author: |, Judge EDWIN A. LOMBARD. _JjMCKAY, J., hMURRAY, J.,

text:
    Vivian C. WHITE on Behalf of the Minor Child James A. Young v. ENTERGY GULF STATES, INC., Minnesota Mining and Manufacturing, Westinghouse Electric Corporation and Westinghouse Staffing Services, Inc.
    No. 2003-CA-2074.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 16, 2004.

      Frank Tomeny, III, Jason L. Melancon, Tomeny & Fisher, Baton Rouge, LA, for PlaintiffAppellant.
    Richard E. Sarver, Celeste Coco-Ewing, Barrasso, Usdin, Kupperman, Freeman & Sarver, LLC,' News Orleans, LA, for Defendant/Appellee, 3M Company.
    Eric Shuman, McGlinchey Stafford, APLC, New Orleans, LA, for Defendants/Appellees, Viacom, Inc. and Westinghouse Electric Company, L.L.C.
    Joseph K. West, Kenneth P. Carter, Endya E. Delpit, New Orleans, LA, for Defendant/Appellee, Entergy Gulf States, Inc.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY, III, Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD).
   |, Judge EDWIN A. LOMBARD.

In this wrongful death and survival suit, Vivian C. White, on behalf of Delesia White’s minor child (“the plaintiff’), appeals the judgment of the trial court sustaining the defendants’ peremptory exception of prescription. For the reasons that follow, we reverse and remand.

Pertinent Facts

Delesia White died from lung disease on March 23, 1999. As an employee at the Entergy River Bend Station facility in St. Francisville, Louisiana, between 1990 and 1992, Ms. White’s duties included the disposal of the fluorescent light bulbs. The plaintiff alleges that Ms. White’s lung disease was caused by contact with beryllium and other contaminants including, but not limited to, those contained in fluorescent light bulbs. Upon her death, the plaintiff (Ms. White’s sister) became custodian of Delesia White’s minor son, James A. Young.

On March 22, 2000, based on diversity of citizenship, 28 U.S.C. § 1332, the plaintiff filed suit against Entergy Gulf States, Inc. (hereinafter “Entergy”), Minnesota Mining and Manufacturing (hereinafter “3M”), Westinghouse Electric Corporation (succeeded by Viacom, Inc.) and Westinghouse Staffing Services, Inc., (succeeded by Westinghouse Electric Company, L.L.C.) (hereinafter 1 ¡.collectively “Westinghouse”), in the United States District Court for the Middle District of Louisiana and service was made on the defendants on March 31, 2000.

Entergy moved to dismiss the action in federal court claiming the court lacked jurisdiction but before determining the jurisdictional issue, the federal court placed the action on “administrative stay” and the plaintiff filed the instant action in the Civil District Court for the Parish of Orleans on October 18, 2000. The defendants responded to the state action by filing exceptions of prescription, improper venue, no cause of action, vagueness and lis pendens, and a motion to stay.

On September 15, 2003, the trial judge in the state action granted the exception of prescription in favor of the defendants and dismissed the action. The trial judge found that although plaintiffs federal action based on diversity jurisdiction was filed within the prescriptive period, “diversity of citizenship as required under 28 U.S.C. § 1332 does not exist and therefore, the federal court lacked subject matter jurisdiction.” Accordingly, the trial judge held because the plaintiffs original complaint was filed in an incompetent court and service of process of process was not made until after the prescription date, the plaintiffs claim had prescribed under La. Civ.Code art. 3462. The trial judge declared the remaining exceptions filed by defendants moot.

The plaintiff filed this devolutive appeal, raising two assignments of error.

Discussion

The plaintiff argues that the federal court was a court of competent jurisdiction because the principal place of business for Entergy is in Texas, thereby establishing diversity jurisdiction in the federal court. The plaintiff maintains that pursuant to her search of the Louisiana Secretary of State website on March 16, |32000, Entergy failed to identify any Louisiana address for it’s place of business, but identified 350 Pine Street, Beaumont, Texas as its domicile. Accordingly, the plaintiff submits that she was reasonable in relying upon the public records in concluding that En-tergy’s citizenship, for purposes of diversity jurisdiction, was Texas.

Appellant further argues that because of her detrimental reliance on the Entergy’s representations made to the Louisiana Secretary of State, the doctrine of equitable estoppel should have been applied by the trial court. In support of her position, appellant cites Roberson v. Lafayette Oilman’s Sporting Clays Shoot, Inc., 2002-1275 (La.App. 3 Cir. 4/30/03), 845 So.2d 1267. In Roberson, the plaintiff filed a personal injury action in St. Martin Parish based upon the Breaux Bridge, Louisiana address obtained from the Louisiana Secretary of State. Since the entire city of Breaux Bridge fell within St. Martin Parish, the plaintiff concluded that St. Martin Parish was the parish of proper venue. After suit was filed, however, the defendant filed an exception of venue, claiming that the business’ physical location was in Lafayette Parish and that it only received mail at the Breaux Bridge address. The court in Roberson found that the plaintiff detrimentally relied upon the information on file with the Secretary of State and, as such, applied the doctrine of equitable es-toppel in favor of plaintiff.

Finally, the plaintiff relies on assertions made by Entergy in two recent unpublished federal court cases wherein Entergy claimed that their principal place of business was in Texas. As such, the plaintiff submits that Entergy cannot now maintain in good faith that its principal place of business is Louisiana.

In response to this appeal, Entergy argues that based on the information provided by the Secretary of State, and attached to the plaintiffs memorandum in | opposition as “Exhibit A,” the plaintiff should have been on notice that diversity of citizenship did not exist between the plaintiff and Entergy. Specifically, Enter-gy argues that the Secretary of State information relied on by the plaintiff at the time her lawsuit was filed does not specifically list the principal place of business for Entergy; and, therefore, the plaintiff should have been on notice to inquire further.

Westinghouse and 3M similarly argue that the plaintiffs petition is prescribed on its face and that prescription was not interrupted because the federal court lacked diversity. Westinghouse and 3M further submit that the plaintiffs argument of equitable estoppel does not bar either of them from asserting prescription because there were no allegations that either Westinghouse or 3M did anything upon which the plaintiff justifiably relied.

Law and Analysis:

Prescription is interrupted when an action is commenced in a court of competent jurisdiction and venue or, if the action is commenced in an incompetent court or improper venue, as to a defendant served by process within the prescriptive period. La. Civil Code art. 3462. The applicable prescriptive period in this wrongful death and survival action is one year from the date of decedent’s death. La. Civ.Code arts. 2315.1, 2315.2. Accordingly, the suit has prescribed if the federal court was a court of competent jurisdiction.

Louisiana case law has also established that a court lacking subject matter jurisdiction is not a court of competent jurisdiction. Venterella v. Pace, 180 So.2d 240 (La.App. 4 Cir.1965). In Venterella, the state court held that federal court is not a court of competent jurisdiction when the federal court lacks subject matter | ¿jurisdiction over the matter. In Venter-ella, as here, the plaintiff filed a lawsuit in federal court within the prescriptive period invoking federal jurisdiction. However, the federal court lacked subject matter jurisdiction over the matter because diversity was lacking. The state court held that, because federal subject matter jurisdiction was lacking, federal court was not a court of competent jurisdiction. As a result, filing the federal court action did not interrupt prescription.

The instant case is distinguished from Venterella on one very significant point. In Venterella, the federal court dismissed its case after a determination that diversity jurisdiction was lacking. In the present case, however, the federal court has not ruled on jurisdiction. Instead, the federal court proceeding was stayed, pending the outcome of this state court proceeding. The only finding that the federal court lacked jurisdiction in this case comes from the state court action. After a review of the trial court proceedings, we find that the record was insufficient for the trial court to make such a factual determination as to whether the federal court was a court of competent jurisdiction. Significantly, the only competent evidence presented to the trial court as to Entergy’s principal place of business was the documentation from the Louisiana Secretary of State. Although Entergy provided the trial court with two unpublished opinions of federal court cases finding Entergy to be a citizen of Louisiana, we do not find that evidence to be proper or controlling.

The determination of a corporation’s principal place of business for purposes of diversity jurisdiction does not hinge on a single factor. Rather, it depends on a myriad of objective factors. Howery v. Allstate Ins. Co., 243 F.3d 912, 920 (5 Cir. 2/28/01). Pursuant to 28 U.S.C. § 1332, a “corporation shall be deemed to be a citizen of any State in which it has been incorporated and of the State where it has its principal place of business.” The Fifth Circuit “applies a ‘total activity’ test to determine the principle place of business.” Nauru Phosphate Royalties, Inc. v. Drago Daic Interests, Inc., 138 F.3d 160, 164 (5 Cir.1998). To determine citizenship for the purposes of diversity, courts look to “the nature, location, importance, and purpose of a corporation’s activities and the degree to which those activities bring the corporation into contact with the local community.” Id.

The procedural posture of this case wherein the state trial court is called upon to determine the existence of federal diversity jurisdiction is problematic. Nonetheless, considering the limited factual record before the trial court and the trial court’s failure to make the required analysis as described above to determine Entergy’s principal place of business, we find that the trial court erred in ruling that the federal court was not a court of competent jurisdiction.

Finally, we do not find that the plaintiffs argument for equitable estoppel has merit in this matter. In the cases cited by appellant, it is argued that the filings with the Secretary of State are proof positive of a corporation’s address and location and can be relied upon to establish venue within the state. Roberson; Major v. Telerecovery of Louisiana, Inc., 99-1935 (La.App. 4 Cir. 11/17/99), 748 So.2d 523. In contrast, the instant case addresses federal diversity jurisdiction, not venue, and in our opinion, the application of equitable estoppel would be inappropriate in this matter. Specifically, in cases involving federal diversity jurisdiction, where the federal court is a court of limited jurisdiction, it is the plaintiffs responsibility to select the correct forum. Sansone v. Louisiana Power & Light Company, 164 So.2d 151 (La.App. 1 Cir.1964); Knight v. Louisiana Power & Light Company, 160 So.2d 832 (La.App. 4 Cir. 1964). As heretofore explained in the “total activity test,” the determination of a corporation’s principle place of business involves many factors. For appellant to rely solely on the limited information provided by the Secretary of State and not investigate further to ascertain the appropriate forum was appellant’s error.

Equitable estoppel has been defined as the effect of the voluntary conduct of a party whereby he is barred from asserting rights against another party justifiably relying on such conduct and who has changed his position to his detriment as a result of such reliance. Thus, there are three elements of estoppel: (1) a representation by conduct or word; (2) justifiable reliance; and (3) a change in position to one’s detriment because of the reliance. Elliott v. Catahoula Parish Police Jury, 02-9 (La.App. 3 Cir. 5/8/02), 816 So.2d 996, 997 (quoting Wilkinson v. Wilkinson, 323 So.2d 120, 125 (La.1975)). In Morris v. Friedman, 94-2808 (La.11/27/95), 663 So.2d 19, 25, the Louisiana Supreme Court further elaborated on this issue: “[A] party having the means readily and conveniently available to determine the true facts, but who fails to do so, cannot claim estoppel. Further, estoppels are not favored in our law, and properly apply only as to representations of fact.... Finally, ‘[e]quitable considerations and estoppel cannot be permitted to prevail when in conflict with the positive written law.’ ” Taking all the above rules of law into consideration, we find that the doctrine of equitable estoppel is not applicable in this specific case.

Conclusion

For the reasons stated herein, we reverse the trial court’s grant of the peremptory exception of prescription and remand for proceedings consistent with this opinion. Specifically, before ruling on the issue of prescription, the trial cou^|smust make further inquiry into Entergy’s principal place of business in order to correctly ascertain whether the federal court was a court of competent jurisdiction. Only then can a proper determination be made as to whether appellant’s case has prescribed.

REVERSED AND REMANDED.

McKAY, J., concurs in the result.

MURRAY, J., dissents with reasons.

KIRBY, J., dissents for the reasons assigned by J. MURRAY.

_JjMCKAY, J.,

CONCURS IN THE RESULT.

I concur with the majority and would reverse and remand this matter to the trial court. However, I disagree with the majority’s holding that equitable estoppel does not apply in this case. I believe it was reasonable for the appellant to rely on information provided by the Secretary of State regarding Entergy’s principal place of business.

hMURRAY, J.,

DISSENTS WITH REASONS.

In this wrongful death and survival action, the applicable prescriptive period is one-year from the date of the decedent’s death. La. C.C. arts. 2315.1, 2315.2. Although the party pleading prescription ordinarily has the burden of proof, the burden is shifted to the plaintiff when the petition on its face reveals that prescription has run. Lima v. Schmidt, 595 So.2d 624, 628 (La.1992). Such is the case here. The decedent, Delesia White, died on March 23, 1999, but the instant suit was not filed until October 18, 2000, more than nineteen months later. Plaintiff thus had the burden of establishing that prescription was interrupted.

Attempting to meet that burden, Plaintiff relies upon Louisiana Civil Code Article 346?,. which provides:

Prescription is interrupted when the owner commences action against the possessor, or when the obligee commences action against the obligor, in a court of competent jurisdiction and venue. If the action is commenced in an incompetent court, or in an improper venue, prescription is interrupted only as to a defendant served by process within the prescriptive period.

La. C.C. art. 3462. Because it is undisputed that Defendants were not served with the federal complaint until after the prescriptive period had run, prescription was not interrupted under Article 3462 unless the federal court was a court of competent jurisdiction. A court of competent jurisdiction is defined as “a court which has jurisdiction over the subject matter of, and is the proper venue for, the faction or proceeding.” La. C.C.P. art. 5251(4). By definition, a federal court that lacks subject matter jurisdiction is not a court of competent jurisdiction. Venterella v. Pace, 180 So.2d 240, 243 (La.App. 4 Cir. 1965).

In Venterella, the court noted that the facts before it paralleled those presented in three earlier cases; the court described the familiar factual scenario presented in the earlier trio of cases as follows:

Suits were brought in United States District Courts in Louisiana, alleging jurisdiction based on diversity of citizenship, on actions ex delicto against a foreign corporation which had its principal place of business in Louisiana. The actions were filed within a year of the alleged torts, but in each case service of the citations was not effected until the one-year period had run. After the suits were dismissed in the federal courts for lack of jurisdiction, the plaintiffs filed their actions in Louisiana state courts. In each case, pleas of prescription were upheld and judgment entered in favor of the defendants. The judgments were all affirmed by the respective Courts of Appeal, and writs of certiorari and review were denied in all three cases by the Supreme Court.

Venterella, 180 So.2d at 243. Presented with this same familiar factual scenario, the Venterella court held that “the plain meaning of the statutory language and the jurisprudence of our courts emphatically support the trial judge’s conclusion that the federal court was not a court of competent jurisdiction and that plaintiffs’ cause of action prescribed.” Id. at 242. Defendants contend that this case is analogous to Venterella and that the trial court correctly found the federal court was not a court of competent jurisdiction.

In this case, as Plaintiff emphasizes, the federal district court did not decide the jurisdictional issue. However, the trial court in granting the prescription exception did decide the jurisdictional issue. Finding the federal court was not a court of competent jurisdiction, the trial court reasoned that “diversity of citizenship as required under 28 U.S.C. § 1332 does not exist and therefore, the federal court lacked subject matter jurisdiction.”

|30n appeal, Plaintiff asserts two interrelated equitable arguments in support of her position that the trial court’s finding that the federal court lacked jurisdiction was error; to wit: (i) reasonable reliance on EGS’ representations regarding its principal place of business as reflected on the Louisiana Secretary of State’s office’s website, and (ii) equitable estoppel. EGS counters that its representations reflected on the website that Plaintiff allegedly relied upon when she filed her federal complaint were correct. EGS notes that its principal place of business was listed on the Secretary of State’s website, and Plaintiff should have been on notice to inquire further. EGS also argues that a corporation’s representation’s are not controlling of its principal place of business for purposes of diversity jurisdiction.

I agree with the majority’s finding that Plaintiffs equitable estoppel argument is unpersuasive. As the majority points out, both cases Plaintiff cites in support of that argument are procedurally distinguishable because they involved venue issues. Roberson v. Lafayette Oilman’s Sporting Clays Shoot, Inc., 2002-1275 (La.App. 3 Cir. 4/30/03), 845 So.2d 1267, writ denied, 2003-1531 (La.9/26/03), 854 So.2d 370, and Major v. Telerecovery of Louisiana, Inc., 99-1935 (La.App. 4 Cir.11/17/99), 748 So.2d 523. The concepts of venue and subject matter jurisdiction are vastly different. Venue means the parish in which an action may be brought; whereas, subject matter jurisdiction means the power of a court to hear a particular dispute. A state court is statutorily authorized to cure a venue problem by invoking La. C.C.P. art. 121, which provides that “[wjhen an action is brought in a court of improper venue, the court may dismiss the action, or in the interest of justice transfer it to a court of proper venue.” La. C.C.P. art. 121; see Roberson, 2002-1275 at p. 8, 845 So.2d at 1272. By transferring the case, a court is able to alleviate the potential prescription problem that dismissing the case |4would create for the plaintiff. A court, however, has no ability to cure the prescription problem presented when a plaintiff flies suit in a court that lacks subject matter jurisdiction. When a plaintiff selects a forum that lacks subject matter jurisdiction, “the fault is plaintiffs and in such instances regardless of the reason for delay, if service is not obtained within a year, prescription will run on plaintiffs claim.” Sansone v. Louisiana Power & Light Co., 164 So.2d 151, 154 (La.App. 1 Cir.1964). Such is the case here. Moreover, contrary to Plaintiffs contentions, it is well settled that “jurisdiction cannot be acquired by estoppel.” Mahoney v. Northwestern Bell Tel. Co., 377 F.2d 549 (8th Cir.l967)(col-lecting cases).

Nor am I persuaded by Plaintiffs other argument regarding her reasonable reliance on EGS’ representations regarding its principal place of business that were reflected on the Secretary of State’s website. Particularly, Plaintiff cites the fact that on March 16, 2000, the date she filed her federal complaint, that website reflected EGS’ domicile as 350 Pine Street, Beaumont, Texas. Given that representation, Plaintiff contends she was justified in concluding that EGS’ citizenship, for purposes of diversity jurisdiction, was Texas. Moreover, Plaintiff argues, based on the website, that EGS’ failure to identify any address for its principal place of business or a principal business address in Louisiana violated La. R.S. 12:104(B)(1). I find these arguments unpersuasive for two reasons.

First, a corporation’s “statements made to the secretary of state of a particular state are not binding for purposes of determining subject matter jurisdiction.” Harris v. Black Clawson Co., 961 F.2d 547, 550 (5th Cir.1992). Plaintiffs reliance on the Louisiana Secretary of State’s computer records to establish that EGS’ principal place of business was not in Louisiana is thus misplaced. Those computer records that the Plaintiff introduced merely reflect EGS’ compliance, or noncompliance (as Plaintiff contends), with La. R.S. | ¡¡12:304(4) and 308 A(2). Those statutes require foreign corporations doing business in this state to report both “[t]he address of the principal office of the corporation in this state” and “[a] registered office, which may, but need not, be the same as its business office in this state.” La. R.S. 12:304(4) and 308 A(2). Those computer records are of little, or no, assistance in resolving the jurisdictional issue presented.

Second, “[t]he question of what constitutes a corporation’s principal place of business within the meaning of the [diversity jurisdiction] statute is essentially one of fact to be determined upon the circumstances of each particular case.” Fletcher Cyc. Corp. § 432.10 (Perm. Ed.). In making that determination, the federal jurisprudence has developed various tests. In the federal Fifth Circuit, the test applied is the “total activity test.” Howery v. Allstate Ins. Co., 243 F.3d 912, 920 (5th Cir.2001)(eiting the seminal case, J.A. Olson Co. v. City of Winona, Miss., 818 F.2d 401, 404-10 (5th Cir.1987)). That test is a synthesis of the two traditionally applied approaches: (i) the nerve center approach — which focuses on where a corporation’s executive and administrative functions are controlled; and (ii) the place of activity approach — which focuses on where its company’s everyday business activities are performed. The difference between the two traditional approaches, however, has been characterized as “largely linguistic.” Mahoney v. Northwestern Bell Tel. Co., 258 F.Supp. 500, 502 (D.C. Neb.1966), aff'd, 377 F.2d 549 (8th Cir.1967). The jurisprudence has recognized that the two traditional approaches are not inconsistent, but rather complimentary. Id. Ultimately, the question is not which approach to apply, but rather “which consideration, on the totality of the evidence, based on the totality of the facts, predominates.” State Auto. Fin. Acquisition Corp. v. State Auto. Mut. Ins. Co., 289 F.Supp.2d 906, 910 (S.D. Ohio 2003).

A unique situation is presented by the procedural posture of this present case in that neither the federal court nor the trial court expressly performed the required | ^analysis for resolving the decisive jurisdictional issue of EGS’ principal place of business. To resolve the prescription issue presented in this appeal, which turns on whether the federal court is a court of competent jurisdiction, I believe it is necessary for this court to conduct that analysis.

The burden of proof on the jurisdictional issue was on Plaintiff for two reasons: (1) she is the party seeking to establish that jurisdiction was proper in federal court, and (2) her state court petition is prescribed on its face. Attempting to satisfy her dual burden of proof, Plaintiff relies solely on the Louisiana Secretary of State’s computer records and two unpublished federal decisions, discussed below, in which EGS asserted its principal place of business was in Texas. As discussed above, Plaintiffs reliance on the Secretary of State’s computer records to establish jurisdiction is misplaced.

Apparently the trial court based its decision that the federal court lacked jurisdiction on the two unpublished federal decisions, and Defendants argue that those two federal decisions are dispositive. Plaintiff acknowledges that those two decisions held that EGS’ principal place of business was in Louisiana, yet argues that EGS should be bound by its public pronouncements to the contrary in those two federal cases.

Those two federal decisions are Lafayette City-Parish Consol. Gov’t & Lafayette Utilities Systems v. Entergy Gulf States, Inc., 99-1919 (W.D. La.2000), and Spell v. Entergy Gulf States, Inc., 97-1228 (W.D. La.1998). In both Lafayette and Spell, the same procedural scenario was presented. EGS was sued in a Louisiana state trial court. EGS responded by removing the case to federal court based on diversity jurisdiction, asserting that its principal place of business was in Texas. Granting the plaintiffs motion to remand, the federal court in both cases 17applied the total activities analysis and found EGS’ principal place of business to be in Louisiana.

Although I agree with Plaintiff that those two unpublished decisions are not legally controlling, I find it appropriate to rely upon the facts outlined in those cases. Both parties relied upon those two decisions in the trial court. Plaintiff does not contend that the situation on March 2000, when she filed her federal suit, was any different than it was when those two cases were decided in 1998 and 2000. See Charles A. Wright and Arthur R. Miller & Edward H. Cooper, 13B Federal Practice & Procedure Jurisdiction and Related Matter 2d, § 3608 (2003 Supp.)(noting that diversity jurisdiction is determined by examining the parties’ citizenship at the time the action is commenced). Indeed, Plaintiff has implicitly acknowledged that the facts regarding EGS’ principal place of business at the time she filed her federal suit were as presented in those two cases. At the prescription hearing before the trial court, Plaintiffs counsel admitted that he believed, if forced to decide the jurisdictional issue, the federal magistrate judge would find subject matter jurisdiction lacking in this case.

I believe it is appropriate, given the unique situation presented in this case, for this court to conduct its own analysis of the jurisdictional issue, relying on the facts recited in those two federal decisions. Although it would have been more appropriate for the federal district court to decide this issue of federal diversity jurisdiction, I disagree with the majority’s decision to remand this matter to the trial court for another evidentiary hearing. Indeed, the majority’s decision to remand this matter overlooks the fact that Plaintiffs counsel has virtually conceded the inability to put forth any additional facts in support of Plaintiffs IsPQsition. Given that the federal court granted the request to place the case on administrative stay and given that the district court on remand will be in no better position that we are to resolve this issue, I find it appropriate to resolve it.

As noted above, the applicable test applied in the federal Fifth Circuit is the total activities test. That test synthesizes the two traditional approaches — the nerve center and place of activities approach. That test considers all relevant factors and focuses on “the nature, location, importance, and purpose of a corporation’s activities and the degree to which those activities bring the corporation into contact with the local community.” Howery, 243 F.3d at 920.

Although the factual determination of a corporation’s principal place of business must be made on a case-by-case basis, the federal courts in applying the total activities analysis have noted that three generalizations can be made. First, a corporation with far-flung activities will generally have its principal place of business at its sole nerve center. Second, a corporation with its sole operations in one state and its executive officers in another state will generally have its principal place of business in the state in which its operations are located. Third, when the corporation is passive and its “brain” is in another state, the situs of its brain is given greater significance. Olson, 818 F.2d at 410. Ultimately, however, a corporation’s principal place of business for purposes of diversity jurisdiction “is a fact question that follows no single inflexible test dependent solely upon the situs of the nerve center or upon the situs of activities of the corporation.” Olson, 818 F.2d at 406.

|t]To resolve the jurisdictional issue, I would filter the facts, as outlined in the two federal decisions, through the myriad of factors the courts have utilized in applying both the nerve center and the place of activity approaches. Starting with the nerve center approach, also called the “home office” approach, the familiar litany of factors utilized include:

from where the corporation’s highest level corporate policy is made; [2] where the corporation’s officers reside and work; [3]- where the corporation’s financial and administrative offices are; [4] where bank and accounting records are kept; [5] from where correspondence, orders, and collections are made; [6] from where corporate tax returns are filed; [7] where the board of directors meets; and [8] the corporation’s purported headquarters.

Richard A. Simon, Note, Attributing Too Much: The Fifth Circuit Perverts the Scope of Diversity Jurisdiction, 19 Cardozo L. Rev. 1857,1864, n. 49 (1998).

Applying those factors to the facts, it is significant that following EGS’ 1993 merger with Entergy, EGS’s headquarters, by all indications, shifted from Beaumont, Texas to New Orleans, Louisiana. Since 1994 all EGS’ corporate minutes have been kept in the New Orleans office; before 1994, its minutes were kept in Beaumont, Texas. Also evidencing its shift from its former nucleus in Texas, since the beginning of 1994, no board meetings have been held in Texas, but twelve have been scheduled in Louisiana.

EGS’ corporate officers reside and work primarily in Louisiana. Its Chairman of the Board and Chief Executive Officer are located in New Orleans. Although EGS has accounting, legal, engineering, environmental, construction, and purchasing offices in both Texas and Louisiana, its Chief Accounting Officer, Vice-President of Customer Accounts, and Vice-President of Human Resources are all located in Louisiana, and they exercise authority in their respective fields over EGS’ Texas operations. EGS’ collections are made in Louisiana, where its [^customer remittance center is located. Finally, EGS’ corporate representative stated at a deposition in Spell that “New Orleans is the headquarters.” I would thus conclude that the “nerve center” approach establishes EGS’ principal place of business is in Louisiana.

The second approach is the place of activity approach. When the dispute is over which of two or more states is a corporation’s place of activity, it is necessary to engage in “a general survey of the corporation’s activities at each place in respect to their character, importance and amount.” Fletchers, supra at § 4238.10. Under this approach, the following factors are examined to determine the corporation’s place of activity:

where the actual activity of a corporation takes place, whether it be manufacturing, mining, or sales; [2] from where the day-to-day activities are controlled; [3] where most of the corporation’s employees work; and [4] from where the most of the corporation’s income is derived.

Simon, supra at 1864, n. 50.

The business activity in which EGS engages is generating, supplying, and servicing electricity. As of the time of the Lafayette decision (in 2000), seventy-seven percent of EGS’ total tangible assets were located in Louisiana. Most of EGS’ employees, albeit a small majority (843 employees in Louisiana as opposed to 754 in Texas), worked in Louisiana. EGS derived the majority of its income from Louisiana; fifty-nine percent of its gross retail revenues were generated in this state. Given these facts, I would conclude, as did the federal court in Lafayette, that the place of activities test supports a finding that Louisiana is EGS’ principal place of business.

| n Summarizing, Plaintiffs arguments on appeal are better described as pleas to equity, based on EGS’ representations, than true attempts to establish that Louisiana was not EGS’ principal place of business when the federal suit was commenced. Federal subject matter jurisdiction, however, cannot be established by estoppel. Based on the above analysis, I would conclude that EGS’ principal place of business at the time Plaintiff commenced her federal suit was in Louisiana and that, as in Venterella, the federal court was not a court of competent jurisdiction. Because EGS’ principal place of business is in Louisiana, the federal court was not a court of competent jurisdiction. For the reasons, I would affirm the trial court’s decision maintaining Defendants’ exception of prescription.

      . A court of competent jurisdiction is one in which the court "has jurisdiction over the subject-matter of, and is the proper venue for, the action or proceeding.” La.Code Civ. Proc. art. 5251(4).

      . Westinghouse and 3M contend that Plaintiffs argument of equitable estoppel does not bar either of them from asserting prescription because there were no allegations that either Westinghouse or 3M did anything upon which Plaintiff justifiably relied.

      . Contrary to Plaintiff's contention regarding EGS’ representations in those federal cases that its principal place of business is in Texas, the jurisprudence holds that a party's intentions, when contrary to the factual reality, are "entitled to little weight when in conflict with facts.” Hendry v. Masonite Corp., 455 F.2d 955, 956 (5th Cir.), cert. denied, 409 U.S. 1023, 93 S.Ct. 464, 34 L.Ed.2d 315 (1972).

      . Plaintiff relied on these two decisions in support of two contentions: (1) that EGS had pronounced in two prior judicial proceedings its position that its principal place of business was in Texas, and (2) that EGS’ "nerve center” was in New Orleans, Louisiana, thus making venue proper there. Entergy relied on these two decisions in support of its position that its principal place of business was in Louisiana, despite the fact it unsuccessfully asserted a contraiy position in those two cases.

      . Applying the three Olson generalizations to EGS's operations, the two unpublished federal decisions differed on whether it could be said that EGS has a "sole” nerve center in any one state. The court in Spell found the facts lead to the "inescapable conclusion that EGS's [sic] nerve center is in New Orleans, Louisiana.” The court in Lafayette noted that while Louisiana may not be EGS' "sole” nerve center, it appears to be its 'primary headquarters” and thus the "nerve center” test weighs in favor of Louisiana being EGS' principal place of business.” The Spell court stated that it could not "say that the operations in one state so predominate as to make that state the primary center of activity.” That court, however, found EGS’ nerve center clearly to be Louisiana given that "[t]he company is controlled and managed from the New Orleans, Louisiana office.” Regardless, both federal courts concluded that Louisiana was EGS' principal place of business.

      . At the time of the Lafayette decision (in 2000), nineteen of EGS’s twenty-two officers and directors resided and worked in Louisiana. At the time of the Spell decision (in 1998), sixteen of the twenty officers and directors resided and worked in Louisiana.

      . At the time of the earlier Spell decision (in 1998), 1,023 EGS employees worked in Texas and 970 worked in Louisiana. At that point in time, the federal court noted that EGS had significant operations in Texas and Louisiana, as well as in Mississippi and Arkansas. Nonetheless, the Spell court found it significant that "more of EGS's [sic] revenue is generated in Louisiana, rather than Texas.”


source: Caselaw Access Project

author: I,DAVID S. GORBATY, Judge. I,CANNIZZARO, J.,

license: Public Domain

text:
    STATE of Louisiana v. Mirodello ASHFORD.
    No. 2003-KA-1691.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 16, 2004.
    Rehearing Denied June 30, 2004.

      Eddie J. Jordan, Jr., District Attorney, Nick Orechwa, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellee.
    Pamela S. Moran, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge DAVID S. GORBATY, Judge EDWIN A. LOMBARD, Judge LEON A. CANNIZZARO JR.).
   I,DAVID S. GORBATY, Judge.

On July 18, 2002 the State filed a bill of information charging the defendant-appellant Mirodello Ashford with two counts of violating La. R.S. 14:64 relative to armed robbery. The defendant was arraigned and entered a not guilty plea to both counts on July 31, 2002. The pretrial motion hearing was held on August 14, 2002, at which time the court denied the defendant’s motions to suppress. On January 14, 2003 the defendant appeared for trial, at which time a twelve-person jury was selected. The trial was recessed and then concluded on January 16, 2003, when the jury returned verdicts of guilty as charged on both counts. On January 24, 2003, the State filed a multiple bill of information charging that the defendant was a third offender. The hearing began on April 30, 2003 and was then recessed. On May 14, 2003, the court found the defendant to be a third offender as to count one. The court sentenced the defendant to one hundred and ninety-eight years on count one and ninety-nine years on count two. Both sentences are at hard labor and to be served without the benefit of probation, parole, or suspension of sentence, to run concurrently with each other.

On May 21, 2003, counsel appeared and filed a motion to reconsider sentence, which was denied, and motions to withdraw and for appeal, which were | ¡^granted. The court appointed the Louisiana Appellate Project to represent the appellant. After the record was lodged, upon motion of appellate counsel, the record was supplemented with the transcript of the motion hearing held on August 14, 2003. On March 31, 2004, pursuant to an order of this Court remanding the matter, the trial court denied the motion for post judgment verdict of acquittal.

STATEMENT OF THE FACTS

On July 3, 2003 at approximately 9: 15 p.m., Quiana Henderson and Rachell Collins left Ms. Henderson’s home at 3301 LaSalle Street. As Ms. Henderson was locking the gate, Ms. Collins saw two people walking on the street. The first one passed by them and made some type of joke. The second man, whom she later identified as the defendant, was on the opposite side of the street and made eye contact with her. Then, Ms. Henderson walked around the house to put garbage into the dumpster in the parking lot, while Ms. Collins opened the trunk of her vehicle to retrieve a CD player which Ms. Henderson had asked her to get. Suddenly, Ms. Collins heard someone say, “Bitch, give me your purse.” She realized that the man speaking to her was the same one who had been walking on the opposite side of the street. At first, she told him he must be kidding and to go about his business, but then she saw that he had a weapon. Believing she was about to die, she gave the defendant her purse and keys. She then lay on the ground at his direction.

Quiana Henderson returned from dumping the trash and saw her friend on the ground, but could not see anyone else because the trunk lid was raised. She heard a man saying, “Bitch, give me your purse and your keys, and get on the ground.” She did not do anything at first because of her shock. The defendant then came out from behind the trunk, and she complied with his orders after he 13threatened to blow her brains out. As both victims were on the ground, the robber went to Ms. Collins’ car and tried to open the door, but the alarm went off. He came back to them, threw the keys down, pointed the gun at Ms. Henderson’s head, and demanded that Ms. Collins turn the alarm off or he would blow Ms. Henderson’s brains out. After Ms. Collins showed the defendant how do turn the alarm off by pressing the button on the key, he went back to the car, threw the women’s purses inside, and prepared to drive off. However, he did not do so immediately because there was a police unit on the corner of Washington and LaSalle handling a traffic matter. After a few minutes, the defendant left in Ms. Collins’ vehicle.

After the defendant left the scene, Ms. Henderson jumped up and ran to the corner. There she informed the police officer that she and her friend had just been robbed. She told the officer about the car, which was a white 1997 Achieva with tinted windows and a Texas license plate, and gave a brief description of the robber. The clothing description consisted of a baseball cap and a printed shirt. She further described the perpetrator as a black male in his thirties. A short time later the police informed Ms. Henderson and Ms. Collins that the car had been located and that they were going to be transported to that scene for a possible identification of the robber. The women were taken to the location where the car had been found. There, they were asked separately to view two men standing on the corner. They both identified the defendant as the person who robbed them. The identifications were repeated in court, with the additional fact that at trial the defendant had facial hair, but he did not at the time of the robbery.

In addition to the trial testimony of the two victims, the State presented testimony from police officers involved in the case. Officer Ashanta Franklin [¿testified that she was working in the Sixth District on July 3, 2002 with her partner, Officer Tommy Felix. They had just completed a traffic stop when two women came running up and said that they had just been robbed. The victims were very upset and hysterical. Officer Franklin calmed them down and obtained a description of the car that the perpetrator had taken. Within seconds of the victims’ report of the robbery, Officer Franklin was able to broadcast the description of the vehicle. Within two or three minutes, a response came back that the vehicle had been located. Officer Franklin stayed with the victims while Officer Felix went to the scene of the apprehension of the suspect. A detective then came back and picked them up so that the victims could view the suspect. Officer Franklin confirmed that the defendant was the person who was identified by both victims.

Officer Marcell Mejia testified that he was a Sixth District officer on July 3, 2002. On that date, he heard the dispatch from Officers Franklin and Felix regarding the armed robbery that had just occurred in the area of Washington and LaSalle. At the time, he was on a routine patrol on LaSalle Street near Third Street. He drove in the direction of Washington Avenue, but instead of staying on LaSalle, he turned onto a smaller street because, in his experience, that is what a suspect would do. When Officer Mejia was between Danneel and Third Streets, he saw a white car matching the broadcasted description, including that the vehicle had a Texas license plate. Officer Mejia activated his lights and tried to stop the vehicle. The driver, who Officer Mejia identified as the defendant, pulled over as if he was going to stop; Officer Mejia pulled his unit over but did not immediately exit his car. At that point, the defendant drove off at a high rate of speed. A chase ensued for about three blocks, ending when the defendant hit a curb and disabled | Rthe vehicle. Other officers responded to the scene, and the defendant was forcibly removed through the driver’s side window when he failed to comply with orders to exit the vehicle. Immediately after he was removed from the car, Officer Mejia observed a weapon on the front seat. He also saw two purses on the floorboard. The defendant was wearing a baseball cap at the time he was removed from the vehicle.

Detective Ray Jones testified that he was assigned as a Sixth District robbery detective and set up the on-scene identification of the defendant by the victims. Detective Jones stated that he stood next to the defendant while another officer, Detective James, transported the victims to First and Danneel Streets. Detective James individually took the victims over to Detective Jones and .the defendant; each victim identified the defendant as the man who had robbed her minutes before. Detective Jones also viewed the scene of the defendant’s capture. He observed the vehicle, a hat next to it on the ground, a gun on the seat, and the victims’ property inside the vehicle. He also testified that currency was seized from the defendant’s pocket, although it was another officer who searched the defendant. Detective Jones further stated that approximately ten minutes elapsed between the time he arrived on the scene and the victims arrived for the identification procedure.

The defense presented two witnesses at trial. William Stills, Jr. testified that the defendant and he worked together. On July 3rd, they had picked up some lumber for a job and then went to a meeting of a second-line club to which Mr. Stills belonged. The club meeting was held at a home on Apple and Monroe Streets. The meeting ended at around 9:15 p.m.; Mr. Stills then drove the defendant to the home of Beverly Childs behind the Greater St. Stephens Church in | (¡the area of Loyola and Philip Streets. He estimated that he dropped the defendant off at around 9:30 p.m.

Beverly Childs was the second defense witness. She stated that she lived at 2304 Loyola Avenue. She testified that she saw the defendant with William Stills at approximately 7:00 when she was getting off work and was walking down Washington Street to LaSalle. The defendant and Stills stopped and spoke with her. The defendant said he was on his way to the Essence Fest. After some discussion about the time of the last show, the defendant and Stills left, and she went home. She next saw the defendant between 9:00 and 9:15 p.m. when he came to her house. Ms. Childs stated that the defendant stayed at her residence until the news came on at 10:00 p.m. The defendant left to get food at a place called the Purple Rain, which was approximately five blocks from her home. She testified that the intersection of Philip and Danneel Streets was approximately two blocks from her home, and that the defendant would have passed that intersection to get to the Purple Rain. Ms. Childs did not see the defendant again.

The defendant did not testify at trial.

ERRORS PATENT

A review of the record for errors patent reveals one. The record when lodged did not reflect that the trial court ruled on the motion for post-judgment verdict of acquittal, an omission which was noted by the appellant pro se in a supplement to his brief. On March 18, 2004, this Court remanded this matter to the trial court to rule on the motion if the court had not already done so. On March 31, 2004 the trial court denied the motion.

La.C.Cr.P. art. 873 provides as follows:

|7If a defendant is convicted of a felony, at least three days shall elapse between conviction and sentence. If a motion for a new -trial, or in arrest of judgment, is filed, sentence shall not be imposed until at least twenty-four hours after the motion is overruled. If the defendant expressly waives a delay provided for in this article or pleads guilty, sentence may be imposed immediately.

La.C.Cr.P. art. 821(A) provides that “[a] motion for post verdict judgment of acquittal must be made and disposed of before sentence.” Although the trial court has now acted on the motion, it did not do so prior to the sentencing held on May 14, 2003. Furthermore, appellate counsel has assigned as error the excessiveness of the sentences. Therefore, the sentences must be vacated, and the case remanded for resentencing.

No other errors patent are noted.

DISCUSSION

ASSIGNMENT OF ERROR NUMBER 1 & PRO SE ASSIGNMENT NUMBER 4

In the first assignment of error raised by counsel, and the fourth error assigned by the appellant in his pro se brief, they argue that the trial court erred in denying the motion to suppress the identifications which occurred one-on-one. Citing State v. Haynes, 2002-1648 (La. App. 4 Cir. 4/30/03), 847 So.2d 653, this Court in State v. Ford, 2003-1321, pp. 6-7 (La.App. 4 Cir. 2/18/04), 867 So.2d 835, 840-41, recently reviewed the standard for suppressing a one-on-one out of court identification procedure:

A defendant who seeks to suppress an identification must prove both that the identification itself was suggestive and that a likelihood of misidentification existed as a result of the identification procedure. State v. Prudholm, 446 So.2d 729, 738 (La.1984) State v. Valentine, 570 So.2d 533 (La.App. 4 Cir.1990). One-on-one confrontations between the suspect and the victim, while |snot favored by law, are generally permissible when the accused is apprehended within a short time after the offense and is returned to the scene of the crime for an on-the-spot identification. State v. Robinson, 404 So.2d 907, 909-910 (La.1981). Such a process assures reliability and fosters prompt release of innocent suspects. Id.
Even if the identification could be considered suggestive, it is the likelihood of misidentification that violates due process, not merely the suggestive identification procedure. State v. Thibodeaux, 98-1673 (La.9/8/99), 750 So.2d 916, 932. Fairness is the standard of review for identification procedures, and reliability is the linchpin in determining the admissibility of identification testimony. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 2253[, 53 L.Ed.2d 140] (1977). Even a suggestive, out-of-court identification will be admissible if it is found reliable under the totality of circumstances. State v. Guy, 95-0899 (La.App. 4 Cir. 1/31/96), 669 So.2d 517.

The U.S. Supreme Court has set forth a five-factor test to determine whether a suggestive identification is reliable: (1) the opportunity of the witness to view the assailant at the time of the crime; (2) the witness’s degree of attention; (3) the accuracy of the witness’s prior description of the assailant; (4) the level of certainty demonstrated by the witness; and (5) the length of time between the crime and the confrontation. Manson v. Brathwaite, supra; Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). In evaluating the defendant’s argument, the reviewing court may consider all pertinent evidence adduced at the trial, as well as at the hearing on the motion to suppress the identification. State v. Higgins, 01-368 (La.App. 5 Cir. 10/18/01), 800 So.2d 918; State v. Clennon, 98-1370 (La.App. 5 Cir. 6/30/99), 738 So.2d 161, 164. A trial court’s determination on the admissibility of identification evidence is entitled to great weight and will not be disturbed on appeal in the absence of an abuse of discretion. State v. Bickham, 404 So.2d 929 (La.1981); State v. Offray, 2000-0959 (La.App. 4 Cir. 9/26/01), 797 So.2d 764.

|9In Ford, the victim was accosted by the defendant in the bathroom of a French Quarter restaurant. When one of her friends went to check on her, the defendant fled and was pursued by other friends of the victim. They were able to apprehend the defendant a few blocks away and held him until police arrived. One of the friends then returned to the restaurant to get the victim who went to the scene and identified the defendant. This Court held that it was reasonable and appropriate to attempt to secure an identification immediately. The Court cited State v. Carter, 99-2234 (La.App. 4 Cir. 1/24/01), 779 So.2d 125, which involved a fact situation very similar to the instant one. In that case, several people were robbed within a short period of time. One of the victims was robbed by the defendant, who exited a white van and then fled in it after the robbery. She was able to describe the vehicle to the police. While she was still talking to the officers, she learned that the police were investigating a disturbance that had just occurred nearby. That disturbance was another armed robbery involving suspects who fled in a white van at high speed when a police officer attempted to pull them over. The first victim was transported to the scene of the disturbance where she observed the defendant in handcuffs. She identified him as the person who had robbed her. She also identified her purse and a gun that had been inside the purse when it was stolen; these items had been found at the same location where the defendant and another suspect were apprehended hiding after' they had fled from the van. The victims of the other robberies also identified the defendant as the person who had robbed them. This Court concluded that, even if the procedure for identifying the defendant was suggestive, it was reliable and reasonable “[g]iven the fact that he hnhad just emerged from a van involved in a high-speed chase with police officers.... ” Carter, p. 15, 779 So.2d at 136.

The facts in the instant case are just as strong, if not stronger, as those in Carter to justify the show-up identification procedure used. A description of the vehicle stolen from the victims was broadcast within moments of the robbery, and Officer Mejia made contact with the stolen vehicle only minutes later. When he attempted to stop the vehicle, the driver sped off, stopping only because he had disabled the vehicle. At the motion to suppress identification hearing, the State presented the testimony of Officer Shannon Kleinsehmit who related that he also responded to the broadcast report of a robbery suspect in a white Achieva with Texas plates. Officer Kleinsehmit, who was in a separate vehicle from Officer Mejia, participated with other units in a canvas of the area where the suspect was believed to be headed. The stolen vehicle was located at Danneel and Philip Streets within five to seven minutes of the dispatch. Officer Kleinsehmit was behind Officer Mejia’s unit when the latter tried to stop the defendant, and both units pursued the defendant until he wrecked the victim’s vehicle. The defendant was apprehended while he was still inside the car; the victims’ purses were inside along with a firearm.

Both victims testified at the motion to suppress hearing and related that they were separated from each other prior to the identification procedure. The identifications occurred less than thirty minutes after the robbery. The victims identified their purses at the scene and were allowed to take them away after they had been checked and photographed.

| n Furthermore, Quiana Henderson testified at the motion hearing that, when she viewed the defendant, he was not alone; instead, he was standing with another black male who was wearing “slacks and a casual-like shirt.” Ms. Henderson did not learn until later that this second male was Detective Jones. Ms. Collins also testified that defendant was with a second man when she made the identification. She stated that she did not see any handcuffs on the defendant and that both of the men had their arms behind their backs.

Under the five Manson v. Brathwaite factors, the identification appears reliable. The victims testified that there was lighting outside Ms. Henderson’s house from a nursing home parking lot next door. Ms. Collins actually viewed the defendant twice, once when he made eye contact walking down the street, and again when he demanded her valuables. Both victims were certain of their identifications which occurred less than thirty minutes from the incident. At the motion hearing Officer Franklin testified that the victims told her that they would be able to identify the perpetrator. Of the five factors, only the lack of an initial description appears to support a finding that the identifications were not reliable. Neither victim gave a detailed description of the perpetrator to Officer Franklin, merely stating that he was a black male who was older. However, at trial Officer Franklin also testified that, at the time, she did not ask the victims any specific questions about the perpetrator because she was trying to get a vehicle description because she “knew that they would identify him once they got the car back.” Thus, from the initial report of the victims, it appeared that they were confident that they had a sufficient opportunity to view the perpetrator.

Overall, it appears that the identification procedure in this case was reasonable and the results reliable. This assignment of error has no merit.

1 ^ASSIGNMENT OF ERROR NUMBER 2

In counsel’s second assignment of error, she contends that the trial court imposed excessive sentences upon the defendant. However, as discussed in the error patent review above, both of the sentences must be vacated and the matter remanded for resentencing. Therefore this issue need not be addressed, but instead should be pretermitted, reserving to the appellant the right to appeal his resentencing.

PRO SE ASSIGNMENT OF ERROR NUMBER 1

In his first pro se assignment of error, the appellant argues that the assistant district attorneys who prosecuted him at trial lacked the authority to do so. This issue was raised during trial by defense counsel during a bench conference. The court placed the discussion on the record after the State rested its case. According to the trial court, the defense objected to the trial going forward because he felt that the prosecutors were “not authorized under law to prosecute on behalf of the State of Louisiana in this state; more particularly, in this parish.” The allegation was that there was “no evidence that Mr. Jordan [sworn in' three days earlier as District Attorney in and for the Parish of Orleans] ha[d] in fact granted commissions and/or warrants under the state provision that provide [sic] compensation for the District Attorneys” who were present during the jury selection and trial. Defense counsel was then given the opportunity to expound on his position, and he stated:

What I have been informed of, and the district attorneys who are here can verify, is that on Tuesday, after selection and swearing of the Jury, the assistant district attorneys were called back to the District Attorney’s Office and all credentials issued by Mr. Harry Con-nick, the former District Attorney for the Parish of Orleans, were recalled, .... If all credentials issued by Mr. Harry Connick were in fact withdrawn and canceled, otherwise surrendered and Mr. Jordan did not issue new credentials ..., then I do not believe they’re authorized to practice on behalf of the state.

|13The State was asked to respond, and one of the prosecutors informed the court that it was only a matter of “inventory” to turn in their property so that it could be reissued with Mr. Jordan’s name on their identifications. The prosecutor denied that any of them were terminated as employees, but instead told the trial court that they were informed that they were to continue working as they had been. The second prosecutor confirmed this; both indicated that the prosecutor who assisted with jury selection was also still employed and was handling a rape case in another section of court. The court overruled any defense objection to the trial proceeding, finding that there was no basis to find that the three assistant district attorneys who had participated in the jury selection and trial were not authorized to continue in their employment.

After the trial court had overruled the defense objection, defense counsel noted that he might need to obtain a subpoena duces tecum to establish whether the district attorney’s office had documentation to show that the assistants were still employed. The trial court indicated that such a subpoena would be issued if the matter were pursued during any post conviction relief proceedings.

Nothing in the appellate record shows that the court’s ruling at trial was erroneous. The prosecutors stated that their employment had never been terminated. No evidence to contradict this was presented at any proceedings following the trial. On the record before this Court, it appears that at most, the prosecutors had surrendered their employee identifications so that new ones reflecting the name of the new district attorney could be issued.

This assignment of error lacks merit. PRO SE ASSIGNMENT OF ERROR NUMBER 2

114In his second assignment of error, the appellant pro se contends that the trial court erred in allowing the State to introduce the hat and gun seized from the scene because the officer who actually seized these items did not testify. Defense counsel objected on the grounds that the chain of custody and foundation for introduction of these items were insufficient.

A trial court has great discretion in determining whether a sufficient foundation has been laid for the introduction of evidence. State v. Lewis, 97-2854, p. 31 (La. App. 4 Cir. 5/19/99), 736 So.2d 1004, 1022. In State v. Merrill, 94-0716 (La.App. 4 Cir. 1/31/95), 650 So.2d 793, 799, this Court found:

[A] lack of positive identification or a defect in the chain of custody goes to the weight of the evidence rather than its admissibility.
In order to introduce demonstrative evidence at trial, the law requires that the object be identified. This identification may be visual (i.e., by testimony at the trial that the object exhibited is the one related to the case) or it may be by chain of custody (i.e., by establishing the custody of the object from the time it was seized to the time it was offered in evidence.)
The law does not require that the evidence as to custody eliminate all possibility that the object has been altered. For admission, it suffices that it is more probable than not that the object is the one connected to the case. (Citations omitted).

According to the appellant, the police report reflects that it was Officer Tommy Felix who personally seized the hat and gun; however a copy of the report is not in the record. Nevertheless, Officer Mejia testified at trial that he personally did not seize these items, but he did identify them in court as the items that he saw on the scene. He also identified photographs of the scene that depict the hat and the gun. Officer Mejia further testified that he initially took “custody” of the hat and gun and turned them over to the officers who were investigating the incident as |1Bthey were in charge of documenting the evidence. Thus, it does not appear that the trial court abused its discretion in determining that a sufficient basis for introduction of the evidence existed.

This assignment of error lacks merit.

PRO SE ASSIGNMENT OF ERROR NUMBER 3

In his third assignment of error the appellant pro se contends that he was denied his right to a fair trial because he was not given an opportunity to cross-examine Officer Felix who allegedly seized the physical evidence. He avers that the officer failed to appear when subpoenaed. However, the record does not support his contention that the defense subpoenaed the officer and he failed to appear. The defense witness list consistently contained only the names of three persons, Williams Stills, Beverly Childs and Nekeysha Bryan. Of these witnesses, the first two testified on his behalf.

La.C.Cr.P. art. 841 provides that “[a]n irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence.” Nothing in the trial transcript indicates that the defense counsel alleged he had requested a subpoena for Officer Felix, nor did counsel move for a recess or a continuance when Officer Felix failed to testify. Considering the total lack of any evidence in the record that the defendant’s right to call witnesses was denied, this assignment of error lacks merit.

| ^CONCLUSION

Accordingly, for the foregoing reasons, the defendant’s convictions are affirmed. The appellant’s sentences are vacated, and this matter is remanded for resentencing.

CONVICTIONS AFFIRMED; SENTENCES VACATED; REMANDED FOR RESENTENCING.

CANNIZZARO, J., concurs in part and dissents in part.

I,CANNIZZARO, J.,

CONCURS IN PART AND DISSENTS IN PART.

I concur with the majority in affirming the defendant’s conviction. I respectfully dissent, however, from the majority’s decision to vacate the defendant’s sentence and remand this case for resentencing.

In this case the trial court judge did not deny the defendant’s motion for post verdict judgment of acquittal until after the defendant had been sentenced. As noted by the majority, La. C.Cr.P. art. 821(A) provides that a motion for post verdict judgment of acquittal must be disposed of before sentencing. This mandate was not followed in the instant case.

Although I agree that failure to comply with La. C.Cr.P. art. 821(A) constituted an error patent, I believe that the error was harmless under the circumstances of this particular case. The error constituted a technical violation of the law and did not affect the substantive rights of the defendant. There was no indication whatsoever in the record that the trial court judge would in any way adjust, modify, or otherwise change the defendant’s sentence if he were to reconsider it. No motion to reconsider the sentence was filed by either the defendant or the state in this case, and the trial court judge did not reconsider the sentence on the court’s own motion. The trial court judge sentenced the defendant to the maximum sentence possible, and there is no reason to believe that the trial | ¡>court judge would change the sentence in any way because of the technical error that occurred.

In addition to the legal reasons for not vacating the defendant’s sentence, there are also compelling practical reasons not to vacate the sentence. In the interest of judicial economy, the trial court should not be required to duplicate the sentencing hearing when it is clear that the defendant’s sentence will remain the same. Also, there is always the potential for danger in transporting violent, convicted felons from the Department of Corrections facilities, to crowded courthouses, especially in large urban areas. In this case the defendant’s ultimate sentence and his constitutional rights will not be affected by vacating the present sentence. Therefore, the risk that would be incurred by placing the defendant in close proximity to the general public in a New Orleans courthouse is not justified.

Because I would not vacate the defendant’s sentence, I would also consider at this time the defendant’s claim that his sentence is excessive. The majority’s decision results not only in a lack of judicial economy at the trial court level, but also at the appellate level, because we will now have to revisit the defendant’s appeal after he is resentenced.

      . Officer Mejia did not testify at the pretrial hearing but did testify at trial.

      . In the motion for post verdict judgment of acquittal, counsel averred that the officer who testified was not the one who seized the evidence, and thus it should not have been admitted (R. 68). Counsel did not aver that he attempted to call the officer who seized the evidence as a witness and was denied the opportunity to do so.