source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re Eddie L. STEPHENS.
    No. 2007-B-0180.
    Supreme Court of Louisiana.
    April 27, 2007.
   I,ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Eddie L. Stephens, a disbarred attorney.

PRIOR DISCIPLINARY HISTORY

Before we address the current charges, we find it helpful to review respondent’s prior disciplinary history. Respondent was admitted to the practice of law in Louisiana in 1984. On October 1, 1993, we suspended respondent for one year for misconduct involving his failure to maintain a trust account, commingling of client funds with his own, and conversion of clients’ funds to his own use. In re: Stephens, 624 So.2d 903 (La.1993). In 1994, we suspended respondent for eighteen months, to run consecutively to his October 1, 1993 suspension, for failing to communicate with a client and notarizing a forged affidavit before filing it into a court record. In re: Stephens, 94-1924 (La.11/18/94), 645 So.2d 1133. In 1998, we disbarred respondent for numerous instances of commingling and conversion of client funds, neglect of legal matters, and engaging in the unauthorized practice of law while suspended. In re: Stephens, 98-2515 (La.12/11/98), 722 So.2d 1001. Respondent never sought reinstatement following his suspension, and consequently, he has been precluded from practicing law since October 1993.

| .UNDERLYING FACTS AND PROCEDURAL HISTORY

The ODC filed three sets of formal charges against respondent, consisting of a total of four counts of misconduct. The three sets of formal charges were considered by separate hearing committees before being consolidated by order of the disciplinary board chair dated March 29, 2006. On January 26, 2007, the board filed in this court a single recommendation of discipline encompassing all three sets of formal charges.

99-DB-070

Counts I & II — The Olaremi Matter

On October 16, 1996, Johnson Olaremi hired respondent to represent him in a criminal matter, paying him $2,500. At this time, respondent was suspended from the practice of law and knew that he could not legally accept fees for legal services. Thereafter, respondent failed to appear at Mr. Olaremi’s scheduled court appearances in May and July 1997.

Respondent also failed to cooperate with the ODC in its investigation of Mr. Olare-mi’s complaint.

The ODC alleged that respondent’s conduct violated Rules 1.1 (failure to provide competent representation to a client), 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.5 (failure to refund an unearned fee), 1.16(d) (failure to properly terminate the representation of a client), 5.5(a) (engaging in the unauthorized practice of law), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(g) (failure to cooperate with the ODC in its investigation) of the Rules of Professional Conduct. The ODC further Ualleged that respondent violated Supreme Court Rule XIX, § 9(c) (failure to cooperate with the ODC in its investigation).

Respondent failed to answer or otherwise reply to the formal charges. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). No formal hearing was held, but the parties were given an opportunity to file with the hearing committee written arguments and documentary evidence on the issue of sanctions. Respondent filed nothing for the hearing committee’s consideration.

Hearing Committee Recommendation

After considering the ODC’s submission and the deemed admitted facts, the hearing committee found that the ODC had proven the formal charges by clear and convincing evidence. The committee also found that respondent violated Rules 1.1, 1.3, 1.5, 1.16(d), 5.5(a), 8.4(c), and 8.4(g) of the Rules of Professional Conduct. For this misconduct, the committee recommended that respondent not be permitted to apply for readmission from his 1998 disbarment until five years have elapsed from the finality of the court’s judgment in this matter.

Neither respondent nor the ODC filed an objection to the hearing committee’s recommendation.

00-DB-061

In August 1999, respondent was operating a motor vehicle without properly displaying a license plate. When the police attempted to stop him, he increased his speed in excess of 30 m.p.h. over the posted speed limit and ran a stop sign before [¿stopping the vehicle. Respondent was also operating the vehicle under a suspended driver’s license.

On January 26, 2000, respondent pleaded no contest to the criminal offense of flight from an officer. He also pled guilty to charges of driving under suspension and failure to display a license plate.

The ODC alleged that respondent’s conduct violated Rules 8.4(a) (violation of the Rules of Professional Conduct), 8.4(b) (commission of a criminal act reflecting adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer), and 8.4(d) (engaging in conduct prejudicial to the administration of justice) of the Rules of Professional Conduct.

Respondent failed to answer or otherwise reply to the formal charges. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence. As in the prior matter, respondent did not file anything for the hearing committee’s consideration on the issue of sanctions.

Hearing Committee Recommendation

After considering the ODC’s submission and the deemed admitted facts, the hearing committee found that respondent violated Rules 8.4(a), 8.4(b), and 8.4(d) of the Rules of Professional Conduct. In light of respondent’s prior disciplinary offenses, among other considerations, the committee recommended that respondent be permanently disbarred. Alternatively, the committee recommended that respondent be disbarred, “to commence at the end of the current period of disbarment.”

Neither respondent nor the ODC filed an objection to the hearing committee’s recommendation.

| M-DB-08Í

In July, August, and October 1998, respondent committed three separate robberies of Baton Rouge banks, taking nearly $60,000 in all. During the three robberies, respondent was armed with a firearm and wore a plastic mask. In December 1998, respondent and others conspired to rob a bank in Hammond, Louisiana. However, they abandoned the robbery attempt when a police vehicle entered the bank’s parking lot.

In May 2002, a federal grand jury sitting in the Middle District of Louisiana returned a superseding indictment charging respondent with seven counts of conspiracy to commit armed bank robbery, armed bank robbery, and carrying a firearm during a crime of violence. Following a bench trial in October 2008, respondent was convicted on all counts as charged. Respondent was subsequently sentenced to serve 50 years and 10 months in federal prison.

The ODC alleged that respondent’s conduct violated Rule 8.4(b) of the Rules of Professional Conduct.

Respondent answered the formal charges and denied any misconduct. Specifically, respondent indicated that his conviction was not final because he had filed an appeal with the United States Court of Appeals for the Fifth Circuit. However, on August 24, 2004, the Fifth Circuit dismissed that appeal due to respondent’s failure to timely make financial arrangements with the court reporter.

Hearing Committee Recommendation

Following the filing of respondent’s answer to the formal charges, this matter proceeded to a formal hearing on the merits; however, respondent did not make an appearance at the hearing.

| fiAfter considering the evidence presented, the hearing committee found that respondent has been convicted of conspiracy to commit bank robbery, armed bank robbery, and carrying a firearm during a crime of violence. Respondent’s appeal of his conviction was dismissed for lack of prosecution. Therefore, his conviction is final.

Based on these facts, the committee determined that respondent violated Rule 8.4(b) of the Rules of Professional Conduct and committed a “serious crime” as defined by Supreme Court Rule XIX, § 19(B). The committee also determined that respondent intentionally and knowingly violated duties owed to the public, causing harm. Relying upon the ABA’s Standards for Imposing Lawyer Sanctions, the committee determined that the baseline sanction is disbarment.

The committee found no mitigating factors. However, the committee found several aggravating factors, namely prior disciplinary offenses, dishonest or selfish motive, a pattern of misconduct, multiple offenses, refusal to acknowledge the wrongful nature of the conduct, substantial experience in the practice of law, and indifference to making restitution.

Citing Guidelines 5 (conviction of a felony involving physical coercion or substantial damage to person or property, including but not limited to armed robbery, arson, or kidnapping) and 9 (instances of serious attorney misconduct or conviction of a serious crime, preceded by suspension or disbarment for prior instances of serious attorney misconduct or conviction of a serious crime) of the permanent disbarment guidelines, the committee recommended that respondent be permanently disbarred.

Neither respondent nor the ODC filed an objection to the hearing committee’s recommendation.

| ^Disciplinary Board Recommendation

99-DB-070, 00-DB-061 & 0I-DB-08J,.

After reviewing these consolidated matters, the disciplinary board adopted the hearing committee’s factual findings in all three matters. Accordingly, the board found that respondent violated the Rules of Professional Conduct as alleged in each set of formal charges.

Based on these findings, the board determined that respondent intentionally violated duties owed to his client, Mr. Olaremi, to the public, and to the legal profession. His misconduct caused harm to Ms client and tarnished the public opinion of attorneys. Furthermore, his multiple convictions for armed bank robbery destroyed any illusion of his integrity or fitness to practice law. The baseline sanction for this misconduct is disbarment.

In aggravation, the board recognized respondent’s prior disciplinary offenses, dishonest or selfish motive, a pattern of misconduct, multiple offenses, substantial experience in the practice of law, and illegal conduct. The board found no mitigating factors.

Citing Guidelines 5 and 9 of the permanent disbarment guidelines, the board recommended that respondent be permanently disbarred. The board also recommended that respondent be assessed with all costs of these proceedings.

Neither respondent nor the ODC filed an objection to the disciplinary board’s recommendation.

DISCUSSION

Bar disciplinary matters come within the original jurisdiction of this court. La. Const. art. V, § 5(B). When the disciplinary proceedings involve an attorney who hasjsbeen convicted of a crime, the conviction is conclusive evidence of guilt and the sole issue presented is whether respondent’s crimes warrant discipline, and if so, the extent thereof. Supreme Court Rule XIX, § 19(E); In re: Boudreau, 02-0007 (La.4/12/02), 815 So.2d 76; Louisiana State Bar Ass’n v. Wilkinson, 562 So.2d 902 (La.1990). The discipline to be imposed depends on the seriousness of the offense and the extent of the aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Perez, 550 So.2d 188 (La.1989).

In the instant case, respondent was convicted in federal court of multiple counts of armed bank robbery, conspiracy, and carrying a firearm during a crime of violence. These crimes are felonies under federal law and clearly warrant serious discipline. The only issue to be resolved by this court is the appropriate sanction for respondent’s misconduct.

The documentary evidence submitted by the ODC in this case reflects that respondent committed three separate armed bank robberies, and would have committed a fourth had a police vehicle not fortuitously driven into the bank’s parking lot. Respondent brandished a weapon during these robberies and thereby placed bank employees, customers, and others in grave danger. Under these circumstances, disbarment is clearly appropriate. However, in their respective reports, the hearing committee and the disciplinary board have concluded that respondent’s offenses are so egregious that he should be permanently prohibited from applying for readmission to the bar.

We agree. In Appendix E to Supreme Court Rule XIX, we set forth guidelines illustrating the types of conduct which might result in permanent disbarment. Respondent’s conduct falls under at least two of these guidelines: Guideline 5 (conviction of a felony involving physical coercion or substantial damage to person |9or property, including but not limited to armed robbery, arson, or kidnapping) and Guideline 9 (instances of serious attorney misconduct or conviction of a serious crime, preceded by suspension or disbarment for prior instances of serious attorney misconduct or conviction of a serious crime). The numerous aggravating factors present in this case only reinforce the conclusion that respondent lacks the good moral character and fitness to practice law in Louisiana.

Accordingly, we will accept the disciplinary board’s recommendation and impose permanent disbarment.

DECREE

Upon review of the findings and recommendations of the hearing committees and disciplinary board, and considering the record, it is ordered that the name of Eddie L. Stephens, Louisiana Bar Roll number 14451, be stricken from the roll of attorneys and that his license to practice law in the State of Louisiana be revoked. Pursuant to Supreme Court Rule XIX, § 24(A), it is further ordered that respondent be permanently prohibited from being readmitted to the practice of law in this state. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

      . Because the imposition of permanent disbarment is the most severe sanction that can be imposed on respondent, having the effect of forever removing him from the bar of this state, we find it is not necessary to discuss the misconduct charged in the first two sets of formal charges. See generally In re: O'Keefe, 03-3195, pp. 11-12 (La.7/2/04), 877 So.2d 79, 86.


author: JOHNSON, J.,

text:
    In re Bruce R. WILLIAMS.
    No. 2006-B-2578.
    Supreme Court of Louisiana.
    April 27, 2007.
   |,ATTORNEY DISCIPLINARY PROCEEDINGS

Rehearing denied.

CALOGERO, C.J., would grant a rehearing.

JOHNSON, J., would grant a rehearing and assigns reasons.

JOHNSON, J.,

would grant the rehearing.

|. Was the Rehearing Application Timely?

The Supreme Court Clerk does not file a Notice of Judgment into the record when a per curiam is issued, and, in the absence of the notice, there is no definitive answer as to when the judgment was mailed. Therefore, we can only assume that the judgment was mailed to respondent on the same date that this Court rendered the judgment.

Defective Notice of Disciplinary Board Hearing

The record demonstrates that notice of the respondent’s initial charge, filed on May 24, 2001, was sent via certified mail to the respondent at 1515 Poydras Street, Suite 2222, New Orleans, LA. According to a minute entry filed on July 22, 2005, the respondent confirmed that his office had relocated and all correspondence should be sent to 1008 Jourdan Avenue, New Orleans, LA 70117 (which was also his residence). Respondent’s mitigation hearing was first scheduled for September 28, 2005, a month after Hurricane Katrina devastated Louisiana, then rescheduled for February 17, 2006. The record also demonstrates that the “Notice of Committee Hearing,” for February 17, 2006 hearing, stated the following:

I, Donna L. Roberts, the undersigned Administrator for the Louisiana Attorney Disciplinary Board, certify that a copy of the foregoing Notice Hearing has been mailed to the Respondent and Disciplinary Counsel, by United States Mail, prepaid, this 29th day of December, 2005 at the following address:
Mr. Bruce R. Wiliams
Tate & Williams, LLC
1008 Jourdan Avenue
P.O. Box 5889
l?New Orleans. LA 70158-8889

On April 13, 2007, the Bywater Station Manager of the United States Post Office, the post office responsible for delivering mail/packages to the lower ninth ward, reported “there was no delivery service to 1008 Jourdan Avenue until two weeks ago, as the address did not have a box.”

A “Revised” notice, dated January 6, 2006, was mailed to: PO Box 58889, New Orleans, LA 70158-8889, and another “Revised” notice was mailed to 480 Usher Road, Harvest, Alabama 35749. The record also shows that on December 29, 2005, notice was sent via federal express to 1008 Jourdan, New Orleans, LA 70158. According to the affidavit of the Louisiana Attorney Disciplinary Board’s (LADB’s) docket clerk, a federal express package was delivered to the respondent’s father’s address in Harvest, Alabama on January 12, 2006 and “left at the front door” of that residence. The affidavit of Ronald Beaver, the investigator for the LADB, suggests that the respondent had actual notice of the hearing as he left messages for the respondent with his elderly father and brother, and also left cell phone messages for the respondent to call the ODC

It is important to note that the respondent’s office and residence were located in the Lower Ninth Ward of New Orleans. As a result of media coverage, people all over the world are aware of the levee breach which destroyed nearly every structure in that section of the City following Hurricane Katrina. The ODC details the numerous efforts made to reach respondent via his cell phone (messages left), then notes his failure to appear for the hearing scheduled for February 17, 2006, here in New Orleans. Very little business as usual was going on in New Orleans six months Pppst-Katrina. However, the ODC assigned an investigator to conduct a comprehensive search for the respondent. Respondent alleges, and it is unrefuted, that he has lived in Mississippi, Alabama, Tennessee, and in other parts of Louisiana since the storm. This sole practitioner apparently had no permanent office, telephone number or support staff during this period of time.

Appropriate Discipline

The Office of Disciplinary Counsel (ODC) argued that the respondent violated Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client); 1.4 (failure to communicate with a client); 1.9 (conflict of interest); 1.16(d) (obligations upon termination of the representation); and 8.1(c) (failure to cooperate with the ODC in its investigation) of the Rules of Professional Conduct. The respondent requested a hearing to present evidence of his mitigating circumstances that contributed to his alleged misconduct. The respondent alleged that during the time of the alleged misconduct, he was diagnosed with diabetes, and in addition was caring for a sick mother. The ODC argued that the respondent failed to appear at the mitigation hearing, which was first scheduled for September 28, 2005, a month after Hurricane Katrina devastated Louisiana, then rescheduled for February 17, 2006.

In cases involving instances of neglect, failure to communicate with clients, and failure to cooperate with the ODC in its investigations, the Court has imposed sanctions ranging from suspensions to diarment. In In re: Waltzer, 04-1032 (La.|10/8/04),4 883 So.2d 973, the Court imposed a two-year suspension upon an attorney who, among other misconduct, neglected three legal matters, failed to communicate with three clients, failed to properly terminate representations, and failed to cooperate with the ODC. In In re: Wharton, 03-1816 (La.10/17/03), 872 So.2d 459, the Court imposed a three-year suspension upon an attorney who neglected seven legal matters, failed to communicate with four clients, failed to refund unearned fees to five clients, and failed to cooperate with the ODC in three investigations. In In re: Romero, 04-3087 (La.4/29/05), 900 So.2d 819, the attorney was involved in numerous instances of neglect and failure to communicate as well as one instance of conversion of less than $2,000. For this misconduct, the attorney was suspended from the practice of law for three years. In In re: Brown, 04-1119 (La.1/14/05), 892 So.2d 1, the attorney was suspended for three years for neglecting several legal matters, failing to communicate with clients, failing to refund unearned fees, and failing to cooperate with the ODC. In In re: Phelps, 02-1837 (La.9/30/02), 827 So.2d 1140, the attorney was involved in seven instances of neglect of legal matters and failure to communicate with clients. Because the attorney’s misconduct was a result of poor management skills, rather than dishonest or improper motives, this Court imposed a deferred one-year suspension with two years of supervised probation.

This disciplinary matter involves an attorney, who allegedly neglected legal matters and failed to communicate with clients. Mr. Williams’ situation is more akin to In re Phleps, where this Court, because the attorney’s misconduct was a result of poor management skills, rather than dishonest or improper motives, decided that disbarment was not warranted. In light of the fact that respondent was not charged with any instances of conversion of client funds or failure to refund unearned fees, |sa deferred suspension followed by supervised probation would be adequate discipline. The recommendation to disbar apparently was not related to the severity of the original charges that were lodged against the respondent, but was based on his failure to cooperate, namely appear at the February 17, 2006 hearing.

We must presume that respondent had to reconstruct records, if both his home and office were destroyed. With all the concessions made for other Hurricane Katrina survivors, I find the zealous pursuit of this sole practitioner in this bar matter, particularly offensive.

      . This zip code corresponds to the post office box and not the Jourdan Avenue address. There is no evidence in the record as to notices sent to the post office box.

      . Disbarment is usually warranted when client’s fees are involved, i.e., failure to refund unearned fees and/or unused costs; commingling of funds, conversion, etc. In In re: Brancato, 06-0124 (La.5/26/06), 932 So.2d 651, an attorney was disbarred for numerous instances of neglect, failure to communicate, and failure to cooperate. He also failed to refund unearned fees to several clients and was ordered to make restitution. In re: Laque, 03-3539 (La.6/25/04), 876 So.2d 753, the attorney was disbarred because he neglected and abandoned sixteen legal matters without notice to his clients, failed to communicate with his clients, failed to refund unearned fees, closed his office without notice to his clients, and failed to cooperate with the ODC. In re: Poirrier, 01-1116, 01-1118 (La.6/29/01), 791 So.2d 94, an attorney was disbarred for abandoning his law practice, neglecting several legal matters, failing to communicate with his clients, failing to account for or refund unearned fees and/or unused costs, failing to return his clients’ files, and failing to cooperate with the ODC.
      In the present case, there was no allegation made, or evidence presented, that suggested that the respondent mismanaged any client's funds.


text:
    In re Deborah Harkins BAER.
    No. 2007-B-0861.
    Supreme Court of Louisiana.
    May 2, 2007.
   ORDER

Considering the Petition for Interim Suspension for Threat of Harm filed by the Office of Disciplinary Counsel,

IT IS ORDERED that Deborah Har-kins Baer, Louisiana Bar Roll number 21458, be and she hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19.2. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately.

/s/ John L. Weimer Justice, Supreme Court of Louisiana

__


text:
    In re Gregory L. THIBODEAUX.
    No. 2007-B-0727.
    Supreme Court of Louisiana.
    May 4, 2007.
   |,ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

This disciplinary matter arises from a motion and rule to revoke probation filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Gregory L. Thibodeaux, an attorney licensed to practice law in Louisiana, for his violation of additional Rules of Professional Conduct while on court-ordered probation imposed in In re: Thibodeaux, 04-0991 (La.5/21/04), 873 So.2d 652 (“Thibodeaux I”).

UNDERLYING FACTS AND PROCEDURAL HISTORY

The record in Thibodeaux I established that respondent neglected a legal matter and failed to communicate with a client. Prior to the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline, suggesting that respondent be suspended for one year, fully deferred, subject to his successful completion of a two-year period of probation with conditions. This court accepted the petition for consent discipline on May 21, 2004.

On December 2, 2005, the adjudicative committee of the disciplinary board appointed attorney William Stagg to serve as respondent’s probation monitor. Mr. Stagg filed an executed probation plan with the ODC on January 30, 2006.

In August 2006, the ODC commenced an investigation into allegations that respondent had failed to timely pay a third-party medical provider. On February 22, |22007, respondent gave a sworn statement to the ODC, wherein he admitted to the commingling and conversion of client and third-party funds. Additionally, respondent admitted to issuing an “NSF” check to the third-party medical provider following the filing of the complaint.

DISCIPLINARY PROCEEDINGS

Motion and Rule to Revoke Probation

On March 2, 2007, the ODC filed a motion and rule to revoke respondent’s probation. The ODC premised its motion and rule on respondent’s admitted commingling and conversion of client and third-party funds. The ODC prayed for revocation of respondent’s probation and the imposition of the previously deferred one-year suspension.

Disciplinary Board Recommendation

A hearing was conducted before an adjudicative panel of the disciplinary board on March 29, 2007. Respondent appeared at the hearing and again admitted to the commingling and conversion of client and third-party funds. Respondent also stated that he had no objection to the revocation of his probation and imposition of an actual period of suspension.

After considering the evidence presented, the board concluded that respondent violated the Rules of Professional Conduct by commingling and converting client and 13third-party funds, which warrants the revocation of his probation. Accordingly, the board recommended that respondent’s probation be revoked and that he be suspended from the practice of law for one year.

DISCUSSION

Respondent has admitted that he commingled and converted client and third-party funds. These facts support the disciplinary board’s conclusion that the revocation of respondent’s probation and imposition of the deferred one-year suspension is warranted. Therefore, we will revoke respondent’s probation and make the previously deferred one-year suspension exec-utory.

In light of the continued need to monitor respondent’s practice, we further order that respondent’s reinstatement to the practice of law shall be subject to a two-year period of probation governed by the conditions as enumerated in Thibodeaux I. In the event respondent violates these conditions, the ODC shall file an immediate report in this court and may request that we place respondent on interim suspension, if appropriate.

DECREE

For the reasons assigned, respondent’s probation is revoked and the previously deferred one-year suspension imposed in In re: Thibodeaux, 04-0991 (La.5/21/04), 873 So.2d 652, is hereby made immediately executory. It is further ordered that upon his reinstatement to the practice of law, respondent shall be placed on probation for a period of two years, subject to the conditions set forth in this opinion. All costs and expenses in the matter are assessed against respondent, Gregory L. Thibodeaux, Louisiana Bar Roll number 18463, in accordance with Supreme Court Rule XIX, § |410.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

      . Mr. Stagg was appointed as a replacement for respondent's first probation monitor, who advised the board that he was unable to continue as probation monitor due to time restraints.

      . In August 2005, respondent settled his client's personal injury case for $15,000. After receiving the settlement check from the insurance company, respondent deposited the funds into his client trust account. However, he used the funds in the trust account to operate his law office, and so in January 2006, respondent paid his client his portion of the settlement ($8,169) with a check drawn on his operating account. Respondent did not issue a check to his client’s medical provider until September 2006, at which time there were insufficient funds in the operating account to cover the check. Thereafter, on November 16, 2006, respondent sent a certified check to the medical provider for $4,331, the full amount due, and agreed to pay any other charges associated with the matter.


text:
    In re Brian L. EVANS.
    No. 2006-OB-2526.
    Supreme Court of Louisiana.
    May 4, 2007.
   ON APPLICATION FOR ADMISSION TO THE BAR

PER CURIAM.

Petitioner, Brian L. Evans, successfully passed the essay portion of the Louisiana Bar Examination. However, the Committee on Bar Admissions (“Committee”) declined to certify him for admission to the Bar based upon character and fitness concerns. On petitioner’s application to this court, we appointed the Office of Disciplinary Counsel to conduct an investigation and appointed a commissioner to take character and fitness evidence. Following the proceedings, the commissioner filed his report with this court, recommending that petitioner be admitted to the practice of law. Neither petitioner nor the Committee objected to that recommendation.

Considering the commissioner’s recommendation and the entire record of this proceeding, we conclude petitioner has satisfied his burden of proving that he has “good moral character” to be admitted to the Bar of this state. See Supreme Court Rule XVII, § 5(E). Accordingly, it is ordered that the application for admission be and hereby is granted.

ADMISSION GRANTED.


author: MICHAEL E. KIRBY, Judge.

text:
    OBJECT TECHNOLOGY INFORMATION SPECIALISTS CORPORATION v. SCIENCE AND ENGINEERING ASSOCIATES, INC., Sea Information Services, Inc., and Robert Savoie.
    No. 2006-CA-0162.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 28, 2007.

      Chadwick W. Collings, Thornhill & Coll-ings, L.C., Slidell, LA, for Plaintiff/Appel-lee.
    Mark R. Beebe, Lee C. Reid, Robert N. Markle, Raymond P. Ward, Adams and Reese LLP, New Orleans, LA, for Defendants/Appellants, Science and Engineering Associates, Inc. and Sea Information Services, Inc.
    Jeffrey A. Schwartz, Watkins Ludlam Winter & Stennis, P.A., New Orleans, LA, for Defendant/Appellant, Robert Savoie.
    (Court composed of Judge MICHAEL E. KIRBY, Judge DAVID S. GORBATY, Judge LEON A. CANNIZZARO JR.).
   MICHAEL E. KIRBY, Judge.

11 Defendants, Science and Engineering Associates, Inc., SEA Information Services, Inc. and Robert Savoie, appeal the trial court judgment denying their exceptions of improper venue and prematurity.

This matter arises from a contract dispute. The plaintiff in this case, Object Technology Information Specialists Corporation (“OTIS”), filed a petition for declaratory relief, injunctive relief and damages against the defendants on April 7, 2004. According to this petition, OTIS entered into a contract with Science and Engineering Associates, Inc. on June 9, 1999 in which Science and Engineering Associates, Inc. agreed to perform work for the United States government at the University of New Orleans Research and Technology Park in New Orleans. The contract was renewed and modified on at least two occasions, with SEA Information Services, Inc. substituted in place of Science and Engineering Associates, Inc. The contract called for OTIS to perform work for the Space and Naval Warfare Command. OTIS alleges that it performed under this contract through March 31, 2004.

lain the petition, OTIS alleges that SEA Information Services, Inc. is owned and controlled by Robert Savoie. In February 2004, SEA allegedly contacted OTIS and claimed that certain OTIS personnel had improperly used government resources and time allotted for the Space and Naval Warfare Command contract on another unrelated project for the United States government. OTIS contends that SEA refused to provide OTIS with supporting evidence of SEA’s allegations, notwithstanding OTIS’ request for such evidence.

On April 1, 2004, OTIS received a letter from SEA seeking to terminate its contract with OTIS, and further requested that OTIS refund an amount that SEA alleged was improperly billed under the Space and Naval Warfare Command contract. OTIS attached to its petition the contract and its renewal and modifications, and alleged several grounds that prevented termination of the contract. OTIS alleged that SEA manufactured the allegations against OTIS for the sole purpose of removing OTIS from the Space and Naval Warfare Command project so that SEA could perform the work on this project itself and increase its profit margin by eliminating OTIS as a subcontractor.

In addition to damages, OTIS is seeking declaratory and injunctive relief, specifically including an order that the contract between OTIS and SEA remain in effect until the trial court rules on the merits of its petition. OTIS obtained a temporary restraining order after the suit was filed. SEA filed a motion to dissolve the temporary restraining order, but SEA filed a notice of removal of this case to | ¡¡federal court before the motion to dissolve the temporary restraining order was heard. In the notice of removal, SEA alleged that OTIS’ actions are governed by the Contract Disputes Act, 41 U.S.C.A. § 601 et seq. (“CDA”). OTIS filed a motion to remand the case back to state court, and the motion was granted by the United States District Court for the Eastern District of Louisiana.

After remand, SEA filed exceptions of improper venue and prematurity. The trial court denied the exceptions, and SEA now appeals.

Prior to addressing SEA’s arguments on appeal, we must first address OTIS’ motion to dismiss this appeal. OTIS argues that the judgment appealed from in this case is a non-appealable interlocutory judgment. According to OTIS, La. C.C.P. article 1915 and the 2005 amendment to La. C.C.P. article 2083, which became effective on January 1, 2006, preclude the appeal of this judgment.

The trial court’s denial of exceptions of improper venue and prematurity is an interlocutory judgment that is not susceptible to being certified as final for purposes of immediate appeal under La. C.C.P. article 1915. Prior to the 2005 amendment to La. C.C.P. article 2083, which became effective on January 1, 2006, an appeal could be taken from an interlocutory judgment “which may cause irreparable injury.” The amended version of La. C.C.P. article 2083 states that an interlocutory judgment is appealable only when expressly provided by law. Because this amendment is procedural in nature and there is no legislative expression to the contrary, the amendment applies both prospectively and retroactively. La. C.C. article 6.

| ¿There is no law expressly providing for the appealability of a judgment denying an exception of improper venue or a judgment denying an exception of prematurity. Accordingly, the judgment appealed from is a non-appealable interlocutory judgment. However, because the order granting a suspensive appeal in this case was granted several months prior to the effective date of the amendment to La. C.C.P. article 2083, it is the opinion of this Court that to dismiss SEA’s appeal would be unfair under these special circumstances. Instead, we choose to exercise our general supervisory jurisdiction and the statutory authority granted to us by La. C.C.P. article 2164, and convert this appeal to an application for supervisory writs. See, In re Depland, 2003-0385 (La.App. 4 Cir. 8/6/03), 854 So.2d 438.

In its sole assignment of error, SEA argues that the trial court erred in denying its exceptions and permitting this case to go forward in state court when the provisions of the contract between the parties dictate that any dispute arising out of, or relating to, the contract be submitted first to a Contracting Officer for resolution, in accordance with the CDA’s procedures. The contract between the parties includes the following clause:

This contract is subject to the Contract Disputes Act of 1978, as amended (41 U.S.C. [§§ ] 601-613). Failure of the parties to this contract to reach agreement on any request for equitable adjustment, claim, appeal or action arising under or relating to this contract shall be a dispute to be resolved in accordance with the clause at FAR 52.233-1, Disputes [Dec.1998], which is incorporated herein by reference. The Contractor shall proceed diligently with performance of this contract, ^pending final resolution of any dispute arising under this contract.

In response to SEA’s argument, OTIS argues that the CDA is intended to deal solely with disputes between the United States government and its contractors, and does not apply in situations such as the one in the instant case, which involves a dispute between a contractor of the United States government and one of its subcontractors. OTIS further argues that submitting the claim first to a Contracting Officer would be a vain and useless act because the Contracting Officer will refuse to hear the claim because of the alleged inapplicability of the CDA in this situation.

Generally, legal agreements have the effect of law upon the parties, and, as they bind themselves, they shall be held to a full performance of the obligations flowing therefrom. Commercial Properties Development Corp. v. State Teachers Retirement System, 2000-0392, p. 6 (La.App. 1 Cir. 3/28/01), 808 So.2d 534, 540. A person who signs a written instrument is presumed to know its contents and cannot avoid its obligations by contending that he did not read it or that it was not explained or that he did not understand it. Freeman v. Minolta Business Systems, Inc., 29,655, p. 12 (La.App. 2 Cir. 9/24/97), 699 So.2d 1182, 1189. Thus, unless there is evidence of fraud, misrepresentation, or deceit, one who signs a written contract is bound by its terms. Id.

In this case, OTIS does not contest the validity of its contract with SEA, nor does it contend that the inclusion of the CDA clause was the result of fraud, misrepresentation or deceit. Through its lawsuit, OTIS is attempting to prevent SEA from terminating its contract with OTIS. At the same time, OTIS is also seeking to avoid enforcement of the CDA clause, to which both parties agreed when the contract was executed.

laWhen a party seeks to enforce the provisions of a contract, that party must accept all of the terms of the contract. Shroyer v. Foster, 2001-0385, pp. 8-9 (La. App. 1 Cir. 3/28/02), 814 So.2d 83, 89. The party cannot have it both ways; it cannot rely on the contract when it works to its advantage and then repudiate it when it works to its disadvantage. Id. Whether or not the Contracting Officer will agree to hear this claim is not the issue before us. When the parties executed the contract between them, they agreed that any dispute “arising under or relating to” the contract would first be submitted to a Contracting Officer in accordance with the CDA’s procedures. The fact that OTIS believes that submitting the dispute to a Contracting Officer before proceeding to state court would be a waste of time is not a sufficient reason to invalidate the CDA provision agreed to by the parties.

Furthermore, we find no merit in OTIS’ argument that SEA waived its right to object to venue because its exceptions were filed after it had filed a motion to dissolve a temporary restraining order in state court and an answer in federal court after removing the matter to federal court. OTIS argues that SEA submitted itself to the court’s jurisdiction when it filed those pleadings. We find that this matter is analogous to disputes arising under or relating to contracts containing arbitration clauses.

Waiver of arbitration is not a favored finding, and there is a presumption against it. Dufrene v. HBOS Manufacturing, LP, 2003-2201, p. 6 (La.App. 4 Cir. 4/7/04), 872 So.2d 1206, 1211. Waiver will be found when the party seeking arbitration substantially invokes the judicial process to the detriment or prejudice of the other party. Id. In this case, SEA has not substantially invoked the judicial process to the detriment or prejudice of OTIS. To the contrary, SEA’s actions in removing the matter to federal court and in filing the motion to dissolve a |7temporary restraining order in state court were in furtherance of its attempt to invoke the CDA procedure. We conclude that SEA did not waive its right to file exceptions in this ease once the matter was remanded back to state court.

The venue of first resort agreed to by the parties for dispute resolution is with a Contracting Officer operating in accordance with CDA procedures. If the Contracting Officer concludes that the CDA is inapplicable in this situation, then the matter can be returned to state court. Prior to such action by a Contracting Office, the filing of this case in state court is premature.

For the reasons stated above, we conclude that the trial court erred in denying SEA’s exceptions of improper venue and prematurity. Accordingly, we grant the writ, reverse the trial court judgment denying SEA’s exceptions of improper venue and prematurity, and remand this matter to the trial court for further proceedings consistent with this opinion.

APPEAL CONVERTED TO WRIT; WRIT GRANTED; JUDGMENT REVERSED; CASE REMANDED.

      . From this point forward, we will collectively refer to Science and Engineering Associates, Inc., SEA Information Services, Inc. and Robert Savoie as SEA.


author: JOAN BERNARD ARMSTRONG, Chief Judge.

text:
    C. NAPCO, INC. and Ten Eleven Decatur Corp. v. The City of NEW ORLEANS.
    No. 2006-CA-0603.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 7, 2007.
    Order Granting Rehearing May 4, 2007.

      Salvador Anzelmo, Thomas W. Milliner, Brian Burke, Law Office of Salvador An-zelmo, Metairie, LA, for Plaintiffs/Appel-lees and Third Party Defendants, C. Nap-co, Inc. and Ten Eleven Decatur Corp.
    Stuart H. Smith, Kimberly Wooten Rosenberg, Catherine B. Cummins, Smith Stag, L.L.C., and Barry J. Cooper, Jr. Cooper Law Firm, L.L.C., New Oreans, LA, for Intervenors/Appellants.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge DENNIS R. BAGNERIS Sr. and Judge ROLAND L. BELSOME).
   JOAN BERNARD ARMSTRONG, Chief Judge.

_J_1Intervenors/appellants, Stuart H. Smith (“Mr.Smith”), Vieux Carre Property Owners Residents and Associates (“VCPO-RA”) and French Quarter Citizens for Preservation of Residential Quality (“FQCPRQ”), (hereinafter collectively “in-tervenors”) filed this appeal from the judgment of the trial court that denied interve-nors’ request for a preliminary injunction against plaintiffs-appellees, C. Napco Inc. and Ten Eleven Decatur Corp. (hereinafter collectively “Café Sbisa”), the owners and operators of Café Sbisa to prohibit live music entertainment at Café Sbisa, a restaurant located in the historic Vieux Carre district of New Orleans. For the reasons that follow, we affirm the judgment of the trial court.

The manager of Café Sbisa was served a summons on March 12, 2004 for violation of City Code Sec. 30-1283, Mayoralty Permit Required for Live Entertainment. In response to the summons, on March 31, 2004, Café Sbisa filed a Petition for Temporary Restraining Order, Preliminary Injunction and Permanent Injunction in the Civil District Court for the Parish of Orleans against the City of New Orleans (hereinafter “City”) through the Department of Safety and Permits (“DSP”). This petition was allotted to Division “N” and was assigned the docket number of “2004-4830.” Café Sbisa alleged that it had acquired a legal non-conforming use by prescription as provided under La. R.S. 9:562 because it had ^provided continuous uninterrupted live musical entertainment for more than ten years at Café Sbisa without being cited for a permit violation. Café Sbisa also sought an injunction to enjoin the City from prohibiting live musical entertainment at Café Sbisa.

On August 26, 2004, intervenor, Stuart Smith, a neighboring landowner, intervened in that action. Smith sought a declaratory judgment stating that Café Sbisa was not entitled to live entertainment and a preliminary and permanent injunction to prohibit live entertainment in violation of the zoning ordinances. VCPORA and FQCPRQ, nonprofit corporations dedicated to preserve the quality of life and the historical character of the Vieux Carre, intervened on December 23, 2004, seeking the same relief as Smith.

During this period, Café Sbisa also filed an application for a live entertainment permit with the DSP. That application was denied. The DSP concluded that Café Sbisa had not offered continuous, live entertainment for ten years sufficient to acquire legal non-conforming use status. Café Sbisa appealed that decision to the Board of Zoning Adjustments (BZA). A hearing was held before the BZA on February 14, 2005, pursuant to which the BZA upheld the decision of the Director of Safety and Permits to deny the live entertainment permit.

La. R.S. 33:4727(E) provides that any person aggrieved by any decision of the BZA may petition to the district court. In accordance with that statute, on March 15, 2005, Gafé Sbisa timely filed a Petition for Judicial Review of Adjudication and Writ of Certiorari with the district court which was allotted to Division “D” under the docket number “2005-3466.” Café Sbisa’s petition requested that the district court reverse the decision to deny the permit and also |3requested that the court issue an order prohibiting the City from taking any action in reliance on the BZA decision until the district court rendered a judgment to determine its legality. On March 16, 2005, the district court signed an Order “prohibiting the City of New Orleans from taking any action in reliance based on the disposition of BZA Docket 181-04 at the BZA meeting held on February 14, 2005 until judgment shall [sic] be pronounced in this Court concerning the legality of the proceedings complained of in this Petition.” There is nothing in the record to show that this stay order has ever been rescinded and the appellants do not contend otherwise. We shall, therefore, proceed upon the assumption that it is still in effect. We find no objection to the stay order in the record.

Thereafter, the City and Café Sbisa filed a joint motion to transfer Café Sbisa’s Division “D” Petition for Judicial Review of the BZA decision to Division “N,” to which Division the earlier filed Petition for Temporary Restraining Order, Preliminary Injunction and Permanent Injunction filed by Café Sbisa had been allotted. As stated previously, it was in this original Division “N” proceeding that Stuart, VCPORA and FQCPRQ filed their interventions. The transfer order was signed by the transferring judge for Division “D” on April 27, 2005 and signed by the transferee judge for Division “N” on May 2, 2005.

The trial court judge initially heard the intervenors’ request for a preliminary injunction on February 18, 2005 filed in the first suit. Intervenors argued that a preliminary injunction should issue because Café Sbisa was not zoned or permitted to have live entertainment. In support of this position, they cited the decisions of the DSP and BZA that denied Café Sbisa’s request for a permit and their findings that Café Sbisa did not meet the requirements to acquire legal non-conforming use status. Café Sbisa countered that the in-tervenors failed to file any affidavits in |4support of their motion for preliminary injunction, that they failed to allege or prove irreparable injury, that issuance of the preliminary injunction would alter the status quo and that the intervenors failed to make a prima facie showing that they would prevail on the merits because their enforcement claim had prescribed. Café Sbisa argued that La. R.S. 9:5625 required the City to enforce any zoning violation against Café Sbisa within ten years of the first violation and that as the City had failed to do so, it was now time barred from doing so.

The trial court granted Café Sbisa’s exception of prescription on April 11, 2005. The intervenors then filed a Motion for Expedited New Trial and/or to Vacate Judgment. Their motion asserted that the judgment granting the exception of prescription was flawed because an exception of prescription must be specially pled and there must be a hearing on the exception before it can be decided. The trial court conducted a hearing on intervenors’ Motion for New Trial and/or to Vacate Judgment on June 1, 2005. Thereafter, on March 6, 2006, the trial court vacated the exception of prescription; however, it denied intervenors’ request for a preliminary injunction. From that judgment, interve-nors filed the present appeal.

Café Sbisa contends that this Court cannot consider those issues raised by the intervenors that go to the legality of the DSP or BZA decisions to deny the live music permit and their factual findings as to whether or not Café Sbisa had acquired legal non-conforming use status because the BZA’s decision should not be treated as a final judgment. Café Sbisa argues that because L.R.S. 33:4727(E) specifically gives Café Sbisa the right to petition to the district court to review the legality of that decision, which Café Sbisa has elected to do, the decision of the BZA should not be treated like a final judgment. The fact that an appeal may lie from a judgment does not mean that it is not a final judgment. By way of analogy, | ¡¿he fact that a judgment of the district court may be appealed to this Court does not mean that it is not a final judgment. To the contrary, in most cases, if it is not considered to be a final judgment it is not appealable. See La. C.C.P. arts.2083, 1911, and 1841. A judgment determining the merits of a case is a final judgment. Avenue Plaza, L.L.C. v. Falgoust, 96-0173, p. 4 (La.7/2/96), 676 So.2d 1077, 1079. The ruling of the BZA should be treated as a judgment (see Old Carrollton Neighborhood Ass’n v. City of New Orleans ex rel. Its Bd. of Zoning Adjustments, 03-0711, p. 8 (La.App. 4 Cir. 10/1/03), 859 So.2d 713, 718) and, because it determined the merits of Café Sbisa’s claim, it should be treated as a final judgment.

Intervenors-appellants maintain that the trial court abused its discretion by denying their request for a preliminary injunction primarily because the determinations of the BZA and the Director of the DSP are presumptively valid. While it is true that district courts have original jurisdiction to review decisions of Board of Zoning Adjustments through writs of certiorari, they must generally apply a presumption of regularity to the board decisions. Curran v. Board of Zoning Adjustments Through Mason, 580 So.2d 417, 418 (La.App. 4 Cir.1991); Gertler v. the City of New Orleans, 346 So.2d 228, 233 (La.App. 4 Cir.1977). That presumption is rebuttable, but the “reviewing court must first determine or establish whether or not the decision of the board or administrative agency is supported by substantial and competent evidence adduced in the proceedings which are regular and orderly.” Curran, supra, quoting Gertler, supra.

The only evidence offered by the inter-venors in the hearing below resulting in the judgment leading to this appeal was a “Notice of Disposition of Zoning Case” from the Board of Zoning Adjustments showing that the request to appeal jfithe decision of the Director of Safety and Permits denying the application for a live entertainment permit was denied pursuant to the hearing held on February 14, 2005. The only reviewable information contained in the “Notice” is found in the following statement:

Whereas the Board carefully considered the facts, the arguments for and against the application at the public hearing and after considering the Comprehensive Zoning Ordinance No. 4264 M.C.S., as amended, the Board is of the opinion that the decision of the Decatur of Safety & Permits be UPHELD and the APPEAL DENIED FOR 1011 Decatur Street.

Based upon this mere conclusory statement, there is no means whereby either the district court or this Court can determine whether the Board of Zoning Adjustments decision was “supported by substantial and competent evidence adduced in the proceedings which are regular and orderly,” a determination this Court said in Curran, supra, must first be made “first” as an antecedent to according a presumption of validity to the decision of the BZA.

Generally, to obtain a preliminary injunction, the petitioner must show that he will suffer irreparable injury, that he is entitled to the relief sought, and that he will prevail on the merits. Kruger v. Garden District Ass’n, 00-1135, pp. 4-5 (La.App. 4 Cir. 1/17/01), 779 So.2d 986, 990, rehearing denied, writ denied, 01-0773 (La.5/4/01), 791 So.2d 658. An injunction is a harsh, drastic remedy that should only issue where the petitioner is threatened with irreparable harm and has no adequate remedy at law. Id. at 991.

|7In this matter, intervenors do not specify the irreparable injury that they will suffer if a preliminary injunction does not issue. Rather, intervenors argue that they need not show irreparable injury and that a preliminary injunction would not disrupt the status quo because Café Sbisa was operating in violation of the law. To support this argument, they rely on the decisions of the DPS and the BZA that denied Café Sbisa the live music entertainment permit and their findings that Café Sbisa had not acquired legal non-conforming use status. Although a violation of a prohibitory law is an exception to the need to show irreparable injury, under the facts of this case, it is premature to conclude that Café Sbisa’s offering of live entertainment is in violation of the law. At the time that the trial judge denied interve-nors’ request for a preliminary injunction, the trial record already contained an order from the consolidated case that enjoined the City from enforcing the BZA decision until the trial court ruled on the decision’s merits. Inasmuch as the trial court has not rendered that judgment, Café Sbisa can still lawfully offer live music entertainment.

A preliminary injunction is an interlocutory procedural device designed to preserve the status quo as it exists between the parties, pending trial on the merits; therefore, a trial court has great discretion to grant or deny the relief requested. LHO New Orleans LM, L.P. v. MHI Leasco New Orleans, INC., 02-0663, p. 3 (La.App. 4 Cir. 11/20/02), 833 So.2d 1010, writ denied, 2002-3004 (La.12/19/02), 833 So.2d 339. An appellate court will disturb the trial court judgment only upon a showing of abuse of its great discretion. A to Z Paper Co., Inc. v. Carlo Ditta, Inc., 1998-1417 (La.App. 4 Cir. 9/9/98), 720 So.2d 703, appeal after remand 1999-1189, 775 So.2d 42, rehearing denied, writ denied, 2000-3431 (La.2/9/01), 785 So.2d 824.

|sIn the present matter, intervenors have not demonstrated irreparable injury. They have an adequate remedy at law as the trial court has not yet ruled on the legality of the BZA decision. The record contains no evidence in support of the BZA decision. Moreover, as noted previously, a stay order of that BZA decision is in effect and as the record contains no objection to that stay order we find no basis for questioning the broad discretion of the trial court in the conduct of the trial in that regard.

Based on the foregoing, we find that the trial court did not abuse its vast discretion to deny intervenors’ request for a preliminary injunction. Accordingly, the judgment is affirmed.

AFFIRMED.

ON APPLICATION FOR REHEARING

|, Considering the application for rehearing of the Vieux Carre Property Owners Residents and Associates (“VCPORA”) and the French Quarter Citizens for Preservation of Residential Quality (“FQCPRQ”), we grant rehearing for the limited purpose of noting that the term “consolidated” found on page “-” of the original opinion should read “transferred” consistent with all other such references found on page “-” of the original opinion and that the sentence in which it is contained on page seven of the original opinion should now read:

At the time the trial judge denied inter-venors’ request for a preliminary injunction, the transferred case already contained an order staying the City from enforcing the BZA decision until the trial court ruled on the decision’s merits.

We affirm the original opinion in all other respects. We further note that the appellants in their “Motion for Leave to File a Reply Brief on Behalf of Appellants/Intervenors” acknowledge both the transfer order and the stay order referred to in the original opinion of this court.


author: TERRI F. LOVE, Judge.

text:
    Kitty JAMISON v. Joseph D’AMICO, III.
    No. 2006-CA-0842.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 2007.

      Michael A. Fenasci, Fenasci & Associates, New Orleans, LA, for PlaintiffiAppel-lant.
    Brian C. Bossier, Tara Nunez Smith, Erin H. Boyd, Blue Williams, L.L.P., Me-tairie, LA, for Defendant/Appellee.
    (Court composed of Judge CHARLES R. JONES, Judge, TERRI F. LOVE, Judge, ROLAND L. BELSOME).
   TERRI F. LOVE, Judge.

| ¶ Kitty Jamison appeals the district court’s granting of a motion for summary judgment that was filed on behalf of Joseph D’Amico, III and the granting of an exception of no cause of action filed on behalf of Louisiana Steam Equipment Company, Inc. There exist no genuine issues of material fact, and defendants are therefore entitled to judgment as a matter of law. Also, allegations in the appellant’s petition, specifically the allegation that LSEC was “improperly delegated” certain duties by Mr. D’Amico, were insufficient to state a cause of action. Therefore, the district court correctly granted the motion for summary judgment and the exception of no cause of action. We affirm the decision of the district court.

FACTUAL AND PROCEDURAL BACKGROUND

While working in a building located at 1701 Tchoupitoulas Street in New Orleans, Louisiana, the appellant, Kitty Jamison (hereinafter “appellant” or “Ms. Jamison”) was walking in the storage area of the premises, when the floor collapsed beneath her. As a result of that accident, she sustained injuries.

At the time of the accident, Ms. Jamison was employed by Tchoupitoulas Street Wharf, Inc., d/b/a Marine Medical Unit. The premises had been leased to |2Mr. J. Carlyle Smith (Lessee) by Joseph D’Ami-co, III (Lessor/Appellee) (hereinafter “ap-pellee” or “Mr. D’Amico”). The lease expired on or about September 30, 1998, and no formal provision for the reconduction of the lease terms existed at that time.

The district court heard a motion for summary judgment filed on behalf of Mr. D’Amico and an exception of no cause of action filed on behalf of Louisiana Steam Equipment Company (hereinafter “LSEC”). The district court granted ap-pellee’s motion for summary judgment and LSEC’s exception of no cause of action. Thereafter, this appeal was lodged.

STANDARD OF REVIEW

A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B). Summary judgment is favored and shall be construed “to secure the just, speedy, and inexpensive determination of every action.” La.Code Civ.P. art. 966(A)(2).

Appellate courts are to review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Champagne v. Ward, 03-3211, p. 4 (La.1/19/05), 893 So.2d 773, 776. The mover bears the initial burden of proof to show that no genuine issue of material fact exists. Id. However, if the mover will not bear the burden of proof at trial, he need not negate all essential elements of the adverse party’s claim, but he must point out that there is an absence of factual support for one or more elements essential to the claim. La. Code Civ.P. art. 966(C)(2). Once the mover has met his |3initial burden of proof, the burden shifts to the nonmoving party to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial. Id.

In Southern Tool Supply, Inc. v. Beerman Precision, Inc., this Court recited the standard of review for a trial court’s decision of an exception of no cause of action as follows:

We review a trial court’s decision on an exception of no cause of action de novo “because the exception raises a question of law and the lower court’s decision is based only on the sufficiency of the petition.” City of New Orleans v. Board of Comm’rs of Orleans Levee Dist., 93-0690, p. 28 (La.7/5/94), 640 So.2d 237, 253. In so doing, we are confined to the allegations of the petition. No evidence can be introduced to support or to controvert an exception of no cause of action. La. C.C.P. art. 931. Rather, we must accept as true the well pleaded factual allegations set forth in the petition. Based thereon, our job is to determine “whether, on the face of the petition, the plaintiff is legally entitled to the relief sought.” Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1235 (La.1993).

03-0960, p. 6 (La.App. 4 Cir. 11/26/03), 862 So.2d 271, 277.

MOTION FOR SUMMARY JUDGMENT

The appellant assigns error to the district court granting the appellee’s motion for summary judgment. The appellant argues that there was a genuine issue of material fact based on the pleadings, depositions, admissions, affidavits and documents presented. However, the appellee submitted evidence sufficient to negate an essential element of the appellant’s claim, i.e., knowledge of the condition of the defective floor, and the appellant failed to produce factual support sufficient to establish that she could meet her burden of proof at trial. We find that there are no depositions, affidavits, admissions, or answers to interrogatories on |4file that show that Mr. D’Amico had knowledge or should have had knowledge of the defective condition of the floor in the subject building.

In determining whether the trial court erred in granting Mr. D’Amico’s motion for summary judgment, we must discern whether genuine issues of material fact exist. King v. Dialysis Clinic Inc., 04-2116, p. 5 (La.App. 4 Cir. 1/4/06), 923 So.2d 177, 180. “A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of a legal dispute.” Hines v. Garrett, 04-0806, p. 1 (La.6/25/04), 876 So.2d 764, 765. An adverse party to a supported motion for summary judgment may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided by law, must set forth specific facts establishing that there is a genuine issue of material fact for trial. La.Code Civ.P. art. 967(B).

The basis of Mr. D’Amico’s motion for summary judgment was that there was no genuine issue of material fact as to whether Mr. D’Amico knew or should have known of the allegedly defective condition of the flooring. Ms. Jamison asserts that the law imposes a duty upon the owner of the building to conduct inspections and imposes a more expansive burden of inspection upon the owner’s insurance carriers.

Failure to Inspect

The appellant alleges that Mr. D’Amico was liable for failing to inspect the premises and failing to make necessary repairs. In Vincent v. Berestitzky, Vincent, a worker, was injured when he fell through the skylight on the roof of a building owned by Berestitzky. 94-2429 (La. App. 4 Cir.3/29/95), 653 So.2d 1251, 1253. Part of the building was leased from Mr. Berestitzky by Cooter Brown’s, Inc., and Vincent sued Berestitzky, Cooter Brown’s and their respective insurers for injuries Ishe sustained as a result of his fall. Id. This Court found that there was no reason to believe that Berestitzky had knowledge of the defect where there was neither evidence nor testimony to support that claim. Vincent, 94-2429, 653 So.2d at 1254. Without knowledge of any defect, Beres-titzky’s failure to warn did not amount to negligence. Id.

Also, in Chau v. Takee Outee Bourbon, Inc., the plaintiff-appellant was a tenant’s employee who was injured on the job when a portion of a building’s ceiling collapsed onto her. 97-1166, p. 1 (La.App. 4 Cir. 2/11/98), 707 So.2d 495, 496. She brought a premises liability action against absentee co-owners and others. Id. The appellee was dismissed from the case, upon a motion for summary judgment, based upon La. R.S. 9:3221 and a clause in the lease which shifted responsibility for the condition of the building to the lessee. Id. The key issue was whether the appellee “should have known” of the alleged defect in the building, and this Court found no genuine issue of material fact as to this issue and that the appellee, an absentee co-owner who was not at all involved in the management of the building, and should not have known of the alleged defect in the building. Chau, 97-1166, p. 3-4, 707 So.2d at 496-97. This Court stated that imposing such a duty to inspect would all but completely deny the co-owner the relief granted to her by La. R.S. 9:3221. Chau, 97-1166, p. 6, 707 So.2d at 498.

Therefore, as in Chau, the legislative purpose should not be frustrated. Id. We find that Mr. D’Amico was under no duty to inspect the premises and, as a consequence, there is no basis to conclude that he should have known of the defect in the flooring in the premises.

Knowledge of the Defective Condition

The appellant also argues that Mr. D’Amico knew or should have known of Ifithe allegedly defective condition of the flooring. We disagree. Here, while the lease included a provision whereby the lessor took over responsibility for the conditions of the roof in question, the appellant failed to present legally sufficient evidence to establish knowledge on the part of Mr. D’Amico of the defective floor. Specifically, the evidence introduced by the appellant purports to show knowledge of the defect, but all of this evidence pertains to roof leaks and fails to establish that Mr. D’Amico knew or should have known that the supply room floor was defective.

In Jones v. Gatusso, a store clerk filed a negligence suit against the landlord of a building in which she worked, and its insurer, alleging that the building’s floor, on which the clerk fell and injured herself, was defective. 00-1654 (La.App. 5 Cir. 2/14/01), 782 So.2d 11, 12. In Jones, the owner of the building moved for summary judgment on the grounds that he had no knowledge of the alleged defective condition. Id. Using La.Rev.Stat. 9:3221 in the analysis, the court held that the store clerk’s employer agreed as a tenant of the building to keep its interior, including the floors, in good condition, even if the defective condition of the floor existed from the time the building was constructed, and thus, the tenant assumed liability for the building’s defects, unless owner knew or should have known of defect or had received notice thereof and failed to remedy it within reasonable time. Id., 00-1654, 782 So.2d at 13-14.

In the instant case, Mr. D’Amico executed an affidavit and offered deposition testimony, which established that he did not frequent the building. The appellee also established that he did not talk to the tenant and/or the Marine Medical Unit employees. Mr. D’Amico had not visited the building since four months prior to the accident. Also, J. Carlyle Smith testified that prior to the |7plaintiffs accident, he had not observed or taken a report from anyone that there were any weak spots in the floor of the supply room where the accident occurred. Therefore, considering the law, evidence and testimony presented in the instant ease, we find that the appellant failed to establish knowledge of the condition of the floor, and failed to produce factual support sufficient to establish that she could meet her burden of proof at trial.

RECONDUCTION

The appellant argues that there was no lessor-lessee relationship in existence at the time of the accident because the lease expired on or about September 30, 1998. Governor Claiborne Apartments, Inc. v. Attaldo, expresses the law relative to occupancy of leased premises after the lease expires as follows: “Under our Civil Code provisions based on these articles of the Code Napoleon, legal recon-duction takes place when a fixed-term lease expires and the lessee without opposition continues to occupy the premises for more than a week.” 256 La. 218, 223-24, 235 So.2d 574, 576 (1970), “The reconduct-ed lease is actually a continuation of the lease under the same terms and conditions except that the fixed term or period of duration in the old lease is voided and the reconducted lease is considered to be by the month.” Id. In Governor, the Louisiana Supreme Court also provided that “[c]ontracts are not presumed, and therefore the option or right to renew a lease is never presumed and that the civil law has expressly recognized that occupancy of premises by a lessee after the expiration of a fixed-term lease constitutes reeonduction....” Id. Given that, while there was no written reconduction of the lease after September 30, 1998, J. Carlyle Smith continued to occupy the building and pay rent for several months thereafter. We find that under these particular circumstances, the lease was reconducted.

| aWith that, we move to the appellant’s argument that the district court’s use of La.Rev.Stat. 9:3221 to grant immunity from suit was improper because of the contention that the lease was not reeon-ducted. A decision as to the propriety of granting the motion must be made with reference to the substantive law applicable to the case. Mohsan v. Roule-Graham, 05-122 (La.App. 5 Cir. 6/28/05), 907 So.2d 804, 806, writ denied, 05-1976 (La.2/3/06), 922 So.2d 1184. Additionally, La.Rev.Stat. 9:3221 provides that “the owner of premises leased under a contract whereby the lessee assumes responsibility for their condition is not liable for injury caused by any defect therein to the lessee or anyone on the premises who derives his right to be thereon from the lessee, unless the owner knew or should have known of the defect or had received notice thereof and failed to remedy it within a reasonable time”. Slaughter v. Coleman, 490 So.2d 570, 571 (La.App. 4 Cir.1986). The statute “was undoubtedly designed to relieve the owner of some of the burdens imposed upon him by law in cases where he had given dominion or control of his premises to a tenant under a lease.” Id. To establish liability on the part of a lessor who has passed on responsibility for the condition of his property to his lessee under La.Rev.Stat. 9:3221, a plaintiff must establish that (1) he sustained damages; (2) there was a defect in the property; and (3) the lessor knew or should have known of the defect. Smith v. French Market Corp., 03-1412, p. 5 (La.App. 4 Cir. 10/6/04), 886 So.2d 527, 530, citing Robinson v. Archdiocese of New Orleans, 98-1238, p. 4 (La.App. 4 Cir. 3/31/99), 731 So.2d 979, 981.

La.Rev.Stat. 9:3221 was appropriately applied in the instant case. The lease was reconducted and a lessor/lessee arrangement was in place here. We find that because the lease was reconducted and the appellant failed to prove the 18existence of a genuine issue of material fact, the district court was correct in dismissing claims against Mr. D’Amico.

EXCEPTION OF NO CAUSE OF ACTION

The appellant assigns error to the district court’s dismissal claims against LSEC, thereby sustaining LSEC’s exception of no cause of action. The basis of the exception of no cause of action was that the allegations in the appellant’s petition, specifically that LSEC was “improperly delegated” certain duties by Mr. D’Amico, were insufficient to state a cause of action; LSEC argued that there were no allegations of negligence nor any allegations of any actions or inactions on the part of LSEC. The appellant argues that the district court was incorrect in granting the exception, because LSEC undertook all responsibilities and functions to maintain the offending property and conduct necessary repairs, given to it by the owner, Mr. D’Amico.

The purpose of an exception of no cause of action is to test the sufficiency of the petition, questioning whether the plaintiffs allegations, if taken as true, afford him a remedy at law. Johnson v. T.L. James & Co., 93-1170, p. 3 (La.App. 1 Cir. 4/8/94), 635 So.2d 744, 745. An exception of no cause of action should be granted only when it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim which would entitle him to relief. Industrial Cos., Inc. v. Durbin, 02-0665, p. 7 (La.1/28/03), 837 So.2d 1207, 1213; Barrie v. V.P. Exterminators, Inc., 625 So.2d 1007, 1018 (La.1993).

In the instant case, the appellant failed to establish under the factual allegations of the petition that the law extends a remedy to her against Mr. D’Amico. LSEC carried out the maintenance, repair and reconstruction project of the subject building. While the appellant alleged that LSEC was “improperly |indelegated” the duty to inspect, maintain, and supervise the building in question, this does not amount to the statement of a claim of negligence on the part of LSEC. Accordingly, we hold that the district court properly granted the exception of no cause of action, dismissing claims against LSEC.

DECREE

Accordingly, we conclude that the motion for summary judgment was properly granted and that the district court correctly sustained the exception of no cause of action. The judgment of the trial court is therefore affirmed.

AFFIRMED.


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

text:
    STATE of Louisiana v. Adolph ROSS.
    No. 2006-KA-1328.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 2007.
    Rehearing Denied April 16, 2007.

      Eddie J. Jordan, Jr., District Attorney, Jamie Young, Assistant District Attorney, New Orleans, LA, for Appellant, State of Louisiana.
    Ferdinand F. Valteau, III, New Iberia, LA, for Defendant/Appellee, Adolph Ross.
    (Court composed of Judge DENNIS R. BAGNERIS, Sr., Judge DAVID S. GORBATY, Judge LEON A. CANNIZZARO, Jr.)
   LEON A. CANNIZZARO, Jr., Judge.

liThe defendant, Adolph Ross, filed a motion to quash the bill of information against him. The district court granted the motion, and the State of Louisiana is appealing the judgment granting Mr. Ross’ motion.

STATEMENT OF THE CASE

On August 2, 2004, Mr. Ross was charged with one count of vehicular homicide in violation of La. R.S. 14:32.1. Mr. Ross pled not guilty at his arraignment. On September 10, 2004, the district court found probable cause to try Mr. Ross and set a trial date for October 18, 2004. On October 1, 2004, his motion to suppress a confession was denied. Mr. Ross filed an application with this Court seeking supervisory review of the denial of his motion to suppress his confession. The application was denied.

On October 18, 2004, the State moved for a continuance on the ground that DNA testing of the evidence against Mr. Ross was incomplete. Mr. Ross did not object to the continuance. The trial date was continued to November 30, 2004.

lijOn October 27, 2004, the State filed a motion to compel the New Orleans Police Department (the “NOPD”) to release five samples of blood to an investigator for the State so that DNA testing could be done. The motion was granted.

On November 24, 2004, the State filed a motion to continue the trial, because the DNA testing was still incomplete and the evidence from the testing was necessary to the prosecution of the case. After a hearing on the motion for a continuance, the motion was denied. In a per curiam, dated November 30, 2004, the district court judge noted that as of November 29, 2004, the State still had not forwarded the blood samples to the laboratory for DNA testing. The judge stated in the per curiam:

This Court denied the State’s request for a continuance for the following reasons. First, the State failed to comply with the requirement in C.Cr.Pro. Article 707 that all motions for continuances shall be filed seven days before the trial date. The Court found the State’s failure to meet this deadline particularly galling because the prosecutors knew the necessary DNA testing had not been done well before November 24. Secondly, the Court is of the opinion that the State has had ample time to do the desired forensic testing. Obviously, when the State filed the bill of information on August 2 it felt that it had sufficient evidence to convict. Now, nearly four months later, it seeks a continuance for more tests when it has not even forwarded the physical evidence to the testing agency yet.

The State sought to have the denial of its motion for a continuance reviewed by this Court, so it filed a supervisory writ application, but it withdrew the application before this Court could rule on the application. In its writ application the State wrote, “On November 29, 2004, during a pretrial motion hearing, New |aOrleans Crime Lab technicians testified before the Honorable Judge, Raymond Bigelow that they were ‘backed up’ and unable to process the blood and hair samples removed from the defendant’s vehicle in time for the November 30, 2004 trial date.”

Prior to trial on November 30, 2004, the State entered a nolle prosequi. On January 19, 2005, the case was reinstated, and on February 4, 2005, Mr. Ross appeared for arraignment. Instead of entering a plea, he filed a motion to quash the bill of information for the reinstated charge. On March 4, 2005, the State and Mr. Ross argued the merits of his motion to quash, which was granted by the district court. The State is now appealing the judgment granting Mr. Ross’ motion.

STATEMENT OF FACTS

The State alleged that Mr. Ross struck and killed a pedestrian as she walked along General Meyer Avenue and Tullís Drive in New Orleans. While he was on patrol, NOPD Lieutenant Dwayne Schuer-mann stopped a brown vehicle that exhibited heavy damage to its front right side and windshield. It appeared to Lieutenant Schuermann that a large object had struck the windshield. The driver of the vehicle was identified as Mr. Ross. Lieutenant Schuermann then learned that a hit and run fatality involving a brown vehicle had recently occurred in the area.

NOPD Officer Octave La Roche, who was assigned to the fatality unit of the NOPD traffic division, was called to the scene of the stop. He examined Mr. Ross’ vehicle and interviewed him. After concluding that the damage to Mr. Ross’ vehicle was consistent with damage caused by hitting a pedestrian, Officer |4LaRoche advised Mr. Ross of his constitutional rights and told him why he was under investigation.

Mr. Ross then admitted that he struck an object on General Meyer Avenue and that the collision damaged his vehicle. Mr. Ross, however, stated that he did not know what his vehicle struck and that he fled the scene of the collision, because he was scared.

The report prepared by Officer LaRoche noted that he smelled a strong odor of alcohol on Mr. Ross’ breath during the interview. Officer LaRoche transported Mr. Ross to a police station. Mr. Ross agreed to submit to breath and urine tests that were conducted by Officer LaRoche. The tests revealed that Mr. Ross had a blood alcohol content of 0.19 percent, which was over the legal limit of 0 .08 percent. Officer LaRoche then arrested Mr. Ross for hit and run driving and vehicular homicide.

DISCUSSION

Timeliness of the Appeal

Mr. Ross has asserted that the appeal in this case was not timely filed. Once a motion for an appeal has been filed within the applicable time periods set forth in La.C.Cr.P. art. 914, there is no further action that must be taken by the State until the record is lodged with the court of appeal. The failure of the trial court, the court reporter, the minute clerk, or the clerk of court to perform their functions in connection with the filing of a criminal appeal does not affect the validity of the appeal. La.C.Cr.P. arts. 915(A) and (B) and 915.1(B).

Ijn the instant case the motion for an appeal was clearly timely, because it was orally made at the hearing immediately after the motion to quash was granted. Once the notice of appeal was given, the trial court, the court reporter, the minute clerk, and the clerk of court were responsible for preparing the record for the lodging of the appeal. In contrast, in the case of an application for a supervisory writ, the burden of filing the application timely is on the party seeking the writ. If the relator fails to timely file the writ application, the application is not considered. Rule 4-3, Louisiana Uniform Rules— Courts of Appeal.

The motion for appeal was timely made in the instant case. Mr. Ross’ claim that the appeal was not timely is without merit. Assignment of Error by the State

The sole assignment of error raised by the State is that the district court erred in granting Mr. Ross’ motion to quash. The State argues that the basis upon which the district court granted the motion was not a proper basis for granting a motion to quash. The reason that the district court granted the motion was that the State circumvented the district court’s denial of a continuance when the State’s motion to continue the trial was denied. The State used its power to enter a nolle prosequi and then reinstated the charge against Mr. Ross. Thus, the State, in effect, granted itself a continuance after the district court had denied it.

La.C.Cr. P. art. 532 sets forth the general grounds upon which a motion to quash can be granted. That article provides:

A motion to quash may be based on one or more of the following grounds:
(1) The indictment fails to charge an offense which is punishable under a valid statute.
(2) The indictment fails to conform to the requirements of Chapters 1 and 2 of Title XIII. In such 1 ficase the court may permit the district attorney to amend the indictment to correct the defect.
(3) The indictment is duplicitous or contains a misjoinder of defendants or offenses. In such case the court may permit the district attorney to sever the indictment into separate counts or separate indictments.
(4) The district attorney failed to furnish a sufficient bill of particulars when ordered to do so by the court. In such case the court may overrule the motion if a sufficient bill of particulars is furnished within the delay fixed by the court.
(5) A bill of particulars has shown a ground for quashing the indictment under Article 485.
(6) Trial for the offense charged would constitute double jeopardy.
(7) The time limitation for the institution of prosecution or for the commencement of trial has expired.
(8) The court has no jurisdiction of the offense charged.
(9) The general venire or the petit jury venire was improperly drawn, selected, or constituted.

La.C.Cr.P. art. 534 sets forth the special grounds for a motion to quash a bill of information. La.C.Cr.P. art. 534 provides:

A motion to quash an information may also be based on one or more of the following grounds:
(1) The information was not signed by the district attorney; or was not properly filed.
(2) The offense is not one for which prosecution can be instituted by an information.

The motion to quash filed by Mr. Ross did not assert as a basis for the motion any of the grounds enumerated in La.C.Cr.P. arts. 532 and 534. The jurisprudence has established, however, that there may be additional grounds upon which a motion to quash can be based in a criminal case. For example, it is clear that when the constitutional right of a defendant to a speedy trial is denied, a motion to quash should be granted. See, e.g., State v. Love, 00-3347, pp. 14-21 (La.5/23/03), 847 So.2d 1198, 1209-1213. The denial of the right to a speedy trial can cause a defendant to be oppressively incarcerated prior to trial, can prejudice [7the defendant if the defendant’s witnesses or evidence are lost as a result of a delay in the trial, and can unnecessarily increase the anxiety and concern of the defendant. Id.

In the Love case the Supreme Court also discussed another possible justification for granting a motion to quash that is not enumerated in the statutes that detail the grounds upon which a motion to quash may be granted. The Supreme Court stated:

In situations 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 risk of losing witnesses, the trial court should grant a motion to quash and an appellate court can appropriately reverse a ruling denying a motion to quash in such a situation.

00-3347, p. 14, 847 So.2d at 1209. Thus, when the State’s action in reinstituting a ease after the entry of a nolle prosequi denies the defendant’s constitutional right to due process, a motion to quash an indictment or bill of information may be appropriate when a case is reinstituted after the entry of the nolle prosequi Each case, however, must be decided on the basis of the facts and circumstances of the individual case. Id.

In the instant case Mr. Ross did not assert in his motion to quash that by reinstituting his case that the State denied him a speedy trial, that any of his procedural or constitutional rights were violated, or that his ability to defend himself had been prejudiced. The sole basis for his motion to quash was the State’s circumvention of the district court’s previous denial of the State’s motion to continue.

In State v. Polk, 05-1118 (La.App. 4 Cir. 5/31/06), 933 So.2d 838, this Court considered whether the State’s circumvention of the district court’s denial of|sa continuance by using a nolle prosequi to dismiss a charge that was subsequently reinstated was permissible. See also State v. Smith, 05-1120 (La.App.5/24/06), 933 So.2d 219. In the Polk case this Court stated:

The State has plenary authority pursuant to La.C.Cr.P. art. 576 to dismiss a charge and then reinstitute prosecution in a case, such as this one, where doing so will not circumvent the statutory time limits for commencing trial under La. C.Cr.P. art. 578. Therefore, considering the circumstances of this case, the trial court abused his discretion in quashing the bill of information.

05-1118, p. 5, 933 So.2d at 841 (footnote omitted). La.C.Cr.P. art 578 provides that no felony trial, except in a capital case, shall commence after two years from the date of the institution of the prosecution.

Thus, the State had the authority in the instant case to enter a nolle prosequi and to reinstitute the charges against Mr. Ross if his constitutional and procedural rights were not violated, if he was not prejudiced in his defense, and if the motion to quash by Mr. Ross was not based on any of the grounds for granting a motion to quash set forth in La.C.Cr.P. arts. 532 and 534. In the instant case we find that none of these factors were present. Additionally, we do not find that the district attorney was “flaunting his authority” in this case, as was discussed in the Love case. 00-3347, p. 14, 847 So.2d at 1209. Therefore, we find that the district court improperly granted Mr. Ross’ motion to quash.

^DECREE

The judgment of the district court granting Mr. Ross’ motion to quash is reversed. This case is remanded to the district court for further proceedings in accordance with this opinion.

REVERSED AND REMANDED

      . Neither the record before us nor the State's writ application contained a transcript of the hearing.

      . In the Criminal District Court for the Parish of Orleans, the Judicial Administrator's office is responsible for preparing the record and forwarding it to the court of appeal.

      . The reason the State requested the continuance that was denied was that the State was waiting for DNA testing to be completed. Statements that were made at the March 4, 2005 hearing on Mr. Ross' motion to quash indicated that the DNA testing had been completed by the time of Mr. Ross’ arraignment on the reinstituted charge.