text:
    PORT CITY GLASS & PAINT INC., Plaintiff-Appellee v. SIMMIE BROOKS, Eric West, & Natasha West, Defendants-Appellees
    No. 52,534-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered February 27, 2019
    JOSEPH A. BOOTHE, Counsel for Defendant-Appellant, Winnsboro Auto Ventures, LLC, d/b/a Winnsboro Chrysler Dodge Jeep
    RONALD KIP GATES, Monroe, Counsel for Plaintiff-Appellee, Port City Glass & Paint, Inc.
    SIMMIE BROOKS, In Proper Person
    ERIC WEST, In Proper Person
    NATASHA WEST, In Proper Person
    Before WILLIAMS, GARRETT, and McCALLUM, JJ.
   GARRETT, J.

Winnsboro Auto Ventures, LLC, D/B/A Winnsboro Chrysler Dodge Jeep ("Winnsboro Auto"), appeals from a city court judgment which found it liable to Port City Glass & Paint, Inc. ("Port City") for $ 575 owed on an open account and $ 1,000 in attorney fees. We affirm the lower court's judgment.

FACTS

In June 2016, Eric and Natasha West purchased a 2015 GMC Yukon Denali from Winnsboro Auto. That dealership, which is popularly known as Winnsboro Dodge, is owned by Brett Oubre. Simmie Brooks was the salesman who sold the vehicle to the Wests. He and the Wests lived in Vicksburg, Mississippi. When the Wests required service on the vehicle's entertainment system shortly after the purchase, Brooks drove the vehicle back to Winnsboro to have the work performed. While he was driving the vehicle, a rock struck the windshield. Brooks arranged to have the windshield replaced by Port City, a Monroe business which frequently performed that sort of work for Winnsboro Auto. Subsequently, Jerry Donald, a driver who often worked for Winnsboro Auto, picked up the vehicle, took it to Port City, and returned it after the repair. Between the time when the windshield was damaged and when it was replaced, Brooks was fired by Wayne Marceau, the general manager of Winnsboro Dodge; however, he went to work at a Mississippi dealership owned by Oubre.

A question arose as to which party should pay for the windshield. Brooks testified at trial that he called Port City about the repair only after securing permission from his general manager, Marceau, to do so. He stated that Marceau later reneged on paying for the windshield out of vindictiveness toward him.

After trying unsuccessfully to obtain payment, Port City filed a petition and suit on open account in Monroe City Court against Brooks and the Wests on August 2, 2017. It alleged that the defendants contracted for service and owed $ 575, together with legal interest from date of judicial demand until paid in full, reasonable attorney fees, and all costs. Specifically, it asserted that Brooks, an employee of the Winnsboro dealership, sold the Denali to the Wests on June 15, 2016, and authorized installation of glass in the vehicle and that Port City installed the glass as requested. The petition alleged that, despite numerous demands, the defendants had refused to pay Port City's bill. Attached to the petition were copies of the invoice and the demand letters sent to the defendants. The invoice identified the customer as "Winnsboro Chrysler Dodge."

Brooks answered the petition in proper person. He stated that the dealership was supposed to pay for the windshield to be replaced because it was broken during transit. However, since he left the company, it had refused to pay the bill. Brooks further stated he had contacted Port City's attorney, who advised him to file papers on his own behalf.

On October 31, 2017, a default judgment was rendered against Ms. West in the amount of $ 575, plus legal interest and attorney fees of $ 1,500.

On November 7, 2017, Port City filed a motion for summary judgment against Brooks. An affidavit by Cindy Hayes, Port City's manager, was filed in conjunction with this motion. She recited the same facts alleged in the original petition. The motion was set for hearing on December 14, 2017. Although Brooks did not attend, the Wests were present for the hearing. In accordance with the plaintiff's request, the matter was continued without date. Plaintiff's counsel admitted that service on Brooks under the long-arm statute had not been perfected.

Ms. West, acting in proper person, filed a motion to vacate judgment on November 17, 2017. She asserted that the windshield was damaged when Brooks was driving the vehicle back to the dealership several weeks after the original purchase. The dealership had failed to add a second television console as agreed. The television was ordered and the dealership subsequently installed it once it arrived. Ms. West stated that she was told by Brooks that, during transit, a rock damaged the windshield, and they had to repair it. She alleged that she had no knowledge of the facts of the repair and that she never authorized Port City to install anything. She stated that, had she been liable, she could have simply filed an insurance claim. She also asserted that she was in possession of several documents, including the Port City bill of sale/repair identifying Winnsboro Dodge as the client; a Winnsboro Dodge document stating that Port City had not followed protocol for receiving a proper work order for them; and the answer submitted by Brooks to the court stating that his employer was to pay for the windshield. Ms. West stated that she was not a resident of Louisiana, she was never notified of any hearing, and she was unable to afford legal representation. She concluded by stating that she believed this matter should have been resolved between the dealership, the plaintiff, and the salesman. The motion was set for argument on February 8, 2018.

On January 8, 2018, Port City filed an amended petition and suit on open account, in which it added Winnsboro Auto as a defendant. On February 9, 2018, Winnsboro Auto filed a peremptory exception of no cause of action. It asserted that Port City failed to allege any conduct by it or by its employee, Brooks, acting on its behalf. In the alternative, Winnsboro Auto raised a dilatory exception of vagueness, in which it contended that Port City's failure to expressly allege the conduct giving rise to Winnsboro Auto's liability created an undue hardship on it in preparing its defense. The exceptions were set for April 24, 2018. Port City filed an opposition to the exceptions. On March 6, 2018, the parties were sent notice of trial, which was also set for April 24, 2018.

On the morning of April 24, 2018, the court heard arguments on Winnsboro Auto's exceptions. It denied the peremptory exception of no cause of action and ordered the matter to proceed to trial later that morning.

At trial, Port City presented the testimony of Brooks and Lawson Criswell. Criswell testified that his parents owned Port City and that he worked for them. He stated that he was familiar with the accounts payable and also handled glass installation. He testified that Port City had installed multiple windshields for Winnsboro Dodge and that they never got purchase orders from Winnsboro Dodge prior to performing the work. According to Criswell, cars were sent to Port City by various people at Winnsboro Dodge, and, after the work was completed, they contacted Winnsboro Dodge for a purchase order number. Up until the instant case, they had never encountered any problem with receiving payment.

Brooks testified that, after the rock hit the windshield, he called Ms. West and Marceau, who told him that the dealership would pay for the repair. He stated that, during the two years he worked at the dealership, he was given authority to make purchases on its behalf, but the authorization was not in writing. He recounted verbally authorizing windshield repairs prior to the instant case. He also stated that he was aware of Winnsboro Auto paying Donald to pick up the vehicle for the windshield repair and returning it afterwards.

At the conclusion of the plaintiff's case, Winnsboro Auto moved for a directed verdict or dismissal and reurged its exceptions. After the trial court denied its motion, it called its controller, Pat Roberts, as a witness. She testified that she had worked for the dealership for 32 years; she had worked for Oubre since April 2014. According to her testimony, the Wests purchased their vehicle on June 13, 2016, and Brooks was fired on June 29, 2016. Roberts testified that no one was allowed to authorize payments for repairs without a purchase order, which was obtained in advance of the work being performed. She maintained that a purchase order was refused in the instant case because they were unaware of anything happening to the windshield. She also stated that she was unaware that the work had already been done in the instant case or that there was a history of Port City obtaining purchase order numbers from Winnsboro Auto after doing work. She indicated that, while she was authorized to issue purchase orders, another person in the office actually handled that. Roberts testified that, while she had an invoice for some repair on the Wests' vehicle on June 23, 2016, she could find no record of any work pertaining to its entertainment system. She also denied paying Donald to take the vehicle to Port City. Roberts admitted that she was not privy to any conversations between Brooks and Marceau about the windshield. According to her, Marceau no longer worked at the dealership and Donald had retired.

At the conclusion of the evidence, Port City moved to set aside the previously rendered default judgment against Ms. West. It also filed a written motion to that effect. Winnsboro Auto objected to the motion on the grounds that Port City had an obligation to mitigate its damages. The trial court subsequently granted the motion and signed an order setting aside that judgment.

In oral reasons, the trial court ruled in favor of Port City and against Winnsboro Auto, finding that proper authorization was given to Brooks by the general manager to have the windshield repaired. It specifically held that Brooks was the most credible witness, while finding Roberts' testimony that she did not know that purchase orders were being submitted after performance of the work was not credible. The court concluded that, although the dealership might have had the purchase order authorization policy in place, it was not followed in the course of day-to-day business. Furthermore, the court found the actions of Winnsboro Auto in the instant case to be "highly vindictive."

On May 8, 2018, the court signed a judgment against Winnsboro Auto, awarding Port City $ 575, plus attorney fees of $ 1,000.

Winnsboro Auto appealed.

EXCEPTIONS

Winnsboro Auto's first two assignments of error pertain to its exceptions. It contends that the trial court erred in denying its exception of no cause of action or, in the alternative, its exception of vagueness. It further asserts that the trial court erred in forcing it to go to trial on the same day its exceptions were denied, thereby giving it insufficient time to prepare its defense.

Law

The peremptory exception of no cause of action tests the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the petition. Pesnell v. Sessions , 51,871 (La. App. 2 Cir. 2/28/18), 246 So.3d 686 ; Gipson v. Fortune , 45,021 (La. App. 2 Cir. 1/27/10), 30 So.3d 1076, writ denied , 10-0432 (La. 4/30/10), 34 So.3d 298. The exception is triable on the face of the petition; and, for the purpose of determining the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true. Fink v. Bryant , 01-0987 (La. 11/28/01), 801 So.2d 346 ; Pesnell v. Sessions , supra . No evidence may be introduced at any time to support or controvert the objection that the petition fails to state a cause of action. La. C.C.P. art. 931.

An exception of no cause of action should be granted only when it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim which would entitle him to relief. If the petition states a cause of action on any ground or portion of the demand, the exception should generally be overruled. Every reasonable interpretation must be accorded the language used in the petition in favor of maintaining its sufficiency and affording the plaintiff the opportunity of presenting evidence at trial. Badeaux v. Southwest Computer Bureau, Inc. , 05-0612 (La. 3/17/06), 929 So.2d 1211 ; Stonecipher v. Caddo Par. , 51,148 (La. App. 2 Cir. 4/7/17), 219 So.3d 1187, writ denied , 17-0972 (La. 10/9/17), 227 So.3d 830.

The burden of showing that the plaintiff has stated no cause of action is upon the exceptor. The public policy behind the burden is to afford the party his day in court to present his evidence. City of New Orleans v. Board of Directors of La. State Museum , 98-1170 (La. 3/2/99), 739 So.2d 748 ; Villareal v. 6494 Homes, LLC , 48,302 (La. App. 2 Cir. 8/7/13), 121 So.3d 1246.

An appellate court reviews a trial court's ruling on an exception of no cause of action de novo because the exception raises a question of law and the lower court's decision is based only on the sufficiency of the petition. Mack v. Evans , 35,364 (La. App. 2 Cir. 12/5/01), 804 So.2d 730, writ denied , 02-0422 (La. 4/19/02), 813 So.2d 1088. See also Kinchen v. Livingston Parish Council , 07-0478 (La. 10/16/07), 967 So.2d 1137 ; Hebert v. Shelton , 2008-1275 (La. App. 3 Cir. 6/3/09), 11 So.3d 1197 ; Ordoyne v. Ordoyne , 2007-0235 (La. App. 4 Cir. 4/2/08), 982 So.2d 899.

The purpose of the exception of vagueness is to place the defendant on notice of the nature of the facts sought to be proved so as to enable him to identify the cause of action, thus preventing future relitigation after a judgment is obtained. However, the exception does not entitle the defendant to demand exactitude and detail of pleading beyond what is necessary to fulfill the obligations outlined above. If the plaintiff's petition fairly informs the defendant of the nature of the cause of action and includes sufficient substantial particulars to enable the defendant to prepare its defense, then the exception of vagueness will be denied. Casares v. James M. Brown Builder, Inc. , 44,561 (La. App. 2 Cir. 8/19/09), 17 So.3d 1022, writ denied , 09-2055 (La. 11/20/09), 25 So.3d 813. An appellate court reviews a judgment on an exception of vagueness under the manifest error standard of review because the district court's judgment is based on a factual determination. Succession of Gendron , 17-216 (La. App. 5 Cir. 12/27/17), 236 So.3d 802.

Discussion

Generally, the denial of an exception of no cause of action is a nonappealable interlocutory judgment. See La. C.C.P. arts. 1841 and 2083 ; Hall v. James , 43,263 (La. App. 2 Cir. 6/4/08), 986 So.2d 817 ; Ordoyne v. Ordoyne , supra . The same is true of a denial of an exception of vagueness. See Guidry v. Winder , 07-441 (La. App. 5 Cir. 11/27/07), 973 So.2d 814. However, when a nonappealable issue is raised in conjunction with appealable issues, the nonappealable issues may be reviewed to achieve judicial economy and justice. Riley v. Riley , 94-2226 (La. App. 4 Cir. 9/4/96), 680 So.2d 169, writ denied sub nom. Haspel & Davis Milling & Planting Co. v. Bd. of Levee Comm'rs of the Orleans Levee Dist. , 96-2430 (La. 12/6/96), 684 So.2d 932. Also, we have the discretion to convert an appeal of a nonappealable interlocutory judgment to an application for supervisory review. See Ordoyne v. Ordoyne , supra . Winnsboro Auto timely filed its motion for appeal (which specifically included the ruling on the exception of no cause of action)

within the delays allowed for applying for supervisory writs. Also, the exception of no cause of action is intertwined with the assignment of error pertaining to being required to go to trial. Consequently, in this case, we will address the matter.

In the original petition, the plaintiff made the following allegation:

Defendant SIMMIE BROOKS was an employee of Winnsboro Chrysler Dodge Jeep & Ram. He sold a 2015 GMC DENALI to the defendants, ERIC WEST and NATASHA WEST on JUNE 15, 2016, at which time he authorized installation of glass in the vehicle.

In the amended petition, the plaintiff added Winnsboro Auto as a defendant without adding any other allegations.

While the petition does not specifically mention authority or apparent authority, it is implicit that Winnsboro Auto's alleged liability arose from the actions of its employee, Brooks, who authorized the installation of the glass in the vehicle he sold to the Wests on behalf of Winnsboro Auto. Every reasonable interpretation must be accorded the language used in the petition in favor of maintaining its sufficiency and giving the plaintiff his day in court. Consequently, based upon our de novo review, we affirm the trial court's denial of the exception of no cause of action.

Although the trial court did not specifically address the exception of vagueness, we likewise find that the petition fairly informed the defendant of the nature of the cause of action. As pointed out by the plaintiff in its opposition to the exceptions, the invoice to Winnsboro Chrysler Dodge, which provided details of the service provided, was attached to the petition. The petition and its attachments, which included the invoice to Winnsboro Chrysler Dodge, provided Winnsboro Auto with "sufficient substantial particulars to enable the defendant to prepare its defense."

As to Winnsboro Auto's complaint that it was forced to proceed to trial on the same day its exceptions were denied, we find no merit to this argument. The exceptions were set for hearing on April 24, 2018, by order signed on February 23, 2018. In early March 2018, Winnsboro Auto was given notice that trial was also set for April 24, 2018. This gave it ample time to prepare for arguing the exceptions and, in the event that neither exception was sustained, defending itself at trial.

HEARSAY

Winnsboro Auto argues that the trial court erred in allowing Brooks to give, over its objection, hearsay testimony that Marceau authorized the windshield repair and charge.

Law

A ruling on the admissibility of evidence is a question of law and is not subject to the manifest error standard of review. A party may not complain on appeal about an evidentiary ruling in the trial court unless the trial judge was given the opportunity to avoid the perceived error, and the ruling affected a substantial right of the party. Trascher v. Territo , 11-2093 (La. 5/8/12), 89 So.3d 357.

Hearsay is "a statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted." La. C.E. art. 801(C). Hearsay is inadmissible "except as otherwise provided by this Code or other legislation." La. C.E. art. 802.

The failure to make a contemporaneous objection to the admission of evidence waives the right of a party to complain that the evidence was improperly admitted.

Hyland v. Am. Guarantee & Liab. Ins. Co. , 04-305 (La. App. 5 Cir. 9/28/04), 885 So.2d 30.

When hearsay evidence is not timely objected to, it becomes competent evidence and may be considered as any other admissible evidence. Turner v. Ostrowe , 2001-1935 (La. App. 1 Cir. 9/27/02), 828 So.2d 1212, writ denied , 02-2940 (La. 2/7/03), 836 So.2d 107.

Trial Testimony

During the direct examination of Brooks, the following exchanges occurred pertaining to Marceau authorizing the windshield repair:

Q. Okay. All right. So, you picked up the vehicle in Vicksburg and what did you do with it?
A. I proceeded to drive back to Winnsboro and, uh, as I was driving back a rock hit their windshield. I, uh, immediately called Ms. West on the phone and told her what happened, because, I told her that the dealership, uh, I had already talked to my manager at the dealership. He said no problem. He said to call Port City Glass and set it up and we'll pay for it.
Q. Okay. When you say you talked to your manager at the dealership, who are you talking about?
A. At that time, Wayne [Marceau] was the general manager.
...
Q. Okay. But in this situation, you're claiming that this Wayne had said no problem, we'll take care of it. And, then a follow-up with his own driver picking up, taking and bringing back the vehicle, you had not reason [sic] to believe they wouldn't be responsible for the payment?
A. Exactly.
...
Q. Okay. I believe the first statement [of Brooks' answer to the lawsuit] is: "The dealership was supposed to have paid for the windshield to replace [sic] because it was broken during transit." And, the, "But, since I left the, just left the company, they refused to pay Port City Glass." That's your statement?
A. That's my statement.
Q. And, you got that statement because - what is Wayne's last name?
A. Marceau.
Q. Marceau had told you to take care of it?
A. Yes.

Counsel for Winnsboro Auto made no objections to any of these statements. On cross-examination, the following colloquy took place:

Q. Okay. And, did you speak to Mr. Marceau that day?
A. I, sir, I can't, I mean, I got to speak to him. I was employed with him.
Q. About the windshield? Did you speak to him about getting the windshield repaired that day?
A. I called him the day of the break and told him what happened.
Q. So, the day of the break, you go to Mr. Marceau and got approval to get the windshield repaired?
A. Yes, I did.
...
Q. I didn't ask when you took it them [sic]. I'm asking when did you contact them about it? To arrange the repair?
A. I contacted Port City Glass after I got permission from my general manager to call.

After redirect examination, the trial judge asked Brooks a series of questions. Among other things, she asked him to recount the facts surrounding the breaking of the windshield.

MR. BROOKS: I was driving the Wests' vehicle back to Winnsboro to get the televisions and the headphones. So, a rock flew up and broke the windshield. So, me being who I am, I talk to the customers and told them, Hey, a rock broke your windshield. It was in transit. Don't worry about it. We'll take care of it. To keep them happy. So, then, I called the store. Told Wayne, I said: Wayne, hey, I was driving the Wests' vehicle back to get everything done. A rock broke the windshield. He said, no problem. He said, when you get here, call Port City Glass, get a price, set up a time whenever the Wests could get it there to get it done. So, I told him, I said, they won't be able to take it because they stay in Vicksburg. He said okay.
MR. BOOTHE [Winnsboro Auto's attorney]: Your Honor, this is, I apologize. I need to object here. This is getting far into the hearsay range of ...
COURT: Well, these are the Court's questions. So, you can ask whatever you'd like once I'm finished. Go ahead.
MR. BROOKS: And, he said set up a time for them to get it. I said, but they won't be able to. He said, fine. You set up a time where you could get it. We'll get a driver to keep them happy. And, that's what I did.

Discussion

The only time Winnsboro Auto objected to Brooks' testimony was during the trial court's questioning of him after he had been extensively questioned by the parties. By this point, the testimony pertaining to Marceau approving the repair of the windshield at the dealership's expense had already been admitted without objection several times, including during cross-examination. Consequently, we find no merit to this assignment of error.

OTHER DEFENDANTS

Two assignments of error concern Winnsboro Auto's codefendants. Specifically, one assignment argues that the trial court erred in not finding liability on the part of any of the codefendants, while the other maintains that the trial court erred in vacating the default judgment against Ms. West.

Law

The appellate court may not set aside a trial court's factual findings in the absence of manifest error or unless such findings are clearly wrong. Stobart v. State, through DOTD , 617 So.2d 880 (La. 1993) ; Smart v. Calhoun , 49,943 (La. App. 2 Cir. 7/29/15), 174 So.3d 168. To reverse the factual findings of the trial court, the appellate court must review the record in its entirety and find that there is no reasonable factual basis for the findings and that the record establishes that the trier of fact was clearly wrong or manifestly erroneous. Salvant v. State , 05-2126 (La. 7/6/06), 935 So.2d 646 ; Smart v. Calhoun , supra. The reviewing court does not ascertain whether the trier of fact was right or wrong, but whether its conclusion was reasonable in light of the evidence in the record. Stobart v. State, through DOTD , supra ; Mosley v. Griffin , 50,478 (La. App. 2 Cir. 2/24/16), 191 So.3d 16.

Although it may have made different factual findings and reached a different decision, the appellate court must not reweigh the evidence or substitute its own factual findings. Where the trial court's factual conclusions are based on credibility determinations of a witness, the manifest error standard demands great deference to the trier of fact. Although an appellate court may feel its own evaluations of credibility and reasonable inferences of fact are as reasonable as those of the trial court, the reviewing court should not disturb reasonable factual findings when there is conflict in the testimony. Mosley v. Griffin , supra .

Where two permissible views of the evidence exist, the fact finder's choice between them cannot be manifestly erroneous or clearly wrong. Stobart v. State, through DOTD , supra ; Moy v. Brookshire Grocery Co. , 48,177 (La. App. 2 Cir. 6/26/13), 117 So.3d 611.

Louisiana's three-tiered court system allocates the fact finding function to the trial courts. Because of that allocation of function (as well as the trial court's normal procedure of evaluating live witnesses), great deference is accorded to the trial court's factual findings, both express and implicit, and reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on appellate review of the trial court's judgment. Virgil v. American Guarantee & Liab. Ins. Co. , 507 So.2d 825 (La. 1987) ; Moy v. Brookshire Grocery Co. , supra .

Discussion

The trial court heard the testimony and observed the witnesses. It made strong credibility calls in favor of Brooks and against Roberts, Winnsboro Auto's controller. Based upon its evaluation of the evidence, the trial court concluded that Brooks was telling the truth about Marceau authorizing the repair of the windshield at the dealership's cost. It further determined that, while Winnsboro Auto might have had a purchase order authorization system on paper and in theory, it was not actually followed in the company's daily reality. This conclusion was supported by not only the testimony of Brooks, but also that of Criswell, the plaintiff's employee who had dealt with Winnsboro Auto on several occasions and had never before had difficulty being paid. Based upon these factors, we find no manifest error in the trial court's ruling that Winnsboro Auto was solely responsible for the debt at issue here.

As to Ms. West, after reviewing the evidence in its entirety, the plaintiff admitted its error in seeking payment from her. The trial court, based upon its consideration of the evidence and in light of its credibility determinations, agreed that Winnsboro Auto was solely responsible for incurring the debt. Accordingly, we find the trial court did not err in vacating the judgment against Ms. West.

CONCLUSION

The trial court judgment is affirmed. Costs of this appeal are assessed against the appellant, Winnsboro Auto Ventures, LLC, D/B/A Winnsboro Chrysler Dodge Jeep.

AFFIRMED.


source: Caselaw Access Project

author: McCALLUM, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Breonne WHITAKER, Appellant
    No. 52,533-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered February 27, 2019
    LOUISIANA APPELLATE PROJECT, By: Peggy J. Sullivan, Counsel for Appellant
    BREONNE WHITAKER, Pro Se
    JANES E. STEWART, SR., District Attorney, Counsel for Appellee
    TOMMY JAN JOHNSON, WILLIAM JACOB EDWARDS, Assistant District Attorneys
    Before PITMAN, STONE, and McCALLUM, JJ.
   McCALLUM, J.

Breonne Whitaker was convicted of second degree murder for the shooting death of Frederick Henderson. Whitaker, who was 17 years old at the time of the murder, was sentenced to life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. He now appeals that sentence. Because of the mandates of the respective Supreme Courts of the United States and Louisiana and those of the legislature of Louisiana ( La. C. Cr. P. art. 878.1 ), we are required to allow the trial judge an opportunity to conduct a hearing to articulate her reasons for sentencing.

FACTS

In the early morning hours of September 11, 2013, Shreveport Police Department officers responded to what they thought was a single-vehicle accident involving a GMC Envoy which had struck a utility pole on Hollywood Avenue in Shreveport. Frederick Henderson, the unrestrained driver, was the lone occupant of the vehicle. Although Henderson was sitting in the driver's seat, his upper body was slumped over into the front passenger area. Henderson, whose basketball shorts were pulled down to his mid-thigh, was not breathing and had no pulse. After paramedics began working on Henderson, they discovered that he had suffered a single gunshot wound.

When detectives spoke with Henderson's family, they learned that Henderson was gay and that some time ago he had been involved in an altercation with a male on Kent Avenue during which his earring was torn from his ear. Kent, which intersects with Hollywood, was about a block away from where the Envoy hit the utility pole. The detectives later determined that Henderson had been shot near a business at the intersection of Hollywood and Kent.

A gray purse containing two cell phones was found in the vehicle. Detectives were able to obtain access to the contents of the phones. They noticed several missed calls and that a call from 318-779-1507 came in shortly before the accident was reported. Detectives also noticed that one of the last Facebook messages received by Henderson was from Whitaker. This message, which left the 318-779-1507 number, stated that Whitaker had been trying to call Henderson, but the calls were going straight to voice mail.

Detectives then went to Whitaker's home on Kent Street where they found Whitaker asleep on a couch. Before the detectives had a chance to explain their presence, Whitaker asked if the police were there about that "punk." Whitaker first told the detectives that his friend Isiah Childs had shot a "punk." After the detectives let Whitaker know that they were aware of the prior altercation with Henderson, he admitted to them that he knew the victim. He also told them that the first time that he encountered Henderson was when he caught him engaging in oral sex with Childs in his backyard. Henderson's earring was snatched during the ensuing scuffle. Whitaker told the detectives that he fired a gun at Henderson because Henderson had been following him and trying to get him into his car, and that he was scared because he had been raped when he was younger.

Whitaker led the detectives to a gun hidden beneath a blanket in a shed behind a nearby residence. The recovered gun was a Stallard Arms JS 9mm pistol. Whitaker also showed the police where a magazine was located in a garbage can. The magazine contained four 9mm cartridges.

Whitaker eventually told the detectives that Henderson was going to take him to visit a girl that Henderson knew, but those plans were abandoned because the girl's boyfriend was home. Henderson then drove Whitaker to an area near Mall St. Vincent in Shreveport, where Whitaker allowed Henderson to perform oral sex on him in the vehicle in exchange for $ 50. Whitaker also agreed to engage in sexual intercourse with Henderson, but was unable to complete the act. Whitaker claimed that when they returned to Kent, Henderson grabbed his shirt as he exited the vehicle. Whitaker then fired one shot at Henderson and ran away. He added that he returned when he heard the Envoy crash into the utility pole before running away again toward his home.

Whitaker was arrested and subsequently indicted for second degree murder. A jury trial before Judge Ramona Emanuel began in December of 2015. The jury heard testimony from Shreveport Police Department patrol officers, homicide detectives, crime scene investigators, and a DNA analyst regarding their investigation of the murder.

Dr. James Traylor, a forensic pathologist at LSUHSC-Shreveport, testified that the cause of Henderson's death was blood loss from the gunshot. The bullet entered Henderson's upper right arm and then continued into his chest. The bullet traveled left to right, top to bottom, and slightly from front to back. Dr. Traylor did not find any evidence of blunt force trauma, and any injuries he observed were from the gunshot. A single 9mm bullet was recovered from Henderson.

Christopher Davis, a forensic scientist at the North Louisiana Crime Lab, testified that a bullet test-fired from the recovered gun had the same class characteristics as the bullet recovered from Henderson. He could not conclude that the recovered bullet was fired from that specific gun because it did not make sufficient individual markings on a fired bullet in order for him to do further comparison. Nonetheless, he could not exclude the gun as having fired the bullet that was found.

As noted earlier, Whitaker originally told detectives that his friend Isiah Childs had shot Henderson. Childs happened to be in a youth challenge program in Minden at the time of the shooting. Childs testified about what happened on the date that Whitaker tore the earring out of Henderson's ear. Childs explained that he was at Whitaker's house when they took several photos of Whitaker and texted them to various numbers using Childs's phone. A "Frederica" replied, and Whitaker told Childs that "Frederica" was coming to the house to meet him. When "Frederica" arrived, Childs thought that "Frederica" was, in fact, a man. Childs left momentarily. Upon returning, he saw "Frederica" run next door while screaming for help. Childs thought the incident was humorous because Whitaker had been "played." Childs denied ever having sex with another male at Whitaker's home.

Crystal Feaster, who has a child with Whitaker, testified that she knew Henderson from a party they had attended and that he often dressed as a woman. She recalled one occasion when Henderson drove past as she and Whitaker were walking down her street. Whitaker asked her if she knew Henderson, and then he said that he will "get some money from the faggot." This happened about a month before Henderson was killed.

Pamela Horton testified that Henderson was her only son. He was 23 years old when he was murdered. Horton stated that Henderson helped care for a sister who has cerebral palsy as well as for an elderly great-aunt.

On December 10, 2015, Whitaker was convicted of second degree murder. The verdict was unanimous. On December 30, Judge Emanuel, without additional comment, sentenced him to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.

Post-trial proceedings

On December 18, 2015, Whitaker filed a motion for post-verdict judgment of acquittal.

On January 25, 2016, Whitaker filed a motion to reconsider and vacate what he alleged was an unconstitutionally excessive sentence. On April 29, 2016, Whitaker filed a motion to correct his allegedly illegal sentence under Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012).

On July 25, 2016, Whitaker filed a pro-se motion for new trial. The trial court denied this motion on September 14, 2016.

On September 21, 2016, Whitaker filed a motion for appeal. Sufficiency of the evidence was not raised as an assignment of error. This Court recognized that the district court failed to rule on Whitaker's motion for a post-verdict judgment of acquittal prior to sentencing him. Accordingly, this Court vacated Whitaker's sentence, dismissed his appeal, and remanded this matter to the trial court. State v. Whitaker , 51,632 (La. App. 2 Cir. 5/25/17), 225 So.3d 524.

On August 16, 2017, Whitaker filed: (1) a motion for production of favorable evidence relating to punishment; (2) a motion to require the State to provide presentencing notice of intent to seek a sentence of life without parole and to provide notice of the aggravating factors it intended to rely on in support of this sentence; and (3) a motion to preclude the prosecution from seeking a sentence of life without parole because, as a matter of law, second degree murder is not the worst offense. An unstamped motion for a reliable sentencing hearing as required by law was also filed by Whitaker.

On October 27, 2017, the State filed notice of its intent to seek a life sentence without the possibility of parole under La. C. Cr. P. art. 878.1(B).

On December 18, 2017, Whitaker's attorney filed a motion to appoint a sanity commission. Dr. Todd Lobrano concluded that Whitaker was competent to proceed to trial and, at the time of the offense, was able to distinguish between the right and wrong of his alleged behavior. Doctors Erika Parker and Marc Colon together concluded that Whitaker has a rational and factual understanding of the nature of the proceedings against him. They also opined that he could appropriately assist his attorney in his defense, and an additional exam and report would be necessary if a further opinion on Whitaker's sanity at the time of the offense was requested by the court.

On April 3, 2018, Judge Emanuel found Whitaker competent to proceed to sentencing. A resentencing hearing was held before Judge Emanuel on April 23, 2018. The State called Detective Rod Demery as its first witness. Demery recounted how he first met Whitaker in 2010 when Whitaker was charged with manslaughter after he struck a 50-year-old man, which caused the man to fall back and strike his head on the pavement. The man later died from his injuries. Demery also testified regarding his investigation of Whitaker in connection with Henderson's murder, and that Whitaker did not express remorse during his interview. Demery also recalled that Whitaker referred to Henderson as a "punk" during questioning. Demery commented that "punk" is a derogatory street term for a homosexual male.

The State next called Henderson's mother, Pamela Horton. Henderson, who lived with his mother, was 23 years old when he was killed. Horton testified how Henderson, her only son, had helped her by caring for his handicapped sister as well as for an elderly great-aunt. Henderson did not work, but received an allowance for helping to provide this care. Following Henderson's murder, the daughter was placed in adult day care and the aunt went into a nursing home. Horton testified that family gatherings are no longer the same, and that her other daughters no longer want to come over to her home as often as they once did. She urged the court not to let the system fail anyone else like it did for her. She also added that she has had to endure testimony referring to her son as a "punk."

The State introduced Whitaker's jail records from the Louisiana State Penitentiary at Angola and Caddo Correctional Center dating back to his arrest for the current crime. The records are replete with disciplinary actions for fighting, refusing to comply with orders, and violating rules. There were also numerous instances when an inmate requested to be separated from Whitaker and other inmates.

The State also introduced Whitaker's juvenile record. Whitaker was born on January 26, 1996. He was adjudicated delinquent in 2009 for two separate crimes. In 2010, he was adjudicated on the manslaughter charge.

Whitaker was the only witness called by the defense. He testified that he attended school only through the ninth grade because he was incarcerated. He studied for his GED while serving time for the manslaughter conviction, but was released before he could be tested. Whitaker recounted how he went to the Gingerbread House for counseling after he was molested by two boys in their late teens when he was 8 years old.

Regarding his manslaughter conviction, Whitaker explained that he was walking with his pregnant girlfriend when the victim bumped him and challenged him to a fight. He claimed that after the man punched him in the face, he hit the man, which caused the man to fall and hit his head on the ground. Whitaker left the scene because he thought the man was only unconscious. Whitaker served two to three years for the manslaughter conviction before obtaining early release for good behavior. He was free for less than a year before he killed Henderson.

Whitaker also testified about what happened when he first met Henderson and what had occurred leading up to the murder. He asserted that the "accident" occurred when Henderson grabbed his shirt while he was getting out of the vehicle, and that he was trying to scare Henderson, not shoot him. Whitaker admitted that Henderson never threatened him. Whitaker thought what he did to Henderson was wrong and apologized to his family.

The State argued at the April 23 hearing that: (1) Whitaker's disciplinary record in jail was extensive and included numerous fights; (2) if Whitaker had committed his earlier offenses when 17 or older, the murder of Henderson would have made him a fourth felony offender; (3) Whitaker equivocated about the facts surrounding the murder; (4) Whitaker showed no redeemable qualities; (5) Whitaker consistently engaged in criminal activity and was out of juvenile custody for only six months following the manslaughter when he killed Henderson; and (6) Whitaker's history was egregious, he killed two people, and this was one of the rare circumstances when a 17-year-old should spend the rest of his life in jail. Defense counsel countered that: (1) they knew little about Whitaker's adult life and how he may change; (2) they asked for the opportunity for some future parole board to review his sentence; and (3) it would be a tragedy to close off the possibility of parole to a person who was so young.

Following the sentencing hearing, Judge Emanuel took the matter under advisement and scheduled resentencing for May 7. At the May 7 hearing, the attorneys agreed that the motion for a post-verdict judgment of acquittal had been denied. Judge Emanuel noted that she had heard the argument and testimony and had reviewed the sanity commission reports and all applicable law. She also referred to a PSI report, but immediately realized that one had not been ordered. Judge Emanuel again sentenced Whitaker to life at hard labor without benefit of probation, parole, or suspension of sentence.

On May 22, 2018, Whitaker filed a motion to reconsider and vacate what he considered to be an unconstitutionally excessive sentence. On June 22, 2018, Whitaker filed a motion for appeal.

Whitaker's appellate counsel asserts that the trial court: (1) erred in failing to consider the motion to reconsider sentence and vacate the unconstitutionally excessive sentence; (2) erred in sentencing Whitaker to life imprisonment without benefit of parole, probation, or suspension of sentence; (3) failed to comply with the provisions of La. C. Cr. P. art. 878.1 ; and (4) erred in not sentencing the defendant to the appropriate sentence for manslaughter considering the sentencing scheme in effect at the time of the commission of the offense was unconstitutional.

Whitaker filed pro se assignments of errors asserting that: (1) his life sentence without parole violates his constitutional rights to due process and equal protection as a juvenile; and (2) a conflict between him and his court-appointed counsel while preparing for the resentencing hearing resulted in ineffective assistance of counsel.

DISCUSSION

We note from the outset that the trial court did not rule on Whitaker's motion to reconsider sentence filed after resentencing. However, the absence of a ruling on a motion to reconsider sentence does not affect this Court's ability to consider the constitutional excessiveness of a defendant's sentence on appeal. State v. Egan , 44,879 (La. App. 2 Cir. 12/9/09), 26 So.3d 938 ; La. C. Cr. P. arts. 881.1 and 916.

The offense of second degree murder is punishable by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. La. R.S. 14:30.1. However, in Miller v. Alabama , supra , the United States Supreme Court held that the Eighth Amendment forbids mandatory life sentences without parole for juvenile offenders who commit homicides. Miller was premised upon Roper v. Simmons , 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), and Graham v. Florida , 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). In Roper , the Supreme Court held that the Eight Amendment barred the death penalty for juveniles. In Graham , the Supreme Court held that the Eight Amendment prohibited a sentence of life without the possibility of parole for a juvenile convicted of a non-homicide offense. In doing so, the Graham court likened a juvenile's life without parole sentence to the death penalty.

The Miller court acknowledged that " Roper and Graham establish[ed] that children are constitutionally different from adults for purposes of sentencing." Notably, "juveniles have diminished culpability and greater prospects for reform." Id ., 567 U.S. at 471, 132 S.Ct. at 2464.

The Miller court stated, with citations omitted:

We therefore hold that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders. By making youth (and all that accompanies it) irrelevant to imposition of that harshest prison sentence, such a scheme poses too great a risk of disproportionate punishment.... [G]iven all we have said in Roper , Graham , and this decision about children's diminished culpability and heightened capacity for change, we think appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon. That is especially so because of the great difficulty we noted in Roper and Graham of distinguishing at this early age between "the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption." Although we do not foreclose a sentencer's ability to make that judgment in homicide cases, we require it to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.

Id ., 567 U.S. at 479-80, 132 S.Ct. at 2469.

Finally, the Miller court concluded by stating that " Graham , Roper , and our individualized sentencing decisions make clear that a judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles." Id ., 567 U.S. at 489, 132 S.Ct. at 2475.

The legislature of this state has also acted in this area of law. La. C. Cr. P. art. 878.1, which became effective on August 1, 2013, implemented the holding in Miller . This article states, in part:

B. (1) If an offender was indicted prior to August 1, 2017, for the crime of first degree murder ( R.S. 14:30 ) or second degree murder ( R.S. 14:30.1 ) where the offender was under the age of eighteen years at the time of the commission of the offense and a hearing was not held pursuant to this Article prior to August 1, 2017, to determine whether the offender's sentence should be imposed with or without parole eligibility, the district attorney may file a notice of intent to seek a sentence of life imprisonment without the possibility of parole within ninety days of August 1, 2017. If the district attorney timely files the notice of intent, a hearing shall be conducted to determine whether the sentence shall be imposed with or without parole eligibility.....
.....
C. At the hearing, the prosecution and defense shall be allowed to introduce any aggravating and mitigating evidence that is relevant to the charged offense or the character of the offender, including but not limited to the facts and circumstances of the crime, the criminal history of the offender, the offender's level of family support, social history, and such other factors as the court may deem relevant. The admissibility of expert witness testimony in these matters shall be governed by Chapter 7 of the Code of Evidence.
D. The sole purpose of the hearing is to determine whether the sentence shall be imposed with or without parole eligibility. The court shall state for the record the considerations taken into account and the factual basis for its determination. Sentences imposed without parole eligibility and determinations that an offender is not entitled to parole eligibility should normally be reserved for the worst offenders and the worst cases.

In State v. Fletcher , 49,303 (La. App. 2 Cir. 10/1/14), 149 So.3d 934, writ denied , 2014-2205 (La. 6/5/15), 171 So.3d 945, this Court dealt with an Article 878.1 resentencing hearing where the defendant was again sentenced to life without parole sentences. Addressing art. 878.1, this Court stated:

The Supreme Court plainly recognized that the circumstances of some murders and the characters of some juvenile killers would warrant the imposition of the "harshest possible penalty," and it gave the sentencer latitude to respond appropriately to those situations.
The Louisiana legislature promptly addressed the Miller directive against mandatory life-without-parole sentences for juvenile killers by devising a sentencing procedure which would require that a trial court sentencing a youthful offender review all pertinent factors before determining whether parole eligibility was warranted. By its very application to only murderers under the age of 18, the provisions of La. C. Cr. P. art. 878.1 mandating a sentencing hearing at which the defense will be given an opportunity to present mitigating factors - which obviously include the defendant's age as an important part of his social history - satisfy Miller 's requirement that mitigating factors favoring a juvenile killer be heard in a proceeding held for that purpose. Furthermore, we find that Miller does not require deferral to the distant future of the determination of whether to allow parole eligibility.

State v. Fletcher , 49,303 at pp. 11-12, 149 So.3d at 942.

Fletcher was 15 years and 8 months old when he shot both of his parents in their faces with a shotgun, killing them instantly. Fletcher's 19 -year-old-sister witnessed the murder of their mother. Fletcher threatened to kill her as well and forced her to remain in her bedroom for the remainder of the night. She was able to escape when Fletcher went to school the next day.

Applying La. C. Cr. P. art. 878.1 and offering a survey of cases post-enactment of the article, this Court affirmed Fletcher's life without parole sentences. Significantly, this Court noted that the sentencing judge in Fletcher was the same judge who presided over the trial and was "intimately familiar" with the case. At the Miller hearing, the court heard testimony that Fletcher had a history of torturing animals, criminal activity, and violence, and he still expressed a desire to kill his sister. The court also heard testimony from a psychiatrist who opined that there was an increased risk of future violent behavior and that Fletcher suffered from antisocial personality disorder or psychopathy. Further, the sentencing judge provided thorough and well-considered reasons for sentencing, outlining the jurisprudence and factors considered. This Court ultimately concluded that the sentencing court precisely fulfilled this Court's directive to conduct a Miller hearing, to make a more specific and thorough review of the relevant factors, and to state its reasons for sentencing on the record.

In State v. Smoot , 13-453 (La. App. 5 Cir. 1/15/14), 134 So.3d 1, writ denied , 2014-0297 (La. 9/12/14), 147 So.3d 704, the Fifth Circuit found the trial court had complied with the Miller principles at a sentencing hearing which occurred before the enactment of art. 878.1. During the sentencing hearing, the district court stated that, in accordance with Miller , it considered the defendant's youth and previous criminal activity. The district court also took into account that the elderly victim, who was homeless as well an HIV-positive crack addict, was shot multiple times in the front and back by the juvenile defendant. It was also noted that the defendant was involved in the drug trade, had a prior conviction for possession with intent to distribute cocaine, and shot the victim over a stereo. The district court sentenced defendant to life imprisonment without benefit of parole, probation, or suspension of sentence.

In State v. Brooks , 47,394 (La. App. 2 Cir. 12/12/12), 108 So.3d 161 (" Brooks I "), writ denied , 2013-0080 (La. 5/31/13), 118 So.3d 393, this Court affirmed the second degree murder conviction of a juvenile defendant who participated in a "senseless gunfight" which resulted in the death of an innocent bystander. However, we vacated the mandatory sentence of life imprisonment at hard labor without benefits, and we remanded the case to the trial court for resentencing in light of Miller . Following a sentencing hearing conducted pursuant to art. 878.1, the trial court again imposed a sentence of life imprisonment without parole and the defendant again appealed his sentence. In State v. Brooks , 49,033 (La. App. 2 Cir. 5/7/14), 139 So.3d 571 (" Brooks II "), writ denied , 2014-1194 (La. 2/13/15), 159 So.3d 459, this Court affirmed the sentence, finding that the trial court had "dutifully" complied with our instructions in the prior opinion and that the sentence imposed was not constitutionally excessive. Notably, the judge who resentenced Brooks was not the same judge who imposed the original life sentence. However, this Court noted that the resentencing judge expressly adopted the reasons of the initial judge and expressed further reasons in support of his denial of parole.

Whitaker challenges the sentence imposed and Judge Emanuel's compliance with La. C. Cr. P. art. 878.1. He notes that Miller and art. 878.1 require that a sentence of life without parole eligibility for a juvenile offender is to be reserved for the "worst offenders and the worst cases." He maintains that Judge Emanuel expressed no reasons for sentencing when imposing either sentence, and he argues that a sentencing judge should not be able to rest on a blanket statement of what information was reviewed prior to the imposition of sentence. Whitaker further maintains that he is not among the worst offenders and this is not among the worst cases. He exhibited no manifest cruelty, no attempt to commit another crime, or intent to kill either of his victims. No charges resulted from the altercation in Whitaker's backyard, and Whitaker testified that he had no problem with Henderson's sexual orientation.

The State counters that the resentencing hearing satisfied the requirements of Miller and art. 878.1. Testimony was taken, and Whitaker's juvenile and prison records were introduced. Whitaker also had the opportunity to present evidence of any mitigating factors. The State further argues that the court took all of the evidence under advisement and that it considered all relevant motions, procedural matters, argument, testimony and applicable law prior to sentencing. Finally, the State argues that the record supports the imposition of life without parole in this case. Whitaker's extensive juvenile record indicates that he has been arrested numerous times and his education was interrupted by detention on the manslaughter charge. In addition, Whitaker's violent behavior has resulted in the unnecessary deaths of two people before his 18th birthday.

At Whitaker's resentencing, both parties were afforded the opportunity to present evidence of aggravating and mitigating factors. While there was no PSI ordered, the sanity commission reports contained family, social and educational background information. Whitaker's juvenile and prison records were introduced. Whitaker also testified on his own behalf. Finally, Judge Emanuel also presided over Whitaker's jury trial. Thus, the sentencing judge was presented with adequate evidence upon which to base a thorough and considered sentencing decision regarding parole eligibility.

Miller does not require a sentencing court to articulate all mitigating factors on the record. State v. Wilson , 14-1267 (La. App. 4 Cir. 4/29/15), 165 So.3d 1150, writ denied , 2015-1100 (La. 4/15/16), 191 So.3d 1035. Rather, Miller simply "mandates a hearing at which youth-related mitigating factors can be presented to the sentencer and considered in making a determination of whether the life sentence imposed upon a juvenile killer should be with or without parole eligibility." Fletcher , 49,303 at p. 15, 149 So.3d at 943.

Nevertheless, the record does not make clear that Judge Emanuel articulated which aggravating and mitigating factors she considered when resentencing Whitaker to life imprisonment at hard labor without parole. We are therefore unable to divine any reasons or what considerations she took into account. Notably, Judge Emanuel did not express a finding that Whitaker is one of the worst offenders and that this is one of the worst offenses.

The record reflects only the following judicial soliloquy:

Duly noted. This matter comes before this Court today for resentencing after remand from the Second Circuit Court of Appeal. Thus, this judge has reviewed all relevant motions and other procedural matters herein.
Further, this judge has heard the argument of all counsel as well as all testimony made part of the record via the sentencing hearing.
This Court has also reviewed all applicable or applicable law herein and has reviewed the PSI report.
[ADA]: I'm sorry, Your Honor?
PSI. I think that's from a different case.
[ADA]: Yeah, that - -
Okay. Excuse me.
We had a sanity motion and sanity commission. I reviewed those reports.
[ADA]: Yes, Your Honor.
Let me clarify that for the record. I don't want to refer to the wrong thing and not the PSI reports. But those issues came up in connection with these matters.
In considering all of the aforementioned, this judge so sentences Mr. Breonne Whitaker to serve a sentence of life imprisonment at hard labor without benefit of probation, parole or suspension of sentence.
No fine, no court costs are assessed.
Further, this Court recommends the defendant to and for any and all special programs to which he may be eligible during his period of incarceration such as employment, education, vocational, or special programs; as well as life skills, any dispute resolution types of special programs, work skills, substance abuse treatment special programs, or any other special programs.

In contrast, the sentencing court in Fletcher , supra , "painstakingly articulated well-considered reasons" before again sentencing that defendant to life imprisonment at hard labor without benefits. None of that occurred in this matter. Furthermore, in Brooks II , supra , the sentencing court "dutifully" did exactly what this Court had requested in its earlier opinion that vacated the life without parole sentence and remanded for resentencing in light of Miller .

CONCLUSION

For the foregoing reasons, we vacate Whitaker's sentence of life imprisonment without parole eligibility and remand to the trial court to conduct a hearing to articulate its reasons for denial of parole eligibility in accordance with Miller v. Alabama and La. C. Cr. P. art. 878.1.

The sentence is VACATED and the matter is REMANDED.


author: CHEHARDY, C.J.

text:
    BERNHARD MCC, LLC v. Kurt M. ZERINGUE, Robert G. Mayfield, Sr.; Robert G. Mayfield, Jr.; Cecil Passman; James Brian Carlisle; and Nicholas Zazulak
    NO. 18-CA-553
    Court of Appeal of Louisiana, Fifth Circuit.
    February 27, 2019
    COUNSEL FOR PLAINTIFF/APPELLEE, BERNHARD MCC, LLC, Mark R. Beebe, Timothy M. Brinks, William D. Shea, Kellen J. Mathews
    COUNSEL FOR DEFENDANT/APPELLANT, KURT ZERINGUE, ROBERT MAYFIELD, SR., ROBERT MAYFIELD, JR., CECIL PASSMAN, JAMES BRIAN CARLISLE, AND NICHOLAS ZAZULAK, Robert E. Couhig, Jr., Jason A. Cavignac, Jack M. Capella
    Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Hans J. Liljeberg
   CHEHARDY, C.J.

This is a suit brought by an employer against several of its former employees alleging violations of the Louisiana Uniform Trade Secrets Act ("LUTSA") and the Louisiana Unfair Trade Practices Act ("LUTPA"). Defendants, the former employees, appeal from a preliminary injunction granted in favor of plaintiff, their former employer. For the reasons that follow, we vacate the trial court's judgment granting the preliminary injunction and remand the matter for further proceedings.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On August 9, 2017, Bernhard MCC, LLC ("Bernhard") filed a petition for preliminary and permanent injunctions against six of its former employees: Kurt Zeringue, Robert Mayfield, Sr., Robert Mayfield, Jr., Cecil Passman, James Carlisle, and Nicholas Zazulak (collectively "Defendants"). Bernhard alleged that Defendants were long-time employees of MCC entities, whose membership interests and assets were acquired by Bernhard in October 2015. Bernhard asserted that as a part of the acquisition, all of MCC's employees, including Defendants, became employees of Bernhard and continued in their same duties. Bernhard contended that as employees, each of the Defendants had access to confidential materials of the company, including employee wage rates, pricing structure information, bid information, estimates, proposals and other information pertaining to its business operations.

In May 2017, Defendants resigned their employment with Bernhard and began working with Regional Mechanical Services, LLC ("RMS"), a competitor of Bernhard. According to Bernhard, prior to their departure, Defendants participated in an elaborate scheme to "clandestinely and unlawfully obtain confidential and proprietary information of Bernhard," while still working for Bernhard, solely for the purposes of utilizing that information to compete directly against Bernhard and to benefit RMS, their new employer. Bernhard alleged Defendants failed to return this "unlawfully obtain[ed] confidential and proprietary information" upon their termination and have used the misappropriated information to solicit and bid commercial construction projects on behalf of RMS in direct competition with Bernhard. It asserted Defendants' use of the confidential and proprietary information violates both the LUTPA, in that Defendants' use of the information is an unfair method of competition and constitutes unfair or deceptive acts, and the LUTSA, in that the information and misappropriated data used by Defendants constitutes a trade secret.

Bernhard alleged Defendants' use of the confidential and proprietary business information has resulted in lost revenues, loss of customers, loss of business goodwill, loss of business opportunities, loss of skilled labor, and loss of market share. Bernhard averred that no remedy at law would compensate it for lost customers, employees, and business goodwill. As such, Bernhard sought preliminary and permanent injunctions against Defendants to prohibit their continued use of its confidential business information.

Defendants opposed the petition for injunctive relief, arguing the damages alleged by Bernhard were monetarily compensable and, thus, Bernhard would not suffer irreparable injury. Defendants also maintained that the information and documentation Bernhard sought to enjoin was not unique to Bernhard as the information was readily available from other third-party sources and, thus, did not constitute trade secrets.

A hearing on the preliminary injunction was held on August 23, 2017. During the hearing, Bernhard presented the testimony of its president, Philip Catanzaro, and submitted various exhibits, including confidentiality agreements, the Bernhard Employee Handbook, and various emails. In their defense, Defendants presented the testimony of one defendant, Kurt Zeringue. At the conclusion of the hearing, the trial court took the matter under advisement and subsequently entered judgment on August 31, 2017, without reasons, in favor of Bernhard. Thereafter, the trial court amended its original judgment-once on September 18, 2017, and again on September 27, 2017-also ruling in favor of Bernhard. On May 30, 2018, this Court vacated all three judgments and remanded the matter for further proceedings. See Bernhard v. Zeringue , 18-30 (La. App. 5 Cir. 5/30/18), 250 So.3d 342.

On remand, without a hearing and without assigning reasons, the trial court issued judgment on July 13, 2018, in favor of Bernhard. Specifically, the judgment granted Bernhard's petition for preliminary injunction, prohibited Defendants from seeking, requesting, soliciting from any person, or utilizing for any purpose, any confidential and/or proprietary business information of Bernhard. The judgment further ordered Defendants to return all of Bernhard's confidential and proprietary business information and any other material constituting a trade secret and to comply with their respective obligations to Bernhard regarding the confidentiality and non-disclosure of confidential and proprietary business information. It is from this judgment that Defendants have timely filed the instant appeal.

ISSUES PRESENTED FOR REVIEW

Defendants argue the judgment granting injunctive relief fails to describe the prohibited acts with reasonable detail and, thus, is fatally defective. Defendants further assert injunctive relief was not warranted because Bernhard failed to prove it will suffer irreparable harm in the absence of an injunction and that it is likely to succeed on the merits. Lastly, Defendants contend that when an injunction is issued without requiring the posting of security in accordance with La. C.C.P. art. 3610, vacating the judgment is the proper remedy.

LAW & ANALYSIS

A preliminary injunction is essentially an interlocutory procedural device designed to preserve the status quo between the parties pending a trial on the merits. Novelaire Techs., L.L.C. v. Harrison , 08-157 (La. App. 5 Cir. 8/19/08), 994 So.2d 57, 60. Although the judgment on a preliminary injunction is interlocutory, a party aggrieved by a judgment either granting or denying a preliminary injunction is entitled to an appeal. La. C.C.P. art. 3612.

Generally, a party seeking the issuance of a preliminary injunction must show that he will suffer irreparable injury if the injunction does not issue and must make a prima facie showing that he will prevail on the merits of the case. La. C.C.P. art. 3601. The threat of irreparable injury need not be shown when the deprivation of a constitutional right is at issue or when the act sought to be enjoined is unlawful. Ryan Gootee Gen. Contractors, LLC v. Plaquemines Par. Sch. Bd. & One Const., Inc. , 15-325 (La. App. 5 Cir. 11/19/15), 180 So.3d 588, 598. Irreparable injury means the petitioner cannot be adequately compensated in money damages or suffers injuries which cannot be measured by pecuniary standards. Yur-Mar, LLC v. Jefferson Par. Council , 11-669 (La. App. 5 Cir. 3/13/12), 90 So.3d 1137, 1140.

The primary purpose of injunctive relief is to prevent the occurrence of future acts that may result in irreparable injury, loss, or damage to the applicant. Ryan Gootee, 180 So.3d at 598. The trial court has great discretion in determining whether a preliminary injunction is warranted; thus, the trial court's ruling will not be disturbed on appeal absent a clear abuse of discretion. Id. at 597.

Regarding the merits of the July 13, 2018 judgment presently before us, we find that the judgment is invalid as an injunction because it fails to describe with specificity the prohibited conduct. La. C.C.P. art. 3605 states that a preliminary injunction "shall describe in reasonable detail, and not by mere reference to the petition or other documents, the act or acts sought to be restrained." Therefore, a judgment purporting to grant a preliminary injunction without describing the prohibited conduct with specificity is null and void. Bernhard MMC, LLC , 250 So.3d at 348 ; Phillips' Bar & Rest., Inc. v. City of New Orleans , 12-1396 (La. App. 4 Cir. 4/24/13), 116 So.3d 92, 108, writs denied , 13-1410 (La. 10/11/13), 123 So.3d 1226, and 13-1417 (La. 10/11/13), 123 So.3d 1227 ; Ormond Country Club v. Dorvin Developments, Inc. , 498 So.2d 144, 148 (La. App. 5 Cir. 1986), writ denied , 500 So.2d 423 (La. 1987). Here, the judgment at issue provides, in pertinent part:

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the Verified Petition for Preliminary Injunction, filed by the plaintiff, Bernhard MCC, LLC, and against the defendants, Kurt M. Zeringue, Robert G. Mayfield, Sr., Robert G. Mayfield, Jr., Cecil Passman, James Brian Carlisle, and Nicholas Zazulak, be and is hereby, GRANTED .
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the defendants, Kurt M. Zeringue, Robert G. Mayfield, Sr., Robert G. Mayfield, Jr., Cecil Passman, James Brian Carlisle, and Nicholas Zazulak, are PROHIBITED from seeking, requesting or soliciting any confidential and/or proprietary business information of Bernhard MMC, LLC from any person, whether currently or previously employed by Bernhard MCC, LLC.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the defendants, Kurt M. Zeringue, Robert G. Mayfield, Sr., Robert G. Mayfield, Jr., Cecil Passman, James Brian Carlisle, and Nicholas Zazulak, are PROHIBITED from utilizing any confidential and proprietary business information of Bernhard MMC, LLC for any purpose.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the defendants, Kurt M. Zeringue, Robert G. Mayfield, Sr., Robert G. Mayfield, Jr., Cecil Passman, James Brian Carlisle, and Nicholas Zazulak, are ORDERED to return any and all confidential and proprietary business information of Bernhard MCC, LLC to the company, as set forth in the Handbook, the Confidentiality Agreements, or any similar material meeting the definition of a "trade secret" as set forth in La. R.S. 51:1431(4).
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the defendants, Kurt M. Zeringue, Robert G. Mayfield, Sr., Robert G. Mayfield, Jr., Cecil Passman, James Brian Carlisle, and Nicholas Zazulak, are ORDERED to strictly comply with their respective obligations to Bernhard MCC, LLC regarding the confidentiality and non-disclosure of confidential and proprietary business information.

In footnote 5 of our previous opinion, Bernhard MMC, LLC , 250 So.3d at 349, we wrote the following:

We would be remiss if we did not point out that the second amended judgment dated September 27, 2017, which we have determined is an absolute nullity, also appears to lack the specificity of the acts to be enjoined as required by La. C.C.P. art. 3605. Specifically, without reference to the petition and/or documents submitted at the hearing, it is unknown what constitutes confidential and proprietary business from which Defendants are prohibited from using or soliciting or what obligations Defendants owe Bernhard. For this reason, the trial court is cautioned against relying on the second amended judgment on remand.

Our review of the above referenced September 27, 2017 judgment reveals that its decretal language is identical to the language contained in the July 13, 2018 judgment as set forth above, which is the judgment presently before us on appeal. This court has already indicated that this identical language lacks the specificity of the acts sought to be restrained as required by La. C.C.P. art. 3605 -i.e. , the language does not delineate what constitutes confidential and proprietary business information from which Defendants are prohibited from using or soliciting, and the language does not define what obligations Defendants owe Bernhard. Put simply, having already said this, we need not say more.

Because we find the judgment fails to describe in reasonable detail the particular acts enjoined and, consequently, is clearly null and void as an injunction, we do not reach the remaining issues presented for appellate review; i.e. , whether Bernhard carried its burden of establishing a prima facie case that it is entitled to a preliminary injunction.

DECREE

For the foregoing reasons, we vacate the July 13, 2017 judgment purporting to grant injunctive relief in favor of Bernhard. We find the judgment is null and void for lack of specificity as required by La. C.C.P. art. 3605. This matter is remanded for further proceedings.

JUDGMENT VACATED; MATTER REMANDED

      Bernhard is a commercial contracting company, which provides mechanical construction services such as HVAC, plumbing, exhaust, and engineering for commercial buildings.

      MCC was a mechanical contracting company in New Orleans. Following the acquisition, the name of the newly acquired entity became Bernhard MCC, LLC.

      RMS is not party to this injunction proceeding; however, it has been named as a defendant in a related suit, which also names the six defendants who are parties to the instant litigation.

      Though the parties indicated at the commencement of the August 23, 2017 hearing that they were present for purposes of a preliminary injunction, in its original judgment of August 31, 2017, the trial court granted Bernhard's petition for preliminary and permanent injunction. Defendants timely filed an appeal from this judgment on September 14, 2017, and an order of appeal was signed that day. Also on that day, Bernhard filed a motion seeking a modification of the judgment to reflect only the granting of a preliminary injunction, and requested that the judgment be amended to specify the act or acts restrained by the judgment. In turn, on September 18, 2017, after the order of appeal was signed and the trial court had been divested of jurisdiction, the trial court issued an amended judgment granting Bernhard a preliminary injunction. In all respects, except for the removal of the word "permanent," the amended judgment was identical to the original judgment. Bernhard then filed a second motion for modification of the judgment again requesting a description of the acts from which Defendants were enjoined. In response, the trial court issued a second amended judgment on September 27, 2017, which purported to grant Bernhard's petition for preliminary injunction, prohibited Defendants from certain acts, and ordered Defendants to return all of Bernhard's confidential and proprietary business information and any other material constituting a trade secret. Although maintaining the two amended judgments were null and void, Defendants also filed motions for appeal from both of the amended judgments.
      On appeal, finding the original August 31, 2017 judgment to be null and void for lack of specificity as required by La. C.C.P. art. 3605, and the subsequent judgments to be absolute nullities because the trial court had been divested of jurisdiction at the time the judgments were signed, this Court did not reach the propriety of the injunctive relief granted, but rather vacated the judgments and remanded the matter for further proceedings. Bernhard , 250 So.3d at 349.


author: CHAISSON, J.

text:
    STATE of Louisiana v. Akando DUCKSWORTH
    NO. 18-KA-627
    Court of Appeal of Louisiana, Fifth Circuit.
    February 27, 2019
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux, Gail D. Schlosser, Joshua K. Vanderhooft
    COUNSEL FOR DEFENDANT/APPELLANT, AKANDO DUCKSWORTH, Holli A. Herrle-Castillo
    Panel composed of Judges Jude G. Gravois, Robert A. Chaisson, and John J. Molaison, Jr.
   CHAISSON, J.

This is the second appeal of defendant, Akando Ducksworth, and pertains only to the restitution hearing conducted on August 16, 2018. In this appeal, defendant's appointed appellate counsel has filed a brief pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting that there are no non-frivolous issues to be raised on appeal and requesting permission to withdraw as attorney of record for defendant. We agree with counsel's assertion, affirm the imposition of restitution, and grant appellate counsel's motion to withdraw as attorney of record for defendant.

PROCEDURAL HISTORY

On August 31, 2016, following a jury trial, defendant was found guilty of attempted manslaughter, in violation of La. R.S. 14:27 and 14:31, and on September 6, 2016, was sentenced to twelve years imprisonment at hard labor. Immediately after sentencing, defendant filed a motion for appeal, which the trial court granted that same date.

On January 5, 2017, subsequent to the granting of defendant's appeal motion, the trial court conducted a restitution hearing. At that hearing, the medical bills of the victim, Joshua Hardin, were introduced into evidence, and the parties thereafter stipulated that restitution was owed to the victim in the amount of $ 166,488.76.

On December 13, 2017, on original appeal, this Court affirmed defendant's conviction for attempted manslaughter and his sentence of twelve years imprisonment at hard labor. See State v. Ducksworth , 17-35 (La. App. 5 Cir. 12/13/17), 234 So.3d 225.

On January 9, 2018, defendant filed a pro se motion for a contradictory hearing to correct an illegal sentence, arguing that the trial court did not have jurisdiction to order restitution on January 5, 2017, pursuant to La. C.Cr.P. art. 916, because his appeal was pending at that time. The trial court agreed with defendant's argument, granted his motion, and set the matter for a contradictory hearing and resentencing.

At the August 16, 2018 hearing, the victim, Mr. Hardin, testified regarding the medical expenses he incurred as a result of defendant's actions and introduced into evidence the medical bills related to the treatment he obtained as a result of the offense. After the presentation of the evidence, defense counsel requested the court reconsider the original sentence imposed, asserting that while defendant desired to make restitution payments, he would be unable to do so while incarcerated. The trial court declined to resentence defendant on the original sentence of twelve years, noting that this Court had already upheld that sentence. See State v. Ducksworth , 234 So.3d at 237.

Pursuant to La. C.Cr.P. art. 883.2, the trial court then ordered defendant to pay restitution in the amount of $ 166,488.76 based upon the documents submitted. The trial court also directed the payments begin upon defendant's release from incarceration. Defense counsel objected and thereafter filed a motion for appeal, seeking review of the trial court's denial of resentencing and the order of restitution. The trial court granted defendant's motion for appeal and appointed appellate counsel to represent him.

Thereafter, on September 11, 2018, defendant filed a pro se notice of intent to file for supervisory writs, seeking review of the trial court's August 16, 2018 denial of his motion for a contradictory hearing to correct an illegal sentence. On September 20, 2018, the trial court set a return date of November 5, 2018, for defendant's writ application. Defendant did, in fact, file a writ application with this Court seeking review of the trial court's August 16, 2018 ruling. On October 24, 2018, this Court denied defendant's pro se writ application, finding that defendant had failed to provide the necessary documentation for review as required by Rule 4-5(C) of the Uniform Rules-Courts of Appeal and also noting that defendant's motion for appeal from the August 16, 2018 ruling had been granted. See State v. Ducksworth , 18-516 (La. App. 5 Cir. 10/24/18) (unpublished writ disposition).

After defendant's appeal was lodged in this Court on November 2, 2018, his appointed appellate counsel filed a brief pursuant to Anders v. California , supra , and a motion to withdraw as attorney of record for defendant. On December 6, 2018, the State filed a motion to dismiss the appeal for lack of jurisdiction, contending the denial of defendant's motion to correct illegal sentence is not an appealable judgment. On December 13, 2018, this Court denied the State's motion to dismiss defendant's appeal. It is in this procedural posture that we now review the order of restitution.

ANDERS BRIEF

Under the procedure adopted by this Court in State v. Bradford , 95-929 (La. App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110-11, appointed appellate counsel has filed a brief asserting that she has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal with regard to restitution. She particularly notes that this Court has already affirmed defendant's conviction and twelve-year sentence, that the matter is presently before this Court only with regard to the imposition of restitution, and that defendant does not contest the amount of restitution ordered. Appointed appellate counsel thereafter requests that this Court conduct a review of the record for errors patent and that this Court allow defendant to either file a pro se brief in this appeal or proceed on his own via a writ application. Accordingly, having filed a brief in compliance with Anders v. California , supra , and State v. Jyles , 96-2669 (La. 12/12/97), 704 So.2d 241 (per curiam ), appointed appellate counsel requests permission to withdraw as attorney of record for defendant.

Our independent review of the record supports appellate counsel's assertion that there are no non-frivolous issues to be raised on appeal with respect to the imposition of restitution on defendant. At the restitution hearing conducted on August 16, 2018, the trial court listened to the testimony of the victim, Mr. Hardin, and reviewed the medical expenses he incurred as a result of defendant's criminal actions. Defendant, who was present for the hearing, did not contest the amount of restitution ordered by the trial court as part of his sentence pursuant to La. C.Cr.P. art. 883.2. Accordingly, we agree with appellate counsel's assessment that there are no non-frivolous issues to raise on appeal with regard to restitution.

ERRORS PATENT REVIEW

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

CONCLUSION

Because appellate counsel's brief adequately demonstrates by full discussion and analysis that she has reviewed the restitution proceeding and cannot identify any basis for a non-frivolous appeal, and an independent review supports counsel's assertion, we affirm the judgment of the trial court with regard to the imposition of restitution, and we further grant appellate counsel's motion to withdraw as attorney of record for defendant.

AFFIRMED; MOTION TO WITHDRAW GRANTED

      This Court, however, remanded the matter for correction of the uniform commitment order to accurately reflect the crime for which defendant was convicted.

      La. C.Cr.P. art. 883.2(A) provides: "In all cases in which the court finds an actual pecuniary loss to a victim, or in any case where the court finds that costs have been incurred by the victim in connection with a criminal prosecution, the trial court shall order the defendant to provide restitution to the victim as a part of any sentence that the court shall impose."

      Defendant filed a writ application in the Louisiana Supreme Court seeking review of this Court's October 24, 2018 denial of his writ application. As of this date, there has been no ruling by the Louisiana Supreme Court.

      In Bradford , supra , this Court adopted the procedures outlined in State v. Benjamin , 573 So.2d 528, 530 (La. App. 4th Cir. 1990), which were sanctioned by the Louisiana Supreme Court in State v. Mouton , 95-981 (La. 4/28/95), 653 So.2d 1176, 1177 (per curiam ).

      Defendant was notified of his right to file a pro se brief in this matter. As of this date, defendant has not filed a pro se brief.

      In her Anders brief, appellate counsel asserts that this Court does not have appellate jurisdiction over this matter, claiming this case is currently before this Court for review of the denial of defendant's motion to correct an illegal sentence, which is not a final appealable judgment but rather is reviewed by way of a supervisory writ. As previously noted, this Court denied the State's motion to dismiss appeal based on lack of jurisdiction. Further, we note that defendant's pro se motion for a contradictory hearing to correct an illegal sentence was actually granted, and a hearing, limited to the issue of restitution, was conducted. In State v. Peters , 611 So.2d 191, 192 (La. App. 5th Cir. 1992), this Court noted that the setting of the amount of restitution is a judgment that imposes sentence under La. C.Cr.P. art. 912(C)(1) and, therefore, is an appealable judgment. See also State v. Lewis , 01-490 (La. App. 5 Cir. 10/30/01), 800 So.2d 1032, 1035, in which this Court commented that the amount of restitution was a matter for review on appeal.

      When conducting a review for compliance with Anders , an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel's motion to withdraw and affirm the defendant's conviction and sentence. State v. Bradford , 676 So.2d at 1110.

      Defendant received an errors patent review upon his original appeal. This Court affirmed defendant's conviction and sentence. He is not entitled to a second errors patent review of his underlying conviction and sentence. See State v. Taylor , 01-452 (La. App. 5 Cir. 11/14/01), 802 So.2d 779, 783-84, writ denied , 01-3326 (La. 1/10/03), 834 So.2d 426.