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

text:
    Ronnie M. LAMARQUE v. BARBARA ENTERPRISES, INC.
    No. 2006-CA-1422.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 25, 2007.
    Roy M. D’Aquila, Ronald J. Vega, Natalie R. Segura, D’Aquila, Volk, Mullins and Contreras, APLC, Kenner, LA, for Plaintiff/Appellant.
    Daniel R. Martiny, Martiny & Associates, LLC, Metairie, LA, for Defendant/Appellee.
    (Court Composed of Judge JAMES F. McKAY III, Judge MAX N. TOBIAS, JR., and Judge ROLAND L. BELSOME).
   MAX N. TOBIAS, JR., Judge.

I,This suit arises from as a contract dispute between Ronald M. Lamarque (“Lamarque”) and Barbara Enterprises, Inc. (“BEI”). BEI was retained by Lam-arque to do extensive renovations to his home in New Orleans.

The contract between Lamarque and BEI was confected on or about 24 May 2000. The contract provided for extensive renovations to Lamarque’s home to be completed within one calendar year. The contract was for $2,685,000 and provided that progress payments would be made by Lamarque to BEI in response to applications for payment made by BEI to the architect supervising the project, Charles Ward (“Ward”). The contract, a standard form contract of the American Institute of Architects (“ALA”), also contained a provision pertaining to mediation and arbitration of disputes between the parties to the contract. Specifically, Articles 4.5 and 4.6 of the contract provide as follows:

4.5 MEDIATION
3.4.1 Any Claim arising out of or related to the Contract, except Claims relating to aesthetic effect and except those waived as provided for in Sub-paragraphs 4.3.10, 9.10.4 and 9.10.5 shall, after initial decision by the Architect or 30 days after submission of the Claim to the Architect, be ^subject to mediation as a condition precedent to arbitration or the institution of legal or equitable proceedings by either party.
4.6 ARBITRATION
4.6.1 Any Claim arising out of or related to the Contract, except Claims relating to aesthetic effect and except those waived as provided for in Sub-paragraphs 4.3.10, 9.10.4 and 9.10.5, shall, after decision by the Architect or 30 days after submission of the Claim to the Architect, be subject to arbitration. Prior to arbitration, the parties shall endeavor to resolve disputes by mediation in accordance with the provisions of Paragraph 4.5.

(Emphasis in original.) It is undisputed that during the summer of 2002, Lam-arque was unhappy with the progress of the renovation project on his home. He mailed a “Notification of Breach and Termination for Cause” dated 19 August 2002 to Tara O’Meallie (“O’Meallie”), the owner of BEI, advising that BEI had breached the contract in a number of ways, including failing to perform the work in a workmanlike manner, using substandard materials, failing to properly supervise the work being done, failing to submit documentation of contracts with subcontractors, and failing to provide an accounting to Lamarque and Ward.

Lamarque filed suit in Civil District Court against BEI on 22 August 2002, alleging that BEI performed the renovations in a substandard fashion and did not have the appropriate expertise to perform the work in a proper and workmanlike manner. Lamarque further alleged that BEI was grossly negligent in performing lathe renovations, and specifically alleged that BEI committed fraud. In particular, Lamarque alleged that BEI used substandard materials in its renovation work and refused to provide documentation as to the type and quality of materials used; failed to properly supervise its employees and subcontractors; failed to complete the work in a workmanlike manner; failed to provide Lamarque or Ward documentation of amounts paid to its subcontractors and employees; failed to provide documentation of amounts expended in the renovation; failed to support payment applications with data substantiating the right to payment; failed to provide an explanation of how BEI formulated the percentages of completion in various payment requests; and failed to furnish new and good quality materials for the renovation process.

Lamarque also alleged that BEI committed fraud by requesting that subcontractors submit billings for work not yet performed. He alleged that as a consequence, he paid for work not yet performed and/or materials not yet purchased. He prayed for rescission of the contract with BEI, attorneys’ fees, and damages for having to repair substandard work performed with substandard materials.

On 24 September 2002, BEI asserted a dilatory exception of prematurity on the grounds that the contract in question contained clauses mandating mediation and arbitration. On 8 November 2002, in response to the supplemental and amending petition for damages, another exception prematurity was filed on behalf of O’Meal-lie, incorporating by reference the previously-field exception of BEL By i_jjijudgment signed 11 March 2003, the trial court overruled the exceptions of prematurity. BEI and O’Meallie applied to this court for a supervisory writ on the denial of the exceptions, and we declined to grant the writ on the grounds that the trial court indicated that it would determine whether the contract was valid following discovery, and then would make a determination regarding the arbitration clause.

BEI and O’Meallie filed an answer to the petition for damages as well as a re-conventional demand against Lamarque. The reconventional demand alleged wrongful termination of the contract, alleging that BEI was not given any opportunity to cure any asserted deficiencies in its performance as required by the terms of the contract. BEI and O’Meallie also asserted a claim for lost profit and amounts still owing on the contract.

BEI and O’Meallie filed a motion for partial summary judgment and re-urged the exception of prematurity on 26 July 2005. The motion for partial summary judgment asserted that no genuine issue of material fact existed as to whether Lam-arque was fraudulently induced into entering into the AIA contract. Because the allegations of fraud were the grounds on which Lamarque moved to have the contract voided ab initio, the exception of prematurity was re-urged on the grounds that absent a finding of fraud, Lamarque was bound by the arbitration clause in the contract and his petition for damages was premature. Lamarque opposed the motion and exception on the grounds that genuine issues of material fact were present as to representations made to him by O’Meallie as to the | ¡/‘expertise, knowledge, and skill” of BEI and that these misrepresentations constituted fraud. The motion and exception were heard on 10 March 2006.

Following the hearing, the trial court granted the partial summary judgment in favor of BEI and O’Meallie, finding that no issue of material fact existed as to whether Lamarque was fraudulently induced to enter into the AIA contract. Further, the trial court sustained the exception of prematurity and stayed the case pending the outcome of arbitration proceedings. Lam-arque filed a motion for new trial, which was heard on 5 May 2006. By judgment dated 30 May 2006, the trial court denied the motion for new trial as to BEI, but granted the motion for new trial with respect to those claims brought by and against O’Meallie, insofar as he was found to not be a party to the arbitration agreement.

Lamarque appealed the judgment of the trial court, assigning two errors. First, Lamarque asserts the trial court erred by granting the motion for partial summary judgment and in sustaining the exception of prematurity, which stayed the proceedings against BEI pending the outcome of arbitration. Second, Lamarque asserted that the ruling of the trial court prevented him from introducing evidence as to fraud and whether or not he was fraudulently induced into entering into the AIA contract.

As an appellate court, we are bound to review a summary judgment de novo under the same criteria that governed the district court’s consideration of whether summary judgment was appropriate. Schroeder v. Board of Supervisors of Louisiana State Univ., 591 So.2d 342, 345 (La.1991). A motion for summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue of material fact, and the mover is entitled to judgment as a ^matter of law. La. C.C.P. art. 966. A motion for partial summary judgment may be granted when no genuine issue of material fact exists as to a particular issue, theory, cause of action, or defense; however, a partial summary judgment does not dispose of the case in its entirety. La. C.C.P. art. 966(E). The summary judgment procedure is favored and designed to secure the just, speedy, and inexpensive determination of every action and shall be construed to accomplish these ends. La. C.C.P. art. 966(A)(2).

The issue on which the partial summary judgment was sought was that of fraud. Fraud is “a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other.” La. C.C. art.1953. Fraud must be proved by a preponderance of the evidence, although it may be proved with circumstantial evidence. La. C.C. art.1957.

In the present matter, BEI and O’Meallie submitted the deposition of Lamarque in support of its motion. Lam-arque testified that he approached his interior designer, Joe Morrow, about renovating his home. Morrow recommended an architect for the project, Charles Ward. Ward was charged-with lining up contractors for the project, and he recommended BEL Lamarque had no knowledge of BEI prior to Ward’s recommendation, and he did not recall asking for references. Further, he was not aware of the selection criteria utilized by Ward, and did not know how many bids were placed on the project.

Lamarque admitted that at no time pri- or to the signing of the contract did O’Meallie represent to him that he had done renovation work of the scope and magnitude of his renovation project. Further, he did not recall that O’Meallie had ever told him that he had done similar work in the past. He first became aware that 17perhaps BEI was not up to the job when his barber advised him that O’Meal-lie had a questionable track record in construction and that BEI’s specialty was concrete and not home building. Nevertheless, the renovation project went forward.

In opposition to the motion for partial summary judgment, Lamarque submitted a letter dated 10 April 2000, in which O’Meallie told Lamarque that he was pleased to have been approached by Ward with the plans for the renovation and was excited to bid on the project. He goes on to say that he “almost found the project overwhelming” but that Ward “was able to calm [him] down.” He acknowledged the scope of the project, and advised Lam-arque that it would be the largest project BEI would work on for that year. He closed stating that he believed that BEI had “the incentive and drive to make this project a huge success for all parties involved.”

We agree with BEI and O’Meallie, however, that the letter is not a material misrepresentation of BEI’s expertise and capabilities. In fact, the letter suggests that this renovation project is larger than BEI is accustomed to handling; O’Meallie remarks at the size of the project and cost involved and even intimates that he was almost dissuaded from bidding on the project. Further, he notes that he was approached to submit a bid by Ward, who had been retained by Lamarque to oversee the project and to select the contractors to perform the work. The letter relied upon by Lamarque to show fraud instead is full of clues to Lamarque that O’Meallie and BEI might not be seasoned in home renovations or construction of the scope and magnitude for Lamarque’s project.

Therefore, the evidence put forth by the parties in support of and in opposition to the motion for partial summary judgment preponderates to show that no genuine issue of material fact exists as to whether O’Meallie fraudulently | sinduced Lamarque into signing the contract. As such, we find that the AIA contract is a binding contract and that the arbitration clause contained within is a valid contract term.

Next, we address the dilatory exception of prematurity lodged by BEI and O’Meallie. The only ground for this exception is that the contract required that the parties arbitrate their disputes prior to filing suit in a court of law. If the parties are required to submit this dispute to arbitration, then the exception was properly sustained.

Arbitration is favored in Louisiana. Louisiana Revised Statute 9:4201 provides:

A provision in any written contract to settle by arbitration a controversy thereafter arising out of the contract, or out of the refusal to perform the whole or any part thereof, or an agreement in writing between two or more persons to submit to arbitration any controversy existing between them at the time of the agreement is to submit, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.

Lamarque has attempted to have the contract invalidated on the grounds that error vitiated his consent to the terms of the contract. However, as discussed supra, we are not persuaded.

Lamarque has also asserted as an argument against enforcement of the arbitration agreement that it was not contained in the actual contract that he signed. Instead, it was only incorporated by reference. Therefore, Lamarque contends that he did not agree to the arbitration provision as a term of the contract. Louisiana courts have held that no requirement exists that an arbitration clause be contained in a single document in order to be part of a contract, but can instead be incorporated by reference. Dufrene v. HBOS Mfg., 03-2201, p. 5-6 (La.App. 4 Cir. 5/28/04), 872 So.2d 1206, 1210-11. The arbitration clause need only have a “reasonably clear and ascertainable meaning.” Dufrene, p. 5, 872 So.2d at 1211, quoting, Woodson Const. Co. v. R.L. Abshire Constr. Co., 459 So.2d 566, 569 (La.App. 3rd Cir.1984). Further, a party is deemed to know the contents of a written instrument he signed and cannot avoid his or her obligations by claiming he or she did not read it or was not aware of its contents. Aguillard v. Auction Management Corp., 04-2804, p. 22 (La.6/29/05), 908 So.2d 1, 17. Further, if a party is not aware of the contents of the instrument he or she signed, he or she must establish “with reasonable certainty that [he or she has] been deceived.” Id. at p. 23, quoting, Tweedel v. Brasseaux, 433 So.2d 133, 137 (La.1983).

In the present matter, insufficient evidence is put forth by Lamarque to show that he was deceived by O’Meallie or that BEI or O’Meallie committed fraud. While Lamarque argues that he deserves the opportunity to have this issue tried on the merits, he did not carry his burden in opposing the motion for partial summary judgment, even after discovery that had been ongoing. To suggest that he might prevail at a full trial is unsubstantiated.

For the foregoing reasons, we affirm the judgment of the trial court.

AFFIRMED.

BELSOME, J., Concurs in the Result.

      . The contract was apparently re-confected in May 2001 to provide an extension of the term of the renovation.

      . Subsequently, on 13 September 2002, Lam-arque amended his petition for damages to include a cause of action against O’Meallie, alleging that O’Meallie colluded with BEI in its allegedly fraudulent behavior.

      . See, Lamarque v. Barbara Enterprises, Inc., 03-0575, unpub. (La.App. 4 Cir. 3/26/03), writ denied, 03-1001 (La.4/9/03), 840 So.2d 1222.


source: Caselaw Access Project

author: Chief Judge JOAN BERNARD ARMSTRONG.

license: Public Domain

text:
    STATE of Louisiana v. Benyale DAVIS.
    No. 2006-KA-1330.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 25, 2007.

      Eddie J. Jordan, Jr., District Attorney, Alyson Graugnard, Assistant District Attorney, New Orleans, LA, for Plaintiff/Ap-pellee.
    Laura Pavy, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY and Judge MICHAEL E. KIRBY).
   Chief Judge JOAN BERNARD ARMSTRONG.

STATEMENT OF CASE

The defendant, Benyale L. Davis, was charged by bill of information on May 13, 2004, with one count of violating La. R.S. 40:967(B)(1), possession with intent to distribute crack cocaine. On May 21, 2004, he pled not guilty. On June 15, 2004, the trial court denied the defendant’s motion to suppress the evidence and found probable cause.

A jury trial was held on June 15, 2005 and the defendant was found guilty as charged.

On January 30, 2006, the defendant was found guilty as a two-time offender. Accordingly, he was sentenced as a multiple offender to serve thirty years at hard labor in the custody of the Department of Corrections. The minute entry notes that the first two years of the defendant’s sentence are to be served without benefits. The defendant’s counsel immediately filed a motion to reconsider sentence, which the trial court denied. The defendant filed a motion for appeal on January 30, 2006. On February 14, 2006, the trial court amended the defendant’s sentence to thirty years at hard labor in the custody of the Department of Corrections without benefit of probation, parole, or suspension.

\ STATEMENT OF FACT

Officer Octavia Baldassaro, Jr. testified that on the night of November 29, 2003, he was assigned to the special operations division and was working with Officer Ronny Stevens, his partner. Officer Baldassaro further testified that he recalled arresting the defendant and described the events at length. Specifically, Officer Baldassaro stated that he and his partner were on patrol in their police vehicle, traveling lake bound on Bienville Street. Officer Baldas-saro testified that the reason he and Officer Stevens were on patrol in this area was because of an increase in crime associated with narcotics trafficking. As for the defendant, Officer Baldassaro testified that he and his partner first observed Davis when their police vehicle was approximately thirty feet away from Bienville’s intersection with North Gayoso Street. In particular, Officer Baldassaro testified that he witnessed a gray four-door vehicle disregard the stop sign at the intersection of Bienville and North Gayoso streets and turn right onto Bienville Street.

Officer Baldassaro stated that he and his partner decided to initiate a traffic stop. Accordingly, Officer Stevens activated the car’s lights and sirens. However, the driver of the gray vehicle, later identified as the defendant, kept driving for two blocks before he pulled over in the 3300 block of Bienville Street. Officer Baldassaro testified that after the gray vehicle pulled over he and Officer Stevens exited their vehicle. Officer Stevens then approached the driver’s side of the gray vehicle while Officer Baldassaro approached the passenger side. Officer Baldassaro testified at trial that as he approached the vehicle he noticed the defendant leaning forward towards the vehicle’s steering wheel and looking over his left shoulder at Officer Stevens. Officer Baldassaro also noticed that there was a passenger in the vehicle, later identified as Ms. O’Dwyer Fluker. Officer ^Baldassaro then heard Officer Stevens ask the defendant to get out of the vehicle. As the defendant was stepping out of the vehicle, Officer Baldassaro opened the passenger side door and observed what he thought was a piece of crack cocaine sitting on the driver’s seat. Officer Baldassaro then ordered Ms. Fluker to place her hands on the vehicle’s dashboard while he walked around to the driver’s side of the vehicle. Officer Stevens then asked Officer Baldas-saro to examine the area around the vehicle’s steering wheel where he had observed the defendant leaning. Officer Baldassaro stated that as he looked into the vehicle he could see that the dashboard was composed of two pieces and that the lower half was loose and hanging down. He looked into the gap between the two sections of dashboard and noticed a plastic bag. Officer Baldassaro removed the bag and saw that it contained numerous pieces of what he believed to be crack cocaine. The State introduced the plastic bag and its contents into evidence at trial as State’s exhibit 1.

Officer Baldassaro then told Officer Stevens about his discovery, and Officer Stevens then handcuffed defendant and advised him of his rights and the reason for his arrest. Officer Baldassaro testified that he then went back to the passenger side of the vehicle and asked Ms. Fluker to step out of the car and sit on the curb. Officer Baldassaro then entered the vehicle’s glove box to retrieve the registration and insurance papers. However, Officer Baldassaro found one thousand dollars in U.S. currency stashed in the glove box. The State introduced the currency found inside the glove compartment as State’s exhibit 2. Moreover, Office Baldassaro also noted that Officer Stevens found six hundred and seven dollars in U.S. currency on defendant’s person. Further, Officer Bal-dassaro stated that he issued citations to the defendant for disregarding a stop sign and driving on a suspended license. The State introduced the citations as State’s exhibit 3. | ¿Additionally, Officer Baldassa-ro testified that because of the amount of drugs found in the defendant’s vehicle he and Officer Stevens decided to ask for a K-9 unit to come out and search the vehicle. Officer Baldassaro stated that the K-9 unit found no additional narcotics in the vehicle. Finally, Officer Baldassaro testified that the defendant was transported to lockup after the K-9 unit’s fruitless search.

The State also called Officer Ronny Stevens as a witness at trial. Officer Stevens testified that at the time of the defendant’s arrest he was assigned to Special Operations and partnered with Officer Baldassa-ro. Officer Stevens testified that he recalled arresting the defendant in the 3300 block of Bienville Street on the night of November 29, 2003. Specifically, Officer Stevens testified that he and Officer Bal-dassaro were patrolling in their marked police unit and traveling in a lake-bound direction on Bienville Street. Stevens further stated that as they approached Bien-ville’s intersection with North Gayoso Street they noticed a four door gray vehicle disregard a stop sign and turn off of North Gayoso onto Bienville directly in front of their police unit. Officer Stevens testified that they turned on the unit’s lights and sirens and pulled defendant’s vehicle over in the 3300 block of Bienville.

Officer Stevens stated that after the defendant’s car pulled over, he exited the police unit and approached the driver’s side of the defendant’s vehicle. Officer Stevens stated that as he reached the window he observed the driver leaning forward in the driver’s seat with his left hand reaching up underneath the dashboard towards the area near the vehicle’s gas and break pedals. Officer Stevens testified that based upon his experience he concluded that the defendant was attempting to conceal something underneath the dashboard. Accordingly, Officer Stevens ordered the defendant out of his vehicle at this time. Officer [5Stevens noted that Officer Baldassaro noticed what appeared to be crack cocaine inside the passenger compartment shortly after the defendant exited the vehicle. Immediately thereafter, Officer Stevens placed the defendant under arrest and conducted a pat down search of defendant’s person. Officer Stevens noted that the search turned up six hundred and seven dollars in U.S. currency. Officer Stevens stated that in addition to the currency found on defendant’s person, Officer Baldassaro also found one thousand dollars in U.S. currency inside the vehicle’s glove compartment.

The State also called John Frederick Palm, a criminalist with the New Orleans Police Department, to testify at trial. The State tendered Officer Palm as an expert in the analysis and identification of narcotics, and the defense stipulated to Officer Palm’s expertise. Officer Palm first identified State’s Exhibit five as the crime lab report he prepared in connection with this case. Further, Officer Palm identified State’s Exhibit one as the evidence analyzed in connection with his report. Officer Palm explained that in connection with the present case he was given one loose rock like substance and one plastic bag containing fourteen smaller plastic bags, each holding a rock like substance, as well as an additional plastic bag containing four smaller plastic bags containing rock like substances. Officer Palm testified that each of the rock like substances tested positive for cocaine.

Finally, the defendant called Ms. O’Dwyer Fluker to testify as a witness in his defense. Ms. Fluker testified that at the time of the incident she and the defendant were dating. Specifically, Ms. Fluker stated that she drove her car to meet the defendant, who was in his vehicle, on North Miro between Bienville and Iber-ville streets. After meeting the defendant, Fluker then got into the defendant’s car, and the two decided to take a drive out towards the lake. After turning onto | f;Bienville, Fluker and the defendant pulled over onto Bienville to speak with a friend of the defendant’s. Fluker stated that after speaking with the friend they again pulled out onto Bienville and were pulled over by the police within seconds. Fluker stated that the officers then approached the defendant’s vehicle and ordered her and Fluker to exit the vehicle. Fluker testified that the officers allowed her to sit on the curb while they patted the defendant down. Fluker then noted that after finding cash on the defendant, the officers began to pepper the defendant with questions as to the origin of the cash. According to Fluker, the defendant stated that he earned the money from washing cars. However, Fluker noted that the police would not accept the defendant’s explanation and continued to question the defendant.

Fluker noted that at this point the defendant became physically ill and vomited. Fluker stated that the officers then searched her but found nothing. Further, Fluker testified that the officers then started to search the defendant’s vehicle. Fluker stated that after a while she heard one of the officers ask the defendant about a rock of crack cocaine on the passenger seat. Fluker noted that later one of the officers came out of the vehicle with something in his hand. Fluker testified that at no time while she was in the defendant’s vehicle did she see any cocaine inside the vehicle. Moreover, Fluker testified that she never witnessed a broken dashboard or defendant trying to hide some item underneath the dashboard. On cross-examination, Fluker admitted that'she did not know whether defendant had crack cocaine in the vehicle. Rather, Fluker clarified her testimony by stating that if the defendant had crack cocaine in the vehicle it was not visible to her. After Fluker left the stand, both sides rested their respective cases. Further, after closing arguments, jury instructions, and deliberation, the jury returned with a |7verdict finding the defendant guilty of possession of narcotics with an intent to distribute.

ERRORS PATENT

A review of the record reveals no errors patent.

ASSIGNMENT OF ERROR NUMBER 1

In his sole assignment of error, the defendant contends that the evidence was insufficient to prove beyond a reasonable doubt that he possessed cocaine with the intent to distribute. Essentially, the defendant argues that no evidence was presented to support the conclusion that the nineteen rocks of cocaine were inconsistent with personal use or that the defendant distributed or attempted to distribute the cocaine.

In evaluating whether evidence is constitutionally sufficient to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Green, 588 So.2d 757 (La.App. 4th Cir. 1991). However, the reviewing court may not disregard this duty simply because the record contains evidence that tends to support each fact necessary to constitute the crime. State v. Mussall, 523 So.2d 1305 (La.1988). The reviewing court is not permitted to consider just the evidence most favorable to the prosecution but must consider the record as a whole since that is what a rational trier of fact would do. If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier’s view of all the evidence most favorable to the prosecution must be adopted. The fact finder’s discretion will be [simpinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. Mussall, Id.; Green, Id. “[A] reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence.” State v. Smith, 600 So.2d 1319, 1324 (La.1992).

In addition, when circumstantial evidence forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Shapiro, 431 So.2d 372 (La.1982). The elements must be proven such that every reasonable hypothesis of innocence is excluded. La. R.S. 15:438. This is not a separate test from Jackson v. Virginia, but rather is an evidentiary guideline to facilitate appellate review of whether a rational juror could have found a defendant guilty beyond a reasonable doubt. State v. Wright, 445 So.2d 1198 (La.1984). All evidence, direct and circumstantial, must meet the Jackson reasonable doubt standard. State v. Jacobs, 504 So.2d 817 (La.1987).

Defendant was convicted of violating Louisiana Revised Statute 40:967. This statute requires that the state prove that defendant “knowingly” or “intentionally” possessed the cocaine “with intent to distribute.” Specific intent to distribute may be established by proving circumstances surrounding defendant’s possession which give rise to a reasonable inference of intent to distribute. State v. Dickerson, 538 So.2d 1063 (La.App. 4th Cir.1989). In State v. Hearold, 603 So.2d 731 (La.1992), the Supreme Court stated:

Intent is a condition of mind which is usually proved by evidence of circumstances from which intent may be | 9inferred. State v. Fuller, 414 So.2d 306 (La.1982); State v. Phillips, 412 So.2d 1061 (La.1982); La.Rev.Stat. 15:445. In State v. House, 325 So.2d 222 (La.1975), this court discussed certain factors which are useful in determining whether circumstantial evidence is sufficient to prove the intent to distribute a controlled dangerous substance. These factors include (1) whether the defendant ever distributed or attempted to distribute the drug; (2) whether the drug was in a form usually associated with possession for distribution to others; (3) whether the amount of drug created an inference of an intent to distribute; (4) whether expert or other testimony established that the amount of drug found in the defendant’s possession is inconsistent with personal use only; and (5) whether there was any paraphernalia, such as baggies or scales, evidencing an intent to distribute.

Hearold, 603 So.2d at 735-736.

In State v. Cushenberry, 94-1206, p. (La.App. 4 Cir. 1/31/95), 650 So.2d 783, 786, this Court explained Hearold:

In affirming defendant’s conviction, we first note that the Court in Hearold refers to the factors enunciated as “useful” in determining whether circumstantial evidence is sufficient to prove intent to distribute. We do not interpret the holding in Hearold to require that the evidence fall squarely within the factors enunciated to be sufficient for the jury to find the requisite intent to distribute.

Common sense would tell a juror that the presence of the unusually large amount of cash in the defendant’s car and on the person of the defendant, along with the loose rock of crack cocaine and the eighteen individually wrapped plastic bags each containing a rock of crack cocaine within the defendant’s vehicle were indicated of an intent to distribute. Jurors are routinely charged to use reason and common sense in order to infer material facts from circumstantial evidence. For example, see State v. Smith, 1998-0366, at p. 6 (La.App. 4 Cir. 5/12/99), 744 So.2d 73, 80, wherein this Court noted that a jury could use reason and common sense to infer the constructive possession of a firearm through other facts in |inevidence. In State v. Jack, 97-351, p. 3 (La.App. 3 Cir. 10/8/97), 700 So.2d 1177, 1178, cited by the defendant, the court said:

No direct evidence exists to prove the requisite specific intent to distribute marijuana; thus, circumstantial evidence, consisting of inferential reasoning, can support the element of specific intent beyond a reasonable doubt. State v. Broussard, 560 So.2d 694 (La.App. 3 Cir.), writ denied, 566 So.2d 981 (La.1990). This circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Starr, 28-934 (La.App. 2 Cir. 12/11/96); 685 So.2d 424.

Although the court in Jack, supra, did not find sufficient circumstantial evidence to support a finding beyond a reasonable doubt of the intent to distribute, the facts tending to show intent in Jack were not nearly as strong as those in the instant case. In Jack, the defendant was found in possession of only ten small bags of marijuana wrapped in one larger bag. There is no mention in Jack of the defendant being found in possession of any sum of money, nor is there any mention of the defendant being arrested in an area known for drug trafficking.

The next case cited by the defendant on this issue was State v. Green, 524 So.2d 927 (La.App. 2 Cir.1988). In Green, the defendant was found to be in possession of one or two bags containing hand rolled marijuana cigarettes along with some loose marijuana, totaling approximately one-third ounce of marijuana. There was no mention of the defendant being found in possession of any sum of cash.

Finally, the defendant cited State v. Robertson, 95-0645 (La.App. 1 Cir. 04/04/96), 672 So.2d 391. In Robertson, the defendant was found in possession of five to eight grams of crack cocaine. However, the court found it significant that the rocks of crack cocaine were all in one bag and that there were no “weapons or Inlarge sums of cash, items commonly seized in drug distribution arrests ...” Id., 95-0645, p. 7, 672 So.2d at 396.

Contrasted with the foregoing cases from other circuits cited by the defendant are a number of cases from this circuit supporting the result reached by the trial court in the instant case. In State v. Bentley, 1997-1552 (La.App. 4 Cir. 10/21/98), 728 So.2d 405, the police observed the defendant acting suspiciously in an area of high narcotics trafficking. Before the police officers could stop and question the defendant, they observed him insert something in his mouth. After they stopped the defendant, the officers observed several white rock-like items, which were individually wrapped in plastic bags, inside the defendant’s mouth. After he was restrained and placed in the back seat of the police car, the defendant spit out the contents of his mouth. Further analysis showed that the defendant had thirty-four individually wrapped rocks of crack cocaine in his mouth at the time of his arrest. On appeal, the defendant challenged his conviction for possession with intent to distribute narcotics. This Court upheld the defendant’s conviction and held that the jury’s verdict was supported by the thirty-four individually wrapped rocks of crack cocaine found on defendant’s person and the fact that he was observed by the police standing in an area known to contain a significant amount of narcotics trafficking.

In State v. Ash, 1997-2061 (La.App. 4 Cir. 2/10/99), 729 So.2d 664, several police officers were on patrol when they witnessed the defendant standing on a street corner holding his hand out to an unnamed female. When the defendant spotted the police vehicle, he walked away. Shortly thereafter, the police observed the defendant sitting on the front steps of a nearby house. When the officers [^stopped the police vehicle, the defendant began to run and the police officers followed on foot. Towards the end of the chase, the police witnessed defendant throw down two bags that were later shown to contain twenty-one rocks of crack cocaine and eighteen smaller bags of powdered cocaine. However, after stopping and searching the defendant the police officers found a mere thirty-six dollars on defendant’s person. The jury found the defendant guilty of possession with intent to distribute narcotics. On appeal, the defendant challenged his conviction. This Court affirmed, stating:

In the present case expert testimony was unnecessary to establish that the substantial amount of cocaine found in Ash’s possession was inconsistent with personal use ... The state provided evidence of the substantial amount of cocaine found (twenty-one rocks of crack and eighteen bags of powder cocaine). The weight of the evidence is within the fact finder’s discretion. We defer to the jury’s determination that the amount of cocaine indicates an intent to distribute. We find no error in the jury’s finding that the quantity was enough to support the intent to distribute, and therefore, this assignment has no merit.

Ash, 1997-2061, at p. 8, 729 So.2d at 669.

State v. Mamon, 1998-1943 (La.App. 4 Cir. 9/8/99), 743 So.2d 766, is not applicable to the facts of the instant case. In Ma-món, the police were on patrol when they noticed the defendant standing outside a grocery store. When the defendant noticed the police he turned to walk into the grocery store and threw something down onto the ground before entering the store. Subsequent investigation revealed that the defendant had discarded a clear plastic bag containing fifteen smaller bags of marijuana. A jury found defendant guilty of possession with intent to distribute narcotics. This Court reversed, noting: “Thus, the State did not produce any expert testimony on quantity and/or packaging of marijuana for retail sales. Similarly, it produced no evidence on the consistency of | isthe amount possessed with strictly personal use.” Mamon, 98-1943, at p. 7, 743 So.2d at 771. However, in Mamon the defendant was found to be in possession of only thirteen dollars in cash, a sum, this Court noted, too small to make change in a narcotics transaction — in stark contrast to the $1607.00 the defendant in the instant case had with him. In Mamón, this Court noted that “[t]he possession of large sums of cash may also be considered circumstantial evidence,” citing State v. Jordan, 489 So.2d 994 (La.App. 1 Cir.1986). Mamon, 98-1943, p. 7, 743 So.2d at 770.

Moreover, in the instant case there was testimony by the arresting officers that they were on patrol in the area because of the increased incidence of narcotics activity. In Mamon, this Court in citing State v. Myre, 502 So.2d 1105 (La.App. 4 Cir. 1987), found this factor, a factor apparently lacking in Mamon, to be significant. Mamon, 98-1943, p. 7, 743 So.2d at 771.

Thus, in the instant case, in addition to the amount of the drugs found in the defendant’s possession, the jury could consider two factors not available to the jury in Mamón: namely the large amount of cash in the defendant’s possession and the high incidence of narcotics trafficking in the area.

The jury apparently concluded that the foregoing factors supported a finding that the defendant was in possession of the narcotics with an intent to distribute, a conclusion based on reasonable, common sense inferences within the province of the jury.

For the foregoing reasons, the defendant’s conviction and sentence are affirmed.

CONVICTION AND SENTENCE AFFIRMED.

      . Emphasis added.


author: DAVID S. GORBATY, Judge.

text:
    Melba Margaret Schwegmann BROWN v. John F. SCHWEGMANN and Melinda B. Schwegmann.
    No. 2005-CA-0830.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 25, 2007.

      Kyle Schonekas, Marc D. Winsberg, Andrea V. Timpa, Schonekas, Winsberg, Evans & McGoey, L.L.C., New Orleans, LA, for Plaintiff/Appellee.
    Richard H. Barker IV, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge CHARLES R. JONES, Judge MICHAEL E. KIRBY, Judge DAVID S. GORBATY).
   DAVID S. GORBATY, Judge.

111n this appeal, John Schwegmann contends that the trial court erred in awarding plaintiff money damages. For the reasons set forth below, we affirm.

FACTS AND PROCEDURAL HISTORY

Melba Brown and John Schwegmann are siblings. Their father established trusts for their benefit and the benefit of their brother in 1962. Initially, there were five trustees, who invested the trust’s asset into Schwegmann Giant Super Markets, Inc. (“Schwegmann corporation”), acquiring seventeen shares of stock.

John Schwegmann became trustee of Brown’s trust in 1971. During the same time period, he purchased his ailing father’s interest in the family business, including Schwegmann Giant Super Markets (“Schwegmann partnership”) and Schweg-mann corporation. John Schwegmann became CEO and majority stockholder of the family business. He remained trustee of his sister’s trust after assuming control and majority ownership of the Schweg-mann corporation in which Lthe trust was invested. In 1980, defendant’s wife, Melinda Schwegmann, was appointed as trustee. By 1996, John and Melinda were the sole remaining trustees of Brown’s trust.

The matter was tried on April 8, 2002. The trial court found in favor of John and Melinda Schwegmann. Ms. Brown appealed to this court, in case number 2002-CA-1509. This court held that Mr. Schweg-mann breached his sister’s trust and remanded the case back to the trial court to render judgment on damages only. The trial court’s judgment as to Melinda was upheld. John applied for a rehearing, which this court denied. He further sought a supervisory writ from the Louisiana Supreme Court, which was also denied. See Brown v. Schwegmann, 2004-C-0425 (La.4/30/04), 872 So.2d 489. Accordingly, the issue of Schwegmann’s liability has been finally decided, and cannot be overturned or reconsidered here.

The two-day damages trial began on January 6, 2005. Schwegmann and Brown both testified at the damages trial, and each presented expert testimony. The trial court found the testimony of Brown’s expert, Howard Asher, to be credible, holding:

At trial, plaintiffs expert estimated that had the trust’s cash assets of gifts and dividends had [sic] diversified its holdings and invested in stocks, bonds, and U.S. Treasury Bills, the trust’s assets would have been $5,147,073.00. This court finds that the plaintiffs account-ings sufficiently take into account what a moderate investment of funds would have generated for Brown’s trust.

Accordingly, the trial court entered judgment in favor of Brown in the amount of $5,147,073.00, plus legal interest from date of judicial demand for “damages for loss or depreciation in value of the trust estate and profit that would | shave accrued to the trust estate if there had been no breach of trust. John Schwegmann subsequently filed this appeal.

John Schwegmann’s appeal brief failed to contain a specification or assignment of alleged errors. As such, this court issued a rule to show cause why the appeal should not be dismissed for failure to comply with Rule 2-12.4, Uniform Rules of Louisiana Courts of Appeal. Schwegmann responded to the Show Cause order by submitting a list of assigned errors. However, he failed to brief or explain them.

Although under the Uniform Rules of Court this court would be warranted in dismissing this appeal, we choose to accept it. We do not wish to dismiss the appeal due to the defect in the form of the appellant’s brief, which would result in irrevocable termination of John Schwegmann’s rights based upon procedural, rather than substantive, grounds. Therefore, we accept the list of assigned errors and their explanations, which can be found in the “Statement of Case and Proceedings Below” and “Factual Summary” sections of the original brief.

DISCUSSION

Schwegmann seeks a reversal or modification of the trial court’s judgment on the grounds that:

1. He is not responsible for the partnership’s inability to pay the sums owed to Brown’s trust.
2. Brown failed to prove that Schweg-mann was required to diversify the assets of her trust, rather than simply leave them invested in the partnership.
143. Any diversification of the trust assets should not have occurred before 1996.
4. The damage caused by non-diversification of the trust assets does not exceed $773,000.00.

Schwegmann’s first two arguments must be completely disregarded by this court. This court has already conclusively decided Schwegmann’s liability to Brown. Moreover, this court specifically found that Schwegmann’s decision to leave the trust assets invested solely in Schwegmann companies was imprudent and “seriously flawed” amounting to a breach of his fiduciary duties to Brown. Schwegmann sought reconsideration of those findings, which was denied, and his application for writs to the Louisiana Supreme Court was also denied. For Schwegmann to rehash these issues now violates res judicata and cannot be permitted. As such, only the third and fourth issues raised by Schwegmann, which relate to the calculation and amount of the damage award, are properly before this court.

Contrary to the assertions of Schwegmann, a de novo review of this matter is inappropriate. The only issue properly before this court on appeal is the amount of the damages assessed by the trial court. The trial court is afforded “great discretion in awarding damages, and its determination should not be disturbed unless clearly wrong.” Kostmayer Const., Inc. v. Sewerage and Water Bd. of New Orleans, 2005-CA-1184, p. 13 (La.App. 4 Cir. 10/28/06), 943 So.2d 1240, 1248, citing Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993).

| Jn his third assignment of error, Schwegmann argues that the trial court erred in awarding damages based upon the testimony and opinion of plaintiffs expert, Harold Asher, whose opinions were based upon calculations of a possible value of the trust if the assets had been divested from invested in the Schwegmann partnership long before 1996. Appellant now argues, for the first time, that Asher’s testimony at the damages trial was “incompetent and inadmissible” under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

Asher is a Certified Public Accountant, an SEC Registered Investment Adviser, a Certified Valuation Analyst, and a Certified Fraud Examiner. At the damages trial, the trial court admitted Asher as an expert in investment advising and economic loss without any objection by Schweg-mann.

Schwegmann now contends that Asher failed to consider Brown’s “other sources of and/or level of income and/or other asset holdings in her global portfolio.” According to Schwegmann, this perceived deficiency in Asher’s methodology makes his testimony inadmissible under Daubert. Id. Notably, Schwegmann failed to move for a Daubert hearing as to the admissibility of Asher’s testimony prior to the trial. Moreover, although Schwegmann’s counsel cross-examined Asher at length on both his qualifications and his opinions, he did not once voice an objection to Asher’s testimony under Daubert.

It is well settled in Louisiana that an objection to the admissibility of evidence is not preserved for appellate review unless a contemporaneous objection to the evidence is entered on the record at the trial or hearing. La. C.E. art. 103(A); Davis v. Kreutzer, 633 So.2d 796, 803 (La.App. 4 Cir.1994). Furthermore, when the objecting party fails to request a Daubert hearing, objections to the admissibility of an expert witness’s testimony under Daubert are not preserved for appeal. State v. Pickett, 2003-1492 (La.App. 3 Cir. 5/26/04), 878 So.2d 722. Therefore, Schwegmann’s Daubert objection, raised for the first time on this appeal, is simply too late. He waived his right to raise this objection, and the issue has not been preserved for appellate review. This assignment of error has no merit.

Finally, Schwegmann argues that assuming any money damages should have been awarded at all, which he denies, the highest reasonable measure of damages proven at trial would have been between $719,000.00 and $773,000.00, and the trial court erred in awarding any sums in excess of these figures.

Brown’s expert, Harold Asher, testified that if the dividends and other cash assets had been properly diversified and deposited into a moderate investment beginning in 1973, Brown’s trust would have been worth $5,147,073 at the time of the trial. Asher’s calculations took into consideration a number of factors: Brown’s age; whether Brown needed access to the cash and dividends in the trust for living expenses or whether the funds were more of a long-term investment; Brown’s risk tolerance; and Brown’s overall financial picture. Given these considerations, Asher utilized the recorded activity that was established in Brown’s trust and accepted by this court in the earlier trial of this matter, and then calculated the expected value of the trust if it had been invested under a number of scenarios, using the Vanguard Index 500 and the Vanguard Short-Term as the basis |7for his calculations. The trial court rejected the testimony of Dr. Kenneth Boudreaux, defendant’s expert, who opined that Brown’s damages were $719,558.64 at the time of trial.

In reaching the damage award, the trial court considered the testimony of both parties’ economic experts and found Brown’s expert, Harold Asher, to be more credible, stating, “the plaintiffs account-ings sufficiently takes into account what a moderate investment of funds would have generated for Brown’s trust.”

“[WJhere the testimony of expert witnesses differ, it is the responsibility of the trier of fact to determine which evidence is the most credible.” Asbestos v. Bordelon, Inc., 96-0525 (La.App. 4 Cir. 10/21/98), 726 So.2d 926, 966. Those “[cjredibility determinations are subject to the strictest deference, and the manifest error-clearly wrong standard demands great deference for the trier of fact’s findings.” Id. A fact-finder’s choice between two permissible views of the evidence cannot be manifestly erroneous or clearly wrong. Id. Thus, even if the testimony of both experts is considered credible, the trial court’s choice of Asher’s testimony over Boudreaux’s cannot be found to be manifestly erroneous or clearly wrong, and cannot be disturbed on appeal. As such, we find that the trial court’s determination that Brown’s damages were $5,147,073 correct. This assignment of error has no merit.

[«CONCLUSION

The trial court’s judgment was supported by the evidence and was not manifestly erroneous. Accordingly, for these reasons, the judgment of the trial court is affirmed.

AFFIRMED.


author: PATRICIA RIVET MURRAY, Judge.

text:
    STATE of Louisiana v. Don L. SCOTT.
    No. 2006-KA-1610.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 25, 2007.

      Eddie J. Jordan, Jr., District Attorney, Battle Bell, IV, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellant.
    Christopher A. Aberle, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellee.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge TERRI F. LOVE, Judge ROLAND L. BELSOME).
   PATRICIA RIVET MURRAY, Judge.

EThis is a criminal case. The State is the appellant. The principal issue presented is whether the district court erred in granting the motion to quash the bill of information filed by the defendant, Don Scott, after the State entered a nolle pro-sequi on the day of trial and six days later reinstated the charge. Answering that question in the affirmative, we reverse and remand.

STATEMENT OF CASE

On April 26, 2005, Mr. Scott was charged by bill of information under case number 458-691 “C” with possession of cocaine, a violation of La. R.S. 40:967(C)(2). On May 3, 2005, he was arraigned and pled not guilty. The district court ordered Mr. Scott to spend thirty days in the Blue Waters Drug Rehabilitation Program and to remain in custody upon completion of the program.

On June 20, 2005, Mr. Scott appeared without counsel for a motions hearing. The hearing was continued on joint motion. On July 12, 2005, Mr. Scott appeared without counsel for another motions hearing. The hearing was continued on the State’s motion because the police officers failed to appear. On August 18, 2005, the status hearing that was set for that day was reset due to the court being [¡¡closed. On August 26, 2005, Mr. Scott appeared for the status hearing with counsel, and a motions hearing was set for October 11, 2005.

On August 29, 2005, Hurricane Katrina devastated the New Orleans area. As a result of the devastation, the district attorney’s office and the Orleans Parish Criminal District Court were heavily damaged and were unable to function for several months.

On February 6, 2006, Mr. Scott filed in this court a motion to dismiss. On March 17, 2006, he filed in this court a motion for a speedy trial. This court treated both of his motions as an application for supervisory writ. On March 30, 2006, this court granted the writ and transferred both motions to the district court for consideration within thirty days. The district court set the hearing on the motions for April 25, 2006.

On April 25, 2006, a new defense counsel appeared without Mr. Scott, who was in custody but not brought to court. The matter was reset to May 26, 2006. On May 26, 2006, the matter was again reset. On June 16, 2006, another new defense counsel appeared without Mr. Scott. On July 12, 2006, Mr. Scott appeared in court with counsel, and trial was set for August 21, 2006.

On August 1,2006, this court granted another writ application and ordered the district court to rule on Mr. Scott’s previously transferred motions for dismissal and for a speedy trial by the new trial date, August 21, 2006. On August 21, 2006, defense counsel appeared without Mr. Scott. The district court continued the trial to September 7, 2006, and deferred ruling on the motions until trial in order for defense counsel to confer with Mr. Scott.

On September 7, 2006, Mr. Scott was present in court without defense counsel. Mr. Scott represented to the court that he would represent himself and |sthat he was ready to go to trial. The State, on the other hand, requested a continuance because the Criminal District Court Clerk’s Office failed to bring the evidence to court as the State had requested. The clerk also failed to subpoena the arresting officer as the State had requested. The State asked that the Clerk’s office be held in contempt for failing to perform its duties. Stressing Mr. Scott had been in jail since March 2005, that he was ready to go to trial, and that he had filed a speedy trial motion, the trial court denied the State’s request for a continuance. In response, the State entered a nolle prosequi

On September 13, 2006, the State reinst-ituted the case as case number 466-853, which was allotted to Section “C” to follow case 458-691 “C”. On September 28, 2006, the trial court rescheduled Mr. Scott’s arraignment due to the Red Mass. On October 10, 2006, the court again continued Mr. Scott’s arraignment to November 3, 2006. On November 3, 2006, defense counsel waived Mr. Scott’s presence and filed a motion to quash the bill of information, which the trial court granted and issued a release. This appeal followed.

STATEMENT OF FACT

The facts of this ease are not relevant to the procedural issues raised by the appellant, the State.

DISCUSSION

The proper procedural mechanism for challenging the State’s nolle prosequi and reinstitution of charges is a motion to quash. State v. Reaves, 376 So.2d 136, 137-38 (La.1979). A motion to quash is mandated by La.C.Cr.P. art. 536 to be in writing, signed by the defendant or his attorney, and filed in open court or in the |4offíce of the clerk of court. It shall specify distinctly the grounds on which the motion is based, and the court shall hear no objection on grounds not stated in the motion. Oral motions to quash are not properly considered. State v. Fryer, 96-2745 (La.App. 4 Cir. 2/19/97), 691 So.2d 712.

A preliminary procedural issue the State raises is whether the trial court erred in granting Mr. Scott’s motion to quash because it was not “filed in the record” as mandated by La.C.Cr.P. art. 536. In its brief, the State acknowledges that a written motion to quash was produced in court on November 3, 2006, and that a photocopy of a handwritten motion and order were found in the district attorney’s file. However, a copy of that handwritten motion apparently was not filed in the district court record. To resolve this matter, this court ordered the State to supplement the record with a copy of the Motion to Quash, and the State has done so. The requirements of Article 536 are thus met.

As noted at the outset, the principal issue on this appeal is whether the trial court, as the State argues, erred in granting Mr. Scott’s motion to quash. The jurisprudence has recognized the State’s authority to enter a nolle prosequi and to reinstitute the charge. The jurisprudence, however, has recognized that the State’s authority may be overborne under the circumstances of any given case by the defendant’s constitutional right to a speedy trial. State v. Love, 00-3347 (La. 5/23/03), 847 So.2d 1198; State v. Scott, 04-1142 (La.App. 4 Cir. 7/27/05), 913 So.2d 843, writ denied, 06-0822 (La.10/13/06), 939 So.2d 356.

A defendant challenging the State’s nolle prosequi and reinstitution of charges has the burden of showing a violation of his constitutional right to a speedy trial. State v. Henderson, 00-0511, p. 7 (La.App. 4 Cir. 12/13/00), 775 So.2d 1138, 1142. The standard for analyzing a defendant’s claim that his constitutional right to a speedy trial has been violated is the four factor test enunciated in Barker v. Wingo, 407 U.S. 514, 530, 531-32, 92 S.Ct. 2182, 2192-93, 33 L.Ed.2d 101 (1972), which is as follows: (1) the length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of his right to a speedy trial, and (4) the prejudice to the defendant. State v. Batiste, 05-1571, p. 7 (La.10/17/06), 939 So.2d 1245, 1250. The circumstances of each individual case will determine the weight to be ascribed to the length of and the reason for the delay. “[T]he delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge.” Id. (quoting Barker, 407 U.S. at 531, 92 S.Ct. at 2192).

Applying these principles, the Louisiana Supreme Court in Batiste found no speedy trial violation under the facts of that case. The defendant in Batiste was charged with video voyeurism. Nineteen months elapsed between the filing of the original bill and the quashing of the reinstituted charges. The Court found the reasons for the delay could not be attributed solely to the State and that there was no intentional delay on the State’s part to gain a tactical advantage. The Court further found that there was no suggestion that the defendant’s defense was impaired by the delay. The Court noted that the defendant was not in jail during the delay and that there was no indication that any evidence was lost due to the | fidelay. The Court emphasized that the State had a legitimate reason for its nolle prosequi — the victim was not present for trial and was wavering in her commitment to going forward with the case. Given these circumstances, the Supreme Court reversed this court’s decision, which affirmed the trial court’s ruling granting the defendant’s motion to quash.

A court’s resolution of a motion to quash in cases where the district attorney entered a nolle prosequi and later reinstituted charges should be decided on a case-by-case basis. Batiste, 05-1571 at p. 5, 939 So.2d at 1249 (citing Love, 00-3347 at p. 14, 847 So.2d at 1209). “[T]he proper approach to the question of whether the defendant’s right to a speedy trial was violated is not merely a review of the dates and circumstances of the hearings, but an examination of the entire record in order to discern whether there was ‘palpable abuse’ on the part of the trial court in granting the motion to quash.” State v. Harris, 2003-0524 at p. 4 (La.App. 4 Cir. 9/10/03), 857 So.2d 16, 18.

In the present case, our analysis of the Barker factors and the reasoning in the Batiste case does not establish that that Mr. Scott’s constitutional right to a speedy trial has been violated.

First, as in Batiste, the State had a legitimate reason for its nolle prosequi— the clerk’s office failed to subpoena the State’s witness and to bring up the evidence the State requested.

Second, the eighteen-month delay between the filing of the original bill of information charging Mr. Scott with possession of cocaine and the quashing of the reinsti-tuted charges is not presumptively prejudicial. The felony charge of possession of cocaine carries a fine of not more than $5000.00 and not more than five years imprisonment with or without hard labor, or both. This court has found |7similar delays in cases involving similar charges not violative of the defendant’s right to a speedy trial. State v. Payton, 06-1202 (La.App. 4 Cir. 2/28/07), 954 So.2d 193 (seventeen month delay in prosecuting one count of possession of cocaine was found not presumptively prejudieial)(citing State v. DeRouen, 96-0725 (La.App. 4 Cir. 6/26/96), 678 So.2d 39 (finding fifteen month delay in prosecuting two counts of possession with intent to distribute cocaine and one count of possession of 28 to 200 grams of cocaine not violative of the right to a speedy trial) and State v. Johnson, 622 So.2d 845 (La.App. 4th Cir.1993)(fmding twenty-two month delay not violative of right to speedy trial)).

Third, the other Barker factors do not support Mr. Scott’s claim. In the original case, 458-691 “C”, there were three continuances by the court, two by the defense, and one by the State. There also was one joint continuance. In the reinstated case, 466-853 “C”, there were two continuances by the court. Several months of the delay in this case are attributable to the closure of the criminal district court in Orleans Parish during the aftermath of Hurricane Katrina. This delay was not within the control of either the district attorney’s office or Mr. Scott. Similarly, Mr. Scott’s prior assertion of his right to speedy trial — his filing of an earlier motion for speedy trial — was prompted by the lengthy delay in re-opening the courts following the hurricane.

Although Mr. Scott was incarcerated for most of the delay, he has not demonstrated that he was prejudiced by the loss or compromise of any witness or evidence due to the delay. Accordingly, we find under these circumstances that Mr. Scott’s constitutional right to a speedy trial was not violated. We thus find the district court erred in granting the motion to quash.

| «DECREE

For the forgoing reasons, the judgment of the district court is reversed, and the matter is remanded to the district court for further proceedings.

REVERSED AND REMANDED.

      . The facts surrounding Mr. Scott's arrest, which can be adduced from the instant case, are limited to what is stated in the bill of information. On March 12, 2005, Ms. Scott allegedly willfully and unlawfully possessed a controlled dangerous substance, to wit: cocaine.

      . The State's authority to dismiss any prosecution without the consent of the court is recognized in La.C.Cr.P. art. 691. Under La. C.Cr.P. art. 576, the State is authorized to reinstitute the charges within six months of dismissal. In this case, the State reinstituted the charges against Mr. Scott six days after the dismissal. The State, however, is required to show that the dismissal of the original prosecution was not for the purpose of avoiding the time limitations set by Article 578. Given that the charge at issue in this case is a non-capital felony (possession of cocaine), Article 578 required the State to bring Mr. Scott to trial within two years from the date of the bill of information. La.C.Cr.P. art. 578. The original bill of information was filed on April 26, 2005, and the motion to quash was granted on November 3, 2006, eighteen months later. The State did not dismiss the first case in order to avoid the time limitations of Article 578. Thus, Mr. Scott’s statutory right to a speedy trial had not been violated at that point. The sole issue is whether the constitutional speedy trial requirement was satisfied.


author: JOAN BERNARD ARMSTRONG, Chief Judge. CANNIZZARO, J.,

text:
    FREY PLUMBING COMPANY, INC. v. Celeste FOSTER.
    No. 2006-C-1183.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 25, 2007.

      Leonard L. Levenson, Christian W. Helmke, New Orleans, LA, for Plaintiff.
    Thomas A. Rayer, Jr., Michael H. Bagot, Jr., Wagner & Bagot, LLP, New Orleans, LA, for Defendant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY and Judge LEON A. CANNIZZARO JR.).
   ON REMAND FROM THE SUPREME COURT

JOAN BERNARD ARMSTRONG, Chief Judge.

| ,This writ application comes before us on remand from the Louisiana Supreme Court, No. 2006-CC-2581 on the docket of that Court. The remand order directs this Court to require briefing and argument and to provide a full opinion specifically discussing “the apparent conflict between [this Court’s] holdings in Acme Window Cleaners v. Natal Construction Co., Inc., 95-0448 (La.App. 4 Cir. 8/23/95), 660 So.2d 926, and Robert Half of Louisiana, Inc. v. Citizens Consulting, Inc., 00-2415 (La.App. 4 Cir. 10/3/01), 798 So.2d 1124. We have received full briefing from the parties, and the matter proceeded to oral argument on Thursday, March 1, 2007. For the reasons that follow, we grant the writ and affirm the judgment of the trial court granting the respondent’s motion for partial summary judgment, finding that the agreement between the parties was not a contract creating an open account and that the relator is not entitled to attorney’s fees.

There is no dispute between the parties as to the basic facts surrounding the transaction that gave rise to this litigation. The respondent, Celeste Foster, a Mississippi resident, hired the relator, Frey Plumbing Company, Inc. (Frey) to |2perform a repair to a plumbing line on Ms. Foster’s property in Orleans Parish, Louisiana. According to Ms. Foster’s uncontroverted affidavit, she hired Frey to perform this single plumbing job and did not anticipate any other dealings with it. The work allegedly was performed and Frey submitted to Ms. Foster a single invoice requiring a single, one-time payment in full. When she did not pay the invoice, Frey made formal demand for payment in full. Upon expiration of the statutory 30-day period, Frey filed suit in the Civil District Court for the Parish of Orleans. Frey claims that, under these uncontested facts, the arrangement between the parties created an open account within the meaning of La.R.S. 9:2781(D), giving it the right to recover its reasonable attorney’s fees incurred in the prosecution of this action.

Ms. Foster filed a Motion for Partial Summary Judgment denying the existence of an open account. Following a hearing and the submission of post-trial memoran-da by the parties, the trial court granted the Motion for Partial Summary Judgment. Frey applied for writs to this Court, which application was denied. Frey then applied for writs to the Louisiana Supreme Court, and this remand follows.

The standard of review for summary judgments is de novo review.

An open account includes any account for which a part or all of the balance is past due, whether or not the account reflects one or more transactions and whether or not at the time of contracting the parties expected future transactions. It includes debts incurred for professional services, including but not limited to legal Land medical services La.R.S. 9:2781(D). This section was added to the open account statute in 1981 and was rewritten by a 1983 amendment.

In Kenner Industries, Inc. v. Sewell Plastics, Inc., 451 So.2d 557, 560 (La.1984), the Supreme Court held that a 1979 contract by which a party would furnish labor and materials to spread and compact pump sand was a construction contract and not an open account, citing La.R.S. 9:2781. In denying attorney’s fees, the court noted:

This is a one-time construction contract. The parties did not agree to a course of dealings over a period of time, but agreed that Kenner, in accord with a particular contract, would do a particular job.

The Court of Appeal, Second Circuit, cited the Kenner case in litigation arising out of a 1984 contract for installation of a dust collection system at the plaintiffs mill. By cross-appeal, the contractor sought attorney’s fees, claiming the existence of an open account. The court held:

This contract was not one of a series of dealings over a period of time, but rather was a one-time agreement to do a particular building contract. CC Art. 2756. Defendant is not entitled to attorney’s fees under LRS 9:2781. Kenner Industries v. Sewell Plastics, 451 So.2d 557 (La.1984).

In Alonzo v. Chifici 526 So.2d 237, 241 (La.App. 5 Cir.1988), the defendant purchased a restaurant and orally contracted with the plaintiff to renovate the building. The cost of materials, labor and supervision were billed to the defendant, who made payments on the balance due. The court rejected the plaintiffs argument that this methodology created sale on an open account, holding:

|4[T]he agreement, ..., fits the definition of a contract to build (a contract to do) as defined by La.C.C. Articles 2756 and 2757:
To build by a plot, or to work by the job, is to undertake a building or a work for a certain stipulated price.
A person who undertakes to make a work, may agree, either to furnish his work and industry alone, or to furnish also the materials necessary for such a work.
Although the Civil Code clearly contemplates a distinction between sales and construction contracts, it defines the contract of sale in very general terms. The judiciary has developed several tests for determining whether a given contract is a contract of sale or a construction contract. In Acadiana Health Club, Inc. v. Hebert, 469 So.2d 1186, 1189 (La.App. 3 Cir.1985), the court notes:
There are three major factors in determining whether a contract is a contract of sale or a contract to build or to work by the job. First, in a contract to build, the “purchaser” has some control over the specifications of the object. Second, the negotiations in a contract to build take place before the object is constructed. Lastly, and most importantly, a building contract contemplates not only that the builder will furnish the materials, but that he will also furnish his skill and labor in order to build the desired object [Citations omitted].
Under the “value test” the court determines whether the labor expended in constructing the item, or the materials incorporated therein, constitute the “principal value of the contract.” [Citation omitted] Building or construction contracts involve primarily the furnishing of labor and contractual skills.

In Guedon and Associates, Inc. v. Haik, 533 So.2d 1256, 1262 (La.App. 4 Cir.1988), this Court was called upon to characterize an oral time and materials construction contract. The plaintiff began work in August and concluded at the end of September, 1983. Plaintiff submitted an invoice dated September 30, 19831 vindicating payments totaling $15,000 and a balance due of $22,211.10. This Court rejected the plaintiffs contention that the agreement created an open account governed by La. R.S. 9:2781, finding it to be an oral construction contract as to which there could be no recovery of attorney’s fees.

Similarly, Hill v. Leach, 98-1817 (La.App. 3 Cir. 4/21/99), 734 So.2d 116 involved suit on a promissory note executed in connection with a home renovation. During the course of the renovation, the plaintiff contractor received a partial advance payment and purchased materials, tools, equipment and labor for the project. The note provided for limited attorney’s fees in the event of non-payment; however, the plaintiff sought additional statutory attorney’s fees pursuant to the open account statute. The court held that the renovation work was a construction contract, and that, “historically, construction contracts have not been treated as an ‘open account’ under La.R.S. 9:2781.” Id., 734 So.2d at 118.

This distinction was recognized in Freedom Alarm Service, Inc. v. Simplex Time Recorder Co., 1999 WL 319212 (E.D.La.), an unreported federal district court opinion in a suit arising from installation and modification of fire alarm systems at two hospitals. The plaintiff issued interim invoices as the work progressed, and sued alleging an open account. A defendant sought summary judgment as to the open account issue. The court held:

“Open Account” is a term of art, and is analogous to a credit account. Plaintiff cites the statutory definition of open account ... The burden is on Freedom to prove that the agreements between it and Simplex created an open account.
Construction contracts historically have not been treated as open accounts. A contract for a particular job, without other dealings between the parties, does not create an open account. Even if parties had other dealings, but all jobs were contracted, performed, invoiced and paid on a job-by-job basis, there is no open account. If the [⅜original contract was not an open account, amendments to it do not create an open account.
The statutory provision that “open account” includes a past-due balance on a one-time transaction was a 1983 amendment to the law. Two cases decided involving open account claims after that amendment are on point. In Bossier Marble, Inc. v. Kelly’s Truck Terminal, Inc., 530 So.2d 1198 (La.App. 2 Cir.), writ denied, 532 So.2d 133 (La.1988), plaintiff experienced cost overruns caused by inaccurate pre-bid information and the performance of other contractors. Plaintiffs invoice for the overruns, submitted without a prior agreement, was not paid. When plaintiff sued, the court found that the 1983 amendment did not change the historical findings that construction contracts are not open accounts and amendments do not make them so.
Guedon and Associates, Inc. v. Haik, 533 So.2d 1256 (La.App. 4 Cir.1988) involved a construction contract with an agreed-upon maximum amount. Plaintiff performed requested additional work; but the parties did not agree on another amount. When the invoice with the extra work was not paid, plaintiff sued. The court held that amending the scope of the work “did not create an open account.”

The court found that Freedom offered to perform specific construction work for specific sums, which offers were accepted by Simplex, facts that show that Freedom performed work for Simplex under common construction contracts. Therefore, there was no open account.

Likewise, the Court of Appeal, Third Circuit, rejected a claim that an oral contract for construction of cabinets constituted a sale on an open account within the understanding of then-subsection (C) of La.R.S. 9:2781. In Ortego v. Dupont, 611 So.2d 792, 795 (La.App. 3 Cir.1992), the defendant approached the plaintiff cabinet maker for special handmade cabinet doors. The court noted that the provisions of Louisiana law that control are not those dealing with sales, but rather those dealing with building contracts. The court held:

The trial court erred in awarding attorney fees under LSA-R.S. 9:2781(0 which provides in part that “ ‘open account’ includes any account for which a part or all of the balance is past due, whether or |7not the account reflects one or more transactions and whether or not at the time of contracting the parties expected future transactions.”
The transaction between the plaintiff and defendant was not an “open account.” [Citations omitted]

A similar analysis resulted in rejection of a claim for open account attorney’s fees in Petron, Inc. v. Magic-Mart, Inc., 94-28 (La.App. 3 Cir. 10/5/94), 643 So.2d 441, 442-443. The plaintiff removed and installed underground gasoline storage tanks at a convenience store. The defendant paid the anticipated cost of the work prior to commencement of the job. Before the job was completed, but after it had been begun, it was learned that a state permit would be required, and the work, with necessary additions, ultimately was performed in accordance with state requirements and the increased cost was later billed to the defendant. The court rejected the plaintiffs demand for attorney’s fees pursuant to then-La.R.S. (9:2781(C), holding:

The record reflects that this was a construction contract. It is clear from the record payment was expected upon completion of the job. Historically, a construction contract has not been treated as an open account. [Citation omitted] Therefore, plaintiff is not entitled to attorney’s fees. The parties agreed that plaintiff in accordance with a particular contract would perform a particular job, and amending the original oral contract did not create an open account. [Citations omitted] Furthermore, contrary to plaintiffs argument, the 1983 amendment to La.R.S. 9:2781(C) does not change the law in this regard. The 1983 amendment was broadened to allow professionals that rendered a one-time service to use the procedure of an action on open account to recover payment and applies to professional services only. See Mine & Smelter Etc. v. Ceres Gulf, Inc., 526 So.2d 404 (La.App. 4 Cir.1988). Based upon our review of the applicable statute and jurisprudence, we find the trial court erred in characterizing the transaction between the parties as an open account.

A seemingly contrary result obtained in Acadian Services, Inc. v. Durand, 01-1554 (La.App. 3 Cir. 4/3/02), 813 So.2d 1143, where an underlying renovation contract gave rise to an open account. In that case, a contractor hired a8Rsubcontractor to provide demolition work and removal of gas and water lines in connection with a restaurant renovation. However, unlike the situation in the other construction contract cases, Acadian and Bradley agreed that Acadian would keep the account on its services open in anticipation of further work on the building. The court applied a four-part test and found that an open account existed. The four factors are:

(1) Whether there were other business transactions between the parties;
(2) Whether a line of credit was extended by one party to another;
(3) Whether there are running or current dealings; and
(4) Whether there are expectations of other dealings.

The court distinguished the case from the typical construction contract, noting that in such a case payment is expected upon completion of the job:

In the present case, two separate jobs were performed, with two separate invoices, and payment was not expected upon completion of either of the jobs. One reason payment was not immediately expected was that Acadian anticipated performing additional work for Durand. While the demolition of the air-conditioning units and removal of the pipe was construction work, it was not a construction contract, because Acadian withheld demanding payment in anticipation of future work installing and servicing replacement units and pipes. The owner of Acadian testified that he often carried balances for customers for ongoing work. The trial court’s finding that the account was an open account is not manifestly erroneous and will not be disturbed.

In Mine & Smelter, Div. of Kennedy Van Saun Corporation v. Ceres Gulf, Inc., 526 So.2d 404, 405-06 (La.App. 4 Cir.1988), this Court interpreted the 1983 amendment narrowly, rejecting open account status where the plaintiff hired the defendant to unload gear equipment that defendant allegedly damaged. We held:

The dispositive issue in this appeal is whether the relationship between the parties constituted an open account. By concluding that Mine & Smelter’s action was properly brought as one on open 19account, the trial court relied on a lower standard of evidence to find that they were entitled to a default judgment....
LSA-R.S. 9:2781, Subd. C, as amended in 1983, defines open accounts to include any account for which a part or all of the balance is past due, whether or not the account reflects one or more transactions and whether or not at the time of contracting the parties expected future transactions. “Open account” shall include debts incurred for professional services, including, but not limited to, legal and medical services.
With the 1988 amendment the statute was broadened to allow professionals that rendered a one time service to use the stream-lined procedure of an action on open account to recover payment. We agree with Ceres that the amendment applies to professional services only.
Professionals were always accommodated by the open account statute, however it failed to address the situation where professional services were rendered in conjunction with a single transaction. The analogy between professional services and typical open accounts is in the nature of the relationship between the parties and the payment collection process. Professionals usually render services by billing hours or visits over a period of time. Open accounts are made up of a series of transactions or course of dealings over a period of time.

The Court of Appeal, First Circuit, also strictly interpreted the open account statute in Fidelity and Cas. Co. of New York v. A & M Const., Inc., 96 1326 (La.App. 1 Cir. 3/27/97), 692 So.2d 28. In that case, plaintiff sued for the balance owed for insurance coverage provided to the defendant. The trial court confirmed the default judgment upon proof of the elements of a prima facie suit on open account. The court reversed, holding that the statutory definition of open account does not apply to suits for unpaid insurance premiums, citing Percy v. Perkins, 468 So.2d 815, 817 (La.App. 1 Cir.1985). The court criticized a contrary holding from the Court of Appeal, Fifth Circuit in Brosset v. Childs Enterprises, Inc., 465 So.2d 89, 91-92 (La.App. 5 Cir.1985), in that it applied the “four-part test”. The Fidelity & Casualty Company of New York case questions in dicta whether these factors are still relevant after the amendment to La.R.S. 9:2781 defining open accounts.

10 In Acme Window Cleaners, Inc. v. Natal Construction Company, Inc., supra, the defendant contractor entered into a written contract with the plaintiff to strip and wax floors in a building. The trial court’s award to the plaintiff included attorney’s fees awarded pursuant to La.R.S. 9:2781. Acme initially argued that the statute abolished the principle that attorneys fees are payable pursuant to La.R.S. 9:2781 only where there is an open account. Acme contended that prior to the 1983 amendment of then-section C, the idea that “open account” pertained to services “rendered on a continuing basis” was built into the statute and was abolished in the new language that provided that “open account” shall include “any account for which a part or all of the balance is past due, whether or not the account reflects one or more transactions and whether or not at the time of contracting the parties expected future transactions. We rejected that argument, citing Jacobs v. Loeffelholz, 94-1123 (La.App. 4 Cir. 12/15/94), 647 So.2d 1282. In that case, we noted that an open account is a legal term of art, analogous to a credit account in the normal course of business, relying on Black’s definition: “An account which has not been finally settled or closed, but is still running or open to future adjustment or liquidation. Open account, in legal as well as in ordinary language means an indebtedness subject to future adjustment, and which may be reduced or modified by proof.” Acme Window Cleaners, Inc., 660 So.2d at 927.

Rather than deciding the case based on the distinction between open accounts and construction contracts, the unanimous court in the Acme Window Cleaners, Inc. case referred to two cases from the First and Third Circuits that established the four factor guidelines for determining when a course of dealings 11between parties might be designated an open account. Specifically, this Court referred to Herb’s Machine Shop, Inc. v. John Mecom Company, 426 So.2d 762, 765 (La.App. 3 Cir.1988), a suit for a balance due on the sale of machine parts to the defendant, which set forth the four factors standard.

See also, Sears, Roebuck & Co. v. Dennies, 03-1160 (La.App. 5 Cir. 3/30/04), 870 So.2d 1080 and Sandoz v. Dolphin Services, Inc., 555 So.2d 996, 997-98 (La.App. 1 Cir.1989), where the four-part test was applied to sale, as distinguished from construction, contracts.

This Court applied the four-factor test to the construction contract in Acme Window Cleaners, Inc. and held that there was no statutory language which could change Acme’s contract into an open account. This analysis might be considered to have been surplusage since, under the prior jurisprudence, the open account statute could not apply to a construction contract, irrespective of whether the four-part test used to determine whether a sales contract creates an open account was met. See also, Paddison Builders, Inc. v. Newpark Square One Condominium Association, 03-144 (La.App. 5 Cir. 6/3/03), 848 So.2d 750, in which the court applied the four-part analysis, holding:

We find none of the above factors present in this case. Additionally, construction contracts (such as this one) have historically not been treated as open accounts under La.R.S. 9:2781. [Citation omitted.]

See also, Phelps Dunbar, L.L.P. v. Stout, 04-0785 (La.App. 4 Cir. 6/15/05), 914 So.2d 44, in which this Court applied the four-part analysis to a contract for professional services confected and performed after the 1983 amendment; and Paz v. BG Real Estate Services, Inc., 05-0115 (La.App. 4 Cir. 12/14/05), 921 So.2d |1⅞186, in which this Court applied the four-part analysis in the context of a construction contract, concluding that none of the four factors were present in the case, but not discussing the historical exclusion of construction contracts from open account status.

The United States District Court for the Eastern District of Louisiana noted the state courts’ application of the four-part analysis after the 1983 amendment in Barco Projection Systems, Inc. v. Alliance Business Products, Inc., 2003 WL 21355467 (E.D.La.). In this diversity jurisdiction case, plaintiff sued to recover unpaid invoices under a construction contract. In setting forth the Louisiana law to be applied, the court noted:

Even after the effective date of this [the 1983] amendment, however, Louisiana courts continue to consider the follow four factors when determining whether a course of dealings is an open account: [listing the four factors and citing, inter alia, Acme Window Cleaners, Inc.]. Historically, a construction contract has not been treated as an open account. [Citations omitted.] Id. at p. 2.

See also a similar discussion in Greenfield Commercial Credit, L.L.C. v. Catlettsburg Refining, L.L.C., 2007 WL 97068 (E.D.La.).

In Salley v. Colonial Marine Industries, Inc., 95-2215 (La.App. 4 Cir. 9/11/96), 680 So.2d 1242, the plaintiff provided professional legal services consisting of rendition of a legal opinion in December of 1992, followed by continuing advice to the client concerning other issues as they arose. The evidence was found to have established that the parties had an ongoing relationship with an extension of credit to the debtor, as required for recovery of statutory attorney’s fees pursuant to La. R.S. 9:2781.

Robert Half of Louisiana, Inc. v. Citizens Consulting, Inc., supra, is a similar professional services case. Citizens contracted with Robert Half, an employment agency, to locate an employee to perform accounting services for Citizens. Citizens made one payment on the contract' and Robert Half sued for the balance. This Court held:

Based on the plain language of the statute, we find that the trial court correctly held that this transaction is an open account. Robert Half provided a service for CCI, that of locating a suitable candidate for employment. The agreement between the parties permitted periodic payments on an outstanding account of indebtedness .... whether this was a single transaction or the parties contemplated future dealings is irrelevant. This transaction falls squarely within the definition of “open account” as set forth in [then] Subsection C of the statute.
Robert Half contends that this case is governed by our prior decision in Acme Window Cleaners, Inc. v. Natal Construction Co., Inc., 95-0448 (La.App. 4 Cir. 8/23/95), 660 So.2d 926, wherein the court held that a written contract between a cleaning company and a general contractor was a contract and not an open account. We disagree. First, the agreement between the parties in the instant case was for Robert Half to provide the defendant with professional services, expressly covered by the statute, and not a construction contract. Second, there was no written contract entered into between the parties in the instant case. The only writing in the record that might even be remotely construed as a “contract” was the fee schedule, required by the statutes covering employment agencies. Finally, in deciding Acme, the court relied on some cases which ignored Subsection C to La.R.S. 9:2781. Thus, we distinguish, and thus decline to follow, Acme.

We agree that Acme Window Cleaners, Inc. and Robert Half of Louisiana, Inc. clearly are distinguishable from each other on their facts: the former case arose out of a construction contract, historically not considered to be an open account. The latter case was for professional services, specifically provided for under the open account statute. A close reading of the statute and jurisprudence thereunder lead to the conclusion that Acme Window Cleaners, Inc. ⅛ discussion of the four-part standard in the context of a construction case is surplusage.

|uWe note that the facts of the instant case do not support a finding of an open account, whether we consider the contract to be a historically excluded construction contract or apply the four-factor test. Furthermore, we reconcile our holdings in Acme Window Cleaners, Inc. and Robert Half of Louisiana, Inc. as the latter is a contract for professional services, which is the subject of a specific provision in La. R.S. 9:2781.

For the foregoing reasons, we grant the relator’s writ application and affirm the judgment of the trial court granting Ms. Foster’s Motion for Partial Summary Judgment.

WRIT GRANTED; JUDGMENT OF TRIAL COURT AFFIRMED.

CANNIZZARO, J., dissents with reasons.

CANNIZZARO, J.,

dissents with reasons.

1At the outset, I reiterate my initial opinion that the matter before us, i.e. the issue of whether Frey Plumbing Company, Inc., is entitled to attorney fees pursuant to La. R.S. 9:2781(D) is premature because its underlying claim against Ms. Foster has never been adjudicated.

Nonetheless, considering the majority opinion on remand as ordered by the Louisiana Supreme Court, I respectfully dissent. I disagree with the majority’s affirming the trial court’s judgment that granted Ms. Foster’s motion for partial summary judgment, finding that the agreement between the parties was not a contract creating an open account pursuant to La. R.S. 9:2781(D) and that Frey Plumbing Company was not entitled to attorney fees.

The current version of La. R.S. 9:2781(D) states in pertinent part:
For the purposes of this Section and Code of Civil Procedure Articles 1702 and 4916, “open account” includes any account for which part or all of the balance is past due, whether or not the account reflects one or more transactions and whether or not at the time of contracting the parties expected future transactions. “Open account” shall in-elude debts incurred for professional services, including but not limited to legal and medical services. [Emphasis added.]

|2The legislature specifically amended La. R.S. 9:2781 in 1983 to clarify that an open account could consist of a single transaction and did include debts for professional services.

Louisiana Civil Code article 9 provides that “[wjhen a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.” The relevant statute, La. R.S. 9:2781(D), clearly and unambiguously speaks in terms of one transaction and does not contemplate more than one transaction in every instance. The majority’s discussion that a suit on an open account necessarily involves a series of transactions or course of dealings over a period of time is inaccurate. Such language is not contained in the statute and should not be followed here.

I also disagree with the majority’s conclusion in footnote 1 that “[t]he plumbing contract in question does not come within the purview of a professional services contract for purposes of the statute.” The statute specifically provides that professional services are not limited to legal and medical services, and I find no rational basis to exclude plumbing services. Master plumbers and journeyman plumbers must be licensed and are governed by a state licensing board, the State Plumbing Board. See La. R.S. 37:1361-1368. They are required to participate in “continuing professional development” to maintain their licenses. See La. R.S. 37:1366. They are subject to disciplinary action and their licenses may be revoked. See La. R.S. 37:1378. Also, the fact that the contract at issue was an oral, as opposed to a written one, should not disqualify Frey Plumbing Company’s claim as a suit op open account as the statute doe not distinguish between written and oral contracts.

I submit that in the interest of fairness if Frey Plumbing performed the work as agreed to by the parties and Ms. Foster refused to pay, forcing the company to 13file suit to collect the amount owed, then it should be allowed to recover any reasonable attorney fees that it incurred as a result. Under such circumstances, it is illogical and unreasonable to conclude that the legislature would not have allowed Frey Plumbing Company to collect the attorney fees.

Regarding Acme Window Cleaners v. Natal Construction Co., Inc., 95-0448 (La.App. 4 Cir.8/23/95), 660 So.2d 926, I find the majority’s discussion of the case is misleading. The issue in Acme was whether or not the plaintiff was entitled to attorney fees. The court found that it was not because the parties had entered into a written contract which controlled their relationship and the contract did not provide for attorney fees in the event a dispute had to be resolved in court. The court emphasized that “[t]here was no statutory language which could change this contract into an open account so as to trigger the attorney fee provisions of [La. R.S.] 9:2781.” 660 So.2d at 928. However, the majority states that Acme involved a construction contract and therefore was not subject to the open account statute. It then concludes “[Acme’s] discussion of the four parts standard in the context of a construction case is surplusage.” I fail to see a need to even mention the four factor standard if the court felt construction contracts were automatically eliminated under the open account statute.

Finally, in compliance with the Supreme Court’s mandate, the majority attempts to “reconcile” the holdings in Acme, supra, and Robert Half of Louisiana, Inc. v. Citizens Consulting, Inc., 00-2415 (La.App. 4 Cir.10/3/01), 798 So.2d 1124, on the basis that Acme arose out of a construction contract, which historically is not considered an open account, while Robert Half involved a contract for professional services, which is specifically provided for under La. R.S. 9:2781. With all due respect to the Supreme Court, I find no apparent conflict ^between this court’s holdings in those two cases. Each was decided based upon its particular facts.

Accordingly, I would reverse the judgment of the trial court and deny Ms. Foster’s motion for partial summary judgment.

      . The plumbing contract in question does not come within the purview of a professional services contract for purposes of the statute.

      . The opinion does not cite subsection (D) specifically. Since the pre-1981 statute was not divided into subsections, we conclude that the court applied the statute as it existed before the definition of an "open account” was added.

      . It appears from the facts of the Acme Window Cleaners, Inc. case that Acme’s work stripping and waxing floors gives rise to a construction contract under the foregoing analysis.

      . This case was decided prior to the 1983 amendment to La.R.S. 9:2781.

      . The United States district court for the Eastern District of Louisiana accepted this analysis in an unreported case, San Francisco Estates, S.A. v. Westfeldt Brothers, Inc., 1998 WL 290206 (E.D.La.1998)

      . I concurred in the denial of Frey Plumbing Company’s original writ application because it had an adequate remedy on appeal. See Frey Plumbing Company, Inc. v. Foster, 2006-1183, unpub. (La.App. 4 Cir.9/21/06) (Canniz-zaro, X, concurs with reasons).

      . The four factors to be considered when determining whether a course of dealings between the parties might be designated an open account are set forth in Herb’s Machine Shop, Inc. v. John Mecom Company, 426 So.2d 762, 765 (La.App. 3d Cir.1983), writ denied, 430 So.2d 98 (La.1983).