author: PER CURIAM WEIMER, J., additionally concurring.

text:
    STATE of Louisiana v. Glenn THOMPKINS a/k/a Glen Thompkins
    No. 2018-K-2104
    Supreme Court of Louisiana.
    June 17, 2019
   PER CURIAM

Writ granted; case remanded. Defendant received a 45-year sentence under the Habitual Offender Law for an obscenity conviction. While in no way downplaying the severity of his offense, we are constrained to find that the sentence violates the prohibition against excessive punishment.

To be sure, the court recognizes the offensiveness of the defendant's conduct and recognizes the state's statutory authority to pursue enhanced punishments for recidivists like defendant. Indeed, he deserved to be penalized for violating a law that serves the important purpose, in this context, of protecting a correctional officer as she performs her demanding and often very dangerous work.

However, the court also recognizes its duty to overturn sentences that, because of their disproportionate nature, inflict excessive retribution on the offender. See generally State v. Johnson , 97-1906 (La. 3/4/98), 709 So.2d 672 ; State v. Dorthey , 623 So.2d 1276 (La. 1993), see also , e.g. , State v. Mosby , 14-2704 (La. 11/20/15), 180 So.3d 1274.

Even though the punishment could have been merely a monetary fine (absent the habitual offender bill), defendant effectively received a life sentence, given his age and the lengthy term imposed. In terms of proportionality, other recidivists convicted of obscenity received comparable punishments for vastly more egregious conduct. Though defendant's conduct was offensive, a 45-year sentence is unconstitutionally excessive. See State v. Bonanno , 384 So.2d 355, 358 (La. 1980) ("To determine whether the penalty is grossly disproportionate to the crime we must consider the punishment and the crime in light of the harm to society caused by its commission and determine whether the penalty is so disproportionate to the crime committed as to shock our sense of justice." (citing State v. Beavers , 382 So.2d 943 (La. 1980) ). We therefore reverse the appellate court's judgment, vacate the 45-year sentence, and remand to the trial court for resentencing to a punishment that is not unconstitutionally excessive.

SENTENCE VACATED; CASE REMANDED .

WEIMER, J., additionally concurs and assigns reasons.

GUIDRY, J., would deny and assigns reasons.

CLARK, J., would deny.

WEIMER, J., additionally concurring.

I believe that the defendant in this matter should serve a lengthy sentence; however, the Louisiana Constitution prohibits the imposition of an excessive sentence. See La. Const. Art. I, § 20 ("No law shall subject any person to euthanasia, to torture, or to cruel, excessive, or unusual punishment.").

GUIDRY, J., dissents and assigns reasons.

I respectfully dissent from the majority's decision to grant this writ application and remand this matter to the district court for sentencing. I would not find the defendant's sentence unconstitutionally excessive in light of the facts of the present offense and the defendant's criminal history. Thus, I would find the district court did not abuse its wide sentencing discretion.

In this case, a Lafourche Parish jury found the defendant guilty of obscenity, a violation of La. R.S. 14:106(A)(1), for masturbating in the presence of a female corrections officer as she conducted a nightly security check in the cellblock where the defendant was housed awaiting trial. The court of appeal summarized the facts as follows:

On December 19, 2014, Officer Sheena Hill, a corrections officer at the Lafourche Parish Detention Center, was conducting her nightly security check when she came in contact with the defendant, an inmate at the facility. Officer Hill, as required of female officers, announced her presence by saying "female" or "female on the block" as she entered Block F, where the defendant was housed. Officer Hill testified that the purpose of the announcement is to alert an inmate that a female officer is approaching in order to allow them to get dressed or cover themselves to avoid exposure to the officer. The announcement was made approximately thirty feet from the third cell on the catwalk, where the defendant was located at the time (one cell over from the fourth cell where he was assigned). As she proceeded down the catwalk performing the security check, Officer Hill used a device called a guardian to scan inmate identification tags and report inmate activities. When Officer Hill approached cell three, the defendant was lying in bed two masturbating, with his penis exposed and a towel over his eyes. The defendant had a sheet hanging from the bunkbed, blocking the view of the other inmate in the cell, but allowing a full view from the catwalk. After Officer Hill addressed the defendant, he removed the towel from over his eyes, slightly held his head up to make eye contact with the officer, then put his head back down and continued masturbating. Officer Hill immediately used the guardian to document the defendant's activity as "Masturbating,"
and reported the incident to her lieutenant after completing her rounds.

State v. Thompkins , 18-0397, p. 1 (La. App. 1 Cir. 12/6/18), 2018 WL 6381909, pp. 2-3 (unpublished) (citing State v. Thompkins , 17-0210, pp. 2-3 (La. App. 1 Cir. 9/21/17), 232 So.3d 40, 40-41 ).

I do not find these facts significantly less egregious than those set forth in the cases cited by the majority. See Ante , p. 1253 n. 2. Indeed, the district court before even entertaining the State's habitual offender bill of information found the defendant's conduct serious enough to warrant the maximum sentence as a first offender, that is, three years at hard labor. See La. R.S. 14:106(G)(1). Moreover, it is the defendant's criminal history that results in the enhancement of his sentence under the habitual offender law, La. R.S. 15:529.1, and not necessarily the seriousness of the most recent offense. Here, the defendant was adjudicated a fourth or subsequent felony habitual offender in accordance with La. R.S. 15:529.1(A)(4)(a) (prior to amendment by 2017 La. Acts Nos. 257, § 1 and 282, § 1). This adjudication was based upon the following convictions:

Predicate #1 : February 27, 1997 guilty plea under 32nd Judicial District Court, Docket No. 261,280, to Second Degree Battery.
Predicate #2 : October 30, 1998 guilty plea under 17th Judicial District Court, Docket No. 308,111, to Possession of Cocaine.
Predicate #3 : May 4, 1999 guilty plea under 17th Judicial District Court, Docket No. 314,377, to Possession of Cocaine.
Predicate #4 : March 20, 2002 guilty plea under 17th Judicial District Court, Docket No. 364,121, to Distribution of Cocaine.
Predicate #5 : March 15, 2011 guilty plea under 17th Judicial District Court, Docket No. 492,385, to Possession of Cocaine.
Predicate #6 : December 3, 2015 guilty plea under 12th Judicial District Court, Docket No. 186,342, to Battery of a Correctional Officer.

See State v. Thompkins , 18-0397, p. 1 n. 1, 2018 WL 6381909, p. 2 n. 1.

The trial judge, as the court of appeal noted, found the defendant's sentence appropriate "considering the duration of his criminal history, the types of crimes that occurred with a minimum of a crime of violence and a weighted or heightened crime and a battery on a correctional officer ...." State v. Thompkins , 18-0397, p. 3, 2018 WL 6381909, p. 6. The trial judge further reasoned:

[B]asically in a 20 to 22-year period of time from the alleged offense date of the second degree battery in 1995 to today's date with approximately 22 years passing, there was only approximately two years during that entire time and maybe a little bit more, two years, maybe four months, during that entire period of time where [the defendant] was either not incarcerated as a result of a pending charge, or serving time on an executed sentence, or was paroled out of serving time on a sentence, or was under probation after receiving a sentence which resulted in his release and being placed on a probationary status.

State v. Thompkins , 18-0397, p. 3, 2018 WL 6381909, p. 7. Thus, the trial court considered the defendant's extensive criminal history when he determined the appropriate sentence, and not simply the circumstances of the defendant's most recent offense.

Under these facts, I would not find either that the trial court abused its sentencing discretion or that it imposed an unconstitutionally excessive sentence.

CLARK, J., would deny.

      After a Lafourche Parish jury found defendant guilty, the trial court sentenced him to the maximum term for a first obscenity offense: three years imprisonment at hard labor. The court of appeal affirmed, rejecting defendant's argument that the sentence was excessive. State v. Thompkins , 17-0210 (La. App. 1 Cir. 9/21/17), 232 So.3d 40. The state thereafter filed a habitual offender bill, and the trial court adjudged defendant a fourth or subsequent offender, resentencing him as such to 45 years imprisonment at hard labor. Although defendant does not now press this issue, it is also noted that the state delayed in pursuing this habitual offender sentence. The state waited until defendant had served all but two months of his original sentence to seek a sentence enhancement. Furthermore, only after defendant had completed his entire three-year sentence did the trial court hold the habitual offender hearing, at which time defendant objected to the state's delay. While the Habitual Offender Law does not specify a time within which the state must file a multiple bill, the state must do so "within a reasonable time after the prosecution knows that a defendant has a prior felony record." State v. Roberts , 588 So.2d 759, 762 (La. App. 4 Cir. 1991), writ denied , 591 So.2d 707 (La. 1992) (citing State v. Broussard , 416 So.2d 109 (La. 1982) ).

      For example, in State v. Lewis , 00-0053 (La. App. 4 Cir. 12/13/00), 776 So.2d 613, the defendant hid in an alleyway and exposed himself to a woman walking nearby. As she tried to pass, the defendant grabbed her, choked her, and pulled her to the ground. The victim fought and escaped. As she fled, the defendant stood watching her and masturbated, then chased her. The court of appeal found the maximum term of life imprisonment as a fourth offender was not excessive, given his conduct and criminal history.
      In State v. Waxter , 576 So.2d 569 (La. App. 4 Cir. 1991), the defendant was masturbating at the New Orleans Moonwalk, outdoors in mid-day, and in plain view of others-including sunbathers and people waiting for the streetcar. He was sentenced as a fourth offender to the minimum term of 20 years imprisonment at hard labor, which the court of appeal found not excessive.
      As described by the court below, the instant case involved no public exposure. Rather, this defendant engaged in lewd behavior in the presence of a female corrections officer. Thompkins , 17-0210, at 2-3, 232 So.3d at 40-41.

      La. R.S. 14:106(G)(1) provides that "[e]xcept as provided in Paragraph (5) of this Subsection, on a first conviction, whoever commits the crime of obscenity shall be fined not less than one thousand dollars nor more than two thousand five hundred dollars, or imprisoned, with or without hard labor, for not less than six months nor more than three years, or both."

      La. R.S. 15:529.1 (prior to amendment by 2017 La. Acts Nos. 257, § 1 and 282, § 1) provides in pertinent part:
      A. Any person who, after having been convicted within this state of a felony ... thereafter commits any subsequent felony within this state, upon conviction of said felony, shall be punished as follows:
      * * * *
      (4) If the fourth or subsequent felony is such that, upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life then:
      (a) The 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[.]


source: Caselaw Access Project

license: Public Domain

text:
    IN RE: Appeal of the DECISION OF the DISCIPLINARY BOARD NO. 18-PDB-098
    NO. 2019-OB-0589
    Supreme Court of Louisiana.
    June 17, 2019
    Not considered. Not timely filed. See Louisiana Supreme Court Rule XIX, § 30(C).


text:
    STATE of Louisiana v. Kendrick BOYD
    NO. 2018-K-1690
    Supreme Court of Louisiana.
    June 17, 2019
    Denied.


text:
    SUCCESSION OF Hazel R. SAVOIE and Richard Michael Savoie v. John H. CARMOUCHE, et al.
    NO. 2019-C-0548
    Supreme Court of Louisiana.
    June 17, 2019
    Denied.


author: WEIMER, J., recused.

text:
    LAFOURCHE PARISH WATER DISTRICT NO. 1 v. DIGCO UTILITY CONSTRUCTION, L.P., and Auger Services, Inc.
    NO. 2019-C-0577
    Supreme Court of Louisiana.
    June 17, 2019
    Denied.
   WEIMER, J., recused.

HUGHES, J., would grant.


author: GUIDRY, J., would grant.

text:
    STATE of Louisiana v. FINANCIAL CASUALTY AND SURETY
    State of Louisiana v. Harold Allen
    NO. 2019-K-0113
    Supreme Court of Louisiana.
    June 17, 2019
    Denied.
   GUIDRY, J., would grant.


author: JOHNSON, C.J., would grant.

text:
    STATE of Louisiana v. Eugene SHORT
    NO. 2019-KK-0381
    Supreme Court of Louisiana.
    June 17, 2019
    Denied.
   JOHNSON, C.J., would grant.

HUGHES, J., would grant.


text:
    Wade WHITE v. COX OPERATING, LLC
    NO. 2019-C-0617
    Supreme Court of Louisiana.
    June 17, 2019
    Denied.


text:
    James LAWSON v. ANCO INSULATIONS, INC., et al.
    NO. 2019-CC-0633
    Supreme Court of Louisiana.
    June 17, 2019
    Denied.


author: HUGHES, J., would grant.

text:
    STATE of Louisiana v. Willie DILLON
    NO. 2019-KK-0417
    Supreme Court of Louisiana.
    June 17, 2019
    Denied.
   HUGHES, J., would grant.


text:
    Daniel J. BERNAL, Jr. v. CRESCENT FOUNDATIONS, LLC and Paul C. Austin
    NO. 2019-C-0635
    Supreme Court of Louisiana.
    June 17, 2019
    Denied.


text:
    STATE of Louisiana v. Jarret Jean MCCASLAND
    NO. 2017-K-0823
    Supreme Court of Louisiana.
    June 17, 2019
    Not considered. See La.S.Ct.R. IX, § 6.
   JOHNSON, C.J., would consider the merits.

HUGHES, J., would consider the merits.


text:
    STATE of Louisiana v. Joshua EVERY
    NO. 2019-KK-0452
    Supreme Court of Louisiana.
    June 17, 2019
    Denied.


text:
    STATE of Louisiana v. Joshua EVERT
    NO. 2019-KK-0456
    Supreme Court of Louisiana.
    June 17, 2019
    Denied.


text:
    LOUISIANA MACHINERY RENTALS, L.L.C. and Louisiana Machinery Company, L.L.C. v. KEAN MILLER, L.L.P., Linda S. Akchin, Christopher J. Dicharry, Pamela R. Mascara and ABC Insurance Company
    NO. 2019-C-0464
    Supreme Court of Louisiana.
    June 17, 2019
    Denied.


text:
    Steven ACHORD, et al. v. DEPARTMENT OF FIRE
    NO. 2019-C-0506
    Supreme Court of Louisiana.
    June 17, 2019
    Denied.


text:
    STATE of Louisiana v. Napoleon GONZALEZ
    NO. 2019-KK-0657
    Supreme Court of Louisiana.
    June 17, 2019
    Denied.
   JOHNSON, C.J., would grant.

GUIDRY, J., recused.

HUGHES, J., would grant.


text:
    STATE of Louisiana v. Edward BENN and Ronald Cratchan
    NO. 2019-KK-0660
    Supreme Court of Louisiana.
    June 17, 2019
    Denied.
   JOHNSON, C.J., would grant.

HUGHES, J., would grant.

GENOVESE, J., would grant.


text:
    Brittany M. BOQUET v. Nicole L. BOQUET
    NO. 2019-C-0673
    Supreme Court of Louisiana.
    June 17, 2019
    Denied.


author: WEIMER, J., would grant.

text:
    Nicole DUBUCLET v. Skilar PIERRE
    NO. 2019-CJ-0861
    Supreme Court of Louisiana.
    June 17, 2019
    Denied.
   WEIMER, J., would grant.

GENOVESE, J., would grant.


text:
    IN RE: COMMITTEE ON BAR ADMISSIONS CFN-485651
    NO. 2019-BA-0894
    Supreme Court of Louisiana.
    June 17, 2019
    Denied. See Louisiana Supreme Court Rule XVII, § 4(C).


text:
    STATE of Louisiana v. Jena L. FERGUSON
    NO. 2019-KA-0108
    Court of Appeal of Louisiana, Fourth Circuit.
    JUNE 12, 2019
   Leon A. Cannizzaro, District Attorney, Donna R. Andrieu, Assistant District Attorney, Irena Zajickova, Assistant District Attorney, 619 South White Street, New Orleans, LA 70119, COUNSEL FOR APPELLANT

Aaron Zagory, ORLEANS PUBLIC DEFENDERS, 2601 Tulane Avenue, Suite 700, New Orleans, LA 70119, COUNSEL FOR DEFENDANT/APPELLEE

(Court composed of Chief Judge James F. McKay, III, Judge Edwin A. Lombard, Judge Rosemary Ledet )

Judge Edwin A. Lombard The State appeals the district court judgment granting the defendant's motion to quash. After review of the record in light of the applicable law and arguments of the parties, the judgment of the district court is reversed.

Relevant Facts and Procedural History

On September 22, 2015, the State filed a bill of information charging Ms. Ferguson with two counts of theft: Count I charged Ms. Ferguson with theft in an amount "less than fifteen hundred dollars" belonging to Philip Cooper with the intent to permanently deprive Mr. Cooper of said property;" and Count II charged Ms. Ferguson with theft in an "amount less than fifteen hundred dollars belonging to Total Community Action Credit Union (TCACU) with the intent to permanently deprive TCACU of said property. No bill of particulars was requested or filed.

At her arraignment on November 9, 2015, Ms. Ferguson pleaded not guilty. She filed the motion to quash the bill of information on August 14, 2018. On August 31, 2018, after a hearing, the district court found that based on the undisputed facts in the case and citing La. Code Crim. Proc. art. 532(A)(8), it lacked the jurisdiction to resolve the matter which was, in essence, a civil contract dispute. Pursuant to the jurisprudence in New Orleans Jazz and Heritage Found., Inc. v. Kirksey , 2009-1433, p. 13 (La. App. 4 Cir. 5/26/10), 40 So.3d 394, 403, the district court found that Ms. Ferguson had no personal liability for the legal obligations of Knowledge Speaks, the company to which the Coopers paid the deposit.

The State appeals this judgment.

Standard of Review

The decision by a district court to grant or deny a motion to quash is "solely a question of law" and, therefore, reviewed de novo . State v. Ancalade , 14-0739, p. 10 (La. App. 4 Cir. 1/14/15), 158 So.3d 891, 897 (citation omitted). When reviewing de novo , this court does not defer to any factual findings made by the district court." Id.

Applicable Law

The motion to quash is a procedure by which to raise pre-trial defenses that do not go to the merit of the charge. State v. Petitto , 10-0581, p. 4 (La. 3/15/11), 59 So.3d 1245, 1248. "[F]actual defenses going to the merits of the charge are not proper grounds to be considered when deciding a motion to quash." State v. Landry , 13-1030, p. 5 (La. App. 4 Cir. 5/7/14), 144 So.3d 1078, 1082. Accordingly, a district court may not make any factual determinations. Id. Instead, "the district court accepts as true the facts contained in the indictment or bill of information and in the bill of particulars, and determines as a matter of law and from the face of the pleadings, whether a crime has been charged." State v. Petitto , supra .

Ms. Ferguson was charged under La. Rev. Stat. 14:67(A), which provides:

Theft is the misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations. An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential.

Discussion

This case is in pre-trial posture and there no trial testimony or evidence contained in the record. Nonetheless, the district court based its ruling on the "undisputed facts" of the matter, summarized in the written ruling as follows:

1. On August 7, 2014, the Cooper family paid a deposit to Knowledge Speaks in the amount of $7,276.43 to be applied to a mission trip to the Philippines for students of McDonough 35 and their parents.
2. Knowledge Speaks is a separate juridical entity of which the Defendant, Jena Ferguson, is the principal.
3. The Coopers decided not to go on the trip and requested a refund from the defendant, the principal of Knowledge Speaks.
4. The Defendant sent a letter to the Cooper family stating a refund was forthcoming.
5. A partial refund was made to the Cooper family and there is an outstanding balance due of $3,254.08.
6. Knowledge Speaks applied for and received grant funds for the mission trip from The Industrial Bank of Washington D.C. and those funds were transmitted to Knowledge Speaks by Total Community Action Federal Credit Union on May 29, 2014.

The district court also noted that [t]here is no dispute that the deposit and grant funds underlying the defendant's charge under La. [Rev. State.] 14:67 were paid by both the Coopers and The Industrial Bank of Washington D.C. through Total Community action Federal Credit Union to the entity Knowledge Speaks and not to the defendant directly." Observing that the general rule about a principal's legal liability is that "a shareholder, officer, or employee of a corporation is not liable for the conventional or legal obligations of a corporation" (with citation to New Orleans Jazz and Heritage Found, Inc. v. Kirksey , 2009-1433 (La. App. 4 Cir. 5/26/10), 40 So. 3d 394, 403 ) the district court found that "since the defendant was the principal of Knowledge Speaks, she has no personal liability for the legal obligations of the entity" and, accordingly, it was a civil matter and criminal district court had no jurisdiction over the matter.

The district court's analysis of the substantive issue of the defendant's criminal liability in this matter appears credible but premature. Pursuant to Landry and Petitto, supra , the district court must accept as true the facts contained in the indictment or bill of information and in the bill of particulars and rule and base its ruling on these pleadings and, further may not make factual determinations or base its ruling on affirmative defenses to the charge.

The pleadings in this case (which do not include the undisputed facts relied upon by the district court) do not provide a basis for granting the defendant's motion to quash and, therefore, the district court ruling is erroneous. Because the district court clearly relied upon factual defenses raised by the defendant as to the merit of the charge, the district court erred in granting the motion to quash.

Conclusion

The district court judgment is reversed and this matter is remanded to the district court for further proceedings.

REVERSED AND REMANDED.

LEDET, J., CONCURS IN THE RESULT

      La. Code Crim. Proc. art. 485 provides that when it appears from the bill of particulars that the offense charged in the indictment was not committed by the defendant charged, a district court may on its own motion or the motion of the defendant quash the indictment.

      La. Code Crim. Proc. art. 532(8) provides that a motion to quash may be granted when "[t]he court has no jurisdiction over the offense charged."


author: Judge Edwin A. Lombard

text:
    Kathleen PADIAN, as the Independent Administratrix of the Estate of Adrian L. Morgan v. ALGIERS CHARTER SCHOOL ASSOCIATION, INC.
    NO. 2019-CA-0201
    Court of Appeal of Louisiana, Fourth Circuit.
    JUNE 19, 2019
    Anthony J. Milazzo, Jr., Charles V. Giordano, HEBBLER & GIORDANO, LLC, 3501 N. Causeway Blvd., Suite 400, Metairie, LA 70002 COUNSEL FOR PLAINTIFF/APPELLANT
    Mark R. Beebe, Elizabeth A. Roussel, Taylor E. Brett, ADAMS AND REESE LLP, 701 Poydras Street, Suite 4500, New Orleans, LA 70139 COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Chief Judge James F. McKay, III, Judge Edwin A. Lombard, Judge Rosemary Ledet )
   Judge Edwin A. Lombard

This appeal is from the district court judgment granting summary judgment in favor of the defendant, Algiers Charter School Association, Inc (ACSA). After de novo review we affirm the judgment of the district court.

Relevant Facts and Procedural History

The plaintiff, Kathleen Padian is the Independent Administratix of the Estate of Adrian L. Morgan. Mr. Morgan was employed by ACSA from August 1, 2012, until he was discharged on January 22, 2016. He died shortly thereafter on March 31, 2016. It is undisputed that Morgan worked under two successive yearly contracts (2012-2013 and 2013-2014) from July 30, 2012, until June 30, 2014. The parties were unable to agree to a new contract for the year 2014-2015 and, in September 2014, mutually agreed to extend the 2013-2014 contract for a year. Mr. Morgan continued to work into the 2015-2016 school term without a contract and, thus, there was no contract in place when he was terminated in January 2016.

On January 18, 2017, the plaintiff filed a petition for breach of contract and damages against ACSA, alleging that in terminating Mr. Morgan without cause and failing to adhere to the termination protocols in his expired contract, ACSA breached Mr. Morgan's employment agreement.

ACSA answered the lawsuit on February 7, 2017. After a period of discovery, ACSA filed the instant motion for summary judgment on June 4, 2018. The plaintiff's opposition was filed on August 9, 2018. ACSA filed a reply memorandum on October 19, 2018. The district court granted summary judgment on November 7, 2018.

The plaintiff timely filed this devolutive appeal.

Applicable Law

Summary Judgment

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant.

Beer Indus. League of Louisiana v. City of New Orleans , 2018-0280 (La. 6/27/18), 251 So. 3d 380, 385-86. It is designed to secure the just, speedy, and inexpensive determination of civil actions (with the exception of certain domestic matters) and is favored under Louisiana law. La. Code Civ. P. art. 966(A)(2). Summary judgments are reviewed de novo on appeal, using the same criteria governing the initial district court determination as to whether summary judgment is appropriate; i.e., whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. Wright v. Louisiana Power & Light , 2006-1181 (La. 3/9/07), 951 So.2d 1058, 1070. Summary judgment must be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law." La. Code Civ. Proc. art. 966(B).

On motion for summary judgment, the burden of proof remains with the movant. When the moving party will not bear the burden of proof on the issue at trial and points out that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense, then the burden is on the non-moving party to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the opponent of the motion fails to do so, there is no genuine issue of material fact and summary judgment is appropriate as a matter of law. La. Code Civ. Proc. art. 966(D)(2).

Elements of Breach of Contract Claim

The essential elements of a breach of contract claim are (1) the existence of a contract; (2) the party's breach thereof; and (3) resulting damages. 110 South Jefferson Davis Parkway, LLC v. Williams, 2014-1326, p. 5 (La. App. 4 Cir. 5/20/15), 165 So.3d 1211 (citation omitted).

Employment at Will

There is a presumption that employment is at-will and, accordingly, the party seeking damages under an alleged contract of employment for a limited term bears the burden of proving he had a meeting of minds with [the other party] on the terms of employment. Read v. Willwoods Cmty, 2014-1475, p. 5 (La. 3/17/15), 165 So.3d 883, 887 (citation omitted). "When a contract does not provide for a limited term, an employer can dismiss an employee at any time and for any reason without incurring liability." Id. at 4.

The Motion for Summary Judgment

In its motion for summary judgment, ACSA acknowledges that Mr. Morgan was employed under three succeeding yearly contracts but points out that the last one expired on June 30, 2015, making Mr. Morgan an at-will employee at the time of his termination in January 2016. Concomitantly, ACSA asserts that the plaintiff will not be able to prove that Mr. Morgan was employed under a contract specifying that he could only be terminated for cause or be able to prove the existence of any contract requiring ACSA to follow any protocol in terminating Mr. Morgan's employment contract.

In support of its motion, ACSA submits the following exhibits:

(1) An affidavit by Joseph Hugg, a former member of ACSA Board of Trustees, stating that upon expiration of Mr. Morgan's employment contract in June 2015, Mr. Morgan and ACSA began negotiating a new contract but were unable to come to terms, primarily because they were unable to reach an agreement as to the specific performance objectives to be achieved by Mr. Morgan under the contract. As such there was no written agreement between Mr. Morgan and ACSA after June 30, 2015, or at the time of his termination.
(2) An affidavit by Tansy Magendie, Executive Director of Human Resources, stating that she is familiar with Mr. Morgan's personnel records and that on July 9, 2014, she emailed Mr. Morgan to confirm whether he had entered into a contract with ACSA for the 2014-2015 year. He responded that there was no new contract yet. Subsequently, Mr. Morgan reached an agreement to extend the 2013-2014 contract for an additional year as reflected in an email exchange on September 26, 2014. Ms. Magendie states in her affidavit that although the email of September 26, 2014, indicates that Mr. Morgan and ACSA contemplated a further contract beyond June 2015, the parties never signed another contract and that she was unaware of any documentation establishing that ACSA agreed to employ Mr. Morgan for any specified term after June 30, 2015, or specified the terms of Mr. Morgan's employment after that date. Attached to Ms. Magendie's affidavit are both emails, Mr. Morgan's Supervisor Exit Form, the Benefits Section of the ACSA Employee Handbook, and Mr. Morgan's final pay statement dated January 29, 2016.
(3) In excerpts from his deposition testimony, John B. Edwards, a member of the ACSA Board of Trustees involved in Mr. Morgan's termination, states that Mr. Morgan was terminated by the Board for reasons of poor academic performance, bad organizational management, bad personnel management, and the lack of transparency and communication with the Board.
(4) In excerpts of his deposition testimony, Colin Brooks, another ACSA Board member, states that the decision to terminate Mr. Morgan, who was not under contract, was made by the Board with advice from counsel. Mr. Brooks also related that although Mr. Morgan authored the entire statement released to the press on January 13, 2016, regarding his departure, Mr. Morgan subsequently changed his mind about resigning so that he was terminated at an ACSC Board meeting that took place January 22, 2016.

The Plaintiff's Response to the Motion for Summary Judgment

In opposition to the motion for summary judgment, the plaintiff argues that a contract existed between Mr. Morgan and ACSA at the time of his termination, that he was not an at-will employee, that ACSA did not follow the termination procedure required within the existing contract, and that the ACSA breached the employment agreement with Mr. Morgan, entitling the plaintiff to unpaid compensation benefits and damages. In support, the plaintiff attaches the following exhibits:

(1) The full deposition testimony of Colin Brooks
(2) The 2012-2013 school year contract between ACSA and Mr. Morgan.
(3) The 2013-2014 school year contract between ACSA and Mr. Morgan.
(4) A draft of a press release dated February 28, 2013, regarding the one year extension of the 2013 contract "with the option of negotiating additional extensions."
(5)An email dated September 26, 2014, from Mr. Morgan stating that the agreed upon contract extension would be for one year with a new contract to be negotiated for the 2015-2016 year beginning July 1, 2015
(6) CEO evaluation quantitative metrics sheets comparing school performances for 2012-2013 and 2013-2014.
(7) An email dated May 18, 2015, between Board members D'Juan Hernandez and Colin Brooks discussing the 2015 CEO evaluation report.
(8) An email dated May 20, 2015, from Colin Brooks to other Board members discussing the agenda for that evening's CEO Evaluation Committee meeting with attached documents.
(9) A follow-up email from Colin Brooks to other Board members dated May 21, 2015 regarding an agreed upon revision to the CEO evaluation (attached to the email) with a note that it would be presented to Morgan at the May 28, 2015, board meeting.
(10) An email from Colin Brooks to Joe Hugg dated May 21, 2015, with references to the 2012-2013 and 2013-2014 employment agreements, the commitment letter Mr. Morgan sent to Brooks on March 27, 2013, and the related press release.
(11) An email from Joseph Hugg to Colin Brooks dated January 3, 2016 discussing the proposed termination of Mr. Morgan.
(12) The agenda and Board meeting notes regarding Mr. Morgan's employment with ACSA.
(13) Mr. Morgan's Supervisor Exit Form dated January 22, 2016, indicating that Mr. Morgan was departing as a result of an involuntary termination of at-will employment.
(14) Mr. Morgan's final pay statement for pay date January 29, 2016.
(15) ACSA's Answers to the plaintiff's Interrogatories.

Discussion

In this case, ACSA will not bear the burden of proof at trial and, thus, needed only to point out an absence of factual support for one or more elements essential to plaintiff's claim in its motion for summary judgment. ACSA demonstrate that there is no factual support for the plaintiff's claim that a contract existed between Mr. Morgan and ACSA, an essential element of the plaintiff's breach of contract claim. Notable in the plaintiff's opposition to summary judgment is the absence of anything to support the plaintiff's claim that a contract existed between Mr. Morgan and ACSA for the 2015-2016 school year and that he was not an at-will employee at the time of his termination.

The plaintiff's claim that Mr. Morgan's expired contract "reconducted" under the Teacher Tenure Act is without merit because it is generally conceded that the Teacher Tenure Act is applicable only to public schools and, thus, inapplicable to ACSA. Even accepting arguendo that the Teacher Tenure Act is applicable to ACSA, the plaintiff failed to introduce evidence that Mr. Morgan was a teacher within the meaning of the Act or that he had previously acquired the tenure protections provided by the Act, i.e. , there was no evidence submitted by the plaintiff indicating that Mr. Morgan, as CEO of ACSA, was an employee of a public school or program administered by a special school district, that he helds a teacher's certificate, and that his employment as CEO of ACSA required a teacher's certificate.

Accordingly, the plaintiff did not meet its burden to show that she would be able to prove all of the essential elements of the breach of contract claim at trial. Therefore, ACSA is entitled to summary judgment as matter of law.

Conclusion

After de novo review, we affirm the district court judgment granting summary judgment in favor of the defendant, ACSA.

AFFIRMED.

      In September 2014, unable to reach mutually agreeable terms for a new contract, the parties agreed to a one year extension of Mr. Morgan's 2013-2014 contract. As Mr. Hugg observes, this contract extension expired in June 2015.

      La. Rev. Stat. 17:441 et seq.


text:
    Neville KIRT; Alvin Kirt; and Lamont Kirt, Individually and on Behalf of Elaine Kirt, Deceased v. Rebecca C. METZINGER, M.D.; Theodore D. Strickland, III, M.D.; Administrators of the Tulane Educational Fund d/b/a Tulane; Pauline Taquino, CRNA; Gayle Martin, CRNA; Parish Anesthesia Associates, Ltd, a Professional Medical Corporation
    NO. 2019-CA-0180
    Court of Appeal of Louisiana, Fourth Circuit.
    JUNE 19, 2019
   Jeffrey A. Mitchell, Hugo L. Chanez, THE COCHRAN FIRM, 3850 N. Causeway Blvd., Suite 1500, Metairie, LA 70002, COUNSEL FOR PLAINTIFFS/APPELLANTS

C. William Bradley, Jr., Benjamin J. Biller, BRADLEY MURCHISON KELLY & SHEA, LLC, 1100 Poydras Street, Suite 2700, New Orleans, LA 70163, COUNSEL FOR DEFENDANTS/APPELLEES

(Court composed of Judge Terri F. Love, Judge Roland L. Belsome, Judge Sandra Cabrina Jenkins )

Judge Roland L. Belsome In this medical malpractice action, the trial court granted exceptions of prescription dismissing all claims against the defendants, Parish Anesthesia of Tulane, LLC ("Parish"), Pauline Taquino, CRNA ("Nurse Taquino"), and Gayle Martin, CRNA ("Nurse Martin") (collectively "Defendants"), based on the Plaintiffs' failure to comply with statutorily required filing fees under the Medical Malpractice Act ("MMA"). La. R.S. 40:1237.1 et seq. For the reasons that follow, the trial court's ruling is affirmed.

Facts and Procedural History

The medical malpractice suit arose out of medical treatment rendered by the defendants to Elaine Kirt on April 8, 2010, and Ms. Kirt's subsequent death on September 28, 2010. On September 23, 2011, Ms. Kirt's sons ("Plaintiffs") filed a request for formation of a medical review panel. Initially, three defendants were named in the request. In response, on October 4, 2011, the Louisiana Patient's Compensation Fund ("PCF") sent the Plaintiffs a letter acknowledging the receipt of the request and informing them that the three named defendants were qualified healthcare providers and that in accordance with La. R.S. 40:1299.47 (A)(1)(c) [now 40:1231.8(A)(1)(c) ] a filing fee of $100 per qualified defendant ($300) was due within forty-five (45) days.

Subsequently, on October 17, 2011, the Plaintiffs, through counsel, sent correspondence seeking the addition of two defendants to the original request. Those defendants were identified as "Ms. Pauline Taquino CAN; and Unidentifiable CRNA." Enclosed with that correspondence was a check in the amount of $500.00 to cover the statutory required filing fees for the four named and one unidentified defendant. Following that correspondence, the PCF sent a letter dated October 31, 2011, to acknowledge the receipt of the request for a medical review panel. The letter also stated that the request was being returned for the "[f]ailure to provide the full name of the (Unidentifiable Nurse) defendant health care [sic] provider."

Then, on November 17, 2011, Plaintiffs' counsel sent correspondence asserting that the name of the unidentified nurse was still unknown. The correspondence also requested that "Parish Anesthesia, which on information and belief employed the Unidentified CRNA" be added to the medical review panel request. The PCF responded by letter dated December 2, 2011, with an acknowledgement of the November 17, 2011 letter and identified Parish Anesthesia as a qualified healthcare provider and noted that that verification on Nurse Taquino was being obtained. By letter dated March 2, 2012, Plaintiffs' counsel identified the unidentified nurse as Gayle Martin.

On March 21, 2012, the PCF sent verification that Pauline Taquino and Gayle Martin were qualified healthcare providers. That correspondence further stated:

In accordance with LA R.S. 40:1299.47.A.(1)(c) [now 40:1231.8(A)(1)(c) ] a filing fee of $100 per qualified defendant is due within 45 days of the postmark of this notice. Please remit a payment to the Patient's Compensation Fund in the amount of $100.00. This filing fee may only be waived upon receipt of an affidavit from a physician or a district court's forma pauperis ruling as set forth in LA R.S. 40:1299.47A [now 40:1231.8(A)(1)(d) ]. Failure to comply shall render the request invalid and without effect and the request shall not suspend the time within which suit must be instituted. [emphasis in original].

The next correspondence from the PCF is dated May 17, 2012. That letter informed the Plaintiffs that the outstanding $100.00 filing fee had not been received within the forty-five (45) day deadline. Therefore, the letter stated, the failure to comply with the statutory filing fee deadline rendered the case "invalid and without effect as to Gayle Martin."

The matter proceeded to a medical review panel and a petition for damages was filed in the district court. A motion for summary judgment was granted, dismissing the initial three defendants named in the request for medical review panel. Thereafter, exceptions of prescription were filed for the remaining three defendants, Nurse Taquino, Nurse Martin, and Parish. The trial court granted the exceptions and dismissed the claims against those named defendants. This appeal followed.

Standard of Review

Appellate courts assess the legal correctness of an exception of prescription under a de novo standard review. See Wells Fargo Financial Louisiana, Inc. v. Galloway , 2017-0413, p. 8 (La.App. 4 Cir. 11/15/17), 231 So.3d 793, 800. However, issues of fact relating to an exception of prescription are reviewed under a manifest error standard. Love v. Certain Underwriters at Lloyd's London , 2017-0794, p. 3 (L.App. 4 Cir. 3/21/18), 241 So.3d 1121, 1123 (citing Halliburton Energy Servs., Inc. v. Bossier Par. Bd. of Review , 50,734, 50,735, pp. 2-3 (La.App. 2 Cir. 8/10/16), 200 So.3d 385, 386 ).

Discussion

On appeal, the Plaintiffs maintain that the trial court erred in granting the defendants' exceptions of prescription over the failure to pay the full filing fee required by the PCF. More specifically, the Plaintiffs contend that, as shown by the PCF's May 17, 2012 correspondence, their request for a medical review panel was perfected against all defendants except Nurse Martin and therefore, prescription was suspended in accordance with the La. R.S. 40:1231.8(A)(2)(a) of the MMA. We disagree.

Pursuant to La. R.S. 40:1231.8(A)(2)(a), a timely filed perfected request for a medical review panel suspends the one-year prescriptive period until ninety (90) days after the notification of the issuance of the medical review panel's decision.

La. R.S. 1231.8(A)(1) sets forth the manner in which a claimant must submit a request for a medical review panel. Specific to the issue before this Court, the statute provides for strict deadlines associated with the mandatory filing fees. La. R.S. 1231.8(A)(1)(c). Subparagraph (c) mandates that the claimant pay a filing fee of $100 for each named defendant within forty-five (45) days of receiving confirmation of the request for review. The penalty, if a claimant fails to comply with the deadline for the payment of the filing fees, is that the request for review of a malpractice claim is rendered invalid and without effect. La. R.S. 1231.8(A)(e).

The issue presented in this appeal is whether the request for a medical review panel can be perfected as to some of the named defendants, but not all, when the filing fees were not paid in full. This Court has recently addressed the same issue in Medical Review Complaint by Downing , 2018-1027 (La.App. 4 Cir. 5/8/19), 272 So.3d 55, 2019 WL 2033947. In Downing , the Downing Family named a total of ten (10) qualified healthcare providers. There was a combination of private providers and State providers that required payments to separate agencies. The full filing fee owed to the PCF was $500.00, but only $300.00 was remitted timely. Then, the PCF notified the Downing Family that the untimely remittance of the remaining $200.00 rendered the request for a medical review panel invalid as to two specific providers, suggesting that the request was timely perfected as to the other three providers. Id.

On appellate review, this Court found that the statutory provisions of La. R.S. 40:1231.8 mean that a claimant's failure to pay the full filing fee invalidates the request as to all providers regardless of the PCF's correspondence indicating otherwise. Specifically, this Court held:

The jurisprudence, ..., has construed the statutory provision to mean that if a claimant fails to pay the "full filing fee" within the applicable 45-day period to the appropriate administrative agency, the entire request for review panel is invalid and without effect as to all the providers.
[In re] Rideaux , 2013 WL 811628, *2 [ (La.App. 3 Cir. 2013) ]. The PCF, ..., lacks the authority to designate the particular providers to whom a partial fee applies; rather, the PCF's duties are ministerial and clerical. See In re Elliott , 06-1440, p. 10, n. 4 (La. App. 3 Cir. 4/9/08), 980 So.2d 881, 887 (observing that "[t]he DOA and the PCF stand by analogy as the clerk of court of the judicial district").
Downing , 272 So.3d at 65, 2019 WL 2033947, **16-17.

As in this case, the amount submitted as payment to the PCF in Downing was insufficient to cover all named defendants and this Court upheld the trial court's determination that the request was invalid and without effect as to all defendants and therefore, prescription was not suspended. On this issue, we find the instant case to be factually analogous to Downing . Accordingly, the trial court's granting of the defendants' exceptions of prescription is affirmed.

AFFIRMED

      The initial request was made pro se .

      The original three named defendants were Dr. Rebecca Metzinger, Dr. Theodore Strickland, III, and Tulane University Hospital & Clinic.

      A previous appeal was filed with this Court. However, upon determining that the judgment was insufficient to establish jurisdiction, the appeal was dismissed and the matter was remanded. Kirt v. Metzinger , 2018-0158 (La.App. 4 Cir. 9/7/18), 255 So.3d 716. On remand, the judgment was amended and this appeal was filed.

      La. R.S. 40:1231.8(A)(2)(a) reads:
      (2)(a) The filing of the request for a review of a claim shall suspend the time within which suit must be instituted, in accordance with this Part, until ninety days following notification, by certified mail, as provided in Subsection J of this Section, to the claimant or his attorney of the issuance of the opinion by the medical review panel, in the case of those health care providers covered by this Part, or in the case of a health care provider against whom a claim has been filed under the provisions of this Part, but who has not qualified under this Part, until ninety days following notification by certified mail to the claimant or his attorney by the board that the health care provider is not covered by this Part. The filing of a request for review of a claim shall suspend the running of prescription against all joint and solidary obligors, and all joint tortfeasors, including but not limited to health care providers, both qualified and not qualified, to the same extent that prescription is suspended against the party or parties that are the subject of the request for review. Filing a request for review of a malpractice claim as required by this Section with any agency or entity other than the division of administration shall not suspend or interrupt the running of prescription. All requests for review of a malpractice claim identifying additional health care providers shall also be filed with the division of administration.

      The statute also provides for conditions under which the filing fees may be waived. La. R.S. 1231.8(A)(d). However, those provisions are not at issue in this case.

      The Downing Family had named five private healthcare providers and five State providers requiring remittance of $500.00 in filing fees to each of the respective agencies, the PCF and the Director of Administration.


author: Judge Rosemary Ledet

text:
    IN RE: MEDICAL REVIEW PANEL FOR the Claim of Courtney M. BROCK, Deceased, et al.
    NO. 2019-C-0480
    Court of Appeal of Louisiana, Fourth Circuit.
    JUNE 19, 2019
    Alvin P. Perry, Jr., 2209 Pakenham Drive, Chalmette, LA 70043, COUNSEL FOR THE RELATOR
    Paul A. Tabary, III, Elizabeth Borne, Justin W. Stephens, TABARY & BORNE, L.L.C., 3 Courthouse Square, Chalmette, LA 70043, COUNSEL FOR THE RESPONDENTS
    (Court composed of Judge Terri F. Love, Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins )
   Judge Rosemary Ledet

This is a medical malpractice case under the Louisiana Medical Malpractice Act (the "MMA"). This case is in the pre-suit, medical review panel stage. In this writ application, Mary and Harlon Brock (collectively the "Relators") seek review of the trial court's April 26, 2019 judgment, which granted a Motion to Quash two Notice of Records Depositions that the trial court, in this pre-suit discovery proceeding, issued on the Relators' behalf. The Motion to Quash was filed by two of the health care providers in the underlying medical review panel proceeding-St. Bernard Parish Hospital Service District and Dr. Stephen Hendry, II (collectively the "Respondents"). The trial court's judgment granting the Motion to Quash provided that the Relators were prohibited from disclosing any of the records that they obtained by the Notice of Records Depositions. The effect of this ruling is to preclude the Relators from presenting this evidence to the medical review panel. For the reasons that follow, we grant the Relators' writ application and reverse the trial court's judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On May 22, 2017, the Relators filed a complaint with the Louisiana Patient Compensation Fund requesting the formation of a medical review panel in connection with alleged acts of medical malpractice by the Respondents committed on May 23, 2016. According to the complaint, the alleged malpractice resulted in the death of Courtney Brock, who was thirty-one years old. Thereafter, one of the named health care providers, St. Bernard Parish Hospital Service District, instituted a discovery proceeding pursuant to La. R.S. 40:1231.8(D)(4).

In the discovery proceeding, the Relators filed two separate notices of record depositions. The first notice was directed to Dr. Dwight McKenna, in his capacity as Orleans Parish Corner, requesting information regarding Dr. Hendry, who died on April 27, 2017. The requested information included Dr. Hendry's death certificate, death investigation information, autopsy reports, and other accompanying documents. The second notice was directed to Dr. Vincent Cullotta, in his capacity as Executive Director of the Louisiana State Board of Medical Examiners (the "Board"), requesting documentation from the Board regarding Dr. Hendry's medical license.

One week after the notices were issued, the Respondents filed a Motion to Quash the documents requested by the Relators in both notices. After a hearing, the trial court granted the Motion to Quash and prohibited the Relators from disclosing to the medical review panel any of the records obtained by the notices. This writ followed.

DISCUSSION

The narrow issue presented is whether the trial court had the authority to impose restrictions on the evidence to be submitted to the medical review panel. The applicable standard of review, contrary to the Respondents' contention, is not the abuse of discretion standard ordinarily applicable to pre-trial discovery matters. See Cacamo v. Liberty Mut. Fire Ins. Co. , 99-1421, p. 4 (La. App. 4 Cir. 10/10/01, 4), 798 So.2d 1210, 1214 (observing that "Louisiana trial courts have broad discretion when regulating pre-trial discovery"). The issue presented here turns on the construction of the statutory provision defining the evidence that a medical review panel may consider- La. R.S. 40:1231.8(D)(2). Thus, the applicable standard of review is the de novo standard. Med. Review Complaint by Downing , 18-1027, p. 6 (La. App. 4 Cir. 5/8/19), 272 So.3d 55, 59, 2019 WL 2033947 *3 (observing that "legal decisions are reviewed de novo " and that "[s]tatutory construction presents a question of law and, thus, is subject to a de novo standard of review").

The starting point in our analysis is the language of the statute itself. Perritt v. Dona , 02-2601, pp. 14-15 (La. 7/2/03), 849 So.2d 56, 65. The statute provides that "[t]he evidence may consist of medical charts, x-rays, lab tests, excerpts of treatises, depositions of witnesses including parties, interrogatories, affidavits and reports of medical experts, and any other form of evidence allowable by the medical review panel." La. R.S. 40:1231.8(D)(2). The catchall provision at the end of the statute is the language at issue here.

The Relators contend that the catchall provision expressly reserves the decision on what evidence will be allowed to be presented to the panel and that the trial court lacks the authority to make that determination. The Respondents counter that the catchall provision must be strictly construed in the context of the MMA to limit the type of evidence to that which specifically relates to the health care, or lack thereof, the plaintiff asserts was provided in deviation of the applicable standard of care. Based on this construction, they contend that the items requested in the Notice of Records Depositions were not the type of evidence that could be considered by the medical review panel. In support, they point out that none of the documents identified in the notices relate to the breach of the applicable standard of care with respect to health care provided to Courtney Brock. Moreover, as to the items requested from the coroner, they contend that those items consist of sensitive materials pertaining to the Dr. Hendry's autopsy, which took place nearly a year after the alleged malpractice occurred.

In support of their construction of the catchall provision, the Respondents cite the Perritt case. In Perritt , the Louisiana Supreme Court construed the predecessor statute to La. R.S. 40:1231.8(D)(2), which did not include interrogatories in the enumeration of the types of evidence that the medical review panel could consider. Like the current statute, however, the predecessor statute included the catchall provision. Rejecting the argument that the catchall provision could be construed to allow the use of interrogatories, the Supreme Court in Perritt emphasized that the statute was silent regarding interrogatories and concluded that "a strict reading of the statute does not allow interrogatories in the medical review panel stage." Perritt , 02-2601, p. 12, 849 So.2d at 64. By analogy, the Respondents contend that the current statute should be narrowly construed to apply only to evidence pertinent to the alleged malpractice.

The Respondents' reliance on Perritt is misplaced. Perritt presented the issue of what types of discovery devices the parties may employ in the discovery proceeding. Here, the issue is whether the trial court in the pre-trial context has the authority to act as a gatekeeper and to impose restrictions on the type of evidence the medical review panel may consider. This is a res nova question in this state. For guidance in addressing the issue, we find the jurisprudence construing the Indiana statute-the statute on which the Louisiana Medical Malpractice Act was modeled-instructive.

In Indiana, the courts uniformly have held that a trial court may not function as a gatekeeper of the evidence a medical malpractice panel may consider. Chen v. Kirkpatrick , 738 N.E.2d 727 (Ind. Ct. App. 2000) (citing Griffith v. Jones , 602 N.E.2d 107 (Ind. 1992) ). In Griffith , the Indiana Supreme Court observed:

In view of the fact that the legislature clearly intended for the medical review panel to function in an informal manner in rendering its expert medical opinion, we believe that the legislature did not simultaneously intend to empower trial courts to dictate to the medical review panel concerning either the content of the panel's opinion or the manner in which the panel arrives at its opinion, or the matters that the panel may consider in arriving at its opinion. In other words, the grant of power to the trial court to preliminarily determine matters is to be narrowly construed.

602 N.E.2d at 110.

Likewise, we find no authority for allowing the trial court to act as gatekeeper of the evidence presented to a medical review panel. Although the MMA includes limited provisions authorizing the parties to seek relief from a trial court during the panel proceedings, none of those provisions authorize the trial court to act as an evidentiary gatekeeper of the evidence presented to the panel. The pertinent statutory provision, La. R.S. 40:1231.8(D)(2), places no restrictions on the type of evidence that may be produced to the medical review panel. Moreover, this provision grants the medical review panel the authority to determine the evidence it will consider. For this reason, we find that the trial court erred in granting the Respondents' motion.

CONCLUSION

For the foregoing reasons, we grant the Relators' writ and reverse the trial court's judgment.

WRIT GRANTED; JUDGMENT REVERSED

      A discovery proceeding is "a procedural mechanism to facilitate prosecution of the ultimate action, i.e. , a medical malpractice suit." Perritt v. Dona , 02-2601, p. 11, n. 12 (La. 7/2/03), 849 So.2d 56, 64 (quotation marks s and citations omitted); see also Frank L. Maraist & Thomas C. Galligan, Jr., LOUISIANA TORT LAW, § 21-3(f) (1996) (observing that "[a] party may file a petition in district court for assignment of a case number to facilitate discovery in the proceedings before the panel"). The statutory authority in the MMA for a discovery proceeding is set forth in La. R.S. 40:1231.8(D)(4), which provides that "[u]pon request of any party, or upon request of any two panel members, the clerk of any district court shall issue subpoenas and subpoenas duces tecum in aid of the taking of depositions and the production of documentary evidence for inspection and/or copying."

      Dr. Hendry is now deceased and represented by his estate.

      The Respondents obtained an ex parte order from the trial court setting the matter for a hearing and directing that Dr. McKenna and Dr. Cullotta, the parties to whom the notices were issued, not to produce the requested documents until further orders of the court. Before the Motion to Quash came for hearing, Dr. Cullotta and Dr. McKenna produced the requested documents.

      See Kelty v. Brumfield , 633 So.2d 1210, 1216 (La. 1994) (observing the MMA Act was modeled on the Indiana law).


text:
    2802 MAGAZINE STREET, L.L.C. v. EGGSPRESSIONS OF NORTH AMERICA, L.L.C., Blane Guillory, Nola Brunch Concepts, L.L.C.
    NO. 2019-CA-0085
    Court of Appeal of Louisiana, Fourth Circuit.
    May 22, 2019
   Raymond B. Landry, John Fitzgerald Lee, MOLLERE FLANAGAN & LANDRY, L.L.C., 2341 Metairie Road, Metairie, LA 70001, COUNSEL FOR PLAINTIFF/APPELLEE

Cearley W. Fontenot, OATS & MARINO, 100 East Vermilion Street, Suite 400, Lafayette, LA 70501, COUNSEL FOR DEFENDANTS/APPELLANTS

(Court composed of Judge Terri F. Love, Judge Sandra Cabrina Jenkins, Judge Dale N. Atkins )

Judge Terri F. Love Appellant seeks review of the trial court's grant of an exception of prescription dismissing the claims asserted in appellant's reconventional demand. We find appellants' claims in reconvention are delictual in nature and the demand was not filed within the one-year prescriptive period. For this reason, we find no error in the trial court's granting of the exception of prescription dismissing appellant's reconventional demand. Additionally, the ruling on the exception of prescription is not designated a final and appealable judgment and claims raised in the original petition remain. We, therefore, convert the appeal to a writ and affirm the trial court's ruling on the exception of prescription.

PROCEDURAL HISTORY AND BACKGROUND

Lessor/Appellee 2802 Magazine Street, L.L.C. ("2802 Magazine" or "Lessor") entered into a commercial lease with Lessee/Appellant Eggspressions of North America, L.L.C. d/b/a Brick and Spoon ("Eggspressions"). The lease became effective in February 2014, the object of which is the property at 2802 Magazine Street in New Orleans. Blane Guillory ("Mr. Guillory") personally guaranteed all of Eggspressions' obligations under the lease. Eggspressions thereafter entered into a sublease with Nola Brunch Concepts, L.L.C., which began operating a restaurant known as "Brick and Spoon" in late February 2016.

Subsequent to opening, Eggspressions was late in paying rent for months July, August, September, and October 2016, and according to the petition, only made payment after 2802 Magazine gave formal notice and collection efforts were made. Lessor 2802 Magazine also alleged that Eggspressions refused to pay an electrician who performed services on the premises that resulted in the electrician filing a lien against 2802 Magazine's property. Based on the foregoing alleged actions, 2802 Magazine filed a petition claiming Eggspressions defaulted under the terms of the commercial lease and sought damages. Thereafter, in December 2016, a judgment of eviction was granted in 2802 Magazine's favor.

Additionally, almost two years after 2802 Magazine filed its petition against Eggspressions for breach of the commercial lease, Eggspressions filed a reconventional demand in June 2018. Eggspressions asserted seven causes of action including claims of breach of contract, unfair trade practices, fraud, and bad faith. In response, 2802 Magazine filed a declinatory exception of insufficiency of service of process and peremptory exceptions of prescription and res judicata, which argued, in pertinent part, that Eggspressions' claims had prescribed. Eggspressions filed an opposition, alleging that their reconventional claims for fraud and violations of the Louisiana Unfair Trade Practices Act ("LUTPA") are continuing torts. Additionally, Eggspressions asserts that the recent amendment to La. R.S. 51:1409 supports a finding that their LUTPA claims have not prescribed.

The trial court granted 2802 Magazine's exception finding Eggspressions' claims for fraud and violations of LUTPA were not continuing torts, and therefore those claims had prescribed. With respect to Eggspressions' breach of contract claims, the trial court reasoned that those claims were not breach of contract claims. The trial court further reasoned that pursuant to La. C.C.P. art. 1041, the reconventional demand was not timely filed. Eggspressions seeks review of the trial court's grant of 2802 Magazine's exception of prescription dismissing the claims asserted in Eggspressions' reconventional demand.

JURISDICTION

At the outset, we address a procedural issue as to this Court's jurisdiction. While the trial court's judgment granted the exception of prescription and dismissed the reconventional demand, the claims raised in the underlying original petition remain. The judgment sustaining the exception of prescription is a partial final judgment, which the trial court must designate as final to be subject to appeal. La. C.C.P. art. 1915(B). The judgment in this case lacks the necessary designation. However, Eggspressions filed their motion for appeal within 30 days of the judgment. Thus, the time for filing an application for supervisory writ had not prescribed. Therefore, we invoke our supervisory jurisdiction and convert the appeal to a writ. Bd of Sup'rs of LSU v. Mid City Holdings , 14-0506, p. 3-4 (La. App. 4 Cir. 10/15/14), 151 So.3d 908, 911.

STANDARD OF REVIEW

An appellate court reviews exceptions of prescription de novo because it involves questions of law. Scott v. Zaheri , 14-0726, p. 8 (La. App. 4 Cir. 12/3/14), 157 So.3d 779, 785. "When evidence is introduced and evaluated at the trial of a peremptory exception, we must review the entire record to determine whether the trial court manifestly erred with its factual conclusions." Id. (citing Davis v. Hibernia Nat. Bank , 98-1164 (La. App. 4 Cir. 2/24/99), 732 So.2d 61, 63 ). "The standard of review of a trial court's finding of facts supporting prescription is that the appellate court should not disturb the finding of the trial court unless it is clearly wrong." Scott , 14-0726, p. 8, 157 So.3d at 785 (citing In re Medical Review Proceedings of Ivon , 01-1296, p. 5 (La. App. 4 Cir. 3/13/02), 813 So.2d 532, 536 ).

The trial court in this case did not review or weigh any evidence nor make any findings of fact upon which it based its ruling to grant the exception of prescription. The hearing transcript indicates that the trial court reviewed the pleadings on their face to determine the date Eggspressions filed their reconventional demand and the date 2802 Magazine filed the original demand.

PRESCRIPTION

Eggspressions claims the trial court erred when it dismissed its reconventional demand as prescribed because its "breach of contract claims were never prescribed" and its "fraud and LUTPA claims are based upon a series of prohibited acts that violate a continuing duty" which constitute a continuing tort. We begin by addressing Eggspressions' breach of contract claims.

Wrongful Eviction

Eggspressions avers that its contractual claims never prescribed. Eggspressions asserted the following breach of contract claims: (1) failure to perform under the late payment of rent default provisions; (2) failure to perform under the lease's "Omnibus" default provisions; and (3) failure to perform under the lease's "Unreasonable Withholding of Consent to Sublease" provisions.

While Eggspressions asserts the aforementioned are breach of contract claims, review of the reconventional demand demonstrates that, based on the facts alleged, the claims are not for breach of contract. Rather, the facts alleged to support Eggspressions' breach of contract claims actually assert that 2802 Magazine made misrepresentations and false statements to the trial court to obtain the judgment of eviction against Eggspressions. These claims do not state causes of action for breach of the lease agreement by 2802 Magazine. These claims, as noted by 2802 Magazine, sound in fraud, ill practice, and bad faith-all of which Eggspressions claims led to their alleged wrongful eviction.

Claims asserted pursuant to La. C.C. art. 1953 are delictual in nature and subject to a one-year prescriptive period. Hollingsworth v. Choates , 42,424, p. 7 (La. App. 2 Cir. 8/22/07), 963 So.2d 1089, 1094. In that these alleged misrepresentations and false statements stem from the eviction proceeding itself, Eggspressions' claims are not for breach of contract but wrongful eviction. Therefore, Eggspressions had one year from the date of the judgment of eviction to file an action for wrongful eviction. The trial court entered a judgment of eviction on December 1, 2016; thus, Eggspressions had until December 1, 2017, to file a reconventional demand. Eggspressions did not file until June 13, 2018. Therefore, the wrongful eviction claims based on fraud, ill practice, and bad faith prescribed.

Continuous Tort

Eggspressions alleged 2802 Magazine also engaged in unfair trade practices. The following allegations are asserted in the reconventional demand as violations of LUTPA, including: (1) misrepresentation of the lease terms; (2) misrepresentation of the existence of a lien on the leased property; (3) misrepresentation of Brick and Spoon's alleged default under the lease for late rental payment; (4) misrepresentation of Brick and Spoon's allege default under the lease for causing a lien on the property; (5) unethical and unreasonable withholding of consent to sublease to a third party; and (6) deception by 2802 Magazine by claiming the reason for withholding consent to sublease was lack of experience and financial condition of the third party. Eggspressions avers that the trial court erred when it found their LUTPA claims had prescribed because their LUTPA claims are continuous torts.

"The prescriptive period for delictual actions is one year, which commences to run from the day injury or damage is sustained. La. C.C. art. 3492. One of the exceptions to this rule is the jurisprudentially recognized doctrine of continuing tort." Risin v. D.N.C. Investments, L.L.C. , 05-0415, p. 4 (La. App. 4 Cir. 12/7/05), 921 So.2d 133, 136. A continuing tort is "[w]here the cause of injury is a continuous one giving rise to successive damages." Id. (citing South Central Bell Telephone Co. v. Texaco Inc. , 418 So.2d 531, 533 (La. 1982) ). "[P]rescription does not begin to run until the conduct causing the damage is abated." Id. Likewise, "[t]he scope of application of continuing tort is limited" as "[b]oth conduct and damage must be continuous." Id. , 05-0415, p. 8, 921 So.2d at 138.

Eggspressions points to Bihm v. Deca Systems, Inc. , 16-0356 (La. App. 1 Cir. 8/8/17), 226 So.3d 466, to support their contention that the doctrine of continuing torts applies to their LUTPA claims.

In Bihm , former employees of a closed corporation filed a petition for the dissolution of the corporation. The corporation and majority owner filed a reconventional demand, which alleged the former employees violated unfair trade practices and trade secret laws after the employees alleged misappropriation of funds and intellectual property. Id. , 16-0356, p. 6, 226 So.3d at 473-74. On appeal, the former employees argued that the reconventional demand was untimely. However, the trial court found, and the appellate court agreed, that the reconventional demand involved a continuing violation of LUTPA and therefore, the action had not prescribed. The Bihm court reasoned that "[e]ach and every time the [former employees] used the date and other trade secret information taken from Deca to conduct business with BCS's customers constituted a separate breach of that duty." Id. , 16-0356, p. 30, 226 So.3d at 489. Thus, the former employees had a continuing duty to refrain from acquiring or misappropriating trade secret information and disclosing it to other persons as well as a duty to refrain from unfair methods of competition and deceptive acts in the course of business commerce. Id.

Eggspressions' reliance on Bihm for the proposition that the instant case presents a continuing tort that interrupts prescription is misplaced. While the facts in Bihm established a continuing tort, no such circumstances exist in this case.

In Cajun Restaurant & Bar, Inc. v. Maurin-Ogden 1978 Pinhook Plaza , 574 So.2d 536 (La. App. 3rd Cir. 1991), a case analogous to the one before us, the dispute involved a breach of a commercial lease, allegations of violations of LUTPA, and prescription as a defense. The plaintiff lessee failed to pay rent resulting in the lessor filing a petition for breach of the lease and sought past due rent and damages. Id. at 537. The lessor subsequently obtained a judgment of eviction. More than a year later, the lessee filed suit for damages alleging the lessor violator LUTPA. The lessee claimed the lessor's rejection of the proposed third party assignee was among the series of conduct that constituted a violation of LUTPA and demonstrated a continuing tort. Id. at 537. The trial court found that the lessee's claim did not constitute a continuing tort as the alleged injury was a single act of not accepting the assignee. Affirming the trial court, the Third Circuit held that the lessee's claim was subject to a one-year prescriptive period and therefore had prescribed.

Like Cajun, the alleged LUTPA violations raised in reconvention are all single acts that allegedly took place at the trial on eviction and/or culminated in Eggspressions' eviction. Thus, we find no merit to the argument that the alleged LUTPA violations are continuous torts.

Additionally, Eggspressions asserts that the recent amendment to La. R.S. 51:1409 supports a finding that their LUTPA claims are not subject to prescription. Act No. 337 (2018) amended La. R.S. 51:1409(E) to remove from the statutory language the suggestion of a preemptive period for LUTPA claims. Subsection (E) now states that LUTPA claims are subject to a liberative prescriptive period of one year. Eggspressions argues the principals of continuing tort provide a basis for interruption of prescription and thus a defense to 2802 Magazine's exception. However, as discussed above, the record fails to establish facts from which we might conclude circumstances of an alleged continuous tort or any other basis to interrupt prescription.

CONCLUSION

We find Eggspressions has failed to demonstrate that their reconventional demand has not prescribed. Eggspressions' claims in reconvention, including those labeled as breach of contract, allege that 2802 Magazine misrepresented facts, acted in bad faith, and engaged in unfair trade practices in violation of LUTPA. The actions alleged to have caused damages are all singular acts that relate to claims of wrongful eviction. We find Eggspressions' claims in reconvention are delictual in nature. Accordingly, these claims are subject to a one-year prescriptive period. Considering Eggspressions filed their reconventional demand almost two years after the original petition was filed and more than a year after the judgment of eviction, we find no error in the trial court's October 2018 judgment sustaining 2802 Magazine's exception of prescription and dismissing Eggspressions' reconventional demand.

DECREE

Although the trial court's judgment granted the exception of prescription and dismissed the reconventional demand, the claims raised in the underlying original petition remain. Therefore, we exercise our supervisory jurisdiction and convert the appeal to a writ. Additionally, we find no error in the trial court's October 2018 judgment that granted 2802 Magazine's exception of prescription and dismissed Eggspressions' reconventional demand. Therefore, we affirm.

AFFIRMED

      Judgment of Eviction, rendered and signed December 1, 2017, in Case No. 16-11004, Div. B, Civil District Court, Parish of Orleans.


author: Judge Terri F. Love

text:
    STATE of Louisiana v. Antonio GALLAGHER
    NO. 2019-K-0383
    Court of Appeal of Louisiana, Fourth Circuit.
    June 26, 2019
    Laura Bixby, Orleans Public Defenders, 2601 Tulane Avenue, Seventh Floor, New Orleans, Louisiana 70119, COUNSEL FOR DEFENDANT/RELATOR, ANTONIO GALLAGHER
    Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, Parish of Orleans, 619 South White Street, New Orleans, Louisiana 70119, COUNSEL FOR RESPONDENT, STATE OF LOUISIANA
    (Court composed of Judge Terri F. Love, Judge Joy Cossich Lobrano, Judge Sandra Cabrina Jenkins )
   Judge Terri F. Love

Relator, Antonio Gallagher, seeks review of the trial court's March 22, 2019 finding that his guilty plea bargain was knowingly, intelligently, and freely entered. Specifically, Mr. Gallagher contends that the trial court erred by 1) refusing to take testimony or evidence regarding events that occurred after his plea; 2) by not finding that his plea was induced by a broken promise, and 3) by not finding that the memorandum of understanding was invalid under contract law. Mr. Gallagher's contentions have merit.

Upon review, we find that the trial court did not follow this Court's previous instructions on remand for determining whether Mr. Gallagher's plea bargain was constitutionally infirm. Therefore, we grant the writ, vacate the trial court's judgment, and remand the matter for further proceedings consistent with this opinion.

Factual Background and Procedural History

Mr. Gallagher was charged by bill of information with possession with intent to distribute cocaine, a violation of La. R.S. 40:967(B)(1). Mr. Gallagher entered a plea of guilty as charged and received a combination of a suspended sentence and probation. Mr. Gallagher also executed a Memorandum of Understanding ("MOU") signed by himself, defense counsel and the district attorney concerning the terms of his plea. Mr. Gallagher was released pursuant to the MOU to effectuate the terms outlined therein.

Mr. Gallagher subsequently filed a Motion to Withdraw Guilty Plea. Defense counsel and the State presented argument regarding Mr. Gallagher's motion to withdraw guilty plea and motion to set evidentiary hearing. Because defense counsel expressed the intent to call Mr. Gallagher's prior counsel, who was also the law clerk to the Honorable Laurie White in Section "A", Judge White recused herself and ordered the case be reassigned to another section of court for the purpose of the motion to withdraw the guilty plea only.

The matter was re-allotted to Section "G." The Honorable Judge Byron Williams heard argument and reviewed memoranda as to Mr. Gallagher's motion to withdraw the guilty plea. However, no testimony was presented. The court denied Mr. Gallagher's motion to withdraw the guilty plea without conducting an evidentiary hearing. Mr. Gallagher objected and noticed his intention to seek writs.

In State v. Gallagher , 18-0183 (La. App. 4 Cir. 6/7/18), 249 So. 3d 915, writ denied , 18-1003 (La. 10/8/2018), 253 So. 3d 799, this Court granted Mr. Gallagher's writ, vacated the trial court's denial of his motion to withdraw guilty plea, and remanded the matter to the trial court to conduct "an evidentiary hearing regarding the validity, terms, and parties' compliance with the MOU and then to determine whether defendant has established his guilty plea was constitutionally infirm." Id. , 18-0183, p. 15, 249 So. 3d at 924.

Pursuant to this Court's order, an evidentiary hearing was conducted in Section "G" with the Honorable Denis Waldron sitting ad hoc.

Testimony

Lindsay Jeffrey, Mr. Gallagher's attorney when the guilty plea and MOU were negotiated and executed, testified that prior to becoming Judge White's Law Clerk she worked as an Orleans Public Defender and represented Mr. Gallagher. As part of her defense, a MOU was entered into between Mr. Gallagher and the State. Attorney Jeffrey explained that the terms of the MOU offered Mr. Gallagher a probated sentence if he would cooperate with the FBI and the State of Louisiana. The cooperation required that Mr. Gallagher become an informant and conduct drug buys to assist law enforcement agents find and convict other drug dealers. At the time the MOU was executed, Mr. Gallagher had been in jail for several months. Attorney Jeffery recalled Mr. Gallagher expressing concern because he had no money, clothes, or financial resources in the presence of the FBI. Attorney Jeffery stated the FBI agent was aware that Mr. Gallagher would need financial assistance to perform his role as a drug buyer. Attorney Jeffery had no contact with Mr. Gallagher after he was released from jail. To her knowledge, Mr. Gallagher did not have a phone.

At the meeting with the FBI agents, Mr. Gallagher provided the names of several targets for conducting controlled narcotic purchases. Attorney Jeffery could not recall specific targets Mr. Gallagher mentioned to the FBI for investigation.

The State asked Attorney Jeffery whether the FBI made any promises relating to subsidizing Mr. Gallagher's housing, transportation, and clothing, such that he could look the part of a drug kingpin. Attorney Jeffrey stated she did not recall any specific promises that were made by the FBI agents. However, she did recall being satisfied that Mr. Gallagher would receive some kind of assistance. Attorney Jeffery did not recall the FBI promising to pay for his housing, transportation, subsistence, food, water or any maintenance during the period of his cooperation under the MOU. Attorney Jeffery stated she thought Mr. Gallagher expected the FBI to assist him with food when he first got out of jail. However, Attorney Jeffery stated, "No, I cannot recall any specifics of any specific thing that was going to be provided by the FBI." To clarify, the State inquired:

State: If I understand correctly your response is, no you don't remember that Agent, [sic] McMillan, making any specific promises or representations of the FBI buying Mr. Gallagher's food at that meeting.
Attorney Jeffery: No, I do not.

Attorney Jeffery recalled a discussion about clothing, but did not recall the FBI stating clothing would be provided. When asked, "Do you have any recollection any specifics that the FBI offered, or represented, or indicated they would provide to Mr. Gallagher to support his function as a confidential source?" Attorney Jeffery replied, "No."

Attorney Jeffery stated that the terms of each provision of the MOU were reviewed with Mr. Gallagher prior to signing the document. Attorney Jeffery did not recall any discussion relating to adding any provisions relative to food, shelter, clothing, or transportation to the MOU. Attorney Jeffery stated it was her practice to have reviewed the terms of an MOU with a client before allowing him to sign it.

The hearing continued with the testimony of FBI Special Agent Sheila McMillan. Agent McMillan testified she had been a special agent with the FBI for a few years. Mr. Gallagher's cooperation agreement was the first such agreement in which Agent McMillan participated. Agent McMillan explained that these types of agreements normally start when a defendant indicates a willingness to cooperate with the FBI and to help the FBI make a case against a person. Typically, a defendant would be released to start learning information and relate that information to the FBI. The cooperating defendant is required to maintain contact with the FBI and keep the FBI updated. With regard to cooperating defendants, Agent McMillan also stated:

The reason we get interested in them in the first place is they have information on a subject that we are already interested in, and already want to investigate, and so they say they have this information and they have an in with the subject. And so we ask them if they are willing to work with us.

The cooperating defendant would orchestrate controlled purchases with individuals they already know. The defendant/cooperator would be equipped with an audio/video recording device. Once the buy was set up, the defendant would be followed to the scene of the location of the buy. The cooperating defendant would be given money by the FBI to make the drug purchase.

In contemplation of this scenario, defense counsel asked:

And what if the person you are working with doesn't have enough money to buy a phone? Do you provide money to buy a phone? ...
Agent McMillan: We have before. We have to come up with some explanation of why we want to give them money. So usually they give us some kind of information, and then we can write up that they have given us information, and based on that we want to give them money for a phone, and of course that would be approved so we can get that. But sometimes we give them a phone sometimes they get their own phone.

In response to defense counsel's question regarding money to purchase clothing, Agent McMillan replied:

We can, but we have to have a reason to believe that they are going to give information it's going to work out. So if they can provide us with any sort of information we can type a request from our supervisor to give money to get some clothes a phone or anything like that. Which he never did provide us with any information.

Agent McMillan stated when she first met with Mr. Gallagher, he told her he did not have a phone, so she asked that he provide her with a relative's phone number to maintain contact. Mr. Gallagher provided her with the phone number of his sister. However, when Agent McMillan called the number, the woman who answered said she did not know Mr. Gallagher. Mr. Gallagher asked whether she could get him clothing and she replied, "I said maybe but you got to give me a reason to justify us giving you money as a form of payment. You have to give us some information, you have to give us something that I can type up and submit to the boss saying we should pay him something." At some point, Mr. Gallagher contacted Agent McMillan from a pay phone stating he did not have any information. He advised Agent McMillan that he would be getting a cell phone that day but she never heard from him again. Agent McMillan stated Mr. Gallagher never set up any drug buys. Mr. Gallagher was never provided any financial assistance because he never provided the FBI with any information.

On cross examination by the State, Agent McMillan stated it was never represented that Mr. Gallagher would be provided with food, water, clothing, shelter at federal expense, a vehicle or a cell phone.

FBI Agent Jason Quick was called as a witness and testified regarding the MOU. Agent Quick stated he attended a meeting with Mr. Gallagher, his attorney and the State concerning Mr. Gallagher's desire to work as a confidential informant. Mr. Gallagher indicated to Agent Quick that in the past he had been offered four ounces of heroin on credit from someone for resale. Agent Quick stated it was up to Mr. Gallagher to make whatever contacts were needed to re-engage with the heroin dealer. Regarding a cell phone, Agent Quick stated: "I would have been happy to give him a phone if I had met him one time where he would have given me one piece of information, or met me to even start something with an honest try; but that never happened."

On examination by the State, Agent Quick stated that while functioning as a confidential source, it was never represented to Mr. Gallagher that he would be provided with food, water, clothing, shelter, or a vehicle at government expense. The possibility of providing a cell phone was discussed if Mr. Gallagher provided information showing a good faith effort towards narcotics investigation of the target he identified. However, no representation was made that Mr. Gallagher would automatically be provided with a cell phone when released.

Mr. Gallagher testified at the hearing that in exchange for a better deal, he would perform controlled buys with individuals he knew. Mr. Gallagher said he "made it understood" that he was not in a financial position to purchase the narcotics. Mr. Gallagher said he was told the money would be provided to him to make the narcotics buy(s). Mr. Gallagher said he was informed that if necessary he would be provided with a cell phone. Mr. Gallagher was also told if he needed help getting from "Point A" to "Point B," assistance would be provided. Mr. Gallagher said it was his understanding that the FBI would help with basic necessities. Mr. Gallagher stated when he informed Agent McMillan that he did not have proper clothing or a cell phone, Agent McMillan replied that she was sure there was somebody who could help him. Mr. Gallagher told Agent McMillan he would try to get assistance from his sister. Mr. Gallagher stated he was under the impression that help would be provided because it was obvious he had nothing. Mr. Gallagher said he would not have signed the MOU and entered the plea had he known he would not be provided assistance.

Following testimony and argument by counsel, Judge Waldron stated:

[I]t is the specific allegation that all of the parameters if you will of this so-called Memorandum of Understanding were clearly not understood by the Defendant.
* * *
The defendant before the Court according to the colloquy that was taken was forty-five years old at the time he appeared before Her Honor Judge White. He answered the Court as to the inquire [sic] of his education background by I believe by saying he had a GED and that he obtained another degree while in jail....
So clearly at the time Mr. Gallagher entered into this agreement, he understood the danger of it. He was obviously a man of some education, some experience, he's forty-five years of age. Those [are] things that the Court has taken notice of and is very contentious [sic] of in deciding this singular issue of whether or not his plea was freely and voluntarily entered.
He indicated he was satisfied with his Attorney when questioned by the Judge.
* * *
I ultimately conclude based on everything including the testimony [of the attorney] who represented the Gentleman and everything that was presented here today including the documents I have reviewed that this plea of guilty was knowingly, intelligently, freely, and voluntarily entered into.
* * *
I would deny any right or request that he has made before this Court to withdraw his guilty plea that was entered before Her Honor Judge Lori White.
I remand this case to Her Honor White ... now to decide the secondary issue of whether or not any particular types of sentence can be imposed in this case or should be imposed in this case based on her finding as to whether or not there has been a violation of the agreement that became obligatory on the part of the defendant because his plea of guilty was freely and voluntarily made and accepted by the Court. That is a secondary issue that is left to Her Honor to decide. That did not involve the Lady that is now her Law Clerk, the attorney who then represented {SIC} Mr. Jeffrey.
I note objection for the Defense to protect the record. And I order the case remanded to the care of Her Honor in her infinite wisdom and discretion on the remaining issue.

Guilty Plea Withdrawal

Louisiana Code of Criminal Procedure Article 559(A) provides that a court "may permit a plea of guilty to be withdrawn at any time before sentence." In addition, the Louisiana Supreme Court in State v. Lewis , 421 So. 2d 224 (La. 1982), held that a trial court may permit the withdrawal of a guilty plea after sentencing if the court finds that the guilty plea was not entered freely and voluntarily, or if there was an inadequate colloquy advising the defendant of the rights he was waiving by pleading guilty and therefore was constitutionally infirm. However, there is "no absolute right to withdraw a previously entered plea of guilty." State v. Pichon , 96-0886, p. 2 (La. App. 4 Cir. 11/20/96), 684 So. 2d 501, 502. The withdrawal of a guilty plea is within the discretion of the trial court and is subject to reversal only if that discretion is abused or arbitrarily exercised. State v. Johnson , 406 So. 2d 569, 571 (La. 1981).

"For a guilty plea to be found valid, there must be a showing that the defendant was informed of and waived his constitutionally guaranteed right to trial by jury, right of confrontation and right against compulsory self-incrimination." State v. Rhea , 04-0091, p. 3 (La. App. 4 Cir. 5/19/04), 876 So. 2d 131, 134 (citing Boykin v. Alabama , 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). "In determining whether the defendant's plea is knowing and voluntary, the court must not only look to the colloquy concerning the waiver of rights, but also other factors which may have a bearing on the decision." State v. Young , 11-0046, p. 8 (La. App. 4 Cir. 8/17/11), 71 So. 3d 565, 571. "Similarly, in reviewing whether the trial court abused its discretion, courts have looked to the guilty plea colloquy to determine whether the defendant was advised of the consequences of his plea and whether he voluntarily and intelligently waived his rights." Id.

"[A] guilty plea is constitutionally infirm when a defendant is induced to enter that plea by a plea bargain or by what he justifiably believes was a plea bargain, and that bargain is not kept." State v. Dixon , 449 So. 2d 463, 464 (La. 1984). "[I]f a defendant's misunderstanding is not induced by or attributed to representations made by the district attorney or the trial court, there is no grounds for invalidating the guilty plea." State v. Readoux, 614 So. 2d 175, 176 (La. App. 3rd Cir. 1993).

Trial Court's Compliance with Remand Instructions

At the hearing, the trial court stated that "[a]gain, this is not a challenge to the lack of proper Boykinization , yet repeatedly stated that the only issue before it was whether Mr. Gallagher's plea bargain "was knowingly, intelligently, freely, and voluntarily" entered. The trial court also repeatedly noted that the matter would be remanded to the previously recused trial court judge to determine whether a violation of the MOU occurred.

In the previous writ, this Court remanded "this matter to Section 'G' [Judge Byron Williams] for an evidentiary hearing regarding the validity, terms, and parties' compliance with the MOU and then to determine whether [Mr. Gallagher] has established that his guilty plea was constitutionally infirm. Gallagher , 18-0183, p. 15, 249 So. 3d at 924. Instead, the trial court further complicated the matter by attempting to bifurcate the issue and limiting the evidence presented at the hearing. The issue of whether Mr. Gallagher's plea bargain is constitutionally infirm includes determining whether the MOU was violated.

We find that the trial court did not comply with this Court's previous instructions on remand. Accordingly, the judgment of the trial court is vacated and the matter is remanded "to Section 'G' [Judge Byron Williams] for an evidentiary hearing regarding the validity, terms, and parties' compliance with the MOU and then to determine whether defendant has established that his guilty plea was constitutionally infirm."

Decree

For the above-mentioned reasons, we find that the trial court did not follow our directive from our previous remand. Therefore, we grant the writ, vacate the judgment of the trial court, and remand the matter for further proceedings consistent with this opinion.

WRIT GRANTED; JUDGMENT VACATED; REMANDED

JENKINS, J., DISSENTS WITH REASONS

JENKINS, J., DISSENTS WITH REASONS

Upon review of the record of the proceedings in the district court, I find the district court adequately complied with the remand instructions from this Court in State v. Gallagher , 18-0183 (La. App. 4 Cir. 6/7/18), 249 So.3d 915, writ denied , 18-1003 (La. 10/8/18), 253 So.3d 799, and I find no abuse of discretion in the trial court's denial of defendant's motion to withdraw guilty plea. Accordingly, I would deny defendant's writ.