author: THERIOT, J.

text:
    STATE of Louisiana v. Tyrone FOLSE
    NO. 2018 KA 0153
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: September 21, 2018
    Aaron P. Mollere, Reserve, Louisiana, Counsel for Defendant/Appellant, Tyrone Folse
    Joseph L. Waitz, Jr., District Attorney, Ellen Daigle Doskey, Assistant District Attorney, Houma, Louisiana, Counsel for Appellee State of Louisiana
    BEFORE: GUIDRY, THERIOT, AND PENZATO, JJ.
   THERIOT, J.

The defendant, Tyrone Folse, was charged by bill of information in district court docket number 711282 with residential contractor fraud when the misappropriation or intentional taking amounts to a value of one thousand five hundred dollars or more, a violation of La. R.S. 14:202.1(C)(3) (prior to amendment by 2017 La. Acts, No. 281, § 1). He pled not guilty and, after a trial by jury, was found guilty as charged. The trial court denied the defendant's motion for post-verdict judgment of acquittal and motion for new trial. The defendant was sentenced to five years imprisonment at hard labor and ordered to pay four thousand dollars of restitution within six months of his release, or in default thereof, to serve an additional two years imprisonment at hard labor. The trial court further ordered that the sentence be served consecutive to any other sentence. The defendant now appeals, assigning error to the trial court's denial of a challenge for cause to strike a juror, the admission of his pretrial statement, statements by the prosecution at trial, the constitutionality and legality of the sentence, and the sufficiency of the evidence. For the following reasons, we affirm the conviction and sentence.

STATEMENT OF FACTS

On January 7, 2015, Billy Burrow, Jr., the victim herein, entered into a contract with the defendant wherein the defendant agreed to install a privacy fence, consisting of a cyclone fence, around the backyard of his residence located at 127 Presque Isle in Houma. The defendant specifically agreed to install seventy-seven feet of wooden fencing at a height of six feet, using pine and two gates. The total contract price was $5,500.00, and Burrow paid the defendant $4,000.00 in cash up front as a down payment, for which the defendant provided him with a receipt. The remaining balance of $1,500.00 was to be paid upon completion of the job. According to Burrow, the defendant never completed the work and did not reimburse Burrow any portion of the $4,000.00 down payment.

ASSIGNMENTS OF ERROR

The defendant cites seven assignments of error:

1. The trial court erred in failing to strike Juror Shanida Kanach for cause since Ms. Kanach admitted to being unable to fully read and understand the English language.
2. The trial court erred in allowing the defendant's statement to be introduced over the objection of defense counsel since the state failed to read the defendant his Miranda rights prior to taking his statement.
3. The trial court erred in failing to strike prejudicial statements made by the prosecution and failed to give an order for the jury to disregard the same.
4. The trial court's sentence of five (5) years on each count to be served consecutively is grossly disproportionate, excessive, cruel, and unusual.
5. The trial court erred in failing to grant the defendant's motion for a new trial since the evidence was not sufficient to uphold a conviction. The state failed to prove each and every element of the offense charged.
6. The trial court erred in denying the defendant's motion for reconsideration of sentence to cure an excessive and illegal sentence.
7. The trial court erred in denying the defendant's motion for reconsideration of sentence to cure an excessive and illegal sentence.

SUFFICIENCY OF THE EVIDENCE

In assignment of error number five, the defendant argues that evidence was not sufficient to uphold the conviction. Thus, he asserts in assignment of error number five that the trial court should have granted his motion for new trial. As to each of the three cases, the defendant argues that the State failed to prove the element of "greater than $1,500.00" as well as whether no work was done after receiving payment. He argues that the State's assertion at trial that any forty-five day period of no work was sufficient to constitute a violation of La. R.S. 14:202.1 is a misreading of the statute. In that regard, he argues that the statute is clear and unambiguous in that the legislative intent is to charge a defendant if zero work is done on the contract. He concludes that as to each contract, a lot of work was done on each parcel of property that he entered into a contract to make improvements thereto.

As to the instant offense involving the contract with Burrow, the defendant claims that Burrow paid him $4,000.00 out of a total contract price of $5,500.00. The defendant claims that eighty percent of the work was completed at a value of $4,400.00 dollars. The defendant contends that Burrow admitted that some of the work was completed but testified that numerous issues arose between him and the defendant that he wanted corrected.

When issues are raised on appeal contesting the sufficiency of the evidence and alleging one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to a retrial under Hudson v. Louisiana , 450 U.S. 40, 43, 101 S.Ct. 970, 972, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accordance with Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the essential elements of the offense have been proven beyond a reasonable doubt. When the entirety of the evidence is insufficient to support the conviction, the accused must be discharged as to that crime, and any discussion of trial error issues as to that crime would be pure dicta since those issues are moot. However, when the entirety of the evidence is sufficient to support the conviction, the accused is not entitled to a retrial, and the reviewing court must then consider the other assignments of error to determine whether the accused is entitled to a new trial. If the reviewing court determines that there has been trial error (which was not harmless) in cases in which the entirety of the evidence was sufficient to support the conviction, then the accused will be granted a new trial, but is not entitled to an acquittal. See State v. Hearold , 603 So.2d 731, 734 (La. 1992).

A conviction based on insufficient evidence cannot stand as it violates Due Process. See U.S. Const. amend. XIV ; La. Const. art. I, § 2. The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia , requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. See La. Code Crim. P. art. 821(B) ; State v. Ordodi , 2006-0207 (La. 11/29/06), 946 So.2d 654, 660. In conducting this review, we also must be expressly mindful of Louisiana's circumstantial evidence test, which states in part, "assuming every fact to be proved that the evidence tends to prove," every reasonable hypothesis of innocence is excluded. La. R.S. 15:438 ; State v. Wright , 98-0601 (La. App. 1st Cir. 2/19/99), 730 So.2d 485, 486, writs denied, 99-0802 (La. 10/29/99), 748 So.2d 1157 & 2000-0895 (La. 11/17/00), 773 So.2d 732.

Pursuant to La. R.S. 14:202.1(A) (as in effect at the time of the offense), in pertinent part, residential contractor fraud is the misappropriation or intentional taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations by a person who has contracted to perform any home improvement or residential construction. Under the pertinent part of the statute, a misappropriation or intentional taking may be inferred when a person "[f]ails to perform any work during a forty-five-day period of time or longer after receiving payment, unless a longer period is specified in the contract." La. R.S. 14:202.1(A)(1). In this case, the State was additionally required to prove that the misappropriation or intentional taking amounted to a value of one thousand five hundred dollars or more. La. R.S. 14:202.1(C)(3). The cost of repairing work fraudulently performed by the contractor and the cost of completing work for which the contractor was paid but did not complete shall be included in determining the amount of the misappropriation or intentional taking. La. R.S. 14:202.1(C)(4).

In the absence of internal contradiction or irreconcilable conflict with the physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient to support a factual conclusion. State v. Higgins , 2003-1980 (La. 4/1/05), 898 So.2d 1219, 1226, cert. denied, 546 U.S. 883, 126 S.Ct. 182, 163 L.Ed.2d 187 (2005). Further, the testimony of the victim alone is sufficient to prove the elements of the offense. State v. Dickerson , 2016-1336 (La. App. 1st Cir. 4/12/17), 218 So.3d 633, 640.

Pertinent to the instant case, the State introduced photographs of the backyard of the residence, additional photographs, videos, and a fence diagram. The State further introduced a page of text messages, and a single text message dated August 26, 2015. Further, the State introduced a copy of a waiver of rights form and the defendant's pretrial recorded statement. Burrow testified as follows regarding the work that the defendant began after Burrow paid him the $4,000.00 down payment: "He-on the right side of my house, he put probably about 8 to 10 fence poles in the ground and then installed part of the cyclone fence in the back on the backyard." When asked if the defendant did any additional work, Burrow stated that the defendant installed a privacy fence around his pool, but noted that it had to be removed as it was installed over rotten wood. He indicated that under the contract, the defendant was obligated to do additional work to complete the fence, including the installation of the rest of the cyclone fence, a twelve-foot double gate, and a six-foot gate. He estimated that the defendant last worked on the project in June or July of 2015 and never returned to perform any work after that time period. Burrow further testified that he was not aware of any hindrances that prevented the defendant from coming to his house to complete the work. Burrow identified the photographs of his property depicting the incomplete work. He confirmed that the portion of the work performed under the contract was done in or prior to July of 2015, before he took a vacation that month. When he returned, the defendant had not performed any additional work. Burrow saved all of his text message communications with the defendant from January 10, 2015 to the last communication on August 26, 2015. The defendant did not respond to some of the text messages, including the final one in August.

Lieutenant Michelle Blades of the Terrebonne Parish Sheriff's Office investigated two of the defendant's residential contractor fraud cases (docket nos. 711282 and 712011), made contact with the victims, and took pertinent photographs. She interviewed the defendant on October 12, 2015, after he was arrested for the charge of home improvement fraud. The defendant was advised of his Miranda rights and signed a waiver of rights form and provided a recorded interview. During the interview the defendant confirmed that the total contract price was $5,500.00, and that Burrow paid him "something like" the amount of $4,000.00 for materials in January of 2015, though he recalled Burrow paying by check, as opposed to cash. He further confirmed that the project was never completed and that he last worked on the project in July of 2015, before the victim took a vacation. When asked why no work was performed after that date, the defendant stated, "Cause I been doing other jobs." When asked why the gate was never installed, the defendant stated, "Like yeah it wasn't installed because of the rain and stuff like that."

At trial, the defendant testified that he completed approximately eighty-five percent of the work under the contract. He also stated that Burrow would sometimes "nitpick" regarding the work that had been done. The defendant denied taking down the fencing that he placed around the pool. As in his pretrial interview, he again admitted that he did not perform any work on the project after July of 2015. He testified that he intended to complete the project and denied making any profit from the contract.

The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. State v. Richardson , 459 So.2d 31, 38 (La. App. 1st Cir. 1984). The trier of fact's determination of the weight to be given evidence is not subject to appellate review. An appellate court will not reweigh the evidence to overturn a fact finder's determination of guilt. State v. Taylor , 97-2261 (La. App. 1st Cir. 9/25/98), 721 So.2d 929, 932.

We reject the defendant's argument that the statute requires no work ever being performed under the contract. The interpretation of any statutory provision starts with the language of the statute itself. When the provision is clear and unambiguous and its application does not lead to absurd consequences, its language must be given effect, and its provisions must be construed so as to give effect to the purpose indicated by a fair interpretation of the language used. State v. Oliphant , 2012-1176 (La. 3/19/13), 113 So.3d 165, 168 (citations omitted). La. R.S. 14:202.1 provides a forty-five day duration in regard to the lack of the performance of any work, as opposed to requiring a total absence of work under the full term of the contractual obligation.

The evidence presented, including the defendant's own testimony, shows that he received a $4,000.00 down payment, and that he last worked on the project in July of 2015. As noted, the defendant was arrested for the charge of home improvement fraud in October of 2015. Accordingly, as the defendant concedes, the defendant failed to perform any work in excess of a forty-five day period after receiving payment. We note that the defendant's claim that he completed eighty-five percent of the work was inconsistent with Burrow's testimony. The trier of fact was free to reject the defendant's claim. Richardson , 459 So.2d at 38. In reviewing the evidence, we cannot say that the jury's determination was irrational under the facts and circumstances presented. See Ordodi , 946 So.2d at 662.

An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the fact finder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the jury. State v. Calloway , 2007-2306 (La. 1/21/09), 1 So.3d 417, 418 (per curiam). A court of appeal impinges on a fact finder's discretion beyond the extent necessary to guarantee the fundamental protection of due process of law in accepting a hypothesis of innocence that was not unreasonably rejected by the fact finder. See State v. Mire , 2014-2295 (La. 1/27/16), --- So.3d ----, ----, 2016 WL 314814 (per curiam); State v. Mussall , 523 So.2d 1305, 1310 (La. 1988). Based on our careful review of the record, we are convinced that any rational trier of fact, viewing the evidence presented at trial in the light most favorable to the State, could have found beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, that the defendant was guilty of the offense of residential contractor fraud when the misappropriation or intentional taking amounts to a value of one thousand five hundred dollars or more. Accordingly, assignment of error number five lacks merit.

CHALLENGE FOR CAUSE

In assignment of error number one, the defendant argues that the trial court erred in denying his challenge for cause to strike prospective juror Shanida Kanach. The defendant contends that Kanach stated on the record that she has a basic understanding of the English language. The defendant argues that her ability to understand the written English language is deficient, noting that the record indicates that she needed assistance with certain words while attempting to read the newspaper. Further noting that each case involves written contracts and/or text messages, and strict interpretation of jury instructions, the defendant argues that the ability to read is not equivalent to the ability to write or speak English in basic terms. He notes that he was required to use a peremptory challenge to strike Kanach.

An accused in a criminal case is constitutionally entitled to a full and complete voir dire examination and to the exercise of peremptory challenges. La. Const., art. I, § 17 (A). The purpose of voir dire examination is to determine prospective jurors' qualifications by testing their competency and impartiality and discovering bases for intelligent exercise of cause and peremptory challenges. State v. Mills , 2013-0573 (La. App. 1st Cir. 8/27/14), 153 So.3d 481, 486, writs denied, 2014-2027 (La. 5/22/15), 170 So.3d 982 & 2014-2269 (La. 9/18/15), 178 So.3d 139. An erroneous ruling depriving an accused of a peremptory challenge violates his substantial rights and constitutes reversible error; therefore, prejudice is presumed when a defendant's challenge for cause is erroneously denied and the defendant exhausts all of his peremptory challenges. State v. Taylor , 2003-1834 (La. 5/25/04), 875 So.2d 58, 62. In this case, the defendant exhausted all of his peremptory challenges.

Louisiana Code of Criminal Procedure article 401, in pertinent part, states that jurors must be able to read, write, and speak English. The question of a juror's qualifications is addressed to the sound discretion of the trial judge. Mills , 153 So.3d at 488 ; State v. Lewis , 2012-0803 (La. App. 4th Cir. 9/25/13), 125 So.3d 1252, 1263, writ denied, 2013-2537 (La. 6/20/14), 141 So.3d 279. A trial court is afforded broad discretion in determining whether to strike a juror for cause because of the trial court's ability to form a first-person impression of prospective jurors during voir dire. State v. Brown , 2005-1676 (La. App. 1st Cir. 5/5/06), 935 So.2d 211, 214, writ denied, 2006-1586 (La. 1/8/07), 948 So.2d 121. Therefore, the trial court's rulings will not be disturbed unless a review of the voir dire as a whole indicates an abuse of that discretion, State v. Lee , 637 So.2d 102, 108 (La. 1994).

When questioned regarding her ability to read, write, and speak English, Shanida Kanach stated, "I may not understand the word or the question, you know." When asked to identify her primary language, Kanach stated, "Thailand," noting that she had been living in the United States since 1979. She stated that she worked as a ceramics teacher and operated her own ceramic shop. When asked if she was able to read the local newspaper, she stated, "Somewhat. Not -- sometimes I have to ask somebody what does that mean, what does that mean." She confirmed that she was able to write in the English language, though she noted that she had some difficulty with proper spelling. She confirmed that she was able to understand what the trial judge was saying to her.

In challenging Kanach for cause, the defense counsel claimed that due to her "language barrier" she would not be able to follow the intricacies of the trial. The State noted that Kanach had no difficulty participating in the back and forth colloquy with the trial judge. The trial court agreed, noting that it would provide a special instruction to her in particular and everyone, to raise their hand if questions or answers were stated too fast. The defense counsel responded, "That's fine." The defense counsel further thanked the court for the decision to provide the special instruction.

We note that a defendant may not assign as error on appeal a ruling refusing to sustain a challenge for cause made by him, unless an objection thereto is made at the time of the ruling. La. Code Crim. P. art. 800(A) ; Mills , 153 So.3d at 486. In this case, the defense counsel acquiesced and thanked the court as to its decision to give a special instruction as opposed to sustaining the challenge for cause. Moreover, the trial court conducted a colloquy with the prospective juror and was satisfied with her ability to understand the English language. Kanach lived in the United States since 1979, worked in the United States, and operated her own business. After a thorough review, we find no abuse of discretion in the trial court's ruling that denied the for-cause challenge of Kanach. Assignment of error number one lacks merit.

STATEMENTS BY THE PROSECUTION AT TRIAL

In assignment of error number three, the defendant contends that the prosecutor used a text message that was admittedly taken out of context, in an attempt to convey the victims' feelings. Noting that the prosecutor specifically quoted a Bible verse, the defendant argues that the comment was "out-of-place" and had nothing to do with the conclusions that could be drawn from the evidence. The defendant contends that the statement was outside of the scope of proper closing argument. The defendant argues that the statement could have influenced the jury in an inappropriate manner to make a decision based on the State's implication that the verse was a reflection of the victims' feelings and the use of the verse to refer to the defendant as a thief. He concludes that the Biblical quote improperly influenced the jury, likely could have affected the verdict, and that he was denied his due process right to a fair and impartial trial due to the trial court's failure to provide a curative instruction.

Closing arguments in criminal cases should be restricted to the evidence admitted, to the lack of evidence, to conclusions of fact that may be drawn therefrom, and to the law applicable to the case. Further, the State's rebuttal shall be confined to answering the argument of the defendant. See La. Code Crim. P. art. 774. Prosecutors are allowed wide latitude in choosing closing argument tactics. State v. Draughn , 2005-1825 (La. 1/17/07), 950 So.2d 583, 614, cert. denied, 552 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007). However, even if the prosecutor exceeds these bounds, the court will not reverse a conviction if not "thoroughly convinced" that the argument influenced the jury and contributed to the verdict. See State v. Martin , 93-0285 (La. 10/17/94), 645 So.2d 190, 200, cert. denied, 515 U.S. 1105, 115 S.Ct. 2252, 132 L.Ed.2d 260 (1995) ; State v. Vansant , 2014-1705 (La. App. 1st Cir. 4/24/15), 170 So.3d 1059, 1063 ; State v. Prestridge , 399 So.2d 564, 580 (La. 1981). Mills , 153 So.3d at 496. The trial judge has broad discretion in controlling the scope of closing arguments.

We note that the defendant did not object to the closing arguments. "A defendant's failure to object contemporaneously to improper argument by the prosecutor waives any claim on appeal based on the argument." State v. Johnson , 2000-0680 (La. App. 1st Cir. 12/22/00), 775 So.2d 670, 680, writ denied, 2002-1368 (La. 5/30/03), 845 So.2d 1066 ; See also La. Code Crim. P. art. 841. Irregularities or errors cannot be availed of on appeal if no objection is made at the time of the occurrence.

State v. Walker , 94-0587 (La. App. 1st Cir. 4/7/95), 654 So.2d 451, 453, writs denied, 95-1124 & 95-1125 (La. 9/22/95), 660 So.2d 470. "The grounds for objection must be sufficiently brought to the court's attention to allow it the opportunity to make the proper ruling and prevent or cure any error." State v. Trahan , 93-1116 (La. App. 1st Cir. 5/20/94), 637 So.2d 694, 704. Thus, we find no merit in this assignment of error.

THE CONSTITUTIONALITY AND LEGALITY OF THE SENTENCING

In assignments of error numbers four, six, and seven, the defendant argues that the trial court's imposition of five years imprisonment at hard labor on each count to be served consecutively is grossly disproportionate, excessive, and cruel and unusual. He notes that he was ordered to pay restitution of $2,700.00 to victim Don Hebert, $4,000.00 to Burrow, and $8,000.00 to victim Larry Wells, and to serve two years of imprisonment at hard labor in each case in default of paying restitution (totaling $14,700.00) within six months. The defendant argues that there were no aggravating factors and cites several other cases, contending that a review of other cases across the State shows that his sentences are excessive. In assignment of error number seven, the defendant argues that the trial court erred in denying his motion to reconsider sentence. He adds the argument that a sentence should be considered excessive if it is in excess of the maximum sentence that could be imposed upon a defendant in a more egregious case. In support of this argument, he contends that the legislature intended to formulate the punishment for a violation of La. R.S. 14:202.1 by taking the amount of fraud into consideration. Thus, he argues that the sentences imposed are in conflict with the legislative intent in formulating respective punishments for violations of the statute.

Article I, Section 20, of the Louisiana Constitution prohibits the imposition of excessive punishment. Although a sentence may be within statutory limits, it may violate a defendant's constitutional right against excessive punishment and is subject to appellate review. Generally, a sentence is considered excessive if it is grossly disproportionate to the severity of the crime or is nothing more than the needless imposition of pain and suffering. A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm to society, it is so disproportionate as to shock one's sense of justice. A trial judge is given wide discretion in the imposition of sentences within statutory limits, and the sentence imposed should not be set aside as excessive in the absence of manifest abuse of discretion. State v. Hurst , 99-2868 (La. App. 1st Cir. 10/3/00), 797 So.2d 75, 83, writ denied, 2000-3053 (La. 10/5/01), 798 So.2d 962.

The Louisiana Code of Criminal Procedure sets forth items which must be considered by the trial court before imposing sentence. La. Code Crim. P. art. 894.1. The trial court need not recite the entire checklist of Article 894.1, but the record must reflect that it adequately considered the criteria. State v. Herrin , 562 So.2d 1, 11 (La. App. 1st Cir.), writ denied, 565 So.2d 942 (La. 1990). In light of the criteria expressed by Article 894.1, a review for individual excessiveness should consider the circumstances of the crime and the trial court's stated reasons and factual basis for its sentencing decision. State v. Watkins , 532 So.2d 1182, 1186 (La. App. 1st Cir. 1988).

Upon a conviction of residential contractor fraud when the misappropriation or intentional taking amounts to a value of one thousand five hundred dollars or more, the offender shall be imprisoned, with or without hard labor, for not more than ten years, or may be fined not more than three thousand dollars, or both. La. R.S. 14:202.1(C)(3) (prior to amendment by 2017 La. Acts No. 281, § 1). We note that the defendant was sentenced to mid-range sentences of five years imprisonment at hard labor in each case. The trial court considered the facts and circumstances of the cases and the victims' testimony prior to the imposition of the sentences. While the defendant challenges the trial court's order that the sentences in the cases be served consecutively, we note that the cases all involve different victims and different sets of circumstances and time periods. The offenses were not based on the same act or transaction and did not constitute parts of a common scheme or plan. We also reject the defendant's argument that the trial court erred in failing to consider sentences imposed in similar cases. There is little value in making sentencing comparisons. It is well settled that sentences must be individualized to the particular offender and to the particular offense committed. State v. Batiste , 594 So.2d 1, 3 (La. App. 1st Cir. 1991). Based on our thorough review of the record, we find that the sentence was not grossly disproportionate to the severity of the offense, and thus was not unconstitutionally excessive. Accordingly, these assignments of error are without merit.

CONVICTION AND SENTENCE AFFIRMED.

Penzato, J. concurs

      The defendant has two additional pending appeals for cases that were combined with the instant case for trial, also involving violations of La. R.S. 14:202.1. Specifically, in 2018-KA-0154 (district court docket number 712011), the defendant appeals another conviction of residential contractor fraud, and in 2018-KA-0152 (district court docket number 689846), the defendant appeals a conviction of home improvement fraud, denoted consistently with the version of the statute in effect at the time of that offense (prior to amendment by 2014 La. Acts, No. 62, § 1).

      The bill of information erroneously states that the defendant violated La. R.S. 14:202.1(F), which is not included in the statute that was in effect at the time of the offense. However, the defendant did not file a motion to quash the bill of information. See La. C.Cr.P. art. 532(A)(1).

      Miranda v. Arizona , 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966).

      The second assignment of error is specific to the defendant's appeal in 2018 KA 0152 State v. Tyrone Folse and will not be considered in this appeal.

      The defendant confuses the victims in his brief under assignment of error number five, listing Larry Wells as the victim in two cases. The correct names in accordance with the record are provided herein.

      The defendant specifically references the following statement by the prosecutor during closing arguments at trial: "This, I think, is a good summary of the feelings of the victims in this case. It was on one of the text messages. A text message from one of the victims to the defendant, 'Ephesians 4:28, let the thief no longer steal, but yet let him labor, doing honest work with his own hands so that he may have something to share with everyone in need.' "

      The defendant specifically states the following on page 33 of his brief in footnote 4:
      Hypothetically, a person could commit Residential Contractor Fraud in an amount clearly in excess of the amount in the instant case ($14,700.00) and receive a lesser sentence. Theoretically, if there is one victim who suffers from Residential Contractor Fraud greater than the total amount claimed by the State as defrauded here can only get a maximum sentence of ten (10) years, whereas your Appellant received a total of fifteen (15) years - five (5) years for each charge [to run] consecutively.

      The defendant is not challenging the legality or constitutionality of the statute and does not otherwise challenge the legality of his sentences.

      The law concerning consecutive sentences, La. Code Crim. P. art. 883, in pertinent part, provides:
      If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting 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. Other sentences of imprisonment shall be served consecutively unless the court expressly directs that some or all of them be served concurrently....


source: Caselaw Access Project

author: MCDONALD, J. CRAIN, J., dissenting.

license: Public Domain

text:
    Charles R. JONES v. LOUISIANA BOARD OF ETHICS
    2017 CA 0941
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: September 24, 2018
    Danny D. Russell, Baton Rouge, Louisiana, Attorney for Plaintiff/Appellant, Charles R. Jones
    Charles R. Jones, Metairie, Louisiana, Pro Se
    Kathleen Allen, Tracy Barker, David M. Bordelon, Baton Rouge, Louisiana, Attorneys for Defendant/Appellee, Louisiana Board of Ethics
    BEFORE: McDONALD, CRAIN, AND HOLDRIDGE, JJ.
   MCDONALD, J.

In this case the issue is whether an elected judge who also serves as a state commission member must file a financial disclosure statement with the Louisiana Board of Ethics (BOE) in accordance with the Louisiana Code of Governmental Ethics (Code of Ethics) that applies to commission members in addition to filing a financial disclosure statement with the Louisiana Supreme Court in accordance with Louisiana Supreme Court Rule XXXIX, which applies to elected judges. After review, we find that an elected judge serving as a commission member must file the financial disclosure statement with the BOE that is required for commission members by the Code of Ethics.

FACTS AND PROCEDURAL HISTORY

In a previous opinion of this court, Charles R. Jones, a retired state appellate judge, challenged a decision by the Louisiana Ethics Adjudicatory Board (EAB), affirming the BOE's assessment of a $1,500.00 late fee against him for his failure to file a financial disclosure statement as a former member of the Louisiana Commission on Law Enforcement and the Administration of Criminal Justice (Commission). This court dismissed the appeal, finding that because the basis of Judge Jones's challenge to the EAB's decision was constitutional, he had to first assert his claim in the district court, and that the issue was not in the proper procedural posture for this court's review. In the Matter of Jones, 2015-1352 (La. App. 1 Cir. 9/16/16), 2016 WL 4942355 (unpublished).

Thereafter, Judge Jones filed a petition for declaratory judgment and injunctive relief in the district court, alleging that he had timely filed his financial disclosure statement with the Louisiana Supreme Court, he had paid the BOE's $1,500.00 late fee under protest, and that the application of La. R.S. 42:1124.2.1 against him was unconstitutional. He asked for judgment in his favor declaring the application of La. R.S. 42:1124.2.1 to him as a sitting judge was unconstitutional, and that all actions taken against him be declared null; that the BOE be ordered to show why a preliminary injunction should not be issued restraining the BOE from enforcing the provisions of La. R.S. 42:1124.2.1 against him, and all parties similarly situated, and from the collection of related costs for the failure to timely file a financial disclosure statement until a final judgment was rendered herein; for recovery of the $1,500.00 under the theory of unjust enrichment; for damages to his personal and professional reputation from violation of his privacy and the disclosure of private facts; and for judgment in his favor and against the BOE for costs, general and equitable relief, and judicial interest.

The BOE raised peremptory exceptions of no cause of action and no right of action, asserting that Judge Jones was no longer a member of the Commission, that he had filed all required financial disclosure statements and paid all outstanding late fees, and that he had not alleged any irreparable injury, loss or damage that would result to him. The BOE also raised declinatory exceptions of insufficient service of process and citation, asserting that neither the BOE nor the Attorney General's Office had been properly served with the citation and petition.

After a hearing, the district court ruled in favor of the BOE and against Judge Jones. By judgment dated March 7, 2017, the district court granted the BOE's peremptory exception to the petition for preliminary injunction, dismissing the petition for preliminary injunction with prejudice, denied the BOE's peremptory and declinatory exceptions to the petition for declaratory judgment, denied the petition for declaratory judgment, dismissed the petition for declaratory judgment with prejudice, and ruled that the application of La. R.S. 42:1124.2.1 to Judge Jones as a member of the Commission was not unconstitutional. Judge Jones appealed that judgment.

THE APPEAL

In his assignments of error, Judge Jones asserts that:

1. The trial court erred, as a matter of law, in denying [his] petition for declaratory relief.
2. The trial court erred, as a matter of law, in finding that Jones had to file a financial disclosure form pursuant to [La. R.S.] 42:1124.2.1A when he was excluded from doing so under that statute since he was already required to file a financial disclosure form pursuant to [La. R.S.] 42:1124.2 and [Rule XXXIX] of the Rules of the Supreme Court of Louisiana.
3. The trial court erred, as a matter of law, in finding that Jones, as an elected member of the judiciary, was not exempt from the [Code of Ethics] pursuant to [La. R.S.] 42:1167 and Section 3 (C) of Rule XXXIX of the Rules of the Supreme Court of Louisiana.

The BOE asserts that Judge Jones failed to present a justiciable controversy over which a declaratory judgment can be rendered. The Ethics Board notes that Judge Jones resigned as a member of the Commission on December 31, 2012, upon his resignation as a member of the Court of Appeal, Fourth Circuit. Thus, the BOE maintains that Judge Jones no longer falls within the scope and jurisdiction of the Code of Ethics. Additionally, the BOE notes that Judge Jones submitted a compliant financial disclosure statement on September 17, 2014, and on March 9, 2015, and paid the $1,500.00 late fee assessed by the BOE pursuant to La. R.S. 42:1124.2.1, satisfying his obligation under the Code of Ethics. The BOE asserts that Judge Jones did not seek a waiver of the late fee assessment, or seek subsequent reconsideration by the BOE, thus the late fee order is final, and no justiciable controversy exists.

In Abbott v. Parker, 259 La. 279, 249 So.2d 908, 918 (1971), the court stated:

A "justiciable controversy" connotes, in the present sense, an existing actual and substantial dispute, as distinguished from one that is merely hypothetical or abstract, and a dispute which involves the legal relations of the parties who have real adverse interests, and upon which the judgment of the court may effectively operate through a decree of conclusive character. Further, the plaintiff should have a legally protectable and tangible interest at stake, and the dispute presented should be of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.

As Judge Jones is asserting his right to compensation for the damages he sustained, resulting from what he maintains is the unconstitutional application of La. R.S. 42:1124.2.1 and the declaratory judgment against him, we find that there is a justiciable controversy.

APPLICABLE LAW

Louisiana Revised Statute 42:1167 provides that:

All judges, as defined by the Code of Judicial Conduct, shall be governed exclusively by the provisions of the Code of Judicial Conduct, which shall be administered by the Judiciary Commission provided for in Article V, Section 25 of the Constitution of Louisiana.
Louisiana Supreme Court Rule XXXIX provides in part:
Section 1.
A. All elected judges, except for justices of the peace, shall annually file a financial statement as provided in this rule. Judges shall file financial statements in accordance with Section 2.
For purposes of this Rule, the word "individual" or "person" means the judge who is required to file a financial statement.
Section 2.
A. All elected judges shall annually file a financial statement as provided in this Section. The financial statement required by this Section shall be filed by May 15th of each year during which the person holds an office or position included in Section 1, and by May 15th of the year following the termination of the holding of such office or position.
B. The financial statement required by this Section may be filed within thirty days after the individual files his or her federal tax return for the year on which he or she is reporting, taking into consideration any extensions filed by the individual, provided that the individual notifies the Office of the Judicial Administrator, Supreme Court of Louisiana, in writing prior to the deadline provided in Subsection (A) of this Section of his or her intention to do so.
C. The financial statement required by this Section shall be filed on a form prescribed by the Office of the Judicial Administrator, Supreme Court of Louisiana, and approved by the Court, and shall include the following information for the preceding calendar year: ....
Section 3. Enforcement and Penalties.
....
C. (1) If the person fails to file the statement, fails to provide the omitted information, fails to correct the inaccurate information, or fails to file a written answer prior to the deadline contained in the notice of delinquency, the Judicial Administrator's Office shall refer the matter to the Judiciary Commission.
(2) If the individual files a written answer contesting the allegations contained in the notice of delinquency, or if a complaint is received by the Office of the Judicial Administrator after a financial statement has been filed that is directed to the accuracy or completeness of a particular statement, the matter shall be referred to the Judiciary Commission.
(3) In the event a written complaint is received by the Commission after a financial statement has been filed that is directed to the accuracy or completeness of a statement, and the complaint is not deemed by the Commission to be frivolous, the Commission shall mail the complaint by certified mail to the judge or justice of the peace who is the subject of the complaint. The judge or justice of the peace shall be asked to answer the complaint within fourteen business days after receipt of the complaint.
Louisiana Revised Statute 42:1124 provides:
A. The following persons shall annually file a financial statement as provided in this Section:
(1) Each person holding statewide elected office.
Louisiana Revised Statute 42:1124.2 provides in part that:
A. Each of the following, except a person who is required to file a financial statement pursuant to R.S. 42:1124, shall annually file a financial statement as provided in this Section:
....
(2) Each person holding a public office who represents a voting district having a population of five thousand or more persons.

At the time Judge Jones served on the Commission, La. R.S. 42:1124.2.1 provided for financial disclosure by members of board and commissions in part:

A. Each of the following, except a person who is required to file a financial statement pursuant to R.S. 42:1124 or 1124.2, shall annually file a financial statement as provided in this Section:
(1) Each member and any designee of a member of a board or commission that has the authority to expend, disburse, or invest ten thousand dollars or more of funds in a fiscal year.
* * * *
B. The financial statement required by this Section shall be filed by May fifteenth of each year during which the person holds an office included in Subsection A of this Section and by May fifteenth of the year following the termination of the holding of such office.
C. The financial statement required by this Section shall be filed on a form prescribed by the [BOE] and shall include the following information for the preceding calendar year:
(1) The full name and mailing address of the individual who is required to file.
(2) The full name of the individual's spouse, if any, and the spouse's occupation and principal business address.
(3) The name of the employer, job title, and a brief job description of each full-time or part-time employment position held by the individual or spouse.
(4)(a) The name, address, brief description of, and nature of association with and the amount of interest in each business in which the individual or spouse is a director, officer, owner, partner, member, or trustee, and in which the individual or spouse, either individually or collectively, owns an interest which exceeds ten percent of that business.
(b) The name, address, brief description of, and nature of association with a nonprofit organization in which the individual or spouse is a director or officer.
(5) The name, address, type, and amount of each source of income received by the individual or spouse, or by any business in which the individual or spouse, either individually or collectively, owns an interest which exceeds ten percent of that business, which is received from any of the following:
(a) The state or any political subdivision as defined in Article VI of the Constitution of Louisiana.
(b) Services performed for or in connection with a gaming interest as defined in R.S. 18:1505.2(L)(3)(a).
(6) A certification that such individual has filed his federal and state income tax returns, or has filed for an extension of time for filing such tax return.
(7) One of the following:
(a) A certification that neither the individual nor any member of his immediate family had a personal or financial interest in any entity, contract, or business or a personal or financial relationship that in any way posed a conflict of interest which affected the impartial performance of the individual's duties as a member of the board or commission.
(b) A statement describing each conflict and any action the individual took to resolve or avoid the conflict. (Emphasis added.)

ASSIGNMENTS OF ERROR NOS. 1, 2 AND 3

As the assignments of error are interrelated, we consider them together. In his first assignment of error, Judge Jones characterizes his membership on the Commission as "ex officio." Louisiana Revised Statute 15:1202 provides for the composition of the Commission as follows in part:

A. The commission shall consist of fifty-eight members as follows:
....
(5) The chief judge of each of the courts of appeal.
Black's Law Dictionary provides a definition of ex offico:
By virtue or because of an office; by virtue of the authority implied by office. The term is often misused as a synonym for "nonvoting." Some meetings mistakenly label their regularly invited guests as "ex officio members" when in fact they are not members at all; others mistakenly refer to the nonvoting members as "ex officio members" even though some nonvoting members are present only in an individual capacity and not by virtue of office, or even though some voting members also serve ex officio. But an ex officio member is a voting member unless the applicable governing document provides otherwise.
"Frequently boards include ex-officio members - that is, persons who are members of the board by virtue of an office or committee chairmanship held in the society, or in the parent state or national society or federation or some allied group; or - sometimes in boards outside of organized societies - by virtue of a public office. In the executive board of a society, if the ex-officio member of the board is under the authority of the society (that is, if he is a member, officer, or employee of the society), there is no distinction between him and the other board members. If the ex-officio member is not under the authority of the society, he has all the privileges of board membership, including the right to make motions and to vote, but none of the obligations - just as in a case, for example, where the governor of a state is ex officio a trustee of a private academy." Henry M. Robert, Robert's Rules of Order Newly Revised § 49, at 466 (10th ed. 2000).

Black's Law Dictionary (10th ed. 2014 online).

We find Judge Jones's assertion that he was an ex officio member of the Commission, by which he implies that he was less than a full member of the Commission, to be meritless. While he was an ex officio member because of his status as Chief Judge of the Fourth Circuit Court of Appeal, there is no evidence that he did not have all the power and authority of any other member.

As explained by Black's Law Dictionary, an ex officio member of a board or commission is a voting member unless the applicable governing document provides otherwise. Furthermore, Judge Jones conceded at oral argument before this court that he voted on matters before the Commission.

In assignments of error numbers two and three, Judge Jones maintains that R.S. 42:1124.2.1 A provides a listing of the individuals who are required to file a financial statement pursuant to La. R.S. 42:1124 or 42:1124.2 and provides an exception for persons holding public office who represent a voting district having a population of five thousand or more persons. He asserts that the public purpose for financial disclosure required of commission members has been met by his financial disclosure filing made in compliance with La. R.S. 42:1124.2 and Rule XXXIX of the Rules of the Louisiana Supreme Court. Judge Jones also maintains that La. R.S. 42:1167 is clear that judges, as defined therein, are not subject to the Code of Ethics, as they are governed exclusively by the provisions of the Code of Judicial Conduct.

We disagree with these conclusions. When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature. La. C.C. art. 9. Laws on the same subject matter must be interpreted in reference to each other. La. C.C. art. 13. The purpose of the Code of Ethics is to further the public interest by ensuring that the law protects against conflicts of interest on the part of Louisiana's public officials and state employees by establishing ethical standards to regulate the conduct of those persons. La. R.S. 42:1101 ; Ellis v. Louisiana Bd. of Ethics, 2014-0112 (La. App. 1 Cir. 12/30/14), 168 So.3d 714, 721, writ denied, 2015-0208 (La. 4/17/15), 168 So.3d 400.

The purpose for requiring yearly financial disclosure statements from state board and commission members to the BOE is to ensure that members of state boards and commissions do not have financial conflicts of interest with their service as members of state boards or commissions. Louisiana Revised Statutes 42:1124.2.1 does not exempt elected judges who are serving as state board or commission members from filing financial disclosure statements with the BOE, and our reading of all of the related statutes, along with Rule XXXIX of the Rules of the Louisiana Supreme Court, leads to the conclusion that elected judges serving as state board or commission members are not exempted from filing the financial disclosure statements required of board and commission members by the Code of Ethics.

It is true that an elected judge, sitting in his capacity as a judge , is governed exclusively by the provisions of the Code of Judicial Conduct. However, a judge sitting as a board or commission member is not serving as a judge, but as a board or commission member, and in that capacity, we find that he is subject to the Code of Ethics requirement that state board and commission members must file a financial disclosure statement with the BOE in accordance with La. R.S. 42:1124.2.1. These assignments of error have no merit.

DECREE

Thus, for the foregoing reasons, the March 7, 2017 district court judgment granting the Louisiana Board of Ethics' peremptory exception to the petition for preliminary injunction, dismissing the petition for preliminary injunction with prejudice, denying the Louisiana Board of Ethics' peremptory and declinatory exceptions to the petition for declaratory judgment, denying Judge Jones's petition for declaratory judgment and dismissing it with prejudice, and ruling that the application of La. R.S. 42:1124.2.1 as to Judge Jones as a member of the Louisiana Commission on Law Enforcement and the Administration of Criminal Justice is not unconstitutional, is affirmed. The costs of this appeal are assessed against the appellant, Charles R. Jones.

AFFIRMED.

CRAIN, J., dissenting.

I believe that application of Louisiana Revised Statute 42:1124.2.1 to a chief judge of an appellate court is excluded by the express language of Louisiana Revised Statute 42:1167 ("All judges ... shall be governed exclusively by the provisions of the Code of Judicial Conduct)" (emphasis added), and where the appointment is by statute and ex officio it violates the separation of powers under the constitution. Otherwise, by legislative fiat judges may be subjected to executive/legislative branch authority by a statutory appointment subjecting judges to the executive/legislative branch ethics code. While there may be a distinction if the Supreme Court makes the appointment and the judge voluntarily serves, those facts are not presented by this case.

      Louisiana Revised Statutes 42:1124.2.1 was thereafter revised by Acts 2012, No. 574, § 2, effective January 1, 2013; Acts 2015, No. 450, § 1, effective July 1, 2015; Acts 2016, No. 410, § 1, effective August 1, 2016; and Acts 2018, No. 538, § 1, effective August 1, 2018.


author: LILJEBERG, J.

text:
    Katherine De Jean RICHARDSON, Patrick Jude De Jean and Romano Wholesale Liquor Company, Inc. v. CAPITOL ONE, N.A. and Hibernia National Bank and ABC Insurance Company and Diane Fennidy
    NO. 18-CA-240
    Court of Appeal of Louisiana, Fifth Circuit.
    October 05, 2018
    COUNSEL FOR PLAINTIFF/APPELLANT, KATHERINE DE JEAN, PATRICK JUDE DE JEAN AND ROMANO WHOLESALE LIQUOR, A. Bruce Netterville
    COUNSEL FOR DEFENDANT/APPELLEE, CAPITOL ONE, N.A. AND HIBERNIA NATIONAL BANK, Deirdre C. McGlinchey, Stephen W. Rider, New Orleans
    Panel composed of Judges Fredericka Homberg Wicker, Stephen J. Windhorst, and Hans J. Liljeberg
   LILJEBERG, J.

Plaintiffs seek review of the trial court's judgment sustaining defendant's exception of prescription and dismissing plaintiffs' claims with prejudice. Defendant has answered the appeal, seeking an order of sanctions and damages, including costs and attorney fees, on the grounds that plaintiffs' appeal is frivolous. It also asks this Court to enter judgment on its exceptions of no cause of action and no right of action.

After review of the matter before us, we find that the judgment at issue is not a final judgment, and we lack jurisdiction to consider the merits of the appeal. Accordingly, we dismiss the appeal and remand this case to the trial court for further proceedings. We also deny defendant's motion to strike plaintiffs' brief and its motion to dismiss the appeal, on other grounds, as they are now moot.

FACTS AND PROCEDURAL HISTORY

On November 20, 2009, plaintiffs, Katherine De Jean Richardson, Patrick Jude DeJean, and Romano Wholesale Liquor Company, Inc. ("Romano Wholesale") filed this lawsuit against Capitol One, N.A. ("Capitol One"), Hibernia National Bank, ABC Insurance Company, and Diane Fennidy, seeking damages arising from the mismanagement or conversion of over $1.3 million allegedly deposited into Romano Wholesale's corporate account at Hibernia National Bank, now Capitol One, by Marcel DeJean, the father of Katherine and Patrick Jude DeJean. Capitol One filed exceptions of prescription, no cause of action, and no right of action. After a hearing on August 25, 2010, the trial court granted the exception of prescription and dismissed plaintiffs' claims in a judgment dated September 1, 2010. Plaintiffs filed an appeal with this Court.

On appeal, this Court issued an opinion on June 14, 2011, affirming the trial court's judgment granting the exception of prescription.

DeJeanRichardson v. Capitol One, N.A. , 11-30 (La. App. 5 Cir. 6/14/11), 91 So.3d 304, vacated on rehearing , 11-30 (La. App. 5 Cir. 6/14/11), 91 So.3d 304. Thereafter, Romano Wholesale filed an application for rehearing, alleging that Patrick DeJean had discovered a letter from Ms. Fennidy to Marcel DeJean dated February 22, 1999, regarding the $1.3 million deposit, and arguing that it was newly discovered evidence which affected the Court's ruling on the exception of prescription. On rehearing, this Court vacated its June 14, 2011 opinion and remanded for the trial court to hold a hearing to determine whether the letter constitutes newly discovered evidence and whether it should be admitted into evidence. Id.

On remand, plaintiffs filed supplemental and amended petitions setting forth additional claims arising from the newly discovered letter. Capitol One filed renewed exceptions of prescription, no cause of action, and no right of action. In October of 2012, the trial court held a hearing on whether the letter constitutes newly discovered evidence and on Capitol One's renewed exceptions. Thereafter, in December of 2012, the trial court denied Capitol One's exceptions. The court also ruled that the letter was an authentic copy of an original letter signed by Ms. Fennidy, that it was newly discovered evidence, and that it was admissible under La. C.E. art. 1004.

On June 3, 2014, Capitol One filed a reconventional demand against plaintiffs, asserting that it had retained a certified forensic document examiner who concluded that the Fennidy letter was not genuine, but rather was a "contrived document," and setting forth claims of fraud, abuse of process and conspiracy. In January of 2017, Capitol One filed a motion for summary judgment seeking dismissal of plaintiffs' claims on the grounds that the Fennidy letter was not authentic. In a judgment dated April 25, 2017, the trial court granted partial summary judgment in favor of Capitol One, finding that, as a matter of law, "the document that purports to be a February 22, 1999 letter from Diane Fennidy to Mr. DeJean is indeed a fake."

On June 19, 2017, Capitol One filed a "Reurged Exception of Prescription, of No Cause of Action, and of No Right of Action." The trial court held a hearing on the reurged exceptions on October 3, 2017, and took the matter under advisement. On October 16, 2017, the trial court signed a judgment granting Capitol One's exception of prescription and dismissing plaintiffs' claims with prejudice.

Plaintiffs filed an appeal seeking review of the trial court's October 16, 2017 judgment. Capitol One answered the appeal asking this Court to sustain its exceptions of no cause of action and no right of action, award damages to Capitol One including attorney fees and costs, and requesting sanctions be imposed against plaintiffs. In this Court, Capitol One has also filed a motion to strike plaintiffs' brief and to impose sanctions against plaintiffs and/or their counsel. They have also filed a motion to dismiss the appeal asserting several grounds for dismissal, including that the order of appeal is deficient, plaintiffs failed to timely pay estimated costs of appeal, and plaintiffs failed to timely move to designate portions of the record.

After reviewing the pleadings in the record before us, we note that the trial court's judgment does not resolve all of the claims involved in this case, including those set forth in Capitol One's recoventional demand. We further note that the trial court's judgment is not designated as final pursuant to La. C.C.P. art. 1915(B)(1). Accordingly, for the reasons set forth below, we find that this Court lacks appellate jurisdiction to consider the merits of this case.

DISCUSSION

An appellate court has the duty to determine sua sponte whether subject matter jurisdiction exists, even if the parties do not raise the issue. Jefferson Parish School Board v. TimBrian, L.L.C. , 17-668 (La. App. 5 Cir. 3/28/18), 243 So.3d 749, 751 ; Input/Output Marine Sys. v. Wilson Greatbatch Techs., Inc. , 10-77 (La. App. 5 Cir. 10/29/10), 52 So.3d 909, 910. An appellate court cannot determine the merits of an appeal unless its jurisdiction is properly invoked by a valid final judgment. La. C.C.P. art. 2083 ; Creighton, Richards & Higdon, L.L.C. v. Richards Clearview, L.L.C. , 09-247 (La. App. 5 Cir. 10/29/09), 28 So.3d 391, 393.

La. C.C.P. art. 1915(A) provides that certain partial judgments may be considered final, even if they do not grant the successful party all of the relief prayed for or adjudicate all of the issues in the case. Matherne v. Lemoine Indus. Grp., L.L.C. , 14-572 (La. App. 5 Cir. 10/15/14), 182 So.3d 979, 981. A final judgment may be rendered and signed by the court, even though it may not grant the successful party all of the relief prayed for, or may not adjudicate all of the issues, when the court dismisses the suit as to less than all of the parties, defendants, third party plaintiffs or defendants, or intervenors. La. C.C.P. art. 1915(A)(1).

The judgment at issue in this appeal does not meet the criteria to be considered final under La. C.C.P. art. 1915(A)(1). Nevertheless, even if a partial judgment does not qualify as a final judgment under La. C.C.P. art. 1915(A), it may still constitute a final judgment for the purposes of an immediate appeal if it is designated as a final judgment by the trial court after an express determination that there is no just reason for delay. La. C.C.P. art. 1915(B)(1). However, in the absence of such a designation, such a judgment shall not constitute a final judgment for the purpose of an immediate appeal. La. C.C.P. art. 1915(B)(2) ; Holmes v. Paul , 18-140 (La. App. 5 Cir. 8/29/18), 254 So.3d 825, 2018 WL 4100777, 2018 La. App. LEXIS 1645.

In the present case, although the claims set forth in plaintiffs' petition in the main demand have been dismissed, the judgment does not make any determination on the merits of Capitol One's reconventional demand. This Court has consistently held that a judgment on the determination of a principal demand that does not dispose of a reconventional demand between the same parties is not a final, appealable judgment under La. C.C.P. art. 1915(A) and must be designated as final pursuant to La. C.C.P. art. 1915(B). See Holmes v. Paul , supra ; Jackson v. Sumlin , 16-96 (La. App. 5 Cir. 7/7/16), 196 So.3d 902 ; Hancock Bank of La. v. 3429 H, L.L.C. , 15-355 (La. App. 5 Cir. 1/13/16), 184 So.3d 274, writ denied , 16-453 (La. 4/22/16), 191 So.3d 1038 ; Vince v. Koontz , 15-301 (La. App. 5 Cir. 12/9/15), 182 So.3d 333.

In this case, because the judgment granting Capitol One's exception of prescription and dismissing plaintiffs' claims in the main demand did not address the claims of the reconventional demand and was never designated as final by the trial court after an express determination that there is no just reason for delay pursuant to La. C.C.P. art. 1915(B), we find that the judgment is not a final, appealable judgment and, thus, we lack appellate jurisdiction to consider the merits of the appeal. Accordingly, we dismiss the appeal and remand to the trial court for further proceedings.

Considering our finding that the appeal must be dismissed for lack of appellate jurisdiction, we find that Capitol One's motion to dismiss the appeal on other grounds, as well as its motion to strike plaintiffs' brief, are moot.

DECREE

For the foregoing reasons, we dismiss the appeal and remand to the trial court. We further deny Capitol One's motion to dismiss the appeal and its motion to strike plaintiffs' brief, finding both to be moot.

APPEAL DISMISSED; REMANDED MOTION TO DISMISS AND MOTION TO STRIKE DENIED AS MOOT


author: JOHNSON, J.

text:
    Catherine PECORARO and Emma Pecoraro v. LOUISIANA CITIZENS INSURANCE CORPORATION
    NO. 18-CA-161
    Court of Appeal of Louisiana, Fifth Circuit.
    October 17, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, CATHERINE PECORARO AND EMMA PECORARO, John H. Denenea, Jr., New Orleans
    COUNSEL FOR DEFENDANT/APPELLANT, LOUISIANA CITIZENS PROPERTY INSURANCE COMPANY, Nicholas P. Arnold, David B. Belk, New Orleans
    Panel composed of Judges Marc E. Johnson, Stephen J. Windhorst, and Hans J. Liljeberg
   JOHNSON, J.

Defendant, Louisiana Citizens Property Insurance Corporation ("Citizens"), appeals a judgment awarding Plaintiff depreciation value associated with her property loss claim from Hurricane Isaac. For the reasons that follow, we reverse.

In August 2012, Plaintiffs, Catherine and Emma Pecoraro, sustained property damage to their home on Jeanette Drive in Metairie as a result of Hurricane Isaac. At the time of their loss, Plaintiffs were insured by Citizens under a wind and hail policy. They submitted a claim to Citizens for the property damage, but the parties could not agree on the amount of loss. As a result, Plaintiffs invoked the appraisal clause of the insurance policy, which resulted in the parties selecting two appraisers - one on behalf of each party - to determine the amount of loss. The appraisers could not agree on the amount of loss; so, an umpire was selected, as per the policy, to resolve the dispute between the appraisers.

Both appraisers met with the umpire on July 15, 2014 to discuss their disagreements. The umpire rendered his report on August 20, 2014, valuing the property loss at $35,686.19 in replacement cost value ("RCV") for Coverage A - Dwelling, and $1,585.02 in RCV for Coverage B - Other structures. The umpire specifically noted that prior payments and a deductible should be applied to the value of the loss, assuming the policy provides for such. Additionally, the umpire expressly stated that his report "does not take a position on whether RCV or ACV [actual cost value] is owed under the policy." Plaintiffs' appraiser signed the umpire's report indicating his agreement, thus setting the amount of loss under the terms of the policy. Citizens then adjusted the amount of loss by taking into consideration depreciation, the policy deductible, and prior payments, and tendered payment to Plaintiffs below the amount of loss determined by the umpire.

Plaintiffs subsequently filed suit on August 28, 2014 against Citizens, alleging that it refused to pay the full amount owed under the policy for their claim resulting from Hurricane Isaac. Plaintiffs further asserted that Citizens was arbitrary and capricious in refusing to fully pay their claim and, thus, acted in bad faith thereby entitling Plaintiffs to penalties and attorney's fees.

The parties proceeded to a bench trial on September 12, 2017. At the beginning of trial, the parties stipulated that the total amount in contractual dispute was $10,088.12. In post-trial briefs, the parties indicated that this amount was the difference between the replacement value of the damaged property, as determined by the umpire, and the actual cash value ("ACV") of the damaged property, as calculated and paid by Citizens. After taking the matter under advisement, the trial court rendered judgment on October 26, 2017, finding Citizens liable to Plaintiff for the $10,088.12, or the difference between the ACV it had already paid and the RCV as determined by the umpire. The trial court did not find Citizens acted arbitrarily and capriciously in handling Plaintiff's claim.

In its reasons for judgment, the trial court concluded that although Citizens believed the policy at issue was an ACV policy, the policy language, when liberally construed, allowed for the payment of property damage in an amount required to repair or replace the property. It determined that the policy was ambiguous given the fact the appraisal provision did not specifically refer to ACV. The trial court reasoned that because ambiguity in an insurance policy must be resolved in favor of the insured, Plaintiff was clearly entitled to the difference between the ACV, which was paid to Plaintiff, and the RCV, which was determined by the umpire.

Citizens filed this appeal raising as its sole assignment of error the trial court's failure to apply the ACV limitation of coverage as clearly set forth in the declarations page of the policy.

There are no factual disputes in this case. The sole issue before us - whether Citizens owes ACV or RCV under the terms of the policy - involves the interpretation of the insurance policy language. An insurance policy is a contract between the parties and should be construed employing the general rules of interpretation of contracts set forth in the Louisiana Civil Code. Sher v. Lafayette Ins. Co. , 07-2441 c/w 07-2443 (La. 4/8/08); 988 So.2d 186, 192, rehearing granted on other grounds , 07-2441 (La. 7/7/08); 988 So.2d 186. Interpretation of an insurance contract is a question of law, which is subject to a de novo review on appeal without deference to the legal conclusions of the trial court. See Power v. State Farm Fire & Casualty Co. , 15-796 (La. App. 5 Cir. 5/26/16), 193 So.3d 471, 473 ; PAF, Inc. v. Regions Bank , 14-195 (La. App. 5 Cir. 9/24/14), 150 So.3d 477, 479.

The extent of coverage under an insurance contract is dependent on the common intent of the insured and insurer. Thus when interpreting an insurance contract, courts must discern the common intent of the parties. See La. C.C. art. 2045 ; Doucet v. Huffine Roofing & Construction , 02-1049 (La. App. 5 Cir. 2/25/03), 841 So.2d 916, 919. In ascertaining the common intent of the parties, courts must begin their analysis with a review of the words of the insurance contract. Words in an insurance contract must be ascribed their generally prevailing meaning, unless the words have acquired a technical meaning, in which case the words must be ascribed their technical meaning. La. C.C. art. 2048 ; Doucet , supra . Moreover, an insurance contract must be construed as a whole and each provision in the contract must be interpreted in light of the other provisions. One provision of the contract should not be construed separately at the expense of disregarding other provisions. La. C.C. art. 2050 ; Doucet , supra .

When the words of an insurance contract are clear and explicit and lead to no absurd consequences, courts must enforce the contract as written. La. C.C. art. 2046 ; Doucet , supra . Courts lack authority to alter the terms of an insurance contract under the guise of contractual interpretation when the contract's provision are unambiguous. Id.

An insurance policy should not be interpreted in an unreasonable or a strained manner so as to enlarge or to restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion. LeBlanc v. Babin , 00-1813 (La. App. 5 Cir. 4/24/01), 786 So.2d 850, 854. Absent a conflict with statutory provisions or public policy, insurers, like other individuals, are entitled to limit their liability and to impose and enforce reasonable conditions upon the policy obligations they contractually assume. Id. at 855.

If an insurance contract cannot be construed simply, based on its language, because of an ambiguity, the court may look to extrinsic evidence to determine the parties' intent. Grefer v. Travelers Ins. Co. , 04-1428 (La. App. 5 Cir. 12/16/05), 919 So.2d 758, 767. Ambiguity is to be resolved by ascertaining how a reasonable insurance policy purchaser would construe the clause at the time the insurance contract was entered. Louisiana Ins. Guar. Ass'n v. Interstate Fire & Casualty Co. , 93-911 (La. 1/14/94); 630 So.2d 759, 764. "The court should construe the policy to 'fulfill the reasonable expectations of the parties in light of the customs and usages of the industry.' " Id. (internal citations omitted).

In the present case, Citizens argues that its policy clearly limits coverage to the ACV of the determined loss and thus, the trial court erred in allowing Plaintiff to recover the depreciation value of $10,088.12. Plaintiff maintains the policy is ambiguous as to whether coverage under the appraisal clause of the policy is for ACV or RCV of the loss and, thus, should be construed against Citizens in favor of the insured so as to allow Plaintiff to recover the higher RCV. The parties rely on various sections of the policy to support their respective arguments. Citizens relies on the declaration page, which states that ACV will be used for purposes of determining loss. Conversely, Plaintiff never addresses the declaration page and its reference to ACV, but instead relies on the appraisal clause and loss settlement clause to argue that the policy is unclear.

The declaration page of Plaintiff's policy expressly provides, "Valuations for purposes of determining loss will be at ACTUAL CASH VALUE." The bottom of the declaration page states that "[t]hese Declarations together with the common policy conditions, coverage declarations, form(s), and endorsements, if any, issued complete the above numbered policy." The forms and endorsements section of the declaration page lists several items, including the "DWG 1 01 93 - Dwelling Property Basic Form" ("DWG form"). Thus, it is clear that the declaration page is part of the policy and is to be read together with the DWG form to determine the coverage provided by the policy.

The appraisal clause of the DWG form states:

If you and we fail to agree on the amount of loss, either may demand an appraisal of the loss. In this event, each party will choose a competent appraiser within 20 days after receiving a written request from the other. The two appraisers will choose an umpire. If they cannot agree upon an umpire within 15 days, you or we may request that the choice be made by a judge of a court of record in the state where the Described Location is located. The appraisers will separately set the amount of loss. If the appraisers submit a written report of an agreement to us, the amount agreed upon will be the amount of loss. If they fail to agree, they will submit their differences to the umpire. A decision agreed to by any two will set the amount of loss.

The DWG form also contains a "Loss Settlement" provision that provides:

Covered property losses are settled at actual cash value at the time of loss but not more than the amount required to repair or replace the damaged property.

We find no ambiguity in the insurance contract. In applying the laws of contract interpretation, it is clear under the plain language of the policy that Citizens will pay the ACV of the determined loss, except when the repair or replacement value is a lesser amount at which time Citizens will pay the lesser amount. The mere fact the appraisal clause only refers to the "amount of loss" without specifying that the loss is valued for purposes of payment under the policy to the ACV does not render it ambiguous. As previously noted, the policy must be read as a whole and one provision may not be read to the exclusion of another provision. When the policy is construed as a whole, it is clear that the value of loss, for purposes of Plaintiff's policy, is determined using ACV and not RCV.

The record shows that the umpire valued the amount of loss using only the RCV and not the ACV, despite being asked to give the ACV by Citizens' appraiser. Citizens' claims adjuster, Allison Blossman, testified that she has never been involved in an appraisal process where the umpire has refused to give the ACV. Nonetheless, Citizens used its own calculations of depreciation to determine the ACV from the RCV set by the umpire and paid the ACV.

Upon de novo review, we find the insurance policy at issue is unambiguous. Under the clear terms of the policy, Citizens is to pay the insured's loss based on ACV, not RCV. Thus, we find the trial court erred in awarding Plaintiff $10,088.12 in depreciation value. Accordingly, we reverse the judgment of the trial court and render judgment in favor of Citizens, dismissing Plaintiff's claim with prejudice.

REVERSED

      The umpire also assigned a $954.30 value for Coverage D, which appears to relate to additional living expenses while Plaintiffs were unable to live in the home during repairs. According to the testimony of Allison Blossman, a claims adjuster for Citizens who was also qualified as an expert in the field of general insurance adjusting practices, Plaintiffs' policy did not include coverage for additional living expenses. No issue regarding a claim for additional living expenses was raised on appeal.

      The policy provides, "If the appraisers submit a written report of an agreement to us, the amount agreed upon will be the amount of loss. If they fail to agree, they will submit their differences to the umpire. A decision agreed to by any two will set the amount of loss."

      Suit was initially filed by Catherine and her mother, Emma Pecoraro. Emma Pecoraro passed away during the pendency of suit and Catherine substituted herself in her mother's place as the administratrix of her mother's estate.

      The policy defines ACV as "the amount needed to repair or replace the damaged or destroyed property, minus depreciation." It further defines replacement cost (RC) as "the initial payment of actual cash value (ACV) of a loss, and the subsequent payment of additional amount [sic] that is actually and necessarily expended to repair or replace the damages or destroyed property."

      We note that Citizens' method of calculation of the ACV and the amount it determined to be the ACV was never challenged. Additionally, there is no dispute that Citizens paid the ACV of Plaintiff's loss.