author: CHEHARDY, C.J.

text:
    STATE of Louisiana v. John F. VAUGHN
    NO. 18-KA-51
    Court of Appeal of Louisiana, Fifth Circuit.
    May 16, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Metairie, LA, Terry M. Boudreaux, Gretna, LA.
    COUNSEL FOR DEFENDANT/APPELLANT, JOHN F. VAUGHN, Gwendolyn K. Brown, Baton Rouge, LA.
    Panel composed of Judges Susan M. Chehardy, Stephen J. Windhorst, and Hans J. Liljeberg
   CHEHARDY, C.J.

On appeal, defendant's appointed appellate counsel has filed an Anders brief on defendant's behalf asserting that there is no basis for a non-frivolous appeal. For the following reasons, we affirm defendant's convictions and sentences and grant appellate counsel's motion to withdraw.

Facts and Procedural History

Because defendant pled guilty, the facts were not fully developed at a trial. However, during the guilty plea colloquy, the State provided the following factual basis for the guilty pleas:

[O]ur evidence in this case would have proven that Mr. Vaughn on or about March 25th of this year violated La. R.S. 14:64.1 and that he did rob one Leda Baney ... while leaving ... said victim to reasonably believe that he was armed with a dangerous weapon. In connection with count two our evidence would have further proven that Mr. Vaughn on the same date committed a violation La. R.S. 14:35 and that he did commit a simple battery upon a juvenile. His date of birth was 2/27/11, he did that by using force or violence upon that individual person without their permission. With regard to count three our evidence would have proven that Mr. Vaughn on December 29th of last year violated La. R.S. 14:64.1 and that he did rob one Dariana Davis while leaving that victim to reasonably believe that he was armed with a dangerous weapon, and count four we would have additionally proven that on May 26th of this year Mr. Vaughn violated La. R.S. 14:62.3 by committing unauthorized entry of an inhabited dwelling located at 200 Acorn Street in Kenner. It was the home or abode of one Daniel Gray. All those violations occurred in Jefferson Parish within this court's jurisdiction.

On May 30, 2017, the Jefferson Parish District Attorney charged defendant, John F. Vaughn, with two counts of first degree robbery, in violation of La. R.S. 14:64.1 ; one count of cruelty to a juvenile, in violation of La. R.S. 14:93 ; and one count of unauthorized entry of an inhabited dwelling, in violation of La. R.S. 14:62.3. On October 16, 2017, the State amended the bill of information to reduce the charge of cruelty to a juvenile to misdemeanor simple battery, in violation of La. R.S. 14:35.

On October 16, 2017, defendant withdrew his previous pleas of not guilty and entered pleas of guilty to the charges as amended. In accordance with the plea agreement set forth in the record, the trial court sentenced defendant to concurrent sentences as follows: for each count of first degree robbery, twenty years at hard labor; for misdemeanor simple battery, six months in parish prison; and for unauthorized entry of an inhabited dwelling, twelve years at hard labor.

During that same hearing, the State filed a multiple offender bill of information, alleging defendant to be a second felony offender, to which defendant stipulated. In accordance with a plea agreement set forth in the record, the trial court vacated defendant's underlying sentence for unauthorized entry into an inhabited dwelling, and sentenced defendant pursuant to La. R.S. 15:529.1 to twelve years at hard labor to run concurrently with his other sentences.

On November 8, 2017, defendant filed a motion to reconsider sentence and a Notice of Appeal and Designation of Record, seeking an appeal from the "judgment rendered on October 16, 2017." The trial court denied the motion to reconsider sentence and granted defendant's motion for appeal on November 27, 2017. The instant appeal follows.

Jurisdictional Note

This Court's appellate jurisdiction extends only to cases that are triable by a jury. La. Const. of 1974, art. 5 § 10 ; La. C.Cr.P. art. 912.1 ; State v. Chess , 00-164 (La. App. 5 Cir. 6/27/00), 762 So.2d 1286, 1287. Unless the punishment that may be imposed exceeds six months imprisonment, a misdemeanor is not triable by a jury. La. Const. of 1974, art. 1 § 17 ; La. C.Cr.P. art. 779 ; Chess, supra .

In the present case, defendant was originally charged with cruelty to a juvenile, in violation of La. R.S. 14:93, a felony, but defendant pled guilty to the amended charge of simple battery, in violation of La. R.S. 14:35, a misdemeanor. La. R.S. 14:35(B) sets forth the penalties for simple battery, which are a fine of not more than one thousand dollars or imprisonment for not more than six months, or both. Thus, simple battery is not triable by a jury.

The proper procedure for seeking review of a misdemeanor conviction is an application for writ of review asking this Court to exercise its supervisory jurisdiction. See La. C.Cr.P. art. 912.1(C)(1) ; State v. Trepagnier , 07-749 c/w 07-750, p. 3 (La. App. 5 Cir. 3/11/08), 982 So.2d 185, 188, writ denied , 08-0784 (La. 10/24/08), 992 So.2d 1033. Further it is this Court's policy to dismiss such misdemeanor matters that are not appealable. However, we also note that dismissal may not be warranted in "exceptional cases, especially when there are misdemeanor and felony convictions intertwined to the point that the interests of justice are better served by considering the matters together."

Upon review, we note that defendant's misdemeanor and felony offenses were charged in the same bill of information, and defendant's guilty pleas, and his sentencing on both charges occurred simultaneously. Here, the misdemeanor and felony convictions are intertwined to the point that the interests of justice may be better served by considering the matters together. Finding that the instant matter is an example of "exceptional cases...intertwined to the point that the interests of justice are better served by considering the matters together," we conclude that judicial economy dictates that these matters should be considered together. Jones , supra ; Christophe, supra.

Anders brief

Under the procedure adopted by this Court in State v. Bradford , 95-929 (La. App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110-11, appointed appellate counsel has filed a brief asserting that she has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles , 96-2669 (La. 12/12/97), 704 So.2d 241 (per curiam ), appointed counsel requests permission to withdraw as counsel of record.

In Anders , supra , the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if she finds her case to be wholly frivolous after a conscientious examination of it. The request must be accompanied by " 'a brief referring to anything in the record that might arguably support the appeal' " so as to provide the reviewing court "with a basis for determining whether appointed counsel have fully performed their duty to support their clients' appeals to the best of their ability" and to assist the reviewing court "in making the critical determination whether the appeal is indeed so frivolous that counsel should be permitted to withdraw." McCoy v. Court of Appeals of Wisconsin, Dist. 1 , 486 U.S. 429, 439, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440 (1988) (quotation omitted).

In Jyles , supra , the Louisiana Supreme Court stated that an Anders brief need not tediously catalog every meritless pretrial motion or objection made at trial with a detailed explanation of why the motions or objections lack merit. The supreme court explained that an Anders brief must demonstrate by full discussion and analysis that appellate counsel "has cast an advocate's eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration." Id.

When conducting a review for compliance with Anders , an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. Bradford , 676 So.2d at 1110. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel's motion to withdraw and affirm the defendant's conviction and sentence. However, if the court finds any legal point arguable on the merits, it may either deny the motion and order the court-appointed attorney to file a brief arguing the legal point(s) identified by the court, or grant the motion and appoint substitute appellate counsel. Id.

Discussion

Defendant's appellate counsel asserts that after a detailed review of the record, she could find no non-frivolous issues to raise on appeal.

Appellate counsel asserts that before defendant changed his plea from not guilty to guilty, he was fully informed of the legal consequences of changing his plea both by his trial counsel and the district court. She notes that an examination of the plea colloquy reveals that the district court explained to defendant each of the rights necessary to ensure a knowing and intelligent waiver of rights. She notes that he was informed of the maximum penalties for each of the offenses to which he was pleading. With respect to the habitual offender proceeding, appellate counsel avers that defendant was advised that he had the right to a hearing on the allegations and to require the State to prove the allegations contained in the bill. Appellate counsel asserts that the court reviewed with defendant the sentences that it would impose as a result of his guilty plea and his stipulation to the multiple offender bill of information, which were the sentences that were imposed. As such, she notes that defendant is restricted from appealing his sentences.

Appellate counsel has filed a motion to withdraw as attorney of record which states she filed an Anders brief and that defendant has a right to file his own brief in this appeal. Additionally, this Court sent defendant a letter by certified mail informing him that an Anders brief had been filed and of his opportunity to file a pro se supplemental brief.

The State responds that appellate counsel correctly notes that the case presents no non-frivolous issues for appellate review. The State notes that the trial court conducted a Boykin colloquy with defendant and explained the rights he was waiving by pleading guilty. The State avers that defendant's sentences were within the statutory limits. The State concludes that defendant voluntarily and intelligently entered into his guilty pleas, and there are no non-frivolous issues to be raised on appeal.

Our independent review of the record supports appellate counsel's assertion that there are no non-frivolous issues to be raised on appeal. The bill of information and amended bill of information properly charged defendant, plainly stated the essential facts of the charged offenses, identified defendant, and the crimes charged. See generally La. C.Cr.P. arts. 464 - 466. As reflected by the minute entries and commitment, defendant appeared at each stage of the proceedings against him. He attended his arraignment, his guilty plea proceeding, his sentencing, and his multiple bill proceeding, including his stipulation and enhanced sentencing. As such, defendant's presence, or lack thereof, does not present an issue for appeal.

Further, defendant pled guilty as charged in the amended bill of information; he also admitted to being a second felony offender as alleged in the multiple bill. If a defendant pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea and precludes review of such defects either by appeal or post-conviction relief. State v. Wingerter , 05-697 (La. App. 5 Cir. 3/14/06), 926 So.2d 662, 664. Additionally, an unconditional plea, willingly and knowingly made, waives any and all non-jurisdictional defects and bars a defendant from later asserting on appeal that the State failed to produce sufficient proof at the multiple offender hearing. State v. Schaefer , 97-465 (La. App. 5 Cir. 11/25/97), 704 So.2d 300, 304.

The record also indicates that no pre-trial motions were filed by defendant. Thus, the record does not contain any pre-trial rulings that could have been preserved for appeal under the holding in State v. Crosby , 338 So.2d 584 (La. 1976).

Additionally, a review of the record reveals no irregularities in defendant's guilty pleas that would render them invalid. Once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief. A guilty plea is constitutionally infirm if it is not entered freely and voluntarily, if the Boykin colloquy is inadequate, or when a defendant is induced to enter the plea by a plea bargain or what he justifiably believes was a plea bargain and that bargain is not kept.

State v. McCoil , 05-658 (La. App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124.

A review of the record reveals no constitutional infirmities with respect to defendant's guilty pleas. The record reflects that defendant acknowledged reviewing the waiver of rights form with his attorney. The record shows that defendant was aware he was charged with and pleading guilty to two counts of first degree robbery, one count of misdemeanor simple battery, and one count of unauthorized entry of an inhabited dwelling. Defendant was also properly advised of his Boykin rights. On the waiver of rights form and during the colloquy with the trial judge, defendant was advised of his right to a trial by jury, his right to confrontation, and his privilege against self-incrimination. Defendant indicated both by his signature on the waiver of rights form and verbally with the trial judge that he understood that by pleading guilty he was waiving these rights.

Defendant was also informed that if he would be convicted of any felony in the future, he could be multiple billed under the habitual offender law which would increase the penalty for that conviction. Defendant confirmed that his pleas were knowing, intelligent, free and voluntary and that no promises or threats had been made to encourage him to plead guilty. Moreover, a factual basis was given by the State for the charged offenses, and defendant indicated he was pleading guilty because he was in fact guilty. After his colloquy with defendant, the trial judge accepted defendant's guilty pleas as knowingly, intelligently, and voluntarily made.

Additionally, during the guilty plea colloquy and by means of the waiver of rights form, defendant was advised of the maximum six-year sentence he faced for the crime of unauthorized entry of an inhabited building and the maximum six-month sentence he faced for simple battery. Because neither of those charges have a mandatory minimum penalty, defendant was not advised of the mandatory minimum penalty. See La. R.S. 14:62.3 and La. R.S. 14:35.

Further, although defendant was advised of the maximum forty-year sentence that he faced for the crimes of first degree robbery on counts one and three, he was not advised of the mandatory minimum three-year penalty he faced for the offense. See La. R.S. 14:64.1. The record reflects that the defendant was also not advised as to the mandatory restriction of benefits he faced for first degree robbery. See La. R.S. 14:64.1(B). Defendant was, however, informed of actual sentences that would be imposed if he pled guilty.

La. C.Cr.P. art. 556.1(A)(1) provides that, prior to accepting a guilty plea, the court must personally inform the defendant of the nature of the charge to which the plea is offered, any mandatory minimum penalty, and the maximum possible penalty. State v. Kent , 15-323 (La. App. 5 Cir. 10/28/15), 178 So.3d 219, 229, writ denied , 15-2119 (La. 12/16/16), 211 So.3d 1165. Further, La. C.Cr.P. art. 556.1(E) provides that: "[a]ny variance from the procedures required by this Article which does not affect substantial rights of the accused shall not invalidate the plea." Violations of La. C.Cr.P. art. 556.1 that do not rise to the level of Boykin violations are subject to a harmless error analysis. Kent, supra (citing State v. Craig , 10-854 (La. App. 5 Cir. 5/24/11), 66 So.3d 60, 64 ).

In the present case, although the trial court failed to advise defendant regarding the minimum sentences he faced for the two counts of first degree robbery, the trial court informed defendant that he would receive twenty-year sentences on each count, and defendant later received twenty-year sentences for the charged offenses. This Court has held that the advisement of an agreed upon sentence complies with La. C.Cr.P. art. 556.1. See State v. Nicholas , 16-16 (La. App. 5 Cir. 6/30/16), 196 So.3d 864 (citing Kent, supra , citing Craig , 10-854, 66 So.3d at 64 ). Accordingly, we find that no substantial rights of defendant were affected by the trial court's lack of advisal concerning the minimum sentence defendant faced for the crime of first degree robbery and this does not present an issue for appeal.

Moreover, with respect to the trial court's failure to advise defendant as to the mandatory restriction of benefits he faced, this Court has noted, in a similar factual situation, that the omission of an advisal regarding the restriction of benefits did not present an issue for appeal. See State v. Landfair , 07-751 (La. App. 5 Cir. 3/11/08), 979 So.2d 619, 622-23, writ denied , 08-1143 (La. 1/9/09), 998 So.2d 713. Likewise, we find that the failure to advise defendant of the mandated restriction of benefits for first degree robbery did not present an issue for appeal here.

Further, our review reveals no constitutional infirmity in defendant's stipulation to the multiple bill. The record indicates that defendant reviewed the multiple offender waiver of rights form with his attorney. The waiver of rights form and the colloquy between the trial judge and defendant indicate that defendant was advised of his right to a hearing at which the State would have to prove his multiple offender status and of his right to remain silent throughout the hearing. Defendant was also advised of the potential sentencing range as a second felony offender and the sentence that would be imposed. Defendant indicated that he had not been forced or coerced into stipulating to the multiple bill.

Afterward, the trial judge accepted his stipulation to the multiple bill as knowingly, intelligently, freely, and voluntarily made by defendant. By stipulating to the multiple bill, defendant waived his right to a hearing and any possible non-jurisdictional defects were also waived. Defendant is barred from asserting on appeal that the State failed to produce sufficient proof at the multiple bill hearing when he waived the hearing. See Schaefer, supra .

With regard to defendant's sentences, La. C.Cr.P. art. 881.2(A)(2) precludes a defendant from seeking review of a sentence imposed in conformity with a plea agreement, which was set forth in the record at the time of the plea. State v. Washington , 05-211 (La. App. 5 Cir. 10/6/05), 916 So.2d 1171, 1173. Additionally, this Court has consistently recognized that La. C.Cr.P. art. 881.2 precludes a defendant from seeking review of an enhanced sentence to which the defendant agreed.

State v. Williams , 12-299 (La. App. 5 Cir 12/11/12), 106 So.3d 1068, 1075, writ denied , 13-0109 (La. 6/21/13), 118 So.3d 406. Here, defendant's original sentences for first degree robbery and simple battery and his enhanced sentence for unauthorized entry into an inhabited dwelling were imposed in accordance with the plea agreement set forth in the record at the time of the pleas. See La. R.S. 14:64.1(B) ; La. R.S. 14:35(B) ; La. R.S. 14:62.3(B) ; La. R.S. 15:529.1.

Based on our independent review of the record, we find that appellate counsel's brief adequately demonstrates by full discussion and analysis that she has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal. Accordingly, we grant appellate counsel's motion to withdraw as attorney of record.

Errors Patent

In brief, defendant requests an error patent review, which this Court routinely performs on appellate review in accordance with La. C.Cr.P. art. 920 ; State v. Oliveaux , 312 So.2d 337 (La. 1975) ; and State v. Weiland , 556 So.2d 175 (La. App. 5 Cir. 1990). Generally, however, an error patent review is not conducted on misdemeanor convictions. Nevertheless, this Court in similarly situated matters has conducted an error patent review. See State v. Jones , 12-640 (La. App. 5 Cir. 10/30/13), 128 So.3d 436 ; State v. Carruth , 94-147, 94-148 (La. App. 5 Cir. 9/27/94), 643 So.2d 1319 ; State v. Brooks , 595 So.2d 777 (La. App. 5 Cir. 1992). Accordingly, this Court conducted an error patent review of all of the convictions before us and found no errors that require correction.

AFFIRMED; MOTION TO WITHDRAW GRANTED.

      La. C.Cr.P. art. 779(A) provides: "A defendant charged with a misdemeanor in which the punishment, as set forth in the statute defining the offense, may be a fine in excess of one thousand dollars or imprisonment for more than six months shall be tried by a jury of six jurors, all of whom must concur to render a verdict."

      See generally , State v. Brown , 17-420 c/w17-426, 2018 WL 989136, 2018 La. App. LEXIS 269 (La. App. 5 Cir. 2/21/18) ; State v. Carroll , 16-599 (La. App. 5 Cir. 2/8/17), 213 So.3d 486 ; State v. Jones , 12-640 c/w 12-641 (La. App. 5 Cir. 10/30/13), 128 So.3d 436 ; State v. Christophe , 12-82 (La. App. 5 Cir. 10/16/12), 102 So.3d 935, writ denied , 12-2432 (La. 4/19/13), 111 So.3d 1029 ; Trepagnier , supra.

      In the amended bill of information, defendant was charged with misdemeanor simple battery and three felonies: two counts of first degree robbery, in violation of La. R.S. 14:64.1 and one count of unauthorized entry of an inhabited dwelling, in violation of La. R.S. 14:62.3. This is a misjoinder of offenses in the bill of information. La. C.Cr.P. art. 493 provides for the joinder of offenses that "are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan; provided that the offenses joined must be triable by the same mode of trial ." (Emphasis added.)
      In the present case, three of the four counts, which are punishable with or without hard labor, are triable by a jury. La. C.Cr.P. art. 782. However, simple battery, which is a misdemeanor, is triable by a judge only. La. C.Cr.P. art. 779. Therefore, pursuant to La. C.Cr.P. art. 493, misdemeanor simple battery was not properly joined in the same indictment as the felony offenses.
      However, defendant did not file a motion to quash the bill of information on the basis of misjoinder of offenses, as required by statute. La. C.Cr.P. art. 495. Additionally, by entering an unqualified guilty plea, defendant waived review of this non-jurisdictional pre-plea defect. See State v. Crosby , 338 So.2d 584 (La. 1976) ; State v. Lisotta , 11-1461 (La. App. 3 Cir. 6/06/12), 91 So.3d 1247, 1249-50.

      With respect to an Anders review, this Court generally does not conduct an Anders review of misdemeanor convictions, which are reviewed under our supervisory jurisdiction. Nevertheless, this Court has in the past conducted an Anders review of misdemeanor convictions, when those convictions were considered with appeals from the defendant's felony convictions. State v. Sayles , 16-334 (La. App. 5 Cir. 12/7/16), 206 So.3d 1243 n.3 ; State v. Lyons , 13-180 (La. App. 5 Cir. 10/9/13), 128 So.3d 407 ; Carroll , supra . In the instant case, we have conducted an Anders review on each conviction before this Court.

      In Bradford , supra , this Court adopted the procedures outlined in State v. Benjamin , 573 So.2d 528, 530 (La. App. 4 Cir. 1990), which were sanctioned by the Louisiana Supreme Court in State v. Mouton , 95-0981, pp. 1-2 (La. 4/28/95), 653 So.2d 1176, 1177 (per curiam ).

      The United States Supreme Court reiterated Anders in Smith v. Robbins , 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).

      Boykin v. Alabama , 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

      Whenever a misdemeanor guilty plea will be used as a basis for actual imprisonment, it is incumbent upon the trial judge to inform the defendant that by pleading guilty he waives the three Boykin rights. State v. Lyons , supra at 407, 416 n.10 (citing State v. Casse , 00-235 (La. App. 5 Cir. 10/18/00), 772 So.2d 801, 803 ).

      La. R.S. 14:64.1(B) mandates that the entire sentence be imposed without the benefit of parole, probation, or suspension of sentence.

      In Landfair , defendant's Boykin colloquy and the written waiver of rights form failed to inform the defendant that his guilty plea would result in a sentence without benefit of parole, probation, or suspension of sentence. This Court recognized that the defendant did not assign any errors relating to his sentence, did not make any allegations that his plea was involuntary, and did not move to withdraw his guilty plea. This Court reasoned that the sentence imposed was not inconsistent with the plea agreement, and that the restriction of benefits was mandatory in accordance with law. Landfair, supra at 623.

      La. R.S. 14:64.1(B) provides that "[w]hoever commits the crime of first degree robbery shall be imprisoned at hard labor for not less than three years and for not more than forty years, without benefit of parole, probation or suspension of imposition or execution of sentence."

      La. R.S. 14:35(B) provides that "[w]hoever commits a simple battery shall be fined not more than one thousand dollars or imprisoned for not more than six months, or both."

      La. R.S. 14:62.3(B) provides that "[w]hoever commits the crime of unauthorized entry of an inhabited dwelling shall be fined not more than one thousand dollars or imprisoned with or without hard labor for not more than six years, or both." Defendant was originally sentenced on count four, authorized entry of an inhabited dwelling, a violation of La. R.S. 14:62.3, to twelve years at hard labor, which exceeds the maximum penalty proscribed by the statute. However, this sentence was later vacated, and defendant was sentenced as a multiple offender to twelve years at hard labor. While defendant was properly advised of the maximum sentence of six years, he was further told that the sentence that would be imposed would be twelve years. Because the original sentence on count four was vacated, any error regarding that sentence is moot. See State v. Hanson, 00-1168 (La. App. 5 Cir. 12/13/00), 778 So.2d 43, 45, writ denied , 03-2838 (La. 10/8/04), 883 So.2d 1030.

      La. R.S. 15:529.1 provides, in pertinent part, that upon a second felony conviction, "the sentence to imprisonment shall be for a determinate term not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction."

      La. C.Cr.P. art. 920 provides for the scope of appellate review as follows: The following matters and no others shall be considered on appeal: (1) An error designated in the assignment of errors; (2) An error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.


source: Caselaw Access Project

author: STEPHENS, J.

license: Public Domain

text:
    TAB-N-ACTION, INC., dba Excellence Academy, Plaintiff-Appellant v. MONROE CITY SCHOOL BOARD, Defendant-Appellee
    No. 51,969-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered May 23, 2018
    OFFICE OF ANTHONY J. BRUSCATO, By: Anthony J. Bruscato, Monroe, ROUNTREE LAW OFFICES, By: James A. Rountree, Monroe, EDDIE M. CLARK & ASSOCIATES, L.L.C., By: Eddie M. Clark, Counsel for Appellant
    THE LAWRENCE LAW FIRM, L.L.C., By: L. Douglas Lawrence, Bastrop, HAMMONDS, SILLS, ADKINS & GUICE, By: Jon K. Guice, Monroe, Justin N. Myers, Tyrell T. Manieri, III, Baton Rouge, Counsel for Appellee
    Before STONE, STEPHENS, and MCCALLUM, JJ.
   STEPHENS, J.

Tab-N-Action, Inc. d/b/a Excellence Academy appeals the judgment of the Fourth Judicial District, Parish of Ouachita, State of Louisiana, in favor of the Monroe City School Board. For the following reasons, we affirm the trial court's judgment.

FACTS

Tab-N-Action, Inc. d/b/a Excellence Academy ("Excellence Academy") is a Louisiana nonprofit corporation with its purpose to operate a type 1 charter school in the city of Monroe, Louisiana. Type 1 charter schools, like Excellence Academy, are authorized by a local school board, in this case Monroe City School Board ("MCSB" or "school board"). The MCSB and Excellence Academy entered into the charter school operating agreement effective July 1, 2013, and Excellence Academy began operation in the 2013-14 school year, serving grades six through eight.

Louisiana's charter school statutes, La. R.S. 17:3992(A)(1) and La. R.S. 17:3998(B), dictate the procedure for extending, renewing, or revoking a school's charter, and it was under that statutory mandate the MCSB approached Excellence Academy's charter extension. Due to delays in reporting by the Louisiana Department of Education, the MCSB's ability to perform its evaluation was delayed into the 2016-17 school year-Excellence Academy's fourth year of operation. The MCSB sought proposals from independent, third-party companies to perform the extension evaluation, and the consulting firm TenSquare LLC ("TenSquare") was chosen to conduct the review.

TenSquare performed an extension review and in April 2017 submitted a report to the MCSB recommending that Excellence Academy's charter not be extended for a fifth year based on unsatisfactory findings in the financial and organizational areas. Thus, at the April 11, 2017, open meeting, the MCSB voted against the extension of the school's charter in a 5-2 vote. Effectively, there would be no 2017-18 school year for Excellence Academy.

Excellence Academy filed suit in federal court, seeking declaratory and injunctive relief, which was granted in part and denied in part. The federal court ordered the MCSB to refrain from taking further action in the revocation of the charter until Excellence Academy was allowed adequate opportunity to contest the TenSquare report. The federal court ordered a hearing be held for this purpose no later than June 7, 2017. The hearing was held by the MCSB on June 6, 2017, and again the board voted on whether to extend the school's charter for a fifth year. The vote not to extend the school's charter was 4-1-1.

Excellence Academy then filed a mandamus lawsuit in the Fourth Judicial District Court, alleging that the MCSB had a duty to extend the charter but disregarded that duty when it relied on TenSquare's report. Further, Excellence Academy argued that the school board was required to give Excellence Academy notice of nonrenewal prior to January 31, 2017, which the MCSB did not do. It sought the issuance of a writ of mandamus ordering the MCSB to extend the school's charter for a fifth year. In response, the MCSB filed various exceptions, which it requested be considered prior to the merits of Excellence Academy's petition.

At the July 27, 2017, hearing on the matter, the trial court sustained the MCSB's (1) exception of improper cumulation of actions, dismissing Excellence Academy's claim for damages without prejudice; and, (2) exception of no cause of action for mandamus, dismissing the petition with prejudice. However, the trial court did allow Excellence Academy's amendment to its petition asserting a claim for specific performance by ordinary proceeding. Thus, Excellence Academy immediately amended its petition, filing a second supplemental and amended petition, making essentially the same claims as in the petition for mandamus. At the same hearing, Excellence Academy called several witnesses in support of continuing the school's charter. Court was recessed and reconvened on July 31, when additional witnesses were called on the school's behalf.

At the conclusion of Excellence Academy's case, the MCSB filed its motion for involuntary dismissal, which the trial court took under advisement. Ultimately, the trial court granted the motion finding that the MCSB acted within its discretion and fulfilled its obligation under the charter contract and Excellence Academy failed to establish its claims. A final judgment was signed by the trial court on August 14, 2017, and this appeal ensued by Excellence Academy.

DISCUSSION

On appeal, Excellence Academy brings four assignments of error, with three intertwined issues to be considered. First, Excellence Academy argues that the MCSB should have evaluated the school under La. R.S. 17:3998 applicable to charter extensions and not the more stringent La. R.S. 17:3992. Second, the trial court erred and should have recognized that the MCSB used the improper evaluation, and the improper legal standard was utilized. Finally, Excellence Academy argues the trial court abused its discretion in not extending the school's charter for a fifth year.

As noted by the Louisiana Supreme Court in Red Stick Studio Dev., L.L.C. v. State ex rel. Dep't of Econ. Dev. , 2010-0193 (La. 1/19/11), 56 So.3d 181, 187-88 (citing M.J. Farms, Ltd. v. Exxon Mobil Corp. , 2007-2371 (La. 7/1/08), 998 So.2d 16, 27 ):

The starting point in the interpretation of any statute is the language of the statute itself. 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. However, when the language of the law is susceptible of different meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law. Moreover, when the words of a law are ambiguous, their meaning must be sought by examining the context in which they occur and the text of the law as a whole.

With these guiding principles in mind, we consider the relevant statutes to this case.

Louisiana R.S. 17:3992 provides in pertinent part:

A. (1) Unless revoked as provided for in Subsection C of this Section, an approved school charter shall be valid for an initial period of four years and may be extended for a maximum initial term of five years, contingent upon the results of a review conducted after the completion of the third year as provided in R.S. 17:3998. The charter may be renewed for additional periods of not less than three nor more than ten years after thorough review by the approving chartering authority of the charter school's operations and compliance with charter requirements. The chartering authority shall notify the chartering group in writing of any decisions made relative to the renewal or nonrenewal of a school's charter not later than January thirty-first of the year in which the charter would expire. A notification that a charter will not be renewed shall include written explanation of the reasons for such nonrenewal. Pursuant to Subsection C of this Section and using such annual review process, a charter may be revoked for failure to meet agreed-upon academic results as specified in the charter. (Emphasis added).

Louisiana R.S. 17:3998 provides, in pertinent part:

B. Each charter school shall be reviewed by its chartering authority after the completion of the third year. If the charter school is achieving its stated goals and objectives pursuant to its approved charter, then the chartering authority shall extend the duration of the charter for a maximum initial term of five years as provided in R.S. 17:3992(A)(1). If the charter school is not achieving its stated goals and objectives pursuant to its approved charter, then the chartering authority shall not extend the duration of the charter, and the charter shall expire at the end of the school's fourth year.

Thus, under Louisiana's statutory scheme governing charter schools, once a charter is granted there are three procedural avenues for its potential future: revocation, extension, or renewal. These actions may be made at different points in a charter school's existence. Excellence Academy submits that the MCSB erred procedurally and did not review its charter under La. R.S. 17:3998(B), instead using the stringent standards applicable when a school has completed its initial five-year charter renewal under Section 3992. According to the school, it was meeting its "goals and objectives," its charter should have been extended for the duration of five years, and the MCSB and the trial court erred by finding otherwise. We disagree.

In thorough reasons for judgment wherein the applicable statutory procedure was considered, the trial court correctly determined, as did the federal court before it, that this matter involved an extension of Excellence Academy's charter. The trial court properly considered this extension under La. R.S. 17:3992, and the wording of the statute is clear; notably, a title I charter school has an initial term of four years. Following the initial four-year term, that charter school's term "may be extended" to a maximum term of five years, pending a review after the third year as provided in Section 3998. That is precisely what occurred in this case. Excellence Academy, upon the grant of its charter, had an initial four-year term, with a possible extension for a fifth year and beyond. State law provides, explicitly, that the fifth year of operation is conditional upon approval by the local school board to grant the extended charter. Thus, Excellence Academy's four-year term was set to complete in the 2016-2017 school year, as provided by statute. After receiving the TenSquare review evaluation, the school board properly exercised its discretion, again as provided by statute. Following a public hearing and vote of the board, the MCSB exercised its discretion "contingent upon the results of a review" in not granting the extension for the fifth year-again, as provided by statute.

Furthermore, the action by the MCSB is what the parties agreed to contractually. The MCSB's decision was in keeping with the express wording of the charter agreement, which states, in pertinent part:

1.4 Term. The Term of this Agreement shall be five years, expiring on June 30, 2018, unless terminated or extended pursuant to the terms hereof. Approval to operate during the fifth year of the initial term shall be contingent upon the results of a review conducted after the completion of the third year as provided for in state statute LSA-R.S. [17:]3998. (Emphasis added).

The parties also agreed that evaluation of Excellence Academy's performance would be "based on educational, financial and organizational performance using the indicators and standards set out in MCSB Policy[.]"

The MCSB's general policy governing charter schools mandates the following:

B. Each type 1 ... charter school's extension review shall be used to determine if the school will receive a one-year extension, as follows:
1. Contract Extension
a. Each charter school shall be reviewed based on academic, financial, and legal and contractual performance data collected by the Department of Education. If such performance data reveal that the charter school is achieving the following goals and objectives , the board shall extend the duration of the charter for a maximum initial term of five years;
i. a current financial performance evaluation that meets or approaches the standards required by the charter school performance compact; and
ii. a current organizational performance evaluation that meets or approaches the standards required by the charter school performance company;
* * * *
2. Schools that Fail to Meet Extension Standards
a. If a charter school fails to meet any of the standards set forth in Paragraph B.1 of the Section, MCSB may, at the superintendent's recommendation, take one of the following actions based on information provided:
* * * *
ii. allow the charter to expire at the end of the school's fourth year of operation.

(Emphasis added).

A contract is an agreement by two or more parties whereby obligations are created, modified, or extinguished. La. C.C. art. 1906. Interpretation of a contract is the determination of the common intent of the parties. La. C.C. art. 2045 ; BRP LLC (Delaware) v. MC Louisiana Minerals LLC , 50,549 (La. App. 2d Cir. 5/18/16), 196 So.3d 37, 47. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties' intent. La. C.C. art. 2046 ; Id.

Here, there is no misunderstanding the words of the charter agreement as well as the school board's general policy regarding charter schools. The charter agreement and the MCSB's general policy clearly envision that Excellence Academy's continued existence would be contingent on the results of a review by the MCSB, which was not contractually (or statutorily) obligated to extend the school's charter to a fifth year. TenSquare is a nationally recognized charter school support organization, and both the MCSB and the trial court, making factual findings, reasonably relied on the findings of its report. The report evaluated Excellence Academy based on academic, financial, and organizational performance data as contemplated in the school board's general policy. Further, we point out the school board's general policy on charter schools articulates the "goals and objectives" of a charter school-not to be confused with a school's mission. Based on that stated criterion, the MCSB determined that the school failed to meet its charter contract extension standard. Specifically, although the school met the MCSB standard for student academic performance, TenSquare concluded that Excellence Academy did not meet the standard for financial or organizational performance.

The school board considered the case of Excellence Academy not once but twice, both times relying on TenSquare's recommendation and exercising its discretion not to extend the charter for a fifth year. Ultimately, Excellence Academy had a third bite at the apple with the trial court, which again rejected its argument. In fact, we find no error in the trial court's determination that the MCSB operated within its discretion in not extending the school's charter for the optional fifth year. Thus, we conclude there was no abuse of discretion by the trial court, which not only correctly applied the statutory law as mandated for this title I charter school, but also properly interpreted the charter agreement terms as agreed to by Excellence Academy and the MCSB. These assignments of error are without merit.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court in favor of the Monroe City School Board and against Tab-N-Action, Inc. d/b/a Excellence Academy. All costs of this appeal are to be assessed to Excellence Academy.

AFFIRMED.

      Excellence Academy's argument regarding the notification date is inapplicable to the situation at hand. The January 31 date as stated in the statute clearly applies to "renewal or nonrenewal" and not "extension."

      Excellence Academy's stated "mission" "is to provide a rigorous and differentiated academic program strengthened by a broad musical arts curriculum, enabling students to become college and career ready critical thinkers, lifelong learners, and positive contributors to society."


author: BROWN, C.J.

text:
    Oliver BARNETT, et al., Plaintiffs-Appellants v. LOUISIANA MEDICAL MUTUAL INSURANCE COMPANY d/b/a LAMMICO, Defendant-Appellee
    No. 51,908-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered May 23, 2018
    NELSON & HAMMONS, ALC, By: John L. Hammons, Shreveport, William W. Murray, Jr., A. Cornell Flournoy, KELLY & TOWNSEND, By: William L. Townsend, III, Natchitoches, Kennan K. Kelly, Counsel for Appellants
    MILLING BENSON WOODWARD, LLP, By: Normand F. Pizza, Chadwick W. Collings, Andrew R. Capitelli, Thomas S. Schneidau, Mandeville, Counsel for Appellee
    Before BROWN, MOORE, and PITMAN, JJ.
   BROWN, C.J.

Plaintiffs, approximately 243 persons (divided into two groups of claimants) who have settled their medical malpractice claims against a qualified health care provider, his insurer, LAMMICO, and the Patients' Compensation Fund ("PCF"), have appealed from the trial court's judgment which granted LAMMICO's exception of res judicata and dismissed Plaintiffs' action for penalties and damages pursuant to La. R.S. 22:1892 and La. R.S. 22:1973 for the insurer's alleged failure to pay insurance settlement proceeds within 30 days of their written settlement agreement. For the reasons set forth below, we affirm.

FACTS AND PROCEDURAL HISTORY

A document entitled "Settlement Agreement" which expressed, inter alia , the parties' intent to terminate the original malpractice litigation by a group settlement or "any other reasonably agreed upon settlement process as contemplated herein," was perfected on December 2, 2014, with an effective date of December 3, 2014. All parties signed the Settlement Agreement on or before the effective date. The following are some of the terms of this agreement:

(1) LAMMICO and the PCF are to jointly fund a $4.5 million "Group A" settlement fund and an $8 million "Group B" settlement fund as part of the process.
(2) The allocation of the settlement funds among the claimants and others is to be made in a Group Settlement which may be by way of a class action settlement.
(3) Judge Frank Thaxton is to be appointed as the special master, arbitrator, or alternate dispute resolution fact finder.
(4) Two groups of claimants are to be established: Group A and Group B claimants.
(5) The special master is to establish and allocate the two settlement funds.
(6) The special master is to determine the value of each Group A claimant's individual claim, which is to be satisfied from the Group A settlement fund.
(7) The special master is to determine the merits of each Group B claimant's claim, including whether the claim is "cognizable in law, prescribed, or otherwise does not entitle the Group B claimant to recovery" and value, if any, of each Group B claimant's claim.
(8) The settlement funds are to be held, deposited or maintained in an escrow account maintained by the special master.
(9) Before the settlement funds can be withdrawn, several requirements must be met, including approval by a court of the Group Settlement and its terms (or an alternative if chosen), presentation of a fully executed Motion and Order of Dismissal, and the execution by all parties of a "reasonable receipt and release of all claims."
(10) "Defendants collectively or singly, shall, at their option, have the right to terminate this Agreement" if any claimant opts out of the Group Settlement or agreed upon alternative dispute resolution process.
(11) "The Parties further acknowledge that this Agreement contemplates additional pleadings, documents and filings and agree to fully cooperate, in good faith, in the drafting and execution of same." These additional "pleadings, documents, and filings" included a Receipt and Release to be executed by each claimant.

The parties' attorneys did not reach a final agreement on the form of the Receipt and Release document until February 3, 2015, approximately 60 days after the Settlement Agreement was executed. In the Receipt and Release, each claimant agreed that:

APPEARER(S) further declares/declare and represents/represent that no promise or agreement not herein expressed has been made to him/her/them, and that this Receipt and Release and the Settlement Agreement dated December 3, 2014 , incorporated herein by reference, including with regard to confidentiality, contain the entire agreement between the parties hereto, and that the terms of this Receipt and Release are contractual and not a mere recital. (Emphasis added).

In the Receipt and Releases, Plaintiffs also acknowledged that "the settlement and release made and effected herein is a compromise settlement of the RELEASED PARTIES with APPEARER(S)," and "[t]he terms and conditions of the Settlement Agreement dated December 3, 2014, are specifically referenced and incorporated by reference herein." Furthermore, by signing the Receipt and Releases, each claimant was acknowledging that he or she may be entitled to no payment, but that he or she was given "the opportunity to participate in the resolution process and make claims upon those settlement funds established and funded pursuant to that certain Settlement Agreement ... the receipt, sufficiency and value to APPEARER(S) of which is herein acknowledged."

The parties also signed a Joint Motion and Judgment of Dismissal to implement the terms of the parties' compromise agreement. LAMMICO made a conditional tender of the settlement funds to the mediator/facilitator on January 14, 2015, and the funds were released on February 4, 2015. Plaintiffs filed the instant action seeking penalties and damages, urging that LAMMICO failed to timely fund the settlement when it did not unconditionally tender the agreed upon sums by January 3, 2015. LAMMICO filed a motion for summary judgment and several exceptions, including a peremptory exception of res judicata , asserting that its duty to tender the funds was not triggered until the parties completed their global settlement process. Additionally, by confessing the receipt and adequacy of the settlement funds when they executed the Receipt and Release portion of the compromise, Plaintiffs waived any potential claims related to the alleged late funding of the settlement.

Taking up the exception of res judicata first, the trial court heard argument from counsel and considered evidence at a hearing on March 27, 2017. Finding that the doctrine of res judicata applied to Plaintiffs' claims for penalties and damages, the trial court granted Defendant's exception and dismissed Plaintiffs' claims with prejudice in a judgment filed on April 4, 2017. It is from this adverse judgment that Plaintiffs have appealed.

DISCUSSION

Res Judicata

According to Plaintiffs, the trial court erred in finding that the doctrine of res judicata precluded their suit for penalties and damages for LAMMICO's late payment of the global settlement amounts set forth in the parties' December 3, 2014, Settlement Agreement. LAMMICO urges this Court to affirm the ruling of the trial court.

The standard of review of a ruling on an exception of res judicata is manifest error when the exception is raised before the case is submitted and evidence is received from both sides. Toliver v. Entergy Services, Inc. , 49,954 (La. App. 2d Cir. 6/24/15), 169 So.3d 774, writ denied , 15-1633 (La. 10/30/15), 180 So.3d 299 ; Floyd v. City of Bossier City , 38,187 (La. App. 2d Cir. 3/5/04), 867 So.2d 993.

Louisiana's doctrine of res judicata is set forth in La. R.S. 13:4231, which provides:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

Under La. R.S. 13:4231, a second action is precluded when all of the following are satisfied: (1) the judgment is valid; (2) the judgment is final; (3) the parties are the same; (4) the cause or causes of action asserted in the second suit existed at the time of final judgment in the first litigation; and (5) the cause or causes of action asserted in the second suit arose out of the transaction or occurrence that was the subject matter of the first litigation. Chauvin v. Exxon Mobil Corp. , 14-0808 (La. 12/9/14), 158 So.3d 761 ; Chevron U.S.A., Inc. v. State, 07-2469 (La. 9/8/08), 993 So.2d 187 ; Burguieres v. Pollingue , 02-1385 (La. 2/25/03), 843 So.2d 1049. The chief inquiry is whether the second action asserts a cause of action that arises out of the transaction or occurrence that was the subject matter of the first action. Chauvin, supra ; Avenue Plaza, L.L.C. v. Falgoust , 96-0173 (La. 7/2/96), 676 So.2d 1077.

While the doctrine of res judicata is ordinarily premised on a final judgment on the merits, it also applies where the opposing parties have entered into a compromise or settlement of a disputed matter. Chauvin, supra ; Ortego v. State, Dept. of Transportation & Development , 96-1322 (La. 2/25/97), 689 So.2d 1358. See also La. C.C. art. 3080, which provides that a compromise precludes the parties from bringing a subsequent action based upon the matter that was compromised.

Public policy favors compromise agreements and the finality of settlements. Brown v. Drillers, Inc., 93-1019 (La. 01/14/94), 630 So.2d 741. La. C.C. art. 3071 provides that a compromise is a contract whereby the parties, through concessions made by one or more of them, settle a dispute or uncertainty concerning an obligation or other legal relationship. As observed by the Louisiana Supreme Court in Trahan v. Coca Cola Bottling Co. United Inc. , 04-0100 (La. 3/2/05), 894 So.2d 1096, 1104, article 3071 requires the presence of two elements for a valid compromise: "(1) mutual intention of preventing or putting an end to the litigation, and (2) reciprocal concessions of the parties to adjust their differences." See also Hines v. Smith , 44,285 (La. App. 2d Cir. 8/12/09), 16 So.3d 1234, writ denied , 09-2001 (La. 12/11/09), 23 So.3d 922.

A compromise settles only those differences that the parties clearly intended to settle, including the necessary consequences of what they express. La. C.C. art. 3076. The compromise instrument is governed by the same general rules of construction applicable to contracts. Chauvin, supra ; Brown, supra. Interpretation of a contract is the determination of the common intent of the parties. La. C.C. art. 2045. Therefore, when the words of a settlement or compromise are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties' intent. La. C.C. art. 2046 ; Chauvin, supra ; Ortego, supra .

In the instant action, both parties agree that the first three elements required for res judicata to apply to Plaintiffs' action as set forth in Burguieres, supra , are present: (1) and (2) a valid and final judgment (settlement or compromise in this case); and (3) the same parties. They dispute, however, whether (4) the cause of action asserted in the instant suit existed at the time of the settlement or compromise; and (5) the cause of action asserted in instant suit arose out of the transaction or occurrence that was the subject matter of the settlement or compromise.

The parties' Settlement Agreement clearly provides that additional documents were to be executed to affect the parties' compromise agreement, among them a Receipt and Release, in which each claimant agreed and acknowledged that the Receipt and Release and the Settlement Agreement contained the entire agreement between the parties, and together constituted a compromise settlement between them. By signing the Receipt and Release, each claimant also acknowledged that he or she may be entitled to no payment, but was given "the opportunity to participate in the resolution process and make claims upon those settlement funds established and funded pursuant to that certain Settlement Agreement ... the receipt, sufficiency, and value to APPEARER(S) of which is herein acknowledged." Regarding the specific release language, each claimant released the listed defendants, including LAMMICO from:

[A]ny and all actions, causes of actions, rights of actions, claims, liability, demands, losses, damages, pain and suffering, mental anguish, loss of enjoyment of life, exemplary damages, ... ancillary expenses, attorney's fees, and compensation of any kind, including but not limited to all claims in tort, negligence, intentional acts, administrative negligence, contract, warranty, equity, whether based on federal or state law and/or jurisprudence, ... or any other applicable law, claim, or cause of action which APPEARER(S) had or has/have against the RELEASED PARTIES as of December 3, 2014, and all claims for losses, damages, costs, and expenses ... that are related to, necessitated by, or arise from the circumstances or facts forming the basis of the claims released herein and, included but not limited to those complaints and/or claims raised or which could have been raised or plead in his/her/their suit filed in the 1st Judicial District Court for Caddo Parish, Civil Action No. N/A/ and/or Patient's Compensation Fund Claim, Claim No. 2011-00915. (Emphasis added).

A compromise instrument is the law between the parties and must be interpreted according to their true intent. Bloom's Inc. v. Performance Fuels, L.L.C. , 44,259 (La. App. 2d Cir. 7/1/09), 16 So.3d 476, writ denied , 09-2003 (La. 11/20/09), 25 So.3d 800 ; Kennedy v. Kennedy, 36,974 (La. App. 2d Cir. 3/5/03), 840 So.2d 679. In the Receipt and Release executed as part of the compromise agreement by each claimant, not only did he or she confess the receipt and adequacy of LAMMICO's settlement funds, conditionally tendered to the mediator/facilitator on January 14, 2015, and deposited by him on February 4, 2015, as soon as the form of the Receipt and Release was agreed upon by the parties' attorneys, each claimant released LAMMICO from any claims he or she could have brought. Had Plaintiffs' counsel desired to reserve any potential claims for penalties and damages arising out of the alleged late establishment of the two Group settlement funds, specific language to that effect should have been included in the Receipt and Release. As it was not, we find no error in the trial court's conclusion that the language used by the parties in the release was broad enough to cover all claims, including the instant action, and that the doctrine of res judicata mandates dismissal of Plaintiffs' lawsuit.

Sealing of the Record

The parties in this case apparently were able to convince the trial court to seal the entirety of this record. Neither party, however, made any motions in this court to seal either the appellate record or the briefs, nor has there been a request that this Court's opinion be unpublished. The Louisiana Constitution has an "open courts" provision; specifically, "[a]ll courts shall be open ..." La. Const. art. I, § 22. Furthermore, in Louisiana, the public has a constitutional right of access to court records. Copeland v. Copeland , 07-0177 (La. 10/16/07), 966 So.2d 1040, 1044, citing Title Research Corp. v. Rausch , 450 So.2d 933, 941 (La. 1984). As a general rule, pleadings filed in this Court are public records and are not subject to being sealed. Copeland, supra, citing In re John Doe, 96-2222 (La. 9/13/96), 679 So.2d 900, 901. As observed by the First Circuit in Dipaola v. Municipal Police Employees' Retirement System , 14-0037 (La. App. 1st Cir. 9/25/14), 155 So.3d 49, 51 fn.1, Louisiana has no specific statutory authority for a court to seal its record of a civil case from public inspection. See also, In re Kemp , 45,028 (La. App. 2d Cir. 3/3/10), 32 So.3d 1050, 1054, writ denied , 10-0755 (La. 6/25/10), 38 So.3d 338. Having no valid reason to extend the trial court's order sealing this record, we decline to do so.

CONCLUSION

For the reasons set forth above, the trial court's judgment granting the peremptory exception of res judicata filed by Defendant LAMMICO and dismissing with prejudice the action filed by Plaintiffs is AFFIRMED. Costs are assessed to Plaintiffs.

AFFIRMED.


author: PITMAN, J.

text:
    RSI BUILDING PRODUCTS, LLC, Plaintiff-Appellee v. ADVANTAGE ROOFING & CONSTRUCTION OF LOUISIANA, INC. and James E. Strawbridge, Individually and as Guarantor, Defendants-Appellants
    No. 51,987-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered May 23, 2018
    CARLETON HEBERT & WITTENBRINK, LLC, By: Stephen C. Carleton, Victor R. Loraso, III, Carmen T. Hebert, Counsel for Appellants
    BARHAM & WARNER, L.L.C., By: Vicki C. Warner, Counsel for Appellee
    Before PITMAN, STONE, and COX, JJ.
   PITMAN, J.

Defendants-Appellants Advantage Roofing & Construction of Louisiana, Inc. ("Advantage II"), and James E. Strawbridge appeal the trial court's judgment in favor of Plaintiff-Appellee RSI Building Products, LLC ("RSI"). For the following reasons, we affirm.

FACTS

On February 5, 2013, RSI filed a petition against Advantage II and Strawbridge, individually and as guarantor, alleging that they signed a "Customer Credit Application and Personal Guarantee" (the "Application") with RSI, but refused to pay the balance of $36,353.41. RSI requested 18% interest, court costs and attorney fees.

On March 14, 2013, Advantage II and Strawbridge filed a peremptory exception of no cause of action. They stated that RSI entered into the Application with Advantage Roofing and Construction, Inc. ("Advantage I"), which is a different company from Advantage II. At the time RSI and Advantage I signed the Application, Advantage II did not exist. They argued that the petition did not state a cause of action against Strawbridge because he signed the Application on behalf of Advantage I, as a personal guarantor, not on behalf of Advantage II.

On May 20, 2013, RSI amended its petition to add Advantage I as a defendant.

On July 3, 2013, Advantage II and Strawbridge filed a peremptory exception of no cause of action. They argued that RSI cannot utilize the Application that was executed on behalf of a distinct corporate entity, i.e., Advantage I, to back door personal and corporate liability for a different company, i.e., Advantage II.

On August 26, 2013, RSI filed an opposition to the peremptory exception of no cause of action.

On January 2, 2014, Advantage II and Strawbridge filed an answer and reconventional demand. They denied the allegations made in RSI's petition and asserted affirmative defenses. In the reconventional demand, they stated that RSI provided materials to Advantage II and that the materials were damaged in transit. They requested that damages from RSI be awarded as a complete offset to any amounts awarded to RSI on its original demand and as an additional monetary recovery against RSI in an amount to be determined at trial.

On January 21, 2014, RSI filed an answer and denied the allegations made in the reconventional demand.

On February 19, 2014, the trial court overruled the exceptions of no cause of action.

A two-day bench trial was held on February 8 and 9, 2017. Debbie Sayres testified that she and her husband own RSI and that her title is Secretary/Treasurer. She stated that the company began as "Roofing Supply, Inc. of Shreveport," but was later changed to an LLC; and then, in 2006, the name was changed to "RSI Building Products, LLC." She noted that RSI distributes building materials and that Advantage I and Advantage II were its customers. She identified the Application, which was dated August 1, 2002, and that the applicant and the personal guarantor was Strawbridge. In 2011, Advantage II and/or Strawbridge approached RSI about bidding for a residential construction project in Opelousas, Louisiana (the "Opelousas residence"), and they agreed that Advantage II would buy roofing materials from RSI. RSI placed an order for the materials, and some of the roof tiles were delivered damaged. RSI filed a claim against the delivery company for the damaged materials. The delivery company paid its $5,000 deductible, and its insurance company paid the difference between the claim and the deductible. After these payments and a $31,750 payment by Advantage II, the balance owed by Advantage II on this account was $36,353.41. In November 2012, RSI sent a demand letter to Advantage II. It did not receive any payments from Advantage II, and then it filed a petition seeking $36,353.41, plus 18% interest, attorney fees and court costs.

On cross-examination, Mrs. Sayres testified that the Application was not between RSI and Advantage II, but was between Roofing Supply, Inc. of Shreveport and Strawbridge. After Roofing Supply, Inc. of Shreveport changed its name to RSI in 2006, RSI did not send a request to Advantage I to fill out another application with it. Mrs. Sayres stated that RSI did not request Strawbridge to personally guarantee any debts for Advantage II and noted that she was not aware Advantage I had changed its name.

Mrs. Sayres further testified that RSI also made an insurance claim in the amount of $26,770.56 for Advantage II's expenses to sort through the broken roof tiles, rent equipment and hire labor. RSI did not credit Advantage II's balance for $26,770.56 because the insurance company denied the claim. She stated that the damage was not RSI's responsibility because it did not drive the truck or make the delivery.

Gerald Atlee Sayres, III, testified that his father formed Roofing Supply, Inc. in September 1985. The company's name was later changed to "Roofing Supply, LLC"; and, in 2006, the name was changed to its current name, "RSI Building Products, LLC." Throughout these name changes, the employer tax identification number remained the same. He clarified that the company name was never "Roofing Supply, Inc. of Shreveport." He stated that "of Shreveport" was used to distinguish it from Roofing Supply, Inc. of Alexandria, which is a separate legal entity.

Mr. Sayres further testified that 135 squares of clay tiles were ordered for the Opelousas residence. He stated that in January 2012, the tiles were delivered by an 18-wheeler with a flatbed. He was not present for the delivery, but later learned that the delivery truck drove into a ditch when attempting to drive down the driveway of the Opelousas residence. He noted that Advantage II's employee signed for and accepted the delivery of the roof tiles, noting that there was "some damage." He contended that Advantage II's employee could have refused delivery. In August 2012, Advantage II submitted to RSI a supplemental claim for damage, RSI submitted this claim to the insurance company and the insurance company denied the claim. He stated that RSI was requesting an award of the balance due on the account and noted that Advantage II needed only 3 additional squares, but was credited for 17 squares, which more than offsets Advantage II's claim.

Matthew A. Campbell testified that he was employed as a salesman for RSI and bid the Opelousas residence project with Advantage II. He communicated with Strawbridge about the damaged tiles. They discussed whether Advantage II should accept or refuse delivery, and Strawbridge decided to accept delivery and see what could be salvaged.

RSI rested its case, and Advantage II and Strawbridge presented their reconventional demand. Strawbridge testified that he is the secretary/treasurer and director of Advantage II, which has been in existence since October 22, 2003. He stated that the architect of the Opelousas residence hired Advantage II to install the tile roof. The project was running behind, so when one of the two delivery trucks drove into a ditch, he decided not to refuse delivery because that would delay the project another six weeks. He stated that 30 squares of tiles were damaged and that "damaged" meant that they were chipped, cracked or broken in two. Sixteen squares of the 30 damaged squares were salvaged and used to install the roof. On April 24, 2012, he sent RSI a list of what Advantage II needed to replace the damaged material, and three squares were ordered to replace the damaged tiles. He detailed the damages suffered by Advantage II, including hiring additional labor to sort through the tile. He stated that Advantage II finished installing the roof in June 2012, and the architect of the Opelousas residence paid Advantage II in full.

On April 19, 2017, the trial court filed its reasons for judgment. It first addressed RSI's principal demand and determined that the amount claimed by RSI was supported by the documentation presented at trial. It then considered whether Advantage II and/or Strawbridge are liable for service charges of 18% per annum, court costs, filing fees and attorney fees as provided for in the Application. It posed and answered the following questions: (1) Can RSI claim the benefits of the Application on a form for the benefit of Roofing Supply Inc., of Shreveport; (2) Is Advantage II bound by the Application; and (3) Is Strawbridge obligated for 18% service charges, court costs and attorney fees. It noted testimony that the ownership of RSI and its predecessors has remained the same, as has the employer identification number, throughout all of its name changes. It found that Strawbridge signed the Application individually and not as president of Advantage I; and, therefore, there is no written agreement by Advantage II to pay 18% service charges, court costs, filing fees and attorney fees. It also noted that Strawbridge signed the Application and guaranteed payment by Advantage I; that under the terms of the Application, he also agreed to notify RSI of any changes in the information regarding Advantage I; that he continued to do business with RSI after the creation of Advantage II and never notified RSI of the creation of the new company; and that Advantage II continued to use the credit established for Advantage I through the Application. Therefore, it found that under the terms of the Application, Strawbridge should be bound for the open account of Advantage II with the service charges, court costs, filing fees and attorney fees. It also determined that he is obligated under the doctrine of detrimental reliance. It further found that although Advantage II is not obligated for service charges and attorney fees, Strawbridge is liable for them. Accordingly, it determined that Advantage II and Strawbridge are liable, in solido, to RSI for the amount claimed, i.e., $36,353.41, together with all court costs and legal interest from the date of judicial demand until paid in full. It also found that Strawbridge is liable to RSI for interest at 18% per annum service charges from the last day of the month following the month of purchase of material until paid in full together with reasonable attorney fees. It noted that should Strawbridge pay the full amount of interest at 18%, he would not be obligated for the legal interest, and he would also receive credit toward the 18% interest if Advantage II should pay any legal interest.

Regarding the reconventional demand, the trial court found that Advantage II did not provide sufficient evidence to support its claims of damages and rejected all of the claims at its cost.

On June 30, 2017, the trial court filed a judgment in favor of RSI and against Advantage II and Strawbridge, in solido, in the amount of $36,353.41, together with judicial interest, and against Strawbridge for the attorney fees of RSI in the amount of $11,997.62 together with interest of 18% per annum. It also rejected the reconventional demand of Advantage II and Strawbridge.

Advantage II and Strawbridge appeal the trial court's judgment regarding Strawbridge's personal liability as to the principal demand. They do not appeal the trial court's denial of their reconventional demand.

DISCUSSION

Suretyship

In their first and second assignments of error, Advantage II and Strawbridge argue that the trial court erred in finding Strawbridge to be the surety for a different entity in an amount greater than the principal obligation. They state that Strawbridge signed as a surety for principal obligor Advantage I, but that judgment was entered against a different entity, i.e., Advantage II. They contend that the trial court correctly determined that Advantage II is not liable for the 18% interest, filing fees, court costs and attorney fees, but incorrectly held Strawbridge liable for these items. They state that Strawbridge's purported suretyship cannot exist as an accessory contract where Advantage II is not obligated as the principal obligor and where there is no contractual agreement between RSI and Advantage II.

RSI argues that the trial court did not err in its application of the rules of suretyship and correctly determined that Strawbridge's personal guaranty, including the contractual interest and attorney fees, applied to the balance due to RSI. It states that it did not know that Advantage I was replaced by Advantage II during the years they did business together. It contends that Advantage II tacitly ratified the Application by purchasing supplies and materials on credit and by making payments to RSI on the open account with its own funds. It also states that the trial court correctly found that Advantage II was liable for the balance due on the open account, which was created by Advantage I through Strawbridge and, therefore, correctly found Advantage II and Strawbridge to be solidarily liable for the amount due because Advantage II accepted the benefit of the original credit with RSI, including Strawbridge's personal guaranty. It asserts that there is no evidence that the suretyship was ever extinguished.

A contract of guaranty is equivalent to a contract of suretyship, and the two terms may be used interchangeably. Fleet Fuel, Inc. v. Mynex, Inc. , 40,683 (La. App. 2 Cir. 3/8/06), 924 So.2d 480, writ denied , 06-0762 (La. 6/23/06), 930 So.2d 977. Suretyship is an accessory contract by which a person binds himself to a creditor to fulfill the obligation of another upon the failure of the latter to do so. La. C.C. art. 3035. Suretyship must be express and in writing. La. C.C. art. 3038. The extinction of the principal obligation extinguishes the suretyship. La. C.C. art. 3059.

Advantage II does not appeal the trial court's judgment that it is liable, in solido, with Strawbridge to RSI for $36,353.41 plus court costs and legal interest. After it changed its name in 2003, it continued to purchase materials and to make payments on the open account with RSI. It did not notify RSI of its name change as was required by the Application, and the contact information and mailing address did not change when the company's name changed. Accordingly, it is liable to RSI in the same way Advantage I would have been liable to RSI, and the trial court correctly found Advantage II to be liable to RSI for the balance owed on the open account.

The trial court did not err in finding Strawbridge to be liable to RSI, in solido, with Advantage II, for $36,353.41 plus court costs and legal interest or in finding Strawbridge to be individually liable for 18% interest and attorney fees. The Application signed by Strawbridge on August 1, 2002, set forth the following provisions:

I/we, the undersigned, hereby declare that the statements made in the foregoing application are true and correct and give my permission to use the information provided in any inquiry or investigation conducted by Roofing Supply Inc. (RSI) or its agent or contractor. I authorize and request RSI to obtain such further information as it may require concerning the statements made in this application.
I/we also willingly agree: 1) that this application is and will remain the property of RSI regardless of whether credit is issued; 2) to notify RSI of any changes in the above information; 3) to personally assume and guarantee all of the liabilities incurred by the above named company; and 4) to pay the amount owed by the last day of the month following the month of purchase plus interest at the rate of 18% per annum; simple rate compounding daily until paid and 5) if a lien or suit is necessary to pay all court costs, filing fees and reasonable attorney fees.
I/we, the undersigned, hereby authorize RSI to obtain any information required to determine my/our credit worthiness.

The Application is a surety agreement and is an accessory contract to the principal obligation between Advantage I/Advantage II and RSI. The principal obligation between Advantage I/Advantage II and RSI was not extinguished; Advantage II is liable to RSI; and, therefore, the surety agreement was not extinguished. By signing the Application, Strawbridge specifically agreed to personally assume all of the liabilities of Advantage I/Advantage II; to pay the amount owed plus interest at the rate of 18% per annum; and, if a suit is necessary, to pay all court costs, filing fees and reasonable attorney fees. The word "Individually" appears under Strawbridge's signature, which demonstrates his individual liability. Accordingly, Strawbridge bound himself to RSI to fulfill the obligation of Advantage I/Advantage II, i.e., to pay $36,353.41 plus court costs and legal interest. He also bound himself individually to RSI to pay interest at the rate of 18% per annum and to pay reasonable attorney fees.

Accordingly, these assignments of error lack merit. We need not, therefore, examine the alternative basis of liability, i.e., detrimental reliance, that Advantage II and Strawbridge contest in their appeal.

Additional Attorney Fees

RSI requests that this court modify the trial court's judgment to include statutory attorney fees pursuant to La. R.S. 9:2781 ; or, alternatively, to remand to the trial court for further proceedings on the statutory attorney fees. RSI also requests that this court increase the attorney fees award by $2,500 for the effort required to defend this appeal.

La. C.C.P. art. 2133(A) provides in pertinent part:

An appellee shall not be obliged to answer the appeal unless he desires to have the judgment modified, revised, or reversed in part or unless he demands damages against the appellant. In such cases, he must file an answer to the appeal, stating the relief demanded, not later than fifteen days after the return day or the lodging of the record whichever is later.

An appellee who neither answers an appeal nor appeals from the trial court's judgment is not entitled to additional attorney fees for legal services rendered on appeal. Brimingham v. Horseshoe Entm't P'ship , 34,560 (La. App. 2 Cir. 4/4/01), 785 So.2d 97, citing Williams v. Louisiana Indem. Co. , 26,887 (La. App. 2 Cir. 6/21/95), 658 So.2d 739.

Although RSI requests additional attorney fees in its brief, it did not appeal the trial court's judgment or file an answer to Advantage II and Strawbridge's appeal. Accordingly, this court will not consider RSI's request for statutory attorney fees or its request for attorney fees for the efforts to defend this appeal.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court in favor of Plaintiff-Appellee RSI Building Products, LLC, and against Defendants-Appellants Advantage Roofing & Construction of Louisiana, Inc. and James E. Strawbridge. Costs of appeal are assessed to Defendants-Appellants Advantage Roofing & Construction of Louisiana, Inc. and James E. Strawbridge.

AFFIRMED.


author: STONE, J.

text:
    SUCCESSION OF Strouder Calvin PELFREY
    No. 51,999-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered May 23, 2018
    BARRY W. DOWD, Counsel for Appellant
    DEANNA D. MCCALLUM, Counsel for Appellee
    Before MOORE, GARRETT, and STONE, JJ.
   STONE, J.

The trial court denied Steven D. Pelfrey's petition to have the last will and testament of Strouder C. Pelfrey declared invalid for failure to meet the requirements of La. C.C. art. 1577. Steven D. Pelfrey now appeals. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Strouder C. Pelfrey ("the decedent") died testate on August 25, 2015. On February 29, 2016, the decedent's son, Steven D. Pelfrey ("Steven"), filed a petition and rule to show cause requesting the trial court appoint him as administrator and declare the last will and testament of the decedent, dated January 14, 2014, invalid. Steven argued the will did not contain a sufficient attestation clause, and thus, did not meet the requirements of La. C.C. art. 1577 (" Article 1577"). On May 9, 2016, Theresa D. Pelfrey ("Theresa") filed a petition to probate the will and be appointed executrix as designated by the decedent in his will. On July 15, 2016, the trial court appointed Theresa executrix of the decedent's estate pending the result of Steven's petition.

A hearing on Steven's petition was held on November 17, 2016. On January 24, 2017, the trial court issued written reasons for judgment and found the decedent's will valid because it met the requirements of Article 1577. On July 19, 2017, the trial court rendered a final judgment denying Steven's petition. Steven now appeals.

DISCUSSION

The formalities prescribed for the execution of a testament must be observed or the testament is absolutely null. La. C.C. art. 1573. 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. Succession of Roussel , 373 So.2d 155, 158 (La. 1979).

Article 1577 provides:

The notarial testament shall be prepared in writing and dated and shall be executed in the following manner. If the testator knows how to sign his name and to read and is physically able to do both, then:
(1) In the presence of a notary and two competent witnesses, the testator shall declare or signify to them that the instrument is his testament and shall sign his name at the end of the testament and on each other separate page.
(2) In the presence of the testator and each other, the notary and the witnesses shall sign the following declaration, or one substantially similar: "In our presence the testator has declared or signified that this instrument is his testament and has signed it at the end and on each other separate page, and in the presence of the testator and each other we have hereunto subscribed our names this ____ day of _________, ____."

In order for a notarial testament to be valid as to form, (1) the testator must declare in the presence of a notary and two witnesses that the instrument is his testament, (2) the testator must sign his name at the end of the testament and on each separate page, and (3) the notary and two witnesses must sign a declaration in the presence of each other and the testator attesting that the formalities of Article 1577 have been followed. Succession of Dawson, 51,005 (La. App. 2 Cir. 11/16/16), 210 So.3d 421, 424-25.

For a valid notarial will, there must be an attestation clause or clause of declaration. However, its form is not sacrosanct. Successions of Toney , 2016-1534 (La. 05/03/17), 226 So.3d 397, 409 ; Succession of Morgan , 257 La. 380, 242 So.2d 551, 552 (1970) ; Succession of Dawson , supra at 425. The attestation clause may use the form suggested in the statute or use language substantially similar thereto. The attestation clause is designed to demonstrate that the facts and circumstances of the execution of the instrument conform to the statutory requirements. Successions of Toney, supra at 409-10 ; Succession of Morgan, supra; Succession of Dawson, supra . Courts liberally construe and apply the provisions of Article 1577, maintaining the validity of the will if at all possible, as long as the will is in substantial compliance with the statute. In re Succession of Holbrook, 2013-1181 (La. 01/28/14), 144 So.3d 845, 851 ; Succession of Dawson, supra .

Steven argues the trial court erred in finding the decedent's will substantially complies with the requirements of Article 1577. The last page of the decedent's will contained two attestation clauses, one for the decedent and one for the notary and two witnesses:

IN TESTIMONY WHEREOF , I have signed this, my Last Will and Testament, consisting of two (2) typewritten legal pages, in the presence of the undersigned Notary Public and two competent witnesses hereinafter signed at Farmerville, Union Parish, Louisiana, on this the 14th day of January, 2014.
/S/ STROUDER CALVIN PELFREY, TESTATOR
The Testator has signed this Will at the end and on each other separate page and has declared or signified in our presence that it is his Last Will and Testament, and in the presence of Testator and each other, we have hereunto subscribed our names on this the 14th day of January, 2014.
WITNESSES:
/S/ Melissa Bryan
/S/ Dee Massey
/S/ STROUDER CALVIN PELFREY, TESTATOR
/S/ Deanna D. McCallum, Notary Public

According to Steven, the attestation clause signed by the notary and witnesses does not state the will was signed by the decedent in the notary's and witnesses' presence, and thus, does not substantially comply with the requirements of Article 1577.

Under Louisiana law, there is a presumption in favor of the validity of testaments and evidence of the nonobservance of formalities must be exceptionally compelling to rebut that presumption. In re Succession of Holbrook, supra at 853, ; Succession of Dawson, supra at 423. In construing the attestation clause of a statutory will, the court does not require strict, technical, and pedantic compliance in the form or in the language of the will, but examines the clause to see whether there is substantial adherence to form and whether it shows facts and circumstances which show compliance with the formal requirements for testamentary validity. Succession of Morgan, supra at 553 ; In re Succession of Hebert , 2012-281 (La. App. 3 Cir. 10/03/12), 101 So.3d 131, 140.

Although the attestation clause signed by the notary and two witnesses deviates from the language provided in Article 1577, we do not find the deviation to be significant or material as to render the instrument absolutely null. The decedent certified in the first attestation clause that he signed his name at the end and on each separate page and declared the instrument to be his testament in the presence of the notary and two witnesses. In the second attestation clause, the notary and witnesses certified that in their presence the decedent signed his name at the end and on each separate page and declared the instrument to be his testament. Thus, the decedent's will substantially complied with the requirements of Article 1577 and the trial court did not err in denying Steven's petition.

CONCLUSION

For the foregoing reasons, the trial court judgment denying Steven's petition to have the decedent's last will and testament declared invalid is affirmed. Costs of this appeal are assessed to Steven.

AFFIRMED.


text:
    STATE of Louisiana, Appellee v. Artari P. WOODS, Appellant
    No. 52,023-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered May 23, 2018
    LOUISIANA APPELLATE PROJECT, By: Peggy J. Sullivan, Monroe, Counsel for Appellant
    ARTARI P. WOODS, Pro Se
    GARY V. EVANS, District Attorney, HUGO A. HOLLAND, JR., KENNETH PATRICK HAINES, Assistant District Attorneys, Counsel for Appellee
    Before STONE, STEPHENS, and MCCALLUM, JJ.
   STONE, J.

Pursuant to a plea agreement, Artari P. Woods pled guilty to one count of distribution of marijuana, in violation of La. R.S. 40:966(A)(1). As per the agreement, the trial court sentenced Woods to 15 years at hard labor, 7 years of which were suspended and 5 years of probation. Woods now appeals his conviction and sentence. Woods' appellate counsel has filed a motion to withdraw, together with a brief pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed. 2d 493 (1967), asserting there are no nonfrivolous issues upon which to base an appeal. For the following reasons, appellate counsel's motion to withdraw is granted, and Woods' conviction and sentence are affirmed.

FACTS

On May 24, 2016, Artari P. Woods sold marijuana and methamphetamine to a confidential informant in Desoto Parish. On January 27, 2017, Woods was charged by bill of information with three counts of distribution of marijuana, in violation of La. R.S. 40:966(A)(1), and two counts of distribution of methamphetamine, in violation of La. R.S. 40:967(A)(1). On April 12, 2017, Woods pled guilty to one count of distribution of Schedule I, controlled dangerous substance. The state agreed to a sentence of 15 years at hard labor, with 7 years suspended and 5 years of probation. In exchange for the guilty plea, the state dismissed the remaining charges and agreed to forgo habitual offender proceedings against Woods.

Prior to accepting the guilty plea, Woods was informed of and waived his rights in accordance with Boykin v. Alabama , 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed. 2d 274 (1969). Woods stated the plea was made without threats, promises, or inducement of any kind, and confirmed the factual basis for the plea given by the state as noted above. Thereafter, the trial court accepted Woods' plea as being knowingly, intelligently, and voluntarily made. Woods waived sentencing delays and the trial court imposed the agreed upon sentence of 15 years at hard labor, with 7 years suspended and 5 years of probation. The trial court ordered Woods to complete substance abuse treatment and allowed Woods credit for time served. The trial court did not specifically inform Woods that he was waiving his right to appeal the conviction and sentence imposed in conformity with a plea agreement and Woods did not reserve his right to review his sentence or the plea agreement.

Woods filed a "Notice of Intent to seek direct appeal and request that this court set defendant's filing deadline with the 2nd Circuit Court of Appeal," which the trial court granted on August 23, 2017. The Louisiana Appellate Project was appointed to represent Woods for his out-of-time appeal.

On November 28, 2017, Woods' appointed appellate counsel filed a motion to withdraw, together with an Anders brief, alleging he could find no nonfrivolous issues to raise on appeal. See, Anders, supra ; State v. Jyles , 1996-2669 (La. 12/12/97), 704 So.2d 241 ; State v. Mouton , 1995-0981 (La. 04/28/95), 653 So.2d 1176 ; and State v. Benjamin , 573 So.2d 528 (La. App. 4 Cir. 1990). The brief reviewed the procedural history of the case as well as the terms of the plea agreement and stated that after a thorough review of all the pleadings filed in the trial court, the court proceedings, and all transcripts contained in the record, no nonfrivolous issues could be advanced for appellate review. Furthermore, appellate counsel verified that copies of the motion to withdraw and Anders brief were properly mailed to Woods, in accordance with Anders , Jyles , Mouton , and Benjamin . Woods was notified of his right to file a pro se brief on his own behalf. However, he failed to submit a brief.

DISCUSSION

Under both state and federal jurisprudence, an unqualified plea of guilty waives all nonjurisdictional defects occurring prior thereto and constitutes an intelligent waiver of appellate review of the merits of the prosecution's case against a defendant. State v. Spain , 329 So.2d 178 (La. 1976) ; State v. Crosby, 338 So.2d 584 (La. 1976) ; State v. Hardy , 39,233 (La. App. 2 Cir. 1/26/05), 892 So.2d 710. In reviewing appeals from pleas of guilty, our review is limited to jurisdictional defects which appear on the face of the pleadings and proceedings. State v. Spain , supra.

After a thorough review of the record, we agree with appellate counsel that there are no nonfrivolous issues to be raised on appeal. Woods was properly charged by a bill of information which was signed by an assistant district attorney. He was present in court and represented by counsel at all pertinent stages of the proceedings. The trial court advised Woods of the nature of the charges against him, the consequences of guilty pleas, and the sentencing ranges he would have been exposed to had he not entered into the plea agreement, including the terms of probation that would be imposed. The record shows that prior to entering his guilty plea, Woods was properly advised of his Boykin rights, understood the plea agreement, and was not forced, coerced, or threatened into entering his guilty pleas. The trial court sentenced Woods in accordance with the plea agreement, and thus, Woods is precluded from seeking review of that sentence. La. C. Cr. P. art. 881.2(A)(2) ; State v. Halley , 46,296 (La. App. 2 Cir. 8/10/11), 70 So.3d 1102 ; State v. Fizer , 43,271 (La. App. 2 Cir. 6/4/08), 986 So.2d 243 ; State v. Bailey , 40,098 (La. App. 2 Cir. 10/26/05), 914 So.2d 116, writ denied , 06-0462 (La. 9/22/06), 937 So.2d 377.

CONCLUSION

For the foregoing reasons, the motion to withdraw is granted, and Woods' conviction and sentence are affirmed.

MOTION TO WITHDRAW GRANTED; CONVICTION AND SENTENCE AFFIRMED.