ON APPLICATION FOR REHEARING.

MAX N. TOBIAS, Jr., Judge.

In our original opinion, we found that the defendants/appellants had untimely appealed the trial court's decision. In their application for rehearing, which is incorrectly described by counsel as an application for "reconsideration," Patin Group, asserts that they did appeal timely because the notice of judgment sent to them by the minute clerk of Judge Paulette R. Irons is dated 3 May 2012, a Thursday, yet the envelope in which the notice was mailed bears a postmarked date of 7 May 2012, a Monday. Upon receipt of Patin Group's application, we directed an order to the parties to document and explain with affidavits and/or depositions their assertions.

Affidavits of Rosalind E. Lobrano, a paralegal to Jonathan Andry, Esq. ("Andry") and Kailey L. LeBeouf, Esq., an attorney for Patin Group, were submitted. Ms. Lobrano asserts in her affidavit that she opened the letter with the notice of judgment on 8 May 2012, the date the letter was received, and date stamped the envelope in which the notice was enclosed to reflect the date it was received. However, no copy of the envelope with the date stamp of the receipt has been furnished to this court. Ms. LeBeouf asserts in her affidavit that on 10 April 2013 she met with Kelly Brossette, the minute clerk of Judge Irons, requesting her to sign an affidavit attesting to the policy by which judgments rendered by Judge Irons are mailed. Ms. Brossette refused to sign an affidavit. Ms. LeBeouf further asserts she met with the deputy clerk of court for Judge Irons in the clerk of court's office requesting that the clerk sign an affidavit attesting to the policy by which judgments rendered by Judge Irons are mailed; that unidentified deputy clerk also refused to sign an affidavit.

By law, a minute clerk of a judge of the Civil District Court is appointed by the judge for whom he or she will work and is a deputy clerk of the Civil District Court for all purposes. La. R.S. 13:1211; 12:1136 F. La. C.C.P. art. 256 states:

And La. R.S. 13:1 states:

The failure of a minute clerk to accurately and precisely perform his or her duties is misfeasance per se and may, under certain circumstances, be malfeasance and/or subject the clerk and court to claims of damages.

The failure of a minute clerk to correctly state the date of the actual mailing of a notice of judgment as required by La. C.C.P. art. 1914 D is misfeasance, because section D states "The clerk shall file a certificate in the record showing the date on which, and the counsel and parties to whom, notice of the signing of judgment was mailed."

We take judicial notice of the fact the second weekend of the New Orleans Jazz and Heritage Festival, an extremely popular and well-attended New Orleans cultural event, occurred on 3-6 May 2012. Although lacking any evidence in the record before us precisely, it is certainly possible that employees of the Civil District Court may have departed the courthouse in haste on 3 May 2012 and delayed the actual mailing of the notice of judgment in this case until Monday, 7 May 2012, not realizing the harm that such inaccuracy of the date stated in the notice of judgment could create.

Appeals are favored in the law. We find that it is more likely than not that the notice of judgment in this case bears the incorrect date of 3 May 2012 and should have borne the date of 7 May 2012. We find that it is more likely than not that the notice of judgment was actually mailed on 7 May 2012. Accordingly, Patin Group's appeal of the judgment in this case is timely and we have jurisdiction in this matter. Accordingly, we vacate our earlier holding dismissing the appeal of Patin Group as untimely and proceed to address the merits of Patin Group's appeal.

We reaffirm our statement of facts as contained in our original opinion of 27 March 2013.

On appeal, Patin Group asserts that the trial court erred by enforcing the agreement they entered into with SML because the agreement was merely an accessory obligation, a guaranty, and therefore a contract of suretyship, to the 27 February 2002 judgment which was extinguished when the judgment prescribed on 27 February 2012 having not been timely revived. See La. C.C. arts. 1973, 3035, 3059, and 3060. We disagree.

We find that a meeting of the minds occurred between the parties and a new agreement independent of the laws of suretyship was formed whereby Patin Group became bound to pay the full indebtedness of Cedric to SML if Cedric did not pay as agreed.

As SML (the judgment creditor) closed in on successful collection efforts respecting their 27 February 2002 judgment by virtue of garnishment of Cedric's compensation as an employee of Patin Group, Andry filed as counsel of record for Patin Group on 20 April 2009 the "Garnishee's Answers to Interrogatories."1 This was done in an apparent effort to protect Patin Group from being cast in judgment for Cedric's and P R Contractor Inc.'s ("PRC") debt to SML commemorated by the 2002 judgment. Thereafter, Andry never filed a motion to withdraw as counsel of record for Patin Group; ergo, his legal representation of Patin Group continued throughout these proceedings and remains in effect today. An agreement was reached shortly before the proceedings in open court on 15 December 2011 as to how Cedric would pay a portion of the judgment in lieu of the principal amount, accrued judicial interest, and costs. Andry apparently negotiated with SML's counsel on behalf of Patin Group.

At the 15 December 2011 hearing in open court, Cedric, Andry, and counsel SML were present. Andry clearly represented Patin Group thereat by virtue of his previous enrollment as counsel for that entity. Cedric represented himself. Jeffrey Prattini, Esq., represented SML. A compromise in strict conformity with La. C.C. art. 3071 was read into the record.2 Andry was holding Cedric's first installment payment pursuant to the agreement in his attorney's trust/escrow account that day. Andry makes a statement at that hearing that "I hope to be appearing as a friend of the Court and the parties trying to resolve the case. . . ." That statement, however, does not permit Andry to argue that he appeared in court that day not formally representing anyone; he appeared before the trial court as counsel and mandatary for Patin Group by virtue his formal appearance as counsel of record never withdrawn.3 See Rule 1.16, Louisiana Rules of Professional Conduct.

On 30 January 2012, Andry filed a "Motion to Enforce Settlement" wherein he represented that he was now counsel of record for PRC and Cedric Patin," appearing in the proceedings to enforce the agreement (compromise) dictated into the record on 15 December 2011. Andry continued to represent Cedric and PRC and continues to represent them in these proceedings today. Andry thereafter filed pleadings on behalf of Cedric and PRC ("Defendants")4 and appeared in open court on their behalf.

When Cedric failed to pay strictly in accordance with the agreement as dictated on 15 December 2012, SML had the right to enforce the dictated agreement. The trial court did not err as a matter of law or fact in rendering its judgment; the trial court judgment is not manifestly erroneous or clearly wrong. Patin Group is now liable for the full amounts owed by Cedric. We affirm the trial court's judgment of 3 May 2012 as it confirmed the settlement dictated in open court on 15 December 2011.

As we noted in our original opinion, the trial court never rendered a judgment on that part of SML's motion to enforce the agreement wherein SML sought a money judgment against Patin Group.5 A remand for further proceedings is in order to do so.

REHEARING GRANTED; JUDGMENT AFFIRMED; REMANDED.

BAGNERIS, J., DISSENTS.

I respectfully dissent. Based upon my review of the record, there was no meeting of the minds between Joseph C. Patin, in his capacity as managing partner of the Patin Group, and SML to form a contract.

Under Louisiana law, four elements are necessary to form a valid contract. They include: 1) the parties must have the capacity to contract; 2) the parties must freely give their mutual consent to the contract; 3) the parties must have a cause or reason for obligating themselves; and 4) the contract must have a lawful purpose. See La. C.C. arts. 1918, 1927, 1966, 1971, 2029.

The second element-mutual consent — is outlined in La. C.C. art. 1927 which provides in part that:

Clearly, the Patin Group, Cedric Patin, and SML now dispute the purpose, intent, and obligations created by the guaranty agreement. This dispute alone raises questions as to whether or not the parties had a meeting of the minds. However, of greater import is that I find the evidence fails to establish that the Patin Group, the party compelled to make the payments under the Motion to Enforce Guaranty, consented to the contract, either orally, in writing, or by its actions.

Neither Joseph C. Patin nor any other representative of the Patin Group signed the Guaranty Agreement. Joseph C. Patin was not present in court when the terms of the agreement were read and offered into the record. Although the majority notes that Attorney Andry was still, as a matter of law, enrolled as counsel of record for the Patin Group at the time the agreement was read into the record, Attorney Andry represented in open court that he was not acting in his capacity as attorney for the Patin Group or Cedric, but rather as a "friend" of the parties and the Court. Based on this representation and the potential conflict of interest between Cedric Patin and the Patin Group, in that the terms of the agreement created substantial obligations on the Patin Group in the event of Cedric's default, I do not think this Court can say, as a matter of fact, that the Patin Group had the benefit of counsel. The record is simply devoid of any direct evidence that the Patin Group actually consulted with counsel or that any representative of the Patin Group read, understood, or agreed to the contract terms. Instead, the record suggests that Cedric Patin was the only party with whom SML conferred with concerning the terms of the guaranty agreement; and Cedric Patin was the only party who represented in open court that he understood the agreement.

Consent of the parties is necessary to form a valid contract. Where there is no meeting of the minds between the parties, a contract is void for lack of consent. Philips v. Berner, 2000-0103, p. 5 (La. App. 4 Cir. 5/16/01), 789 So.2d 41, 45. Based on the record before me, I do not find that a meeting of the minds existed between the Patin Group and SML to form an enforceable contract.

For the foregoing reasons, I conclude the trial court erred in granting SML's Motion to Enforce Guaranty, and therefore, I would reverse the judgment.

LOBRANO, J., CONCURS IN THE RESULT.