author: JAMES F. McKAY, III, Judge.

text:
    STATE of Louisiana v. Thomas HUNTER.
    No. 2005-KA-0461.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 19, 2006.

      Eddie J. Jordan, Jr., District Attorney of Orleans Parish, Meri M. Hartley, Assistant District Attorney of Orleans Parish, New Orleans, Louisiana, for Plaintiff/Ap-pellee.
    William R. Campbell, Jr., Louisiana Appellate Project, New Orleans, Louisiana, for Defendant/Appellant.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY III, Judge MICHAEL E. KIRBY).
   JAMES F. McKAY, III, Judge.

11 STATEMENT OF CASE

On May 7, 2004, Thomas Hunter was charged with one count of simple possession of cocaine. At his arraignment on June 3, 2004, he pled not guilty. The court heard and denied his motion to suppress the evidence on August 3, 2004. On September 2, 2004, a six-person jury found Hunter guilty as charged. On September 23, 2004, the court sentenced Hunter to serve four years at hard labor. The court also denied his motions for new trial, for post verdict judgment of acquittal, and to reconsider sentence but granted his motion for appeal. The State subsequently filed a multiple bill. After the matter was continued several times, on May 20, 2005 the court found the defendant to be a second felony offender, vacated his original sentence, and resentenced him as a second offender to serve ten years at hard labor. The court denied his motion to reconsider sentence.

FACTS

At shortly before noon on April 28, 2004, N.O.P.D. Officers Kevin Jackson and Eric Gillard were on proactive patrol on North Villere Street, an area known for drugs and weapons. They pulled half-way across the intersection of Franklin Avenue and stopped at the median to wait for traffic to clear.' They observed the ^defendant Thomas Hunter walking down North Vil-lere toward a convenience store located on the corner. When Hunter saw the police car, he reversed direction and started walking away from the officers. Hunter kept looking over his shoulder at the officers’ car. The officers continued across Franklin into the block where Hunter was walking, and Hunter put both hands under his T-shirt. When he removed his hands from under his shirt, his left hand was clenched. As the officers’ car neared him, he knelt down as if to tie his shoe, and the officer saw him place whatever was in his clenched left hand under his right shoe.

The officers stopped the car, and Officer Gillard approached Hunter and asked him to come over to the police car to talk to him. Hunter stood back up, and the officers could see that something was under his right foot because the shoe was not flush with the sidewalk. Hunter replied that he was not doing anything, and he refused to move. Officer Gillard took Hunter’s arm and moved him toward the car, and Hunter dragged his right foot. The officers noticed a plastic bag under Hunter’s foot, and while Officer Gillard moved Hunter to the car, Officer Jackson seized the bag, which contained four smaller bags of a white powdered substance and five individually-wrapped off-white rocks. Believing the substance in the bag was cocaine, the officers arrested Hunter, advised him of his rights, and handcuffed him. A search incident to the arrest netted no other contraband.

Officer Gillard testified that he could see what appeared to be clear plastic sticking out of Hunter’s clenched hand, as well as plastic sticking out from under his shoe. Officer Jackson testified he could not see any plastic in either Hunter’s hand or under the shoe until Hunter’s foot moved. Both officers, however, stated that they saw Hunter place something under his shoe as the officers drove adjacent lato him, and they further testified that as Hunter knelt down, he again glanced over his shoulder at the approaching police car.

Criminalist Corey Hall of the N.O.P.D. Crime Lab testified that he tested both the powdered and rock-like substances the officers found in the bag, and these substances tested positive for cocaine.

ERRORS PATENT

A review of the record reveals one possible patent error. The minute entry and transcript of the original sentencing indicate that the trial court denied the appellant’s motions for new trial and post-verdict judgment of acquittal after imposing the original sentence in this case.

Generally, a trial court must rule on a motion for new trial or post-verdict judgment of acquittal prior to sentencing. See C.Cr.P. art. 853; State v. Allen, 00-0013 (La.App. 4 Cir. 1/10/01), 777 So.2d 1252. However, any error was cured because the trial court subsequently adjudicated the appellant a second offender and resentenced him as such.

There were no other patent errors.

ASSIGNMENT OF ERROR

By his sole assignment of error, the appellant contends that the trial court erred by denying his motion to suppress the evidence. Specifically, the appellant argues that the officers did not have reasonable suspicion of criminal activity on his part to justify them stopping him.

La.C.Cr.P. art. 215.1 allows a police officer to “stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense, and may demand of him his name, address, and an explanation of his actions.” In State v. Thompson, 2002-0333 pp. 5-6 (La.4/9/03), 842 So.2d 330, 335, the Supreme Court addressed the standard for determining whether an officer has reasonable suspicion to conduct an investigatory stop:

Reasonable suspicion for an investigatory stop is something less than probable cause and must be determined under the specific facts of each case by whether the officer had sufficient knowledge of particular facts and circumstances to justify the infringement on individual’s right to be free from governmental interference. State v. Varnell, 410 So.2d 1108 (1982); State v. Bickham, 404 So.2d 929 (La.1981); State v. Blanton, 400 So.2d 661 (La.1981); State v. Ault, 394 So.2d 1192 (La.1981).... In determining whether or not reasonable cause exists to temporarily detain a person, the totality of the circumstances, “the whole picture,” must be considered. State v. Belton, 441 So.2d 1195, 1198 (La.1983) (citing United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981).)

Here, in addition to the testimony elicited at trial, Officer Jackson testified at the suppression hearing, and his testimony at trial basically tracked that he gave at the suppression hearing. Moreover, Officer Jackson testified at the hearing that when Officer Gillard approached the appellant, the appellant told him that he had just come from the convenience store on the corner. The officers, however, had seen the appellant as he was walking toward the corner, and they observed him turn back and walk away when he saw the police car. Officer Jackson testified that although the appellant’s actions in reversing direction and placing his hands under his shirt were somewhat suspicious, the officers suspected that he might be trying to hide drugs when he bent down and placed the object from his clenched left hand under his right shoe.

This court has found reasonable suspicion to support an investigatory stop under circumstances less suspicious than those in this case. In State v. Burke, 2000-0299 (La.App. 4 Cir. 2/21/01), 782 So.2d 94, officers were on patrol when they saw a van pull into a gas station and two men get out of the van. Although - the [femen began walking toward the cashier’s booth, they reversed direction and began walking down the street as they saw the officer’s car. The officers pulled past the station, made a U-turn, and then drove back and stopped the men. While one man denied having been in the van, the other (the defendant) admitted he had been in the van, but he stated that he was looking for his friend who had been the driver. The officers detained the men and took them back to the gas station. They looked inside the van and saw a defeated steering column and a sawed-off shotgun on the floor. This court found that the defendant’s and his companion’s evasive action upon seeing the officers, coupled with their differing stories, gave the officers reasonable suspicion to detain them and take them back to the van, where they then saw the defeated steering column and the shotgun.

Likewise, in State v. Johnson, 2001-2081 (La.4/26/02), 815 So.2d 809, officers on patrol in a housing project saw the defendant and his friend walking. When the men saw the officers, they began walking quickly away toward a courtyard, and they kept looking over their shoulders as they hurried away. The trial court suppressed evidence seized from the defendant when the officers stopped him, and this court denied the State’s writ. State v. Johnson, un-pub.2001-0640 (La.App. 4 Cir. 7/3/01). On review, the Supreme Court reversed, finding that the defendant’s' hurried walk, which the officer described as almost a run, gave the officers reasonable suspicion to stop the defendant and his companion.

In State v. Sylvester, 2001-0607 (La.9/20/02), 826 So.2d 1106, officers were patrolling an area where there had been complaints of drug activity. They saw two men sitting in a car, looking down toward the floorboard. The men appeared startled and began fumbling with something as the officers drove up to them. The defendant jumped out of the car with his hand clenched as the officers ^exited theirs, and the officers told the defendant to get against their car. He complied, and one of the officers ordered him to open his hand. When he did so, a syringe fell out of his hand. The trial court denied his motion to suppress the evidence, but on review this court reversed, finding the officers did not have reasonable suspicion to order the defendant to get against the car and open his clenched hand. State v. Sylvester, 2000-1522 (La.App. 4 Cir. 2/7/01), 781 So.2d 616. The State took writs, and the Court reversed, finding the defendant’s nervousness, his fumbling in the car, and his exit from the car with a clenched fist gave the officers reasonable suspicion to order him to stand against the car and open his clenched fist.

By contrast, in State v. Phillips, 2000-0279 (La.App. 4 Cir. 10/4/00), 774 So.2d 989, police officers on patrol in an area known for drug activity saw a large group of people standing on the sidewalk. As the officers approached, the group disbursed. The officers followed the defendant, who had been one of the group, and the defendant appeared nervous and continually looked at the officers over his shoulder as he walked away. The officers drove up to the defendant and ordered him over to their car. As he complied, he threw down a rock of cocaine. On appeal, this court reversed his conviction, finding that the officers did not have reasonable suspicion to stop him. Likewise, in State v. Ratliff, 98-0094 (La.App. 4 Cir. 5/19/99), 737 So.2d 252, this court found no reasonable suspicion to stop the defendant who was standing with his arms folded and with something in his hand in front of a residence with other people.

Here, the appellant now argues that his actions did not amount to reasonable suspicion of criminal activity. He notes that Off. Jackson testified that he did not suspect that the appellant was engaged in criminal activity when he saw the |7appellant reverse direction and walk away from the officers, constantly looking back at them. He argues, therefore, that the mere fact that he did not immediately tie his shoe when the officers neared him in their car did not provide reasonable suspicion. He does not mention, however, that Officer Jackson testified that it was these actions, added to their observation that he placed something from his clenched hand under his shoe, which made the officers suspect that he was trying to hide contraband. Officer Gillard did not need reasonable suspicion merely to approach the appellant. The appellant told the officer that he had just come from the corner store, yet the officers knew he had not yet reached the store when he saw them and reversed directions, walking away and looking back at the officers. Given the reputation of the area, the appellant’s reversal of direction upon seeing the officers, his constant looking back to see if they were following him, his fumbling under his shirt and emerging with a clenched fist containing a something in plastic, his stooping down to put the object in plastic under his shoe, and his story that he had just come from the store, the officers had reasonable suspicion to detain him.

Once stopped, Officer Gillard ordered the appellant to go over to the police car. When he refused to comply, the officer grabbed his arm and started to move him in that direction. As he did so, his right foot moved, and the officers saw the bag containing what appeared to be cocaine. At that point, they could seize it. See State v. Jones, 2002-1171 (La.App. 4 Cir. 6/26/02), 822 So.2d 205; State v. Nogess, 98-0670 (La.App. 4 Cir. 3/3/99), 729 So.2d 132.

In State v. Scull, 93-2360, p. 9 (La.App. 4 Cir. 6/30/94), 639 So.2d 1239, 1245, this court stated: “The trial court is vested with great discretion when ruling on motion to suppress.” See also State v. Jones, 2002-1931 (La.App. 4 Cir. 11/6/02), 832 So.2d 382; State v. Briley, 2001-0143 (La.App. 4 Cir. 10/3/01), 798 So.2d 1191. Here, given the circumstances noted above, the officer had reasonable suspicion to stop the defendant, and once he moved his foot they could see the cocaine inside the bag, which had been under his foot. Therefore, the trial court did not abuse its discretion by denying the appellant’s motion to suppress the evidence. This assignment of error has no merit.

Accordingly, we affirm the appellant’s conviction and sentence.

AFFIRMED.


source: Caselaw Access Project

author: DENNIS R. BAGNERIS, SR., Judge.

license: Public Domain

text:
    ST. BERNARD OPTICAL CORPORATION d/b/a St. Bernard Optical, J. Curtis Pollet, Zelma Enriques, Wife of/and Arthur J. Enriques, Jr. v. Martin J. SCHOENBERGER, Eye Center Optical, L.L.C. and The Eye Center of St. Bernard (A Professional Medical Corporation).
    No. 2005-CA-0548.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 25, 2006.
    Stephen M. Chouest, Stephen M. Chouest & Associates, APLC, Metairie, LA, for Plaintiff/Appellant.

      Kevin C. Schoenberger, Kevin C. Scho-enberger, APLC, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS SR., and Judge EDWIN A. LOMBARD).
   DENNIS R. BAGNERIS, SR., Judge.

| plaintiffs, J. Curtis Pollet, Arthur En-riques, Jr., and his wife Zelma Enriques, appeal from a trial court judgment, which granted defendants’, Dr. Martin J. Schoen-berger, Eye Center Optical, L.L.C., and The Eye Center of St. Bernard’s, exception of no right of action. For the following reasons, we affirm.

FACTS

J. Curtis Pollet and Arthur Enriques co-own St. Bernard Optical Corporation, a company that dispenses eyeglasses. On April 1, 1992, St. Bernard Optical entered into a five year lease with two five year renewal options with Dr. Martin Schoen-berger for approximately 800 square feet of retail space in the building, The Eye Center of St. Bernard, located at 901 W. Judge Perez Drive in Chalmette, Louisiana. Dr. Martin Schoenberger was the sole owner of The Eye Center of St. Bernard, and he also utilized the building for his medical practice as an ophthalmologist. In April 2004, Dr. Schoenberger and his partner, Keith Sehon, formed Eye Center Optical, L.L.C., which is now operating as an optical retailer in another portion of the building.

|2On May 13, 2004, St. Bernard Optical Corporation, J. Curtis Pollet, Arthur En-riques, Jr., and Zelma Enriques filed the instant suit against Dr. Martin Schoenber-ger, The Eye Center of St. Bernard, and Eye Center Optical. In their petition, plaintiffs allege, among other things, that Defendants violated the Louisiana Unfair Trade Practices and Consumer Protection Law, and that Defendants violated the terms of the lease. Specifically, the petition states, in pertinent part:

19.
The extreme and outrageous conduct of Schoenberger, including methodically seeking to také Plaintiffs’ business, to cancel their lease without cause, and even to deny them the use of the bathrooms, hallways, or parking spaces, caused plaintiffs, Pollet and Enriques, to sustain severe emotional distress, which Schoenberger either desired to inflict or which he knew would be certain or substantially certain to result from his conduct.
20.
Schoenberger has attempted to hire St. Bernard Optical’s employees and he intentionally walks or sends his medical patients to Eye Center Optical, L.L.C., a new competing dispensary formally formed by Schoenberger on April 23, 2004, but operating through Schoenber-ger and misappropriating Plaintiffs’ business, customers and good will for several months prior thereto. Schoen-berger serves as a member and registered agent of Eye Center Optical, L.L.C., which is also located at 901 West Judge Perez Drive. Schoenberger’s employee, Sehon, is the only other listed member of Eye Center Optical, L.L.C. Individually, and through and by Eye Center Optical, L.L.C. and The Eye Center of St. Bernard, which are under his ownership and control, Schoenberger has unfairly and illegally misappropriat.ed and acquired St. Bernard Optical’s trade secrets, customers, business, and good-will by improper means, and he has since opened a competing dispensary within the building in his own offices, all in clear violation of the agreements, warranties, and representations he has made to the Plaintiffs over the years, which enticed the Plaintiffs to work for nearly twelve years to build the dispensary business in the Eye Care Building.
_L21.
The wrongful actions of Schoenberger, individually and on behalf of his LLC, Eye Center Optical, L.L.C., and his corporation, The Eye Center of St. Bernard, constitute unfair trade practices, entitling Plaintiffs to all right and remedies afforded to them by the Louisiana Unfair- Trade Practices and Consumer Protection Law including damages, penalties, and attorney’s fees. Plaintiffs further aver that said Defendants have improperly damaged Plaintiffs’ business through improper means, including a course of calculated misconduct over a considerable period of time that was calculated and intended to injure Plaintiffs’ business and to wrongfully benefit Defendants’ competing business.
. 22.
The actions of Schoenberger, individually and on behalf of his LLC, Eye Center Optical, L.L.C., and his corporation, the Eye Center of St. Bernard, constructively constitute wrongful eviction from the premises and have destroyed the principal cause for which the entire transaction and lease were undertaken. Plaintiffs are entitled to all damages resulting from the Defendants’ conduct, while specifically reserving the right to terminate the Dispensary Lease for failure of the principal cause (i.e., being the dispensary in the building), the legal cause for which the Dispensary Lease was originally proposed and executed.
23.
The actions of Schoenberger, individually and on behalf of his LLC, Eye Center Optical, L.L.C., and his corporation, The Eye Center of St. Bernard, breach and violate the contractual agreements and understanding reached between the parties in 1992, upon which the Plaintiffs have changed their previous plans and justifiable and reasonably relied to their detriment in the conduct of their business for over eleven (11) years, causing irreparable damage to Plaintiffs’ business and their long standing business plans.
24.
The actions of Schoenberger, individually and on behalf of his LLC, Eye Center Optical, L.L.C., and his corporation, The Eye Center of St. Bernard, constitute either intentional or negligent misrepresentations, upon which the Plaintiffs have relied to their detriment and what have caused Plaintiffs great harm. The individual Plaintiffs are entitled to damages for past, present and future mental pain and suffering, medical expenses, as applicable, and for such monetary damages as are reasonable in the premises of this action due to the general and special damages they have sustained.
Ji.25-
The Defendants are liable to Plaintiffs herein, jointly, severally, and in solido, for the breach of the agreements, and/or for the wrongful, negligent or intentional acts and/or omissions stated herein,
* * *
27.
Both Enriques and Pollet have sustained keen mental anguish and emotional distress. At all material time herein, plaintiff Arthur J. Enriques was married to plaintiff Zelma Enriques, thereby giving her a fifty percent (50) interest in his share of the business and its profits as community property. Further, Zelma Enriques has sustained her own individual damages in the form of loss of consortium, support and society due to the damages tortuously inflicted upon her husband, Arthur J. Enriques, for which the Defendant are liable herein.

On July 6, 2004, defendants filed a peremptory exception of no right of action claiming that plaintiff, Zelma Enriques, has no right of action against the defendants under the Louisiana Unfair Trade Practices and Consumer Protection Law. Defendants also filed an exception of no cause of action stating that the petition failed to state a claim or cause of action for which relief can be granted under the Louisiana Unfair Trade Practices and Consumer Protection Law.

On October 1, 2004, at the hearing of the exceptions, the trial court judge disclosed that he had been an eye patient of the defendant, Dr. Martin Schoenberger, and invited the parties to file a motion for recusal. Neither party filed a motion for recusal. On November 17, 2004, the trial court, upon finding that the plaintiffs do not have an individual right of action against defendants for the damages suffered by the corporation, St. Bernard Optical, rendered a judgment granting defendants’ peremptory exception of no right of action, which dismissed the claims of J. Curtis Pollet, Arthur Enriques, Jr., and Zelma Enriques. The trial court further found that the petition does state a cause of action under the | .¡Louisiana Unfair Trade Practices and Consumer Protection Law and rendered a judgment denying defendants’ peremptory exceptions of no cause of action.

On November 24, 2004, plaintiffs, J. Curtis Pollet, Arthur Enriques, Jr., and Zelma Enriques, filed a motion for new trial. In consideration of this new trial motion, the trial court judge re-examined the recusal issue on his own and decided to recuse himself and transfer the case to another division. Thereafter, Plaintiffs’ motion for a new trial was scheduled to come on for hearing in another division of the 34th Judicial District Court on January 14, 2005.

At the hearing on the new trial motion, the new trial court judge also disclosed that he is an eye patient of Dr. Martin Schoenberger. Although the trial court judge reset the matter for February 18th, he asked that the parties either submit a judgment “showing that the motion for new trial is denied or your petition and order recusing me” prior to that date. Thereafter, on February 2, 2005, the trial court signed a final judgment, which denied plaintiffs’ Motion for a New Trial. Plaintiffs now appeal this final judgment.

DISCUSSION

On appeal, Plaintiffs argue that the trial court erred in granting defendants’ exception of no right of action and dismissing their personal suit against defendants. Plaintiffs argue that even though J. Curtis Pollet and Arthur Enriques, Jr. own St. Bernard Optical Corporation, that should not give Dr. Martin Schoenberger immunity for the consequences of his deliberate or negligent conduct toward them individually-

Defendants argue to the contrary that the tenant, St. Bernard Optical Corporation, is the only entity with a right of action and that plaintiffs have no [ firight of action for damages they may have suffered as a result of an alleged loss sustained by St. Bernard Optical Corporation.

The function of the exception of no right of action is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit. La. C.C.P. art. 927. The focus in an exception of no right of action is on whether the particular plaintiff has a right to bring the suit and it assumes that the petition states a valid cause of action for some person and questions whether the plaintiff in the particular case is a member of the class that has a legal interest in the subject matter of the litigation. Reese v. State Dept, of Public Safety and Corrections, 03-1615 (La.2/20/04), 866 So.2d 244.

Generally, a shareholder may only sue to recover losses to a corporation secondarily through a shareholder’s derivative suit. Pittman v.Beebe, 95-1342 (La. App. 3 Cir.3/6/96), 670 So.2d 761. Shareholders do not have a personal right to sue to recover for acts committed against, or causing damage to the corporation. Joe Conte Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 95-1630 (La.App. 4 Cir. 2/12/97), 689 So.2d 650; Bolanos v. Ma-dary, 609 So.2d 972 (La.App. 4 Cir.1992). To determine whether the shareholder has a personal right to recover, the jurisprudence requires an injury that is “special” or unique to the shareholder. The American Law Institute suggest this test for distinguishing direct from derivative claims: “if a shareholder can recover in a suit only by showing that the corporation was injured, then the suit is derivative in nature, even if the corporate injury does cause indirect harm to the shareholder, while if a recovery can be granted without proof of a corporate loss, then the suit is considered to be direct.” Morris Holmes, 8 La. Civ. Law Treatise-Business Organizations 34.03 (1999).

|7In applying these precepts to the instant case, we find that the trial court correctly granted the exception of no right of action as to the personal claims of J. Curtis Pollet, Arthur Enriques, Jr., and Zelma Enriques. The lease agreement was between Dr. Martin Schoenberger and St. Bernard Optical. Throughout the petition, plaintiffs allege causes of action against defendants for damages suffered by the corporation and by them personally as a result of this lease agreement between Dr. Martin Schoenberger and St. Bernard Optical. While plaintiffs argue that they should be allowed to assert their personal actions, we find that their recovery depends on the corporate injury. Without proof of the corporate loss or injury, they would have no claim. As such, their claims are derivative and can only be made on behalf of the corporation.

Following a thorough review of the record and jurisprudence, we find the trial court correctly sustained the exceptions of no right of action against the plaintiffs’ claim to recover in their individual capacity. Accordingly, we affirm the trial court ruling granting the exception of no right of action and dismissing all personal claims against Defendants.

AFFIRMED.

      . The corporation, St. Bernard Optical, is also a Plaintiff in this litigation but is not a party to this appeal.

      . Defendants allege in their answer that the lease erroneously lists Dr. Martin Schoenber-ger as the owner, and that The Eye Center entered into the lease with St. Bernard Optical.


author: CHARLES R. JONES, Judge.

text:
    Joanne PRIMUS (D), et al. v. TOURO INFIRMARY, et al.
    No. 2005-C-0662.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 25, 2006.
    James Austin Gray, II, Gray & Gray, APLC, New Orleans, LA, for Plaintiffs/Respondents.
    Ryan J. Roemershauser, Kurt S. Blankenship, Blue Williams, LLP, Metairie, LA, for Defendants/Relators.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS SR.).
   CHARLES R. JONES, Judge.

Lin this medical malpractice action, the Relators, Touro Infirmary and Dr. Christy DeGrange seek review of the denial of their peremptory exception of prescription. For the reasons stated herein, the writ application is hereby GRANTED.

Respondents, Elmiko Tillery, Jessie Pollard, Eldridge Pollard, Ezimbalist Pollard, William Primus, Jr., and Evada Primus filed a request for a medical review panel on April 21, 2004, naming as defendants Touro and Dr. DeGrange, and a second physician, “Dr. Hill.” Respondents alleged that the physicians failed to timely diagnose cancer in their mother, JoAnn Pri-mus, who died on April 20, 2003, and that the Touro staff failed to make timely observations and report findings, which acts, neglects and/or omissions reduced Ms. Pri-mus’ chances of survival.

Touro and Dr. DeGrange filed their exception of prescription on February 1, 2005. The matter came for hearing on February 25, 2005. A written judgment denying the exception was signed on March 14, 2003, with the trial court stating that the exception was premature because the date of discovery of the alleged malpractice had not been established.

| ^Relators, Touro and DeGrange, filed a notice of intent on March 22, 2005, and on April 12, 2005. This timely writ application followed.

DISCUSSION

La. R.S. 9:5628 provides for the prescriptive period for medical malpractice actions, and states in pertinent part:

A. No action for damages for injury or death against any physician, ... hospital ..., whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect;....

The Respondents’ complaint was pending before a medical review panel. A health care provider may raise an exception of prescription during the medical review panel stage of a medical malpractice proceeding. Perritt v. Dona, 2002-2601, p. 15 (La.7/2/03), 849 So.2d 56, 66 (citing La. R.S. 40:1299.47(B)(2)(a)).

Ordinarily, the exceptor bears the burden of proof on trial of the peremptory exception, including the objection of prescription. SS v. State, Dept. of Social Services, 2002-0831, pp. 6-7 (La.12/4/02), 831 So.2d 926, 931; see also Mixon v. Cembell Industries, Inc., 2002-0804, p. 2 (La.App. 4 Cir. 9/18/02), 828 So.2d 660, 662. It is only where a petition reveals on its face that prescription has run that the burden shifts to the plaintiff to show that his action has not prescribed. SS v. State, 2002-0831, p. 7, 831 So.2d at 931; Mixon, 2002-0804, p. 2, 828 So.2d at 662. The burden remains with the movant where the plaintiffs pleadings make “a prima facie showing” that the suit was filed within the delays set forth in La. R.S. 9:5628. Campo v. Correa, 2001-2707, pp. 9-10 (La.6/21/02), 828 So.2d 502, 509.

|,In the case sub judice, the Rela-tors argue that the Respondents’ letter to the Commissioner of Administration requesting a medical review panel is the equivalent of a malpractice plaintiffs petition for purposes of allocating the burden of proof on an exception of prescription. All that Respondents’ letter states is that Ms. Primus died on April 20, 2003; that the physician-defendants failed to diagnose Ms. Primus’s cancer in a timely manner, thus reducing her chances of survival; and that staff members at defendant Touro Hospital failed to timely make and report observations and findings, reducing Ms. Primus’s chances of survival. The letter was dated April 21, 2004.

La. C.C.P. art. 5059 provides for computation of time allowed or prescribed by law. Under that article the date of the alleged negligence is not to be included, but the last day is, unless it is a legal holiday. In the instant case April 20, 2003, the date of Ms. Primus’ death, would have been the last date of any alleged act, omission or neglect constituting medical malpractice. Thus, the normal one-year prescriptive/peremptive period of La. R.S. 9:5628 would have lapsed on April 20, 2004. While April 20, 2003 happened to be an Easter Sunday, that has no effect upon prescription, since the date of the act is never included within the prescriptive period. April 20, 2004 was a Tuesday; it was not a holiday, and thus was included in the calculation of the prescriptive period. Therefore, on the face of plaintiffs’ letter requesting a medical review panel, plaintiffs’ action had prescribed — on April 20, 2004. Moreover, we agree with the Rela-tors’ position that the allegations of the letter serve to allocate the burden of proof on an exception of prescription, as a petition would; thus, the burden on the Rela-tors’ exception of prescription would have been on the Respondents’ to show that their claims had not prescribed.

I/The district court denied the Relators’ exception on the ground that the exception was “premature because the date that the plaintiffs discovered the alleged malpractice has not been established.” Thus, it is apparent that the Respondents did not prove that their claims had not prescribed by showing that they discovered the malpractice no earlier than April 21, 2003.

Although the jurisprudence does not specifically address the issue of whether allegations in a medical malpractice plaintiffs letter requesting a medical review panel are to be considered the equivalent of the factual allegations in a malpractice plaintiffs petition for purposes of allocating the burden of proof as to a medical malpractice defendant’s exception of prescription, we find that since the amendment to La. R.S. 40:1299.47 setting forth specific requirements for the contents of requests for medical review panels, these requests now require as much specificity as a petition. Thus, we agree that the burden-shifting jurisprudence discussed herein should apply to a request for a medical review panel.

Prior to August 15, 2003, there were no specific requirements set forth in La. R.S. 40:1299.47 for the content of requests for medical review panels. By Acts 2003, No. 961, La. R.S. 40:1299.47(A)(1) was amended to add the following requirements for requests for medical review panels:

(b) A request for review of a malpractice claim or a malpractice complaint shall contain, at a minimum, all of the following:
(i) A request for the formation of a medical review panel.
(ii) The name of the patient.
(iii) The names of the claimants.
(iv) The names of the defendant health care providers.
|s(v) The dates of the alleged malpractice.
(vi) A brief description of the alleged malpractice as to each named defendant health care provider.
(vii) A brief description of the alleged injuries.

This amendment took effect on August 15, 2003. The amendment was remedial in nature, and certainly applied eight months later on April 21, 2004 when counsel for plaintiffs mailed the request for a medical review panel. These amendments now require as much specificity as a petition. See La. C.C.P. art. 891. Therefore, there does not appear to be any reason why the burden-shifting jurisprudence discussed herein should not apply to a request for a medical review panel.

Therefore, we find that the district court erred in denying the Relators’ Exception of Prescription because the Respondents failed to allege in their request for a medical review panel facts that they discovered the malpractice no earlier than April 21, 2008, their claims had prescribed on the face of their request, and thus the burden was shifted to them to show that their claims had not prescribed.

Accordingly, for the reasons stated herein, the writ application of the Relators is Granted. The judgment of the district court denying the Relators’ Exception of Prescription was improper and is hereby reversed.

REVERSED.

      . La. R.S. 40:1299.47(B)(2)(a) states:
      A health care provider, against whom a claim has been filed under the provisions of this Part, may raise any exception or defenses available pursuant to R.S. 9:5628 in a court of competent jurisdiction and proper venue at any time without need for completion of the review process by the medical review panel.


text:
    George WISCHER v. NEW ORLEANS POLICE DEPARTMENT.
    No. 2005-CA-0308.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 1, 2006.

      Eric J. Hessler, Meridian MS, for Plaintiff/Appellant.
    Sherry S. Landry, City Attorney, Joseph V. DiRosa, Jr., Chief Deputy City Attorney, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge DENNIS R. BAGNERIS, SR., and Judge ROLAND L. BELSOME).
   DENNIS R. BAGNERIS, SR., Judge.

hThe Appellant, George Wischer, appeals the decision of the Civil Service Commission to terminate his employment as a New Orleans Police Officer. We affirm.

On or about January 17, 2003, Mr. Wischer responded to a disturbance call at the residence of Paula Lynn Farrior. Upon arrival Mr. Wischer and another officer, Chris Doyle (who arrived seconds before Mr. Wischer) determined that Ms. Farrior was threatening suicide. The officers determined that Ms. Farrior needed to be brought to Charity Hospital. Ms. Farrior resisted arrest and Mr. Wischer and other officers handcuffed her and attempted to shackle her legs as she continued to resist. At trial Mr. Wischer admitted to punching Ms. Farrior in the face more than once in self-defense to stop her from biting him.

Mr. Wischer was indicted by an Orleans Parish grand jury and charged with second-degree battery. He was tried and convicted of simple battery and the conviction was upheld on appeal. Ms. Farrior also filed suit in federal court | ¡.against Mr. Wischer and the City of New Orleans alleging a violation of her constitutional rights to be free from the use of excessive force. The case was ultimately settled for $25,000.

In the instant case, Mr. Wischer presents two assignments of error: (1) that his termination was not commensurate with the circumstances under which he committed the violations, and (2) the hearing officer erred in not allowing the proffered testimony into evidence.

Mr. Wischer argues that he was performing his lawful duties when he attempted to take Ms. Farrior into custody. He argues that the Commission failed to consider that he was in a stressful situation that required him to use the force that he did because he was justifiably threatened.

The Commission, on the other hand, determined that Mr. Wischer’s actions affected the efficient operation of the police department and that there was ho justification or mitigating circumstances to relieve Mr. Wischer of his responsibility for the incident. The Commission further concluded that the photographs of Ms. Farrior’s injuries, sustained at the hands of Mr. Wischer, could not be disputed.

A reviewing court will not reverse the City Civil Service Commission’s conclusion as to existence or absence of cause for dismissal of classified employee unless the conclusion is arbitrary, capricious or abuse of commission’s discretion. Johnson v. Department of Police, 575 So.2d 440 (La.App. 4 Cir.1991).

The standard and method applicable to review of decisions of the Civil |sService Commission have been described by this court as follows:

The Civil Service Commission’s decision is subject to appellate review on any question of law or fact. La. Const, art. X, § 12(B). The Commission has a duty to decide independently from the facts presented whether the appointing authority has good or lawful cause for taking the disciplinary action and, if so, whether the punishment imposed is commensurate with the dereliction. The standard of review for the appellate court is multifaceted. When reviewing the Commission’s findings of fact, the appellate court must apply the clearly wrong or manifestly erroneous standard. However, when judging the Commission’s exercise of its discretion in determining whether the disciplinary action is based on legal cause and the punishment is commensurate with the infraction, the reviewing court should not modify the Commission’s order unless it is arbitrary, capricious or characterized by abuse of discretion.

Wilson v. New Orleans Aviation Board, 96-1350, p. 2 (La.App. 4 Cir. 1/15/97), 687 So.2d 593, 595 (citations to cases omitted). Sholes v. Department of Police, 97-1768, pp. 2-3 (La.App. 4 Cir. 2/25/98), 707 So.2d 1055, 1056-1057.

Our review of the record indicates that Ms. Farrior suffered injury as a result of Mr. Wischer’s actions and that Mr. Wischer admitted to “making a quick judgment on the force I used.” Further, the NOPD crime lab report which conducted an examination of Mr. Wischer’s police pants and shirt found no evidence that Ms. Farrior bit or was attempting to bite Mr. Wischer. This Court cannot determine that the termination of Mr. Wischer was clearly wrong considering the record before us. Additionally, we cannot conclude that the Commission acted arbitrarily or capriciously in terminating Mr. Wichser. Then Superintendent Edwin Compass, III, testified that “after looking at the entire investigation and the severity of the charges, I thought, in my opinion, that Officer |4Wischer did not act appropriately by any stretch of the imagination, and a charge and a violation of this severity merited and warranted termination.” The supportive testimony of Superintendent Compass along with the Commission’s findings is enough to not disturb this matter on appeal.

In his second assignment of error, Mr. Wischer argues that the Commission erred in not allowing evidence of other officers who committed crimes of simple battery, but who were not terminated, into the record . He argues that had the evidence been introduced he would not have received' the penalty of termination. Mr. Wischer offers no legal precedent in support of this argument and makes a mere speculation that the Commission’s decision would have been different.

In a parallel matter with a distinguishable jurisdiction, we rely on Central Lumber Co. v. Duhon 2003-620, pp. 2-3 (La.App. 3 Cir. 11/12/03), 860 So.2d 591, 593, wherein the court concluded, “[t]he decision to admit evidence into the record rests within the sound discretion of the workers’ compensation judge and will not be reversed in the absence of manifest error.” Jones v. Trendsetter Prod. Co., Inc., 97-299, p. 11 (La.App. 3 Cir. 2/25/98), 707 So.2d 1341, 1346, writ denied, 98-793 (La.5/15/98), 719 So.2d 463. After reviewing the record as a whole, we do not find any error on the part of the workers’ compensation judge in disallowing the proffered evidence. Central Lumber Company, 2003-620 at pp. 2-3, 860 So.2d 593.

Like our cohorts who ruled in Central Lumbar Company, we leave the discretion to proffer evidence solely up to the Appointing Authority and conclude that there was no error in disallowing the acts and actions of other officers into evidence. This assignment of error has no merit.

| ^Decree

For the reasons stated above we affirm the decision of the Civil Service Commission to terminate Mr. George Wischer and reject his argument that the evidence proffered at trial would have resulted in a lesser penalty.

AFFIRMED.

MURRAY, J., concurs in the result.

      . According to the Mr. Wischer’s testimony, four other officers subsequently arrived on the scene.

      . State v. Wischer, 2004-0325 (La.App. 4 Cir. 9/22/04), 885 So.2d 602.

        . Farrior v. City of New Orleans, et al, No.2004-0142 in the United States District Court for the Eastern District of Louisiana.

      . The evidence was proffered.


author: TERRI F. LOVE, Judge.

text:
    STATE of Louisiana v. Johnny ROBERTSON.
    No. 2005-KA-1214.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 1, 2006.
    Eddie J. Jordan, Jr., District Attorney, Battle Bell IV, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellee.
    William R. Campbell, Jr., Louisiana Appellate Project, Baton Rouge, LA, for Defendant/Appellant.
    (Court composed of Judge TERRI F. LOVE, Judge LEON A. CANNIZZARO JR., Judge ROLAND L. BELSOME).
   TERRI F. LOVE, Judge.

1 defendant-appellant Johnny Robertson was charged with one count of violating La. R.S. 14:62.5 relative to looting. The defendant entered a not guilty plea and appeared for trial. After waiving his right to a jury trial, he proceeded to trial before the court. The trial court returned a responsive verdict of guilty of unauthorized entry of a business, a violation of La. R.S. 14:62.4. The court sentenced the defendant to two years at hard labor. The State subsequently filed a multiple bill charging the defendant as a second offender. A hearing on the multiple bill was held and at the conclusion of the hearing, the court found that the defendant was a second offender. The court vacated the defendant’s original sentence and resentenced him to serve three years at hard labor. The defendant filed a motion to reconsider sentence, which the court denied. The defendant also filed a motion for an appeal, which the court granted. This appeal followed.

FACTS

Recitation of the facts is not necessary in resolving the sole issue presented for review. Therefore, we pretermit a discussion of the facts.

^ERRORS PATENT

A review of the record for errors patent reveals that there are none.

ADJUDICATION AS SECOND OFFENDER

In his sole assignment of error the appellant avers that the trial court should not have adjudicated him a second offender under La. R.S. 15:529.1. He argues specifically that the document, an arrest register introduced as State’s exhibit S-2, used to prove his identity as the person previously convicted in case number 408-191 was not properly certified as required by La. R.S. 15:529.1(F).

At the hearing, Officer Jay Jacquet (“Officer Jacquet”), an expert in the comparison and analysis of fingerprints, testified that he took the defendant’s fingerprints in court that day and he identified the fingerprint card as State’s exhibit S-l. Officer Jacquet next identified State’s exhibit S-2, which he testified was a certified copy of an arrest register that he brought to court with him. Officer Jacquet further testified that he was one of the custodians of the certified arrest register. He then testified that there was a set of fingerprints on the back of S-2, which he compared to those that he obtained from the defendant in court. Officer Jacquet opined that the fingerprints on S-2 matched those of the defendant. Finally, Officer Jacquet was presented with State’s exhibit S-3, an in globo packet of certified documents from case number 408-191; one of the documents contained in S-3 was a copy of the arrest register which Officer Jacquet brought to court. A comparison of the two arrest registers showed that the names, dates of the arrest, item numbers, and charges listed on the documents were the same. The trial court concluded that the State adequately proved the defendant’s identity as the person previously convicted.

| ¡¡The defendant argues that only evidence certified in accordance with La. R.S. 15:529.1(F) is acceptable to prove a prior offense, citing State v. Lambert, 475 So.2d 791 (La.App. 3rd Cir.1985). La. R.S. Í5:529.1(F) provides as follows:

The certificates of the warden or other chief officer of any state prison, or of the superintendent or other chief officer of any penitentiary of this state or any other state of the United States, or of any foreign country, or of any chief officer of any parish or county jail in this state or any other state of the United States, or of the clerk of court of the place of conviction in the state of Louisiana, under the seal of his office, if he has a seal, containing the name of the person imprisoned, the photograph, and the fingerprints of the person as they appear in the records of his office, a statement of the court in which a conviction was had, the date and time of sentence, length of time imprisoned, and date of discharge from prison or penitentiary, shall be prima facie evidence of the imprisonment and of the discharge of the person, either by a pardon or expiration of his sentence as the case may be under the conviction stated and set forth in the certificate.

In Lambert the court stated:

A non-penitentiary agency is not authorized to offer proof of prior offenses. State v. Nicholas, 359 So.2d 965 (La.1978). Only documents properly certified under La. R.S. 15:529.1(F.) by the officer with legal custody of the documents can be admitted into evidence as proof of prior offenses. State v. Lozier, 375 So.2d 1333 (La.1979).

Id. at 796. However, the court rejected the defendant’s claim for relief because the documents introduced were from the penitentiary records and had been certified by the secretary of the Department of Corrections. Thus, the court was not actually presented with the question of whether other evidence might be acceptable to prove a prior offense, and its categorical statement that only documents certified under La. R.S. 15:529.1(F) can be used is dicta. Moreover, neither of the cases relied upon by the court in Lambert forecloses the use of other evidence to prove a defendant’s status as a habitual offender. In Nicholas, for example, the court noted that, “[w]hile La. R.S. 15:529.1(F) facilitates proof of necessary facts permitting ^enhancement of the punishment in a multiple-offender hearing, such facts may also be proved by other competent evidence. State v. Curtis, 338 So.2d 662 (La.1976).” Nicholas, 359 So.2d at 968. In Lozier, the documents introduced were a properly certified “pen pack.”

The long line of jurisprudence which permits evidence other than that contemplated by La. R.S. 15:529.1(F) to be used to prove identity in a multiple offender proceeding was reviewed by this Court in State v. Cosey, 04-2220, pp. 4-5 (La.App. 4 Cir. 7/13/05), 913 So.2d 150,153:

To obtain a habitual offender conviction, the State is required to establish both the prior felony conviction and that the defendant is the same person convicted of that felony. State v. Payton, 2000-2899, p. 6 (La.3/15/02), 810 So.2d 1127, 1130, citing State v. Neville, 96-0137 (La.App. 4 Cir. 5/21/97), 695 So.2d 534, 538-39. The court in Payton said that in attempting to establish identity, the State may present:
(1) testimony from witnesses; (2) expert opinion regarding the fingerprints of the defendant when compared with those in the prior record; (3) photographs in the duly authenticated record; or (4) evidence of identical drivers license number, sex, race and date of birth. (Emphasis added)
Payton, 2000-2899, p. 6, 810 So.2d at 1130-31.
The court in Payton cited the twenty-five year old case of State v. Westbrook, 392 So.2d 1043 (La.1980), where it had held in a second offense driving while intoxicated case that a driver’s license number, sex, race, and birth date all identified the prior offender as the defendant, and thus that the State proved the defendant’s identity as the same person previously convicted. Thus, not only are fingerprints on the bill of information not necessary to establish that a defendant charged as a habitual offender is the same person previously convicted, fingerprints are not absolutely required to prove identity. In Payton, however, as in the instant case, the New Orleans Police Department fingerprint expert matched the defendant’s fingerprints to fingerprints on the backs of two arrest registers for the two previous convictions. The Louisiana Supreme Court held that this was sufficient proof of identity. This result is in accordance with previous decisions by this Court finding that the matching of a defendant’s fingerprints to fingerprints on an arrest register, and the linking of that arrest register to other documents evidencing a conviction is sufficient to establish that the defendant is the same person previously Rconvicted. See State v. Francois, 2002-2056 (La.App. 4 Cir. 9/14/04), 884 So.2d 658; State v. Wolfe, 99-0389 (La.App. 4 Cir. 4/19/00), 761 So.2d 596; State v. Hawthorne, 580 So.2d 1131 (La.App. 4 Cir.1991); State v. Armstead, 542 So.2d 28 (La.App. 4 Cir.1989). Further, a trial court has no discretion to find a defendant not guilty of being a habitual offender where the state produces adequate evidence to prove its accusation. State v. Dean, 588 So.2d 708, 709 (La.App. 4 Cir.1991).

Additionally, the Supreme Court in State v. Payton, 2000-2899, p. 8 (La.3/15/02), 810 So.2d 1127, 1132, citing State v. Lindsey, 1999-3302, p. 7 (La.10/17/00), 770 So.2d 339, 344 reiterated:

This Court has repeatedly held that the Habitual Offender Act does not require the State to use a specific type of evidence to carry its burden at an habitual offender hearing and that prior convictions may be proved by any competent evidence.”

As such, the trial court did not err in adjudicating the defendant as a second offender under La. R.S. 15:529.1.

DECREE

The defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . Also charged in the bill were Nicole Robertson and Chantel Bacchus; they later entered pleas of nolo contendere under La.C.Cr.P. art. 893 and are not parties to this appeal.


author: Judge ROLAND L. BELSOME. CANNIZZARO, J.,

text:
    STATE of Louisiana v. Wayne MACON.
    No. 2005-KA-0960.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 1, 2006.

      Eddie J. Jordan, Jr., District Attorney, Yolanda J. King, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellant.
    Rudy W. Gorrell, Lafayette, LA, for Defendant/Appellee.
    (Court composed of Judge TERRI F. LOVE, Judge LEON A. CANNIZZARO JR., Judge ROLAND L. BELSOME).
   Judge ROLAND L. BELSOME.

I .STATEMENT OF CASE

By a bill of information dated September 16, 2003, the State charged Wayne Macon with unauthorized use of a motor vehicle as prescribed by La. R.S. 14:68.4. On January 18, 2004, the case was tried to a jury, and the defendant was found guilty as charged.

On January 25, 2005, a hearing was held on the defendant’s motion for post verdict judgment of acquittal. During argument presented on the motion, the assistant district attorney alerted the court to the fact that at the time the automobile was recovered the victim, Arvilla Kern (“Miss Kern”), had long before settled with her insurance company. The trial court noted that the information raised an issue, regarding who was the victim at the time the defendant was in possession of the vehicle, the insurance company or Miss Kern. At that point, the trial court converted the defendant’s motion for judgment of acquittal to a motion for new trial and granted the motion. The State appealed.

STATEMENT OF FACT

At trial, Sergeant Dan Anderson (“Sergeant Anderson”) of the New Orleans Police Department explained that the vehicle identification number (“YIN”) plate [ gis attached to the dashboard im the left-hand corner below the -windshield and cannot be removed without removing the dash and cutting the rivets that secure the plate. Sergeant Anderson further explained that the VIN plate on the vehicle driven by the defendant appeared to be partially raised and that the rivets appeared to be glued to the VIN plate. Sergeant Anderson identified the VIN plate that was removed from the vehicle and noted that the rivet heads were still attached owing to the fact that they had been cut and the heads glued on.

Next, Sergeant Anderson stated that, in what is referred to as a numbers job, a criminal will acquire a junked car and remove the VIN plate and then steal a car of similar make and model. The criminal will then cut the VIN plate off the stolen vehicle and replace it with the VIN plate and license plate from the salvaged car.

However, Sergeant Anderson testified that in addition to the VIN plate there are additional confidential numbers located on the vehicle for identification purposes. After Sergeant Anderson arrived on the scene, he discreetly obtained the car’s confidential identification. Once the VIN number was run, it was determined that the car had been stolen.

Miss Kern testified that she owned a blue 1996 Chevrolet Lumina that was stolen on January 16, 2002. She stated that about a year and half later the police came to her house and reported that her car had been recovered. Miss Kern stated that the police informed her that they were able to identify the car through the VIN. She stated that she did not know the defendant and did not give him permission to use her car.

Detective Mitch Weatherley testified that on March 17, 2003, he and his partner observed a vehicle run a stop sign at the intersection of Annette Street and Villere Street in New Orleans. They got behind the vehicle and observed that it 13did not have a license plate. When they activated their lights, the vehicle sped up and came to an abrupt stop on the curb. The driver then exited the vehicle and began running. Detective Weatherly gave chase and apprehended the defendant in an abandoned lot approximately 150 to 200 yards away.

Upon inspection of the vehicle Detective Weatherley observed that the rivets had been glued onto the VIN plate and that the plate itself had been glued to the dashboard. Unable to determine the vehicle’s true VIN, the detective contacted Sergeant Anderson who subsequently identified the VIN.

After being arrested the defendant told Detective Weatherley that he had exchanged two pieces of crack cocaine for the use of the vehicle, that he was aware that the vehicle was a numbers job, and that he had seen the vehicle being driven around for about six months. Mr. Macon stated that he made the exchange with a Troy Lewis, and he provided a cell number for Troy Lewis’ cousin. The detectives were unable to contact this individual.

LAW AND ANALYSIS

The State appeals the trial court’s ruling granting the defendant’s motion for a new trial. Initially, the State contends that the trial court erred in converting defendant’s motion for post verdict judgment of acquittal into a motion for new trial. The State noted that it could not find any precedent that supported the trial court’s action. The same is also true as to jurisprudence that contravenes such action. In light of the fact that there was nothing preventing the defendant from filling a motion for new trial after the hearing, we find that it is not in the interest of judicial economy to grant the State’s appeal on that issue and remand the case to allow the defendant to file a subsequent motion for new trial; therefore we address the substantive issue of the motion for new trial.

|4The State challenges the trial court’s ruling on substantive grounds as well. Specifically, La.C.Cr.P. art. 851 provides that a new trial shall be granted on motion of the defendant whenever, among other reasons:

(3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty;....

La.C.Cr.P. art. 851(5) also mandates the granting of a new trial when:

(5) The court is of the opinion that the ends of justice would be served by the granting of a new trial, although the defendant may not be entitled to a new trial as a matter of strict legal right.

A review of the record reflects that the trial court granted a new trial based on the defendant’s argument regarding the insufficient identification of the subject vehicle, by Miss Kern. Miss Kern was provided only a VIN. At no time was she presented a picture of the vehicle or taken to identify it while the police had it in their custody. The defendant argued that two VIN plates were found on the vehicle, and even the confidential VIN could have potentially came from another vehicle. Furthermore, it was also determined at the hearing that at the time the defendant was found driving the vehicle, Miss Kern was no longer the owner of the vehicle. Miss Kern had settled with her insurance company.

La. R.S. 14:68.4 states in pertinent part: “[unauthorized use of a motor vehicle is the intentional taking or use of a motor vehicle which belongs to another, either without the other’s consent ...” Once the insurance company settled with Miss Kern they became the owner of the vehicle and ultimately the party to be named on the bill of information. The insurance company should have been the party to properly identify the vehicle and establish that the defendant was not | ¡^authorized to use the vehicle. By not presenting testimony from the owner of the vehicle, at the time the defendant had the vehicle in his possession, the State failed to establish the unauthorized use of the vehicle.

After the hearing the district court summed up its reasoning, “I think based on everything now that has come [out] in this matter, the interest of justice is such that the defendant at the very least ought to have another trial in this case.” The decision to grant a motion for new trial is in the discretion of the trial court, the ruling will only be disturbed for clear abuse of that discretion. State v. Baker, 2000-2520 (La.App. 4 Cir. 11/21/01), 801 So.2d 1196; State v. Wolfe, 738 So.2d 1093 (La.App. 4 Cir. 4/21/99), cert denied 529 U.S. 1115, 120 S.Ct. 1976, 146 L.Ed.2d 805 (2000). This court does not find any abuse of discretion on the part of the trial court.

Answering the State’s appeal, the defendant raises the assignment of error that the trial court erred in denying his motion for post verdict judgment of acquittal. Ordinarily, such a claim would properly be raised by filing a writ or upon defendant’s appeal after sentencing. However, in the interest of judicial economy, the claim should be addressed.

“A post verdict judgment of acquittal shall be granted only if the court finds that the evidence, viewed in a light most favorable to the state, does not reasonably permit a finding of guilty.” La.C.Cr.P. art. 821(B). A motion for post verdict judgment of acquittal raises the question of sufficiency of the evidence. See State v. Thibodeaux, 98-1673, p. 12 (La.9/8/99), 750 So.2d 916, 926. Evidence is deemed to have been sufficient when, after viewing the evidence in the light most favorable to the prosecution, it is determined that any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132.

This court finds that the defendant’s argument fails to meet the burden set forth for a post verdict judgment of acquittal.

CONCLUSION

■ Accordingly, the trial court’s ruling granting defendant’s motion for new trial is affirmed.

AFFIRMED.

CANNIZZARO, J.,

dissents with reasons.

hi respectfully dissent from the majority opinion.

The trial court granted the new trial based on the defendant’s argument regarding the insufficient identification of the subject vehicle by Ms. Kern. Specifically, Ms. Kern identified the vehicle by the vehicle identification number (VIN) rather than by a photograph or in person while the vehicle was in police custody. The defendant argued that two VIN plates were found on the vehicle, and it was possible that the confidential VIN could have come from another vehicle. However, there is no testimony from Sergeant Anderson, who discovered the confidential VIN, to this effect and the defendant offered no evidence of such. Under these circumstances, the trial court had no basis to conclude that the State’s evidence regarding the vehicle identification was insufficient. Furthermore, if the evidence regarding the vehicle identification was insufficient then the trial court should have granted the defendant’s motion for a post judgment verdict of acquittal.

- The trial court also found merit to the defendant’s argument that the State had the wrong victim’s name on the bill of information, i.e., Ms. Kern rather than the insurance company. If the defendant is entitled to a new trial on that basis, as the majority concludes, then he is entitled to have the case against him dismissed Lbecause to try him again for the same crime would amount to double jeopardy. Moreover, the record contains no evidence to show that the title to the vehicle had in fact changed and that the insurance company was the owner of the vehicle. Even if the insurance company had settled Ms. Kern’s insurance claim for the stolen vehicle prior to the police officers’ apprehending the defendant and the vehicle, for purposes of La. R.S. 14:68.4 the victim was still the person to whom the vehicle belonged, i.e., Ms. Kern.

Finally, I submit that in light of the defendant’s admission that he had exchanged crack cocaine for the use of the vehicle and was aware that the vehicle was a numbers job, any evidence regarding an insurance settlement would not likely have changed the verdict.

Accordingly, for the above reasons, I believe the trial court abused his discretion in granting the defendant a new trial and would remand the matter to the trial court for sentencing, reserving to the defendant his right to appeal his conviction and sentence.


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

text:
    William MARKS v. NEW ORLEANS POLICE DEPARTMENT.
    No. 2005-CA-0307.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 8, 2006.

      Eric J. Hessler, Meridian, MS, Counsel for PlaintiffAppellant.
    Joseph V. Dirosa, Jr., Chief Deputy City Attorney, Sherry S. Landry, City Attorney, James B. Mullaly, Assistant City Attorney, New Orleans, Counsel for Defendant/Appellee.
    (Court Composed of Judge TERRI F. LOVE, Judge MAX N. TOBIAS, Jr., and Judge LEON A. CANNIZZARO, Jr.)
   MAX N. TOBIAS, JR., Judge.

LThis appeal arises from the termination of Sergeant William Marks (“Marks”), a New Orleans police officer with permanent status who drove a police cruiser owned by the New Orleans Police Department (hereafter, “NOPD” or “appointing authority”) out of state to pick up two unauthorized civilian passengers. On the return trip, he was stopped by an Illinois State Police officer (“state trooper”) for speeding. The NOPD ultimately suspended Marks for 75 days for several violations including failure to adhere to the law (speeding), untruthfulness, lack of professionalism, abuse of position, transporting citizens, immoral conduct, and failure to perform duties. He was also terminated for an abuse of power for not reporting the incident to the NOPD and for asking the state trooper not to report the incident. Marks appeals the disciplinary action on the grounds that (a) he was suspended for violations not adequately proven at the hearing before the Civil Service Commission (“CSC”); (b) his termination was too severe a penalty for the conduct in question; and (c) the CSC failed to apply the | {.time limit on investigations of police officers in violation of La. R.S. 40:2531, which is part of the Chapter 25 of the Louisiana Revised Statutes, titled “Rights of Law Enforcement Officers while Under Investigation” and commonly known as “The Louisiana Police Officer Bill of Rights.” Because we find that the appointing authority violated R.S. 40:2531, we reverse the decision of the CSC.

On 1 November 2002, Marks commandeered a police cruiser from a subordinate officer to drive to Milwaukee, Wisconsin, to pick up his girlfriend, who was reportedly ill. He had no personal vehicle of his own, and in a poor exercise of judgment, “borrowed” the police cruiser assigned to a subordinate officer who was on a hunting trip. He made the trip to Milwaukee, and picked up not only his girlfriend, but also a female acquaintance of hers who also wished to travel to New Orleans. On 2 November 2002, on his way back to Louisiana with the two women, Marks was stopped by a state trooper in Illinois and cited for speeding. During the stop, the state trooper learned that one of the women Marks was transporting had an outstanding warrant for her arrest for prostitution and that the other had prior arrests for narcotics and firearms violations. Further, his girlfriend’s acquaintance, who was sitting in the back seat, had a loaded firearm with her in the vehicle. Marks told the state trooper that he was transporting the two women in the vehicle to New Orleans and that he did not know the identity of the woman in the back seat. The state trooper searched the vehicle and found the identification card of the unidentified passenger, as well as a stolen weapon in the trunk, and marijuana in the vehicle. Marks asked the officer to extend him a ^professional courtesy and not report the stop to NOPD because he did not want to lose his job. The state trooper apparently refused.

The record reflects that the investigation into Marks’ alleged transgressions commenced on 12 November 2002. On 13 January 2003, just beyond the 60-day mark, the investigating officer requested an extension of time to complete his investigation. However, no extension of time was requested from the Civil Service Commission.

On 1 July 2003, Sergeant Harrison brought the case to the District Attorney for the Parish of Orleans. On 1 July 2003, the matter was “refused” by the district attorneys’ office and NOPD was notified of the refusal on 3 July 2003. On 12 August 2003, a complete report of the investigation was delivered to the Chief of Police, Superintendent Edwin P. Compass, III, and Marks was terminated on 2 October 2003 on the grounds of abuse of power for requesting that the state trooper not report the incident to the NOPD and further for allowing two civilians to be passengers in a police vehicle driven by Marks out of state in violation of the internal rules of the NOPD.

Marks appealed the suspension and termination to the CSC on the grounds that the investigation was not completed within 60 days as required by La. R.S. 40:2531. A hearing was held on 3 and 4 December 2003 before a hearing officer of the CSC. During the hearing, a videotape recording of the stop by the state trooper was played, and testimony was taken from Superintendent Compass, Marks, and the investigating officer. The hearing officer noted that the appeal was in part based upon violation of the 60-day rule, but indicated that he was not|4prepared or authorized to receive evidence on this issue. The hearing officer issued a decision upholding the 30-day suspension for taking the police cruiser out of state, but upheld Marks’ appeal of the other suspensions and the termination on the grounds that the appointing authority had not adequately proven its case against Marks on the counts of lack of professionalism and abusing his authority. The hearing officer further found that Marks’ actions did not warrant termination and was quite troubled with the treatment of Marks and his passengers at the hands of the state trooper.

The CSC returned the appeal of this matter to the hearing officer to determine how La. R.S. 40:2531 applied to the case and whether noncompliance with the statute would have any effect on the merits of the disciplinary action against Marks. The hearing officer determined that, following a review of Bannister v. Department of Streets, 95-0404 (La.1/16/96), 666 So.2d 641, La. R.S. 40:2531 was directory and not mandatory in nature, and that failure to abide by the 60-day time limit on investigations was not fatal to the disciplinary action against Marks. He found that Marks was not prejudiced by an extended investigation. Marks’ appeal was ultimately denied on 30 November 2004. Marks lodged an appeal of the CSC’s ultimate decision with this court on 19 April 2005. He asserts that the evidence presented to the CSC was insufficient to warrant his suspension or termination; that his punishment was not commensurate with the charges against him; and, finally, that the NOPD violated La. R.S. 40:2531, which should have resulted in the dismissal of the disciplinary action against him.

|RThe rights of law enforcement officers under investigation are codified in La. R.S. 40:2531, et seq. Of particular interest in this matter is La. R.S. 40:2531 B(7), which provides:

Except as otherwise provided in this Paragraph, each investigation of a law enforcement officer which is conducted under the provisions of this Chapter shall be completed within sixty days. However, in each municipality which is subject to a Municipal Fire and Police Civil Service law, the municipal police department may petition the Municipal Fire and Police Civil Service Board for an extension of the time within which to complete the investigation. The board shall set the matter for hearing and shall provide notice of the hearing to the officer who is under investigation. The officer who is under investigation shall have the right to attend the hearing and to present evidence and arguments against the extension. If the board finds that the municipal police department has shown good cause for the granting of an extension of time within which to complete the investigation, the board shall grant an extension of up to sixty days. Nothing contained in this Paragraph shall be construed to prohibit the law enforcement officer under investigation and the appointing authority from entering into a written agreement extending the investigation for up to an additional sixty days. Further, nothing in this Paragraph shall limit any investigation of alleged criminal activity. [Emphasis supplied.]

We interpreted the language of this statute in Davis v. New Orleans Police Department, 04-1023 (La.App. 4 Cir. 2/2/05), 899 So.2d 37, writ denied, 05-0941 (La.5/20/05), 902 So.2d 1057, holding that the NOPD’s violation of the 60-day time limit for investigations was grounds for reversing the disciplinary action resulting from the investigation.

The appointing authority urges us to reconsider our holding in Davis that strictly construes the 60-day time limit to complete an investigation of a police officer. NOPD argues that the Davis decision is contrary to the law, in particular contrary to the Louisiana Supreme Court decision in Bannister v. Department of Streets, 95-0404 (La.1/16/96), 666 So.2d 641. For the reasons articulated in Davis, we disagree.

In Bannister, the Louisiana Supreme Court examined the language contained in Civil Service Rule II, § 4.16 that provides, in pertinent part, that “[a]ppeals to the Commission shall be decided promptly, but in any event ninety (90) calendar days after ... receipt by the Commission of the Hearing Officer’s report and official transcript of the testimony of said hearing.” The Court held that the 90-day directive was not mandatory, but rather directory, and that failure of the Commission to comply with the 90-day time limit would not automatically result in a reversal of an adverse decision to a civil servant. In particular, the Court held that if a law’s purpose “is the protection of the government by guiding its officials rather than granting rights to affected private citizens, the word ‘shall’ may be given merely directory meaning.” Id. at p. 5, 666 So.2d at 646 (internal cites omitted). We find the facts of this case, as well as those of Davis, to be distinguishable from the facts presented in Bannister.

As we have noted, Bannister dealt with a civil service rule promulgated by the CSC that related “solely to the Commission’s own actions.” Davis, p. 5, 899 So.2d at 40. In contrast, La. R.S. 40:2531 was drafted by the Louisiana legislature to provide “minimum standards” for investigation of police officers and is obviously intended to protect the rights of those officers accused of malfeasance.

The appointing authority argues that adherence to the Davis decision would lead to “harshness and absurdity” because the 60-day time limit for investigations is unrealistic and sometimes impossible if there are numerous witnesses to interview or if the Commission must await the outcome of any investigation by the District Attorney’s office, which could and frequently does take longer than 60 |7days. We do not find this argument persuasive. La. R.S. 40:2531 expressly provides that if an investigation will take longer than 60 days, mechanisms exist by which the appointing authority may request an extension for good cause for an additional 60 days. This was not done in this matter, and no argument is made that the appointing authority was somehow unable to make such a request; it simply failed to do so. We find that to allow the appointing authority to circumvent the “minimum standards” proscribed by the legislature to protect the “rights of law enforcement officers under investigation” would render the obvious intent of La. R.S. 40:2531 meaningless.

We recognize that the charges against Marks are serious in nature, but are bound by the language of La. R.S. 40:2531 and reverse the decision of the CSC.

For the foregoing reasons, the judgment of the CSC is reversed.

REVERSED.

      . Specifically, he received a ten-day suspension for speeding; a five-day suspension for unprofessionalism; a 30-day suspension for taking the vehicle out of state; and a 30-day suspension for untruthfulness.

      . We note that the state trooper did not arrest Marks or file any charges related to the firearms or marijuana alleged to have been found in the vehicle and the district attorney of New Orleans declined to press any criminal charges against Marks. Therefore, the only bases of the disciplinary action taken against Marks are those charges enumerated supra.


author: ROLAND L. BELSOME, Judge.

text:
    Robert W. RAPP v. GEICO INDEMNITY COMPANY and Ronald Alvarez.
    No. 2005-CA-0368.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 8, 2006.

      Roy Raspanti, Metairie, J. Van Robi-chaux, Jr., Covington, Counsel for Plaintiff/Appellant.
    W. Paul Andersson, William W. Newton, Leake & Andersson, L.L.P., New Orleans, Counsel for Defendant/Appellee.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge DENNIS R. BAGNERIS Sr., Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

11 This appeal arises from the trial court’s granting of a motion for partial summary judgment in favor of the appellee, GEICO Indemnity Company (“GEICO”).

STATEMENT OF THE CASE

On March 30, 2002, at approximately 8:20 p.m., appellant, Robert W. Rapp (“Rapp”), was operating a 2001 Harley Davidson Road King motorcycle northbound on Judge Perez Drive, Chalmette, Louisiana, when Ronald Alvarez (“Alvarez”) allegedly ran in front of Rapp’s motorcycle causing a collision. As a result of the collision, Rapp suffered extensive injuries. Following the collision Rapp filed suit against Alvarez and his own insurer, GEICO, under the uninsured/underinsured motorist (“UM”) coverage provision.

GEICO filed a motion for partial summary judgment claiming that a collision with a pedestrian was not covered under the provisions of the policy. Specifically, in order for the UM coverage to be triggered the collision must involve another motor vehicle. Rapp argued that he was not informed of any limitations and/or exclusions regarding the UM coverage in the policy when he ^purchased the coverage. Additionally, he charged that GEICO failed to provide him with a copy of the policy. The trial court granted GEICO’s motion for partial summary judgment.

ASSIGNMENTS OF ERROR

Rapp contends that the trial court erred in finding that the insurance policy was delivered on October 9, 2001, when GEICO placed the policy in the mail, regardless of whether he actually received a copy of the policy. Rapp states that the trial court erred in relying upon Pruitt v. Great Southern Life Insurance Co., 12 So.2d 261, 202 La. 527 (La.1942) to conclude that the policy of insurance was considered delivered to Rapp because Pruitt was decided before La. R.S. 22:628 and 22:634 were passed by the Louisiana Legislature and before said statutes were interpreted by the Louisiana State Supreme Court in Louisiana Maintenance Services, Inc. v. Certain Underwriters at Lloyds of London, 92-2382 (La.04/12/93), 616 So.2d 1250 Rapp further argues that the trial court erred in concluding that the limitations or exclusions of said policy did not have to be clearly communicated to the insured for the policy provisions to be effective against him.

LAW AND ANALYSIS

Appellate review of summary judgment is de novo using the same criteria as the trial court to determine whether a genuine issue of material fact exists to preclude a judgment as a matter of law. See, Magnon v. Collins, 98-2822 (La.7/7/99), 739 So.2d 191 and Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180. Louisiana Code of Civil Procedure art. 966 requires the mover prove “.. .that there is no genuine issue as to material fact and that the |3mover is entitled to judgment as a matter of law.” LSA-C.C.P. art. 966(B). Once the mover makes a showing that the motion should be granted the burden shifts to the opposing party to demonstrate that a material factual issue remains. If the opposing party fails to present sufficient evidence to overcome this burden the motion shall be granted. Id.

The insurance coverage purchased by Rapp from GEICO was for protection against an uninsured or an underinsured motorist. However, Rapp’s injuries, which are the subject of this lawsuit, were caused by a pedestrian. The GEICO policy states in pertinent part:

Coverage J: Uninsured Motorists Coverage
We will pay damages which a covered person is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by a covered person and caused by an accident. The owner’s or operator’s liability for these damages must arise out of the ownership, maintenance, or use of the uninsured motor vehicle.
Uninsured motor vehicle means a land motor vehicle or trailer of any type...

This court must consider whether Rapp’s failure to receive the GEICO policy or GEICO’s failure to inform Rapp that the UM coverage applied only to incidents involving another motorist would create a genuine issue of material fact. A material fact is a triable issue, and an issue is “genuine” if reasonable persons could disagree. Smith v. Our Lady of the Lake Hospital, Inc., 93-25121 (La.7/5/94), 639 So.2d 730, 750. “[A] ‘material’ fact is one that would matter on the trial on the merits.” Id.

Rapp relies on La. R.S. 22:628 and 634 to support his contention that exclusions to an insurance policy cannot be enforced if the policy is not delivered in a reasonable amount of time. Rapp was a GEICO policyholder at the time he |4added the UM coverage in October 2001. Rapp presented an affidavit testifying that he never received a copy of the policy stating the provisions of the UM coverage. GEICO however, provided internal underwriting documents and an affidavit from an underwriter, Angela Hopkins, stating that GEI-CO mailed a policy to Rapp on November 15, 2000, when he originally purchased GEICO insurance and again at renewal on October 9, 2001.

Rapp contends that the trial court erred in relying on Pruitt v. Great Southern Life Insurance Co, supra, because it was decided prior to the Louisiana Legislature passing R.S. 22:628 and 634. We do not find that Pruitt and the statutes conflict with each other on the issue of delivery.

La. R.S. 22:628 reads in pertinent part: Any written agreement in conflict with, modifying, or extending the coverage of any contract of insurance shall be deemed to be physically made a part of a policy or other written evidence of insurance, within the meaning of this section, whenever such written agreement makes reference to such policy or evidence of insurance and is sent to the holder of such policy or evidence of insurance by United States mail, post-aye prepaid, at such holder’s last known address as shown on such policy or evidence of insurance or is personally delivered to such holder, (emphasis added).

LSA-R.S. 22:628

La. R.S. 22:634(A) states that “[s]ubject to the insurer’s requirements as to payment of premium, every policy shall be delivered to the insured or to the person entitled thereto within a reasonable period of time after its issuance.” LSA-R.S. 22:634. Pruitt states that “[ajctual delivery is not essential, unless expressly made so by the terms of the agreement.” Pruitt, 202 La. 527, 12 So.2d 261, 262. Pruitt has not been overruled and does not conflict with the statutory requirements set forth in La. R.S. 22:628 and 634.

Rapp’s argument that the trial court should have followed the holding in Louisiana Maintenance, supra, is unpersuasive. In Louisiana Maintenance, the |Binsured did not receive the policy because the insurer failed to send the policy. The insurer did not comply with the statutory requirements set forth in La. R.S. 22:628 and 634. In the instant case GEICO provided sufficient evidence to prove that the policy was mailed as required by statute. Therefore, Louisiana Maintenance is clearly distinguishable.

Furthermore, this court finds no merit in Rapp’s argument that limitations and exclusions in the coverage should not apply since they were not fully communicated to him at the time of purchase. As the name suggests, the coverage added by Rapp was to protect against a no fault accident with an uninsured or underin-sured motorist. Rapp claims he believed that the UM coverage would cover anything which occurred while driving his motorcycle. La. R.S. 22:628 requires all agreements to modify or extend coverage be in writing. Additionally, this court has found that oral statements cannot be used to alter the terms of a written insurance policy. Hilliard v. Louisiana Health Service and Indemnity Co., 411 So.2d 1116, 1120 (La.App. 4 Cir. 2/09/82) reh’g denied (4/16/1982). Thus, to extend coverage based solely on Rapp’s erroneous belief of coverage would be contrary to Louisiana law.

CONCLUSION

Accordingly, this court finds no error in the trial court’s granting of GEICO’s motion for partial summary judgment.

AFFIRMED.


author: DENNIS R. BAGNERIS, Sr., Judge. MURRAY, J.,

text:
    Allaye BAH v. CONTINENTAL CASUALTY INSURANCE CO., Coca-Cola Enterprises, Inc., and Beverly Kitchen.
    No. 2005-CA-0499.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 8, 2006.
    Rehearing Denied April 6, 2006.
    Sally Dunlap Fleming, Law Office of Sally Dunlap Fleming, LLC, New Orleans, Counsel for Plaintiff/Appellant.
    Thomas J. Eppling, Alejandro E. Gomez, Staines & Eppling, Metairie, Counsel for Defendant/Appellee.
    (Court composed of Judge PATRICIA RTVET MURRAY, Judge DENNIS R. BAGNERIS, Sr. and Judge ROLAND L. BELSOME).
   DENNIS R. BAGNERIS, Sr., Judge.

|,The Appellant, Allaye Bah, appeals the judgment of the district court granting summary judgment in favor of the Appel-lees, Beverly Kitchen, Coca-Cola Enterprises Inc. and Continental Casualty Insurance Company. We affirm.

Facts

Mr. Bah was traveling Eastbound on MacArthur Boulevard toward Woodland Highway in Algiers on the morning of February 16, 2002. Mr. Bah testified in a deposition that he stopped at the stop sign and continued into traffic by making a right turn onto Woodland Highway at which time his vehicle collided with Ms. Kitchen’s vehicle. Ms. Kitchen was traveling southbound in the left lane on Woodland Highway toward the intersection of MacArthur Boulevard. Ms. Kitchen was driving her husband’s work vehicle at the time of the accident.

Procedural History

Mr. Bah filed a Petition for Damages in the Civil District Court for the Parish of Orleans naming Continental Casualty Insurance Co., Coca-Cola | ^Enterprises, Inc. and Beverly Kitchen as defendants. The defendants filed a Motion for Summary Judgment seeking a dismissal of Mr. Bah’s claim against them on the basis that Ms. Kitchen did not breach any duty owed to Mr. Bah. The defendants’ motion was granted on January 21, 2005 dismissing all claims against them. It is from this judgment Mr. Bah takes the instant appeal.

Standard of Review

In determining whether summary judgment is appropriate, appellate courts review the evidence de novo. Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180. Appellate courts review summary judgments de novo, using the same criteria applied by trial courts to determine whether summary judgment is appropriate. Id. at 1182. The summary judgment procedure is designed to secure the just, speedy and inexpensive determination of actions. Two Feathers Enterprises v. First National Bank, 98-0465 (La.App. 4 Cir.10/14/98), 720 So.2d 398, 400. This procedure is now favored and shall be construed to accomplish these ends. La. C.C.P. art. 966(A)(2). This standard of review requires the appellate court to look to the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, to show that there is no genuine issue as to a material fact, and that the mover is entitled to a judgment as a matter of law. La. C.C.P. art. 966(B). To affirm summary judgment, we must find reasonable minds would inevitably conclude that the mover is entitled to judgment as a matter of the applicable law on the facts before the court. Monts v. Board of Supervisors of the Louisiana State University, 2001-1497, (La.App. 4 Cir. 2/27/02), 812 So.2d 787; Washington v. State, Dept. of Transp. & Development, 95-14 (La.App. 3 Cir. 7/5/95), 663 So.2d 47. Canal 66 Partnership v. Reynoir 2002-0355 (La.App. 4 Cir. 1/15/03) 838 So.2d 52, 54-55.

Assignments of Error

In his first assignment of error, Mr. Bah maintains that there are genuine issues of material fact in dispute, which preclude summary judgment on the issue of liability. He maintains that Ms. Kitchen breached several duties giving rise to negligence under the duty/risk analysis. Mr. Bah argues that under La. Civ.Code art 2323, Ms. Kitchen should be found to be at least comparatively at fault for the accident.

The Appellees maintain that Ms. Kitchen did not owe a duty to Mr. Bah, but rather, Mr. Bah owed that duty to Ms. Kitchen and relies on Emmco Insurance Company v. Carambat, 145 So.2d 83 (La. App. 4th Cir.1962) wherein the Court concluded that the party that entered the intersection was negligent, “even under his own version of the facts.”

In his second assignment of error, Mr. Bah maintains that the district court committed legal error in granting summary judgment on the issue of liability without apportioning fault between the parties.

It is the duty of this Court to review the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, to show that there is no genuine issue as to a material fact, and that the mover is entitled to a judgment as a matter of law. La. C.C.P. art. 966(B). The issues raised by Mr. Bah are encompassed in the primary issue as to whether the district court erred in granting summary judgment in favor of the Appellants. We find that this is the sole issue for review in light of the judgment dated February 2, 2005. A review of the 14record before us establishes that Mr. Bah testified in a deposition that there was nothing obstructing his view onto Woodland Highway, although he testified that he was stopped for approximately 40 seconds at the stop sign prior to making a right turn onto Woodland.

Further, Officer Rhonda Hill testified by deposition that Mr. Bah was cited for failure to yield.

The Appellees filed a Statement of Uncontested Facts in district court attesting to the above facts. However, in district court Mr. Bah submitted deposition testimony of Ms. Kitchen by which counsel for Mr. Bah concluded that “[a]ll these things are subjective, and you (Ms. Kitchen) can be telling the truth as you know it and Allaye (Mr. Bah) can be telling the truth as he knows it.. .’’indicating that if Ms. Kitchen could not attest to the fact the Mr. Bah failed to stop at the stop sign, there is a genuine issue of material fact.

The duty of a motorist when approaching a stop sign is mandated in La.R.S. 32:123 which provides in relevant part:

A. Preferential right of way at an intersection may be indicated by stop signs or yield signs. B. Except when directed to proceed by a police officer or traffic-control signal, every driver and operator of a vehicle approaching a stop intersection indicated by a stop sign shall stop before entering the cross walk on the near side at. a clearly marked stop line, but if none, then at the point nearest the intersecting roadway where the driver has a view of approaching traffic on the intersecting roadway before entering the intersection. After having stopped, the driver shall yield the right of way to all vehicles which have entered the intersection from another highway or which are approaching so closely on said highway as to constitute an immediate hazard.
When a motorist is confronted with a stop sign at an intersection, it is his duty to come to a complete stop, to observe traffic, and to make certain that the way is clear before proceeding. Coleman v. Rabon, 561 So.2d 897 (La.App. 2 Cir.1990), writ denied, 567 So.2d 617(La.); Vallery v. State Through Dept. of Transp. and Dev., 480 So.2d 818 (La.App. 3 Cir.1985), writ denied, 481 So.2d 1350 (La.1986).

In Steward v. Spears 557 So.2d 1038, 1039 (La.App. 4 Cir.,1990), the court found that “It was plaintiffs duty to stop and make certain that the way was clear before driving through the intersection.” Trahan v. Williams, 275 So.2d 838 (La.App. 4th Cir.1973); Danos v. Forsythe, 205 So.2d 821 (La.App. 4th Cir.1968). A motorist traveling with the right-of-way has the right to expect or assume that a vehicle approaching an intersection from a street burdened with a stop sign will in fact stop, even when it is a “blind” intersection. Westchester Fire Insurance Company v. Dardar, 158 So.2d 239, 242 (La.App. 4th Cir.1963).

While Steward is distinguishable from the instant case, because Mr. Bah admitted that he was not at a “blind” intersection, the theory applies just as well. The district court dismissed Mr. Bah’s claims against the Appellees because in light of the pleadings before it, the argument that a genuine issue of material fact remains is without support.

Decree

For the reasons stated herein, we affirm the judgment of the district court granting the Appellees’ Motion for Summary Judgment resulting in the dismissal of Allaye Bah’s claims.

AFFIRMED.

MURRAY, J., dissents with reasons.

MURRAY, J.,

Dissenting.

| ^though most, if not all, the fault appears to be on the part of Mr. Bah, the record does not rule out the possibility of some fault on the part of Ms. Kitchen. From the testimony in the record it cannot be determined how long Mr. Bah was in the intersection before the collision. Mr. Bah testified in his deposition that before entering the intersection he stopped at the stop sign and did not see any traffic approaching. Ms. Kitchen acknowledged in her deposition testimony that she did not see if Mr. Bah stopped at the stop sign. Rather, she testified that she first saw Mr. Bah when he was in her path. Although Ms. Kitchen testified there was nothing she could do to avoid the accident, whether she was keeping a proper lookout and whether she acted reasonably under the circumstances are factual issues inappropriate for summary judgment. For these reasons, I respectfully dissent.

      . There is conflicting testimony. Ms. Kitchen avers that Mr. Bah was attempting to go straight across Woodland Highway.