source: Caselaw Access Project

author: THIBODEAUX, Chief Judge.

license: Public Domain

text:
    STATE of Louisiana v. Ramon L. ELLENDER
    18-891
    Court of Appeal of Louisiana, Third Circuit.
    June 5, 2019
    James R. Lestage, District Attorney - 36th Judicial District, Richard Alan Morton, Assistant District Attorney - 36th Judicial District, 124 South Stewart Street, DeRidder, LA 70634, Telephone: (337) 463-5578, COUNSEL FOR: Plaintiff/Appellee - State of Louisiana
    Martin E. Regan, Jr., Barry S. Ranshi, Regan Law, P.L.C., 2125 St Charles Avenue, New Orleans, LA 70130, Telephone: (504) 522-7260, COUNSEL FOR: Defendant/Appellant - Ramon L. Ellender
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and Phyllis M. Keaty, Judges.
   THIBODEAUX, Chief Judge.

Defendant, Ramon L. Ellender, appeals his conviction by a six-person jury for his fifth offense of driving while intoxicated. He was sentenced to fifty years at hard labor under the habitual offender statute. His appeal focuses on insufficiency of the evidence, excessive sentence, and an improper jury composition.

We affirm his conviction and sentence.

I.

ISSUES

We must decide:

(1) whether there was sufficient evidence to convict Defendant;
(2) whether the trial court deprived Defendant of a twelve-person jury and unconstitutionally convicted him by a six-person jury; and
(3) whether Defendant's sentence is unconstitutionally excessive.

II.

FACTS AND PROCEDURAL HISTORY

Defendant, Ramon L. Ellender, was charged by Bill of Information with "Driving While Intoxicated, Fifth Offense," in violation of La.R.S. 14:98 and 14:98.4. A six-person jury unanimously found Defendant guilty as charged. The State filed a bill charging Defendant as a habitual offender under La.R.S. 15:529.1. Prior to jury selection, the State and Defendant stipulated to Defendant's four prior DWI convictions, which were not subject to the ten-year cleansing period.

Defendant filed a "Motion for Arrest of Judgment," alleging that his conviction should be reversed and that he should receive a new, twelve-person jury trial because La.R.S. 14:98.4(C) requires individuals who receive probation, parole, or suspension of sentence on a prior DWI, fourth offense, to serve a hard labor sentence of not less than ten nor more than thirty years. The trial court found that Defendant was properly tried by a six-person jury. In its written reasons, the trial court noted that the State and defense counsel had discussed the makeup of the jury prior to selection, that La.R.S. 14:98.4(C) was never discussed, and that everyone agreed that the proper jury size was a six-person jury.

The trial court, citing State v. Brown , 11-1044 (La. 3/13/12), 85 So.3d 52, ruled that Defendant had not waived his right to object to an improper jury composition because La.Code Crim.P. art. 859 lists errors in jury composition as a ground for arrest of judgment, an exception to the contemporaneous objection rule. The trial court further cited the supreme court's ruling in State v. Dahlem , 14-1555 (La. 3/15/16), 197 So.3d 676, which held that a similarly-situated defendant was not entitled to a twelve-person jury because the bill of information did not specifically charge him with the sentencing provision that required a hard labor sentence.

Defendant then filed a "Motion for New Trial," as did his defense counsel. Following a hearing, the trial court denied both of the motions. After a hearing and multiple memoranda submitted by defense counsel and the State, the trial court issued a written ruling and adjudicated Defendant "a fifth felony offender subject to sentencing under La.R.S. 15:529.1." Subsequently, Defendant was sentenced to fifty years at hard labor, the first two years to be served without benefit of probation, parole, or suspension of sentence; the remainder to be served without probation or suspension of sentence; and the sentence to run consecutively with any other sentence that Defendant may have. Defendant was also fined $ 5,000 as required by La.R.S. 14:98.4.

Defendant filed a "Motion to Reconsider Sentence," alleging that his sentence was "excessive and based, at least partially, on evidence[ ] in dispute." The trial court denied the motion. The State also filed a "Motion to Reconsider Sentence," arguing that Defendant should have been sentenced under the habitual offender law as it stood when the offense was committed in 2015, not under the 2017 amendments to the law. Following a hearing, the trial court noted that Defendant's sentence, which remained unchanged, was imposed in accordance with the language of La.R.S. 15:529.1 as it stood at the time of the offense. The trial court noted:

So what that does for Mr. Ellender's case is it changes the sentencing range in his case from 20 to 60 years under the habitual offender law that took effect by the 2017 amendments to go back to the law in effect as of October of 2015, which makes the habitual offender sentencing range 20 to life.
The other thing it does, as long as the bill of information was filed prior to November 1, 2017, is it changes the cleansing period back to the ten-year prior cleansing period as opposed to the five-year cleansing period which took effect as of the 2017 amendment. And in this case the habitual offender bill of information was filed prior to that date; and, therefore, the ten-year cleansing period applies to Mr. Ellender's case. And most, if not all, of the legal arguments raised by the defense as to some of the prior convictions being within ten years but not within five years of one another is now a moot issue in the Court's opinion legally; because the cleansing period is back to one of ten years as it applies to Mr. Ellender's case.

III.

LAW AND DISCUSSION

Evidence and Testimony

The State's first witness was Ms. Mary Benson. Ms. Benson testified that on October 9, 2015, she was standing on the sidewalk on West North Street, when she saw a red truck speed past her followed by a "little grey car." She said she believed the grey car rear-ended the red truck before the car turned around and sped past her going in the opposite direction. She said she saw the grey car hit multiple signs near or on the road both times it passed, noting parts of the car came off when the vehicle hit the signs. Ms. Benson testified that there were signs on both sides of the street, noting "[w]hen he went up the street he knocked that sign down; and when he c[a]me back down the other side, on [the] other side where the school bus c[a]me down, the school bus sign, they tore that sign down; and that church sign, they tore it down." Ms. Benson clarified that "the car did all the damage." She identified Defendant as the person driving the grey BMW shortly after the incident, and she identified him in open court as the driver of the vehicle.

Mary Benson's 911 Call

Ms. Benson called 911 at 6:40 p.m. and told the operator that a white guy was driving a little BMW going around one hundred miles per hour. She stated that the BMW hit the back of a red Ford truck, turned around at the bank, then came back and almost tore up a woman's car. She stated that the bottom of the car should be torn up, and there was debris all over the road.

Ms. Benson testified that she was about twenty to twenty-five feet away from the vehicle at the time of the incident, and she had no doubt that the Defendant was driving the BMW, "[f]ast, flying like a bat out of hell." Ms. Benson also identified Defendant in a six-man photo lineup roughly a year after the incident. On cross-examination, Ms. Benson testified that she knew "exactly what both [drivers] look[ed] like." Defense counsel then introduced video from Corporal Edward Kuzmik's body camera when the officer first spoke with Ms. Benson following her 911 call.

Body Camera Footage of Corporal Kuzmik

After discussing the sequence of events with Ms. Benson and the silver car parts stuck in the broken sign, Corporal Kuzmik entered his vehicle and proceeded to Defendant's residence where he was met by Sergeant Davidson, who told him they were taking Defendant to Ms. Benson for a possible identification.

Sergeant John Davidson, a patrol shift supervisor for the DeRidder Police Department with twelve years of law enforcement experience, testified that he was dispatched to West North Street for a hit-and-run involving a silver BMW. He stated that he subsequently remembered a silver BMW parked on John Henry Jones Street, about two blocks from the scene of the incident. He testified that he and two other officers, Corporals David Stanard and Gene Clark, proceeded to where he knew the silver BMW was parked, which was Defendant's home. Reserve Officer Mike Perkins also responded to Defendant's residence shortly thereafter. They arrived at Defendant's residence on John Henry Jones Street less than fifteen minutes after responding to the location of the incident on West North Street.

Upon arriving at Defendant's residence, they found a silver BMW with damage matching the description of the hit-and-run. Sergeant Davidson took photographs of the damage to the car which were later introduced into evidence. Sergeant Davidson testified that Defendant was the only person to make himself known at the residence on John Henry Jones. He noted that the engine of the BMW was still giving off heat while he was taking photos of it, indicating that it had been recently driven. Sergeant Davidson noted that the car had damage to the trim and front fender as well as a flat tire. He also noted that the car was still in drive, the windows were down, and the key was still in the ignition in the "on" position, indicating someone had turned it off just enough to kill the engine without totally disengaging. This was corroborated by Corporal Clark. Sergeant Davidson testified he left to assist another officer on a separate call but subsequently observed part of Corporal Kuzmik's interview with Defendant. He also stated that he was familiar with Defendant from having worked a prior call involving him, and that Defendant had previously worked around the police department as a trustee.

Sergeant Davidson further testified that he believed Defendant was intoxicated, because he knew what Defendant was like when he was sober, and he was not acting sober. He testified that Defendant had an unsteady gait and that his speech appeared "a little off" during his interview. Corporal Clark testified that Defendant was unsteady on his feet and "had bloodshot, watery eyes ... slurred speech and a strong odor of alcoholic beverages." Officer Perkins testified that Defendant seemed off-balanced, had slurred speech, and smelled of alcohol.

Upon arrival at Defendant's residence, Corporal Stanard approached the trailer home and noted that the front door was wide open and that Defendant "was completely naked, laying face-down on a couch in the living room with his clothes to his feet." Corporal Stanard stated that Defendant was detained, handcuffed, and read his Miranda rights at that point. Corporal Stanard testified that Defendant's walk was unsteady and they were holding him up to keep him from falling and injuring himself. He also noted that he could smell alcohol coming from Defendant.

Reserve Officer Michael Perkins responded to the location of the incident and then proceeded to John Henry Jones Street to back up Corporals Stanard and Clark while Corporal Kuzmik spoke to the witness at the scene. Officer Perkins testified that he placed Defendant in the back of his police unit and escorted him to 208 West North Street, where Ms. Benson identified him as the driver of the grey BMW that she saw hit the sign. At that time, Corporal Kuzmik informed Defendant of his charges, and Officer Perkins transported him back to the police department. After transporting Defendant to the police department, Officer Perkins sat in on Corporal Kuzmik's interview with him. Officer Perkins noted that the interview was recorded by Corporal Kuzmik's body camera. He testified that Defendant never asked for an attorney or attempted to stop the interview.

Corporal Edward Kuzmik of the DeRidder Police Department's detective division testified that he was dispatched to the scene at 6:49 p.m., in response to a hit-and-run and reckless-driver call. Upon his arrival, he removed car parts and debris from the road near the intersection of Carlisle Street and North Street. He said the sign at the intersection was completely knocked down, and a sign for the Sweet Home Baptist Church, approximately five feet from the stop sign, was destroyed. After speaking to Ms. Benson, Corporal Kuzmik proceeded to Defendant's residence. Once there, he was directed by Sergeant Davidson to return to North Street to see if Ms. Benson identified Defendant as the driver of the BMW she witnessed hit the signs. After Ms. Benson identified Defendant as the driver of the BMW, Corporal Kuzmik took photos of the damage and debris on North Street before heading to the police department to interview Defendant. Noting that the camera normally used to video interviews was not working, Corporal Kuzmik testified that he recorded Defendant's interview with his body camera.

Defendant's Statement to Corporal Kuzmik

Defendant's statement, recorded on Corporal Kuzmik's body camera, was played for the jury and lasted roughly twelve minutes. Defendant initially told Corporal Kuzmik he was thirty-six years old and that his date of birth was September 19, 1949. When asked if he meant 1979, Defendant agreed. Defendant put his head down while Corporal Kuzmik read him his Miranda rights and appeared to be asleep until Corporal Kuzmik touched his shoulder. Corporal Kuzmik asked Defendant about a scratch on his chin, which Defendant stated was from a razor. He claimed to have shaved around two or three in the afternoon. When asked how much he had had to drink, Defendant stated he had two bottles of whiskey. He told Corporal Kuzmik he started drinking around 3:00 p.m. and finished around 3:30 p.m.

Defendant stated he owned a truck and not a car multiple times while Corporal Kuzmik tried to ask if he was driving the grey BMW, then stated, "God Damn, I'm asking you a question. I have a truck." He then stated the BMW was his wife's car and that she was driving it. Defendant was then unable to tell Corporal Kuzmik where his wife was or why a witness identified him as driving the BMW. He stated, "The fair answer is: I was in bed sleeping." He then stated that he went to bed at 8:30, seemingly confused by the officers asking him if he went to sleep at 8:30 a.m. or p.m.

When Corporal Kuzmik asked if Defendant was driving the grey BMW that was sitting in his driveway, Defendant appeared unable to comprehend or answer the question. Defendant acknowledged he was pretty intoxicated. Defendant then stated he was already on parole for a fourth offense DWI and should not be drinking. He then reiterated that he was at home sleeping.

Corporal Kuzmik identified a trio of forms used to substantiate Ms. Benson's subsequent identification of Defendant from a six-person photographic lineup on December 1, 2016. Following Defendant's statement, Corporal Kuzmik arrested him for reckless operation, hit and run, and driving under suspension and had him booked into the parish jail. Corporal Kuzmik testified the failure to initially charge Defendant with a DWI was an oversight on his part.

Corporal Kuzmik noted that Defendant had a flushed face, glassy eyes, and a "moderately strong odor of alcohol" when he first encountered him. He also noted that during the interview, he had to wake Defendant up; that Defendant's speech was slurred and that both his nose and ears were flushed. Corporal Kuzmik acknowledged telling Defendant he "was drunker than Cooter Brown." He also noted that Defendant believed he had gone to sleep at 8:30 p.m. awoke at 11:45 p.m.; however, the interview was taking place at 7:25 p.m. As with all of the other officers, Corporal Kuzmik confirmed that at no point did Defendant ever mention any physical injuries, medical issues, or other ailments which may have affected his speech, coordination, or ability to function. At that point, the State rested its case and defense counsel chose not to present a case in chief. The jury subsequently returned a unanimous verdict of guilty as charged.

Insufficiency of the Evidence

Defendant contends there was insufficient evidence to prove his identity as the driver of the vehicle involved in the hit and run. Furthermore, he contends this is a circumstantial evidence case in which the State failed "to disprove the reasonable hypothesis that the [D]efendant got intoxicated at his house, where the police found him." Defendant's characterization of his case as a purely circumstantial evidence case is incorrect and Defendant himself told law enforcement that he drank two bottles of whiskey between 3:00 and 3:30 p.m., three hours before the hit and run.

The analysis for a sufficiency claim is well settled:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied , 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979), State ex rel. Graffagnino v. King , 436 So.2d 559 (La.1983) ; State v. Duncan , 420 So.2d 1105 (La.1982) ; State v. Moody , 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino , 436 So.2d 559 (citing State v. Richardson , 425 So.2d 1228 (La.1983) ). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.

State v. Kennerson , 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

In order to convict an accused of driving while intoxicated, the prosecution need only prove that defendant was operating a vehicle and that defendant was under the influence of alcohol or drugs. State v. Edwards , 591 So.2d 748 (La.App. 1 Cir.1991). Some behavioral manifestations, independent of any scientific test, are sufficient to support a charge of driving while intoxicated. Id. ; State v. Pitre , 532 So.2d 424 (La.App. 1 Cir.1988), writ denied , 538 So.2d 590 (La.1989). It is not necessary that a conviction of D.W.I. be based upon a blood or breath alcohol test, and the observations of an arresting officer may be sufficient to establish the defendant's guilt. Intoxication is an observable condition about which a witness may testify. State v. Allen , 440 So.2d 1330 (La.1983).

State v. Iles , 96-256, pp. 7-8 (La.App. 3 Cir. 11/6/96), 684 So.2d 38, 42.

Furthermore, because Defendant was charged under La.R.S. 14:98.4 with a fourth or subsequent offense, the State was required to prove Defendant's prior valid convictions. However, defense counsel stipulated to the validity of Defendant's prior convictions. The State, therefore, only needed to prove Defendant was operating a vehicle while under the influence of alcohol or drugs.

Ms. Benson positively identified Defendant as the driver on at least three occasions: less than an hour after witnessing the accident, more than a year later when she picked Defendant out of a six-person photographic lineup, and in open court at trial. Accordingly, the State provided direct evidence Defendant was the driver of the grey BMW when it was involved in a hit and run on North Street at approximately 6:40 p.m.

Although Defendant attacks the State's failure to "conduct a standard field sobriety test, draw the [D]efendant's blood, or even offer him the option of taking a standard breathalyzer test," this court has long recognized such tests are not necessary to support a conviction for driving while intoxicated. As this court noted in Iles , 684 So.2d at 42, "the observations of an arresting officer may be sufficient to establish the defendant's guilt. Intoxication is an observable condition about which a witness may testify." Every law enforcement officer who came into contact with Defendant on October 9, 2015, testified that he exhibited characteristics of being intoxicated when they came into contact with him around 7:00 p.m. He was described as having slurred speech and difficulty walking, and smelling of alcohol. Furthermore, Corporal Kuzmik noted that Defendant had glassy eyes and that both his nose and his ears were flushed.

In his statement, which was played for the jury's benefit, Defendant acknowledged that he was intoxicated and stated that he drank two bottles of whiskey about three hours before he went to sleep. Furthermore, Defendant could not accurately state his own age or date of birth and appeared to have trouble forming coherent statements. Observations of the law enforcement officers and the jury's own observations of Defendant's intoxication were more than sufficient to find that he was intoxicated.

Finally, Defendant contends that the State failed to disprove the hypothesis that Defendant got intoxicated at his home between the time of the hit and run and the time that law enforcement found him asleep, naked, on his couch less than thirty minutes later. This hypothesis was presented to the jury at trial and rejected. Furthermore, Defendant's own statement to police indicated that he became intoxicated hours before the accident. Defendant's timeline is questionable, given his claim during the interview at 7:25 p.m. that he had gone to sleep at 8:30 p.m., an impossibility since that time had not yet occurred; but significantly, it evidences a state of confusion consistent with intoxication. Thus, in "viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). Accordingly, this assignment of error lacks merit.

Jury Composition

Defendant contends that the trial court deprived him of his constitutional right to due process by trying him before a six-person jury rather than a twelve-person jury. We disagree. The Bill of Information in this case, states that Ramon L. Ellender, on or about October 9, 2015: "Did willfully and unlawfully violate R.S. 14:98 and R.S. 14:98.4, Driving While Intoxicated, Fifth Offense, by the intentional operation of a motor vehicle while under the influence of an alcoholic[ ] beverage[ ] (a felony)." The Bill of Information then outlines four other DWI convictions: 1992 in Sulphur, 1996 in Lake Charles, 2002 in DeRidder, and 2012 in DeRidder.

At the time of Defendant's 2015 offense, La.R.S. 14:98 provided in pertinent part:

A. (1) The crime of operating a vehicle while intoxicated is the operating of any motor vehicle, aircraft, watercraft, vessel, or other means of conveyance when any of the following conditions exist:
(a) The operator is under the influence of alcoholic beverages.

Pursuant to La.R.S. 14:98.4, enacted in 2015 (emphasis added), a fourth offense violation was a relative felony, punishable by imprisonment with or without hard labor:

A. (1) Except as modified by Subparagraphs (a) and (b) of this Paragraph, or as provided by Subsections B and C of this Section, on a conviction of a fourth or subsequent offense violation of R.S. 14:98 , regardless of whether the fourth offense occurred before or after an earlier conviction, the offender shall be fined five thousand dollars and imprisoned, with or without hard labor , for not less than ten years nor more than thirty years . Two years of the sentence of imprisonment shall be imposed without benefit of parole, probation, or suspension of sentence. Except in compliance with R.S. 14:98.5(B)(1), the mandatory minimum sentence cannot be served on home incarceration.

Relative felonies are tried by a six-person jury, pursuant to La.Const. art. 1, § 17, which in 2015 provided in pertinent part (emphasis added):

(A) Jury Trial in Criminal Cases. A criminal case in which the punishment may be capital shall be tried before a jury of twelve persons, all of whom must concur to render a verdict. A case in which the punishment is necessarily confinement at hard labor shall be tried before a jury of twelve persons , ten of whom must concur to render a verdict. A case in which the punishment may be confinement at hard labor or confinement without hard labor for more than six months shall be tried before a jury of six persons , all of whom must concur to render a verdict.

Thus, according to the Bill of Information, Defendant was charged with a relative felony that required a six-person jury under the constitution. Defendant contends, however, that because he was on parole for a prior DWI fourth offense when he was arrested for his current conviction, La.R.S. 14:98.4(C) requires him to serve his time at hard labor, which requires a twelve-person jury. Pursuant to La.R.S. 14:98.4(C) (emphasis added):

If the offender has previously received the benefit of parole, probation, or suspension of sentence on a conviction of a fourth or subsequent offense violation of R.S. 14:98, then on a subsequent conviction of a fourth or subsequent offense, notwithstanding any other provision of law to the contrary and regardless of whether the offense occurred before or after an earlier conviction, the offender shall be fined five thousand dollars and imprisoned at hard labor for not less than ten nor more than thirty years. No part of the sentence shall be imposed with benefit of parole, probation, or suspension of sentence, and no portion of the sentence shall be imposed concurrently with the remaining balance of any sentence to be served for a prior conviction for any offense.

Neither the Bill of Information nor any discussion by the parties or the trial court suggested the invocation of La.R.S. 14:98.4(C). In fact, all agreed and worked together to select the six-person jury required under the indicting language.

Notwithstanding, Defendant cites State v. Jenkins , 406 So.2d 1352 (La.1981) to support his contention that his conviction is null based on an insufficient jury. The Jenkins court stated, "We have consistently held that the verdict returned by a jury composed of fewer than the correct number of jurors is null." Id. at 1353. Defendant also argues State v. Johnson , 10-196 (La.App. 3 Cir. 11/24/10), 52 So.3d 273, where the defendant was charged and convicted of DWI fourth offense in violation of La.R.S. 14:98. There, the defendant contested his conviction on the grounds that trying him before a six-person jury was a nullity, as La.R.S. 14:98(E)(4)(a) at the time required that a defendant, who had previously been required to participate in substance abuse treatment or home incarceration, be sentenced to mandatory hard labor. A panel of this court held:

Because Defendant, charged with fourth offense DWI, was previously required to participate in substance abuse treatment and was placed on home incarceration the law mandates he be tried before a jury of twelve persons. As Defendant was tried before a jury of only six persons, contrary to the provisions of our State Constitution requiring trial by twelve jurors for his offense, his conviction is null and is hereby set aside; his sentence is vacated; and the matter is remanded for a new trial. Defendant's assignment of error asserting his sentence is excessive is moot.

Johnson , 52 So.3d at 275.

Based upon Jenkins and Johnson , Defendant's contention that he should have received a new trial before a twelve-person jury would appear to have merit. However, the supreme court has since created an exception to the rule that this court applied in Johnson ; namely, where as here, a defendant is ultimately sentenced as a habitual offender, the empaneling of a six-person jury before trial does not lead to a reversal if the Bill of Information on its face indicates only a relative felony. More specifically, in the very similar case of State v. Dahlem , 197 So.3d 676, the Louisiana Supreme Court articulated as follows (emphasis added):

It is imperative to note that the bill of information sets the parameters and dictates the mode of trial. Based solely upon the information on the face of the bill of information, the defendant in this case was properly tried before a six person jury, as the sentencing range for a fourth offense DWI, as listed in this particular bill of information, is not mandatory hard labor. Specifically, La. R.S. 14:98(E)(1)(a), in effect at the time of defendant's offense, provided that operating a vehicle while intoxicated, fourth offense, carried the following penalty range with or without hard labor:
... on a conviction of a fourth or subsequent offense, notwithstanding any other provision of law to the contrary and regardless of whether the fourth offense occurred before or after an earlier conviction, the offender shall be imprisoned with or without hard labor for not less than ten years nor more than thirty years and shall be fined five thousand dollars. Two years of the sentence of imprisonment shall be imposed without benefit of probation, parole, or suspension of sentence. (emphasis added).
Given that the enhanced sentence to which the evidence made defendant subject was not apparent on the face of the bill of information, we specifically decline to create a duty requiring a trial judge to look beyond the face of the bill of information or the indictment, and the Title 14 penalty range. Nor is it the responsibility of a trial judge to interrogate the district attorney or independently investigate as to what evidence might be introduced that would require a different jury composition at the outset of a case. Doing so would be inappropriate and contrary to the efficient administration of criminal justice, and effectively result in bad policy.

Id. at 683.

In Dahlem , the supreme court stated in a footnote:

We agree with Judge Kuhn's concurrence in the court of appeal's opinion, which states:
....[T]rial of the defendant by a six-person jury was dictated by law in this case. The district attorney, in the exercise of his discretion, elected to charge the defendant pursuant to La. R.S. 14:98 with a fourth-offense DWI. Under La. R.S. 14:98(E)(1)(a), the punishment for fourth-offense DWI is imprisonment with or without hard labor for not less than ten years and not more than thirty years and a $ 5,000.00 fine. In accordance with La. Const. art. I, sec. 17 (A), such a case "shall be tried before a jury or six persons, all of whom must concur to render a verdict." See also La.C.Cr.P. art. 782(A).
In reliance on these constitutional and statutory provisions, the State, the defense, and the trial court worked together to select a six-person jury to try this case. Although, the State later presented evidence at trial in connection with predicate # 3 which, if accepted, allowed for a sentence at hard labor under La. R.S. 14:98(E)(4)(a), sentencing of the defendant under this sentencing enhancement provision was only a possibility, but never a certainty. Thus, as a practical matter, this case was required to be tried in a six-person jury forum since there was only a possibility that the defendant could receive a sentence at hard labor. In Louisiana, a twelve-person jury is required only when the potential sentence is necessarily confinement at hard labor. La. Const. art. I, sec. 17 (A); La.C.Cr.P. art. 782(A). Thus, the defendant's trial was conducted in accordance with the jury composition rules applicable to La. R.S. 14:98(E)(1)(a), wherein the actual conduct prescribed is a fourth-offense DWI, and the sentence to be imposed may be with or without hard labor.
State v. Dahlem , 13-0577, p. 1 (La.App. 1 Cir. 6/18/14), 148 So.3d 591, 600-01 (Kuhn, J., concurring).

Dahlem , 197 So.3d at 689, note 12.

Similarly, in the present case, the Bill of Information states that Ramon L. Ellender: "Did willfully and unlawfully violate R.S. 14:98 and R.S. 14:98.4, Driving While Intoxicated, Fifth Offense." As shown above, in 2015, La.R.S. 14:98.4, stated that, for a fourth or subsequent offense, "the offender shall be fined five thousand dollars and imprisoned, with or without hard labor , for not less than ten years nor more than thirty years ." La.R.S. 14:98.4(A)(1) (emphasis added). Likewise in 2015, La.Const. art. 1, § 17, provided that such a case shall be tried before a six-person jury. Here, as in Dahlem , the State, the defense, and the trial court worked together to select a six-person jury because that is what was indicated on the Bill of Information. While Defendant was ultimately sentenced under a habitual offender statute, La.R.S. 15:529.1, "the enhanced sentence to which the evidence made defendant subject was not apparent on the face of the bill of information," which "sets the parameters and dictates the mode of trial." See Dahlem , 197 So.3d at 683. Accordingly, we find no merit in Defendant's second assignment of error.

Excessiveness of Sentence

Defendant argues that his sentence is unconstitutionally excessive. Following his July 3, 2018 sentencing, Defendant timely filed a "Motion to Reconsider Sentence" on July 30, 2018, asserting only that "the sentence is excessive and based, at least partially, on evidence[ ] in dispute." The motion was denied without reasons the same day. The motion does not explain upon what purportedly disputed evidence Defendant thinks his sentence is based.

Louisiana Code of Criminal Procedure Article 881.1 provides the mechanism for preserving the review of a sentence on appeal:

A. (1) In felony cases, within thirty days following the imposition of sentence or within such longer period as the trial court may set at sentence, the state or the defendant may make or file a motion to reconsider sentence.
....
E. Failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.

Louisiana courts have laid out the following guidelines regarding excessive sentence review:

Sentences within the statutory sentencing range can be reviewed for constitutional excessiveness. State v. Sepulvado , 367 So.2d 762 (La.1979). In State v. Barling , 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied , 01-838 (La. 2/1/02), 808 So.2d 331, a panel of this court discussed the review of excessive sentence claims, stating:
La. Const. art. I, § 20 guarantees that, "[n]o law shall subject any person to cruel or unusual punishment." To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell , 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne , 99-192 (La.App. 3 Cir. 10/13/99), 746 So.2d 124, writ denied , 00-0165 (La. 6/30/00), 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook , 95-2784 (La. 5/31/96), 674 So.2d 957, cert. denied , 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).
Further, in reviewing the defendant's sentences, the appellate court should consider the nature of the crime, the nature and background of the offender, and the sentences imposed for similar crimes. State v. Lisotta , 98-648 (La.App. 5 Cir. 12/16/98), 726 So.2d 57 (citing State v. Telsee , 425 So.2d 1251 (La.1983) ), writ denied , 99-433 (La. 6/25/99), 745 So.2d 1183. In State v. Smith , 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied , 03-562 (La. 5/30/03), 845 So.2d 1061, a panel of this court observed that:
While a comparison of sentences imposed for similar crimes may provide some insight, "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 (La.App. 1 Cir.1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge "remains in the best position to assess the aggravating and mitigating circumstances presented by each case." State v. Cook , 95-2784 (La. 5/31/96), 674 So.2d 957, 958 [, cert. denied , 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996) ].

State v. Soileau , 13-770, pp. 4-5 (La.App. 3 Cir. 2/12/14), 153 So.3d 1002, 1005-06, writ denied , 14-452 (La. 9/26/14), 149 So.3d 261.

Furthermore, in State v. Baker , 06-1218 (La.App. 3 Cir. 4/18/07), 956 So.2d 83, writs denied , 07-320 (La. 11/9/07), 967 So.2d 496, and 07-1116 (La. 12/7/07), 969 So.2d 626, this court adopted the fifth circuit's three-factor test from State v. Lisotta , 98-648 (La.App. 5 Cir. 12/16/98), 726 So.2d 57, writ denied , 99-433 (La. 6/25/99), 745 So.2d 1183, which established that an appellate court should consider the nature of the crime, the nature and background of the offender, and the sentences imposed for similar crimes. Given the general nature of Defendant's motion to reconsider, we will review Defendant's claim as a mere excessiveness of sentence claim in light of the Baker factors.

Nature of the Offense

At the time of the offense, La.R.S. 14:98(A)(1)(a) relevantly defined Defendant's offense as "operating any motor vehicle ... when ... [t]he operator is under the influence of alcoholic beverages." As previously noted, a defendant convicted of fourth or subsequent offense DWI faced imprisonment, "with or without hard labor, for not less than ten years nor more than thirty years." The first two years were to be imposed without benefit of probation, parole, or suspension of sentence. However, because of Defendant's prior DWI history, he ultimately fell into a category of offenders who were required to serve their sentence at hard labor without benefit of probation, parole, or suspension of sentence. The circumstances of Defendant's crime indicate a danger to the community, as he was seen hitting another vehicle while driving, and then destroying two signs on opposite sides of the road.

Nature and Background of Defendant

Defendant was forty-six years old at the time of the instant offense, and he had been in trouble with the law for virtually the entirety of his adult life, nearly thirty years. As noted by the trial court at sentencing:

The Court finds that the defendant has a substantial criminal history. In fact, Mr. Ellender has spent virtually all of his adult life either incarcerated or on supervised probation or parole. In addition to Louisiana, he has also been arrested and/or convicted in several other states, including Texas, Mississippi, California, and Wyoming.
....
By this Court's count, the defendant has been arrested for driving under the influence 12 times and convicted in at least nine of those instances. The defendant has also been arrested and/or convicted of multiple drug and other offenses, including 13 felonies and 17 misdemeanors. The Court finds that subjecting the defendant to supervision has thus far proven totally ineffective, because most of the defendant's offenses were committed while he was under probation or parole supervision.
....
It is, therefore, the opinion of this Court that the defendant's pattern of repeated offenses indicates a high likelihood he will reoffend if released from incarceration, placing himself and others in the community at substantial risk of bodily harm. Because of this likelihood and in consideration of Mr. Ellender's considerable criminal history spanning his entire adult life, it is the opinion of the Court that the Defendant is in need of a lengthy custodial environment.

Sentences Imposed for Similar Crimes

As noted above, the penalty range for DWI fourth offense at the time of Defendant's offense was not less than ten years nor more than thirty years. However, Defendant was adjudicated a fifth felony offender under La.R.S. 15:529.1(A)(4)(a), which held "[t]he person shall be sentenced to imprisonment for the fourth or subsequent felony for a determinate term not less than the longest prescribed for a first conviction but in no event less than twenty years and not more than his natural life." Furthermore, La.R.S. 15:529.1(G) specifically stated "[a]ny sentence imposed under the provisions of this Section shall be at hard labor without benefit of probation or suspension of sentence."

Under La.R.S. 15:529.1(A)(4)(a) as it stood at the time of Defendant's offense, Defendant faced a sentencing range of thirty years to life. Accordingly, Defendant's fifty-year sentence represents the relative low-end of his potential sentencing range. Although we did not find any prior cases wherein a fifty-year sentence was upheld on a DWI conviction, this court has previously upheld sentences of greater than twenty years without a habitual offender enhancement.

In State v. Holloway , 10-74 (La.App. 3 Cir. 10/6/10), 47 So.3d 56, this court upheld a twenty-two-year, unenhanced sentence for DWI fourth offense where the defendant's criminal history included dismissal of a second DWI fourth offense. This court also cited numerous cases where other Louisiana courts had upheld sentences of greater than twenty years without habitual offender enhancement: State v. Ladner , 619 So.2d 1144 (La.App. 1 Cir.), writ denied , 625 So.2d 1059 (La.1993) (twenty-year sentence for fourth offense DWI with history of misdemeanors and failed supervision); State v. Edwards, 591 So.2d 748 (La.App. 1 Cir. 1991), writ denied , 94-452 (La. 6/21/96), 675 So.2d 1072 (twenty-four-year sentence for fourth offense DWI where the defendant was actually on his eighth DWI conviction); State v. Davis , 588 So.2d 1234 (La.App. 1 Cir. 1991) (twenty-five-year sentence for the defendant's eighth DWI in eight years, which occurred while on probation for a DWI third offense); and State v. Wiltcher , 41,981 (La.App. 2 Cir. 5/9/07), 956 So.2d 769 (twenty-five-year sentence for DWI fourth offense where the defendant had a twenty-year criminal history).

As noted by this court in Barling , 779 So.2d 1035, the trial court has great discretion in shaping sentencing, and appellate courts should respect that discretion absent an abuse of discretion. Defendant's lengthy criminal history and long-term refusal to address his addiction issues were addressed by the trial court, which found Defendant unlikely to respond to anything short of incarceration. Given that Defendant's sentence is at the relatively low-end of his potential sentencing range, we cannot find that the trial court abused its discretion in sentencing a fifth felony offender with at least nine DWI convictions to fifty years at hard labor.

IV.

CONCLUSION

Based upon the foregoing, the evidence is sufficient to support the conviction and the sentence in this case. Accordingly, Mr. Ellender's conviction and sentence are affirmed.

CONVICTION AND SENTENCE AFFIRMED.

      Corporal Kuzmik testified at trial that they subsequently learned that Defendant's date of birth was actually September 19, 1969, and that he was forty-six, not thirty-six.

      Traditionally, a life sentence has been the functional equivalent of ninety-nine years.


text:
    Baltazar ORTIZ v. MEADWESTVACO CORPORATION, et al.
    18-869
    Court of Appeal of Louisiana, Third Circuit.
    June 5, 2019
   Charles J. Foret, Jason R. Garrot, Briney Foret Corry, LLP, P. O. Drawer 51367, Lafayette, LA 70505-1367, Telephone: (337) 237-4070, COUNSEL FOR: Defendant/Appellee - JV Industrial Companies, Ltd

David Ramsey Lestage, Lestage & Andrews, LLC, 113 North Washington, DeRidder, LA 70634, Telephone: (337) 460-7987, COUNSEL FOR: Defendants/Appellees - National Union Fire Ins. Company of Pittsburgh, PA and AIG Specialty Insurance Company

Robert Irwin Siegel, Gieger, LaBorde & Laperouse, 701 Poydras Street - Suite 4800, New Orleans, LA 70139-4800, Telephone: (504) 561-0400, COUNSEL FOR: Defendant/Appellee - AIG Specialty Insurance Company

Glen E. Mercer, Kourtney Twenhafel, Sally, Hite, Mercer & Resor, LLC, 365 Canal Street - Suite 1710, New Orleans, LA 70125, Telephone: (504) 566-8800, COUNSEL FOR: Defendant/Appellee - Steadfast Insurance Company

Alistair M. Ward, Gieger, LaBorde & Laperouse, 701 Poydras Street - Suite 4800, New Orleans, LA 70139-4800, Telephone: (504) 561-0400, COUNSEL FOR: Defendants/Appellees - Chartis Specialty Insurance Company and AIG Specialty Insurance Company

Noel Edward Warren, Jackson & Campbell, 1120 20th Street, N.W., Washington, DC 20036, Telephone: (202) 457-1600, COUNSEL FOR: Defendant/Appellee - National Union Fire Ins. Company of Pittsburgh, PA

David M. Bienvenu, Jr., John Allain Viator, Lexi T. Holinga, Melissa Jade Shaffer, Bienvenu, Bonnecaze, Foco, Viator & Holinga, APLC, 4210 Bluebonnet Boulevard, Baton Rouge, LA 70809, Telephone: (225) 388-5600, COUNSEL FOR: Defendant/Appellant - MeadWestvaco Corporation

Richard W. Bryan, Noel E. Warren, Jackson & Campbell, 1120 20th St, NW, #300 South, Washington, DC 20036-3437, Telephone: (202) 457-1600, COUNSEL FOR: Defendant/Appellee - National Union Fire Ins. Company of Pittsburgh, PA

Alton C. Todd, 312 Friendswood Drive, Friendswood, TX 77546, Telephone: (281) 992-8633, COUNSEL FOR: Plaintiff/Appellee - Baltazar Ortiz

Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and Phyllis M. Keaty, Judges.

THIBODEAUX, Chief Judge.

Employees of JV Industrial Companies, Ltd. (JVI) filed suit against MeadWestvaco Corporation (MWV) for personal injuries arising from their alleged exposure to a high concentration of H2 S gas and other dangerous chemicals while working in a MWV refinery. After settling these personal injury claims, MWV filed third-party demands against JVI and its insurers, Steadfast Insurance Company (Steadfast) and AIG Specialty Insurance Company (ASIC), seeking contractual indemnity and insurance coverage for the claims asserted against and settled by MWV. The parties then filed several motions for summary judgment.

The trial court granted summary judgment in favor of JVI, Steadfast, and ASIC, finding no contractual indemnity or insurance coverage, and dismissed MWV's claims against JVI and its insurers. In a supplemental judgment, the trial court granted MWV's motion for a new trial, but nevertheless still found MWV was not entitled to indemnity or to coverage under either insurance policy on various grounds and again dismissed, with prejudice, MWV's claims against JVI and its insurers.

Under our de novo review of the record, we find JVI, Steadfast, and ASIC are entitled to judgment as a matter of law on the issues of contractual indemnity and insurance coverage. Accordingly, we affirm the judgment of the trial court.

I.

ISSUES

MWV raises the following issues for this court's review:

(1) Is summary judgment erroneous because the District Court committed legal error in narrowly interpreting and applying MWV's indemnification inconsistent with the clear intent of the parties and without any adjudication of MWV's fault for the indemnified and insured JVIC employee claims?
(2) Is summary judgment erroneous because the District Court found MWV's settlement with the JVIC plaintiffs was for MWV's own fault and barred coverage under the provision in the Steadfast policy that excludes coverage for injury resulting "solely from negligence of the additional insured"?
(3) Is summary judgment legally erroneous because the District Court ignored disputed facts on whether the insured claim constitutes "pollution" and by applying Texas insurance law, as opposed to Louisiana law, to the pollution exclusion contained in the Steadfast policy[?]
(4) Is summary judgment erroneous because the District Court's interpretation of "Insured" in the ASIC policy is contrary to law and ignores an ambiguity in the definition of "Insured" that is required to be construed against ASIC?
(5) Is summary judgment erroneous because Steadfast and ASIC waived their "conditional" defenses under Louisiana insurance law by denying MWV's status as an insured and by not submitting any evidence showing the required prejudice to enforce coverage defenses based on notice, consent to settle and other conditions precedent?

II.

FACTS AND PROCEDURAL HISTORY

MWV operates a tall oil refinery and chemical manufacturing facility in DeRidder, Louisiana, where pine tree oil is fractionated into fatty acids and rosins, which are used as feedstocks for specialty chemicals. As part of a multi-million dollar Refinery Expansion Project, JVI was selected to perform weld overlay work in some of the refinery columns. In August 2007, MWV and JVI entered into a Construction Agreement (agreement) for the welding work to be performed by JVI at the refinery. From January 1, 2008 to January 1, 2009, JVI was insured by Steadfast pursuant to a Commercial General Liability Coverage policy bearing Policy Number BOG 9299883-07, and by ASIC pursuant to a Contractor's Pollution Liability Policy bearing Policy Number CPO 9984907. Under both policies, JVI was the Named Insured.

On March 13, 2009, Baltazar Ortiz, a JVI employee, filed suit against MWV, among other defendants, alleging that on or about April 27, 2008, Mr. Ortiz was exposed to a high concentration of H2 S gas and other dangerous chemicals during the course of JVI's work at the refinery. Seven other JVI employees, Shelton Doyle, Daniel Hendry, Shanna Navarre, James Scott, Brian Snyder, Stephen Snyder, and William Iles, filed similar suits against MWV and its insurers, likewise alleging exposure to a high concentration of H2 S gas and other noxious and dangerous chemicals during the course of JVI's work at the refinery, on or about April 27, 2008, June 11, 2008, or June 22, 2008. These plaintiffs did not bring claims against JVI or any of its insurers as JVI enjoys workers' compensation immunity. By July 6, 2012, MWV had settled all of the claims brought by the eight JVI employees.

On September 26, 2012, MWV then filed a third-party demand against JVI and Steadfast, seeking reimbursement and indemnity for the amounts MWV incurred in defending and settling the lawsuits, pursuant to Section 23 of the agreement, which provided, with emphasis added by this court:

To the fullest extent permitted by law, the Contractor shall indemnify, reimburse and hold harmless the Owner and Owner's agents, officers, directors and employees from and against all claims , damages, suits, liabilities, costs, charges, demands, losses and other expenses (including, but not limited to, attorney's fees) attributable to bodily injury, sickness, disease or death or to injury to or destruction of tangible property, including the loss of use resulting therefrom, arising out of or resulting in whole or in part from: (a) Contractor's performance of or failure to perform Contractor's obligations under the Contract; (b) the inaccuracy of any representation or warranty of Contractor contained in the Contract; or (c) any negligent act or omission of the Contractor , any Contractor's subcontractor or their respective employees, agents or other representatives or anyone else directly or indirectly employed by any of them or otherwise acting under any of their supervision or control, regardless of whether or not it is caused in part by a party indemnified hereunder. This obligation is in addition to any other right or obligation of indemnity to which the parties indemnified hereby may be entitled. In the event a loss or claim arises out of or is caused by the joint or concurrent negligence of both Company/Owner and Contractor, each party shall be responsible for its proportionate share of liability as determined by a court of competent jurisdiction. Notwithstanding any other term to the contrary herein, neither party shall have liability to the other nor to their parents, partners, subsidiaries, divisions and affiliates for any indirect or consequential damages including but not limited to down time, loss of capital, loss of product, loss of profit, or loss of use and such disclaimer shall be effective whether such claim is brought in contract, warranty, or tort, including negligence and strict liability or otherwise, except in the event and to the extent such damage is caused by the willful misconduct or gross negligence of a party.
In the event and to the extent that a claim is made by an employee of Contractor against an indemnitee hereunder, the intent of this Section 23 regarding Contractor's negligent act or omission is that Contractor shall, and it hereby agrees to, indemnify Owner, and Owner's agents, officers, directors and employees to the same extent as if the claim were made by a non-employee of Contractor. Accordingly, in addition to the above provisions, and in order to render the parties' intent and this indemnity agreement fully enforceable, Contractor, in any indemnification claim hereunder, hereby expressly and without reservation waives any defense and immunity it may have under any applicable Workers' Compensation Laws or any other statute or judicial decision, disallowing or limiting such indemnification and consents to a cause of action for indemnity.

Then on November 26, 2013, MWV filed a third-party demand against ASIC, likewise seeking to recover, as an insured party, expenses MWV incurred defending the suits. In response, the third-party defendants denied that MWV was entitled to indemnity under the agreement for its own voluntarily-assumed liability. The insurers further raised defenses to coverage under the terms and exclusions of their policies. JVI also filed cross-claims against its insurers, asserting, in the alternative, that it was entitled to insurance coverage for any liability it may owe to MWV.

The parties filed multiple motions for summary judgment on various issues associated with the insurance policies and the agreement. On July 9, 2014, the trial court heard the pending motions and issued its judgment on November 19, 2014, granting the third-party defendants' motions for summary judgment on the issues of indemnification and whether the agreement was an "insured contract" under the insurance policies. In its written reasons, the trial court concluded that JVI did not owe MWV indemnity or reimbursement under the agreement. The trial court further found that the agreement was not an "insured contract" as that term was defined in the insurance policies because JVI did not contractually assume MWV's tort liability. All claims of MWV against JVI and its insurers were dismissed, with prejudice.

On December 1, 2014, MWV filed a motion for new trial, arguing that dismissal of all its claims was erroneous because the judgment adjudicated claims that were either not decided by the trial court or were not before the court on pending motions for summary judgment. Finding its November 19, 2014 judgment was overly broad in dismissing all of MWV's claims with prejudice, the trial court amended its ruling with a supplemental judgment, signed on March 29, 2018, in which the court granted: (1) MWV's motions for new trial and for partial summary judgment regarding its status as an additional insured under the Steadfast policy; (2) Steadfast's motions for summary judgment on its policy's (a) pollution exclusion and (b) notice and consent to settle provisions; and (3) ASIC's motion for summary judgment regarding MWV's breach of conditions precedent to coverage. The trial court also denied MWV's motion for partial summary judgment regarding the insurers' waiver of all conditional defenses, declared all other pending motions moot, and again dismissed, with prejudice, MWV's claims against JVI, Steadfast, and ASIC.

In its reasons for judgment, the trial court found that the indemnity section was still unenforceable as JVI did not assume MWV's tort liability pursuant to the language of the agreement and MWV was seeking coverage and indemnity for its own fault. Though JVI did breach the agreement by not adding MWV as a "Named Insured" under its Steadfast policy, the trial court reasoned that MWV suffered no harm because the Steadfast policy, issued and contracted in Texas pursuant to its insurance law, had a pollution exclusion enforceable under Texas law, which was applicable given that (1) Louisiana's interest evaporated after the five Louisiana plaintiffs were dismissed in the underlying suit, and (2) Texas's interest in regulating its insurance industry outweighed Louisiana's interest.

Regardless, the trial court found MWV did not comply with the Steadfast policy's notice provisions, which entitled Steadfast to notice of claims "immediately" and "as soon as practicable," or the policy's unambiguous no-payment-without-consent provision. Moreover, even though MWV was an additional insured under the Steadfast policy, the trial court reasoned that, because neither Steadfast nor JVI were involved in the underlying litigation or participated in the settlement with the plaintiffs, allowing MWV to seek indemnity after unilaterally choosing to settle would result in an absurd consequence.

The trial court also concluded that MWV was not an insured under the ASIC policy which, under its unambiguous language, only covered losses resulting from the liability of its insured, JVI, whereas MWV

was seeking to recover for the settlement of its own liability. Nevertheless, the trial court reasoned that, even if MWV was insured under the ASIC pollution policy, MWV's breach of said policy's conditions precedent, i.e., "immediate notice" and consent to settle, precluded any coverage.

Finally, the trial court found no merit in MWV's argument that the insurers waived their notice and consent to settle defenses by denying coverage based on policy exclusions, reasoning that MWV's own argument presupposes that the insurer denied coverage and then the insured settled. By the time MWV notified the insurers, however, both Steadfast and ASIC already had vested late notice and consent defenses and, therefore, did not waive their rights to assert these defenses by denying coverage based on their policies' exclusions. As there was no way to know what the insurers may have done in the underlying litigation, the trial court also found MWV's argument as to the lack of a showing of prejudice on the part of the insurers meritless. Because MWV made the intentional choice not to put JVI or its insurers on notice of the plaintiffs' claims until after settlement, the trial court concluded that, even if Louisiana law would require a showing of prejudice to enforce these conditions precedent with these sophisticated insureds, prejudice was established.

III.

STANDARD OF REVIEW

An appellate court reviews a motion for summary judgment de novo, using the identical criteria that govern the trial court's consideration of whether summary judgment is appropriate. Samaha v. Rau , 07-1726 (La. 2/26/08), 977 So.2d 880. Therefore, just like the trial court, we are tasked with determining whether "the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law." La.Code Civ.P. art. 966(A)(3).

IV.

LAW AND DISCUSSION

The issues in this matter all revolve around the interpretation of the agreement between MWV and JVI as well as the insurance policies issued to JVI by Steadfast and ASIC, respectively. As contracts, our interpretation of these documents is governed, therefore, by the general rules of contractual construction.

According to these rules, our primary responsibility is to determine the parties' intent. La.Civ.Code art. 2045. We begin our analysis with the words of the contract, construing the words and phrases using their plain, ordinary, and "generally prevailing meaning," and ascribing technical terms with their "technical meaning." La.Civ.Code art. 2047. "Each provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole." La.Civ.Code art. 2050. "When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties' intent." La.Civ.Code art. 2046. Accordingly, such contracts must be enforced as written.

Nevertheless, if, after applying the general rules of contractual interpretation to an insurance contract, an ambiguity remains, the ambiguous contractual provision is generally construed against the insurer and in favor of coverage. Under this rule of strict construction, equivocal provisions seeking to narrow an insurer's obligation are strictly construed against the insurer. This strict construction principle applies, however, only if the ambiguous policy provision is susceptible to two or more reasonable interpretations; for the rule of strict construction to apply, the insurance policy must be not only susceptible to two or more interpretations, but each of the alternative interpretations must be reasonable.

Sims v. Mulhearn Funeral Home , Inc. , 07-54, p. 9 (La. 5/22/07), 956 So.2d 583, 589-90 (citations omitted).

Because the questions of interpretation and ambiguity at issue herein are legal in nature, they can be resolved on summary judgment. Id. Therefore, we turn now to an examination of the contractual provisions that we find are dispositive in this matter.

Indemnification

The basis of the present litigation is the indemnification MWV alleges it is owed from JVI and its insurers pursuant to the indemnity provision contained in Section 23 of the agreement. Though our interpretation is governed by the general construction rules recited above, courts strictly construe contracts "whereby the indemnitee is indemnified against the consequences of his own negligence ... , and such a contract will not be construed to indemnify an indemnitee against losses resulting to him through his own negligent acts unless such an intention is expressed in unequivocal terms." Perkins v. Rubicon, Inc. , 563 So.2d 258, 259 (La.1990). Like the trial court, we do not find that the indemnity section of the agreement here unequivocally states that JVI will indemnify or assume responsibility for injuries caused by MWV.

Admittedly, the first sentence does state that JVI "shall indemnify, reimburse and hold harmless" MWV "from and against all [tort] claims ... arising out of or resulting in whole or in part from: (a) [JVI's] performance of or failure to perform [JVI] obligations under the Contract; (b) the inaccuracy of any representation or warranty of [JVI] contained in the Contract; or (c) any negligent act or omission of [JVI] ... , regardless of whether or not it is caused in part by [MWV]." By its explicit terms, the first sentence requires JVI to indemnify MWV for any claims arising from JVI's negligence, even if MWV is partially at fault.

The third sentence, however, then negates any previous assumption of liability in providing that "[i]n the event a loss or claim arises out of or is caused by the joint or concurrent negligence of both [MWV] and [JVI], each party shall be responsible for its proportionate share of liability as determined by a court of competent jurisdiction." Under these terms, MWV would only be entitled to indemnification for claims arising out of JVI's share of liability. While this third sentence directly contradicts the first, it must, nevertheless, still be read in conjunction therewith, thus creating an equivocation as to the parties' intent regarding the extent of the indemnity obligation assumed. Strictly reading the first sentence in conjunction with the third, we cannot, therefore, find that the parties expressed, in unequivocal terms, an intent for JVI to indemnify MWV for MWV's own negligent acts or voluntarily assumed liability.

In their petitions, the plaintiffs sought damages solely for MWV's negligence. MWV settled those claims and then sought indemnity from JVI for its settlement and defense costs of over three million dollars. But under our law of comparative fault, MWV could only be liable to the plaintiffs for damages caused by its own negligence as La.Civ.Code art. 2323(A) provides:

In any action for damages where a person suffers injury, death, or loss, the degree or percentage of fault of all persons causing or contributing to the injury, death, or loss shall be determined, regardless of whether the person is a party to the action or a nonparty, and regardless of the person's insolvency, ability to pay, immunity by statute, including but not limited to the provisions of R.S. 23:1032, or that the other person's identity is not known or reasonably ascertainable.

It follows, therefore, that when MWV settled with the plaintiffs, MWV only compensated the plaintiffs for damages resulting from MWV's own negligence. Boykin v. PPG Indus., Inc. , 08-117 (La.App. 3 Cir. 6/18/08), 987 So.2d 838.

Thus, we find that JVI was under no obligation to indemnify MWV for the plaintiffs' tort claims against MWV. As a strict construction of the indemnification provision does not support MWV's claims for reimbursement of the costs it incurred in the settlement and defense of the lawsuits brought against it, we find JVI is entitled to judgment as a matter of law on the issue of indemnification.

Unlike the trial court, however, we find no need to address whether our interpretation of the indemnity provision would likewise preclude recovery under the insured contract provisions of the insurance policies because, even assuming, without so holding, that MWV could be entitled to coverage under either policy, we find that its admitted breach of the conditions precedent therein is dispositive of the remaining issues of coverage.

Conditions Precedent

Both the Steadfast and ASIC policies imposed duties upon an insured in the event of an occurrence, offense, claim, or suit. They also provided that a breach of these duties could preclude coverage at the insured's cost.

The Steadfast policy mandated that an insured "must see to it that we[, Steadfast,] are notified as soon as practicable of an 'occurrence' or an offense which may result in a claim." Moreover, if a claim was brought against "any insured," that insured had to "[i]mmediately record" the details and "[n]otify [Steadfast] as soon as practicable." The insured was also obligated to "see to it that [Steadfast] receive written notice of the claim or 'suit' as soon as practicable[,]" as well as "[i]mmediately send" copies of any relevant documents and "[c]ooperate with [Steadfast] in the investigation or settlement of the claim or defense against the 'suit'." The policy further stated that "[n]o insured will, except at the insured's own cost, voluntarily make a payment, assume any obligation, or incur any expense, ... without [Steadfast's] consent."

"As a condition precedent to the right of coverage provided by" the ASIC policy, an insured had to "give [ASIC] immediate notice of receipt of the Claim by the Insured ." The policy likewise mandated that the insured "cooperate with [ASIC] to the fullest extent possible" and forward relevant information to ASIC "as soon as practicable after receipt[.]" Under the policy, "[n]o Insured shall admit liability ... or, except at such Insured's own cost, voluntarily make any payment, assume any obligation, or incur any expense without [ASIC's] prior written consent."

Pursuant to these provisions, any insured seeking coverage under either policy was required to provide the insurer with immediate notice of any claim against the insured and could not voluntarily make any payment on a claim without the insurer's prior written consent.

The undisputed facts herein establish that eight employees of JVI filed suit against MWV beginning in March 2009, alleging bodily injury sustained during their work at the MWV refinery in April and June of 2008. By May 2008, MWV had received the certificates of insurance evidencing JVI's policies with Steadfast and ASIC. Nevertheless, MWV, as an admitted tactical strategy, proceeded to litigate and settle all of the claims by July 2012, without providing any notice to JVI, Steadfast, or ASIC. Steadfast only learned of the claims against MWV when MWV filed its third-party petition against JVI and Steadfast, on September 26, 2012, over three years after the filing of Mr. Ortiz's suit and two months after the settlement of all the plaintiffs' claims. ASIC did not learn of the claims until MWV filed its third-party demand against ASIC, on November 26, 2013, over four years after the filing of the first suit and over fourteen months after the settlements. Clearly, MWV did not comply with the conditions precedent recited above.

"Courts have generally reviewed compliance with insurance policy provisions as a condition precedent to recovery." Lee v. United Fire & Cas. Co. , 607 So.2d 685, 688 (La.App. 4 Cir. 1992). In Rosenthal v. Security Insurance Group of New Haven , 205 So.2d 816 (La.App. 1 Cir. 1967), an insured voluntarily paid a claim after his insurer denied liability and then sought recovery from the insurer for the amount he paid to settle the claim. The Rosenthal court held, however, that the insured was precluded from asserting a claim against the insurer because he had breached the consent-to-settle language in the insurance policy. Rejecting the insured's argument that the consent-to-settle language was contrary to public policy, the court explained:

It is obvious that the company is obligated to pay only those amounts which the insured is legally liable to pay. This liability must be determined either by a court or by the claimant, the company, and the insured jointly. There are no provisions of the policy under which the insured has any right to make any determination as to his own liability. His fear as to being the subject of a civil suit is groundless since the company is obligated to defend any suit filed against him, even though it be frivolous. We do not find that the defendant was dilatory in handling this claim or that, if it had been, such behavior would give plaintiff any ground for reimbursement if he independently made payment of a claim against him.
We agree with defendants that this is an action under the policy, and that the terms of the policy must control. There being no ambiguity therein, and nothing contrary to public policy having been brought to our attention, we find that any payment made by the insured whose liability has not been judicially determined, without the consent of his insurer, is not subject to be reimbursed by the insurer.

Id. at 817-18.

In the present matter, MWV admittedly did not even provide notice of the plaintiffs' suits to the insurers until after it settled all the claims against it. Thus, there is no dispute that the settlement was made without the insurer's notice and certainly not with their consent in breach of the clear and explicit language of the insurance policies.

Nevertheless, MWV argues that the conditions precedent should not be enforced as unambiguously written because the insurers allegedly waived such defenses by denying coverage and neither insurer provided evidence of prejudice. We, like the trial court, find both of these arguments meritless.

Louisiana courts have declined to enforce consent-to-settle and no-action clauses in certain situations, such as when (1) the insurer "wrongfully refuses to defend its insured,"

Arceneaux v. Amstar Corp. , 10-2329, p. 20 (La. 7/1/11), 66 So.3d 438, 452 ; or (2) the insurer "denies coverage where there is coverage, or unjustifiably delays settlement, forcing the insured to settle separately." Emile M. Babst Co., Inc. v. Nichols Constr. Corp. , 488 So.2d 699, 703 (La.App. 1 Cir. 1986). But in all these situations, the insurer was given notice and then denied coverage prior to settlement, which then freed the insured to settle without the insurer's approval. The facts of this case, though, are somewhat unique in that MWV made the tactical decision to not notify either JVI or its insurers until after MWV settled all the claims brought against it.

In arguing that the insurers both waived any defenses arising from MWV's undisputed breach of the conditions precedent by denying coverage after the settlements, MWV relies upon Thomas W. Hooley & Sons v. Zurich General Accident and Liability Insurance Company , 235 La. 289, 103 So.2d 449 (1958). However, we find MWV's reliance on Hooley is misplaced.

In Hooley , 103 So.2d at 452-53, the supreme court held:

Although most of the cases involved not only (as here) an unjustified denial of liability but also a specific refusal to defend an action brought against the insured, the reasoning therein as well as the equitable reasons therefor support the conclusion that by the mere denial of the insurer to its insured of any liability under the insurance policy for the damages claimed by a third person, the insurer forfeits its right to claim the benefits of the 'no action' clause, and the insured policyholder even in the absence of litigation may compromise the claim against him without prejudicing his right to recover from the insurer the amount of a reasonable and good faith settlement made by him. Especially when as here liability to the third person is unquestioned, and after a denial of coverage by the insurer the policyholder minimizes the loss and avoids the expenses of litigation by a reasonable compromise, the insurer should be unable to claim that reimbursement to its insured of damages clearly covered by the insurance contract is barred by such compromise which was to the ultimate benefit of the insurer.

Decades later, the supreme court in Arceneaux , 66 So.3d at 452, limited its holding in Hooley , explaining:

While Hooley did find a waiver of a policy provision by breach of the duty to defend, the provision was unrelated to coverage and related only to a preliminary matter dealing with the insurer's defense obligation. The narrow holding of Hooley cannot be extended to find waiver of other insurance contract provisions, particularly those related to coverage. Hooley simply stands for the proposition that where an insurer wrongfully refuses to defend its insured, the insured is free to settle the case against it without the insurer's approval.
Here, the trial court determined "it must fashion a remedy for redress of that breach which is commensurate with the breach of the duty to defend." However, that remedy, waiver of all policy defenses, is not supported by law. The result of the trial court's holding is judicial legislation, imposing a penalty on the insurer that is not provided for by the legislature and is in fact on top of penalties already provided by the legislature. The duty to defend is provided in the insurance contract; therefore, its breach is determined by ordinary contract law principles and the insurer is liable for the insured's reasonable defense costs. William Shelby McKenzie and H. Alston Johnson, III, Louisiana Civil Law Treatise: Insurance Law and Practice , Vol. 15, § 215, p. 614 (3rd Ed.2006). If the breach is found to be in bad faith, statutory penalties are imposed under La. R.S. 22:658 (now La. R.S. 22:1892 ). The remedy created by the lower courts in this case judicially imposes a result that would permit insureds to reap a windfall of potentially enormous profits, far beyond the natural consequences of the insurer's bad faith breach of the duty to defend, and far beyond the scope of the insurer's contractual undertaking.

As the trial court noted, the ruling in Hooley presupposes that the insurer was notified and then denied coverage prior to settlement. The insurers herein did not refuse to defend MWV, thereby forcing MWV to settle its claim without their approval. Rather, the insurers denied the claim while simultaneously asserting MWV's breach of the notice and consent conditions as a defense to coverage only after MWV had settled its claims without any notification to the insurers. No action was taken by the insurers that would warrant a waiver of their defenses arising from MWV's intentional breach of its obligations under the notice and consent provisions.

Regarding MWV's prejudice argument, we cite with approval the following reasoning adopted by the Fifth Circuit in Danrik Construction Incorporated v. American Casualty Company of Reading Pennsylvania , 314 Fed.Appx. 720, 724 (5th Cir. 2009) (quoting Motiva Enters., LLC v. St. Paul Fire & Marine Ins. Co. , 445 F.3d 381, 386-87 (5th Cir. 2006) ), in holding that an insurer suffered prejudice when its insured unilaterally settled a claim:

Assuming without deciding that an insurer must show prejudice to avoid its obligations under the policy when the insured breaches the consent-to-settle provision, based on the summary judgment evidence in this case, we are satisfied that National Union suffered prejudice as a matter of law. An insurer's right to participate in the settlement process is an essential prerequisite to its obligation to pay a settlement. When, as in this case, the insurer is not consulted about the settlement, the settlement is not tendered to it and the insurer has no opportunity to participate in or consent to the ultimate settlement decision, we conclude that the insurer is prejudiced as a matter of law. Under these circumstances the breach of the consent-to-settle provision in the policy precludes this action.

In the present case, neither Steadfast nor ASIC was notified or consulted about the underlying claims brought against MWV prior to the settlement. None of JVI's insurers were consulted about the settlement, which was not tendered to either of them. And neither insurer was given an opportunity to participate in, much less consent to, the ultimate settlement decision. Therefore, even if a showing of prejudice would be required, we agree with the trial court that Steadfast and ASIC were prejudiced, as a matter of law, by MWV's failure to notify either insurer of the plaintiffs' claims against MWV until years after the underlying claims were filed and months after the settlements were effected.

Accordingly, although courts have excused breaches of conditions precedent in other situations, we find, under the undisputed facts herein, MWV's unilateral decision to settle the underlying claims without any notice to the insurers precludes its ability to recover from either Steadfast or ASIC. As all other assignments of error are rendered moot by this holding, we pretermit their discussion and affirm the trial court's judgment (1) granting summary judgment in favor of the third-party defendants on the issues of indemnity and insurance coverage, and (2) dismissing, with prejudice, MWV's claims against JVI, Steadfast, and ASIC.

V.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed.

Costs of this appeal are assessed to the Defendant/Third-Party Plaintiff/Appellant, MeadWestvaco.

AFFIRMED.

      The eight plaintiffs are Baltazar Ortiz, Shelton Doyle, Daniel Hendry, Shanna Navarre, James Scott, Brian Snyder, Stephen Snyder, and William Iles. These plaintiffs also named as defendants: (1) SW&B Construction Company, LLC and/or KBR Holdings, LLC and/or KBR, Inc., "the general contractor that installed the device on the stack that would lose its vacuum causing the emission of noxious H2S [sic] fumes"; and (2) Total Safety U.S., Inc., the company "contracted to monitor the chemical emissions coming from the stack[.]" Only five of these plaintiffs were Louisiana residents.

      ASIC was formerly known as Chartis Specialty Insurance Company, which was formerly known as American International Specialty Lines Insurance Company. For simplicity, we will refer to the company as ASIC throughout this opinion.

      After filing its third-party demands, MWV sent "proof of loss" letters to Steadfast and ASIC and then amended its petition, seeking penalties and attorney's fees pursuant to La.R.S. 22:1973 and/or La.R.S. 22:1892 for Steadfast's and ASIC's alleged bad faith in failing to respond to MWV's "satisfactory proof of loss," which MWV alleged complied with all the requirements for notice due "under the terms of the insurance polic[ies] at issue."

      Steadfast sought summary judgment and dismissal of both MWV's and JVI's claims on several grounds, including the following: (1) pollution exclusion; (2) lack of bad faith; (3) insured contract provisions; (4) notice and consent to settle provisions; and (5) pre-tender costs, number of occurrences, and limits of available insurance. ASIC sought summary judgment and dismissal of both MWV's and JVI's claims on several grounds, including the following: (1) exclusion of coverage for injuries sustained by employee of named insured; (2) contractual liability exclusion; (3) lack of bad faith; and (4) breach of conditions precedent. MWV sought partial summary judgment (1) on the ground that the insurers waived all conditional defenses by denying coverage, and (2) as to its status as an "additional insured' under the Steadfast policy. JVI sought summary judgment on the ground that it owed no indemnity obligation to MWV for MWV's own liability, but in the alternative, JVI also filed cross-motions for summary judgment against Steadfast and ASIC on the issues of coverage.


author: SAVOIE, Judge.

text:
    STATE of Louisiana v. Donovan Paul SAMPY, et al.
    18-877
    Court of Appeal of Louisiana, Third Circuit.
    June 5, 2019 Rehearing Denied July 17, 2019
    Hon. Paul Joseph deMahy, Thompson Law Office, 2901 Johnston Street, Suite 301, Lafayette, Louisiana 70503, (337) 534-8761, COUNSEL FOR DEFENDANT/APPELLANT: American Surety Company
    Emilia Salas Pardo, Assistant District Attorney, Fifteenth Judicial District Court, Post Office Box 3306, Lafayette, Louisiana 70502-3306, (337) 232-5170, COUNSEL FOR PLAINTIFF/APPELLEE: State of Louisiana
    Donovan Paul Sampy, In Proper Person, 102 Townhome Loop, Lafayette, Louisiana 70501, COUNSEL FOR DEFENDANT/APPELLEE: Donovan Paul Sampy
    Court composed of Sylvia R. Cooks, Shannon J. Gremillion, and D. Kent Savoie, Judges.
   SAVOIE, Judge.

In this bond forfeiture case, American Surety Company (American) appeals the judgment of the trial court, finding American, as surety, liable for the full amount of the bond for criminal defendant Donovan Paul Sampy. For the following reasons, we reverse.

FACTS AND PROCEDURAL HISTORY

On February 2, 2017, American, a commercial surety company, issued a criminal bail bond for the release of Sampy in the amount of THIRTY THOUSAND DOLLARS ($ 30,000.00). An arrest warrant was issued for Sampy after he failed to appear before the court on October 16, 2017. Notice of the warrant for arrest was mailed on October 17, 2017. On May 14, 2018, the State filed a Petition for Rule to Show Cause why a bond forfeiture judgment should not be rendered because one hundred and eighty days had passed since the mailing of the notice of warrant for arrest and Sampy had not made an appearance. Attached to the petition was a bond undertaking in the amount of THIRTY THOUSAND DOLLARS ($ 30,000.00) dated February 2, 2017, naming as principal Donovan Paul Sampy and naming as surety Accredited Surety and Casualty Co. Also attached to the petition was the notice of arrest and a power of attorney executed by Act Right Bonds on behalf of American and signed by Defendant Sampy.

On August 28, 2018, Sampy made an appearance and accepted service for his pre-trial setting on November 8, 2018. This appearance was made outside the one hundred and eighty (180) days he was mandated to appear from the mailing of the notice of the warrant for arrest. The petition for bond forfeiture was placed on the August 30, 2018 criminal docket and was taken up on August 31, 2018.

After a hearing, the trial court rendered judgment in favor of the State and against Sampy, as principal, and American, as surety, for the full amount of the bond. American now appeals.

ASSIGNMENTS OF ERROR

1. The trial court erred when it rendered a judgment against American, whose name does not appear on the bail undertaking.
2. The trial court erred when it rendered a judgment against Donovan Sampy, who was not notified of the hearing date for the State's Petition to Forfeit Bond.
3. The trial court erred when it rendered a judgment against Donovan Sampy, who was in the custody of the Lafayette Parish Sheriff at the time of the hearing on the State's Petition to Forfeit Bond and not brought to Court for the hearing.
4. The trial court erred when it rendered a judgment against American Surety Company, as surety for Donovan Sampy, when Donovan Sampy was not notified of the hearing and was not brought to court for the hearing.

LAW AND DISCUSSION

I. Standard of Review

"When an issue raised on appeal posits a question of law, the standard of review is de novo wherein the appellate court determines whether the lower court was legally correct." State v. Peraza , 17-136, p. 3 (La.App. 3 Cir. 10/4/17), 227 So.3d 860, 861-62 (citing Tran v. Williams , 10-1030 (La.App. 3 Cir. 2/9/11), 56 So.3d 1224.

II. Assignment of Error Number One

American first complains that, because a different name was listed on the bond undertaking, it cannot be liable for the amount of the bond. The proof needed at a bond forfeiture hearing is listed in La.Code Crim.P. art. 336, which states:

A. The court at a contradictory hearing shall forfeit the bail undertaking and sign a judgment of bond forfeiture upon proof of all of the following:
(1) The bail undertaking.
(2) The power of attorney, if any.
(3) Notice to the defendant and the surety as required by Article 334.
(4) Proof that more than one hundred eighty days have elapsed since the notice of warrant for arrest was sent.

"When a party posts an appearance bond for release of a defendant pending criminal proceedings, a suretyship agreement with the state is created. This agreement creates a civil contract based on an act under private signature, breach of which will lead to a money judgment against the surety." State, City of Bossier v. Miller , 40,492, pp. 6-7 (La.App. 2 Cir. 1/25/06), 920 So.2d 408, 412. Louisiana Code of Civil Procedure Article 3038 states that suretyship "must be express and in writing."

The suretyship agreement in this case, i.e. the bond undertaking, is express and in writing, and it clearly lists Accredited Surety and Casualty Co. as the surety for Sampy. However, the Power of Attorney attached to the petition is executed by Act Right Bonds on behalf of American. American argues that this court may not look outside the four corners of the contract because it has not been destroyed, lost or stolen. Louisiana Civil Code Article 1832 provides that "[w]hen the law requires a contract to be in written form, the contract may not be proved by testimony or by presumption, unless the written instrument has been destroyed, lost, or stolen." The bail undertaking in this case must be in writing. See La.Code Crim.P. art. 328 and La.Code Civ.P. art. 3038. As such, we need not look beyond the bond undertaking. We agree.

Louisiana Civil Code Article 2056 states: "In case of doubt that cannot be otherwise resolved, a provision in a contract must be interpreted against the party who furnished its text. A contract executed in a standard form of one party must be interpreted, in case of doubt, in favor of the other party." American contends that the bond undertaking is a standard form contract prepared by the State and should, therefore, be construed against the State.

The State argues that, in accordance with La.Code. Crim.P. art. 328, the bail undertaking is not defective. Louisiana Code of Criminal Procedure Article 328 provides:

A. The bail undertaking shall:
(1) Be in writing.
(2) State the court before which the defendant is bound to appear.
(3) Be entered into before an officer who is authorized to take it.
(4) State a single amount of bail for each charge.
B. The bail undertaking shall be enforceable if the above requirements are met; and no officer may refuse to accept the posting of a bail undertaking and releasing a defendant on bail if the conditions set by this Title are met. A person shall not be discharged from his bail undertaking, nor shall a judgment of forfeiture be stayed, set aside, or reversed, nor the collection of any such judgment be barred or defeated by reason of any defect of form, omission of a recital, or of a condition of the undertaking, by reason of a failure to note or record the default of any defendant or surety, or because of any other irregularity. The bail undertaking shall run, subject to the provisions of Article 626, in favor of the state of Louisiana, or the city or parish whose ordinance is charged to have been violated, with the proceeds to be disposed of according to law. No error, inaccuracy, or omission in naming the obligee on the bail undertaking is a defense to an action thereon.

The State contends that the requirements of the bail undertaking have been met and it is, therefore, enforceable. In its brief in opposition, the State argues that "[t]here is no requirement within [La.Code Crim.P.] art. 328 that the surety be listed on the bail undertaking." However, we have already determined that the bond undertaking is a civil contract which must be in writing. "A contract is formed by the consent of the parties established through offer and acceptance." La.Civ.Code art. 1927. Without the proper parties listed in the contract, consent of the parties has not been established. As a result, the contract is not enforceable against a party not listed. See La.Civ.Code art. 2029. The State further contends that listing a different surety company is merely a defect or irregularity. We disagree. Party consent is a fundamental requirement of any contract, which could never be described as a mere defect.

The State also argues that "[a] judgment of bond forfeiture shall not be set aside because of the invalidity of the information required by the provision of this Article." La.Code Crim.P. art. 336(C). We find that provision applicable to a motion to set aside a final judgment, not the appeal of a trial court's judgment which is not yet final.

Ultimately, at issue before this court is a contract between the State of Louisiana and Accredited Surety and Casualty Co. Accredited Surety and Casualty Co. is not the named surety in the present bond forfeiture petition. Rather, the named surety company is American Surety Company. Under basic and fundamental principles of contract law, we cannot hold American Surety Company liable for this bond undertaking. We find merit in this assignment of error and reverse the ruling of the trial court.

III. Assignments of Error Numbers Two through Four

Based on the foregoing, we find that the arguments set forth by American in assignments of error numbers two through four are moot.

CONCLUSION

The judgment of the trial court is reversed.

REVERSED.