author: LEON A. CANNIZZARO, JR., Judge. MURRAY, J.,

text:
    Michelle Herman and Wesley HERMAN v. ST. PAUL INSURANCE COMPANY, Children’s Hospital, Louisiana Medical Mutual Insurance Company (Lammico), Surbhi C. Dargan, M.D., and Tenet Health Systems, Inc. d/b/a Meadowcrest Hospital.
    No. 2006-CA-0350.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 13, 2006.

      Terrence J. Lestelle, Andrea S. Lestelle, Jeffery B. Struckhoff, Lestelle & Lestelle, Metairie, LA, for Plaintiffs/Appellants, Michelle Herman and Wesley Herman.

      Charles C. Foti, Jr., Attorney General, Dennis J. Phayer, Jocelyn R. Guidry, Bur-glass & Tankersley, L.L.C., Metairie, LA, for Appellees, Joseph Caspi, M.D. and The Board of Supervisors of Louisiana State University and Agricultural and Mechanical College.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge DENNIS R. BAGNERIS, SR., Judge LEON A. CANNIZZARO, JR.).
   LEON A. CANNIZZARO, JR., Judge.

LThe plaintiffs, Wesley Herman and his wife, Michelle Herman, sued a number of defendants, including Joseph Caspi, M.D., Aluizio R. Stopa, M.D., and their employer, the Board of Supervisors of Louisiana State University and Agricultural and Mechanical College (the “LSU Board”), alleging that Dr. Caspi and Dr. Stopa and certain other defendants committed medical malpractice that resulted in the death of their infant daughter, Emily Herman. The trial court granted summary judgment in favor of Dr. Caspi, Dr. Stopa, and the LSU Board. Mr. and Mrs. Herman are appealing that judgment.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

When she was twenty days old, Emily was admitted to Children’s Hospital for evaluation of what was suspected to be a problem with her heart. Medical tests 1 ¿were conducted at Children’s Hospital, and based on the results of those tests, Emily was diagnosed with a congenital heart defect known as TGA, an acronym for transposition of the great arteries. TGA must be corrected surgically, most commonly in a procedure called an arterial switch operation or ASO.

When Emily arrived at Children’s Hospital on Saturday, April 5, 1997, she was in an unstable condition, and she had congestive heart failure. By the next morning, she was placed on a respirator to assist her breathing.

Emily was treated at Children’s Hospital by Dr. Stopa, a pediatric cardiologist. He and Dr. Caspi, a pediatric cardiothora-cic surgeon, decided that Emily would undergo an ASO to correct her heart defect on Monday morning, April 7, 1997. During the operation, which was performed by Dr. Caspi, complications arose, and Dr. Caspi then contacted a cardiotho-racic surgeon to assist him. Emily died shortly after the consulting surgeon arrived at Children’s Hospital.

Mr. and Mrs. Herman filed a claim under the Louisiana Medical malpractice Act, La. R.S. 40:1299.39 and 40:1299.41 et seq. The medical review panel found no negligence on the part of Dr. Caspi, Dr. Stopa, Children’s Hospital, or the 13pediatric critical care specialist at Children’s Hospital, who participated in Emily’s medical care before her surgery.

Mr. and Mrs. Herman originally filed suit against a number of defendants, alleging that Emily’s death was the result of medical malpractice that deprived her of a chance of survival. The original petition reserved to the Hermans the right to add as defendants, after the conclusion of the medical review panel proceeding, the physicians who treated Emily at Children’s Hospital. After the medical review panel proceeding was finished, Dr. Stopa and Dr. Caspi, the only two physicians involved in this appeal, were added as defendants in the lawsuit, along with the critical care physician who treated Emily at Children’s Hospital. With respect to Dr. Stopa and Dr. Caspi, the Hermans alleged that the ASO should have been performed sooner than it was and that Dr. Caspi should have scheduled a eardiothoracic surgeon to assist him with the operation rather than calling one for consultation after complications arose during Emily’s surgery.

Dr. Caspi, Dr. Stopa, and the LSU Board filed a motion for summary judgment. The motion was granted, and the Hermans are now appealing that decision.

DISCUSSION

Standard of Review

Appellate courts review the granting of summary judgment de novo under the same criteria governing the trial court’s consideration of whether summary judgment is appropriate. Reynolds v. Select Props., Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180, 1183. See also Indep. Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257, p. 7 (La.2/29/00), 755 So.2d 226, 230.

A summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to a material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). If the court finds that a genuine issue of material fact exists, then summary judgment must be rejected. Oakley v. Thebault, 96-0937, p. 4 (La.App. 4 Cir. 11/13/96), 684 So.2d 488, 490. The burden of proof does not shift to the party opposing the summary judgment until the moving party first presents a prima facie case that no genuine issues of material fact exist. Id. At that point, if the party opposing the motion “fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.” La. C.C.P. art. 966(C)(2). Summary judgment should then be granted.

Assignments of Error

The Hermans have raised four assignments of error. The first assignment of error asserts that the trial court erred in granting the motion for summary judgment on the basis that there were no genuine issues of material fact regarding whether Dr. Caspi violated the applicable standard of care. The second, third, and fourth assignments of error contend that the trial court erred in concluding that a jury could not infer negligence or breach of the standard of care from the testimony and actions of Dr. Caspi, Dr. Stopa, and other physicians who were defendants in the case.

[ fThe Defendants’ Burden of Proof

In the instant case Dr. Caspi, Dr. Stopa, and the LSU Board filed the motion for summary judgment. Therefore, under La. C.C.P. art. 966, they had the initial burden of proof. They were required to present a prima facie case that there were no genuine issues of material fact. In support of their position, they submitted to the trial court the report of the medical review panel stating that “[t]he evidence does not support the conclusion that the defendants ... failed to meet the applicable standard of care as charged in the complaint.” The medical review panel also gave the reasons for the panel’s finding. The panel’s opinion stated that “[t]he outcome of this case would not have changed if the surgery were performed on the day of her [Emily’s] admission” and that “[t]he child died as a result of a very complex neonatal heart surgery, which has a recognized mortality in the best of circumstances.”

Additionally, Dr. Caspi, Dr. Stopa, and the LSU Board submitted to the trial court an affidavit of Rodney B. Steiner, M.D. declaring that he was a member of the medical review panel that reviewed the claims against Dr. Caspi and Dr. Stopa, as well as against the pediatric critical care specialist at Children’s Hospital who was involved in treating Emily. Dr. Steiner stated that for the reasons stated in the opinion rendered by the medical review panel, the panel was of the unanimous opinion that the evidence did not support a conclusion that the applicable standard of care was not met. Dr. Steiner further declared that he was “still of the opinion | ¡¡that the evidence does not support the conclusion that Dr. Caspi, Dr. Stopa ... failed to meet the applicable standard of care as charged in the complaint.”

We find that the medical review panel report, which stated that there was no breach of the standard of care imposed on Dr. Caspi and Dr. Stopa, and the affidavit of Dr. Steiner were sufficient to present a prima facie case that Dr. Caspi and Dr. Stopa were not liable for malpractice in the treatment of Emily. Therefore, the burden of proof shifted to the Hermans after Dr. Stopa, Dr. Caspi, and the LSU Board presented their evidence.

The Hermans’ Burden of Proof

The plaintiffs burden of proof in a medical malpractice act is statutorily established. Pursuant to La. R.S. 9:2794(A)(l)-(3), a plaintiff in a malpractice action against a physician must prove:

(l)The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians ... licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians ... within the involved medical specialty.
(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill.
(3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.

To avoid having the motion for summary judgment granted in favor of Dr. Caspi, Dr. Stopa, and the LSU Board, the Her-mans were required to produce |7factual support sufficient to establish that they would be able to satisfy their evidentiary burden of proof at trial. Nevertheless, they claimed that it was not necessary for them to present evidence from a medical expert to support the allegations in their petition, because the testimony of the physicians involved in Emily’s treatment had stated in their depositions what the standard of care was, and because their actions demonstrated that they did not follow the standard of care. Therefore, the Hermans contended that a jury would be able to infer from the testimony of the defendant physicians that Dr. Caspi and Dr. Stopa breached the applicable standard of care. Dr. Caspi, Dr. Stopa, and the LSU Board argued otherwise, contending that expert medical evidence was required.

In Broussard v. Andersson, 05-0006, p. 6 (La.App. 4 Cir. 11/03/05), 921 So.2d 128, 132, this Court stated that “[t]o determine whether a physician possesses the requisite degree of knowledge or skill or whether he exercised reasonable care or diligence, the court is guided by expert witnesses who are members of the medical profession.... ” This Court also sated that “[t]he jurisprudence has recognized that ‘an expert witness is generally necessary as a matter of law to prove a medical malpractice claim’.” Id., citing Williams v. Metro Home Health Care Agency, Inc., 02-0534, p. 5 (La.App. 4 Cir. 5/8/02), 817 So.2d 1224, 1228.

There are, however, some situations where the jurisprudence has recognized that expert testimony is not required to meet the plaintiffs burden of proof in a medical malpractice case. Pfiffner v. Correa, 94-0924, 94-0963, and 94-0992 (La.10/17/94), 643 So.2d 1228, 1230. In the Pfiffner case the Louisiana Supreme Court explained that a plaintiff in a medical malpractice case could prevail regarding the appropriate standard of care if a layperson could infer negligence |sfrom the facts presented at trial. 94-0924, 94-0963, and 94-0992, p. 1, 643 So.2d at 1230. The Supreme Court itemized the situations in which a plaintiff need not present an expert medical witness in a malpractice case. The Supreme Court stated that “[ejxpert testimony is not required where the physician does an obviously careless act, such as fracturing a leg during examination, amputating the wrong arm, dropping a knife, scalpel, or acid on a patient, or leaving a sponge in a patient’s body.” 94-0924, 94-0963, and 94-0992, p. 9, 643 So.2d at 1233.

In Martin v. East Jefferson General Hospital, 582 So.2d 1272, 1276 (La.1991), the Louisiana Supreme Court found that “Louisiana jurisprudence has held that expert witnesses who are members of the medical profession are necessary sources of proof in medical malpractice actions to determine whether the defendant doctor possessed the requisite degree of skill and knowledge, or failed to exercise reasonable care and diligence.” This Court in Pierre-Ancar v. Browne-McHardy Clinic, 00-2409, 00-2410 (La.App. 4 Cir. 11/16/02), 807 So.2d 344, 348, stated that with a few exceptions, such as those described in the Pfiffner case, “because of the complex medical and factual issues involved in medical malpractice cases, a plaintiff will likely fail to sustain his or her burden of proving his or her claim under La. R.S. 9:2794 without medical experts.”

In Johnson v. State of Louisiana/University Hospital, 01-1972, p. 5 (La.App. 4 Cir. 1/16/02), 807 So.2d 367, 371, this Court found that opinions of expert witnesses who are members of the medical profession and who are qualified to testify are generally necessary to determine whether or not a defendant in a medical malpractice action possessed the requisite degree of knowledge or skill or failed to exercise reasonable care and diligence in treating a plaintiff. Additionally, this Court stated in connection with a motion for summary judgment 13that “in the absence of counter-affidavits, it must be assumed that there is no dispute with regard to facts set forth in defendant’s affidavits and other documents submitted to support the motion.” 01-1972, p. 6, 807 So.2d at 371.

In the instant case, however, the alleged malpractice was not the type of malpractice that was described in the Pfiffner case from which a layperson could infer negligence without the benefit of expert testimony. Therefore, the instant case is not the type of medical malpractice case in which the plaintiff need not present expert medical evidence. The instant case involved the treatment of a critically ill infant who required a very complex surgical procedure. We find that there is no way that a layperson could infer negligence in the instant case without expert testimony.

The deposition statements upon which the Hermans rely to prove the applicable standard of care are clearly insufficient to establish the applicable standard of care that was imposed on Dr. Caspi and Dr. Stopa. For example, the Hermans assert that the statement by Dr. Caspi that “I felt at the time [when complications arose during the ASO] that I wanted somebody else experienced to assist me” should be construed to establish that under the applicable standard of care Dr. Caspi should have had a cardiothoracic surgeon to assist him during the surgery on Emily. Also, the Hermans contend that Dr. Stopa’s deposition statement that, in hindsight, he thought it would have “[pjrobably [been] better doing it on Saturday than doing it on Monday,” establishes that the applicable standard of care required Emily’s surgery to have been done before Monday.

Clearly, these statements do not establish the standard of care, and they do not prove that there was a breach in the standard of care. There was no evidence to support the proposition that the applicable standard of care required two surgeons Imfor an ASO, and Dr. Stopa explained that one of the reasons the surgery was not done sooner was that medications were being used in an attempt to stabilize Emily’s condition prior to surgery. The medications, which the physicians expected to work, did not, and surgery was then done. There was no evidence presented from which a jury could conclude that performing the ASO one or two days earlier would have made .any difference in the outcome of Emily’s surgery.

Decision

Based on the foregoing discussion, we find that the assignments of error are without merit. The Hermans were required to present medical evidence from an expert witness. To prevail on the motion for summary judgment, they were required to establish (1) the standard of care applicable to Dr. Caspi and to Dr. Stopa, (2) that Dr. Caspi and Dr. Stopa breached that standard of care, and (3) that Emily’s death and loss of a chance for survival were caused by the negligence of Dr. Caspi and Dr. Stopa in breaching the standard of care. La. R.S. 9:2794 A. Without evidence from an expert medical witness, the Hermans were not able to counter the report of the medical review panel finding that Dr. Caspi and Dr. Stopa did not breach the applicable standard of care in their treatment of Emily.

Because the Hermans did not produce factual support sufficient to establish that they would be able to satisfy their eviden-tiary burden of proof at trial, under La. C.C.P. art. 966(C)(2), there was no genuine issue of material fact. Therefore, the Her-mans could not prevail against Dr. Caspi, Dr. Stopa, and the LSU Board on the motion for summary judgment.

^CONCLUSION

The trial court judgment is correct. Therefore, the judgment is affirmed.

AFFIRMED.

MURRAY, J., concurs and assigns reasons.

MURRAY, J.,

concurs and assigns reasons.

hThe sole issue on appeal is whether the trial court erred by granting summary judgment on the basis that plaintiffs would not be able to prove at trial that the applicable standard of care was violated by the defendant appellees. I agree with the majority that the trial court’s ruling was correct. I emphasize that the law does not require a physician to exercise the highest degree of care possible. Rather, a physician’s duty is to exercise the degree of skill ordinarily employed by his professional peers under similar circumstances. Marks v. Jones, 29,881, p. 17 (La.App. 2 Cir. 12/10/97), 705 So.2d 262, 270 (citing Iseah v. E.A. Conway Memorial Hospital, 591 So.2d 767 (La.App. 2d Cir.1991). Compliance with this standard does not require absolute precision, but merely reasonableness under the existing circumstances, which should not be judged in hindsight or in light of subsequent events. Id. Therefore, in the instant case, Dr. Stopa’s testimony that it probably would have been better if the surgery had been performed two days earlier was insufficient to establish that the applicable standard of care required that the surgery be performed sooner.

In view of the majority’s conclusion that the plaintiffs will not be able to meet their burden of proving a breach in the standard of care, any consideration of | ¡whether doing the surgery earlier would have changed the outcome is misplaced. The effect of a change in the defendants’ conduct upon the outcome is relevant to the issue of causation once the defendants have been shown to be negligent, but it is not relevant to the determination of the standard of care.

Fpr these reasons, I respectfully concur in the decision of the majority.

      . Mr. and Mrs. Herman also sued (1) Surbhi Dargan, M.D., Emily's pediatrician, whose motion for summary judgment was denied and who is still a party to the lawsuit, (2) Louisiana Medical Mutual Insurance Company, Dr. Dargan’s insurer, (3) Tenet HealthSys-tem Hospitals, Inc. d/b/a Meadowcrest Hospital, the hospital where Emily was born, in favor of which summary judgment has been granted, (4) Bonnie Deselle, M.D., in whose favor summary judgment has been granted, (5) Children’s Hospital, the hospital where Emily was treated, and (6) St. Paul Mercury Insurance Company (also referred to in the record as St. Paul Fire and Marine Insurance Company), the insurer of Children's Hospital. Although Children's Hospital and its insurer filed motions for summary judgment, the record does not reflect whether the motions were heard.

      . The two main arteries of the heart are the aorta and the pulmonary artery. In TGA, the normal position of the two arteries is reversed. In TGA, oxygen-rich blood returns to the lungs, and oxygen-poor blood gets carried to the rest of the body. Normally oxygen-poor blood returns to the lungs to be oxygenated, and oxygen-rich blood is circulated throughout the body. The only way for oxygen-rich blood to reach the body when TGA is present is through a connection between the two arterial routes. In Emily, a normal fetal structure between the two arteries allowed some mixing of the blood, but such a structure normally closes shortly after birth making it uncertain how long Emily would have oxygenated blood available for circulation to her body.

      .A pediatric cardiothoracic surgeon specializes in the surgical treatment of diseases and disorders affecting the heart and lungs in children.

      . In Williams v. Memorial Medical Center, 03-1806 (La.App. 4 Cir. 3/17/04), 870 So.2d 1044, 1053, this Court held that “[i]n a medical malpractice case, the medical review panel's opinion is admissible as expert evidence on a motion for summary judgment.” See also Blankenship v. Ochsner Clinic, 06-0242, p. 5 (La.App. 4 Cir. 8/16/06), 940 So.2d 12.


source: Caselaw Access Project

author: JOAN BERNARD ARMSTRONG, Chief Judge.

license: Public Domain

text:
    Rilda HAYES v. ALLSTATE INSURANCE COMPANY and Dr. Warren P. McKenna.
    No. 2006-CA-0264.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 13, 2006.

      J. Forrester Jackson, Blake G. Arata, Jr., C. Perrin Rome III, Rome, Arata & Baxley, L.L.C., New Orleans, LA, for Plaintiff/Appellee.
    Noel C. Young, Law Offices of Harold G. Toscano, New Orleans, LA, and James L. Donovan, Jr., Donovan & Lawler, APLC, Metairie, LA, for Defendants/Appellants, 200 South Broad Street, Inc. and Allstate Insurance Company.

      (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge JAMES F. McKAY III and Judge MICHAEL E. KIRBY).
   JOAN BERNARD ARMSTRONG, Chief Judge.

pThe defendants-appellants, 200 South Broad Street, Inc. and Allstate Insurance Company, appeal a judgment awarding the plaintiff-appellee, Rilda Hayes, $15,000.00 in general damages and $4,109.34 in special damages, plus interest and costs in a slip and fall personal injury case. We affirm.

No party appeals the amount of the award.

At the outset we note that this is a fairly straight-forward manifest error case.

It is uncontested that on July 18, 2000, the plaintiff, during a dentist appointment, was asked to move her vehicle because it was blocking another vehicle in the parking lot. When she went to move the vehicle she fell, resulting in the injuries for which she was awarded damages in this suit.

On July 11, 2001, plaintiff filed suit alleging that the parking lot had a crack and or/or hole creating the dangerous condition that caused her fall. Dr. Warren McKen-na and Allstate Insurance Company as his insurer, were named as defendants for failure to properly maintain the parking lot. The plaintiff died on February 10, 2003 and her legal successors were substituted as party plaintiffs in July of 2003. Prior to her death she testified by deposition which was admitted at | ¡.the trial. On February 27, 2004, the plaintiff filed an amended petition adding as an additional defendant, 200 South Broad Street, Inc., as the owner of the parking lot. As the insurer of 200 South Broad Street, Inc., Allstate was again named as a defendant. Although the amended petition retained Dr. McKen-na as a named defendant, when judgment was rendered, only Allstate and 200 South Broad Street, Inc. were cast in judgment.

Negligence for damages caused by defects in things is governed by La. C.C. arts. 2317 and 2317.1. La. C.C. art. 2317 provides in pertinent part that:

We are responsible, not only for the damage occasioned by our own act, but for that ... which we have in our custody. This, however, is to be understood with the following modifications.

Next La. C.C. art. 2317.1 provides in pertinent part that:

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care....

Before a defendant can be held liable under art. 2317, the plaintiff must prove that 1) the thing which caused damage was in the defendant’s custody and control (garde); 2) the thing had a vice or defect which created an unreasonable risk of harm; and 3) the injuries were caused by a defect. Rolf v. Wal-Mart Stores, Inc., 00-1720, p. 3 (La.App. 5 Cir. 2/14/01), 782 So.2d 15, 16, citing Socorro v. City of New Orleans, 579 So.2d 931, 937 (La.1991). Additionally, La. C.C. art. 2317.1 adds the requirement that the injured plaintiff prove that the owner/custodian “knew or, in the exercise of reasonable care, should have known” of the unreasonable risk of harm, and “that the damage could have been prevented | ¡¡by the exercise of reasonable care, and that [the owner/custodian] failed to exercise such reasonable care.” Id.

Cases involving defective conditions are fact intensive; consequently manifest error governs the question of unreasonable risk:

[B]ecause a determination that a defect presents an unreasonable risk of harm predominantly encompasses an abundance of factual findings, which differ greatly from case to case, followed by an application of those facts to a less-than-scientific standard, a reviewing court is in no better position to make the determination than the jury or trial court. Consequently, the findings of the jury or trial court should be afforded deference and we therefore hold that the ultimate determination of unreasonable risk of harm is subject to review under the manifest error standard. A reviewing court may only disturb the lower court’s holding upon a finding that the trier of fact was clearly wrong or manifestly erroneous. Stobart v. State, 617 So.2d 880 (La.1993). [Emphasis added.]

Rolf, supra, quoting Reed v. Wal-Mart Stores, Inc., 97-1174 (La.03/04/98), 708 So.2d 362, 364-65.

The defendants do not contest ownership of the premises where the fall occurred. The defendant contends that the plaintiff failed to prove where in the parking lot the fall occurred which is essential to show that an unreasonably dangerous condition existed at that spot. The trial court determined, based upon, according to the written reasons for judgment, “the evidence and testimony presented, including the photographs and discovery responses,” that the fall occurred where there was a hole or depression in the parking lot which the defendants alleged was there to facilitate drainage from one area of the lot where a higher area of concrete met a lower level of asphalt. The defendants do not dispute the fact that they had actual or constructive knowledge of long standing of the existence of this drainage hole or depression.

|4The defendants contend that the photographs furnished by them in response to the following interrogatory were not intended .to show the exact location where the fall occurred and, therefore, cannot support the plaintiffs contention that she fell in the drainage hole:

Interrogatory Number 17:
If photographs of the accident scene were obtained by you, or anyone acting on your behalf, please state the total number of photographs obtained, by whom and the scene each depicts.
Answer to Interrogatory Number 17:
See attached copies of photographs.

The defendants argue that the photographs do not represent the exact place where the fall occurred; and that Dr. McKenna, to whom the photographs were attributed as the party to whom the interrogatories were directed, testified that he did not know the exact spot where the plaintiff fell. The defendants argue, in effect, that it is just coincidence that the arrows in the photos pointing to the depression are mere coincidence. After reviewing the photos, we cannot say that an implicit finding by the trial court that the arrows in certain photos pointing to the depression in the parking lot denoted the location of the plaintiffs fall would be manifestly erroneous. Moreover, the plaintiff also introduced photographs of the depression and the reference in the trial court’s written reasons for judgment to photographs was not limited to the photos furnished by the defendants.

Additionally, we find that the plaintiffs testimony concerning her fall was consistent with a finding that, more likely than not, that her fall occurred at the location of the depression. A reasonable fact finder conceivably could have found the plaintiffs testimony that the concrete gave way beneath her step was consistent 15with a fall at the location of the preexisting depression. However, under the manifest error standard, we cannot conclude that a reasonable fact finder could not have determined that, in the confusion of the fall and in light of the substantial cracks in the parking lot, Mrs. Hayes could not have received the impression that the depression gave way beneath her step. In view of the considerable cracking in the surface of the parking lot, another reasonable interpretation of Mrs. Hayes’ testimony is that small grains of the concrete came loose or “gave way” causing her to slip into the depression.

The trial court’s finding that Mrs. Hayes was not at fault in failing to see the depression because the parking lot was full of cars is reasonable under the circumstances. This finding is supported by the fact that the plaintiff was asked to move her car from a location where it impeded another vehicle’s egress because of the crowded condition. While the record might permit another reasonable fact finder to find to the contrary is insufficient to establish error under the manifest error/clearly wrong standard of review.

The defendants also argue that the failure of the plaintiff to introduce photos at trial that she had previously identified at her deposition create an adverse inference that they were unfavorable to the plaintiff. However, we agree with the trial court’s finding that the defendants had the photos available to them and if they felt that they benefited their case they should have introduced them.

As to the issue of whether an unreasonably dangerous condition existed we agree with the following finding of the trial court:

The photos depict a hole where a significant portion of the concrete and/or asphalt is missing. This, in and of itself, creates a dangerous condition. However, the condition is made even more perilous by the fact that it is located directly on an area where there is a 5"-6" height | fidifferential. Thus, the hole in the concrete is exacerbated by this change in elevation.

Having carefully studied the evidence ourselves, this Court not only finds no manifest error in the trial court’s conclusion that an unreasonably dangerous defect existed, but we would reach the same finding had this been a de novo review and not a manifest error review.

The defendants argue that the trial court failed to consider the social utility of the drain. However, we note that at in the middle of the third page of the trial court’s written reasons for judgment under the section designated “(B) Unreasonably Dangerous Defect” the trial court makes four references to the issue of “utility.” We have also reviewed that portion of the trial transcript of Dr. McKenna’s testimony cited by the defendants as supportive of their assertion that they effectively established the utility of the depression as a drain. We find nothing in that testimony that would have explained how a depression at this one location would effectively drain the wide expanse of higher asphalt onto the lower level concrete or how once it reached the concrete it was to find its way to the “permanent grate drain” referred to by Dr. McKenna in his testimony. There is nothing in the pictures of the depression that would guide the water flowing from the higher asphalt in any particular direction once it flowed to the lower concrete level. There is no explanation of why this depression adds anything significant to the movement of water that would occur naturally from the higher level of the parking lot to the lower simply by virtue of the force of gravity. The testimony of Mr. Joseph Russell Labbe, the general contractor who testified that he built the parking lot is no more illuminating in this regard than was the testimony of Dr. McKenna referred to above.

|7Thus we find that as the trial court clearly and expressly declared its awareness of the significance of the question of “utility” in this case; and as the record supports the trial court’s implicit finding that the defendants failed to establish the utility of the depression, we find that there is no error in the judgment of the trial court regarding the issue of “utility.”

For the foregoing reasons, the judgment of the trial court is affirmed. The defendants-appellants are to bear all costs of this appeal.

AFFIRMED.

      . Rilda Hayes and her successors will be referred to interchangeably throughout this opinion as simply the "plaintiff.”


author: PATRICIA RIVET MURRAY, Judge.

text:
    STATE of Louisiana v. Theopulis L. BIAS.
    No. 2006-KA-1153.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 20, 2006.

      Eddie J. Jordan, Jr., District Attorney, David S. Pipes, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellant.
    (Court composed of Judge CHARLES R. JONES, Judge PATRICIA RIVET MURRAY, Judge EDWIN A. LOMBARD).
   PATRICIA RIVET MURRAY, Judge.

|! This is a criminal appeal. The State is the appellant. The sole issue presented is whether the trial court erred in granting the motion to quash the bill of information filed by the defendant, Theopulis Bias, after the State entered a nolle prosequi on the day of trial and two days later reinstated the charge. Answering that question in the affirmative, we reverse and remand.

STATEMENT OF CASE

On February 23, 2005, under case number 456-561, the State filed a bill of information charging Mr. Bias with possession of cocaine. On March 9, 2005, Mr. Bias entered a not guilty plea. On April 15, 2005, a motions hearing was continued at Mr. Bias’ request. On May 17, 2005, a motions hearing was held. Because the police officer did not appear at the hearing, the district court found no probable cause and set a trial date of June 20, 2005. On the trial date, the State entered a nolle prosequi. Two days later, on June 22, 2005, the State reinstituted the charge under case number 460-542. On July 7, 2005, Mr. Bias failed to appear for his arraignment; his arraignment was continued until July 15, 2005. At |2his arraignment, Mr. Bias entered a not guilty plea, and a motions hearing was set for August 19, 2005. On August 9, 2005, Mr. Bias filed a motion to quash. On August 19, 2005, the motions hearing was continued on the State’s motion; the State requested additional time to respond to the motion to quash. On August 22, 2005, a motions hearing was held. Mr. Bias failed to appear, and the State again requested additional time to respond to the motion to quash. The trial court continued the motions hearing until August 28, 2005. At the motions hearing, the district court granted the motion to quash. This appeal followed.

STATEMENT OF FACT

The facts of this case are unknown and irrelevant.

DISCUSSION

The only issue the State raises in this appeal is whether the trial court erred when it granted Mr. Bias’ motion to quash the bill of information. The district court gave no reasons for granting the motion to quash. The sole ground raised in Mr. Bias’ motion was the denial of his constitutional right to a speedy trial. The State argues that the district court erred in granting the motion to quash because Mr. Bias’ right to a speedy trial was not violated.

Both the Louisiana Supreme Court and this court have recognized that the State has the authority to enter a nolle prosequi and to reinstitute the charge. The | ¡jurisprudence, however, has recognized that this authority may be overborne under the circumstances of any given case by the defendant’s constitutional right to a speedy trial. State v. Love, 00-3847 (La.5/23/03), 847 So.2d 1198; State v. Scott, 04-1142 (La.App: 4 Cir. 7/27/05), 913 So.2d 843.

A defendant challenging the State’s nolle prosequi and reinstitution of charges has the burden of showing a violation of his constitutional right to a speedy trial. State v. Henderson, 00-0511, p. 7 (La.App. 4 Cir. 12/13/00), 775 So.2d 1138, 1142. The proper procedural mechanism for challenging the State’s nolle prosequi and reinstitution of charges is a motion to quash. State v. Reaves, 376 So.2d 136, 137-38 (La.1979). A court’s resolution of a motion to quash in cases where the district attorney entered a nolle prosequi and later reinstituted charges should be decided on a case-by-case basis. State v. Batiste, 05-1571, p. 5 (La.10/17/06), 939 So.2d 1245, 1249 (citing Love, 00-3347 at p. 14, 847 So.2d at 1209). When the district attorney evidently is flaunting his authority in order to favor the State at the defendant’s expense (such as placing the defendant at risk of losing witnesses), the trial court should grant the motion to quash. In such cases, if the trial court denies the motion, the court of appeal should reverse. Id.

The standard for analyzing a defendant’s claim that his constitutional right to a speedy trial has been violated is the four factor test enunciated in Barker v. Wingo, 407 U.S. 514, 530, 531-32, 92 S.Ct. 2182, 2192-93, 33 L.Ed.2d 101 (1972), which is as follows: (1) the length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of his right to a speedy trial, and (4) the prejudice to the defendant. Batiste, 05-1571 at p. 7, 939 So.2d at 1250. The circumstances of each individual case will determine the weight to be ascribed to the length of and the reason for the delay. Id. “[T]he delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge.” Reaves, 376 So.2d at 138 (quoting Barker, 407 U.S. at 531, 92 S.Ct. at 2192).

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

Analyzing Mr. Bias’ alleged speedy trial violation under the Barker factors, the delay in this case was only six months. Other than the continuance requested |Rby the State on June 20, 2005, Mr. Bias’ original trial date, the State did not request another continuance until after Mr. Bias filed his motion to quash. The State’s subsequent request was so that it could respond to the motion to quash. Mr. Bias did not assert his right to a speedy trial until he filed his motion to quash. Finally, Mr. Bias has not alleged, nor does the record support, a finding of prejudice caused by the delay. Mr. Bias has been released on bond throughout the proceedings, and there is no indication that he has lost any witnesses or evidence. Given these circumstances, we find no violation of Mr. Bias’ constitutional right to a speedy trial. We thus find the district court erred in granting the motion to quash.

DECREE

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

REVERSED AND REMANDED.

      . The case was originally allotted to Section L. On June 23, 2005, the case was transferred to Section K to follow case number 456-561.

      . Due to Hurricane Katrina, the record for case number 456-561 is unavailable. We granted the State’s motion to supplement the record with the certified copy of the docket master.

      . The State's authority to dismiss any prosecution without the consent of the court is recognized in La.C.Cr. P. art. 691. Under La.C.Cr.P. art. 576, the State is authorized to reinstitute the charges within six months of dismissal. In this case, the State reinstituted the charges against Mr. Bias two days after the dismissal. The State, however, is required to show that the dismissal of the original prosecution was not for the purpose of avoiding the time limitations set by Article 578. Given that the charge at issue in this case is a non-capital felony (possession of cocaine), Article 578 required the State to bring Mr. Bias to trial within two years from the date of the bill of information. La.C.Cr. P. art. 578. The original bill of information was filed on February 23, 2005, and the motion to quash was granted on August 23, 2005, only six months later. The State did not dismiss the first case in order to avoid the time limitations of Article 578. Thus, Mr. Bias' statutory right to a speedy trial had not been violated at that point. The sole issue is whether the constitutional speedy trial requirement was satisfied.

      . Considering the factors in the case at hand, the six-month delay is not presumptively prejudicial. This court has found more lengthy delays non-violative of the right to a speedy trial. See State v. DeRouen, 96-0725 (La.App. 4 Cir. 6/26/96), 678 So.2d 39 (fifteen months elapsed between institution of prosecution and motion to quash two counts of possession with intent to distribute cocaine and one count of possession of 28 to 200 grams of cocaine not violative).


text:
    STATE of Louisiana v. Cynthia WALKER.
    No. 2006-KA-1093.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 20, 2006.
    Eddie J. Jordan, Jr., District Attorney, David S. Pipes, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellant.
    Christopher A. Aberle, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellee.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge DAVID S. GORBATY and Judge LEON A. CANNIZZARO JR.).
   JOAN BERNARD ARMSTRONG, Chief Judge.

_JjOn January 7, 2005, in case number 455-092 “K”, the state filed a bill of information charging the defendant, Cynthia M. Walker, with solicitation of crime against nature, a violation of La. R.S. 14:89(2). The defendant pleaded not guilty at her arraignment on January 12, 2005. The defendant’s bond was reduced to $5000.00 and she filed a bond on February 3, 2005. Trial and a hearing on motions were set for February 18, 2005; however, the defendant failed to appear for the hearing and for trial. An alias capias was issued for her arrest without bond, and the case was continued without date. Subsequently, the defendant was arrested on May 16, 2005. An arrest on capias notification was set for May 18, 2005 in Section “L”, which was acting for Section “K”. On May 18, 2005, defense counsel - appeared without the defendant, who was not brought to court from jail. The matter was continued, and a status hearing was set for May 23, 2005, when defense counsel appeared without the defendant, and the hearing was continued to May 31, 2005. On that date, defense counsel again appeared without the defendant. The matter was continued to June 1, 2005 and again to June 2, 2005, when the defendant appeared in court for the status hearing. The district court recalled the alias capias, and issued a release. A hearing on ^motions was set for June 16, 2005. On that date, the district court found no probable cause to hold the defendant in custody and set the trial for June 27, 2005. The state requested a continuance which the district court denied. The state entered a nolle prosequi, and the defendant was released.

The case was reinstated eight days later on July 5, 2005 as case number 460-892, allotted to Section “K” to follow the previous case, 455-092 “K”. The defendant was arraigned on July 22, 2005 and entered a plea of not guilty; defense counsel filed a motion to quash the bill of information. The district court granted the motion on July 22, 2005. The state appeals.

On July 22, 2005, the defendant filed a two paragraph motion to quash arguing that her constitutional right to a speedy trial was violated because the state nolle prosequied the charges and subsequently reinstated them after the state was denied a continuance on the date of trial because the necessary state witnesses failed to appear.

In a single assignment of error, the state contends that the trial court improperly granted defense counsel’s motion to quash the bill of information reinstituting prosecution because the defendant failed to carry her burden of proving that the delay between the filing of the original bill of information and the filing and granting of the motion to quash was presumptively prejudicial and triggered a violation of relator’s constitutional right to a speedy trial.

|aA defendant has the right under the Sixth Amendment and Article 1, Section 16 of the Louisiana Constitution to a speedy trial. This constitutional right attaches when an individual becomes an accused either by formal indictment or by arrest and actual restraint. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); State v. Sweeney, 443 So.2d 522 (La.1983). In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the Supreme Court set out the following four factors to determine whether a defendant’s constitutional right to a speedy trial has been violated: (1) the length of the delay; (2) the reasons for the delay; (3) the defendant’s assertion of his right to a speedy trial; and (4) the prejudice to the defendant as a result of the delay. The court stated that the length of the delay was the triggering mechanism; and, until the delay was presumptively prejudicial, there was no need to inquire into the other factors, (emphasis added). The court further stated that the length of the delay, which would provoke such an inquiry, was dependent upon the peculiar circumstances of the case. The court noted that the reason for the delay was closely related to the length of the delay and that different weights would be given to different reasons. As to the defendant’s assertion of his right to a speedy trial, the court stated that the assertion of the right was entitled to strong evidentiary weight in determining whether the defendant was deprived of his right. Regarding the final factor, the court stated that prejudice was to be assessed in light of the interests of the defendant which the speedy trial right was designed to protect. The court identified those interests as preventing oppressive pretrial incarceration, minimizing the anxiety and concern of the defendant, and limiting the possibility that the defense would be impaired.

In State v. Reaves, 376 So.2d 136 (La.1979), the defendant was charged with possession of one marijuana cigarette, a misdemeanor, and trial was set and continued four times in the three and one-half months since charges had been brought. On the fourth trial date, the State moved for a continuance because its principal witness was absent. The trial court denied the continuance, and the State nolle prose-quied the bill of information. The State then filed a new bill of information which the defendant moved to quash on the basis that he had been denied his right to a speedy trial. The trial court granted the motion, and the Supreme Court affirmed. The court stated that, although the defendant had not been subjected to an extremely long delay, he was denied his right to a speedy trial. The continuances had been caused by the failure of the arresting officer to appear at trial to testify for the State, and the court stated that the responsibility for these repeated absences had to rest with the State. The defendant had not moved for a speedy trial before filing his motion to quash. The court stated that because the defendant was charged with a misdemeanor, the prejudice requirement was not as stringent.

In State v. DeRouen, 96-0725, p. 2-3 (La.App. 4 Cir. 6/26/96), 678 So.2d 39, fifteen months elapsed between institution of prosecution and the granting of the motion to quash. Two of the trial continuances were attributable to the State and the balance to weather, a crowded docket, and the actions of codefendants. Furthermore, the defendant was not incarcerated during the pendency of the proceedings. In finding that the trial court erred, this Court stated that the defendant was not prejudiced to the extent found in State v. Esteen, 95-1079 (La.App. 4 Cir. 4/3/96), 672 So.2d 1098.

In two other cases, this Court has held that the right to a speedy trial was not violated by a nineteen month delay and a twenty-two month delay between the filing of the bill of information and the defendant’s motion to quash. In State v. Brown, 93-0666 (La.App. 4 Cir. 7/27/94), 641 So.2d 687, there were eight continuances during the nineteen months between the institution of prosecution and the granting of the motion to quash, and only two were directly attributable to the state; furthermore, the defense did not object to the delays until the filing of its motion to quash, and no prejudice to the defendant was shown.

In State v. Johnson, 622 So.2d 845 (La.App. 4 Cir.1993), the defendant argued in a pro se assignment of error on appeal that he had been denied a speedy trial. Although there was a twenty-two month delay between the date of arrest and the day of trial, this Court found that much of the delay was due to the failure of the defendant to appear in court. Additionally, he did not argue that he was prejudiced by the delay.

In the instant case, slightly over six months elapsed between the filing of the original bill of information and the filing and granting of the motion to quash. The felony charge of solicitation of crime against nature carries a fine of not more than $2000.00 and not more than five years in prison with or without hard labor, or both. Thus, a six-month delay does not appear to be presumptively prejudicial. Furthermore, the other Barker factors do not | fisupport the defendant’s claim. The defendant failed to appear on her first motion hearing and trial date on February 18, 2005 which resulted in a warrant for her arrest being issued. This absence, which is not attributable to the state, caused an almost three month delay, half of the total delay, until she was arrested on May 16, 2005. In addition, the defendant does not allege in her motion to quash, nor does the record reflect, that she ever filed a motion for a speedy trial; nor did she object to any continuances requested by the state even though it appears that at least three continuances were due to the state’s failure to bring her to court from jail. Finally, the defendant has not alleged in her motion to quash any prejudice caused by the delay. She was released on bond on February 3, 2005, shortly after her arraignment, and released again, on June 2, 2005, after her arrest for failure to appear for trial. She has not alleged that any witness or evidence has been lost or compromised due to the delay. Therefore, taking all of the Barker factors into consideration, it appears that the defendant’s motion to quash should have been denied. See, State v. Love, 2000-3347 (La.5/23/03), 847 So.2d 1198, and State v. Harris, 2003-0524 (La.App. 4 Cir. 9/10/03), 857 So.2d 16.

Accordingly, the ruling of the district court granting the motion to quash is hereby reversed and the case is remanded for further proceedings.

REVERSED AND REMANDED.

      . In her motion to quash, the defendant did not assert a violation of her statutory right to a speedy trial pursuant to La.C.Cr. P. art. 578 which requires that trial in a non-capital case be commenced within two years of the institution of prosecution. Pursuant to La.C.Cr.P. art. 580, the time period set forth in Article 578 is suspended until the trial court's ruling when the defendant files a motion to quash or other preliminary plea; but in no case shall the State have less than one year after the ruling to commence trial.

      . In her brief on appeal, the defendant argues that speedy trial is not at issue. However, the district court, which did not provide reasons for judgment, shall hear no objections based on grounds not stated in the motion. La. C.Cr.P. art. 536. Therefor, as a Court of record, our consideration is limited to the grounds stated by trial counsel, viz. denial of the defendant's right to a speedy trial.

      . These factors were also applied in the context of an attack on the district attorney’s action in filing a nolle prosequi and subsequently reinstating charges against the defendant in State v. Batiste, 05-1571, p. 3 (La. 10/17/06), 939 So.2d 1245.

      . In Esteen, this court affirmed the trial court's granting of a motion to quash. The court found that a two and one-half year delay between the filing of the charges and trial was presumptively prejudicial triggering an inquiry into the other factors. The case was continued twenty-two times, mostly due to the state and the trial court. Twice the state nolle prosequied the charges when it was not ready to begin the trial. Although the defendant did not move for a speedy trial nor object to any of the continuances, this court concluded that these omissions were not dispositive, and found that they were only one factor to consider. This court also found that the defendant was "clearly prejudiced” by the delays since he spent eleven months incarcerated, and his defense was severely hampered by the death of a crucial witness.

      . On May 18, 23 and 31, 2005, defense counsel appeared in court without the defendant. The docket master entry of May 18th shows that the defendant was in custody and was not brought to court. Defendant was not released until June 2nd. Therefore, she was in custody on the 23rd and 31st.


text:
    Latasha FOUCHA v. DEPARTMENT OF POLICE.
    No. 2006-CA-0860.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 20, 2006.
    Gary M. Pendergast, Gary M. Pender-gast, L.L.C., New Orleans, LA, for Plaintiff/Appellant.
    James B. Mullaly, Assistant City Attorney, Joseph V. DiRosa, Jr., Chief Deputy City Attorney, Penya M. Moses-Fields, City Attorney, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge CHARLES R. JONES, Judge PATRICIA RIVET MURRAY, Judge EDWIN A. LOMBARD).
   PATRICIA RIVET MURRAY, Judge.

IvA former permanent classified civil service employee of the New Orleans Police Department (“NOPD”), Latasha Foucha, appeals from a decision by the Civil Service Commission of the City of New Orleans (the “Commission”) dismissing her appeal. Agreeing with the NOPD (the Appointing Authority) that Ms. Foucha has no right of appeal, the Commission dismissed the appeal. For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On August 27, 2005, the day before Hurricane Katrina struck the New Orleans area, Superintendent Edwin P. Compass, III, placed the NOPD on alert. As a result, all essential department personnel were required to contact their commander for reporting instructions and to report for duty as instructed. Although Ms. Foucha was an essential personnel, she failed to report.

|2On September 15, 2005, Superintendent Compass placed all essential personnel who had failed to report on emergency suspension pending an investigation for job abandonment. On October 1, 2005, Ms. Foucha resigned for personal reasons. Due to her resignation, the NOPD terminated its investigation into whether she abandoned her position. However, it designated in the Public Integrity Bureau (“PIB”) records that she resigned under investigation (“RUI”). On October 24, 2005, the PIB issued a report concluding that Ms. Foucha abandoned her position. The PIB report states that Ms. Foucha “was absent and/or abandoned her official duties related to the Hurricane Katrina Disaster without command level authorization and has not returned to duty as of Thursday, September 29, 2005.”

On December 19, 2005, Ms. Foucha filed an appeal. In her letter of appeal, she represents that “with the permission of the Department, [she] left New Orleans, prior to Hurricane Katrina, to care for her three children” and that her husband, who was also a NOPD officer, stayed in the city and worked throughout the hurricane. She further represents that on December 15, 2005, she applied for a position with an Ohio law enforcement agency and was informed that she was unemployable because she was under investigation by the NOPD for abandoning her position. She requests that any investigation remaining on her record be |abrought before the Commission. She also requests that the Commission review any action that has previously been taken against her by the NOPD.

Following a hearing, the Commission granted the NOPD’s motion for summary disposition and dismissed Ms. Foucha’s appeal. In so doing, the Commission in its judgment reasoned as follows:

No disciplinary action was taken against the Appellant [Ms. Foucha] nor has the Appellant cited the Commission to any violation of its Rules. The remedy sought by the Appellant, namely the removal of the PIB report from her personnel file, is not within the Commission’s power to grant absent a demonstration of the existence of matters over which the Commission has jurisdiction, namely, cases involving removal, discipline, prohibited discrimination or rules violations.

This appeal followed.

STANDARD OF REVIEW

In Russell v. Mosquito Control Bd., 06-0346, pp. 7-8 (La.App. 4 Cir. 9/27/06), 941 So.2d 634, 639, we recently articulated the applicable standard of review in civil service cases is as follows:

First, the review by appellate courts of the factual findings in a civil service case is governed by the manifest error or clearly erroneous standard. Second, when the Commission’s decision involves jurisdiction, procedure, and interpretation of laws or regulations, judicial review is not limited to the arbitrary, capricious, or abuse of discretion standard. Instead, on legal issues, appellate courts give no special weight to the findings of the trial court, but exercise their constitutional duty to review questions of law and render judgment on the record. A legal error occurs when a trial court applies the incorrect principles of law and such errors are prejudicial. Finally, a mixed question of fact and law should be accorded great deference by appellate courts under the manifest error standard of review.

Id. (citing Banks v. New Orleans Police Dep’t., 01-0859, p. 3 (La.App. 4 Cir. 9/25/02), 829 So.2d 511, 513-14).

^DISCUSSION

The sole issue presented on this appeal is whether Ms. Foucha has a right of appeal to the Commission. “[T]he question of whether an employee has the right to appeal is analogous to the question of whether a plaintiff has a cause of action.” Banks, 01-0859 at p. 3, 829 So.2d at 514. If the employee alleges a ground upon which an appeal is allowed, the employee has a right to appeal. In this case, Ms. Foucha alleges the following two grounds on which she contends she has a right to appeal: (i) the RUI designation issue, which she characterizes as an employment-related issue; and (ii) the emergency suspension, which she characterizes as a disciplinary action. We separately address these two grounds.

(i) the RUI designation issue

The RUI designation issue refers to Ms. Foucha’s request that the Commission order the NOPD to remove from her record the RUI designation, which she contends is precluding her from obtaining employment with another law enforcement agency. Ms. Foucha further contends that this is an employment related dispute because it is an allegation by the NOPD that she was neglectful of her duty and that she resigned while she was under investigation. In support of her contention that the Commission erred in finding it lacked jurisdiction over this issue, Ms. Foucha cites Simon v. Board of Comm’rs of Port of New Orleans, 04-0368 (La.App. 4 Cir. 5/12/04), 875 So.2d 102. In Simon, she contends that this court held the Commission had jurisdiction over an analogous employment related dispute — an employee’s challenge of the circumstances surrounding his resignation and his subsequent inability to secure employment with another police agency. She also cites Simon for the well-settled principle that the Commission |shas exclusive jurisdiction over all classified civil service employer-employee disputes that are employment related.

Ms. Foucha’s reliance on Simon is misplaced for two reasons.

The well-settled principle recited in Simon is that the Commission has jurisdiction over all employment related disputes, which refers to the Commission’s jurisdiction over matters stemming from its broad rule making authority under La. Const, art. X, § 10(A). Construing Section 10(A), the jurisprudence has found it evidences an intent to grant the Commission exclusive jurisdiction in those areas where it has exercised its “broad and general rule-making” power. Strickland v. State, Through Office of the Governor, 525 So.2d 740, 743 (La.App. 1 Cir.1988); see also Crockett v. State Through Dep’t of Public Safety and Corrections, 97-2528, p. 4 (La.App. 1 Cir. 11/6/98), 721 So.2d 1081, 1083. Thus, as Ms. Foucha points out, the Commission has exclusive jurisdiction over classified civil service employment related disputes. Eberhardt v. Levasseur, 630 So.2d 844 (La.App. 4 Cir.1993). However, as the Commission stated in its judgment, Ms. Foucha has not alleged a violation of any of the Commission’s rules. Therefore, this principle is not relevant to her situation.

In addition, Simon is distinguishable factually. In Simon, a former harbor police officer commenced suit in district court against, among others, the Harbor Police Department (“HPD”). The suit arose out of the officer’s resignation from his position with the HPD to take a law enforcement job with the NOPD. After the NOPD refused to employ him, he unsuccessfully attempted to rescind his resignation. Contending that the suit involved an employment-related issue within the Commission’s exclusive jurisdiction, the HPD filed an exception of lack of subject matter jurisdiction. The trial court denied the exception. On appeal, this | ncourt found that the Commission had exclusive jurisdiction, basing our finding on the allegations in the officer’s petition, which we found “clearly establish that this case is an employment-related matter involving the circumstances of his resignation, which he characterized as a ‘wrongful termination.’ ” Simon, 04-0368 at pp. 5-6, 875 So.2d at 105. We stated that “[t]he authority to review the basis for a termination of a civil servant’s employment and decide whether it was in accordance with law is expressly and unambiguously assigned to the Civil Service Commission, subject to the right of judicial review, in Section 12(A) of Article 10.” Simon, 04-0368 at p. 6, 875 So.2d at 105 (quoting Reimer v. Medical Center of Louisiana at New Orleans, 95-2799, p. 4 (La.App. 4 Cir. 1/29/97), 688 So.2d 165, 168). We further noted that the relief the officer sought included back pay and reinstatement, which are two types of relief the Commission has the authority to grant.

Unlike in Simon, Ms. Foucha does not claim that she was terminated or involuntarily resigned. Nor does she seek reinstatement or back pay. Rather, she acknowledges that she voluntarily resigned and seeks only to clear her record of the RUI designation. When, as in this case, an employee voluntarily resigns, the employee has no right to appeal. Russell, supra; Palmisano v. Department of Fleet Management, Parish of Jefferson, 97-745, p. 5 (La.App. 5 Cir. 12/10/97), 704 So.2d 862, 864. On the other hand, when as in Simon, it is alleged that an employee involuntarily resigned, the employee has a right to appeal. Russell, supra. The reason an employee who involuntarily resigns has a right to appeal is “to preclude the characterization of disciplinary action as a ‘resignation’ to subvert an employee’s right to appeal provided for by La. Const. Art 10, § 8.” Peterson v. Department of Streets, 369 So.2d 235, 237 (La.App. 4th Cir.1979).

17Summarizing, we find the RUI designation issue, albeit related to Ms. Foucha’s prior employment, is not an employment-related dispute within the Commission’s jurisdiction because it does not involve a violation of the Commission’s rules. As the Commission found in dismissing the appeal, the RUI designation issue also does not involve removal, disciplinary action, or prohibited discrimination. We thus find no error in the Commission’s finding that it lacks jurisdiction over this issue.

(ii) emergency suspension

The other ground that Ms. Foucha relies on as establishing a right to appeal is the September 15, 2005 emergency suspension. Ms. Foucha contends that the emergency suspension was a disciplinary action over which the Commission has exclusive jurisdiction. Shé relies on La. Const, art. X, §§ 8 and 12, which grant the Commission the exclusive power to hear and decide all removal and disciplinary actions involving classified employees. The Constitution, however, does not define a disciplinary action.

The emergency suspension at issue in this case was not a suspension in the true sense of the word. The emergency suspension, as Ms. Foucha states in her brief to this court, “was part of the Department wide emergency suspension procedure which was put into effect and impacted all officers who had not returned to their duties by September 14, 2005.” Ms. Fou-cha was never issued a disciplinary letter or formally suspended. Moreover, as noted in the PIB report, beginning on August 28, 2005, Ms. Foucha was designated as absent without pay |S(“AWP”) and absent without leave (“AWOL”). Thus, even before the emergency suspension, she was on unpaid leave. The only real effect of the emergency suspension was to commence an investigation into whether she abandoned her position.

Even assuming, arguendo, that the emergency suspension constituted disciplinary action, we find, as the NOPD contends, that Ms. Foucha’s voluntary resignation precludes her from appealing the emergency suspension. As noted above, an employee who voluntarily resigns has no right to appeal. Russell, supra. Given her voluntary resignation, we find Ms. Foucha does not have the right to appeal her emergency suspension.

DECREE

For the forgoing reasons, the judgment of the Commission is affirmed.

AFFIRMED.

      . Although the appellant is also referred to in the record as Latasha Foucha-Dent, we use the name that appears in the caption, Latasha Foucha.

      . She was a commissioned officer and a first responder. She was assigned to Operations/Crime Prevention.

      . Ms. Foucha contends that she was under the impression she was relieved of her duty to report given her circumstances — she was married to a NOPD officer and the mother of three minor children. Her impression was that "if first responders were married and had children, the wife would be relieved of 'alert' status so that she could tend to the children of the couple.” Although we sympathize with Ms. Foucha’s circumstances, the issue of whether she was relieved of her duty to report or abandoned her position is not before us.

      . In her written resignation, she lists her reason for resigning as follows: "the devastation caused by [HJurricane Katrina made it impossible for any of my family members or my husband's family members to properly care for our children, in the event of our absence.”

      .The NOPD represents that due to Ms. Fou-cha’s resignation it never completed its investigation into whether she abandoned her position. It further represents that it kept the investigation open in case Ms. Foucha would ever seek re-employment with the department. Ms. Foucha contends that the investigation did not formally begin until after she resigned and that she was unaware of the investigation until she sought employment with an Ohio law enforcement agency. Although before the Commission Ms. Foucha sought to have her record cleared of the PIB report, in this court she seeks to have her record cleared of the RUI designation. We view these requests as synonymous and thus address only the RUI designation issue briefed by Ms. Foucha on appeal.

      . The Commission rules provide that "[r]egu-lar employees in the classified service shall have the right to appeal disciplinary actions to the Commission, including retirement, demotion, suspension, fine or reduction in pay” and provides for appeal of certain types of discrimination claims. Rules of the City of New Orleans Civil Service Commission, Rule 4.1.