author: CRAIN, J. CHUTZ, J., concurring.

text:
    SUCCESSION OF Nettie Lois DEAN
    NO. 2017 CA 0155
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: MARCH 29, 2018
    Christopher H. Riviere, Todd M. Magee, Thibodaux, Louisiana, Attorneys for Plaintiff/Appellee, Gerardo Perez, Independent Executor of the Succession of Lenda Dean
    Stanwood R. Duval, C. Berwick Duval II, Kathryn W. Richard, Houma, Louisiana, Attorneys for Defendants/Appellants, Ken Serigne, Walter Cure IV, and Kristina Henderson
    Ronald W. Morrison Jr., Metairie, Louisiana, Attorney for Intervenor/Appellee, Cherry Dean, Independent Executrix Of Succession of Nettie Lois Dean
    John D. Schoonenberg, Houma, Louisiana, Attorney for Defendants/Appellees, Shawn Nettles and Alicia Nettles
    Melanie M. Mulcahy, Metairie, Louisiana, Attorney for Defendant/Appellee, Elevating Boats, L.L.C.
    Sharon M. Williams, Gregory W. Rome, Chalmette, Louisiana, Attorneys for Defendants/Appellees, Shawn Nettles Jr., Vivian Nettles, and Margo Carambat
    BEFORE: GUIDRY, PETTIGREW, McDONALD, McCLENDON, WELCH, HIGGINBOTHAM, CRAIN, THERIOT, HOLDRIDGE, CHUTZ, AND PENZATO, JJ.

      The Hon. Vanessa G. Whipple recused herself from consideration of this matter.

   CRAIN, J.

This litigation arises out of a will dispute. After a trial on the merits, the trial court found the testator had testamentary capacity; however, finding undue influence, the trial court invalidated certain bequests in the will. The legatees of the voided bequests appeal the judgment and also seek review of two interlocutory rulings, namely, the denial of both an exception of no right of action and a motion to remove the independent executrix. After en banc consideration, we affirm the judgment on the merits, affirm the denial of the motion to remove the independent executrix, and reverse the denial of the exception of no right of action.

FACTS AND PROCEDURAL HISTORY

Nettie Dean died on August 26, 2010, at the age of 62. She was survived by two sisters, Cherry Dean and Lenda Dean Perez; one brother, Douglas Dean; her parents, Lynn Dean and Jacquelyn Dean; and several nieces and nephews. The bulk of her estate consists of units of ownership in Elevating Boats, L.L.C. (EBI), a predominantly family-owned business started by her father where Nettie worked for many years as the chief financial officer and secretary. The disposition of Nettie's units of ownership in EBI is the crux of the dispute in this litigation.

Ownership of the company is divided into two classes of units: "Class A" units, which carry all voting power, and "Class B" units, which have no voting power. Ten thousand Class A units were created, all of which were donated to Nettie by her parents in 2006. Nettie also owned over 25,000 Class B units, representing slightly more than six percent of the total Class B units. On February 1, 2007, without the knowledge of her family, Nettie donated 1,000 Class A units to Ken Serigne, the chief executive officer of EBI, and 1,000 Class A units to Walter Cure, the company's vice-president. Her remaining 8,000 Class A units, as well as all of her Class B units, were still owned by Nettie at the time of her death.

Nettie executed three wills. The first, an olographic will, was signed on March 7, 2007, and bequeathed her Class A units as follows: 2,000 units to each of three nephews, Troy Dean, Luke Dean, and Cy Dean, and 1,000 units each to Serigne and Cure. Her Class B units are not mentioned in that will. Other beneficiaries and their respective legacies include a friend, Janet Kaleher ($50,000), a nature conservancy (land in Arkansas), her sisters Cherry and Lenda (sterling silver), her brother Douglas (a vehicle, a storage trailer, and an RV travel trailer), and a small cash legacy to the caretaker of her pets.

The second will, also in olographic form, was executed on March 29, 2010, and bequeathed all of Nettie's Class A units to her nephew Troy. Her Class B units were left to EBI to be administered by Serigne and Cure to reward EBI employees, except for a small number left to Troy's son, Jax Dean. This will also bequeathed her house and vehicle to Cherry, and a truck to EBI. Other than those changes, the remaining bequests were the same as the 2007 will.

The last will Nettie executed is in notarial form and was signed by her on August 20, 2010, a few days before her death. Terminally ill from cancer and confined to a mattress on the floor, Nettie signed the will while several legatees named in the will stood nearby and observed, including Serigne and Cure. In this will, Nettie bequeathed her remaining 8,000 Class A units to Serigne, Cure, Luke, Troy, and Cy, to be divided equally. Those same individuals were bequeathed Nettie's Class B units, except for separate bequests of 840 units, each, to Serigne's daughter, Kristina Henderson, and to Troy's son, Jax. Most of the remaining bequests are similar to the prior wills, except Nettie's house and a travel trailer were left to Alicia and Shawn Nettles (Douglas' daughter and son-in-law), and the funds in a certain brokerage account were to be placed in trust for Alicia and Shawn's children. Nettie died six days later.

Lenda filed a petition seeking to probate the March 29, 2010 will (March will) and challenging the validity of the August 20, 2010 will (August will), alleging Nettie did not have testamentary capacity when she signed the August will. Lenda further alleged that Cure, in violation of a relationship of trust, exerted undue influence on Nettie and caused her to sign the August will, which, when coupled with the previously undisclosed donations, resulted in Cure and Serigne acquiring a majority of the Class A units in EBI. Cherry, who was named executrix in both the March will and the August will, intervened in the proceeding and filed the originals of both wills with the court; however, she did not vouch for the authenticity of the August will and reserved her right to contest its validity. Per her request, Cherry was appointed independent executrix of Nettie's estate. Cherry later amended her petition of intervention to allege the August will was invalid due to Nettie's lack of testamentary capacity and was the subject of undue influence by Cure and Serigne. In the same proceeding, Cure, Serigne, and Henderson filed a petition to probate the August will. After all issues were joined, the competing claims proceeded to a five-day bench trial.

The evidence at trial established that Nettie was extremely ill in the final weeks of her life. Diagnosed with cancer that metastasized to her brain, Nettie underwent brain surgery on April 7, 2010, followed by unsuccessful radiation. A CT scan on August 13, 2010, showed significant progression of the cancer and swelling of her brain. She was discharged home on August 17, 2010, under hospice care.

Nettie's primary caretaker throughout her illness was her sister Cherry, with whom she had a close relationship. Nettie first mentioned the possibility of making changes to her will while she and Cherry were going to the hospital for the August admission. Nettie confided that she was considering giving her house to Alicia and Shawn, her niece and nephew-in-law.

Cherry supported the idea and reassured Nettie that an attorney could help her prepare a will.

The day after being discharged home, Nettie had a meeting at her house with Serigne, Cure, and their spouses. Sitting in a wheelchair, Nettie told the two EBI executives that she was thinking about leaving the rest of her Class A units to her nephew, Troy. Serigne, who Lynn Dean had once considered the most important person to the success of EBI, expressed reservations about working for Troy and said he would talk to Troy about the situation. Over the next two days, Serigne, Cure, and Troy had extensive discussions to, as described by Serigne, "come to a working arrangement ... [as to] how Nettie would ultimately distribute her Class A voting units." During their final meeting, which took place at EBI, the three "came up with a plan on how the A [units] would be left." During these discussions, Serigne and Cure never disclosed to Troy that Nettie had already donated 1,000 of the Class A units to each of them.

This final meeting was interrupted when someone informed them Nettie needed a notary at her house. Serigne, Cure, and Troy went directly to Nettie's house. The testimony is conflicting about whether Serigne and Cure were invited to the house-they testified they were told to get a notary and get to the house, while Cherry testified she specifically told them not to come to the house.

They arrived to find Nettie lying on a mattress on her living room floor. In addition to Cure, Serigne, and Troy, several other people were in the house that morning, including Cherry; Alicia; Lynn Dean, who was suffering from severe dementia; Jacquelyn Dean, who was approximately 84 years old; Carl Heck Jr., a notary who previously had done work for the Dean family; and Gregory Schwab, Heck's nephew and an attorney with experience in preparing wills. Serigne had contacted Heck, who in turn called Schwab.

At some point Cure said, "All right, let's get started" and began asking Nettie what she wanted in her will, taking notes while she spoke. The nature of Cure's interaction with Nettie is disputed; Cure testified he was merely ensuring Nettie's will would reflect her wishes, while Cherry testified that Cure was "standing over" Nettie and "feeding numbers to her," which prompted Cherry to ask him to stop.

Schwab, who was also involved in the discussions with Nettie, returned to his office with Heck and prepared drafts of the August will. When they returned to Nettie's house, they were met on the front porch by Cure, who reviewed the drafts of the will and made some corrections. Schwab proceeded to review the will with Nettie, with the following people present: Serigne, Cure, Troy, Alicia Nettles, Mr. and Mrs. Dean, and Heck, and Nicole LeBouef, the Human Resources Manager for EBI, who was called by Serigne to be a witness to Nettie's will. Cherry was not present in the room. After being awake most of the night with Nettie, Cherry had fallen asleep in a back bedroom. Nettie asked for Cherry but was told she was asleep. When Schwab finished, he asked Nettie if the instrument correctly reflected her last wishes, and Nettie said yes. With her mother's help, Nettie signed the will.

After hearing testimony from numerous witnesses, including several experts, the trial court found Nettie had testamentary capacity when she executed the August will, but the legacies to Serigne, Cure, and Serigne's daughter, Kristina Henderson, were the subject of undue influence and were void. A judgment was signed on November 7, 2016, declaring the legacies to Serigne, Cure, and Henderson to be null and void. Serigne, Cure, and Henderson appeal, assigning as error the trial court's (1) finding of undue influence and the annulment of the involved legacies, (2) denial of an exception of no right of action filed in response to Cherry's petition of intervention, (3) denial of a motion to remove Cherry as independent executrix, and (4) assessment of all costs to appellants.

DISCUSSION

Undue Influence

Pursuant to Louisiana Civil Code article 1479, a donation inter vivos or mortis causa shall be declared null upon proof "that it is the product of influence by the donee or another person that so impaired the volition of the donor as to substitute the volition of the donee or other person for the volition of the donor." Such undue influence can result from physical coercion and duress, or more subtle influences such as creating resentment toward a natural object of a testator's bounty by false statements. See La. Civ. Code art. 1479, Revision Comment (b); In re Succession of Fisher , 06-2493 (La. App. 1 Cir. 9/19/07), 970 So.2d 1048, 1056. Mere advice, persuasion, or kindness and assistance should not constitute influence that would destroy the free agency of a donor and substitute someone else's volition for his own. See La. Civ. Code art. 1479, Revision Comment (b); Succession of Fisher , 970 So.2d at 1056.

The influence may be exerted by the donee himself or by a third person, even under circumstances where the donee takes no part in the activities and may be unaware of them, as long as some person exercises control over the donor, presumably one who is interested in the fortunes of the donee. See La. Civ. Code art. 1479, Revision Comment (c); Succession of Himel v. Todd , 11-1638, 2012 WL 2921495, p. 4 (La. App. 1 Cir. 7/17/12), writ denied , 12-1878 (La. 11/9/12), 100 So.3d 839. While the influence must be operative at the time of the execution of the donation or testament, it is not necessary the acts themselves be done at that time, or the person exercising the pressure be present then. See La. Civ. Code art. 1479, Revision Comment (d); Succession of Himel, 2012 WL 2921495 at p. 4. When a donation is declared null because of undue influence, it is not necessary that the entire act of donation or testament be nullified. If any provision contained in it is not the product of such means, that provision shall be given effect, unless it is otherwise invalid. See La. Civ. Code art. 1480.

Generally, a person who challenges a donation because of fraud, duress, or undue influence must prove it by clear and convincing evidence. However, if at the time the donation was made or the testament executed, a relationship of confidence existed between the donor and the alleged wrongdoer and the alleged wrongdoer was not then related to the donor by affinity, consanguinity or adoption, the person who challenges the donation need only prove the fraud, duress, or undue influence by a preponderance of the evidence. See La. Civ. Code art. 1483 ; Succession of Fisher , 970 So.2d at 1056. Here, Serigne and Cure do not contest they had a relationship of confidence with Nettie, arising out of many years of working together as executives for EBI, and they are not related to Nettie. Thus, the burden of persuasion for proving undue influence in this case is a preponderance of the evidence. See La. Civ. Code art. 1483.

A trial court's finding of undue influence is fact intensive and cannot be disturbed on appeal in the absence of manifest error. See In re Succession of Alexander , 15-0722, 2015 WL 6951416, p. 4 (La. App. 1 Cir. 11/9/15) ; Succession of Himel , 2012 WL 2921495 at p. 6. Under the manifest error standard of review, a reviewing court may not merely decide if it would have found the facts of the case differently. Hayes Fund for First United Methodist Church of Welsh, LLC v. Kerr-McGee Rocky Mountain, LLC , 14-2592 (La. 12/8/15), 193 So.3d 1110, 1115. Rather, to reverse a trial court's factual conclusion, the appellate court must satisfy a two-step process based on the record as a whole: there must be no reasonable factual basis for the trial court's conclusion, and the finding must be clearly wrong. Hayes , 193 So.3d at 1115-16 ; Stobart v. State through Department of Transportation and Development , 617 So.2d 880, 882 (La. 1993). This test requires a reviewing court to do more than simply review the record for some evidence that supports or controverts the trial court's findings. The court must review the entire record to determine whether the trial court's finding was clearly wrong or manifestly erroneous. Hayes , 193 So.3d at 1116 ; Stobart , 617 So.2d at 882.

The trial court received testimony from eighteen witnesses, including four experts. The testimony covered a wide spectrum of information, including the formation, structure, and control of EBI; Nettie's involvement in the company and her respective relationships with the subject parties; Nettie's health and interactions with the parties in the last days of her life; and the actual drafting and execution of the August will.

Some facts are not in dispute. The dire state of Nettie's health in the last two weeks of her life was uncontroverted. She had metastatic cancer that had spread to her brain, which was very swollen. According to her treating neurosurgeon, Nettie's brain was functional but not functional in a normal way; the disease likely impaired her judgment and memory. When she returned home from her final hospital admission on August 17, 2010, she was unable to walk into her house and fell on the front steps. Her condition deteriorated rapidly between August 17th and August 20th. Although she could answer questions and converse, Nettie was having trouble with hearing, following commands, and understanding numbers. She was frequently disoriented, would lose her train of thought, and hallucinated on one occasion. To make matters worse, Nettie had painful shingles on her face and scalp. After falling out of bed during the night of August 19th and being moved to a mattress on her living room floor, Nettie woke the next morning and told Cherry she did not think she would live through the day. By that time, Nettie, according to her mom, was "pretty helpless" and "was not our Nettie." Medical experts called by both sides agreed Nettie's condition made her susceptible to undue influence.

It is also undisputed that Serigne and Cure, the CEO and vice-president, respectively, for EBI, met with Nettie at her house, at her invitation, on Wednesday, August 19, 2010, at which time Nettie informed them she was considering leaving her Class A units to her nephew, Troy. Serigne readily conceded at trial that he did not want Troy to get Nettie's remaining Class A units. Serigne's desire to control operations of EBI was well known and established. In 2005, Serigne informed Lynn Dean he would remain with the company only if he had total control and an ownership interest. As a result, Serigne was promoted from chief engineer to CEO, replacing Mrs. Dean's son, Douglas, as the company's top executive. Believing control of the company depended on the disposition of Nettie's units, Serigne responded to Nettie's announcement by expressing reservations about working for Troy, stating, "I don't know if I'm ready to work under Troy or anyone else in the family." Serigne said he would talk to Troy about the situation.

After the meeting with Nettie, Serigne called Troy and had a lengthy conversation about the matter. That conversation was followed by a second telephone conversation and two meetings with Troy, all for the purpose, as confirmed by Serigne, "to come to a working arrangement ... as to how ... Nettie would ultimately distribute her Class A voting units." Cure similarly confirmed that he and Serigne "wanted a different disposition" of the Class A units; so Serigne, Cure, and Troy "came up with a plan on how the A shares would be left." Throughout these discussions, Troy erroneously believed they were talking about a division of all of the Class A units; at no time did Serigne or Cure ever disclose that Nettie had already donated 2,000 of the units to them.

A meeting was arranged with Nettie on Friday, August 20, 2010; however, prior to that meeting, Serigne, Cure, and Troy were meeting at EBI to discuss the matter, when they were informed Nettie needed a notary at her house. At this point, the testimony becomes conflicting.

Cure and Serigne testified Cherry came to EBI to communicate this information and instructed them to get a notary. Troy testified someone, he could not remember who said Nettie was going to die and wanted to write a will. Cherry unequivocally denied leaving Nettie's house that morning and said she spoke to Cure by telephone, informing him that a business meeting that day, apparently scheduled at Nettie's house, was canceled. Cherry further testified she told them, "Please don't come back here today. Nettie needs to write a new will." Shortly thereafter, Serigne, Cure, and Troy appeared at the house.

Troy found the March will, and Cure pointed out where the will left all of Nettie's Class A units to Troy. Schwab arrived and, while still on the front porch, was provided a copy of the March will and had a discussion with Cure. While Schwab could not remember the exact details of their conversation, he said he likely "got some numbers from Walter [Cure] before I saw Nettie" and "may have gotten some information from Walter concerning what her intentions were." Once inside, Cure took the initiative, declaring, "All right, let's get started. Nettie is ready." With a notebook in hand, Cure stood over Nettie and asked her what she wanted to put in her will. The events unfolding thereafter, particularly the extent of Cure's involvement, are disputed.

Cure described his role as more passive, stating he merely wanted to ensure "Nettie got exactly what she wanted in her will." Cure acknowledged he did not remind Nettie, nor disclose to anyone else in attendance, that she had already donated 2,000 of her Class A units to him and Serigne. Cure also admitted he "reminded" Nettie about a bequest to Serigne's daughter, Kristina Henderson, by asking Nettie "if she still wanted" to leave some Class B units to Henderson. Cure reviewed Schwab's draft of the August will and made corrections to it, including increasing the number of Class B units bequeathed to Henderson from 800 to 840. Cure's description of his involvement in the process was largely corroborated by Serigne, Schwab, and Heck.

Schwab testified he spoke to Nettie and, working from the March will, took notes and developed an understanding of the changes she wanted to make to her will. He never heard anyone tell Cure to stop what he was doing. Schwab went back to his office, drafted the August will, and returned to Nettie's house. According to Schwab, he reviewed the revisions with Nettie in private when Cure was not in the room, but Serigne testified there were always people in the room, "a lot of people in a small room." Several copies of the final draft of the will were distributed to the people in the room, and Schwab read the will to Nettie. At some point during the reading of the will, Nettie asked for Cherry and was told she was sleeping. When Schwab finished reading the will, Nettie acknowledged it was her final will and, with her mother's help, signed the instrument.

Troy, who at the time of trial was an employee under Serigne at EBI, testified he had no knowledge of any duress exerted upon Nettie, but qualified that statement in the following exchanges:

A. Yes. I don't necessarily think she understood the results of the will. I think she understood the decision she was making at the time.
Q. Well, what result do you think she didn't understand?
* * *
A. I don't think she understood that... equally splitting the [Class A] shares would not mean equally among the five. At that time, that was my thought. I thought ... equally among the five [meant] the five would all be equal.
Q. At that time you weren't aware about the prior 1,000 unit donations to each Ken [Serigne] and Walter [Cure]?
A. Correct. At that time, even through all of the conversations I had with Ken and Walter, I thought Aunt Nettie had them all, 8,000 being them all. That's what I thought.
* * *
Q. You know there have been allegations in the litigation that Ken and/or Walter may have influenced Nettie unduly regarding some of the terms of the new will. There may have been some fraud, some duress. Do you have any knowledge of anything like that?
A. I don't have any knowledge of anything of that nature. What I do believe I have knowledge of is mathematically ... Ken and Walter knew what the results would be [of equally dividing] the 8,000 shares. I believe the two men are smart enough to understand what the outcome would be when and if [the bequest] was executed.

Cherry's testimony differed significantly from Cure's description of his involvement in the preparation and execution of the will. According to her, Nettie began by addressing bequests unrelated to the EBI units, first stating she wanted to leave her house to her niece, then addressed some other bequests, such as her car, until Cure shifted focus to the EBI units. Cure began suggesting bequests to Nettie and insisting, "This is what you want to do, right, Nettie?" Cherry further testified:

A. I felt that he was actually feeding numbers to her at that point, telling her, you know, 'Okay, we got extras. If there's extras, are we going to give them to Ken and I?' [Nettie then replied,] 'Sure that's fine, you know.'
Q. Did you feel like the answers Nettie was giving were more of just Nettie being agreeable or?
A. Agreeing, agreeing with Walter, someone that ... was in a position of trust for her.
Q. Or was Nettie making decisions do you think?
A. I don't think Nettie was making decisions. I think the only decision she was making was about the house, you know. That house was what weighed on her mind [because she] want[ed] somebody in there that will take care of [her] parents.

According to Cherry, Cure's actions were so intrusive that Cherry yelled, "Stop. You and I cannot witness this, or we'll actually create an invalid will." She did not believe Cure, particularly as a beneficiary, "could have any part in making the will." Cure appeared to be "putting into motion a new will" and was in control of the situation. Cherry testified, "I didn't feel that we had-we could do what he was doing." Exhausted from being awake several nights tending to Nettie, Cherry left the room and fell asleep in a back bedroom.

Other witnesses testified generally about Nettie's mental condition shortly before or after she executed the will. Kaleher, who stayed with Nettie several nights before she signed the will, testified that Nettie was disoriented, would lose her train of thought, and hallucinated once. Nettie's sister, Lenda, arrived the night after Nettie signed the will, and she testified Nettie was having memory problems and "wasn't making sense." Margaret Chinn visited Nettie the following day, and Nettie hallucinated, saying she could see a man riding a motorbike on the ceiling fan.

Three expert witnesses gave opinions concerning undue influence. Dr. Michael Chafetz, an expert in clinical neuropsychology, reviewed Nettie's medical records, depositions of parties and witness, and interviewed Cherry. Based upon that information, Dr. Chafetz concluded Nettie was subjected to undue influence. Among other factors, Dr. Chafetz cited Serigne's veiled threat to leave the company if Troy received the Class A units, Cure's actions and statements at Nettie's bedside on the day the will was executed, the complete departure from Nettie's prior will with respect to the disposition of the Class A units, and her predisposition to undue influence stemming from her medical condition. Dr. Jill Hayes, an expert in clinical and forensic neuropsychology, offered similar testimony and likewise concluded Serigne and Cure subjected Nettie to undue influence. Dr. John Thompson, an expert in forensic psychiatry called by the defendants, did not find significant indicia of undue influence, although he cautioned that the determination of undue influence is "an issue for the trier of fact." He agreed Nettie was vulnerable to undue influence and acknowledged her medical condition, the significant change from her prior will, as well as her close relationship with Serigne and Cure, are relevant considerations in making the undue influence determination.

The appellants contend the evidence does not establish a level of influence that "so impaired the volition of the donor as to substitute the volition of the donee or other person for the volition of the donor," as required by Article 1479. For support, they cite the testimony of several witnesses, including Schwab, Heck, Serigne, Cure, and LeBouef, who testified they saw nothing to suggest undue influence on the day Nettie signed the will. However, the record contains contrary evidence.

Cherry described Cure "feeding numbers" to Nettie, controlling the situation, and effectively putting into place a new will, something much more expansive than what Nettie had expressed to Cherry about merely changing the bequest of her house. Her testimony portrays a strong degree of influence and control by Cure over Nettie, "leading her into what he wanted" for the disposition of the EBI units. These actions were undertaken under circumstances conducive to undue influence.

The medical experts agree Nettie's condition made her vulnerable to undue influence. In that state of mind, Nettie was told by Serigne that he was uncertain he would continue to work for EBI if she gave her Class A units to Troy. Through a series of conversations and meetings, Serigne, Cure, and Troy came to an agreeable arrangement for how they wanted Nettie to divide her Class A units. Cure acknowledged that once they learned Nettie was writing a new will, the only way they could get her Class A units was through her will. Serigne and Cure went immediately to Nettie's house, although according to Cherry they were specifically told not to come to the house. Even if initially asked to arrange for a notary, neither Serigne nor Cure could adequately explain why they remained at Nettie's house during what is typically a very private endeavor, the preparation and execution of a will. At trial, when pressed on the matter, Serigne only offered, "I don't know. Maybe it would have been more polite to leave now that you asked me that." Serigne and Cure did not leave, and, as a result, Nettie executed a will in what can only be described as less than ideal circumstances to protect against undue influence: she was surrounded by the individuals who benefitted the most from the changes she was making to her prior will.

Serigne and Cure deny any incentive to influence Nettie's disposition of her Class A units, arguing their existing status as Class A members vests them with the ability, under EBI's operating agreement, to block the admission of any new Class A member. According to this argument, they effectively control the operation of the company regardless of who receives Nettie's Class A units. However, the record readily establishes that at the time Nettie executed the August will, Serigne and Cure, correctly or not, believed they needed a majority of the Class A units to control the operations of EBI. Serigne testified he thought Troy would have control of the company if Troy got Nettie's Class A units. Cure gave similar testimony. That perception on their part prompted the extensive telephone conversations and meetings with Troy to come to a "working arrangement" to allocate the units.

The appellants also dispute whether the August will was a departure from Nettie's previous plans to dispose of her Class A units, arguing the aberration is the March will, which bequeathed the Class A units to Troy. Multiple witnesses testified Nettie consistently expressed a desire to keep control of EBI in the Dean family. Lenda confirmed Nettie, like her father, strongly believed control of the company should always be vested in the family, preferably with one person. In their last conversation about the matter, Nettie said Troy would be that person. In the summer of 2010, Nettie similarly told her uncle, William Miles, she wanted Troy to run EBI. The March will is consistent with those stated intentions. In contrast, the bequest in the August will, if executed, would result in a majority of the Class A units being owned by non-family members.

The trial court heard contrasting descriptions of Cure's statements and demeanor in his interaction with Nettie while she made changes to her will. Based upon our review of the extensive evidence, the trial court's factual finding of undue influence is not manifestly erroneous or clearly wrong. The finding is reasonably supported by testimony from numerous witnesses, both fact and expert, who testified about Nettie's vulnerable condition, the desire of Serigne and Cure to control the disposition of her units in EBI, the opportunities to exert influence on Nettie toward that end, and the measures undertaken by Serigne and Cure to accomplish that objective. While the testimony was conflicting as to the degree of influence exerted, when findings are based on determinations of credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the findings of the trier of fact; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said. See Hayes , 193 So.3d at 1116. Where there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong. Hayes , 193 So.3d at 1116. The assignment of error challenging the trial court's finding of undue influence is without merit.

The appellants make additional assignments of error and arguments specific to the bequests of the Class B units to Serigne, Cure, and Henderson, asserting the petitions did not allege any undue influence with respect to those bequests, no evidence was introduced to support any such finding, and, with respect to Henderson, she was not a defendant in the proceeding and was never served.

Lenda's petition details the circumstances surrounding the execution of the August will, including Nettie's medical condition; the relationship of confidence between Serigne, Cure, and Nettie; and the involvement of Cure in drafting the will. The petition further alleges Cure, through fraud, duress, or undue influence, caused Nettie to execute the August will. While the petition alleges the will results in Serigne and Cure acquiring a majority interest in the voting stock of EBI, the petition's request for relief is not limited to that bequest. Instead, the petition requests the entire will be declared null. The executor of Lenda's succession later amended the petition to specifically name a number of defendants, including Henderson. In an answer to the amended petition, Henderson reiterated an exception of no right of action and denied the allegations of the petition. Henderson appeared numerous times in subsequent pleadings and was represented by counsel at the trial of the matter.

Louisiana uses a fact-based system of pleading. See Udomeh v. Joseph , 11-2839 (La. 10/26/12), 103 So.3d 343, 348. Under Louisiana Code of Civil Procedure article 862, except in cases of a default judgment:

[A] final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings and the latter contain no prayer for general and equitable relief.

Article 862 permits courts to render substantive justice on the basis of facts pled and to refuse to permit a denial of substantive rights due to technical defects of language or characterization of the case. Udomeh , 103 So.3d at 348-49. If the facts constituting the claim or defense are alleged or proved, the party may be granted any relief to which he is entitled under the fact-pleadings and evidence. Udomeh , 103 So.3d at 349. Due process, however, requires adequate notice to the parties of the matters to be adjudicated. Id.

The petition filed by Lenda, as amended, alleged sufficient facts to give Serigne, Cure, and Henderson adequate notice that Lenda challenged the validity of all bequests in the August will. The evidence of undue influence presented at trial was sufficiently broad to encompass all bequests that benefitted Cure, Serigne, or Henderson, who is Serigne's daughter. Cherry's testimony describing Cure's conduct was not limited to the particular bequest of the Class A units. Cure acknowledged that in his bedside communications with Nettie, he brought up the legacy to Henderson and later "corrected" the draft of the will to increase the actual number of units bequeathed to Henderson. Henderson was named as a defendant in the amending petition, answered the petition, and appeared at trial through counsel. The assignments of error seeking reversal of the nullification of the legacies of the Class B units are without merit.

Denial of Exception of No Right of Action

The appellants assert the trial court erred in denying an exception of no right of action asserted in response to the amended petition for intervention filed by Cherry, in her capacity as independent executrix. In the amended petition, Cherry joined Lenda's challenge of the August will and alleged its invalidity due to Nettie's lack of capacity or because of undue influence. In support of their exception of no right of action, Serigne and Cure argue that Cherry, in her capacity as the independent executrix, is obligated to defend the August will and has no procedural right or standing to attack it.

The function of the exception of no right of action is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit. Eagle Pipe & Supply, Inc. v. Amerada Hess Corporation , 10-2267 (La. 10/25/11), 79 So.3d 246, 255 ; see also La. Code Civ. Pro. arts. 927A(6) and 1034. The exception assumes that the cause of action asserted is valid and tests whether the plaintiff has an interest in judicially enforcing it. JP Morgan Chase Bank, N.A. v. Boohaker , 14-0594 (La. App. 1 Cir. 11/20/14), 168 So.3d 421, 426. Whether a plaintiff has a right of action is a question of law and is reviewed de novo on appeal. Eagle Pipe and Supply, Inc. , 79 So.3d at 256.

Generally, a succession representative is the proper plaintiff to sue to enforce a right of the deceased or of his succession, while the latter is under administration. See La. Code Civ. Pro. art. 685 ; see also La. Code Civ. Pro. art. 3211 ; La. Civ. Code art. 2315.1B. In the performance of her duties, a succession representative may exercise all procedural rights available to a litigant. La. Code Civ. Pro. arts. 3196. A succession representative's procedural rights are thus largely defined by the duties imposed on her by law. Those duties, which are fiduciary in nature, include but are not limited to the duty of collecting, preserving, and managing the succession property; the duty to enforce all obligations in favor of the succession; and the duty to close the succession as soon as advisable. See La. Code Civ. Pro. arts. 3191, 3211, 3221, and 3197.

The duty of the executor in a will contest has been the subject of several cases, most often in the context of determining whether the executor can be reimbursed from the estate for attorney fees incurred in the dispute. Although the attorney fee issue is not presently before this court, this jurisprudence is helpful in defining the duties and corresponding procedural rights of an executor in a will dispute.

Typically, a person named executor in a will has a duty to offer the will for probate, to defend it from attack, and to endeavor to have it executed; and, as that duty results from the act of the testator, the expenses, such as fees of counsel and costs of court incurred in its discharge, should generally be borne by the testator's succession. See In re Marshall's Estate , 149 La. 300, 303, 88 So. 914, 915 (1921) ; Succession of Filhiol , 123 La. at 509-10, 49 So. at 143 ; Succession of Bradford , 130 So.2d at 706. The jurisprudence, however, has carved out exceptions to this general rule, denying reimbursement of attorney fees where (1) the succession representative, in her individual capacity as a legatee under the will, was the primary beneficiary of the attorney's services; or (2) the succession representative, knowing the will to be invalid, made a bad faith effort to probate it. See In re Succession of Horrell , 89 So.3d at 1269 ; Succession of Bradford , 130 So.2d at 707-08 ; Succession of Morere , 3 Teiss. 155, 160 (La. Orleans App. 1906) (on rehearing). Neither of these exceptions is applicable in this case.

While the duty of an executor to file and, in most instances, defend a will is well-settled, the same cannot be said about an executor's right or duty to challenge the validity of the decedent's will. This court recently held a succession representative has no such duty. See In Succession of Reno , 15-0854 (La. App. 1 Cir. 9/12/16), 202 So.3d 1147, 1155, writ denied , 16-2106 (La. 2/10/17), 215 So.3d 701. The administrator in Succession of Reno sought reimbursement from the decedent's estate for attorney fees incurred, in part, to challenge the decedent's last will. Denying recovery, this court explained:

As administrator of the estate, [the succession representative] is not to assume the judicial role of determining which will is valid; his role is to produce the will for probate, leaving to any interested party the onus of impeaching its validity.

Succession of Reno , 202 So.3d at 1155.

The opposite conclusion was reached in Matter of Succession of Scott , 12-0350, 2013 WL 12114718 (La. App. 1 Cir. 3/6/13), writ denied , 13-0720 (La. 5/17/13), 118 So.3d 372, wherein this court held a co-executor, who acted in good faith, had the procedural capacity to pursue an action to annul the testator's last will and testament, and was entitled to reimbursement from the estate for attorney fees incurred in connection therewith. Succession of Scott , 2013 WL 12114718 at pp. 7-8. The court relied heavily on the jurisprudence, discussed above, establishing that an executor who attempts to probate an invalid testament in had faith is not entitled to reimbursement from the estate for his attorney fees. See Succession of Scott , 2013 WL 12114718 at pp. 9-12. Based on that premise, the court ostensibly reasoned that the opposite must also be true: an executor who acts in good faith , regardless of whether he is defending or attacking a will, is entitled to reimbursement of his attorney fees and has the procedural capacity to pursue the claim. Thus, under Succession of Scott , an executor's right to contest the validity of the decedent's will is determined, at least in part, by the good or bad faith of his actions.

Having reviewed the applicable law, we find no statutory authority vesting an executor in his official capacity with the right or duty to challenge the validity of the decedent's last will and testament, even if the executor's actions are taken in good faith. An executor's duties are granted and defined by positive law; however, the applicable articles of the Code of Civil Procedure contain no language expressly or impliedly creating a duty on the part of an executor to pursue a legal challenge of the decedent's will. In fact, such a challenge is contrary to express duties imposed on an executor.

An executor is a fiduciary with respect to the succession. La. Code Civ. Pro. art. 3191. In that capacity, he is duty bound to collect, preserve, and, as soon as advisable, close the succession, transmitting the property in the decedent's estate to his successors. See La. Code Civ. Pro. arts. 3191, 3211, 3221, and 3197 ; La. Civ. Code. art. 871. The decedent's successors in a testate succession are identified in his last will and testament. The will is presumed valid, and the testator is presumed competent. See In re Succession of Holbrook , 13-1181 (La. 1/28/14), 144 So.3d 845, 853 ; In re Succession of Bellande , 13-0578, 2013 WL 7122700 p. 2 (La. App. 1 Cir. 12/27/13), writ denied, 14-0615 (La. 4/25/14), 138 So.3d 1233. Thus, a challenge to the decedent's will is a challenge to the document that presumptively identifies the successors to whom the executor is obliged to transmit the estate. Inevitably, any pleading filed by the executor seeking to invalidate that instrument creates a conflict of interest between himself and those successors.

Cherry has not identified any statutory duty or right allowing her, in her capacity as independent executrix, to file a claim seeking to invalidate Nettie's last will and testament, or any particular legacies therein. Absent such authority, Cherry, in her capacity as the independent executrix, has no procedural right to assert the claim. See La. Code Civ. Pro. art. 3196 ; Succession of Reno , 202 So.3d at 1155-56. The trial court erred in denying the exception of no right of action filed by the appellants in response to the amended petition for intervention filed on behalf of Cherry, in her capacity as the independent executrix. The exception is sustained, and the executrix's claims contesting the validity of the August will and any legacies therein are dismissed with prejudice. To the extent inconsistent with our holding herein, Succession of Scott is hereby overruled.

Denial of Motion to Remove Independent Executrix

The appellants also assign as error the trial court's denial of their motion to remove Cherry as the independent executrix. For grounds, they primarily rely on the fact Cherry challenged the validity of Nettie's final will.

A party seeking removal of a succession representative must prove by convincing evidence that the representative either breached his fiduciary duty to the succession under Louisiana Code of Civil Procedure article 3191 or the existence of one of the grounds for removal enumerated in Louisiana Code of Civil Procedure article 3182.

In re Succession of LeBouef , 13-0209 (La. App. 1 Cir. 9/9/14), 153 So.3d 527, 534 (en banc ). Under Article 3182, the court may remove any succession representative who is or has become disqualified, has become incapable of discharging the duties of his office, has mismanaged the estate, has failed to perform any duty imposed by law or by order of court, has ceased to be a domiciliary of the state without appointing an agent as provided in Louisiana Code of Civil Procedure article 3097(4), or has failed to give notice of his application for appointment when required under Louisiana Code of Civil Procedure article 3093.

A trial court is authorized to remove a representative only after such a showing is made. Succession of LeBouef , 153 So.3d at 534. At that point, the trial court is vested with discretion in determining whether removal of a succession representative is appropriate under the particular facts. Absent an abuse of discretion, the trial court's decision regarding removal of a succession representative will not be disturbed on appeal. Succession of LeBouef , 153 So.3d at 534.

At the hearing on the motion, four witnesses testified. Alicia Nettles confirmed she and her husband moved into Nettie's house, apparently prior to being formally placed into possession of it; however, as she explained, they occupied the home to help take care of Mr. and Mrs. Dean, who live in an adjoining home. Douglas Dean testified he secured Nettie's travel trailer and later turned it over to his daughter, Alicia Nettles, who inherited the trailer under the August will. Todd Villarrubia, an attorney who previously represented Cherry as independent executrix, testified Cherry was very helpful in compiling the information necessary to administer the succession and in communicating with family members, adding:

Yes, she was outstanding. You know, I [have] been at this for twenty years, and I've had the gamut .... I mean every week you know there were meetings at my office, there were phone calls, there were family members that were coming in asking questions about all this, and I think she did an outstanding job with it.

Cherry testified she initially worked more than forty hours per week on the succession. She has not requested or received any compensation for her work. The estate has grown in value during the administration. As to the August will, Cherry decided to join Lenda's nullity action after she learned of Dr. Smith's deposition testimony and in reliance on her own observations. Cherry acknowledged that her attorney fees related to the litigation have been paid by the estate, but no evidence was introduced to establish the amount of those fees; or, just as importantly, how much of the fees were specifically incurred by Cherry solely for the purpose of pursuing the nullity action asserted in her amended petition of intervention. The principal nullity action that gave rise to this proceeding was filed by Lenda. Cherry, as the independent executrix, is a named defendant in that action and undoubtedly incurred attorney fees in connection with the litigation of Lenda's claim. In light of that claim, attorney fees may have been incurred by Cherry even if she had not improperly assumed the role, through the filing of the amended intervention, of a plaintiff in the nullity action.

The evidence does not establish any mismanagement of the estate by Cherry. While Cherry did not have the procedural right to assert a nullity action in her capacity as independent executrix, the assertion of that claim, alone, is not sufficient to compel her removal as independent executrix, particularly given the unsettled nature of the previous jurisprudence addressing the rights and duties of a succession representative to challenge the validity of the decedent's will. The trial court did not abuse its discretion in denying the motion to remove Cherry as independent executrix. This assignment of error has no merit.

Assessment of Costs

In their final assignment of error, Serigne and Cure assert the trial court erred in casting them with all costs of the proceeding, arguing they "were successful in defending the will."

The trial court may render judgment for costs, or any part thereof, as it may consider equitable. See La. Code Civ. Pro. art. 1920 ; Gillio v. Hanover American Insurance Company , 16-0640 (La. App. 1 Cir. 1/31/17), 212 So.3d 588, 595, writ denied , 17-0393 (La. 4/24/17), 219 So.3d 1098. While the general rule is that the party cast in judgment should be assessed with court costs, the trial court may assess costs in any equitable manner and against any party in any proportion it deems equitable, even against the party prevailing on the merits. Bourg v. Cajun Cutters, Inc. , 14-0210 (La. App. 1 Cir. 5/7/15), 174 So.3d 56, 73, writs denied , 15-1306 (La. 4/4/16), 190 So.3d 1201, 1205. An appellate court will not disturb the trial court's assessment of costs absent an abuse of the sound discretion afforded the trial court. Bourg , 174 So.3d at 74.

The litigation focused on Nettie's bequests of her ownership units in EBI. While the trial court denied the claim that Nettie lacked testamentary capacity when she executed the August will, the trial court struck the legacies of the EBI units to Serigne, Cure, and Henderson based on a finding of undue influence. Under these circumstances, the trial court did not abuse its discretion by casting Serigne and Cure with all costs.

CONCLUSION

The November 7, 2016 judgment is affirmed. The trial court's denial of the motion to remove the independent executrix is also affirmed. The trial court's denial of the exception of no right of action, filed in response to the first amended petition of intervention, is reversed; the exception is sustained; and the claims set forth in the amended petition of intervention are dismissed with prejudice. All costs of this appeal are assessed to Ken Serigne, Walter Cure, and Kristina Henderson.

NOVEMBER 7, 2016 JUDGMENT AFFIRMED; DENIAL OF MOTION TO REMOVE INDEPENDENT EXECUTRIX AFFIRMED; DENIAL OF EXCEPTION OF NO RIGHT OF ACTION REVERSED, EXCEPTION SUSTAINED, AND FIRST AMENDED PETITION OF INTERVENTION DISMISSED WITH PREJUDICE.

Chutz, J. concurs and assigns reasons

McClendon, J. concurs and assigns reasons

Pettigrew, J. Dissents and assigns reasons

Holdridge J. concurs for the reasons assigned

McDonald, J. agrees and assigns additional reasons.

Guidry, J. Dissents in part and assigns reasons.

McDONALD, J., agreeing with additional reasons:

I agree with the majority in this matter and suggest these facts clearly highlight the reason an executor should not have a right to challenge the validity of the testament that appointed them. In this case the March 29, 2010 testament greatly favors Troy Dean over Nettie's other nephews, Luke Dean and Cy Dean. All three are also nephews of Cherry, the executrix. We do not know what kind of relationship Cherry has with these nephews. However, in choosing one testament over the other, she could be accused of favoritism since each testament is so different from the other. In challenging the validity of the August 20, 2010 testament she is favoring Troy over the other nephews as well as over Serigne and Cure. Whether she actually favors him over the others is not clear, but the appearance is the same.

McCLENDON, J., concurs.

Based on the specific facts of this case, I concur with the majority in affirming the trial court's decision not to remove the executrix. However, I note that an action by an executor or executrix, in their individual capacity, challenging any portion of the testament that appointed them, may be in breach of his or her fiduciary duty with respect to the succession. Nevertheless, this issue is not before us.

HOLDRIDGE, J., CONCURS.

I respectfully concur in the result. I find that the testator, Nettie Dean, lacked testamentary capacity when she signed, with the assistance of her mother, the August 20, 2010 will. Since the entire August 20, 2010 will should be declared invalid, the arguments as to the bequests to defendants are moot. Similarly, the argument to remove Cherry Dean as executrix of the August will is moot since Cherry Dean was properly named executrix in the valid March 29, 2010 will of Nettie Dean.

CHUTZ, J., concurring.

I concur in the result reached in the majority opinion. In order to reach that result, however, I believe it is unnecessary to overrule any portion of Matter of Succession of Scott , 12-0142, 12-0350, 2013 WL 12114718 (La. App. 1st Cir. 3/6/13) (unpublished), writ denied, 13-0720 (La. 5/17/13), 118 So.3d 372.

GUIDRY, J., dissenting in part.

I respectfully disagree with the majority's reversal of the trial court's judgment denying Serigne, Cure, and Henderson's exception raising the objection of no right of action. Based on this court's previous decision in Succession of Scott, 12-0350, 2013 WL 12114718 (La. App. 1st Cir. 3/6/13) (unpublished opinion), I would find that Cherry, as the executrix acting in good faith, can join in an action to seek the invalidation of the decedent's will, as such action is in furtherance of her fiduciary duty of ensuring that the decedent's estate is transmitted to the decedent's heirs and legatees in accordance with the decedent's wishes.

GUIDRY, J., dissents in part.

PETTIGREW, J., DISSENTS, AND ASSIGNS REASONS.

I respectfully dissent from the majority's opinion.

I agree that the testator had testamentary capacity. I disagree with the majority and the trial court that there was undue influence upon the testator at the time she executed her last will and testament. I would reverse the trial court on that issue. I would maintain the validity of the will in all respects.

I am also of the opinion we should follow the matter of Succession of Scott , 12-0350, 2013 WL 12114718 (La. App. 1 Cir. 3/6/13), writ denied , 13-0720 (La. 5/17/13), 118 So.3d 372.

      Other new legacies not at issue herein include a car to Margo Carambat, books to Lenda, and a cargo trailer to EBI.

      The appellants contend a de novo standard of review should apply because the trial court employed incorrect principles of law in making the undue influence determination. Specifically, they assert the trial court misstated the applicable burden of proof and did not consider all of the evidence. These assertions have no merit. In its reasons for judgment, the trial court correctly recited the applicable law and provided an extensive overview of the evidence presented.

      See Succession of Filhiol , 123 La. 497, 49 So. 138 (1909) ; In Succession of Reno , 15-0854 (La. App. 1 Cir. 9/12/16), 202 So.3d 1147, writ denied , 16-2106 (La. 2/10/17), 215 So.3d 701 ; Matter of Succession of Scott , 12-0350, 2013 WL 12114718 (La. App. 1 Cir. 3/6/13), writ denied , 13-0720 (La. 5/17/13), 118 So.3d 372 ; In re Succession of Hendricks , 13-1766, 2014 WL 5800310 (La. App. 1 Cir. 11/7/14) ; In re Succession of Horrell , 11-1577 (La. App. 4 Cir. 4/18/12), 89 So.3d 1267, writ denied , 12-1348 (La. 9/28/12), 98 So.3d 846 ; Succession of Kilpatrick , 356 So.2d 1083 (La. App. 2 Cir.), writ denied , 359 So.2d 198 (La. 1978) ; Succession of Bradford , 130 So.2d 702, 706 (La. App. 2 Cir. 1961).

      Louisiana Code of Civil Procedure article 2853 provides a means whereby a person in possession of a will of questionable validity can file the will with the court without vouching for its validity.

      We further note that while the Code of Civil Procedure does not specifically identify who has the right to file an action to annul a will, the Code does mandate that the executor, if he has not been discharged, must be named as a defendant in any such proceeding. See La. Code Civ. Pro. art. 2931.

      Appellants filed a motion to supplement the appellate record with pleadings filed in connection with the determination of the amount of recoverable costs. These pleadings were filed after the trial court granted the appeal from the judgment on the merits and are not relevant to the issues raised herein. The motion to supplement is denied. See Succession of LeBouef , 153 So.3d at 530, n.2.


source: Caselaw Access Project

author: EZELL, Judge.

license: Public Domain

text:
    STATE of Louisiana v. John Colby MANUEL
    KA 17-1145
    Court of Appeal of Louisiana, Third Circuit.
    May 2, 2018
    Herbert Todd Nesom, District Attorney, Joe Green, Assistant District Attorney, Thirty-Third Judicial District Court, P. O. Box 839, Oberlin, LA 70655, (337) 639-2641, COUNSEL FOR PLAINTIFF/APPELLEE: State of Louisiana
    Chad M. Ikerd, Louisiana Appellate Project, P.O.Box 2125, Lafayette, LA 70502, (225) 806-2930, COUNSEL FOR DEFENDANT/APPELLANT: John Colby Manuel
    John Colby Manuel, Pro-Se Defendant, Avoyelles Parish Jail, 675 Government Street, Marksville, LA 71351
    Court composed of Sylvia R. Cooks, Billy Howard Ezell, and John E. Conery, Judges.
   EZELL, Judge.

On April 23, 2015, the State filed a bill of information charging Defendant, John Colby Manuel, with two counts of possession of a firearm by a convicted felon, violations of La.R.S. 14:95.1 ; two counts of possession of controlled dangerous substances, violations of La.R.S. 40:966 and La.R.S. 40:967 ; and first-offense possession of drug paraphernalia, a violation of La.R.S. 40:1023 and La.R.S. 40:1025. On February 15, 2017, a jury heard evidence and convicted Defendant of the two charges for possession of a firearm. The jury acquitted him of the third charge, which related to methamphetamine. The other two counts were misdemeanors; they were not tried with the three felony charges.

On May 23, 2017, the district court denied Defendant's motion for new trial, then sentenced him to ten years at hard labor for each conviction for possession of a firearm; said sentences to run concurrently.

Counsel has filed a brief seeking to withdraw pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Counsel alleges there are no non-frivolous issues to raise on appeal. Our analysis indicates the motion to withdraw should be granted.

FACTS

On February 22, 2015, Sergeant Steven Clement of the Oberlin Police Department responded to 911 calls regarding shots fired in a residential area. In the course of his investigation, Sergeant Clement spoke to Defendant, who was an area resident. Defendant denied shooting a gun recently but admitted to firing one earlier in the day. He revealed that he was wearing a holstered pistol and that he had another weapon in his truck. Upon Sergeant Clement's instruction, Defendant put both pistols in the officer's possession. Sergeant Clement wrote him a citation for discharging a weapon within the city limits and returned the weapons.

Subsequently, Sergeant Clement determined that Defendant was a convicted felon, prepared a search warrant, and executed it. The search, conducted on February 26, led to the seizure of two firearms: one was in the house and the other was seized from Defendant's girlfriend who pulled up while the search was taking place; the pistol was in her purse.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find two errors patent and one possible error patent which will be discussed first.

First, there is a possible error patent concerning Defendant's waiver of his right to counsel. Recently, in State v. Queen , 17-599, pp. 3-6 (La.App. 3 Cir. 1/ 4/18), 237 So.3d 547, 551 (alterations in original), this court addressed this issue on error patent review:

In conducting an error patent review of the waiver of the right to counsel, this court has examined the adequacy of the waiver. State v. Montgomery , 10-1151 (La.App. 3 Cir. 4/6/11) (unpublished opinion), writ denied , 11-1742 (La. 5/4/12), 88 So.3d 449, cert denied , 571 U.S. 842, 134 S.Ct. 95, 187 L.Ed.2d 71 (2013). Thus, we will look beyond the court minutes to determine whether a waiver was required and, if necessary, whether the waiver was valid.
In State v. Dupre , 500 So.2d 873, 876-78 (La.App. 1 Cir. 1986), writ denied , 505 So.2d 55 (La.1987) (footnote omitted), the first circuit discussed a waiver of right to counsel when standby counsel was also appointed:
The Sixth and Fourteenth Amendments of the United States Constitution guarantee that a person brought to trial must be afforded the right to assistance of counsel before he can be validly convicted and punished by imprisonment. The Sixth Amendment further grants to an accused the right of self-representation. State v. Carpenter , 390 So.2d 1296 (La.1980). In Faretta v. California , 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the United States Supreme Court raised to constitutional level the right of a state criminal defendant to represent himself. Because an accused managing his own defense "relinquishes ... many of the traditional benefits associated with the right to counsel", he "must 'knowingly and intelligently' forego those relinquished benefits" in order to represent himself. Faretta , 95 S.Ct. at 2541.
Although a defendant does not have a constitutional right to be both represented and representative, the district court has the discretion to appoint an attorney to assist a pro se defendant. See State v. Bodley , 394 So.2d 584 (La.1981) ; State v. Boettcher , 338 So.2d 1356 (La.1976). When the trial court allows this kind of arrangement the defendant acts as his only legal representative. The legal counsel that is appointed does not represent the defendant; he only advises him. Because the court appointed attorney is only acting as an advisor, the accused is abandoning his right to be represented by counsel. At the same time he is exercising his right to self-representation. Therefore, when an attorney is appointed as an advisor the accused must knowingly abandon his right to be represented by counsel.
In this case, although co-counsel was appointed as an advisor to Dupre, counsel spent a significant portion of the trial representing Dupre. Taylor argued motions, made objections, examined witnesses and assisted in closing arguments. The fact that Taylor partially represented Dupre at trial raises the initial issue of whether Dupre was thereby afforded all the benefits of legal representation and whether this representation abrogated the need for an adequate waiver of counsel.
We hold that it did not. Even though he has an attorney partially representing him, when the accused assumes functions that are at the core of the lawyer's traditional role, as Dupre did, he will often undermine his own defense. Because he has a constitutional right to have his lawyer perform core functions, he must knowingly and intelligently waive that right. See United States v. Kimmel , 672 F.2d 720 (9th Cir.1982) ; Maynard v. Meachum , 545 F.2d 273 (1st Cir.1976) ; State v. Bell , 381 So.2d 393 (La.1980). This reasoning is "a logical extension of the well-established rule that a waiver is required despite the presence of a court-appointed advisor." Kimmel , 672 F.2d 720, 721, [citing United States v. Dujanovic , 486 F.2d 182 (9th Cir.1973) ].
....
In general, if a defendant desires to represent himself, he should be required to waive counsel and proceed on his own. If the trial court wishes to appoint an advisor, a waiver of counsel is still required and problems will be avoided if the advisor is restricted to advising and not allowed to partially conduct the defense.
In State v. Poche , 05-1042, pp. 8-9 (La.App. 3 Cir. 3/1/06), 924 So.2d 1225, 1231-32, this court explained, in pertinent part:
In State v. Hayes , 95-1170, pp. 4-5 (La.App. 3 Cir. 3/6/96), 670 So.2d 683, 685-86, this court stated:
Before being allowed to represent himself, a criminal defendant must knowingly and intelligently waive his constitutional right to counsel. State v. Mitchell , 580 So.2d 1006 (La.App. 3 Cir.1991), writ denied , 613 So.2d 969 (La.1993).
A criminal defendant is guaranteed the right to counsel by both the state and federal constitutions. U.S. Const. amend. VI ; La. Const. art. I, § 13. Absent a knowing and voluntary waiver of the right to counsel, no person may be imprisoned unless represented by counsel at trial. State v. Smith , 479 So.2d 1062 (La.App. 3 Cir.1985), citing Argersinger v. Hamlin , 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972).
Before a defendant may waive his right to counsel, the trial court must determine whether the defendant's waiver of counsel is intelligently and voluntarily made, and whether his assertion of his right to represent himself is clear and unequivocal. State v. Hegwood , 345 So.2d 1179 (La.1977). The determination of whether there has been an intelligent waiver of the right to counsel depends upon the facts and circumstances surrounding the case, including the background, experience, and conduct of the accused. State v. Harper , 381 So.2d 468 (La.1980). Although a defendant should be made aware of the dangers and disadvantages of self-representation, there is no particular formula which must be followed by the trial court in determining whether a defendant has validly waived his right to counsel. State v. Carpenter , 390 So.2d 1296 (La.1980). However, the record must establish that the accused knew what he was doing and that his choice was made "with eyes open." Id. at 1298, citing Faretta v. California , 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).
The Third Circuit Court of Appeal has repeatedly required the trial court meet the following requirements in determining whether a defendant has validly waived his right to counsel: first, determine a defendant's literacy, competency, understanding and volition, i.e. [,] was defendant's waiver of counsel made voluntarily and intelligently; and second, warn the defendant of the dangers and disadvantages of self-representation, so that the record establishes that the defendant knew what he was doing. Mitchell , 580 So.2d 1006 ; Smith , 479 So.2d 1062 ; State v. Adams , 526 So.2d 867 (La.App. 3 Cir.1988) ; State v. Sepulvado , 549 So.2d 928 (La.App. 3 Cir.1989) ; and State v. Bourgeois , 541 So.2d 926 (La.App. 3 Cir.1989), writ denied , 572 So.2d 85 (La.1991).
The correctness of granting a defendant the right to represent himself is judged by the record made in recognizing his right to do so, not by what happens in the course of his self-representation. State v. Dupre , 500 So.2d 873 (La.App. 1 Cir.1986), writ denied , 505 So.2d 55 (La.1987).

In Queen , the questioning of the defendant prior to the waiver of his right to counsel established the following: he was forty-two with one year of college education in paralegal studies; he had been involved in prior criminal proceedings in Texas, and in one proceeding, he had represented himself up to the point of jury selection; he had been successful in having a theft charge reduced from a felony to a misdemeanor; he represented himself in a civil matter; he was familiar with the laws and penalty concerning the charge he faced; he had reviewed the evidence provided by the State as a result of discovery motions filed by his attorney; and he had written letters to the court concerning a writ of habeas corpus and requesting copies of his charging instrument.

The court allowed his request in part by allowing him to represent himself with co-counsel appointed to assist. This court found that although the trial court did not specifically advise the defendant of the dangers and disadvantages of self-representation, considering the record as a whole as in Poche , 924 So.2d 1225, this court found that the right to counsel was adequately waived during pre-trial proceedings considering the trial court was aware that the defendant was "literate, competent, and understood the charges against him and the judicial process." Queen , 237 So.3d at 555 (quoting Poche , 924 So.2d at 1233 ). Additionally, this court noted that the defendant was assisted by co-counsel at numerous proceedings and it discussed those proceedings which occurred after the August 20, 2009 waiver before reaching the conclusion that the defendant was aware of the judicial process and that his choice to represent himself was part of a strategy. Thus, this court concluded the waiver was adequate.

In Poche , the issue of self-representation was raised by the defendant on appeal. This court found that the trial court's interview of the defendant regarding self-representation did not meet the Hayes requirements necessary to determine whether the defendant's waiver was valid because the court did not make an express determination regarding his literacy, competency, or understanding; it did not determine whether his waiver was intelligently made; and it failed to inform him of the dangers and disadvantages of self-representation. However, based on the record as a whole, this court found the trial court's determination was not error. It noted that the defendant had filed numerous pre-trial pro se briefs with the trial court, some of which he argued himself at hearings on the motions. The defendant was also made aware of the elements of each crime at arraignment, which was prior to his request to represent himself. Thus, this court found that at the time of the waiver, the trial court was aware that the defendant was literate, competent, and understood the charges against him and the judicial process. Thus, to satisfy the first step of the Hayes test, all that was left was for the trial court to determine the defendant's volition, which it had done. This court had to only determine whether the defendant was made aware of the dangers and disadvantages of self-representation. In concluding that defendant was aware of the dangers and disadvantages of self-representation, this court stated:

In State v. Norman , 99-600 (La.App. 5 Cir. 2/16/00), 756 So.2d 525, writ denied , 00-971 (La. 3/23/01), 787 So.2d 1007, the fifth circuit concluded that the record should be examined for indications that a defendant was aware of the dangers and disadvantages of self-representation, noting that prior extensive experience with the judicial process and the criminal justice system, such as experience obtained through prior felony convictions, indicates that a defendant is aware of the dangers and disadvantages of self-representation.
At the sentencing hearing, the trial court discussed Defendant's prior extensive experience with the judicial process. Defendant is a fifth felony offender with a record dating back to December 27, 1983. In addition to the felonies, he has been convicted of six misdemeanor charges and has pled guilty to reduced charges on at least one occasion as a result of a plea bargain. Based on his prior extensive experience with the criminal justice system, we find that Defendant was aware of the dangers and disadvantages of self-representation. This assignment of error is without merit.

Poche , 924 So.2d at 1233-34.

In the present case, counsel represented Defendant throughout his trial, but at his April 28, 2017 hearing on post-trial motions, Defendant indicated he wished to waive his right to counsel. No examination was conducted regarding the waiver. Defendant subsequently represented himself at the May 23, 2017 hearing on his motion for new trial and sentencing. These two matters were combined in a single proceeding. Because sentencing is a critical stage of the proceedings, it is unnecessary to determine whether a hearing on a pro se motion for new trial is such a proceeding. State v. Carpenter , 390 So.2d 1296 (La.1980). At the start of the hearing, defense counsel informed the court that his client wished to represent himself, but she would be present "to make sure he (Defendant) underst[ood] his constitutional rights and on that motion he will be making the argument." The following colloquy ensued between the judge and Defendant:

THE COURT:
What grade in school did you finish?
MR. MANUEL:
GED.
THE COURT:
GED, you want to argue your motion for new trial rather than have Ms. Guillory argue your motion?
MR. MANUEL:
Well, I had re-filed it this morning to put-all the grounds on it.
THE COURT:
You re-filed it when?
MR. MANUEL:
It probably went out Friday so if I can get it postponed-
THE COURT:
- no, sir. Listen, evidently what you're going, you file repetitive motions for new trial. I have already denied your motion for new trial, and we're not going to keep on putting this off. We'll argue, you can argue your motion today if that's what you choose to do.... You can argue all the grounds that you have in the present motion or in the one that you filed. So you can go ahead at this time.
MR. MANUEL:
And I just want to let the court know I'm not trying to file repetitive motions and I'm not trying to postpone anything, I'm just-I'm without law help. No law books or anything I'm just trying to do it the right (inaudible), that's all.

Defendant proceeded to argue the claims, and the trial court denied his motion for new trial filed April 17, Defendant's motion for new trial that had been filed or mailed to the court, and any other pending motions. Defendant waived the sentencing three-day delay required by La.Code Crim.P. art. 873 and was sentenced to the minimum sentence of ten years at hard labor without benefit of probation, parole, or suspension of sentence on each count.

At a subsequent hearing regarding Defendant's post-conviction bail held June 29, 2017, Defendant indicated that he wished to waive his right to counsel, and a more in-depth examination was conducted by the same judge :

THE COURT:
Okay, sir let's go ahead and discuss that first. Okay? You do have a 6th amendment right to represent yourself, okay? But I need to have this discussion with you on the record because I feel it's very important and necessary and you have the right to represent yourself but you also have the right to counsel. And the reason that you have the right to counsel is because representing yourself in a criminal matter, or anyone representing anyone in a criminal matter is not a very easy thing to do. There are certain pitfalls and certain difficulties that a person encounters during pre-trial matters and also for trial matters. And so the court wants to make sure that you first of all are competent to understand that and that you understand that you're waiving certain rights. Having said that you also have the right as I said under the 6th amendment to represent yourself. They have a saying and I guess most of the time I agree with it. A person who represents themselves has a fool for a client, because you never know, somebody said I forget exactly who said it but I think it's a very wise thing because you know when you're at trial you're going to be trying to listen to what the attorney says and try to figure out your strategy and you're going to be missing things and so at the very least the court will appoint standby counsel to represent you. Do you understand all the different stages of trial?
MR. MANUEL:
I go over it, I read it every day and every night.
THE COURT:
Okay, you understand about the difficulties in giving an opening statement and not incriminating yourself?
MR. MANUEL:
I think I can do better than I was done. I think that I was mis-represented in my other trial and I believe that I can do much better.
THE COURT:
Okay, do you understand about having to cross-examine witnesses and just ask them questions and whatever their answers are you have to live with them?
MR. MANUEL:
And I also heard you say one time that I don't have to even put up an-
THE COURT:
Well, sure.
MR. MANUEL:
There you go.
THE COURT:
Okay, you understand that you have the right to subpoena witnesses and require that they come testify under oath?
MR. MANUEL:
I understand everything Your Honor.
THE COURT:
Well-
MR. MANUEL:
- and I wish to waive my right to counsel.
THE COURT:
Well, we're going to go ahead and we're going to get to that but I'm not going let you just do it. I'm going to make sure that you understand all these things and that there are certain difficulties, so do you understand not only can you subpoena witnesses you can also subpoena evidence to court on the date scheduled for your trial?
MR. MANUEL:
Yes, sir.
THE COURT:
Okay, do you understand that you have the right to a judge trial but you also have the right to a jury trial?
MR. MANUEL:
Yes, sir.
THE COURT:
And do you understand about jury selection and challenges for cause and peremptory challenges, you understand all of that?
MR. MANUEL:
Yes, sir.
THE COURT:
All right, do you understand what I said not only about cross examining the state[']s witnesses but do you understand that you would be required to direct any witnesses that you might call?
MR. MANUEL:
Yes, sir.
THE COURT:
All right. You think you know all about the Code of Evidence and what evidence is admissible and what evidence is not admissible and what evidence might be hearsay and things such as that?
MR. MANUEL:
Yes, sir.
THE COURT:
All right. I'm just going to tell you one more time do you understand the dangers of representing yourself? And the only reason I say this and you're laughing about it, it's a very serious matter. I take this matter extremely seriously and you know I'll be honest with you, I've been doing this over twenty years and I've never seen a person represent themselves-
MR. MANUEL:
- and succeed?
THE COURT:
No, not only did they not succeed but I've never seen anybody even do a pretty good job so that's the only reason why I'm taking this time to tell you, okay? How far in school did you go?
MR. MANUEL:
GED.
THE COURT:
Okay, you're able to read and write?
MR. MANUEL:
Yes, sir.
THE COURT:
You understand the English language?
MR. MANUEL:
Yes, sir.
THE COURT:
You got any mental or physical disabilities, handicaps, afflictions or diseases that might affect your ability to represent yourself?
MR. MANUEL:
Not so far.
THE COURT:
Okay, well do you understand everything that I've said so far?
MR. MANUEL:
Yeah, I just got one question.
THE COURT:
Yes, sir.
MR. MANUEL:
Would I be able to hire an attorney after I waive my right to counsel?
THE COURT:
Yes, sir.
MR. MANUEL:
Okay.
THE COURT:
You can always change your mind and-but you feel that you have the mental capacity and understanding to competently represent yourself?
MR. MANUEL:
Yes, sir.
THE COURT:
Okay, well the court finds that Mr. Manuel is competent to waive his right to counsel and therefore the court will allow him to waive his right to counsel to represent himself in these matters but however the case law is pretty clear to me that what the court is required to do is appoint standby counsel because sometimes what happens in trials is people realize they are over their head and the judge can't stop the trial and say okay, well let's start over again and have an attorney. So for ever how long you represent yourself that will be water under the bridge as they say and if you ever want to invoke the right to counsel then the case would go from that point forward so the court will appoint Ms. Guillory as standby counsel in your matters, okay.

The court then discussed Defendant's appeal, and his request for a bond reduction was taken up. While addressing that issue, Defendant noted for the court that he had "been coming to court here for [sic] I think since I was born and I might have one or two failure to appears [sic] due to I was coming to court two or three times a month." In addressing Defendant's bond reduction request in another docket number, the prosecutor noted that Defendant was a third or fourth felony offender. This is substantiated by Defendant's rapsheet introduced at trial as State Exhibit #5.

At the time of the waiver of Defendant's right to counsel, he was aware of the charges against him. At his seventy-two-hour hearing, Defendant told the court he was charged with possession of a firearm, which the court later clarified to be possession of a firearm by a convicted felon. Additionally, Defendant informed the court that he had obtained his GED, and he had clearly expressed to the court his desire to represent himself. Thus, we find the trial court was aware that Defendant was literate, competent, and understood the charges against him. Although Defendant was not made aware of the dangers and disadvantages of self-representation at the time of the waiver of his right to counsel, he clearly had a prior felony conviction which formed the basis of his current conviction. He had been present during the current trial, and the prosecutor's comment referenced above indicated Defendant had multiple prior felonies. Further, when Defendant was later fully advised of the dangers and disadvantages of self-representation at the June 29, 2017 hearing, there was nothing to indicate that his responses would have been any different if asked at his May 23, 2017 hearing. Considering the record as a whole, as this court did in Poche and Queen , we find Defendant adequately waived his right to counsel during post-trial proceedings.

Next, there is a misjoinder of offenses in the bill of information. The bill of information charged the Defendant with three felonies triable by jury and two misdemeanors triable by a judge without a jury. La.Code Crim.P. art. 779. Therefore, counts four and five were improperly joined with counts one through three. However, the Defendant did not file a motion to quash the bill of information on the basis of misjoinder of offenses, as required by statute. La.Code Crim.P. art. 495. Thus, review of this error is waived.

Next, since counts four and five are misdemeanors, the proper mode of appellate review for these offenses is an application for writ of review rather than an appeal. La.Code Crim.P. art. 912.1. In State v. Turner , 04-1250 (La.App. 3 Cir. 3/2/05), 896 So.2d 286, writ denied , 05-871 (La. 12/12/05), 917 So.2d 1084, this court severed a misdemeanor conviction for possession of marijuana from the defendant's appeal of two felony convictions and instructed the defendant to file a writ of review regarding the possession of marijuana conviction, if so desired. This court noted that the defendant did not make any specific arguments regarding the misdemeanor conviction.

As in Turner , Defendant has not raised any assignment of error regarding these misdemeanors. Therefore, as was done by this court in Turner , this court severs the misdemeanors from the appeal. However, unlike Turner , the record does not establish a disposition of the misdemeanor charges. Information from the district court clerk of court's office indicates the record does not reflect a disposition of counts four and five.

Louisiana Code of Criminal Procedure Article 819 provides: "If there is more than one count in an indictment, the jury must find a verdict as to each count, unless it cannot agree on a verdict as to a count." Louisiana Code of Criminal Procedure Article 820 applies the provisions of the Chapter regarding effects of verdicts to apply to cases tried without a jury as well. Therefore, we sever the misdemeanors from the appeal and remand the charges to the trial court for a proper disposition of counts four and five. State v. Hypolite , 04-1658 (La.App. 3 Cir. 6/1/05), 903 So.2d 1275, writ denied , 06-618 (La. 9/22/06), 937 So.2d 381.

ANDERS ANALYSIS

Pursuant to Anders , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, Defendant's appellate counsel filed a brief stating that he made a conscientious and thorough review of the trial court record and could find no errors on appeal that would support reversal of Defendant's convictions and sentences. Thus, counsel seeks to withdraw. Defendant has filed a pro se brief assigning nine errors. We will discuss the Anders analysis first, as it involves a review of the trial transcript.

In State v. Benjamin , 573 So.2d 528, 531 (La.App. 4 Cir. 1990), the fourth circuit explained the Anders analysis:

When appointed counsel has filed a brief indicating that no non-frivolous issues and no ruling arguably supporting an appeal were found after a conscientious review of the record, Anders requires that counsel move to withdraw. This motion will not be acted on until this court performs a thorough independent review of the record after providing the appellant an opportunity to file a brief in his or her own behalf. This court's review of the record will consist of (1) a review of the bill of information or indictment to insure the defendant was properly charged; (2) a review of all minute entries to insure the defendant was present at all crucial stages of the proceedings, the jury composition and verdict were correct and the sentence is legal; (3) a review of all pleadings in the record; (4) a review of the jury sheets; and (5) a review of all transcripts to determine if any ruling provides an arguable basis for appeal. Under C.Cr.P. art. 914.1(D) this Court will order that the appeal record be supplemented with pleadings, minute entries and transcripts when the record filed in this Court is not sufficient to perform this review.

Appellate counsel's Anders brief must review the record and provide "a detailed and reviewable assessment for both the defendant and the appellate court of whether the appeal is worth pursuing in the first place." State v. Mouton , 95-981, p. 2 (La. 4/28/95), 653 So.2d 1176, 1177. Counsel observes there were no challenges for cause by the defense during voir dire and no contemporaneous objections were made during trial. Our review of the record indicates the assertion regarding voir dire is correct; further, it appears the defense did not raise any formal objections during testimony. To the extent that Defendant's trial counsel raised concerns about any of the evidence that was introduced, those concerns were resolved by actions the prosecutor took to accommodate such concerns, i.e. , by redacting potentially prejudicial information.

In going through the record, Defense counsel indicates that the evidence in the record was sufficient to support the conviction. The evidence showed that Defendant had a prior conviction for second degree battery. His former probation officer testified that the sentence for that conviction terminated in April of 2009; thus, under La.R.S. 14:95.1 as it existed at the time, he could not have possessed any firearms legally until 2019.

As for the actual possession of firearms at issue, Sergeant Clement's testimony about his initial encounter with Defendant showed that Defendant had physical possession of two firearms at that time. Further, although Sergeant Clement misidentified the calibers of the two weapons, he indicated the weapons recovered pursuant to the search warrant were the same two guns he saw during his initial contact with Defendant. Defendant's girlfriend, Jolene McGee, testified that she recognized one of the weapons as one that had belonged to Defendant's father and that Defendant had physically possessed; at some point they had pawned it but later redeemed it. She did not recognize the smaller pistol in evidence, although she and Defendant had obtained a small-caliber gun from a pawn shop. The weapons were registered in her name; Defendant was aware that he could not legally possess firearms.

Ms. McGee remembered handling only one weapon during the initial encounter with Sergeant Clement and disputed some other points in the officer's account of events but testified that Defendant had used both the .38 caliber pistol and a .25 caliber pistol at some point. Counsel suggests, and we agree, that after hearing testimony from Sergeants Clement and Ms. McGee, the jury's decision to convict Defendant of both counts of possession of a firearm by a convicted felon was rational. Although there were some conflicts or discrepancies between the testimonies of the two main witnesses, it is settled that a jury may accept or reject any testimony in whole or in part.

Regarding Defendant's pretrial motions, counsel notes that both the motion to suppress and the motion to quash were based upon the misidentification of the calibers by Sergeant Clement. At the initial encounter with Defendant, the officer though he saw a .22 caliber pistol and .40 caliber pistol, but police later seized a .25 and a .38. As counsel notes, this minor discrepancy did not support the granting of either motion. The misidentification of the calibers is a matter of weight, and its assessment was soundly within the discretion of the district court. Our survey of the jurisprudence indicates counsel's assertions are correct. State v. Lee , 05-2098 (La. 1/16/08), 976 So.2d 109, cert denied , 555 U.S. 824, 129 S.Ct. 143, 172 L.Ed.2d 39 (2008) ; State v. Love , 00-3347 (La. 5/23/03), 847 So.2d 1198, State v. Eaglin , 08-979 (La.App. 3 Cir. 3/4/09), 4 So.3d 991, writ denied , 09-794 (La. 12/18/09), 23 So.3d 933.

Also, counsel observes the district court did not abuse its discretion in determining that Defendant's statements to Sergeant Clement during their initial encounter were made in a non-custodial setting and thus not subject to suppression. We find this observation is correct. State v. Blackson , 38, 044 (La.App. 2 Cir. 1/28/04), 865 So.2d 272. Counsel also notes Defendant's ten-year sentences were the minimum terms available pursuant to La.R.S. 14:95.1 as it existed at the time, and they are to run concurrently.

PRO SE ASSIGNMENTS OF ERROR

Regarding the pro se assignments of error, we observe that the pro se brief contains little to no argument on the issues he lists. The first assignment states there is a discrepancy in the date of the police report; in the second assignment, he complains that there is a discrepancy between the Witness Statement and the Detailed Call Report. We observe that these sorts of issues go to credibility or general weight. As noted earlier, the assessment of the weight of evidence is within the jury's province. Regarding the offense report, Sergeant Clement testified that he wrote it soon after the initial incident on February 22, 2015. However, the document itself shows that it was filled out on February 26. It is not clear what effect the difference in the dates would allegedly have had on the case. Discrepancies regarding the Witness Statement were discussed before the jury during cross-examination, re-direct, and the examination of Sergeant Clement.

His third, fourth, and fifth pro se assignments appear to focus on the initial misidentification of the calibers of the weapons by Sergeant Clement. Defendant seems to argue that the weapons seized differed from those that Sergeant Clement saw him possessing during their initial encounter. As discussed earlier, the misidentification of the calibers was put before the jury at trial. Also, even if two entirely different weapons had been found during the search of Defendant's home, as opposed to the weapons seen during the initial encounter, the weapons seized from the home could have formed the basis of criminal charges. The offense date listed on the bill of information would go to the issue of notice, but Defendant does not contend he did not know the nature of the charges.

In his sixth assignment of error, he notes that Sergeant Clement testified that he has known Defendant since fourth or fifth grade; but he provides no evidence that any prior association between them was prejudicial. In his seventh assignment of error, he claims that time discrepancies in the Detailed Call Report are "proof of Profiling by Officer." However, Defendant does not explain how an alleged nine-minute discrepancy in the call report demonstrates that Sergeant Clement profiled him or had any personal ill will toward him.

In his eighth assignment of error, he again addresses the credibility of Sergeant Clement. Defendant claims it is not clear from the record whether Sergeant Clement ever unholstered the pistols or ran the registration numbers. This is a minor point that goes to weight.

In his ninth and final assignment of error, Defendant complains that his motion to suppress was heard by a different judge than the one who conducted the trial. He does not explain how this prejudiced his case.

The pro se assignments of error lack merit.

In light of the foregoing discussion, we find that appellate counsel has demonstrated that he has performed a thorough review of the record and has found no non-frivolous issues. Accordingly, the convictions and sentences are affirmed, counsel's motion to withdraw is granted, and the case is remanded for disposition of counts four and five.

CONVICTIONS AND SENTENCES AFFIRMED. CASE REMANDED FOR DISPOSITION OF COUNTS FOUR AND FIVE. MOTION TO WITHDRAW GRANTED.

      A pro se motion for new trial was filed in the trial court on May 25, 2017, after the May 23, 2017 hearing. At the bottom of this motion, the court noted that this supplement to the motion for new trial was denied at the May 23, 2017 hearing.

      The cover of the June 29, 2017 transcript bears both the trial court docket number for this case (CR-2015-1500) as well as the docket number for another case (CR-2017-1142.) Thus, it appears the references regarding pretrial matters concerned the pending proceedings in 17-1142.)