author: Jay, J.

text:
    Daniel Thomas FOUNTAIN, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-2883
    District Court of Appeal of Florida, First District.
    July 9, 2019
    Andy Thomas, Public Defender, and Megan Long, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   Jay, J.

Appellant has appealed his judgment and sentences for shooting at or into an occupied vehicle and aggravated assault by threat with a deadly weapon. See §§ 790.19 & 784.021(1)(a), Fla. Stat. (2016). We affirm both points raised by Appellant. Only one of those points merits discussion.

I.

In concluding her rebuttal closing argument, the prosecutor declared:

Now, you have seen the evidence, you have heard the testimony, and you are going to have all the evidence and testimony to take back with you. The only thing left to do in this instance is to apply the law the judge gives you to the facts and the testimony and return a verdict that truth dictates and justice demands, and that is that this defendant is guilty as charged on both counts.

Immediately, defense counsel asked the trial court if they could approach the bench, whereupon counsel moved for a mistrial. Counsel argued that the emphasized portion of the prosecutor's statement improperly apprised the jury of the State's opinion as to guilt, to which the jury would accord an inordinate and prejudicial amount of weight in deliberating the question of Appellant's guilt or innocence. The trial court denied the motion, explaining that, when viewed in context, the statement was relevant to what the State's evidence showed, and, to the extent "the word 'evidence' wasn't mentioned in that sentence," the court announced the statement was not so pervasive or repetitive "as to be a basis or even close to a mistrial." We agree.

II.

We review the denial of a motion for mistrial for an abuse of discretion. Jenkins v. State , 96 So. 3d 1110, 1113 (Fla. 1st DCA 2012). In that context, the bar has been set high to obtain a mistrial based on improper prosecutorial comments: "A prosecutor's comments, to justify a mistrial, 'must either deprive the defendant of a fair and impartial trial, materially contribute to the conviction, be so harmful or fundamentally tainted as to require a new trial, or be so inflammatory that they might have influenced the jury to reach a more severe verdict than it would have otherwise.' " Id. (quoting Spencer v. State , 645 So. 2d 377, 383 (Fla. 1994) ).

We acknowledge that "[a] criminal trial is a neutral arena wherein both sides place evidence for the jury's consideration; the role of counsel in closing argument is to assist the jury in analyzing that evidence, not to obscure the jury's view with personal opinion, emotion, and nonrecord evidence[.]" Ruiz v. State , 743 So. 2d 1, 4 (Fla. 1999) (citing United State v. Garza , 608 F.2d 659, 662-63 (5th Cir. 1979) ). Consequently, a prosecutor cannot, in closing arguments, imply that the State would not be prosecuting anyone who was not guilty or call the defendant a liar. Id. at 5 (citing Hall v. United States , 419 F.2d 582 (5th Cir. 1969) ). Furthermore:

[A] bedrock principle of our criminal justice system is that every effort must be made in any trial ... to ensure that the jurors base their decision, not on sympathy for the victim or prejudice against the defendant, but solely on the facts elicited during trial and the law instructed by the trial court. The State's burden is to prove the elements of the crime beyond a reasonable doubt. When the State instead uses closing argument to appeal to the jury's sense of outrage at what happened to the victim and asks the jurors to return a verdict that brings "justice" to the victim, the State perverts the purpose of closing argument and engages in the very type of argument that has been repeatedly condemned as antithetical to the foundation of our criminal justice system that guarantees a fair trial to every accused.

Cardona v. State , 185 So. 3d 514, 519-20 (Fla. 2016). Thus, a prosecutor is prohibited from making repeated references asking for "justice" for the victim, "regardless of whether the case involves [ ] heart-wrenching circumstances." Id. at 520. The supreme court in Cardona stressed that such remarks are "the most egregious category of clearly improper closing argument" because they "improperly inflame[ ] the minds and passions of the jurors ...." Id. at 519.

But we are not persuaded by Appellant's claim that, in his case, the prosecutor's comment-"truth dictates and justice demands"-impermissibly invoked her status as the government's attorney in order to tip the scales in favor of conviction, or that it so inflamed the passions of the jury as to impel a guilty verdict. Instead, we agree with the trial court that, taken in context, the prosecutor's statement was simply a reference to the strength of the State's evidence. See, e.g. , Morris v. Parker , No. 11-2331-STA-cgc, 2014 WL 2956422, at *25 (W.D. Tenn. signed June 30, 2014) (finding nothing in the prosecutor's statement to the jury-in which he asserted that "a guilty verdict 'is the verdict that truth dictates and that justice demands and any other verdict would be a violation of the oath that [the jurors] took to return a true verdict' "-expressed the prosecutor's personal belief or opinion or was designed to inflame the passions of the jury, but, instead, it "simply reminded the jury of its oath and asserted the State's position that it had met its burden, thereby necessitating, in the State's view, a guilty verdict"); State v. Fiore , No. A-0960-09T2, A-1078-09T2, 2013 WL 4746466, at *12 (N.J. Super. Ct. App. Div. Sept. 5, 2013) (holding the prosecutor's final comment "that he was 'confident' that 'after you hear all the evidence ... you will be left with one choice, one clear choice, that truth dictates and justice demands,' which would be a guilty verdict ... was nothing more than a statement of belief in the strength of the State's case"); cf. State v. Dotson , No. W2011-00815-CCA-R3-DD, 2013 WL 4728679, at *73 (Tenn. Ct. App. June 25, 2013) (emphasis in original) (concluding that where the trial court repeatedly instructed the jury that the defendant was innocent until proven guilty, its instructing the jury to " '[t]ake the case, consider all of the facts and circumstances fairly and impartially and return to the court with the verdict that TRUTH dictates and JUSTICE demands' " would not have caused it to render a guilty verdict regardless of whether the State had proved its case beyond a reasonable doubt).

Furthermore, the prosecutor's statement was an isolated one. See Truehill v. State , 211 So. 3d 930, 950-51 (Fla. 2017) (holding that although the trial court erred in overruling defense counsel's objection to a clearly improper " 'justice for the victim' " statement made by the prosecutor, the "statement was an isolated comment and thus, it alone would not mandate reversal"). As such, we hold it did not deprive Appellant "of a fair and impartial trial," did not "materially contribute to [his] conviction," was not "so harmful or fundamentally tainted as to require a new trial," and was not "so inflammatory that [it] might have influenced the jury to reach a more severe verdict than it would have otherwise." Jenkins , 96 So. 3d at 1113 (some quotation marks omitted).

III.

Accordingly, we hold Appellant has not demonstrated that the trial court abused its discretion in denying his motion for mistrial.

AFFIRMED .

Rowe and M.K. Thomas, JJ., concur.


source: Caselaw Access Project

author: Per Curiam. Makar, J., dissenting.

license: Public Domain

text:
    Akamau JOHNSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-3056
    District Court of Appeal of Florida, First District.
    July 9, 2019
    Akamau Johnson, pro se, Petitioner.
    Ashley Moody, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for belated appeal is denied on the merits.

Wetherell and M.K. Thomas, JJ., concur; Makar, J., dissents with opinion.

Makar, J., dissenting.

The hearing officer in this case read the petitioner's factual allegations too narrowly in concluding that no factual issues exist and that the only issue presented is "strictly a matter of law." Rather, Petitioner says he was transferred from one institution to another, and was thereafter in lockdown for ten days, resulting in denial of access to his "legal work," which may include legal papers, correspondence, orders, and so on. The current record fails to establish when Petitioner received the order at issue he seeks to appeal; presumably some mail log exists to show when he received it. Because the trial court deemed the matter a purely legal issue, no factual findings were made on this important factual point. For these reasons, an amended Staley order is appropriate.


author: Damoorgian, J.

text:
    Vinceson DAWSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-1586
    District Court of Appeal of Florida, Fourth District.
    July 10, 2019
    Carey Haughwout, Public Defender, and Benjamin Eisenberg, Assistant Public Defender, West Palm Beach, for appellant.
    Ashley Moody, Attorney General, Tallahassee, and Joseph D. Coronato, Jr., Assistant Attorney General, West Palm Beach, for appellee.
   Damoorgian, J.

Vinceson Dawson ("Defendant") appeals his conviction and sentence for one count of trafficking in oxycodone in an amount greater than 25 grams but less than 100 grams and one count of possession of cocaine. Finding merit in Defendant's argument that the multiple references to collateral crimes evidence deprived him of a fair trial, we reverse and remand for a new trial.

On the date of Defendant's arrest, police were conducting surveillance of a house in Boynton Beach as they waited to execute a search warrant on the house. Defendant resided at the house. Officers observed Defendant park his gold Buick in the driveway of the house next door to the target house. Shortly thereafter, a male ("the passenger") pulled up into the same driveway and entered the passenger side of Defendant's vehicle. The passenger did not appear to have any items in his hands as he entered the vehicle.

Within seconds of the passenger entering the vehicle, several officers converged upon the vehicle. One of the officers observed Defendant sitting in the driver's seat with a yellow prescription pill bottle on his lap. A search of the vehicle revealed a baggy containing crack cocaine, cash, two cell phones, and prescription pill bottles and baggies containing oxycodone pills. In total, officers recovered from Defendant's vehicle approximately 250 oxycodone pills with a net weight of 33.766 grams. None of the items retrieved from the vehicle were tested for fingerprints or DNA.

Defendant denied having any knowledge about the contraband, cash, or cell phones found inside the vehicle and further denied having a pill bottle on his lap when officers converged on the vehicle. Defendant explained that although he owned the vehicle, he often allowed other people to use the vehicle. The passenger, in turn, insisted that he never observed a prescription pill bottle on Defendant's lap when officers converged on the vehicle.

At trial, the prosecutor and three of the State's witnesses referred to the fact that Defendant's house was under surveillance, that a search warrant related to narcotics had been issued, and that Defendant was the target. In each instance, defense counsel objected and moved for mistrial on the basis that the references were irrelevant and improperly inferred Defendant had previously engaged in illegal drug activity. Although the court sustained each objection, it denied the motions for mistrial and twice provided curative instructions.

The first reference occurred when the prosecutor asked one of the narcotics officers whether "an investigation [was] commenced which ultimately led to a lawful search of Mr. Dawson's residence?" Defense counsel objected before the officer could answer the question. The officer was permitted to testify, however, that a lawful search was ultimately conducted. The second reference occurred when a different officer testified that he was dispatched on the day in question to assist in the execution of a narcotics search warrant. The third reference occurred when a SWAT officer testified that he and his team were waiting nearby to execute the search warrant and "got the signal to move in when the defendant had arrived [and] we proceeded to the target."

During jury deliberations, the jury submitted the following question: "What was the warrant for and what address was the warrant to be executed at?" The court responded by telling the jury that the answer to the question must be found in the evidence presented at trial. The jury ultimately found Defendant guilty of trafficking in oxycodone and possession of cocaine as charged.

Defendant thereafter moved for new trial, arguing that the court erred in denying his motions for mistrial based upon the improper references to the search warrant. Defendant maintained that the cumulative references to the search warrant insinuated that Defendant had previously engaged in illegal drug activity which led to the issuance of a warrant to search his house. Moreover, although the court twice provided curative instructions, the instructions were clearly insufficient in light of the jury's question. Despite acknowledging that Defendant had "a very good appellate point," the court denied the motion. This appeal follows.

It is well established "that mistrial is a drastic remedy to be granted only when an error is so prejudicial as to vitiate the entire trial, and only when necessary to ensure the defendant receives a fair trial." Jones v. State , 128 So. 3d 199, 201 (Fla. 1st DCA 2013). One way in which a criminal defendant is prejudiced to the extent of necessitating a mistrial is when irrelevant collateral crimes evidence is erroneously admitted at trial. Id. The reason being that "the erroneous admission of irrelevant collateral crimes evidence is presumed harmful error because of the danger that a jury will take the bad character or propensity to crime thus demonstrated as evidence of guilt of the crime charged." Robertson v. State , 829 So. 2d 901, 913-14 (Fla. 2002) (citations and internal quotation marks omitted).

The holding in Jones is instructive. In that case, the defendant was charged with first-degree murder and armed robbery with discharge of a firearm. Jones , 128 So. 3d at 200. During trial, the jury was informed on multiple, separate occasions that the defendant had previously been incarcerated and placed on probation and was a convicted felon. Id. The defendant objected to each reference and moved for mistrial, which the court denied. Id. During deliberations, the jury asked whether the defendant was on probation when he turned himself in and, if so, for what. Id. The court, in an attempt to cure the jury's consideration of the improper references to collateral crimes, instructed the jury to disregard any implication that the defendant had been convicted of unrelated crimes in the past. Id. The defendant was ultimately found guilty as charged and sentenced to two concurrent life sentences. Id. at 200-01.

In holding that the trial court erred in denying the defendant's motions for mistrial, the First District reasoned that "the multiple improper references to [the defendant's] prior convictions and the jury's question about them establish that [the defendant] was severely prejudiced in his defense." Id. at 201 (emphasis added). Moreover, the court held that the curative instruction was insufficient to "ameliorate the cumulative and obvious impact of the improper references." Id. ; see also Melehan v. State , 126 So. 3d 1118, 1125 (Fla. 4th DCA 2012) (recognizing that although a curative instruction will generally obviate the necessity of a mistrial, "there are times when a curative instruction is not sufficient 'to unring the bell,' and a new trial is required" (quoting Graham v. State , 479 So. 2d 824, 826 (Fla. 2d DCA 1985) )); Morton v. State , 972 So. 2d 1088, 1089 (Fla. 5th DCA 2008) ("When a jury is improperly informed of a defendant's prior criminal activity, a curative instruction has frequently been found to be insufficient to preserve a defendant's right to a fair trial.").

In the present case, although the prosecutor and witnesses did not directly state that Defendant was involved in prior criminal activity like the witnesses in Jones , the multiple improper references to the search warrant had the effect of informing the jury that Defendant's residence was the subject of illegal drug activity and that Defendant was the "target." The clear implication being that Defendant had previously engaged in illegal drug activity sufficient to justify a search warrant. Moreover, despite the two curative instructions, the multiple references to the search warrant clearly had an impact on the jury as evidenced by the question posed during deliberations.

The State nonetheless argues that the references to the search warrant were proper because they were inextricably intertwined with the crimes charged and necessary to demonstrate that that the seizing officers were in a position where they had a legitimate right to be. We disagree because it was unnecessary to inform the jury that Defendant's residence was the subject of a narcotics search warrant or that Defendant was the "target."

In order for collateral crimes evidence to be "inextricably intertwined," the evidence must be "necessary to (1) adequately describe the deed; (2) provide an intelligent account of the crime(s) charged; (3) establish the entire context out of which the charged crime(s) arose; or (4) adequately describe the events leading up to the charged crime(s)." Dorsett v. State , 944 So. 2d 1207, 1213 (Fla. 3d DCA 2006) (citations and internal quotation marks omitted).

Here, it was entirely unnecessary to inform the jury that Defendant was the target of a narcotics search warrant in order to establish the entire context out of which the charged crimes arose or to show a logical sequence of events leading up to Defendant's arrest. The State could have simply informed the jury that officers were executing a search warrant when they observed Defendant in the driveway of the adjacent house. See Kates v. State , 41 So. 3d 1044, 1046 (Fla. 1st DCA 2010) (holding that "even if evidence of an uncharged crime is inextricably intertwined with the charged offense and is thus admissible to establish the entire context of the crime, unnecessary details must be excluded"). Although evidence of the search warrant was certainly relevant to explain the officers' presence at the scene, the details of the warrant were irrelevant and more prejudicial than probative. See id.

Alternatively, the State argues that the references to the search warrant were harmless because, by asking "[w]hat was the warrant for and what address was the warrant to be executed at," the jury evidently did not connect Defendant to the search warrant. Even if we were to assume that the jury did not directly connect Defendant to the search warrant, the fact remains that the jury clearly considered the search warrant during its deliberations. Under these circumstances, it is simply impossible to conclude beyond a reasonable doubt that the jury's verdict was not swayed by the improper references to the search warrant. See O'Connor v. State , 835 So. 2d 1226, 1232 (Fla. 4th DCA 2003).

Based upon the foregoing, the multiple references to the search warrant were improper and severely prejudiced Defendant as evidenced by the jury's question about the search warrant. Accordingly, Defendant is entitled to a new trial.

Reversed and remanded for new trial.

Levine, C.J., and Kuntz, J., concur.


author: Per Curiam.

text:
    Michael L. BROWN, Petitioner, v. FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D18-3592
    District Court of Appeal of Florida, First District.
    July 9, 2019
    Michael L. Brown, pro se, Petitioner.
    Kenneth S. Steely, General Counsel; Beverly Brewster and Daniel R. Burke, Assistant General Counsel, Florida Department of Corrections, Tallahassee, for Respondent.
   Per Curiam.

The petition for writ of certiorari is denied on the merits.

Wetherell, Winokur, and M.K. Thomas, JJ., concur.


text:
    Amanda Renee GULLEDGE, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-4905
    District Court of Appeal of Florida, First District.
    July 10, 2019
    Andy Thomas, Public Defender, and Megan Long, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Upon review pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), we find no error with Appellant's judgment or sentence, and affirm. We write only to correct a scrivener's error on Appellant's written sentence. See Ashley v. State , 850 So. 2d 1265, 1268 n. 3 (Fla. 2003) (defining a scrivener's error as a written clerical error that is not "the result of a judicial determination or error"); Rivera v. State , 117 So. 3d 449 -50 (Fla. 2d DCA 2013) (remanding for correction of the written sentences to reflect the oral pronouncement in an Anders appeal). In the written sentence, the sentence imposed on count 3 is erroneously listed as count 1. On remand, the trial court shall correct the error.

Wetherell, Jay, and M.K. Thomas, JJ., concur.


text:
    Antuan R. GOLDEN, Appellant, v. STATE of Florida, Appellee.
    No. 1D19-794
    District Court of Appeal of Florida, First District.
    July 10, 2019
    Antuan R. Golden, pro se, Appellant.
    Ashley Moody, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

We affirm without discussion the denial of Appellant's rule 3.800 motion challenging the legality of his habitual felony offender designation. Additionally, because the claim raised by Appellant in this motion is exactly the same as the as the claim he raised in a prior rule 3.800 motion that was denied on the merits and affirmed on appeal, we find this appeal to be frivolous and an abuse of process. See State v. McBride , 848 So. 2d 287, 291 (Fla. 2003) ("Collateral estoppel ... precludes a defendant from rearguing in a successive rule 3.800 motion the same issue argued in a prior motion."); Carroll v. State , 192 So. 3d 525, 526-27 (Fla. 1st DCA 2016) ("The postconviction process does not exist simply to give prisoners something to do in order to help them pass the time as they serve their sentences, and every minute the courts are required to spend on meritless postconviction filings is time that cannot be spent on other potentially meritorious cases."). Accordingly, we direct the Clerk to forward a certified copy of this opinion to the appropriate institution within the Department of Corrections for potential disciplinary action against Appellant pursuant to section 944.279, Florida Statutes, and the Department's rules. See Ponton v. Willis , 172 So. 3d 574, 576 (Fla. 1st DCA 2015) (explaining that a Spencer order is not required before referring the inmate for disciplinary action based upon a frivolous filing).

AFFIRMED .

B.L. Thomas, Wetherell, and M.K. Thomas, JJ., concur.

      Golden v. State , Case No.1D16-4420, 229 So. 3d 1224 (Fla. 1st DCA 2017) (table).


text:
    Amanda Renee GULLEDGE, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-4906
    District Court of Appeal of Florida, First District.
    July 10, 2019
    Andy Thomas, Public Defender, and Megan Long, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Upon review pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), we find no error with Appellant's judgment or sentence, and affirm. We write only to correct a scrivener's error on Appellant's Judgment and Sentence. See Ashley v. State , 850 So. 2d 1265, 1268 n. 3 (Fla. 2003) (defining a scrivener's error as a written clerical error that is not "the result of a judicial determination or error"); Rivera v. State , 117 So. 3d 449 -50 (Fla. 2d DCA 2013) (remanding for correction of the written sentences to reflect the oral pronouncement in an Anders appeal); Skinner v. State , 155 So. 3d 497, 497 (Fla. 5th DCA 2015) (remanding for correction of scrivener's error in the order on fines and costs in an Anders appeal). The lower court orally imposed a $50 application fee for the public defender in addition to the $100 public defender fee and other mandatory costs. Appellant's written sentence does not reflect the $50 application fee for the public defender. On remand, the trial court shall correct the error.

Wetherell, Jay, and M.K. Thomas, JJ., concur.


text:
    Michael Allen CLARK, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-2472
    District Court of Appeal of Florida, First District.
    July 10, 2019
    Andy Thomas, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

In this appeal pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), we affirm the revocation of Appellant's probation and the resulting judgment and sentence. We note, however, that the written revocation order does not conform to the trial court's oral pronouncement in that it indicates Appellant violated conditions three and five of his probation, when the court found only a violation of condition three. On remand, the court should enter a corrected order accurately specifying the basis for the revocation.

See Wilkerson v. State , 82 So. 3d 1201 (Fla. 1st DCA 2012).

AFFIRMED and REMANDED with directions.

Ray, C.J., and Wetherell and Winokur, JJ., concur.


text:
    Jess J. MURPHY, Appellant, v. Shakyia Aloria SUMNER, Appellee.
    No. 1D19-1665
    District Court of Appeal of Florida, First District.
    July 16, 2019
    Jess J. Murphy, pro se, Appellant.
    No appearance for Appellee.
   Per Curiam.

Upon consideration of Appellant's response to the Court's order of May 8, 2019, the Court has determined that the appeal is untimely. Accordingly, the appeal is dismissed. Appellant's Motion for Civil Contempt and/or Return of Child(ren), filed May 6, 2019, is denied as moot.

Ray, C.J., and Bilbrey and Jay, JJ., concur.


text:
    Arthur O. FRANKLIN, Appellant, v. FLORIDA COMMISSION ON OFFENDER REVIEW, Appellee.
    No. 1D15-4283
    District Court of Appeal of Florida, First District.
    July 16, 2019
    Andy Thomas, Public Defender, and Glen Gifford, Assistant Public Defender, Tallahassee, for Appellant.
    Rana Wallace, General Counsel, Florida Commission on Offender Review, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED . Franklin v. State , 258 So. 3d 1239, 1241 (Fla. 2018) (affirming Franklin v. State , 141 So. 3d 210 (Fla. 1st DCA 2014) ).

Ray, C.J., and Kelsey and Winokur, JJ., concur.


author: PER CURIAM.

text:
    Alphonso RAY, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-3739
    District Court of Appeal of Florida, First District.
    July 16, 2019
    Alphonso Ray, pro se; Bruce A. Miller, Public Defender, and Julie M. Edwards, Assistant Public Defender, Milton, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of Appellant's response to the Court's order of September 4, 2018, the Court has determined that the appeal is untimely. Accordingly, the appeal is dismissed. The dismissal is without prejudice to Appellant filing a petition for belated appeal pursuant to Florida Rule of Appellate Procedure 9.141(c).

Roberts, Kelsey, and M.K. Thomas, JJ., concur.


text:
    Korey Der'renard GUNN, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-5062
    District Court of Appeal of Florida, First District.
    July 16, 2019
    Andy Thomas, Public Defender; and David A. Henson, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Moody, Attorney General; and Julian E. Markham, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Mr. Gunn appeals his conviction for robbery, and challenges his sentence in two respects. We reject his new-trial argument and affirm his conviction, but reverse his sentence and remand for resentencing before a different judge.

In an order rejecting Mr. Gunn's motion to correct sentencing error, the trial judge wrote the following:

Given the fact that Defendant committed the robbery in this case while on probation, it was always the intent of this Court that Defendant serve his prison sentence in this case consecutively to his VOP prison sentences. This Court's intent was known to the parties, including Defendant personally, prior to the trial in this case. Because this Court imposed the sentence that it intended to impose, Defendant's claim is without merit.

Sentencing judges must be impartial and not predisposed to a particular sentencing outcome. Cromartie v. State , 70 So. 3d 559, 564 (Fla. 2011) (invalidating sentence entered under a judge's stated policy of always rounding sentences up to the next whole year). Similarly in this case, the trial judge erred by having a predetermined, pretrial intention to sentence Mr. Gunn consecutively. We therefore vacate Mr. Gunn's sentence and remand for resentencing before a different judge.

REVERSED.

Rowe, Bilbrey, and Kelsey, JJ., concur.


author: CLARK, J., would grant.

text:
    STATE of Louisiana v. Chicobi SMITH
    No. 2019-KK-1035
    Supreme Court of Louisiana.
    June 22, 2019
    ON SUPERVISORY WRITS TO THE 24TH JUDICAL DISTRICT COURT FOR THE PARISH OF JEFFERSON
    Writ denied.
   CLARK, J., would grant.

CRICHTON, J., would grant and assigns reasons.

CRICHTON, J., would grant and assigns reasons.

I would grant and docket the State's writ application to re-examine the holding of State v. Jackson , namely that the trial judge must inform the jury, upon request by defendant, of the statutory penalty to be imposed upon defendant if he or she is found guilty when the penalty is mandatory life imprisonment. 450 So. 2d 621, 633-34 (La. 1984). See , e.g. , State v. Harris , 258 La. 720, 247 So. 2d 847, 851 (1971) ("[W]hen the penalty is the responsibility of the judge alone, the sentencing law is an improper subject for argument to the jury."); State v. Guidry , 2016-1412 (La. 3/15/17), 221 So. 3d 815, 830 (Crichton, J. concurring) ("The Louisiana Constitution imbues the legislature with the sole authority to define conduct as criminal and provide penalties for such conduct. La. Const. art. 3, § I ; State v. Taylor , 479 So.2d 339, 341 (La. 1985) ... 'the jury is the judge of the law and of the facts on the question of guilt or innocence,' but the court imposes the penalty in non-capital cases. La. C.Cr.P. arts. 802, 871.").


author: PER CURIAM

text:
    FLORIDA GAS TRANSMISSION CO., et al. v. TEXAS BRINE COMPANY, LLC, et al.
    Pontchartrain Natural Gas System, et al. v. Texas Brine Company, LLC, et al.
    Crosstex Energy Services, L.P., et al. v. Texas Brine Company, LLC, et al.
    No. 2019-CC-0978 No. 2019-CC-0979 No. 2019-CC-0980
    Supreme Court of Louisiana.
    June 18, 2019
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF ASSUMPTION
   PER CURIAM

Granted in part. Considering our order in Crosstex Energy Services, LP v. Texas Brine Co., LLC , 2018-1128 (La. 10/29/18), 255 So. 3d 587, the judgment of the court of appeal is vacated insofar as it finds the district court is divested of jurisdiction to consider Texas Brine's fraud-based claims in the Crosstex matter. We hereby grant a limited remand of the Crosstex appeal in order to permit the district court to conduct the trial, as scheduled, of Texas Brine's fraud-based claims in the Crosstex matter only. In all other respects, the writs are denied.

Justices Weimer, Guidry, and Clark, would deny all applications.

Justice Hughes would grant all applications.


author: THERIOT, J.

text:
    STATE of Louisiana IN the INTEREST OF N.J.
    NO. 2018 KJ 1606
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: MARCH 13, 2019
    Hillar Moore, III, District Attorney, Courtney E. Myers, Assistant District Attorney, Baton Rouge, Louisiana, Counsel for Appellant State of Louisiana
    A. Hays Town, III, Baton Rouge, Louisiana, Counsel for Appellee N.J.
    BEFORE: GUIDRY, THERIOT, AND PENZATO, JJ.
   THERIOT, J.

A child, identified herein as N.J., was alleged to be delinquent according to a petition filed on September 28, 2017, by the State pursuant to the Louisiana Children's Code. The petition was based upon the alleged commission of armed robbery (count one) in violation of La. R.S. 14:64, second degree kidnapping (count two) in violation of La. R.S. 14:44.1, aggravated assault with a firearm (count three) in violation of La. R.S. 14:37.4, and simple battery (count four) in violation of La. R.S. 14:35. N.J. denied the allegations. On November 29, 2017, the juvenile court adjudicated N.J. delinquent as alleged on counts one and two. On January 9, 2018, the juvenile court, on each count, committed N.J. to the Department of Public Safety and Corrections, Office of Juvenile Justice in a secure facility until his twenty-first birthday without the benefit of probation, parole, or suspension of sentence, to be served concurrently. The juvenile court denied the State's request to inform N.J. that he is required to register as a sex offender, the State's subsequent motion to reconsider sentence, and the State's request to present evidence of the victim's age. The State now appeals, arguing that the juvenile court erred in denying its request for sex offender registration notification. For the reasons that follow, we remand this matter to the juvenile court with instructions.

STATEMENT OF FACTS

According to the petition, the offenses occurred on September 18, 2017. The transcript of the adjudication hearing is not included in the record on appeal. However, the facts are not relevant to the issues addressed in the instant appeal.

ASSIGNMENT OF ERROR

In its sole assignment of error, the State argues that the juvenile court erred in denying the State's request to notify N.J. of the requirement to register as a sex offender.

DISCUSSION

The State notes that at the adjudication hearing, the Children's Advocacy Center (C.A.C.) interview of the victim was admitted into evidence. The State further notes that the interview was conducted on the same day as the offenses, September 18, 2017, and that the victim stated during the interview that she was twelve years old. Thus, the State argues that as N.J. was convicted of second degree kidnapping of a child who had not attained the age of thirteen years, in accordance with La. Ch. Code art. 884.1, the juvenile court was required to notify N.J. of his requirement to register as a sex offender. The juvenile court concluded that N.J. was entitled to notice prior to the adjudication that the State would be presenting evidence of the victim's age and denied the State's request.

On appeal, the State argues that the victim's age is not an element of second degree kidnapping, and therefore there was no notice required. Thus, the State contends that the juvenile court misinterpreted La. Ch. Code art. 884.1 in failing to notify N.J. of his requirement to register as a sex offender. The State prays for an order reversing the juvenile court's denial of the motion to reconsider sentence or, in the alternative, that this court reverse the juvenile court's actions and remand with instructions that the juvenile court, as part of the disposition, inform N.J. in accordance with La. Ch. Code art. 884.1 that he is required to register as a sex offender.

Legislation is the solemn expression of legislative will, and therefore, the interpretation of legislation is primarily the search for the legislative intent. La. Civ. Code art. 2 ; Burnette v. Stalder , 2000-2167, p. 6 (La. 6/29/01), 789 So.2d 573, 577 ; see also La. R.S. 24:177(B)(1) ("The text of a law is the best evidence of legislative intent."). When a law is clear and unambiguous and its application does not lead to absurd consequences, it shall be applied as written and no further interpretation may be made in search of legislative intent. La. Civ. Code art. 9 ; see also, La. R.S. 1:4 ; State v. I.C.S. , 2013-1023, p. 5 (La. 7/1/14), 145 So.3d 350, 353.

The intent of the registration and reporting requirements in La. R.S. 15:542 and La. Ch. Code art. 884.1 is clear and unambiguous. Specifically, La. R.S. 15:542, in pertinent part, provides:

A. The following persons shall be required to register and provide notification as a sex offender or child predator in accordance with the provisions of this Chapter:
* * *
(3) Any juvenile, who has attained the age of fourteen years at the time of commission of the offense, who has been adjudicated delinquent based upon the perpetration, attempted perpetration, or conspiracy to commit any of the following offenses:
* * *
(e) Second degree kidnapping of a child who has not attained the age of thirteen years ( R.S. 14:44.1 ).

Consistent therewith, as to the juvenile court's duty to inform the juvenile of sex offender registration and notification requirements, La. Ch. Code art. 884.1 clearly states, in pertinent part:

A. When the child has admitted the allegations of the petition or when adjudicated delinquent for any of the following offenses, the court shall provide him with written notice of the requirements for registration as a sex offender:
* * *
(5) Second degree kidnapping of a child who has not attained the age of thirteen years as defined in R.S. 14:44.1.
(Emphasis added).

Louisiana Children's Code Article 884.1 does not state that the child shall be notified of the sex offender registration requirements prior to adjudication; rather, only in the event of an admission or adjudication.

We note by analogy, that the above statutory interpretation is consistent with the plain language of the current version of La. R.S. 15:543, which, in part, governs the duties of the courts to inform the offender of the registration and notification requirements. Prior to revision by 2007 La. Acts No. 460, § 2, La. R.S. 15:543(A) stated, "The court shall provide written notification to any defendant charged with a sex offense of the registration requirements of R.S. 15:542." (Emphasis added). Subsection A now states: "The court shall provide written notification to any person convicted of a sex offense and a criminal offense against a victim who is a minor of the registration requirements and the notification requirements of this Chapter." (Emphasis added). Thus, the legislature removed the former requirement that an accused be informed of sex offender registration requirements based on charges, and now only requires such notice in the event of a conviction. Similarly, in accordance with Louisiana Children's Code article 884.1, a child must be notified upon admission or adjudication, and thus, is not entitled to notice, in the petition or otherwise, of the registration requirements based on a mere allegation.

Herein, in denying the State's post-adjudication request at the disposition hearing that N.J. be informed of the sex offender registration requirement, N.J.'s counsel objected, in part, stating: "We'll object to that request Judge, as the allegation made in the petition it was not, therefore it was not put before the tryer [sic] of facts." In denying the State's request, the juvenile court, in part, stated: "I do believe that the allegations of the victim's age needs to be plead [sic] or at the very least the court needs to make a finding on the facts. Now whether or not post adjudication, there could be some kind of evidence here [I'm] not sure about, I'll let the first circuit inform me of that."

In subsequently denying the State's motion to reconsider the disposition and/or to present evidence of the victim's age, the juvenile court stated, in part, "I think [it's] only fair that defendant [sic] be put on notice prior to the adjudication that there will be an element [that] needs to be proved." The court considered the fact that the other offenses requiring sex offender registration, unlike second degree kidnapping, did not require proof of an element not required to be proven beyond a reasonable doubt as an element of the underlying offense. The court further considered the "incredible burden" that the registration requirements place. The juvenile court did not recall whether evidence was presented at the adjudication hearing of the victim's age, and noted that no finding was made regarding the victim's age at the adjudication.

In response to the appeal, N.J. cites Apprendi v. New Jersey , 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435 (2000), and the Fifth and Fourteenth Amendments to the United States Constitution, noting that any fact (other than a prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt. In Apprendi , the defendant was indicted for possession of a firearm with an unlawful purpose after firing shots at the home of a family in his neighborhood. The offense carried a penalty range of five to ten years. Following his arrest, the defendant made a comment indicating his actions were racially motivated; however, no mention of his motive was made in the indictment. The defendant pled guilty and the State reserved its right to request sentencing enhancement based on New Jersey's hate-crime statute. The New Jersey hate-crime statute, in part, authorized a 20-year sentence, despite the usual 10-year maximum, if the judge found the crime to have been committed with a purpose to intimidate because of race. Apprendi , 530 U.S. at 468-70, 120 S.Ct. at 2351-52.

In Apprendi , the Supreme Court concluded that defendant's constitutional rights had been violated because the judge imposed a sentence greater than the maximum sentence due to his own finding, rather than a jury's determination, that the crime had been committed with the purpose of intimidating because of race. Apprendi , 530 U.S. at 491-97, 120 S.Ct. at 2363-66. The statutory maximum for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. Blakely v. Washington , 542 U.S. 296, 303, 124 S.Ct. 2531, 2537, 159 L.Ed.2d 403, 6 A.L.R. Fed. 2d 619 (2004).

At the outset, we note that it is well settled that juvenile delinquency proceedings are "noncriminal" or "civil" in nature. State ex rel. D.J. , 2001-2149, p. 4 (La. 5/14/02), 817 So.2d 26, 29 (citation omitted); State in Interest of R.V., 2011-138, p. 10 (La. App. 5th Cir. 12/13/11), 82 So.3d 402, 408. Because of the fundamental differences between the adult and juvenile systems, due process, and implicitly fundamental fairness, do not require that every constitutional right guaranteed to adults be automatically granted to juveniles. State ex rel. D.J. , 2001-2149 at p. 5, 817 So.2d at 30. Further, in this case the age of the victim does not constitute a fact that increases the maximum penalty for the offense.

Additionally, we note that Louisiana's sex offender registration requirements are not punitive; instead, they are remedial legislation intended to protect public safety. State v. I.C.S. , 2013-1023, pp. 9-11 (La. 7/1/14), 145 So.3d 350, 355-57 ; Smith v. State , 2010-1140, p. 15 (La. 1/24/12), 84 So.3d 487, 497 ;

State v. Billiot , 2012-0174, p. 6 (La. App. 1st Cir. 9/21/12), 104 So.3d 113, 117 ("...Louisiana's statutory scheme for registration of sex offenders is merely a civil regulatory framework."). Apprendi does not change this principle. In State ex rel. Olivieri , 2000-0172 (La. 2/21/01), 779 So.2d 735, cert. denied, 533 U.S. 936, 121 S.Ct. 2566, 150 L.Ed.2d 730 (2001), the Louisiana Supreme Court considered an ex post facto challenge to the sex offender registration provisions. The Court held the registration and notification requirements imposed upon sex offenders to be a legitimate, non-punitive regulatory scheme that did not impose punishment. Olivieri, 2000-0172 at pp. 21-24, 779 So.2d at 748-49. Because such provisions were found to be remedial in nature, the Court concluded that application of the sex offender registration and notification laws to persons convicted before their enactment does not violate ex post facto principles. Id. In State v. Trosclair , 2011-2302, pp. 15-16 (La. 5/8/12), 89 So.3d 340, 350, the Louisiana Supreme Court reaffirmed its position that the restrictions imposed by the sex offender registration and notification provisions are civil, rather than punitive, for the protection of the public. Similarly, in Smith v. Doe , 538 U.S. 84, 105-06, 123 S.Ct. 1140, 1154, 155 L.Ed.2d 164 (2003), the United States Supreme Court determined that Alaska's lifetime registration and notification requirements for sex offenders were non-punitive and, thus, did not violate the ex post facto clause.

We further note that non-Louisiana courts have considered and rejected application of Apprendi to sex offender registration statutes. For example, the Supreme Court of Nebraska in State v. Payan , 277 Neb. 663, 672, 765 N.W.2d 192, 201-02, 51 A.L.R.6th 573 (2009), held that the lifetime registration requirement in Nebraska's sex offender registration statute was not punitive, and thus the trial judge's finding of an aggravating offense triggering the requirement did not violate the principles articulated in Apprendi and Blakely . Similarly, the Court of Appeals of Maryland in Young v. State , 370 Md. 686, 716-18, 806 A.2d 233, 250-52 (2002), ruled that the statutory requirement that certain convicted defendants, depending on the age of the victim, register as sex offenders does not constitute punishment for purposes of the requirement under Apprendi that any fact other than a prior conviction that increases the penalty for a crime beyond the prescribed statutory maximum be submitted to a jury and proved beyond a reasonable doubt.

Considering the above, we find merit in the State's argument on appeal. The State in this case presented evidence that the victim was twelve years old at the time of the offense. Thus, N.J. was adjudicated delinquent for the second degree kidnapping, as defined in La. R.S. 14:44.1, of a child who had not attained the age of thirteen years. We find that the juvenile court should have considered the evidence of the victim's age for the purposes of post-adjudication notification of the sex offender registration requirement. For the foregoing reasons, this matter is remanded to the juvenile court. On remand, the juvenile court shall provide N.J. with appropriate written notice of the requirements for registration as a sex offender pursuant to La. Ch. Code art. 884.1(A)(5), and file written proof of such notice into the record of the proceedings.

ADJUDICATION AFFIRMED, REMANDED WITH INSTRUCTIONS.

      As stated in the amended petition, N.J.'s date of birth is October 14, 2002.

      Counts three and four were later dismissed. Thus, N.J. denied the allegations on counts one and two and the matter proceeded to adjudication on those two counts.

      The juvenile court further entered a disposition for an offense in a separate case, carrying a firearm or dangerous weapon on school property.

      Cf. State v. Gibson , 2009-486, pp. 10-15 (La. App. 5th Cir. 3/9/10), 38 So.3d 373, 379-81, writ denied, 2010-802 (La. 11/5/10), 50 So.3d 814. In Gibson , the defendant was sentenced in accordance with the penalty provision of La. R.S. 14:43.1(C)(2), which increased the maximum penalty for sexual battery from ten years to ninety-nine years imprisonment at hard labor when the victim is under thirteen years old and the offender is seventeen or older. The appellate court ultimately found that the Apprendi violation therein was harmless.

      See State v. Leblanc , 2004-1032, pp. 12-13 (La. App. 1st Cir. 12/17/04), 897 So.2d 736, 744, writ denied, 2005-0150 (La. 4/29/05), 901 So.2d 1063, cert. denied, 546 U.S. 905, 126 S.Ct. 254, 163 L.Ed.2d 231 (2005) (a multiple offender proceeding is a status rather than a criminal proceeding; Apprendi did not provide a basis for the defendant's argument therein that the trial court's sentencing procedure deprived him of his right to trial by jury on facts essential to his sentence).


author: LANIER, J.

text:
    Lauren PIZZOLATO and John Pizzolato, Individually and on Behalf of Their Minor Children v. Terry R. GRIER, Sr.
    NO. 2018 CA 0912
    Court of Appeal of Louisiana, First Circuit.
    Judgment rendered MARCH 14, 2019 Rehearing Denied April 10, 2019
    JAMES F. WILLEFORD, REAGAN L. TOLEDANO, NEW ORLEANS, LA AND NICHOLAS A. HOLTON, NEW ORLEANS, LA, ATTORNEYS FOR PLAINTIFFS-APPELLANTS, LAUREN PIZZOLATO AND JOHN PIZZOLATO, INDIVIDUALLY AND ON BEHALF OF THEIR MINOR CHILDREN
    BRETT M. BOLLINGER, JEFFREY E. McDONALD, COVINGTON, LA, ATTORNEYS FOR DEFENDANTS-APPELLEES, TERRY R, GRIER, SR., ENVIRONMENTAL MANAGEMENT & TESTING, LLC, AND ADMIRAL INSURANCE COMPANY
    BEFORE: WELCH, HIGGINBOTHAM, CHUTZ, PENZATO, AND LANIER, JJ.
   LANIER, J.

Plaintiffs appeal a judgment of the trial court sustaining defendants' exception raising the objection of prescription and dismissing plaintiffs' claims, with prejudice. For the reasons that follow, we reverse and remand for further proceedings.

This case involves a claim by plaintiffs, Lauren Pizzolato and John Pizzolato, against defendants, Terry R. Grier, Sr., his employer, Environmental Management & Training, LLC ("EMT"), and insurer, Admiral Insurance Company ("Admiral"), for personal injuries and property damage arising from alleged long-term exposure to mold and extreme moisture in their home. According to the record, plaintiffs contacted Mr. Grier, a professional engineer, in the summer of 2015 regarding a mold and moisture problem they were having in their home. Mr. Grier issued a report on July 7, 2015, recommending that plaintiffs install dehumidifiers "to correct the problem of high humidity conducive to the growth of mold." Mr. Grier advised plaintiffs to have their air condition systems checked to be sure they were functioning properly and also suggested having the slab checked because of the possibility of water being soaked up from the yard, through the slab, and into the floors. Mr. Grier further suggested that plaintiffs use Sniper and BioProtect to spot clean the mold. Mrs. Pizzolato testified that they had the slab checked, and there were no problems noted. Plaintiffs installed the dehumidifiers as recommended and continually had the dehumidifiers checked to be certain they were operating correctly.

Mr. Grier returned to the home in August 2015, after Mrs. Pizzolato emailed him to say that though things seemed to be better, they were "still seeing condensation in the home and that it still felt damp." Mr. Grier issued a second report on August 12, 2015. According to Mrs. Pizzolato, Mr. Grier advised her that they needed to be patient because "things were very wet and ... it shouldn't be a problem as long as the dehumidifiers continued to function properly." Mr. Grier reassured her, stating that it was going to take a long time. Mrs. Pizzolato testified, "[Mr. Grier] was ordering more Sniper for us to continue maintaining it and I felt that that was all we needed to do, was continue to do what he said and be patient."

Mrs. Pizzolato indicated that during this time, she was pregnant with her second child and was on bedrest from November 2015 until the birth of her son in January 2016. She explained that she, her four-year old daughter, and her newborn son "had all been sick" with "[s]inus issues, breathing issues, [and] different stuff," and they were not sure what was causing their health problems. Mrs. Pizzolato stated that the humidity levels in the house remained about the same through the winter and early spring months, but that when they began using the air conditioner again more regularly in May, they started to have more concerns about the humidity becoming a problem again. She testified, however, that it was not until July that they found the mold had spread significantly to other places where there was no mold before. Plaintiffs found mold in several kitchen drawers and "[i]t spread to the other side of [the] kitchen." Noting that "it was a significant amount more on July 12, and then it seemed to just spiral from July 12 forward," Mrs. Pizzolato indicated they took their kitchen apart, took everything outside, and cleaned it."

Plaintiffs sought a second opinion from Brent Driskill of Driskill Environmental Consultants, LLC, who provided them with detailed reports of his findings on July 29 and September 15,2016. According to Mr. Driskill's findings, the home was uninhabitable and not safe for humans based on the mold spore count in the home. Plaintiffs filed suit against Mr. Grier on May 4, 2017, alleging that the "professional engineering advice given to plaintiffs was negligent and below the standard of care and a cause in fact of plaintiffs' damages." Plaintiffs asserted that "the dehumidifiers not only did not correct the problem of excessively high humidity in the home but, exasperated the mold infiltration throughout the home."

Mr. Grier filed an answer generally denying the allegations of the petition and an exception raising the objection of prescription. He argued that plaintiffs "had actual and/or constructive knowledge of their claim prior to April 27, 2016, and, as such, their claims [were] prescribed." Plaintiffs filed an opposition to the exception, asserting that their claims sound in contract rather than in tort and that a 10- year prescription period applies; that negligence causing long term exposure to mold is a continuing tort and, thus, prescription did not begin to run until they vacated the home in late 2016; and that contra non valentem applies because plaintiffs neither knew nor had any reason to know of Mr. Grier's tortious conduct prior to July 2016. The matter proceeded to hearing on November 20, 2017, at which time Mrs. Pizzolato testified. In written reasons for judgment issued on December 29, 2017, the trial court sustained the exception raising the objection of prescription, dismissing plaintiffs' claims, with prejudice. The trial court signed a judgment on January 31, 2018, in accordance with its findings.

This appeal by plaintiffs followed. Plaintiffs argue that the trial court erred in 1) granting the prescription exception; 2) finding no evidence of a contract between the parties; 3) holding that plaintiffs' cause of action against Mr. Grier accrued before April 28, 2016; 4) holding that contra non valentem does not apply to suspend prescription of plaintiffs' cause of action; and 5) holding that Mr. Grier did not commit a continuing tort.

DISCUSSION

To meet the burden of proof on an exception raising the objection of prescription, evidence may be introduced at trial "to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition." La. Code Civ. P. art. 931. However, "[e]vidence not properly and officially offered and introduced cannot be considered, even if it is physically placed in the record. Documents attached to memoranda do not constitute evidence and cannot be considered as such on appeal." Denoux v. Vessel Management Services, Inc., 2007-2143 (La. 5/21/08), 983 So.2d 84, 88. Generally, in the absence of evidence, the objection of prescription must be decided based upon the facts alleged in the petition, which must be accepted as true. Kirby v. Field, 2004-1898 (La. App. 1 Cir. 9/23/05), 923 So.2d 131, 135, writ denied, 2005-2467 (La. 3/24/06), 925 So.2d 1230.

Ordinarily, the party pleading the exception of prescription bears the burden of proving the claim has prescribed. Hogg v. Chevron USA, Inc., 2009-2632 (La. 7/6/10), 45 So.3d 991, 998. However, if prescription is evident on the face of the pleadings, the burden shifts to the plaintiff to show the action has not prescribed. Williams v. Sewerage & Water Bd. of New Orleans, 611 So.2d 1383, 1386 (La. 1993), Thus, unless prescription is evident from the face of the pleadings, the party raising the objection of prescription bears the burden of proof. Guillot v. LECC-Baton Rouge Inc., 2005-2537 (La. App. 1 Cir. 12/28/06), 952 So.2d 42, 44. If evidence is introduced at the hearing on the peremptory exception raising the objection of prescription, the trial court's findings of fact are reviewed under the manifest error-clearly wrong standard of review. Southern Ins. Co. v. Metal Depot, 2010-1899 (La. App. 1 Cir. 6/10/11), 70 So.3d 922, 925, writ denied, 2011-1763 (La. 10/14/11), 74 So.3d 215.

In plaintiffs' original petition for damages, Mr. Grier is named in his capacity as a professional engineer. Plaintiffs retained Mr. Grier "to provide professional engineering services on the treatment of plaintiffs' home." Although Mr. Grier denied that he performed any professional engineering services for plaintiffs, he admitted that he was a licensed professional engineer. In the signature line of the two reports submitted by Mr. Grier to plaintiffs, Mr. Grier's name appears as follows: "Terry R. Grier, Sr. P.E. CIAQP, CIEC, CMC." Moreover, Mr. Grier's attorney conceded at oral argument that the other designations, "CIAQP, CIEC, CMC," do not require state licensing; however, he acknowledged that Mr. Grier does maintain a professional engineering license in Louisiana.

Based on our review of the record evidence, we find the trial court legally erred in finding that plaintiffs' claim was subject to a one year prescriptive period. We find this to be an action against a professional engineer, which, whether based on tort or breach of contract, is subject to a five year prescriptive period as set forth in La. R.S. 9:5607, which provides, in pertinent part, as follows:

A. No action for damages against any professional engineer ... whether based upon tort, or breach of contract, or otherwise arising out of an engagement to provide any manner of movable or immovable planning, construction, design, or building, which may include but is not limited to consultation, planning, designs, drawings, specifications, investigation, evaluation, measuring, or administration related to any building, construction, demolition, or work, shall be brought unless filed in a court of competent jurisdiction and proper venue at the latest within five years from:
....
(3) The date the person furnishing such services has completed the services with regard to actions against that person, if the person performing or furnishing the services, as described herein, does not render the services preparatory to construction, or if the person furnishes such services preparatory to construction but the person furnishing such services does not perform any inspection of the work.
B. The provisions of this Section shall apply to all persons whether or not infirm or under disability of any kind and including minors and interdicts.
C. The five-year period of limitation provided for in Subsection A of this Section is a peremptive period within the meaning of Civil Code Article 3458 and in accordance with Civil Code Article 3461, may not be renounced, interrupted, or suspended.

A review of Mr. Grier's reports reveals that the work he performed for plaintiffs included "consultation, planning ... investigation, evaluation, [and] measuring" as a professional engineer. His final inspection of the premises was on August 11, 2015. Thus, as set forth in La. R.S. 9:5607(A)(3), plaintiffs had five years from that date to file their claim against Mr. Grier, making their 2017 suit against him timely.

For the above and foregoing reasons, we reverse the trial court's January 31, 2018 judgment and remand the matter for further proceedings. We assess all costs associated with this appeal against the defendants/appellees, Terry R. Grier, Sr., Environmental Management & Training, LLC, and Admiral Insurance Company.

REVERSED AND REMANDED.

Penzato, J., concurs with reasons

PENZATO, J., concurs.

I respectfully concur with the majority and write separately to note that the single five year period of limitation for actions against professional engineers provided for in La. R.S. 9:5607 is a peremptive period, as opposed to a prescriptive period. I recognize that the Fourth Circuit has held that the one year prescriptive period for delictual actions was not displaced by the five year peremptive period of La. R.S. 9:5607. MR Pittman Group, LLC v. Plaquemines Parish Government , 2015-0396 (La. App. 4 Cir. 12/2/15), 182 So.3d 291, 297. I respectfully disagree with the Fourth Circuit's interpretation of the language of La. R.S. 9:5607, and decline to follow same. See Daigle v. Clemco Industries , 593 So.2d 1282, 1286 n.4 (La. App. 1 Cir. 1991).

      Plaintiffs' original petition was fax-filed on April 28, 2017. In an amended petition filed on October 9, 2017, plaintiffs added Mr. Grier's employer, EMT, and his insurer, Admiral, as additional defendants.

      EMT and Admiral joined in on the prescription exception on November 3, 2017.


author: WHIPPLE, C.J.

text:
    Benny HERNANDEZ v. EXCEL CONTRACTORS, INC.
    NUMBER 2018 CA 1091
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: MARCH 13, 2019
    Danial C. Vidrine, Baton Rouge, LA, Counsel for Plaintiff/Appellant Benny Hernandez
    Timothy E. Pujol, Matthew W. Pryor, Barbara Lane Irwin, Gonzales, LA, Counsel for Defendant/Appellee Excel Contractors, Inc.
    Robert A. Dunkelman, Joshua P. Monteleone, Shreveport, LA, Counsel for Defendant/Appellee SPX Cooling Technologies, Inc., Xcel Erectors, Inc., and James Meidl
    J. Alan Harrell, Benjamin M. Anderson, John B. Shortess, Baton Rouge, LA, Mark C. Dodart, New Orleans, LA, Counsel for Defendant/Appellee CF Industries, Inc.
    BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ.
   WHIPPLE, C.J.

Plaintiff, Benny Hernandez, appeals a judgment of the trial court granting summary judgment in favor of defendants, SPX Cooling Technologies, Inc., Xcel Erectors, Inc., and James Meidl, dismissing plaintiff's negligence claims with prejudice, and maintaining these defendants' exception of no cause of action as to plaintiff's intentional tort claims. For the following reasons, we dismiss the appeal.

FACTS AND PROCEDURAL HISTORY

This matter originally came before this court in 2017 on an appeal ("2017 appeal") filed by plaintiff, Benny Hernandez. See Hernandez v. Excel Contractors, Inc., 2017-0762 (La. App. 1st Cir. 12/21/17), 2017 WL 6524030 (unpublished). However, the 2017 appeal was ultimately dismissed by this court. While we will not reiterate herein all of the underlying facts regarding the dispute set forth in this court's prior opinion, we include the pertinent procedural events.

Plaintiff instituted this suit on September 16, 2015 by filing a petition for damages against Excel Contractors, Inc. as well as its insurer, alleging that plaintiff was employed by ASAP Employment Services, Inc. and that he was injured on September 16, 2014 while working at a "CF1 Industries plant." Plaintiff later filed an amended and supplemental petition, which named SPX Cooling Technologies, Inc., Xcel Erectors, Inc., CF Industries, Inc., and James Meidl as defendants. In response to the amended and supplemental petition, SPX Cooling Technologies, Inc., Xcel Erectors, Inc., and James Meidl ("defendants") filed a "Peremptory Exception for [sic] No Cause of Action, and in the Alternative, Motion for Summary Judgment," which sought dismissal, with prejudice, of all claims against defendants. On February 22, 2017, the trial court rendered judgment (hereinafter, the "2017 judgment"), which, in pertinent part, granted the motion for summary judgment filed by SPX Cooling Technologies, Inc., Excel Erectors, Inc., and James Meidl and dismissed Hernandez's claims against these defendants with prejudice and at plaintiffs costs. The judgment further decreed that the Exception of No Cause of Action was moot as to the statutory employee issue, but was sustained, however, as to plaintiff's claims for intentional torts. The judgment further ordered plaintiff to amend his pleadings within thirty days of the signing of the judgment "to sufficiently plead any intentional torts if he so chooses."

Plaintiff appealed the 2017 judgment, but this court eventually dismissed the appeal because no portion of the 2017 judgment was a final judgment for the purpose of immediate appeal. After examining the 2017 judgment, this court concluded that the summary judgment granted by the trial court was dispositive of plaintiff's negligence claims only and, therefore, was a partial summary judgment granted pursuant to LSA-C.C.P. art. 966(E). Thus, because the 2017 judgment lacked a designation as final and an express determination by the trial court that there was no just reason for delay in accordance with LSA-C.C.P. art. 1915(B)(1), this court concluded that we lacked appellate jurisdiction to review the partial summary judgment. This court further noted that the remaining portion of the 2017 judgment was not final and appealable in that it granted an exception of no cause of action and permitted plaintiff a period of time in which to amend his petition. Accordingly, finding no portion of the 2017 judgment immediately appealable, this court was constrained to dismiss the 2017 appeal.

While the appeal of the 2017 judgment was pending with this court, however, defendants filed a Motion to Dismiss the intentional tort claims of Mr. Hernandez in the trial court on August 22, 2017, which the trial court granted. In the Motion to Dismiss, defendants averred that, despite the signing of an order of appeal from the 2017 judgment, the trial court retained jurisdiction over the intentional tort claims pursuant to LSA-C.C.P. art. 1915. Despite the pending appeal of the 2017 judgment, defendants contended that plaintiffs failure to comply with the trial court's 2017 judgment, which ordered plaintiff to amend his pleadings to sufficiently allege intentional tort claims within thirty days of the signing of the 2017 judgment, necessitated the dismissal of plaintiffs intentional tort claims. Apparently finding merit to the defendants' contention, on August 29, 2017, the trial court signed an order of dismissal, which stated as follows:

CONSIDERING THE FOREGOING, IT IS HEREBY ORDERED that, pursuant to La. CCP art 934, Defendants' Motion to Dismiss is hereby GRANTED as to the intentional tort claims of Plaintiff, BENNY HERNANDEZ, against Defendants, SPX COOLING TECHNOLOGIES, INC., XCEL ERECTORS, INC. and JAMES MEIDL, and those intentional tort claims shall be dismissed with prejudice, at Plaintiff's cost.

Four months later, on December 21, 2017, this court rendered its opinion in the then-pending appeal of the 2017 judgment, dismissing the appeal for lack of appellate jurisdiction.

After this court's dismissal of the 2017 appeal, plaintiff circulated and filed an "Amended Final Judgment" in an attempt to cure the defects in the 2017 judgment noted by this court. Notwithstanding defendants' opposition to the filing of the "Amended Final Judgment," the trial court signed the judgment as submitted by plaintiff on April 18, 2018. The "Amended Final Judgment" was substantively identical to the previous judgment, with the exception that it included the following designation at the end of the judgment: "IT IS FURTHER ORDERED, ADJUDGED AND DECREED that this Judgment is a Final Judgment in accordance with LSA-C.C.P. arts 1915(A)(3) and 1915(B)(1) for the purposes of an immediate appeal and that there is 'no just reason for delay.' " However, the "Amended Final Judgment" retained the provision allowing plaintiff thirty days to amend his pleadings to allege intentional torts, despite the fact that the trial court had previously dismissed plaintiff's intentional tort claims.

Plaintiff now appeals this "Amended Final Judgment" assigning the same errors as stated in his previous appeal.

PRESCRIPTION

As an initial matter, we must address a procedural issue raised (for the first time) in pleadings filed in this court. Although not filed in the trial court below, defendants have now filed a peremptory exception with this court pursuant to LSA-C.C.P. art. 927 raising the objection of prescription. Defendants contend that plaintiff's claims are subject to the one-year prescriptive period set forth in LSA-C.C. art. 3492 and that plaintiff instituted this suit against Excel Contractors, Inc. on the last day of the applicable prescriptive period. Defendants note that plaintiff amended his petition to add claims against the defendants, but the claims against Excel Contractors, Inc. were ultimately dismissed upon the grant of a motion for summary judgment. Defendants contend that plaintiff's claims against them are prescribed on the face of the amended petition and that the original petition against a party with no liability for plaintiff s damages does not serve to interrupt the prescriptive period. However, for the reasons that follow, we again find that this court lacks appellate jurisdiction with regard to the "Amended Final Judgment" and, accordingly, we pretermit defendants' exception raising the objection of prescription, which may be raised in proceedings below.

APPELLATE JURISDICTION

The defendants contend at the outset that: (1) the instant appeal is late, as the entire case had been disposed of, at the latest, when this court rendered its prior appeal decision, and (2) the plaintiff attempted to revive his appeal delays by improperly filing an "Amended Final Judgment." However, these arguments are predicated upon a finding that the trial court retained jurisdiction over plaintiff's intentional tort claims against defendants. For the reasons that follow, we are not persuaded by defendants' arguments and find, again, that we lack jurisdiction to consider this appeal.

The record reflects that the order of dismissal was signed on August 29, 2017 and purported to dismiss the intentional tort claims of the plaintiff despite the pending 2017 appeal. Louisiana Code of Civil Procedure article 2088 provides that the jurisdiction of the trial court over all matters in the case reviewable under the appeal is divested on the granting of the order of appeal in the case of a devolutive appeal. See Thibaut v. Thibaut, 607 So.2d 587, 602 (La. App. 1st Cir. 1992), writs denied, 612 So. 2d 37, 1993 WL 34488, 1993 WL 34496, 612 So. 2d 38, 1993 WL 34499, 1993 WL 34522, and 612 So.2d 101 (La. 1993). Any order or judgment rendered subsequent to the order granting an appeal is null if that order or judgment purports to address a matter which is at the time reviewable under the appeal. See Union Planters Bank, N.A. v. City of Gonzales, 2005-1898 (La. App. 1st Cir. 2/10/06), 923 So.2d 790, 793, writ denied, 2006-0991 (La. 6/16/06), 929 So.2d 1292 (citing Barnes v. L.M. Massey, Inc., 93-1080 (La. App. 1st Cir. 5/20/94), 637 So.2d 799, 801 writ denied, 94-2279 (La. 12/9/94), 647 So.2d 1107 ).

Here, the order dismissing the intentional tort claims on August 29, 2017 was issued after the order granting the 2017 appeal was already signed, on March 29, 2017. Defendants, however, contended in their Motion to Dismiss filed in the trial court that the trial court retained jurisdiction over the intentional tort claims pursuant to LSA-C.C.P. art. 1915(C), which provides "[i]f an appeal is taken from any judgment rendered under the provisions of this Article, the trial court shall retain jurisdiction to adjudicate the remaining issues in the case." Incorrectly positing to the trial court that the partial grant of the motion for summary judgment was appealable pursuant to LSA-C.C.P. art. 1915(A)(3), defendants contended in the trial court that plaintiff's failure to designate as final the portion of the 2017 judgment sustaining the exception of no cause of action permitted the trial court to revise that portion of the judgment at any time prior to rendition of a final judgment adjudicating all claims of all the parties pursuant to LSA-C.C.P. art. 1915(B)(2). In the present appeal, defendants maintain that the divesting of the trial court's jurisdiction under LSA-C.C.P. art. 2088 is determined by which matters were, in fact, reviewable, in the prior appeal. Defendants contend the sustaining of the exception of no cause of action was not reviewable by this court had there been appellate jurisdiction in the 2017 appeal.

Importantly, however, in the 2017 appeal, plaintiff requested and the trial court granted an appeal of "the Final Judgment rendered by this Court on the 22nd day of February, 2017," which judgment included the partial grant of a motion for summary judgment dismissing the negligence claims and the sustaining of an exception of no cause of action as to the intentional tort claims. While the Supreme Court has noted that LSA-C.C.P. art. 2088 provides that "the trial court is divested of jurisdiction only as to the parties and issues which are the subject of the judgment which has been appealed," the 2017 judgment in this case which was before us on appeal involved all of plaintiff's claims against SPX Cooling Technologies, Inc., Xcel Erectors, Inc., and James Meidl - both the negligence claims as well as the intentional tort claims. James v. Formosa Plastics Corp. of Louisiana, 2001-2056 (La. 4/3/02), 813 So.2d 335, 340 (citing Walker v. Jones, 257 La. 404, 242 So.2d 559 (1970) ).

In Welch v. Crown-Zellerbach Corp., 365 So.2d 586 (La. App. 1st Cir. 1978), this court examined the jurisdiction of the trial court and the appellate court when an appeal is taken from a partial final judgment and considered the joint effect of LSA-C.C.P. art. 2088 and 1915 on the trial court's jurisdiction. In Welch, plaintiff appealed a judgment of the trial court issued after the trial court had previously granted an appeal from a prior judgment sustaining an exception of one defendant, Crown Zellerbach. In the Crown Zellerbach judgment previously appealed, no other issue or parties were included in the judgment, and this court noted that opinions of this court and the Supreme Court issued on the appeal of the first judgment only dealt with the sustaining of Crown Zellerbach's exception as to plaintiff. Notwithstanding, plaintiff contended that the trial court was divested of jurisdiction upon the signing of the order for a devolutive appeal of the Crown Zellerbach judgment such that the trial court's subsequent judgment granting the exceptions of Robert Campbell and Southern Casualty Insurance Company while the Crown Zellerbach judgment was on appeal was a nullity.

After acknowledging the provision of LSA-C.C.P. art. 1915 setting forth that when an appeal of a partial final judgment is taken, the trial court retains jurisdiction to adjudicate the remaining issues in the case, and after considering LSA-C.C.P. art. 2088, this court ruled as follows:

This article [ art. 2088 ] is to be understood to divest the trial court of jurisdiction over the case when the appeal is taken only with respect to those matters which are reviewable under the appeal. Therefore, since the January 24, 1977 judgment mentioned only the sustaining of peremptory exceptions and the dismissal of plaintiff's suit as to Crown Zellerbach, it was the only matter reviewable on appeal and therefore only this fell under the divesting effect of CCP Article 2088. Walker v. Jones, 257 La. 404, 242 So.2d 559 (1970).
While we appreciate the problems involved in this lengthy and procedurally complicated case, we find that the trial court was not divested of jurisdiction as to Campbell's and Southern's exception when Welch was granted its devolutive appeal as to the sustaining of Crown Zellerbach's peremptory exceptions.

Id. at 590. (Emphasis added.) See also Valet v. City of Hammond, 577 So.2d 155, 162 (La. App. 1st Cir. 1991) (finding that the trial court retained jurisdiction over issues and claims not mentioned or adjudicated in a partial final judgment previously appealed).

Applying these precepts to the instant case, while this court ultimately determined that we lacked appellate jurisdiction to review the 2017 judgment, jurisdiction over the issues and parties included within the 2017 judgment clearly was divested from the trial court upon the signing of the order of appeal on March 29, 2017. See Halley v. Guerriero, 577 So.2d 781, 783 (La. App. 2nd Cir. 1991) (even though the appeal was later dismissed as interlocutory, the trial court was found to have been divested of jurisdiction upon the granting of the order of appeal such that it lacked jurisdiction to dismiss the suit). An appellate court not only has an independent duty to consider whether it has subject matter jurisdiction over the matter, but also has the sole authority to determine whether an appeal is properly before it once the trial court's jurisdiction has been divested. Gros v. STMG Lapeyre, LLC, 2014-0848 (La. App. 1st Cir. 5/6/15), 2015 WL 2169680, *3 (unpublished) (citing Downey v. Bellue, 178 So.2d 778, 781 (La. App. 1st Cir. 1965) ).

Here, as part of the 2017 judgment, plaintiff's intentional tort claims against SPX Cooling Technologies, Inc., Xcel Erectors, Inc., and James Meidl were reviewable under the then-pending appeal, notwithstanding the fact that this court did not exercise its supervisory jurisdiction over these claims. See State ex rel. Div. of Admin., Office of Risk Mgmt. v. Nat'l Union Fire Ins. Co. of Louisiana, 2010- 0689 (La. App. 1st Cir. 2/11/11), 56 So.3d 1236, 1242, fn. 6, writ denied, 2011- 0849 (La. 6/3/11), 63 So.3d 1023 ("In the case of an appeal of a partial judgment or partial summary judgment designated as final under La. C.C.P. art. 1915(B), an appellant may also appeal an interlocutory judgment involving the same or related issues..."); also see Stevens v. St. Tammany Par. Gov't, 2016-0534 (La. App. 1st Cir. 1/18/17), 212 So.3d 568, 578.

Consequently, the trial court in this case was divested of jurisdiction and did not have the authority to render a judgment dismissing the intentional tort claims (for failure to amend as previously ordered by the judgment under review by this court) when it did so, as any judgments signed by the trial court regarding matters which were pending under the appellate jurisdiction of this court are null and void for lack of jurisdiction. See Union Planters Bank, 923 So.2d at 793 ; Barnes, 637 So.2d at 801. Accordingly, the August 29, 2017 order of the trial court, dismissing the intentional tort claims while the 2017 appeal was pending, is a nullity. Accordingly, we must proceed with our analysis herein as if the order dismissing the intentional tort claims had never been rendered.

Jurisdiction is the legal power and authority of a court to hear and determine an action or proceeding involving the legal relations of the parties and to grant the relief to which they are entitled. LSA-C.C.P. art. 1. Appellate courts have a duty to examine their subject matter jurisdiction sua sponte, even if the litigants do not raise the issue. Succession of Matthews, 2016-0289 (La. App. 1st Cir. 1/5/17), 212 So.3d 547, 551, writs denied, 2017-0230 (La. 3/31/17), 217 So.3d 361, 2017-00236 (La. 3/31/17), 217 So.3d 361, 2017-0243 (La. 3/31/17), 217 So.3d 361.

As noted in our prior opinion, the 2017 judgment, per se, could not be a final judgment for purposes of an immediate appeal. The 2017 judgment contained the grant of a partial summary judgment under the provisions of LSA-C.C.P. art. 966(E) without the necessary designation of finality pursuant to LSA-C.C.P. art. 1915(B)(1) and the sustaining of an exception of no cause of action, which was not immediately appealable and final, as it contained a provision allowing the plaintiff time to amend his petition.

In the present appeal, the "Amended Final Judgment" retains the original language in the 2017 judgment, but purports to designate the entire judgment as a final judgment pursuant to LSA-C.C.P. art. 1915(B)(1). However, a trial court's designation of a judgment as final is not determinative. Quality Environmental Processes, Inc., v. Energy Development Corporation, 2016-0171, (La. App. 1st Cir. 4/12/17), 218 So.3d 1045, 1054. As an appellate court, we are obligated to determine whether the trial court properly designated the judgment as final pursuant to LSA-C.C.P. art. 1915 and to recognize any lack of jurisdiction if it exists. Radcliffe 10, L.L.C. v. Burger, 2017-0967 (La. App. 1st Cir. 5/29/18), 251 So.3d 435, 440. The appellate court's jurisdiction to decide an appeal hinges on whether the certification was proper. Templet v. State ex rel. Dept. of Public Safety and Corrections, 2005-1903, (La. App. 1st Cir. 11/3/06), 951 So.2d 182, 185. Because the trial court gave no explicit reasons for the designation in this case, we must review that determination de novo on the record before us. R.J. Messinger, Inc., v. Rosenblum, 2004-1664 (La. 3/2/05), 894 So.2d 1113, 1122-1123.

In determining whether a judgment is properly designated as final for purposes of an immediate appeal, a court must always keep in mind the historic policies against piecemeal appeals. Quality Environmental, 218 So.3d at 1055 ; Templet, 951 So.2d at 185 ; R.J. Messinger, Inc., 894 So.2d at 1122. As set forth in R.J. Messinger, Inc., the following factors should be considered in determining whether the trial court's certification of a partial judgment was appropriate: (1) the relationship between the adjudicated and non-adjudicated claims; (2) the likelihood that review could be mooted pending future developments in the trial court; (3) the likelihood that the reviewing court might be required to consider the same issue a second time; and (4) miscellaneous factors including delay, economic and solvency considerations, shortening the time of trial, frivolity of competing claims, expense, and other similar factors. Id. at 1122.

In considering the first part of the "Amended Final Judgment," which partially granted defendants' motion for summary judgment and dismissed plaintiff's negligence claims against defendants with prejudice, we find that the relationship between the adjudicated and non-adjudicated claims does not support the need for an immediate appeal of the partial judgment. The determination of plaintiff's negligence claims against defendants will not affect the remaining intentional tort claims, which are still pending at this juncture. In addition to the factors set forth in R.J. Messinger. Inc., however, we must determine the paramount question of whether there is no just reason for delay. Id. at 1122.

In this case, with the intentional tort claims against the defendants still pending and viable (in addition to a recently raised exception of prescription), we are unable to say that there is no just reason for delay in the appeal of that portion of the "Amended Final Judgment" partially granting defendants' motion for summary judgment. Instead, we find that the trial court incorrectly certified this portion of the judgment as final and immediately appealable.

Moreover, the remaining portion of the "Amended Final Judgment" was not properly certified either. In Alker v. Rauch, 498 So.2d 28, 29-30 (La. App. 1st Cir. 1986), the district court signed a judgment sustaining defendant's exception, ordering plaintiffs to amend the petition within fifteen days, and indicating that the failure of plaintiffs to amend would result in the dismissal of their demands. Similar to the instant case, in lieu of complying with the trial court's order, plaintiffs appealed the judgment. Despite not amending their pleading within fifteen days, no further judgment of dismissal of plaintiffs' demands was accomplished. This court held that this conditional judgment, without a subsequent judgment of dismissal, was not appealable. This court specifically noted that plaintiffs could still amend the pleadings - even though the time period set forth in the judgment had elapsed - unless or until defendants moved to dismiss plaintiffs' demands for such failure to amend. We concluded that in fact, such a "judgment does nothing more than order or permit an amendment within a delay allowed by the court as provided by LSA-C.C.P. art. 934." Id. at 30. Accordingly, the appeal was dismissed. See also Schroeder v. Board of Supervisors of Louisiana State University, 540 So.2d 380, 382 (La. App. 1st Cir. 1989).

Further, as recognized by our learned colleagues in the Third and Fourth Circuit Courts of Appeal, a judgment that provides the plaintiff with the opportunity to amend the petition is incapable of being designated as final pursuant to LSA-C.Cr.P. art. 1915(B) because it does not rule, in whole or in part, on the merits of the suit and is, at best, an interlocutory ruling. See Cole v. Sabine Bancshares, Inc., 2016-796 (La. App. 3rd Cir. 11/16/16), 205 So.3d 995, 996. See also Taylor v. Consolidated Rail Corp., 391 So.2d 1351, 1352 (La. App. 4th Cir. 1980). Accordingly, the portion of the judgment sustaining the exception of no cause of action and granting leave to amend likewise was improperly designated as final.

Because the "Amended Final Judgment" was improperly designated as final in its entirety, we lack subject matter jurisdiction over this appeal, and it must be dismissed.

CONCLUSION

For the above reasons, the instant appeal is hereby dismissed, and the defendants' exception raising the objection of prescription is hereby pretermitted. Costs are assessed one-half each to plaintiff, Benny Hernandez, and defendants, SPX Cooling Technologies, Inc., Xcel Erectors, Inc., and James Meidl.

PEREMPTORY EXCEPTION RAISING THE OBJECTION OF PRESCRIPTION PRETERMITTED; APPEAL DISMISSED.

McLendon, J. concurs.

      Excel Contractors, Inc. answered the petition and then filed a motion for summary judgment, which was granted on July 8, 2016, as it established that none of Excel Contractors, Inc.'s employees could have been responsible for plaintiff's injuries.

      As noted in this court's prior opinion, plaintiff's amended petition mistakenly identified James Meidl as "James Merrill" and CF Industries Nitrogen, LLC as "CF Industries, Inc."

      Plaintiff contends that the trial court erred in: (1) finding that the service agreement between ASAP Employment Services, Inc. (plaintiff's employer) and SPX Cooling Technologies was a "contract" within the meaning of LSA-R.S. 23:1032 ; (2) finding that plaintiff was a "statutory employee" within the meaning of LSA-R.S. 23:1032 ; and (3) not allowing plaintiff to conduct "adequate" discovery in this matter.

      Louisiana Code of Civil Procedure article 2163 permits the appellate court to consider a peremptory exception filed for the first time on appeal when the exception is pleaded prior to submission of the case for decision and proof of the ground of the exception appears in the record. While the plaintiff may demand a remand to the trial court for a trial of the exception when the exception pled in the appellate court is prescription, plaintiff did not do so. Therefore, this court has the discretion to consider the peremptory exception of prescription in this matter. LSA-C.C. art. 2163; Southgate Residential Towers, LLC v. Mapp Const., Inc., 2007-0859 (La. App. 1st Cir. 12/21/07), 2007 WL 4465777, *8-9 (unpublished).

      Moreover, even if this court had determined that the portion of the "Amended Final Judgment" partially granting the motion for summary judgment was properly certified, it is unlikely that a judgment purporting to designate the entire judgment as final would be valid in light of this court's recent per curiam opinion in Advanced Leveling & Concrete Solutions v. Lathan Company. Inc., 2017-1250 (La. App. 1st Cir. 12/20/18), 268 So. 3d 1044, 2018 WL 6716997, *2 when one portion of the certified judgment is incapable of being designated as final pursuant to LSA-C.C.P. art. 1915(B)(1).