text:
    STATE of Louisiana v. Lawrence WILLIAMS.
    No. 2011-KO-1281.
    Supreme Court of Louisiana.
    Feb. 3, 2012.
   In re Williams, Lawrence; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. E, No. 480-254; to the Court of Appeal, Fourth Circuit, No. 2010-KA-1197.

Denied.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Nathaniel PAYTON.
    No. 2011-K-1296.
    Supreme Court of Louisiana.
    Feb. 3, 2012.
   In re Payton, Nathaniel; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. B, No. 486-528; to the Court of Appeal, Fourth Circuit, No. 2010-KA-1166.

Denied.


text:
    STATE of Louisiana v. Shawn A. MARTIN.
    No. 2011-KO-1367.
    Supreme Court of Louisiana.
    Feb. 3, 2012.
   In re Martin, Shawn A.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. K, No. 08-2003; to the Court of Appeal, Fifth Circuit, No. 10-KA-710.

Denied.


text:
    STATE of Louisiana v. Steve HAYES, Jr.
    No. 2011-KO-1370.
    Supreme Court of Louisiana.
    Feb. 3, 2012.
   In re Hayes Jr., Steve; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of St. James, 23rd Judicial District Court Div. B, No. 4620; to the Court of Appeal, Fifth Circuit, No. 10-KA-685.

Denied.


text:
    STATE ex rel. Laverne Lee HAMPTON a/k/a Pee Wee v. STATE of Louisiana.
    No. 2011-KO-1467.
    Supreme Court of Louisiana.
    Feb. 3, 2012.
   In re Láveme Lee Hampton a/k/a Pee Wee; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Oua-chita, 4th Judicial District Court Div. K, No. 08-F2297; to the Court of Appeal, Second Circuit, No. 46,363-KA.

Denied.

CLARK, J., recused.


text:
    STATE of Louisiana v. Jessie BELL, Jr.
    No. 2011-K-1504.
    Supreme Court of Louisiana.
    Feb. 3, 2012.
   In re Bell Jr., Jessie; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Lafourche, 17th Judicial District Court Div. C, No. 433,703; to the Court of Appeal, First Circuit, No. 2010 KA 1954.

Denied.

WEIMER, J., recused.


text:
    STATE of Louisiana v. Jeffrey Keith THURMAN.
    No. 2011-KO-1868.
    Supreme Court of Louisiana.
    Feb. 3, 2012.
   In re Thurman, Jeffrey Keith; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Lincoln, 3rd Judicial District Court Div. B, No. 57,673; to the Court of Appeal, Second Circuit, No. 46,391-KA.

Denied.


text:
    STATE of Louisiana v. Dwayne Adam RACINE.
    No. 2011-K-1901.
    Supreme Court of Louisiana.
    Feb. 3, 2012.
   In re Racine, Dwayne Adam; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Terrebonne, 32nd Judicial District Court Div. D, No. 531,853; to the Court of Appeal, First Circuit, No. 2010 KA 0911.

Denied.


text:
    STATE of Louisiana v. Melvin VERNELL, Jr.
    No. 2011-K-1912.
    Supreme Court of Louisiana.
    Feb. 3, 2012.
   In re Vernell Jr., Melvin; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. L, No. 5-09-215; to the Court of Appeal, First Circuit, No. 2010 KA 0990.

Denied.


text:
    STATE of Louisiana v. Marcus D. ROACH.
    No. 2011-K-1913.
    Supreme Court of Louisiana.
    Feb. 3, 2012.
   In re Roach, Marcus D.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. L, No. 5-09-215; to the Court of Appeal, First Circuit, No. 2010 KA 0991.

Denied.


text:
    STATE of Louisiana v. Bobby WALLACE, Jr.
    No. 2011-KO-1962.
    Supreme Court of Louisiana.
    Feb. 3, 2012.
   In re Wallace Jr., Bobby; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. 3, No. 259,554; to the Court of Appeal, Second Circuit, No. 46,-422-KA.

Denied.


text:
    STATE ex rel. Calvin Lee CRADDOCK v. STATE of Louisiana.
    No. 2011-KH-1989.
    Supreme Court of Louisiana.
    Feb. 3, 2012.
   In re Craddock, Calvin Lee; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. D, No. 397650; to the Court of Appeal, First Circuit, No. 2011 KW 1123.

Denied.


text:
    Clayton BIAS, et al. v. Federico DELTORO, et al.
    No. 2011-C-2410.
    Supreme Court of Louisiana.
    Feb. 3, 2012.
   In re Louisiana Medical Mutual Insurance Company; Snatic M.D., Steven; — Defendants); Applying For Writ of Certiora-ri and/or Review, Parish of Lafayette, 15th Judicial District Court Div. B, No. 2010-4632-B; to the Court of Appeal, Third Circuit, No. 11-291.

Denied.

VICTORY, J., would grant.


text:
    J. Clemille SIMON and Katheryn Simon v. R. Scott BELAIRE, et al.
    No. 2011-C-2454.
    Supreme Court of Louisiana.
    Feb. 3, 2012.
   In re Simon, J. Clemille et al.; Simon, Katheryn; — Plaintiff(s); Applying For Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. B, No. 2008-2703; to the Court of Appeal, Third Circuit, No. 11-442.

Denied.

KNOLL and CLARK, JJ., would grant.


text:
    Mary Kathryn DAIGLE versus City of Shreveport C/W Mary Kathryn Daigle v. CITY OF SHREVEPORT.
    No. 2011-C-2472.
    Supreme Court of Louisiana.
    Feb. 3, 2012.
   In re Davis, S.P.; — Other; Applying For Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. A, No. 496,806; to the Court of Appeal, Second Circuit, Nos. 46,429-CA, 46,492-CA.

Denied.


text:
    Bernadette WILLIAMS v. LAFAYETTE CITY-PARISH CONSOLIDATED GOVERNMENT.
    No. 2011-C-2473.
    Supreme Court of Louisiana.
    Feb. 3, 2012.
   In re Williams, Bernadette; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. G, No. 2002-6390; to the Court of Appeal, Third Circuit, No. 11-281.

Denied.

JOHNSON, J., would grant.


text:
    Terry W. JONES v. William “Bill” BELT, et al.
    No. 2011-CP-2487.
    Supreme Court of Louisiana.
    Feb. 3, 2012.
   In re Jones, Terry W.; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Avoyelles, 12th Judicial District Court Div. A, No. 2007-0329-A; to the Court of Appeal, Third Circuit, No. 11-945.

Denied.


text:
    Bryce MOUTON v. OLD REPUBLIC INSURANCE CO., et al.
    No. 2011-C-2490.
    Supreme Court of Louisiana.
    Feb. 3, 2012.
   In re Mouton, Bryce; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Acadia, 15th Judicial District Court Div. J, No. 2009-10985-J; to the Court of Appeal, Third Circuit, No. 11-458.

Denied.


text:
    Robert Earl Lee BICKHAM, et al. v. METROPOLITAN LIFE INSURANCE COMPANY, et al.
    No. 2011-CC-2509.
    Supreme Court of Louisiana.
    Feb. 3, 2012.
   In re Century Indemnity Company;— Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Washington, 22nd Judicial District Court Div. E, Nos. 70,760, 72,154, 72,986, 89,864; to the Court of Appeal, First Circuit, No. 2011 CW 1546.

Denied.

VICTORY and CLARK, JJ., would grant.


text:
    Christy STRICKLAND, et al. v. COMMUNITY HEALTH SYSTEMS, INC., et al.
    No. 2011-CC-2512.
    Supreme Court of Louisiana.
    Feb. 3, 2012.
   In re Byrd Regional Hospital; Community Health Systems Inc. et al.; Community Health Systems Prof. Services Corp.; National Health Care of Leesville Inc. d/b/a; — Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Vernon, 30th Judicial District Court Div. A, No. 75,186; to the Court of Appeal, Third Circuit, No. CW 11-01120.

Denied.


text:
    David HARRELL v. BROOKSHIRE GROCERY COMPANY.
    No. 2011-C-2557.
    Supreme Court of Louisiana.
    Feb. 3, 2012.
   In re Brookshire Grocery Company;— Defendant; Applying For Writ of Certio-rari and/or Review Office of Workers’ Compensation District 2, No. 08-20268; to the Court of Appeal, Third Circuit, No. 11-108.

Denied.

VICTORY, J., would grant.


text:
    SAFEGUARD STORAGE PROPERTIES, L.L.C., et al. v. DONAHUE FAVRET CONTRACTORS, INC., et al.
    No. 2011-CC-2559.
    Supreme Court of Louisiana.
    Feb. 3, 2012.
   In re Safeguard Storage Properties L.L.C. et al.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. H, No. 07-9359; to the Court of Appeal, Fourth Circuit, No. 2011-C-1438.

Denied. Moot. See disposition in No. ll-cc-2558.


text:
    Michael T. PAWLUS v. TWENTY-FIRST JUDICIAL DISTRICT PUBLIC DEFENDER.
    No. 2011-C-2579.
    Supreme Court of Louisiana.
    Feb. 3, 2012.
   In re Pawlus, Michael T.; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Tangipahoa, 21st Judicial District Court Div. B, No. 2005-001414; to the Court of Appeal, First Circuit, No. 2010 CA 1677.

Denied.


text:
    ENMON ENTERPRISES, L.L.C. d/b/a Jani King of New Orleans v. CITY OF NEW ORLEANS by and through the NEW ORLEANS AVIATION BOARD, Daniel F. Packer, Jr., David B. Campbell, Ti Martin, Lea Polk Montgomery, Douglas M. Evans, Nelita Manego-Ramey, Nolan V. Rollins, and Henry A. Smith, Jr., etc.
    No. 2011-C-2580.
    Supreme Court of Louisiana.
    Feb. 3, 2012.
   In re Enmon Enterprises L.L.C. et al.; Jani King of New Orleans; — Plaintiff(s); Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. E, No. 09-12898; to the Court of Appeal, Fourth Circuit, No. 2011-CA-0459.

Denied.


text:
    Lacy Nicole PIRTLE v. ALLSTATE INSURANCE COMPANY.
    No. 2011-OC-2587.
    Supreme Court of Louisiana.
    Feb. 3, 2012.
   In re Pirtle, Lacy Nicole; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. D, No. 538,670; to the Court of Appeal, First Circuit, No. 2011 CA 1063.

Denied.


text:
    FIRST NBC BANK v. Marlin N. GUSMAN in his Capacity as Sheriff for the Parish of Orleans.
    No. 2011-C-2595.
    Supreme Court of Louisiana.
    Feb. 3, 2012.
   In re First NBC Bank; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. I, No. 2011-0442; to the Court of Appeal, Fourth Circuit, No. 2011-CA-0458.

Denied.


text:
    UNITED STATES RISK MANAGEMENT, L.L.C. v. Lee DAY.
    No. 2011-C-2605.
    Supreme Court of Louisiana.
    Feb. 3, 2012.
   In re Day, Lee; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. C, No. 10-4739; to the Court of Appeal, Fourth Circuit, No. 2011-CA-0533.

Denied.


text:
    STATE of Louisiana v. Louis SMITH.
    No. 2012-KK-0044.
    Supreme Court of Louisiana.
    Feb. 7, 2012.
   In re State of Louisiana; — Plaintiff; Applying For Supervisory, and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. B, No. 494-717; to the Court of Appeal, Fourth Circuit, No. 2011-K-1688.

Writ granted. The decision of the court of appeal is reversed, and the trial court’s ruling denying the defendant’s motion to sever the two counts of armed robbery is reinstated. La. Code Crim. Proc. art. 493 provides that “[t]wo or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan; provided that the offenses joined must be triable by the same mode of trial.” [Emphasis supplied.] The charged offenses are both armed robberies, and there has been no showing the trial court erred in finding the defendant would not be prejudiced as a result of the joinder of the two offenses for trial. See La.Code Crim. Proc. art. 495.1; State v. Demise, 98-0541, p. 7 (La.4/3/01), 802 So.2d 1224, 1232.

KNOLL, J., would deny.


text:
    STATE ex rel. Kenneth DUROSSEAU v. STATE of Louisiana.
    No. 2011-KH-1064.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re Durosseau, Kenneth; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Acadia, 15th Judicial District Court Div. F, No. 67,907; to the Court of Appeal, Third Circuit, No. KH 10-01260.

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. Rickey Ray LEWIS v. STATE of Louisiana.
    No. 2011-KH-1066.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re Lewis, Rickey Ray; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Natchitoches, 10th Judicial District Court Div. B, No. 95-6303; to the Court of Appeal, Third Circuit, No. KH 10-01342.

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 BURGO v. STATE of Louisiana.
    No. 2011-KH-1067.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re Burgo, Donald; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Mary, 16th Judicial District Court Div. A, No. 05-168512; to the Court of Appeal, First Circuit, No. 2011 KW 121.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189. Cf. La.C.Cr.P. art. 930.4(D).


text:
    STATE of Louisiana v. Derrick Louis WATTS.
    No. 2011-K-1106.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re Watts, Derrick Louis; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Ascension, 23rd Judicial District Court Div. B, No. 17056; to the Court of Appeal, First Circuit, No. 2010 KA 1842.

Denied.


text:
    STATE ex rel. Charles CHANEY v. STATE of Louisiana.
    No. 2011-KH-1109.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re Chaney, Charles; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Tangipahoa, 21st Judicial District Court Div. C, No. 103318; to the Court of Appeal, First Circuit, No. 2011 KW 0157.

Denied.


text:
    STATE ex rel. Stanley COSTON v. STATE of Louisiana.
    No. 2011-KH-1465.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re Coston, Stanley (Pro Se); — Plaintiff; Applying Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. E, No. 403-628; to the Court of Appeal, Fourth Circuit, No. 2011-K-0460.

Denied.


text:
    STATE of Louisiana v. Easley QUINN.
    No. 2011-KO-1587.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re Quinn, Easley; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. L, No. 490-592; to the Court of Appeal, Fourth Circuit, No. 2010-KA 1548.

Denied.


text:
    STATE of Louisiana v. Matthew R. SCOGGIN.
    No. 2011-K-1608.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re Seoggin, Matthew R.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. B, No. 482-770; to the Court of Appeal, Fourth Circuit, No. 2010-KA-0869.

Denied.

CLARK, J., would grant.


author: PER CURIAM.

text:
    Jacquelyn DAIGLE v. The JEFFERSON PARISH COUNCIL and the Parish of Jefferson.
    No. 09-CA-440.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 3, 2009.
    Robert S. Reich, Attorney at Law, Me-tairie, LA, for Plaintiff/Appellant.
    Loren Marino, Assistant Parish Attorney, Gretna, LA, for Defendants/Appel-lees.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., FREDERICKS HOMBERG WICKER, and MARC E. JOHNSON.
   PER CURIAM.

12After review of the record in this case we found that the Motion for New Trial filed in the trial court may have been untimely submitted to the Jefferson Parish Clerk of Court, thereby rendering this appeal untimely. Therefore, on October 23, 2009 we ordered the appellant to show cause why this appeal should not be dismissed for untimeliness. We also ordered the appellee to respond.

In response to our order the appellant was granted leave to supplement the record. The exhibits supplemented into the record by appellant makes out a prima facie case that the Motion for New Trial was originally fax filed timely and that the original motion and correct fee was timely mailed to the clerk of court to complete the filing in a timely manner in compliance with LSA-R.S. 13:850. The record, however, indicates that the clerk did not clock the Motion for New Trial and actually file the pleading into the record within the delays allowed by law. No explanation for this delay has been made to the court. Therefore, we remand the case to the trial court for an evidentiary hearing to determine the timeliness of appellant’s filing of the Motion for New Trial. We |3mstruct the trial judge to make a factual finding as to whether the fax filing was timely.

Subsequent to that finding, we instruct the Clerk of the 24th Judicial District Court to supplement the appellate record with the transcript of the evidentiary hearing, including the trial judge’s factual finding within fifteen (15) days of the disposition.

In view of the remand, this case is removed from the November 3, 2009 docket.

Upon the lodging of the supplementation, the appeal will be re-docketed on the next available docket.

REMANDED TO TRIAL COURT WITH INSTRUCTIONS


author: CARTER, C.J.

text:
    Succession of Arthur Louis ROBINSON v. Suzanne D. HARLAN & Charles Harlan.
    No. 2011 CA 0703.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 9, 2011.
    Rehearing Denied Jan. 11, 2012.

      Andrew L. Kramer, Binford E. Parker, III, New Orleans, LA, for Third-Party Defendants/Appellants, Terri Marie Robinson, Braden Paul Robinson, & Julie Robinson Davis.
    Eugene R. Groves, Frederick R. Tulley, Hansel M. Harlan, Baton Rouge, LA, for Defendants/Third Party Plaintiffs/Appel-lees, Suzanne D. Harlan & Charles Harlan.
    Before CARTER, C.J., PARRO and HIGGINBOTHAM, JJ.
   CARTER, C.J.

|2The parties seek review of the trial court’s October 25, 2010, judgment imposing sanctions against third-party defendants, Terri Marie Robinson, Braden Paul Robinson, and Julie Robinson Davis (the Robinsons), and in favor of third-party plaintiffs Suzanne D. and Charles G. Harlan (the Harlans). The trial court designated the judgment as final and immediately appealable pursuant to Louisiana Code of Civil Procedure Annotated article 1915.

The trial court’s judgment imposing sanctions on a party does not determine the substantive merits of the case, but only a preliminary matter in the course of this action. Accordingly, the judgment is interlocutory. See La.Code Civ. Proc. Ann. art. 1841; Succession of Bell, 06-1710 (La.App. 1 Cir. 6/8/07), 964 So.2d 1067, 1072 (“A judgment of contempt of court is an interlocutory judgment, since it does not determine the substantive merits of the case.”); Suazo v. Suazo, 10-0111 (La-App. 1 Cir. 6/11/10), 39 So.3d 830, 832 (A contempt finding does not speak to the merits of the case and is, therefore, an interlocutory judgment.); Smith v. Smith, 398 So.2d 549, 551 (La.App. 1st Cir.1979) (Discovery orders, including those that assess attorney fees for failure to make discovery as required by statute, are non-appealable, interlocutory judgments.).

An interlocutory judgment is ap-pealable only when expressly provided for by law. La.Code Civ. Proc. Ann. art. 2083 C. There is no statute allowing an immediate appeal of a judgment of contempt or an award of sanctions against a |sparty pursuant to Louisiana Code of Civil Procedure Annotated article 1471, and therefore, such a judgment is not immediately ap-pealable on its own. See Succession of Bell, 964 So.2d at 1072. Interlocutory judgments such as these are subject to review via an application for supervisory writs. See Smith, 398 So.2d at 551; Mill Creek Homeowners Association, Inc. v. Manuel, 04-1386 (La.App. 1 Cir. 6/10/05), 916 So.2d 271, 272 n. 1 (“It is a well established rule of law that a judgment holding a party in direct contempt of court is not reviewable by appeal, but is subject to review via application for supervisory writs.”).

Moreover, because the trial court’s judgment does not impose sanctions or disciplinary action pursuant to Louisiana Code of Civil Procedure Annotated articles 191, 863, or 864, or Louisiana Code of Evidence Annotated article 510 G, it does not fall under the rubric of Louisiana Code of Civil Procedure Annotated article 1915 A(6) and is not a partial final judgment subject to immediate appeal by law. See Succession of Bell, 964 So.2d at 1072. The trial court’s designation of this interlocutory judgment as “final” has no legal effect, and the interlocutory judgment is not subject to an immediate appeal. See Peak Performance Physical Therapy & Fitness, LLC v. Hibernia Corp., 07-2206 (La.App. 1 Cir. 6/6/08), 992 So.2d 527, 530, writ denied, 08-1478 (La.10/3/08), 992 So.2d 1018 (Despite designation by the trial court, a judgment overruling the peremptory exception raising the objection of prescription is an interlocutory judgment and not appealable). The party cast in judgment can obtain adequate relief upon appellate review of the merits of the case. Albritton v. Fidelity National Bank Trust, 619 So.2d 1170, 1172 (La.App. 1st Cir.5/28/93).

|4We recognize that this court, on November 23, 2010, denied the Robinsons’ expedited application for a supervisory writ wherein they challenged the propriety of the trial court’s designation of the judgment as final and immediately appealable pursuant to Article 1915, as well as the award of sanctions in favor of the Harlans. However, the denial of supervisory review is merely a decision not to exercise the extraordinary powers of supervisory jurisdiction and does not bar reconsideration of, or a different conclusion on, the same question. Dupre v. Maynard, 96-1183 (La.App. 1 Cir. 3/27/97) 692 So.2d 36, 38, writ denied, 97-1508 (La.9/26/97) 701 So.2d 986. Subject matter jurisdiction cannot be waived or conferred by the consent of the parties, and “it is the duty of a court to examine subject matter jurisdiction sua sponte, even when the issue is not raised by the litigants.” Boudreaux v. State, Dept. of Transp. and Development, 01-1329 (La.2/26/02), 815 So.2d 7, 13; see La.Code Civ. Proc. Ann. art. 925 C. Having the benefit of a complete record before us, it is now clear that the October 25, 2010, judgment is interlocutory, and we lack appellate jurisdiction. The parties have an adequate remedy on appeal of a final judgment on the merits; therefore, we decline to convert this matter to an application for a supervisory writ and exercise our discretionary supervisory jurisdiction.

For the forgoing reasons, this appeal is dismissed. Third-party defendants/appellants, Terri Marie Robinson, Braden Paul Robinson, and Julie Robinson Davis, and third-party plaintiffs/appellees, Suzanne D. and Charles G. Harlan, are each to bear their own costs of this appeal.

APPEAL DISMISSED.

      . Smith was decided under Louisiana Code of Civil Procedure Annotated article 2083, prior to its amendment by Act 205, section 1, of the 2005 Legislative Session ("An appeal may be taken from ... an interlocutory judgment which may cause irreparable injury.’’). Although irreparable injury is no longer the standard for allowing an appeal of an interlocutory judgment, we cite Smith for its proposition that judgments assessing attorney fees for failure to make discovery as required by statute are interlocutory.

      . Had the judgment at issue qualified for an immediate appeal pursuant to Article 1915 A(6), there would have been no requirement that the judgment be designated as a final judgment subject to an immediate appeal.


author: HIGGINBOTHAM, J.

text:
    STATE of Louisiana v. Justin Blake HARRIS.
    No. 2011 KA 0779.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 9, 2011.

      Walter P. Reed, District Attorney, Cov-ington, LA, Kathryn W. Landry, Baton Rouge, LA, for Plaintiff-Appellee, State of Louisiana.
    Mary E. Roper, Baton Rouge, LA, for Defendant-Appellant, Justin Blake Harris.
    Before CARTER, C.J., PARRO, and HIGGINBOTHAM, JJ.
   HIGGINBOTHAM, J.

|2The defendant, Justin Blake Harris, was charged by felony bill of information on three counts: (1) possession of flurazep-am (a schedule IV controlled dangerous substance) in violation of La. R.S. 40:969(C); (2) possession of amphetamine (a schedule II controlled dangerous substance) in violation of La. R.S. 40:967(C); and (3) second offense possession of marijuana (a schedule I controlled dangerous substance) in violation of La. R.S. 40:966(E). See also La. R.S. 40:964. The defendant entered a plea of not guilty. The trial court denied the defendant’s motion to suppress the evidence and motion to quash the bill of information.

After a trial by jury the defendant was found guilty as charged. As to each count, and to be served concurrently, the defendant was sentenced to four years imprisonment at hard labor, suspended, with four years of supervised probation under general conditions, and the following special conditions: payment of a $2,000.00 fine and costs over a forty-month period; payment of a $300.00 fee to the Indigent Defender Fund; payment of a $100.00 fee to the crime lab; payment of a $100.00 fee to the Judicial Expense Fund; payment of a $50.00 fee to the Drug Eradication Program; payment of a $55.00 monthly supervision fee; submission to random drug screening; and prohibition of presence at the Canterbury apartment complex in Sli-dell, Louisiana. The defendant now appeals, assigning error to the trial court’s denial of his motion to suppress the evidence and motion to quash the bill of information and to the restriction of his right to present a defense. For the following reasons, we affirm the convictions and sentences.

STATEMENT OF FACTS

On September 4, 2010, at approximately 10:00 p.m., Detective Luke Irwin of the Slidell Police Department was working an off-duty security detail for a nighttime loitering problem at the Canterbury apartment complex at 301 Spartan | ..¡Drive in Slidell, Louisiana. As he proceeded to patrol the area, Detective Irwin observed a Hyundai entering the parking lot. After a subsequent drive through the area, Detective Irwin noticed that the Hyundai vehicle was still sitting in the parking lot with the parking lights on and the engine running. Detective Irwin parked his vehicle and approached the Hyundai with a bright light shining on the driver’s side of the vehicle. He knocked on the driver’s window and asked to speak to the driver, identified as the defendant. The defendant partially opened the driver’s door and Detective Irwin requested that the defendant provide identification and step out of the vehicle.

When the defendant complied with Detective Irwin’s request for him to step out of the vehicle, Detective Irwin noticed that the defendant had the smell of burnt marijuana on his person, and his eyes were reddened and slightly dilated. A female occupant was also asked to step out of the vehicle. Suspecting the defendant was impaired, Detective Irwin began to conduct field sobriety testing, including a horizontal and vertical gaze nystagmus test, noting extreme nystagmus and eye jerking. However, the defendant requested to discontinue the testing.

The defendant was allowed to reenter the vehicle to retrieve his identification from a book bag. At that point, Detective Irwin observed a knife in plain view inside the vehicle, along with two pills in the cup holder area of the vehicle. After these items were removed from the vehicle, the defendant gave Detective Irwin permission to further search the vehicle. The detective recovered a partially defaced prescription pill bottle from the defendant’s book bag. The pill bottle contained suspected marijuana residue. After back-up officers arrived on the scene, further searching of the vehicle resulted in the recovery of more pills, the ^defendant’s identification, and a small pocketknife.

ASSIGNMENT OF ERROR NUMBER ONE

In the first assignment of error, the defendant challenges the trial court’s denial of his motion to suppress the evidence. The defendant contends that the evidence was discovered pursuant to a second search of his vehicle, when he was already removed from the vehicle, handcuffed, and under the control of another officer. Citing Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 1723, 173 L.Ed.2d 485 (2009), the defendant concludes that at the time of the search the interior of the automobile was no longer within his immediate control. The defendant argues that the trial court should have suppressed the pills discovered during the second search of the vehicle and the contents of the pill bottle. Finally, the defendant contends that since Detective Irwin was uncertain as to whether the prescription pills were discovered during the first or second search, all of the pills should have been suppressed.

A defendant adversely affected may move to suppress any evidence from use at a trial on the merits on the ground that it was unconstitutionally obtained. La.Code Crim. P. art. 703(A). However, the State bears the burden of proof when a defendant files a motion to suppress evidence obtained without a warrant. La. Code Crim. P. art. 703(D). A trial court’s ruling on a motion to suppress the evidence is entitled to great weight, because the court had the opportunity to observe the witnesses and weigh the credibility of their testimony. State v. Jones, 2001— 0908 (La.App. 1st Cir.11/8/02), 835 So.2d 703, 706, writ denied, 2002-2989 (La.4/21/03), 841 So.2d 791. Reviewing courts should defer to the credibility findings of the trial court unless its findings are not adequately supported by reliable evidence. See State v. Green, 94-0887 (La.5/22/95), 655 So.2d 272, 281. However, a trial court’s legal findings are subject to a de novo standard of review. See State v. Hunt, 2009-1589 (La.12/1/09), 25 So.3d 746, 751.

The Fourth Amendment to the United States Constitution and Article 1, § 5 of the Louisiana Constitution protect people against unreasonable searches and seizures. Measured by this standard, La. Code Crim. P. art. 215.1, as well as federal and state jurisprudence, recognizes the right of a law enforcement officer to temporarily detain and interrogate a person whom he reasonably suspects is committing, has committed, or is about to commit a crime. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Robertson, 97-2960 (La.10/20/98), 721 So.2d 1268, 1269; State v. Belton, 441 So.2d 1195, 1198 (La.1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984). Reasonable suspicion for an investigatory detention is something less than probable cause and must be determined under the specific facts of each case by whether the officer had sufficient knowledge of facts and circumstances to justify an infringement on the individual’s right to be free from governmental interference. Belton, 441 So.2d at 1198. Pursuant to La.Code Crim. P. art. 215.1(C), if the law enforcement officer finds a dangerous weapon, he may take and keep it until the completion of the questioning, at which time he shall either return it, if lawfully possessed, or arrest such person.

An exception to the warrant requirement exists when there is probable cause to search an automobile. The war-rantless search of an automobile is not unreasonable if there is probable cause to justify the search, without proving 1 (¡additional exigency, when the automobile is readily mobile because there is an inherent risk of losing evidence. See Maryland v. Dyson, 527 U.S. 465, 466-67, 119 S.Ct. 2013, 2014, 144 L.Ed.2d 442 (1999) (per curiam). The determination of probable cause for arrest does not rest on the officer’s subjective beliefs or attitudes, but turns on a completely objective evaluation of all the circumstances known to the officer at the time of the challenged action. State v. Landry, 98-0188 (La.1/20/99), 729 So.2d 1019, 1020 (per curiam). In considering those circumstances, a reviewing court should give deference to the inferences and deductions of a trained police officer “that might well elude an untrained person.” State v. Huntley, 97-0965 (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)). If a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment permits the police to search the vehicle without more. Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S.Ct. 2485, 2487, 135 L.Ed.2d 1031 (1996) (per cu-riam).

A search conducted pursuant to consent is a specifically established exception to the requirements of both a warrant and probable cause. State v. Owen, 453 So.2d 1202, 1206 (La.1984). Additionally, under the “plain view” doctrine, police officers may seize evidence without a warrant if they are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if they have a lawful right of access to the object. Horton v. California, 496 U.S. 128, 136-37, 110 S.Ct. 2301, 2307-08, 110 L.Ed.2d 112(1990).

Law enforcement officers enjoy the same liberty possessed by every citizen to address questions to other persons. United States v. Mendenhall, 446 U.S. 544, 553, 100 S.Ct. 1870, 1876, 64 L.Ed.2d 497 (1980). Police officers do not need probable cause or reasonable suspicion each time they attempt to converse |7with a citizen. State v. Neyrey, 383 So.2d 1222, 1224 (La.1979).

At the motion to suppress hearing in the instant case, Detective Irwin testified that he had over six hundred hours of narcotics-related post training that included training in drug identification, and he and his team had made nearly two thousand narcotics arrests throughout his career. On the night in question, Detective Irwin was working a 10:00 p.m. to 2:00 a.m. security detail in an effort to curtail loitering in the area. According to Detective Irwin, there had also been several narcotics-related arrests in the area. Detective Irwin testified that the defendant appeared startled when he approached the vehicle. After the defendant exited his vehicle, Detective Irwin noted the distinct odor of burnt marijuana. As they conversed, he further noted that the defendant’s breathing was quick and shallow and he moved his body, including his hands, in a jerking manner. Detective Irwin considered this a sign of nervousness. Thus, based on the defendant’s eyes, smell, and movements, Detective Irwin concluded that he was probably impaired.

The defendant informed Detective Irwin that his identification was in his book bag, and he requested and received permission to retrieve the bag from the backseat of his vehicle. The defendant entered the vehicle and sat on the seat with one leg inside the vehicle and the other out. The defendant grabbed the bag from the backseat and placed it onto the center console. As the defendant’s left shoulder was turned toward the interior of the vehicle, Detective Irwin continued to observe and he heard jingling noises and saw the defendant’s hands moving around the console and cup holder area. Detective Irwin concluded that the defendant was concealing the bag, as he did not bring it out of the vehicle into the light to look for his identification. Detective Irwin repositioned himself, as his view was partially blocked, and as he walked around the door, he noticed a knife on the floor of the vehicle. As the defendant made a motion toward the cup holder, Detective Irwin ^ordered him to step back outside of the vehicle. The detective conducted a pat-down search of the defendant for more weapons, handcuffed the defendant, and positioned him at the rear of the vehicle. At this point, the female passenger was still standing outside of the vehicle. After Detective Irwin called for back-up assistance, he retrieved the knife and two pills that he saw in the cup holder. The defendant informed the detective that the pills did not belong to him and could possibly belong to his mother.

Detective Irwin asked the defendant if any more weapons were in the vehicle, and the defendant said no and gave the officer permission to check the vehicle. Detective Irwin also again asked for the defendant’s identification and the defendant noted that it was still in the book bag. While looking in the book bag, Detective Irwin discovered a prescription bottle with a partially removed label. He noted that defaced prescription bottle labels were often a sign that the person in possession of the bottle is not the person who was prescribed the contents, or that the quantity or type of drug stored in the bottle is inconsistent with the original label. Detective Irwin noted suspected marijuana residue in the bottle based on the odor and the appearance of the green, leafy vegetable matter. When the detective inquired about the presence of the marijuana residue, the defendant requested an attorney and stated he did not want to answer any more questions and that the detective no longer had permission to search the vehicle. During cross-examination, Detective Irwin admitted that he did not know which pills were recovered before and after the defendant rescinded his consent to search the vehicle. Lieutenant Kevin Dupuy conducted further field sobriety testing on the defendant when he arrived at the scene as Detective Irwin completed the search of the vehicle.

The defendant also testified at the motion to suppress hearing. The defendant testified that when he first entered the apartment complex, he waited for |ghis girlfriend to meet him in the parking lot. When she entered his vehicle, she was upset and he tried to console her. Detective Irwin approached as they were conversing. The defendant stated that the detective asked him if he was “on something” and he responded negatively, informing the detective that he had a disability and an eye problem, specifically a nystagmus that causes his eyes to move. The defendant added that he had Attention Deficit Hyperactivity Disorder (“ADHD”) and was “kind of dyslexic.” The defendant stated that he was having a panic attack at the time of the police encounter, had not slept the whole week, and his girlfriend was pregnant and had low progesterone levels.

The defendant explained that he initially patted his jeans when his identification was requested. The defendant further noted, “I live out of the car, and there is a lot of stuff in there.” According to the defendant, he was having difficulty finding his identification when he was fumbling through the console area of the vehicle. The defendant further stated that his eye condition was aggravated because the flashlight was shining in his eyes during field sobriety testing. Also, his panic attack (which included an increase in heart rate and shaky hands) caused him to have poor balance. The defendant stated that he told Detective Irwin that he did not have permission to search his vehicle. The defendant had difficulty recalling details and the sequence of events, reiterating that it was a traumatic night. According to his testimony, the defendant did not have an opportunity to explain the presence of the pills.

In Arizona v. Gant, the three arrestees, all of whom had been handcuffed and secured in separate patrol cars before the officers searched the defendant’s vehicle, were outnumbered by five officers. Under those circumstances, the defendant clearly was not within reaching distance of his vehicle at the time of the search. Although the United States Supreme Court found that neither the possibility of access nor the likelihood of discovering offense-related evidence | inauthorized the search in that case, the Court specifically noted that circumstances unique to the vehicle context justify a search incident to a lawful arrest when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle. In many cases, as when a recent occupant is arrested for a traffic violation, there will be no reasonable basis to believe the vehicle contains relevant evidence. But in others, the offense of arrest will supply a basis for searching the passenger compartment of an arrestee’s vehicle and any containers therein. Arizona v. Gant, 556 U.S. at 343-44, 129 S.Ct. at 1719.

Clearly, the detective’s approach of the defendant’s vehicle was proper and is not contested in this case. The defendant exhibited nervous behavior at the time of the encounter. The distinct odor of burnt marijuana emanated from the defendant as he exited the vehicle. We note that although the defendant was handcuffed and positioned at the rear of the vehicle, Detective Irwin was outnumbered and a weapon was observed in the vehicle (the seizure of which led to the plain-view observation of two pills). Arguably, the possibility of the defendant accessing the vehicle existed, justifying the search of the vehicle incident to the defendant’s arrest. At any rate, Detective Irwin clearly had probable cause to search the passenger compartment pursuant to the automobile exception to the warrant requirement, with or without the defendant’s consent. See State v. Allen, 2010-1016 (La.5/7/10), 55 So.3d 756 (per curiam); State v. Waters, 2000-0356 (La.3/12/01), 780 So.2d 1053, 1057-58 (per curiam). Accordingly, we conclude that Arizona v. Gant is factually distinguishable from this case. The evidence seized resulted from a lawful search, and we find that the trial court did not err in denying the motion to suppress. Assignment of error number one is without merit.

ASSIGNMENT OF ERROR NUMBER TWO

In the second assignment of error, the defendant contends that the trial court | ^abused its discretion in denying his motion to quash the bill of information as to count two, for possession of amphetamine. The defendant contends that he presented evidence at the motion to quash hearing showing that he had a prescription for dextroamphetamine. He concludes that since the State did not know whether the dextroamphetamine pill found in his vehicle was one of the pills that he validly obtained pursuant to a prescription, it was impossible for the State to refute his claim that he legally possessed the pill.

Pursuant to La. Code Crim. P. arts. 532 and 535(A)(7), as amended by 2009 La. Acts No. 265, § 2, if an individual charged with a violation of the Uniform Controlled Dangerous Substances Law has a valid prescription for that substance, he has grounds to file a motion to quash the related charge. Additionally, La. R.S. 40:991, which was added by 2009 La. Acts No. 265, § 1 and became effective August 15, 2009, provides:

A.An individual who claims possession of a valid prescription for any controlled dangerous substance as a defense to a violation of the provisions of the Uniform Controlled Dangerous Substances Law shall have the obligation to produce sufficient proof of a valid prescription to the appropriate prosecuting office. Production of the original prescription bottle with the defendant’s name, the pharmacist’s name, and prescription number shall be sufficient proof of a valid prescription as provided for in this Section.
B. As used in this Section, “controlled dangerous substance” shall have the same meaning as provided in R.S. 40:961(7) and “prescription” shall have the same meaning as provided in R.S. 40:961(33).
C. Any individual who claims the defense of a valid prescription for any controlled dangerous substance shall raise this defense before commencement of the trial through a motion to quash.

Louisiana Revised Statutes 40:990(A) provides:

It shall not be necessary for the state to negate any exemption or exception set forth in this part in any complaint, information, indictment or other pleading or in any trial, hearing, or other proceeding under this part, and the burden of proof of any such exemption or exception shall be upon the person claiming its benefit.

Thus, the defendant bears the burden of proving that he possessed otherwise illegal | ipdrugs pursuant to a valid prescription. State v. Lewis, 427 So.2d 835, 840 (La.1983) (on rehearing); State v. Ducre, 604 So.2d 702, 708 (La.App. 1st Cir.1992). Louisiana Revised Statutes 40:961(33) provides the definition of a prescription as follows:

“Prescription” means a written request for a drug or therapeutic aid issued by a licensed physician, dentist, veterinarian, osteopath, or podiatrist for a legitimate medical purpose, for the purpose of correcting a physical, mental, or bodily ailment, and acting in good faith in the usual course of his professional practice.

When a trial court denies a motion to quash, factual and credibility determinations should not be reversed in the absence of a clear abuse of the trial court’s discretion. See State v. Odom, 2002-2698 (La.App. 1st Cir.6/27/03), 861 So.2d 187, 191, writ denied, 2003-2142 (La.10/17/03), 855 So.2d 765. However, a trial court’s legal findings are subject to a de novo standard of review. See State v. Smith, 99-0606 (La.7/6/00), 766 So.2d 501, 504.

At the motion to quash hearing, Dr. Clinton Harry Sharp, III, a family medicine physician, testified that he treated the defendant from October 17, 2001, to November 28, 2006. Dr. Sharp diagnosed the defendant with ADHD and anxiety disorder. Dr. Sharp stated that he never observed or treated the defendant for nys-tagmus, but confirmed prescribing dex-troamphetamine for the defendant on his October 17, 2001 visit. The defendant had already been taking that drug as prescribed by other physicians. Dr. Sharp initially prescribed dosages of 5 milligrams, twice a day, and at one point increased the dosages to 7.5 milligrams, still twice a day, and ultimately up to 10-milli-grams, twice a day. At one point the defendant requested a decrease in dosage and later, on the final visit taking place in November of 2006, went back to 10-milli-gram dosages. After that final visit, one more prescription for sixty 10-milligram pills, a thirty-day supply, was given to the defendant on January 4, 2007.

Dr. Sharp testified that the pills were to be taken as scheduled, although lasóme patients would skip certain days and some were even known to have functioned years without taking the medication. However, Dr. Sharp noted that his history with the defendant always included prescriptions on a twiee-a-day basis. When questioned regarding the circumstances of the termination of treatment, Dr. Sharp was uncertain but noted that the defendant had financial difficulties and was “on and off of Medicaid,” and the doctor was not a Medicaid provider.

According to Walgreens’ pharmacy records, the defendant filled the November 28, 2006 prescription on that same date and previous prescriptions also had been filled within one or two days. Based on the evidence introduced, on January 10, 2007, six days after filling the final prescription written by Dr. Sharp on January 4, 2007, the defendant filled a final prescription for the dextroamphetamine at a different Walgreens location. Dr. Sharp acknowledged that patients were allowed to keep medication as long as they wished but added that it should be kept in the prescription bottle and discarded upon expiration.

In denying the motion to quash, the trial court noted the defendant routinely filled prescriptions monthly or within a few days of that time period, consistent with the numbers of days supplied if taken as directed. Thus, the trial court concluded the defendant did not have a valid prescription for the dextroamphetamine seized September 4, 2010, several years after the final January 10, 2007 prescription. We further note that the testimony presented at the motion to suppress hearing indicated the defendant claimed the drugs were not his at the time of the offense. The defendant had the burden of proving that he had a valid prescription for the drugs seized on the date in question. The defendant presented evidence to show he filled a series of valid prescriptions for the same drug charged in count two, dextroamphetamine, in accordance with the number of days supplied during a time period that began in 2001 and ended years before the instant offense. The trial court reasonably found this evidence insufficient to prove that the 114defendant had a valid prescription for the dextroamphetamine seized in this case. Based on our review of the record, we find the trial court did not err or abuse its discretion in denying the motion to quash. The second assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER THREE

In the third assignment of error, the defendant argues that the trial court erred in ruling that he could not present the evidence regarding a prescription for dextroamphetamine. The defendant argues La. R.S. 40:991 does not provide that a denial of the motion to quash prohibits introduction of a defense based upon the basis asserted in the motion to quash. The defendant further argues that if the statute were interpreted to deny a defendant the right to present a defense at trial, the statute would be rendered unconstitutional. The defendant concludes that he was deprived of his right to a fair trial and his right to present a defense.

A criminal defendant’s right to present a defense is guaranteed by the Sixth Amendment of the United States Constitution and Article I, § 16 of the Louisiana Constitution. However, constitutional guarantees do not assure the defendant the right to the admissibility of any type of evidence, only that which is deemed trustworthy and has probative value. State v. Governor, 331 So.2d 443, 449 (La.1976). “Relevant evidence” is evidence that has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. La.Code Evid. art. 401. The trial judge, in deciding the issue of relevancy, must determine whether the evidence bears a “rational” connection to the fact at issue in the case. State v. Williams, 341 So.2d 370, 374 (La.1976). Except as limited by the Code of Evidence and other laws, all relevant evidence is admissible and all irrelevant evidence is inadmissible. See La.Code Evid. art. 402. Although relevant, evidence may nonetheless be excluded, if the probative value is substantially 11Boutweighed by its prejudicial effect. See La.Code Evid. art. 403. Ultimately, questions of relevancy and admissibility are discretionary rulings for the trial court, and its determinations regarding relevancy and admissibility should not be overturned absent a clear abuse of discretion. State v. Duncan, 98-1730 (La.App. 1st Cir.6/25/99), 738 So.2d 706, 713.

In this case, after denying the defendant’s motion to quash the bill of information as to count two, the trial court further ruled that the defendant could not present the evidence during the trial regarding his past prescriptions for dextroamphetamine. Having already found the evidence at issue was insufficient to meet the defendant’s burden of proof as to his possession of a valid prescription for the dextroamphet-mine seized in this case, and thus, did not establish a defense to that charge, we conclude that the trial court properly excluded the evidence and did not thereby curtail the defendant’s right to present a defense or confront his accusers. Not only is the evidence at issue irrelevant, the probative value of the evidence was substantially outweighed by the danger of confusing and misleading the jury. We find no clear abuse of discretion in the trial court’s relevancy and admissibility rulings as to the evidence at issue. The third assignment of error lacks merit.

CONCLUSION

For the outlined reasons, the defendant’s convictions and sentences are affirmed.

CONVICTIONS AND SENTENCES AFFIRMED.

      . According to his testimony, Detective Irwin has certifications in administering field sobriety tests.

      . The pills recovered were described as one blue capsule with "Mylan 4430” imprinted on it (identified as Schedule IV flurazepam), one peach round tablet with "95310 B” imprinted on it (identified as Schedule II dexedrine), two round tablets with "PM” imprints (identified as over-the-counter Excedrin PM), and two blue caplets with an "L43I” imprint (identified as over-the-counter diphenhydra-mine).

      . In Arizona v. Gant, the search of the defendant’s vehicle following his arrest for driving with a suspended license was held unreasonable where the defendant and the two other suspects were handcuffed and secured in separate patrol cars before the officers conducted the search. The United States Supreme Court held that the police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. Arizona v. Gant, 556 U.S. at 349-51, 129 S.Ct. at 1723. (Emphasis added.)


author: HUGHES, J.

text:
    Anita STEWART and Craig Stewart v. CONTINENTAL CASUALTY COMPANY, INC.
    No. 2011 CA 0505.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 9, 2011.
    Dale R. Baringer, Benjamin J.B. Klein, Aaron D. Long, Baton Rouge, LA, for Plaintiffs/Appellants Anita Stewart and Craig Stewart.
    David S. Daly, Elliot M. Lonker, Metair-ie, LA, for Defendant/Appellee Continental Casualty Company.

      Paul H. Spaht, Keith J. Fernandez, Baton Rouge, LA, for Defendant/Appellee Kathy D. Underwood.
    Before GAIDRY, McDONALD, and HUGHES, JJ.
   HUGHES, J.

12This is an appeal from a judgment dismissing the plaintiffs’ legal malpractice suit against the defendant attorney and her insurer on the basis of peremption. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On March 4, 2008 Anita Stewart and Craig Stewart filed the instant suit under Louisiana’s Direct Action Statute, LSA-R.S. 22:1269 (formerly LSA-R.S. 22:655), against Continental Casualty Company (“Continental”), in its capacity as the legal malpractice insurer of Kathy D. Underwood. Ms. Underwood was not made a party defendant to the suit until June 4, 2010.

In 2003 the Stewarts were involved in a personal bankruptcy proceeding in which they were advised by legal counsel to reaffirm a first mortgage, held by Union Planters Bank, N.A. (“Union Planters”), on their Zachary residence, but not to reaffirm a second mortgage, held by Bank One, N.A. (“Bank One”), ostensibly because there was insufficient equity in the home. The Stewarts were advised by counsel that the Bank One mortgage on their home would be discharged. The Stewarts’ bankruptcy proceeding was subsequently concluded.

In 2005 the Stewarts obtained refinancing of the Union Planters indebtedness through mortgage broker Dedicated Lending, Inc., obtaining refinancing with lender LIME Financial Services, Ltd. (“LIME”). Kathy D. Underwood was the closing attorney on the new financing and performed the title examination on the Zachary property to be mortgaged. Ms. IsUnderwood’s title examination revealed that the Bank One mortgage remained on the public records. Nevertheless, Ms. Underwood advised the Stewarts that the Bank One mortgage was discharged in the bankruptcy proceeding and that, by means of a mandamus action, the Bank One mortgage could be cancelled from the public records. On the strength of this legal advice, the LIME loans to the Stewarts were closed on September 16, 2005, with the Stewarts granting two mortgages in LIME’s favor, intended to be first and second mortgages on their Zachary property.

Ms. Underwood agreed to represent the Stewarts in, and to file, a mandamus proceeding to have the Bank One mortgage cancelled from the public records, but apparently neglected to do so. Subsequently, Bank One assigned its mortgage on the Stewart property to S & A Capital Partners (“S & A”).

On March 13, 2007 S & A sent a demand letter seeking payment of the Bank One mortgage. The Stewarts contacted Ms. Underwood, who began negotiations with S & A, which ultimately proved to be unsuccessful. In October 2007 Ms. Underwood advised the Stewarts to obtain other legal counsel with respect to the S & A claim, as well as relative to any claim of legal malpractice against her. The Stew-arts maintain that Ms. Underwood acknowledged her malpractice and advanced funds to them to defray some related expenses.

Meanwhile, S & A instituted a suit for executory process, resulting in seizure of the Stewart’s Zachary home, and when the instant suit was filed |4on March 4, 2008, the home was scheduled to be sold in a sheriffs sale on March 19, 2008.

In this suit, the Stewarts have asserted that Continental, as Ms. Underwood’s insurer, was liable to them for damages they suffered as a result of the legal malpractice she committed. In brief to this court, the Stewarts’ counsel stated that Ms. Underwood was not originally named as a defendant “[o]ut of professional courtesy.” Nevertheless, because of plaintiffs’ failure to include Ms. Underwood as a defendant, Continental urged, on May 5, 2010, exceptions of no right of action and no cause of action, contending Louisiana’s Direct Action Statute did not authorize a direct action against the insurer without also suing the insured, under the facts and circumstances of the case.

On June 4, 2010 the plaintiffs amended their suit to add Ms. Underwood as a defendant. Thereafter, both Ms. Underwood and Continental filed separate exceptions pleading the objection of peremption, contending that the failure to timely include Ms. Underwood as a defendant led to the peremption of the action under LSA-R.S. 9:5605. Following an October 18, 2010 hearing, the trial court sustained the exceptions of both Ms. Underwood and Continental and dismissed the plaintiffs’ suit, with prejudice.

In finding the Stewarts’ claims were perempted, the trial judge reasoned:

IsThe so-called Tort Reform of 1996, Governor Foster changed all of that. It’s now required that the insured be named in the suit. Ms. Underwood was not originally named.
As [Continental’s counsel] argues, legal malpractice, and some of the other professional malpractice statutes are pretty much [sui generis ], that is, a law unto themselves. They have different rules and different applications by the supreme court on a number of issues.
I have run into that many times during my time here on the bench in what seemed to be unusual or perhaps, sometimes even inappropriate decisions, based upon the wording in those statutes. That’s what the decision was and it was allowed to remain.
In this case, the supreme court has, to some extent, addressed this issue in ... [Naghi v. Brener, 2008-2527 (La.6/26/09), 17 So.3d 919,] ..., and that case very explicitly says there can be no interruption, there can be no suspension, there is nothing to relate back to an amended petition filed after the preemptive period attempts to name a new legal malpractice defendant, or — and [Plaintiffs’ counsel] makes a very spirited and very sound argument for various reasons why this should not apply.
But the fact is, I’m faced with a very explicit decision under Louisiana Supreme Court, at this point, I’m bound to follow. So the exception of peremption filed by Ms. Underwood is sustained.
With regard to Continental Casualty, there is no basis for liability where there is no action against the insured — this is a situation where there’s a bankruptcy or something else that somehow suspends the insured’s liability. If a claim is perempted, there is no claim against the insured at all.
So, since there is no claim against the insured, there can be no claim against the insurer, so the exception of peremption filed by Continental is also sustained.

The plaintiffs have appealed the trial court judgment, assigning as error the trial court’s finding of peremption.

LAW AND ANALYSIS

Where, as in this case, the facts are not disputed, the doctrine of manifest error does not apply to an appellate court’s review of a trial court decision. Rather, appellate review of questions of law is simply to determine whether the trial court was legally correct or legally incorrect. See Cangelosi v. Allstate Insurance Company, 96-0159, p. 3 (La.App. 1 Cir. 9/27/96), 680 So.2d 1358, 1360, writ denied, 96-2586 (La.12/13/96), 692 So.2d 375.

On appeal, the plaintiffs contend that their March 4, 2008 petition was timely filed against Continental, following their March 13, 2007 discovery of Ms. Underwood’s September 16, 2005 malpractice. Further, the plaintiffs maintain that the subsequent amendment of their suit on June 4, 2010, to add Ms. Underwood as a defendant, related back to the filing of the original petition, pursuant to LSA-C.C.P. arts. 1151 and 1153.

The applicable period for filing an action based on legal malpractice is governed by LSA-R.S. 9:5605, which provides:

A. No action for damages against any attorney at law duly admitted to practice in this state, any partnership of such attorneys at law, or any professional corporation, company, organization, association, enterprise, or other commercial business or professional combination authorized by the laws of this state to engage in the practice of law, whether based upon tort, or breach of contract, or otherwise, arising out of an engagement to provide legal services shall be brought unless filed in a court of competent jurisdiction and proper venue within one year from the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered; however, even as to actions filed within one year from the date of such discovery, in all events such actions shall be filed at the latest within three years from the date of the alleged act, omission, or neglect.
B. The provisions of this Section are remedial and apply to all causes of action without regard to the date when the alleged act, omission, or neglect occurred. However, with respect to any alleged act, omission, or neglect occurring prior to September 7, 1990, actions must, in all events, be filed in a court of competent jurisdiction and proper venue on or before September 7, 1993, without regard to the date of discovery of the alleged act, omission, or neglect. The one-year and three-year periods of limitation provided in Subsection A of this Section are peremptive periods within the meaning of Civil 17Code Article 3458 and, in accordance with Civil Code Article 3461, may not be renounced, interrupted, or suspended.
C. Notwithstanding any other law to the contrary, in all actions brought in this state against any attorney at law duly admitted to practice in this state, any partnership of such attorneys at law, or any professional law corporation, company, organization, association, enterprise, or other commercial business or professional combination authorized by the laws of this state to engage in the practice of law, the prescriptive and per-emptive period shall be governed exclusively by this Section.
D. The provisions of this Section shall apply to all persons whether or not infirm or under disability of any kind and including minors and interdicts.
E. The peremptive period provided in Subsection A of this Section shall not apply in cases of fraud, as defined in Civil Code Article 1953.

(Emphasis added.)

The legal malpractice statute of limitations is strongly worded, expressly stating that the period is “peremptive” and “in accordance with Civil Code Article 3461, may not be renounced, interrupted, or suspended.” Therefore, there is no doubt that the legislature intended that three years after the “act, omission, or neglect,” the cause of action is extinguished, regardless of when the negligence is discovered and regardless of whether a malpractice action may be brought within that three-year period. The legislature was aware of the pitfalls in this statute but decided, within its prerogative, to put a three-year absolute limit on a person’s right to sue for legal malpractice, just as it would be within its prerogative to not allow legal malpractice actions at all. Thus, while a three-year peremptive period may not be particularly generous, it is not the court’s role to consider the policy or the wisdom of the legislature in adopting a statute. It is our province to determine only the applicability, legality, and constitutionality of the statute. |s5ee Reeder v. North, 97-0239, pp. 9-10 (La.10/21/97), 701 So.2d 1291, 1297.

Peremption differs from prescription in several respects. Although prescription prevents the enforcement of a right by legal action, it does not terminate the natural obligation (see LSA-C.C. art. 1762(1)); peremption, however, extinguishes or destroys the right (see LSA-C.C. art. 3458). Public policy requires that rights to which peremptive periods attach are to be extinguished after passage of a specified period. Accordingly, nothing may interfere with the running of a per-emptive period. It may not be interrupted or suspended, nor is there provision for its renunciation. And exceptions such as contra non valentón are not applicable. As an inchoate right, prescription, on the other hand, may be renounced, interrupted, or suspended, and contra, non valentem applies an exception to the statutory prescription period where in fact and for good cause a plaintiff is unable to exercise his cause of action when it accrues. Reeder v. North, 701 So.2d at 1298.

Because the expiration of the peremp-tive time period destroys the cause of action itself and nothing may interfere with the running of a peremptive time period, the supreme court held in Naghi v. Brener that the [ 9operation of LSA-C.C.P. art. 1153 likewise cannot interfere with the LSA-R.S. 9:5605 peremptive period. The Naghi court explained:

While the relation back of a pleading may not technically interrupt or suspend a prescriptive or peremptive period in the sense contemplated by Civil Code articles 3462-3472, there can be no escaping the fact that relation back interferes with the operation of the prescriptive or peremptive time period. in that it avoids its operation. As one commentator has stated, that is the “primary importance” of [LSA-]C.C.P. art. 1153. Because it is well established that “nothing may interfere with the running of a peremptive period,” ... and avoiding the peremptive period certainly interferes with the running of that period, relation back of an amended or supplemental pleading adding a plaintiff is not allowed to avoid the running of a peremptive period such as that found in La. R.S. 9:5605. Further, the relation back theory assumes that there is a legally viable claim to which the pleading can relate back. Prescription only prevents the enforcement of a right by legal action, it does not terminate the natural obligation. Peremption, however, destroys the cause of action itself. Because the cause of action no longer exists after the termination of the per-emptive period and any right to assert the claim is destroyed, there is nothing to which an amended or supplemental pleading filed after the peremptive period has expired can relate back. Therefore, because the Naghi’s original petition, filed within the peremptive period, was brought by a party with no right of action to sue, the First Supplemental/Amending Petition filed after the peremptive party brought on behalf of the proper party plaintiff cannot relate back to the original timely filed petition.

Naghi v. Brener, 2008-2527 at pp. 10-11, 17 So.3d at 925-26 (citations omitted).

In Naghi v. Brener the plaintiffs who timely filed the legal malpractice action were corporate shareholders, who did not have the right to sue on the claim asserted, and by the time the corporation, who did have |10the right to sue, was substituted, the LSA-R.S. 9:5605 time periods had expired. We recognize the circumstances presented in the instant case differ from those presented in Naghi v. Brener, in that the capacity of the plaintiffs was not at issue here, rather, it was the failure of the Stewarts to join the allegedly negligent attorney as a defendant, along with her insurer, until after the LSA-R.S. 9:5605 time periods ran, that is the issue in this case. Nevertheless, we conclude that the precepts announced in Naghi v. Brener and the earlier jurisprudence should be equally applicable under the facts and circumstances of this case.

Allowing the application of LSA-C.C.P. art 1153 to the instant case would avoid the operation of the peremptive time period by allowing a pleading filed after the expiration of the period to relate back to the filing of an original and timely filed petition. Because the avoidance of the time period interferes with the running of that time period, relation back of a petition adding a new defendant is not permitted where the time period involved is peremp-tive. Further, because the expiration of a peremptive time period destroys the cause of action, there is nothing for an amended or supplemental petition to relate back to under LSA-C.C.P. art. 1153. Because the plaintiffs in this case did not file suit against their former attorney before the peremptive time period of LSA-R.S. 9:5605 expired, the plaintiffs’ ^amending petition attempting to do so cannot relate back to the original petition under LSA-C.C.P. art. 1153. Therefore, Ms. Underwood’s exception of peremption was correctly granted. See Naghi v. Brener, 2008-2527, p. 11 (La.6/26/09), 17 So.3d 919, 926. Thus, we conclude the suit against Ms. Underwood was properly dismissed.

We also affirm the dismissal of Continental, albeit on a different basis, to the extent the trial court concluded the action against Continental had perempted. The plaintiffs’ suit against Continental was filed within the time period allowed by LSA-R.S. 9:5605, as it was filed within one year (on March 4, 2008) of the plaintiffs’ March 13, 2007 discovery of Ms. Underwood’s alleged September 16, 2005 malpractice; therefore, it was not perempted. However, the Direct Action Statute, LSA-R.S. 22:1269, provided no basis for suit against Continental alone. Therefore, the plaintiffs failed to state a cause of action as to Continental, and the plaintiffs’ suit against it was properly dismissed.

| ^CONCLUSION

For the reasons assigned herein, the judgment of the trial court dismissing the suit of Anita Stewart and Craig Stewart, as to Continental Casualty Company and Kathy D. Underwood is affirmed. All costs of this appeal are to be borne by Anita Stewart and Craig Stewart.

AFFIRMED.

      . The facts in this case are not in dispute and are recited herein as set forth in the trial court pleadings.

      . The refinancing package from LIME included a $122,400.00 loan, secured by what the parties believed would be a first mortgage, and a $30,600.90 loan, secured by a “second" mortgage on the home.

      . We note that while prescription is interrupted when one acknowledges the right of the person against whom he had commenced to prescribe, pursuant to LSA-C.C. art. 3464, peremption may not be interrupted, as stated in LSA-C.C. art. 3461.

      . After the March 4, 2008 filing of this suit. Continental sought an extension of time to answer the suit, on March 31, 2008, and was granted an additional fifteen days to file pleadings. The record presented on appeal does not show any pleadings were filed between March 31, 2008 and May 5, 2010.

      .Plaintiffs' counsel’s forbearance in not naming Ms. Underwood as a defendant in the original petition, out of professional courtesy, and the defendants’ subsequent use of the consequences of that choice to obtain the dismissal of the action, illustrates the maxim: "No good deed goes unpunished.” (Attributed by Bartlett's Familiar Quotations (16th ed.1992), variously to banker Andrew W. Mellon, writer Clare Boothe Luce, and/or financier John P. Grier.)

      . Article 1151 provides in pertinent part: "A plaintiff may amend his petition without leave of court at any time before the answer thereto is served.” Article 1153 provides: "When the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back, to the date of filing the original pleading.”

      . Article 1762 provides, in pertinent part: "Examples of circumstances giving rise to a natural obligation are: (1) When a civil obligation has been extinguished by prescription. ...”

      . Article 3458 provides: "Peremption is a period of time fixed by law for the existence of a right. Unless timely exercised, the right is extinguished upon the expiration of the per-emptive period.”

      . The supreme court recited the facts of the Naghi case as follows:
      Plaintiffs, Benny and Ephraim Naghi, were represented by Lisa Brener in connection with a claim for damages which arose on October 26, 2005 when their property was damaged by fire. According to the plaintiffs, Ms. Brener failed to pursue the claim timely, resulting in prescription of their claim on October 26, 2006. On December 7, 2006, the plaintiffs filed the instant legal malpractice suit against Lisa Brener and her professional law corporation. The named plaintiffs were Benny and Ephraim Naghi. In response, Ms. Brener filed a partial exception of no right of action and motion for summary judgment, asserting that the property was actually owned by Mohtaram, Inc., and not by the Naghis personally, and that therefore, the Naghis had no right of action for damage to the property. The Naghis are directors and shareholders of Mohtaram, Inc. The trial court granted the' exception and allowed plaintiffs ten days to amend their petition. On March 12, 2008, plaintiffs filed a "First Supplemental/Amending Petition,” to "add and designate proper party plaintiff, Moh-taram, Inc.” Ms. Brener then filed an "Exception of No Cause of Action, Exception of Prescription, Exception of Peremption, Exception of No Right of Action and Motion for Summary Judgment,” essentially arguing that the claims asserted in the First Supplemental/Amending Petition were per-empted under La. R.S. 9:5605.

        Naghi v. Brener, 2008-2527 at pp. 1-2, 17 So.3d at 920 (footnotes omitted). The trial court in Naghi held that the amended petition adding Mohtaram as a plaintiff related back to the original petition under La. C.C.P. art. 1153. Naghi v. Brener, 2008-2527 at p. 3, 17 So.3d at 921.

      . The supreme court made no distinction between an attempt to have the addition of a plaintiff or a defendant relate back to the original petition under LSA-C.C.P. art. 1153, when it stated:
      Although this article speaks only to the relation back of an “action or defense,” this Court has applied this article to allow the relation back of pleadings adding a defendant, Ray v. Alexandria Mall, Through St. Paul Property & Liability Ins., 434 So.2d 1083 (1983), or adding a plaintiff, Giroir [v. South Louisiana Medical Center, Div. of Hospitals, 475 So.2d 1040 (La.1985)], supra, if certain conditions are satisfied. Plaintiffs assert that the amended petition meets the requirements set forth in Giroir, and that, therefore, it should be allowed to relate back to the original timely filed petition. Plaintiffs argue that relation back under this article does not interrupt or suspend the peremptive time period, it merely applies the date of the original petition to the amended petition. We disagree.

        Naghi v. Brener, 2008-2527 at pp. 7-8, 17 So.3d at 924.

      . We find the plaintiffs’ argument, that Scaglione v. Juneau, 2010-1734 (La.7/27/10), 40 So.3d 127, requires a different result, unpersuasive, as Scaglione dealt with an election case, not a legal malpractice action. Moreover, the governing statute in Scaglione, LSA-R.S. 18:1406, specifically authorized a trial court to "allow the filing of amended pleadings for good cause shown and in the interest of justice.” See LSA-R.S. 18:1406(B).

      . The Direct Action Statute allows an action to be brought against the insurer, alone, only when at least one of the following applies:
      (a) The insured has been adjudged bankrupt by a court of competent jurisdiction or when proceedings to adjudge an insured bankrupt have been commenced before a court of competent jurisdiction.
      (b) The insured is insolvent.
      (c) Service of citation or other process cannot be made on the insured.
      (d) When the cause of action is for damages as a result of an offense or quasi-offense between children and their parents or between married persons.
      (e) When the insurer is an uninsured motorist carrier.
      (f) The insured is deceased.

        See LSA-R.S. 22:1269(B)(1).

      . An appellate court may notice the failure of the petition to disclose a cause of action. LSA-C.C.P. art. 927(B).