text:
    STATE ex rel. Joe STEPHENS v. STATE of Louisiana.
    No. 2006-KH-0812.
    Supreme Court of Louisiana.
    Oct. 6, 2006.
   In re Stephens, Joe; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. G, No. 126,696.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694.


source: Caselaw Access Project

license: Public Domain

text:
    STATE ex rel. Aaron GENTRIES-GENTRAS v. STATE of Louisiana.
    No. 2006-KH-0813.
    Supreme Court of Louisiana.
    Oct. 6, 2006.
   In re Gentras, Aaron Gentries; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. E, No.-94-6150; to the Court of Appeal, Fifth Circuit, No. 05-KH-992.

Denied.

JOHNSON, J., would grant the writ.


text:
    STATE ex rel. Darrin D. GILMER v. STATE of Louisiana.
    No. 2006-KH-0814.
    Supreme Court of Louisiana.
    Oct. 6, 2006.
   In re Gilmer, Darrin D.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. D, No. 152,394; to the Court of Appeal, Second Circuit, No. 41006-KH.

Denied. Time-barred and repetitive. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694; La.C.Cr.P. art. 930.4(D).


text:
    STATE ex rel. Donald WILLIAMS v. STATE of Louisiana.
    No. 2006-KH-0817.
    Supreme Court of Louisiana.
    Oct. 6, 2006.
   In re Williams, Donald; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. A, No. 305-606; to the Court of Appeal, Fourth Circuit, No. 2005-K-1471.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Donald WILLIAMS v. STATE of Louisiana.
    No. 2006-KH-0834.
    Supreme Court of Louisiana.
    Oct. 6, 2006.
   In re Williams, Donald; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. A, No. 305-606; to the Court of Appeal, Fourth Circuit, No. 2005-K-1471.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Donald WILLIAMS v. STATE of Louisiana.
    No. 2006-KH-1093.
    Supreme Court of Louisiana.
    Oct. 6, 2006.
   In re Williams, Donald; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. A, No. 305-606; to the Court of Appeal, Fourth Circuit, No. 2005-K-1471.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    Pearlie Bell, Wife of/and Timothy HARRIS v. Betty C. POCHE, GBS Properties, L.L.C., d/b/a Prudential Gardner, Realtors, Glenn M. Mediamolle and English Turn Limited Partnership.
    No. 2006-C-1113.
    Supreme Court of Louisiana.
    Oct. 6, 2006.
   In re English Turn Limited Partnership; Mediamolle, Glenn M.; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. I, No. 2002-15507; to the Court of Appeal, Fourth Circuit, No. 2005-CA-0664.

Denied.

CALOGERO, C.J., would grant.

KIMBALL, J., would grant.

VICTORY, J., would grant.


text:
    STATE ex rel. Troy SHELVIN v. STATE of Louisiana.
    No. 2006-KH-1415.
    Supreme Court of Louisiana.
    Oct. 6, 2006.
   In re Shelvin, Troy; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. J, No. 88-CR-56962; to the Court of Appeal, Third Circuit, No. KH 05-01525.

Denied.


text:
    CALDWELL PARISH POLICE JURY v. TOWN OF COLUMBIA, et al.
    No. 2006-C-1565.
    Supreme Court of Louisiana.
    Oct. 6, 2006.
   In re Caldwell Parish Police Jury;— Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Caldwell, 37th Judicial District Court Div. A, No. 23770; to the Court of Appeal, Second Circuit, No. 40,865-CA.

Denied.

CALOGERO, C.J., would grant.

VICTORY, J., would grant.

TRAYLOR, J., would grant.


text:
    Conran J. FRICKE and Kim Fricke v. OCHSNER FOUNDATION HOSPITAL and Debra Mills, R.N.
    No. 2006-C-1582.
    Supreme Court of Louisiana.
    Oct. 6, 2006.
   In re Fricke, Kim; Fricke, Conran J. et al.; — Plaintiff(s); Applying for Writ of Cer-tiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. N, No. 547-340; to the Court of Appeal, Fifth Circuit, No. 05-CA-868.

Denied.


text:
    Henry ARCENEAUX v. Pamela NORMAN, et al. Elby Johnson, Jr., et al. v. Swift Transportation Co., Inc.
    No. 2006-C-1629.
    Supreme Court of Louisiana.
    Oct. 6, 2006.
   In re Swift Transportation Co., Inc.;— Defendant; Applying for Writ of Certiora-ri and/or Review, Parish of Lafayette, 15th Judicial District Court Div. B, Nos. 20031656 L, 20026494 B; to the Court of Appeal, Third Circuit, No(s). 05-1537, 05-1536.

Denied.

VICTORY, J., would grant.

TRAYLOR, J., would grant.

KNOLL, J., would grant.


text:
    STATE of Louisiana v. Brandon THOMAS.
    No. 2006-KK-1650.
    Supreme Court of Louisiana.
    Oct. 6, 2006.
   In re Thomas, Brandon; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of St. Charles, 29th Judicial District Court Div. C, No. 05-0258; to the Court of Appeal, Fifth Circuit, No. 06-K-294.

Denied.


text:
    Cynthia BRIDGES, Secretary Department of Revenue, State of Louisiana v. Michele Jacob BABINEAUX.
    No. 2006-C-1660.
    Supreme Court of Louisiana.
    Oct. 6, 2006.
   In re Babineaux, Michele Jacob; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. G, No. 03-18936; to the Court of Appeal, Fourth Circuit, No. 2005-CA-0500.

Denied.


text:
    Morris DOMINO v. RAIL LINK, INC.
    No. 2006-CC-1661.
    Supreme Court of Louisiana.
    Oct. 6, 2006.
   In re Domino, Morris; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. O, No. 510,186; to the Court of Appeal, First Circuit, No. 2006 CW 0399.

Denied.


text:
    STATE of Louisiana v. Victor THOMAS.
    No. 2006-KK-1662.
    Supreme Court of Louisiana.
    Oct. 6, 2006.
   In re Thomas, Victor; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of St. Charles, 29th Judicial District Court Div. C, No. 05-0226; to the Court of Appeal, Fifth Circuit, No. 06-K-295.

Denied.


text:
    James CRYAR v. Robert Dale BERNAUER, M.D., Acadian Ambulance Service, Inc., Acadian Ambulance and Air Med Services, Inc., Women’s and Children’s Hospital, Inc., d/b/a Women’s and Children’s Hospital of Lake Charles.
    No. 2006-C-1663.
    Supreme Court of Louisiana.
    Oct. 6, 2006.
   In re Acadian Ambulance and Air Med Services, Inc.; Acadian Ambulance Services, Inc.; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. E, No. 2003-3710; to the Court of Appeal, Third Circuit, No. 05-426.

Denied.


text:
    John DOE and Joan Doe, Individually and on Behalf of Their Minor Child, Jane Doe, Parish of Jefferson v. CRESCENT CITY BAPTIST CHURCH, Mark Anthony Russell.
    No. 2006-CC-1664.
    Supreme Court of Louisiana.
    Oct. 6, 2006.
   In re Crescent City Baptist Church;— Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. G, No. 618-694; to the Court of Appeal, Fifth Circuit, No. 06-C-325.

Denied.

VICTORY, J., would grant.

KNOLL, J., would grant.


text:
    Gerald A. VANAUTREVE v. Angel L. ORTIZ, Lamarque Ford, Inc., Louisiana Farm Bureau Mutual Insurance Company and XYZ Insurance Company.
    No. 2006-C-1665.
    Supreme Court of Louisiana.
    Oct. 6, 2006.
   In re Louisiana Farm Bureau Mutual Insurance; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of St. Bernard, 34th Judicial District Court Div. C, No. 96-671; to the Court of Appeal, Fourth Circuit, No. 2005-CA-0369.

Denied.


text:
    Richard W. NOLAND, III v. Benjamin J. PARNELL, et al.
    No. 2006-CC-1668.
    Supreme Court of Louisiana.
    Oct. 6, 2006.
   In re Noland, Richard W. III; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. E, No. 466-830; to the Court of Appeal, Fifth Circuit, No. 06-C-357.

Denied.


text:
    MSOF CORPORATION and Jay Paul Leblanc v. EXXON CORPORATION, Exxon Chemical Company, U.S.S. Chemical Company, Copolymer Rubber and Chemical Corporation, Uniroyal Corporation, Dow Chemical Company, Ethyl Corporation, Shell Chemical Corporation, American Hoechst Co. (f/k/a Foster Grant Company), Allied Chemical Corporation, Rubicon Chemical Company, Petro Processors of Louisiana, Inc., Rollins Environmental Services (LA), Robert Bolger, J.W. Street, W.L. Rainey, NPC Services, Inc., and XYZ Insurance Company.
    No. 2006-C-1669.
    Supreme Court of Louisiana.
    Oct. 6, 2006.
   In re Bolger, Robert; Rainey, W.L.; Celanese Corporation f/k/a Hoeschst Corporation; Honeywell International Inc. fk/a Allied Chemical Corporation; Dow Chemical Company; Ethel Corporation; NPC Services Inc.; Exxon Mobil Corporation; DSM Copolymer; Crompton Manufacturing Co. Inc.; United States Steel Corporation; Exxon Corporation et al.; Street, J.W.; Shell Oil Company; — Defendants); Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. M, No. 407,574; to the Court of Appeal, First Circuit, No. 2004 CA 0988.

Denied.


text:
    Joe CLARK, et al. v. Trus Joist MACMILLAN.
    No. 2006-CC-1671.
    Supreme Court of Louisiana.
    Oct. 6, 2006.
   In re Clark, Joe et al.; Clark, James; Hicks, Mary; — Plaintiff(s); Applying for Supervisory and/or Remedial Writs, Parish of Natchitoches, 10th Judicial District Court Div. B, No. 70,287 B; to the Court of Appeal, Third Circuit, No. CW 06-00476.

Denied.


text:
    Charles D. HANNA v. J.E. MERIT CONSTRUCTORS, INC.
    No. 2006-CC-1673.
    Supreme Court of Louisiana.
    Oct. 6, 2006.
   In re J.E. Merit Constructors, Inc.;— Defendant; Applying for Supervisory and/or Remedial Writs Office of Workers’ Compensation District 5, No. 05-01243; to the Court of Appeal, First Circuit, No. 2006 CW 0435.

Denied.


text:
    Linda and Scotty WIGGINS, Individually and as Personal Representatives of Their Deceased Son Thomas Jeffrey Wiggins v. TRANSOCEAN SEDCO FOREX f/k/a R & B Falcon and Shell Exploration and Production Company.
    No. 2006-C-1675.
    Supreme Court of Louisiana.
    Oct. 6, 2006.
   In re R & B Falcon Management Services, Inc.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. A, No. 2001-9973; to the Court of Appeal, Fourth Circuit, No. 2005-CA-1246.

Denied.


text:
    Charles MCMAHON v. LOUISIANA STATE RACING COMMISSION.
    No. 2006-C-1679.
    Supreme Court of Louisiana.
    Oct. 6, 2006.
   In re McMahon, Charles; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. G, No. 2003-790; to the Court of Appeal, Fourth Circuit, No. 2003-CA-2097.

Denied.


text:
    Laurence SOLOW, Jack Stolier and Allan Katz v. HEARD, MCELROY & VESTAL, L.L.P. and Curtis A. Swanson.
    No. 2006-CC-1680.
    Supreme Court of Louisiana.
    Oct. 6, 2006.
   In re Solow, Laurence et al.; Katz, Allan; Stolier, Jack; — Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. D, No. 2005-1654; to the Court of Appeal, Fourth Circuit, No. 2005-CA-1028.

Denied.


text:
    Byron S. ROMERO v. The ESTATE OF KEN BACQUE, INC., et al.
    No. 2006-CC-1687.
    Supreme Court of Louisiana.
    Oct. 6, 2006.
   In re Bacque, Chiara Administratrix et al.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. E, No. 20052510; to the Court of Appeal, Third Circuit, No. CW 06-00416.

Denied.


text:
    Mary K. BIHM v. Seth J. BIHM.
    No. 2006-CC-1695.
    Supreme Court of Louisiana.
    Oct. 6, 2006.
   In re Fournet, Anne; — Other; Applying for Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. I, No. 2004-003320; to the Court of Appeal, Third Circuit, No. CW 05-1550.

Denied. Moot.


text:
    Earline ALLEMAN, et al. v. Belinda M. ROMERO, et al.
    No. 2006-C-1696.
    Supreme Court of Louisiana.
    Oct. 6, 2006.
   In re Lafayette Parish Sheriffs Department; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. B, No. 2003-1145; to the Court of Appeal, Third Circuit, No. 06-132.

Denied.


text:
    James CRYAR v. Robert Dale BERNAUER, M.D., Acadian Ambulance Service, Inc., Acadian Ambulance and Air Med Services, Inc., Women’s and Children’s Hospital; Inc., d/b/a Women’s and Children’s Hospital of Lake Charles.
    No. 2006-C-1697.
    Supreme Court of Louisiana.
    Oct. 6, 2006.
   In re Women’s and Children’s Hospital, Inc. d/b/a; Women’s and Children’s Hospital of Lake Charles; — Defendants); Applying for Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. E, No. 2003-3710; to the Court of Appeal, Third Circuit, No. OS-426.

Denied.


text:
    Helen Vice PALOMBO and Francis C. Palombo, Sr. v. Frank BACQUE, M.D., et al.
    No. 2006-C-1698.
    Supreme Court of Louisiana.
    Oct. 6, 2006.
   In re Palombo, Helen Vice; Palombo, Francis C. Sr.; — Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. I, No. 2001-2336; to the Court of Appeal, Third Circuit, No. 06-218.

Denied.


text:
    Gregory James KLUMPP v. Susan Dows Blake KLUMPP.
    No. 2006-CC-1699.
    Supreme Court of Louisiana.
    Oct. 6, 2006.
   In re Klumpp, Gregory James; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. C, No. 2001-000816; to the Court of Appeal, Third Circuit, No. CW 06-00461.

Denied.


text:
    Dona WARREN, Louis Warren, Melissa Johnson on Behalf of Her Minor Sons, Brett Johnson and Dustin Johnson, and Christina Russell on Behalf of Her Minor Son, Andrew Corkern v. Eric CAHILL, State Farm Insurance Company and Louisiana Farm Bureau Insurance Company.
    No. 2006-C-1704.
    Supreme Court of Louisiana.
    Oct. 6, 2006.
   In re Warren, Dona et al.; Johnson, Melissa; Warren, Louis; Russell, Christina; — Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of Tan-gipahoa, 21st Judicial District Court Div. E, No. 2002-004125; to the Court of Appeal, First Circuit, No. 2005 CA 1660.

Denied.


text:
    Katherine A. Meyer Wife of/and Keith MEYER v. Paul TUFARO, the Italian Pie Franchise, L.L.C., Italian Pie, L.L.C., Pizza, L.L.C., Musa Ulusan, Serdar Tilioglu, Tom Cangemi, Progressive Insurance Company, State Farm Insurance Company and XYZ Insurance Company.
    No. 2006-C-1705.
    Supreme Court of Louisiana.
    Oct. 6, 2006.
   In re Meyer, Katherine A. et al.; Meyer, Keith; — Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. F, No. 2001-13067; to the Court of Appeal, Fourth Circuit, No. 2005-CA-1110.

Denied.


text:
    Jacqueline JACKSON v. SYSCO FOOD SERVICES.
    No. 2006-C-1715.
    Supreme Court of Louisiana.
    Oct. 6, 2006.
   In re Jackson, Jacqueline; — Plaintiff; Applying for Writ of Certiorari and/or Review Office of Workers’ Compensation District 8, No. 03-624; to the Court of Appeal, Fourth Circuit, No. 2005-CA-1304.

Denied.

CALOGERO, C.J., would grant.


text:
    Gary Henry BOURGEOIS v. Robin Ziegler BOURGEOIS.
    No. 2006-C-1716.
    Supreme Court of Louisiana.
    Oct. 6, 2006.
   In re Bourgeois, Gary Henry; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. H, No. 2004-12629; to the Court of Appeal, First Circuit, No. 2005 CA 1329.

Denied.


text:
    Kevin John BRAUD v. AFFORDABLE BUILDERS, LLC.
    No. 2006-C-1717.
    Supreme Court of Louisiana.
    Oct. 6, 2006.
   In re Affordable Builders LLC et al.; Louisiana Workers’ Comp. Corp.; — Defendants); Applying for Writ of Certiorari and/or Review Office of Workers’ Comp. Dist. 6, No. 04-00875; to the Court of Appeal, First Circuit, No. 2005 CA 1206.

Denied.


text:
    Richard A. HARRINGTON and Margaret A. Harrington, Individually and on Behalf of Their Minor Children, Samantha Jo Harrington, McKayla Grace Harrington, and Rebecca Lea Harrington v. Billy Joe BUZBEE, Joey Buzbee, Louisiana Weld & Press, Inc. and / or Louisiana Weld & Press, L.L.C., XYZ Corporation, and ABC Insurance Company, DEF Insurance Company.
    No. 2006-C-1718.
    Supreme Court of Louisiana.
    Oct. 6, 2006.
   In re Harrington, Richard A. et al.; Harrington, Margaret A.; — Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. A, No. 457,022; to the Court of Appeal, First Circuit, No. 2005 CA 1119.

Denied.


text:
    Joseph DUPONT, et al. v. CABOT OIL & GAS CORPORATION, et al.
    No. 2006-CC-1721.
    Supreme Court of Louisiana.
    Oct. 6, 2006.
   In re Cabot Oil & Gas Corp. et al.;— Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Iberville, 18th Judicial District Court Div. B, No. 62,037; to the Court of Appeal, First Circuit, No. 2006 CW 0538.

Denied.


text:
    Richard G. TRAHAN and Alton J. Trahan v. Merry Louise MANLEY, Leola Terrebonne, Gary E. Theall and Sandra Kathryn Lehman.
    No. 2006-C-1723.
    Supreme Court of Louisiana.
    Oct. 6, 2006.
   In re Terrebone, Leola; Trahan, Leola Terrebone,; Trahan, Merry Louise Manley; Theall, Sandra Kathryn Lehman; Trahan, Mary Louise Manley; Manley, Merry Louise et al.; Theall, Gary E.; Lehman, Sandra Kathryn; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of Vermilion, 15th Judicial District Court Div. B, Nos. 75742, 70897; to the Court of Appeal, Third Circuit, No. 05-1175.

Denied.


text:
    James Edward DUHON, Jr., et al. v. FORD MOTOR COMPANY, et al.
    No. 2006-CC-1728.
    Supreme Court of Louisiana.
    Oct. 6, 2006.
   In re Ricky Smith’s Audio Inc.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Vermilion, 15th Judicial District Court Div. A, No. 81566; to the Court of Appeal, Third Circuit, No. CW 06-00383.

Denied.


text:
    Gregory R. AYMOND v. Rich DUPREE.
    No. 2006-C-1729.
    Supreme Court of Louisiana.
    Oct. 6, 2006.
   In re Aymond, Gregory R.; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Rapides, Pineville City Court, No. 5-0153; to the Court of Appeal, Third Circuit, No. 05-1248.

Denied.

CALOGERO, C.J., would grant the writ application.


text:
    SUCCESSION OF Anna Rita Babin King CAILLOUET.
    No. 2006-C-1732.
    Supreme Court of Louisiana.
    Oct. 6, 2006.
   In re Jenevein, Robert Administrator; Lotz, Joann Baumann; Jenevein, Gary P.; — Other(s); Applying for Writ of Cer-tiorari and/or Review, Parish of Orleans, Civil District Court Div. F, No. 2003-12060; to the Court of Appeal, Fourth Circuit, No. 2005-CA-0957.

Denied.


text:
    JAMIE LAND COMPANY, INC. v. Francis K. JONES, Jr., et ux.
    No. 2006-C-1735.
    Supreme Court of Louisiana.
    Oct. 6, 2006.
   In re Jamie Land Co. Inc.; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. I, No. 2003-13705; to the Court of Appeal, First Circuit, No. 2005-CA-1471.

Denied.


text:
    Robert FORD and Shirley Ford v. LAFOURCHE PARISH SHERIFF’S OFFICE and Craig Webre.
    No. 2006-C-1738.
    Supreme Court of Louisiana.
    Oct. 6, 2006.
   In re Ford, Robert; Ford, Shirley;— Plaintiff(s); Applying for Writ of Certiora-ri and/or Review, Parish of Lafourche, 17th Judicial District Court Div. B, No. 86420; to the Court of Appeal, First Circuit, No. 2003 CA 1501-R.

Denied.


text:
    GOD’S GLORY & GRACE, INC. v. QUIK INTERNATIONAL, INC., et al.
    No. 2006-C-1739.
    Supreme Court of Louisiana.
    Oct. 6, 2006.
   In re God’s Glory & Grace Inc.; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. M, No. 480-664; to the Court of Appeal, First Circuit, No. 2005-CA-1414.

Denied.


text:
    Chris LEDET, Individually and as Administrator of His Minor Child’s, Terrel Ledet’s, Estate and Janet Ledet, Individually and as Administratrix of Her Minor Child’s, Terrel Ledet’s, Estate v. Lawrence BREAUX, Sharon Breaux, Jennifer Breaux, Celeste Breaux State Farm Fire and Casualty Company, Gordon Dove, XYZ Insurance Company, Robert Page, Robin Page, and ABC Insurance Company.
    No. 2006-CC-1740.
    Supreme Court of Louisiana.
    Oct. 6, 2006.
   In re Breaux, Lawrence et al.; Breaux, Jennifer; State Farm Fire and Casualty Company; Breaux, Sarah; Breaux, Sharon; Breaux, Celeste; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. O, No. 629,030; to the Court of Appeal, First Circuit, No. 2006 CW 0841.

Denied.

VICTORY, J., would grant.


text:
    COMMUNITY ACCEPTANCE CORPORATION v. Raymond VINET, Jr.
    No. 2006-C-1741.
    Supreme Court of Louisiana.
    Oct. 6, 2006.
   In re Vinet, Raymond Jr.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Ascension, 23rd Judicial District Court Div. P, No. 2005-029; to the Court of Appeal, First Circuit, No. 2005-CA-1235.

Denied.


text:
    LEON LOWE & SONS, INC. v. Jane Street GORDEN and Edward Mac Street.
    No. 2006-C-1747.
    Supreme Court of Louisiana.
    Oct. 6, 2006.
   In re Leon Lowe & Sons Inc.; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. C, No. 2004-15865; to the Court of Appeal, First Circuit, No. 2005-CA-1505.

Denied.


text:
    In re GRAMERCY PLANT EXPLOSION AT KAISER.
    No. 2006-CC-2141.
    Supreme Court of Louisiana.
    Oct. 6, 2006.
   In re Hayes, Terrence; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. James, 23rd Judicial District Court Div. D, No. 25,975; to the Court of Appeal, Fifth Circuit, No. 06-C-555.

Denied.


text:
    Larry L. FINDLEY, Jr. v. Billie FINDLEY.
    No. 2006-CC-2280.
    Supreme Court of Louisiana.
    Oct. 6, 2006.
   In re Depwe, Diane Sister; — Other; Applying for Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. I, No. 2004-401; to the Court of Appeal, Third Circuit, No. CW 06-266.

Denied.


text:
    Todd ODOM v. John Peter PHILLIPS, et al.
    No. 2006-CC-2326.
    Supreme Court of Louisiana.
    Oct. 6, 2006.
   In re Odom, Todd; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. E, No. 2000-13279; to the Court of Appeal, Fourth Circuit, No. 2006-C-1138.

Denied.

TRAYLOR, J., recused.

KIMBALL, J., would remand to court of appeal for full opinion.

JOHNSON, J., would remand to court of appeal for full opinion.


text:
    INTERDICTION OF James Allen STEPHENS.
    No. 2006-C-1686.
    Supreme Court of Louisiana.
    Oct. 10, 2006.
   In re Stephen, Lloyd Theland; — Other; Applying for Reconsideration of this Court’s action dated July 12, 2006; Parish of Ouachita, 4th Judicial District Court Division A, No. 88-2470; to the Court of Appeal, Second Circuit, No. 40,965-CA.

Reconsideration not considered. See Louisiana Supreme Court Rule IX, Section 6.


author: MARION F. EDWARDS, Judge.

text:
    STATE of Louisiana v. Brian S. YOUNG.
    No. 05-KA-702.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 14, 2006.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Juliet Clark, Martin A. Belanger, Jr., Assistant District Attorneys, Twenty-Fourth Judicial District, Parish of Jefferson, State of Louisiana, Gretna, Louisiana, for Plaintiff/Appellee.
    Margaret S. Sollars, Attorney at Law, Louisiana Appellate Project, Thibodaux, Louisiana, for Defendani/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., THOMAS F. DALEY, and MARION F. EDWARDS.
   MARION F. EDWARDS, Judge.

2Defendant, Brian S. Young, was charged with and tried for possession of cocaine, a violation of LSA-R.S. 40:967(C). Various pre-trial motions, including a Motion To Suppress, were filed by Young. Following a jury trial, Young was found guilty of the lesser included offense of attempted possession of cocaine. He was initially sentenced to two and one-half years at hard labor, and following a finding that he was a fourth felony offender, was sentenced to twenty-five years at hard labor, without benefit of probation or suspension of sentence. Young appeals his conviction. We affirm and remand for re-sentencing.

Captain Thomas Whitted of the Westwe-go Police Department testified that, at about 2:30 a.m. on August 2, 2003, he was on duty in an unmarked patrol car. Whit-ted was driving, and Captain Van Plai-sance was riding with him. The officers were at the corner of the Westbank Expressway and Avenue A when they spotted 3Young walking back and forth “meandering” through the parking lot of a Fina gas station, which was closed. Young walked out toward the pumps and turned around, and walked back, drawing the officers’ attention. Plaisance testified that the police department had received numerous complaints of drug activity at the filling station, and had executed a search warrant for that location where drug activity, burglaries, and thefts had been reported. Plaisance called for backup, and Officer Usey responded. The officers’ vehicle approached the parking lot slowly, observing Young’s actions. Young seemed nervous, and when he spotted the vehicle, he tried to avoid eyé contact and turned around. As Whitted pulled up to the parking lot, Plaisance testified that Young made a motion with his right hand and threw something down, which the officers could hear when it hit the ground. Whitted and Plai-sance got out of the car, and Plaisance said to Young, “Come see, I want to talk to you.” Plaisance asked Young what he had thrown down, to which Young replied, “It’s a pipe.” Plaisance searched in the throw-down area and found a glass pipe. Officer Usey found a large rock of crack cocaine within a couple of feet from where Young had been standing. The rock was eight or nine times larger than usual. At that point Young was taken into custody.

Usey testified that, at the same time, he saw an object bounce on the ground near Young. Usey exited his car and picked up an off-white rock-like object that appeared to him to be crack cocaine. He conducted a field test on the object, and it was positive for the presence of cocaine. Usey took custody of the rock and the pipe. At trial, he identified State’s Exhibit 1 as the crack cocaine he recovered.

Charles Krone testified that he is a forensic chemist with the Jefferson Parish Sheriffs Office. The parties agreed to stipulate to Krone’s expertise in the examination and identification of narcotics. Krone testified that he tested State’s | 4Exhibit 1 and that the results were positive for the presence of cocaine. Krone further testified that the piece of crack weighed 1.2 grams.

On appeal to this Court, Young raises three assignments of error, among which we find the claim of “insufficiency of the evidence.” When issues are raised on appeal as to sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine sufficiency of the evidence. When the entirety of the evidence, including inadmissible evidence which was erroneously admitted, is insufficient to support the conviction, the accused must be discharged as to that crime, and any issues regarding trial errors become moot.

The standard for appellate review of the sufficiency of evidence is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Evidence may be direct or circumstantial. 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. When circumstantial evidence is used to prove a case, LSA-R.S. 15:438 mandates that “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” On appellate review, the test has been stated by the Louisiana Supreme Court:

On appeal, the reviewing court “does not determine whether another possible hypothesis suggested by a Defendant could afford an exculpatory explanation of the events.” ... Rather, the court must evaluate the evidence in a light most favorable to the state and determine whether the possible alternative hypothesis is sufficiently 5reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt....

To support a conviction for possession of a controlled dangerous substance (here cocaine), in accordance with LSA-R.S. 40:967(C) the State must present evidence establishing beyond a reasonable doubt that Young was in possession of the illegal drug and that he knowingly and intentionally possessed it. Guilty knowledge is an essential element of the crime of possession of a controlled dangerous substance, and such knowledge may be inferred from the circumstances. A person not in physical possession of the drug is considered to be in constructive possession of a drug, even though it is not in his physical custody, when the drug is under that person’s dominion and control. Factors to be considered in determining whether a defendant exercised dominion and control sufficient to constitute constructive possession include: (1) the defendant’s knowledge that illegal drugs were in the area; (2) his relations with the person found to be in actual possession; (3) the defendant’s access to the area where the drugs were found; (4) evidence of recent drug use by the defendant; (5) the existence of paraphernalia; and (6) evidence that the area was frequented by drug users.

Evidence which would support a conviction of a charged offense would necessarily support a conviction for a lesser included offense. An attempt is defined in LSA-R.S. 14:27, which provides in pertinent part:

A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the | ^circumstances, he would have actually accomplished his purpose.
C. An attempt is a separate but lesser grade of the intended crime; and any person may be convicted of an attempt to commit a crime, although it appears on the trial that the crime intended or attempted was actually perpetrated by such person in pursuance of such attempt.

To prove attempted possession of a controlled dangerous substance, the State must show that the defendant committed an act tending directly toward gaining possession of the substance. While possession of cocaine is a general intent crime, an attempt requires specific intent. Specific criminal intent exists “when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” LSA-R.S. 14:10(1). Specific intent may be inferred from the circumstances surrounding the offense and the conduct of the defendant. The fact-finder may draw reasonable inferences to support these contentions based upon the evidence presented at trial.

Young argues that the State failed to prove the element of possession because none of the officers could say they saw the rock of crack cocaine or the crack pipe in his hands.

However, we find that the jury could have reasonably inferred that he had possession of the crack cocaine. The events leading up to his arrest took place at 2:30 a.m. in the parking lot of a filling station that was not open for business. Young was the only person in the vicinity when the officers spotted him.

There was substantial circumstantial evidence that no one other than defendant abandoned the crack cocaine. Captain Whitted testified that the area 7was well lit. There was nothing obstructing the officers’ view of Young. Plaisance testified that Young was eight feet away from the front of his police car when he made a motion with his hand, and Plaisance immediately alerted the other officers to the “throw down.” Within moments, Plaisance found the crack pipe “a couple of feet” from where Young stood. He testified that the rock of crack cocaine was also “a couple of feet” from Young. Whitted also testified that he saw Young make a hand motion, and, moreover, he heard the pipe hit the ground. Usey testified that he did not see the object leave Young’s hand but that he did see the white rock bounce off the black asphalt, near Young, and went directly to retrieve it. When asked, Young admitted to having thrown a pipe, a piece of drug paraphernalia, and this admission was strong circumstantial evidence that he had dominion and control over the crack cocaine. We also find the admission, went toward proving guilty knowledge. Thus, we find that, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that Young was guilty of attempted possession of cocaine and that the evidence excluded every reasonable hypothesis of innocence.

Young next alleges that the trial court erred in failing to suppress physical evidence as a result of an illegal seizure. By this assignment, Young complains that the trial court should have suppressed the evidence seized at the scene, as it was the product of an illegal stop.

Law enforcement officers are authorized by LSA-C.Cr.P. art. 215.1, as well as state and federal jurisprudence, to perform investigatory stops which permit officers to stop and interrogate a person reasonably suspected of criminal activity. The Terry standard, as codified in LSA-C.Cr.P. art. 215.1, authorizes a police officer “to stop a person iñ a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and to demand that 8the person identify himself and explain his actions.” The “reasonable suspicion” necessary for an investigatory stop “is something less than probable cause, and must be determined under the facts of each case by whether the officer had sufficient knowledge of the facts and circumstances to justify an infringement on the individual’s right to be free from governmental interference.”

In a hearing on a motion to suppress, the State bears the burden of proof in establishing the admissibility of evidence seized without a warrant. LSA-C.Cr.P. art. 703(D). “The trial court’s decision to deny a motion to suppress is afforded great weight and will not be set aside unless the preponderance of the evidence clearly favors suppression.” To determine whether the trial court’s denial of the motion to suppress is correct, the appellate court may consider the evidence adduced at the suppression hearing as well as the evidence presented at trial. In determining whether an investigatory stop was justified by reasonable suspicion, a reviewing court must consider the totality of the circumstances, “giving deference to the inferences and deductions of a trained police officer ‘that might well elude an untrained person.’” Factors that may support reasonable suspicion for an investigatory stop include an officer’s experience, his or her knowledge of recent criminal patterns, and his or her knowledge of an area’s frequent incidence of crime. While an individual’s mere presence in a high-crime area, standing alone, is insufficient to justify an investigatory stop, his presence in a high-crime area coupled with nervousness, startled behavior, flight or suspicious actions upon 9the approach of the officers, gives rise to reasonable suspicion for an investigatory stop.

At the suppression hearing, Captain Plaisance testified that the business where Young was standing was known to have a big problem with crack cocaine. He stated that he had once participated in the arrest of a service station attendant for selling crack there. When Plaisance first spotted Young, he was behaving in a nervous and suspicious manner. It was 2:00 a.m., and the filling station was closed. Young was pacing back and forth in the filling station’s empty parking lot, and he appeared to be checking to see whether someone was watching him. Plaisance testified that there had been recent burglaries in the area. The officer said that Young’s actions caused him, based on his law enforcement expertise, to investigate what he was doing there.

Captain Whitted was specific both at trial as well as at the hearing as to his reasons for stopping Young. Given the articulated circumstances, it was reasonable for the officers to reasonably suspect that Young might be planning to burglarize the filling station. The officers were entitled to approach Young to determine what he was doing on the premises at that hour of the morning.

Young argues that the officers did not have reasonable suspicion to stop him, and that the seizure of the cocaine and pipe resulted from an unlawful “seizure” of his person. In the instant case, the relevant inquiry is whether, at the time Young abandoned the cocaine, the officers had illegally accomplished an actual or imminent actual stop. When officers do not have the right to make an investigatory stop, property abandoned or otherwise disposed of as a result thereof cannot be legally seized. But if property is abandoned prior to any unlawful intrusion into a citizen’s right to be free from governmental interference, then the 10property may be lawfully seized and used in the resulting prosecution. Because these rules of inadmissibility are intended to protect individuals from unwarranted, forcible governmental interference “ ‘it is only when the citizen is actually stopped without reasonable cause or when a stop without reasonable cause is imminent that the ‘right to be left alone’ is violated, thereby rendering unlawful any resultant seizure of abandoned property.’” An actual stop is imminent “only when the police come upon an individual with such force that, regardless of the individual's attempts to flee or elude the encounter, an actual stop of the individual is virtually certain....”

Factors to be considered in determining whether an actual stop is imminent include: (1) the proximity of the police in relation to the defendant at the outset of the encounter; (2) whether the individual has been surrounded by the police; (3) whether the police approached the individual with their weapons drawn; (4) whether the police and/or the individual are on foot or in motorized vehicles during the encounter; (5) the location and characteristics of the area where the encounter takes place; and (6) the number of police officers involved in the encounter.

A seizure does not occur simply because an officer approaches an individual and asks a few questions, as long as a reasonable person would feel free to disregard the police and go about his business. The test for whether a “seizure” has occurred, then, “is whether a reasonable person would feel free to decline the officer’s request or otherwise terminate the encounter.” In deciding what constitutes a “reasonable person,” one must look “from the viewpoint of an hfinnocent person in his position.” Accordingly, the question that the Court must address in determining at what point a seizure occurred is at what instant would police conduct have communicated to a reasonable, innocent person that he was not free to decline the officer’s request or otherwise terminate the encounter.

Here, the record reflects that Young was not actually stopped until after he abandoned the cocaine. The record also reflects that no unlawful imminent stop triggered his abandonment of the cocaine. Young was not surrounded by the police. Only three police officers were involved in the encounter, and they approached Young slowly in two cars. When they stopped the unmarked police car near Young, he turned away. Whitted testified that he told Young through the open car window, “ ‘Come see, I want to talk to you,’ ” and it was then Young threw something on the ground. Captain Plaisance and Officer Usey both stated that they were still inside their unmarked police car when Young made a motion with his hand as if he were throwing something. There was no testimony that the officers drew their guns or that they surrounded Young. Nothing in the record shows that the officers approached him with such force that, regardless of his attempts to flee, an actual stop was virtually certain.

Given all these facts, we cannot say that the seizure of the cocaine was the product of an unlawful stop or seizure. This assignment of error is without merit.

Finally, Young contends the trial court erred in failing to grant a mistrial when the prosecutor elicited testimony which Young terms “other crimes evidence.” During re-direct examination of State’s witness Captain Thomas Whitted, the prosecutor asked what property Young had on his person at the time of arrest. Whitted replied, “A South Louisiana prison I.D. and I think maybe some keys.” Defense counsel made an objection and, during a sidebar discussion, L ¡.moved the judge to grant a mistrial, arguing that the reference to a prison identification suggested to the jury that defendant had a prison record. The judge denied the mistrial motion without reasons.

Generally, evidence of other crimes or bad acts committed by a criminal defendant is inadmissible at trial due to the risk of grave prejudice to the defendant. LSA-C.Cr.P. art. 770 mandates a ■mistrial upon motion of the defendant “when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to ... [ajnother crime committed or alleged to have been committed by the defendant as to which evidence is inadmissible [.]” Mistrial is a drastic remedy which should be employed only where remarks result in substantial prejudice sufficient to deprive the defendant of a fair trial.

A mistrial is not warranted unless a witness clearly refers to other crimes alleged to have been committed by the defendant.

[A] comment must not “arguably” point to a prior crime; to trigger mandatory mistrial pursuant to 'Article 770(2), the remark must “unmistakably” point to evidence of another crime. State v. Babin, 336 So.2d 780 (La.1976) (where reference to a “mug shot” was not unmistakable reference to a crime committed by defendant); State v. Harris, 258 La. 720, 247 So.2d 847 (1971) (where no crime was evidenced by a police officer’s reference to obtaining defendant’s photograph from the Bureau of Investigation). In addition, the imputation must “unambiguously” point to defendant. State v. Edwards, 406 So.2d 1331, 1349 (La.1981), cert. denied sub nom. Edwards v. La., 456 U.S. 945, 102 S.Ct. 2011, 72 L.Ed.2d 467 (1982). The defendant has the burden of proving that a mistrial is warranted. See State v. May, 362 So.2d 516 (La.1978).

13In this instance, Whitted did not refer to a specific “other crime” committed by Young. Young did not meet his burden of showing a mistrial was warranted. This assignment of error is without merit.

Our error patent review discloses that neither the habitual offender transcript nor the commitment shows that the trial court vacated Young’s original sentence of two and one-half years before imposing the habitual offender sentence. Further, the habitual offender transcript shows that the court erred in advising Young that he had “two years from the date of this sentence to seek post-conviction relief.” LSA-C.Cr.P. art. 930.8 provides that a defendant has two years “after the judgment of conviction and sentence has become final” in which to file a post-conviction relief application.

For the foregoing reasons, Young’s conviction is affirmed. The matter is remanded to the trial court for habitual offender re-sentencing, with instructions that the court.. first vacate Young’s original sentence, advise him of the proper time limitation at his habitual offender re-sentencing, and file written proof in the record that Young received such notice.

AFFIRMED; REMANDED FOR RE-SENTENCING.

      . State v. George, 95-0110 (La. 10/16/95), 661 So.2d 975, 978; State v. Conner, 02-363, p. 7 (La.App. 5 Cir. 11/13/02), 833 So.2d 396, 401, writ denied, 02-3064 (La.4/25/03), 842 So.2d 396.

      . Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979).

      . State v. Jones, 04-1258 (La.App. 5 Cir. 4/26/05), 902 So.2d 426.

      . State v. Mitchell, 99-3342 (La.10/17/00), 772 So.2d 78, 83; State v. Jones, supra.

      . LSA-R.S. 967(C); See also, State v. Jones, supra.

      . State v. Alo, 04-62 (La.App. 5 Cir. 10/12/04), 886 So.2d 1130.

      . State v. Lathers, 03-941 (La.App. 5 Cir. 2/23/04), 868 So.2d 881, 885.

      . State v. Jones, supra.

      . Id.

      . State v. Lee, 03-901 (La.App. 5 Cir. 12/9/03), 864 So.2d 654, 659.

      . State v. Jones, supra.

      . State v. Chattman, 01-556 (La.App. 5 Cir. 10/30/01), 800 So.2d 1043, 1048, writ denied, 01-3320 (La. 12/19/02), 833 So.2d 332.

      . State v. Jones, supra.

        . State v. Becnel, 04-1266 (La.App. 5 Cir. 5/31/05), 904 So.2d 838 (citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)); See also, State v. Melancon, 03-514 (La.App. 5 Cir. 10/28/03), 860 So.2d 225, 229, writ denied, 03-3503 (La.4/23/04), 870 So.2d 297.

      . State v. Becnel, supra.

      . State v. Flagg, 01-65 (La.App. 5 Cir. 7/30/01), 792 So.2d 133, 138, writ denied, 01-2534 (La.9/20/02), 825 So.2d 1159 (citation omitted).

      . Id.

      . State v. Huntley, 97-0965, p. 3 (La.3/13/98), 708 So.2d 1048, 1049 (per curiam) (quoting United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981)).

      . State v. Burns, 04-175 (La.App. 5 Cir. 6/29/04), 877 So.2d 1073.

      . Id.

      . State v. Tucker, 626 So.2d 707, 710 (La.1993).

      . State v. Mitchell, 877 So.2d 1151, 1155 (La.App. 5 Cir. 2004) (citing State v. Belton, 441 So.2d 1195, 1199 (La.1983)).

      . Id.

      . Id.

      . State v. Long, 2003-2592 (La.9/9/04), 884 So.2d 1176 (citing Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389 (1991)).

      . Id.

      . Id.

      . State v. Williams, 01-1007(La. App. 5 Cir. 2/26/02), 811 So.2d 1026, 1030.

      . Id.

      . State v. Fisher, 03-326, p. 14 (La.App. 5 Cir. 7/29/03), 852 So.2d 1075, 1083, writ denied, 03-2545 (La.5/14/04), 872 So.2d 510.

        . State v. Edwards, 97-1797, p. 20 (La.7/29/99), 750 So.2d 893, 906, cert. denied, 528 U.S. 1026, 120 S.Ct. 542, 145 L.Ed.2d 421 (1999).


author:
PER CURIAM. CARTER, C.J.,
      McCLENDON, J.,

text:
    WHITTEN FOUNDATION v. Brian WILSON, in His Capacity as Tax Assessor for East Baton Rouge Parish, Louisiana; the Louisiana Tax Commission; and Elmer Litchfield in His Capacity as Sheriff and Ex-Officio Tax Collector for East Baton Rouge Parish, Louisiana.
    No. 2004 CA 2454.
    Court of Appeal of Louisiana, First Circuit.
    May 19, 2006.
    Thomas D. Fazio, Baton Rouge, Counsel for Plaintiff/Appellant Whitten Foundation.
    Cyrus Greco, Leu Anne Lester Greco, Baton Rouge, Counsel for Defendant/Ap-pellee Sheriff Elmer Litchfield.
    Before: CARTER, C.J., WHIPPLE, PARRO, KUHN, GUIDRY, PETTIGREW, DOWNING, GAIDRY, McDonald, McClendon, hughes, and WELCH, JJ.
   PER CURIAM.

2In this matter, a taxpayer challenges a trial court judgment dismissing its suit for the recovery of taxes paid under protest in the year after the taxes were assessed. For the following reasons, we affirm.

On May 6, 2003, the plaintiff, Whitten Foundation, filed a Petition to Recover Taxes Paid Under Protest against Brian Wilson, in his capacity as Tax Assessor for East Baton Rouge Parish; the Louisiana Tax Commission; and Elmer Litchfield, in his capacity as Sheriff and Ex-Officio Tax Collector for the Parish of East Baton Rouge. In its petition, Whitten asserted that it is a Louisiana non-profit corporation and exempt from ad valorem taxation -under the Louisiana Constitution. Whit-ten alleged that it received certain real estate tax bills for the year 2002 from East Baton Rouge Parish totaling $41,360.00, relative to certain real estate owned by Whitten. Attached to the petition were copies of the delinquent tax notices for the 2002 taxes, dated April 1, 2008, for said properties. Whitten further alleged that on April 15, 2003, it paid the taxes under protest and filed this suit to recover the amounts paid under protest.

In response thereto, Sheriff Litchfield filed a peremptory exception raising the objection of prescription seeking dismissal of Whitten’s claim with prejudice. A hearing on the exception was held on August 9, 2004, at which time the trial court granted the exception. Judgment was signed on August 20, 2004. Whitten appealed.

At all relevant times hereto, LSA-R.S. 47:2101 A(l) provided in pertinent part:

All taxes shall be collected in the calendar year in which the assessment thereof is made, and they shall be designated as the “taxes for the year_”, accordingly as they are collectible, hand the taxes assessed in each year shall be due in that calendar year as soon as the tax roll is filed in the office of the recorder of mortgages, ... and they shall be paid on or before the thirty-first day of December in each respective year in order to avoid the notice, advertisement, and sale required by Article VII, Section 25 of the Louisiana Constitution.

Louisiana Revised Statute 47:2110 also provided in relevant part:

A. (1) No court of this state shall issue any process whatsoever to restrain or render any decision that shall have the effect of impeding the collection of an ad valorem tax imposed by the state, or by any political subdivision thereof, under authority granted to it by the legislature or by the constitution.
(2) Any person resisting the payment of any amount of tax due shall pay the amount due to the officer designated by law for the collection of such tax and shall give him, the parish or district assessor, and the Louisiana Tax Commission written notice at the time of payment of his intention to file suit for the recovery of such tax. Upon receipt of such notice, the amount so paid shall be segregated and held by the officer for a period of thirty days. If a - suit is timely filed contesting the correctness of the assessment pursuant to R.S. 47:1998 and seeking the recovery of' the tax, then that portion of the taxes paid that are in dispute shall be deemed as paid under protest and such amount shall be segregated and shall be further held pending the outcome of the suit. That portion of the taxes paid by the taxpayer to the officer which is neither in dispute nor the subject of a suit contesting the correctness pursuant to R.S. 47:1998 shall not be made subject to the protest.
* * * *
B. The right to sue for recovery of a tax paid under protest as provided herein shall afford a legal remedy and right of action in any state or federal court having jurisdiction of the parties and subject matter for a full and complete adjudication of any and all questions arising in the enforcement of such right respecting the legality of any tax accrued or accruing or the method of enforcement thereof. In any such suit, service of process upon the officer or agency designated and provided for in R.S. 47:1998(A)(2) or (B)(3) or 2110(A) shall be required.
C. The right to sue for recovery of a tax paid under protest as provided herein shall afford a legal remedy and right of action at law in the state or federal courts where any tax or the collection thereof is claimed to be an unlawful burden upon interstate commerce, or in violation of any act of the Congress of the United States, the Constitution of the United States, or the constitution of the state.

4Whitten contends that the trial court erred in dismissing its claim because LSA-R.S. 47:2110 does not require that the protested taxes be paid before December 31 of the year in which the taxes are due. On the other hand, Sheriff Litchfield contends that LSA-R.S. 47:2110 must be read in pari materia with LSA-R.S. 47:2101 A(l), which requires that all taxes due in a given year be paid on or before the thirty-first of December in the calendar year in which the assessment is made, in order to avoid the notice, advertisement, and sale of the property.

In Capital Drilling Company v. Graves, 496 So.2d 487, 491-92 (La.App. 1 Cir.1986), this Court construed LSA-R.S. 47:2110 and 47:2101 A in pari materia and concluded that payment under protest must be made in the calendar year in which the assessment is made in order to preserve the right to litigate the validity of the tax. The Capital Drilling case has been followed in this circuit by Comm-Care Corporation v. Louisiana Tax Commission, 96-0039 (La.App. 1 Cir. 9/27/96), 681 So.2d 1001, aff'd on other grounds, 96-1711 (La.1/21/98), 706 So.2d 425 (on rehearing), and Louisiana Employers-Managed Insurance Company v. Litchfield, 01-0123 (La.App. 1 Cir. 12/28/01), 805 So.2d 386.

Accordingly, because the taxes assessed in 2002 in this matter were not paid until 2003, even though paid under protest, they were delinquent. Although we find nothing in the provisions of LSA-47:2110 that expressly requires timely payment of the taxes, because a majority of this court does not agree to overrule Capital Drilling, under the law of the circuit, we are bound to apply its holding. See LSA-Const. Art. V, § 8(B). Thus, the April 2003 payment was not timely and did not preserve Whitten’s right to litigate the validity of the tax. The trial court correctly granted the peremptory exception and dismissed Whit-ten’s suit.

5For the foregoing reasons, the judgment of the trial court maintaining Sheriff Elmer B. Litchfield’s peremptory exception of prescription and dismissing the claims against Sheriff Litchfield with prejudice, is affirmed. Costs of this appeal are assessed against Whitten Foundation.

AFFIRMED.

DOWNING and WELCH, JJ., dissent.

CARTER, C.J., concurs with reasons.

WHIPPLE and GUIDRY, JJ., concur.

McCLENDON J., concurs and assigns reasons.

CARTER, C.J.,

concurring.

1I respectfully concur for the reasons assigned in my concurring opinion in Louisiana Employers-Managed Ins. Co. v. Litchfield, 01-0123 (La.App. 1 Cir. 12/28/01), 805 So.2d 386, 392.

McCLENDON, J.,

concurs, and assigns reasons.

1Because a majority of this court does not agree to overrule current jurisprudence of the First Circuit, I reluctantly concur with the majority opinion, based on the law of the circuit. However, I find the reasoning set forth in Comm-Care Corporation v. Bishop, 95-1246 (La.App. 3 Cir. 3/6/96), 673 So.2d 212, rev’d on other grounds, 96-1711 (La.1/21/98), 706 So.2d 425 (on rehearing), to be the better analysis.

      . The tax notices contained language that “taxes are delinquent after December 31st”


author: WALTER J. ROTHSCHILD, Judge, Ad Hoc.

text:
    Sandra Jean WADE v. TEACHERS’ RETIREMENT SYSTEM OF LOUISIANA.
    No. 2005-CA-1590.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 2006.
    Rehearing Denied July 17, 2006.

      Kenneth R. Williams, Baton Rouge, Counsel for Plaintiff/appellant.
    John L. Stone, III, Baton Rouge, Counsel for Defendant/Appellee.
    Panel composed of Ad Hoc Judges THOMAS F. DALEY, CLARENCE E. McMANUS, and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge, Ad Hoc.

2Plaintiff, Sandra Jean Wade, filed a claim for disability benefits as an eligible member of the Teachers Retirement System of Louisiana pursuant to the provisions of La. R.S. 11:203, Her claim was denied on the basis that she did not qualify for disability retirements benefits according to medical evaluations.

Following this denial of benefits, Mrs. Wade filed the instant petition in the 19th Judicial District Court seeking reversal of this ruling and an award of disability benefits. She alleged that the denial of her application for benefits denied her substantive and constitutional rights. In the alternative, plaintiff requested that the court hold a hearing to accept relevant evidence in this matter.

This matter was heard in the trial court on January 28, 2005. The trial court rendered judgment on May 13, 2005 in favor of the Teachers Retirement System of Louisiana and against plaintiff, denying her claim for disability retirement benefits and dismissing her suit with prejudice. Plaintiff moved for and was granted a devolutive appeal from this judgment.

3Facts

Plaintiff worked as a technician in the food service department for the Livingston Parish School Board from October 1, 1989 until July of 2001. In October of 2001, she filed the present claim stating she suffered from bipolar disorder, panic attacks and anxiety that have prevented her from performing her duties. Mrs. Wade testified at trial that in 1985, she was treated by her family physician for depression related to her father’s death. She also stated that antidepressants were prescribed for her in 1990. She stated she began going to the Family Health Center in 1991 for depression, nervousness and sleep problems at the time she was employed by the school board. Mrs. Wade stated that in 2001 she had a nervous breakdown and spent 10 days in mental hospital. She stated that she was unable to function on the job because of this condition.

Mrs. Wade stated that at the time of this incident, there were events in her life which were troublesome, including marital problems and having her boss and her granddaughter diagnosed with cancer. Prior to this incident, Mrs. Wade was taking medications for depression, anxiety, panic attacks and mood swings. She testified that she was unable to work after the 2001 incident because she was unable to concentrate and she was having mood swings. She stated that she did not make an attempt to go back to work since she was discharged from the hospital in July of 2001.

Dr. Navin Patel, a psychiatrist, testified that he began to treat Mrs. Wade in the 1991 at the Family Health Center as an outpatient. He treated her with medication for depression, anxiety and mood swings until 1995 when Mrs. Wade began seeing his partner. Dr. Patel stated he began treating Mrs. Wade again in 1999, and recommended in patient treatment at Charis Hospital in Baton Rouge in July of 2001 because he believed she needed |4more intensive care. Dr. Patel stated that her treatment at the Family Health Center was terminated in 2001 when she moved to Mississippi to live with her mother.

Dr. Patel stated that while Mrs. Wade was hospitalized, she decided she could no longer function at work and she made the decision to quit her job with the school board. Dr. Patel believed this was a good decision and his professional opinion was that Mrs. Wade’s bi-polar illness made her unable to function at work. Dr. Patel testified that at the time of her discharge from the hospital in 2001, his opinion was that she was permanently disabled from performing the normal duties of her employment or any other employment. For this reason, he prepared a physician’s report of disabling condition which was presented to the teachers’ retirement system.

Dr. Patel further stated that Mrs. Wade did not respond adequately to conventional treatment to stabilize her. He also stated that although her medical records indicated that Mrs. Wade first complained of depression to her family physician in 1985, she was not diagnosed or treated for bipolar illness until 1991. He said it was not unusual to have symptoms of bi-polar illness early in age, and to be diagnosed with the illness later in life.

The record contains Mrs. Wade’s statement of her disabling condition which was presented to the teachers’ retirement system. In this statement, she stated she had been under a doctor’s care since the age of 25, but that she went into a mental hospital in July of 2001. The record also contains two reports from psychiatrists who examined Mrs. Wade at the request of the school board in 2002. The report of Dr. Jeanne Estes stated that she saw Mrs. Wade in April of 2002, and that she reviewed her medical history. Dr. Estes concluded that although Mrs. Wade was depressed, she was not 5permanently disabled from work, but is capable of performing her duties as a cafeteria technician with adequate treatment. Dr. Estes also found that Mrs. Wade’s medical record indicate that she was depressed prior to her entry into the teachers’ retirement system.

The report of Dr. Larry Wade, a psychiatrist, revealed that he interviewed Mrs. Wade on February 1, 2002 and that he reviewed her medical records. After a lengthy report, Dr. Wade found that plaintiff suffered from depression and anxiety with an underlying personality disorder. He noted that the application for disability referred to cyclic moods since age 25, as well as other notations of cyclic moods which predate her entry into the retirement system. Dr. Wade also found that plaintiff was not totally and permanently disabled from her job, and he recommend that her application for medical disability be denied.

In its written reasons for judgment the trial court stated in part:

It is well established in the law of this State that the plaintiff, Sandra Jean Wade, has the burden of proof and must prove her case by a preponderance of the evidence. The plaintiff in this ease has not convinced this court she has carried her burden of proof. Mrs. Wade often gave confusing answers to questions propounded to her and at one time testified that she did not know what was going on around her for several days. Her testimony was not very credible and convincing. Mrs. Wade testified that from July 7, 2001 until she applied for disability benefits she made no attempt to return to work. Dr. Patel, Mrs. Wade’s treating physician, testified that •'"Mrs. Wade was unable to care for herself and work at any job, but he did not testify that he advised Mrs. Wade to quit her job for medical reasons.
There was testimony that prior to the time Mrs. Wade submitted her resignation papers she had moved to Mississippi on a permanent basis. Both of the physicians who examined Mrs. Wade for the school board, Dr. Lawrence Wade and Dr. Jeanne M. Estes found that Mrs. Wade was not entitled to disability benefits. Both of these qualified doctors examined Mrs. Wade and the Board was justified in relying on their opinions. There has been no medical evidence produced by Mrs. Wade |fiwhich substantiates her entitlement to disability retirement.
This court finds as a matter of law that plaintiffs condition existed prior to her employment at the Livingston Parish School Board on October 1, 1989. This court also finds as a matter of law that Mrs. Wade is not totally and permanently disabled from performing her job duties with the Livingston Parish School Board.

Discussion

On appeal, Mrs. Wade first contends that the trial court erred in excluding from evidence regarding her medical treatment and other occurrences after November 6, 2001. She argues that this evidence would have proven her disability was likely to be permanent, and that it was therefore material and relevant to the issues before the court. The evidence regarding her treatment beyond November 6, 2001 was presented to the court in the form of a proffer.

The trial court is granted broad discretion on its evidentiary rulings and its determinations will not be disturbed on appeal absent a clear abuse of that discretion. Roberts v. Owens-Coming Fiberglas Corp., 03-0248 (La.App. 1 Cir. 4/2/04), 878 So.2d 631, 646, writ denied, 04-1834 (La.12/17/04), 888 So.2d 863, citing Emery v. Owens-Corporation, 00-2144 (La.App. 1 Cir. 11/9/01), 813 So.2d 441, 448, unit denied, 02-635 (La.5/10/02), 815 So.2d 842. Evidence which is not relevant is not admissible. La. C.E. art. 402. Further, although relevant, evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time. La. C.E. art. 403. Legal error in a trial court’s decision on admission of evidence requires a de novo review of the record. Farley v. State Through Dept. of Transp. and Development, 96-538 (La. App. 1 Cir. 9/27/96), 680 So.2d 750, 755, writ denied, 96-2604 (La.12/13/96), 7692 So.2d 1065, citing Brumfield v. Guilmino, 93-0366 (La.App. 1 Cir. 3/11/94); 633 So.2d 903, 911, writ denied, 94-0806 (La.5/6/94), 637 So.2d 1056.

In order to qualify for disability benefits, the alleged disability must have been incurred while the plaintiff was an active contributing member of TRSL. La. R.S. 11:203. Further, the physician report required by La. R.S. 11:218 must contain a statement that the applicant must be totally incapacitated for the further performance of normal duties and that such incapacity is permanent.

In the present case, the trial court excluded evidence of plaintiffs condition after her claim for disability was filed. However, the trial court allowed plaintiffs treating physician to testify that he relied on subsequent medical records in reaching his conclusion that plaintiff was permanently disabled.

We have carefully reviewed the record in this case and we fail to find that the trial court abused its discretion in excluding the evidence of Mrs. Wade’s condition and medical treatment after she terminated her employment with the school board. The primary issue to be resolved by the trial court was whether Mrs. Wade’s alleged disability was incurred while she was a member of the retirement system. While the statutory scheme also requires a statement that the disability was permanent, this criteria was met by Dr. Patel’s physician’s report to the retirement system.

Further, the trial court allowed Dr. Patel to state that he reviewed Ms. Wade’s post-termination medical history in reaching his conclusions regarding her disability. Considering Dr. Patel’s testimony on this issue, we find that the probative value of this evidence would have been outweighed by a danger of unfair prejudice and the evidence would have 8additionally confused the issues. Under these circumstances, we find no abuse of the trial court’s discretion in excluding this evidence.

We have also reviewed the proffered evidence and fail to find any prejudice to plaintiff in the exclusion of this evidence. The evidence presented is cumulative of Dr. Patel’s testimony and tends to support the trial court’s determination that the disability pre-existed plaintiffs employment with the school board.

Mrs. Wade next contends that the trial court erred in failing to assign proper weight to Dr. Patel’s testimony. Plaintiff contends that a treating physician’s testimony must be accorded greater weight than that of a non-treating physician since the former is more likely to know the claimant’s symptoms and complaints due to repeated examinations, citing Ivy v. Holding Co., 02-1927 (La.App. 1 Cir. 7/2/03), 859 So.2d 22.

A trial court has great discretion in determining whether to qualify a witness as an expert, and such discretion will not be disturbed on appeal in the absence of manifest error. Lemaire v. CIBA-GEI-GY-Corp., 99-1809 (La.App. 1 Cir. 6/22/01), 793 So.2d 336, 349, writ denied, 01-2153 (La.11/16/01), 802 So.2d 608. A trial court may accept or reject in whole or in part the opinion expressed by an expert. Hart v. Riverside Medical Center, 01-2428 (La.App. 1 Cir. 11/8/02), 835 So.2d 771, 773. The effect and weight to be given expert testimony is within the broad discretion of the trial judge. Thornton ex rel. Laneco Const. Systems, Inc. v. Lanehart, 97-2871 (La.App. 1 Cir. 12/28/98), 723 So.2d 1127, 1130, writ denied, 99-177 (La.3/19/99), 740 So.2d 115. The rule that questions of credibility are for the trier-of-fact applies to the evaluation of expert testimony, unless the stated reasons of the expert are patently unsound. Williams v. Rubicon, Inc., 01-74 (La.App. 1 Cir. 2/15/02), 808 So.2d 852, 858. It is well settled in 3Louisiana that the trial court is not bound by the testimony of an expert, but such testimony is to be weighed the same as any other evidence. Id.

At trial, the trial court was presented with expert testimony from three witnesses regarding the onset and extent of plaintiffs disability. Dr. Patel’s medical records indicate that plaintiff was treated for depression prior to her employment with the school board. In addition, Dr. Patel, who opined that plaintiff was permanently disabled, testified that he did not treat plaintiff beyond her 2001 discharge from the hospital. Dr. Patel testified that plaintiff decided in the hospital that she would not return to work, and there was no evidence presented that plaintiff was instructed by any of her physicians not to return to work. Further, other than plaintiffs own subjective belief and Dr. Patel’s support thereof, there is no indication in the record that plaintiffs disability was permanent. The record shows that she moved to Mississippi after her discharge from the hospital and that she admitted that she had not attempted to go back to work.

The trial court heard the testimony of Dr. Patel and also reviewed the reports presented by Drs. Estes and Wade. The trial court also heard the testimony of plaintiff herself regarding her disability and he failed to find that testimony to be credible. To the extent the expert testimony conflicts, the trial court chose to credit the opinions of Drs. Estes and Wade over that of Dr. Patel. We have thoroughly reviewed the entire record in this matter and find that a reasonable basis exists for the trial court’s factual findings. There is ample evidence in the record to support the trial court’s finding that Mrs. Wade disability pre-existed her employment and was not permanent. Absent a finding of manifest error, we will not disturb the trial court’s findings.

10By her remaining assignments of error, Mrs. Wade argues that the court misinterpreted her testimony and placed undue weight on the external stressors she faced as well as her lack of clarity and her confusion at trial. Mrs. Wade also contends that the trial court failed to adequately consider the documentary evidence presented and that the trial court erred in noting plaintiffs failure to call her supervisor as a witness at trial. Finally, Mrs. Wade contends that the trial court erred in reaching the conclusion that her illness pre-existed her employment with the school board.

Each of these claims involves factual findings or credibility determinations made by the trial court. It is well settled that a trial court’s findings of fact may not be reversed absent manifest error on unless clearly wrong. Stobart v. State of Louisiana, Through Dep’t of Transp. and Dev., 617 So.2d 880 (La.1993). Evaluations of credibility and reasonable inferences of fact should not be disturbed on review. When reviewing the trial court’s findings of fact, the appellate court must review the entire record to determine whether the trial court’s conclusion was a reasonable one. Id. If the trial court’s findings are “reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Id. at 882-83, quoting Housley v. Cerise, 579 So.2d 973 (La.1991). See also, Hartford v. Wal-Mart Stores, Inc., 99-753 (La.App. 1 Cir. 5/16/00), 765 So.2d 1081, 1084 writ denied, 00-1758 (La.9/22/00), 768 So.2d 603.

We have carefully reviewed the entire record in this case, including the testimony at trial, the proffer of evidence and the exhibits submitted by both parties. Mrs. Wade’s testimony contains evidence that she was treated for depression prior to beginning her employment with the school board and 11that the onset of several external factors exacerbated her condition. Dr. Patel’s testimony also contains evidence regarding Mrs. Wade’s prior treatment for depression. A review of Mrs. Wade’s testimony supports the trial court’s credibility determination, which the trial court was in the best position to assess. Further, it is unclear from her testimony whether she resigned from her employment or was forced to resign, and we fail to find the trial court’s question about the testimony of her supervisor to be unreasonable. Finally, it is clear from the trial court’s written reasons for judgment that all testimony and documentary evidence was considered prior to the rendition of judgment. Under these circumstances, we find that there is a reasonable factual basis in the record for the findings of the trial court, and we find that the record further establishes that the findings are not manifestly erroneous.

Conclusion

Accordingly, for the reasons assigned herein, the judgment of the trial court dismissing the claims of plaintiff Sandra Jean Wade is hereby affirmed.

AFFIRMED.


author: THOMAS F. DALEY, Judge Ad Hoc.

text:
    Eric DUNLAP v. LOUISIANA STATE UNIVERSITY HEALTH SCIENCES CENTER— Medical Center of Louisiana at New Orleans.
    No. 2005-CA-1605.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 2006.

      Joel P. Loeffelholz, New Orleans, Counsel for Plaintiff/Appellant.
    Philip H. Kennedy, LSU Health Sciences Center, Medical Center of Louisiana at New Orleans, New Orleans, Counsel for Defendant/Appellee.
    Panel composed of Ad Hoc Judges THOMAS F. DALEY, CLARENCE E. McMANUS, and WALTER J. ROTHSCHILD.
   THOMAS F. DALEY, Judge Ad Hoc.

2Appellant, Eric Dunlap, appeals a decision by the Louisiana Civil Service Commission, which denied his application for review of the referee’s decision in this matter. For the reasons that follow, we affirm the decision of the referee.

FACTS:

Eric Dunlap was employed by Louisiana State University, Health Science Center for six years as a licensed Pharmacy Technician at the Medical Center of Louisiana at New Orleans. As such, he was a permanent-status civil service employee. In Louisiana, Pharmacy Technicians are licensed under the jurisdiction of the Louisiana State Board of Pharmacy (the Board). The technicians are issued a license that is valid from July 1 to June 30 of each year, contingent upon the completion of ten hours of approved continuing education. The Board requires that the technician fill out a renewal application stating that they have performed the required ten hours of continuing education during the twelve months prior to being issued a renewed license. The Board does not require that the technician 3send proof of continuing education; rather, the Board requires that the technician’s continuing education certificates are verified by the employing pharmacy and kept on file at their primary place of employment.

Mr. Dunlap was on sick leave from June 4, 2003 until July 29, 2003. During that time, he forwarded a renewal application to the Board and received a license valid from July 1, 2003 until June 30, 2004. Upon his return to work on July 30, 2003, he was asked to present his renewed license and certificates of continuing education to his employer. Mr. Dunlap presented continuing education certificates from a company known as Jobson, which provides continuing education programs for pharmacy technicians via the internet. Mr. Dunlap’s employer noted that there appeared to be irregularities in the dates on which some of the exams were submitted and processed. He was placed on leave while the matter was investigated.

Mr. Dunlap’s employer contacted the Board and the Board requested the continuing education certificates from Mr. Dunlap. Mr. Dunlap complied with the Board’s request, but sent certificates to the Board that indicated he received only four hours of continuing education prior to June 30, 2003 and the remainder of the required hours after that date. The Board noted that Mr. Dunlap had signed his renewal application stating that he received the required ten hours of continuing education prior to June 30, 2003 and reserved the right to prosecute him for this matter. His license was not suspended or revoked.

Mr. Dunlap’s employer terminated him for submitting falsified documents to misrepresent his required continuing education. He filed an appeal to the State Civil Service Commission. Following a hearing, the referee concluded that the employer was not unreasonable in determining that Mr. Dunlap was not trustworthy because he had submitted the altered documents to his employer and that termination was not grossly disproportionate to the offense. Mr. Dunlap filed 14an application requesting that the Civil Service Commission review the decision of the referee. That application was denied and this timely appeal followed.

ASSIGNMENTS OF ERROR:

In bringing this appeal, Mr. Dunlap contends the referee erred in the following respects:

(1) The referee erred in finding, by implication, that the appointing authority had carried its burden to show impairment to public service.
(2) The referee erred in finding that Mr. Dunlap did not have the required 10 hours of continuing education by the end of June 30, 2003.
(3) Alternatively, the referee erred in finding that the penalty (dismissal) was not grossly disproportionate to the alleged offense in this matter and further erred in failing to reduce the penalty from termination to a lesser sanction.
(4) The referee erred in failing to grant the relief requested by appellant, in-eluding reinstatement, back pay and attorney’s fees.

LAW AND DISCUSSION:

The standard of appellate review for findings of fact made by referees of the Civil Service Commission is the same as the review of district court decisions, that is, the Commission referee’s factual findings should not be disturbed unless they are clearly wrong or the referee committed manifest error. Usun v. LSU Health Sciences Center Medical Center of Louisiana at New Orleans, 02-0295 (La.App. 1 Cir. 2/14/03), 845 So.2d 491. The referee’s decision as to whether the disciplinary action taken is based on legal cause and commensurate with the committed offense, should not be modified unless it is arbitrary, capricious, or characterized by abuse of discretion. Id.

Article 10 § 8(A) of the Louisiana constitution provides that a classified employee may not be “subject to disciplinary action except for cause expressed in 5writing.” Such “cause” is defined as “conduct that impairs the efficiency of the public service and bears a real and substantial relation to efficient and orderly operation of the public service in which the employee is engaged”. Wopara v. State Employees’ Group Benefits Program, 02-2641, (La.App. 1 Cir. 7/2/03), 859 So.2d 67, 69. The “appointing authority”, in this case, Mr. Dunlap’s employer, must prove by a preponderance of the evidence that the employee’s conduct did impair the efficiency and operation of public service. Id.

At the hearing in this matter, a report was admitted into evidence by Robert Foley, a handwriting expert. Mr. Foley concluded that the dates below “exam submitted on” and “exam processed on” on two of the continuing education certificates, submitted by Mr. Dunlap to his employer, had been altered. Mr. Dunlap’s attorney stipulated to the report. Additionally, Mr. Dunlap took the stand and admitted altering the dates on the certificate.

Syad Hafeez testified that he was the director of the pharmacy at the hospital where Mr. Dunlap worked. When he determined that the certificates submitted by Mr. Dunlap as proof of his required continuing education were altered, he contacted the human resources department of the hospital.. He was told that the hospital’s policy for falsification of documents is termination. Mr. Hafeez explained that as director of the pharmacy he is responsible for all of the pharmacists and pharmacy technicians. He explained that the Board expects pharmacy employees to have valid credentials and part of his job is to make sure the documents are valid. Mr. Hafeez testified that licensing agencies, such as the Board and the Joint Commission on Hospital Accreditation, would be concerned about a pharmacy technician using altered documents to obtain his license. He further explained that a pharmacy technician is responsible for assisting in preparing medications and filling prescriptions for oral and intravenous medications, including those of narcotics and controlled dangerous substances. 6Since the pharmacists sign off on the technician’s preparation of the medications, it is important that the technician be trustworthy.

Anthony Parnell, the labor relations manager for the hospital, testified that since 1993, the hospital has implemented a policy that the penalty for falsifying documents is termination. Mr. Parnell estimated that he had been involved in an estimated one hundred other cases of falsification of documents and the penalty was always termination.

Mr. Dunlap testified that when he returned to work on July 30, 2003, he submitted his renewed license and certificates of continuing education to one of his supervisors, Conrad Mornay. He was told by Mr. Mornay and Mr. Hafeez that two of these certificates were unacceptable because they showed he completed the continuing education after June 30, 2003. Mr. Dunlap explained that he submitted these tests to Jobson via the internet just before midnight on June 30, 2003, but they were dated July 1, 2003 by Jobson because Job-son used Eastern Standard Time, rather than Central Standard Time. When he was unable to locate continuing education certificates for other courses he completed prior to June 30, 2003, he changed the date on two of the certificates from July 1, 2003 to June 25, 2003. He admitted that the certificates he presented to the Board did not have altered dates.

We find no merit to Mr. Dunlap’s first Assignment of Error, claiming the referee erred in finding the hospital carried its burden to show impairment to public service. Mr. Broussard, Executive Director of the Board, testified that the employing pharmacy has a duty to ascertain that every person in their department is appropriately credentialed. He explained that when Mr. Dunlap applied for license renewal, he would not have been issued a renewed license had the Board known his continuing education was not performed timely. Mr. Hafeez, director of the pharmacy where Mr. Dunlap was employed, testified that part of his job was to 7make sure the employees’ credentials were valid. Failure to do so could jeopardize the pharmacy’s license from the Board and the Joint Commission on Hospital Accreditation. Mr. Hafeez further explained the nature of Mr. Dunlap’s job involves handling and preparing oral and intravenous medications, including controlled dangerous substances and narcotics. Because the pharmacists are not able to supervise every action of the pharmacy technicians, there must be trust between the pharmacist and the technicians. Mr. Hafeez testified that Mr. Dunlap’s alteration of the continuing education documents rendered him untrustworthy. Based on the testimony relative to trust being necessary in the relationship between the pharmacist and the pharmacy technician, we find that Mr. Dunlap’s act of altering the dates on the continuing education certificates affected that relationship thereby impairing the overall operation of the pharmacy. Additionally, the testimony indicates the licensing of the pharmacy by the Board and the hospital’s accreditation could have been placed in jeopardy had it been determined that a pharmacy technician obtained his license based on altered documents.

Likewise, we find no merit to Mr. Dunlap’s assertion that the referee erred in finding Mr. Dunlap did not have the required ten hours of continuing education by June 30, 2003. The documents submitted to the hospital, as well as the pharmacy board, indicate Mr. Dunlap completed only four hours of continuing education prior to June 30, 2003.

Finally, Mr. Dunlap contends the referee erred in finding the penalty of dismissal was not grossly disproportionate to the offense and in failing to grant the relief he requested. Mr. Parnell, the Labor Relations Manager for the hospital, testified that most of the estimated one hundred other cases in which an employee falsified a document involved falsification of dates related to sick leave and the penalty was always termination. As discussed above, due to the degree of trust 8necessary between the pharmacy technician and the pharmacist he works under, continued employment of Mr. Dunlap would have impaired the efficient operation of the pharmacy. Mandatory continuing education requirements are imposed on most, if not all, licensed professionals in Louisiana. We reject appellant’s argument that the falsifying of certifications of mandatory continuing education is not a serious offense and that termination is grossly disproportionate to the offense. Thus, we find the referee’s refusal to modify the sanction for Mr. Dunlap’s conduct was not arbitrary and capricious and was supported by the evidence.

Accordingly, after considering the law and evidence, we find the Civil Service referee did not abuse his discretion in upholding the termination imposed and affirm his decision. All costs of this appeal are assessed to the appellant, Eric Dunlap.

AFFIRMED.


author: GAIDRY, J.

text:
    Vikki CHAUVIN v. WELLCHECK, INC.
    No. 2005 CA 1571.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 2006.

      T. Jay Seale, Glen R. Galbraith, Hammond, Counsel for Plaintiff/Appellee Vikki Chauvin.
    Rodney C. Cashe, Shaan M. Aucoin, Hammond, Counsel for Defendant/Appellant Wellcheck, Inc.
    Before: CARTER, C.J., DOWNING, and GAIDRY, JJ.
   GAIDRY, J.

2This is an appeal of a summary judgment in a declaratory judgment action, declaring a noncompetition agreement between an employee and former employer null and void. For the following reasons, we vacate the summary judgment of the trial court and dismiss the appeal.

FACTS AND PROCEDURAL HISTORY

The plaintiff-appellee, Vikki Chauvin, and her husband, Tommy Chauvin, were the stockholders of a Louisiana corporation engaged in health screening through blood tests and other procedures. On January 21, 2000, the corporation’s assets, including its goodwill, were purchased by the defendant-appellant, Wellcheck, Inc. (Well-check), and its parent corporation. On the same date, Ms. Chauvin and her husband each entered into an Employment Agreement and a Noncompetition Agreement with Wellcheck. Only the agreements executed by Ms. Chauvin are at issue in this appeal.

The Noncompetition Agreement provided that Ms. Chauvin would not directly or indirectly engage in the business of outpatient testing of blood cholesterol, bone density, or blood glucose within “the entire United States of America” for a period of two years after either the execution of the agreement or the date of termination of her employment by Wellcheck, whichever was later. The agreement also provided that it would be interpreted under California law, “without giving effect to principles of conflicts of laws.” Ms. Chauvin left Wellcheck’s employment on December 20, 2002.

On March 3, 2004, Ms. Chauvin instituted these proceedings by filing a petition for declaratory judgment, seeking a judicial determination that the Noncompetition Agreement was null and unenforceable based upon its 3overIy broad geographic restriction or upon the alternate determination that the agreement would expire on December 20, 2004. She also alleged her desire to compete in business with Well-check. Wellcheck was named as defendant and answered the petition, generally denying most allegations, but admitting the existence of the agreements, that it intended to enforce the Noncompetition Agreement, and that the Noncompetition Agreement would expire by its own terms on December 20, 2004. In the same pleading, Wellcheck incorporated a reconven-tional demand, alleging that Ms. Chauvin was then engaged in business in competition with it through another corporation incorporated by her and her husband on June 24, 2003. It sought declaratory judgment that the Noncompetition Agreement remained in full force and effect and was breached by Ms. Chauvin. It also sought a preliminary injunction against Ms. Chau-vin to restrain and enjoin her “from continuing to violate the terms of the [Non-competition] Agreement.”

Ms. Chauvin initially opposed Well-check’s request for a preliminary injunction on the procedural basis that Wellcheck did not make its request in connection with a suit for a permanent injunction. Wellcheck thereupon amended its reconventional demand to add a request for a permanent injunction. The hearing on Welleheck’s request for a preliminary injunction was held on July 19, 2004, after which the trial court took the matter under advisement. On August 4, 2004, the trial court issued its written reasons for judgment in favor of Wellcheck and directed the parties to submit a written judgment. The written judgment was signed on October 15, 2004, granting the preliminary injunction upon Well-check furnishing security in the form of cash or a commercial bond in the amount of $10,000.00. The judgment further provided that the preliminary injunction would expire on December |420, 2004, unless suspended or vacated earlier. Wellcheck chose not to furnish the security, so the injunction did not actually issue.

On November 18, 2004, Wellcheck filed a motion for summary judgment, seeking summary declaratory judgment that the Employment Agreement and Noncompetition Agreement were valid and enforceable against Ms. Chauvin. On January 10, 2005, Ms. Chauvin filed a motion for summary judgment, seeking summary declaratory judgment as prayed for in her petition and the dismissal of Wellcheek’s reconven-tional demand. Both motions were heard on January 18, 2005. By judgment signed on February 16, 2005, the trial court granted Ms. Chauvin’s motion for summary judgment and denied Wellcheek’s motion, dismissing its reconventional demand. Wellcheck appeals.

ASSIGNMENT OF ERROR AND ISSUES PRESENTED

Wellcheck contends the trial court erred in finding the Noncompetition Agreement null and void under Louisiana law, rather than applying California law, which permits reformation of the overly broad geographic restriction. In addition to addressing the issues framed by Wellcheck, Ms. Chauvin raises the additional fundamental issue of whether a justiciable controversy exists.

ANALYSIS

A person “interested under a ... written contract” may seek the determination of “any question of construction or validity arising under the ... contract ... and obtain a declaration of rights, status, or other legal relations thereunder.” La. C.C.P. art. 1872. Declaratory judgment may be rendered “whether or not further relief is or could be claimed.” La. C.C.P. art. 1871. A contract may be construed either before or after there has been a breach thereof. La. C.C.P. art. 1873.

5SA declaratory judgment action is designed to provide a means for adjudication of rights and obligations in eases involving an actual controversy that has not reached the stage where either party can seek a coercive remedy. Chauvet v. City of Westwego, 599 So.2d 294, 296 (La.1992). See also Gary v. Marquette Casualty Company, 72 So.2d 619, 621-22 (La.App. 1st Cir.1954). The function of a declaratory judgment is simply to establish the rights of the parties or express the opinion of the court on a question of law without ordering anything to be done. ANR Pipeline Company v. Louisiana Tax Commission, 01-2594, p. 9 (La.App. 1st Cir.3/20/02), 815 So.2d 178, 185, affirmed and remanded, 02-1479 (La.7/2/03), 851 So.2d 1145. But our jurisprudence has limited the availability of declaratory judgment by holding that “courts will only act in cases of a present, justiciable controversy and will not render merely advisory opinions.” Church Point Wholesale Beverage Co., Inc. v. Tarver, 614 So.2d 697, 701 (La.1993).

Because of the almost infinite variety of factual scenarios with which courts may be presented, a precise definition of a justiciable controversy is neither practicable nor desirable. Wooley v. State Farm Fire and Casualty Insurance Company, 05-1490, p. 5 (La.App. 1st Cir.2/10/06), 928 So.2d 618, 622. However, a justiciable controversy has been broadly defined as one involving “adverse parties with opposing claims ripe for judicial determination,” involving “specific adversarial questions asserted by interested parties based on existing facts.” Prator v. Caddo Parish, 04-0794, p. 6 (La.12/1/04), 888 So.2d 812, 816. A justiciable controversy for purposes of declaratory judgment is one involving uncertain or disputed rights in “an immediate and genuine situation,” and must be a “substantial and actual dispute” as to the legal relations of “parties who have real, | ^adverse interests.” Id. at pp. 7-9, 888 So.2d at 817. It is well settled that courts should not decide abstract, hypothetical, or moot controversies, or render advisory opinions with respect to such controversies. CITGO Petroleum Co. v. Louisiana Public Service Commission, 04-0914, p. 12 (La.3/2/05), 898 So.2d 291, 298.

The judgment at issue does not serve the purpose of terminating any immediate, existing controversy between the parties, as the prior expiration of the agreement itself served that purpose; the declaratory relief sought by both parties and the in-junctive relief sought by Wellcheck were rendered moot. Wellcheck nevertheless contends that its claim for damages resulting from the alleged breach by Ms. Chau-vin is before this court. We must disagree. The only allegation made as to any potential damages is set forth in the final paragraph of Wellcheck’s reconventional demand:

Plaintiff-in-Reeonvention specifically reserves all rights it may have to seek damages as a result of the breach of the [Noncompetition] Agreement and any and all ancillary matters resulting therefrom.

This purported reservation of rights served no procedural purpose in the present matter, as it alleged no material facts as to any damages sustained, failed to affirmatively assert that Wellcheck will exercise any such rights, and sought no specific, additional relief directed toward any such claim. See, e.g., Mayer Godchaux Co., Inc. v. Regan, 18 La.App. 579, 583, 137 So. 547, 550 (La.App.Orl.Cir.1931). Such a “reservation of rights” to later assert a possible cause of action does not amount to factually stating a cause of action. Rather, the allegations of Well-check’s reconventional demand were directed toward obtaining only declaratory [vjudgment followed by further relief in the form of preliminary and permanent injunctions against the alleged continuing violation of the Noncompetition Agreement pri- or to expiration of the restrictive period.

Wellcheck’s expressed intent to reserve its rights relating to any potential damages claim is not fatal to its later assertion of such a cause of action; the problem here is that it did not actually exercise its right to seek such further relief in connection with its reconventional demand during the time that such demand presented an immediate, justiciable controversy for purposes of declaratory judgment. While it is certainly true under La. C.C.P. art. 1871 that “the existence of another adequate remedy does not preclude a judgment for declaratory relief,” this principle is applicable only “in cases where it is appropriate.” This is not such a case. Once the Noncompetition Agreement expired by its own terms, the issues actually presented in this litigation were rendered moot. A declaratory judgment on the validity and enforceability of the agreement at that point served no practical purpose, and such a judgment declaring whether a breach had in fact occurred for purposes of a possible cause of action for contractual damages would amount to an impermissible advisory opinion. The determination of Wellcheck’s right to any contractual damages would thus be better made in a direct action seeking such relief. See Schmill v. St. Charles Parish, 96-894, pp. 10-11 (La.App. 5th Cir.3/12/97), 692 So.2d 1161, 1166.

We conclude that the trial court erred in rendering summary declaratory judgment under these facts. At the time the trial court rendered 8sits judgment, there was no longer an actual, immediate controversy between the parties for purposes of declaratory judgment. The issues raised in the principal declaratory judgment action and the reconventional demand for declaratory judgment and injunc-tive relief were then moot, thus depriving the trial court and this court of subject matter jurisdiction. A litigant not asserting a substantial existing legal right is without standing to seek a declaratory judgment, and such lack of standing renders any judicial opinion sought an impermissible advisory opinion. Wooley, 05-1490 at p. 8, 928 So.2d at 623. (Our emphasis.) We accordingly vacate the trial court’s judgment and dismiss this appeal. All costs of this appeal are assessed to the defendant-appellant, Welleheck, Inc.

JUDGMENT VACATED; APPEAL DISMISSED.

DOWNING, J., concurs.

      . Louisiana Code of Civil Procedure article 891(A) requires that the petition include a “short, clear, and concise statement of all causes of action” and “the material facts of ... the transaction or occurrence that is the subject matter of the litigation[,]” and that it "shall conclude with a prayer for judgment for the relief sought.”

      . Even if we were to find that the reconven-tional demand stated a justiciable controversy after the expiration of the Noncompetition Agreement, we would still consider such relief inappropriate given the facts and the posture of the parties. Appellate courts, as well as trial courts, may exercise the broad discre-tionaiy power to decide whether a suit for declaratory judgment is one in which such relief may be appropriate. Billingsley v. City of Baton Rouge, 95-2162, p. 5 (La.App. 1st Cir.4/30/96), 673 So.2d 300, 303, writ denied, 96-1490 (La.9/20/96), 679 So.2d 439.