author: | JOAN BERNARD ARMSTRONG, Judge.

text:
    Carolyn COFFEY v. Rannie MUSHATT, III, City of New Orleans, Clayton J. Toups, Darnell Newman, Independent Fire Insurance Company and XYZ Insurance Company.
    No. 2003-CA-0232.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 1, 2003.

      George A. Blair, III, New Orleans, LA, for Plaintiff/Appellee.
    Edward E. Reynolds, Deputy City Attorney, Albert A. Thibodeaux, Chief Deputy City Attorney, Charles L. Rice, Jr., City Attorney, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge DAVID S. GORBATY and Judge EDWIN A. LOMBARD).
   | JOAN BERNARD ARMSTRONG, Judge.

Defendant/appellant, the City of New Orleans, seeks review of the trial court’s judgment finding that its employee was solely at fault for the automobile accident in which plaintiff alleges she was injured.

The plaintiff, Carolyn Coffey, initiated the present action seeking damages for the injuries she allegedly sustained in an automobile accident on December 6,1994. The plaintiff was the driver of a vehicle that was struck by a New Orleans police vehicle driven by New Orleans Police Officer Rannie Mushatt. First, Officer Mushatt was struck by a motorcycle driven by Darnell Newman, who disregarded a stop sign at the intersection of Benefit and Alvar Streets. Then, the officer, who was in the right lane, swerved into the left lane and struck the plaintiffs vehicle, pushing her vehicle onto the median. Named as defendants were the City of New Orleans, Officer Mushatt’s employer; Officer Mushatt; Newman; Clayton Toups, the owner of the motorcycle driven by Newman; and Independent Fire Insurance Company, the plaintiffs uninsured motorist carrier. The appellate record does not indicate whether service of citation was obtained on Officer Mushatt, Newman or Toups. The City of New Orleans and Independent Fire Insurance Company both answered the suit. The plaintiff dismissed | ^Independent Fire Insurance Company from the action on February 6, 1997. Thereafter, a bench trial was held on the plaintiffs claims against the City of New Orleans on December 6, 1999 The City argued that Officer Mushatt was presented with a sudden emergency and thus, was not responsible for the plaintiffs damages. The trial court held the matter open for additional evidence and rendered a written judgment on March 21, 2001. The trial court concluded that Officer Mushatt was solely at fault in causing the plaintiffs claims and awarded the plaintiff damages in the amount of $29,899.00 against the City of New Orleans.

The trial court noted in its written reasons for judgment:

This matter arose on December 6, 1994, on Alvar Street near its intersection with Benefit Street. Plaintiff, Carolyn Coffey, was traveling on Alvar Street in the left lane when she was stuck (sic) by the vehicle operated by Rannie Mushatt, III, while in his capacity as a New Orleans Police Department officer.
There were two witnesses to the incident, the plaintiff and Rannie Mushatt. Officer George Campbell of the New Orleans Police Department was the investigating officer who took statements from the parties and all witnesses. According to the report taken by Officer Campbell, Officer Mushatt said that a motorcycle disregarded a stop sign and struck the vehicle he was operating and that he swerved to avoid the motorcycle and struck Mrs. Coffey’s vehicle, forcing her into the median. If this were the circumstances, Officer Mushatt’s claim of sudden emergency might be allowed. However at trial, Officer Mushatt stated that he did not make the statement contained in the police report.
Additionally, in his deposition, Officer Mushatt testified that he did not see the motorcycle until after the accident and that he did not see the motorcycle coming. Having testified that he did not see the motorcycle prior to the accident and did not see the motorcycle until after the accident, the officer cannot avail himself of the sudden emergency doctrine.
Officer Mushatt further stated that he did not see Ms. Coffey’s vehicle until the time of impact. Mrs. Coffey’s vehicle was to the left and parallel to the officer’s vehicle. Officer Mushatt testified that there were no obstructions or impediments to his view.
The accident, which occurred on a dry, clear sunny day, was caused by Officer Mushatt’s negligence and failure to exercise due | «diligence, and the officer is solely at fault in this matter. Further, Officer Mushatt’s testimony is contradictory. Mrs. Coffey’s version of the accident has never changed.

The appellant contends that the trial court erred in concluding that Officer Mushatt was solely at fault for the plaintiffs injuries. The appellant argues that the trial court erred in finding that Officer Mushatt was the proximate cause of the plaintiffs injuries, that the sudden emergency doctrine was not applicable, and that Officer Mushatt’s actions were not evasive. The trial court concluded that Officer Mushatt was negligent as he failed to maintain a proper lookout. The trial court specifically noted Officer Mushatt’s testimony at trial and in his deposition that he did not see the motorcycle or the plaintiffs vehicle prior to the accident. The police report indicates that the plaintiff was traveling parallel to Officer Mushatt in the left lane. The plaintiff testified in her deposition that she saw the motorcycle coming from Benefit Street immediately prior to the accident.

In Mistich v. Volkswagen of Germany, Inc., 95-0939, pp. 4-5, (La.1/29/96), 666 So.2d 1073, 1077, the Louisiana Supreme Court stated as follows:

It is a well settled principle that an appellate court may not set aside a trial court’s finding of fact unless it is clearly wrong. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell v. ESCO, 549 So.2d 840 (La.1989); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly wrong. Rosell, supra at 845; Watson v. State Farm Fire & Casualty Ins. Co., 469 So.2d 967 (La.1985); Arceneaux, supra at 1333. Where the factfinder’s conclusions are based on determinations regarding credibility of the|4witnesses, the manifest error standard demands great deference to the trier of fact, because only the trier of fact 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. Rosell, supra at 844. The reviewing court must always keep in mind that if a trier of fact’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even if convinced that if it had been sitting as trier of fact, it would have weighed the evidence differently. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993); Housley v. Cerise, 579 So.2d 973 (La.1991); Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106 (La.1990).

In the instant case, the trial court specifically determined that the sudden emergency doctrine was not applicable to the City as a possible defense. Under this doctrine, a driver without sufficient time to weigh all the circumstances and whose actions did not contribute to the emergency cannot be assessed with negligence even though a subsequent review of the facts discloses he may have adopted a safer, more prudent course of conduct to avoid an impending accident. Jackson v. Town of Grambling, 29,198, 29,199 (La.App. 2 Cir. 2/26/97), 690 So.2d 942. If the driver is shown to have proceeded carefully and prudently, the emergency will not be seen as arising from his or her own negligence. Marigny v. Allstate Ins. Co., 95-0952 (La.App. 4 Cir. 1/31/96), 667 So.2d 1229. In order to use the sudden emergency doctrine, the driver must have seen the accident beginning to occur and taken some type of action.

Officer Mushatt testified in his deposition and at trial that he did not see the motorcycle or the plaintiffs vehicle prior to the accident. As Officer Mushatt did not see the motorcyclist disregard the stop sign, he was not aware of the sudden emergency. Further, a driver has a duty to see what should be seen and to exercise | ¿reasonable care under the circumstances. Arceneaux v. Wallis, 94-2016 (La.App. 4 Cir. 4/26/95), 654 So.2d 1117. Here, the plaintiff stated in her deposition that she saw the motorcycle prior to the accident and that she was driving parallel to the police vehicle immediately prior to the accident. Such evidence was sufficient for the trial court to conclude that Officer Mushatt was not maintaining a proper lookout at the time of the accident. Thus, the trial court correctly determined that the sudden emergency doctrine was not available to Officer Mushatt.

Likewise, Officer Mushatt’s failure to see the motorcyclist prior to accident supports the trial court’s determination that Officer Mushatt’s actions in hitting the plaintiffs vehicle were not evasive. The testimony at trial and in the depositions reveals that Officer Mushatt struck the plaintiffs vehicle after the motorcyclist struck the police vehicle. Officer Mush-att’s actions were not an attempt to avoid an accident with the motorcyclist.

Officer Mushatt also argues that the trial court erred in finding that he was the proximate cause of the plaintiffs injuries. Cause-in-fact is generally a but for inquiry. If the plaintiff probably would not have been injured but for the defendant’s substandard conduct, such conduct is a cause-in-fact. The inquiry is whether the defendant contributed to the plaintiffs harm. To the extent that the defendant’s actions had something to do with the injury the plaintiff sustained, the test of a factual, causal relationship is met. Williams v. Dean, 96-1481, 96-1482, 96-1483 (La.App. 1 Cir. 5/9/97), 694 So.2d 1195. In the present case, the trial court determined that Officer Mushatt was negligent in failing to keep a proper lookout. Had Officer Mushatt kept a proper lookout, he would have seen the plaintiffs vehicle in the left lane. However, the evidence supports a finding that Officer Mushatt did not see the plaintiffs vehicle and swerved into her vehicle. As |fia result of his negligence, the plaintiff suffered bodily injury and damages to her vehicle. The trial court correctly found that Officer Mushatt’s negligence was the proximate cause of the plaintiffs injuries. As such, judgment against the appellant, as Officer Mushatt’s employer, was correct.

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

      . The judgment rendered on March 21, 2001, states that the trial took place on September 8, 1999. However, the trial transcript indicates that the trial took place on December 6, 1999.


source: Caselaw Access Project

author: hMAX N. TOBIAS, JR., Judge.

license: Public Domain

text:
    Succession of Cyprian A. SPORL, Jr.
    No. 2003-CA-1084.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 1, 2003.
    David J. Conroy, Charles A. Snyder, Richard A. Whann, Milling Benson Woodward L.L.P., New Orleans, LA, for Virginia Pierce Sporl, Testamentary Co-Executor of the Succession of Cyprian A. Sporl, Jr., Appellants.
    Maunsel W. Hickey, Hickey & Riess, L.L.C., New Orleans, LA, Testamentary Co-Executor of the Succession of Cyprian A. Sporl, Jr., Appellant.
    J. Marc Vezina, Kelli M. Khalaf, Kathi Vernaci Logan, Vezina and Gattuso, L.L.C., Gretna, LA, for Harold D. Sporl, Jr., Appellee.
    (Court composed of Chief Judge WILLIAM H. BYRNES, III, Judge MAX N. TOBIAS, JR., and Judge LEON A. CANNIZZARO, JR).
   hMAX N. TOBIAS, JR., Judge.

Virginia Pierce Sporl and Maunsel W. Hickey, testamentary co-executors of the Succession of Cyprian A. Sporl, Jr., seek appellate review of a trial court judgment refusing to homologate a proposed tableau of distribution and for authority to redeem shares of stock. For the following reasons, we affirm.

Cyprian A. Sporl, Jr. (the “decedent”) departed this life on 31 March 1999. He died testate, leaving a testament in statutory form, a codicil in statutory form, and four olographic codicils (collectively hereinafter referred to as the “testament”). The testament named Virginia Pierce Sporl (“Virginia”), the decedent’s wife and now widow, Maunsel W. Hickey (“Maunsel”), and Harold D. Sporl, Jr. (“Harold”) as co-executors of the succession to serve without bond. The co-executors qualified as co-executors and letters testamentary were issued to them on 19 April 1999.

Among the assets of the succession, as shown by the sworn descriptive list, were 45,934 shares of stock of The Sporl Company (hereinafter, the “company”), a close corporation of which the decedent was the majority shareholder prior to his |gdeath. Harold was left a particular legacy of 1,700 shares of the company, and on 8 March 2000, on the joint petition of the co-executors, Harold was placed in possession of the 1,700 shares. After Harold obtained these shares, the decedent’s succession was no longer a majority shareholder of the company. We note that the petition for partial possession of these 1,700 shares alleges that the stock of the company had a value of $62.5785 per share. Thereafter, on 12 December 2000, Harold resigned as a co-executor.

On 13 February 2003, the co-executors filed a sworn descriptive list of succession assets showing estate assets totaling $3,857,178.00. Except for various provisional accountings filed by the succession representatives that list some debts and allege that the succession is solvent, the record fails to disclose the total debts of the succession. Of course, the proposed tableau at issue alleges additional debts of the succession that need to be paid.

In pertinent part, the decedent’s last will and testament as amended by a codicil dated 27 January 1998 reads as follows:

III.
I bequeath to Sandra Lee Ferrel the naked ownership of the balance of my estate, other than stock of the Sporl Company, subject to usufruct for life in favor of my wife, Virginia Pierce Sporl, who shall have the right to dispose of nonconsumable property and replace it with such property as she see fit, to be subject to the provisions of law applicable thereto.
:¡; ij;
IV.
The bequests stated in above paragraph III shall be free of all estate and inheritance taxes also; all death 13taxes, including those due by the estate of my wife by reason of election of the marital deduction by my estate, and all funeral and administrative expenses shall be borne by the hereinbelow bequest.
I bequeath the balance of my estate that is, my stock of The Sporl Company, in trust subject to the following provisions:
* * *
C. My wife, Virginia Pierce Sporl (and then her estate), shall be income beneficiary of and shall be entitled to the income produced by the trust property during her lifetime, including income accrued at her death, to be distributed at least monthly. The trustees may invade and distribute principal to the income beneficiary at such times and in such amounts as the trustees, in their sole discretion, deem necessary for the health, maintenance, support and welfare of the income beneficiary in accordance with the beneficiary’s accustomed standard of living at the time of my death.

Virginia is the second wife of the decedent. The decedent’s assets are his separate property and the stock of the company is his separate property. The decedent’s testament contains the following provision relating to the trustees of the trust:

The trustees shall be Virginia Pierce Sporl, Harold D. Sporl, Jr., and Edward F. Sporl, Jr., jointly, to serve without fee. In the event of the incapacity or refusal of Harold D. Sporl, Jr., I name Henry Schonberg and Patricia Sporl Schonberg, jointly, in his place, in like manner. Otherwise, if any trustee cannot serve for any reason and only one trustee remain, the successor trustee shall be selected in each instance by the surviving trustee, to serve without fee if a legatee under this Will....

Codicils to the testament changed the trustees to name Henry Schonberg, in place of Edward F. Sporl, Jr. as a trustee, and to provide that “in the event that Virginia |4Pierce Sporl be unable or unwilling to serve as trustee, then Sandra Ferrel shall serve in her place,.... ”

For many years, the company paid a dividend to its shareholders. From 1983 through 1998, these annual dividends ranged from a high of $5.40 per share to a low of $4.00 per share, but most frequently (and in the later years) $4.50 per share. In 1999, the company paid a dividend of $3.50 per share. In January 2000, the company paid a dividend of fifty cents per share. Since that date, no dividend has been paid. We note that the cessation of dividends coincides with Harold’s obtaining of the 1,700 shares in the company.

It is alleged that the decedent and Virginia obtained most of the funds that they lived on from the dividends of the company. Additionally, it is alleged that Virginia’s health has declined and that she has a need for funds to pay the expenses related thereto.

On 18 February 2003, the co-executors filed a proposed tableau of distribution listing debts that needed to be paid and seeking authority to have the company redeem the stock of the decedent in the company or for authority to sell the stock at private sale. Harold, as a trustee-to-be of the trust established by the decedent’s will, objected. A hearing was held on the matter on 14 March 2003, and on 26 March 2003, the trial court issued a judgment refusing to homologate the tableau or to authorize the redemption of the stock in the company. The judgment is silent with respect to the co-executors’ request to sell the stock of the company at private sale.

|sThe record on appeal contains no transcript of the 14 March 2003 hearing and this court has no evidence as to what evidence, if any, was heard by the trial court. The trial court issued no reasons for the judgment.

From the 26 March 2003 judgment, the co-executors timely sought supervisory writs and obtained an order for a devolu-tive appeal. In both writ and appeal, the co-executors assign as error that the trial court erred in interpreting the decedent’s will, “which provides ‘and all funeral and administrative expenses shall be borne by the hereinbelow bequest’ to mean they should be paid by the trust created by decedent’s will rather than the stock of The Sporl Company which is the bequest to the Trust. [Emphasis in original.]”

We are aware of certain ambiguities in the jurisprudence relating to whether a devolutive appeal lies from the refusal of a court to homologate a tableau of distribution. La. C.C.P. art. 3308 directs that only a suspensive appeal is permitted from the order homologating a tableau; the article is silent as to whether a devolutive appeal lies from a denial of the order of homolo-gation.

We conclude that no devolutive appeal lies from the denial of an order to homologate a tableau of distribution because the order is interlocutory in nature. That is, nothing prevents the succession representative from filing a new proposed tableau of distribution asserting the same matters as addressed in an earlier tableau the homologation of which was declined. The code is logical in this regard. Because an order homologating a tableau authorizes the distribution of succession assets, a person opposing the distribution would want to be sure that the assets remain in the hands of the succession representative pending appellate review; assets once distributed are difficult to recover. However, the denial of an order of homologation changes nothing; the assets remain in the possession of the | fisuccession representative until the court authorizes their distribution. Further, a succession representative could unduly delay the closing of a succession, as mandated by La. C.C.P. art. 3197, by filing multiple tableaus of distribution, losing the trials of the motions to homologate, and then devolutively appealing the denials of the orders of homologation; in such circumstances, the succession representative could claim that he or she could not close the succession because an appeal was pending on the order denying the homologation.

The Code of Civil Procedure and relevant jurisprudence support our interpretation. Pursuant to La. C.C.P. art. 1841, a judgment that does not determine the merits, but only preliminary matters in the course of the action, is an interlocutory judgment, whereas a judgment that determines the merits in whole or in part is a final judgment. The judgment at issue in this case did not determine any of the merits; it only refused to homologate a proposed tableau of distribution and authority to redeem shares of stock. Nothing prevents the co-executors from filing a subsequent motion on the same issues.

We also find support in the Supreme Court case of Succession of Daste, 254 La. 403, 223 So.2d 848 (1969). There, in the process of administering the estate, the testamentary executor filed a “Petition for Homologation of Final Tableau of Distribution” to which he attached a “Final Tableau of Distribution.” The widow opposed the tableau, setting forth numerous objections. The trial court rendered a “formal” judgment, in which certain matters were “ordered, adjudged, and decreed.” In addition, the court ordered the executor to file an amended tableau of distribution in accordance with the judgment and the law.

A motion for a suspensive and/or devolu-tive appeal from the judgment was filed by the widow and granted by the Court. Because the suspensive appeal bond|7was not timely filed, the appeal was perfected as a devolutive appeal. Motions to dismiss, predicated on the authority of La. C.C.P. art. 3308, were filed.

The Supreme Court stated as follows:

The Fourth Circuit found that a sus-pensive appeal had not been perfected, the appeal bond not having been filed within fifteen days. The Court, however, correctly recognized that a valid devolu-tive appeal had been perfected, but erroneously concluded that the widow was only entitled to a suspensive appeal at that stage of the proceedings and dismissed the appeal. Although there is dicta which indicates that the Court of Appeal construed the judgment of the trial court to be interlocutory and not appealable, we are convinced that the court of appeal judgment was actually based upon the theory that the July 6, 1966 judgment of the trial court was a judgment homologating the tableau of distribution from which only a suspen-sive appeal was permissible under the mandate of Article 3808 of the Code of Civil Procedure. If the Court of Appeal had adopted either of the two alternatives to this result, it should have either dismissed the appeal as an unappealable interlocutory decree or it should have considered the merits of the issues presented by the valid devolutive appeal. The result the Court of Appeal did reach could only be reached if the judgment appealed from was considered a judgment homologating a final tableau of distribution, for only in that instance is a suspensive appeal mandatory.
We find the Court of Appeal improperly dismissed the widow’s appeal because the trial court judgment of July 6, 1966 was neither an interlocutory judgment nor a judgment homologating the tableau of distribution. It was, instead, a final judgment adjudicating substantially all of the controverted issues in the succession on the merits.
The trial court judgment of July 6, 1966 was not a judgment homologating a tableau of distribution, as contemplated in Article 3308 of the Code of Civil Procedure, because it neither ordered, adjudged nor decreed that the tableau be approved or homologated. To the contrary, the judgment ordered the testamentary executor to “file an Amended Final Tableau of Distribution in accordance with this judgment and in accordance with law.” Moreover, the judgment did not pass upon some of the issues presented by the tableau, | sand it adjudicated issues presented by pleadings other than the petition to homolo-gate the tableau. In other words, the judgment decided some controverted questions presented by the tableau and other questions at issue by the pleadings, and, since these adjudications would after the computations and distribution proposed by the tableau, the judgment ordered the filing of an amended tableau as an alternative to the homologation.
When we decide that the trial court judgment of July 6, 1966 was a final judgment, other than a judgment homol-ogating a tableau of distribution, we, of course, deny the validity of the dicta in the opinion of the Fourth Circuit (195 So.2d 292) to the effect that the July 6, 1966 judgment was interlocutory and non-appealable. In deciding that the judgment of July 6, 1966 was a final judgment, we decide also that a devolu-tive appeal could be taken from that judgment and it was not necessary to perfect a suspensive appeal as required in the case of a judgment homologating a tableau. See La. Code Civ. P. art. 3308 (1961).
The trial court judgment of July 6, 1966 was final primarily because it “Ordered, Adjudged and Decreed” the rights of the parties on the merits on substantially all of the principal questions in controversy concerning which nothing remained to be done except to incorporate these decisions in an amended tableau to be submitted for homolo-gation. In addition, the judgment decreed a purported codicil ineffective, for it lacked dispositive language; it fixed the widow’s status as residuary legatee and her liability for the succession debts and her ownership of certain stock, funds and other movables; it fixed the entitlement to rents and dividends among the legatees, the compensation of the executor and disposed of claims for enhancement of decedent’s separate estate by the community; and the judgment decreed that the widow was not a widow in necessitous circumstances.
All of these questions were resolved after protracted hearings involving the taking of testimony and the reception of other evidence. The processes of the law which are preludes to final judgments were fully observed. We have belabored this opinion with a detailed recitation of the substance of the oppositions and the judgment of July 6,1966 to point out the basis for our finding that the issues involved trenched upon the merits of the cause.
| gIt may be that the judgment was not a final judgment in the sense that it was the last judgment to be rendered in the case, but it did determine “the merits in whole or in part.” La.Code Civ. P. art. 1841 (1961). And, therefore, it is not an interlocutory judgment which “does not determine the merits but only preliminary matters in the course of the action.” La.Code Civ. P. art. 1841 (1961).
We have relied to a great extent in this decision upon the authority of Oliphint v. Oliphint, 219 La. 781, 54 So.2d 18 (1951); Garland v. Dimitry, 164 La. 875, 114 So. 718 (1927) and Cary v. Richardson, 35 La.Ann. 505 (1883), for we are unaware of any provision of the new Code of Civil Procedure which would nullify the applicability of the reasons and conclusions announced in these cases decided prior to the promulgation of the Code.

Id. at 410-14, 223 So.2d at 851-52.

In the instant matter, the judgment rendered below did not dispose of any of the disputed matters between the parties. In other words, it is not a final judgment as defined by the Code of Civil Procedure and, therefore, no appeal can be taken whether suspensive or devolutive. We, however, understand that the co-executors wished to preserve the issue for review by this court of the 26 March 2003 judgment. They have done so by the timely filing a notice of intent to seeking supervisory writs. Accordingly, we grant the co-executors application for supervisory writs and vacate the order for devolutive appeal entered by the trial court on 8 May 2003. We now proceed to address the remainder of the co-executors’ claims.

The record on appeal contains both the co-executors’ allegations relating to the debts that should be paid and Harold’s objections thereto. We have no evidence in the record on appeal that supports the co-executors’ claims that the disputed debts exist or are owed by the succession. Allegations contained in the |intableau are not evidence. We also note that Harold’s opposition to the homologation filed in the record evidences no objection to the payment of debt items 6, 7, and 10, totaling $32,966.00. We further note that the tableau reflects sufficient funds to cover these items. However, without a record of the proceedings before the trial court on 14 March 2003, this court is unable to find an abuse of discretion by the court below. Accordingly, we do not find the trial court’s judgment refusing to grant the order homologating the tableau for the payment of the debts to be manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). However, refusing to grant an order permitting the co-executors authority to redeem or sell at private sale the stock in the company presents a slightly different issue.

It is apparently undisputed that the articles of incorporation of the company, relative to transfer of shares of stock in the company, provide in pertinent part:

(a) No transfer of shares from the name of the holder thereof registered on the corporation’s books shall be made, until the shares shall first have been offered for sale to the corporation and its shareholders at their adjusted book value (as defined hereinafter).... In the event of death of a registered shareholder of this corporation, such shareholder’s stock shall pass as provided by law, except for such of the decedent’s holdings of stock of the corporation as may have, by separate agreement between the decedent and the corporation, been made subject to the provisions of this section. As stock passing by death shall thereafter be subject to the restrictions imposed by this section.
(b) [Adjusted book value is defined at this point.]
(c) Any offer made under paragraph (a) of this section shall be made by registered mail addressed to the board of directors of the corporation at its registered office, as agent of the corporation and its other shareholders. Upon Inreceipt of any such offer, or upon occurrence of any event giving rise to an option in favor of this corporation and its shareholders under paragraph (a) of this section, the board of directors of the corporation shall meet and decide promptly whether the corporation should accept the offer or exercise the option as the case may be. If it is decided that the corporation is able to or should do so, none of the shareholders shall be entitled to the benefit of the offer or option. If it is decided that the corporation should or may not do so for any reason, or that only a part of such shares should or may be purchased by the corporation, the corporation shall notify the other shareholders by certified mail of the availability of such shares, and shall request in such notice that each signify in writing within ten days from the date of receipt, the number of available shares which he agrees to purchase. If one or more of such other shareholders, within such period, advises the corporation of his or their election to purchase all of the shares available to them, the shares shall be sold to him or them, in the latter case as nearly as possible in proportion to their holdings ....

It is further undisputed that the co-executors have notified the company of the decedent’s passing and that negotiations relating to the redemption of the decedent’s shares have occurred. We have no evidence in the record before us of any agreement with the company or anyone else regarding the purchase price of the shares.

The authority to seek the authority to sell the shares of the company stock rests with the co-executors. Moreover, the provisions of the decedent’s testament, as well as the law, clearly mandate that the stock be sold to pay debts of the succession and to maintain Virginia. Until such time as the trust is funded, the trustees have no duty or authority to pay succession debts. In fact, unless the trust specifically directs that succession debts be paid from the trust, the trustees may well breach a fiduciary duty paying a debt that is not that of the beneficiary, for a trustee’s duty is first to the beneficiary and secondarily to the settlor (trustor). See La. R.S. 9:2081 et seq.; La. C.C.P. art. 3191 et seq. In view of the company’s | ^failure to pay dividends to its shareholders that could be used by the co-executors to pay debts and maintain Virginia, the co-executor’s have the right, obligation, and duty to redeem and/or sell stock of the company to pay debts and maintain Virginia if inadequate funds are in their hands to do so.

However, there are certain issues that need to be resolved before redemption or sale may occur. In light of the restriction on the sale of stock contained in the articles of incorporation, a sale of the stock should not go forward until the requirements quoted above are fulfilled. Of course, without a copy of a stock certificate in the record, there is no evidence of a restriction on the sale of stock. See La. R.S. 12:57 F.

In addition, the company is a closely-held corporation. La. C.C.P. art. 3285 states:

A succession representative may sell bonds and shares of stock at private sale at rates prevailing in the open market, by obtaining a court order authorizing the sale. No advertisement is necessary, and the order authorizing the sale may be rendered upon the filing of the petition.
The endorsement of the succession representative and a certified copy of the court order authorizing the sale shall be sufficient warrant for the transfer.

Comment (b) to La. C.C.P. art. 3285 states:

(b) If such stocks or bonds do not have a value in the open market, the provisions of this Code for private sales of movables apply.

Thus, any sale of the stock in the company must be by private sale, but only after the co-executors attempt to redeem same in accordance with the articles of incorporation, if they are required to do so because the stock certificate in the company reflects that the transfer of the stock is restricted by the articles of incorporation.

|13In the absence of evidence, we therefore conclude that the trial court was neither manifestly erroneous nor clearly wrong in refusing to permit the co-executors to redeem the stock of the company or sell the decedent’s stock in the company.

For the foregoing reasons and in summary, we grant the co-executors’ application for supervisory writ, vacate the order of devolutive appeal, and affirm the trial court’s judgment.

WRIT GRANTED; APPEAL DISMISSED; AFFIRMED.

      . We are aware that the trust is created at the moment of death of the settlor (trustor). La. R.S. 9:1821. However, the assets are not immediately transferred to the trust at the moment of death. Rather, the assets must undergo administration in the succession proceeding to assure, inter alia, that the decedent’s debts and other charges are paid. See La. C.C. art. 935.

      . That is, we do not know if the parties submitted the matter on their briefs and the atlachments thereto, or whether the parties entered into a stipulation in open court.

      . We do not, however, direct that the company redeem the stock in accordance with the company’s articles of incorporation. That must be done by agreement or addressed in another proceeding. Nor do we address whether other shareholders of the company may or must buy the decedent's stock. We further do not address whether the co-executors may sell the stock at private sale to third persons other than shareholders of the company. If the co-executors desire to sell the stock to non-shareholder third persons, such must be done in accordance with the provisions of the sale of succession assets. La. C.C.P. art. 3281 et seq.


author: hTERRI F. LOVE, Judge. |,ARMSTRONG, J.,

text:
    The LICFRO, INC. v. The STATE of Louisiana, Through Its DEPARTMENT OF REVENUE, OFFICE OF ALCOHOL AND TOBACCO CONTROL.
    No. 2003-CA-0737.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 1, 2003.

      Celia R. Cangelosi, Baton Rouge, LA, for Defendant/Appellant.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge TERRI F. LOVE, Judge DAVID S. GORBATY).
   hTERRI F. LOVE, Judge.

The State of Louisiana, Office of Alcohol and Tobacco Control (“State”), appeals the granting of a preliminary injunction in favor of Licfro, Inc. For the reasons stated below, we reverse and remand.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

Licfro, Inc.’s permit to sell alcohol was revoked by appellant on September 3, 2002. That decision was appealed to the Civil District Court for the Parish of Orleans. In the appeal, Licfro, Inc. requested that the trial court issue a preliminary injunction, “enjoining the effect and implementation of the revocation and all future enforcement proceedings until such time as the trial de novo obtains.”

At trial, the trial court heard only oral argument, and no affidavits, exhibits or testimony were presented to the court. A judgment, which ordered the issuance of a preliminary injunction without bond, was granted. The State has timely appealed the granting of the preliminary injunction.

FIRST ASSIGNMENT OF ERROR

The State’s first assignment of error asserts that the trial court abused its discretion and committed manifest error by granting a preliminary injunction | ¡.without evidence. Specifically, appellant submits that La. C.C.P. art. 3609 requires proof to support the granting of a preliminary injunction, and provides in pertinent part:

The court may hear an application for a preliminary injunction or for the dissolution or modification of a temporary restraining order or a preliminary injunction upon the verified pleadings or supporting affidavits, or may take proof as in ordinary cases. If the application is to be heard upon affidavits, the court shall so order in writing, and a copy of the order shall be served upon the defendant at the time the notice of hearing is served.

The State contends that because the record contains no verified pleadings and no order allowing for hearing by affidavits, Licfro, Inc. was required to present proof as in an ordinary case. Kilbourne v. Hunt, 276 So.2d 742 (La.App. 1 Cir.1973). The State further points out that Licfro, Inc. offered no proof to support the granting of a preliminary injunction.

In defense of the State’s first assignment of error, Licfro, Inc. contends that adequate evidence was adduced during oral argument before the trial court. Licf-ro, Inc. also relies on the pleadings filed with the trial court, wherein Licfro, Inc. asserted:

The plaintiff will be irreparably harmed absent injunctive relief in that the forced and continued closure of plaintiffs business for a period of six months will result in the irreplaceable loss of plaintiffs legal non-conforming zoning. Additionally, plaintiff has suffered and will continue to suffer damages to its goodwill and reputation.

Moreover, Licfro, Inc. argues that the trial court took evidentiary and judicial recognition of the zoning ordinances of the City of New Orleans that provides for the loss of a legal non-conforming zoning use by the lapse of six |3months passage of non-use. Licfro, Inc. concedes there exists no transcript of the oral argument reflecting this discussion.

SECOND ASSIGNMENT OF ERROR

In the State’s second assignment of error, it is argued that the preliminary injunction is invalid and must be vacated as no bond was ordered or posted. The State submits that La. C.C.P. art. 3610 requires the posting of security for a preliminary injunction, providing as follows:

A temporary restraining order or preliminary injunction shall not issue unless the applicant furnished security in the amount fixed by the court, except where security is dispensed with by law. The security shall indemnify the person wrongfully restrained or enjoined for the payment of costs incurred and damages sustained.

With respect to the State’s second assignment of error, Licfro, Inc. contends that the failure of appellant to seek, and/or the failure of the trial court to order the posting of security should not he held against them. It is also the position of Licfro, Inc. that if this court is inclined to disturb the ruling of the trial court for the lack of a bond, the appropriate course of action would be to remand the matter to allow for the production of any necessary evidence and/or to permit the trial court to consider the appropriateness and/or amount of security. Licfro, Inc. cites Liberty Bank and Trust Co. v. Dapremont, 00-2146 (La.App. 4 Cir. 12/12/01), 803 So.2d 387, wherein, this court chose to remand, rather than vacate a preliminary injunction that was issued without bond. DISCUSSION

An injunction shall issue in cases where irreparable injury, loss, or damage may occur to the applicant. During the pendency of an action for injunction, the [¿court may issue a temporary restraining order, preliminary injunction or both. La. C.C.P. art. 3601. A preliminary injunction is an interlocutory procedural device designed to preserve the existing status pending a trial of the issues on the merits of the case. HCNO Services, Inc. v. Secure Computing Systems, 96-1693 (La.App. 4 Cir. 4/23/97), 693 So.2d 835; Federal Nat. Mortg. Ass’n v. O’Donnell, 446 So.2d 395, 398 (La.App. 5 Cir.1984).

To obtain a preliminary injunction, the applicant must show that the damage he will suffer may be irreparable if the injunction does not issue, that he is entitled to the relief sought, and must make a prima facie showing that he will prevail on the merits of the case. General Motors Acceptance Corporation v. Daniels, 377 So.2d 346 (La.1979); Burnham Broadcasting Company v. Williams, 629 So.2d 1335, 1338 (La.App. 4 Cir.1993).

The jurisprudence interpreting article 3601 establishes that, while the trial court has broad discretion in deciding whether to grant injunctive relief, injunction is an extraordinary remedy and should only issue where the party seeking it is threatened with irreparable loss without adequate remedy at law. Jim Walter Homes, Inc. v. Jessen, 98-1685 (La.App. 3 Cir. 3/31/99), 732 So.2d 699, 703; Oestreicher v. Hackett, 94-2573 (La.App. 4 Cir. 5/16/95), 660 So.2d 29, 31. Irreparable injury means the applicant cannot be adequately compensated in money damages for his injury or suffers injuries, which cannot be measured by pecuniary standards. Bagert v. Goldsmith, 504 So.2d 648, 651 (La.App. 4 Cir.1987); Terrebonne Parish Police Jury v. Matherne, 405 So.2d 314, 319 (La.1981).

-Regarding the proof that is required at a hearing on a preliminary injunction, the wording of article 3609 makes it clear that in the absence of a written order by the court that the matter will be heard on verified pleadings or supporting 15affidavits, which order must be served on the parties, proof will be as in ordinary-cases. Robinson v. Robinson, 94-2513 (La.App. 4 Cir. 9/15/95), 661 So.2d 1087;

In Kilbourne, the court found that where no order is issued by the trial judge, stating that the application for a preliminary injunction is to be heard on affidavits, the hearing must be on proof as in ordinary cases.

In the instant case, the record contains no documentation to support a finding that the judge issued an order that the injunction would be heard on affidavits. Further, we have determined from a review of the record that no evidence was introduced to support the allegations in the petition. Specifically, the record reveals that only an oral argument was presented at the hearing and it was not transcribed. From the limited record before us, we find that Licfro, Inc. failed to show irreparable injury and failed to make a prima facie showing that Licfro, Inc. would prevail on the merits of the case. Accordingly, we find that the trial court erred in granting the preliminary injunction.

As to the State’s second assignment of error, we also find that the trial judge erred in granting the application for preliminary injunction without requiring Licfro, Inc. to post security and that the judgment must also be reversed on that basis. La.C.C.P. art. 3610 states that a temporary restraining order or preliminary injunction shall not issue unless the applicant furnishes security in the amount fixed by the court, except where security is dispensed with by law. Cochran v. Crosby, 411 So.2d 654, 655 (La.App. 4 Cir. 1982). This court knows of no law dispensing with security under the facts of this case. Licfro, Inc. cited the Liberty Bank and Trust Co. case to support its contention that a remand of the case to the trial court with instructions that security must be furnished would better serve the interests of justice and judicial economy. However, the court in Liberty Bank | ¿found sufficient evidence to support the granting of a preliminary injunction. Hence, dissolving the preliminary injunction, which was granted without a bond, would not have been feasible. A remand to the trial court to consider security was appropriate in that particular situation. By contrast, the facts of the instant case do not support the granting of a preliminary injunction. As a result, the judgment granting the preliminary injunction must be reversed, because of the lack of factual support and its subsequent issuance without a bond.

For the reasons stated herein, we find that the trial court committed manifest error by granting a preliminary injunction without the requisite proof and without the requisite posting of security. The judgment is therefore reversed and this case is remanded for further proceedings.

REVERSED AND REMANDED.

ARMSTRONG, J., concurs in the result.

|,ARMSTRONG, J.,

concurs in the result.

I respectfully concur in the result reached in the majority opinion.


author: _[iBYRNES, Chief Judge. | [CANNIZZARO, J.,

text:
    STATE of Louisiana v. George KELLER.
    No. 2003-KA-0986.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 1, 2003.

      Eddie J. Jordan, Jr., District Attorney, Kristen Keller, Assistant District Attorney, New Orleans, Counsel for Plaintiff/Appellant.
    Court composed of Chief Judge WILLIAM H. BYRNES III, Judge MAX N. TOBIAS Jr., and Judge LEON A. CANNIZZARO Jr.
   CANNIZZARO, J., concurs with reasons.

_[iBYRNES, Chief Judge.

The State brings this appeal, arguing that the district court erred in granting the defendant’s motion to quash. Because we find that under the facts and circumstances of this case the defendant’s right to a speedy trial was not violated, we reverse the trial court’s decision.

On June 25, 2002, the State filed a bill of information in case number 431-208 charging George Keller with possession of marijuana, second offense, in violation of La. R.S. 40:966(D)(2). The defendant pleaded not guilty on July 8th. On July 31st all parties appeared for a hearing on the motions, but the court reset the hearing for August 9th. On that date the defendant did not appear, and the matter was reset for August 16th. The State requested and was granted a continuance on that date. The matter was reset for August 28th, and reset for September 13th by the court. At the hearing held on that day, the court found probable cause and denied the motion to suppress the evidence. Trial was set for November 6th, but the State was granted a continuance on that date, and trial was reset for November 25th. When the State asked for a continuance that day and the court denied it, the State entered a nolle prosequi.

pTwo days later, on November 27th, the case was reinstituted as case number 435-086. On December 11th at his arraignment, Mr. Keller announced that he would file a motion to quash the bill of information, and the defense attorney filed the motion on December 17th. After a hearing on January 10, 2003, the trial court granted the motion to quash.

At the hearing, defense counsel argued that when the State’s request for a continuance was denied, the State’s remedy was to take a writ to this Court. The judge then asked if the reason for the continuance was the fact that a police officer witness was missing, and the State affirmed that it was. The judge established that the officer had testified at the motion hearing, and that the State had not offered a stipulation as to what the officer’s testimony would be at trial, even though the defense had agreed to stipulate to the officer’s testimony. The State also acknowledged that it had not filed a written motion for a continuance. The judge then declared that the issue in this case was fairness and, after finding that the State had taken advantage of its position, granted the motion to quash the bill of information.

The facts of this case are unknown and irrelevant.

I,In its brief the State argues that the district court erred in granting the motion to quash because neither the defendant’s right to a speedy trial nor any of the time limitations in the Code of Criminal Procedure were violated. La.C.Cr.P. art. 61 provides that:

Subject to the supervision of the attorney general, as provided in Article 62, the district attorney has entire charge and control of every criminal prosecution instituted or pending in his district, and determines whom, when, and how he shall prosecute.

Additionally, under La.C.Cr.P. art. 691, the State has the right to dismiss an indictment without the consent of the court, and under La.C.Cr.P. art. 676, the State may reinstitute the charges within six months of dismissal. In this case, the State reinstituted the case two days after the dismissal. Furthermore, under La. C.Cr.P. art. 578 the State has two years after instigation of charges to bring a defendant to trial in a non-capital felony case. In this case the original bill of information was filed on June 25, 2002, and the motion to quash was granted on January 10, 2003, only six and one-half months later.

Recently, this Court considered the same issue in State v. Santiago, 2003-0693 (La.App. 4 Cir. 7/23/03), 853 So.2d 671, and stated:

In addition to the statutory right to a speedy trial recognized by La.C.Cr.P. art. 701(A), a defendant also has a fundamental, constitutional right to a speedy trial. In analyzing such a constitutional speedy trial violation claim, it is well-settled that the standard to be applied is the four factor test set forth in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); to wit: (1) the length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of his right to a speedy trial, and (4) the prejudice to the defendant. The initial factor, the length of the delay, is often referred to as the “triggering mechanism” because absent a “presumptively prejudicial” delay, further inquiry into the Barker factors is unnecessary. See State v. DeRouen, 96-0725, p. 3 (La.App. 4 Cir. 6/26/96), 678 So.2d 39, 40.
14As the State points out, it is well-settled that a defendant challenging the State’s dismissal and reinstitution of charges has the burden of showing a violation of his constitutional right to a speedy trial. State v. Henderson, 2000-511, p. 7 (La.App. 4 Cir. 12/13/00), 775 So.2d 1138, 1142.

Id., p. 3, 853 So.2d at 672.

Considering Mr. Keller’s right to a speedy trial under the first Barker factor, we note that the length of the delay was about six and one-half months from the time of the filing of the first case on June 25, 2002, to the granting of the motion to quash on January 10, 2003. In State v. Brady, 524 So.2d 1356 (La.App. 1 Cir. 1988), the First Circuit considered a case in which a defendant convicted of armed robbery argued that his right to a speedy trial had been violated by a delay of five months and three weeks. The court found that that length of time was not only not unreasonable but actually a minimal delay. Similarly, we find that in this case no “presumptively prejudicial” delay exists, and therefore further inquiry into the Barker factors is unnecessary. The defendant’s right to a speedy trial was not violated under a Barker v. Wingo analysis nor under the statutory time limitations imposed by the Louisiana Code of Criminal Procedure. La.C.Cr.P. arts. 576 & 578.

The underlying issue in this case is the State’s right to nolle prosequi a case and reinstitute it. The district court granted the motion to quash because of the unfairness to the defendant after the State gave itself a continuance.

Recently, in State v. Love, 2000-3347 (La.5/23/03), 847 So.2d 1198, the Louisiana Supreme Court considered whether a defendant’s right to a speedy trial had been violated, and the court emphasized that the facts and circumstances of each individual case determine the propriety of the motion to quash where the district attorney enters a nolle prosequi and then reinstitutes the charges. In Love, when the State’s request for a continuance was denied, the State immediately entered a nolle prosequi in open court, stating on the record the intention to recharge the defendant, which the State did some four months later. When the State reinstated charges, the defendant filed a motion to quash asserting his right to a speedy trial which was denied. This Court reversed, finding that the defendant’s right to a speedy trial had been violated. The Supreme Court granted writs and reversed this Court and reinstated the conviction and sentence of the trial court, finding that the defendant’s right to a speedy trial had not been violated. The court cautioned that:

When, as in this case, a trial judge denies a motion to quash, that decision should not be reversed in the absence of a clear abuse of the trial court’s discretion. Moreover, nothing in the record of this case indicates that the trial court’s actions can be attributed to his belief that he was constrained by this court’s ... decision [in State v. Alfred, 337 So.2d 1049 (La.1976)] to deny the motion to quash. In fact, Orleans Parish Criminal Court judges have often in the past decade granted motions to quash in cases like the present one, where the district attorney had nolle prossed, then reinstituted charges. See State v. Carter, 2002-1279 (La.App. 4 Cir. 1/29/03), 839 So.2d 390; State v. Larce, 2001-1992 (La.App. 4 Cir. 1/23/02), 807 So.2d 1080; State v. Henderson, 2000-0511 (La.App. 4 Cir. 12/13/00), 775 So.2d 1138; State v. Gray, 98-0347 (La.App. 4 Cir. 10/21/98), 766 So.2d 550; State v. Pham, 97-K-0459 (La.App. 4 Cir. 3/26/97), 692 So.2d 11; State v. DeRouen, 96-0725 (La.App. 4 Cir. 6/26/96), 678 So.2d 39; State v. Esteen, 95-1079 (La.App. 4 Cir. 4/3/96), 672 So.2d 1098, writ denied, 96-0979 (La.9/27/96), 679 So.2d 1359; State v. Firshing, 624 So.2d 921 (La.App. 4 Cir. 1993), writ denied, 93-2621 (La.2/25/94), 632 So.2d 760; State v. Leban, 611 So.2d 165 (La.App. 4 Cir.1993). These cases indicate that the judges of the Criminal District Court understand that a trial judge has the authority to grant a motion to quash when the circumstances of the individual case warrant such an action.
Moreover, close review of the above cases indicates that the judges of the Fourth Circuit Court of Appeal do not feel constrained by Alfred, as none of the above cases cite to Alfred. In fact, in the two most recent cases from that appellate court — Carter and Larce, the court has reversed trial court judgments granting motions to quash, purely on the basis of the plenary authority to nolle pros and reinstitute charges, given to the district attorney by La.Code of Crim. Proc. arts. 576 and 578. Prior to those two cases, the appellate court sometimes reversed trial court rulings granting motions to quash in cases involving a nolle pros and reinstitution, finding that the trial court abused its discretion in finding that the defendant’s right to speedy trial had been violated. See Gray, Pham, and DeRouen. At other times, the court of appeal has affirmed trial court rulings granting motions to quash in similar circumstances, as in Henderson, Firshing [], Esteen [], and Leban []. This court has been asked to review only two of the above cases — Firshing and Esteen. In both cases, this court denied applications to review appellate court judgment affirming trial court judgments granting motions to quash. Id. The upshot of all of these cases is that Louisiana courts understand that determination of motions to quash in which the district attorney entered a nolle pros and later reinstitut-ed charges should be decided on the basis of the facts and circumstances of the individual case.
Thus, neither Alfred nor this decision should be read by Louisiana courts to constrain a trial court’s discretion to grant a motion to quash in appropriate circumstances. In situations where it is evident that the district attorney is 17flaunting his authority for reasons that show that he wants to favor the State at the expense of the defendant, such as putting the defendant at risk of losing witnesses, the trial court should grant a motion to quash and an appellate court can appropriately reverse a ruling denying a motion to quash in such a situation. In this case, we do no not believe any such palpable abuse is evident that would allow the court of appeal to vacate the defendant’s conviction on that basis.

Sixth Amendment Right to Speedy Trial

❖ * *

Under the rules established in Barker, none of the four factors ... is “either a necessary or sufficient condition to the finding of a deprivation of the right to speedy trial.” Id. [407 U.S.] at 533, 92 S.Ct. 2182. Instead, they are “related factors and must be considered together ... in a difficult and sensitive balancing process.” Id.

Length of the delay

In the instant case, in the likely reality that the defendant remained subject to his bail obligation during the nearly four months that passed between the dismissal of his original bill of information and the filing of the new bill, the delay in this case was approximately 22 months. [FN3 omitted.] Following a lengthy discussion of Louisiana cases on this issue, the court of appeal found that delay was “presumptively prejudicial” for purposes of the Barker test. State v. Love, 99-1842 (La.App. 4 Cir. 11/8/00), 775 So.2d 717.
The charge in the instant case is possession of cocaine with intent to distribute, a non-capital felony, carrying a penalty of imprisonment at hard labor for not less than five years nor more than 30 years. La.Rev.Stat. 40:967(B)(1). Under the provisions of La.Code of Crim. Proc. art. 578(1), the State must bring the defendant to trial within two years from the date of the institution of the prosecution. In this case, when the State accepted the defendant’s plea on October 14, 1998, the two-year statutory period for bringing the defendant to trial had not expired. Moreover, when a timely-instituted criminal procedure has been dismissed, a new prosecution for the same offense may be instituted within time limits ^established by the pertinent code article or within six months from the date of dismissal, whichever is longer, if the State can show that the dismissal of the original prosecution was not for the purpose of avoiding the time limit established by La.Code of Crim. Proc. art. 578. La.Code of Crim. Proc. art. 576. Thus, the State did not violate any statutory time limits in the instant case.
Nevertheless, analysis of the length of the delay does not stop with a finding that the State did not violate the statutory provisions, because the right to a speedy trial is a fundamental right. As noted by the court of appeal, Louisiana courts have found that shorter time periods than the 22 months at issue in this case have violated a defendant’s right to speedy trial. [FN4 omitted.] State v. Leban, 611 So.2d 165 (La.App. 4 Cir.1992), writ denied, 619 So.2d 533 (La.1993) (16-month delay), and State v. Firshing, 624 So.2d 921 (La.App. 4th Cir.1993), writ denied, 93-2621 (La.2/25/94), 632 So.2d 760 (17-month delay). Given the fact that the delay in this case was more lengthy than other delays found “presumptively prejudicial,” as well as the fact that the right to a speedy trial is a fundamental right, we agree with the finding of the court of appeal that the delay in the instant case was “presumptively prejudicial,” although such is not alone dispositive regarding whether a right to speedy trial was violated. Accordingly, we will consider the other three factors of the Barker test.

Id., p. 12-18, 847 So.2d at 1208-1211.

The Love court went on to find that none of other Barker factors supported the defendant’s contention that his right to a speedy trial had been violated. The Supreme Court found that the delays had not prejudiced the defendant’s case, specifically finding that the defendant failed to substantiate his argument that the delay had resulted in the disappearance of two witnesses. Accordingly, the Supreme Court reversed the decision of this Court vacating the defendant’s conviction and sentence and reinstated both.

In the instant case, the State did not file a written motion for a continuance as required by La.C.Cr.P. art. 707. However, only two days elapsed between the | ¿nolle prosequi on November 25th and the reinsti-tution of the case on November 27th, for a total of only six and one-half-months between the filing of the case and the time the State nolle prossed it and then reinsti-tuted it. Furthermore, in this case there was no evidence that defense witnesses were lost or the defendant prejudiced.

As the courts have frequently stated, the right to a speedy trial is relative and involves a weighing process. In this case, there is little information about the defendant and no evidence of any prejudice he suffered as a result of the delay. He makes no allegation that his defense was impaired, and there is no sign that the delay was designed to hamper the defense. Additionally, the six and one-half months delay is neither “extraordinary nor capricious.” It is certainly a reasonable amount of time between the filing of a case and its being nolle prossed and then reinstituted, and certainly far too short a period of time to raise any serious speedy trial issues. Under the facts and circumstances of this case, we do not find the defendant’s right to a speedy trial violated nor do we find the State’s actions a misuse of its authority. Accordingly, we conclude that the trial judge abused his discretion in granting the defendant’s motion to quash the bill of information.

The judgment of the trial court is reversed, and the case is remanded.

REVERSED AND REMANDED

CANNIZZARO, J., concurs with reasons.

| [CANNIZZARO, J.,

Concurs with Reasons.

I concur, albeit reluctantly, in the result reached by the majority. I agree that there are no violations of the defendant’s constitutional right to a speedy trial under Barker v. Wingo. Also, I agree that there are no violations of the defendant’s right to a speedy trial under La.C.Cr.P. art. 701 or the state prescription articles for initially instituting and re-instituting a criminal prosecution. Additionally, one can conclude that the defendant here suffered no prejudice by the delay. The record is very scant as to even any argument or discussion of prejudice suffered by the defendant as a result of the delay. Further, there is insufficient documentation in the record for the district court to quash the bill of information. Therefore, considering the facts of the particular case before us, I cannot say that the majority opinion is wrong. The ultimate result under the circumstances is correct. There are, however, other factors that relate to justice, equity, and fairness that should be considered.

The district attorney in this case certainly had some input in selecting the date for trial, since the district attorney determines under La.C.Cr.P. art. 61 when to prosecute a defendant. In the instant case, the district attorney did not object to the trial date, and I can, therefore, conclude that that district attorney acquiesced in it.

l2With regard to the unavailability of the police officer on the date of trial, because he was on vacation, if a police officer is served with a subpoena for, or given adequate notice of, a trial, then the officer should be in court on the day of the trial. Most police officers take pride in their work and appear in court when they are required to do so, but unfortunately some do not. If a police officer is needed to testify in a criminal trial, it is a part of his responsibilities as a police officer to appear in court and testify. The district attorney should not go into court and defend a police officer, who shirks his responsibility and refuses to testify or who finds some other activity more pressing than his professional responsibilities to the community.

Continuances that district attorneys give the state extrajudicially through their power to nolle prosse and then refile cases are extremely frustrating to trial judges who come to court prepared to try a case and are willing to compel both the state and the defendant to adhere to a trial date that has been set in advance of trial. District attorneys who are not prepared for whatever reason can unilaterally decide to nolle prosse a case if they are not granted a continuance by the trial court, but the defendant has no corresponding right to continue a trial. Such action by a district attorney raises ethical considerations and may possibly justify a contempt citation by the trial court.

The majority notes in quoting from a Louisiana Supreme Court case that a large number of cases from Orleans Parish are nolle prossed and then reinstituted. The unbridled use of the district attorney’s power to nolle prosse a case in order to obtain a continuance when the trial court has refused to grant one in Orleans Parish Criminal District Court should be curtailed. Judges should be able to prevent the state from using this practice, particularly in cases where reasonable preparation for trial or adequate notice that a continuance is needed could have avoided the need for a continuance on the day of the trial.

laThe Louisiana Code of Criminal Procedure establishes the rules regarding when a continuance may or shall be granted, and these rules apply equally to all parties. La.C.Cr.P. art. 707 provides that a motion for continuance shall be in writing, shall be filed at least seven days prior to the beginning of trial, and may be granted “only upon a showing that such motion is in the interest of justice.” La.C.Cr.P. art. 709 requires a motion for a continuance based on the absence of a witness to state certain facts, which are specifically enumerated in that article. La.C.Cr.P. art. 710 provides that an adverse party can defeat a continu-anee by admitting to the testimony, and in certain cases, to the truth of the testimony, of an adverse witness. La.C.Cr.P. art. 712 provides that if a motion for a continuance is timely filed, the trial court may grant the continuance “in the discretion of the court ... if there is good ground therefor.” In the instant case, the state did not comply with any of these requirements, which become meaningless when the state can simply obtain a continuance at will by using the power to nolle prosse a case and subsequently reinstitute it.

The trial judge has a responsibility to administer justice for all parties. This obligation should not be thwarted by one party in order to gain an advantage over another party. In the instant case the state had already been granted one continuance when the case was set for trial. The defendant had not been granted any continuances. Additionally, the state was granted a continuance prior to the motion hearing, but none was given to the defendant. What the district attorney did in this case was avoid complying with the rules in the Code of Criminal Procedure governing the granting of continuances and then doing indirectly what could not be done directly or by the defendant. The practice of the state granting itself an extrajudicial continuance through the misuse of the power to nolle prosse a case is blatantly unfair to the defendant, even though it may not fall directly within the ^proscriptions discussed in the majority opinion. While I concur in the majority opinion, I do not condone the actions of the state in this case.

      . The colloquy at the hearing on the motion to quash was as follows:
      Judge: I think you have to look at it as an issue of fairness to be quite honest. The State shouldn't be in a position to be able to get a continuance any time they want to and the Defense not have that same opportunity.
      * * *
      ADA: Well, Your Honor, if we're talking in the interest of fairness, this was the very first trial setting.

      Judge: I'm so sick of DA's saying that, Defense attorneys — but Judge, it's only the first trial setting. If you were the defendant sitting out there and you had to come to court, or if you were a witness that had to come to court, take off work, or whatever, the first trial setting is enough. It's enough. I don’t want to make people come back to court and have the hallways outside filled with people coming back to court, time after time, because somebody’s not ready. Because they haven't been paid, or you didn't talk to your witnesses, or a police officer went on vacation. You know, I’m — I'm not going to put up with it.
      If the police officer ... [doesn't] have the common courtesy to notify this court and the District Attorney's Office that they are not going to be here, they have to honor their subpoenas.
      So at this time I grant the motion to quash.

      . None of the remaining factors supports the defendant’s position:
      As to the second Barker factor, the reason for the delay, two continuances were at the State’s request, one was due to the defendant's absence, and twice the court simply reset tire hearing without explanation. The State attributed its requests for continuances to the fact that its police officer witness had not appeared. At the hearing the judge implied that the State should have stipulated as to the witnesses testimony; however, according to the assistant district attorney the officer was the State's only witness.
      The third Barker factor concerns the defendant's assertion of his right to a speedy trial. The defendant did not object to the continuances nor did he file a motion for a speedy trial until after the case was reinstituted.
      The final Barker factor is the prejudice to the defendant caused by the delay. There are no facts about the defendant in the record except that he was charged with possession of marijuana, second offense, and he was free on bond during the course of this case.

      . The 17-month delay in Firshing is so far beyond the six and one-half-month delay in the instant case as to render Firshing inappo-site to the instant case.

      . Esteen involves facts so egregious as to remove it from any reasonable relation to the instant case. In Esteen the delays amounted to over two years during which time the State nolle prossed the case twice.

      .The 16-month delay in Leban is so far beyond the six and one-half-month delay in the instant case as to render Leban inapposite to the instant case.

      . Love, supra, p. 8, 847 So.2d at 1206.


author: I PATRICIA RIVET MURRAY, Judge.

text:
    STATE of Louisiana v. Clyde WILLIAMS and Ethel Davis.
    No. 2003-KA-0302.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 6, 2003.

      Eddie J. Jordan, Jr., District Attorney of Orleans Parish, Kristen Keller, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellee.
    Karen G. Arena, Louisiana Appellate Project, Metairie, LA, for Defendant/Appellant, Clyde Williams.
    Clyde D. Merritt, New Orleans, LA, for Defendant/Appellant, Ethel Davis.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY, Judge EDWIN A. LOMBARD).
   I PATRICIA RIVET MURRAY, Judge.

The sole issue presented in this case is whether the trial court erred in denying the defendants’ motion to suppress evidence seized from their residence pursuant to a search warrant. For the following reasons, we affirm.

STATEMENT OF THE CASE

On December 30, 1998, Clyde Williams and Ethel Davis were charged by bill of information with possession of cocaine in an amount four hundred grams or more, a violation of La. R.S. 40:967(F)(l)(c). At their January 19, 1999 arraignment, they pleaded not guilty. The trial court denied their motion to suppress the evidence, and this court denied their writ applications from that ruling.

On December 8, 1999, they pleaded guilty under State v. Crosby, 338 So.2d 584 (La.1976). Mr. Williams pleaded guilty to possession of cocaine in an amount more than two hundred grams but less than four hundred, a violation of La. R.S. 40:967(F)(1)(b); he was sentenced to twenty years at hard labor, without benefit of parole, probation or suspension of sentence. Ms. Davis pleaded guilty to simple possession of cocaine, a violation of La. R.S. 40:967(C)(2); she was [«.sentenced to five years at hard labor, sentence suspended, five years active probation with special conditions. Both Mr. Williams and Ms. Davis appeal.

STATEMENT OF THE FACTS

During October 1998, members of the New Orleans Police Department followed up on a confidential informant’s tip that a man named “Clyde,” later identified as Mr. Williams, was selling cocaine from his grocery store, the E and C Food Store, located at 7935 Forshey Street in New Orleans. The officers confirmed Mr. Williams’ identity. Using the confidential informant (“Cl”), the officers conducted two controlled purchases of crack cocaine from Mr. Williams at his grocery store. The officers observed Mr. Williams leaving his residence, located at 3028 Fern Street in New Orleans, near dawn carrying a brown paper bag. The officers next observed him drive directly to his grocery store and engage in three or four apparent drug sales within a half-hour of his arrival at his store. Individuals would enter the store and exit a few minutes later empty-handed, carrying no food or drink.

On October 26,1998, the officers applied for and obtained separate search warrants for the grocery store, 7935 Forshey Street, and the residence, 3028 Fern Street. Two days later, the officers simultaneously executed the search warrants. Mr. Williams was arrested at the grocery store; Ms. Davis was arrested at their residence. The cocaine they both were charged with possessing was recovered from their residence.

I,ERRORS PATENT

A review of the record reveals one error patent. The trial court sentenced Mr. Williams under La. R.S. 40:967(F)(l)(b) only to imprisonment. However, La. R.S. 40:967(F)(l)(b) provides that a person convicted of the offense shall be sentenced to imprisonment and shall be fined “not less than one hundred thousand dollars, nor more than three hundred fifty thousand dollars.” The State neither objected to the illegally lenient sentence, nor raised the issue on appeal.

The Louisiana Supreme Court has held that an appellate court may correct an illegally lenient sentence by remanding to impose a mandatory fine. State v. Decrevel, 2003-0259 (La.5/16/03), 847 So.2d 1197. However, it did not say that an appellate court is required to do so. In State v. Comena, 2002-1562, p. 4 (La.App. 4 Cir. 3/19/03), 843 So.2d 464, 467, and in State v. Major, 2002-0133, p. 7 (La.App. 4 Cir. 10/2/02), 829 So.2d 625, 631, we declined to do so. However, a contrary holding was rendered right before Major, supra, was decided in State v. Legett, 2002-0153 (La.App. 4 Cir. 5/22/02), 819 So.2d 1104. In Legett, we held that the failure to impose the mandatory fine under La. R.S. 40:967 required we remand the matter for the imposition of that fine. Similarly, in State v. Hall, 2002-1098, pp. 5-6 (La.App. 4 Cir. 3/19/03), 843 So.2d 488, 494, we held that “the matter must be remanded for the imposition of the fine.” Id.

To resolve this conflict in this circuit, we submitted this issue for an en banc vote, and this circuit voted en banc to follow Legett and Hall. Following those cases, we remand this case to the trial court for the imposition of the mandatory 14fine.

ASSIGNMENT OF ERROR

As noted at the outset, the sole error assigned on this appeal is that the trial court erred in denying Mr. Williams’ and Ms. Davis’ motion to suppress the evidence seized from their residence at 3028 Fern Street. They argue that the affidavit on which the officers relied to obtain the search warrant did not set forth sufficient probable cause to support issuing a warrant for that location.

Summarizing the general rules regarding search warrants, the Louisiana Supreme Court in State v. Casey, 99-0023, pp. 3-4 (La.1/26/00), 775 So.2d 1022, 1027, stated:

The general rule is that probable cause sufficient to issue a search warrant “exists when the facts and circumstances within the affiant’s knowledge and of which he has reasonably trustworthy information, are sufficient to support a reasonable belief that an offense has been committed and that evidence or contraband may be found at the place |sto be searched.” La.C.Cr.P. art. 162; State v. Johnson, 408 So.2d 1280, 1283 (La.1982). The issuing magistrate must make a practical, common sense decision whether, given all the circumstances set forth in the affidavit, a fair probability exists that the evidence of a crime will be found in a particular place. State v. Byrd, 568 So.2d 554, 559 (La.1990). Additionally, a search warrant must establish a probable continuing nexus between the place sought to be searched and the property sought to be seized. State v. Weinberg, 364 So.2d 964, 968 (La.1978). Further, an affidavit must contain, within its four corners, the facts establishing the existence of probable cause for issuing the warrant. State v. Duncan, 420 So.2d 1105, 1108 (La.1982).

Id. The defendant bears the burden of proving that evidence pursuant to the issuance of a search warrant should be suppressed. La.C.Cr.P. art. 703(D). A trial court’s factual findings on a motion to suppress the evidence are entitled to great weight and should not be disturbed unless they are clearly erroneous. Casey, 99-0023, p. 6, 775 So.2d at 1029.

Turning to the facts of the present case, the officers submitted identical three-page affidavits in support of their applications for the grocery store and the residence. Both were dated October 26, 1998, and in both Detective Donald Nides averred the following facts:

• Sometime before October 16, 1998, he spoke with a Cl who informed him that a man named “Clyde” was selling crack cocaine from his business, the E and C Food Store. The Cl was given twenty-five dollars and made a controlled purchase of crack cocaine from “Clyde” inside the grocery store.
• Several days later, the Cl provided additional information, to wit: that “Clyde” drove a two-tone blue Ford Tempo, that he drove the vehicle to his business every morning, arriving at 5 a.m., that “Clyde” was usually in possession of crack cocaine when he arrived at his business, and that he would begin selling it as soon as he arrived at the business if there were customers there when he arrived.
• Detective Nides stated that he thereafter positioned himself with a view of the E and C Food Store to conduct surveillance. At approximately 5 a.m., he observed a male arrive in a two-tone blue Ford Tempo and park directly in front of the store. A large man exited the car and unlocked and entered the business.
| s» Detective Nides checked the license plate number of the Ford Tempo, and learned it was registered to a Clyde Williams, who resided at 3028 Fern Street. He also learned that Mr. Williams had two prior felony convictions for possession of crack cocaine, and had concluded a five-year active probation period two years earlier (in October 1996).
• Detective Nides stated that on October 22, 1998, he obtained a color photograph of Mr. Williams, and he confirmed that it was the same person he had observed arrive in the Ford Tempo and enter the E and C Food Store.
• On October 23, 1998, Lieutenant Ba-yard established surveillance at Mr. Williams’ 3028 Fern Street residence. He observed Mr. Williams exiting 3028 Fern Street at approximately 4:45 a.m. carrying a brown paper bag in his right hand. He then observed Mr. Williams drive directly to the E and C Food Store in the Ford Tempo. He then observed Mr. Williams exit the vehicle carrying the brown paper bag. As he approached the front door of his business, Mr. Williams was met by two young men who were standing in front of the store. Mr. Williams unlocked the door to the store, and the trio entered the store. Four minutes later, the two men exited, looked around, and headed up Forshey Street. Neither was carrying food or drink. At approximately 5:05 a.m., another man drove up to the store on a bicycle. He went inside, exited a few minutes later, and rode off on his bicycle. He had no food or drink in his hands. At approximately 5:16 a.m., a heavy set woman parked a pickup truck on the side of the store. The woman entered the store and exited three minutes later empty handed and drove off in the truck.
• Within seventy-two hours, inclusive, of October 26, 1998, the date the search .f warrant applications were prepared, Detective Nides again met with the CL He provided the Cl with fifty dollars to make another controlled purchase. The Cl entered the E and C Food Store. The Cl made the second controlled purchase of crack cocaine from Mr. Williams. According to the Cl, Mr. Williams obtained the contraband from the register. Detective Nides stated that the contraband tested positive for crack cocaine.

The search warrant application sought to seize the following property: “[a]ll contraband controlled dangerous substances, more particularly crack/cocaine along with any concomitant physical evidence, either substantive or trace, associated with its use, possession, packaging, and/or distribution.” The application concluded that: “[predicated on the information received and corroborated through the two controlled purchase from 7935 Forshey Street, it is [the] belief of the ^detective that Crack/Cocaine in [sic] being secreted within the location of 7935 Forshey Street [the store] and 3028 Fern Street [the residence].”

Noting that the Cl’s veracity was not under attack and concluding that a reasonable person could infer from the facts set forth in the warrant that Mr. Williams was taking the cocaine from his home to his retail business where he sold it, the trial court denied the motion to suppress the evidence seized from the residence. Mr. Williams and Ms. Davis argue that the trial court erred in concluding that a magistrate could assume that drug dealers keep their narcotics in their residence, especially when, as in this case, it is alleged that the cocaine was being sold at a different location. We find this argument unpersuasive.

In determining whether a magistrate could reasonably infer from the facts set forth in the search warrant application that drugs were likely located in the seller’s residence, the jurisprudence has held that “there need not be definite proof that the seller keeps his supply at his residence.” 2 Wayne R. LaFave, Search and Seizure § 3.7(d)(3rd ed.1996). “[I]t will suffice if there are some additional facts, such as that the seller went to his home prior to the sale or that the sale occurred near the home, which would support the inference that the supply is probably located there.” Id.

There were three such additional facts present in this case. First, the officers observed Mr. Williams leaving his residence near dawn carrying a brown paper bag, traveling directly to his store, and almost immediately commencing suspected drug sales. Second, the officers, using a CI, made two controlled buys from Mr. Williams, albeit at his business. Third, Mr. Williams had two prior drug convictions. These three facts establish a sufficient nexus between “the place sought to be searched and the property sought to be seized” as required by the [¿jurisprudence. Casey, supra (citing Weinberg, 364 So.2d at 968). We thus hold that the trial court did not err in denying defendants’ motion to suppress the evidence seized from their residence.

Our holding is supported by the Louisiana Supreme Court’s recent decision in State v. Profit, 2000-1174 (La.1/29/01), 778 So.2d 1127. In Profit, the defendant was arrested following a police chase during which the defendant’s passenger threw out a bag containing three pounds of marijuana. Although the defendant provided police with a false home address, his passenger provided police with the correct address, as confirmed by the defendant’s driver’s license. A computer check revealed that the defendant had been arrested twice for possession of marijuana, one arrest resulting in a conviction for which the defendant was still on probation. Police subsequently obtained a search warrant for the defendant’s residence, based on his possession of the marijuana and his reporting the false address. Additional amounts of marijuana and several firearms were recovered during the execution of the search warrant.

The trial court in Profit granted the defendant’s motion to suppress the evidence seized from his residence. Reversing, the Supreme Court reasoned that the seizure of the three pounds of marijuana discarded from the defendant’s car, defendant’s apparent attempt to mislead police as to his home address, and his prior arrests and conviction for possession of marijuana, taken together “supported a reasonable, common sense inference made by the magistrate that the officers had a fair probability of finding additional amounts of the drug on the premises.” Profit, 2000-1174, p. 6, 778 So.2d at 1130-1131 (collecting cases).

IflAs noted above, the search warrant affidavit in this case set forth facts establishing that police made a controlled purchase of crack cocaine from someone known as Clyde at Clyde’s food store. Members of the New Orleans Police Department subsequently confirmed that “Clyde” was Mr. Williams, that he resided at 3028 Fern Street, and that he had two prior convictions for possession of crack cocaine and had two years earlier completed a five-year probation for one or both of those offenses. The officers subsequently observed Mr. Williams carrying a brown paper bag with him when he left his residence at 4:45 a.m. The officers then observed him drive directly to his store, which was the location at which the Cl had earlier made the controlled purchase. Within one half-hour of his arrival there, Mr. Williams was observed conducting three or four' separate apparent narcotics transactions inside of his store. Police subsequently made a second controlled purchase of crack cocaine from defendant Williams inside of his store. As in Profit, these facts set forth in the affidavit in the instant case support the reasonable, common sense inference made by the magistrate that the officers had a fair probability of finding crack cocaine at Mr. Williams’ Fern Street residence. [10 We thus find no error in the trial court’s decision denying the motion to suppress the evidence seized from that address.

DECREE

For the foregoing reasons, Ms. Davis’ conviction and sentence are affirmed. Mr. Williams’ conviction is affirmed, but we remand for resentencing.

CONVICTIONS AFFIRMED, REMANDED FOR RESENTENCING.

      . Mr. Williams filed a motion for an appeal, which was granted. The trial court noted at Ms. Davis’ June 23, 2000 post-trial appearance that the matter was on appeal; apparently Ms. Davis orally moved for an appeal. On September 30, 2002, this court granted Mr. Williams’ writ application in part, ordering the trial court to appoint counsel, set a return date and file a notice of appeal. On November 8, 2002, this court granted Mr. Williams’ writ application for the sole purpose of transferring it to the district court for consideration as a motion for an appeal bond.

      . We note that the Louisiana Supreme Court's per curiam, decision in State v. Decrevel, 2003-0259 (La.5/16/03), 847 So.2d 1197, was a split one. In his reasons for dissenting, Justice Weimer stated: "I would grant the writ regarding whether the court of appeal can correct the fine imposed where the State has not raised that issue on appeal. See State v. Phillips, 02-0866, 02-918 (La.11/22/02), 834 So.2d 972, Chief Justice Calogero dissenting from the denial of the writ, voting to grant the writ and assigning reasons.” Id. (Chief Justice Calogero adopted Justice Weimer's reasons.) In his reasons for dissenting in Phillips, supra (which Justice Weimer cited in Decrevel, supra), Chief Justice Calogero expounded his view as follows:
      The majority of this court believes that these writ applications are governed by Williams. The Williams court, however, based its holding on § 301.1, which does not address sentencing restrictions other than parole, probation, or suspension of sentence. Consequently, mandatory fines continue to be governed by La.Code Cr. Proc. art. 882, which states that "an illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review,” and that "a sentence may be reviewed as to its legality on the application of the defendant or of the state....” Unlike § 301.1, which is self-activating, this court held in State v. Fraser, 484 So.2d 122 (La.1986), that article 882 requires the state to apply for appellate review of an illegally lenient sentence.
      The Williams decision does not sweep broadly enough to overrule Fraser and hold that the state need not appeal the district court’s failure to impose a statutorily mandated fine. The law in Louisiana regarding an appellate court’s imposition of mandatory fines on its own motion continues to be governed by the Fraser court’s interpretation of article 882: the state must seek appellate review of the district court's failure to impose a statutorily mandated fine.

        State v. Phillips, 2002-0866, 2002-0918, pp. 2-3 (La.11/22/02), 834 So.2d 972, 973 (Ca-logero, C.J., dissenting from denial of writ), cert. denied, - U.S. -, 123 S.Ct. 2228, 155 L.Ed.2d 1117 (2003). See also State v. Paoli, 2001-1733, p. 1 (La.App. 1 Cir. 4/11/02), 818 So.2d. 795, 800-01 (Guidry, L, dissenting)(noting that while State v. Williams, 00-1725 (La. 11/28/01), 800 So.2d 790, arguably cast doubt on State v. Fraser, 484 So.2d 122 (La.1986), it did not overrule Fraser and expressing his view that Williams is inapplicable to sentencing errors of a type different than those subject to automatic correction under La. R.S. 15:301.1). This is a significant issue of law on which the judiciary has voiced conflicting views and which the Louisiana Supreme Court should revisit.

      . This court denied the State’s writ application in an unpublished decision. State v. Profit, unpub., 99-3215 (La.App. 4 Cir. 3/27/00).

      . The long list of cases the Supreme Court cited in Profit is as follows:

        See United States v. Reddrick, 90 F.3d 1276, 1281 (7th Cir.1996) (a magistrate may infer that "in the case of drug dealers evidence is likely to be found where dealers live (internal quotation marks and citation omitted); United States v. Riedesel, 987 F.2d 1383, 1391 (8th Cir.1993) (lawful seizure of drugs from defendant's car provides probable cause to support issuance of a warrant to search his home); United States v. Robins, 978 F.2d 881, 892 (5th Cir.1992) (sufficient nexus existed between marijuana seized from vehicle and defendant's residence to establish probable cause for a warrant to search the premises because "[a] residence is a quite convenient, commonly-used place for planning continuing criminal activities like large-scale marijuana trafficking and money laundering.”); United States v. Angulo-Lopez, 791 F.2d 1394, 1399 (9th Cir.1986) (a magistrate is "entitled to draw reasonable inferences,” including that drug dealers have drugs "where the dealers live,” and when traffickers consist of ringleader and assistants a sufficient “probability exists that drugs will be at the assistants' residence as well as the ringleader's.”); see also State v. Johnson, 256 Neb. 133, 589 N.W.2d 108 (1999) ("[A] common thread among these cases is that the affidavit provides factors establishing that the defendant was a drug dealer as opposed to someone in possession of drugs for personal use.”).

        Profit, 2000-1174, p. 6, 778 So.2d at 1130-1131.