author: STEPHENS, J.

text:
    In the MATTER OF BCL INVESTMENTS, L.L.C.
    No. 52,387-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered January 16, 2019
    HARPER LAW FIRM, By: Jerald R. Harper, Shreveport, Anne E. Wilkes, Counsel for Defendant-Appellant Barry Barton
    KITCHENS LAW FIRM, By: Richard Russell Ray, Bossier City, Counsel for Third Party Appellee BCL Investments
    PETTIETTE, ARMAND, DUNKLEMAN, WOODLEY, BYRD & CROMWELL, By: Robert A. Dunkleman, E. Henry Byrd, IV, Shreveport, Counsel for Plaintiff-Appellee William Long
    Before WILLIAMS, MOORE, and STEPHENS, JJ.
   STEPHENS, J.

Barry Barton appeals a judgment by the Twenty-Sixth Judicial District Court, Parish of Bossier, State of Louisiana, granting an exception of no right of action filed by William R. Long. For the following reasons, we affirm the trial court's judgment.

FACTS AND PROCEDURAL HISTORY

Barry Barton and William R. Long are the only members of BCL Investments, L.L.C. ("BCL"), a Louisiana limited liability company-each having a 50% ownership interest and equal voting rights. BCL's sole business is the ownership and development of a commercial use "strip" shopping center in Bossier City, Louisiana, known as "Park Place Plaza" (the "property").

The Petition and Answer

Long filed a petition seeking the judicial dissolution of BCL on August 30, 2017, wherein he claimed that "[t]he current members have reached an impasse as to the objectives, purposes and future of BCL and it is not reasonably practical to carry on the business of BCL [.]" According to his petition, in May 2016, Barton approached Long with information regarding a potential buyer for the property; Long was interested, but the prospect backed out. Long alleged that afterwards, due to disagreements over the management of the property, he and Barton attempted to sell the property, but that was unsuccessful. Additionally, Long asserted that the parties attempted a resolution where one member would buy the other out of BCL-to no avail. Long made other allegations which he claimed indicated Barton's breach of the fiduciary duty owed to him and the LLC. Thus, Long requested the dissolution of BCL and an appointment of a liquidator.

Barton answered the petition, denying most of the allegations, but admitting that: disagreements between him and Long over the management of BCL existed; efforts had been made to sell the property; and, BCL should be dissolved and a liquidator should be appointed.

The parties entered into a consent order on October 25, 2017, naming Richard Ray as liquidator in the matter.

Barton's Rule to Show Cause

Shortly after the appointment of Ray as liquidator, Barton filed a rule to show cause regarding payment of compensation prior to the distribution of assets. In Barton's rule to show cause, it was claimed that he and Long were negotiating terms for the buyout of their respective interests in BCL. Barton alleged in his pleading that Long, an attorney, agreed to provide legal services to BCL without charge, and Barton, a CPA, agreed to provide accounting services without charge-all in furtherance of BCL's objectives. Barton alleged that BCL procured the services of a local real estate firm, Lea Hall Properties, to handle the leasing of the property. As claimed by Barton, the agreement with Lea Hall Properties provided for BCL to pay commission "up front" upon execution of any lease-6% of the entire lease revenues for the entire term of the lease. Barton characterized this agreement with the real estate firm as a financial burden to BCL, especially in the early phase of the business.

Therefore, Barton alleged he and Long made an oral agreement that for any tenant Barton secured for the property, the "up front" commission would be avoided, and any right Barton had to "compensation" for the lease of the property would be deferred until BCL sold the property. Barton claimed to have secured several tenants, and attached to his pleading sample pages from the leases. Apparently, in the initial leases, Long referred to "commissions" payable to Lea Hall Properties, but in subsequent leases, Long referred to "commissions" as to Barton. However, in those leases, Long stated "all such commissions waived as Barry Barton is also one of the Landlords at this time." Barton alleged that he questioned why Long used the word "waived" instead of "deferred," and claimed Long explained that was the legally proper language.

In the rule to show cause, Barton set forth several tenants he allegedly secured, the dates of their leases, monthly base rent, terms of the leases, and the compensation he claimed was due him. The grand total he claimed to be due as a result of securing tenants for the property on behalf of BCL was $55,613.47.

Peremptory Exception of No Right of Action And Opposition to Rule to Show Cause

In response to Barton's filing, Long filed his peremptory exception of no right of action and opposition to rule to show cause. Therein, he referenced Barton's allegation that he and Long had an oral agreement whereby BCL would in effect pay Barton a real estate commission for any tenants he secured for the property. Generally, Long's exception contended that Barton is statutorily prohibited from recovering a commission for the rentals of the property because he lacks a valid real estate license. Specifically, Long argued that "the recruiting and securing of tenants with the expectation of collecting a fee, commission, or other valuable consideration is 'real estate activity' as defined and governed by" La. R.S. 37:1430, et seq . Citing La. R.S. 37:1436 as authority, Long submitted that a person cannot recover a fee or commission unless he has a license from the Louisiana Real Estate Commission. Considering the statutory law, Long argued that Barton has never possessed a real estate salesperson or broker's license. Furthermore, Long contended that Barton did not allege he was a real estate salesperson or broker, thus he cannot bring suit for the recovery of a real estate commission. Finally, Long maintained that any contract for the alleged recovery of a real estate commission would be a violation of a rule of public order and an absolutely nullity.

Action by Trial Court

A hearing was conducted where both Barton's and Long's filings were considered. At the conclusion of the matter, Judge Charles Jacobs sustained Long's exception and certified the ruling a final judgment for appeal purposes. However, when the prepared judgment was submitted, it was signed by another judge at the trial court, Judge Parker Self. That judgment was appealed timely by Barton. Long answered the appeal, stating the appeal did not raise "a serious legal issue" and he was entitled to damages for frivolous appeal.

However, on July 20, 2018, this court entered an order observing that the trial court judgment had been signed by Judge Self, who was not the presiding judge over the matter, a violation of La. C.C.P. art 1911. Barton was given 30 days to present a valid judgment signed by the proper presiding judge-Judge Jacobs. Ultimately, the initial judgment was vacated by the trial court. A subsequent judgment was signed by Judge Jacobs which sustained Long's exception of no right of action, dismissed Barton's rule to show cause, and certified the judgment of partial dismissal a final judgment. This appeal then ensued.

DISCUSSION

Although this matter appears complicated on the surface, we need not dig too deeply to conclude it involves a plain and straightforward issue and the application of indisputable statutory law. Here, the one legal issue to be determined is whether the trial court erred as a matter of law in finding that the Louisiana Real Estate Licensing Law, La. R.S. 37:1430 et seq . ("real estate law") applies to the member of a limited liability company leasing that property owned by the company. Additionally and more specifically, can an individual member of an LLC charge that entity a real estate commission if that member is not a licensed real estate broker/agent? The appellant, Barton, concedes that Louisiana's real estate law prohibits unlicensed individuals from receiving real estate commissions, and he is not a broker or agent. However, Barton argues that La. R.S. 37:1438 provides an exemption which allows him-a member/manager of BCL, owner of the property-to act on behalf of BCL and receive a commission for leasing the property. We disagree.

Principles of Law

The purpose of the exception of no right of action is to determine whether a plaintiff has a real and actual interest in an action or belongs to a particular class to which the law grants a remedy for a particular harm alleged. Schexnayder v. Gish , 41,819 (La. App. 2 Cir. 2/7/07), 948 So.2d 1259, 1262-63. The exception of no right of action is directed to showing that a plaintiff has no legal right or interest in enforcing the matter asserted, based upon the facts and evidence submitted. La. C.C.P. art. 927 ; Schexnayder, supra . The exception of no right of action presents a question of law; therefore, a court conducts a de novo review of the trial court's action on these exceptions. Washington v. Magnolia Manor Nursing Home & Rehab. , L.L.C., 51,899 (La. App. 2 Cir. 3/28/18), 247 So.3d 156, 159, writs denied , 2018-0682, 2018-0666, 2018-0685 (La. 8/31/18), 251 So.3d 413, 414.

A contract is absolutely null when it violates a rule of public order. La. C.C. art. 2030. "No principle of law is better settled than that a party to an illegal contract or an illegal transaction cannot come into a court of law and ask it to carry out the illegal contract or to enforce rights arising out of the illegal transaction." Trentman Co. v. Brown , 176 La. 854, 860, 147 So. 14, 16 (1932) (Citation omitted).

Louisiana's real estate law is contained in La. R.S. 37:1430, et seq. Louisiana R.S. 37:1436(B) provides:

It shall be unlawful for any person, partnership, limited liability company, association, or corporation, foreign or domestic, whether pursuant to a power of attorney or otherwise, for a fee, commission, or other valuable consideration , or with the intention, in the expectation, or upon the promise of receiving or collecting a fee, commission or other valuable consideration, to engage in any real estate activity relating to any portion of a real estate transaction performed for another, unless exempted, as specified herein. (Emphasis added).

"Real estate activity" is defined in La. R. S. 37:1431(24), in pertinent part, as:

[A]ny activity relating to any portion of a real estate transaction performed for another by any person, partnership, limited liability company, association, or corporation, foreign or domestic, whether pursuant to a power of attorney or otherwise, who for a fee, commission, or other valuable consideration or with the intention, in the expectation, or upon the promise of receiving or collecting a fee, commission, or other valuable consideration:
(a) Sells, exchanges, purchases, manages, rents, or leases or negotiates the sale, exchange, purchase, rental, or leasing of real estate.
(b) Offers or attempts or agrees to negotiate the sale, exchange, purchase, management, rental, or leasing of real estate.
(c) Lists or offers or attempts or agrees to list for sale or lease any real estate or the improvement thereon.
....
(e) Advertises or holds himself, itself, or themselves out as engaged in the business of selling, exchanging, purchasing, managing, renting, or leasing real estate.
(f) Assists or directs in the procuring of prospects or the negotiation or closing of any transaction, other than mortgage financing, which results or is calculated to result in the sale, exchange, managing, leasing, or renting of any real estate, other than a provider of information, ideas, and materials to guide homeowners in the sale of their own property.
(g) Is engaged in the business of charging an advance fee or contracting for collection of a fee in connection with any contract whereby he undertakes primarily to promote the sale, exchange, purchase, rental, or leasing of real estate through its listing in a publication issued primarily for such purpose, or for referral of information concerning such real estate to brokers, or both ....

Louisiana R.S. 37:1445 provides:

No action or suit shall be instituted, nor recovery be had, in any court of this state by any person for compensation for any act done or service rendered, the doing or rendering of which is prohibited under the provision of this Chapter to other licensed brokers or licensed salespersons unless such person was duly licensed under this Chapter as a broker or salesperson prior to the time of offering to perform any such act or service or procuring any promise to contract for the payment of compensation for any such contemplated act of service.

Finally, La. R.S. 37:1438 provides exemptions to these prohibitions and states in pertinent part:

A. The provisions of this Chapter shall not apply to:
(1) Any unlicensed person, partnership, limited liability company, association, or corporation, foreign or domestic, provided that the following requirements are met:
(a) The unlicensed person, partnership, limited liability company, association, or corporation, foreign or domestic, is the owner or lessor of the property.
(b) The unlicensed person, partnership, limited liability company, association, or corporation, foreign or domestic, performs acts of ownership regarding the property, either individually or through an employee or representative [.]

Analysis

Initially, we note that the starting point in the interpretation of any statute is the language of the statute itself. M.J. Farms, Ltd. v. Exxon Mobil Corp ., 2007-2371 (La. 7/1/08), 998 So.2d 16, 27"When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature." La. C.C. art. 9.

Here, Louisiana's real estate law could not be more "clear and unambiguous": unlicensed individuals are prohibited from charging commissions for conducting real estate activity. Characterized as "strong and explicit" by the first circuit in Torbert Land Co., L.L.C. v. Montgomery , 2009-1955 (La. App. 1 Cir. 7/9/10), 42 So.3d 1132, 1135, writ denied , 2010-2009 (La. 12/17/10), 51 So.3d 16, our real estate law prohibits the charging of a fee or commission by an unlicensed person performing real estate activity. La. R.S. 37:1436. In fact, so strong is the statutory mandate, a violation of the statute is a misdemeanor crime. La. R.S. 37:1436(E).

Barton argues that the payments were not a "real estate commission," but in fact "a contingent payment ... for savings achieved by avoiding the payment of a real estate commission." However, a rose by any other name would smell as sweet, and this payment sought by Barton smells like a commission for performing a real estate activity, regardless what the parties might have named it. Notably, the excerpts of leases in the record referred to the payments as "commissions." Barton concedes he is not a licensed real estate agent. Accordingly, any agreement the parties had to compensate Barton for conducting real estate activity (however that payment was characterized) is an illegal contract and absolutely null. See La. C.C. art. 2030. Thus, Barton had no right of action to demand payment for real estate commissions he was legally unentitled to, and the trial court did not err in dismissing his claims.

Nor do we agree that Barton is entitled to an exemption under La. R.S. 37:1438. The basis for Barton's contention is that he is entitled to the statutory exemption because he was acting as an owner of the property. But was he an owner? It is a fundamental precept that individuals with ownership interests in a limited liability company do not own the real property or the assets of the LLC-the LLC owns these assets. See La. R.S. 12:1329 ; Schauf v. Schauf , 51,919 (La. App. 2 Cir. 4/25/18), 247 So.3d 172, 177. Real estate activity by BCL (through Barton, its member/manager) was allowable because under La. R.S. 37:1438"the unlicensed ... limited company" could engage in real estate activity involved in leasing property it owned. Thus, the exemption provided by the statute belonged to BCL (acting through its member/manager), not Barton.

Additionally, Barton's claim for payment is not actually as an owner of the property if we consider Barton's role in the series of events: Barton the individual or Barton the member/manager acting on behalf of BCL, owner of the property. Significantly, at the point in time when BCL stopped using the services of Lea Hall Properties, and Barton acted to secure tenants for the property, he was acting as Barton, the member/manager of BCL, owner of the property. That activity benefited BCL, and Barton in his representative capacity could legally engage in real estate activity on behalf of the property owner, BCL. However, when Barton sought commissions (payments or compensation-whatever they were called) for the lease of the property, he was seeking to derive those commissions for himself, the individual, and not as the representative of BCL, owner of the property. There is no benefit to BCL, only Barton. Clearly, Barton is not acting as "owner" of the property when he, individually, seeks a commission for the leasing of BCL's property; thus he is in no way entitled to any exemption under the statute.

Finally, Barton argues that even if the agreement for commissions is unenforceable, he is entitled to recover under equitable principles including unjust enrichment and/or promissory estoppel. One enriched without cause at the expense of another is bound to compensate that person. La. C.C. art. 2298. A claim of unjust enrichment requires (1) an enrichment, (2) an impoverishment, (3) a connection between the enrichment and resulting impoverishment, (4) an absence of justification or cause for the enrichment and impoverishment, and (5) no other remedy at law available to the plaintiff. Finova Capital Corp. v. IT Corp. , 33,994 (La. App. 2 Cir. 12/15/00), 774 So.2d 1129, 1132. Equitable considerations and estoppel cannot be permitted to prevail when in conflict with positive written law. Fishbein v. State ex rel.La. State Univ. Health Sciences Ctr. , 2004-2482 (La. 4/12/05), 898 So.2d 1260, 1270.

Here, the "enrichment" gained was to BCL; Long was not enriched individually. In Barton's rule to show cause, he notes that payment of commissions to Lea Hall Properties "were a burden to BCL," and that the alternative arrangement where he would procure tenants served "to reduce this burden." By not paying Lea Hall Properties' commission for the lease of the property, the owner of the property (i.e. , BCL) derived the financial benefit. In that way, both Barton and Long (as the two equal members) received a benefit by Barton's actions as a member/manager of BCL. Specifically, Barton received a benefit of one-half the savings to BCL as a 50/50 member of the LLC. Therefore, Long did not enjoy an enrichment at Barton's "impoverishment"-BCL benefited from the arrangement that served to ease a financial burden to the business, which benefit flowed through to its members.

Also, we agree with Long that Baker v. Maclay Properties Co. , 1994-1529 (La. 1/17/95), 648 So.2d 888, is inapplicable to the facts at hand. In that case, the Supreme Court determined that Baker's only remedy was in unjust enrichment. Id. at 897. Barton's reliance on Baker to support his position that Long was unjustly enriched is misplaced because the plaintiff in Baker who sought a real estate commission was a Louisiana licensed real estate broker. Barton clearly is not a licensed real estate broker or agent. On the other hand, we agree that this case is directly in line with Brown v. Williams , 22,716 (La. App. 2 1991), 587 So.2d 732. There, this court concluded:

Unlicensed or unregistered persons may not recover a real estate commission, fee, or compensation of any sort, regardless of the benefit they may have provided to the seller. The unlicensed or unregistered broker may not even validly contract to perform the business of a real estate broker in Louisiana. The prohibition would defeat any claim ..., be it contractual or quasi contractual, for a commission arising out of these facts. (Emphasis added; citations omitted).

Id. at 738. The fact that Barton lacks a real estate license but seeks payment for performing "real estate activities" is determinative. The protections for licensed real estate brokers and agents by the Louisiana legislature and courts are strong and abundantly clear. Accordingly, Barton is not entitled to recover, even under the theory of unjust enrichment.

Frivolous Appeal

Long answered Barton's appeal and submits that the appeal is frivolous, arguing that his claims are clearly prohibited by the statutory law and misrepresent jurisprudence. This argument is without merit.

The court may award damages for a frivolous appeal in civil cases as provided by law. URCA 2-19. Louisiana C.C.P. art. 2164, provides:

The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal. The court may award damages, including attorney fees, for frivolous appeal or application for writs, and may tax the costs of the lower or appellate court, or any part thereof, against any party to the suit, as in its judgment may be considered equitable.

This provision is penal in nature and is to be strictly construed. Cox v. O'Brien , 49,278 (La. App. 2 Cir. 8/13/14), 147 So.3d 809, writ denied , 2014-1907 (La. 11/21/14), 160 So.3d 972. Appeals are always favored and unless the appeal is unquestionably frivolous, damages will not be allowed. Id. Damages for frivolous appeal are only allowed when it is obvious that the appeal was taken solely for delay, that the appeal fails to raise a serious legal question, or that counsel is not sincere in the view of the law he advocates, even though the court is of the opinion that such view is not meritorious. Id. The award of damages and attorney fees for a frivolous appeal are utilized to curtail the filing of appeals that are intended to delay litigation, harass another party, or those that have no reasonable basis in fact or law. Nesbitt v. Nesbitt , 46,514 (La. App. 2 Cir. 9/21/11), 79 So.3d 347, writ denied , 2011-2301 (La. 12/2/11), 76 So.3d 1178.

After a review of the record, we do not consider Barton's appeal to be frivolous. We do not detect that Barton appealed for the purpose of delaying litigation or to harass Long. Although we have determined Barton's positions ultimately to be incorrect and unsupported by the law, his positions are thoughtfully articulated and reasoned. We do not believe his appeal rises to the level of being frivolous. Therefore, we decline to award Long's request for damages.

CONCLUSION

Considering the foregoing, the judgment of partial dismissal in favor of William R. Long which sustained his peremptory exception of no right of action is affirmed. All costs of this appeal are assessed to Barry Barton.

AFFIRMED.

      Long refers to the property as "Park Plaza."

      We recognize similar protections for Long's and Barton's respective professions: attorneys (La. R.S. 37:213 ) and certified public accountants (La. R.S. 37:83 ).


source: Caselaw Access Project

author: PITMAN, J.

license: Public Domain

text:
    SUCCESSION OF Frank ANDERSON, Jr.
    No. 52,441-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered January 16, 2019.
    THE McGLOTHEN LAW FIRM, LLC, By: Terry McGlothen, Lafayette, Counsel for Appellant, Shelia Marie Anderson Miller
    WALTER D. WHITE, APLC, By: Walter D. White, Shreveport, Counsel for Appellees, Robin Nicole Ambercrombie Gordon, Tutrix of the Minor Francheska A. Anderson; Cortez Frank Anderson; and Sharetta Latonya Cooks Anderson, Tutrix of the Minor Frankayla Johnnie Ruth Anderson; And Chad Garland, CPA, Ind. Administrator
    Before PITMAN, GARRETT, and BLEICH (Pro Tempore ), JJ.
   PITMAN, J.

Shelia Marie Anderson Miller ("Shelia"), sister of the decedent, Frank Anderson ("Decedent"), seeks review of the trial court's judgment that nullified the testament in which she had been appointed independent testamentary executrix, denied her exception of res judicata and recalled a judgment of possession previously rendered. She also appeals the trial court's failure to hold contradictory hearings on motions filed and her removal as administratrix without a contradictory hearing. For the following reasons, we affirm the judgment of the trial court.

FACTS

On February 4, 2017, Decedent died at the age of 45. On March 15, 2017, Shelia sought to probate a testament purportedly executed by him. The testament, dated January 11, 2013 ("2013 Testament"), directed that his estate be donated to Shelia and to his only two children he had at the time the testament was written. On July 21, 2017, the trial court signed a judgment of possession per the terms of the testament, and Shelia was appointed independent testamentary executrix of the estate.

On August 8, 2017, Sharetta Anderson ("Sharetta"), Decedent's wife, filed a petition to annul the probated testament and requested a temporary restraining order and preliminary injunction enjoining Shelia from disposing of any assets of the succession. Attached to Sharetta's petition was a purported testament by Decedent, dated February 2, 2016 ("2016 Testament"), which revoked any and all other previous testaments and directed that his estate be donated to Sharetta and his then three children, including his child with Sharetta, Frankayla Anderson. The trial court granted Sharetta's request for a temporary restraining order, and the 2016 Testament was examined by an expert who opined that the signature on the testament presented by her was a forgery.

On October 5, 2017, the trial court sustained exceptions of no right of action and no cause of action filed by Shelia and denied Sharetta's petition to annul the 2013 Testament based on the invalid 2016 Testament.

On January 29, 2018, Sharetta filed a motion entitled "Ex parte Motion to Authorize Inspection and Examination of Probated Testament," requesting that her expert be allowed to examine the 2013 Testament to ensure its validity. The trial court granted the motion, ordering that Shelia's counsel be present for the examination if he so wished. In response, Shelia filed exceptions of no right and no cause of action, as well as an exception of res judicata based on the denial of Sharetta's petition to annul the 2013 Testament.

On February 6, 2018, Sharetta's expert, Robert Foley, examined the 2013 Testament and opined that the signatures on the first two, of three, pages of the testament were color copies.

Based on Foley's opinion, on February 22, 2018, Sharetta, on behalf of her minor child, Frankayla; Robin Nicole Ambercrombie Gordon, the tutrix for the decedent's second minor child, Francheska A. Anderson; and Decedent's adult child, Cortez Frank Anderson; filed a petition entitled "Petition to Annul Probated Testament and Judgment of Possession; Dismissing Independent Executrix, and Appointing Independent Administrator." In response, Shelia filed another exception of res judicata based on the trial court's denial of Sharetta's first petition to annul.

Also on February 22, 2018, Shelia filed a notice of intent notifying the trial court of her desire to seek supervisory review of the January 30, 2018 order allowing Sharetta to have an expert examine the 2013 Testament. The trial court set a return date of March 19, 2018, and the writ application was filed with this court on March 19, 2018, under Docket No. 52,222-CW. Shelia did not request a stay (either with the trial court or this court) pending resolution of her writ application and did not seek expedited consideration at that time.

A hearing was held on the merits of the case on March 28, 2018. Prior to the close of testimony at the proceeding on the annulment, Shelia's attorney raised the issue that some of his exceptions and motions had not been heard, including the exception of res judicata. In response to this issue being raised, the trial court stated:

Right. Let's do this. I'll get my opinion out on those. Depending on what happens with this, we need a hearing obviously, or at least a petition to reopen the succession, as well as a petition to remove the executrix.

On April 17, 2018, the trial court rendered a judgment granting Sharetta's second petition to annul, denying Shelia's exception of res judicata, annulling the 2013 Testament and the July 21, 2017 Judgment of Possession and declaring Decedent's succession to be an intestate succession. In its reasons for judgment, the trial court found that the 2013 Testament, presented by Shelia, was invalid since pages one and two were not actually signed by the testator, as required by law, but were photocopied signatures of the testator. The trial court found that the signatures substantially deviated from the form requirements of La. C.C. art. 1577. It discussed the purpose behind the legislature's requirements of testamentary form, which was to avoid fraud, and the fact that these signatures were not original ink signatures. For those reasons, it granted Sharetta's petition to annul the 2013 Testament and the judgment of possession of July 21, 2017.

The trial court's reasons for judgment also addressed Shelia's exception of res judicata and pointed out that the mere order of the judge for the probate of a will does not have the effect of a binding judgment on the parties so as to preclude them from subsequently contesting the validity of the will unless the question of its validity was expressly put at issue at the time the will was probated. It found that the doctrine of res judicata does not apply in this case since the two petitions to annul did not involve the same parties in the same capacities. Sharetta's first petition to annul was filed by her in her capacity as surviving spouse. The second petition was filed by her in her capacity as the court-appointed tutrix of one of the forced heirs, by the tutrix of another forced heir and by an adult heir. Therefore, the petition involved different parties in different capacities than those involved in the first petition.

The trial court also noted that the second petition to annul was based on an entirely different ground for annulment. The first was based on a purported second testament; the second petition was based on the failure of the earlier testament to comply with the form required by law since the signatures were copies instead of originals. For these reasons, res judicata did not apply.

On April 18, 2018, Shelia filed a devolutive appeal from the April 17, 2018 judgment. The motion for appeal was granted on April 18, 2018.

On April 27, 2018, the trial court appointed Chad M. Garland, CPA, as independent administrator of the succession.

On April 30, 2018, Shelia filed an ex parte pre-lodging motion to dismiss her appeal (Docket No. 52,294-CM) based on the fact that she had filed a motion for new trial on April 26, 2018, at which time the trial court had not yet ruled. As such, she noted, her appeal was premature.

On May 7, 2018, Shelia filed a supplement to her writ application, seeking expedited review and asking for a stay of the trial court proceedings. Included in her supplement was the trial court's April 17, 2018 final judgment and its May 2, 2018 denial of her motion for new trial. In her supplement she specifically sought review of the trial court's April 17, 2018 judgment.

On May 16, 2018, this court denied the application for writs because the April 17, 2018 judgment was a final judgment subject to appeal; and, in fact, a devolutive appeal had already been granted. The writ denial also stated that although the January 30, 2018 ruling granting Sharetta's ex parte motion to authorize inspection and examination of probated testament was an interlocutory judgment, judicial efficiency and the interests of justice dictated that review of that judgment would be more appropriately completed during review of Shelia's appeal. Therefore, both the writ application and motion to stay trial court proceedings were denied by this court. The matter is now before this court on appeal.

DISCUSSION

No right of action

Shelia argues that the trial court erred in granting an ex parte order to Decedent's former spouse who had no real or actual interest in the estate and who was not an heir, legatee or creditor of the estate, and where the court had previously refused to annul the same testament that she sought to have examined. This argument appears to be an assertion by Shelia that Sharetta lacked procedural capacity and, thus, had no right to challenge the testament that Shelia had filed and under which she received benefit to the exclusion of Sharetta's child, a forced heir of Decedent.

Shelia also argues that Sharetta had no right of action because she did not belong to the class of persons to whom the law grants the cause of action asserted in the suit. She points out that Sharetta originally filed a petition to annul the probated testament, claiming it was null, void and possibly fraudulent. Sharetta also presented a purported later testament dated February 6, 2016, which was eventually determined by a handwriting expert to be a forgery. Shelia claims that at the time Sharetta filed her first petition to annul the probated testament, the trial court sustained her exceptions of no right and no cause of action and found Sharetta had no standing as the surviving spouse to advance any claims on behalf of the estate. She continues to argue that Sharetta still has no standing to sue to annul the probated testament since she is not an heir, legatee or creditor of the estate.

Sharetta responds and argues that her second petition was filed because she is the natural tutrix of her and Decedent's minor child, who is a forced heir of her father's succession. Further, she is joined in her petition with the tutrix of another of Decedent's minor children, and Decedent's adult son. The trial court has determined that the testament presented by Shelia is null as a result of the failure of the signatures on pages one and two and has now determined that the succession is intestate. She contends that forced heirs have every right to attack the testaments and judgments of possession when their rights have been violated. For these reasons, she argues that her capacity in the first petition is irrelevant to her capacity and right to sue on behalf of her child in the second petition.

In Estate of Bradford v. Thomas , 29,807 (La. App. 2 Cir. 9/24/97), 700 So.2d 1030, this court stated that an absolutely null judgment may be attacked collaterally, in any court, and at any time. La. C.C.P. art. 2002. In that case, the sisters of a decedent, whose succession had been declared an intestate one after the previously filed testament was declared a nullity, were found to be intestate heirs and parties needed for just adjudication. Their rights were being affected by the litigation; therefore, it was necessary to join them in the litigation.

In the case at bar, Shelia filed a testament which was acted upon by the trial court and, later, was collaterally attacked by Decedent's heirs. Because the rights of inheritance of their minor children were being violated, the tutrices, and the adult son of Decedent, had the right to challenge the validity of the testament Shelia filed and which appointed her as independent executrix of the estate.

This assignment of error is without merit.

Failure to hold hearings on motions and exceptions

Shelia also argues that the trial court erred by refusing to hear the independent testamentary executrix's motions for over 180 days by placing an indefinite stay on the contradictory motions and never allowing them to be heard. She also claims that the trial court further erred by refusing to turn over Decedent's estate to her once she was appointed the independent testamentary executrix and the judgment of possession was rendered.

Shelia states that she filed numerous motions and exceptions requesting the court to set a hearing date as provided by law. In particular, she complains about the trial court's issuance of a stay on the proceedings as it related to her attempts to obtain possession of the succession assets and to evict the occupants staying in Decedent's home, which was based on the previously issued judgment of possession that had survived Sharetta's first attempt to attack the succession. She argues that the trial court dismissed her as the independent testamentary executrix on April 27, 2018, without cause or a hearing. She points to various parts of the record to show that the contradictory hearings were not held on issues she raised even though she filed the appropriate motions and exceptions. She claims the failure to hold these hearings was improper and deprived her of a right to her day in court. She asks that this court vacate every judgment rendered in these proceedings where the motions and exceptions were not heard as required by law.

Sharetta argues that the trial court recognized problematic issues with the succession and because of a reasonable and prudent delay, prevented even greater harm. If the eviction of a minor forced heir from her home and an order for possession of the home by Shelia had been allowed, along with the liquidation and distribution of funds, a recovery of those funds and assets would be practically impossible. She claims that the delay imposed by the trial court was discretionary and certainly was within its reasonable judicial discretion in view of the suspicious facts surrounding the pro se filing of the succession by the person named as the independent testamentary executrix who was placed in possession of the estate and who immediately sought to liquidate her brother's property. For these reasons, Sharetta claims that the trial court's actions in staying and delaying hearings was purely discretionary and reasonable.

The trial court's decision to exercise discretion and judicial efficiency by limiting court appearances and interlocutory rulings while the testament itself was being challenged as a nullity was within its power. Certainly, while the testament was being challenged, Shelia should not have been given access to the assets of the estate to do with as she pleased. We also see the wisdom of delaying acting on these filings since, as the trial court noted, some of the issues would be mooted by the resolution of the issue concerning nullity of the testament.

For these reasons, this assignment of error is without merit.

Res Judicata

Shelia argues that the trial court erred in ruling on the peremptory exception of res judicata in the April 17, 2018 judgment when there was no hearing, no witnesses called and no evidence presented. As mentioned above, she contends that the trial court erred in not holding a hearing on the exception and, instead, indicated at the trial on the annulment that many of her exceptions would be rendered moot by its eventual ruling on the annulment. She argues that the trial court could not have considered the record in the first suit if it was not in evidence in the second suit, since there is no provision in the law for the court to take judicial notice of a suit record from another court. The failure to introduce the entire record of the first suit into the record can prohibit the party pleading the exception of res judicata from meeting its burden of proof. Shelia argues that a full evidentiary hearing on the issue of res judicata is necessary for the trial court to have determined that it does not apply in this case.

Sharetta claims Shelia applied the wrong standard for res judicata when she argued that Sharetta's capacity as surviving spouse in the first suit caused res judicata to apply to the second in which Sharetta appeared as the natural tutrix of her minor child, the forced heir of Decedent. Further, she also brought the second suit with another person who had been appointed the tutrix of a different forced heir and with an adult heir. She argues there is a difference in parties, capacity and cause. Also, the second petition was based on faults in the testament presented by Shelia and not based on a purported testament which was written revoking the one Shelia had presented. Therefore, the cause of action was not the same and was yet another reason for the exception of res judicata to be denied.

Relitigation of a matter is precluded when the second action has the same parties, same cause and same thing demanded as in the first. La. R.S. 13:4231. Chevron U.S.A., Inc. v. State , 993 So.2d 187, 07-2469 (La. 9/8/08). A judgment in favor of either party is conclusive in any subsequent action between them with respect to any issue actually litigated and determined. Fox v. Reynolds Indus. Contractors , 44,938, 44,939 (La. App. 2 Cir. 1/27/10), 33 So.3d 895, writ denied , 10-0676 (La. 5/28/10), 36 So.3d 250.

Res judicata is clearly inapplicable in this case. Sharetta and the other tutrix, as well as the adult son of Decedent, filed their petition seeking a judgment of nullity of the testament presented by Shelia on grounds other than Sharetta's first attempt to attack the testament. The parties are not the same, the cause is not the same and the same thing was not demanded as in the first attempt to attack the testament. Further the issue presented was not actually litigated and determined.

Therefore, this assignment of error is without merit.

Removal as Testamentary Executrix

Shelia argues that the trial court erred in failing to hold a contradictory hearing before removing her as independent testamentary executrix in the judgment signed on April 27, 2018. She argues that the procedure for removal of a succession representative is governed by La. C.C.P. arts. 3182 and 3396.20. In a contested proceeding, these articles require a rule to show cause and a contradictory hearing to remove a succession representative. Shelia claims Sharetta's attorney did not file a rule to show cause requesting the relief that she be removed as the independent testamentary executrix, and no hearing was held to determine whether any grounds for removal were present. She argues that a full evidentiary hearing must be held in such a situation, and the order removing her as executrix should be reversed and set aside.

Sharetta argues that her pleading was entitled, "Petition to Annul Probated Testament and Judgment of Possession; Dismissing Independent Executrix, and appointing Independent Administrator." She also argues that the hearing held on March 28, 2018, dealt with those issues in conjunction with determining the nullity of the testament. She contends that based on the trial court's finding that the annulled testament is truly worthless in every respect, the hearing on the nullity of the testament more than sufficed as a contradictory hearing for the purpose of removing the independent testamentary executrix appointed as a result of the annulled testament.

The judgment from which this appeal was taken was filed on April 18, 2018, and did not address the issue of Shelia's removal as independent testamentary executrix since the motion to remove her from that office was not filed until April 18, 2018, and was not rendered until April 27, 2018. Because she never sought an appeal from that decision, it is pretermitted.

Merits of the annulment of the testament and judgment of possession

Shelia argues that the trial court committed legal error when it concluded that the testator did not sign the probated 2013 Testament, when the evidence showed, and the expert witness testified at trial, that the signatures on all three pages of the testament were signed by the same person. Shelia further argues that the trial court erred in concluding that the signatures on pages one and two of the testament, which was annulled, were not "signed by the same person" as on page three. She contends that Sharetta bore the burden of proof in this matter and that the one witness who offered a qualified opinion failed to meet the more probable-than-not burden. She states that the witness did not testify as to whether the signatures were "affixed," nor did he testify that the signatures were not that of the testator, but simply stated that the signatures examined were color copies and did not contain original ink signatures. Shelia claims the evidence presented at the hearing was not sufficient for the trial court to conclude that the testament should be annulled.

Sharetta argues that the trial court's decision to annul the testament was correct since the formalities required by La. C.C. arts. 1573 and 1577 were not observed. Sharetta contends that the evidence of the forensic document examiner showed that the signatures on the first two pages of the testament were not the ink signatures of the testator, but simply copies, and copies of a signature do not meet the requirements of form found in the law.

La. C.C. art. 1573 states that the formalities prescribed for the execution of a testament must be observed or the testament is absolutely null. La. C.C. art. 1577 concerns the requirements of form for a notarial testament and states that if the testator knows how to sign his name and to read and is physically able to do both, then, in the presence of a notary and two competent witnesses, the testator shall declare that the instrument is his testament and shall sign his name at the end of the testament and on each other separate page.

In Succession of Watson , 52,199 (La. App. 2 Cir. 8/15/18), 253 So.3d 867, this court cited La. C.C. art. 1573, stating that without formalities in the execution of the testament, the testament was absolutely null. The purpose of prescribing formalities for the execution of wills is to guard against mistake, imposition, undue influence, fraud or deception, to afford a means of determining the will's authenticity and to prevent substitution of some other writing in its place. See Succession of Roussel , 373 So.2d 155 (La. 1979).

In Successions of Toney , 16-1534 (La. 5/3/17), 226 So.3d 397, a case which tested the limits of what constitutes compliance with the formal requirements of La. C.C. art. 1577 for the purpose of confecting a valid notarial testament under Louisiana law, the court was presented with a testament which had simply been initialed by the testator on the first two pages of the testament, and the initials were printed rather than in cursive writing. The court stated that there is a presumption in favor of the validity of testaments in general, and proof of the nonobservance of formalities must be exceptionally compelling to rebut that presumption. The court noted that La. C.C. art. 1577 required that the testator "shall sign his name at the end of the testament and on each other separate page," and that such a requirement was unambiguous. Therefore, the testator's initialing of each page did not substantially comply with the formal requirements of the code article and was not merely a minor or a technical deviation. The court also stated that although fraud was not alleged at the trial court level, signing one's name on each page of the will undoubtedly offers more heightened protection from surreptitious replacement of pages than mere initialing.

In the case at bar, the trial court found that color copies of the testator's signature somehow appeared on the first two pages of the testament presented by Shelia and that such copies did not comply with the formalities required by La. C.C. arts. 1573 or 1577, which require the signature by the testator, not copies. To allow otherwise would defeat the purpose of the requirement that the testator sign each page.

This assignment of error is without merit.

CONCLUSION

For the foregoing reasons, the judgment of the trial court nullifying the January 11, 2013 testament of Decedent and the judgment of possession, denying the exception of res judicata, and delaying action on various motions filed by Shelia Marie Anderson Miller, is affirmed. Costs of this appeal are assessed to Shelia Marie Anderson Miller.

AFFIRMED.

      The notice of appeal indicates it is taken from the judgment of April 18, 2018. The judgment was rendered on April 17, 2018, and filed on April 18, 2018.


author: STONE, J.

text:
    W. A. LUCKY, III, Plaintiff-Appellee v. Barbara Marie Carey CARR, Defendant-Appellant
    No. 52,434-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered January 16, 2019
    DAVIDSON, JONES & SUMMERS, APLC, By: Randall S. Davidson, Julia E. Blewer, James D. Powell, Shreveport, Counsel for Appellant
    AYRES, SHELTON, WILLIAMS, BENSON & PAINE, LLC, By: Lee H. Ayres, Curtis Ray Shelton, Shreveport, Counsel for Appellee
    WIENER, WEISS & MADISON, APC, By: Roger J. Naus, Shreveport
    Before WILLIAMS, GARRETT, and STONE, JJ.
   STONE, J.

The trial court awarded W. A. Lucky, III ("Lucky"), nearly $1.8 million in damages resulting from the breach of a fiduciary duty owed to him by Barbara Marie Carey Lollar ("Lollar"). Lollar now appeals, and Lucky has answered the appeal. For the reasons stated herein, we reverse the trial court's judgment.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Lollar lives and works in Bossier Parish as an independent contractor in the real estate business, performing various tasks on an "as needed" basis through her company, Magnolia Land Services, Inc. ("Magnolia"). From 1992 until 2003, Lucky, an extremely wealthy businessman and landowner, was a client of Lollar. Lollar's services included notarizing documents, researching titles, and assisting Lucky with sales of various properties. On a number of occasions, Lollar acted as an undisclosed agent for Lucky in real estate deals in which Lucky had an interest but did not want the sellers to inflate the prices due to his reputation and wealth. At some point during the course of their business relationship, Lollar became a close friend and confidante to Lucky and his family. Lollar had a key to the Luckys' home, spent holidays with the Luckys, and picked up their mail when the family was away at their vacation home in Florida. The family also heavily relied on Lollar during a time when Lucky was diagnosed with cancer and had to undergo treatment.

The Luckys own a large farm, and, according to Lucky, their dream was to acquire the adjoining 365-acre tract ("365 tract"). The tract was titled in the name of a company called Land Connection, Inc. ("Land Connection"), a corporation owned by Lucky's neighbor, Cal Woodward ("Woodward"). Because the two had been involved in a personal dispute, Woodward refused to sell the tract to Lucky.

At some point, Woodward did put the 365 tract up for sale, and in April of 2003, Lollar entered into a contract to purchase the tract for $425,000. She used her own funds to make an $80,000 down payment and executed a mortgage for the remaining $345,000. The note and mortgage were not assumable without Woodward's consent. Lollar made the annual installment payments until the balance of the mortgage was paid.

In September 2008, Lucky filed suit against Lollar, seeking monetary damages for breach of fiduciary duty. In his petition, Lucky asserted Lollar was acting as his agent when she purchased the 365 tract and was supposed to subsequently transfer its title to Lucky or an entity of his choosing. Lucky claimed the parties had agreed that once the title was transferred to him, he would be responsible for paying the mortgage. Although there was no written agreement between Lucky and Lollar, Lucky maintained that Lollar knew she was purchasing the property for him, and she breached her fiduciary duty by not deeding the tract to him.

Prior to trial on the matter, Lollar sold 85 acres of the tract. As of the time of trial, she still owned the remaining 280 acres. The trial court found that Lucky had established a principal-agent relationship between himself and Lollar vis-à-vis their agreement regarding the 365 tract. On that basis, the trial court found that Lollar's actions in failing to transfer the 365-acre tract to Lucky was a breach of fiduciary duty. The trial court awarded Lucky $1,799,450.52, plus judicial interest from the date of judicial demand. The award included funds Lollar received for lease bonuses, royalty interests, and mineral production on the tract. The award also included proceeds from the sale of a portion of the tract by Lollar. On January 18, 2018, Lucky filed a motion for new trial limited to reargument seeking an increase in the amount of the trial court's judgment. Lucky argued that he should have also been awarded the value of the surface of the remaining 280 acres. The trial court denied Lucky's motion. Lollar appeals the trial court judgment, and Lucky has answered that appeal.

DISCUSSION

In her first assignment of error, Lollar argues that the trial court committed legal error when it held that Lollar was obligated to purchase immovable property on Lucky's behalf and then transfer the title to him. According to Lollar, the trial court failed to apply Louisiana legislation and jurisprudence which require a signed, written instrument to prove a mandate for acquiring rights in immovable property.

A legal error occurs when a trial court applies incorrect principles of law and such error is prejudicial. A legal error is prejudicial when it materially affects the outcome and deprives a party of substantial rights. Lasha v. Olin Corp. , 625 So.2d 1002 (La. 1993).

"A mandate is a contract by which a person, the principal, confers authority on another person, the mandatary, to transact one or more affairs for the principal." La. C.C. art. 2989. "The contract of mandate is not required to be in any particular form. Nevertheless, when the law prescribes a certain form for an act, a mandate authorizing the act must be in that form." La. C.C. art. 2993. In relevant part, La. C.C. art. 1839 states: "a transfer of immovable property must be made by authentic act or by act under private signature." Finally, in pertinent part, La. C.C. art. 1832 states: "[w]hen the law requires a contract to be in written form, the contract may not be proved by testimony or presumption." In accordance with these principles, courts of this state have held that where a contract of mandate to purchase or sell immovable property is not in writing, it is invalid. E.g., Tedesco v. Gentry Dev. Inc., 540 So.2d 960, 965 (La. 1989) ; Simmons v. Clark, 08-431 (La. App. 5 Cir. 1/27/09), 8 So.3d 102, 109-110, writ denied , 09-0416 (La. 4/13/09), 5 So.3d 166.

Professor Ronald J. Scalise, Jr., aptly explained the relationship between these Civil Code articles:

The Louisiana Civil Code provides that when the law requires a contract to be in written form, the contract may not be proved by testimony or by presumption, unless the written instrument has been destroyed, lost, or stolen.
....
When a writing is required for the validity of a contract, other acts related to that validity also require a writing. Thus, a mandate to buy or to sell immovable property must be in writing because the sale of immovable property requires a writing. Even a contract made in preparation of, or looking forward to, another contract that requires a writing must be made in writing also. Thus, a promise to sell, or an option to buy, immovable property must be made or granted in writing since the final sale of immovable property requires a writing.

S. Litvinoff & R.L. Scalise, 5 La. Civ. L. Treatise, Law of Obligations § 12.12 (2d ed., 2001) (emphasis added).

Lucky insists the primary issue before this court does not concern the purchase or sale of immovable property. Instead, Lucky asserts the question before the Court is whether Lollar is liable to him for damages for her breach of a fiduciary duty owed to him. These two issues cannot be bifurcated. The crux of Lucky's argument is that Lollar owed him a fiduciary duty to sell him the 365 tract because he gave her an oral mandate to purchase the tract and subsequently sell it to him or an entity of his choosing. Lucky asserts that Lollar breached that fiduciary duty when she refused to sell him the 365 tract, and now she is liable to him for damages.

Louisiana law is clear that a mandate to buy or sell immovable property must be in writing. Lucky nonetheless contends that the agreement between him and Lollar was not required to be in writing. In support of his argument, Lucky relies on Woodward v. Steed , 28,676 (La. App. 2 Cir. 9/25/96), 680 So.2d 1320, writ not cons. , 96-2648 (La. 12/6/96), 684 So.2d 411. In that case, Woodward paid the defendant, Steed, to manage all of Woodward's properties and affairs while Woodward was out of the state. One of Woodward's instructions was for Steed to find a buyer for property Woodward owned near the Red River.

At some point, Horseshoe Casino approached Steed about purchasing the property and made an offer. Without disclosing Horseshoe's offer to Woodward, Steed himself purchased the property from Woodward, and subsequently sold the property to Horseshoe Casino for a large profit.

Woodward sued Steed for damages stemming from Steed's violating the fiduciary duty owed by a mandatary to timely reveal material facts to the principal, i.e., before buying the property from the principal. This Court determined that Woodward's mandate to Steed to secure a buyer for the property did not need to be in writing to support relief.

We draw a clear distinction between Woodward and the present case. In Woodward , the agreement was that the mandatary would merely assist the principal/owner in securing a buyer for his immovable property, i.e. , not to actually enter a transaction affecting title to the immovable property on behalf of the principal. In other words, the Woodward-Steed mandate contemplated that Woodward's further approval would be required before any action affecting title to the immovable would be undertaken. Thus, in Woodward , the legal requirement that the mandate be in writing was not triggered. Conversely, in the present matter, Lucky's request was for Lollar to purchase the 365 tract in her own name and subsequently sell it to him or an entity of his choosing. Thus, the alleged agreement between Lucky and Lollar, if executed, would have resulted in the transfer of title to immovable property. This type of contract is required to be written in order to be valid and binding. La. C.C. arts. 1839 & 2993, supra. The legislature enacted these form requirements in an attempt to minimize the very scenario that we are presently confronting - disputes regarding the buying, selling, or otherwise transferring of immovable property where the parties have conflicting narratives about what, if anything, was agreed.

As a matter of law, without a written contract, there exists no enforceable contract between Lollar and Lucky as to the 365 tract. Lucky's failure to reduce to writing any agreement he claims he and Lollar had concerning the purchasing and/or selling of the 365 tract now precludes him from taking any action against her for breach of contract, damages, specific performance, or otherwise.

In its reasons for the judgment, the trial court provided a myriad of reasons for its determination that Lollar breached her fiduciary duty to Lucky by refusing to sell him the 365 tract. However, the trial court completely failed to address the unsatisfied form requirements clearly set forth in Louisiana Civil Code articles 1839 and 2993. The trial court's judgment condemning Lollar to pay Lucky nearly $1.8 million is thus prejudicial legal error.

In light of our finding that there was no enforceable contract between Lucky and Lollar, and that no duty was breached, the trial court's ruling must be reversed. All other assignments raised by the parties on appeal are therefore moot, and we pretermit any discussion of them.

CONCLUSION

Based on the foregoing reasons, we reverse the judgment of the trial court. Costs of this appeal are assessed to W. A. Lucky, III.

REVERSED.

GARRETT, J., concurs in the result.

      Barbara Marie Carey Lollar's former name is Carr.

      The term "mandatary" is synonymous with "agent."

      See also John W. Stone Oil Distrib., LLC v. River Oaks Contractors & Developers Inc., 07-1001 (La. App. 5 Cir. 5/27/08), 986 So.2d 103 (plaintiff sought damages for breach of oral promise to sell immovable property; grant of summary judgment against plaintiff was appropriate because of the unsatisfied writing requirement for the validity of contracts affecting the property); Hayes v. Muller, 245 La. 356, 158 So.2d 191 (1963) (joint venturers entered oral agreement to purchase mineral lease; however, the lease was acquired in the name of only one of the venturers and later sold at a profit; other venturer filed suit to recover share of the profits; held: the lack of a written contract was fatal to the plaintiff's claim: because the contract related to the sale of immovable property, it was required to be in writing); Ogden v. Ogden , 93-1413 (La. App. 3 Cir. 9/21/94), 643 So.2d 245 (grant of exception of no cause of action was affirmed where first joint venturer sued second joint venturer in "tort" for breach of an oral agreement to pay monies arising out of an oil and gas lease; in holding that the lack of a written agreement was fatal, the court stated "few concepts are as firmly rooted in our statutory law and jurisprudence as the principle that agreements as to immovable property must be in writing").

      Notably, this is the same Woodward and previous owner of the 365 tract who refused to sell it to Lucky.


author: BLEICH, J. (Pro Tempore )

text:
    STATE of Louisiana, Appellee v. Larry R. BROWN, Jr., Appellant
    No. 52,501-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered January 16, 2019
    LOUISIANA APPELLATE PROJECT, By: Douglas L. Harville, Counsel for Appellant
    JOHN M. LANCASTER, District Attorney, KENNETH D. WHEELER, Assistant District Attorney, Counsel for Appellee
    Before WILLIAMS, COX, and BLEICH (Pro Tempore ), JJ.
   BLEICH, J. (Pro Tempore )

This criminal appeal arises from the Fifth Judicial District Court, Parish of Richland, the Honorable Glen Strong presiding. After a jury trial, Defendant Larry R. Brown, Jr., was found guilty as charged of the second degree murder of Michael Bradley and possession of a firearm by a convicted felon. Brown was sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence on the second degree murder conviction, and ten years imprisonment at hard labor on the possession of a firearm by a convicted felon conviction. He was given credit for time served in actual custody prior to imposition of sentence, and the sentences were ordered to run concurrently. A timely filed motion to reconsider sentence was denied. Brown has appealed, asserting only that the trial court erred in denying his motion to continue the trial. Brown's convictions and sentences are affirmed.

FACTS

On November 19, 2015, Defendant Larry R. Brown, Jr., was charged by bill of indictment with the September 28, 2015, second degree murder of Michael Bradley. Brown pled not guilty, and the Indigent Defender Board was appointed to represent him. On January 26, 2016, defense counsel filed a motion for discovery. On February 25, 2016, Brown filed a pro se motion for speedy trial, which was never adopted by defense counsel, and this motion was set for hearing on March 30, 2016. In April 2016, Brown filed pro se requests for court minutes, which were provided to him; for a police report and affidavit, which was denied as not in the custody of the clerk; and for the transcript of the March 30, 2016 hearing on the motion for speedy trial, which was granted. On May 23, 2016, the state filed its initial response to discovery, and on March 3, 2017, it filed a supplemental response to discovery.

On May 5, 2017, Brown was charged in a separate docket number by bill of indictment with possession of a firearm by a convicted felon in connection with the murder of Bradley.

On January 3, 2018, the district attorney filed an amended indictment for the sole purpose of consolidating the two charges. At the time of the filing of the amended indictment, Brown had been arraigned on both charges.

On January 24, 2018, the state filed a La. C. Cr. P. article 768 Notice advising that it intended to introduce statements made by Brown to investigators, as well as statements made by Brown to witnesses Danielle Collins, Rosemary Cleveland, Terrance Miles, Robert Earl Miles, and Amanda McKenzie. Transcripts of the statements of Danielle Collins, Terrance Miles, and Robert Miles were produced to the defense in the state's initial discovery responses of May 23, 2016. Transcripts of the statement of Amanda McKenzie were produced in the state's supplemental response to discovery of March 3, 2017. The record does not indicate that a transcript of any statement of Rosemary Cleveland was produced to the defense prior to the article 768 notice. On February 5, 2018, the state filed a supplemental article 768 notice indicating its intent to introduce additional statements made by Brown to Rosemary Cleveland during a jailhouse phone conversation. The notice indicates that this information was obtained during an interview with Ms. Cleveland the day before the notice, on Sunday, February 4, 2018.

In the meantime, on January 31, 2018, defense counsel filed a motion to continue and reset the trial that was scheduled for February 5, 2018. The motion cited the extended illness of IDB investigator Jamie Hudson and alleged that the IDB had been without an investigator "for a number of months" due to Hudson's illness. Brown alleged "a number of issues that need to be addressed which require an investigator," including statements allegedly made by Brown as noted in the state's initial Article 768 notice. The motion was heard that same day.

During the hearing, defense counsel noted the illness and absence of Hudson. Counsel stated that this was the first continuance sought by the defense and contended that there would be no prejudice to the state if the motion was granted. Counsel cited the state's Article 768 notice and argued to the court that he had "been given" the names of several witnesses, and he did not know where they lived, and he "would love to have an investigator go out and talk to these people and tell me what - what he feels they're going to say and interview them...." Counsel also noted that the state's eyewitness had been appointed new counsel, and this weighed in favor of the continuance.

The district attorney countered by first noting that the state would be prejudiced by a continuance due to the increased chance of losing witnesses, memories fading, and other problems and health issues of certain unnamed witnesses. The district attorney then emphasized that the case was two years old and referenced the fact that in 2016, Brown had filed a motion for speedy trial indicating his readiness to proceed to trial. The district attorney pointed out that defense counsel had questioned the lead investigator the previous year at the bond reduction hearing. He further noted that the state had complied with all discovery in prior years by providing all of the information necessary for defense counsel to investigate and prepare for trial. The district attorney argued that there was ample time to investigate prior to Hudson's illness, and at no time did the IDB make a request for another investigator during Hudson's illness.

John Ellis, the newly appointed Chief Public Defender, also addressed the trial court. Ellis explained that he had been recently told by the interim chief that Hudson had been ill, and, after further inquiry, he learned that Hudson had passed away. Ellis advised that he then took immediate steps to hire a new investigator. He also informed the court that his office was not in possession of the files on which Hudson had been working. Ellis advocated in favor of allowing Brown the benefit of the new investigator's services.

Following argument the trial court denied the motion to continue, explaining as follows:

Okay. Usually within forty-eight hours or seventy-two hours I think an attorney's appointed, I don't know was appointed in that particular situation, but an attorney has been on this case virtually from the moment of arrest. There has been as [defense counsel] stated Mr. Hudson, the former investigator was an outstanding investigator. He was - I don't know exactly who he was working for when I was serving full time as judge but he was in court virtually every time had court on some case, both as an investigator for the Public Defender's Office and as a private investigator on his own right in some domestic cases. And in a domestic case that I dealt with a couple of weeks ago he was the investigator until very recently on that case, so there has been an investigator in the case for almost two years. I think Mr. Hudson - I saw his obituary, I noticed he had passed away over the weekend, I think his funeral was Monday. But I understand that he was - actually had made a court appearance two weeks prior to that. He was, as [defense counsel] argued in chambers, had had made several trips to Colorado for some type of medical treatment but he was still active and working the case. As a public defender myself for five years, we didn't have investigators, we investigated our own cases, that was part of the job to get prepared. And I would have loved to have had an investigator to assist me but I didn't, so I had to do the shoe leather routine and get out and go take measurements of crime scenes and prepare myself, I had to interview witnesses and other people that was referred to me. I understand from argument in chambers, [addressing defense counsel], that sometimes it's difficult to present evidence when you're the one that has to interview but you're the one that's got to know what people are going to say so that you can make your cross-examinations more effective of the state's witnesses and perhaps have witnesses of your own. But this case is a couple of years old, and by the time that it's continued again it'll be three years old, because of the way the rotation works in this district there's not another available date. And if you had been sitting here listening all day long I had fourteen pages of cases that were scheduled to be heard at this next week and for the past several hours I've been kicking them back, kicking them back, kicking them back to August, and some of those, Mr. Ellis, are very serious cases, too. And so there comes a time when we have to do what we have to do and this is that time. So the motion to continue will be denied and we'll be ready to go to trial on this case on Monday.

After the ruling, there was an indication by defense counsel that he may have intended to take a writ, but none was filed. The district attorney stated that, as had been the case for the previous month, his office was "open and available" to defense counsel for anything he may need over the weekend. The matter proceeded to trial the following week.

The following testimony and evidence was presented by the state at trial. Brown arrived at his Aunt Mary Miles' trailer at 108 Blackmon in Rayville, Louisiana, around 5:00 a.m. on the day of the shooting. He was wearing camouflage clothing and a black mask that was rolled up like a cap and was carrying a gun case. Mary Miles' sons, Terrance Miles and Robert Miles, cousins of Brown, were at home when he arrived. Brown plugged his cell phone in to charge in Terrance's bedroom. Around 7:00 a.m., Terrance and Robert went outside to play dominoes. Mary Miles returned home in the meantime. Around 2:00 p.m., the victim, Michael Bradley, drove up to the Miles trailer and got out of his truck, leaving the engine running. Bradley was Terrance Miles' best friend and, the record indicates, was also a friend of Brown's. Bradley asked Terrance if he wanted to ride to Monroe with him and then walked behind a parked truck to urinate. When Bradley walked back around, shots were fired at him. Terrance and Robert ran down the street. Bradley was shot multiple times. When the shooting ceased, Terrance walked back into his yard and saw Bradley lying on the ground dead. Neither Terrance nor Robert could definitively say from which direction the shots were fired, but neither boy saw anyone shooting from outside the trailer. Terrance testified that, after the shooting, he saw Brown, still dressed in camouflage, running behind the trailer house. Robert testified that Brown did not leave the trailer from the time he arrived early that morning. Both boys testified that the only people in the trailer were their mother and Brown.

Mary Miles testified that she was in her bedroom when she heard the first shot. She walked into the kitchen and saw Brown with a gun propped on a Folgers coffee can pointed out the kitchen window. She spoke to him, he looked at her, pulled the cap/mask down over his face and began firing out the window. Mary testified that she was so scared she covered her face with her hands and urinated on herself. She was unable to move from fear, and when she uncovered her face, she saw Brown put the gun, an AK 47, between mattresses in a nearby bedroom and run out of the trailer. Mary testified that at first, she thought that Brown had been shooting at her sons. She went outside and saw Michael Bradley's body on the ground. Terrance testified that, after the shooting, he saw Brown run out of the trailer and toward the woods.

The police arrived and a subsequent search of the home revealed the scene in the kitchen as Mary Miles described, with a chair against the counter in front of the sink and the coffee can set up like a "prop." The window over the sink was blown out and the trim was destroyed. An assault rifle was found between the mattress and the box spring in one of the bedrooms. Fingerprint analysis revealed a latent fingerprint on the rifle's magazine that was positively matched to Brown. Several other loaded guns (allegedly belonging to Brown) were found in Mary's trailer and Brown's cell phone was found charging in Terrance's bedroom.

Later that afternoon, Brown went to a neighborhood convenience store called the Hornet's Den. Oliver Holland, the proprietor, testified that Brown was dressed in sweatpants without a shirt, and his shoes were muddy. Tyreace Haynes, who testified that Brown was "like" his uncle, saw Brown at the Hornet's Den around 6:00 p.m. and agreed to let Brown use his cell phone. The calls would not go through because Tyreace did not have any prepaid minutes left on his phone. Brown went into the store and asked Holland to use the business phone. Holland agreed, and although he did not hear Brown's conversation, thought that Brown called his mother to ask her to let him into her house, which was "just down the street." Tyreace told Brown that Michael Jr. was "gone," and Brown asked him "who did it?" before telling Tyreace that Brown needed to get out of Rayville because the police were looking for him. Tyreace testified that Brown's mother then pulled up outside of the store and told Brown that "he needed to get his evidence out of her house."

Danielle Collins testified that, at the time of the shooting, she had been dating Brown for three or four months. Danielle stated that Brown showed up at her house in Monroe after the shooting. She had seen a report on the local news about the murder and the suspected shooter (which was Brown). Danielle asked Brown "why did you do it" and he said "it had to be done," and that he just "walked up on the boy." Rosemary Cleveland, an ex-girlfriend of Brown's, testified that she had been arguing with Brown the day of the shooting and that he texted and called her, telling her, among other things, that he was watching her. Mary's trailer was down the street from Rosemary's mother's house and Rosemary testified that, on the day of the shooting, she was outside within view of Mary's trailer. Rosemary saw Michael drive by, going toward Mary's trailer, but she did not hear the shots fired at Michael. Brown called Rosemary later that afternoon from the Hornet's Den. He also called her "a lot" from jail and during one conversation, asked her to get her son, "Boo," to "get that thing from Buck and them ... it's under the mattress" at Mary's house.

The state rested and the defense did not call any witnesses. Brown was convicted as charged and subsequently sentenced. This appeal followed.

DISCUSSION

In his sole assignment of error, Brown argues that the trial court abused its discretion in denying his motion to continue the trial based on the death of Jamie Hudson, the Indigent Defender Board's investigator assigned to his case. According to Brown, there are "certain things" that require more investigation in his case, including interviewing the witnesses listed on the state's article 768 notice. Further, Brown notes that Hudson, the only investigator with the IDB, had been ill for a period of time before his death. Brown states that Hudson was not able to do investigative work, and another investigator had been appointed to take over his case. Brown reurges his trial counsel's argument to the trial court, which was that "a lack of a proper investigation violated a sense of fairness and fair play and a trial without such an investigation would result in a substantial injustice." Brown seeks reversal of his conviction and sentence and remand.

The state makes the following observations in support of the trial court's exercise of discretion in denying Brown's motion for continuance:

• The case had been pending for more than two years and there was ample time to investigate.
• Brown had the same attorney from arraignment to trial.
• The defense was aware in 2017 that the matter was a priority for the February 2018 trial setting.
• The state maintained "open file" discovery and provided all discovery to the defense well before trial, and that all discovery was filed into the record.
• While the state's 768 notice was filed on January 24, 2018, the witnesses were not a surprise, and that their statements had been previously provided to the defense during discovery.
• Brown filed a motion for speedy trial in February 2016 indicating that he was ready for trial.
• Despite Hudson's illness, no pleading or request was filed seeking supplemental funds to hire a new investigator.
• The state timely complied with all discovery requests of the defense. However, in July 2017, the court ordered the defense to comply with the state's discovery request, which the defense had still failed to do as of the January 31, 2018 hearing on the motion to continue.

The state argues that, while a defendant is constitutionally entitled to an attorney, the constitution does not entitle a defendant to an investigator. The state points out that many attorneys try criminal cases without the benefit of an investigator and no evidence was presented that defense counsel was in any way precluded or prevented from conducting an investigation and speaking to witnesses on his client's behalf. Finally, the state notes that the assistant district attorney advised the trial court that the state would suffer prejudice from a continuance of the trial, in that a delay of six months to one year would increase the chance that the state would lose witnesses, their memories would fade, and some of the witnesses had medical issues.

Upon a written motion at any time and after a contradictory hearing, the trial court may grant a continuance, but only upon a showing that such a motion is in the interest of justice. La. C. Cr. P. art. 707 ; State v. Saulsberry , 52,031 (La. App. 2 Cir. 5/23/18), 247 So.3d 1137, writ denied , 18-1067 (La. 11/05/18), 255 So.3d 1053 ; State v. Thomas , 51,346 (La. App. 2 Cir. 6/21/17), 223 So.3d 759, writ denied , 17-1264 (La. 3/9/18), 237 So.3d 523 ; State v. Harris , 44,402 (La. App. 2 Cir. 6/24/09), 20 So.3d 1121, writ denied , 09-2303 (La. 4/23/10), 34 So.3d 271. Additionally, the court has discretion to grant a timely filed motion for a continuance "in any case if there is good ground therefor." La. C. Cr. P. art. 712. Because the decision to grant or deny a motion for continuance rests within the sound discretion of the trial court, a reviewing court will not disturb the trial court's determination absent a clear abuse of discretion. State v. Saulsberry, supra ; State v. Thomas, supra ; State v. Free , 48,260 (La. App. 2 Cir. 11/20/13), 127 So.3d 956, writ denied , 13-2978 (La. 5/30/14), 140 So.3d 1174. Generally, a reviewing court will not reverse a conviction even on a showing of an improper denial of a motion for a continuance, absent a showing of specific prejudice. State v. Manning , 03-1982 (La. 10/19/04), 885 So.2d 1044, cert. denied , 544 U.S. 967, 125 S.Ct. 1745, 161 L.Ed.2d 612 (2005) ; State v. Saulsberry, supra ; State v. Free, supra .

Courts generally take into consideration the length of time the matter has been pending and, if there is new counsel, the amount of time that has passed since the appointment or retaining of that counsel. See State v. Tate , 38,576 (La. App. 2 Cir. 8/18/04), 880 So.2d 255, writ denied , 04-2554 (La. 1/14/05), 889 So.2d 268 ; State v. Simmons , 13-258 (La. App. 5 Cir. 2/26/14), 136 So.3d 358, writ denied , 14-0674 (La. 10/31/14), 152 So.3d 151.

The denial of motion for a continuance on grounds of counsel's lack of preparedness does not warrant a reversal unless counsel demonstrates specific prejudice resulting from the denial, or the preparation time is so minimal as to call into question the basic fairness of the proceeding. State v. Jordan , 50,002 (La. App. 2 Cir. 8/12/15), 174 So.3d 1259, writ denied , 15-1703 (La. 10/10/16), 207 So.3d 408, citing State v. Snyder , 98-1078 (La. 4/14/99), 750 So.2d 832.

The trial court did not abuse its discretion in denying the motion to continue. The record shows that the trial court thoroughly and thoughtfully considered the defense's motion and was not persuaded that there were good grounds for continuing the trial. Further, there was no showing of any prejudice resulting from the denial of the motion. As the state points out, the matter has been pending for more than two years and the state had long since complied with the defense's discovery requests, including the statements of the witnesses Brown now claims have not been interviewed.

Understandably, appointed counsel partially relied upon the IDB investigator to assist in preparing Brown's defense. However, once Hudson fell ill, Brown's counsel didn't request the assistance of another investigator. It is defense counsel's duty to his client to prepare his case for trial and, in this matter, counsel (who represented Brown from arraignment through trial) had more than adequate time to prepare and ensure that Brown's case was thoroughly investigated and prepared by the time of trial in February 2018.

The evidence presented at trial was overwhelming, and the defense was aware of, and in fact possessed, the statements of the state's witnesses well in advance of trial. The exception is Rosemary Cleveland, whose identity was included in the supplemental article 768 notice. Even if the court were to find that this was a last-minute disclosure and that the denial of the motion to continue was improper, the evidence of guilt is overwhelming even without Rosemary Cleveland's testimony. There simply has been no showing of specific prejudice by the defense. State v. Manning, supra ; State v. Saulsberry, supra ; State v. Free, supra .

On the record, we cannot say that the trial court abused its sound discretion by denying defense counsel's motion to continue. Brown has failed to make a showing of specific prejudice to warrant reversal of his convictions.

We have found an error patent. On the conviction for possession of a firearm by a convicted felon, the trial court imposed a sentence of ten years at hard labor. At the time of the offense, September 28, 2015, La. R.S. 14:95.1 provided that whoever was found guilty of possession of a firearm by a convicted felon shall be imprisoned at hard labor for not less than 10, nor more than 20 years without the benefit of probation, parole, or suspension of sentence and be fined not less than $1,000, nor more than $5,000. Because Brown's sentence was imposed without denial of the benefit of parole, probation, or suspension of sentence restrictions or the mandatory fine, it is illegally lenient. When a district court fails to order that a sentence should be served without benefit of parole, probation, or suspension of sentence as mandated by statute, those required restrictions are self-activating and there is no need to remand for correction of an illegally lenient sentence. La. R.S. 15:301.1(A) ; State v. Williams , 00-1725 (La. 11/28/01), 800 So.2d 790 ; State v. Hanks , 46,110 (La. App. 2 Cir. 030/9/11), 58 So.3d 1093 ; State v. Sudds , 43,689 (La. App. 2 Cir. 12/3/08), 998 So.2d 851, writ denied , 09-0154 (La. 10/16/09), 19 So.3d 472. Regarding the failure to impose the mandatory fine, the state did not object to the error, and Brown obviously is not prejudiced by the trial court's failure to impose the mandatory fine. Accordingly, this Court will not remand the case for correction of the sentence to include such a fine. State v. Reynolds , 49,258 (La. App. 2 Cir. 10/1/14), 149 So.3d 471.

CONCLUSION

For the reasons set forth above, the convictions and sentences of defendant, Larry R. Brown, Jr., are affirmed.

AFFIRMED.

      During argument on the motion to continue, the district attorney stated that the motion for speedy trial was called for hearing, and Brown represented to the court that he wanted to proceed to trial. However, defense counsel convinced Brown to "back off" of that motion and there was no ruling thereon.

      Appeals were taken in both lower court docket numbers and this Court dismissed the appeal in the initial docket number charging Brown with only possession of a firearm by a convicted felon and made that record an exhibit to the instant appeal.

      La. C. Cr. P. art. 768, Same; use of confession or inculpatory statement; notice to defendant prior to opening statement, provides:
      Unless the defendant has been granted pretrial discovery, if the state intends to introduce a confession or inculpatory statement in evidence, it shall so advise the defendant in writing prior to beginning the state's opening statement. If it fails to do so a confession or inculpatory statement shall not be admissible in evidence.

      Dr. Frank Paretti, a forensic pathologist, testified that there were 16 entrance wounds and multiple exit wounds in the victim's body. He also pointed out that the victim had shrapnel wounds caused from bullets that hit the ground and fragmented.

      Buck was Mary Miles' husband; he was deceased at the time of the shooting.

      Effective July 31, 2017, the minimum sentence was changed to five years.