cir. 4/25/00), 761 So.2d 84, 87, writ denied, 00-1453 (La. 06/30/00), 766 So.2d 544.

Our review of the record establishes that the affidavit was not introduced into evidence or before the trial court at the hearing on the exception of prescription. Moreover, the affidavit itself shows that it was not executed until after judgment was rendered and the record was lodged for appeal with this Court. Accordingly, we deny plaintiff's motion to supplement the record.

Discussion

Delictual actions are subject to a liberative prescription of one year. La. C.C. art. 3492. Prescriptive statutes are strictly construed against prescription and in favor of the obligation sought to be extinguished; thus, of two possible constructions, that which favors maintaining, as opposed to barring, an action should be adopted. Carter v. Haygood, 04-0646 (La. 1/19/05), 892 So.2d 1261, 1268. Prescription commences to run from the date of the injury or damage sustained. La. C.C. art. 3492. The burden of proving prescription ordinarily lies with the party raising the exception, but when prescription is evident on the face of the pleadings, the burden shifts to the plaintiff to show that the action has not prescribed. Maestri v. Pazos, 15-9 (La. App. 5 Cir. 5/28/15), 171 So.3d 369, 371 (citing In re Noe, 05-2275 (La. 5/22/07), 958 So.2d 617, 621-622 ). Evidence may be introduced to support or controvert an exception of prescription. La. C.C.P. art. 931 ; In re Noe, 958 So.2d at 622. When evidence is introduced at a hearing on an exception of prescription, the trial court's findings of fact are reviewed under the manifest error standard. Tenorio v. Exxon Mobil Corp., 14-814 (La. App. 5 Cir. 4/15/15), 170 So.3d 269, 273. The issue for a reviewing court to resolve when faced with a factual finding is not whether the trier of fact was right or wrong, but whether the conclusion of the trier of fact was a reasonable one. Wooley v. Lucksinger, 09-0571 (La. 4/1/11), 61 So.3d 507, 554. Where two permissible views of the evidence exist, the trier of fact's choice between them cannot be manifestly erroneous or clearly wrong. Id.

La. R.S. 13:850, which provides the procedure for facsimile transmission of pleadings and filings in civil cases, was amended by 2016 La. Acts, No. 109, effective August 1, 2016, ordinary session, and now provides in part:

A. Any document in a civil action may be filed with the clerk of court by facsimile transmission. All clerks of court shall make available for their use equipment to accommodate facsimile filing in civil actions. Filing shall be deemed complete at the time the facsimile transmission is received by the clerk of court. No later than on the first business day after receiving a facsimile filing, the clerk of court shall transmit to the filing party via facsimile a confirmation of receipt and include a statement of the fees for the facsimile filing and filing of the original document. The facsimile filing fee and transmission fee are incurred upon receipt of the facsimile filing by the clerk of court and payable as provided in Subsection B of this Section. The facsimile filing shall have the same force and effect as filing the original document, if the filing party complies with Subsection B of this Section.
B. Within seven days , exclusive of legal holidays, after the clerk of court receives the facsimile filing, all of the following shall be delivered to the clerk of court:
(1) The original document identical to the facsimile filing in number of pages and in content of each page including any attachments, exhibits, and orders. A document not identical to the facsimile filing or which includes pages not included in the facsimile filing shall not be considered the original document.
(2) The fees for the facsimile filing and filing of the original document stated on the confirmation of receipt, if any.
(3) A transmission fee of five dollars.
C. If the filing party fails to comply with any of the requirements of Subsection B of this Section, the facsimile filing shall have no force or effect. The various district courts may provide by court rule for other matters related to filings by facsimile transmission. (Emphasis added.)

In her first assignment of error, plaintiff contends under the ordinary and unambiguous meaning of the word "deliver," the trial court erred in equating the word "delivered" with the term "filed." Plaintiff argues that under the plain and ordinary meaning of the word "delivered," she satisfied the requirements of La. R.S. 13:850 because the certified mail green card establishes that the original petition was timely delivered to the Clerk of Court's listed address on July 13, 2017, within seven days, rendering the petition timely as required by La. R.S. 13:850 B.

Defendant contends plaintiff's claim is prescribed because, at the trial court level, it was undisputed that the last day to timely file plaintiff's original petition was Thursday, July 13, 2017. Specifically, defendant contends plaintiff's petition was not delivered to the Clerk of Court until Friday, July 14, 2017, as evidenced by the date and time stamped on the original petition, and thus, plaintiff's petition is prescribed on its face. Defendant argues that the green card indicates that the original petition was sent to an incorrect address, instead of 200 Derbigny Street, Gretna, Louisiana 70053, and was received by someone who picked up the mail at the P.O. Box on July 13, 2017. Defendant clams, therefore, that the trial court correctly granted the exception of prescription.

There is no current jurisprudence interpreting La. R.S. 13:850 B as amended by 2016 La. Acts, No. 109, ordinary session. Subsection B provides that "Within seven days , exclusive of legal holidays, after the clerk of court receives the facsimile filing," the appropriate documents "shall be delivered " to the clerk of court's office. The prior version of subsection B provided that a party "shall forward " the appropriate documents and fees to the clerk of court's office. In interpreting the prior version, the Louisiana Supreme Court in Hunter v. Morton's Seafood Rest. & Catering, 08-1667 (La. 3/17/09), 6 So.3d 152, 156, held that to "forward" a document as required by La. R.S. 13:850 B, a litigant "must only send " the original petition within the time period provided in the statute and did not include "the concept of 'delivery' or 'receipt.' " Id. Thus, under this analysis of the prior version, the original petition did not have to be received by the clerk of court within seven days of the original facsimile. Id.

The only issue before this Court is whether plaintiff's original petition was "delivered" to the Clerk of Court within the seven days as required by the amended version of La. R.S. 13:850 B. Questions of law, such as the proper interpretation of a statute, are reviewed under the de novo standard of review. City of Gretna v. Morice, 14-301 (La. App. 12/30/14), 167 So.3d 823, 827. The starting point for the interpretation of any statute is the language of the statute itself. Oubre v. St. Charles Parish Sheriff's Office, 16-409 (La. App. 5 Cir. 12/14/16), 209 So.3d 302, 307 ; Hunter, 6 So.3d at 155. 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. La. C.C. art. 9 ; La. R.S. 1:4. When interpreting the revised statutes, courts shall read and construe statutory words and phrases in their context and in accordance with the common and approved usage of the language. La. R.S. 1:3 ; see also La. C.C.P. art. 5053. Those who enact statutory provisions are presumed to act deliberately and with full knowledge of existing laws on the same subject, with awareness of court cases and well-established principles of statutory construction, and with knowledge of the effect of their acts and a purpose in view. Hunter, 6 So.3d at 155-156.

In evaluating the proper interpretation of La. R.S. 13:850 B, we considered the common and approved usage of the word "deliver." Black's Law Dictionary (6th Ed. 1990) defines "delivery" as "[t]he act by which the res or substance thereof is placed within the actual or constructive possession or control of another." The word "deliver" is defined in the Webster's II New Riverside Dictionary as "[t]o take to the intended recipient < deliver mail>." Webster's New Universal Unabridged Dictionary defines "deliver" as "to give or transfer; to put into another's possession or power; to commit; to pass from one to another.... to give out; distribute; as, deliver the mail." Deliver is also defined as "to take and hand over to or leave for another: convey." Merriam-Webster.com. Merriam-Webster, n.d. Web. 16 Apr. 2018. Oxford Dictionary further defines "deliver" as to "bring and hand over (a letter, parcel, or goods) to the proper recipient or address." Oxforddictionaries.com, "Deliver" (04/26/18).

Upon our de novo review, considering the clear and unambiguous meaning of the word "delivered" and the circumstances of this case, we find that plaintiff's original petition and applicable fees were "delivered" to the Clerk of Court when the green card for plaintiff's certified mail - addressed to the Clerk of Court at P.O. Box 10, Gretna, Louisiana 70054 - was signed and placed in the possession of Ms. Simoneaux on July 13, 2017. We find the trial court was manifestly erroneous in finding that plaintiff's original petition was not timely under La. R.S. 13:850 B and in granting defendant's exception. Accordingly, we reverse the trial court's judgment granting defendant's exception of prescription and remand for further proceedings.

In her second assignment of error, plaintiff contends alternatively, that the trial court erred in failing to count seven days from July 5, 2017, the date the faxed petition was "filed" into the record, instead of counting from July 4, 2017, the date the faxed petition was "received" by the Clerk of Court.

An appellate court must render its judgment upon the record on appeal.

La. C.C.P. art. 2164 ; Black, 956 So.2d at 23. Appellate courts will not consider issues raised for the first time on appeal, which are not pleaded in the court below and which the trial court has not addressed. Lepine v. Lepine, 17-45 (La. App. 5 Cir. 6/15/17), 223 So.3d 666, 673 ; First Bank & Trust v. Treme, 13-168 (La. App. 5 Cir. 10/30/13), 129 So.3d 605, 610 ; Geiger v. State ex. Rel. Dept. of Health and Hosp., 01-2206 (La. 4/12/02), 815 So.2d 80, 86.

Whether the trial court erred in declining to count seven days from July 5, 2017, instead of July 4, 2017, was never addressed as a contested issue before the trial court. Accordingly, this issue is not properly before this Court on appeal.

Conclusion

For the reasons stated herein, the trial court's October 30, 2017 judgment is hereby reversed and the matter is remanded for further proceedings.

REVERSED AND REMANDED

      The trial court provided written reasons for judgment on November 14, 2017.

      La. C.C.P. art. 2132 provides:
      A record on appeal which is incorrect or contains misstatements, irregularities or informalities, or which omits a material part of the trial record, may be corrected even after the record is transmitted to the appellate court, by the parties by stipulation, by the trial court or by the order of the appellate court. All other questions as to the content and form of the record shall be presented to the appellate court.

      The prior version of La. R.S. 13:850 provided in part:
      A. Any paper in a civil action may be filed with the court by facsimile transmission. All clerks of court shall make available for their use equipment to accommodate facsimile filing in civil actions. Filing shall be deemed complete at the time that the facsimile transmission is received and a receipt of transmission has been transmitted to the sender by the clerk of court. The facsimile when filed was the same force and effect as the original.
      B. Within seven days, exclusive of legal holidays, after the clerk of court has received the transmission, the party filing the document shall forward the following to the clerk:
      (1) The original signed document.
      (2) The applicable filing fee, if any.
      (3) A transmission fee of five dollars.
      C. If the party fails to comply with the requirements of Subsection B, the facsimile filing shall have no force or effect. The various district courts may provide by court rule for other matters related to filings by facsimile transmission. (Emphasis added.)

      Webster's II New Riverside Dictionary Revised Edition (1996) at p. 185.

      Webster's New Universal Unabridged Dictionary (1983) at p. 481.

      At the hearing on the exception of prescription, the trial court accepted into evidence plaintiff's counsel's uncontradicted affidavit stating that he properly mailed the original petition and applicable fees to the Clerk of Court's address listed on all its communications as P.O. Box 10, Gretna, Louisiana 70054. Plaintiff also submitted into evidence the green card addressed to the Clerk of Court and signed by Faye Simoneaux. Defendant did not submit any evidence to dispute counsel's evidence that the P.O. Box 10 address was a correct address for the Clerk of Court, or that the applicable fees were not paid.


author: CHAISSON, J.

text:
    STATE of Louisiana v. Orrick HURD
    NO. 18-KA-171
    Court of Appeal of Louisiana, Fifth Circuit.
    October 31, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Metairie, Terry M. Boudreaux, Gretna, Anne M. Wallis
    COUNSEL FOR DEFENDANT/APPELLANT, ORRICK HURD, Bertha M. Hillman
    Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Robert A. Chaisson
   CHAISSON, J.

In this criminal appeal, defendant, Orrick Hurd, seeks review of the trial court's ruling on the State's motion to correct illegal sentence, requiring defendant to register as a sex offender pursuant to the provisions of La. R.S. 15:541 et seq. For the reasons that follow, based on the record before us, we find that the trial court improperly granted the State's motion, and accordingly, we remove the provision of defendant's sentence that required him to register as a sex offender.

PROCEDURAL HISTORY

On January 25, 2017, the Jefferson Parish District Attorney filed a bill of information charging defendant with one count of human trafficking of a person under the age of twenty-one years for the purpose of engaging in commercial sexual activity, in violation of La. R.S. 14:46.2. Defendant pled not guilty at his arraignment. On September 20, 2017, the State filed a superseding bill of information to add a second count of human trafficking of a person under the age of twenty-one for the purpose of engaging in commercial sexual activity. Defendant again pled not guilty.

On June 14, 2017, during a bond reduction hearing, the State, represented by Lindsay Truhe, and defense counsel, Anna Friedberg, discussed plea negotiations in open court. The following exchange took place:

MS. TRUHE:
I've offered a no bill and eight. It's not going to get any better than a no bill and eight. I mean, as charged if he were convicted and billed, he'd be looking at 33 years and change to 100.
MS. FRIEDBERG:
Well, one of the issues is that the way that it's charged, one of the things that I had asked to counter with is that right now even if she reduced it some or she could offer a no bill and eight, but it still would require that he register as a sex offender. And so we're asking it be reduced in such a way at least to relieve him from that penalty.
Furthermore, Judge, it is listed as a crime of violence even though there has been no violence alleged or no force or coercion alleged, but by the fact that this person was under 21 makes it such a stiff sentence. Anyway, the point of my story is an 85 percent service rate, so it would be quite some time.

On November 30, 2017, the State amended counts one and two of the superseding bill "to 14:46.2(B)(1)," per a "negotiated plea." Immediately following the amendment, defendant withdrew his pleas of not guilty, and after being advised of his Boykin rights, pled guilty to the amended counts. In accordance with the plea agreement, the trial court sentenced defendant to seven years imprisonment with the Department of Corrections on each count to run concurrently.

On December 12, 2017, subsequent to the imposition of sentence pursuant to a negotiated plea agreement, the State filed a motion to correct illegal sentence, alleging that defendant's sentences, which failed to require him to register and notify as a sex offender/child predator, needed correction. On December 19, 2017, after a hearing at which the State was represented by Lindsay Truhe, the trial court granted the State's motion to require defendant to register as a sex offender and provided him with written notification of his registration obligations in accordance with La. R.S. 15:543.

Defendant now appeals, contending that the trial court erred in requiring him to register as a sex offender. He asserts that the State's amendment to the superseding bill of information effectively eliminated the age requirement of the original charges, and as a result of this amendment, his guilty pleas were not to offenses that mandated registration as a sex offender.

In contrast, the State asserts that despite the amendment to the bill of information, defendant was nonetheless required to register as a sex offender because the amendment did not eliminate the "under the age of twenty-one years" language from the charges. Based on the record before us, we find that the trial court erred in granting the State's motion to correct illegal sentence and ordering defendant to register as a sex offender.

DISCUSSION

In the present case, defendant pled guilty to two counts of human trafficking. The offense of human trafficking and its penalties are set forth in La. R.S. 14:46.2, which provides, in part, as follows:

A. It shall be unlawful:
(1)(a) For any person to knowingly recruit, harbor, transport, provide, solicit, receive, isolate, entice, obtain, or maintain the use of another person through fraud, force, or coercion to provide services or labor.
(b) For any person to knowingly recruit, harbor, transport, provide, solicit, sell, purchase, receive, isolate, entice, obtain, or maintain the use of a person under the age of twenty-one years for the purpose of engaging in commercial sexual activity regardless of whether the person was recruited, harbored, transported, provided, solicited, sold, purchased, received, isolated, enticed, obtained, or maintained through fraud, force, or coercion.
(2) For any person to knowingly benefit from activity prohibited by the provisions of this Section.
(3) For any person to knowingly facilitate any of the activities prohibited by the provisions of this Section by any means, including but not limited to helping, aiding, abetting, or conspiring, regardless of whether a thing of value has been promised to or received by the person.
B. (1) Except as provided in Paragraphs (2) and (3) of this Subsection, whoever commits the crime of human trafficking shall be fined not more than ten thousand dollars and shall be imprisoned at hard labor for not more than ten years.
(2)(a) Whoever commits the crime of human trafficking when the services include commercial sexual activity or any sexual conduct constituting a crime under the laws of this state shall be fined not more than fifteen thousand dollars and shall be imprisoned at hard labor for not more than twenty years.
(b) Whoever commits the crime of human trafficking in violation of the provisions of Subparagraph (A)(1)(b) of this Section shall be fined not more than fifty thousand dollars, imprisoned at hard labor for not less than fifteen years, nor more than fifty years, or both.

According to La. R.S. 15:542(A), the following persons shall be required to register and provide notification as a sex offender:

(1) Any adult residing in this state who has pled guilty to, has been convicted of, or where adjudication has been deferred or withheld for the perpetration or attempted perpetration of, or any conspiracy to commit either of the following:
(a) A sex offense as defined in R.S. 15:541, with the exception of those convicted of felony carnal knowledge of a juvenile as provided in Subsection F of this Section.
(b) A criminal offense against a victim who is a minor as defined in R.S. 15:541.

La. R.S. 15:541(24)(a) defines a "sex offense" as any "deferred adjudication, adjudication withheld, or conviction for the perpetration or attempted perpetration of or conspiracy to commit human trafficking when prosecuted under the provisions of R.S. 14:46.2(B)(2)." A "criminal offense against a victim who is a minor" is defined in La. R.S. 15:541(12)(b)(ii) as a conviction for the perpetration or attempted perpetration of or conspiracy to commit a violation of La. R.S. 14:46.2 when the victim is under twenty-one years of age. Thus, under these provisions, registration as a sex offender/child predator is required for persons convicted of human trafficking under certain conditions, including when the victim is under twenty-one years of age.

In the present case, defendant was originally charged with two counts of human trafficking of a person under the age of twenty-one for the purpose of engaging in commercial sexual activity ( La. R.S. 14:46.2(A)(1)(b) ) and thus would have been subject to the harsher sentencing provisions contained in La. R.S. 14:46.2(B)(2)(b). In addition, as originally charged, defendant would have been required to register as a sex offender. See La. R.S. 15:542, La. R.S. 15:541(2)(p), and La. R.S. 15:541(24)(a), supra .

However, on November 30, 2017, the State amended the bill of information to reflect that counts one and two were "amended to 14:46.2(B)(1)" per a "negotiated plea." Pursuant to this penalty provision, defendant faced a fine of not more than ten thousand dollars and imprisonment at hard labor for not more than ten years. In accordance with the plea agreement, defendant was sentenced to seven years imprisonment on each count, which is within the parameters of La. R.S. 14:46.2(B)(1), the amended sentencing provision listed on the superseding bill of information. Under this penalty provision, registration as a sex offender is generally not required unless certain conditions are met, including if the victim of the offense is under the age of twenty-one years. See La. R.S. 15:542, La. R.S. 15:541(2)(p), and La. R.S. 15:541(12)(b)(ii).

In the present case, defendant does not contest that registration as a sex offender is required for those persons convicted of human trafficking when the victim is under the age of twenty-one years. Rather, he maintains that the State's amendment to the superseding bill of information effectively eliminated the age element. Thus, he maintains that the trial court erred in requiring him to register as a sex offender when he was not charged in the amended superseding bill of information with committing an offense against a victim under the age of twenty-one, did not plead guilty to a criminal offense against a victim under the age of twenty-one, and there was no evidence in the record that the victim was under twenty-one years of age.

The State, however, asserts that despite the amendment to the bill of information, defendant was nonetheless required to register as a sex offender because the amendment did not eliminate the "under the age of twenty-one" language. The State reasons that regardless of the fact that it amended the charges to "14:46.2(B)(1)," defendant was required by law to register per La. R.S. 15:542(A)(1)(b) because, while not a sex offense, defendant committed a criminal offense against a victim who is a minor as defined in La. R.S. 15:541(12).

Based on the record before this Court, we find that the trial court erred in granting the State's motion to correct illegal sentence and ordering defendant to register as a sex offender. We acknowledge that when amending the bill of information to La. R.S. 14:46.2(B)(1), the State failed to change the substantive language of the bill of information that alleged that defendant committed human trafficking of a person under the age of twenty-one years for the purpose of engaging in commercial sexual activity. However, aside from the allegation in the bill of information about the victim's age, there is nothing in the record before this Court to suggest that defendant pled guilty to human trafficking of a victim under the age of twenty-one years.

The transcript from the guilty plea hearing reflects that the State amended the bill of information pursuant to a negotiated plea to reflect two counts of La. R.S. 14:46.2(B)(1), and that pursuant to this amendment, defendant withdrew his pleas of not guilty and entered a plea of guilty to two counts of human trafficking. The transcript reflects that no references were made regarding the age of the victim and no factual basis was provided by the State. In addition, the waiver of rights form executed by defendant indicates that defendant pled guilty to two counts of human trafficking pursuant to La. R.S. 14:46.2(B)(1). Once again, no reference was made to the age of the victim in the waiver of rights form. Also, both the transcript of the guilty plea proceedings and the waiver of rights form reflect that defendant was advised of his possible sentencing exposure under La. R.S. 14:46.2(B)(1) and of the actual sentence that would be imposed upon acceptance of his guilty pleas. However, at no point was defendant advised that he would be required to register as a sex offender as part of his negotiated plea agreement.

In fact, at a previous bond hearing during which plea negotiations were discussed, defendant expressed his reluctance at accepting a plea deal if required to register as a sex offender. Defense counsel then requested that the charges be reduced in such a way to relieve defendant of the requirement of registering as a sex offender.

As there is no indication in the record before us that defendant pled guilty to human trafficking of a victim under the age of twenty-one years, which would require registration either as a sex offense or as a criminal offense involving a minor, and no factual basis in the plea transcript that would support this determination, we find that the trial court erred in granting the State's motion to correct illegal sentence. Accordingly, pursuant to our authority in La. C.Cr.P. art. 882, we remove the provision of defendant's sentence that requires him to register as a sex offender, which requirement was added subsequent to the imposition of sentence pursuant to a negotiated plea agreement.

ERRORS PATENT REVIEW

We have also reviewed the record for errors patent, according to La. C.Cr.P. art. 920 ; State v. Oliveaux , 312 So.2d 337 (La. 1975) ; and State v. Weiland , 556 So.2d 175 (La. App. 5th Cir. 1990). Our review reveals no errors that require corrective action.

Accordingly, we affirm defendant's convictions for two counts of human trafficking and the seven-year concurrent sentences imposed pursuant to the negotiated plea agreement. However, we remove the provision of defendant's sentence that requires him to register as a sex offender.

CONVICTIONS AND SENTENCES, AS AMENDED, AFFIRMED

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

      At the guilty plea proceedings, the State was represented by Richard Olivier, and defendant was represented by Alex Lambert. It is noted that these attorneys were not involved in the plea negotiation discussions that occurred at the June 14, 2017 bond reduction hearing.

      In addition, La. R.S. 15:541(2)(p) defines human trafficking as an "aggravated offense" when the trafficking involves a person under the age of twenty-one years or when the services include commercial sexual activity or any sexual conduct constituting a crime under the laws of this state.


text:
    STATE of Louisiana v. Duran D. WHITE
    NO. 18-KA-199
    Court of Appeal of Louisiana, Fifth Circuit.
    November 07, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Metairie, Terry M. Boudreaux, Gretna
    COUNSEL FOR DEFENDANT/APPELLANT, DURAN D. WHITE, Bruce G. Whittaker
    Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Marc E. Johnson
   JOHNSON, J.

Defendant appeals his eight-year multiple offender sentence for unauthorized entry of an inhabited dwelling as unconstitutionally excessive. For the reasons that follow, we affirm his enhanced sentence.

Defendant, Duran White, was charged on April 17, 2017 in a bill of information with one count of unauthorized entry of an inhabited dwelling in violation of La. R.S. 14:62.3. He pled not guilty, proceeded to trial before a six-person jury on September 25, 2017, and was found guilty as charged. On October 3, 2017, the State filed a multiple offender bill of information alleging Defendant to be a third felony offender. Defendant denied the allegations of the multiple bill, and the trial court set a hearing.

On October 20, 2017, prior to sentencing on the underlying offense and prior to the multiple offender hearing, defense counsel filed a motion for the appointment of a sanity commission, alleging that Defendant did not understand the proceedings and was unable to assist counsel. The trial court granted the motion and a competency hearing was held on December 13, 2017. At the competency hearing, the parties stipulated that Defendant was competent to proceed based on the forensic evaluation of Defendant by Dr. Rafael Salcedo, an expert in forensic psychology, and Dr. Richard Richoux, an expert in forensic psychiatry. The trial court accepted the stipulation and found Defendant competent to proceed.

Thereafter, on January 11, 2018, a multiple offender hearing was held at which time the trial court adjudicated Defendant a multiple offender. The next day, January 12, 2018, the trial court sentenced Defendant on the underlying conviction of unauthorized entry of an inhabited dwelling to six years imprisonment at hard labor. The court then vacated Defendant's original sentence and resentenced Defendant as a third felony offender, pursuant to La. R.S. 15:529.1, to eight years imprisonment at hard labor without the benefit of probation or suspension of sentence. Immediately following his sentence, Defendant filed a motion to reconsider sentence alleging his sentence was constitutionally excessive, which was denied by the trial court. This appeal follows.

FACTS

At approximately 11:00 p.m. on February 24, 2017, India Jackson and her 13-year-old son were at her apartment on Lac St. Pierre Drive in Harvey, Louisiana, when she heard a knock on her window. Believing it to be Defendant, the father of her child, Ms. Jackson did not go see who it was. Shortly thereafter, her phone started ringing, displaying a "private number." Ms. Jackson knew the call was from Defendant because she had previously blocked his phone number, which meant the only way he could call her was through a private number. According to Ms. Jackson, when she did not answer, Defendant proceeded to go up and down the stairs outside her apartment knocking on the door and window before he started ringing the doorbell. Not wanting the noise to wake her son, Ms. Jackson went to the front door where Defendant demanded that she open it. Ms. Jackson refused at which time Defendant kicked in the door.

Ms. Jackson ran upstairs, woke her son, and they ran out of the apartment through a third floor door to Ms. Jackson's car. Once inside the car, Ms. Jackson locked the doors, which prompted Defendant - who had followed them - to pull at the passenger side doors with enough force to break the handles. Ms. Jackson immediately drove away but realized she did not have her cellular phone to call the police. She ultimately stopped a passerby on the street and asked to borrow his phone, which she used to call 911 to report that someone had broken into her home. She met the police as they arrived at the scene and relayed what had happened.

Deputy Benjamin Blevins with the Jefferson Parish Sheriff's Office ("JPSO") responded to the call. After speaking to Ms. Jackson, who appeared scared, Deputy Blevins went to her apartment and saw the door open and Defendant inside sitting on the couch. Deputy Blevins advised Defendant of his Miranda rights and then asked him how he got into the apartment. Defendant responded, "I kicked the b***h in," which Deputy Blevins took to mean that he kicked the door in. Defendant also admitted to Deputy Blevins that he did not live in the apartment. According to Deputy Blevins, Defendant kept saying "all kinds of things to the victim," including, "no matter where you run to I'm going to kick that b***h in too." Defendant was arrested at the scene.

Ms. Jackson testified that although Defendant came to her apartment on occasion to see his son, Defendant did not have any belongings in the apartment, was not listed on the lease, and did not have a key to the apartment.

DISCUSSION

Defendant's sole assignment of error on appeal is that his enhanced sentence is excessive. He argues that his predicate offenses, a 2011 conviction for possession of cocaine and a 2003 conviction for purse snatching, do not justify his enhanced eight-year sentence as a third felony offender. He also maintains that the facts of the case - breaking into an apartment where he had once been welcomed - and his history of psychiatric treatment for anxiety and paranoia support his claim that his sentence is unduly harsh.

After his enhanced sentence was imposed, Defendant filed a motion for reconsideration of sentence contending that his sentence was excessive. However, Defendant did not set forth specific grounds upon which his motion for reconsideration was based as required by La. C.Cr.P. art. 881.1 ; therefore, he is limited to a bare review of his sentence for constitutional excessiveness. See State v. Hernandez-Zuniga , 11-378 (La. App. 5 Cir. 12/13/11), 81 So.3d 129, 134, writ denied , 12-28 (La. 4/20/12); 85 So.3d 1268.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. Although a sentence is within statutory limits, it can be reviewed for constitutional excessiveness. State v. Smith , 01-2574 (La. 1/14/03), 839 So.2d 1, 4. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. Id. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Hernandez-Zuniga , supra .

A trial judge has broad discretion when imposing a sentence and a reviewing court may not set a sentence aside absent a manifest abuse of discretion. The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. State v. Hernandez-Zuniga , supra . Three factors are considered in reviewing a trial court's sentencing discretion: (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. Id.

Here, Defendant was convicted of unauthorized entry of an inhabited dwelling in violation of La. R.S. 14:62.3. At the time of the offense, La. R.S. 14:62.3 provided for a sentencing range of not more than six years with or without hard labor and/or a fine of not more than $1,000.

The habitual offender statute in effect at the time Defendant committed and was convicted of the underlying offense - a felony punishable by a term less than his natural life - provided a sentencing range of "not less than two-thirds the longest possible sentence for the conviction and not more than twice the longest possible sentence prescribed for a first conviction," or four to 12 years. La. R.S. 15:529.1(A)(3)(a). In 2017, La. R.S. 15:529.1(A)(3)(a) was amended to provide a sentencing range of "not less than one-half of the longest possible sentence for the conviction and not more than twice the longest possible sentence prescribed for a first conviction," or three to 12 years.

The 2017 amendments to La. R.S. 15:529.1 explicitly provided that their provisions "shall become effective November 1, 2017, and shall have prospective application only to offenders whose convictions became final on or after November 1, 2017." Defendant's conviction was not final prior to November 1, 2017; therefore, under the 2017 amendments to La. R.S. 15:529.1, Defendant faced a sentencing range of three to 12 years as a third felony offender. See State v. Williams , 17-1753 (La. 6/15/18), 245 So.3d 1042.

However, La. R.S. 15:529.1 was again amended by 2018 La. Act No. 542, effective August 1, 2018, to add subsection (K), which states in pertinent part, "...notwithstanding any provision of law to the contrary, the court shall apply the provisions of this Section that were in effect on the date that the defendant's instant offense was committed." We need not decide the retroactive effect of the 2018 amendment to La. R.S. 15:529.1 in this case because regardless of the applicable sentencing range - four to 12 years under the habitual offender law in effect at the time Defendant committed the underlying offense or three to 12 years under the 2017 amendments to La. R.S. 15:529.1 - Defendant received a mid-range eight-year enhanced sentence.

Defendant's eight-year sentence is comparable to the sentences in other cases similarly involving a defendant who has been adjudicated a multiple offender after being convicted of unauthorized entry of an inhabited dwelling. In State v. Riviere , 08-509 (La. App. 5 Cir. 2/25/09), 9 So.3d 233, this Court affirmed an enhanced 12-year sentence for a defendant convicted of unauthorized entry of an inhabited dwelling and adjudicated a second felony offender. (See also State v. Segue , 92-2426 (La. App. 4 Cir. 5/17/94), 637 So.2d 1173, where the Fourth Circuit upheld defendant's 12-year enhanced sentence as a second felony offender convicted of unauthorized entry of an inhabited dwelling; and State v. Scott , 43,175 (La. App. 2 Cir. 2/27/08), 978 So.2d 506, where the Second Circuit upheld a seven-year sentence for a second felony offender convicted of unauthorized entry of an inhabited dwelling.)

Additionally, in State v. Williams , 14-1314 (La. App. 4 Cir. 6/3/15), 2015 WL 3819156, 2015 La. App. Unpub. LEXIS 252, writ denied , 15-1261 (La. 11/7/16), 208 So.3d 896, the Fourth Circuit upheld the defendant's 10-year enhanced sentence as a second felony offender with an underlying conviction for unauthorized entry of an inhabited dwelling. In Williams , the defendant had been dating the victim for a short period of time when he came to her home and rang her doorbell for more than one hour until she was forced to answer the door to prevent the defendant from waking her children. When she refused his request to spend the night, the defendant pushed his way into her home. On the 911 call, the victim was heard complaining that the defendant stabbed her in the arm. The Fourth Circuit found that the defendant's actions on the night in question, coupled with his criminal history, supported the sentence.

And, in State v. Gandy , 45,947 (La. App. 2 Cir. 2/2/11), 57 So.3d 1163, writ denied , 11-639 (La. 10/7/11), 71 So.3d 309, the Second Circuit found that the defendant's 11-year enhanced sentence for unauthorized entry of an inhabited dwelling as a second felony offender was not constitutionally excessive. In Gandy, the defendant - a prior dating partner who had permission to enter the victim's home on prior occasions - entered the victim's home, despite repeated requests that he leave her property, and forced his way into the victim's bathroom while she was bathing.

In addition to a comparison of sentences imposed for similar crimes, we must consider whether Defendant's sentence is individualized to him and to the particular offense committed, and we find that it is. See State v. Boudreaux , 11-1345 (La. App. 4 Cir. 7/25/12), 98 So.3d 881, 891, writ denied , 12-1907 (La. 11/9/12), 100 So.3d 841. In this case, the evidence at trial showed Defendant kicked in the door to the victim's apartment, chased her and their son to the victim's vehicle, attempted to enter the victim's locked vehicle with such force that two of the door handles were ripped from their hinges, and then proceeded to wait inside her apartment for her to return. He continued to threaten the victim by stating, "no matter where you run to I'm going to kick that b***h in too." The record further shows that a Louisiana Uniform Abuse Prevention Order was filed into the record, permanently prohibiting Defendant from any contact with the victim. Defendant was a third felony offender with a predicate conviction for purse snatching, which is designated a crime of violence. We find the record fully demonstrates that Defendant's enhanced sentence was meaningfully tailored to him and to the offense he committed.

Based on the foregoing, we find the trial court did not abuse its broad sentencing discretion when it imposed an enhanced mid-range sentence of eight years at hard labor. Accordingly, we do not find Defendant's sentence to be constitutionally excessive.

We have reviewed the record for errors patent pursuant to La. C.Cr.P. art. 920 and find no errors that require corrective action.

DECREE

Defendant's enhanced eight-year sentence for unauthorized entry of an inhabited dwelling as a third felony offender is hereby affirmed.

AFFIRMED

      We note that the trial court failed to specify the number of felonies proven by the State at the conclusion of the adjudication hearing. However, at the subsequent sentencing hearing, the trial court expressly stated that it found Defendant to be a third felony offender and sentenced him as a third felony offender. (Compare State v. Oliveri , 03-563 (La. App. 5 Cir. 10/28/03), 860 So.2d 207, 219, where this Court found the defendant's enhanced sentence had to be vacated because the trial court failed to specify that the defendant was a third felony offender thereby rendering his enhanced sentence indeterminate and required a remand for the trial court to determine or clarify the number of felonies proven by the State.)

      On the same date, Defendant also pled guilty and was sentenced with respect to three misdemeanor offenses charged in relation to the instant offense. These misdemeanor convictions and sentences are not before this Court in this appeal.

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

      We note that Defendant's original six-year sentence on the underlying offense was vacated and, thus, presents nothing for review.

      See La. R.S. 14:2(B)(24).