author: McClendon, j. GUIDRY, J.,

text:
    Kathleen TRIVETTE v. STATE of Louisiana, OFFICE OF GROUP BENEFITS.
    No. 2005 CA 2245.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 24, 2007.
    J. Arthur Smith, III, Rebecca E. May-Ricks, Baton Rouge, Counsel for Plaintiff/Appellee Kathleen Trivette.
    Stanley K. Hurder, Pamela M. Perkins, Pamela B. Rice, Baton Rouge, Counsel for Defendant/Appellant State of Louisiana, Office of Group Benefits.

      Before: PARRO, KUHN, GUIDRY, GAIDRY and McCLENDON, JJ.
   McClendon, j.

UThis matter involves the proper interpretation of a statute regarding employer contributions to the state health insurance program. For the reasons that follow, we reverse the declaratory judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

The facts of this matter are not in dispute. The matter was submitted to the trial court on a stipulation of facts, and the following are some of those to which the parties agreed. The Office of Group Benefits (OGB) is a state agency established and governed by LSA-R.S. 42:801, et seq. The primary function of the OGB is to provide group health and life benefit coverage to eligible active and retired state and public school employees. The plaintiff, Kathleen Trivette, has been employed by the state since June 3, 1974, except for a period from February 10, 1978, through July 16, 1979. From the time of her initial employment by the state through March 1, 1978, Mrs. Trivette maintained group health insurance coverage with the OGB. On August 1, 1979, Mrs. Trivette resumed her health insurance coverage through the OGB health plan, and was continuously enrolled until February of 1984. At that time, Mrs. Trivette changed to a private health insurance plan through her husband’s employment, and continued to be covered by his private health insurance plan until July 1, 2003. Following her husband’s retirement, Mrs. Trivette re-enrolled in the OGB health plan, effective July 1, 2003. Since that time, Mrs. Trivette has been continuously enrolled in the OGB plan.

The parties further stipulated that Mrs. Trivette was not an enrolled member of the OGB health plan in December 2001; that in 2001, Act 1178 implemented recommendations of the Governor’s Task Force on health care costs; and that on September 13, 2003, Mrs. Trivette and her husband filed | san administrative appeal with the OGB regarding its interpretation of LSA-R.S. 42:851, as it applied to Mrs. Trivette.

In her administrative appeal, Mrs. Trivette contended that because she had participated in the OGB health insurance plan before January 1, 2002, as provided in the new statute, she does not fit within the new variable tiered system of employer contributions to a retiree’s health insurance premiums based upon years of participation. Rather, she argues that she is entitled to the maximum 75% contribution of premiums by the state, as previously provided prior to the enactment of Act 1178. The OGB disagreed and denied the Trivettes’ administrative appeal. In responding to the appeal, the Administrative Claims Committee of the OGB interpreted LSA-R.S. 42:851, with its implementing rule, to allow only those participants who enrolled effective December 1, 2001, or earlier, and who maintained continuous coverage, to receive 75% of their retiree health insurance premiums.

On April 29, 2004, Mrs. Trivette filed suit against the OGB seeking a declaratory judgment that based on the plain language of LSA-R.S. 42:851, the interpretation of the statute by the OGB is incorrect and that the variable tiered structure of the statute does not apply to her. A bench trial was held on May 17, 2005, after which the trial court issued oral reasons for judgment, agreeing with Mrs. Trivette and concluding that the provisions of 14LSA-R.S. 42:851(E)(1) do not apply to her. Judgment was signed on August 5, 2005, and the OGB filed a suspensive appeal.

DISCUSSION

The function of statutory interpretation and the construction given to legislative acts rests with the judicial branch of the government. Principles of judicial interpretation of statutes are designed to ascertain and enforce the intent of the legislature in enacting the statute. The fundamental question in all cases of statutory construction is legislative intent and the reasons that prompted the legislature to enact the law. Sultana Corp. v. Jewelers Mut. Ins. Co., 03-0360, p. 3 (La.12/3/03), 860 So.2d 1112, 1115.

When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written, and no further interpretation may be made in search of the intent of the legislature. LSA-C.C. art. 9. However, when the words of a law are ambiguous, their meaning must be sought by examining the context in which they occur and the text of the law as a whole. LSA-C.C. art. 12. When the language is susceptible of different meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law. LSA-C.C. art. 10. Lasyone v. Phares, 01-1785, pp. 3-4 (LaApp. 1 Cir. 5/22/02), 818 So.2d 1068, 1071, writ denied, 02-1711 (La.10/14/02), 827 So.2d 423.

When interpreting a law, the court should give it the meaning the lawmaker intended. It will not be presumed that the legislature intended for any part or provision of the law to be meaningless or useless. It is presumed that every word, sentence, or provision in the law was intended to serve lasóme useful purpose, that some effect is to be given to each such provision, and that no unnecessary words or provisions were used. The meaning of a statute is to be interpreted by looking to all the sections taken together, so that no section, clause, sentence or word becomes superfluous or meaningless. Barrilleaux v. NPC, Inc., 98-0728, p. 4 (LaApp. 1 Cir. 4/1/99), 730 So.2d 1062, 1064-65, writ denied, 99-1002 (La.5/28/99), 743 So.2d 672.

In 2001, the Louisiana legislature enacted Act 1178, effective June 29, 2001, which reorganized the state group health plan. The act implemented the recommendations of the Governor’s Task Force in an effort to control spiraling health care costs. One of the provisions of the act, LSA-R.S. 42:851(E)(1), sets forth a new system of cost sharing between the state and the employee upon retirement. The statute provides as follows:

E. (1) Notwithstanding any other provision of this Part to the contrary, for any person who is an active employee as defined by R.S. 42:808 and who does not participate in the Office of Group Benefits program provided by this Part before January 1, 2002, but subsequently enrolls in the program, or for any person who is hired on or after January 1, 2002, who meets the definition of employee as provided by Subsection F of this Section the state contribution of the total premium shall, upon retirement, be:
(a) Nineteen percent for those persons with less than ten years of participation in the Office of Group Benefits program before retirement.
(b) Thirty-eight percent for those persons with ten years of participation but less than fifteen years of participation in the Office of Group Benefits program before retirement.
(c) Fifty-six percent for those persons with fifteen years of participation but less than twenty years of participation in the Office of Group Benefits program before retirement.
(d) Seventy-five percent for those persons with twenty or more years of participation in the Office of Group Benefits program before retirement.

| Jn this appeal, Mrs. Trivette asserts that LSA-R.S. 42:851(E)(1) authorizes her to be “grandfathered” into the previous system so that she retains the privilege of receiving the highest level, or 75%, of retiree health insurance premium contributions, since she was a participant before January 1, 2002. Mrs. Trivette contends that the phrase “who does not participate in the Office of Group Benefits program provided by this Part before January 1, 2002” in the statute keeps her out of the new tiered system because she clearly did participate in the program before January 1, 2002. On the other hand, OGB also asserts that the language of LSA-R.S. 42:851(E)(1) is clear, but to properly interpret the statute, the phrase “who does not participate in the Office of Group Benefits program provided by this Part before January 1, 2002” must be read together with the phrase “but subsequently enrolls in the program.” According to the OGB, although Mrs. Trivette was a participant in the past, she enrolled after January 1, 2002, and therefore under the statute “subsequently enrolled].” The OGB contends that the tiered system set forth in LSA-R.S. 42:851(E)(1), which bases the percentage of premiums paid by the state on the number of years of participation in the group health plan, clearly applies to Mrs. Trivette because she enrolled effective July 1, 2003.

Looking to all the subsections of LSA-R.S. 42:851(E)(1) taken together so that no section, clause, sentence or word becomes superfluous or meaningless, and giving effect to each word and provision, we agree with the OGB. A reasonable reading of the statute requires the interpretation that the legislature intended to include both active employees who were not participating in the OGB health plan as of December 31, 2001, as well as |7new employees hired on or after January 1, 2002, in its new tiered system of determining employer contributions to retiree health premiums. Thus, these two categories of employees included in the tiered system of LSA-R.S. 42:851(E)(1) cannot be grandfathered in and must show years of participation in the state program to determine the state’s contribution toward their retiree health premium. If the statute is given the interpretation requested by Mrs. Trivette, it would allow an employee, who had been a participant in the OGB plan at some point in time prior to January 1, 2002, to wait until shortly before retirement to re-enroll and thereby avoid paying years of premiums into the system. Such an interpretation would render the legislation meaningless and useless and be in direct contravention of the intent of the legislature.

Therefore, because it is presumed the legislature acts with full knowledge of well-settled principles of statutory construction, that every word, sentence and provision in a statute was intended to serve some useful purpose, that some effect be given to each such provision, and that the legislature used no unnecessary words or provisions, we hold that the trial court erred in determining that Mrs. Trivette does not fall within the tiered system as provided in LSA-R.S. 42:851(E)(1). Accordingly, the OGB is required to contribute to Mrs. Trivette’s health insurance premiums, upon | ¡^retirement, in accordance with the number of years of participation as provided for in LSA-R.S. 42:851(E)(1).

CONCLUSION

The judgment of the trial court finding that the tiered system of determining employer contributions to retiree health premiums, as provided for in LSA-R.S. 42:851(E)(1), does not apply to Mrs. Trivette, is hereby reversed. Accordingly, the state will contribute to Mrs. Trivette’s retiree health care premiums based upon the total number of years of her participation in the OGB health plan. Mrs. Trivette shall bear the costs of this appeal.

REVERSED AND RENDERED.

GUIDRY, J., dissents and assigns reasons.

GUIDRY, J.,

dissenting.

hAt issue in this case is whether La. R.S. 42:851 applies to restrict the percentage of the total premium the state contributes to Mrs. Trivette’s retirement health coverage. The applicable portion of the statute provides, “[njotwithstanding any other provision of this Part to the contrary, for any person who is an active employee ... and who does not participate in the Office of Group Benefits program provided by this Part before January 1, 2002, but subsequently enrolls in the program ... the state contribution of the total premium shall, upon retirement, be.... ”

The record shows that Mrs. Trivette participated in the Office of Group Benefits program for approximately eight years out of the thirty years she was employed by the State at the time the law was enacted. Considering this evidence and relying solely on the plain and unambiguous language of the statute itself, it is clear that the phrase “who does not participate in the Office of Group Benefits program provided by this Part before January 1, 2002,” does not apply to Mrs. Trivette, who had participated in the program prior to January 1, 2002. Mrs. Trivette had been enrolled prior to January 1, 2002, and she subsequently re-enrolled after that date.

| ¡>,Mrs. Trivette relied on the plain wording of the statute in making decisions regarding what unquestionably is a significant and essential aspect of her future welfare. While the majority overwhelmingly emphasizes the intent of the legislature in amending the statute and the underlying policy reasons triggering the passage of the amendment to justify its interpretation of the amended statute, it fails to give effect to the plain language of the statute on which Mrs. Trivette relied. Therefore, to the extent that the majority’s opinion fails to properly interpret the clear and unambiguous language of the statute, I respectfully dissent.

      . The Trivettes had previously requested an opinion from the OGB regarding her eligibility to receive "grandfather” status and the related 75% health insurance premium contribution by the state upon retirement. The Trivettes were informed that Mrs. Trivette was not eligible for the grandfather status as she was not enrolled on January 1, 2002.

      . Thus, at trial, the parties made the additional stipulation that the OGB interprets LSA-R.S. 42:851 to require a state employee, with less than twenty years of OGB participation, who was covered by the OGB health plan before January 1, 2002, to “maintain continuous coverage through retirement” in order to receive the 75% state contribution toward the premium for retiree coverage.

      . We note that although Mrs. Trivette's prayer for relief requests a declaratory judgment determining that LSA-R.S. 42:851(E)(1) applies to her, the body of her petition indicates that she does not believe that it applies in her situation, and we therefore consider the prayer to contain a typographical error.

      . Similarly, LSA-R.S. 1:4 provides:
      When the wording of a Section is clear and free of ambiguity, the letter of it shall not be disregarded under the pretext of pursuing its spirit.

      . By Acts 2005, 1st Ex.Sess., No. 57, § 1, eff. Dec. 6, 2005, LSA-R.S. 42:851(E)(1) was amended to substitute “R.S. 42:808” for "Subsection F of this Section.”

      . Therefore, according to the OGB, the state would contribute 38% of Mrs. Trivette’s total health plan premium and Mrs. Trivette would contribute the remaining 62%.

      . We note that state employees who were not participating in the OGB health plan before January 1, 2002, were given an opportunity to join the OGB plan to become grandfathered in. The parties stipulated that Mrs. Trivette received a notice in which she was advised:
      Interested potential plan members have a window of opportunity to enroll in Group Benefits in time to be grandfathered, so that they, too, can obtain the maximum state subsidy.
      In order to be enrolled by December 31, 2001, potential participants must submit enrollment forms to Group Benefits by the close of business on November 14, 2001....”

      . We need not address the argument by the OGB regarding its implementing rule or the doctrine of contemporaneous construction. We also note that an administrative construction cannot have weight where it is contrary to or inconsistent with the statute. See Board of Trustees of State Employees Group Benefits Program v. St. Landry Parish Bd., 02-0393, p. 18 (La.App. 1 Cir. 2/14/03), 844 So.2d 90, 100, writ denied, 03-0770 (La.5/9/03), 843 So.2d 404.


source: Caselaw Access Project

author: MICHAEL E. KIRBY, Judge, Ad Hoc.

license: Public Domain

text:
    Homer Lee THORNTON, Jr. v. Theresa B. THORNTON.
    No. 2005 CA 2658.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 24, 2007.
    Charlotte A. Pugh, Denham Springs, for Plaintiff/Appellee, Homer Lee Thornton, Jr.

      Larry Starns, Denham Springs, for Defendant/Appellant, Theresa B. Thornton.
    (Court composed of Judge DENNIS R. BAGNERIS, Sr., Judge MICHAEL E. KIRBY and Judge ROLAND L. BELSOME, serving as judges ad hoc by special appointment of the Louisiana Supreme Court).
   MICHAEL E. KIRBY, Judge, Ad Hoc.

1 ^Appellant, Theresa B. Thornton Gatlin, appeals the trial court’s judgment of partition. This judgment involves property owned by her and/or her former husband, Homer Lee Thornton, Jr., the appellee in this matter. Specifically, Ms. Gatlin contends that the trial court erred in failing to award her one-half of the income collected by Mr. Thornton following termination of the community regime for rental of a building owned jointly by Mr. Thornton and Ms. Gatlin.

Mr. Thornton filed a Petition to Partition Community Property subsequent to the parties’ divorce. After trial, the trial court rendered judgment partitioning the property between the parties. The judgment did not include an award for one-half of the income from rental of the community-owned building as requested by Ms. Gatlin. The failure of the trial court to award Ms. Gatlin the requested rental income is the sole issue in this appeal.

At trial, the only evidence presented on the issue of rental income was the testimony of Mr. Thornton. He testified that he operated his barber business out of a portion of the building at issue, and rented out other parts of the building to several hairstylists. Mr. Thornton testified that he collected weekly rental payments of $55.00 from numerous tenants who rented space at different time periods over the course of several years. He stated that the arrangement he had with the hairstylists to whom he rented space was that they paid him rent, and he paid the utilities and purchased the supplies they needed to do their jobs. These supplies included shampoos, sprays, gels, hair color and other hair styling products. Mr. Thornton [¡¡testified that his expenses for the hairstylists’ supplies and utilities exceeded the amount he received in rent, and therefore, there was no profit derived from the rental arrangement.

Mr. Thornton admitted that he did not keep any records of his expenses. However, Ms. Gatlin did not offer any evidence to rebut Mr. Thornton’s testimony that he made no profit from the rental of the building owned jointly by him and Ms. Gatlin.

Louisiana Civil Code article 798 states:
Co-owners share the fruits and products of the thing held in indivisión in proportion to their ownership.
When fruits or products are produced by a co:owner, other co-owners are entitled to their shares of the fruits or products after deduction of the costs of production.

Louisiana Civil Code article 551 defines fruits as “things that are produced by or derived from another thing without diminution of its substance.” Article 551 also states that there are two kinds of fruits, natural and civil, and civil fruits are “revenues derived from a thing by operation of law or by reason of a juridical act, such as rentals, interest, and certain corporate distributions.” In this case, Mr. Thornton’s testimony established that no fruits were derived from the rental arrangement at issue because the expenses incurred for supplies and utilities exceeded the rental payments. The trial court found Mr. Thornton to be a credible witness, and denied Ms. Gatlin’s claim for reimbursement of rental income.

When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings; for only the factfinder can be aware |4of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). After review of the record, we conclude that the trial court’s credibility determination was reasonable, and the denial of Ms. Gatlin’s claim for reimbursement of rental income was neither manifestly erroneous nor clearly wrong.

For these reasons, we affirm the trial court judgment.

AFFIRMED


author: KIRBY, Judge.

text:
    Nathaniel DOWL, et al. v. ROBINSON VENTURES, LLC, et al.
    No. 2006-CA-0704.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 24, 2007.
    Nathaniel Dowl, Jr., Barbara Dowl, New Orleans, LA, Plaintiffs/Appellants in Proper Persons.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge JAMES F. McKAY III, Judge MICHAEL E. KIRBY).
   KIRBY, Judge.

11 Plaintiffs, Nathaniel and Barbara Dowl, appeal the dismissal of their Rule for Possession of Premises.

On March 30, 2006, plaintiffs filed a Rule for Possession of Premises in the First City Court of the City of New Orleans against Robinson Ventures, L.L.C., the defendant.

Prior to this there had been litigation between these parties. In the Judgment dismissing the plaintiffs’ Rule, the trial court alluded to the prior litigation, Robinson Ventures, L.L.C., V. Nathaniel and Barbara Dowl, 2004-2149 (La. 4 Cir. 4/20/05), 901 So.2d 587, writ denied, 20051747 (La.1/27/06), 922 So.2d 548; reconsideration denied, 2005-1747 (La.3/17/06), 925 So.2d 525 and applied the doctrine of res judicata. We note that defendant did not make an appearance in this case nor except to the petition on the basis of res judicata but the trial court supplied this as his rationale for the dismissal.

La.Code of Civil Procedure article 927, entitled objections raised by peremptory exception, states in pertinent part:

|¡,B. The court cannot supply the objections of prescription and res ju-dicata, which must be specially pleaded. The nonjoinder of a party, or the failure to disclose a cause of action or a right or interest in the plaintiff to institute the suit, may be noticed by either the trial or appellate court of its own motion. [Emphasis added.]

Because the trial court supplied the objection of res judicata in the case sub judice, we find clear legal error. The Judgment of Dismissal is reversed and the case is remanded for further proceedings in accord with this opinion.

REVERSED AND REMANDED.


author: LEON A. CANNIZZARO, JR., Judge.

text:
    HENNESSEY CONSTRUCTION CORPORATION v. Alvin K. HALPERN and SJD-CC, LLC.
    No. 2006-CA-1099.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 31, 2007.
    Brian T. Carr, Kristie E. Luke, Brian T. Carr & Associates, Metairie, LA, for Plaintiff/Appellee, Hennessey Construction Corporation.
    Jeffrey K. Warwick, Jason P. Foote, Chopin, Wagar, Richard & Kutcher, L.L.P. Metairie, LA, for Appellee, Zurich American Insurance Company.
    Richard B. Levin, Levin Law Offices, Metairie, LA, for Appellant, SJD-CC, LLC.
    (Court Composed of Judge CHARLES R. JONES, Judge EDWIN A.
    LOMBARD, Judge LEON A. CANNIZZARO, JR.).
   LEON A. CANNIZZARO, JR., Judge.

hThe defendant and plaintiff in recon-vention, SJD-CC, L.L.C. (“SJD”), appeals from a summary judgment rendered in favor of the third party defendant, Zurich American Insurance Company (“Zurich”). We reverse the judgment in part.

FACTS AND PROCEDURAL HISTORY

This case arises from a contractual dispute between the plaintiff, Hennessey Construction Corporation (“Hennessey”) and SJD. Pursuant to a construction contract, Hennessey was to erect and connect a pre-fabricated metal building with a sloped roof to an existing building owned by SJD. Hennessey completed the work in August 2000, and on November 13, 2000, filed a suit against SJD alleging breach of contract for failure to pay the outstanding balance of $34,784.00 due on the contract.

SJD filed a reconventional demand against Hennessey alleging specific contractual defenses, including Hennessey’s failure to complete the job and pay the subcontractors. On October 29, 2002, SJD amended its reconventional demand | ^naming Zurich, Hennessey’s insurer, as a defendant. At that time, SJD also alleged claims against Hennessey for defective workmanship and negligence in the construction of the new roof and sought damages in the amount $18,747.00 as a result of the rainwater leaking through the roof.

Through discovery, Zurich learned that SJD was aware of the roof leak as early as June 2001 and filed an exception of prescription arguing that SJD’s tort and/or delictual claims as a result of the alleged defective roof had prescribed one year from the date it discovered the leak or in June 2002. The trial court maintained the exception, finding that SJD’s tort and/or delictual claims asserted in the reconventional demand had prescribed. On appeal, this court affirmed the trial court’s judgment in Hennessey Const.Corp. v. Alvin K. Halpem and SJD-CC, LLC, 2003-1935 (La.App. 4 Cir. 6/23/04), 879 So.2d 340.

Zurich then filed a motion for summary judgment seeking to be dismissed as a defendant in the suit, arguing that the general commercial liability policy it issued to Hennessey covered only tort and/or del-ictual claims arising during the term of the policy, not claims arising from contractual disputes with Hennessey. SJD opposed the motion arguing that its delictual claims against Hennessey and Zurich, although prescribed, could be used as a defense to the claims asserted in Hennessey’s main demand. Hennessey also opposed the motion arguing that Zurich should be dismissed from the suit only if the trial court simultaneously ruled that SJD would not be allowed to raise the prescribed delictual claims as a defense and/or set off to Hen-nessey’s main demand.

|aFollowing a hearing, the trial court rendered summary judgment in favor of Zurich, dismissing all claims against it with prejudice. The court further held that SJD was precluded from raising the prescribed tort/delictual claims as a set off issue at the trial on Hennessey’s main demand.

SJD now appeals the trial court judgment only insofar as it precludes SJD from raising the prescribed tort and/or delictual claims as a set off issue at the trial on Hennessey’s main demand.

DISCUSSION

Louisiana Code of Civil Procedure Article 424 provides, in part, “[ejxcept as otherwise provided herein, a prescribed obligation arising under Louisiana law may be used as a defense if it is incidental to, or connected with, the obligation sought to be enforced by the plaintiff.”

In Dixie Bldg. Materials Co., Inc. v. Bob L. Whittington & Associates, Inc., 588 So.2d 78 (La.1991), Dixie, a seller of building materials, sued the defendant homeowner for payment of concrete mix furnished to the homeowner’s subcontractor. The homeowner reconvened asserting that the concrete was defective. After the trial court dismissed the reconventional demand, the homeowner appealed. While the appeal was pending, Dixie filed an exception of prescription in the Fifth Circuit Court of Appeal, arguing the recon-ventional demand had prescribed because it was filed more than one year after the homeowner had discovered the defect in the concrete. The court of appeal agreed and dismissed the reconventional demand. On review, the Louisiana Supreme Court found that the homeowner’s claim for damages for the defective concrete |4was incidental to Dixie’s demand for payment of the concrete and held that, although the reconventional demand was prescribed, La. C.C.P. art. 424 allowed the prescribed claim to be used as a defense to Dixie’s main demand. Thus, the Court remanded the matter for the trial court to determine whether the homeowner’s prescribed claim could be used as an offset to Dixie’s claim for payment of the concrete.

In the instant case, SJD’s reconventional demand is based upon Hennessey’s failure to perform in accord with the terms of the contract, defective workmanship, and negligence in the construction of the roof. Clearly, these claims are incidental to and directly connected with the obligation sought to be enforced by Hennessey, i.e., payment for work performed under the contract. Therefore, pursuant to La. C.C.P. art. 424, SJD’s prescribed claim may be used as a defense to Hennessey’s main demand. To the extent the trial court judge, in granting’s Zurich’s motion for summary judgment, precluded SJD from raising any set off issues at the trial on Hennessey’s main demand, she erred.

Finally, as an alternative argument, Hennessey contends that in the event SJD is allowed to use the prescribed claims as a defense to its main demand, then we should also reverse the judgment insofar as it dismissed Zurich from the suit. Hen-nessey points out that under the terms of the general commercial liability policy, Zurich was to provide Hennessey with a defense and coverage for any tort and/or delictual claims that arose during the term of the policy. If Zurich is dismissed from the suit then Hennessey will be without a defense for the tort and/or delictual claims that SJD might use as a set off against its demand for payment under the contract. Because Hennessey neither appealed the part of the judgment dismissing Zurich from the suit nor answered SJD’s appeal, we cannot [Rconsider that issue in this appeal. La.Code Civ. Proc. art. 2138; Saacks v. Mohawk Carpet Corp., 20030386, pp. 24-25 (La.App. 4 Cir. 8/20/03), 855 So.2d 359, 375.

DECREE

Accordingly, for the reasons stated herein, we reverse the judgment of the trial court in favor of Zurich only insofar as it precludes SJD from raising any set off issues at the trial on Hennessey’s main demand. In all other respects, we affirm the judgment and remand the matter to the trial court for further proceedings.

REVERSED IN PART; AFFIRMED IN PART AND REMANDED


author: ROLAND L. BELSOME, Judge.

text:
    STATE of Louisiana v. Andrew STEVENSON.
    No. 2006-KA-1094.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 31, 2007.
    Eddie J. Jordan, Jr., District Attorney, David S. Pipes, Assistant District Attorney, New Orleans, LA, for PlaintiffiAppel-lant.
    Christopher A. Aberle, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellee.
    (Court composed of Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS Jr., Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

hOn January 28, 2005 in case 455-818, the defendant, Andrew Stevenson, was charged with possession of cocaine, a violation of La. R.S. 40:967(0(2). He failed to appear for arraignment on February 17, 2005. On February 28, 2005, he was arraigned and entered a plea of not guilty. The defendant appeared without counsel at the motion hearings on March 7, 2005. At that time the court appointed counsel for the defendant and defense counsel requested and was granted a continuance. On March 8, 2005, defense counsel waived all motions, and trial was set for March 22, 2005. During the March 22, 2005 appearance, the defendant was found in contempt of court and ordered to serve 180 days in parish prison due to a positive drug test. Trial was reset for April 26, 2005. On that date, the State orally moved for a continuance, which the trial court denied. The State subsequently nolle prosequied the charge.

The charge against the defendant was reinstituted on June 1, 2005 in case 459-911. On June 13, 2005, the defendant entered a plea of not guilty. Motion hearings and trial were set for July 1, 2005. The defense orally filed a motion to quash and later supplemented the record with a written motion on July 7, 2005. |aThe defendant appeared for the motion hearings and trial on July 25, 2005 without counsel. Subsequently, the court granted the motion to quash on July 27, 2005.

The state’s sole argument is that the trial court erred in granting the motion to quash the bill of information. More specifically, under La.C.Cr.P. art. 691, the State has the right to dismiss an indictment without the consent of the court, and under La.C.Cr.P. art. 576, the State may reinstitute the charges within six months of dismissal. In this case, the State reinst-ituted the case less than two months after the dismissal. Furthermore, under La. C.Cr.P. art. 578, the State has two years after institution of prosecution to bring a defendant to trial in a non-capital felony case. In this case, the original bill of information was filed January 28, 2005 and the motion to quash was granted on July 25, 2005, less than six months later.

This court considered the same issue as raised here in State v. Santiago, 2003-0693 (La.App. 4 Cir. 7/23/03), 853 So.2d 671, and stated, “... it is well-settled that a defendant challenging the State’s dismissal and reinstitution of charges has the burden of showing a violation of his constitutional right to a speedy trial.” State v. Henderson, 2000-0511, p. 7 (La.App. 4 Cir. 12/13/00), 775 So.2d 1138, 1142. The determination of such a violation should be decided on a case-by-case basis. State v. Batiste, 2005-1571, p. 5 (La.10/17/06), 939 So.2d 1245, 1249 citing State v. Love, 2000-3347, p. 14 (La.5/23/03), 847 So.2d 1198,1209.

To assist courts in determining whether a defendant’s right to a speedy trial has been violated the Supreme Court set forth four factors to be considered: 1) the length of the delay; 2) the reasons for the delay; 3) the .accused’s assertion of his right to speedy trial; and 4) the prejudice to the accused .resulting from the delay. Barker v. Wingo, 407 U.S. 514, 515, 92 S.Ct. 2182, 2184, 33 L.Ed.2d 101 (1972). | sFurthermore, court’s must also ensure that the district attorney’s office is not flaunting its authority in favor of the State at the expense of the defendant when charges are nolle prosequi and later reinstituting. Batiste, supra at p. 5, 939 So.2d at 1249 (quoting State v. Love, supra at p. 14, 847 So.2d at 1209).

First we look to the length and reasons for the delays in this matter. The delays in the matter totaled approximately six-months. Moreover, the State was not the sole cause of these delays. Here, the defendant failed to appear for arraignment. On the date set for trial, March 22, 2005, the defendant was found in contempt and remanded for a positive drug test. At that time the trial was reset for April 26, 2005. It was on that date that the State nolle prosequied the charge.

The third factor is the defendant’s assertion of his right to a speedy trial. No motions for speedy trial were urged. However, the constitutional right to a speedy trial is not dependent on-filing a motion. Rather, the right attaches when an individual becomes an accused, either by formal indictment or bill of information, or arrest and actual restraint. State v. Dewey, 408 So.2d 1255 (La.1982). Moreover, the defendant asserted a violation via his motion to quash. Finally, the defendant has not alleged prejudice caused by the delay.

In applying the Barker factors to the limited facts provided in the record, this court cannot find evidence to support a violation of the defendant’s right to a speedy trial. Nor does the record provide sufficient information to indicate that the district attorney’s office flaunted its authority at the expense of the defendant. In the absence of any such evidence, this court must find that the trial court abused its discretion in granting the motion to quash. Accordingly, we remand this matter to the trial court for further proceedings.

REVERSED AND REMANDED.

      . The defendant was released on bond on January 13, 2005.


author: JAMES F. McKAY III, Judge.

text:
    TIGER HO, L.L.C. v. Emile P. DiGIOVANNI d/b/a DiGiovanni’s Insulation & Refractory, Inc. and Honorable Desiree M. Charbonnet, Recorder of Mortgages.
    No. 2006-CA-0909.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 31, 2007.

      Edward J. McCloskey, McCloskey & Langenstein, L.L.P., New Orleans, Louisiana, for Plaintiff/Appellant.
    Stephen D. Marx, Chehardy, Sherman, Ellis, Breslin, Murray, Recile & Griffith, LLP, Metairie, Louisiana, for Defendants/Appellees.
    (Court composed of Judge JAMES F. McKAY III, Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE).
   JAMES F. McKAY III, Judge.

_JjThe plaintiff, Tiger Ho, L.L.C. (Tiger Ho), appeals the trial court’s denial of its petition for a writ of mandamus. We affirm.

FACTS AND PROCEDURAL HISTORY

In September of 2002, Tiger Ho and DiGiovanni’s Insulation & Refractory, Inc. (DiGiovanni) entered into a construction contract under the terms of which DiGiov-anni agreed to construct a commercial building on St. Charles Avenue. During the project, a number of disputes developed between DiGiovanni, Tiger Ho and other parties. On May 3, 2005, DiGiovanni filed a “Lien and Privilege Affidavit Statement of Claim” for $309,000.00.

On November 22, 2005, Tiger Ho filed a “Petition for a Writ of Mandamus and Rule to Show Cause” why DiGiovanni’s lien should not be cancelled. Tiger Ho contended that DiGiovanni’s lien should be cancelled because DiGiovanni’s charter had been revoked by the Secretary of State for failure to file an annual report and therefore DiGiovanni had no legal right to file a claim because it no |2longer existed. In fact, in August of 2005, Tiger Ho incorporated another “DiGiovanni’s Insulation & Refractory, Inc.” On March 23, 2006, the trial court denied the relief requested by Tiger Ho and it is from that judgment that Tiger Ho now appeals.

DISCUSSION

On appeal, Tiger Ho raises the following assignments of error: 1) the trial court erred by finding that DiGiovanni’s Insulation & Refractory, Inc. was a legal entity when the Statement of Claim was filed on May 3, 2005; and 2) the trial court erred by not canceling the Statement of Claim recorded at MOB 3864, page 09 under Instrument No. 816396.

The position taken by Tiger Ho in this case simply has no merit. Both the statutory law and jurisprudence of this state make it clear that while a corporation’s charter may be revoked, the corporation does not cease to exist even when another entity attempts to usurp its name. See Baltazor v. Walden, 459 So.2d 711 (La.App. 4 Cir.1984). Furthermore, it is clear that actions by or against a dissolved corporation do not abate, even after dissolution. River Cities Construction Co., Inc. v. Barnard & Burk, Inc., 413 So.2d 666 (La.App. 1 Cir.1982). Therefore, DiGiov-anni had the right to file its lien against Tiger Ho and the lien should not be can-celled. Accordingly, we find no error in the trial court’s judgment.

CONCLUSION

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

AFFIRMED.

      . DiGiovanni's Insulation & Refractory, Inc. was incorporated under the laws of the State of Louisiana in 1987 by Emile DiGiovanni. Mr. DiGiovanni and his wife, Janet DiGiovan-ni, have been the sole owners, officers and directors of DiGiovanni since its inception.


author: MICHAEL E. KIRBY, Judge.

text:
    Thelonius GRANT v. AMERICAN SUGAR REFINING, INC., et al.
    No. 2006-CA-1180.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 31, 2007.

      Mickey P. Landry, Frank J. Swarr, David R. Cannella, Landry & Swarr, L.L.C., New Orleans, Counsel for Plaintiff/Appellant.
    Lawrence G. Pugh III, Edward R. McGowan, Montgomery Barnett Brown Read Hammond & Mintz, New Orleans, Counsel for Defendant/Appellee (Eagle, Inc.).
    (Court composed of Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS Jr., Judge ROLAND L. BELSOME).
   MICHAEL E. KIRBY, Judge.

| ¶ Plaintiff, Thelonius Grant, appeals the granting of a motion for summary judgment in favor of Defendant, Eagle Asbestos & Packing Company (n/k/a Eagle, Inc.). We find the trial court erred in finding that there was no genuine issue of material fact as to exposure and that it misapplied the standard for the admission of expert witness testimony in a summary judgment proceeding. Therefore, we reverse and remand.

Plaintiff, who is forty-seven .(47) years old, sued Eagle for contraction of malignant peritoneal mesothelioma, a cancer of the inner lining of the abdominal cavity caused by exposure to asbestos. Eagle was alleged to be the seller, installer, and remover of asbestos-containing insulation products at the Domino Sugar Refinery in Arabi.

Plaintiff alleges that he contracted malignant mesothelioma as a result of exposure to asbestos brought home on the work clothes of his father, William Grant. William Grant worked at the Domino Sugar Refinery in Arabi, Louisiana, from approximately 1979 until 1983. Plaintiff alleges he was exposed to asbestos when he washed his father’s work clothes.

|20n December 23, 2004, plaintiff filed suit for personal injury damages. The original petition named six defendants. Generally,- the defendants were William Grant’s employer, other premises owners and various manufacturers, producers, and suppliers of asbestos-containing products, as well as the insurer of one of these parties.

On April 29, 2005, the trial court granted plaintiffs motion for expedited trial setting and set the trial on the merits for November 7, 2005. The trial date was lost due to Hurricane Katrina. After Civil District Court reopened, trial on the merits was re-set for May 3, 2006.

On April 21, 2006, the trial court heard Eagle’s motion for summary judgment. Eagle alleged two bases in support of its motion for summary judgment:

1) Plaintiff cannot produce .evidence that Eagle supplied or used any asbestos containing products at the Domino Sugar Refinery at the time of William Grant’s employment from 1978 to 1982; and
2) Thelonius Grant’s second-hand exposure to Eagle’s asbestos was not a substantial factor in causing his mesothelio-ma.

In response, plaintiff filed an opposition to summary judgment, and submitted evidence of specific facts he contended established a genuine issue of material fact so that Eagle is not entitled to judgment as a matter of law. Specifically, plaintiff presented the following evidence:

1) The work records of William Grant
2) Leo Santana’s deposition
3) Affidavit of Expert Hygienist, Frank Parker
4) Deposition of Don Roussel
la5) Deposition of Kenneth Dufour
6) Deposition of Peter Maraia
7) Work records concerning the Domino Refinery

ACTION OF THE TRIAL COURT

In a Judgment dated April 26, 2006, the trial court granted Eagle’s motion for summary judgment and dismissed with prejudice plaintiffs claims against Eagle. There were no written reasons assigned for the granting of the Judgment. We do note that from the transcript of the hearing the trial court inquired about plaintiffs expert hygienist:

“Was the guy there during the time period?”

LEGAL ANALYSIS

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Independent Fire Insurance Co. v. Sunbeam Corp., 99-2181, 99-2257, p. 7 (La.2/29/00), 755 So.2d 226, 230; Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342, 345 (La.1991). Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any, scrutinized equally, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). However, as noted by the Supreme Court in Sunbeam, supra, the trial court cannot make credibility determinations on a motion for summary judgment. Sunbeam, p. 16, 755 So.2d at 236. We noted in Berthelot, infra, that it is not the function of the trial court on a 14motion for summary judgment to determine or even inquire into the merits of the issues raised. Additionally, the weighing of conflicting evidence has no place in summary judgment procedure. Berthelot v. Avondale Industries, Inc., 021779, p. 3 (La.App. 4 Cir. 2/26/03), 841 So.2d 91, 93. See also, Knowles v. McCright’s Pharmacy, Inc., 34,559, p.3 (La.App. 2 Cir. 4/4/01), 785 So.2d 101, 103.

The burden of proof remains with the mover. Board of Assessors of the City of New Orleans v. City of New Orleans, 02-0691, p. 8 (La.App. 4 Cir. 9/25/02), 829 So.2d 501, 506. However, if the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover’s burden on the motion does not require the mover to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Id. at pp. 8-9, 829 So.2d at 506. Thereafter, if the adverse party fails to produce factual support sufficient to establish that it will be able to satisfy their evidentiary burden of proof at trial, there is no genuine issue of material fact. Id. at p. 9, 829 So.2d 506; La. C.C.P. art. 966(C)(2).

A fact is material if it is essential to plaintiffs cause of action under the applicable theory of recovery and if without the establishment of the fact by a preponderance of the evidence, plaintiff could not prevail. Generally, material facts are those that potentially insure or preclude recovery, affect the litigant’s ultimate success, or determine the outcome of a legal dispute. Prado v. Sloman Neptun Schijfahrts, A.G., 611 So.2d 691, 699 (La.App. 4 Cir.1992).

Finally, in Coto v. J. Ray McDermott S.A., 99-1866 (La.App. 4 Cir. 10/25/00), 772 So.2d 828, this Court discussed the standard for reviewing an | ¿appeal of a motion for summary judgment. This Court stated that “[i]n determining whether an issue is genuine, courts cannot consider the merits, make credibility determinations, evaluate testimony or weigh evidence.” Id. at p. 4, 772 So.2d at 830.

To determine whether the trial court erred in granting Eagle’s motion for summary judgment, we must determine whether there are any genuine issues of material fact.

We note at the outset that in asbestos cases there is a need to show that the plaintiff was exposed to the defendant’s asbestos product. To satisfy this burden, plaintiff submitted William Grant’s employment records, that place him at the Domino Sugar Refinery from approximately 1979 until 1983. Eagle does not contest this point, but argues that plaintiffs burden is to prove a specific exposure to asbestos and it asserts the employment records do not meet that burden here. We find at the very least Thelonius Grant creates a genuine issue of material fact by submitting an Amstar Corp. [Domino Sugar Refinery] Receiving Report dated September 8, 1982. This Receiving Report names Eagle as the contractor who satisfactorily completed a contract to perform the following:

1. Repair insulation on pit tank heads and rejacket — Bldg. 19-1 -250°F.
2. Insulate condensate lines on ground floor near pit tank — Bldg. 19-1 — 250°F.
3. Repair insulation on # 3 turbine exhaust steam expansion joint and stop valve — Bldg. 19-1 — 260°F. Insulate transfer line — 19-3—216°F.
4. Repair insulation on deaerator head (illegible symbol) P. -Bldg. 19-2 — 250°F.
5. Rejacket # 1 boiler feedwater line and install blanket insulation on valves— Bldg. 19-2 275°F/600°F.
|fi6. Repair insulation on #1 boiler steam drum head and main steam line including new porta(illegible) blanket insulation for manway, safety valve and line flange Bldg. 19-2 — 430/600°F.
7. Repair boilers 2 through 6 insulation on rear main steam line — Bldg. 18-2— 520°F.
8. Repair and rejacket feedwater line on boilers 2 through 6 and install portable blankets on drum heads — Bldg. 19-2 — 275/430°F.
9. Fabricate and install removable blankets insulation on # 1 boiler and drum bottom Bldg. 19-2 — 430°F.
10. Insulate condensate system tank and pipe pump in Bldg. 20-1 — 212°F.
11. Insulate 1½", 2", 3" and 4" condensate piping to condensate tank from liquid sugar heaters — Bldg. 20-1/2— 215°F.
12. Insulate crystallizer heating system — blankets to be used for valves— Bldg. 21-6 — 240°F.
The work to be performed hereunder shall commence on 9/13/82 and shall be completed by 10/15/82.

Eagle contends that this Receiving Report is insufficient to establish William Grant’s exposure to asbestos because it references “insulation,” not asbestos. However, we find this report, when reviewed with the following circumstantial evidence, creates a genuine issue of material fact as to William Grant’s exposure to asbestos containing products. Eagle has brought forth no evidence to prove that William Grant could not have been exposed, nor has the defendant ever denied that Domino Sugar Refinery did have asbestos-containing materials. Without more, the fact that Mr. Grant’s father worked on a premises that had asbestos-containing products, raises a genuine issue of material fact as to whether Thelonius Grant was exposed. Nevertheless, plaintiff further bolsters his argument with more evidence.

|7Plaintiff submitted the deposition of Mr. Fred Schuber, Eagle’s President, who identified Mr. Leo Santana as one of several estimators working for Eagle. Plaintiff submitted Mr. Santana’s deposition concerning the asbestos-containing products Eagle carried. Mr. Santana’s deposition confirmed that Eagle had contracts with the sugar refinery, known to him as American Sugar or AmStar, and that Eagle used asbestos-containing Garlock sheet gaskets. Mr. Santana’s deposition further confirmed that Eagle did the insulation work at the sugar refinery where Mr. Grant’s father worked in the forties, fifties, and sixties.

Plaintiff submitted the deposition of Mr. James Donald “Don” Roussel, an engineer at the Domino Sugar Refinery from 1955 to 1960 (as utility superintendent) and from 1968 to 1990 (as power superintendent). Mr. Roussel testified that the pipe-fitting foreman would inspect the plant, specifically checking pipes, and if the foreman observed nicks in the insulation, he would report it to Mr. Roussel, who would write a purchase requisition.

In regard to the insulation contractor who would supply materials and labor, Mr. Roussel testified that Eagle was the only contractor he recalled doing insulation work at the plant. Later in Mr. Roussel’s deposition, he quantified Eagle’s presence at the Domino Sugar Refinery, stating that he recalled Eagle performing 90% of the insulation work at Domino.

In addition, plaintiff submitted Mr. Kenneth Joseph Dufour’s deposition. Mr. Dufour worked at Domino Sugar from 1965 to 2001 as a forklift operator in Warehouse & Shipping; a maintenance mechanic, doing repairs on equipment and machinery throughout the whole plant; and as a utility mechanic in the boiler house.

| sIn regard to insulation work at the plant, Mr. Dufour testified that Eagle was the only contractor that did insulating in the plant in addition to Mr. Lemoine, who was a Domino insulator who did minor jobs. Mr. Dufour testified that asbestos was in the plant the entire time he worked there. He also recalled that Eagle did stenciling on pipes indicating the presence of asbestos. Finally, Mr. Dufour stated that Eagle removed asbestos from the Pan House and that Eagle supplied insulation to the plant.

Plaintiff also submitted Mr. Pete Mar-aia’s deposition. He was a staff engineer at Domino Sugar beginning in 1974 and was assigned to the Arabi refinery beginning in 1982. Mr. Maraia stated that asbestos was located in the Char House and the Pan House. Mr. Maraia relates that Eagle would inspect the insulation at the plant when he or his supervisor decided it was needed. Mr. Maraia also stated that Eagle did the stenciling on the insulation to mark asbestos.

Finally, plaintiffs own deposition states that he washed his father’s work clothes while his father was employed at the sugar refinery.

Defendant attempts to refute the plaintiffs depositions, affidavits and other evidence by contending William Grant’s period of employment in Domino’s building was either too late or too early to have been exposed to asbestos. For example, defendant argues that plaintiff failed to show that Eagle installed or removed asbestos containing material at the refinery between 1979 to 1983. Nevertheless, the Receiving Report contradicts this contention, and a reasonable trier of fact could find that insulation that was being replaced contained asbestos.

While defendant’s theory may prevail at trial as being more credible than plaintiffs theories, it certainly entails a credibility call, and as such is not a matter proper for summary judgment.

1 nDefendant cites Zimko v. American Cyanamid, 03-0658 (La.App. 4 Cir. 6/8/05), 905 So.2d 465, for the proposition that in that case the trial court found no fault on Eagle’s part. Nevertheless, Zimko is distinguishable from this case, most notably given that Zimko was not decided on summary judgment, but rather after a full trial on the merits.

Finally, from the transcript, we infer that the trial court misapplied the standard for admission of expert witness testimony, in the form of Mr. Frank Parker’s affidavit. The record indicates that the trial court asked: “Was the guy ever there during the time period?” The trial court was referring to the plaintiffs industrial hygienist expert, Frank Parker, and the time period during which William Grant worked at the plant. Moreover, the trial court also posed the following question concerning the expert testimony:

So he doesn’t (k)now (sic) from personal knowledge that the asbestos was deteriorating?

In Adams v. Asbestos Corp. Ltd., 39,952 (La.App. 2 Cir. 10/28/05), 914 So.2d 1177, our brethren correctly stated that:

La. C.C.P. art. 967(A) provides that supporting and opposing affidavits of experts may set forth the experts’ opinions on the facts as would be admissible under La. C.E. art. 702, and shall affirmatively show that the experts are competent to testify as to the matters stated therein.
In Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/00), 755 So.2d 226, 235-236, the Louisiana Supreme Court held that the Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), State v. Foret, 628 So.2d 1116 (La.1993) standards should be considered by the trial court in deciding whether to admit expert opinion evidence at the summary judgment stage. In doing so, the court reinforced the following important [ 10underlying principles relevant to consideration of expert evidence at the summary judgment stage:
The first is that the trial judge cannot make credibility determinations on a motion for summary judgment. See Sportman Store of Lake Charles, Inc. v. Sonitrol Security Systems of Calcasius, Inc., 99-C-0201, p. 6 (La.10/19/99), 748 So.2d 417 (“[t]he rule that questions of credibility are for the trier of fact applies to the evaluation of expert testimony”); Maraist & Lemmon, supra, p. 145 (“[i]n deciding a motion for summary judgment, the court must assume that all of the affiants are credible ... ”). Second, the court must not attempt to evaluate the persuasiveness of competent scientific studies. In performing its gatekeeping analysis at the summary judgment stage, the court must “focus solely on the principles and methodology, not on the conclusion is they generate.” Daubert, supra at 595, n. 6, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469. Third, the court “must draw those inferences from the undisputed facts which are most favorable to the party opposing the motion.” Maraist & Lem-mon, supra, p. 145. Fourth, the most importantly, summary judgments deprive litigants of the opportunity to present their evidence to a jury and should be granted only when the evidence presented at the motion for summary judgment establishes that there is no genuine issue of material fact in dispute. If a party submits expert opinion evidence in opposition to a motion for summary judgment that would be admissible under Daubertr-Foret and the other applicable evidentiary rules, and is sufficient to allow a reasonable juror to conclude that the expert’s opinion on a material fact more likely than not is true, the trial judge should deny the motion and let the issue be decided at trial. 39,952 (La.App. 2 Cir. 10/28/05) at 5-6; 914 So.2d at 1180-1181.

These questions indicate to us the trial court inappropriately made a credibility determination regarding the content of Mr. Parker’s affidavit based upon his absence from the work site at the time of William Grant’s exposure. Further the record suggests the trial court evaluated Mr. Parker’s persuasiveness in derogation of the above pronouncement. These infractions of the rules governing | n disposition of motions for summary judgment are a further basis to reverse the grant of summary judgment in this case.

Based on the foregoing discussion, we conclude that the trial court erred in granting summary judgment in favor of Eagle. Therefore, we reverse the trial court judgment granting summary judgment in favor of the defendant and remand this case to the trial court for further proceedings.

REVERSED AND REMANDED


author: TERRI F. LOVE, Judge.

text:
    Elizabeth GAMBEL, Gregory F. Gambel, John J. Cummings, III, and Hugh P. Lambert v. U-PARK SYSTEMS OF LOUISIANA, INC., Scottsdale Insurance Co., General Star Indemnity Company and Fernando M. Davila, Jr. Paul M. Trahan and Mea Culpa Recording Studio, 510 1/2 Gravier St., New Orleans, LA. v. John J. Cummings, III, 416 Gravier St., New Orleans, LA., Jefferson Insurance Group, Lloyds of London Insurance ABC Insurance, XYZ Insurance, John Cummings, U Park, Inc. The Travelers Insurance Company, Lafayette Insurance Company, and Pickering & Associates, d/b/a Pickering, Cotogno & Dunn, A Partnership v. Jefferson Insurance Company of New York, Gregory Gamble, and U Parking Company, Inc. The Hartford Insurance Company of the Southeast, J.A. Hoerner Company, Inc. and Hoerner Corporation v. Gregory Gambel, John J. Cummings, III, Hugh P. Lambert, Jefferson Insurance Company of New York, U-Park System of Louisiana, Inc. and Scottsdale Insurance Company.
    Nos. 2006-CA-0403, 2006-CA-0404, 2006-CA-0405, 2006-CA-0406.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 7, 2007.

      James P. Nader, Shaun M. Smith, Lob-man, Carnahan, Batt, Angelle <& Nader, New Orleans, LA, for The Hartford Insurance Company.
    W. Patrick Klotz, Klotz & Early, New Orleans, LA, for Queen & Crescent Hotel, L.L.C.
    (Court composed of Judge CHARLES R. JONES, Judge TERRI F. LOVE, Judge ROLAND L. BELSOME).
   TERRI F. LOVE, Judge.

11 This appeal arises from a fire that occurred on October 17, 1997, at 309 Magazine Street. Hartford Insurance Company filed suit against Queen & Crescent Hotel, L.L.C. seeking damages as a result of the fire. Queen & Crescent Hotel, L.L.C. filed a peremptory exception of prescription, which the trial court granted. We find that the trial court did not err and affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On October 17, 1997, a fire occurred at 309 Magazine Street (“the Building”) in a building owned by John Cummings, III, Gregory Gambel, Elizabeth Gambel, and Hugh Lambert (collectively referred to as “the Owners”). The fire damaged several adjacent buildings, including, but not limited to, buildings owned by Hoerner Corporation and J.A. Hoerner Company, Inc. (hereinafter collectively referred to as “Hoerner”). As a result of the fire, multiple lawsuits were filed, four of which are consolidated in this appeal. However, the case sub judice involves Hartford Insurance Company (“Hartford”) and Queen & Crescent Hotel, L.L.C. (“Queen & Crescent”). The Owners leased the Building to Queen & Crescent from September 1, 1996, to August 31, 1997. During that time, Queen & Crescent used the Building as a parking facility.

[ gHartford insured Hoerner. In October 1998, Hartford and Hoerner filed a petition against Greg Gambel, John Cummings, III, Hugh Lambert, Jefferson Insurance Company of New York, U-Park System of Louisiana, Inc. (“U-Park”), and Scottsdale Insurance Company alleging that the defendants were jointly and soli-darily liable for damages. Hartford specifically sought reimbursement of the money it paid to its insured, Hoerner, for the fire related damages. On March 3, 2000, Hartford and Hoerner filed an amended and supplemental petition adding General Agents Insurance Company of America, Inc. (“General Agents”) as a defendant. On June 16, 2000, Hartford and Hoerner filed a second amended and supplemental petition alleging specific acts of negligence. On November 28, 2001, Hoerner dismissed all of its claims. On October 29, 2003, Hartford filed a motion and order for leave to file a second amended and supplemental petition. The trial court granted leave and on February 4, 2004, Hartford added Queen & Crescent as a defendant. Hartford also alleged that all defendants breached “their respective and non-delega-ble legal duty....” Hartford subsequently dismissed U-Park and General Agents as defendants.

Queen & Crescent filed the declinatory exceptions of insufficiency of service of process and vagueness, the dilatory exception of nonconformance with La. C.C.P. art. 891, and later filed a peremptory exception of prescription. The trial court denied the exception of insufficiency of process, granted the exception of vagueness and ambiguity with ten days for Hartford to amend the petition, and granted the exception of prescription. The trial court dismissed all of Hartford’s claims against Queen & Crescent with prejudice. Hartford’s appeal timely ^followed.

Hartford asserts five assignments of error on appeal. However, the errors all relate to whether the trial court was correct in finding that prescription barred Hartford’s claims against Queen & Crescent.

STANDARD OF REVIEW

A trial court’s factual findings are reviewed using the manifest error/clearly wrong standard. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). If findings of fact have no reasonable factual basis, the appellate court may reverse the findings as clearly wrong. Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). The fact-finder’s conclusion must be reasonable. Stobart v. State, Through Dep’t of Transp. and Dev., 617 So.2d 880, 882 (La.1993).

A trial court’s legal findings are reviewed under the de novo standard. Balseiro v. Castaneda-Zuniga, 04-2038, p. 6 (La.App. 4 Cir. 8/17/05), 916 So.2d 1149, 1153.

PEREMPTORY EXCEPTION OF PRESCRIPTION

The exception of prescription is a peremptory exception. La. C.C.P. art. 927. “[Pjrescriptive statutes are strictly construed against prescription.... ” Carter v. Haygood, 04-0646, p. 10 (La.1/19/05), 892 So.2d 1261, 1268. The exceptor bears the burden of proof at the trial of the peremptory exception. Spott v. Otis Elevator Co., 601 So.2d 1355, 1361 (La.1992). The burden shifts to the plaintiff if prescription is evident on the face of the pleadings. Williams v. Sewerage & Water Bd. of New Orleans, 611 So.2d 1383, 1386 (La.1993).

La. C.C.P. art. 1153 states that an amended petition or answer can relate back to the original pleading if is “arises out of the conduct, transaction, or occurrence.” The Louisiana Supreme Court analyzed La. C.C.P. art 1153 [¿regarding amendments that change the identity of parties and held that four requirements must be met in order to relate back to the date of the original petition. Ray v. Alexandria Mall, 434 So.2d 1083, 1086-87 (La.1983). Louisiana jurisprudence requires that:

(1) [t]he amended claim must arise out of the same transaction or occurrence set forth in the original pleading;
(2)[t]he purported substitute defendant must have received notice of the institution of the action such that he will not be prejudiced in maintaining a defense on the merits; (3)[t]he purported substitute defendant must know or should have known that but for a mistake concerning the identity of the proper party defendant, the action would have been brought against him; (4)[t]he purported substitute defendant must not be a wholly new or unrelated defendant, since this would be tantamount to assertion of a new cause of action which would have otherwise prescribed.

Id., 434 So.2d at 1087. The “[ijnterruption of prescription against one joint tortfeasor is effective against all joint tortfeasors.” La. C.C. art. 2324.

Hartford alleges that Queen & Crescent failed to keep the Building up to the proper building codes because it did not have adequate sprinkler systems installed when it leased the Building and used it as a parking facility. Queen & Crescent leased the Building from September 1, 1996, to August 31, 1997. To defeat the exception of prescription, Hartford avers that the third amended and supplemental petition, filed on October 29, 2003, relates back to the original petition filed in October 1998.

Prescription is evident on the face of the pleadings in the case sub judice. However, Hartford alleges that Queen & Crescent is a joint tortfeasor; thus, Hartford avers the original petition served to interrupt prescription. Hartford’s argument is without merit. First, while Hartford’s third amended and supplemental petition, which named Queen & Crescent as a defendant, arose out of the same | transaction or occurrence, that is the only Ray factor that supports relating the amendment back to the original petition. Second, the record is devoid of evidence that Queen & Crescent received notice of Hartford’s lawsuit prior to the third amended and supplemental petition in February 2004. Third, the record is devoid of evidence demonstrating that Queen & Crescent should have known that Hartford would have brought the lawsuit against it but for a mistake. Fourth, neither Queen & Crescent, nor any of its affiliates were named as defendants in the original petition. As such, Queen & Crescent was a wholly new and unrelated defendant contained in the third amended and supplemental petition. Lastly, Queen & Crescent’s lease of the Building expired almost two months prior to the fire.

Considering our examination of the Ray factors and that Queen & Crescent was not leasing the Building at the time of the fire, we find that Hartford’s third amended and supplemental petition naming Queen & Crescent as a defendant does not relate back to the original petition. Thus, Hartford’s alleged claims against Queen & Crescent have prescribed. Accordingly, we find that the trial court did not err and affirm.

DECREE

For the above reasons, we find that the trial court did not err in granting Queen & Crescent’s exception of prescription and affirm.

AFFIRMED.

      . This pleading should have been referred to as the third amended and supplemental petition as they filed the second amended and supplemental petition on June 16, 2000.


author: BELSOME, Judge.

text:
    CARROLLTON CENTRAL PLAZA ASSOCIATES v. PICCADILLY RESTAURANTS, LLC.
    No. 2006-CA-0731.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 7, 2007.
    Charles L. Stern, Jr., Alan M. Cohen, The Steeg Law Firm, L.L.C., New Orleans, LA, for Plaintiff/Appellee.
    James C. Percy, Ryan E. Johnson, Jones Walker Waechter Poitevent Carrere & Denegre, Baton Rouge, LA, Madeleine Fischer, Joseph J. Lowenthal, Jr., Jones Walker Waechter Poitevent Carrere & De-negre, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge CHARLES R. JONES, Judge TERRI F. LOVE, Judge ROLAND L. BELSOME).
   BELSOME, Judge.

| ¶ This appeal arises from the eviction of Piccadilly Restaurants, LLC (“Piccadilly”) from property owned by Carrollton Central Plaza Associates (“Carrollton”).

Piccadilly’s restaurant located at 3800 S. Carrollton Avenue in New Orleans was leased from Carrollton. On or about August 29, 2005 the property was severely damaged as a result of Hurricane Katrina. Piccadilly remained in a damaged state for several months after the hurricane. Car-rollton filed a Petition/Rule for Possession of the Premises on February 2, 2002. The trial court heard this matter on March 10, 2006. A judgment in favor of Carrollton, ordering Piccadilly to vacate the premises and awarding Carrollton $7,300.00 in attorney’s fees and all costs of the proceeding was rendered on March 14, 2006. The trial court’s reasons for judgment simply stated that “[e]ven with the problems Katrina has caused, Piccadilly has had ample time to decide what it wants to do with the restaurant in question.” Piccadilly appeals that judgment.

|aOn appeal Piccadilly claims that the trial court erred as a matter of law by finding that it breached its obligation under Section 12.1 of the Lease. Piccadilly’s first assignment of error directs us to the language of Section 12.1 of the lease between Carrollton and Piccadilly which was entered into on August 5, 1988. That section of the lease reads as follows:

12.1 Tenant’s Obligation to Repair. If the Tenant’s building should be damaged by fire or any other casualty, Tenant shall promptly and with all reasonable dispatch, repair, reconstruct and replace the improvements on the Leased Premises except as provided in paragraph 12.2. All Rental and other charges shall be proportionately abated for that portion of the Leased Premises rendered untenantable or unfit for occupancy and normal business operations by Tenant.

Piccadilly insists that since there is not a specific deadline provided for repairs, it has the benefit of taking a reasonable amount of time to perform this obligation. Furthermore, a reasonable amount of time for performance needs to be determined on the facts and circumstances of the case.

Piccadilly contends that not only was the corporation dealing with the damage Hurricane Katrina caused when it hit the New Orleans area, many of its other locations received damage from Hurricane Rita which hit Southwest Louisiana and parts of Eastern Texas as well as Hurricane Wilma which caused damage in Florida. The three storms damaged 52 of-Piccadilly’s restaurants. The record shows that at the time of the hearing in this matter Piccadilly had reopened 46 of its damaged restaurants and was anticipating the opening of 3 more, but had failed to begin work on the Carrollton Avenue location. Even though Piccadilly had lined up a contractor before the storm, it claims that it was still impossible to get to the repairs of the Carrollton Avenue location.

| ^.Hurricane Katrina created unprecedented challenges for the citizens and businesses of New Orleans and the surrounding areas. However, we find Piccadilly’s argument that it could not get a contractor to begin work on the Carrollton Avenue location inconsistent with the testimony of Piccadilly’s chief financial officer, Thomas Sandeman. The record reflects that in a letter written by Mr. Sandeman to Carroll-ton dated December 14, 2005, Piccadilly had yet to decide if they were going to rebuild the Carrollton Avenue location. Furthermore, as late as March 10, 2006, the date of the hearing Mr. Sandeman testified that Piccadilly had still not committed to the rebuilding of the Carrollton Avenue location and that it would be an additional 90 to 120 days before a decision could be made. That would indicate that there were no .real efforts being made to secure contractors to rebuild or repair that location. Additionally, Mr. Sandeman’s testimony on March 10, 2006, confirmed that where Piccadilly was committed to rebuild or repair, the jobs had been completed and the locations were open for business or within weeks of being opened.

Next, Piccadilly argues that the trial court erred by rejecting its force majeure affirmative defense. Piccadilly asserted the force majeure provision of the lease as an affirmative defense contending that, pursuant to Section 19.8 of the lease, the time delay for its performance of its obligation to repair the restaurant was excused for the period of the force majeure delay and extended for a period equivalent to the period of such delay. Section 19.8 of the lease provides as follows:

19.8 Force Majeure. If either party hereto shall be delayed or prevented from the performance of any act required hereunder by |4reason of acts of God, laws or regulations, performance of such act shall be excused for the period of the delay and the period of performance of any such act shall be extended for a period equivalent to the period of such delay, provided notice is given within ten (10) days of such delay.

This Court fully acknowledges that Hurricane Katrina was a force majeure event. However, there is a notice requirement under the provisions of Section 19.8. Mr. Sandeman testified that it was not until the December 14, 2005 letter, that Piccadilly asserted the force majeure provision of the lease. According to Piccadilly’s argument, the force majeure provision would excuse their performance under the lease at least through June 2006. Again, Piccadilly did not represent to the trial court that they would indeed begin repairs in June 2006, just that they should be excused from all obligations of the lease until that time.

Undoubtedly, Hurricane Katrina delayed and even prevented Piccadilly from performing lease requirements. We do not find that the trial court rejected that defense, but rather found that even with the force majeure event, Piccadilly had ample time to make a decision regarding the Carrollton Avenue restaurant. In light of the testimony in the record and the facts and circumstances presented to the trial court we cannot say that the trial court was manifestly erroneous or clearly wrong in that determination.

In sum, this court finds no error on the part of the trial court. Accordingly, we affirm the trial court’s ruling in favor of Carrollton.

AFFIRMED.

      . The testimony was that 52 Piccadilly locations were damaged and by March 22, 2006 Mr. Sandeman anticipated 49 of those locations to be back in business.


author: MICHAEL E. KIRBY, Judge. TOBIAS, J.,

text:
    STATE of Louisiana in the Interest of C.P.
    No. 2006-CA-0889.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 7, 2007.

      Eddie J. Jordan, Jr., District Attorney, Jason Lawless, Assistant District Attorney, Juvenile Division, New Orleans, LA, for Appellant.
    Amy L. Jacobson, Jason W. Hammer, Student Attorneys, David R. Katner, Director, Tulane Juvenile Law Clinic, New Orleans, LA, for Appellee.
    (Court composed of Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS Jr., Judge ROLAND L. BELSOME).
   MICHAEL E. KIRBY, Judge.

_JjThe State of Louisiana appeals the April 12, 2006 judgment of the Orleans Parish Juvenile Court dismissing delinquency charges against the minor child, C.P., and converting the matter to a Child In Need of Care case. The court also transferred custody of C.P. from the Office of Community Services (“OCS”) to C.P.’s mother, and transferred jurisdiction of the case to Wynne, Arkansas, where C.P.’s mother now resides.

On October 17, 2003, C.P. was charged as a delinquent as a result of allegedly committing the offenses of carjacking, reckless operation of a vehicle and flight from an officer, violations of La. R.S. 14:64.2, 14:99 and 14:108.1 respectively. C.P. pled guilty to all of the charges, and the trial court ordered that C.P. be transferred to the Department of Health and Hospitals in order for a psychiatric evaluation to be performed by OCS. The trial court also ordered the Office of Youth Development (“OYD”) to conduct a pre-dispositional investigation prior to sentencing. After the defense raised the issue of C.P.’s | ¡.competency to stand trial, the trial court allowed C.P. to withdraw his guilty plea and enter a plea of not guilty. The court appointed Dr. Daliah Bauer, a clinical psychologist, and Dr. Cheryl Wills, a psychiatrist, as the sanity commission. In addition to Dr. Bauer and Dr. Wills, several other mental health professionals evaluated C.P. and all submitted reports to the trial court. C.P. was sent to the New Orleans Adolescent Hospital (“NOAH”) by order dated August 1, 2005.

Following a hearing conducted on December 2, 2005, the trial court ordered that C.P. be discharged from NOAH, and placed in OCS custody pending further hearings in this matter. After a hearing held on April 12, 2006, the trial court stated that the December 2, 2005 hearing was the competency hearing where C.P. was found to be not competent to stand trial. The trial court ordered that the delinquency charges against C.P. be dismissed, and the matter converted to a Child In Need of Care case. Additionally, the court ordered that custody of C.P. be transferred to his mother, and that jurisdiction of this case be transferred to Wynne, Arkansas, where C.P.’s mother currently resides. The State now appeals the April 12, 2006 judgment.

On appeal, the State argues that the trial court erred in determining that the December 2, 2005 hearing was a contradictory hearing on the issue of C.P.’s competence to stand trial, and that the trial court erred in finding C.P. incompetent to stand trial. The State’s brief is silent as to the Louisiana Children’s Code, and its arguments are instead based on the provisions of Articles 641-649 of the | ^Louisiana Code of Criminal Procedure relative to the issue of determining a defendant’s mental capacity to proceed.

La. Ch.C. article 103 states that the provisions of the Children’s Code apply in all juvenile court proceedings. In a delinquency proceeding in juvenile court, the Code of Criminal Procedure applies only if procedures are not provided for in the Children’s Code. La. Ch.C. article 104. La.Ch.C. articles 832-838 set forth the procedures to be followed in determining a child’s mental capacity to proceed. Because the Children’s Code contains provisions for determining a child’s mental capacity to proceed, the provisions of the Code of Criminal Procedure on this issue are not applicable in this matter.

La. Ch.C. article 836 states as follows:
A. The issue of the mental capacity of the child to proceed shall be determined by the court after a contradictory hearing. If the child is in a secure detention facility, the hearing shall be held within forty-five days of the appointment of the sanity commission. Otherwise, the hearing shall be held within sixty days of the appointment of the sanity commission. The court may extend either time period for a period not to exceed fifteen days, if an extension of time was granted in accordance with Article 835.
B. The report of the sanity commission is admissible in evidence at the hearing. Members of the sanity commission may be called as witnesses by the court, the child, or the district attorney. Regardless of who calls them as witnesses, the members of the commission are subject to cross-examination by the child, by the district attorney, and by the court. Other evidence pertaining to the child’s capacity to proceed may be introduced at the hearing by the child and by the district attorney.

The trial court’s judgment of December 2, 2005 reflects that Dr. Drew Pate, C.P.’s treating physician at NOAH, testified that C.P. was no longer in need of Lhospitalization or medication, but recommended that he be placed in a group home or therapeutic foster home. The court rendered judgment discharging C.P. from NOAH, and placing him in the temporary custody of OCS pending further hearings in this matter.

At a hearing on April 12, 2006, the defense requested that the delinquency charges against C.P. be dismissed, that the matter be transferred to Arkansas as a Child In Need of Care case, and that C.P. be released to the custody of his mother in Arkansas. Defense counsel argued that a contradictory hearing on the issue of competency was held on December 2, 2005, that testimony was taken from Dr. Pate, that all parties had the opportunity to take the testimony of both members of the sanity commission by telephone, and that the State waived the opportunity to take such testimony. The trial court stated on the record that defense counsel accurately stated its recollection of the December 2, 2005 hearing, and to the extent that the December 2, 2005 judgment lacked clarity, the court amended the judgment to reflect that the December 2, 2005 hearing was a contradictory hearing addressing the issue of competency, and that C.P. was found not competent to stand trial.

The State argues that neither the December 2, 2005 hearing nor the April 12, 2006 hearing could be considered competency hearings because neither of the two members of the sanity commission was present at either hearing. La. Ch.C. article 836 states that the report of the sanity commission is admissible in evidence at the competency hearing, and that members of the sanity commission may be called as witnesses by the court, the child, or the district attorney. (Emphasis ours.) This article does not require that members of the sanity commission be called to testify during the competency hearing. In this case, the trial court confirmed defense | acounsel’s recollection that the members of the sanity commission were available to testify by telephone during the December 2, 2005 hearing, but the State did not indicate any interest in taking this testimony by telephone. The record reflects that the members of the sanity commission evaluated C.P. and submitted reports to the court before the December 2, 2005 hearing. Additionally, the court was able to consider the reports of other mental health professionals who evaluated C.P. prior to the December 2, 2005 hearing.

In State v. Coco, 371 So.2d 803, 805 (La.1979), the Louisiana Supreme Court stated that a trial court’s determination of capacity to stand trial is entitled to great weight. However, the trial court may not rely so greatly on the medical testimony that he abandons the ultimate decision on competency to the medical experts. Id.

Although the opinions of the mental health professionals who evaluated C.P. differed to some degree, the consensus is that C.P. suffers from severe mental disorders. Both members of the sanity commission, Dr. Bauer and Dr. Willis, offered opinions in their reports on the issue of C.P.’s competence to stand trial. Dr. Bauer stated that C.P. had a general understanding of the roles of the various courtroom personnel and of courtroom procedures, and had the capacity to assist in his defense. However, Dr. Bauer’s opinion was that C.P. had difficulty appreciating the adversarial nature of the proceedings against him and did not appreciate his right to avoid self-incrimination. Dr. Willis stated in her report that it was her opinion with reasonable medical certainty that C.P. continues to suffer from a severe and worsening mental disease that impedes his capacity to understand the nature and objectives of the .proceedings against him and to assist with his defense. She further stated that C.P. does not understand the rules of | fivarious courtroom personnel and has no appreciation whatsoever of the adversarial nature of the adjudication process.

After review of the record, we find no merit in the State’s argument that the December 2, 2005 hearing was not a competency hearing. Furthermore, there is ample evidence in the record to support the trial court’s conclusion that C.P. is not competent to stand trial, and we find no merit in the State’s argument that the trial court erred in that conclusion.

For these reasons, we affirm the trial court judgment of April 12, 2006.

AFFIRMED

TOBIAS, J., concurs in the result and assigns reasons.

TOBIAS, J.,

concurring.

hi respectfully concur in the result. Based upon the record on appeal, which is, proverbially, not as clean as a hound’s tooth, I cannot say that the decision of the majority is incorrect or that the trial court should not be affirmed.

      . In accordance with Uniform Rules — Courts of Appeal, Rule 5-2, we will refer to the juvenile defendant by his initials.

      . Glaser v. Hickey, 183 La. 710, 712, 164 So. 635, 636 (1935).