text:
    Ronald P. GUSTE Husband of/and Betty Anne Guste v. Earl Albert LIRETTE III, President of/and Tiger Audio, L.L.C., and Earl Albert Lirette Jr.
    NO. 2017 CA 1248
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: JUNE 04, 2018
    Robert S. Reich, Marva Jo Wyatt, Lawrence R. Plunkett Jr., Metairie, Louisiana, Attorneys for Defendants/Appellants, Earl Albert Lirette III and Tiger Audio, LLC
    Troy Allen Broussard, Lafayette, Louisiana, Attorney for Defendant/Appellee, Montpelier US Insurance Company
    James F. Kreihs, Colin J. Lagarde, Steven J. Rando, New Orleans, Louisiana, Attorneys for Plaintiffs, Ronald Guste and Betty Anne Guste
    BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ.
   CRAIN, J.

The defendants appeal a summary judgment dismissing a third-party demand seeking insurance coverage and a defense from their liability insurer. We affirm.

FACTS AND PROCEDURAL HISTORY

This proceeding arises out of an altercation between Ronald P. Guste and Earl Albert Lirette III that occurred at Lirette's business, Tiger Audio, L.L.C. Guste and his wife, Betty Anne Guste, sued Lirette and Tiger Audio seeking damages for injuries allegedly sustained in the incident. According to his petition, Guste entered the customer showroom of Tiger Audio to speak with Lirette about wages owed to Guste's grandson. As Guste approached Lirette, who was standing behind a counter, the following allegedly occurred:

Earl Lirette, III, came from behind the counter and violently assaulted and battered your Petitioner, Ronald Guste, throwing him to the ground, causing severe injuries to his mind and body, including but not limited to a fractured hip, which rendered Ronald Guste bed-ridden and has caused permanent injury. [Emphasis removed.]

Lirette and Tiger Audio filed a third-party demand against their general liability insurer, Montpelier U.S. Insurance Company, contending Montpelier's policy covered the alleged liability of Lirette and Tiger Audio and obligated Montpelier to defend them in the litigation. Guste also amended his petition to assert a direct claim against Montpelier as the alleged liability insurer for Lirette and Tiger Audio.

Montpelier filed a motion for summary judgment seeking dismissal of all claims against it, relying in relevant part on a policy exclusion applicable to bodily injury "arising out of assault and/or battery." The trial court granted the motion and, in a judgment signed April 19, 2017, dismissed all claims against Montpelier. Lirette and Tiger Audio appeal.

DISCUSSION

After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show there is no genuine issue as to material fact and mover is entitled to judgment as a matter of law. La. Code Civ. Pro. art. 966A(3). The summary judgment procedure is favored and shall be construed to secure the just, speedy, and inexpensive determination of every action. La. Code Civ. Pro. art. 966A(2). In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria governing the trial court's determination of whether summary judgment is appropriate. In re Succession of Beard , 13-1717 (La. App. 1 Cir. 6/6/14), 147 So.3d 753, 759-60.

If the mover will bear the burden of proof at trial on the issue before the court on the motion, the burden of showing there is no genuine issue of material fact remains with the mover. See La. Code Civ. Pro. art. 966D(1); Smith v. Moreau , 17-0003 (La. App. 1 Cir. 6/2/17), 222 So.3d 761, 765. When a motion is made and properly supported, an adverse party may not rest on the mere allegations or denials of his pleading; his response, by affidavits or as otherwise provided by law, must set forth specific facts showing there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him. See La. Code Civ. Pro. art. 967B.

Insurance Coverage under Montpelier's Policy

Summary judgment may be rendered on the issue of insurance coverage alone, although there is a genuine issue as to liability or damages. See La. Code Civ. Pro. art. 966E; Smith , 222 So.3d at 765 ; Simmons v. Weiymann , 05-1128 (La. App. 1 Cir. 8/23/06), 943 So.2d 423, 425. Summary judgment declaring a lack of coverage under an insurance policy may not be rendered unless there is no reasonable interpretation under which coverage could be afforded when applied to the undisputed material facts shown by the evidence supporting the motion. Smith , 222 So.3d at 765 ; Rider v. Ambeau , 11-0532 (La. App. 1 Cir. 2/1/12), 100 So.3d 849, 854. Absent a conflict with statutory provisions or public policy, insurers are entitled to limit their liability and impose and enforce reasonable conditions upon the policy obligations they contractually assume. Hickey v. Centenary Oyster House , 97-1074 (La. 10/20/98), 719 So.2d 421, 425. An insurer seeking to avoid coverage through summary judgment bears the burden of proving some exclusion applies to preclude coverage. Smith , 222 So.3d at 765 ; Lewis v. Jabbar , 08-1051 (La. App. 1 Cir. 1/12/09), 5 So.3d 250, 254.

Montpelier relies, in relevant part, on the following exclusion added to the policy by an endorsement:

ASSAULT AND BATTERY EXCLUSION
This policy does not apply to "bodily injury," "personal injury" or "property damage" arising out of assault and/or battery or out of any act or omission in connection with the prevention or suppression of such acts, including the failure to warn, train or supervise, whether caused by or at the instigation or direction of the Insured, his employees, patrons or any other person.

Similar "assault and battery" exclusions have routinely been upheld by Louisiana courts. See Hickey , 719 So.2d at 423 ; Ledbetter v. Concord General Corp. , 95-0809 (La. 1/6/96), 665 So.2d 1166, 1170, amended , 95-0809 (La. 4/18/96), 671 So.2d 915 ; Jackson v. Rogers , 95-0486 (La. App. 1 Cir. 11/9/95), 665 So.2d 440, 442 ; see also McKenzie & H. Alston Johnson, III, Insurance Law & Practice , § 5:5, n.50, 15 Louisiana Civil Law Treatise. Where, as here, the policy does not define "assault" or "battery," courts have used definitions developed in the civil jurisprudence. See Bennett v. Ragon , 04-0706 (La. App. 1 Cir. 3/24/05), 907 So.2d 116, 120-21 ; Akers v. Columns Hotel, Inc. , 16-0870 (La. App. 4 Cir. 5/10/17), 220 So.3d 138, 144. A "battery" is a harmful or offensive contact with a person, resulting from an act intended to cause him to suffer such a contact. Caudle v. Betts , 512 So.2d 389, 391 (La. 1987) ; Bennett , 907 So.2d at 121 ; Akers , 220 So.3d at 144. The requisite intent need not be malicious nor to inflict actual damage. It is sufficient if the actor intends to inflict either a harmful or offensive contact without the other's consent. Caudle , 512 So.2d at 391. An "assault" is generally defined as the "threat of a battery." Bennett , 907 So.2d at 120 ; Akers , 220 So.3d at 144.

In support of its motion, Montpelier offered the original and amended petitions filed on behalf of Guste, a copy of the subject insurance policy (authenticated by an affidavit), excerpts from depositions of Guste and Lirette, and excerpts of transcribed testimony from a previous trial in the matter.

In his trial testimony, Guste testified he went to Tiger Audio to talk to Lirette about why Guste's grandson had not been paid for work performed at the store. After exchanging words, Guste turned and began walking to the exit when the following occurred:

I was walking out the door ... and I stopped four or five feet from the door. And I told those two men that were in there, all I'm asking is why he didn't pay my grandson. And [Lirette] came up to me before I knew it and threw me down.

At his deposition, taken after the judgment from the earlier trial was vacated, Guste testified Lirette either pushed or pulled him to the floor. Guste denied making any threatening gestures toward Lirette.

Lirette agreed an altercation occurred but claimed Guste was the aggressor. According to Lirette's trial testimony, Guste was "fussing" about wages owed to Guste's grandson, and Lirette repeatedly tried to get Guste to leave. Lirette described the confrontation as follows:

So then I went back around my counter again to escort him out the door, and that's when he put his hand like this (Indicating), and I pushed him away from me. Because I thought he was about to punch me in my face, so I just pushed him away from me.... [W]hen he put his hand in my face and I thought he was about to hit me, then I had to defend myself and I pushed him away from me. Bottom line. That's what happened.

Lirette was deposed and denied putting his hands on Guste, except to block an apparent punch from Guste. According to Lirette, Guste made a movement with his hand "like he was going to punch me," and Lirette "deflected" it with his hands. Lirette felt "threatened" and believed Guste was about to hit him.

In opposition to the motion, Lirette and Tiger Audio dispute the cause of Guste's injuries and argue that even if Guste was injured in the altercation, Tiger Audio is incapable of forming the intent to commit an assault or battery. The appellants cite testimony in Lirette's deposition, wherein he stated "it's possible" Guste wound up on the floor because he tripped over boxes on the showroom floor. However, when pressed, Lirette conceded that Guste fell as a result of their altercation:

Q. Okay. As [Guste] was walking towards you immediately prior to the physical contact that y'all had, you did not see him trip over any boxes, did you?
A. No. There were boxes by where he was at.
* * *
Q. But you didn't see him tripping over any boxes?
A. Not in the beginning. There were boxes where he landed.
* * *
Q. All right. What caused him to fall was him trying to hit you in the face and you deflecting-
A. Yes, sir.
Q. -his hands, correct?
* * *
A. Yes.
* * *
Q. [Y]ou specifically did not see any boxes that caused Mr. Guste to fall; is that correct?
A. Not that I recall.

This testimony does not create a genuine issue of material fact. Lirette's speculation that Guste possibly tripped over some boxes was dispelled by his own testimony. Conclusory allegations, improbable inferences, and unsupported speculation will not support a finding of a genuine issue of material fact. Guillory v. The Chimes , 17-0479 (La. App. 1 Cir. 12/21/17), 240 So.3d 193, 195 ; Ritchey v. State Farm Mutual Automotive Insurance Company , 17-0233 (La. App. 1 Cir. 9/15/17), 228 So.3d 272, 279.

The uncontradicted evidence establishes Guste was injured during a physical altercation with Lirette. The only conflict in the evidence concerns who was the aggressor, Lirette or Guste. However, that factual issue is not material to the application of the subject exclusion, which applies to bodily injury "arising out of assault and/or battery ... caused by or at the instigation or direction of the Insured , his employees, patrons or any other person. " (Emphasis added.) This exclusion does not depend on the identity of the person who committed the assault or battery but extends to acts committed by any person.

In Jackson , this court applied an exclusion that precluded coverage for bodily injury "arising out of assault or battery." Jackson , 665 So.2d at 443-44. Despite variations in the witnesses' accounts of the altercation leading to plaintiff's injuries, this court affirmed a summary judgment in favor of the insurer, explaining:

There is a difference between the versions relating to the mechanics of [the defendant's] contact with [the plaintiff], but there is no issue of material fact. [The plaintiffs] injuries arose either from the altercation in which [the defendant] was a part or from the suppression of a battery by [the defendant]. In either instance, liability is excluded by the clear provisions of the policy.

Jackson , 665 So.2d at 444.

In Alvarado v. Doe , 613 So.2d 166, 170 (La. App. 4 Cir. 1992) (on rehearing), writs denied , 614 So.2d 64 (La. 1993), the fourth circuit considered facts remarkably similar to the present case. The plaintiff claimed the defendant's employee hit him without provocation, while the employee testified the plaintiff fell down when the employee "threw [his] arms up ... to keep [the plaintiff] from punching [him]." Applying an assault and battery exclusion almost identical to the subject exclusion, the court explained:

The exclusion in this policy is clear. The insurance does not apply to bodily injury arising out of 1) assault and battery or 2) out of any act or omission in connection with the prevention or suppression of an assault and battery. This is so regardless of who precipitated the incident, whether an employee or a customer or anyone else. There is a difference between the versions of plaintiff and [the employee], but there is no issue of material fact. If plaintiff's version is believed, his injuries arose out of an assault and battery perpetrated by [the employee]. If [the employee's] version is believed, plaintiff's injuries arose out of [the employee's] attempt to prevent or suppress plaintiff's assault and battery on him. In either case there is no insurance coverage.

Alvarado , 613 So.2d at 171 (emphasis in original).

We reach the same conclusion. Regardless of who was the aggressor, the evidence establishes Guste's injuries arose out of either an assault or battery. That undisputed fact, alone, makes the subject exclusion applicable. See Jackson , 665 So.2d at 444 ; Alvarado , 613 So.2d at 171 ; see also Proshee v. Shree, Inc. , 04-1145 (La. App. 3 Cir. 2/2/05), 893 So.2d 939, 943 (finding that an exclusion for " '[a]ny actual, threatened or alleged assault or battery' means just what it says-any assault or battery is excluded regardless of who perpetrated it"); Goldman v. Doe , 12-531 (La. App. 5 Cir. 3/27/13), 113 So.3d 376, 383 (applying similar exclusionary language, court found "whether the attack occurred between two patrons or one patron and one employee is of no consequence for purposes of the applicability of the assault and battery exclusions").

Lirette and Tiger Audio argue Guste's petition contains separate allegations of negligence, including negligent training, supervision, and hiring. Notwithstanding those allegations, the evidence establishes Guste's injuries arose out of an assault or battery. That determinative fact renders the exclusion applicable, regardless of whether Lirette or Tiger Audio was negligent in training or supervising their employees. No evidence was presented indicating Guste suffered negligently inflicted injuries that were separate and distinct from the injuries arising out of the assault or battery. Under any theory of recovery, his injuries remain the product of an assault or battery. The trial court did not err in granting summary judgment dismissing Lirette and Tiger Audio's claims seeking coverage under Montpelier's policy. See Jones v. Yacht Club , 96-300 (La. App. 3 Cir. 10/23/96), 682 So.2d 816, 818 ("There is simply no coverage for the insured's potential liability resulting from a battery, whatever the theory or theories of law the tort claimant advances in a potential action against [the] insured."); Maise v. Cat's Meow, Inc. , 96-1998 (La. App. 4 Cir. 10/16/96), 683 So.2d 846, 847 ("[irrespective of the fault alleged by plaintiffs, (whether negligence, intentional act or otherwise) in the instant case, because their injuries arose out of a battery, relator's policy provides no coverage because of its exclusion."); Schexnayder v. Fed Ventures , 625 So.2d 530, 534 (La. App. 5 Cir. 1993) ("Although the allegations contained in the petition are couched in terms of negligence, ... we believe the circumstances as described in the depositions by all three plaintiffs constitute battery. To find otherwise defies logic."). This assignment of error is without merit.

Duty to Defend

An insurer's duty to defend arises solely under contract. Arceneaux v. Amstar Corp. , 15-0588 (La. 9/7/16), 200 So.3d 277, 286. The Montpelier policy provides:

We have the right and duty to defend any "insured" against a "suit" asking for [covered] damages. However, we have no duty to defend any "insured" against a "suit" seeking damages for "bodily injury" or "property damage" to which this insurance does not apply.

Applying similar language, our courts have held an insurer's duty to defend is determined by the allegations of the plaintiff's petition, with the insurer obligated to furnish a defense unless from the petition it is clear the policy unambiguously excludes coverage. See Elliott v. Continental Casualty Company , 06-1505 (La. 2/22/07), 949 So.2d 1247, 1250 ; Crosstex Energy Services, LP v. Texas Brine Company, LLC , 17-0863 (La. App. 1 Cir. 12/21/17), 240 So.3d 1024, ----, writ denied , 18-0144 (La. 3/23/18), 238 So.3d 962. If, assuming the allegations of the petition are true, there is both coverage under the policy and liability to the plaintiff, the insurer must defend the insured regardless of the outcome of the suit. Elliott , 949 So.2d at 1250 ; Steptore v. Masco Construction Co. , 93-2064 (La. 8/18/94), 643 So.2d 1213, 1218.

Under this standard of review, sometimes referred to as the "eight corners rule," an insurer must look to the four corners of the petition and the four corners of the policy to determine its duty to defend. See Maldonado v. Kiewit Louisiana Co. , 13-0756 (La. App. 1 Cir. 3/24/14), 146 So.3d 210, 218 ; Vaughn v. Franklin , 00-0291 (La. App. 1 Cir. 3/28/01), 785 So.2d 79, 84, writ denied , 01-1551 (La. 10/5/01), 798 So.2d 969. In applying this rule, courts look to factual , not conclusory, allegations of the petition to determine whether the insurer must defend the insured. See Crosstex Energy Services, LP , 240 So.3d at ---- (2017 WL 6559768, p.5) ; Maldonado , 146 So.3d at 218-19 ; Henly v. Phillips Abita Lumber Co. , 06-1856 (La. App. 1 Cir. 10/3/07), 971 So.2d 1104, 1110 ; Chalmers, Collins & Alwell, Inc. v. Burnett & Company, Inc. , 15-249 (La. App. 3 Cir. 10/7/15), 175 So.3d 1100, 1102, writ denied , 15-2060 (La. 1/8/16), 184 So.3d 695 ; see also McKenzie & Johnson, at § 7:2. If a petition does not allege facts within the scope of coverage, an insurer is not required to defend a suit against its insured. Crosstex Energy Services, LP , 240 So.3d at 1029 (2017 WL 6559768, at *5) ; Maldonado , 146 So.3d at 219.

Arguing Montpelier had a duty to defend from the outset of the litigation, Lirette and Tiger Audio point to negligence allegations in Guste's petition. While Guste alleged the defendants negligently trained or supervised their employees, the factual allegations in the original petition, and repeated by reference in a supplemental and amending petition, assert Lirette "came from behind the counter and violently assaulted and battered" Guste by "throwing him to the ground, causing severe injuries to his mind and body." [Emphasis removed.] Assuming those allegations to be true, coverage is unambiguously excluded by the assault and battery exclusion. See Smith v. Babin , 15-1029, 2016 WL 1535692, at *11 (La. App. 1 Cir. 4/15/16) (finding no duty to defend where "[d]espite the use of the word 'negligent' in the ... petition, [the plaintiff] clearly alleged intentional, not negligent, acts" by the alleged insured); Ebarb v. Boswell , 51,445 (La. App. 2 Cir. 7/19/17), 224 So.3d 523, 528 ("[R]egardless of how [the plaintiff] characterized his tort, the battery was the occurrence which gave rise to his claims against defendants."); Prestenbach v. Badeaux , 03-809 (La. App. 5 Cir. 12/30/03), 865 So.2d 180, 183 (affirming summary judgment finding insurer had no duty to defend where "the petition ... clearly alleges intentional, and not negligent acts, despite the use of the word negligent in the petition"). The trial court did not err in dismissing appellants' claim that Montpelier had a duty to defend them in this litigation. This assignment of error is without merit.

CONCLUSION

The April 19, 2017 summary judgment is affirmed. All costs of this appeal are assessed to Earl Albert Lirette III and Tiger Audio, LLC.

AFFIRMED.

      For more information on the procedural history of this case, which includes a trial on the merits and a judgment rendered thereon, which was vacated by this court, see Guste v. Lirette , 15-1284, 2016 WL 3569840 (La. App. 1 Cir. 6/28/16) (vacating a judgment on the merits in favor of Guste) and Guste v. Lirette , 15-1285, 2016 WL 3569850 (La. App. 1 Cir. 6/28/16) (reversing a judgment dismissing the defendants' third-party demand).

      After the record was lodged on appeal, this court, ex proprio motu, issued a rule to show cause why the appeal should not be dismissed because the April 19, 2017 judgment was not designated a final judgment pursuant to Louisiana Code of Civil Procedure article 1915B. After further review, we find the judgment is final and subject to immediate appeal, without the need for designation, pursuant to Article 1915A(1) and (3). The appeal is maintained.

      A standard exclusion asserted by Montpelier applies to bodily injury "expected or intended from the standpoint of the 'insured,' " except for bodily injury "resulting from the use of reasonable force to protect persons or property." We base our decision on the assault and battery exclusion in the endorsement, which controls over the standard policy terms. See Mattingly v. Sportsline, Inc. , 98-230 (La. App. 5 Cir. 10/28/98), 720 So.2d 1227, 1230, writ denied , 98-2938 (La. 1/29/99), 736 So.2d 830.

      Lirette and Tiger Audio entered a general objection to Montpelier's exhibits, which was overruled. Absent an assignment of error as to that ruling, the admissibility of the evidence, most notably the testimony from the prior trial, is not before this court. Thus, we consider all of Montpelier's exhibits in our review of the summary judgment. See La. Code Civ. Pro. art. 966D(2); Thompson v. Center for Pediatric and Adolescent Medicine, L.L.C. , 17-1088 (La. App. 1 Cir. 3/15/18), 244 So.3d 441, ---- (2018 WL 1324414, p.9).

      Because the exclusion is not limited to an assault or battery committed by a particular insured, we need not determine whether a legal entity such as Tiger Audio can form an intent to commit an assault or battery. Once triggered, the exclusion precludes coverage for any liability for the plaintiff's alleged injuries, regardless of which insured is seeking coverage.

      Notably, when injuries arise out of an assault or battery, the subject exclusion extends to liability arising out of negligent conduct related thereto, including "the failure to warn, train or supervise" employees.


source: Caselaw Access Project

author: CRAIN, J.

license: Public Domain

text:
    STATE of Louisiana v. Shane BADEAUX
    NO. 2018 KA 0020
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: JUNE 04, 2018
    Kristine Russell, District Attorney, Joseph S. Soignet, Assistant District Attorney, Thibodaux, Louisiana, Attorneys for Plaintiff/Appellee, State of Louisiana
    Holli Herrle-Castillo, Marrero, Louisiana, Attorney for Defendant/Appellant, Shane Badeaux
    Shane Badeaux, Cottonport, Louisiana, Defendant/Appellant, In Proper Person
    BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ.
   CRAIN, J.

In State v. Badeaux, 17-0027, 2017 WL 2399365 (La. App. 1 Cir. 6/2/17), this court affirmed the convictions and sentences of the defendant, Shane Badeaux, on counts of aggravated flight from an officer and possession of a firearm or carrying concealed weapons by a felon. While that appeal was pending, the state filed a habitual offender bill of information, and the defendant was adjudicated a fourth or subsequent felony offender as to each count. The district court vacated the original sentences and sentenced the defendant to ten years at hard labor on the count of aggravated flight from an officer, and forty years at hard labor on the count of possession of a firearm by a felon, to be served consecutively and without benefit of probation, parole, or suspension of sentence. We affirm the habitual offender adjudications and, due to sentencing error, vacate the sentences and remand for resentencing.

FACTS

The habitual offender bill of information alleged the following predicate felony convictions, in addition to the convictions affirmed in the prior appeal: (1) June 19, 1998 conviction of simple burglary under 17th Judicial District Court (JDC) docket number 311,843; (2) June 19, 1998 conviction of simple burglary under 17th JDC docket number 310,804; (3) November 18, 2004 conviction of possession of a Schedule IV controlled dangerous substance under 24th JDC docket number 44,639; (4) November 18, 2004 conviction of possession of a Schedule II controlled dangerous substance under 24th JDC docket number 44,639; (5) November 18, 2004 conviction of attempted possession of a firearm by a convicted felon under 24th JDC docket number 44,639; (6) September 12, 2013 conviction of attempted possession of a firearm by a convicted felon under 17th JDC docket number 516,840; and (7) September 12, 2013 conviction of theft (felony) under 17th JDC docket number 516,840.

HABITUAL OFFENDER ADJUDICATION

In his sole counseled assignment of error, the defendant contends the trial court erred in adjudicating him a fourth or subsequent felony offender, arguing the state failed to present sufficient evidence to identify him as the person convicted of the predicate offenses.

To obtain a multiple-offender adjudication, the state is required to establish both the prior felony conviction and the defendant's identity as the person who committed the prior felony. State v. White, 13-1525 (La. 11/8/13), 130 So.3d 298, 300 (per curiam ). The Habitual Offender Act does not require the state to use a specific type of evidence to carry its burden of proof. State v. Payton, 00-2899 (La. 3/15/02), 810 So.2d 1127, 1132. Rather, the prior convictions may be proved by any competent evidence, including testimony from witnesses, expert opinion regarding the fingerprints of the defendant when compared with those in the prior record, photographs in the duly authenticated record, or evidence of identical driver's license number, sex, race, and date of birth. See Payton, 810 So.2d at 1130-32.

At the habitual offender hearing, the state introduced the testimony of Agent Brandon Allemand of the Department of Corrections, Division of Probation and Parole. Agent Allemand stated he knew the defendant, supervised his parole following a prior conviction, and testified at the defendant's trial on the most recent offenses. Agent Allemand also indicated his file included the defendant's birth date, social security number, and photograph. The state then proceeded to introduce documentary evidence as to each predicate alleged in the habitual offender bill of information. Agent Allemand testified all of the evidence matched the defendant's identifying information.

The trial court did not err in finding the state presented sufficient evidence to establish the defendant as the person who pled guilty to the prior felony offenses. The defendant argues the state failed to offer fingerprint evidence, and Agent Allemand did not supervise all the predicate convictions. However, the state was not required to present any specific type of evidence to carry its burden of proof. See Payton, 810 So.2d at 1132.

This assignment of error is without merit.

INEFFECTIVE ASSISTANCE OF COUNSEL

In a pro se assignment of error, the defendant argues his trial counsel was ineffective for failing to file a motion to quash the habitual offender bill of information where three prior felony convictions were obtained on the same day. Although more properly raised by an application for post-conviction relief, since the record discloses sufficient evidence to decide the claim, we address it in the interest of judicial economy. See State v. McCasland, 16-1178 (La. App. 1 Cir. 4/18/17), 218 So.3d 1119, 1130.

A claim of ineffectiveness of counsel is analyzed under the two-pronged test developed by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establish his trial attorney was ineffective, the defendant must show the attorney's performance was deficient, which requires a showing that counsel made errors so serious he was not functioning as the counsel guaranteed by the Sixth Amendment. The defendant must also prove the deficient performance prejudiced his defense. Failure to make the showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. McCasland, 218 So.3d at 1129.

The defendant argues his counsel should have filed a motion to quash the habitual offender bill of information because Louisiana Revised Statute 15:529. 1B requires multiple convictions obtained on the same day prior to October 19, 2004, be counted as a single conviction. The bill of information identifies three convictions on November 18, 2004, under 24th JDC docket number 44,639. The defendant maintains he committed and was convicted of those crimes before October 19, 2004, but was sentenced thereafter. However, the evidence establishes the defendant pled guilty to three counts under docket number 44,639 on November 18, 2004. Therefore, Section 15:529. 1B does not require that they be treated as one conviction. The two convictions under docket numbers 310,804 and 311,843 were obtained on the same day, prior to October 19, 2004. Therefore, Section 15:529.1B does require that they be counted as one conviction for habitual offender purposes. Nevertheless, the defendant was not prejudiced by not filing a motion to quash. Even considering those two convictions as one, the defendant qualified as a fourth or subsequent felony offender.

This assignment of error is without merit.

PATENT ERROR

Pursuant to Louisiana Code of Criminal Procedure article 920(2), all criminal appeals are reviewed for errors discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence. Our review has revealed sentencing error requiring us to vacate the habitual offender sentences and remand for resentencing.

The minimum sentence mandated for a fourth or subsequent felony offender is twenty years imprisonment for each enhanced count. See La. R.S. 15:529. 1A(4)(a) (prior to revision by 2017 La. Acts No. 257, § 1 and No. 282, § 1); La. R.S. 14:108.1. Consequently, the habitual offender sentence of ten years imprisonment on the count of aggravated flight from an officer is illegally lenient. A defendant has no constitutional or statutory right to an illegally lenient sentence, and such a sentence cannot stand. See State v. Kondylis, 14-0196 (La. 10/3/14), 149 So.3d 1210 ; State v. Williams, 00-1725 (La. 11/28/01), 800 So.2d 790, 797.

Consistent with Kondylis, this court has corrected illegally lenient sentences by amending the sentence to impose the mandatory minimum sentence allowed by law. See State v. Carter , 16-1078 (La. App. 1 Cir. 12/22/16), 210 So.3d 306, 309 ; State v. Robertson, 14-0252, 2014 WL 4668685 (La. App. 1 Cir. 9/19/14). Here, the sentencing transcript evidences the trial court's consideration of the cumulative impact of the sentences imposed on the two counts, with the forty-year enhanced sentence for possession of a firearm by a felon ordered to run consecutive to the illegally lenient ten-year sentence. The discretion involved in sentencing this defendant on multiple counts distinguishes this case from those where we have corrected a single sentence, and warrants vacating both sentences and remanding to the trial court for resentencing. See State v. Haynes, 04-1893 (La. 12/10/04), 889 So.2d 224 (per curiam ).

HABITUAL OFFENDER ADJUDICATIONS AFFIRMED; SENTENCES VACATED; REMANDED FOR RESENTENCING.

GUIDRY, J concurs

PETTIGREW, J concurs

      The trial court retains jurisdiction to impose sentence pursuant to the habitual offender law, even after an order of appeal is entered. La. Code Crim. Pro. art. 916(8).

      In a pro se assignment of error, the defendant contends the habitual offender bill of information was defective because it was filed under an incorrect docket number and failed to include the dates the predicate offenses were committed and the conviction dates. We find the bill of information was not filed under an incorrect docket number. Nor is there legal support for the arguments regarding the form requirements of the bill of information. The bill of information apprised the defendant of the state's allegations and, as discussed herein, the required proof was adduced at the hearing. This assignment of error is without merit.

      Louisiana Code of Criminal Procedure article 890.1 does authorize the district court to depart from mandatory sentencing provisions under certain circumstances when all parties agree. But, allowing an illegally lenient sentence to stand simply because the error is favorable to the defendant and not objected to by the state, in light of Louisiana Code of Criminal Procedure article 890.1 and Kondylis, is not legally supportable.

      After imposing the two sentences, the trial court ordered the second sentence to run consecutive to the first, and "the sentence" to be served without parole, probation, or suspension of sentence. It is not clear whether the trial court imposed the parole restriction on one or both counts. While habitual offender sentences must be served without benefit of probation or suspension of sentence, parole restrictions can only be imposed if the underlying sentence being enhanced restricts parole. See La. R.S. 15:529.1G; State v. Tate, 99-1483 (La. 11/24/99), 747 So.2d 519, 520 (per curiam ). Therefore, restricting parole eligibility for the aggravated flight from an officer count would be improper. See 14:108.1E(1). Because we vacate the sentences and remand for resentencing, clarifying and further analyzing the parole eligibility restriction here is unnecessary. See State ex rel. Cravanas v. State, 14-1554 (La. 1/9/17), 208 So.3d 366 (per curiam ) (remedying an improper parole eligibility restriction in a habitual offender sentence by amending the sentence to delete the restriction).


author: Judge Paula A. Brown

text:
    STATE of Louisiana v. Tarik MCMASTERS
    NO. 2018-K-0375
    Court of Appeal of Louisiana, Fourth Circuit.
    JULY 6, 2018
    Leon A. Cannizzaro, Jr., District Attorney Parish of Orleans, Scott G. Vincent, Assistant District Attorney Parish of Orleans, 619 S. White St., New Orleans, LA 70119, COUNSEL FOR STATE OF LOUISIANA
    John T. Fuller, Marcus O. DeLarge, 909 Poydras St. Ste. 2270, New Orleans, LA 70112, COUNSEL FOR DEFENDANT
    (Court composed of Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins, Judge Paula A. Brown )

      This court denied the Defendant's writ application in this matter on May 4, 2017. On June 5, 2017, the Louisiana Supreme Court granted the Defendant's writ, citing Judge Ledet's dissent. Pursuant to this court's internal rules, this court publishes the prior unpublished writ disposition in this matter.

   Judge Paula A. Brown

The State seeks review of the district court's granting of Defendant's Motion to Suppress.

In State v. McMasters , 18-0027, p. 6 (La. App. 4 Cir. 3/15/18), (unpub.), we remanded the matter "for further consideration in light of [State v. ] Greenberry [14-1126 (La. 4/10/15), 164 So.3d 824], [State v. ] Fearheiley [08-0307, p. 1 (La. 4/18/08), 979 So.2d 487, 488 ) ], [State v. ] Cure [11-2238 (La. 7/2/12), 93 So.3d 1268 [State v. ] Bush , [12-0720 (La. 6/1/12), 90 So.3d 395 ) ], et al" to determine "whether, under a totality of the circumstances, the police possessed the requisite level of suspicion to effectuate the brief detention, which blossomed into probable cause to arrest once defendant fled from the scene and ignored the officer's command to stop."

The district court concluded, following remand, that "as a matter of fact and law the officers involved lack[ed] the requisite probable cause and reasonable suspicion to stop and search the defendant under the totality of the circumstances. We find the district court did not abuse its discretion in granting the Defendant's motion.

The district court properly considered the totality of the circumstances. Based upon the testimony elicited at the hearing on the motion to suppress, the district court made several specific factual findings:

This Court reiterates the following: Number one, the Record does not indicate how long before the instant surveillance the alleged phone calls were made concerning the address/area in question.
The testimony adduced at the motion hearing was that numerous phone calls had been made to either the police or the HANO police relative to a certain address. We don't know when those phone calls were made in relationship to the activity on the date in question.
Number two, there is certainly no evidence or suggestion that the defendant was one of the suspects engaged in transactions. That was likewise brought out on cross-examination where the officer admitted that he had no evidence that this particular defendant was one of the four to five suspects engaged in transactions.
Number three, there is no description of the defendant either by name or physical trait given by the alleged caller.
Number four, prior to the defendant running [,] there was no evidence the defendant was committing a crime. All we have here that is suspicious is that the defendant ran. That simply is not enough to establish reasonable suspicion or probable cause because if it were every single time somebody ran when the police arrived at the scene, they would be subjecting themselves to searches pursuant to the Fourth Amendment.

"When a district court makes findings of fact based on the weight of the testimony and the credibility of the witnesses, a reviewing court owes those findings great deference, and may not overturn those findings unless there is no evidence to support those findings." State v. Wells , 08-2262, p. 4 (La. 7/6/10), 45 So.3d 577, 580 (citations omitted); See State v. Morgan , 09-2352, p. 5 (La. 3/15/11), 59 So.3d 403, 406 ("Furthermore, a reviewing court must give due weight to factual inferences drawn by resident judges.").

Additionally, the district court provided a discussion of the four cases referenced by this Court's prior writ decision and distinguished the present case in light of those cases:

So here is the new Ruling relative to the Fourth Circuit Court of Appeal[']s mandate. This Court has re-examined the law pursuant to the Fourth Circuit Court of Appeal['s] remand. The Court has reviewed and studied the four cases cited by the Court of Appeal and reconsidered this factual backdrop under "a totality of circumstances." This Court is still convinced if not more so that the stop hearing [sic] was not supported by Probable Cause or reasonable suspicion. Unlike Fear [heighley ] there is nothing in the instant record to suggest that the defendant was involved in hand-to-hand transactions were [sic] observed in the instant case.
The Bush facts likewise differ as well as the totality of circumstances gave rise to a reasonable belief that a hand-to-hand transaction occurred even though one was not seen.
Again, in the case at bar the Record is devoid of any evidence that the defendant was one of the four to five individuals suspected of alleged transactions.
In Cure , the experience[d] officer observed behavior consistent with drug transaction and use.
Finally, in Greenbe [rry ] the defendant brought attention to himself by continuously circling the block in a high crime, violent neighborhood.

A district court's ruling is generally entitled to review under a deferential standard with regard to factual and other trial determinations, and legal findings are subject to a de novo standard of review. State v. Julien , 17-0557, p. 24 (La. 10/18/17), 234 So.3d 21, 24, citing State v. Hunt , 09-1589 (La. 12/1/09), 25 So.3d 746, 751. "[A] reviewing court must look at the totality of the circumstances to determine if an officer has reasonable suspicion to stop a suspect." State v. Lewis , 15-0773, p. 14 (La. App. 4 Cir. 2/3/16), 187 So.3d 24, 32, (citing, State v. Temple, 02-1895, p. 5 (La. 9/9/03), 854 So.2d 856, 860 ). A trial court's ruling on a motion to suppress will not be set aside unless there is an abuse of discretion. State v. Thompson , 11-0915, p. 13 (La. 5/8/12), 93 So.3d 553, 563.

Accordingly, we find no abuse of discretion in the district court's granting of Defendant's motion to suppress evidence. Additionally, the State's request for a stay is denied.

WRIT DENIED; STAY DENIED.

LEDET, J., DISSENTS AND ASSIGNS REASONS

LEDET, J., DISSENTS WITH REASONS

Contrary to the majority, I would grant the State's writ and reverse the district court's judgment granting the defendant's motion to suppress.

FACTUAL BACKGROUND

In the weeks leading up to February 23, 2017, law enforcement received multiple narcotics-related complaints regarding a particular residence in the 2200 block of Orleans Avenue in New Orleans. Acting on that information, officers employed by the Housing Authority of New Orleans ("HANO")-Detective Marcus Dubuclet and his partner-conducted surveillance of the residence. During the surveillance, Detective Dubuclet observed four or five non-resident males standing on a porch inside of a gated area in front of the residence engage in what he believed to be hand-to-hand narcotics transactions. They also appeared to be smoking marijuana.

In light of these observations, the officers obtained reinforcements and approached the group. Detective Dubuclet and his partner approached from the rear of the residence; the other officers approached from the front. As Detective Dubuclet was approaching, one of the other officers radioed that one of the males was holding what appeared to be a hand-rolled marijuana cigar. While Detective Dubuclet was still in the rear of the residence, the officers in the front approached and instructed the group to come to the gate. Instead, the defendant fled on foot.

The officers in the front radioed that one of the males (the defendant) had fled. Detective Dubuclet gave chase. At some point during the chase, Officer Dubuclet and the defendant came face-to-face. Detective Dubuclet ordered the defendant to stop and advised him that he was under arrest. The defendant disregarded Detective Dubuclet's instruction and continued to flee. Detective Dubuclet resumed his pursuit of the defendant, during which Detective Dubuclet observed the defendant carrying a brown, hand-rolled cigar consistent with the description previously radioed by the other officers.

Shortly thereafter, Detective Dubuclet apprehended the defendant. After a brief struggle, Detective Dubuclet placed the defendant under arrest and searched his person. During the search, Detective Dubuclet recovered the brown, hand-rolled cigar from the defendant's hand and a handful of pills from the defendant's front right pocket. The hand-rolled cigar tested positive for marijuana.

On May 2, 2017, the State charged the defendant with possession with the intent to distribute methamphetamine, a felony violation of La. R.S. 40:967(A)(1) ; possession of tramadol, a felony violation of La. R.S. 40:969(C)(2) ; possession of oxycodone, a felony violation of La. R.S. 40: 967(C); possession of marijuana, a misdemeanor violation of La. R.S. 40:966(C)(1)(a) ; and resisting an officer, a misdemeanor violation of La. R.S. 14:108.

PROCEDURAL BACKGROUND

The defendant filed a motion to suppress the evidence. On December 12, 2017, a hearing was held on the motion. At the conclusion of the hearing, the district court framed the issue as whether the police "have to identify the insides of the hand[-]rolled cigarette in order to establish Probable Cause or is it enough that it looked like a hand[-]rolled cigarette which typically contains marijuana" and requested that the parties brief that issue. After receiving the parties' briefs, the district court granted the motion to suppress.

We granted the State's prior writ and vacated the district court's judgment. In doing so, we emphasized:

[A]lthough the police "may not detain individuals on the basis of an inchoate and unparticularized suspicion or hunch," the reviewing court should "take into account the totality of the circumstances in a process that allows the police to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person."

State v. McMasters , 18-0027, p. 4 (La. App. 4 Cir. 3/15/18) (unpub. ) (quoting, with added emphasis, State v. Fearheiley , 08-0307, p. 1 (La. 4/18/08), 979 So.2d 487, 488 ). We also observed:

[A]lthough [ State v. Davis , 359 So.2d 986 (La. 1978) ] and [ State v. Varnell , 410 So.2d 1108 (La. 1982) ] have not been expressly overruled, more recent decisions by the Louisiana Supreme Court indicate that the jurisprudence has evolved with findings of reasonable suspicion even in the absence of any observation of what might be considered typical contraband.

McMasters , 18-0027 at pp. 4-5 (citing Fearheiley , supra ; State v. Greenberry , 14-1126 (La. 4/10/15), 164 So.3d 824 ; State v. Cure , 11-2238 (La. 7/2/12), 93 So.3d 1268 ; State v. Bush , 12-0720 (La. 6/1/12), 90 So.3d 395 ). We remanded the matter "in light of Greenberry , Fearheiley , Cure , Bush , et al .... for further consideration to determine whether, under a totality of the circumstances, the police possessed the requisite level of suspicion to effectuate the brief detention, which blossomed into probable cause to arrest once defendant fled from the scene and ignored the officer's command to stop." McMasters , 18-0027 at p. 6.

On remand, the district court distinguished Fearheiley , Bush , Cure , and Greenberry as follows:

So here is the new Ruling relative to the Fourth Circuit Court of Appeal[']s mandate. This Court has re-examined the law pursuant to the Fourth Circuit Court of Appeal['s] remand. The Court has reviewed and studied the four cases cited by the Court of Appeal and reconsidered this factual backdrop under "a totality of circumstances." This Court is still convinced if not more so that the stop hearing [sic] was not supported by Probable Cause or reasonable suspicion. Unlike Fear [heighley ] there is nothing in the instant record to suggest that the defendant was involved in hand-to-hand transactions were [sic] observed in the instant case.
The Bush facts likewise differ as well as the totality of circumstances gave rise to a reasonable belief that a hand-to-hand transaction occurred even though one was not seen.
Again, in the case at bar the Record is devoid of any evidence that the defendant was one of the four to five individuals suspected of alleged transactions.
In Cure , the experience[d] officer observed behavior consistent with drug transaction and use.
Finally, in Greenbe [rry ] the defendant brought attention to himself by continuously circling the block in a high crime, violent neighborhood.

The district court then made the following factual findings:

This Court reiterates the following: Number one, the Record does not indicate how long before the instant surveillance the alleged phone calls were made concerning the address/area in question.
The testimony adduced at the motion hearing was that numerous phone calls had been made to either the police or the HANO police relative to a certain address. We don't know when those phone calls were made in relationship to the activity on the date in question.
Number two, there is certainly no evidence or suggestion that the defendant was one of the suspects engaged in transactions. That was likewise brought out on cross-examination where the officer admitted that he had no evidence that this particular defendant was one of the four to five suspects engaged in transactions.
Number three, there is no description of the defendant either by name or physical trait given by the alleged caller.
Number four, prior to the defendant running there was no evidence the defendant was committing a crime. All we have here that is suspicious is that the defendant ran. That simply is not enough to establish reasonable suspicion or probable cause because if it were every single time somebody ran when the police arrived at the scene, they would be subjecting themselves to searches pursuant to the Fourth Amendment.

The district court then granted the defendant's motion to suppress evidence, stating as follows:

Considering the facts and law, this Court concludes that as a matter of fact and law the officers involved lack[ed] the requisite probable cause and reasonable suspicion to stop and search the defendant under the totality of the circumstances. Therefore the motion to suppress is again granted.

This writ application followed.

DISCUSSION

"When reviewing district court decisions on motions to suppress, determinations of fact are reviewed for abuse of their great discretion but legal decisions are reviewed de novo ." State v. Candebat , 13-0780, pp. 6-7 (La. App. 4 Cir. 1/30/14), 133 So.3d 304, 308 (citing State v. Wells , 08-2262 (La. 7/6/10), 45 So.3d 577 ).

As an initial matter, I note that we cited Fearheiley , Bush , Cure , and Greenberry not because their facts were controlling but because they articulated legal principles relevant to consideration of the issues presented in this case-among them, that the justification necessary for an investigatory detention is an objectively reasonable, articulable suspicion; that such suspicion need only be "minimal"; that the training and experience of police officers enable them to make inferences and deductions that might elude laymen; that such inferences and deductions are due deference; that officers need not entertain potentially innocent explanations for what they perceive to be suspicious conduct; and, most importantly, that, in determining whether an investigatory detention was supported by reasonable suspicion, a reviewing court must consider the totality of the circumstances-not just some of them.

The district court, however, did not consider the totality of the circumstances. The district court did not consider the multiple narcotics-related complaints that occasioned Detective Dubuclet's surveillance of the residence. The district court did not consider Detective Dubuclet's observation of what he believed to be hand-to-hand narcotics transactions conducted by members of the group. The district court did not consider Detective Dubuclet's observation that members of the group were smoking marijuana.

Those circumstances are important. It was against the backdrop of those circumstances that the officers approached the residence, observed the defendant holding a hand-rolled cigar, and formed the suspicion that it contained marijuana. In my view, given the totality of these circumstances, the officers' suspicion was objectively reasonable.

I find support for that view in State v. Bush , 12-0720 (La. 6/1/12), 90 So.3d 395.

There, an officer observed the defendant and another individual drive into a parking lot in which the officer had made numerous drug arrests. Although the officer did not actually see an object being passed between the two subjects, the officer believed that they were engaged in a hand-to-hand narcotics transaction. The officer conducted an investigatory stop of the defendant's vehicle. While approaching the defendant's vehicle, the officer observed the defendant make furtive movements. On arriving at the defendant's vehicle, the officer observed a blunt protruding from the lid of a cup just inside the defendant's vehicle. Suspecting the blunt contained marijuana, the officer seized the blunt as evidence and arrested the defendant. The defendant moved to suppress the evidence, arguing that the seizure was improper because "the 'blunt' containing marijuana may have appeared similar to a cigar containing tobacco." Id. , 12-0720 at p. 2, 90 So.3d at 396. The district court granted the motion. We denied writs. State v. Bush , 12-0360 (La. App. 4 Cir. 3/28/12) (unpub. ).

Reversing, the Louisiana Supreme Court noted that the seizure was proper because the blunt had been in plain view. The Supreme Court observed that the United States Supreme Court has rejected the argument "that [an] officer must be possessed of near certainty as to the seizable nature of the items" or "that [an] officer must 'know' before seizing an item that the item contained contraband." Id. (citing Texas v. Brown , 460 U.S. 730, 741-42, 103 S.Ct. 1535, 1542-43, 75 L.Ed.2d 502 (1983) ). Instead, the Supreme Court emphasized, "a seizure is reasonable under the 'plain view' doctrine if the officer has probable cause to believe the item seized was associated with criminal activity." Bush , 12-0720 at p. 2, 90 So.3d at 396 (citing Brown , supra ; Arizona v. Hicks , 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347, (1987) ). Applying that standard, the Supreme Court concluded, under the totality of the circumstances, that the officer "acted within constitutional limits in seizing the 'blunt.' " Bush , 12-0720 at p. 2, 90 So.3d at 396.

Under Bush , I would find that, given the totality of these circumstances-multiple narcotics-related complaints pertaining to a particular residence, observation by the police of a group of males in front of the residence smoking marijuana and engaging in hand-to-hand narcotics transactions, and the possession by the defendant of a hand-rolled cigar-the police had, at a minimum, a reasonable suspicion that the hand-rolled cigar was a blunt. The police, thus, had the authority to detain the defendant while they investigated that suspicion.

Because the police had the authority to detain the defendant, his flight was a crime committed in the presence of the officers; thus, his arrest, the search of his person incident to that arrest, and the seizure of evidence discovered during that search were lawful. Accordingly, I would find the district court abused its discretion in granting the defendant's motion to suppress evidence.

      Because the residence was within the Lafitte Housing Project ("LHP"), HANO was the agency with law enforcement authority. See generally La. R.S. 40:456.1 (conferring on HANO the authority to "appoint and commission peace officers" who "shall exercise regular police powers of the state granted to law enforcement officers, including but not limited to, enforcement of municipal laws, issuance of municipal summons and citations and with respect to criminal and other offenses affecting the protection of persons, properties, or interests relating to HANO or affecting the performance of their duties").

      Of the other males in the group, one darted inside the residence; three remained in place.

      Detective Dubuclet testified that he believed those pills to be thirteen pills of ecstasy, one pill of oxycodone, and one pill of Benazepril.

      The defendant was also charged with simple criminal damage, a misdemeanor violation of La. R.S. 14:56(B)(1), alleged to have been committed on May 13, 2016.

      The district court did not consider this circumstance because the district found that "the Record does not indicate how long before the instant surveillance the alleged phone calls were made concerning the address/area in question." Detective Dubuclet, however, testified that, in the weeks leading up to February 23, 2017, HANO had received "multiple complaints on this specific address that [they] ha[d] been watching."

      The district court did not consider this circumstance because the district court found that Detective Dubuclet "admitted that he had no evidence that this particular defendant was one of the four to five suspects engaged in transactions." No such admission, however, was obtained from Detective Dubuclet at any time during the hearing.

      While Detective Dubuclet did not testify that he shared all of this information with the other officers, who were not present during the surveillance, we note that such testimony was unnecessary. State v. Pratt , 08-1819, pp. 1-2 (La. 9/4/09), 16 So.3d 1163, 1164-65 (noting that "[t]he determination of probable cause is also based on an assessment of the collective knowledge possessed by all of the police involved in the investigation even if some of the information is not communicated to the arresting or searching officers") (citing State v. Landry , 98-0188, p. 5 (La. 1/20/99), 729 So.2d 1019, 1022 ).

      I note that hand-rolled cigars-commonly referred to as "blunts"-are familiar to both members of law enforcement and the courts as a common means of smoking marijuana. See State v. Warren , 05-2248, p. 3 (La. 2/22/07), 949 So.2d 1215, 1220 (noting that a hand-rolled marijuana cigar is commonly referred to as a "blunt"); State v. Williams , 12-0068, p. 4, n.1 (La. App. 5 Cir. 10/9/13), 128 So.3d 359, 363, n.1 (noting the testimony of an officer that "cigars [are] commonly used to smoke marijuana" and that "an individual would purchase one cigar, or blunt, cut it open, dump the tobacco out, replace the tobacco with marijuana, and roll it back up"); State v. Esteen , 02-1241, p. 3 (La. App. 5 Cir. 4/29/03), 846 So.2d 167, 171 (explaining that "blunts" are "cigar casings filled with ... marijuana" and discussing the testimony of an officer qualified as an expert in "the packaging and distribution of narcotics" that it is "common practice" for narcotics dealers to remove the tobacco from inside cigars and replace it with marijuana" because "[b]lunts sell for more than the typical marijuana cigarette, and the remnants of the cigar tobacco help to mask the odor of the marijuana when the blunt is smoked"); see also State v. Dabney , 02-0934, p. 2 (La. 4/9/03), 842 So.2d 326, 328 (noting that the arresting officer "explained to jurors that a blunt is an ordinary cigar opened to interlace the tobacco with marijuana"); State v. Bowie , 00-3344, p. 3 (La. 4/3/02), 813 So.2d 377, 381 (noting that "blunts," are "cigars with marijuana cores"); State v. Moran , 47,804, p. 3 (La. App. 2 Cir. 4/10/13), 135 So.3d 677, 681 (referring to a "blunt of marijuana"); State v. Payton , 12-0716, p. 1 (La. App. 1 Cir. 12/31/12), 2012 WL 6760055 (unpub. ) (noting that the defendant "made 'blunts' with the cigars (tobacco removed and replaced with marijuana)"); State v. Robertson , 12-0743, p. 1 (La. App. 1 Cir. 12/21/12), 2012 WL 6681830 (unpub. ) (nothing that the defendant "made 'blunts' with the cigars (tobacco removed and replaced with marijuana)"); State v. Jones , 11-0644, p. 4 (La. App. 5 Cir. 2/28/12), 88 So.3d 1120, 1123 (nothing that, as the officers approached the defendant's vehicle, the passenger "had a bag of marijuana in his lap and was preparing a marijuana cigar"); State v. Butler , 10-0330, p. 2 (La. App. 4 Cir. 5/12/10), 39 So.3d 752, 753 (nothing that, at the time of his arrest, the defendant referred to the "half-smoked cigar containing vegetable matter" as a "blunt"); State v. Tate , 09-0619, p. 4 (La. App. 5 Cir. 2/9/10), 33 So.3d 292, 296 (referring to a cigar containing marijuana as a "blunt"); State v. Jones , 09-0688, p. (La. App. 5 Cir. 2/9/10), 33 So.3d 306, 313 (referring to a "marijuana cigar" as a "blunt"); State v. Wilson , 07-0961, p. 4 (La. App. 5 Cir. 4/15/08), 984 So.2d 870, 872 (explaining that "blunts" are "cigars stuffed with marijuana"); State v. Stein , 04-0023, p. 7 (La. App. 5 Cir. 4/27/04), 874 So.2d 279, 285 (describing that the defendant and two others "cut open the cigar and made a 'blunt' by stuffing it with marijuana"); State v. Gilliam , 36,118, p. 1 (La. App. 2 Cir. 8/30/02), 827 So.2d 508, 509 (noting that a "blunt" is "a cigar laced with marijuana"); State v. Jarvis , 01-1277, p. 2 (La. App. 4 Cir. 2/13/02), 811 So.2d 38, 39 (noting that a hand-rolled marijuana cigar is called a "blunt"); State v. Taylor , 99-1154, p. 15 (La. App. 5 Cir. 2/29/00), 757 So.2d 63, 72 (noting the testimony of an officer that "[a] blunt is a street term for a cigar from which the tobacco is emptied and replaced with marijuana" and that "blunts usually sell for three to five dollars each"); State v. Perkins , 97-1119, p. 3 (La. App. 3 Cir. 6/17/98), 716 So.2d 120, 123 (noting that "blunts" are "marijuana cigars"). Indeed, the district court acknowledged that such hand-rolled cigars "typically contains marijuana."

      See La. C.Cr.P. art. 215.1(A) (providing that "[a] law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions"); La. R.S. 14:108(A) (defining the crime of resisting an officer as "the intentional interference with, opposition or resistance to, or obstruction of an individual acting in his official capacity and authorized by law to make a lawful arrest, lawful detention, or seizure of property or to serve any lawful process or court order when the offender knows or has reason to know that the person arresting, detaining, seizing property, or serving process is acting in his official capacity").

      See La. C.Cr.P. art. 213(A)(1) (providing that "[a] peace officer may, without a warrant, arrest a person when ... [t]he person to be arrested has committed an offense in his presence; and if the arrest is for a misdemeanor, it must be made immediately or on close pursuit"); See State v. Surtain , 09-1835, p. 7 (La. 3/16/10), 31 So.3d 1037, 1043 (observing that "[a] traditional exception to the warrant requirement is a search incident to a lawful arrest based upon probable cause") (citing United States v. Robinson , 414 U.S. 218, 224, 94 S.Ct. 467, 471, 38 L.Ed.2d 427 (1973) ).


author: PETTIGREW, J.

text:
    Andrew J. HARRISON, Jr. v. NATURE'S WAY SAFETY SOLUTIONS, LLC and Jules A. Simon
    NO. 2017 CA 1744
    Court of Appeal of Louisiana, First Circuit.
    Judgment rendered June 4, 2018
    W. BRETT MASON, PHILLIP A. WITTMANN, MATTHEW S. ALMON, NEW ORLEANS, LA, ATTORNEYS FOR PLAINTIFF-APPELLEE ANDREW J. HARRISON, JR.
    LEE HERRINGTON, BATON ROUGE, LA, ATTORNEY FOR DEFENDANT-APPELLANT JULES A. SIMON
    MURPHY J. FOSTER, III, B. TROY VILLA, SUNNY MAYHALL WEST, BATON ROUGE, LA, ATTORNEYS FOR DEFENDANTS-APPELLEES NATURE'S WAY INVESTMENTS, LLC, DONALD J. DAVIS & DAVIS MANAGEMENT GROUP, INC.
    D. SCOTT RAINWATER, MICHAEL M. THOMPSON, BATON ROUGE, LA, ATTORNEYS FOR DEFENDANT-APPELLEE WENDELL SPENCER
    BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ.
   PETTIGREW, J.

In this suit for payment of amounts due under several loan agreements, a defendant appeals a partial summary judgment in favor of the plaintiff based on the defendant's personal guaranties. Because the judgment appealed is not a valid final judgment, we dismiss the appeal.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Andrew Harrison, Jr., filed a petition for payment of amounts allegedly due under two Business Loan Agreements and two Personal Guaranty Agreements, all executed February 24, 2014, which purported to memorialize prior agreements between the parties. The first Business Loan Agreement involved a loan made on October 1, 2013, by Harrison to Nature's Way Safety Solutions, LLC ("Nature's Way"). In this agreement, Nature's Way promised to pay Harrison the principal amount of $350,000.00, "together with interest in an amount up to 100% of the principal of this Loan." The second Business Loan Agreement involved a second loan made by Harrison to Nature's Way on October 25, 2013. In this agreement, Nature's Way promised to pay Harrison the principal amount of $200,000.00, "together with interest in an amount equal to up to 100% of the principal of this Loan." Jules A. Simon, a member of Nature's Way who signed both Business Loan Agreements on behalf of Nature's Way, executed Personal Guaranty Agreements related to each of the Business Loan Agreements, guaranteeing payment of the entire outstanding indebtedness of Nature's Way under the Business Loan Agreements.

Harrison filed a motion for partial summary judgment on November 21, 2016, on his claims against Simon arising out of the personal guaranties. After a hearing, the trial court granted Harrison's motion for partial summary judgment and entered judgment in favor of Harrison and against Simon based on the Personal Guaranty Agreements. The judgment ordered Simon to pay Harrison $550,000.00, "plus contractual interest from the date the loans were made until September 21, 2015, judicial interest from the date of judicial demand until paid in full, Plaintiff's court costs and Plaintiff's reasonable attorney's fees to be established by the Court through a post-judgment motion to be filed by Plaintiff." The judgment was designated as a final judgment pursuant to La. C.C.P. art. 1915(B), and Simon filed this devolutive appeal.

DISCUSSION

Appellate courts have the duty to determine, sua sponte, whether their subject matter jurisdiction exists, even when the parties do not raise the issue. Perkins v. BBRC Investments, 14-0298, p. 3 (La.App. 1 Cir. 10/17/14), 205 So.3d 930, 932-33. Under Louisiana law, a final judgment is one that determines the merits of a controversy, in whole or in part. La. C.C.P. art. 1841. A final judgment must be identified as such by appropriate language. La. C.C.P. art. 1918. A valid judgment must be precise, definite, and certain. Gaten v. Tangipahoa Parish School System, 11-1133, p. 3 (La.App. 1 Cir. 3/23/12), 91 So.3d 1073, 1074. A final appealable judgment must contain decretal language, and it must name the party in favor of whom the ruling is ordered, the party against whom the ruling is ordered, and the relief that is granted or denied. The amount of recovery should be determinable from a judgment without reference to an extrinsic source such as pleadings or reasons for judgment. Crockerham v. Weyerhaeuser Holden Wood Products , 16-0331, pp. 15-16 (La.App. 1 Cir. 6/2/17), 223 So.3d 533, 543, writ denied, 17-1121 (La. 10/27/17), 228 So.3d 1232 ; Vanderbrook v. Coachmen Industries, Inc., 01-809, p. 12 (La.App. 1 Cir. 5/10/02), 818 So.2d 906, 913.

The August 10, 2017 judgment ordered Simon to pay Harrison "contractual interest from the date the loans were made until September 21, 2015," an amount which is not determinable from the judgment without reference to extrinsic sources. Thus, the judgment is ambiguous, lacks appropriate decretal language, and cannot be considered a final judgment. See Perkins, 14-0298, at pp. 3-4, 205 So.3d at 933 (Judgment awarding "attorney's fees of 33 1/3% of [principal] and interest on [prior] judgment" was ambiguous, lacked appropriate decretal language, and cannot be considered a final judgment.). In the absence of a final judgment, this court lacks appellate jurisdiction to review this matter. Gaten, 11-1133 at p. 4, 91 So.3d at 1074.

CONCLUSION

For the foregoing reasons, the appeal of the August 10, 2017 judgment granting partial summary judgment in favor of Harrison is dismissed without prejudice. Costs of this appeal are assessed equally to appellant, Jules A. Simon, and appellee, Andrew J. Harrison, Jr.

APPEAL DISMISSED.

      Although Harrison's original and amending petitions both demand payment of contractual interest, his motion for partial summary judgment requested only payment of the principal balance of the loans, plus judicial interest from the date of demand and reasonable attorney fees. Nevertheless, the partial summary judgment rendered by the trial court awarded contractual interest.

      In designating the partial summary judgment as a final judgment pursuant to La. C.C.P. art. 1915(B), the trial court simply stated that there was "no just reason for delay," but failed to give reasons for this determination. The transcript of the proceeding reveals only that the trial court made the determination after counsel for both parties requested that the judgment be certified as final for purposes of an immediate appeal. Where explicit reasons, either oral or written, are not given for a trial court's determination that there is no just reason for delay, and the propriety of the certification is not apparent from a review of the record, the appellate court may request a per curiam from the trial judge so that the designation can be reviewed on appeal. R . J. Messinger, Inc. v. Rosenblum, 04-1664, pp. 13-14 (La. 3/2/05), 894 So.2d 1113, 1122. Since we have determined that we do not have subject matter jurisdiction over this appeal due to the lack of a valid final judgment, we cannot address the propriety of the trial court's designation of this partial summary judgment as final for purposes of appeal. However, if, after dismissal of this appeal, a new judgment with proper decretal language is rendered granting partial summary judgment in favor of Harrison, and the judgment is again designated as final pursuant to article 1915(B), we suggest that the court provide explicit reasons for its designation so that the certification can be reviewed on appeal.

      Prior to Simon's filing of a devolutive appeal in this matter, this court declined to exercise its supervisory jurisdiction as to a writ application filed by Simon questioning the propriety of the trial court's certification of the partial summary judgment as a final appealable judgment under article 1915(B) because the propriety of 1915(B) certification is best reserved for the appeal panel. See Harrison v. Nature's Way Safety Solutions, LLC, 17-1171 (La.App. 1 Cir. 9/13/17), 2017 WL 4074567 (unpublished). Subsequent to the denial of his writ application, Simon filed his devolutive appeal. As previously noted, we lack appellate jurisdiction to consider this appeal, including the propriety of the 1915(B) certification, due to the lack of a valid final judgment; however, in the event that a new partial summary judgment is issued with proper decretal language, and this judgment is certified as a final appealable judgment, we will address the propriety of the 1915(B) certification at that time.