author: COX, J.

text:
    STATE of Louisiana, Appellee v. Brandon Dale THOMAS, Appellant
    No. 51,761-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered January 10, 2018
    LOUISIANA APPELLATE PROJECT, By: Holli Herrle-Castillo, Counsel for Appellant
    ROBERT STEPHEN TEW, District Attorney, MICHELLE ANDERSON THOMPSON, Assistant District Attorney, Counsel for Appellee
    Before MOORE, GARRETT, and COX, JJ.
   COX, J.

The defendant, Brandon Dale Thomas ("Thomas"), pled guilty to four counts of attempted aggravated crime against nature. On Counts One and Two, Thomas was sentenced to 25 years at hard labor, with the first 20 years to be served without the benefit of parole, probation, or suspension of sentence. Counts One and Two were ordered to be served concurrently with each other. On Counts Three and Four, Thomas was sentenced to 25 years at hard labor. Counts Three and Four were ordered to be served concurrently with each other, but consecutively to Counts One and Two. Thomas now appeals, arguing that his sentence is excessive. For the following reasons, we affirm.

FACTS

Thomas was charged by bill of information with 13 counts of aggravated crime against nature. The victim, M.C. , is Thomas' stepdaughter. The bill alleged that these crimes occurred between October 6, 2012, and July 25, 2016.

On December 19, 2016, pursuant to a plea agreement, Thomas appeared and pled guilty to four counts of the reduced charge of attempted aggravated crime against nature. During the plea colloquy, the trial court advised Thomas: "[A]s a result of the guilty plea, you'll be subjected to a minimum of 20 years imprisonment at hard labor, the first 20 years being without benefit of parole, probation or suspension of sentence. And the maximum would be 49 years, each count[.]" Thomas affirmed that was his understanding of the full and complete plea agreement. He signed the written plea agreement, which did not include a cap on the maximum sentence or indicate whether the sentences would be served consecutively or concurrently.

As a factual basis for the plea, the state noted that Thomas sexually abused his stepdaughter on multiple occasions between October 6, 2012, and July 25, 2016. The abuse was disclosed when the victim's 15-year-old sister observed Thomas standing in a closet with M.C. in front of him; Thomas quickly zipped up his pants and turned around.

The victim was interviewed at the Child Advocacy Center. After a series of interviews, she disclosed that Thomas had been sexually abusing her since she was three years old. She stated Thomas had abused her over 20 times, and the abuse included forcing her to touch his penis, forcing her to put her mouth on his penis and scrotum, and forcing her to lie naked on top of Thomas' private parts. Thomas conceded that these facts were correct.

On March 22, 2017, after reviewing the presentence investigation report, the trial court sentenced Thomas. On Counts One and Two, Thomas was sentenced to 25 years at hard labor, with the first 20 years to be served without the benefit of parole, probation, or suspension of sentence. Counts One and Two were ordered to be served concurrently with each other. On Counts Three and Four, Thomas was sentenced to 25 years at hard labor. Counts Three and Four were ordered to be served concurrently with each other, but consecutively to Counts One and Two.

The defense filed a motion to reconsider sentence, arguing that Thomas' sentences were unduly harsh since he was a true first-offender. The trial court denied the motion. This appeal followed.

DISCUSSION

Thomas argues that his sentences, as imposed consecutively, are excessive. Thomas notes he is a 39-year-old, first-offender with no criminal record, and a 50-year sentence is essentially a life sentence. Specifically, he contends that the trial court failed to give proper consideration to the sentencing factors, as evidenced by the trial court's assertion that, due to the nature of Thomas' crime, he would always be a danger to others and could not be rehabilitated. Further, Thomas asserts that it was unfair for the trial court to use the plea agreement as a factor in favor of a harsh sentence. He claims that the trial court failed to consider the fact that he admitted to the offenses, was remorseful, and spared the victim any further trauma by accepting the plea.

In reviewing a sentence for excessiveness, an appellate court utilizes a two-step process. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The goal of La. C. Cr. P. art. 894.1 is for the court to articulate the factual basis for the sentence imposed, not to impose rigid or mechanical compliance with its provisions. State v. Nixon , 51,319 (La. App. 2 Cir. 5/19/17), 222 So.3d 123. The article provides a list of aggravating and mitigating factors that the court may consider to determine if the defendant is eligible for a suspended sentence or probation. Although the trial court is not required to list every aggravating or mitigating circumstance present in the case, the record should reflect that the court adequately considered the guidelines of the article. Id. The important elements which should be considered are the defendant's personal history (age, family ties, marital status, health, and employment record), prior criminal record, seriousness of the offense, and the likelihood of rehabilitation.

State v. Johnson , 51,430 (La. App. 2 Cir. 7/5/17), 224 So.3d 505. There is no requirement that specific matters be given any particular weight at sentencing. State v. Thompson , 50,392 (La. App. 2 Cir. 2/24/16), 189 So.3d 1139.

Second, the appellate court must consider whether the sentence is constitutionally excessive. A sentence violates La. Const. art. I, § 20 if it is grossly out of proportion to the severity of the crime or nothing more than a purposeless and needless infliction of pain and suffering. State v. Lewis , 49,138 (La. App. 2 Cir. 6/25/14), 144 So.3d 1174, writ not cons. , 16-0235 (La. 3/14/16), 188 So.3d 1070. A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. Id.

The trial court has wide discretion in the imposition of sentences within the statutory limits, and such sentences should not be set aside as excessive in the absence of a manifest abuse of that discretion. State v. Allen , 49,642 (La. App. 2 Cir. 2/26/15), 162 So.3d 519, writ denied , 15-0608 (La. 1/25/16), 184 So.3d 1289. A trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular case. Id. On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. State v. Jackson , 48,534 (La. App. 2 Cir. 1/15/14), 130 So.3d 993.

A substantial advantage obtained by means of a plea bargain is a legitimate consideration in sentencing. State v. Mendenhall , 48,028 (La. App. 2 Cir. 5/15/13), 115 So.3d 727. Accordingly, where a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence for the plea offense. State v. Lapoole , 51,199 (La. App. 2 Cir. 2/15/17), 215 So.3d 430.

When two or more convictions arise from the same act or transaction, or constitute parts of a common scheme or plan, the terms of imprisonment shall be served concurrently, unless the court expressly directs that some or all be served consecutively. La. C. Cr. P. art. 883. Concurrent sentences arising out of a single course of conduct are not mandatory, and consecutive sentences under those circumstances are not necessarily excessive. State v. Hebert , 50,163 (La. App. 2 Cir. 11/18/15), 181 So.3d 795. It is within the trial court's discretion to make sentences consecutive rather than concurrent. State v. Robinson , 49,677 (La. App. 2 Cir. 4/15/15), 163 So.3d 829, writ denied , 15-0924 (La. 4/15/16), 191 So.3d 1034.

A judgment directing that sentences stemming from a single course of conduct be served consecutively requires particular justification from the evidence or record. When consecutive sentences are imposed, the trial court shall state the factors considered and its reasons for the consecutive terms. Among the factors to be considered are: (1) the defendant's criminal history; (2) the gravity or dangerousness of the offense; (3) the viciousness of the crimes; (4) the harm done to the victims; (5) whether the defendant constitutes an unusual risk of danger to the public; (6) the potential for the defendant's rehabilitation; and (7) whether the defendant has received a benefit of a plea bargain. State v. McDuffey , 42,167 (La. App. 2 Cir. 6/20/07), 960 So.2d 1175, writ denied , 07-1537 (La. 1/11/08), 972 So.2d 1163. However, the failure to articulate specific reasons for consecutive sentences does not require remand if the record provides an adequate factual basis to support consecutive sentences. State v. Robinson, supra .

La. R.S. 14:89.1(C)(2) provides:

Whoever commits the crime of aggravated crime against nature as defined by Paragraph (A)(2) of this Section with a victim under the age of thirteen years when the offender is seventeen years of age or older shall be punished by imprisonment at hard labor for not less than twenty-five years nor more than ninety-nine years. At least twenty-five years of the sentence imposed shall be served without benefit of parole, probation, or suspension of sentence.

When a defendant is convicted of an attempted offense, the punishment is "in the same manner as for the offense attempted," but the term of imprisonment "shall not exceed one-half of the longest term of imprisonment prescribed for the offense so attempted." La. R.S. 14:27(D)(3). There is no express statutory minimum sentence for being convicted of an attempt, and principles of lenity require that the statute be strictly construed. State v. Fleming , 51,332 (La. App. 2 Cir. 5/2/17), 219 So.3d 499.

After reviewing the record, we find the trial court did not abuse its discretion in sentencing Thomas to 25 years at hard labor on each of four counts of attempted aggravated crime against nature, for a total sentence of 50 years at hard labor. We do not believe the trial court abused its discretion in sentencing Thomas, pursuant to the plea agreement, to serve 25 years at hard labor on Counts One and Two, and 25 years at hard labor on Counts Three and Four, to run consecutively with each other.

At the sentencing hearing, the trial court adequately considered the facts of this case, the information provided in the presentence investigation report, and the applicable sentencing factors set forth in La. C. Cr. P. art. 894.1. The trial court also considered all filings and testimony received on behalf of Thomas and the victim, the applicable sentencing range, and the benefit Thomas received as a result of the plea agreement.

The trial court stated that although Thomas has no criminal history and is now remorseful, there are certain crimes that are "unforgivable" and "inexcusable." In outlining the facts of this case, the trial court noted that Thomas' acts are "disgusting and despicable acts against a mere child; a child who is defenseless." On multiple occasions, Thomas took the victim to his room, closed the door, and forced her to perform oral sex on him. Thomas also rubbed his penis on the victim to the point where it caused her pain.

In reviewing the sentencing guidelines under La. C. Cr. P. art. 894.1, the trial court noted several aggravating factors. The trial court stated that Thomas' conduct during the commission of the offense manifested deliberate cruelty to the victim. He terrorized the victim by threatening to kill her mother if she told anyone. The victim was forced to perform "vulgar, disgusting and unacceptable sexual acts," and when she tried to resist, she was slapped, threatened, and her hair was pulled. The trial court also found that Thomas knew or should have known that the victim was particularly vulnerable or incapable of resisting due to her extreme youth, as she was only three years old when the abuse began. Thomas used his position of trust, as the victim's stepfather, to facilitate the commission of the offense. Additionally, the trial court observed that the offense resulted in a significant, permanent injury and loss to the victim and her family. The trial court indicated that the victim will have lifelong psychological injuries and will need extensive counseling. Further, the trial court believed there was an undue risk that, during a period of a suspended sentence or probation, Thomas would commit another crime. The court expressed its doubt that Thomas could be rehabilitated, stating that sex offenders represent a danger to society.

As it relates to mitigating factors, the trial court considered that Thomas has no prior criminal history, but noted his arrest in 2014 for domestic abuse battery against his wife. The court also indicated that Thomas' incarceration would cause an excessive hardship on his three sons, ages 19, 17, and 13. Additionally, the trial court recognized that Thomas has been employed by Coca-Cola Bottling Company since high school and has undergone cancer treatment through chemotherapy.

The record adequately supports the sentences imposed. At the sentencing hearing, the trial court stated it considered each of the counts against Thomas to be separate and distinct acts, and it believed it could justify consecutive sentences for each count.

Thomas' mid-range sentences, although ordered to be served consecutively, are not constitutionally excessive. Thomas admitted to engaging in sexual activities with his three-year-old stepdaughter multiple times over the course of three years. He forced the child to perform oral sex on him and threatened to kill her mother if she told anyone.

Thomas received a substantial benefit in sentencing as a result of the plea agreement, as he was facing thirteen counts of aggravated crime against nature. In exchange for his plea, the state reduced four of the counts against Thomas to attempted aggravated crime against nature and dismissed the remaining nine counts. His total sentence of 50 years for four counts is only six months longer than the maximum sentence for one count of attempted aggravated crime against nature.

Based on the record and the benefit Thomas received from the plea agreement, the sentences imposed by the trial court do not shock the sense of justice, nor are they grossly disproportionate to the severity of the offenses.

CONCLUSION

For the foregoing reasons, we affirm the defendant's convictions and sentences.

AFFIRMED.

      M.C. was born on 10/6/09.

      The trial court received letters on Thomas' behalf from his ex-wife, children, family members, and friends. Also, at the sentencing hearing, Thomas admitted that he made a mistake, stated he was truly sorry for his actions, and asked the trial court for leniency. Jennifer Thomas, Thomas' wife and the victim's mother, and Amanda Desean, Jennifer's friend, testified as to the emotional impact on the victim and her family, noting that Thomas took away the victim's innocence, and she now lives in constant fear.

      This charge was later dismissed.


source: Caselaw Access Project

author: MOORE, J.

license: Public Domain

text:
    RED SOX INVESTMENTS, LLC., et al., on Behalf of Itself and a Class of Similarly Situated Property, Owners Plaintiffs-Appellants v. CITY OF SHREVEPORT, Louisiana, and Caddo Parish, Louisiana, Defendants-Appellees
    No. 51,817-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered February 28, 2018
    RICHIE, RICHIE & OBERLE, By: Byron A. Richie, SHUEY, SMITH, L.L.C. By: Richard E. Hiller, MICHAEL H. WAINWRIGHT, Shreveport, Counsel for Appellant, Red Sox Investments
    BRADLEY, MURCHISON, KELLY & SHEA, L.L.C., By: Leland Gray Horton, Counsel for Appellee, Caddo Parish, LA
    PETTIETTE, ARMAND, DUNKELMAN, By: Edwin Henry Byrd, III, Shreveport, Counsel for Appellee, City of Shreveport
    WIENER, WEISS & MADISON, By: John M. Madison, Jr., Shreveport, Counsel for Intervenor/Appellee, Sheriff Steve Prator
    ABRAMS & LAFARGUE, LLC, By: Reginald W. Abrams, Shreveport, Counsel for Intervenor/Appellee, Caddo Parish School Board
    Before MOORE, COX, and STEPHENS, JJ.
   MOORE, J.

Red Sox Investments LLC ("Red Sox"), and its proposed class of similarly situated property owners, appeal a judgment that sustained exceptions of no cause of action filed by, and dismissed all claims against, Caddo Parish and the City of Shreveport. For the reasons expressed, we affirm.

PROCEDURAL BACKGROUND

Red Sox filed this suit in May 2014, in the First JDC, alleging that the Parish and City failed to follow the procedures set out in La. R.S. 47:2231 -2234 for the lease of adjudicated property and the allocation of the rent payments generated. Prior to 2009, certain property owners had failed to pay their taxes: 39 individual lots of tracts were listed, but "500 properties more or less" were alleged to be affected. The Parish and City offered these lots at tax sales, but no one purchased them, so they were adjudicated to the Parish and City under La. R.S. 47:2196. Red Sox alleged that it acquired several of these lots by quitclaim deeds from the tax debtors, but admitted that it did not redeem any of them.

In 2009, the Parish and City, acting through the State Mineral and Energy Board, executed mineral leases covering areas that included the adjudicated properties. These leases gave the lessees no right to use the surface, but granted the executive right to explore for and extract minerals from the lands encompassed in each lease. The lessees made a bonus payment and committed to future royalties, a portion of which was attributable to the adjudicated properties.

Red Sox alleged that the Parish and City did all this without complying with Title 47, Chapter 5, Subpart C ("Political Subdivisions Acquiring Ownership"). R.S. 47:2231 says that after receiving an adjudication certificate, the political subdivision "may" file suit in district court "to obtain possession of the adjudicated property." R.S. 47:2232 says that upon presentation of a certified copy of the tax sale certificate, "after ten days' notice to the owner and proper hearing," the judge shall issue an order of possession in favor of the political subdivision. R.S. 47:2233 says that after receiving the order of possession, the political subdivision then "may, without the necessity of public letting, lease the adjudicated property on commercially reasonable terms and collect rentals." The political subdivision shall apply the rentals first to court costs, and then "all rental income shall be applied against any taxes * * * due against the property." Further, "When all of the obligations have been paid in full, the political subdivision shall issue a proper certificate of redemption and surrender its possession of the property." In other words, the leasing of adjudicated property is intended to benefit the tax debtor and result in ultimate redemption to the owner.

Red Sox alleged that the Parish and City did not file suit to obtain possession, did not give 10 days' notice to the owners, and, crucially, did not apply the signing bonus and royalty payments toward the unpaid taxes. In Red Sox's view, many of the adjudicated properties were small, and the signing bonus alone would have been sufficient to cover all back taxes and effect a redemption to the owners. It cited one specific tract (Lot 6, Happy Trails Subd.) that had been seized for nonpayment of 1990-'91 taxes, and was included in a mineral lease granted by the City in 2009. By Red Sox's reckoning, this lot earned some $6,798.98 in mineral revenue, an amount sufficient not only to pay all back taxes but to create revenue for the owner.

Red Sox concluded that the Parish and City's conduct was willful and constituted an illegal taking of property, an improper allocation of mineral revenues, and denial of due process. It demanded certification of the class of all affected owners of adjudicated properties. On behalf of the class, it demanded all monetary and other relief afforded by R.S. 47:2231 et seq., an accounting, and a permanent injunction.

The Parish and City filed separate exceptions of no cause of action. The Parish argued that the cited tax statutes apply only to surface leases, not to mineral leases. The Parish showed that it leased only its inchoate rights to the minerals, as expressly authorized by the Mineral Code, La. R.S. 31:117, and did not impair any landowner's right to redeem his property. It also argued that it "was not required to undertake management of the property for another." The Parish cited a case from the First JDC, Sapphire Land Co. v. Chesapeake La. , in which Judge (now Justice) Scott Crichton had rejected exactly the same argument, concluding that in matters of mineral rights, the Mineral Code superseded the Tax Code, and that R.S. 47:2231 et seq. did not apply to mineral leases affecting adjudicated properties. The City fully adopted the Parish's position.

In May 2015, this court affirmed the district court case, Sapphire Land Co. v. Chesapeake La. , 49,712 (La. App. 2 Cir. 5/20/15), 172 So.3d 122. Our opinion held that under R.S. 47:2231, "the filing of a lawsuit to be placed in possession is discretionary." We further held that R.S. 47:2231 - 2233 "do not prohibit the state from leasing the minerals under the more specific provisions of the Mineral Code."

The Parish promptly reported this opinion to the district court, arguing that political subdivisions are specifically permitted to lease the minerals to "lands adjudicated," under R.S. 30:124 B. It argued that if R.S. 47:2231 -2233 did not apply to the grant of mineral leases, then Red Sox could not state a cause of action. The City adopted this argument.

ACTION OF THE DISTRICT COURT

The parties argued their exceptions over two days in June and August 2015. They stipulated that Red Sox acquired its property by quitclaim deed before the mineral leases were executed, thus creating a factual distinction from Sapphire Land . Red Sox urged that constitutional guarantees of due process and just compensation are overarching, are correctly enshrined in R.S. 47:2231 -2233, and cannot be preempted by R.S. 30:124 ; the taxing authority cannot "opt out of due process."

The Parish and City countered that the more specific provision of law should prevail, and while Title 47 appears to regulate tangible property and possessory rights, the Mineral Code is more specific to mineral leases; in fact, Sapphire Land held precisely this. Aware that the plaintiff in Sapphire Land had taken writs, the district court deferred ruling.

In November 2015, the Supreme Court denied writs, Sapphire Land Co. v. Chesapeake La. , 2015-1372 (La. 11/6/15), 180 So.3d 307.

At a brief hearing in January 2016, the district court granted the Parish's and City's exceptions of no cause of action. The judgment gave Red Sox 30 days to amend its petition to state a cause, and dismissed all other exceptions and incidental actions as moot.

Red Sox filed a supplemental and amending petition reiterating its original allegations, but adding that to apply Sapphire Land would deny them due process under Mennonite Bd. of Missions v. Adams , 462 U.S. 791, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983), and claiming attorney fees under R.S. 13:5111 A (compensation for taking other than by expropriation).

In April 2016, the City removed the case to the Western District of Louisiana, where the Parish filed a motion to dismiss the amended petition for lack of subject matter jurisdiction, FRCP 12(b)(6). The federal district court found that because no plaintiff had actually redeemed any of the adjudicated tracts, there was no property interest subject to Mennonite notice. The court dismissed the claim, without prejudice, and, in December 2016, remanded the case to the First JDC.

Once the case was remanded, Red Sox took this devolutive appeal.

THE PARTIES' POSITIONS

Red Sox designates three assignments of error. First, the court erred in finding that taxing authorities who execute mineral leases covering tax-adjudicated property have no legal or constitutional obligation to apply the revenues from those mineral leases to the past-due taxes. Second, the court erred in finding that those taxing authorities also have no legal or constitutional obligation to remit to the property owner the portion of revenues from those mineral leases that exceeds the past-due tax. Third, the court erred in finding that the owners of tax-adjudicated properties have no legally recognized cause of action to recover losses and damages occasioned by this conduct. Red Sox analogizes its position to that of a citizen who owes $1,000 in income tax: unsatisfied with her payment efforts, the state could seize her bank account. However, if the bank account has a balance of $2,500, the state cannot keep the extra $1,500; "that's just fundamental fairness." Red Sox argues that unless the protections of Title 47 are honored, the Parish and City can collect $10,000 in bonus money against $100 in taxes, and the taxpayer receives nothing.

Red Sox concedes that the government's authority to execute mineral leases has been litigated in Sapphire Land Co. , but suggests the case is not binding because it involved third-party plaintiffs who acquired the property after the adjudication and subject to the mineral leases, while Red Sox acquired its property before adjudication, and that the plaintiffs in Sapphire Land Co. were trying to annul the mineral leases, which Red Sox is not seeking. Red Sox also argues that a separate opinion in Sapphire Land Co. , dissenting from the denial of rehearing, should be followed rather than the majority opinion. It asks this court to reverse and remand.

The Parish responds that this court has already determined that the referenced tax statutes do not apply to mineral leases, in Sapphire Land Co. , supra . Specifically, R.S. 47:2233 refers to the political subdivision "taking or being placed in possession" of the property, but physical possession is not required for the grant of a mineral lease; only an executive right is required. La. R.S. 31:117. Also, Mineral Code provisions are more specific and thus supersede general laws. La. R.S. 31:2. The Parish concedes that Red Sox might have a stronger argument if it, or any putative class member, had attempted to redeem the property or to lease its inchoate mineral rights; however, none of them did so. Even if the tax statutes applied, the Parish suggests, there would be no cause of action because the tax debtor was never improperly dispossessed of his property. The Parish seeks affirmance.

The City fully adopts the Parish's argument, adding only that Red Sox also failed to state a right of action, a deficiency that would support the finding of no cause, Schexnayder v. Gish , 41,819 (La. App. 2 Cir. 2/7/07), 948 So.2d 1259. The City also seeks affirmance.

DISCUSSION

The fundamental issue in this case was resolved in Sapphire Land Co. , supra . There, someone named Ebey bought two acres of land in 1986 but failed to pay the property taxes; someone named Smith bought the property at tax sale; neither Ebey nor Smith ever redeemed the property or paid the taxes. In 1988, the property was adjudicated to the parish. In 2009, the parish leased the property for mineral exploration. In 2010, Sapphire bought Ebey's and Smith's interests by quitclaim deeds, and paid the 1987 taxes on the property. Sapphire then sued the lessee alleging, inter alia, that the parish failed to allocate any of the bonus revenue or royalty payments to past due taxes as required by R.S. 47:2233. After trial on the merits, the district court rejected Sapphire's claims.

On appeal, this court affirmed. We stated that Title 47 authorized a political subdivision to take ownership of property adjudicated to it following a tax sale; that the political subdivision may (but is not required to) file a petition to be placed in actual possession of the property; and it may then lease the adjudicated property and collect the rent. We then held (with emphasis added , footnotes omitted):

In the instant case, it is undisputed that Caddo Parish did not institute a lawsuit to take possession of the property prior to entering into the mineral lease. Under the provisions set forth in R.S. 47:2231 and 2233, the filing of a lawsuit to be placed in possession is discretionary. Also, these provisions do not prohibit the state from leasing the minerals under the more specific provisions of the Mineral Code. * * * We note that the parish did not lease the property itself; it merely leased the mineral rights, which are neither assessable nor taxable. See, La. Const. Art. VII §§ 4 and 21. Therefore, we find that the trial court did not err in concluding that the provisions set forth in Title 47 of the Revised Statutes do not apply to the mineral lease.

The repeated reference to "possession" in R.S. 47:2231 -2233 shows an intent to protect the tax debtor's possessory rights. However, the mineral leases in this case do not allow surface operations or other use of the underlying property. Nothing about the mineral leases evicted Red Sox from the adjudicated property. By plain reading, Title 47 does not apply to this case. We see no basis to overrule our rationale in Sapphire Land Co.

Moreover, the provisions of Titles 30 and 31, being more specific, apply to mineral leases. South Lafourche Levee Dist. v. Jarreau , 2016-0788 (La. 3/31/17), 217 So.3d 298 ; Horil v. Scheinhorn , 95-0967 (La. 11/27/95), 663 So.2d 697. In particular, La. R.S. 30:124 B authorizes the State Mineral Board to grant mineral leases of all state properties, including lands adjudicated through tax sale:

B. The State Mineral and Energy Board, hereinafter referred to as the "board", has authority to lease for the development and production of minerals, oil, gas, or alternative energy sources, any lands belonging to the state, or the title to which is in the public, including road beds, water bottoms, vacant state lands, and lands adjudicated to the state at tax sale.
* * *

The State Mineral Board is also empowered to act on behalf of any "agency," defined in La. R.S. 30:151 to include any parish or municipality. However, under R.S. 30:153 A, all bonus money from such leases is paid to the agency:

Any agency may by resolution direct the State Mineral and Energy Board to lease its land in the manner provided in Subpart A of this Part. The bonus money, if any, received for the lease shall be transmitted by the State Mineral and Energy Board to the agency. After the execution of the original lease, all rights and authority in connection therewith shall be vested in the agency to the same extent as if the agency had itself leased the land.

Even if an owner has only an executive interest, La. R.S. 31:117 authorizes him to lease it:

A mineral lease may be granted by the owner of an executive interest whose title is extinguished at a particular time or upon the occurrence of a certain condition, but it terminates at the specified time or on occurrence of the condition diverting the title.

The purchaser at a tax sale acquires an inchoate or contingent right. Wells v. Joseph , 95 So.2d 843 (La. App. 2 Cir. 1957), aff'd , 234 La. 780, 101 So.2d 667 (1958). Under R.S. 30:153 and 31:117, a parish or city owning such an interest may grant a mineral lease on it. Under R.S. 31:117, Red Sox would also be at liberty to grant mineral leases over its contingent or executive interest. In light of this fact, it is immaterial that Red Sox acquired its interest by quitclaim deed before the parish and city executed the mineral leases. Plainly, no action of the parish or city divested Red Sox, or other affected owners, of the right to grant mineral leases on their executive interests.

The exception of no cause of action tests the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged therein. Moreno v. Entergy Corp. , 2010-2268 (La. 2/18/11), 64 So.3d 761 ; B.A. Kelly Land Co. v. Questar Expl. & Prod. Co. , 47,509 (La. App. 2 Cir. 11/14/12), 106 So.3d 181, writ denied , 2013-0331 (La. 4/19/13), 112 So.3d 223. Our conclusion is that the parish and city acted completely within the authority granted by Titles 30 and 31, and were not required to follow the additional procedures of Title 47. Moreover, Red Sox was deprived of no right to lease its own executive mineral interests. For these reasons, the petition does not state any grounds for relief: there was no illegal taking of property, no improper allocation of mineral revenues, no denial of due process, and no right to claim the protections of Title 47. The district court did not err in sustaining the exception of no cause of action.

CONCLUSION

For these reasons, the judgment is affirmed. Costs are to be paid by Red Sox Investments LLC.

AFFIRMED .

      The City also filed an exception of no right of action, and the Parish, exceptions of no right and of improper cumulation of parties and claims. In addition, the Sheriff of Caddo Parish and the Caddo Parish School Board filed petitions of intervention. All these incidental claims were mooted by the finding of no cause.

      By reply brief, the Parish questioned whether the judgment was appealable, as the First JDC had never ruled on Red Sox's Mennonite claim. In fact, this court has dismissed appeals in such circumstances, Riddle v. Simmons , 548 So.2d 113 (La. App. 2 Cir. 1989), Minnieweather v. Brumley , 602 So.2d 1062 (La. App. 2 Cir. 1992). At oral argument, however, counsel for Red Sox conceded that its amended petition was "moot" and thus would not lead to piecemeal litigation.

      Subpart A includes Section 134.


author: WILLIAMS, J.

text:
    NATIONAL COLLEGIATE STUDENT LOAN TRUST 2005-2, Plaintiff-Appellee v. Victoria HENDERSON, Carolyn Henderson, Defendants-Appellants
    National Collegiate Student Loan Trust 2004-2, Plaintiff-Appellee v. Victoria Henderson, Carolyn Henderson, Defendants-Appellants
    51,805-CA 51,806-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered February 28, 2018
    Ernest H. Gilliam, III, Counsel for Appellants
    Eaton Group Attorneys, L.L.C., By: Gregory M. Eaton, Kevin J. Gillie, April F. Jackson, Michael L. Lancaster, Counsel for Appellee
    Before WILLIAMS, MOORE, and GASKINS (Ad Hoc ), JJ.
   WILLIAMS, J.

In these consolidated cases, the district courts granted summary judgments in favor of the plaintiffs, National Collegiate Student Loan Trust 2005-2 and National Collegiate Student Loan Trust 2004-2. The defendants, Victoria Henderson and Carolyn Henderson, appeal. For the following reasons, we affirm.

FACTS

In 2004 and 2005, the defendants, Victoria Henderson ("Victoria") and Carolyn Henderson ("Carolyn"), obtained multiple Education One Undergraduate Loans issued through Bank One, N.A. Victoria is Carolyn's daughter and the loans were obtained to pay for Victoria's college education. At some point, the loans were sold or transferred to National Collegiate Student Loan Trust ("National Collegiate"). In 2009, Carolyn began repaying one of the loans; she began repaying the other loan in 2010. In July 2012, Carolyn checked her credit report, which, according to her, reflected that the loans had been "paid in full" in September 2009. At that point, Carolyn stopped making payments because she erroneously believed that her debt had been either "forgiven" or "paid off." However, a closer review of Carolyn's credit report revealed that the loans had, in fact, been "charged off" and "transferred to recovery."

In December 2012, the Eaton Group Attorneys, LLC, the law firm that represents National Collegiate, informed Victoria and Carolyn that the balances on the loans were still due. According to Carolyn, she was confused because she had never entered into a loan agreement with National Collegiate, and she was unaware that the loans had been transferred to that entity. Nevertheless, after further discussions, Carolyn began making payments to the Eaton Group in July 2013.

On September 6, 2013, the plaintiff, National Collegiate Student Loan Trust 2005-2 ("Case No. 1"), filed a lawsuit against Victoria and Carolyn, to collect on an "open student loan account" in the amount of $42,595.75, "together with accrued interest of $5,797.78, in addition to interest from the date of judgment and attorney fees in the amount of 25% of the total of both principal and interest, and all costs of these proceedings, subject to a credit of $50.00." The defendants were served with the petition, along with requests for admission of facts.

Subsequently, on September 16, 2013, the plaintiff, National Collegiate Student Loan Trust 2004-2 ("Case No. 2"), filed another lawsuit against the defendants to collect on an alleged "open student loan account" "in the full sum of $32,578.31, together with accrued interest of $4,916.11," in addition to interest from the date of judgment and attorney fees "in the amount of 25% of the total of both principal and interest, and all costs of these proceedings, subject to a credit of $50.00." The defendants were also served with this petition, along with requests for admission of facts.

Thereafter, the defendants, appearing in proper person, filed answers to the petitions, generally denying the facts alleged therein. Thereafter, the plaintiffs propounded interrogatories in both cases, with which the defendants were served. Initially, the defendants did not answer requests for discovery. Rather, Carolyn mailed correspondence to the Eaton Group to support her contention that the loans and been "paid in full."

Subsequently, Carolyn Henderson responded to interrogatories propounded as follows:

NOTE INTERROGATORIES
* * *
I. The creditor indicates a balance on the note of $32,578.31 as of May 8, 2013. Do your records reflect otherwise and if so, please describe.
Answer: Yes. I have already forwarded you the updated documents.
II. The creditor indicates that all funds described in the note were advanced. Do your records reflect otherwise and if so, please describe.
Answer: Yes. I have already forwarded you the updated documents.
III. The creditor indicates that all payments and credits have been applied to the balance. Do your records reflect otherwise and if so, please describe.
Answer: I agree with creditor that all payments and credits have been applied to balance, which the current balance is 0 on all 3 accts, which my records reflect.
IV. The note includes various terms, including provision for interest and attorneys fees as reflected in the petition. These terms were agreed upon when you signed the note. Please fully describe any terms which you feel are not accurately reflected in the petition, full detail the suggested accurate terms; and describe and attach any document which substantiates an agreement as to any different terms.
Answer: All three accounts are paid in full. Denies any and all attorney fees.

However, the defendants did not file any answers to requests for discovery filed in regard to Case No. 1. Additionally, the defendants did not respond to requests for admissions of fact in either case.

On January 16, 2015, the plaintiffs filed a motion for summary judgment, or in the alternative, a motion to compel answers to discovery. A hearing was set for April 27, 2015. However, the defendants obtained counsel, who filed a motion to enroll on April 10, 2015. Thereafter, the defendants filed a motion to continue the hearing; the motion to continue was granted and the matter was "to be set at a later date." On June 16, 2015, the defendants' attorney filed a motion to withdraw. The district court granted the motion to withdraw and granted to the defendants "sixty (60) days to obtain new counsel." Consequently, the plaintiffs' first motions for summary judgment/motions to compel answers to discovery were not heard.

On September 10, 2015, the plaintiffs filed another motion for summary judgment/motion to compel in both cases. With regard to Case No. 1, the plaintiffs submitted the following documents in support of the motion for summary judgment:

The petitions and the defendants' answers to the petitions;
Discovery requests (requests for admission of facts, requests for genuineness of documents, requests for production of documents, note interrogatories and domestic interrogatories);
Multiple letters to the defendants regarding Rule 10.1 conferences and requesting answers to discovery;
Carolyn's responses to interrogatories;
A supplemental affidavit of correctness of account signed by Kim Sibley, who attested as to the unpaid balance on the loan;
Two affidavits and verifications of account signed by Dudley Turner and Coleen Morgan, who attested that they were familiar with the education loan records, and that the defendants had "failed, refused, and/or neglected to pay the balance or balances pursuant to the agreed repayment schedule or schedules." Turner and Morgan also attested that all payments made by the defendants had been applied to the account and they owed "the principal sum of $42,595.75, together with accrued interest in the amount of $5,797.78, totaling the sum of $48,393.53 as of 2/25/2014."
Notice letters regarding the debts from Eaton Group attorneys to the defendants;
A Pool Supplement regarding the note transfer to The National Collegiate Funding, LLC;
Note disclosure statement;
A copy of loan request/credit agreement signed by the defendants on May 18, 2005; and
Loan payment history reports

With regard to Case No. 2, the plaintiffs submitted the following documents:

The petitions and the defendants' answers to the petitions;
Discovery requests (requests for admission of facts, requests for genuineness of documents, requests for production of documents, note interrogatories and domestic interrogatories);
Multiple letters to the defendants regarding Rule 10.1 conferences and requesting answers to discovery;
Carolyn's responses to interrogatories;
A supplemental affidavit of correctness of account signed by Kim Sibley, who attested as to the unpaid balances on the loan;
An affidavit and verification of account signed by Demetrius Nickens, who attested that he was familiar with the education loan records in Case No. 2, and that the defendants had "failed, refused, and/or neglected to pay the balance or balances pursuant to the agreed repayment schedule or schedules." Nickens also attested that all payments made by the defendants had been applied to the account and they owed "the principal sum of $32,578.31, together with accrued interest in the amount of $4,916.11, totaling the sum of $37,494.42 as of 11/4/2013";
Notice letters regarding the debts from Eaton Group attorneys to the defendants;
A Pool Supplement regarding the note transfer to The National Collegiate Funding, LLC;
Note disclosure statement, indicating that a loan was issued to the defendants on August 26, 2004, in the principal amount of $21,857.92;
A copy of loan request/credit agreement signed by the defendants on August 17, 2004;
Loan payment history reports.

The defendants did not file a formal response to either motion for summary judgment. However, in Case No. 2, on November 30, 2015, the defendants submitted the affidavit of Carolyn Henderson, in which she attested as follows: (1) she had "not stopped making payment[s] since 2013"; and (2) the total amount she has paid on the loans is $9,483.40. The defendants also attached a supplemental affidavit executed by Carolyn, in which she again attested that the "records should reflect that I have not missed a payment since 2013 and the correct amount that should be credited to the balance of the loan is $9,483.40." The defendants also filed a "statement of contested facts," in which Carolyn Henderson again stated that she had "been making monthly payments and currently pays $150 per month." She also stated that she had paid a total of $9,483.40, which was "not accurately reflected in the National Collegiate documents." The defendants attached copies of Carolyn's bank statements from Chase Bank which showed that beginning in 2009, Carolyn made numerous online payments to various entities, including American Education Services ("AES"), Sallie Mae, National Enterprise Systems, Inc. and MRS Associates, Inc. ("MRS"). With regard to these entities, the bank statements do not contain any information as to which student loans were paid. However, Carolyn's bank statements reflect that between July 2013 and November 2015, she made a total of 28 payments to the Eaton Group in the amount of $150 each, totaling $4,200.

Hearings were held in both cases. At both hearings, the defendants represented themselves and admitted that they incurred the student loan debts in 2004 and 2005. However, Carolyn argued that after checking her credit report, she believed the loans were forgiven, thus freeing her and her daughter from making additional payments. In response, the plaintiffs argued that Carolyn's credit report clearly stated that the balance on the loans had been transferred to collections.

At the conclusion of the hearing regarding Case No. 1, the district court granted summary judgment in favor of the plaintiff, stating:

I'm going to grant them their summary judgment, all right, because you've got to have an opposition filed within a certain period of time saying either I don't owe it or I don't owe this amount, something to show that. But I'm sure they'll work with you on a payment plan.
* * *
This is a summary judgment. It's just saying that you owe this money to them. * * * Now, payment arrangements are between you and the creditor.
* * *

The court rendered summary judgment in favor of the plaintiff in the amount of $42,595.75, "together with accrued interest of $5,797.78, and additional interest of 4% from the date of judgment, subject to a credit of $1,150.00, and for all costs of these proceedings."

Likewise, with regard to Case No. 2, the district court granted summary judgment "in the full sum of $32,578.31, together with accrued interest of $4,916.11, and additional interest of 4% from the date of judgment, subject to a credit of $1,150.00 and any additional amount paid by defendants[.]" The court stated:

* * *
[T]he letter that you sent to the Court dated November 27, 2015, and I believe, I believe what you have just handed the Court, this Experian report was attached to that letter * * * and so I will give the benefit of the doubt that this letter dated November 27, 2015, and accept that as an opposition to the motion for summary judgment.
* * *
Having said that, ma'am, I still don't see that there is a material issue of fact. You've admitted that, although you looked at these reports, that these amounts that are showing as recent payments, in quotations, that you did not pay those, nor did your daughter pay those. And what that appears * * * is that they were just written off so this action could take place.
* * *
[H]aving heard from the defendants and looking at the response to the motion for summary judgment * * * I still don't see that there is a genuine issue of fact as to whether this debt is owed. The defendants admitted that they stopped making payments on these loans. The reports show that these amounts were, quote, transferred to recovery. The defendants admitted they did not pay these amounts that are reflected here, and they are owed. And so the motion for summary judgment is granted as prayed for, with a credit given to the defendants for all amounts that they have paid.
* * *

The defendants appeal.

DISCUSSION

The defendants contend the district courts erred in granting summary judgment in favor of the plaintiffs. The defendants admit that the existence of the debt is not in dispute: they admitted that they signed the promissory notes and they did not pay the loans in full. Nevertheless, the defendants maintain that a genuine issue of material fact remains as to the remaining balances on the loans. More specifically, the defendants maintain that the plaintiffs' records are insufficient to prove the accuracy of the payment history.

A party is entitled to summary judgment if, on the record before the court, it appears "that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." La. C.C.P. art. 966 ; Willis v. Medders , 2000-2507 (La. 12/08/00), 775 So.2d 1049 ; National Collegiate Student Loan Trust 2003-1 v. Thomas , 48,627 (La. App. 2 Cir. 11/20/13), 129 So.3d 1231. The motion for summary judgment should be denied if a genuine issue of fact exists and the fact is material to the case. La. C.C.P. art. 966 ; Duncan v. U.S.A.A. Ins. Co. , 2006-0363 (La. 11/29/06), 950 So.2d 544.

Even if the nonmoving party does not respond to the motion for summary judgment, the court is still obligated to inquire whether the moving party has met its burden of demonstrating undisputed facts entitling it to summary judgment as a matter of law. Willis v. Medders , supra ; National Collegiate Student Loan Trust 2003-1 v. Thomas , supra . Appellate courts review summary judgments de novo , using the same criteria that govern the trial court's consideration of whether summary judgment is appropriate. La. C.C.P. art. 966(B) ; Garrison v. State Farm Fire & Cas. Co. , 51,245 (La. App. 2 Cir. 4/5/17), 217 So.3d 586 ; Argonaut Great Central Ins. Co. v. Hammett , 44,308 (La. App. 2 Cir. 6/3/09), 13 So.3d 1209, writ denied , 2009-1491 (La. 10/2/09), 18 So.3d 122.

Case No. 1

As stated above, in Case No. 1, in support of the motion for summary judgment, the plaintiff introduced into evidence various documents and affidavits, including a copy of the promissory note, which the defendants admitted that they signed. The plaintiff also submitted a document entitled "Loan Payment History Report," which reflects payments made by the defendants from October 2009 until July 2012; the last payment received from the defendants was dated July 13, 2012. According to the loan history report, during that time, the defendants paid $2,053.71 toward the interest on the loan, and $0.00 toward the principal. The report also reveals that $42,595.75 had been "charged off." Further, Carolyn admitted that she began repaying the loan in 2009, and she stopped making payments after she reviewed her credit report in 2012. As noted above, the defendants did not respond to the motion for summary judgment and did not submit any evidence in response thereto. The defendants appeared at the hearing and Carolyn admitted that she stopped repaying the loan because she erroneously believed the debt had been forgiven or paid in full. Accordingly, we find that the district court did not err in granting summary judgment in favor of the plaintiff in Case No. 1.

Case No. 2

As stated above, the defendants did not file a formal response to the motion for summary judgment in Case No. 2. However, they submitted the affidavit and supplemental affidavit of Carolyn Henderson, in which she did not deny the existence of the debt. Rather, she maintained that, in addition to the amount she paid from 2009 through 2012, she had begun making payments to the Eaton Group in 2013. According to Carolyn, she paid a total of $9,483.40 towards the balance of the loans.

Our review of the record shows that the loan payment history report submitted by the plaintiffs reveals that the defendants began repaying the loan in May 2010, and the payments ceased in July 2012; the last payment made was dated July 13, 2012. The loan repayment history provides that from May 2010 until July 2012, Carolyn paid $1,088.81 towards the interest on the loan and $0.00 towards the principal. Additionally, the report states that $32,578.31 had been "charged off." As stated above, Carolyn admitted that she stopped making payments in 2012. A review of the bank records submitted in Case No. 1 reveals that Carolyn paid $3,380 to MRS between May 2010 and July 2012. Although Carolyn's banking records do not indicate which payments were made to which student loans, a comparison of the dates from the loan payment history report and Carolyn's banking records suggests that the amounts drafted from Carolyn's bank account, payable to MRS, were applied to the student loans at issue. Additionally, a review of Carolyn's bank records reveals that $150 per month, payable to the Eaton Group Attorneys, LLC, was drafted from her bank account from July 2013 until November 2015.

In reviewing this record de novo , we find that the district court did not err in granting summary judgment in favor of the plaintiff. Although the loan payment history submitted by the plaintiff did not reflect the amount paid to the Eaton Group after these proceedings commenced, the judgment clearly provided that the defendants would be given "a credit of $1,150.00 and any additional amount paid by defendant[s.] ." (Emphasis added). Moreover, although Carolyn's bank records show that she has made monthly payments to various student loan entities, the record does not demonstrate that she paid $9,483.40 toward the balance of the loans in dispute. Carolyn admitted that she has other student loans in addition to the loans at issue in this case. The records she submitted to the court did not support her contention that she paid that amount on the loans in this case. This assignment lacks merit.

CONCLUSION

For the reasons set forth herein, we hereby affirm the district courts' grant of summary judgment in favor of the plaintiffs, National Collegiate Student Loan Trust 2005-2 and National Collegiate Student Loan Trust 2004-2. Costs of this appeal are assessed to the defendants, Carolyn Henderson and Victoria Henderson.

AFFIRMED.

      In 2004, Bank One, N.A. was acquired by JP Morgan Chase Bank, N.A.

      Although both defendants signed the loan agreements, Carolyn testified that it was always her intention to repay the loans; she never intended for Victoria to be liable for repayment of the debt.

      The defendants introduced into evidence a copy of Carolyn's Experian credit report. With regard to the loan account opened in August 2004, in the amount of $21,857, the credit report stated, "Recent balance $0 as of Sep 2009 * * * Recent payment $32,578." However, the report further provided as follows:
      Status
      Account charged off. * * *
      Comment
      Transferred to recovery.
      * * *
      Regarding the loan account opened in May 2005, Carolyn's credit report stated, "Recent balance $0 as of Aug 2009 * * * Recent payment $42,595." The report further provides:
      Status
      Amount charged off. * * *
      Comment
      Transferred to recovery.
      * * *

      Carolyn's bank statements show that she made payments in the amount of $150 per month to "Eaton Group Attorneys, LLC" from July 2013, through November 2015.

      The cases were not consolidated in the district court. Therefore, the matters were heard by different judges.

      Sibley attested that she was an employee of the Eaton Group and that she was "primarily responsible for this file" and that she was "familiar with the defendants' STUDENT LOAN account." (Emphasis in original).

      Turner and Morgan attested that they were employed by NCO Financial Systems, Inc., the custodian of records for the plaintiffs.

      In her affidavit, Morgan attested that the sum of $48,393.53 was due "as of 9/21/2013."

      The Pool Supplement indicated that the plaintiffs purchased a bundle of student loans from Bank One on June 9, 2005.

      Turner attested that the copy was "a true copy of the underlying Credit Agreement/Promissory Note."

      Nickens attested that he was employed by NCO Financial Systems, Inc., the custodian of records for the plaintiffs.

      The Pool Supplement indicated that the plaintiffs purchased a bundle of student loans from Bank One on October 8, 2004.

      Turner attested that the copy was "a true copy of the underlying Credit Agreement/Promissory Note."

      In the affidavit, Carolyn attested as follows:
      * * *
      2. I MAKE THIS MY AFFIDAVIT IN SUPPORT OF MY APPLICATION OF CORRECTNESS OF ACCOUNT. I WANT THE COURT TO SHOW THE CORRECT AMOUNT OF PAYMENTS CREDITED TO THE BALANCE OF THE LOANS AND TO SHOW THAT I HAVE NOT STOPPED MAKING PAYMENT SINCE 2013. THE TOTAL AMOUNT OF THE PAYMENTS THAT SHOULD BE CREDITED TO THE BALANCE OF THE LOAN IS $9483.40.
      * * *

      National Enterprise Systems, Inc. and MRS Associates, Inc. are debt collection agencies.

      By order dated August 22, 2017, this Court consolidated these matters.

      As stated above, Carolyn admitted that she has other student loans, including one that is the subject of litigation in a Baton Rouge court.

      Payments to AES and Sallie Mae continued to be drafted from Carolyn's bank account. However, there is no evidence that those payments were related to the two student loans at issue in this case.