
    STATE of Louisiana v. Jerry D. CAMP.
    
    Nos. 12655 to 12666.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 16, 1975.
    On Rehearing Feb. 9, 1976.
    Marvin, J., dissented and filed an opinion.
    
      John A. Richardson, Dist. Atty. by Dan J. Grady, III, Asst. Dist. Atty., Shreveport, for plaintiff-appellant.
    Booth, Lockard, Jack, Pleasant & LeSage by Curtis W. Cary, Shreveport, for defendant-appellee, Jerry D. Camp.
    Alfred E. Soderman, Jr., and T. Lynn Geneux, Shreveport, for defendants-appel-lees, Ralph J. Foster, Latson, Phills, Jackson, Burton, W. C. Garner, Jr., Tucker, L. H. Foster, Harris, Johnson & Tarno.
    Before PRICE, HALL and MARVIN, JJ-
    
      
       Consolidated with: State of Louisiana v. Foster, 12656; Latson, 12657; Phills, 12658; Jackson, 12659 ; Burton, 12660; Garner, 12661; Tucker, 12662; Foster, 12663; Harris, 12664; Johnson, 12665; Tarno, 12666.
    
   MARVIN, Judge.

In each of these cases, consolidated for the purposes of an appeal by the State, the State filed a rule against the respective defendant alleging him to be a habitual offender within the meaning of R.S. 32:1472 of the Motor Vehicle Habitual Offender Law. Attached to each petition is a certified copy of the record of the driving convictions of each defendant as required by Section 1473 of the law. It was also stipulated that in each case the defendant’s drivers license had been previously revoked or suspended under provisions of Title 32 other than the Habitual Offender Law.

In each case, with the exception of Number 12,655, where only a Motion to Dismiss in the nature of an exception of res judicata was filed, the defendants filed the exception of prematurity, the preemp-tory exception of no right or no cause of action, and the exception of res judicata. The trial court sustained the exceptions of res judicata and no right, no cause of action from which ruling the State appeals.

The defendants generally contended be-„ low and the lower court sustained exceptions in each case on the grounds that (1) the State’s petition did not allege or show the presence or intelligent waiver of counsel in the criminal convictions on which the State relies to invoke the Habitual Offender Law, and (2) that the defendants’ driving privileges had already been revoked in the prior criminal proceedings, thereby rendering an action under the Habitual Offender Law premature and as having the status of a thing adjudged since the Habitual Offender action is based on the same cause of action and the same demand between the same parties as in the prior criminal action against the defendant resulting in revocation or suspension of his driving privileges.

In State v. Love, 312 So.2d 675 (La.App.2d Cir.), rehearing denied June 3, 1975, application for writs denied, September 8, 1975, La., 317 So.2d 627, we held that the State in a civil proceeding authorized by the Motor Vehicle Habitual Offender Law, may have a person declared a habitual offender on the basis of prior un-counseled convictions, even though the declaration results in the loss of his driving privileges and possibly will lead to additional proceedings of a criminal nature resulting in imprisonment.

In Love, we said:

“Insofar as the instant civil suit is concerned we find the decisions of the United States Court of Appeal, Fourth Circuit, persuasive ... In our opinion, the constitutional safeguards . do not completely invalidate an uncounseled misdemeanor conviction. Only the loss of liberty or imprisonment resulting from the conviction is invalid; consequential civil disabilities are not . To extend Argersinger [Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530] to automobile driver license revocation proceedings would frustrate the legislatively determined state policy of removing habitually hazardous drivers from the highways. The constitutional foundations for Ar-gersinger, the protection of fair trial and due process, do not require this result.”

For the reasons expressed in Love, the exceptions of no cause or right of action are without merit and should have been overruled.

The fact that the original suspension and the instant action seeking adjudication of each defendant as a habitual offender is based somewhat on the same offense, does not automatically preclude this action under the Habitual Offender Law. We are dealing with the Louisiana law of res judicata as found in Civil Code Article 2286, and any doubt in regard to its application must be resolved against the party seeking its application. Makar v. Ivy, 291 So.2d 861 (La.App. 3rd Cir., 1974).

“Res judicata applies only when the thing demanded is the same, the demand is founded on the same cause of action and the demand is between the same parties in the same capacities.” Barnett v. Develle, 289 So.2d 129, 141 (La., 1974).

In Love, we recognized that the legislatively determined policy was to remove habitually hazardous drivers from the highways of the state. Under the Habitual Offender Law, the defendant is prohibited from driving for a period of up. to five years and if he does violate the prohibition, the penalties therefor are enhanced and are much greater than the penalties merely for driving under revocation or without a license as provided in other sections of R.S. Title 32. See particularly Sections 1480, 1481. The thing demanded by the State of Louisiana is not the same and the demand is not founded on the same cause of action, although the demand could be broadly said to be between the same parties. It should be noted however, in the first instance, the suspension or revocation may be done by the Department of Public Safety extra-judicially, while in this instance the State as parens patriae is seeking a judicial determination that the defendant is a habitual offender which may expose him to enhanced penalties, in an effort to remove the habitual offender from the highways of the state. The exception of res judicata should not have been sustained.

The same reasoning may be applied to the exception of prematurity, on which there was no ruling below. Moreover, if the one year suspension under a D.W.I. or similar statute may be said to serve as a bar to a suspension of five years under the Habitual Offender Law until the one year suspension runs, the result could be a total suspension for six years if the state is required to wait until the one year suspension had run. We can reasonably conclude that none of these defendants seek this result.

The statute (Act 697 of 1972) is clear in its stated policy and further provides in Section Four thereof that it should not be construed to preclude the exercise of regulatory powers of any department of the State having authority to regulate licensing of persons to operate motor vehicles. We find that the statute is not ambiguous and that the Habitual Offender Law may be invoked notwithstanding that a defendant’s driving privileges may have been previously suspended under some other provision of the law.

NO. 12,655

STATE V. JERRY D. CAMP

MOTION TO DISMISS APPEAL

This case was filed some ten days before the other cases with which it was consolidated for the purposes of appeal. Judgment on the motion to dismiss in the Camp case was rendered September 6, 1974, and signed on September 10, 1974. In the remaining cases, the judgment was signed on February 13, 1975, after a hearing in these cases on November 19, 1974.

In Camp, the minutes of the lower court show the following:

“Sept. 10, 1974 Judgment showing the rule to show cause in this case dismissed at Plaintiff’s cost was this day read, signed and filed. (See decree) (Judge Fant)
“Dec. 4, 1974 The District Attorney gave oral notice of his intention to apply to the Second Circuit Court of Appeals for writs. The Court allowed the District Attorney ten days in which to apply for writs. (Judge Fant)
“Dec. 20, 1974 The Court ordered the Minutes of December 4, 1974 be amended to read, ‘the District Attorney made an oral motion for an appeal to the Second Circuit Court of Appeals, said motion was granted by the Court’. (Judge Clark)
“Feb. 13, 1975 The defendant, not present, but represented by Alfred E. Soderman, Jr., attorney at law, Motion for Appeal and for Consolidation for Appeal was filed this day by the District Attorney. Order that an appeal be granted and that Cases No. 97,600, 97,682, 98,146, 98,148, 98,149, 98,150, ■98,151, 98,152, 98,153, 98,154, 98,160 and 98,422 be consolidated for appeal and that the return date for this appeal be fixed at April 2, 1975 was filed this day and signed by Judge William J. Fleni-ken. (Judge Alexander)”

Appeals from a judgment under the Habitual Offender Law are to be subject to the rules as appeals in civil actions. R. S. 32:1478.

Defendant’s Motion to Dismiss the appeal in this case is based on the contention that the delays for appealing did not extend to December 20, 1974, the date of the amendment of the December 4, 1974, minutes. The delays for appealing had not expired on December 4, 1974, and the amended minutes of that date do show that an appeal was sought by the State and was granted on that day by the lower Court. Article 2125, La.C.C.P. states that the return day of the appeal shall be fixed by the trial court at not more than 60 days from the date the appeal was granted. While this apparent oversight on the part of the trial court should not be lightly condoned, the duty of timely fixing the return date rests with the court and not the appellant and the failure of the court should not prejudice the appellant. See Hannagriff v. King, 11 La.App. 467, 123 So. 391, 1st Cir., 1929. Appellee’s Motion to Dismiss the appeal is denied.

In each of these consolidated cases, the ruling of the lower court sustaining exceptions, whether one or more, is reversed and each case is remanded for further proceedings consistent with the views expressed herein.

Before PRICE, HALL, MARVIN and SMITH, JJ.

ON REHEARING

HALL, Judge.

A rehearing was granted in this case brought under the Motor Vehicle Habitual Offender Law (LSA-R.S. 32:1472, et seq.) to reconsider our original decision denying appellee’s motion to dismiss the appeal.

The motion to dismiss is based on contentions that the appeal was not taken prior to the expiration of the ninety day delay for perfecting an appeal provided in LSA-C.C.P. Art. 2087, that no return date was fixed at the time the appeal was granted as required by LSA-C.C.P. Art. 2121, and that the return date as subsequently fixed was more than sixty days as required by LSA-C.C.P. Art. 2125.

The minutes of the district court reflect the following sequence of events:

“Sep. 6, 1974 The defendant, being present with his counsel, John R. Pleasant, Motion to Dismiss was filed this day by defendant. Said motion was argued, submitted and granted. The District Attorney gave notice in open court of his intention of applying to the Supreme Court of Louisiana for writs. (Judge Fant)
“Sep. 10, 1974 Judgment showing the rule to show cause in this case dismissed at Plaintiff’s cost was this day read, signed and filed. (See decree) (Judge Fant)
“Dec. 4, 1974 The District Attorney gave oral notice of his Intention to apply to the Second Circuit Court of Appeals for writs. The Court allowed the District Attorney ten days in which to apply for writs. (Judge Fant)
“Dec. 20, 1974 The Court ordered the Minutes of December 4, 1974 be amended to read, ‘the District Attorney made an oral motion for an appeal to the Second Circuit Court of Appeals, said motion was granted by the Court.’ (Judge Clark)
“Feb. 13, 1975 The defendant, not present, but represented by Alfred E. Soderman, Jr., attorney at law, Motion for Appeal and for Consolidation for Appeal was filed this day by the District Attorney. Order that an appeal be granted and that Cases No. 97,-600, 97,682, 98,146, 98,-. 148, 98,149, 98,150, 98,-151, 98,152, 98,153, 98,-154, 98,160 and 98,422 be consolidated for appeal and that the return date for this appeal be fixed at April 2, 1975 was filed this day and signed by Judge William J. Fleni-ken. (Judge Alexander)”

LSA-R.S. 32:1478 provides that an appeal may be taken from any final action or judgment entered under the provisions of the Motor Vehicle Habitual Offender Law in the same manner and form as appeals in civil actions. LSA-C.C.P. Art. 2087 provides that the delay for taking of a devolutive appeal expires within ninety days of the expiration of the delay for applying for a new trial, as provided by Article 1974, if no application has been timely filed. No application for new trial was filed in this case. The delay for applying for a new trial at the time judgment was signed in this case was three days under Article 1974 prior to its amendment. The delay for taking a devolutive appeal expired on December 13, 1974.

In our original opinion we held the minutes of December 4, 1974, as amended, show an appeal was sought by the State and granted on that date by the district court, and the appeal was, therefore, timely. Reconsideration leads us to a different conclusion.

The delay for perfecting an appeal expired on December 13, 1974. On the face of the record as it existed on that date, no appeal having been sought or granted, the delays for appeal had expired and the judgment dismissing the State’s action was final.

Thereafter, on December 20, 1974, an order was entered in the minutes, by a judge other than the one who rendered and signed the judgment and before whom the December 4 action was taken, ordering the minutes of December 4 be “amended” to read that an appeal was moved for and granted. This latter action was taken ex parte, without notice to appellee, and with no explanation in the record or minutes as to the reason for the amendment.

If the December 4 minutes as originally prepared were in error and if the State did, in fact, on that date move for an appeal which was granted, the district court retained jurisdiction and authority to correct the erroneous minute entry. See LSA-C.C.P. Arts. 2088 and 2132. If the minutes were not in error and the State did not, in fact, move for an appeal on December 4, the district court had no authority to subsequently amend or change the minute entry for that date.

In any event, such an amendment changing the substance of the minutes for that date and affecting significant, substantial rights of the appellee should not have been done ex parte. The proper procedure for correcting the minutes would have been by contradictory motion with notice to appellee and an opportunity for appellee to raise any objection he might have had thereto. Ex parte orders may be granted only where the mover is clearly entitled to the relief sought without supporting proof. If the order is one to which the mover is not clearly entitled, or which requires supporting proof, the adverse party is entitled to a contradictory hearing. See LSA-C.C.P. Art. 963.

In this instance, the amendment of the December 4 minutes could only be justified by supporting proof that the original minutes were in error and the State did, in fact, move for an appeal which was granted. No supporting proof of such facts appears in the record. Appellee was not afforded the opportunity of contradicting any supporting proof the State may have offered.

In this Court, the State has not responded to appellee’s motion to dismiss the appeal, either originally or on rehearing. No reason for or basis for the December 20 action of the district court in ordering the amendment to the December 4 minutes is advanced.

The minutes should not have been “amended” without a contradictory hearing and without supporting proof and reasons therefor shown in the record. In the absence of such hearing and a showing in the record of valid reasons therefor, the order directing the amendment of the minutes is void and of no effect. Considering the amendment ineffective, the minutes then reflect that no appeal was perfected prior to the expiration of the delay for perfecting an appeal. Accordingly, the judgment became final, this Court is without jurisdiction, and the State’s appeal must be dismissed.

The foregoing conclusion makes it unnecessary to discuss appellee’s other contentions relating to irregularities in setting the return date of the appeal.

For the reasons assigned, our original opinion and judgment is set aside, appel-lee’s motion to dismiss appeal is sustained, and the appeal is dismissed.

Appeal dismissed.

MARVIN, J., dissents and assigns written reasons.

MARVIN, Judge

(dissenting).

In DePriest v. Connecticut Fire Ins. Co., 140 So.2d 458, 460 (La.App. 1st Cir. 1962) it was stated that “. . . the law of this state is settled to the effect that the formal minutes of a court of record are presumed correct in the absence of positive proof to the contrary.”

We have no positive proof to the contrary and we must presume that on December 4 the State did in fact move for an appeal which was granted, as the Decemer 20 minutes so clearly stated. This is the only conclusion which can be drawn from reading the two minute entries together.

The majority on rehearing recognizes that if the State did in fact on that date [December 4] move for an appeal which was granted, the district court retained jurisdiction and authority to correct the. erroneous minute entry [to which I would add “at any reasonable time after December 4”].

The delays for appealing had not expired on December 4 and the amended minutes of that date do show an appeal was sought by the State and was granted by the lower court.

Moreover, the December 20 minutes show that “The Court ordered” the amendment of the December 4 minutes and do not in any way suggest that this was done necessarily on the motion of the State. Lower courts have express and inherent power to correct minute entries without contradictory hearings with the parties litigant. La.C.GP. Art. 2132. In no case have I found any instance where an appeals court has adulterated this power of the lower court over its own minutes by requiring a contradictory hearing below. Yet the majority is doing here, in effect ex parte, what the majority condemns, because the result is the district court is being told that it can no longer correct its minutes ex parte, if significant and substantial rights of a litigant are affected. This result affects significant and substantial rights of a district court without giving the district court an opportunity to be heard and raise objections.

Those who are involved with the press of paperwork obligations in our courts, whether minute clerks, reporters, lawyers or judges, are not infallible but are subject to all the frailities of human nature. Lawyers and judges, like witnesses, sometimes mumble or unknowingly talk at the same time. This sometimes results in confusion, misunderstandings or mistakes on the part of minute clerks and court reporters. Frequently, a trial court finds the minutes in error and directs or “orders” (as here) the minute clerk to correct or amend the minute entry. Where a district court amends or corrects a minute entry in any case in the future, out of an abundance of precaution that significant and substantial rights of a litigant might be affected, the district court likely will deem it necessary to hold a contradictory hearing. This result here will lead to unnecessary clutter and imposition on the working schedule of district courts. The courts below should be able to spend their time on more productive things than contradictory hearings to determine the necessity of correcting or amending its own minutes, especially on its own and without an application by a litigant.

La.C.C.P. Art. 963 contemplates that one litigant apply for by written motion the order which may be in question.

If the order applied for by written motion is one to which mover is clearly entitled without supporting proof, the court may grant the order ex parte and without hearing the adverse party,
if the order applied for by written motion is one to which the mover is not clearly entitled, or which requires supporting proof, the motion shall be served on and tried contradictorily with the adverse party. (Emphasis supplied).

By the record before us, the order correcting or amending the minute entry was not applied for by written [or oral] motion by anyone. The minutes simply reflect “The court ordered . . .” Art. 963 should not be applied where a district court corrects or amends its minutes on its own, and without the order for the Correction or amendment being applied for by written motion as the article clearly states. We must presume the minute entry to be correct under established jurisprudence and in the interest of judicial efficiency.

I respectfully dissent.  