author: TERRI F. LOVE, Judge.

text:
    STATE of Louisiana v. Melvin WILLIAMS.
    No. 2011-KA-0946.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 11, 2012.
    Leon A. Cannizzaro, Jr., District Attorney, Matthew Caplan, Assistant District Attorney, New Orleans, LA, for Appellant.
    James Harper, Orleans Public Defenders, New Orleans, LA, for Defendant/Ap-pellee.
    (Court composed of Judge JAMES F. McKAY III, Judge TERRI F. LOVE, Judge MADELEINE M. LANDRIEU).
   TERRI F. LOVE, Judge.

|j>The State charged the defendant with possession of heroin, and the defendant pled not guilty at arraignment. After the seating of the jury, the State sought but was denied a continuance. The State then issued a nolle 'prosequi.

The possession of heroin charge was refiled, and the defendant, again, pled not guilty at arraignment. Defendant filed a motion to quash the bill of information, which was granted by the trial court.

After review of the record in light of the applicable law and arguments, we conclude the defendant failed to make a showing of specific prejudice to his defense which would warrant the granting of the motion to quash. The trial court’s ruling is reversed and remanded for further proceedings.

PROCEDURAL HISTORY

The State charged the defendant, Melvin Williams, (“hereinafter, “Defendant Williams”) with possession of heroin. Defendant Williams pled not guilty at arraignment. Defendant Williams missed the arraignment, and an alias capias was issued for him in the amount of $25,000. The matter was continued without date. An “arrest on capias” notification was issued by the clerk’s office, informing the trial court that Defendant Williams was in custody. Defendant Williams pled not guilty at arraignment and was released on bond. The State filed a notice of intent to enter the criminalist’s report with the clerk’s office and the matter was erroneously set. Defendant Williams subsequently appeared without |acounsel. The matter was set for hearing to determine counsel, and Defendant Williams appeared with counsel. Defendant Williams filed a motion to quash on April 7, 2010, and a defense omnibus bill was submitted on April 8, 2010.

Defendant Williams later appeared, but the State requested a continuance of the motion hearings; they were continued. At a subsequent hearing, Defendant Williams appeared without counsel. Motion hearings were conducted and trial was set. After the jury was seated, the State sought but was denied a request for a continuance. The State then entered a nolle prosequi

The possession of heroin charge was refiled, and Defendant Williams pled not guilty at arraignment. Trial was set and Defendant Williams subsequently filed and was granted a motion to quash the bill of information.

The trial court granted the State’s motion for appeal.

ASSIGNMENT OF ERROR

The State asserts the trial court abused its discretion in granting Defendant Williams’ motion to quash when a defendant neither alleged nor demonstrated a violation of the right to a speedy trial.

LAW AND DISCUSSION

Defendant Williams’ motion to quash was based solely on his contention that the State’s ability to nolle prosequi a case and to reinstitute charges, when its motion to continue is denied, violates his due process rights. The motion did not contain a statutory or constitutional speedy trial claim. The State avers the trial court abused its discretion by granting the motion to quash filed by Defendant Williams, when Defendant Williams neither alleged nor demonstrated a violation of the right to a speedy trial. The State argues that it correctly followed procedure |4on July 7, 2010, by explaining to the trial court on the record the reason that it sought a continuance.

The court record does not contain any reference to such a statement and is silent on the issue. The State argues that a reference to the nature of the continuance appears in Defendant Williams’ initial motion to quash near the bottom of the first page. Defendant Williams avers that by not explaining the reason the continuance was appropriate, as mandated under La. C.Cr.P. Articles 707-15, the State has fallen short of its burden of proof.

The established procedures for obtaining continuances are as follows: La.C.Cr.P. Art. 576 states:

When a criminal prosecution is timely instituted in a court of proper jurisdiction and the prosecution is dismissed by the district attorney with the defendant’s consent, or before the first witness is sworn at the trial on the merits, or the indictment is dismissed by a court for any error, defect, irregularity, or deficiency, a new prosecution for the same offense or for a lesser offense based on the same facts may be instituted within the time established by this Chapter or within six months from the date of dismissal, whichever is longer.
A new prosecution shall not be instituted under this article following a dismissal of the prosecution by the district attorney unless the state shows that the dismissal was not for the purpose of avoiding the time limitation for commencement of trial established by Article 578. (Emphasis ours).

La.C.Cr.P. Art. 707. Motion for continuance; time for filing states:

A motion for a continuance shall be in writing and shall allege specifically the grounds upon which it is based and, when made by a defendant, must be verified by his affidavit or that of his counsel. It shall be filed at least seven days prior to the commencement of trial.
Upon written motion at any time and after contradictory hearing, the court may grant a | ¡^continuance, but only upon a showing that such motion is in the interest of justice.

La.C.Cr.P. Art. 709 Continuance based on absence of a witness should he or she fail to appear. The article states:

A. A motion for a continuance based upon the absence of a witness shall state all of the following:
(1)Facts to which the absent witness is expected to testify, showing the materiality of the testimony and the necessity for the presence of the witness at the trial.
(2) Facts and circumstances showing a probability that the witness will be available at the time to which the trial is deferred.
(3) Facts showing due diligence used in an effort to procure attendance of the witness.
B. In addition to the requirements set forth in Paragraph A of this Article, when the motion for continuance is based upon the absence of a witness who is in the armed forces, the moving party, either the district attorney or the defense counsel, shall attest to facts showing that the absent witness is on active military duty in the United States Armed Forces.

The record is void of a written motion to continue by the State in the court record. The issue is not whether the State properly sought a continuance; instead, the issue is whether the State violated Defendant Williams’ due process rights by entering a nolle prosequi and reinstituting charges when its motion for continuance was denied.

Due Process

Defendant Williams posits that the State has failed to set forth the manner in which the trial court has abused its discretion, and argues that “the due process |6clause requires a defendant to be given reciprocal procedural rights corresponding to those available to the State.” Defendant Williams argues the procedural tools available to the State, such as the ability to nolle prosequi and later reinstitute charges, are not equally available to defendants. Defendant Williams further asserts the State may compel the testimony of witnesses favorable to the State’s case, while neither the defendant, nor the court on his behalf, has any such power. Defendant Williams contends this imbalance of power invariably leads to abuses .by the State.

In State v. Batiste, 2005-1571, pp. 5-6 (La.10/17/06), 939 So.2d 1245, the Supreme Court addressed an argument similar to that of Defendant Williams and found that it had no merit. In Batiste, the state nolle prosequied the charge when its victim did not appear (without having asked for a continuance) and then reinstituted the charge in a new case. The Court stated that a trial court’s resolution of motions to quash, in cases where the district attorney entered a nolle prosequi and later reinsti-tuted charges, should be decided on a case-by-case basis, quoting State v. Love, 2000-3347, p. 14 (La.5/23/03), 847 So.2d 1198, 1209: “In those cases where it is evident that the district attorney is flaunting his authority for reasons that show that he wants to favor the state at the expense of the defendant, such as putting the defendant at risk of losing witnesses, the trial court should grant a motion to quash and an appellate court can appropriately reverse a ruling denying a motion to quash in such a situation.’ Id.” Batiste, p. 5, 939 So.2d at 1249.

The Supreme Court recently reaffirmed this reasoning in State v. King, 2010-2638 (La.5/6/11), 60 So.3d 615. The defendant was charged with issuing worthless checks. The state nolle prosequied the original case when the court refused to grant the state a continuance it requested because it was having trouble |7procuring financial records from a bank. The state reinstitut-ed the charges, and the defendant moved to quash, raising the violation of the separation of powers argument. The trial court granted the motion. The Supreme Court reversed and relied upon its analysis in Batiste, in which the Court overturned the trial court’s grant of a motion to quash because the record gave “no indication that the district attorney was flaunting his authority at the expense of the defendant” and the record indicated a nolle prosequi was entered because the victim was not present for trial and was wavering in her commitment to going forward with the case. See Batiste, 05-1571 at 5-6, 939 So.2d at 1249.

As in King, Defendant Williams’ motion to quash failed to assert violation of his Sixth Amendment speedy trial rights, and he claimed no prejudice to his defense of the case arising out of the delay occasioned by the state’s dismissal and reinstitution of the prosecution to force a continuance of trial.

The King court further noted the “frequent collisions between a trial judge’s authority to conduct proceedings ‘in an orderly and expeditious manner,’ La. C.Cr.P. art. 17, including the authority to adopt rules ‘governing the procedure for setting cases for trial and giving notice thereof,’ La.C.Cr.P. art. 702, and a district attorney’s plenary ‘charge and control’ over every criminal prosecution instituted or pending in his district, including the determination' of ‘whom, when, and how he shall prosecute,’ La.C.Cr.P. art. 61.” State v. King, 2010-2638 at p. 5, 60 So.3d at 618, citing State v. Batiste, State v. Love, as well as two cases from this court, State v. Brown, 2005-1146 (La.App. 4 Cir. 7/26/06), 937 So.2d 419, and State v. Larce, 2001-1992 (La.App. 4 Cir. 1/23/02), 807 So.2d 1080. Quoting from the passage cited above from State v. Love, the King court agreed that when the State dismisses a case in which the trial court has denied its motion for | ^continuance and then reinsti-tutes the charges, the State “can be said to have flaunted’ the state’s unique power and authority that the defense does not also possess.” Id. at p. 6, 60 So.3d at 618. Nonetheless, the Court stated:

However, because of the severe consequences of dismissing a pending prosecution that is neither time-barred as a matter of La.C.Cr.P. art. 578, nor precluded by the Speedy Trial Clause of the Sixth Amendment, we made clear in Love that the state must exercise that authority in such a way that it does not simply disrupt the trial court’s conduct of the proceedings or challenge the court’s authority to manage its docket, but also significantly disadvantages the defense at any forthcoming trial. Thus, in Batiste, we overturned the trial court’s grant of a motion to quash because the record gave “no indication that the district attorney was flaunting his authority at the expense of the defendant. ... the record indicates a nolle prosequi was entered because the victim was not present for trial and was wavering in her commitment to going forward with the case.” Batiste, 05-1571 at 5-6, 939 So.2d at 1249.

Id. at p. 6, 60 So.3d at 619. The Court found that the record did not demonstrate that the State’s failure to obtain the records in time for trial was due to its lack of preparation. The Court further noted:

[T]he record fails to suggest that the state simply sought a tactical advantage over the defense, or that it was whipsawing defense witnesses by forcing them to make repeated but futile trips to the courthouse, see State v. Reaves, 376 So.2d 136, 138 (La.1979), as opposed to struggling to put its case together by identifying and summoning the appropriate witnesses. Nor does the record support an inference that the state delayed matters to wear down the defendant and incline him to reconsider the rejected plea bargain, as the delays in the first year of the proceedings were attributable as much, if not more, to the defense as they were to the state, and, if anything, worked to defendant’s advantage, as the state reduced by over half its initial plea bargain offer of seven years imprisonment at hard labor.

Id. at p. 7, 60 So.3d at 619. The Court then reversed the trial court’s judgment that quashed the charges.

19Likewise, this Court, in State v. Shannon 2009-0305 (La.App. 4 Cir. 9/9/09), 17 So.3d 1061, writ denied, 2009-2369 (La.4/30/10), 34 So.3d 280, found that in cases in which the state dismisses and then reinstitutes charges, when it is evident that the district attorney is flaunting his authority for reasons that show that he wants to favor the state at the expense of the defendant, such as putting the defendant at risk of losing witnesses, the trial court should grant a motion to quash and an appellate court can appropriately reverse a ruling denying a motion to quash in such a situation. However, this Court found that there was no such showing and reinstated these charges. See also State v. Hayes, 2010-1538 (La.App. 4 Cir. 9/1/11), 75 So.3d 8, where this court reversed the trial court’s ruling that quashed the bill of information, finding that the defendant failed to show prejudice from the state’s action.

In the instant case, there is no indication that the district attorney was flaunting his authority at the expense of Defendant Williams. The record is silent regarding the nolle prosequi entered by the State, although Defendant Williams’ motion to quash alleges the State entered the nolle prosequi because the State’s witness was not available at trial.

Citing King, Defendant Williams asserts that as long as the prosecution is within the statutory time limitations for the institution of prosecution, the quashing of an indictment is only proper when the defendant, and the court, finds a violation of the defendant’s constitutional right to a speedy trial. Defendant Williams invoked the concept of reciprocity in connection with the timing of the prosecution of his case. Applying Batiste and King to the case at bar, the State’s nolle prosequi and reinsti-tution of the same charge would have violated Defendant Williams’ due process rights only if the State’s actions deprived him of his right to present a |1ftdefense, such as the loss of witnesses on his behalf. Defendant Williams has made no showing that he has been prejudiced as a result of the State entering a nolle prosequi and reinstituting the charge against him

DECREE

After review of the record in light of the applicable law and arguments, we conclude Defendant Williams failed to make a showing of specific prejudice to his defense which would warrant the granting of the motion to quash. The ruling of the trial court is reverséd and remanded for further proceedings.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS


source: Caselaw Access Project

author: JOY COSSICH LOBRANO, Judge.

license: Public Domain

text:
    Michelle MARSHALL, Individually and on Behalf of her Minor Children, Aaliyah Jamison, Brandi Marshall, and Jeremy Roberts, Dorothy Jones, Jim Adams, and Tina Andrews, Individually and on Behalf of her Minor Children, Jeffrey Darnado, Dante Darnado, et al. v. AIR LIQUIDE-BIG THREE, INC., Air Liquide Corporation, Air Liquide America, L.P., Global Lime Calciner of Louisiana, Inc., Global Lime, LLC, David Bergeron, and E. Roy Baggett.
    No. 2011-CA-1239.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 11, 2012.
    Michael J. Remondet, Jr., Scott F. Higgins, Kelly McCall Brian, Jeansonne & Remondet, Lafayette, LA, for Appellant/Lincoln General Insurance Company.

      Douglas K. Williams, W. Brett Mason, Breazeale Sachse & Wilson, L.L.P., Baton Rouge, LA, for Appellee/Clarendon America Insurance Company.
    (Court composed of Chief Judge CHARLES R. JONES, Judge MAX N. TOBIAS, JR., Judge JOY COSSICH LOBRANO).
   JOY COSSICH LOBRANO, Judge.

| lAppellant, Lincoln General Insurance Company, appeals the trial court judgment denying its motion for leave of court to file a third party demand against Clarendon America Insurance Company.

On June 28, 2005, the underlying class action lawsuit was filed, seeking damages from numerous defendants for personal injuries. The plaintiffs alleged that they suffered injuries as a result of exposure to calcium hydroxide dust from the excavation and transportation of carbide lime from Gentilly Road to Jour dan Road in New Orleans. The following is the relevant procedural history leading up to this appeal:

On October 10, 2006, Three C’s Properties, Inc. was named as a defendant in this lawsuit in the plaintiffs’ first supplemental and amending petition. On November 15, 2007, Three C’s Properties filed a third party demand against Lincoln General and Clarendon America. In its third party demand, Three C’s Properties alleged that Lincoln General and Clarendon America both had insurance ^policies in effect, which insured the liability of Three C’s Properties for the actions and activities that allegedly resulted in damages to the plaintiffs in this lawsuit.

On September 8, 2009, the trial court issued a Case Management Order, stating that all supplemental and amending pleadings had been filed and served, and setting trial for May 17, 2010. On April 28, 2010, the trial court issued a new Scheduling Order, resetting trial of the main demand for August 30, 2010. On May 11, 2010, Lincoln General filed a motion for leave of court to file a third party demand (not the subject of the instant appeal), seeking to add sixteen new third party defendants. On June 30, 2010, the trial court denied this motion as untimely under the Case Management Order issued on September 8, 2009.

On August 30, 2010, prior to the commencement of trial of the main demand, attorneys for the plaintiffs, Three C’s Properties, Lincoln General and Clarendon America announced, in open court, that a settlement had been reached among these parties, but that the settlement agreement had not yet been formally executed. On February 11, 2011, more than five months later, Lincoln General filed a motion for leave of court to file a third party demand against Clarendon America. While Lincoln General’s motion was still pending, the parties to the settlement agreement, including Lincoln General, signed the same in the last week of March, 2011. The signed settlement agreement was filed in the trial court on April 19, 2011.

On May 9, 2011, the trial court rendered judgment denying Lincoln General’s motion for leave of court to file a third party demand against Clarendon America. This appeal followed.

On appeal, Lincoln General argues that the trial court erred in denying its motion for leave to file a third party demand. Alternatively, Lincoln General Largues that the trial court erred in prematurely considering the merits of its third party demand as set forth in the trial court’s written reasons for judgment. We will dispose of this latter argument first by noting that reasons for judgment are not controlling and do not constitute the judgment of the court. Theresa Seafood, Inc. v. Berthelot, 09-0814, p. 7 (La.App. 4 Cir. 3/10/10), 40 So.3d 132, 137, citing Kaufman v. Adrian’s Tree Service, Inc., 00-2381, p. 3 (La.App. 4 Cir. 10/31/01), 800 So.2d 1102, 1104.

As for Lincoln General’s argument that the trial court erred in denying its motion for leave of court to file a third party demand against Clarendon America, we note that La. C.C.P. article 1033 sets forth the delay for filing incidental demands, such as third party demands, as follows:

An incidental demand may be filed without leave of court at any time up to and including the time the answer to the principal demand is filed.
An incidental demand may be filed thereafter, with leave of court, if it will not retard the progress of the principal action, or if permitted by Articles 1066 or 1092.

A trial court has broad discretion in deciding whether or not to allow an incidental demand to be filed after the answer to the principal demand has been filed. Blalock v. Lord, 05-0939 (La.App. 3 Cir. 2/1/06), 927 So.2d 1142.

After reviewing this record, including the relevant procedural history of this case as outlined above, we cannot say that the trial court abused its broad Ldiscretion in denying Lincoln General’s motion. For that reason, we affirm the trial court judgment.

AFFIRMED

      . While ordinarily a denial of a motion for leave to file a third party demand is an interlocutory order reviewable only upon an application for supervisory review, in the case at bar the denial of leave is appealable because, considering the time line when the motion for leave was filed and when it was heard, the rendered judgment ends the case in its entirety and is therefore appealable pursuant to La.Code Civ. Proc. arts. 1911 and 1915.

      . La. C.C.P. Article 1066, relative to filing a reconventional demand in an action that has matured or was acquired by a defendant after answer, also requires permission of the court. La. C.C.P. Article 1092, relative to a third person asserting ownership of, or mortgage or privilege on, seized property, is not applicable in this case.

      . Our decision herein does not address the merits of whether the settlement agreement that was filed into the court record on April 19, 2011, constituted res judicata as to the claims that Lincoln General sought to assert in the third party demand for which leave of court was sought.


author: DANIEL L. DYSART, Judge.

text:
    Debbie, Wife of, and David GORBACH v. TULANE UNIVERSITY MEDICAL CENTER, Tulane University Hospital & Clinic, and Dr. Rodney David.
    No. 2011-CA-1575.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 11, 2012.

      W. Chad Stelly, Blake G. Arata, Jr., C. Perrin Rome, III, Rome Arata Baxley & Stelly, L.L.C., New Orleans, LA, for Plain-tiffiAppellant.
    James P. Waldron, Peter E. Sperling, Frilot L.L.C., New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge DANIEL L. DYSART).
   DANIEL L. DYSART, Judge.

11 Appellants, Debbie and David Gorbach, appeal a summary judgment granted in favor of Tulane University Hospital and Clinic (“Tulane Hospital”). For the reasons that follow, we affirm.

At the outset, we note that 16 pages of appellants’ 24-page brief are devoted to a recitation of alleged facts upon which appellants base their claims of medical malpractice against Tulane Hospital. The record contains no evidence, by way of deposition testimony, affidavits, or otherwise, which support these alleged facts. The issues on appeal, however, do not deal with the historical background of appellant, David Gorbach’s, treatment as a patient of Tulane Hospital and we, therefore, need not address any of those particular facts. For purposes of this appeal, we note the following procedural history which is apparent from the limited record before us.

FACTS AND PROCEDURAL HISTORY

In May and June, 2002, appellant, David Gorbach, was treated at Tulane Hospital for bladder cancer and other medical conditions. On April 2, 2003, Mr. Gorbach filed a Request for Medical Review Panel asserting various medical malpractice claims against Dr. Rodney Davis and Tulane Hospital. Appellants |2then filed a Petition for Damages on March 13, 2007 in the district court on the basis that the medical review panel “may have expired.”

The medical review panel convened on August 6, 2009 and issued its unanimous opinion that neither Tulane Hospital nor Dr. Rodney Davis “failed to comply with the applicable standard of care.” Appellants filed a second Petition for Damages in the district court on October 22, 2009.

On August 13, 2010 (more than eight years after the alleged medical malpractice), Tulane Hospital filed a Motion for Summary Judgment (“Motion”). Among the exhibits attached to the Motion were: the medical review panel’s decision, an affidavit from one of the physicians who served on the panel, Dr. Neil Baum, interrogatories propounded to appellants on December 3, 2009, and appellants’ responses to the interrogatories sent on June 28, 2010. To the interrogatories seeking the identity of experts, including “any expert who will testify that Tulane University Hospital and Clinic breached an applicable standard of care,” appellants responded that they had “not yet determined who will be present as a testifying expert” and that they would amend this response “in the near future to identify same.”

Appellants opposed Tulane Hospital’s Motion by attaching the affidavit of their counsel, indicating that “additional time to produce expert reports and respond to the Motion” was needed and that discovery was incomplete. A hearing on the Motion was held on October 15, 2010. By judgment dated November 2, 2010, the trial court denied the Motion and instructed appellants to retain an expert | ¡¿within 30 days of the hearing date, in default of which, Tulane Hospital could seek a dismissal. Tulane Hospital applied for a supervisory writ with respect to this judgment, which was denied by this Court. Gorbach v. Tulane Hospital and Clinic, 2010-1592 (La.App. 4th Cir.12/15/10), un-pub.

On December 16, 2010, Tulane Hospital filed a Motion to Re-Urge its prior Motion for Summary Judgment, unaware that appellants had retained an expert, Dr. Louis Silverman, on November 15, 2010. Indeed, appellants admit that their first notice to Tulane Hospital of Dr. Silverman’s retention was by letter dated January 13, 2011 (sent almost a month after Tulane filed its Motion to Re-Urge and almost two months after the trial court’s deadline for retaining an expert).

In response to Tulane Hospital’s Motion to Re-Urge, appellants attached another affidavit of their counsel, simply attesting to the fact that they had retained an expert as directed by the trial court and stating that Dr. Silverman had not yet completed his review of the materials or rendered an opinion. Appellants attached no other documentation, affidavits, depositions or other evidence in opposition to Tulane Hospital’s Motion or countering the affidavit of Dr. Baum.

A second hearing on Tulane Hospital’s Motion was held on February 11, 2011 and by judgment dated February 23, 2011, the trial court granted the Motion, dismissing appellants’ claims against Tulane Hospital. Appellants filed a Motion for New Trial which was denied without hearing on March 23, 2011. The trial court, in its Judgment and Reasons for Judgment, found no grounds for a new trial under La. C.C.P. art. 1972.

Appellants timely filed the instant appeal.

^DISCUSSION

In their sole assignment of error, appellants submit that the affidavit of their counsel, “verified that the liability expert had been timely retained.” Appellants argue that this affidavit “presents a genuine issue of material fact,” for which summary judgment was inappropriate. The record does not contain any reasons for judgment issued by the trial court when it granted Tulane Hospital’s Motion; the only written reasons for judgment were those issued with the denial of appellants’ Motion for New Trial.

Appellants suggest that the trial court’s grant of summary judgment was due to their failure to timely retain an expert. We note that appellants complied with the literal directive of the court’s judgment by retaining an expert on November 15, 2010 (the very deadline for same). However, appellants waited almost two months to notify Tulane Hospital that they had retained an expert. While appellants technically met the trial court’s deadline, we find that appellants did not comply with the “spirit” of the court’s judgment.

To the extent that the trial court’s judgment was in some measure based on appellants’ failure to comply with its order that appellants retain an expert no later than November 15, 2010, we are not prepared to disturb the ruling in this appeal. To that end, we recognize the well-settled rule that a trial court is vested with inherent power to maintain control of its docket and in case management. Boykins v. Boykins, 2004-0999, p. 5 (La.App. 4 Cir. 4/24/07), 958 So.2d 70, 74, writ denied, 2007-1302 (La.9/28/07), 964 So.2d 369. We further recognize that a trial court’s decision in such matters is to be set aside by an appellate court only when |r,there has been an abuse of the trial court’s discretion. Beteta v. City of New Orleans, 2006-0972, p. 5 (La.App. 4 Cir. 1/10/07), 950 So.2d 862, 865.

Appellants’ reliance on having timely retained an expert as an issue on appeal is misplaced. While Tulane Hospital’s Motion to Re-Urge was based, in part, on appellants’ failure to timely retain an expert, the trial court’s judgment reflects that Tulane was dismissed on summary judgment; there is no mention of appellants’ retention of an expert, or lack thereof, in the judgment. We review the grant of summary judgment de novo, using the same criteria applied by the trial court to determine if summary judgment is appropriate in this matter. Miller v. Tulane University Hosp., 2009-1740, p. 5 (La.App. 4 Cir. 5/12/10), 38 So.3d 1142, 1145, citing Dean v. State Farm Mut. Auto. Ins. Co., 2007-0645, p. 4 (La.App. 4 Cir. 1/16/08), 975 So.2d 126, 130.

A motion for summary judgment will be granted “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 material fact, and that mover is entitled to judgment as a matter of law.” La.C.C.P. art. 966(B). Article 966 further provides that “the summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action .... The procedure is favored and shall be construed to accomplish these ends.” La. C.C.P. art. 966(A)(2). Under La.C.C.P. art. 966(C)(2), “if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mov-ant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but | (¡rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party 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.”

The Supreme Court reiterated the parties’ respective burdens of proof in Samaha v. Rau, 2007-1726, p. 5 (La.2/26/08), 977 So.2d 880, 883, as follows:

[La.C.C.P.art. 966(C)(2) ] first places the burden of producing evidence at the hearing on the motion for summary judgment on the mover (normally the defendant), who can ordinarily meet that burden by submitting affidavits or by pointing out the lack of factual support for an essential element in the opponent’s case. At that point, the party who bears the burden of persuasion at trial (usually the plaintiff) must come forth with evidence (affidavits or discovery responses) which demonstrates he or she will be able to meet the burden at trial.... Once the motion for summary judgment has been properly supported by the moving party, the failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion.

In the context of a medical malpractice case against a hospital, the plaintiff has the burden of showing that the hospital personnel negligently departed from the recognized standard of care afforded by hospitals in the area for the particular malady involved. Miller, supra, p. 6, 38 So.3d at 1145. Expert testimony is generally required to establish the applicable standard of care and whether or not that standard was breached, except where the negligence is so obvious that a layperson can infer negligence without the guid-anee of expert testimony. Samaha v. Rau, 2007-1726, pp. 5-6 (La.2/26/08), 977 So.2d 880, 884.

This Court has also recognized that the “requirement of producing expert medical testimony is especially apt when the defendants have filed summary | judgment motions and supported such motions with expert opinion evidence that their treatment met the applicable standard of care.” Williams v. Memorial Medical Center, 2003-1806, pp. 16-17 (La.App. 4 Cir. 3/17/04), 870 So.2d 1044, 1054, writ denied, 2004-0963 (La.6/4/04), 876 So.2d 93.

In this matter, Tulane Hospital filed the Motion, and therefore, bore the initial burden of proof. As noted, in supporting its Motion, Tulane Hospital attached the opinion of the medical review panel and the affidavit of Dr. Baum which stated his opinion that “the evidence failed to support the conclusion that the defendant, Tulane University Hospital and Clinic, failed to meet the applicable standard of care as charged in the Complaint.” This Court has held that a medical review panel report, alone, can be sufficient to present a prima facie case that a defendant is not liable. Rowley v. Eye Surgery Center of Louisiana, Inc., 2006-1243, p. 5 (La.App. 4 Cir. 4/4/07), 956 So.2d 680, 683, writ denied, 2007-0965 (La.6/22/07), 959 So.2d 509, citing Blankenship v. Ochsner Clinic Foundation, 2006-0242, p. 4 (La.App. 4 Cir. 8/16/06), 940 So.2d 12, 14. In Samaha, supra, the Supreme Court, without expressly following the Rowley and Blankenship holdings that a medical review panel report can support a prima facie case in favor of a defendant, concluded that “the report of the expert opinion reached by the medical review panel is admissible as evidence in any action ... including] a summary judgment proceeding a medical malpractice lawsuit.” Id., p. 18, 977 So.2d at 891.

Thus, the medical review panel decision, coupled with Dr. Baum’s affidavit in this case, suffices to support Tulane Hospital’s Motion. The burden of proof then shifted to appellants.

Appellants’ opposition failed to attach any countervailing affidavits or other evidence to dispute the facts established by Tulane Hospital’s Motion. Rather, 18appellants simply rely on their having retained an expert as evidence that a genuine issue of material fact exists. Appellants essentially maintain that, because no deadlines had been set for discovery completion or expert disclosures, Tulane Hospital’s motion was premature, particularly in light of their retention of an expert. We are not persuaded by appellants’ position.

The Supreme Court’s decision in MB Industries, LLC v. CNA Ins. Co., 2011-0303, 2011-0304, pp. 15-16 (La.10/25/11), 74 So.3d 1173, 1184, provides guidance on this issue:

There is no requirement for the defendant to wait until all discovery deadlines have passed before filing a motion for summary judgment, and a defendant’s motion for summary judgment “may be made at any time.” La.Code of Civ. Proc. art. 966(A)(1). Once the defendant’s motion is filed, the plaintiff must present sufficient factual support to prove every essential element of his claim. La.Code of Civ. Proc. art. 966(C)(2). He cannot simply tell the court that the evidence will be forthcoming at some unknown later date.

The record, as a whole, does not support appellants’ apparent contention that additional time was needed to complete discovery, to “produce expert reports and respond to the Motion,” as suggested in their opposition. We note that appellants’ claims arose out of alleged malpractice which occurred in 2002. Appellants requested a medical review panel in 2003, filed their initial suit in 2007, and filed a second action in 2009, after the medical review panel convened and rendered its decision. Tulane Hospital’s initial Motion for Summary Judgment was filed in August, 2010 and re-urged in December, 2010, some eight years after the alleged malpractice. Even as late as the February, 2011, hearing date on Tulane Hospital’s Motion, appellants had not submitted an affidavit of their expert, Dr. Silverman, or any other evidence to refute Tulane Hospital’s substantiated motion.

|9We also note that appellants apparently never moved the trial court to continue the hearing on the Motion so as to secure documentation with which to oppose the Motion. The MB Industries, LLC, supra, court recognized that, “[i]f a motion for summary judgment is filed early in the proceedings, before a party has had reasonable time to retain an expert, the trial court may continue the hearing on the motion in order to give the party an adequate opportunity to find an expert and obtain his testimony.” Id., p. 16, 74 So.3d at 1184, fn. 16.

As we found in Williams, supra, appellants were given a fair opportunity to present their claim prior to the trial court’s ruling on Tulane Hospital’s Motion. Having submitted nothing in opposition to the Motion, we find that appellants have failed to produce factual support sufficient to establish that they will be able to satisfy their burden of proof at trial. See: Miller, supra, p. 10, 38 So.3d at 1148. We further find that appellants did not meet their burden of proof under the summary judgment procedure once that shifted to them. Accordingly, based on our de novo review of the record, we find no error in the trial court’s grant of the Motion for Summary Judgment.

AFFIRMED

      . The second Petition for Damages was allotted a new case number and was assigned to a new division of the district court. The record does not reflect what became of the first lawsuit appellants filed.

      . The Motion was brought by Tulane Hospital, alone, and the record does not show that Dr. Rodney Davis joined in the Motion or filed his own Motion for Summary Judgment.

      .Dr. Baum’s affidavit reiterated his expert opinion that the evidence did not support a finding that Tulane Hospital failed to comply with the applicable standard of care.

      . In fact, almost a month elapsed between the time that Tulane Hospital filed its Motion to Re-Urge and appellants’ notification of their retention of an expert.

      . Indeed, at the time that Tulane Hospital filed its Motion to Re-Urge Defendant’s Motion for Summary Judgment, appellants had not sent notice that they had retained an expert.

      . In this regard, we note that appellants’ Opposition to the Motion was filed a mere two days before the hearing (almost 2 months after Tulane Hospital filed its Motion to Re-Urge).


author: ROBERT A. CHAISSON, Judge.

text:
    STATE of Louisiana v. Blake G. ADAMS.
    No. 11-KA-980.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 24, 2012.
    Rehearing Denied June 5, 2012.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne Wallis, Churita Hansel, Lauren Dileo, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appel-lee.
    Holli A. Herrle-Castillo, Attorney at Law, Louisiana Appellate Project, Marre-ro, LA, for Defendant/Appellant.
    Panel composed of Judges CLARENCE E. McMANUS, JUDE G. GRAVOIS, and ROBERT A. CHAISSON.
   ROBERT A. CHAISSON, Judge.

12Pefendant, Blake G. Adams, appeals his convictions for simple criminal damage to property and unauthorized entry of an inhabited dwelling. For the reasons that follow, we affirm his convictions and sentences.

PROCEDURAL HISTORY

On March 26, 2010, the Jefferson Parish District Attorney filed a bill of information charging defendant with simple criminal damage in an amount greater than five hundred dollars, in violation of LSA-R.S. 14:56 (count one), and unauthorized entry of an inhabited dwelling, in violation of LSA-R.S. 14:62.3 (count two). At his arraignment, defendant pled not guilty.

The matter proceeded to trial before a six-person jury on September 14, 2010. After considering the evidence presented, the jury found defendant guilty as charged on both counts. On September 20, 2010, the trial court sentenced defendant, on count one, to two years imprisonment at hard labor and, on count two, to six years imprisonment at hard labor, to run concurrently.

|sOn September 24, 2010, the State filed a bill of information pursuant to the provisions of LSA-R.S. 15:529.1 alleging defendant to be a fourth felony offender. After a hearing on March 1, 2011, the trial court found defendant to be a fourth felony offender, vacated the original sentence on count two, and re-sentenced defendant to thirty years imprisonment at hard labor, without benefit of probation or suspension, to run consecutive to the sentence imposed on count one. Defendant filed a motion to reconsider sentence, which was denied. Defendant now appeals.

FACTS

The victim, Nateryl Butler, and defendant were involved in a romantic relationship. Ms. Butler explained that she and defendant began dating in 2004, and lived together in all of 2005 and half of 2006. As a result of this relationship, they had a son who was born on October 4, 2005. In the beginning, their relationship was good; however, the two began having problems, and in May of 2006, Ms. Butler terminated the relationship and moved out of the apartment they were sharing.

On July 13, 2008, defendant called Ms. Butler and asked permission to visit with their son. Ms. Butler agreed; however, when defendant arrived, he wanted to leave with their child. Ms. Butler would not allow it, and an argument ensued. Ms. Butler then walked outside and was followed by defendant and their son. When defendant was distracted by an incoming call on his cell phone, Ms. Butler returned to her apartment with her son and locked the door. Shortly thereafter, defendant returned to the apartment and knocked on the door. Ms. Butler refused to let him in, and defendant began kicking the door until it breached. Once inside the apartment, defendant punched Ms. Butler in the face and attempted to take his |4son, who refused to leave with him. Ms. Butler dialed 911, but defendant was gone when the police arrived.

Deputy Benjamin Ingles of the Jefferson Parish Sheriffs Office responded to the domestic disturbance call. Upon arrival, Deputy Ingles observed that the door frame to the apartment was “busted” and that there were “splinters of wood all over the floor.” He also observed that Ms. Butler was hysterical, crying, and had slight swelling on the left side of her face.

Another incident occurred on September 24, 2008. On that day, defendant came over to Ms. Butler’s apartment unannounced and vandalized her car when she would not allow him inside of her home. From her kitchen window, Ms. Butler observed defendant break the passenger side mirror and dent the passenger side doors to her vehicle. She immediately dialed 911. Deputy Richard Wilson responded to the scene and took a statement from Ms. Butler, who was “upset and afraid.”

Detective Randall Fernandez of the Jefferson Parish Sheriffs Office conducted a follow-up investigation of these two incidents and defendant’s violation of a protective order issued on behalf of Ms. Butler on October 31, 2009. After completing his investigation, Detective Fernandez obtained an arrest warrant for defendant, who was subsequently arrested and charged with the instant offenses.

At trial, defendant claimed that he was not at Ms. Butler’s apartment on July 13, 2008, or September 24, 2008. He denied kicking her door open or damaging her vehicle.

| SUFFICIENCY OF THE EVIDENCE

On appeal, defendant challenges the sufficiency of the evidence used to convict him of simple criminal damage to property and unauthorized entry of an inhabited dwelling. Defendant argues that there is no proof that he committed either of the crimes and questions Ms. Butler’s credibility as the sole witness. Specifically, he claims that Ms. Butler fabricated these charges to make his life miserable for his failure to either pay child support or give up his parental rights.

The constitutional standard for testing the sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the State proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). Both the direct and circumstantial evidence must be sufficient to support the conclusion that defendant is guilty beyond a reasonable doubt. State v. Patterson, 10-415 (La.App. 5 Cir. 1/11/11), 63 So.3d 140, 147, writ denied, 11-338 (La.6/17/11), 63 So.3d 1037.

In the instant case, the jury found defendant guilty of unauthorized entry of an inhabited dwelling. That offense is defined in LSA-R.S. 14:62.3 as “the intentional entry by a person without authorization into any inhabited dwelling or other structure belonging to another and used in whole or in part as a home or place of abode by a person.” An unauthorized entry is an entry without consent, express or implied. State v. Kirsch, 04-214 (La.App. 5 Cir. 7/27/04), 880 So.2d 890, 894.

In the instant case, we find that the State presented sufficient evidence to support defendant’s conviction for unauthorized entry of an inhabited dwelling. Ms. Butler testified that on July 13, 2008, she allowed defendant to visit their son at her apartment. When she would not allow defendant to leave with their son, an | (¡argument ensued and continued outside of the apartment. When defendant was distracted by an incoming call on his cell phone, Ms. Butler returned to her apartment with her son and locked the door. Shortly thereafter, defendant returned to the apartment and knocked on the door. When Ms. Butler refused to let him in, defendant kicked her door open. He then entered her apartment, punched her, and attempted to leave with their son. Ms. Butler dialed 911. Deputy Ingles arrived at the scene and observed that the door frame to the apartment was “busted” and further observed that Ms. Butler was hysterical and had slight swelling on the left side of her face. At trial, Ms. Butler testified that defendant did not have permission to enter her apartment at the time he kicked the door open. Further, the 911 tape and the photographs of the damage to the door and Ms. Butler’s injuries were introduced at trial.

The jury also found defendant guilty of simple criminal damage to property where the damage amounts to five hundred dollars but less than fifty thousand dollars. LSA-R.S. 14:56 defines that offense, in pertinent part, as “the intentional damaging of any property of another, without the consent of the owner.” The crime of simple criminal damage to property requires only general criminal intent. General criminal intent is present whenever there is specific intent, and also when the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act. LSA-R.S. 14:10(2). An owner’s lack of consent to malicious vandalism of an owner’s property can often be inferred circumstantially from the evidence presented. State v. Taylor, 07-474 (La.App. 5 Cir. 12/27/07), 975 So.2d 10, 14, writ denied, 08-0224 (La.9/19/08), 992 So.2d 949.

17We likewise find that the State presented sufficient evidence to prove defendant intentionally damaged Ms. Butler’s vehicle. At trial, Ms. Butler testified that defendant came to her apartment on September 24, 2008, knocked on her door, and vandalized her vehicle when she refused to let him inside. Through her kitchen window, Ms. Butler observed defendant kick her passenger side mirror off and dent the passenger side doors of her vehicle. At trial, Ms. Butler testified that the cost of repairs for the damage to her vehicle was six hundred twenty-five dollars. She further testified that she did not give defendant permission to kick her vehicle. In addition, the 911 call, the photographs of the damage to her vehicle, and the repair estimate for her car were introduced at trial.

The verdicts in this case hinged on credibility determinations by the jury. In contrast to Ms. Butler’s testimony about the offenses, defendant testified that he was not at Ms. Butler’s apartment and did not damage her vehicle on September 24, 2008. Defendant further denied ever kicking Ms. Butler’s door open and entering her home on July 13, 2008; rather, he testified that he was not at her apartment on either occasion. Defendant suggested that Ms. Butler fabricated these charges to make his life miserable for his failure to either pay child support or give up his parental rights. To support this theory, defense counsel, during Ms. Butler’s testimony, questioned her about an e-mail that she sent to defendant’s sister. The e-mail stated: “I’ve had him on child support for three years, and I never dropped it. I made a deal with him and told him that I would drop the child support if he signed over his rights, since he’s not taking care of Blake, anyway. But he told me no, so I’m going to make his life a living hell until he decides to sign over his rights.”

The jury heard the conflicting testimony presented at trial including defendant’s theory that Ms. Butler made up these charges. In finding defendant Isguilty of unauthorized entry of an inhabited dwelling and simple criminal damage to property, the jury showed it rejected defendant’s testimony and gave credence to the evidence produced by the State. The credibility of the witnesses is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness. State v. Rowan, 97-21 (La.App. 5 Cir. 4/29/97), 694 So.2d 1052, 1056. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Robinson, 02-1869 (La.4/14/04), 874 So.2d 66, 79, cert. denied, 543 U.S. 1023, 125 S.Ct. 658, 160 L.Ed.2d 499 (2004). It is not the function of the appellate court to assess the credibility of witnesses or to re-weigh the evidence. State v. Rivet, 01-353 (La.App. 5 Cir. 9/25/01), 798 So.2d 219, 226.

After viewing the evidence in the light most favorable to the prosecution, we conclude that a rational trier of fact could have found defendant guilty beyond a reasonable doubt of simple criminal damage to property and unauthorized entry of an inhabited dwelling. Accordingly, the arguments raised by defendant in this assigned error are without merit.

ADMISSION OF OTHER CRIMES EVIDENCE

In this assigned error, defendant claims that the trial court improperly allowed the introduction of other crimes evidence at trial. In particular, defendant challenges the admissibility of evidence of three crimes which occurred before the dates of the instant offenses and two crimes which occurred after the instant offenses.

On September 1, 2010, the State filed a notice of intent to use evidence of other crimes. In that notice, the State sought to introduce the following incidents:

1. On February 28, 2005, defendant choked the victim and slapped her;
|¡)2. On June 18, 2005, defendant kicked the victim in her stomach when she was six months pregnant;
3. In May of 2006, defendant scratched the victim’s legs;
4. On October 31, 2009, defendant threatened to kill the victim; and
5. On December 7, 2009, defendant threatened to kill the victim and also violated a protective order to stay away from her.

On September 8, 2010, the trial court conducted a hearing to determine the admissibility of the other crimes evidence. After considering the arguments of counsel, the trial court ruled that all of the incidents were admissible, stating as follows: “... all of the incidents as described in the pleadings and argued today to the Court do fall within the ambit of 404(B). They are competent and admissible issues for the trier of fact to consider in light of the knowledge, intent, system, absence of mistake, et cetera. They are all prior incidents of domestic violence involving this particular victim.”

Pursuant to this ruling, the following other crimes evidence was presented at trial:

February 28, 2005

At trial, Ms. Butler testified that on February 28, 2005, she and defendant had an argument about her car and her cell phone. When she refused to give defendant her car keys and phone, defendant grabbed her, shoved her against a wall, and choked her. Once defendant let her go, Ms. Butler told him to get his things and leave. Defendant then grabbed her by her hair and threw her to the floor. Ms. Butler, who was two months pregnant at the time, got up, grabbed her cell phone, went downstairs, and called 911. When the police arrived, defendant was arrested and subsequently pled guilty to domestic abuse battery. The photographs of the victim’s injuries and the 911 tape were introduced at trial.

|inJune 18, 2005

Ms. Butler testified that in June of 2005, defendant dragged her from her living room down the sidewalk in front of her house. While Ms. Butler was lying on the sidewalk, defendant kicked her in the stomach. Ms. Butler was six and a half months pregnant at the time and went into pre-term labor. As a result of this incident, Ms. Butler was taken to the emergency room, where she received medical treatment to stop her pre-term labor. Ms. Butler reported the incident to the police; however, after a trial, defendant was found not guilty of the charge stemming from this offense.

May of 2006

According to Ms. Butler, in May of 2006, she and defendant had an argument because defendant wanted to use her car, but she needed it to go to work. Defendant entered the living room, where Ms. Butler was sitting with their seven-month-old son, and stuck his nails into her skin and scratched down her leg. Ms. Butler called the police, but was later informed that the paperwork was lost.

A couple of days later, Ms. Butler decided to move out of their apartment. As she was moving her belongings, defendant began throwing her clothes out of the apartment. When she tried to go back into the apartment to get the rest of hér things, defendant shoved her against the door and told her that she could not go inside. Ma-rylon Jones, the victim’s cousin, witnessed this incident and testified at trial that defendant pushed Ms. Butler against the door and would not allow her to enter the apartment to get the rest of her belongings.

I,,October 31, 2009

In late October of 2009, Ms. Butler had allowed defendant to stay at her Metairie apartment for a few days to visit with their son before defendant left for Atlanta. On October 31, Ms. Butler and her son were getting ready to go out of town, so she asked defendant to leave. Defendant refused to leave her apartment and then threatened to shoot and kill Ms. Butler if she left with their son. Ms. Butler left with her son and defendant followed. Ms. Butler then dropped defendant off at a store, and when she refused to wait, defendant told her she could not get back into the house because he had taken her key off of her key ring. Ms. Butler called 911.

Deputy Michael Morrison of the Jefferson Parish Sheriffs Office responded to the call. At trial, Deputy Morrison testified that upon arriving at the scene, he spoke with Ms. Butler, who was sitting inside her vehicle, and defendant, who was inside Ms. Butler’s apartment. Defendant admitted to the officer that he had an argument with Ms. Butler. After Deputy Morrison finished his investigation, defendant was arrested. On the same day, a protective order against defendant was issued.

December 7, 2009

At trial, Ms. Butler testified that on December 7, 2009, defendant called her and asked her to drop the pending child support charges. Ms. Butler refused, and defendant told her that he was going to kill her and take his son back to Atlanta with him. As a result of this threat, Ms. Butler called the police, and Officer Raynard McMiller responded to the call. According to Officer McMiller, he spoke with Ms. Butler who advised him that defendant had violated a protective order by [ ,2phoning her. She also showed the officer a copy of the protective order that was in effect at the time.

Defendant now challenges the admissibility of the other crimes evidence. Defendant argues that three of the five offenses (June 18, 2005, May of 2006, and December 7, 2009) were not supported by sufficient proof, and all of the evidence of other crimes was more prejudicial than probative. He notes that the other crimes alleged were more serious than the charged offenses. Defendant concludes that because the evidence was otherwise insufficient to convict him without the unduly prejudicial allegations of the other crimes, the error in the admission of the evidence was not harmless.

Generally, evidence of other crimes or bad acts committed by a criminal defendant is not admissible at trial. LSA-C.E. art. 404(B)(1); State v. Prieur, 277 So.2d 126, 128 (La.1973). However, when evidence of other crimes tends to prove a material issue and has independent relevance, it may be admitted by certain statutory and jurisprudential exceptions to this rule. State v. Anderson, 09-934 (La.App. 5 Cir. 3/23/10), 38 So.3d 953, 960, writ denied, 10-908 (La.11/12/10), 49 So.3d 887. Evidence of other crimes may be admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding. LSA-C.E. art. 404(B)(1).

In order for other crimes evidence to be admitted under this rule, one of the factors enumerated in the article must be at issue, have some independent relevance, or be an element of the crime charged. State v. Schaller, 08-522 (La.App. 5 Cir. 5/26/09), 15 So.3d 1046, 1060, writ denied, 09-1406 (La.2/26/10), 28 So.3d 268. Further, “[a]l-though relevant, evidence may be excluded if its | ^probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time.” LSA-C.E. art. 403. Absent an abuse of discretion, a trial court’s ruling on the admissibility of evidence pursuant to LSA-C.E. art. 404(B)(1) will not be disturbed. State v. Anderson, 38 So.3d at 960.

Courts have upheld the admissibility of similar other crimes evidence. In State v. Walker, 394 So.2d 1181 (La.1981), the victim saw defendant, her ex-husband, at a lounge while celebrating her recent engagement to another man. A short time later, the victim was awakened by a shotgun blast hitting her wall. At defendant’s trial for aggravated criminal damage to property, the State attempted to elicit testimony from the victim as to defendant’s motive by asking her whether she had any problems with defendant during her marriage and whether he ever lost his temper in her presence. The trial judge allowed this testimony, and the Louisiana Supreme Court agreed with this ruling. On appeal, the court observed, “Clearly, evidence that defendant and his ex-wife, the person to whom defendant’s alleged criminal conduct was directed, had had a poor marital relationship and that defendant had a bad temper was relevant as tending to show the commission of the offense and the intent.” State v. Walker, 394 So.2d at 1184.

In the Walker case, defendant also challenged the trial court’s denial of his motion for mistrial based on the State’s reference to inadmissible other crimes evidence. In particular, the State asked the victim whether defendant beat her during their marriage. The court also found that the evidence of the beatings was admissible, noting that it was “substantially relevant for the purpose of showing defendant’s motive for committing the crime charged, that is, because of the troubled marriage of the parties and its subsequent dissolution, defendant harbored ill will towards Ms. Normand which, upon defendant seeing his ex-wife 114celebrating her engagement to another man, led to his commission of the crime charged.” The court further stated that the evidence tended to prove a material fact at issue, the nature of the prior relationship between the parties in regard to defendant’s motive for committing the crime. State v. Walker, 394 So.2d at 1184-1185.

In State v. Welch, 615 So.2d 300 (La.1993), the victim and others were watching a fireworks display when defendant, the victim’s ex-boyfriend, walked past them. A few minutes later, defendant returned, punched the victim in the face, then pulled out a knife, and cut her on the arm. During defendant’s trial for second degree battery, the trial court allowed the victim to testify regarding previous threats defendant had made to her and her fiancé.

In agreeing with the trial court and finding the prior threats admissible, the Louisiana Supreme Court explained: “... the state could not place the circumstances of the offense in their proper context without reference to the nature of the relationship existing between the victim and the defendant. Without that evidence, which included prior acts of violence or threatened violence by both parties (defendant claimed that the victim had previously attacked him with a knife), the jury would have lacked the context in which to evaluate the victim’s testimony about what otherwise appeared to be a gratuitous attack by the defendant.” State v. Welch, 615 So.2d at 303. The court further found that the threats were a reflection of defendant’s subjective emotional state and could explain his sudden attack on his victim with a knife. It concluded that the primary purpose of the evidence was not to prove defendant’s bad character but to illustrate the volatile nature of his relationship with the victim and his inability to put her behind him.

|1sIn State v. Cotton, 07-782 (La.App. 5 Cir. 2/19/08), 980 So.2d 34, 44, writ denied, 08-0603 (La.10/3/08), 992 So.2d 1010, defendant was convicted of unauthorized entry of an inhabited dwelling, and on appeal, he argued that the trial court erred by admitting evidence of other crimes because that evidence was much more prejudicial than probative. This Court concluded that the trial court did not abuse its discretion in admitting the other crimes evidence, stating as follows:

... We find that evidence of defendant’s hitting the victim while she was driving, following her into the store af-terwards, then damaging her vehicle (October of 2002); going to her place of employment, pointing a gun at her, and telling her he was going to kill her (May 2003); and going to her apartment, then hitting her while she was outside of her apartment because she would not let him go inside (August 2003) was substantially relevant for the purpose of showing his motive for entering the victim’s apartment without her permission in September of 2003. The evidence shows that defendant harbored ill will towards the victim because of their troubled relationship and its subsequent dissolution, which led defendant to pursue the victim and either threaten or physically abuse her.
Additionally, as the Supreme Court found in Welch, the State could not have placed the circumstances of the offense in their proper context without reference to the nature of the relationship existing between the victim and defendant. And without that evidence the jury would have lacked the context in which to evaluate the victim’s testimony about what otherwise would have appeared to be an isolated incident of defendant being in the victim’s apartment. The primary purpose of the evidence was not to prove defendant’s bad character, but to illustrate the volatile nature of his relationship with the victim.

State v. Cotton, 980 So.2d at 44.

Likewise, in the instant case, we find that the trial court did not err in allowing the admission of other crimes evidence pursuant to LSA-C.E. art. 404(B)(1). This other crimes evidence was substantially relevant for showing defendant’s motive for damaging Ms. Butler’s vehicle and for forcefully entering her apartment. Further, the State could not have placed the circumstances of the I,(¡offenses in their proper context without reference to the nature of the relationship existing between Ms. Butler and defendant. Without that evidence the jury would have lacked the context in which to evaluate Ms. Butler’s testimony about what otherwise would have appeared to be isolated incidents. In addition, we find that the primary purpose of the evidence was not to prove defendant’s bad character, but to illustrate the volatile nature of his relationship with Ms. Butler.

Considering that the record demonstrates that the other crimes are highly probative of the volatile relationship between Ms. Butler and defendant, a review of the record supports the conclusion that the probative value of the other crimes evidence outweighed its prejudicial effect. Further, it is noted that the trial judge gave the jury a limiting instruction regarding the other crimes evidence. The jury was instructed as follows:

Evidence that the Defendant was involved in the commission of an offense other than the offense for which he is on trial is to be considered only for a limited purpose. The sole purpose for which such evidence may be considered is whether it tends to show motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident. Remember, the accused is on trial only for the offense charged. You may not find him guilty of this offense merely because he may have committed another offense.

As part of his argument in this assigned error, defendant asserts that the State failed to prove that he committed three of these offenses by a preponderance of the evidence. Defendant specifically points out that he was found not guilty of the June 18, 2005, incident. With regard to the incidents that occurred in May of 2006, and on December 7, 2009, defendant claims that there were no witnesses to these incidents, no medical records showing that Ms. Butler was either hurt or injured, and no proof of harassing phone calls. Defendant further claims that the ^victim's account of these offenses was not believable. We find no merit to these arguments.

The State presented sufficient proof, for purposes of the introduction of other crimes evidence, to prove that defendant committed these other offenses. Specifically, the victim testified as to the circumstances of each offense. In addition, the State presented the testimony of deputies who responded to some of the calls, as well as numerous 911 tapes. With regard to the June 18, 2005, incident, the jury was informed through the testimony that defendant was acquitted of this offense.

Moreover, even if the other crimes evidence was improperly admitted because the State failed to prove defendant committed the offenses, the erroneous admission of other crimes evidence is subject to a harmless error analysis. An error is harmless when the verdict is surely unattributable to the error. State v. Williams, 09-48 (La.App. 5 Cir. 10/27/09), 28 So.3d 357, 365, writ denied, 09-2565 (La.5/7/10), 34 So.3d 860. In this case, the jury’s verdict was surely unattributable to the alleged error. The State, as discussed in the previous assignment, presented sufficient evidence of guilt at trial without consideration of this other crimes evidence.

Based on the foregoing analysis, we find that the trial court did not abuse its discretion in admitting the other crimes evidence. Moreover, even if improperly admitted, the error can be deemed harmless. Accordingly, the arguments raised by defendant in this assigned error are without merit.

ERROR PATENT REVIEW

We have also reviewed the record for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. 18Weiland, 556 So.2d 175 (La.App. 5 Cir. 1990). Our review reveals that the trial court failed to advise defendant of his multiple offender rights.

LSA-R.S. 15:529.1(D)(l)(a) provides that the trial judge shall inform defendant of the allegation contained in the multiple offender bill of information and of his right to be tried as to the truth thereof according to law and shall require the offender to say whether the allegations are true. LSA-R.S. 15:529.1 also implicitly requires that the trial court advise defendant of his right to remain silent. Generally, a trial court’s failure to advise defendant of his right to a hearing and his right to remain silent is considered harmless error, when defendant’s multiple offender status is established by competent evidence offered by the State at a hearing, rather than by admission of the defendant. State v. Bourgeois, 08-211 (La.App. 5 Cir. 10/28/08), 998 So.2d 165, 167.

In the instant case, defendant pled not guilty to the multiple offender bill of information on November 10, 2010. At the multiple offender hearing on March 1, 2011, defense counsel stipulated defendant was the same person referenced in the multiple offender bill of information. The record does not reflect that the trial court advised defendant of his right to a formal hearing, to have the State prove its case under the multiple offender statute, or of his right to remain silent. However, any omission by the district court in advising defendant of his rights can be deemed harmless in light of the documentary proof introduced by the State at the hearing.

In the instant case, the State presented certified copies of defendant’s predicate convictions, which reflect the correct name and date of birth. These records reflect that defendant pled guilty in all three cases after being advised of and waiving his Boykin rights. In addition, defendant admitted to all of the predicate offenses alleged in the multiple offender bill of information at trial, and |19those admissions corresponded with the State’s proof at the multiple offender hearing. The trial court could properly take those admissions into account in finding that the State presented sufficient proof at the multiple offender hearing that defendant was the same person who had pled guilty to the predicate offenses. State v. Brown, 11-1656 (La.2/10/12), 82 So.3d 1232.

In Brown, supra, the Louisiana Supreme Court held that any omission by the district court in advising defendant of his multiple offender rights did not invalidate defendant’s stipulation through counsel as to his prior felony convictions, and did not require reversal of his multiple offender adjudication, in light of documentary proof introduced by the State at the hearing establishing that defendant was the person who pled guilty to the predicate offenses, and in light of defendant’s own admissions in his testimony at trial.

Here, as in Brown, the State presented documentary proof that defendant was the person who pled guilty to the predicate offenses, and defendant admitted to those prior convictions when he testified at trial. Accordingly, any error in the trial court’s failure to advise defendant of his multiple offender rights can be deemed harmless.

For the reasons set forth herein, we affirm defendant’s convictions and sen-fences as well as his multiple offender adjudication and enhanced sentence.

CONVICTIONS AND SENTENCES AFFIRMED

      . Additionally, the trial court issued a permanent Uniform Abuse Prevention Order restraining defendant from any future contact with Nateryl Butler.

      . On cross-examination, Deputy Ingles admitted that his report reflected that the victim had no visible injuries and refused medical attention.

      . It is noted that the State did not include this second May offense within its notice of intent to introduce other crimes evidence. Although testimony regarding this offense was introduced at trial, defendant is not challenging the introduction of this particular offense on appeal.

      . During Ms. Butler’s testimony, she refers to the date of this incident as October 31, 2008; however, it appears that the correct date is October 31, 2009.


text:
    Sonjia JOSEPH, Wife of/and Dale Joseph v. Campanella and Trudy KENT d/b/a C. Kent & Associates.
    No. 2011-CA-1354.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 25, 2012.
    Rehearing Denied May 23, 2012.

      David C. Clement, Lara J. Jensen, Clement Gates & May, New Orleans, LA, for Plaintiff'Appellee.
    Kim M. O’Dowd, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge CHARLES R. JONES, Judge DANIEL L. DYSART, Judge JOY C. LOBRANO).
   DANIEL L. DYSART, Judge.

| jThis appeal concerns an award of damages and attorney’s fees granted to plaintiffs, Sonjia Joseph, wife of and Dale Joseph, under the New Home Warranty Act. For the reasons that follow, we affirm in part, reverse in part and remand.

FACTS AND PROCEDURAL HISTORY

Certain facts in this case are undisputed and the parties entered into a Joint PreTrial Stipulation of those facts. Plaintiffs-appellees, Sonjia and Dale Joseph (hereinafter “the Josephs”), purchased a lot from the defendants-appellants, Campanella and Trudy Kent (hereinafter “the Kents”) and thereafter entered into a contract with the Kents dated January 4, 1999, for the construction of a home. Construction of the home was completed in November, 1999.

By letter dated August 30, 2000, the Josephs informed the Kents of thirteen alleged defects in the home. The identical list of alleged defects was again sent to | ¡¿he Kents on October 3, 2000. Thereafter, on April 3, 2001, then-counsel for the Josephs sent then-counsel for the Kents a list of twelve alleged defects.

On November 6, 2000, the Josephs filed a Petition for Damages, seeking to recover the cost of repair of the alleged defective items in the home. A First Supplemental and Amending Petition was then filed on May 28, 2002, which added two paragraphs: one claiming “additional defects in the home” and a second alleging that plaintiffs are entitled to non-pecuniary damages under La. C.C. art. 1998. The Kents moved to strike these paragraphs and by Consent Judgment dated July 24, 2006,' the Motion to Strike was granted whereby both paragraphs of the Supplemental and Amending Petition were stricken. The record contains no further amending pleadings.

This case proceeded to a trial on the merits on April 20, 2011. By judgment dated May 18, 2011, the trial court awarded the Josephs $35,559.65 in actual damages, non-pecuniary damages in the amount of $10,000 per plaintiff, unspecified attorney’s fees, legal interest and all costs in the proceedings. It is from this judgment that the Kents now appeal.

DISCUSSION

A. Standard of review

In the context of the New Home Warranty Act (hereinafter “NHWA”), our jurisprudence sets forth the following standard of review:

The trial court’s factual findings in cases involving the NHWA are subject to manifest error review. An |aappeIIate court cannot set aside the trial court’s factual findings unless it determines there is no reasonable factual basis for the findings and the findings are clearly wrong. Thus, if the findings are reasonable in light of the record reviewed in its entirety, this court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently, (citations omitted).

Hutcherson v. Harvey Smith Const., Inc., 2008-1046, pp. 3-4 (La.App. 1 Cir. 2/13/09), 7 So.3d 775, 778. Furthermore, when an appellate court reviews a damage award made pursuant to the NHWA, it may not set aside the award made by the trier of fact absent an abuse of discretion. Graf v. Jim Walter Homes, Inc., 97-1143 (La.App. 1 Cir. 5/15/98), 713 So.2d 682, 691.

B. Damages under the NHWA

In their first and second assignments of error, the Kents maintain that (1) the trial court erred in awarding damages for alleged defects in the home, outside of those of which they were notified in August, 2000 (and October, 2000), and that (2) the trial court erred in concluding that the alleged defects were .proven at the trial to be “defective” under the NHWA.

The NHWA was enacted in 1986 for the express purpose of promoting commerce by “providing clear, concise, and mandatory warranties for the purchasers and occupants of new homes in Louisiana ...” La. R.S. 9:3141. As it pertains to this matter, the NHWA provides that “every builder warrants [that] ... one year following the warranty commencement date, the home will be free from any defect due to noncompliance with the building standards or due to other defects in materials or workmanship not regulated by building standards.” La. R.S. 9:3144(A)(1). The NHWA defines the “warranty commencement date” as “the date 14that legal title to a home is conveyed to the initial purchaser or the date that the home is first occupied, whichever occurs first.” La. R.S. 9:3143(7).

Notably, the NHWA excludes from the builder’s warranty “[a]ny defect not reported in writing by registered or certified mail to the builder ... prior to the expiration of the period specified in Subsection A of this Section for such defect plus thirty days.” La. R.S. 9:3144(B)(16).

In this matter, there is no dispute, and the parties in fact stipulated, that construction of the home was completed in November, 1999. The record does not demonstrate when legal title was conveyed to the Josephs or when the home was first occupied. For our purposes, we will consider the “warranty commencement date” to be some time in November, 1999, as that is the time period specified by the Petition for Damages during which “the home was delivered to petitioners.”

An action to enforce any warranty under the NHWA “shall be subject to a preemptive period of thirty days after the expiration of the appropriate time period provided in La.R.S. 9:8144.” La. R.S. 9:3146. At the time this lawsuit was filed, La. R.S. 9:3146 provided a prescriptive, rather than a peremptive, period, stating: “[ajny action to enforce any warranty provided in this Chapter shall prescribe thirty days after the expiration of the appropriate time period provided in R.S. 9:3144.” La. R.S. 9:3146 (West 2000) (emphasis added).

Causes of action accruing before this amendment are subject to the prescriptive period set forth in La. R.S. 9:3144. See, e.g., Paragon Lofts Condominium Owners Ass’n, Inc. v. Paragon Lofts, L.L.C., 52010-0419 (La.App. 4 Cir. 1/14/11), 55 So.3d 970; writ denied, 2011-0314 (La.4/1/11), 60 So.3d 1254; Eiswirth v. Anthony L. Golemi, Contractor, Inc., 03-1065 (La.App. 5 Cir. 12/30/03), 864 So.2d 792. Conversely, causes of action arising after the enactment of this amendment are subject to the preemptive period of La. R.S. 9:3146, as amended in 2001. See: Paragon Lofts, supra.

In Paragon Lofts, a suit for construction defects filed in 2002 under the NHWA, the plaintiffs amended their suit seven years after its commencement to add new claims for defective showers and bathrooms. There, this Court noted:

... the action to enforce the warranty provisions of the NHWA in relation to the bathroom/shower claims did not come into existence until sometime in 2008. By that time the statute had been amended to provide for the peremptive period. Therefore, we find that unlike the Eiswirths, the Condo Association had not accrued a cause of action for the bathroom/shower claims prior to the effective date of the peremption provision. Thus, applying the peremptive period retroactively does not affect a vested right. Furthermore, because peremp-tive periods cannot be suspended or interrupted, the filing of the original suit has no bearing on the newly asserted bathroom/shower claims.

Id., p. 6, 55 So.3d at 974-975 (citation omitted).

In the instant matter, as noted, the warranty commencement date was some time in November, 1999. There is no dispute that the Josephs timely provided written notice of certain alleged defects in the home within the NHWA’s one-year period for defects due to noncompliance with the building standards or defects in materials or workmanship. The parties stipulated that notice of these alleged defects was given in August and again in October, 2000.

| (/Thereafter, by letter dated April 3, 2001 (some 17 months after the warranty commencement date but prior to the May 31, 2001 effective date of the amendment to La. R.S. 9:3146), the Josephs, through their attorney, notified the Kents of additional alleged defects (children’s tub leak and fireplace damper). The Josephs claim that they verbally advised the Kents of further defects; however, the record is silent as to what those alleged defects were or when the Kents were notified of these additional alleged defects. The parties agree, though, that the Josephs provided an estimate of repairs to the Kents at a hearing on May 16, 2003 which covers the remaining alleged defects (itemized as numbers 12-20). The record does not reflect any earlier written notice of the alleged defects, numbered 12-20.

At trial, the only witnesses were the Josephs and Campanella Kent; no expert witnesses were called. The trial court, after hearing the testimony of the parties, agreed with the Josephs as to all of their claimed items of damage, including all damages associated with the alleged defects of which the Kents were notified in writing no earlier than May 16, 2003.

In their appellate brief, the Kents concede that the alleged defects reported in August and October, 2000 are subject to the NHWA. They argue, however, that these times are not “defects” within the meaning of the NHWA, as the trial court found. While we believe that the majority of these alleged “defects” appear to be typical of “punch lists” items commonly used in new construction to identify items that need to be completed or repaired, we are not prepared to conclude that the trial court abused its discretion in awarding damages to the Josephs for these items of repair. The Josephs’ claims for these defects were timely made under the NHWA and we affirm that portion of the trial court’s judgment.

17With respect to those items of which the Kents were notified in writing in May, 2003, based upon the record, we find that the Josephs’ cause of action for those items accrued after the May 31, 2001 amendment to La. R.S. 9:3146. They are, therefore, subject to the NHWA’s three year preemptive period. As we noted in Paragon Lofts, supra, “because peremp-tive periods cannot be suspended or interrupted, the filing of the original suit has no bearing on the newly asserted” claims in this action. Id., p. 6, 55 So.3d at 975. We pretermit a discussion as to whether any of those claims fall within the NHWA or whether the Josephs met their burden of proving that these items are “defects” covered by the NHWA.

We note that all of the checks submitted as evidence of payment for repairs by the Josephs are dated 2004 (with the exception of one dated in 2007). We further note that the proposals for work to be performed by Xquisite, the contractor hired by the Josephs, are dated 2004 (the dates are incomplete). It is unclear from the record what amount the Josephs paid for repair costs attributable to the list of defects provided to the Kents in 2000 and April, 2001. We therefore remand this matter to the trial court to determine the appropriate award of damages.

C. Non-pecuniary damages under the NHWA

In their third assignment of error, the Kents submit that the trial court erred in awarding each plaintiff $10,000 in non-pecuniary damages. We agree.

As the record establishes, the claim for non-pecuniary damages was set forth in the Josephs’ First Supplemental and Amending Petition. That claim was the subject of a Motion to Strike filed by the Kents. By way of a “Consent Judgment on Rule,” signed by the court on July 24, 2006, that claim was stricken from the 18record. The record reflects that no further amending petition was filed and therefore, there is no viable claim for non-pecuniary damages in this lawsuit.

D. Attorney’s fees

The trial court’s judgment awards “attorney’s fees.” Neither party denies that an award of attorney’s fees is permissible under the NHWA. The Kents, however, contend that the trial court erred in failing to conduct a hearing on the reasonableness of an award of attorney’s fees or allowing the admission of the attorney’s fee bill at trial as it had not been submitted to the Kents prior to the trial date.

We note that, while the trial court’s Reasons for Judgment provide a monetary amount in attorney’s fees, the trial court’s judgment is silent as to the fees and merely awards “attorney’s fees.” The Supreme Court recently reiterated the “ ‘well-settled rule that the district court’s oral or written reasons for judgment form no part of the judgment, and that appellate courts review judgments, not reasons for judgment.’ ” Wooley v. Lucksinger, 2009-0571, p. 77 (La.4/1/11), 61 So.3d 507, 572, quoting Bellard v. American Cent. Ins. Co., 2007-1335, p. 25 (La.4/18/08), 980 So.2d 654, 671 and Greater New Orleans Expressway Commission v. Olivier, 2002-2795, p. 3 (La.11/18/03), 860 So.2d 22, 24.

While we agree that the Josephs are entitled to an award for attorney’s fees under the NHWA, no such award was made in the judgment appealed. Accordingly, the issue is not properly before us.

CONCLUSION:

Based upon the foregoing, we affirm the trial court’s finding that the Kents are liable for the repair costs of which they were notified in August and October, 2000, and in April, 2001. We reverse the trial court’s finding that the Kents are | pliable for any other damages. We further reverse the trial court’s award for non-pecuniary damages and remand this matter for further action consistent with this decision.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED

      . The original list contains thirteen alleged defects; however, at trial, the Kents testified that they are claiming only items 1-11 of that list.

      . We note that item 10 on the original list (the "[t]ub surround has been inaccurately installed in the children’s bath”) was amended in the list of alleged defects included in the April 3,2001 letter to read as follows: '‘[t]he tub in the children’s bathroom leaks.” We also note that item 12 in this latter list was changed to add an altogether new item — the ”[d]amper on the Fireplace [which] blew off during a strong wind” and the Kents are claiming this as an additional defect.

      . In their appellate brief, the Kents mistakenly refer to the dates of these notices as “August 30, 1999” and "October 3, 1999.”

      . Under La. R.S. 9:3145, the NHWA requires the owner to give the builder "written notice, by registered or certified mail, within one year after knowledge of the defect, advising him of all defects and giving the builder a reasonable opportunity to comply with the provisions of this Chapter.”

      . The Court remanded the case to determine which warranty period applied to the defective bathroom/shower claims.

      . The specific warranty commencement date is not evident from the record; however, the lack of a specific date is immaterial to the issues in this action.

      . The original Petition for Damages contains no claim for non-pecuniary damages.