author: CARAWAY, J.

text:
    The TOWN OF HOMER, INC. d/b/a Homer Memorial Hospital, Plaintiff-Applicant, v. GENERAL DESIGN, INC. and Storer HVAC Management Corporation, Defendants-Respondents.
    No. 42,027-CW.
    Court of Appeal of Louisiana, Second Circuit.
    May 30, 2007.
    Rehearing Denied Aug. 9, 2007.

      Colvin, Weaver & Cerniglia by James H. Colvin, Pamela N. Breedlove, Shreveport, for Applicant.
    The Smitherman Law Firm by W. James Hill, III, Donald Lee Brice, Jr., Shreveport, for Respondents, General Design and Continental Casualty Company.
    Robert Kennedy, Jr., Shreveport, for Third Party Respondent, Pro-rBuild Construction, Inc.
    Before WILLIAMS, CARAWAY and LOLLEY, JJ.
   CARAWAY, J.

|!Appellant sued the architectural firm it hired in 1984 for a major hospital renovation. The initial construction project costing over three million dollars was substantially completed in 1988. A few years later, appellant addressed the need for a parking lot and an addition for medical records storage for which the defendant performed additional architectural services. When defects developed regarding the medical records storage addition, appellant sued defendant for negligence and breach of contract. Defendant argued that the terms of the parties’ earlier AIA contracts, executed in 1984 and 1985, required arbitration. After a hearing in which the trial court ruled in favor of arbitration, and a second hearing denying appellant’s motion for a new trial, appellant sought this supervisory review. For the following reasons, we reverse and remand for farther proceedings.

Facts

Homer Memorial Hospital is owned by the Town of Homer (hereinafter collectively “HMH”). Allen W. Johnson (“Johnson”) is an architect employed by defendant General Design, Inc. (“G.D.Inc.”). Between the early 1980’s and the mid-1990’s, HMH and G.D. Inc., through Johnson, contracted for architectural services pertaining to various renovation work projects for the hospital. This dispute involves their contractual agreement or agreements applicable to the time period in question as related to a work project that occurred in 1992 (hereinafter the “Pro-Build Job”). Identification of the parties’ contractual agreement | ^pertaining to the Pro-Build Job, which allegedly involved architectural defects, will answer the issue of arbitration for this dispute.

In 1983, HMH decided to modernize and upgrade the hospital facilities to enhance care and attract more medical practitioners to its rural community. It hired G.D. Inc., and in particular, Johnson, to conduct a study covering “programming, consultant services, financial search and architectural services,” for which services HMH was to pay G.D. Inc. $11,550. To effect their agreement, the parties executed a “Standard Form of Agreement Between Owner and Architect,” AIA Document B141-1977, effective May 8, 1984 (hereinafter the “1984 Consulting Agreement”).

After Johnson’s work and guidance, the major initial renovation project was advertised and let out for bids. As a result, HMH and McGinnis Brothers Construction, Inc., the low bidder, entered into a Standard Form of Agreement Between Owner and Contractor (AIA Document A101-1977) in September, 1986. The major renovation (hereinafter the “McGinnis Job”) was for $3,391,089 and was substantially completed about two years later, on November 30, 1988. The McGinnis contract named G.D. Inc. the architect for the project.

G.D. Inc.’s basis for its present claim for arbitration arises from a second Standard Form of Agreement Between Owner and Architect (AIA Document B141-1977) (hereinafter the “1985 AIA Contract”). This second contract was executed in August 1985, yet was dated May 8, 1984, the same date HMH initially authorized G.D. Inc. to conduct its work on the | apreliminary feasibility study pursuant to the 1984 Consulting Agreement. Similar to the listing for the “Project” description contained in the original 1984 Consulting Agreement, the 1985 AIA Contract simply described “a remodeled facility for Homer Memorial Hospital” as its focus. The 1985 AIA Contract, like the initial contract, included a provision for arbitration in Article 9.1 of the printed AIA form providing that “[a]ll claims, disputes, and other matters in question between the parties to this Agreement, arising out of or relating to this Agreement or the breach thereof, shall be decided by arbitration.... ”

Although the 1984 Consulting Agreement and the 1985 AIA Contract had the same date and were virtually identical on the same printed AIA form, there were certain changes made in the 1985 AIA Contract for compensation for services, in contrast to the 1984 Consulting Agreement’s specific listing of the $11,550 consideration for the initial services. Additionally, the 1985 AIA Contract included a supplement dealing with the authority of G.D. Inc.’s architect, Johnson, as the “full-time project representative” for HMH and special supplements to satisfy Farmers Home Administration (“FmHA”) regulations.

At completion of the McGinnis Job, Johnson dealt with post-construction issues. On December 1, 1988, Johnson notified the State Fire Marshal that the Initial Renovation was complete. G.D. Inc.’s concluding billing statement submitted to HMH in February, 1989, calculated its fee for services on the McGinnis Job in accordance with the 1985 AIA Contract, as follows:

UBasic Fee through Bid Award: "$3,391,089.00 (contract amount incl. change orders) x (7% x 80%) = $ 189,900.98
Contract Administration: $3,391,089.00 X (7% x 20%) = 47,475.26
Amount Earned to Date: Basic Fee Contract Drawings & Bid= $ 189,900.98
Contract Administration ($47,475.25 x 100% Complete) = + 47,475.25
Total Earned to Date: 237,376.23
Total Paid to Date: - 236,948.95
DUE AT THIS TIME: $ 427.28

In 1991, the HMH board of directors took steps for construction of a parking lot. In July 1991, Johnson transmitted two designs for a proposed parking lot addition. The preliminary plans called for low retaining walls and sloped earth embankments to improve drainage. After G.D. Inc. billed HMH $150 for the preliminary designs in August, Johnson followed up with a letter estimating construction costs at $38,100 excluding the earthwork. The hospital ultimately selected the Town of Homer’s architect and engineering personnel to complete the parking lot in April or May, 1992.

In September 1991, planning began on a project for a building for medical supplies. In early 1992, G.D. Inc. prepared construction drawings for a proposed medical records storage facility. In July 1992, after an initial bid process resulting in a $240,000 bid, Pro-Build Construction, Inc. (“Pro-Build”) was invited to bid on the proposed addition. Ultimately, after certain revisions to the project, Pro-Build’s bid of $184,417 was accepted. The Standard Form of Agreement Between Owner and Contractor (AIA |sDocument A101-1987) between Pro-Build and HMH was executed in which G.D. Inc. was listed as the architect.

As a result of the Pro-Build Job for the medical records building, problems arose and the present lawsuit ensued. The petition contains the following allegations of the problem:

IX.
During the project, the Louisiana State Fire Marshall (sic) took exception to the fact that the Medical Records Building was too close to the existing Hospital structure to allow sufficient ingress and egress by hospital staff transporting patients on a hospital gurney. To accommodate this need, the Fire Marshall (sic) required a minimum of eight feet of space between the existing structure and the new storage facility.
X.
In response to this requirement by the Louisiana State Fire Marshall (sic), General Design drafted plans to connect the previously existing hospital structure to the Medical Records Building itself with an enclosed corridor. This project will be referred to hereinafter as the “Corridor Revision.” The Corridor Revision project was not completed until the summer of 1996.
XI.
The Corridor Revision design called for the destruction of a substantial part of the previously-existing brick facade, which had previously constituted the end of the 20’s wing, of the Hospital, specifically that point beginning at the ceiling of the 20’s wing, extending to the underside of the roof, a space of approximately four feet.
XII.
The newly-created open space at the end of the 20⅛ wing in the Hospital’s ceiling area, which comprises four feet of space between the ceiling and the underside of the roof, caused a negative pressure environment, meaning that the Hospital’s ceiling space began to draw outside air into the Hospital, instead of pushing air out of the Hospital, which is known as positive pressure.
XIII.
As a result of the negative pressure created by the opening of the 20’s Wing facade, the Hospital began experiencing a phenomenon referred to as “indoor rain,” which means that humid, moist Louisiana |fiair was being drawn into the ceiling space, then condensing on the various pipes and structures contained in the ceiling space, and then, in turn, saturating all pipe insulation, as well as dripping into the walls of the patient rooms and offices below the ceiling. As a direct result of this design flaw, the Hospital has experienced numerous problems with mold, fungus, and other bacteria which are harmful to human beings.

The petition also alleges that a certificate of completion for the medical records storage project was not issued by G.D. Inc. until January 28,1999.

After answering the suit, G.D. Inc. moved to stay the proceedings pending arbitration. The motion to stay detailed Johnson’s architectural services provided for the medical records addition and the corridor revision, and argued that the parties agreed in the 1985 AIA Contract to resolve any disputes by arbitration. HMH argued that the 1992 business relations with G.D. Inc. and Johnson were conducted verbally, resulting in an oral contract. Johnson’s affidavits filed as evidence detailed the history of G.D. Inc.’s business relationship with HMH from its inception in 1984 until the end of 1995. According to Johnson, the relationship was solely governed by written contracts executed between the parties in 1984 and 1985. Other affidavits along with numerous records and the minutes of HMH’s board meetings were submitted into evidence contesting the application of a contract requiring arbitration for G.D. Inc.’s allegedly defective work.

Discussion

If any suit or proceedings be brought upon any issue referable to arbitration under an agreement in writing for arbitration, the court in which suit is pending, upon being satisfied that the issue involved in the suit or proceedings is referable to arbitration under such an agreement, shall on |7application of one of the parties stay the trial of the action until an arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with the arbitration. La. R.S. 9:4202.

The failure of a party to arbitrate in accordance with the terms of an agreement may be raised either through a dilatory exception of prematurity demanding dismissal of the suit or by a motion to stay the proceedings pending arbitration. Wied v. TRCM, LLC, 30,106 (La.App.2d Cir.7/24/97), 698 So.2d 685. The defense that plaintiffs are not entitled to judicial relief because of a valid agreement to submit their claims to arbitration may be raised by the dilatory exception pleading prematurity, La. C.C.P. art. 926[A](1), which is determined on the basis of the showing made at the in limine trial of the exception, including evidence introduced at the trial thereof. La. C.C.P. arts. 929, 930. When the issue is raised by the exception pleading prematurity, the defendant pleading the exception has the burden of showing the existence of a valid contract to arbitrate, by reason of which the judicial action is premature. Cook v. AAA Worldwide Travel Agency, 360 So.2d 839 (La. 1978); Tresch v. Kilgore, 03-0035 (La.App. 1st Cir.11/7/03), 868 So.2d 91. Once the court finds a valid and enforceable arbitration agreement, and a failure to comply therewith, the court shall order arbitration. Horseshoe Entertainment v. Lepinski 40,753 (La.App.2d Cir.3/8/06), 923 So.2d 929, writ denied, 06-0792 (La.6/2/06), 929 So.2d 1259; Conagra Poultry Co. v. Collingsworth, 30,155 (La.App.2d Cir.1/21/98), 705 So.2d 1280.

|SG.D. Inc.’s “Motion for Stay” occurred 10⅜ months after its answer to the suit. In the first evidentiary hearing on the matter, Johnson’s affidavit listed only the 1985 AIA Contract as the controlling agreement intended to cover all future renovations to the hospital. After the trial court ruled that the agreement controlled and arbitration was appropriate, HMH’s motion for new trial brought in additional evidence challenging the 1985 AIA Contract’s application as limited to the McGinnis Job. This additional evidence was received by the trial court along with Johnson’s second affidavit which identified and urged the 1984 Consulting Agreement as also governing the parties’ overall contractual arrangements. The 1985 AIA Contract contains provisions indicating that it was specifically tied to the McGin-nis Job. Compensation for basic services in the 1984 Consulting Agreement was listed at “ten percent of construction cost” (paragraph 14.2.1), but was lowered to 7% in the 1985 AIA Contract for the McGin-nis Job. Additionally, specific supplements and addenda concerning FmHA’s financing of the McGinnis Job were added to the 1985 AIA Contract.

In argument to this court, G.D. Inc. ambiguously asserts the application of one or both of these contracts as the master agreement intended to cover G.D. Inc.’s services for all future jobs. In a clear reference to only the 1984 Consulting Agreement, G.D. Inc. argues that:

Homer Hospital and General Design did that when they entered into a broad based contract for programming, consultant |9services, financial search and architectural services for the new and/or remodeled facility for Homer Hospital, which included a master plan for ongoing services, ongoing functions, ongoing construction, and ongoing phases of construction.

Its argument then shifts subtly in the very next sentence to both agreements as the controlling contracts, stating that “it was all covered in the 1984 Agreements. Each job (project) and/or phase stood under the 1984 Agreements.” Later, after noting the specific changes made in the parties’ contractual arrangement to accommodate FmHA financing for the McGinnis Job, G.D. Inc. argues “both [the 1984 Consulting Agreement and the 1985 AIA Agreement] were broad based and not limited to any one specific construction project. The language of the 1984 Agreements clearly contemplated many services to be performed and many phases for a new and/or remodeled facility.”

Upon careful study of the AIA formal agreements, we reject G.D. Inc.’s attempt to ride both contracts for the establishment of a perpetual contractual relationship between the parties for all future construction of hospital additions. First, the “Project” was to be defined on page one of the AIA form contracts with printed instructions for a “detailed description of Project location and scope.” This was not done, as both the 1984 Consulting Agreement and the 1985 AIA Contract generically list a “remodeled facility for Homer Memorial Hospital, Homer, Louisiana” as the “Project.” The alleged “master plan” or scope of the “Project” is never specified in these agreements, and nowhere are any ongoing or scheduled “phases” shown that might distinguish between the immediate McGinnis Job (1985), the parking lot addition (1991), the medical records storage hnfacility (1992), and whatever else may still be contemplated for the future under the master plan.

Second, the AIA Document B141-1977 printed agreements used by the parties contain capitalized terms, such as “Project,” “Construction Documents,” “Construction Phase,” and “Work” throughout. In paragraph 11.2 of these agreements, the form contract states that “[t]erms in this Agreement shall have the same meaning as those in AIA Document A201, General Conditions of the Contract for Construction, current as of the date of this Agreement.” Such 1977 (or pre-1977) AIA Document A201 form which coincides with these contracts and defines those critical terms was not produced in evidence by G.D. Inc.

Third, paragraph 18.1 of the 1985 AIA Contract indicates that the 1984 Consulting Agreement was superseded. The 1985 AIA Contract was back-dated to coincide with the date of the parties’ initial consulting agreement and paragraph 13.1 states:

This Agreement represents the entire and integrated agreement between the Owner and the Architect and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be amended only by written instrument signed by both Owner and Architect.

The more specific features within the 1985 AIA Contract relate to the FmHA financing of the McGinnis Job. This supports HMH’s contention that the 1985 AIA Contract (and its arbitration requirement) ended at the completion of the McGinnis Job and that the 1984 Consulting Agreement ended following the rendition of $11,550 worth of initial services.

lnFinally, in the AIA printed form contract now in dispute, Article 1 lists the architect’s “Basic Services” to be provided from start to finish of a “Project,” including the design development phase, the construction documents phase, the bidding or negotiations phase, and the administration of construction phase. Paragraph 1.7 of Article 1, then discusses additional services as follows:

1.7 ADDITIONAL SERVICES.
The following Services are not included in Basic Services unless so identified in Article 15. They shall be provided if authorized or confirmed in writing by the Owner, and they shall be paid for by the Owner as provided in this Agreement, in addition to the compensation for Basic Services.
* ⅜ s¡s * ⅜
1.7.4 Providing services relative to future facilities, systems and equipment which are not intended to be constructed during the Construction Phase.
⅜ ⅜: ⅜ ⅜ ⅜
1.7.19 Providing services after issuance to the Owner of the final Certificate for Payment, or in the absence of a final Certificate for Payment, more than sixty days after the Date of Substantial Completion of the Work....

These provisions indicate to us that services for “future facilities” “not intended to be constructed during the Construction Phase” were expressly excluded from the 1985 AIA Contract and likewise work by G.D. Inc. after substantial completion of the McGinnis Job was also excluded.

From the above review of the earlier agreements, we find that the 1985 AIA Contract might have become the governing document for the later 1992 medical records addition only if:

(i) the definition of “Project” and/or “Construction Phase” were proven by G.D. Inc. to include the medical records storage addition as intended by the parties in 1985;
(ii) the parties agreed in writing to extend the 1985 AIA Contract to govern their obligations regarding the medical 112records storage addition within the meaning of “additional services” under the contract; or
(in) the parties agreed orally to “authorize” and extend the 1985 AIA Contract to govern their obligations regarding the medical records storage addition -within the meaning of “additional services” under the prior written contract.

We have already ruled that the term “Project” in the 1985 AIA Contract did not identify a medical records storage facility as within the contemplation of the parties. To the contrary, the evidence shows that only the McGinnis Job was a planned construction project at that time. Additionally, there was never an oral authorization or confirmation in writing that G.D. Inc.’s architect services extended in 1992 would be governed as “additional services” under the 1985 AIA Contract.

While the parties’ pattern of dealings may have remained quite similar after the conclusion of the McGinnis Job, their earlier written contract required oral or written authorization so as to bring the governance of the prior contract into play. Moreover, unlike the billing set forth above for the McGinnis Job, the billing practices of G.D. Inc. after that project do not reveal that G.D. Inc. received 7% (or 10%) of the contract cost for the parking lot job or the Pro-Build Job. Johnson never explained in his affidavits how his invoices for services relating to those jobs were calculated. In the parties’ course of dealings from the conclusion of the McGin-nis Job through the Pro-Build Job, the correspondence, invoices and minutes of HMH’s board of directors never make reference to the 1985 AIA 11sContract as the contract under which their ongoing dealings were governed. There is no provision in our law that required a written contract for G.D. Inc.’s professional services rendered to HMH in the 1990’s, and the parties’ earlier written contract governing the extremely larger McGinnis Job renovation expressly required a new meeting of minds by the parties in order to bring services relative to future facilities within the reach of the express provisions of the earlier contract.

Conclusion

Accordingly, finding that no written contract existed mandating arbitration of HMH’s claims, we reverse the ruling of the district court. The case is remanded to the trial court. Costs are assessed to General Design, Inc.

REVERSED AND REMANDED.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, GASKINS, CARAWAY and LOLLEY, JJ.

Rehearing denied.

      . The AIA designation identifies a series of standard industry forms drafted and copyrighted by The American Institute of Architects.

      . The 1984 Consulting Agreement listed the 10% fee for basic services, hourly rates for additional services, and the special $11,550 fee which was a one-time fee outside the basic fee schedule of the standard AIA format. HMH argues that the contract’s scope was limited only to the narrow initial services costing $11,550. G.D. Inc. argues that the agreement remains extant in addition to the 1985 AIA Contract without explanation of whether the 10% fee or the 7% fee governed future construction projects.

      . While we might interpret paragraph 1.7 to allow oral authorization or confirmation in writing to extend the contract to services for future facilities outside the intent of the original “Project,” the paragraph is ambiguous in that it may also reasonably be interpreted to require that agreement for future facilities must be authorized in advance or confirmed after the fact solely in writing.


source: Caselaw Access Project

author: DREW, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Eddie LANG, Appellant.
    No. 42,125-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 30, 2007.

      Louisiana Appellate Project by Paula Corley Marx, Lafayette, Mark Owen Foster, for Appellant.
    Jerry L. Jones, District Attorney, Charles L. Brumfield, Assistant District Attorney, for Appellee.
    Before BROWN, WILLIAMS and DREW, JJ.
   DREW, J.

L Eddie Lang was convicted of second degree murder (La. R.S. 14:30.1) and sentenced to life imprisonment without benefit of parole, probation, or suspension of sentence. He appeals. We affirm.

FACTS

Around midnight on November 27, 2004, Eddie Lang, along with his sister and brother-in-law, were waiting in line to pay for admittance into a Morehouse Parish nightclub. Lang’s sister, Felecia Adams, paid the cover charge for all three. Terrence Armstrong, the victim, falsely claimed that the admission had been paid for him.

Events then moved in rapid succession:

• Lang and Armstrong exchanged words and fought;
• Lang pulled a gun, which he pointed at the victim;
• Armstrong broke away from the struggle and went inside the club, telling the owner and a security guard at the door that someone outside had a gun;
• Armstrong asked several patrons for a weapon, without success;
• Lang entered the club, where he found his sister sitting at a table;
• Armstrong hit him, commencing round two;
• Lang shot Armstrong and fled the club;
• Armstrong died shortly thereafter.
Lang was later identified as the shooter and thereafter apprehended in California.

|⅞1. Sufficiency

A. Law

Our law on sufficiency is well settled.

Relative to the facts of this tragedy, in order to prove the crime of second degree murder, the state’s burden was to prove beyond a reasonable doubt that defendant acted in accordance with the circumstances listed in La. R.S. 14:30.1(A), which provides in pertinent part:

Second degree murder is the killing of a human being: (1) When the offender has a specific intent to kill or to inflict great bodily harm.

Our law on self-defense is well settled.

| sThe discharge of a firearm at close range and aimed at a person is indicative of a specific intent to kill or inflict great bodily harm upon that person. State v. Seals, 95-0305 (La.11/25/96), 684 So.2d 368, U.S. cert. denied; State v. Dooley, 38,763 (La.App.2d Cir.9/22/04), 882 So.2d 731, writ denied, 04-2645 (La.2/18/05), 896 So.2d 30.

B. Testimony

(1) Sergeant Clint Hall of the More-house Parish Sheriffs Office testified that:

• he responded to the call at the Townhouse Club on November 27, 2004, shortly after midnight;
• another officer arrived at the same time and they entered the club together;
• there was only one entrance to the club;
• nearly all of the 100 patrons were attempting to exit the building;
• when he reached the back of the club, most of the patrons were gone;
• he saw a black male on the floor, still alive, but unable to speak;
• someone ran into the club and said there was a fight outside the club;
• he went outside to investigate, but found no activity;
• when he went back inside the club,, he found a 9mm shell casing under a speaker near the bathroom, approximately 3½ feet from the victim;
• the casing was collected by Investigator Derrick Quillar;
• medical personnel took Armstrong to Morehouse General Hospital; and
[4* he (Sgt.Hall) had no further involvement in the investigation.

On cross-examination, Sgt. Hall testified that:

• when he arrived, the owner .and a female were helping patrons leave the club;
• he obtained the name of a possible suspect (Lang), whose address was obtained from driver’s license records; and
• attempts to locate Lang at the listed address were unsuccessful.

(2) Investigator Derrick Quillar testified that:

• he was the lead investigator on this case;
• he arrived between 12:15 and 12:30 a.m., at which time he was briefed;
• few patrons were left inside the club when he arrived;
• Armstrong had already been transported to the hospital;
• he took charge of the scene, ordering everyone (except the owner and a barmaid) out of the club, to preserve the crime scene;
• he found and photographed one 9mm shell casing on the scene;
• the casing was never linked to the shooting;
• no weapons were found at the scene;
• he learned from several uncooperative individuals that Lang was the shooter;
• he noted that blood had been cleaned from the floor prior to his arrival;
• he went to the hospital and learned that Armstrong had died;
• he took several post-mortem photographs of the victim;
• Armstrong had one obvious gunshot wound;
• officers were initially unsuccessful in locating Lang;
• an arrest warrant was obtained for Lang;
1officers were unable to locate Lang in Louisiana, but based on an anonymous tip, he was eventually located in California, one month after the shooting; and
• as evidence in the case, Quillar received a copy of the autopsy report, a bullet recovered from the victim’s body, and a DNA matrix card.

(3) Dr. Frank Peretti, an expert in forensic pathology, testified that:

• he performed the autopsy;
• the cause of death was a gunshot wound to the chest and abdomen area;
• a large bullet, consistent with a 9mm, was taken from the victim’s body;
• the bullet entered the victim’s left side just under the rib cage and traveled to the right and downward to the buttocks area;
• the wound was a distant gunshot wound, as no gunshot residue was visible on the victim’s clothing, although no testing was conducted on the clothing;
• the wound was consistent with the gun being held by the victim and turned back towards him because of the downward path of the bullet;
• the wound could have been inflicted in several manners;
• the victim’s blood alcohol content was 0.114 percent at death; and
• with the exception of the alcohol and medicines given as a result of attempted life-saving procedures, no other drugs were found in the victim’s blood.

(4) Wanda Brandley testified that:

• she was a patron at the club on the night of the shooting;
• she knew both Lang and the victim;
• her brother and Lang were best friends;
• she was outside the club before the shooting and saw the initial fight near the door;
• she didn’t see the fight start, but she did see Lang point a gun at Armstrong;
|f;* the victim then ran inside the club;
• the owner went outside to check on the commotion, but the fight was over;
• she thought (not sure) that Lang’s gun jammed as he aimed it at the victim;
• she then lost sight of Lang, but guessed he went around the building’s side;
• she reentered the club, noticing Lang do the same;
• afraid of more trouble, she watched Lang the entire time he was in the club;
• fifteen to 20 minutes later, Lang and the victim were standing near each other;
• she heard the sound of a gunshot and saw Lang shoot the victim, then pull the hood of his shirt over his head and exit the club with the crowd;
• she told Investigator Quillar that she didn’t see Lang shoot the victim;
• she saw Lang and the victim standing near each other when she heard the gunshot, but she had not seen the pair “tussling” inside the club;
• there were a lot of people in the club at the time of the shooting;
• after the victim was shot, she went over and talked to him;
• though unfamiliar with weapons, she remembered the gun being black;
• she heard the gunshot, but did not see the gun “go off’;
• Lang entered the club 10-15 minutes after the victim;
• she and her brother David went to the hospital; and
• Lang was wearing a hooded shirt and a T-shirt at the time of the shooting.

(5) Tamika King testified that:

• she was at the Townhouse Club with friends on November 27, 2004;
|7* she saw the victim rush into the club, pushing her and scratching her arm;
• she did not know the victim prior to the incident;
• as the victim rushed past, she heard him say that “he got a gun”;
• the victim spoke with the owner of the club and the police officer who was also present;
• the victim did not appear excited;
• the victim spoke with his cousin, who was a friend of hers; and
• she did not see the victim talking to anyone else while he was inside the club.

(6) David Brandley, brother of Wanda Brandley, testified that:

• he was in the club on the night of the shooting, standing outside talking when he saw the victim and Lang “tussling” near the club’s entrance;
• he saw Lang pull out a black gun, at which point the victim broke away and ran into the club, with Lang following close behind;
• he did not see any type of fight between the victim and Lang inside the club, but he saw Lang pull a gun out of his pocket and shoot the victim;
• though he had told police that Lang and the victim were struggling over the gun, he said at trial that the two were standing five to six feet apart at discharge; and
• he was certain Lang shot the victim, and the victim did not shoot himself during a struggle over the weapon.

(7) Eddie Harris, a co-owner of the club, testified that:

• he was working the door on the night of this shooting;
• when the victim entered the club, he said someone outside had a weapon;
• the victim did not tell him about the fight or who had a gun;
Is*he and the security person walked outside to look around, but saw nothing;
• there were about four individuals standing outside, and when he questioned them regarding a possible disturbance, they did not reply;
• he reentered the club, and soon heard a gunshot in the rear of the club;
• the patrons rushed the door, and he was unable to see what was happening;
• he saw the victim lying on the floor at the back of the club; and
• he stopped club patrons from attempting to move the body.

(8) James Armstrong, cousin of the victim, testified that:

• he was in the club when the victim came in asking for a weapon because someone was trying to kill him;
• he did not have a weapon to give the victim;
• he told the victim to “chill out,” thinking he was just drunk;
• when Lang approached him, he told him to “leave that alone”;
• Lang and the victim fought inside the club, then Lang shot the victim; and
• he was about two feet away from the fight, but he did not see who started it.

(9) Gloria Ellington, Lang’s mother, testified that:

• she took photographs of Lang’s face, at his request, showing the injuries he received that night, including swelling, scratches, and bloodshot eyes;
• she did not know how or when her son had been injured;
• after taking the photos, she did not see her son for three to four weeks;
• during his absence, she heard that Lang was in California; and
• she denied helping her son leave the state, but admitted that she tried to persuade him to stay out there.

| fl(10) Priscilla Porter testified that:

• she was present when the pictures of Lang’s injuries were taken;
• she saw several scratches on Lang at the time, but the scratches were not visible in the photographs; and
• she was able to identify some of Lang’s injuries, but did not know how or when Lang was injured.

(11) Andrea Henderson testified that:

• after entering the club that night, he went to the bar and had several beers;
• he saw two people struggling near a table where “Feleeia” was sitting;
• he did not know that Feleeia and Lang were related;
• he did not know Lang or the victim; and
• after seeing a gun, he left the club.

(12) Feleeia Adams, Lang’s sister, testified that:

• she went to the club with her husband and her brother;
• she paid the admission for herself, her husband, and Lang;
• the victim tried to claim that she paid for his admission;
• she quickly told the attendant that she had in fact paid for her brother;
• she did not know the victim;
• she and her husband then entered the club without her brother;
• Lang entered later, and came over to their table;
• James Armstrong was standing near their table as Lang entered the club;
• she heard Lang tell Armstrong that Mr. Armstrong should “get his cousin”;
• she told Quillar about this conversation in her initial statement;
| m* she saw the victim hit Lang, causing Lang to lose his balance, but not fall;
• Lang and the victim began to struggle;
• she heard a gunshot, though she never saw a gun;
• she heard the victim ask someone at her table for a gun prior to the shooting;
• after the shooting, she ran home from the club; and
• she was unable to locate her brother after the shooting and did not see or hear from him again until after his incarceration in December 2004.

C. Reasoning

The evidence presented by the state was sufficient to support Lang’s conviction for second degree murder. Lang argues without a basis in fact that uncon-tradicted evidence showed that the victim was the aggressor in the fight that occurred outside the club, and again when he initiated the continued fight inside, after inquiring about a weapon. The reality is that the jury was presented with exhaustive and uncontradicted testimony that Lang and the victim fought outside and Lang pulled a gun which he pointed at the victim. After the outside fight, there was confusing testimony as to whether the victim did go inside the club and request a weapon. It is clear that his search was without success.

The jury was required to make an ultimate determination of this issue, and they did so, apparently rejecting the argument that the witnesses were biased. In particular, the defendant attacks the state’s witnesses because of their relationships with the victim and because of the discrepancies in their respective accounts of the shooting. The jury chose to believe the testimony |nof the state’s witnesses, rejecting the claim of self-defense. Testimony indicated that Lang had in fact pointed the weapon at the victim during the first struggle. Lang then entered the club and argued with the victim’s cousin. Shortly thereafter, he shot the victim. The fight was neither of such a long duration, nor so violent, that Lang could have believed his life was in danger. Additionally, Lang’s injuries were apparently minor in that the photographs taken the night after the incident did not depict any major injuries. The state met its burden to sustain this conviction.

II. Manslaughter Argument

Lang argues that he acted in sudden passion or heat of blood after being beaten by the victim and thus should have been convicted of manslaughter as opposed to second degree murder. The state responds that the issue of whether the killing was in fact a manslaughter is one to be determined by the jury after consideration of all mitigating factors shown by the evidence.

Manslaughter is defined, in relevant part, as a “homicide which would be first or second degree murder, but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection.” La. R.S. 14:31 A(l); State v. Quiambao, 36,587 (La.App.2d Cir.12/11/02), 833 So.2d 1103, writ denied, 03-0477 (La.5/16/03), 843 So.2d 1130.

A defendant is required to prove by a preponderance of the evidence that he acted in “sudden passion” or “heat of blood” for a verdict of manslaughter to be appropriate. State v. Robinson, 32,794 (La.App.2d Cirb/8/1/00), 754 So.2d 311, writ denied, 00-0989 (La.3/23/01), 787 So.2d 1008.

“Sudden passion” and “heat of blood” are hot elements of the offense of manslaughter; rather, they are mitigatory factors in the nature of a defense which exhibit a degree of culpability less than that present when the homicide is committed without them. State v. Lombard, 486 So.2d 106 (La.1986).

Considering the sufficiency argument regarding the finding of second degree murder, and viewing the evidence in a light most favorable to the prosecution, the evidence does not substantiate Lang’s contentions. While it was established that Lang and the victim were engaged in a minor argument and later a fight, it is difficult to extrapolate these facts into partially excusing Lang’s conduct, by reducing a second degree murder conviction to manslaughter. The mitigating factors were not established by a preponderance of the evidence, and the jury rejected the option of returning a verdict of manslaughter. We agree with the jury’s findings. Manslaughter is inappropriate under these facts.

III. Juror Misconduct: Inadequate Record and Insufficiency of Counsel

Failure to Make a Record of Bench Conferences

Lang complains that:

• a prospective juror spoke prejudicial remarks that were heard by other jurors;
• a related bench conference was not recorded; and
• his lawyer did not sufficiently inquire about this to prospective jurors.

liSLa. C. Cr. P. art. 848 provides:

In felony cases, in cases involving violation of an ordinance enacted pursuant to R.S. 14:143(B), and on motion of the court, the state, or the defendant in other misdemeanor cases tried in a district, parish, or city court, the clerk or court stenographer shall record all of the proceedings, including the examination of prospective jurors, the testimony of witnesses, statements, rulings, orders, and charges by the court, and objections, questions, statements, and arguments of counsel.

State v. Hoffman, 98-3118 (La.4/11/00), 768 So.2d 542, 00-1609 (La.6/14/00), 768 So.2d 592, U.S. cert. denied, held:

This court has never articulated a per se rule either requiring the recording of bench conferences or exempting them from the scope of La. C. Cr. P. art. 843. Still, art. 843’s description of “objections” and “arguments” will normally apply only to objections made in open court and the arguments of counsel in closing, because only these objections and arguments rise to a level of materiality sufficient to invoke art. 843. Similarly, Art. I § 19⅛ command to record “evidence” does not encompass bench conferences, at least, not ones that do not satisfy the materiality requirements of La.Code Crim. Proc. art. 843. (Internal citations omitted.)

See discussion in State v. Draughn, 05-1825 (La.1/17/07), 950 So.2d 583.

La. Const, art. I, § 19 provides that “[n]o person shall be subjected to imprisonment ... without the right of judicial review based upon a complete record of all evidence upon which the judgment is based.”

Lang points to no specific prejudice resulting from:

• the agreed procedure utilized in deciding the issue, or
• the trial court failing to record bench conferences, or
• defense counsel’s failure to make a proper record. State v. Hoffman, supra.

|14A defendant is not entitled to relief absent a showing of prejudice based on the missing portions of the transcripts. State v. Castleberry, 98-1388 (La.4/13/99), 758 So.2d 749, U.S. cert. denied.

Our law on effectiveness of counsel is well settled.

On the second day of voir dire, the state requested permission to approach the bench, and a brief bench conference with all counsel was held. 11BAfterwards, the trial court brought prospective juror Bor-nett into court, whereupon he was questioned by the court, the defense, and the state.

During the questioning, the record reveals that the prospective juror:

• said something heard by prospective jurors and by a sheriffs deputy, and
• his statement was “... seems like they know he did it and everything, he’s guilty, so it shouldn’t be hard to, you know.”

Defense counsel requested another bench conference, then questioned Bornett further, and then Bornett was excused for cause.

There was then a discussion as to how the matter should be handled, with the court determining that the remaining 13 prospective jurors would initially be questioned together. The trial court stated, “I don’t want to set off worms in their head that would infect the jury with his (Mr. Bornett’s) poor statement and inappropriate conduct but I want to get some guidance from you.” The court indicated it would give further instructions regarding the presumption of innocence. Defense counsel requested that the court ask if any of the prospective jurors had in fact heard the statement, and if any answered affirmatively, that they be questioned privately. This eminently reasonable procedure was followed by the court.

Of the 13 prospective jurors, six indicated being present when the deputy spoke with Bornett in the grand jury room, and of these six, only two actually heard Bor-nett’s statement. The others said they heard the deputy tell Bornett that the case should not be discussed. From the six prospective jurors who were questioned individually, three were selected to serve, with one serving as an alternate.

litiWhile Lang argues that the trial court should have recorded the bench conferences that led to the questioning during voir dire, the record does not support Lang’s contention that there was any error made by the trial court or Lang’s trial attorney in handling this issue. While it would have been better to record the bench conference, the material aspects of these arguments are ascertainable from the record presented. Lang alleges unfairness and a patent inability of this court to meaningfully review the proceedings below, all because a record of these questions and answers was not made:

• how the bailiff became aware of the statement;
• how many people were in the room at the time;
• to whom Bornett made the statement; and
• whether the other person commented on his statement.

The record belies Lang’s arguments. Though it is known that Bornett made a statement regarding Lang’s guilt, the record also reflects that the entire panel was called and consisted of 13 prospective jurors who were called for voir dire. Any others present in the room would be irrelevant for the purposes of this court making a determination of the issue. While it could be potentially helpful to know who Lang was speaking to when he made the statement, that information is not material for a determination of this issue. Those who heard the comment, and even those who only heard the bailiffs subsequent admonishment informed the court of this fact on the record. We find no prejudice here, and appreciate the learned trial court soliciting input from counsel on the resolution of a knotty problem.

| 17Lang argues, contrary to the record, that trial counsel was ineffective in failing to extensively question the prospective jurors regarding these comments. Under the standards of Strickland, Lang fails to meet the first prong of the test. There is no showing that the defense counsel should have asked any additional questions of the individuals who indicated they had in fact heard the comments. The rationale and the strategy employed by the court and defense counsel were reasonable, being purposely enacted to prevent defense counsel from being cast in a negative light because of questions regarding the matter. This was an appropriate strategy for conducting voir dire. Lang was not deprived of effective representation.

DECREE

The defendant’s conviction and sentence are AFFIRMED.

      . Also appears in the record spelled as "Feli- cia.”

      . When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La. 1992); State v. Bosley, 29,253 (La.App.2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.
      The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, supra; State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132; State v. Murray, 36,137 (La.App.2d Cir.8/29/02), 827 So.2d 488, writ denied, 02-2634 (La.9/05/03), 852 So.2d 1020. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Robertson, 96-1048 (La. 10/4/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App.2d Cir.8/30/02), 827 So.2d 508, writ denied, 02-3090 (La. 11/14/03), 858 So.2d 422.
      When the defendant challenges the sufficiency of the evidence in such a case, the question becomes whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that the homicide was not committed in self-defense. State v. Matthews, 464 So.2d 298 (La. 1985).

      . Self-defense is justification for a killing only if the person committing the homicide reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that deadly force is necessary to save his life. La. R.S. 14:20(1); State v. Cotton, 25,940 (La.App.2d Cir.3/30/94), 634 So.2d 937; State v. Jones, 600 So.2d 875 (La.App. 1st Cir.1992), writ denied, 92-2351 (La.5/12/95), 654 So.2d 346.
      When self-defense is raised as an issue by the defendant, the state has the burden of proving, beyond a reasonable doubt, that the homicide was not perpetrated in self-defense. State ex rel. D.P.B., 02-1742 (La.5/20/03), 846 So.2d 753.

      . An off-duty sheriff's deputy, moonlighting as a club security officer.

      . As a general rule, a claim of ineffective assistance of counsel is more properly raised in an application for post-conviction relief ("PCR”) in the trial court than by appeal. This is because PCR creates the opportunity for a full evidentiary hearing under La. C. Cr. P. art. 930. State ex rel. Bailey v. City of West Monroe, 418 So.2d 570 (La.1982); State v. Williams, 33,581 (La.App.2d Cir.6/21/00), 764 So.2d 1164. When the record is sufficient, this issue may be resolved on direct appeal in the interest of judicial economy. State v. Ratcliff, 416 So.2d 528 (La.1982); State v. Willars, 27,394 (La.App.2d Cir.9/27/95), 661 So.2d 673.
      The right of a defendant in a criminal proceeding to the effective assistance of counsel is mandated by the Sixth Amendment to the U.S. Constitution. State v. Wry, 591 So.2d 774 (La.App. 2d Cir. 1991). A claim of ineffectiveness of counsel is analyzed under the two-prong test developed by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
      To establish that his attorney was ineffective, the defendant first must show that counsel's performance was deficient. This requires a showing that counsel made errors so serious that he was not functioning as the "counsel” guaranteed the defendant by the Sixth Amendment. The relevant inquiry is whether counsel’s representation fell below the standard of reasonableness and competency as required by prevailing professional standards demanded for attorneys in criminal cases. Strickland, supra. The assessment of an attorney’s performance requires his conduct to be evaluated from counsel's perspective at the time of the occurrence. A reviewing court must give great deference to trial counsel’s judgment, tactical decisions, and trial strategy, strongly presuming he has exercised reasonable professional judgment. State v. Moore, 575 So.2d 928 (La.App. 2d Cir.1991). Also State v. Tilmon, 38,003 (La. App.2d Cir.4/14/04), 870 So.2d 607, writ denied, 04-2011 (La.12/17/04), 888 So.2d 866.
      Second, the defendant must show that counsel’s deficient performance prejudiced his defense. This element requires a showing the errors were so serious as to deprive the defendant of a fair trial, i.e., a trial whose result is reliable. Strickland, supra. The defendant must prove actual prejudice before relief will be granted. It is not sufficient for the defendant to show the error had some conceivable effect on the outcome of the proceedings. Rather, he must show that but for counsel's unprofessional errors, there is a reasonable probability the outcome of the trial would have been different. Strickland, supra; State v. Pratt, 26,862 (La.App.2d Cir.4/5/95), 653 So.2d 174, writ denied, 95-1398 (La. 11/3/95), 662 So.2d 9. A defendant making a claim of ineffective assistance of counsel must identify certain acts or omissions by counsel which led to the claim; general statements and conclusory charges will not suffice. Strickland, supra; State v. Jordan, 35,643 (La. App.2d Cir.4/3/02), 813 So.2d 1123, writ denied, 02-1570 (La.5/30/03), 845 So.2d 1067.

      . That counsel’s performance was deficient. Here, it clearly was not.


author: JAMES F. McKAY III, Judge.

text:
    Carmen WINDHAM v. Wilma MURRAY, Richard Hampton and ABC Insurance Company.
    No. 2006-CA-1275.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 30, 2007.

      Patrick G. Kehoe, Jr., Patrick G. Kehoe, Jr., APLC, New Orleans, Louisiana, for Plaintiff/Appellant.
    Steven B. Witman, Valerie Theng Math-erne, Law Offices of Steven B. Witman, Metairie, Louisiana, for Defendants/Appel-lees, Richard Hampton and ANPAC Louisiana Insurance Company.
    (Court composed of Judge JAMES F. McKAY III, Judge MAX N. TOBIAS JR., Judge ROLAND L. BELSOME).
   JAMES F. McKAY III, Judge.

hThe appellant, Carmen Windham, appeals the judgment of the trial court granting the motion for summary judgment of the defendants/appellees, Wilma Murray, Richard Hampton and ANPAC Louisiana Insurance Company.

September 1, 2003, dogs owned by Wilma Murray allegedly attacked Carmen Windham while she was walking on the sidewalk near Ms. Murray’s residence. Wilma Murray rented 638 N. Pierce Street from the owner Richard Hampton. The plaintiff filed her petition for damages on August 6, 2004. The defendants filed a motion for summary judgment in the matter. The trial court ruled in favor of the defendants. In its reasons for judgment the trial court stated that “[Pjlaintiff has submitted no evidence that the dogs owned by Wilma Murray ever attacked anyone before the incident, nor does the plaintiff have any evidence that the dogs got onto the sidewalk by coming out from underneath the house or through a gate before this incident.” It is from this judgment that plaintiff appeals.

STANDARD OF REVIEW

| ¡/‘The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action.... The procedure is favored and shall be construed to accomplish these ends.” La.C.C.P. art. 966(A)(2).

The motion for summary judgment should be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La.C.C.P. art. 966(B).

The burden of proof is on the moving party. La.C.C.P. art. 966(C)(2). However, if the moving party will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the moving party’s burden on the motion is satisfied by pointing out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Id. Thereafter, the adverse party must produce factual support sufficient to establish that it will be able to satisfy its evidentiary burden of proof at trial; failure to do so shows that there is no genuine issue of material fact. Id.

Summary judgments are reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hospital, Inc., 93-2512, p. 26 (La.7/5/94), 639 So.2d 730, 750. “An appellate court thus asks the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover-appellant is entitled to judgment as a matter of law.” Id.

The Louisiana Supreme court recently set out guidelines for determining [3the existence of a genuine issue of material fact in two cases. In determining whether an issue is genuine, a court should not consider the merits, make credibility-determinations, evaluate testimony or weigh evidence. A fact is “material” if it is one that would matter at trial on the merits. Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of trial on the merits. Suite v. Lafayette City-Parish Consol. Govt., 04-1459, p. 11 (La.4/12/05), 907 So.2d 37, 48. A “genuine issue” is a “triable issue,” that is, an issue on which reasonable persons could disagree. Jones v. Estate of Santiago, 03-1424, p. 6 (La.4/14/04), 870 So.2d 1002, 1006. In determining whether an issue is “genuine,” courts cannot consider the merits, make credibility determinations, evaluate testimony or weigh evidence. “Formal allegations without substance should be closely scrutinized to determine if they truly do reveal genuine issues of fact.”

A fact is “material” when its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery. “[F]acts are material if they potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute.” Simply put, a “material” fact is one that would matter on the trial on the merits. Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of a trial on the merits. Smith, 93-2512 at p. 27, 639 So.2d at 751.

ANALYSIS

The appellant asserts that the trial court erred in granting the defendants’ motion for summary as there are genuine issues of material fact in question concerning what knowledge the owner of 638 N. Pierce, Richard Hampton, had | ¿concerning the existence and the vicious propensity of the attacking dogs. The appellant urges that under a negligence theory of recovery and applicable jurisprudence, the owner of the property is liable to her for the injuries she received as a result of his negligence.

In this matter there are allegations that two pit bulls escaped from Wilma Murray’s rental unit at 638 N. Pierce Street. From the record before this Court, on the day of the attack no one witnessed the dogs escaping from this location. No one can say for sure how the dogs escaped onto the sidewalk where Carmen Windham was attacked. The only evidence presented at the summary judgment hearing is by way of affidavits, depositions and testimony. There are numerous contradictions in the evidence, particularly in what, if anything, Richard Hampton, the landlord/owner of 638 N. Pierce, knew about the dogs and the conditions of the property prior to the incident. Clarification of this information goes straight to the theory of recovery based on negligence pursuant to La. C.C. arts. 2315/2317.1; a different theory of recovery from the strict liability for dog owners pursuant to La. C.C. art. 2321.

Liability for injuries caused by a pet is governed by Civil Code article 2321, which provides:

The owner of an animal is answerable for the damage caused by the animal. However, he is answerable for the damage only upon a showing that he knew or, in the exercise of reasonable care, should have known that his animal’s behavior would cause damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nonetheless, the owner of a dog is strictly liable for damages for injuries to which the owner could have prevented and which did not result from the injured person’s provocation of the dog. Nothing in this Article shall preclude the court from the application • of the doctrine of res ipsa loquitur in an appropriate case.

[¡jin Pepper v. Triplet, 03-0619, p. 29 (La.1/21/04), 864 So.2d 181, 200, the Louisiana Supreme Court examined the standard set forth in Civil Code article 2321 and held that in order to establish a claim in strict liability against a dog owner, a plaintiff must prove that (1) he or she sustained injury to his person or property; (2) the injuries could have been prevented by the owner; and (3) the injury did not result from the provocation of the dog by the victim. The Court further held that in order to establish that a dog owner could have prevented the injury sustained by the victim, a plaintiff must establish that the dog presented an unreasonable risk of harm.

In particular, the Court noted that a plaintiff must establish that the risk of injury outweighed the dog’s utility such that it posed an unreasonable risk of harm. If the animal posed an unreasonable risk of harm, then the owner will be presumed to be at fault, because he failed to prevent an injury he could have prevented, and he will be held strictly liable for an injury caused by his dog, unless he can show that the injury was due solely to the fault of a third party unattributable to him or to a fortuitous event, or, as Article 2321 now provides, the plaintiff fails to establish that the injuries did not result from the injured person’s provocation of the dog. Id. at p. 19, 864 So.2d at 194. The Court noted that in determining whether a dog owner’s conduct constituted an unreasonable risk of harm, it must weigh the individual right of the dog owner with the “risk and gravity of harm” to the-.public. Id. at p. 21, 864 So.2d at 195-96. This is necessarily a fact-sensitive determination. Under this theory of recovery the owner of the dogs clearly carries the greatest portion of the liability for Carmen Windham’s injuries.

| (jHowever, the matter before this Court not only involves the owner of the dogs, Wilma Murray, but also Richard Hampton the landlord/owner of 638 N. Pierce Street.

The strict liability of the animal owner under La. Civ.Code art. 2321 cannot be imputed to a non-owner. Murillo v. Hernandez, 00-1065 (La.App. 5 Cir.10/31/00), 772 So.2d 868. The third party at issue in Murillo was a landlord; therefore, we find the reasoning applicable in this case. In Murillo the 5th Circuit stated:

Although a landlord is strictly liable for injuries caused by vices or defects of his building, he is not liable to a third person for injuries caused by his lessee’s animal. The strict liability of the animal owner under C.C. art.2321 cannot be imputed to a non-owner. Parr v. Head, 442 So.2d 1234, 1235 (La.App. 5 Cir. 1983). The landlord may still be liable for negligence under La. C.C. arts. 2315-2316, however, if there is a .violation of duty and that violation is a cause-in-fact of an injury. Id. This has been interpreted within this Circuit to mean that the record must show the landlord had actual knowledge of the dog’s vicious propensity. Compagno v. Monson, 580 So.2d 962, 966 (La.App. 5 Cir.1991).(emphasis added)

Our review of the record, and consistent with Murillo, indicates that arguably Richard Hampton’s knowledge of the presence of the dogs, coupled with the possible knowledge of their vicious propensity, and the potential knowledge that the dogs had previously escaped and chased a neighbor, may have subjected him to liability for negligence under La. Civil Code arts. 2315 and 2317.1. We are cognizant of the general rule in Louisiana that fault or negligence must exist before tort liability can be established.

Excerpts in the record from the June 9, 2006, deposition of Berylyn Jack directly contradict Richard Hampton’s assertions that he had no knowledge of the presence of the dogs nor their vicious propensities. Ms. Jack swore that she had informed Mr. Hampton that the dogs were unattended on the property and she had 17complained of their loud barking on numerous occasions. She also informed him that these dogs had escaped before the attack incident through a loose screen door. Yet, Mr. Hampton, consistently denied any knowledge that there were dogs on his premises. These inconsistencies are at the heart of the appellant’s theory of recovery, negligence.

In the instant case, there are issues of fact with regard to the owner’s knowledge of both the presence of dogs on his property and their vicious propensity. There is also a question as to whether or not he had advanced knowledge that the dogs had previously escaped and attacked a neighbor. These are factual questions, which directly impact Carmen Windham’s theory of recovery under a negligence tort theory pursuant to La. C.C. arts 2315 and 2317.1. This information is germane to the issue of liability and the appellant’s theory of recovery.

In view of the record, we are compelled to find that Richard Hampton and ANPAC Insurance Co., failed to support their motion for summary judgment sufficiently to establish that they are free of any liability and that there is an absence of genuine issues of material fact.

While we are cognizant of the dog owner’s strict liability and the non-imputability of this liability to others pursuant to La. C.C. art. 2321, there may be some transfer of culpability to the owner of the property. Only after a full understanding of the facts and an application of a duty risk analysis to this case can this matter be fully resolved.

| ¡¿Based on the record before this Court, the conflict in the evidence is insufficient to support the trial court’s granting of the defendants’ motion for summary judgment. Accordingly, the judgment of the trial court is reversed and the case is remanded to the district court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

      . Mr. Hampton repaired this prior to the attack on Ms. Windham


author: ROLAND L. BELSOME, Judge.

text:
    STATE of Louisiana v. Javardes J. BRAZILE.
    No. 2006-KA-1611.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 30, 2007.

      Eddie J. Jordan, Jr., District Attorney, Peter A. Ierardi IV, Assistant District Attorney, New Orleans, LA, for PlaintiffiAp-pellant.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge TERRI F. LOVE, Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

|!Javardes J. Brazile was charged by a bill of information with possession of crack cocaine on March 23, 2004. He pled not guilty at arraignment and filed preliminary motions. On August 10, 2004, the trial court denied defendant’s motion to suppress evidence and found probable cause. Trial in this matter was continued on numerous occasions either by the court, the State, or by joint motion of the State and the defense. Shortly after the last continuance, Hurricane Katrina struck the Gulf Coast.

On August 9, 2006, the defendant appeared for a status conference, and trial was set for November 19, 2006. On that date, the defendant filed a motion to quash the bill of information on the basis of La.C.Cr.P. art. 578, arguing that more than two years had elapsed since the bill of information was filed. After hearing argument, the trial court granted the motion to quash. This appeal followed.

|aThe following docket entries are reflected in the record:

3/23/04 Bill of information filed.
4/5/04 Arraignment held; motions filed.
5/06/04 Hearing on motions reset by court.
6/17/04 Hearing on motions reset by court.
8/10/04 Preliminary Hearing and Motion to Suppress Evidence held. Court found probable cause and denied the motion to suppress.
8/25/04 Tidal reset by court due to trial in progress.
10/06/04 Tidal reset by court due to trial in progress.
11/30/04 Trial continued on State’s motion.
1/25/05 Trial continued on joint motion of the State and the defendant.
3/22/05 Trial continued on State’s motion.
5/17/05 Trial reset by court.
7/26/05 Trial reset by court.
8/23/05 Trial continued on joint motion of the State and the defendant until 9/8/05.
7/21/06 Set Sheet filed by State.
8/09/06 Status Hearing; trial set for 9/19/06.
9/19/06 Defendant filed motion to quash which the trial court granted.

The trial court granted Mr. Brazile’s motion to quash on the grounds that the two-year limitation period of La.C.Cr.P. art. 578(2) had elapsed. The sole issue to be determined by this Court is whether the State violated the statutory requirement imposed by article 578(2). Article 578(2) states that no trial shall be commenced after two years from the date of institution of prosecution.

The bill of information in this case was filed on March 23, 2004 and the motion to quash was granted in September 2006, clearly more than two-years later. It is well established that, when a defendant moves to quash the charges against him due to a violation of Article 578, the State “bears a heavy burden to demonstrate either an interruption or a suspension of the time limit such that | ^prescription will not have tolled.” State v. Rome, 93-1221, p. 3 (La.1/14/94), 630 So.2d 1284, 1286 (citations omitted).

The State argued that based on the provisions of La.C.Cr.P. art. 580 there were numerous periods of time that constituted a suspension of time for the running of the two-year period. Article 580 provides that the period of limitation established by article 578 is suspended when a defendant files a motion to quash or other preliminary plea, “but in no case shall the State have less than one year after the ruling to commence the trial.”

Preliminary pleas that suspend the running of the prescriptive period under article 580 include motions to suppress evidence, motions for preliminary hearing, motions for continuance filed by defendant, and joint motions for continuance. See, State v. Fish, 2005-1929 (La.4/17/06), 926 So.2d 493; State v. Woodard, 35,202 (La. App. 2 Cir. 10/31/01), 799 So.2d 701; State v. Parker, 1999-1446 (La.App. 4 Cir. 3/22/00), 757 So.2d 893; State v. Brent, 2000-0072 (La.App. 4 Cir. 11/29/00), 775 So.2d 565; State v. Fabacher, 362 So.2d 555 (La.1978); State v. Cranmer, 306 So.2d 698 (La.1975). Arguably, during various time periods of this case the running of prescription was suspended, extending the date for which trial must commence.

As the trial court pointed out at the hearing on the motion to quash, those time delays are often misconstrued given the fact that it is the State who has control of the rescheduling of the matter. As such, a continuance by the court due to a trial in progress will give the State a suspension until it resets the matter on the court’s docket. Under those circumstances, the State has the ability to manipulate the prescriptive period in which to bring the case to trial. Although the trial court discussed this in his reasons for granting the motion to quash, the issue is not an [¿issue for this court but one that should be addressed by the Legislature, b This court is bound by the statutes as presently written and thus must determine what, if any, suspension and/or prescription occurred, whether through continuances, motions or the effects of Hurricane Katrina.

Given the language in La.C.Cr.P. art. 579, we find it unnecessary to piece together periods of suspension as provided by article 580. Article 579 provides that the period of limitation set forth in article 578 shall be interrupted if “the defendant cannot be tried because of ... any ... cause beyond the control of the state.” Under La.C.Cr.P. art. 579(B) “periods of limitation established by Article 578 shall commence to run anew from the date the cause of interruption no longer exists.” As noted in State v. Rome, 93-1221, p. 4, 630 So.2d at 1287: “An interruption of prescription occurs when the state is unable, through no fault of its own, to try a defendant within the period specified by statute.”

This Court acknowledges that the State was prevented from trying Mr. Brazile on September 19, 2005 and for some time thereafter while the court was not in operation due to Hurricane Katrina. An application of article 579 allows for the two-year limitation period imposed by article 578 to commence anew once the causes preventing the State from trying the defendant were removed and the court reconvened. This court need not determine exactly when this occurred as the motion to quash was granted after only a little more than one year had elapsed since Hurricane Katrina struck the Gulf Coast. At that point, the State still had at least a year in which to commence trial. Although the renewal of the entire two-year period could be construed as extremely prejudicial to the defendant, the constitutionality of article 579 was not raised in this matter and therefore is not currently before this court. As a court of review, we are restricted by the contents | sof the record. Thus, this Court must determine that the trial court erred in granting defendant’s motion to quash

Accordingly the trial court’s granting of the motion to quash is hereby reversed and the matter is remanded for further proceedings.

REVERSED AND REMANDED.