author: MICHAEL E. KIRBY, Judge. ARMSTRONG, C.J.,

text:
    Glynn R. CYPRIEN v. BOARD OF SUPERVISORS OF the UNIVERSITY OF LOUISIANA SYSTEM and Nelson J. Schexnayder, Jr.
    No. 2005-CA-1247.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 2007.

      Scott P. Yount, Darrin L. Forte, Preston & Cowan, L.L.P., New Orleans, LA, for Plaintiff/Appellant.
    Stephen J. Oats, Robin L. Jones, Oats & Hudson, Lafayette, LA, for Defendants/Appellees.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE, Judge DAVID S. GORBATY and Judge LEON A. CANNIZZARO Jr.).
   MICHAEL E. KIRBY, Judge.

| Plaintiff, Glynn Cyprien, appeals the trial court judgment, granting the exception of improper venue filed by defendants, Board of Supervisors of the University of Louisiana System, Nelson J. Schexnayder, Jr. and Elwood J. Broussard, and transferring this case to Lafayette Parish.

On August 13, 2004, plaintiff filed an original petition for damages against defendants, Board of Supervisors of the University of Louisiana System and Nelson J. Schexnayder, Jr., alleging breach of contract and defamation claims. This case stems from a written employment contract dated May 19, 2004 in which plaintiff was hired by the Board of Supervisors for the University of Louisiana System as the men’s head basketball coach at the University of Louisiana at Lafayette (“ULL”). Defendant Schexnayder is the ULL Athletic Director. According to the plaintiffs petition, Mr. Schexnayder unilaterally terminated plaintiffs contract on July 16, 2004 without cause, justification or reason after receiving information regarding plaintiffs educational background and qualifications. Plaintiff also claims that the Board of Supervisors of the University | aof Louisiana System breached its contract with plaintiff in failing to pay him all amounts owed for work performed by plaintiff prior to July 16, 2004. Plaintiff claims that the actions of Mr. Schexnayder and the Board of Supervisors of the University of Louisiana System render the Board liable to plaintiff for damages for breach of contract as stipulated in the employment contract.

Plaintiffs original petition also included a defamation claim against defendant Schexnayder. This claim stems from statements allegedly made by Schexnayder to reporters from various media outlets, including The Times-Picayune of New Orleans, The Advertiser of Lafayette and WWL Radio in New Orleans. According to the petition, Mr. Schexnayder told reporters that plaintiff lied on his resume, overstated his qualifications and otherwise failed to provide ULL with accurate information concerning plaintiffs education and job experience. Plaintiff alleges that the statements allegedly made by Mr. Schex-nayder were false and made with malice in an attempt to smear plaintiffs name and reputation in the media so as to limit the Board’s financial exposure, establish a false predicate for terminating plaintiffs contract and to mitigate Mr. Schexnay-der’s personal responsibility for hiring plaintiff.

In a first supplemental and amending petition filed on October 26, 2004, plaintiff added Elwood J. Broussard as a defendant in his defamation claim. Broussard is the ULL Director of Purchasing and Personnel Services. Plaintiffs claim against Broussard is based on a letter sent by Broussard to the Unemployment Insurance Service for the State of Oklahoma. This letter was sent | ¡¡in conjunction with a proceeding involving an application for unemployment compensation benefits, which plaintiff made following his termination at ULL. Plaintiff left a coaching position at Oklahoma State University when he accepted the ULL coaching position. According to plaintiffs first supplemental and amending petition, Broussard stated in the letter at issue that plaintiff “intentionally and fraudulently misrepresented pertinent information regarding his educational background and achievements in his application for employment.” Plaintiff claims that this statement was known by Brous-sard to be false, and was made in an attempt to defeat plaintiffs claim for unemployment benefits made in the State of Oklahoma.

Plaintiff also claimed in his first supplemental and amending petition that defendant Schexnayder defamed him in a hearing related to plaintiffs unemployment claim. Plaintiff alleges that Mr. Schexnay-der testified in that hearing that plaintiff provided false and misleading information to ULL regarding his education credentials in order to secure the position of head basketball coach, that Mr. Schexnayder knew his testimony was false and that his false statements were made in an attempt to defeat plaintiffs claim for unemployment compensation benefits.

Defendants filed numerous exceptions to plaintiffs petitions, including an exception of improper venue, or in the alternative, an exception of forum non conveniens. Defendants argued that Orleans Parish is not a parish of proper venue for plaintiffs claims, and that his lawsuit should be dismissed. Alternatively, | ¿defendants argued that if the court determined that venue is proper in Orleans Parish, then the doctrine of forum non conveniens dictates that this matter be transferred to Lafayette Parish. Plaintiff opposed the exceptions, arguing that Orleans Parish is the proper venue for this lawsuit.

Following a hearing on the exceptions, the trial court granted the defendants’ exception of improper venue, and ordered that all open issues in this matter be transferred to Lafayette Parish. In reasons for judgment, the trial court stated that Lafayette Parish is the proper venue for this matter as the primary defendants, Mr. Schexnayder and Mr. Broussard, are residents of Lafayette Parish, the contract was executed in Lafayette Parish and the cause of action arose in Lafayette Parish. The court found that under the terms of the contract, plaintiffs job was to be performed in Lafayette, as he was hired to coach the men’s basketball team at the University of Louisiana in Lafayette. Plaintiff now appeals.

On appeal, plaintiff argues that the trial court erred in granting the defendants’ exception of improper venue because the facts of this case dictate that venue is proper in Orleans Parish under La. C.C.P. articles 74 and 76.1. Plaintiff also argues that the trial court erred in utilizing the doctrine of forum non conveniens to transfer the case to Lafayette Parish. Alternatively, plaintiff argues that if this Court finds that Orleans Parish is an improper venue, the case should be transferred to East Baton Rouge Parish where venue is proper pursuant to La. R.S. 13:5104.

|sWe first note that there is no indication in the trial court’s judgment that the doctrine of forum non conveniens was utilized. The trial court found that venue was improper in Orleans Parish and transferred the matter to Lafayette Parish. Accordingly, plaintiffs argument that the trial court improperly utilized the doctrine of forum non conveniens in this case is without merit.

The de novo standard of review is applicable in a case involving the granting of an exception of improper venue. Premier Dodge, L.L.C. v. Perrilloux, 2005-0554 (La.App. 4 Cir. 1/25/06), 926 So.2d 576, citing Crawford v. Blue Cross and Blue Shield of Louisiana, 2000-2026 (La. App. 4 Cir. 12/5/01), 814 So.2d 574. The general rules of venue are set forth in La. C.C.P. article 42. However, La. C.C.P. article 43 states that these general rules are subject to the exceptions provided in articles 71 through 85 and as othei*wise provided by law. The exceptions set forth in La. C.C.P. articles 74 and 76.1 are pertinent to this case.

La. C.C.P. article 74 states, in pertinent part, as follows:

An action for the recovery of damages for an offense or quasi offense may be brought in the parish where the wrongful conduct occurred, or in the parish where the damages were sustained.

La. C.C.P. article 76.1 states:

An action on a contract may be brought in the parish where the contract was executed or the parish where any work or service was performed or was to be performed under the terms of the contract.

In arguing that venue is proper in Orleans Parish under La. C.C.P. article 74, plaintiff states that wrongful conduct occurred and damages were sustained by him | (¿o his reputation in his hometown of New Orleans when allegedly defamatory remarks made by Mr. Schexnayder at a Lafayette press conference and to a reporter by telephone were published in the New Orleans Times-Picayune and circulated in Orleans Parish. He also argues that wrongful conduct occurred in Orleans Parish when Mr. Schexnayder testified by telephone from New Orleans in plaintiffs Oklahoma unemployment hearing, and allegedly made defamatory comments about plaintiff to all those participating in the telephone hearing.

We find merit in plaintiffs argument that venue is proper in Orleans Parish due to allegedly defamatory statements made by Mr. Schexnayder during a hearing on plaintiffs Oklahoma unemployment claim in which Mr. Schexnayder participated by telephone from New Orleans. The four elements necessary to establish a claim for defamation are: (1) a false and defamatory statement concerning another; (2) an unprivileged publication to a third party; (3) fault (negligence or greater) on the part of the publisher; and (4) resulting injury. Kennedy v. Sheriff of East Baton Rouge, 2005-1418 (La.7/10/06), 935 So.2d 669, 674. A statement is defamatory if it tends to harm the reputation of another so as to lower the person in the estimation of the community, deter others from associating or dealing with the person, or otherwise expose the person to contempt or ridicule. Id.

The defendants in this case argue that the statements made by Mr. Schexnayder at the telephone hearing on the unemployment claim are subject to an absolute privilege because they were made in an administrative hearing. Plaintiff refutes this argument, stating that there has been no ruling in this matter classifying the statements made at the unemployment hearing as privileged.

|7In the afore-mentioned case of Kennedy v. Sheriff of East Baton Rouge, 2005-1418 (La.7/10/06), 935 So.2d 669, 681, the Louisiana Supreme Court noted that an absolute privilege exists in a limited number of situations, such as statements by judges and legislators in judicial and legislative proceedings, whereas a conditional or qualified privilege arises in a broader number of instances. Our review of the jurisprudence shows that statements made in the context of an unemployment hearing are subject to a qualified privilege. Melder v. Sears, Roebuck and Company, 98-0939 (La.App. 4 Cir. 3/31/99), 731 So.2d 991; Wright v. Bennett, 2004-1944 (La. App. 1 Cir. 9/28/05), 924 So.2d 178.

In Williams v. Touro Infirmary, 578 So.2d 1006, 1010 (La.App. 4 Cir.1991), this Court explained qualified privilege as follows:

Under a qualified privilege defense certain statements which might otherwise be deemed defamatory are protected because the circumstances of the communication show an underlying public policy incentive for protection. In effect, assertion of a qualified privilege amounts to rebuttal of the allegation of malice. The public’s interest and social necessity mandate that an employer not be unreasonably restricted when required to provide information for a state agency to determine in a quasi-judicial proceeding whether a terminated employee should receive unemployment benefits. The employer must be free to make a complete and unrestricted communication without fear of liability in a defamation suit even if the communication is shown to be inaccurate, subject to the requisites that the communication is in good faith, is relevant to the subject matter of the inquiry and is made to a person (or agency) with a corresponding legitimate interest in the subject matter. Boyd v. Community Center Credit Corporation, 359 So.2d 1048 (La.App. 4th Cir.1978).

A review of the transcript of the unemployment hearing in which Mr. Schexnay-der and several others participated by telephone shows that Mr. Schexnayder made statements calling into doubt plaintiffs honesty regarding his | ^educational background. In plaintiffs first supplemental and amending petition, he alleges that Mr. Schexnayder’s statements at the hearing were false and made with malice in an attempt to defeat plaintiffs claim for unemployment benefits. Although Mr. Schexnayder’s statements are subject to a qualified privilege, this privilege is subject to the requirement that the communication be made in good faith. Because plaintiff has alleged that the requirement of good faith was not satisfied in Mr. Schexnay-der’s communications at the hearing, the issue of qualified privilege is one that will have to be decided at trial.

In this appeal, we are not called upon to determine if plaintiff can carry his burden of proving his defamation and breach of contract claims against the defendants. This matter is before us only on the issue of venue. In Sorrento Companies, Inc. v. Honeywell International, Inc., 2004-1884, p. 7 (La.App. 1 Cir. 9/23/05), 916 So.2d 1156, 1162, the First Circuit summarized the rules regarding burden of proof when the provisions of La. C.C.P. articles 74 and 76.1 are invoked as follows:

A plaintiff invoking the provisions of Articles 74 and 76.1 must allege sufficient facts to prove that the chosen venue is proper. See Strasner v. State, 99-1099, p. 7 (La.App. 1st Cir.6/23/00), 762 So.2d 1206, 1211, writ denied, 00-2195 (La.10/27/00), 772 So.2d 125. If the grounds for an objection of improper venue do not appear on the face of the plaintiffs petition, the burden is on the defendant to offer evidence in support of his position. Alford, 04-0586 at p. 3, 906 So.2d at 676 [Michael F. Smith, CPA v. Alford, 04-0586 (La.App. 1 Cir. 3/24/05), 906 So.2d 674]. The trial court is not bound to accept as true allegations in a petition on a trial of an exception. It is only when no evidence is introduced by the moving party on the trial of an exception that the allegations of the petition are accepted as true. Price v. Roy O. Martin Lumber Co., 04-0227, p. 13 (La.App. 1st Cir.4/27/05), 915 So.2d at 825.

The record on appeal does not include a transcript of the hearing on the defendants’ exception of improper venue. Plaintiff alleged facts sufficient to prove | c)that venue is proper in Orleans Parish. The defendants had the burden of offering evidence to establish that venue is not proper in Orleans Parish. Our review of the record shows that they failed to do so.

Considering plaintiffs allegations regarding Mr. Schexnayder’s statements made at the unemployment hearing and the fact that Mr. Schexnayder was in New Orleans when he made those statements, venue for this case is proper in Orleans Parish under La. C.C.P. article 74. Accordingly, we find that the trial court erred in granting defendants’ exception of improper venue.

Because we find venue is proper in Orleans Parish based on the statements made by Mr. Schexnayder in New Orleans at the telephone hearing on plaintiffs unemployment claim, we need not address plaintiffs claims regarding whether venue is proper in Orleans Parish under La. C.C.P. article 76.1 because his contract required him to recruit and play games in New Orleans or under La. C.C.P. article 74 because statements made by Mr. Schex-nayder about plaintiff to a reporter in a telephone interview were published by the Times Picayune and circulated in New Orleans.

For these reasons, we reverse the trial court’s judgment granting defendants’ exception of improper venue, and remand this case to the trial court for further proceedings.

REVERSED AND REMANDED.

ARMSTRONG, C.J., dissents.

ARMSTRONG, C.J.,

dissenting.

I respectfully dissent. I would affirm the judgment of the trial court.

      . We note that the record on appeal does not include a copy of the employment contract signed by all parties.


source: Caselaw Access Project

author: MICHAEL E. KIRBY, Judge.

license: Public Domain

text:
    Patrick L. LAURENT v. Michelle JOLLY-WRIGHT and State Farm Fire and Casualty Company.
    No. 2005-CA-1499.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 2007.

      David B. Bernstein, New Orleans, LA, for Plaintiff/Appellant.
    Lynnette Hall-Lewis, Suzan N. Richardson, Wallace, Casler & McGinty, Metairie, LA, for DefendanVAppellee (Progressive Security Insurance Company).
    (Court composed of Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE, Judge DAVID S. GORBATY.)
   MICHAEL E. KIRBY, Judge.

|! Plaintiff, Patrick Laurent, appeals the trial court judgment in his favor and against defendant, Progressive Security Insurance Company, in the amount of $7,000.00, plus judicial interest from the date of judicial demand until paid and court costs. We affirm.

On December 11, 2000, a vehicle driven by defendant Michelle Jolly-Wright struck plaintiffs vehicle from behind on Interstate 10 in New Orleans. Plaintiff filed a petition for damages against Ms. Jolly-Wright and her insurer State Farm Fire and Casualty Company (“State Farm”) for damages sustained in the accident. Plaintiff subsequently filed a supplemental peti- ■ tion for damages against his uninsured motorist carrier, Progressive Security Insurance Company (“Progressive”).

Plaintiff settled his ■ claim against Ms. Jolly-Wright and State Farm prior to trial, and dismissed those defendants from this matter. This case proceeded to trial against Progressive. Following trial, the trial court rendered judgment in favor of plaintiff and against Progressive in the amount of $20,000.00, reduced by the 12tender made by State Farm of $10,000.00 and the tender made by Progressive of $8,000.00, for a total general damages award of $7,000.00 plus judicial interest from date of judicial demand until paid and court costs. Plaintiff now appeals.

On appeal, plaintiff made three arguments: 1) that the trial court erred in finding this accident caused plaintiff only an eight month aggravation to his cervical condition and 2) in awarding an insufficient amount of general damages in light of evidence that his cervical pain with spasm, limitation of motion and radicular symptoms were caused by the accident in question, have been ongoing since the accident and were not caused or aggravated by any other incident. Plaintiffs third argument is that the trial court abused its discretion in striking from the record plaintiffs post-trial memorandum.

The record shows that the trial court struck plaintiffs original post-trial memorandum and substituted it with an amended memorandum after finding that the original memorandum inappropriately referred to specific settlement discussions and conversations held in chambers and not on the record. A court of appeal is a court of review, and is limited in its review to the evidence submitted and entered into the record at the trial court level. Lorbeck v. Lorbeck, 99-1257, p. 5 (La.App. 4 Cir. 5/28/01), 789 So.2d 656, 659. The discussions held in chambers in this case were not made part of the record, and therefore, cannot be considered by a reviewing court. Id., Mancuso v. Union Carbide Corporation, 99-1273 (La.App. 5 Cir. 4/25/00), 762 So.2d 79. Accordingly, we find no error in the trial Lcourt’s decision to strike plaintiffs original post-trial memorandum from the record.

On the issue of damages, plaintiff contends that his injuries from the accident were much more extensive than the trial court’s finding of an eight-month aggravation of a preexisting cervical condition. In reasons for judgment, the trial court summarized the testimony of the physicians who testified regarding their care and treatment of the plaintiff following the December 11, 2000 accident. The court noted that even though plaintiff testified about long-standing back problems for which he had been treated since 1988, and also acknowledged being injured in a subsequent car accident on September 28, 2001, a September 2001 slip and fall by a swimming pool and a work-related fall in September 2003, he failed to disclose this significant information to the health care providers he saw following the December 2000 accident.

The trial court stated that all of the physicians that testified at trial, including Dr. Courtney Russo, Dr. Adrian Blotner and Dr. William Knight, admitted that there were portions of plaintiffs medical history about which they were never advised. The court noted that plaintiff admitted at trial that he never told his chiropractor, Dr. John Franklyn Dunn, now deceased, about the December 2000 accident because Dr. Dunn had a policy of not treating people that were involved in accidents. The court also noted that plaintiff testified that his back injury had returned to its pre-accident state by August 2001.

^Furthermore, the court stated that Dr. Russo, the orthopedic surgeon who began treating plaintiff in February 2001, testified that he did not know about plaintiffs long-standing chiropractic care under Dr. Dunn or plaintiffs intervening accident in September 2001 in which he slipped and fell by a swimming pool. Dr. Blotner, a neuropsychologist who began providing pain therapy treatment and counseling to plaintiff in March 2003, did not know about the December 2000 car accident. And Dr. Knight, a specialist in physical medicine and rehabilitation who began treating plaintiff in September 2004 for left hip and left leg pain, testified that plaintiff never told him that his neck pain began in January 2003 as he had told Dr. Blotner during his initial visit in March 2003. The trial court noted that Dr. Knight admitted that if plaintiffs neck pain began in January 2003, this remote time period would make it more difficult to conclude with medical certainty that the December 2000 accident caused such an injury.

After hearing the trial testimony, the trial court determined that the physicians who testified regarding their care and treatment of the plaintiff based their opinions, in large part, upon the incomplete and subjective oral history provided by the plaintiff during the course of their treatment. The court found, after weighing the testimony of these physicians when confronted with more accurate and detailed information relative to the plaintiffs preexisting problems and his subsequent and intervening accidents, that the totality of the evidence showed that plaintiff suffered an eight month aggravation of his preexisting neck condition as a result of the December 2000 accident.

| rA tortfeasor is only liable for damages caused by his negligent act; he is not liable for damages caused by separate, independent or intervening causes of damage. Keller v. City of Plaquemine, 96-1933, p. 17 (La.App. 1 Cir. 9/23/97), 700 So.2d 1285, 1294. Further, the plaintiff has the burden of proving that his injuries were not the result of separate, independent and intervening causes. Id., citing Rebstock v. Cheramie, 95-1388 pp. 5-6 (La.App. 1 Cir. 2/23/96); 673 So.2d 618, 621. The plaintiff has the burden of proving, by a preponderance of the evidence, the causal connection between the accident and the damages claimed, and whether this burden has been sustained is a question of fact, which will not be disturbed on appeal unless clearly •wrong. Id., citing Guidroz v. State, Through the Department of Transportation and Development, 94-0253, p. 15 (La.App. 1 Cir. 12/22/94), 648 So.2d 1361,1370.

While the record contatos conflicting evidence on the issue of whether plaintiffs ongoing cervical pain with spasm, limitation of motion and radicular symptoms were caused by the December 2000 accident, the trial court was not clearly wrong in finding that plaintiffs damages related to the December 2000 accident were resolved by August 2001. The record supports the trial court’s conclusion that plaintiff did not provide his treating physicians with complete and accurate information regarding his pre-existing medical problems and his subsequent and intervening accidents. The trial court’s finding that the plaintiff sustained an eight-month aggravation of his pre-existing neck condition as a result IfiOf the December 2000 accident is supported by the record and will not be disturbed on appeal.

Furthermore, the discretion vested in the trier of fact in the awarding of general damages is great, and even vast. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993). Considering the injuries that the plaintiff proved were related to the December 2000 accident, we do not find that the amount awarded to plaintiff in general damages was an abuse of the trial court’s discretion.

For the reasons stated above, we affirm the trial court judgment.

AFFIRMED.


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

text:
    STATE of Louisiana v. Phil DEES.
    No. 2006-KA-1198.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 2007.

      Eddie J. Jordan, Jr., District Attorney, David S. Pipes, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellant.
    (Court composed of Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE, and Judge MAX N. TOBIAS, JR.).
   MAX N. TOBIAS, JR., Judge.

_JjOn 15 April 2005, under case number 458-861, the defendant-appellee, Phil Dees (“Dees”), was charged with one count of possession of a stolen automobile, a violation of La. R.S. 14:69, and one count of possession of cocaine, a violation of La. R.S. 40:967. Dees pled not guilty at his arraignment on 20 April 2005. A motion hearing commenced on 17 May 2005 and then was recessed until 28 June 2005, the date for which trial was scheduled. On June 28th, the state moved for a continuance that was denied. The state then entered a nolle prosequi. On 15 July 2005, the state reinstituted charges under the present case, docket number 461-216. On 22 August 2005, Dees was arraigned and again entered not guilty pleas. He also filed a motion to quash the bill of information. The next day, Dees filed a second motion to quash. The court then quashed the charges. The state moved for an appeal, which was granted. Because of Hurricane Katrina, the record was not lodged with this court until September 2006.

The record before this court contains nothing that indicates the underlying facts of the offenses. However, the facts are not relevant to the issues raised in this appeal.

J^DISCUSSION

The issue in this matter is whether the trial court erred in quashing the prosecution. Dees filed two separate motions to quash. In one, he averred that the state dismissed the prosecution after its motion to continue was denied and, as a result, his constitutional right to a speedy trial was denied. In the other, he asserted that the trial court had denied the state’s motion to continue because it was not filed in conformity with La.C.Cr.P. art. 707. After the denial of the continuance, the state circumvented the court’s ruling by dismissing the prosecution and then reinstituting it. Dees averred that because of the state’s “method to get a continuance the Bill of Information should be quashed.” In its brief, the state argues that there was no denial of the defendant’s constitutional right to a speedy trial. As to the second motion to quash, the state argues that it has the authority to dismiss and reinstitute criminal charges as long as the action is not taken to circumvent the prescriptive period for trial to commence.

The state’s arguments have merit as to both motions to quash. In State v. Scott, 04-1142 (La.App. 4 Cir. 7/27/05), 913 So.2d 843, writ denied, State ex rel. Scott v. State, 06-0822 (La.10/13/06), 939 So.2d 356, this court discussed the factors to be considered with regard to a defendant’s constitutional right to a speedy trial rights:

The right to a speedy trial is guaranteed by both the federal and state constitutions. U.S. Const. Amendment 6; La. Const. Art. I, § 16. 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 a constitutional speedy trial violation claim, the four[-] factor test forth in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) is applied; 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. Santiago, 03-0693 (La.App. 4 Cir. 7/23/03), 853 So.2d 671. Under Barker, the peculiar circumstances of the case determine the weight to be ascribed to the length of the delay and the reason for the delay. State v. Reaves, 376 So.2d 136, 138 (La.1979). Something that is acceptable in one case may not be acceptable in another because the complexity of the case must be considered. Gray v. King, 724 F.2d 1199,1202 (5th Cir.1984), citing Barker, 407 U.S. at 531, 92 S.Ct. 2182. The manner of proof must also be considered, as must the gravity of the alleged crime. Id.
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, 00-0511, p. 7 (La.App. 4 Cir. 12/13/00), 775 So.2d 1138, 1142.

Scott, pp. 11-12, 913 So.2d at 850-51.

In State v. Love, 00-3347 (La.5/23/03), 847 So.2d 1198, the Court discussed the relationship of the appellate and trial courts and stated:

Because of the complementary role of trial courts and appellate courts demands that deference be given to a trial court’s discretionary decision, an appellate court is allowed to reverse a trial court judgment on a motion to quash only if that finding represents an abuse of the trial court’s discretion.

Id. at pp. 9-10, 847 So.2d at 1206. In addition, in State v. Harris, 03-0524 (La.App. 4 Cir. 9/10/03), 857 So.2d 16, this court stated:

Thus, ... the proper approach to the question of whether the defendant’s right to a speedy trial was violated is not merely a review of the dates and circumstances of the hearings, but an examination of the entire record in order to discern whether there was “palpable abuse” on the part of the trial court in granting the motion to quash.

Id. at p. 4, 857 So.2d at 18.

| -[Under Barker, the first question is whether the delay was sufficient to act as a triggering mechanism. In this case, we find that it was not. Only four months and one week elapsed from the filing of the original bill of information to the granting of the motion to quash. While the Louisiana Supreme Court held in State v. Reaves, 376 So.2d 136 (La.1979), that a delay of three and one-half months was sufficient to violate a defendant’s rights, that case involved misdemeanor possession of marijuana, not felonies as in the instant case, and the defendant in Reaves repeatedly made fruitless court appearances until he was forced to enter a guilty plea. In the case at bar, Dees made three court appearances for status hearings between his arraignment and the motion hearing. The docket master from case number 458-361 shows that private counsel represented him. Dees did not appear at the next setting, although his counsel did, and the court granted counsel’s motion to allow the defendant a personal surety bond. A motion hearing commenced two weeks later, at which time Dees was again present with his retained counsel. However, at the next setting, which was for the trial and the resumption of the motion hearing, Dees’ retained counsel did not appear with the accused. The court appointed an attorney from the Indigent Defender Program to represent him. The state then moved for a continuance, and when it was denied, the state dismissed the prosecution and reinstituted it two weeks later on July 15th. The defendant filed his motions to quash immediately after his arraignment on 22 August 2005, and the court granted them the next day.

| ¡/This court has determined several times that delays of less than a year were not sufficient to trigger a consideration of the other Barker factors. For example, in State v. Pham, 97-0459 (La.App. 4 Cir. 3/26/97), 692 So.2d 11, the court found that a nine-month delay for a defendant forced to travel from Houston to New Orleans after being charged with cheating at gaming did not merit the granting of a motion to quash. In State v. Keller, 03-0986 (La. App. 4 Cir. 10/1/03), 859 So.2d 743, the court found that a six and one-half month delay between the filing of the first bill of information and the granting of the motion to quash the reinstituted bill was not presumptively prejudicial and that the trial court had abused its discretion when it granted the motion to quash. In State v. Gray, 98-0347 (La.App. 4 Cir. 10/21/98), 766 So.2d 550, an eleven-month delay occurred. The court suggested that the delay may not be presumptively prejudicial as most prior cases considered by the court had involved delays of more than one year. However, the court evaluated the remaining Barker factors because of Reaves. See also State v. Brown, 05-1090 (La.App. 4 Cir. 3/22/06), 929 So.2d 182, where the court noted that a ten-month delay for a felony charge was probably not presumptively prejudicial, and State v. Brown, 05-1146 (La.7/26/06), 937 So.2d 419, involving a seven-month delay.

Considering the very short amount of time between the filing of the original bill of information and the granting of the motion to quash, the trial court’s decision to quash the bill of information because of a constitutional violation of the 16right to a speedy trial was a clear abuse of discretion as no presumptively prejudicial delay existed.

As to the alternative basis to quash the bill of information, to the extent the trial court quashed the bill of information as a sanction against the state for its failure to file a motion to continue in conformity with La.C.Cr.P. art. 707, which provides that a motion for a continuance must be in writing, must specifically allege the grounds upon which it is based, and must be filed at least seven days prior to the commencement of trial, this court has held that this sanction is not appropriate absent a violation of the defendant’s right to a speedy trial. See State v. Metzler, 2005-1148, p. 4 (La.App. 4 Cir. 8/16/06), 940 So.2d 676, 677-78. Also, recently in State v. Batiste, 05-1571 (La.10/17/06), 939 So.2d 1245, the Court stated:

Article 691 of the Louisiana Code of Criminal Procedure confers on the district attorney the power to dismiss a formal charge, in whole or in part, and provides that leave of court is not needed. La.C.Cr.P. art. 693 expressly provides, subject to narrowly delineated exceptions, that dismissal of a prosecution “is not a bar to a subsequent prosecution .... ” The general limit imposed by the legislature on the discretion of the State under La.C.Cr.P. art. 691 to dismiss a prosecution without the consent of the court is that the dismissal of the original charge is “not for the purpose of avoiding the time limitation for commencement of trial established by Article 578.” La.C.Cr.P. art. 576. La.C.Cr.P. art. 578(2) requires that trial of a non-capital felony be commenced within two years from the date of institution of the prosecution.
A court’s resolution of motions to quash in cases where the district attorney entered a nolle prosequi and later reinstituted charges should be decided on a case-by-case basis. State v. Love, 00-3847, p. 14 (La.5/23/03), 847 So.2d 1198, 1209. In those cases “where it is evident that the district attorney is flaunting 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 |7risk 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.” Id. In this case, however, there is no indication that the district attorney was flaunting his authority at the expense of the defendant. Rather, the record indicates a nolle prosequi was entered because the victim was not present for trial and was wavering in her commitment to going forward with the case.

Id. at pp. 5-6, 939 So.2d at 1249.

In Batiste, the Court found that the reason for the dismissal of the earlier charge was because the victim was unavailable to testify. The Court then considered the defendant’s speedy trial claim and found that although nineteen months elapsed between the filing of the original bill and the quashing of the charges in the second case, the reasons for the delay were not solely those of the state. The Court found that there was no intentional delay on the state’s part to gain a tactical advantage, that the defendant did not assert his speedy trial right prior to filing his motion to quash, and that there was no suggestion that his defense was impaired by the delay. The Court then reversed the trial court’s quashing of the charge and this court’s affirmation of the trial court’s ruling.

The record before this court does not indicate why the state moved for a continuance on 28 June 2005. However, at the time, the two-year time limit under La. C.Cr.P. art 578(2) for commencement of trial was not close to expiring. Furthermore, considering that 28 June 2005 was the first trial setting, that the defendant in his written motions made no allegation regarding loss of witnesses or specific prejudice, and that the defendant was not incarcerated, we find nothing in the record to support a finding that the state dismissed the charges and reinstituted to obtain a tactical advantage over the defendant.

I «CONCLUSION

The state’s arguments have merit. The trial court’s ruling quashing the bill of information is reversed and the matter remanded for further proceedings.

REVERSED AND REMANDED.

      . Although it was the state and not the defense who requested a continuance of trial, it is questionable whether the defense was truly prepared for trial. The court’s docket master does not indicate whether the defense objected to the continuance.

      . Ultimately in State v. Gray, 98-2902 (La.5/7/99), 740 So.2d 1291, this court reversed the trial court's decision granting the motion to quash, finding that the state had not attempted to gain a tactical advantage and that the defendants had failed to show sufficient prejudice. The Louisiana Supreme Court granted writs and reversed this court’s decision on the grounds that the state had failed to timely move for an appeal from the trial court’s granting of the motion to quash.