text:
    STATE of Louisiana v. Arielle SMITH.
    No. 11-KA-638.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 2012.

      Paul D. Connick, Jr. District Attorney, Terry M. Boudreaux, Anne Wallis, Shannon K. Swain, Amanda Calogero, Assistant District Attorneys, Gretna, LA, for Plain-tiffiAppellee.
    Margaret S. Sollars, Attorney at Law, Louisiana Appellate Project, Thibodaux, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
   MARION F. EDWARDS, Chief Judge.

| jJDefendant/appellant, Arielle Smith (“Smith”), appeals her conviction for second degree murder, a violation of La. R.S. 14:30.1. Following trial and her conviction by a unanimous jury, Smith was sentenced to life in prison at hard labor without benefit of parole, probation, or suspension of sentence. This appeal follows.

Prior to the trial of this matter, the court conducted a competency hearing following which Smith was found competent to stand trial. Later, another hearing was held by a sanity commission to determine Smith’s state of mind at the time of the murder. Dr. Richard Richoux testified that Smith had the capacity to distinguish right from wrong at the time of the offense.

At approximately 10:45 a.m. on September 11, 2008, Brandy Dozier, the mother of the infant victim, dropped off her two sons to Smith’s house in Harvey. Smith would babysit the children while Ms. Dozier went to work for her 11:00 a.m. shift at the Common Grounds coffee shop in Gretna. At the time, Ms. Dozier had known Smith, who was her brother’s girlfriend, for about three years and the two often babysat each other’s children. That day, in addition to watching Ms. Dozier’s two children, Smith was also watching her own son, who was a one year |sold at the time. Soon after arriving at work, at 11:07 a.m., Ms. Dozier received a call from Smith who was crying and saying she did not know what happened. Ms. Dozier told Smith to call the police and rushed back to the house. When she arrived, she observed the victim lying on the floor not breathing. Ms. Dozier grabbed the phone from Smith, who was talking with a 911 operator, and followed the operator’s instructions in an attempt to resuscitate the infant. Moments later, firefighters arrived on the scene and took over the resuscitation efforts, which were subsequently taken over by paramedics.

Ms. Dozier noticed there were marks all over his body that had not been there earlier. However, he was not wet. Smith told her she did not know what happened, and she later told Ms. Dozier that she was sorry. Prior to that date, Ms. Dozier had not seen Smith harm the children nor were there unexplained injuries.

One of the first responders, Deputy Fire Chief Ted Ward, arrived around 11:15 a.m. He saw a small child on the living room floor who appeared to have suffered burns. While Chief Robertson had begun CPR, Chief Ward tried to find out what happened. He saw Smith, who was upset but not hysterical or crying. She told him several times that she did not know what happened to the baby. Chief Ward assessed the kitchen and the area around the stove, which was close to the victim’s head, and did not see anything on the stove or anything that could have fallen off the stove — no pots or water. Testimony from several other witnesses on the scene also established that no pots were on the stove, in the oven, or on the ground; the stove was not hot, and water was not found anywhere throughout the residence. Additionally, the victim’s clothing was dry, and one of the responding paramedics, Randy Williams, testified that the victim’s burns were not consistent with those caused by a spill of boiling water. Williams also observed bruising on the victim.

|4Detective Melvin Francis initially responded to the 911 call and asked Smith what happened, but Smith replied she did not know and never gave any information. Soon after the victim was declared dead, the Homicide Division of the Jefferson Parish Sheriffs Office was dispatched to the scene. Detective Francis stayed after homicide arrived, and he was present when the clothes dryer, along with other possible heat sources, was inspected.

Detective Keith Locascio of homicide investigated the scene, taking photographs and measurements. There was no evidence of anything heating on the stove, and no obvious source of heat that may have caused the injuries. The dryer was measured and examined, revealing a blood product on one of the blades. A white towel in the outside garbage contained blood and skin tissue.

One of the homicide officers, Detective Donald Clogher, arrived on the scene and spoke with Smith to find out what had happened. She was seated in the backseat of a police car, but the victim’s death had not yet been determined to be a homicide, and Smith was not a suspect. At that time, Smith was emotional and crying. Detective Clogher testified that Smith told him that the victim had overturned a pot of boiling water from atop the stove, and, when she discovered the baby, he was in distress. The investigation then turned to validating Smith’s story. Detective Clo-gher found no pots or water on the stove, and there was no indication of heated water elsewhere in the residence.

After it was determined that Smith’s story was inconsistent with the scene, Detective Clogher advised her of her rights, which she indicated she understood by nodding and a verbal affirmation. Smith was then transported to the Detective Bureau to be questioned further regarding the inconsistencies between her story and the scene. Detective Clogher testified that, at the bureau, Smith was not crying, but “was still obviously upset.” Before commencing the interview, the |5detective again informed Smith of her rights, this time with the aid of a Rights of Arrestee form. After being read her rights, at 1:20 p.m., Smith placed her initials next to each individual right and signed the form. She also signed the Waiver of Rights portion of the form. Thereafter, she gave three taped statements.

Smith’s first statement commenced at 1:49 p.m. and concluded at 2:11 p.m. At the beginning of this statement, the detective recapped her execution of the Rights of Arrestee form, read Smith her rights again, and she again agreed to give a statement. In this statement, Smith stated that, after the children were dropped off, she took the baby out of the car seat and sat him next to her on the sofa. After a while, she picked the baby up and was heating water on the stove to make mashed potatoes. While the water was heating up, she let the children play in the kitchen while she sat on the sofa watching television. Smith dozed off and was then awakened by her son crying. She gave him his juice bottle, which calmed him, and then she went back to sleep on the sofa and was awakened again by the victim’s brother screaming. When she went into the kitchen, she found the victim lying on the floor, not breathing with his face blue and the skin on his nose peeling. She stated that she did not know what had happened. She attempted CPR on the victim, called her boyfriend, called the victim’s mother, and then called 911. Smith also stated that she picked up and put away the pot that had fallen to the floor and turned off the stove. She stated that the victim was wet so she used a white towel to wipe him dry, which she then put in the dryer.

Prior to the taking of her second statement, Detective Clogher learned that the dryer was involved in the infant’s death. The second taped statement commenced at 2:34 p.m. and concluded at 2:45 p.m. At the beginning of this statement, she was reminded of her rights, which she indicated she remembered and understood, and she stated she was willing to talk. In this statement, Smith | (¡stated that the victim was in the dryer. She was playing hide and go seek with the children, removed clothes from the dryer, put the victim in there, and went to the living room to pause the television. She looked at the television “for a second” and then paused it. Sometimes the dryer goes on by itself. She was only gone a couple of seconds. When she returned to the dryer, she realized it was on, opened it, and removed the victim. When she noticed that he was not breathing, she attempted CPR, called her boyfriend, called the victim’s mother, and then called 911. While on the phone, she put the clothes back in the dryer along with a white towel she had used to hold the victim.

Smith’s third taped statement commenced at 3:11 p.m. and concluded at 8:17 p.m. At the beginning of this statement, she was again reminded of her rights, which she indicated she understood, and she stated she was still willing to talk. In this statement, she stated that the children were screaming and running around and the victim started crying. She took clothes out of the dryer, placed the victim in the dryer, and turned it on because she thought it would keep him quiet. She returned to watching television for a “minute or so,” heard somebody screaming, paused the television, realized that the screaming was not coming from the two other children, and then went to check on the victim in the dryer. When she went into the room where the dryer was located, the screaming had stopped; she opened the dryer door and discovered that the victim’s skin was peeling. During the statements, Smith became emotional, and sometimes did cry.

Detective Clogher testified that a white towel, with what appeared to be blood and skin, was discovered in the garbage can outside the home.

Detective Donald Meunier participated in taking the statements. There was no force or coercion used when Smith made her statements. During her ] 7statements, she was consistently quite upset, although she did not seem frightened. However, she was given time to compose herself.

Daniella Blandón, formerly a DNA technician, was qualified as an expert in serology. She testified that she tested several pieces of evidence such as swabs from the dryer, fabric, and clothing. She confirmed the presence of human blood on the white towel, a baby shirt, and baby pants obtained from the interior of the dryer.

Adriana Perez testified as an expert DNA analyst for Jefferson Parish. She compared the blood sample from the infant victim to samples forwarded by Blandón. The tissue and blood samples she analyzed were consistent with the reference sample from the victim.

During trial, counsel for Smith requested another competency hearing, which the court deferred. The following day, while Smith was present in court, the court called Cynthia Lachney. Lachney was a nurse who worked at the Jefferson Parish Correctional Facility, and she testified that Smith had been brought into the medical clinic after they received a report that Smith had passed out or swallowed mouthwash. At that time, she was alert but not speaking. Her vital signs were normal. Following this testimony, the court addressed Smith and warned her that her disruptive behavior would not be tolerated and that it was his observation that she was attempting to delay the trial.

Jeremy Hoffpauir, a forensic engineer, testified as an expert in mechanical engineering. He tested Smith’s dryer, which was on the automatic regular setting when first found. He was asked to determine the temperature of the drum, of the air, and body temperature the infant would have reached. To attempt to replicate the facts, it was decided that a turkey was a reasonable representation of the skin, tissue, and bone involved. It was determined that the force of gravity exerted on |8the turkey would have been about 50 pounds. The resulting report concluded that the air temperature on the inside of the dryer was 164.5 degrees Fahrenheit after one minute and 192.4 degrees after three and one-half minutes. A video of the test was introduced into evidence.

Dr. Karen Ross, assistant coroner and forensic pathologist, examined the body of the victim and prepared an autopsy report, She discussed the details of the injuries found and concluded the cause of death was multiple blunt force injuries with cranium cerebral trauma associated with thermal injuries.

The defense presented no witnesses.

In her first assignment of error, Smith contends that her statements were not free and voluntary because of her emotional state and the use of improper questioning techniques [sic] by the police. She urges, therefore, that the trial court erred in denying the motion to suppress her statements.

With regard to her emotional state, Smith refers to the shock and distress she was experiencing in the immediate aftermath of the victim’s death. She states that she was placed in a police car within a few minutes of the arrival of police, and she was not allowed to speak to anyone before she was taken in for questioning. She further urges that all officers agreed she was very upset and sometimes non-responsive, and nothing was done to ascertain her mental condition or to insure that she understood her rights. She claims that the questions during the interview were leading, some were repeated, and some went unanswered. As to her mental condition, she refers to the examining doctors’ observation during her competency hearing that she showed signs of detachment from reality when she thought she would be released from jail. She also points to her abnormal behavior in the courtroom and her apparent suicide attempt while in custody. During the direct | examination of Joseph Maher, her boyfriend, Smith prostrated herself on the courtroom floor.

Trial courts are vested with great discretion when ruling on a motion to suppress. Thus, the ruling of a trial judge on a motion to suppress will not be disturbed absent an abuse of that discretion. Also, a trial court’s conclusions on the credibility and weight of the testimony relating to the voluntary nature of the defendant’s confession are accorded great weight and will not be disturbed unless they are not supported by the evidence. In reviewing a trial court’s ruling on a pretrial motion to suppress, an appellate court may review the testimony adduced at trial, in addition to the testimony adduced at the suppression hearing.

Before an inculpatory statement made during a custodial interrogation may be introduced into evidence, the State must prove beyond a reasonable doubt that the defendant was first advised of his Miranda rights, that he voluntarily and intelligently waived his Miranda rights, and that the statement was made freely and voluntarily and not under the influence of fear, intimidation, menaces, threats, inducement, or promises. A determination as to voluntariness of a statement is made on a case-by-ease basis and is based upon a “totality of the circumstances.”

In the instant case, because Smith’s statements were offered while she was in custody, the first issue to be addressed is whether she was adequately advised of her constitutional rights.

The record shows that Smith was advised of her rights at the scene and multiple times at the detective bureau. At the bureau, she was advised of her |inrights, along with the Rights of Arrestee form, which she initialed and signed. She also signed the waiver of rights portion of the form, indicating her waiver of rights. Furthermore, this form, her understanding of her rights, and her willingness to give a statement were all referenced and reconfirmed at the beginning of each of her three taped statements. Under these circumstances, Smith was properly advised of her constitutional rights.

Next, we consider whether Smith’s waiver of those rights was intelligent and voluntary. The critical factor in a knowing and intelligent waiver is whether the defendant was able to understand the rights explained to him and voluntarily gave the statement. Here, Smith signed the waiver of rights form prior to giving her recorded statements. On the form, as well as verbally, she indicated that she understood her rights, that she was willing to answer questions without a lawyer, and that she had not been threatened or induced to waive her rights. At the beginning of her first statement, the detective reiterated the waiver of rights portion of the form, stating:

And then there is the Waiver of Rights. It says I understand what my rights are. I’m willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I am doing. No promises or threats have been made to me and no pressure or coercion of any kind has been used against me. Is that your signature below that?

Smith replied, “Yes.” Detective: “And are you in fact willing to give us a statement right now?” Smith: ‘Tes.” Detective: ‘Tou’re ready to talk about it again?” Smith: ‘Tes.” Furthermore, at the hearing on the motion to suppress, the detective was asked on cross-examination, “So, how can you convince this Court that Ms. Smith actually understood her rights and actively waived those rights?” The detective replied, “Well, just by being emotional she was very clear of mind. I lnmean, she did understand what was transpiring. She did understand what was being read to her and she acknowledged that accordingly on several occasions.”

Lastly, it is worth noting that, prior to Smith’s second and third statements, she was not read her rights again, although she was reminded of them and indicated she understood them and was still willing to talk. The failure to ve-Mirandize Smith prior to her second and third statements is of no consequence since this Court has recognized that Miranda warnings are not required before each and every statement. In light of the foregoing, we find that Smith’s waiver of her rights was intelligent and voluntary.

Next, we address whether Smith’s statements were made freely and voluntarily and not under the influence of fear, intimidation, menaces, threats, inducement, or promises. Smith contends that her distressed emotional state during the statements, her limited mental state evidenced by her bizarre behavior throughout trial, and the manner in which her statements were obtained rendered her statements involuntary.

In regard to her distressed emotional state, this Court addressed a similar scenario in State v. Terrick. There, a sixteen-year-old boy was convicted of second degree murder and argued on appeal that his statement to police was not given knowingly and voluntarily. The detective testified that the defendant appeared upset during the statement and that he cried following the statement. Although this Court’s focus was on the effect of the defendant’s age on the voluntariness of his statement, this Court still took note of his distress, stating: “Defendant, who was apparently upset by the circumstances in which he found | ^himself, at no time sought to discontinue the statement.” We concluded that his statement was freely and voluntarily given.

In the instant case, although Smith was upset and cried intermittently throughout her statements, a review of the transcript reveals no indication that she wished to stop talking. In addition, the interviewing detective in the present ease testified that Smith was of clear mind and that she understood what was transpiring. This is further corroborated by a review of the cassette tapes, in which Smith’s statements appear voluntary and devoid of any invocation of her rights. Consequently, we find that Smith’s distressed, emotional state did not render her statements involuntary.

Next, in regard to Smith’s alleged limited mental state, this Court has recognized that a diminished intellectual capacity does not, alone, vitiate the ability to knowingly and intelligently waive constitutional rights and make a free and voluntary confession. The critical factor is whether the defendant was able to understand the rights explained to him and voluntarily gave the statement. We have found hereinabove that Smith was able to understand her rights and voluntarily gave the statements. Importantly, we note that a competency hearing was conducted in which the trial court found Smith competent to stand trial. In the medical report upon which the trial court’s finding was based, the doctors concluded that Smith did not suffer from a psychiatric disorder. Smith’s alleged limited mental capacity did not render her statements involuntary.

Turning now to the claim that her statements were rendered involuntary by the manner in which her statements were obtained, it is well established that the determination as to voluntariness of a statement is based upon a “totality of the | ^circumstances.” The totality of the circumstances in the instant case indicates that Smith’s statements were voluntary. She was advised of her rights multiple times and was reminded of her rights prior to each statement. She indicated she understood and wished to waive her rights by initialing and signing the rights of arrestee form as well as by verbal affirmations. The manner in which the interrogation was conducted did not include any coercive tactics. The duration of the interrogation was not long. From the time she was initially read her rights until her third statement was concluded, a total time of 1 hour and 57 minutes elapsed. She was not deprived of or denied anything. Detective Clogher testified that he asked Smith throughout the questioning “if there was anything that she needed” and, at the conclusion of her third statement, she requested a meal from McDonald’s, with which she was provided and which she ate. We do not find that the detectives pressured Smith into answering questions. A review of the cassette reveals that the detectives repeatedly acknowledged that Smith was upset and paused for her to regain her composure. They spoke to her in a calm, conversational tone and never raised their voices. Overall, she was treated courteously and the atmosphere was not coercive. Thus, in view of the fact that a trial court’s conclusions on the credibility and weight of the testimony relating to the voluntary nature of a defendant’s confession are accorded great weight and will not be disturbed unless unsupported by the evidence, we find that the totality of the circumstances indicates that the evidence supported the trial court’s finding that Smith’s statements were given freely and voluntarily. This assignment of error is without merit.

114Smith also urges that the trial court erred by not granting a mistrial when other crimes evidence was wrongfully introduced. Specifically, Smith contends that the testimony indicating that she had placed the victim in the dryer on prior occasions without turning it on constituted inadmissible other crimes evidence.

In the instant case, the fact that Smith had placed the victim in the dryer on previous occasions was first referenced during the direct examination of Detective Keith Locascio without any objection from the defense. At that time, the detective testified that Smith admitted she had done so as “a time-out.” The incident or incidents were then referenced again during the direct examination of Detective Donald Clogher. However, it was not until after the prosecutor asked ten additional questions regarding Smith’s third statement, and after that statement was played to the jury, that defense counsel lodged an objection and moved for a mistrial.

La.C.Cr.P. art. 841(A) provides: “An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence.” This Court has held that to preserve the right to seek appellate review of an alleged trial court error, a party must state an objection contemporaneously with the occurrence of the alleged error, as well as the grounds for that objection. An objection made after the evidence is before the jury is too late.

In the present case, the defense’s objection to the evidence came too late. There was never an objection to Detective Locas-cio’s reference, and the objection to Detective Clogher’s testimony was not contemporaneous as it came after the prosecutor had asked ten more questions and Smith’s third statement had been played to the jury. Certainly, the objection was made after the evidence was before l1sthe jury. Pursuant to La.C.Cr.P. art. 841(A), Smith is precluded from raising this issue on appeal.

In her third assignment of error, Smith argues that the videotape of an experiment using a turkey in the same dryer in which the victim was killed was prejudicial and irrelevant because the experiment did not accurately represent the conditions that existed during the victim’s death. The State argues that the experiment was relevant because the turkey was depictive of the victim’s body and, as such, facilitated the illustration of the victim’s death. The State contends that the experiment was an effective and probative way to illustrate to the jury how the injuries were inflicted on the victim because it bore a rational connection to the facts the State had to prove, namely, Smith’s actions that comprised the elements of the offense.

In considering whether demonstrative evidence is admissible over an objection that it is unduly inflammatory, the test to be applied is whether the proffered evidence is relevant to any material issue in dispute, and if so, whether its probative value exceeds its probable prejudicial effect. With some exceptions, all relevant evidence is admissible at trial. La. C.E. art. 402. “Relevant evidence” is that which tends “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. C.E. art. 401.

The Louisiana Supreme Court has considered the relevance and admissibility of demonstrative evidence in several cases. In State v. Brumfield, the State’s theory of the case was that a mail slot was used by the defendant and his partners to sight the victim as he came to the front door and permit them to |indischarge their gun into the door so that the shot would strike the victim. The mailbox had been removed, but the expert photographer reconstructed the scene as it existed on the night of the slaying by reinserting the mailbox and taking pictures through it. Although the photos were ruled inadmissible, the expert was questioned whether he had an opportunity to look through the mail slot after it was replaced. In finding no grounds for a mistrial after his testimony, the court determined the photographs were, relevant, stating:

Moreover, the State’s attempt to reconstruct the scene of the crime and establish that fact, by Bombet’s testimony and the photographs, would ordinarily be permissible. The probative value of such an experiment or reconstructed evidence depends in large meassure[sic] upon the extent to which the reconstructed scene was identical with or similar to that which existed at the time of the happening. McCormick, Evidence, 485 (Cleary ed.1972). Thus, such evidence is not invariably inadmissible. Its admissibility should depend upon the accuracy of the reconstruction established as a predicate.

The Louisiana Supreme Court has also considered the admissibility of demonstrative videotape evidence that attempts to re-create a crime. In finding one such video inadmissible, the court noted that it had no probative value since it did not depict the parties in an identical or similar manner to the incident. The court noted the defense’s argument that the State could have pointed out the inaccuracy during cross-examination. In disagreeing with this position, the court stated:

The often quoted maxim “a picture is worth a thousand words” applies to the present case. The strong impact of seeing an inaccurate reenactment creates such a substantial possibility of prejudice that it is unlikely cross-examination could effectively point out the discrepancies. As noted in McCormick on Evidence, § 214 (2d ed.1972):
The extreme vividness and persuasiveness of motion pictures, however, is a two-edged sword. If the film does not portray original facts in controversy, but rather represents a staged reproduction of one party’s version of |17those facts, the danger that the jury may confuse art with reality is particularly great. Further, the vivid impressions on the trier of fact created by the viewing of the motion pictures will be particularly difficult to limit or, if the film is subsequently deemed to be inadmissible, to expunge by judicial instruction.

It need not be pointed out that the conditions of the present case could not be identical, or, in our opinion, especially similar. In some circumstances such as this, a video re-creation cannot be particularly accurate, and, thus, although relevant, was unduly prejudicial. It was, therefore, error to admit the video into evidence.

However, the introduction of demonstrative evidence is subject to a harmless error analysis. The test for determining harmless error is whether the verdict actually rendered in the case was surely unattributable to the error. Here, the State presented overwhelming evidence of Smith’s guilt, the most significant being her confession to placing the victim in the dryer and turning it on. Therefore, the guilty verdict was surely unattributable to the video. This assignment of error is without merit.

On our error patent review, we note the trial court failed to inform Smith of the prescriptive period within which she must apply for post-conviction relief, as required by La.C.Cr.P. art. 930.8. Although the commitment indicates that Smith was informed that she has two years from the date her judgment of conviction and sentence becomes final to seek post-conviction relief, the transcript does not. The transcript prevails. By way of this opinion, we hereby advise Smith that, pursuant to La. C.Cr.P. art. 930.8, no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed 11smore than two years after the judgment of conviction and sentence has become final under the provisions of La.C.Cr.P. arts. 914 or 922.

In addition, the commitment is not consistent with the transcript in that it states that Smith was given credit for time served while the transcript does not. To insure an accurate record, we remand the matter for correction of the commitment to bring it into conformity with the sentencing transcript. The district court is directed to make the entries in the commitment reflecting this change and direct the clerk of court to transmit the original of the minute entry to the officer in charge of the institution to which Smith has been sentenced, as well as to the Department of Corrections’ Legal Department.

For the foregoing reasons, the conviction and sentence are affirmed.

AFFIRMED

      . State v. Leger, 05-0011, p. 10 (La.7/10/06), 936 So.2d 108, 122, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007).

      . State v. Hunt, 09-1589 (La. 12/1/09), 25 So.3d 746, 754 (citing State v. Benoit, 440 So.2d 129, 131 (La. 1983)).

      . Leger, supra (citing State v. Sherman, 04-1019 (La. 10/29/04), 886 So.2d 1116; State v. Green, 94-0887, p. 11 (La.5/22/95), 655 So.2d 272, 280).

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . State v. Cambrice, 10-26, p. 19 (La.App. 5 Cir. 4/26/11), 64 So.3d 363, 375 (citations omitted).

      . State v. Reed, 05-801, p. 4 (La.App. 5 Cir. 2/27/06), 924 So.2d 1064, 1066.

      . See, State v. Allen, 06-778, p. 12-13 (La. App. 5 Cir. 4/24/07), 955 So.2d 742, 752, writ denied sub nom. State ex rel. Allen v. State, 08-2432 (La. 1/30/09), 999 So.2d 754.

      . Cambrice, supra.

        . State v. Bradley, 03-384, pp. 11-12 (La.App. 5 Cir. 9/16/03), 858 So.2d 80, 88, writ denied, 03-2745 (La.2/13/04), 867 So.2d 688 and writ denied sub nom. State ex rel. Bradley v. State, 08-1951 (La. 1/30/09), 999 So.2d 750 (citing State v. Brown, 445 So.2d 456, 462 (La.App. 5 Cir. 1984)).

      . 03-515 (La.App. 5 Cir. 9/30/03), 857 So.2d 1153, writ denied, 03-3272 (La.3/26/04), 871 So.2d 346.

      . See also, State v. Salatich, 548 So.2d 17, 19 (La.App. 5 Cir. 1989).

      . State v. Pugh, 02-171 (La.App. 5 Cir. 10/16/02), 831 So.2d 341, 352-53 (citations omitted).

      . Id.

      . State v. Reed, supra.

      . State v. Hunt, 09-1589 (La.12/1/09), 25 So.3d 746, 754.

      . State v. Gaal, 01-376, p. 17 (La.App. 5 Cir. 10/17/01), 800 So.2d 938, 949, writ denied sub nom. State ex rel. Gaal v. State, 02-2335 (La. 10/3/03), 855 So.2d 294.

        . State v. Rivet, 01-353, p. 11 (La.App. 5 Cir. 9/25/01), 798 So.2d 219, 227 (citing State v. Bretz, 394 So.2d 245, 251 (La.1981); State v. Jones, 99-1185, p. 20 (La.App. 5 Cir. 9/22/00), 769 So.2d 708, 719).

      . See, Rivet, supra; Jones, supra.

      . State v. Manieri, 378 So.2d 931, 932 (La. 1979).

      . 329 So.2d 181, 187 (La. 1976).

      . Id.., See also, State v. Boyer, 406 So.2d 143 (La. 1981).

      . State v. Trahan, 576 So.2d 1, 8 (La. 1990).

      . Id.

      . State v. Ard, 08-1440, p. 8 (La.App. 4 Cir. 6/17/09), 15 So.3d 1166, 1170 (citing State v. Brown, 00-1951, p. 9 (La.App. 1 Cir. 5/11/01), 808 So.2d 622, 627).

        .State v. Marsalis, 04-827, p. 8 (La.App. 5 Cir. 4/26/05), 902 So.2d 1081, 1087.

      . See, La.C.Cr.P. art. 892(B)(2); State ex rel. Roland v. State, 06-0244 (La.9/15/06), 937 So.2d 846 (per curiam).


source: Caselaw Access Project

author: MARION F. EDWARDS, Chief Judge.

license: Public Domain

text:
    STATE of Louisiana v. James D. DURHAM. State of Louisiana v. Donald H. Durham.
    Nos. 11-KA-652, 11-KA-653.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 2012.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Gail D. Schlosser, Jennifer Z. Rosenbach, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellant.
    Arthur A. Lemann, III, Arthur A. Lem-ann III & Assoc., Inc., New Orleans, LA, for Defendants/Appellees.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and ROBERT A. CHAISSON.
   MARION F. EDWARDS, Chief Judge.

pThe State of Louisiana, plaintiff/appellant, through the Jefferson Parish District Attorney, appeals a judgment of the Twenty-Fourth Judicial District Court that granted a motion to quash bills of information charging defendant/appellee, James D. Durham, with two counts of issuing worthless checks in violation of La. R.S. 14:71 and charging defendant/appellee, Donald H. Durham, with one count of issuing a worthless check in violation of La. R.S. 14:71.

PROCEDURAL HISTORY

On July 31, 2009, the State filed a bill of information charging Donald H. Durham with one count of issuing a worthless check on August 25, 2008 to the West Jefferson Levee District, a violation of La. R.S. 14:71, in the amount of $1,222 in case No. 09^4125. Also on July 31, 2009, another bill of information against James D. Durham was filed, likewise alleging a violation of La. R.S. 14:71 for writing a worthless check to the Levee District in the amount of $133,292 on July 20, 2008 in case No. 09-4124. The two matters were consolidated, and a motion to quash for lack of jurisdiction and/or venue was filed on behalf of both ^defendants. At the hearing on the motion, there was no testimony, and the State submitted no evidence. However, the defendants produced copies of three checks. Following argument, the motion was granted.

The State appealed the granting of the motion with this Court in case Nos. 10-KA-336 consolidated with 10-KA-337. Oral arguments in the original appeal occurred on November 10, 2010, before Judges Dufresne, Edwards, and Wicker. However, before the panel issued its decision, Judge Dufresne passed away, and the matter was scheduled for re-argument on January 10, 2011. On January 7, 2011, however, the State filed a motion to dismiss the consolidated appeals, and this Court dismissed the appeals on January 10, 2011.

Later that same month, on January 28, 2011, the State filed bills of information against the same defendants in district court case Nos. 11-0459 and 11-0460. In case No. 11-0459, James D. Durham was charged with two counts of issuing worthless checks, one for $130,895 and one for $2,397, to the Levee District on June 20, 2008, in violation of La. R.S. 14:71. In district court case No. 11-0460, Donald H. Durham was charged with one count of issuing a worthless check in the amount of $1,222 to the Levee District on August 25, 2008, in violation of La. R.S. 14:71.

Following pleas of not guilty, the defendants filed a motion to quash and a memorandum in support of the motion. The court granted defense counsel’s request to waive the defendants’ presence at this hearing. The defendants’ motion to quash was granted at the hearing on April 26, 2011. The State’s appeal follows.

The defendants argued that the court’s previous order quashing the cases was final and was “law of the case,” urging that the State was attempting to reincarnate the cases by re-filing virtually identical bills of information and was seeking to circumvent the rule of finality by relying on the district attorney’s Ldiscretionary powers under La.C.Cr.P. art. 61. The defendants also argued that La.C.Cr.P. art. 693 was inapplicable to this matter because the district attorney never entered a nolle prosequi inasmuch as the cases had already been quashed by the court. The defendants accused the State of flaunting its authority over the defendants and the court, alleging that the State had granted itself an appellate victory when the normal order of law would be that the district attorney could bring the defendants to trial after the court quashed the bills and the Court of Appeal reversed.

At the hearing on the motion to quash, the trial judge asked the State if the charge against Donald Durham was identical to the charge that had been previously quashed. The State agreed that it was. As for the charges against James Durham, the State explained that it had previously made a mistake as to the amount of the check in the original charge. It explained that one of the counts from the bill involved the same check, but a different amount than the check in the original charge. The State then explained that count two was a charge that was missed initially. Defense counsel argued that the amounts from the two counts in the new bill of information for James Durham totaled the amount alleged in the original bill of information. The State agreed that the total amount was the same, but it alleged that the original bill was incorrect because there were actually two worthless checks. The court then asked the State if there were any other factual distinctions between the new case against James Durham with the two counts and the original count. The State said there were none, and it agreed that the transaction was the same. The court asked if the geography was the same, and the State indicated that issue had not been raised.

The State disputed that the bills were identical, noting that there were two separate checks, instead of one check. The State also argued that it had the [^authority under the law to dismiss the appeal and re-file the bill of information, and that dismissal of the prosecution was not a bar to subsequent prosecutions, suggesting that the dismissal of an appeal amounted to the dismissal of prosecution. The State argued that dismissing an appeal and then re-filing a bill had the same effect as if the State had chosen not to appeal and instead re-filed the bill. The State claimed it had a legitimate reason for re-filing and did not do so to avoid time limitations.

After questioning the State about its authority to determine jurisdiction, the State said it would argue the issue if it were brought up in the “new case” but that, up until that point, it had not been raised. The trial judge granted the motion to quash by stating the following:

The State suggests that even though I may have decided an issue regarding jurisdiction of which I have jurisdiction over the issue of jurisdiction, based on a set of circumstances and facts, that even though I may have decided that that way and even though I may be confronted repeatedly with the same facts with no substantiative [sic] distinction, all right — ... that the State can continue to revolve the door to run the same charges through.
I disagree with that logic, your motion to quash is granted.

Thereafter, the State claimed that the same facts would not be presented if jurisdiction had been raised again in the motion to quash. It contended that it would present “new light” to the issue of jurisdiction that perhaps the court did not have before, and it said that this was the reason it had to re-file the bills of information.

On appeal, the State argues that the district attorney has the authority to dismiss a criminal prosecution and reinstitute the charges for the same offense based on the same facts, citing La. Const, art. V, § 26(B), La.C.Cr.P. art. 61, and La.C.Cr.P. art. 691. The State further argues that La.C.Cr.P. art. 538 does not prevent reinstitution of the charges. It contends that the fact the original [fiprosecution was dismissed during the appeal process of the original motion to quash is of no consequence. The State argues that the defendants do not allege that witnesses or evidence was lost or that the defense has been prejudiced.

The State explains that the instant bill of information clarified the amount of the check and charged a new count, suggesting that, even if this Court affirms the trial court’s ruling in granting the motion to quash, the case still requires remand for prosecution of the new and second count that was not a part of the original bill of information. The State concludes that there is no evidence that the district attorney flaunted his authority at the defendants’ expense. Further, the State contends that the defendants have not shown, nor do they assert, a violation of their speedy trial rights. Finally, the State argues that the principle of “law of the case” is inapplicable.

The granting of a defendant’s motion to quash the bill of information is a discretionary ruling by the trial court, and absent abuse, the ruling should not be disturbed by the appellate court.

On review, after comparing the instant bills of information with the originally filed bills of information, it is clear that the new bill of information for Donald H. Durham is identical to the original bill of information filed and previously quashed. As to the bills of information charging James D. Durham, the bills of information are not identical on their face. The new bill of information stated two counts of issuing worthless checks, but the total amount for the two checks described in the new bill of information for James Durham equals the amount described in the original bill of information. The State admitted at the hearing that the new bills of information were based on the same transaction and arose from the same set of facts as the charges in the original bills of information. |7Although the State suggested that, after the trial court’s ruling on the instant motion to quash, a “new light” could have been shown as to the jurisdiction issue had it been raised, the State failed to proffer any evidence or argument as to how jurisdiction was different for the new bills of information based on the same set of facts as the originals.

The'Louisiana Supreme Court has previously reinstated the grant of a motion to quash after concluding that the district court’s judgment became final “when the state failed to take a timely appeal from the disputed ruling.” Voluntary dismissal of the State’s appeal produces the same effect in the present case. When the State dismissed its first appeal, the trial court’s determination that it had no jurisdiction became final.

Under La.C.Cr.P. art. 532(8), a motion to quash may be granted when the court has no jurisdiction of the offense charged. The Official Comments of La.C.Cr.P. art. 538 note that grounds that call for a complete discharge are also enumerated in Art. 532(1), (6), (7), and (8). When the jurisdiction determination became final upon dismissal of the appeal, the defendants were discharged from those same counts in that same jurisdiction. The State, therefore, had no authority to “dismiss” these already discharged bills. La. C.Cr.P. art. 691 is clearly inapplicable.

The State cannot, by merely restating the facts of the first bill, create jurisdiction in the Twenty-Fourth Judicial District Court when, by its own admission, there were no factual distinctions between the two sets of events. It has been held that, when a prosecutor dismisses a pending prosecution in the face of a trial court’s denial of a continuance to the state, and then re-files the same charge | Rto continue the prosecution after a brief pause, he can be said to have “flaunted” the state’s unique power and authority that the defense does not also possess.

[B]ecause 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.

We find that the State’s attempt to force the defendants to defend themselves in a court that has previously found there was no jurisdiction based on the same set of circumstances creates such a situation. The State did not present any evidence that the new charges were not subject to the same jurisdictional determination as previously decided.

For the foregoing reasons, the judgment granting the motion to quash is affirmed.

AFFIRMED

      . State v. Payton, 06-1202, pp. 3-4 (La.App. 4 Cir. 2/28/07), 954 So.2d 193, 195 (citing State v. Love, 00-3347, p. 14 (La.5/23/03), 847 So.2d 1198, 1208).

      . State v. Gray, 98-2902 (La.5/7/99), 740 So.2d 1291.

      . See, State v. King, 10-2638, pp. 5-6 (La.5/6/11), 60 So.3d 615, 618 (per curiam).

      . Id. at 619.


author: MARC E. JOHNSON, Judge. WICKER, J.,

text:
    Gina McCAIN v. Russell McCLOUD d/b/a Masters Complete Auto Repair.
    No. 11-CA-591.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 2012.
    Karl Wiedemann, Attorney at Law, Me-tairie, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

12Defendant/AppeIlant, Russell McCloud d/b/a Masters Complete Auto Repair, appeals the granting of a preliminary injunction in favor of Plaintiff/Appellant, Gina McCain, from the 24th Judicial District Court, Division “M”, regarding a permit to sell a vehicle pursuant to LSA-R.S. 32:1726 and LSA-R.S. 32:1728 of the Louisiana Towing and Storage Act. For the following reasons, the appeal is dismissed.

On January 18, 2011, the trial court rendered a written judgment granting Ms. McCain’s petition for preliminary injunction, which sought to arrest the sale of her 1978 Chevrolet Camaro. On February 18, 2011, Mr. McCloud filed a petition for de-volutive appeal from the January 18, 2011 judgment.

LSA-C.C.P. art. 3612 provides, “[a]n appeal from an order or judgment relating to a preliminary injunction must be taken, and any bond required must be furnished, within fifteen days from the date of the order or judgment.” See also, R2D2B2, L.L.C. v. City of New Orleans, 03-0281 (La.5/2/03); 849 So.2d 487. The 15-day appeal delay set forth in LSA-C.C.P. art. 3612 applies to all judgments on preliminary injunctions, whether they are denied or granted. Marlbrough v. Zar, 98-38 (La.App. 5 Cir. 5/27/98); 713 So.2d 1163. The delay does not commence to|srun on a judgment granting or denying a preliminary injunction until the judgment is signed. Id. In cases where the parties stipulate that the preliminary injunction hearing will constitute a trial on the merits of the application for a permanent injunction, the normal appeal delays, rather than the 15-day delay under LSA-C.C.P. art. 3612, apply. Id.

Here, there is no indication in the record that the parties agreed that the preliminary injunction hearing would constitute a trial on the merits of the application for the permanent injunction. Consequently, the appeal delay provided in LSA-C.C.P. art. 3612 concerning preliminary injunctions apply to this matter. Mr. McCloud had 15 days from the signing of the January 18, 2011 judgment to file his appeal from the preliminary injunction. Therefore, the petition for appeal filed by Mr. McCloud on February 18, 2011 was untimely. The January 18, 2011 granting of the preliminary injunction is definitive and cannot now be reviewed by this Court because it was not appealed within 15 days. (See, Erazo v. Morton, 09-661 (La. App. 5 Cir. 3/9/10); 33 So.3d 952, where this Court held, “[w]hen an appellant fails to timely take and perfect an appeal, the appellate court lacks jurisdiction to hear the appeal and may dismiss it on its own motion.”) The January 18, 2011 preliminary injunction remains in effect during the pendency of the action or until it is dissolved or modified by the court. See, LSA-C.C.P. arts. 3601(C) and 3607; Elysian Fields Church of Christ v. Dillon, 08-989 (La.App. 4 Cir. 3/18/09); 7 So.3d 1227, 1232.

An order granting either a preliminary or a final injunction or a temporary restraining order shall describe in reasonable detail, and not by mere reference to the petition or other documents, the act or acts sought to be restrained. The order shall be effective against the parties restrained, their officers, agents, employees, and counsel, and those persons in active concert or participation with them, from the time they receive actual knowledge of the order by personal service or otherwise.

For the foregoing reasons, the appeal of Defendant/Appellant, Russell McCloud d/b/a Masters Complete Auto Repair, is dismissed with prejudice for lack of jurisdiction. Mr. McCloud is to bear all of the costs of this appeal.

APPEAL DISMISSED

WICKER; J., concurs with reasons.

WICKER, J.,

concurs with reasons.

hi concur with the majority’s opinion that appellant’s appeal must be dismissed. However, I respectfully disagree that the appeal was filed too late. In my opinion, the appeal is premature. As I see it, the judgment appealed is fatally defective because it fails to comport with the requirements set forth in La. C.C.P. art. 3605. Ormond Country Club v. Dorvin Developments, Inc., 498 So.2d 144, 148 (La.App. 5 Cir.1986). A fatally flawed judgment is void, that is, no judgment. Input/Output Marine Sys., Inc. v. Wilson Greatbatch, Technologies, Inc., 10-477 (La.App. 5 Cir. 10/29/10), 52 So.3d 909, 916. Because the “judgment” appealed from here is void, appeal delays did not run and this Court’s jurisdiction did not attach. Id. Because it is my opinion that the judgment complained of here is void, I would vacate the judgment and remand the matter to the district court for further proceedings. In my opinion, appeal delays would run from the rendering of a judgment which comports with the requirements of La. C.C.P. art. 3605.

La. C.C.P. art. 3605 requires a judgment granting a preliminary injunction describe in reasonable detail, and not by mere reference to the petition or other documents, the act or acts sought to be restrained. Ormond Country Club, supra, at 148. In my opinion, the judgment at issue is defective because it is devoid of any description of the conduct sought to be enjoined as required by La. C.C.P. art. 3605. A judgment that does not describe the act or acts being enjoined is invalid as an injunction and void. Id. This Court, in Input/Output Marine Sys., Inc. v. Wilson Greatbatch, Technologies, Inc., held that a fatally defective judgment is void and effectively results in “no judgment” having been rendered. Input/Output Marine Sys., Inc., supra, at 916. This Court cannot determine the merits of an appeal unless our jurisdiction is properly invoked by a valid final judgment. Creighton, Richards & Higdon, L.L.C. v. Richards Clearview, L.L.C., 09-247, pp. 3-4 (La. App. 5 Cir. 10/29/09), 28 So.3d 391, 393 (citations omitted).

Because this Court lacks jurisdiction in the absence of a valid judgment, this appeal should be dismissed. However, in dismissing this appeal, I would remand the matter to the trial court, reserving unto the parties the right to file a new appeal after a valid judgment has been rendered. See Input/Output Marine Sys., Inc., supra, at 916.

      . La. C.C.P. art. 3605 provides:


author: WALTER J. ROTHSCHILD, Judge.

text:
    Ruth Mora AVILA v. SANOFI-AVENTIS, U.S.
    No. 11-CA-661.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 2012.
    Norman A. Mott, III, Attorney at Law, New Orleans, LA, W.J. Leblanc, Jr., Attorney at Law, Belle Chasse, LA, for Plaintifi/Appellant.

      Christopher L. Williams, Attorney at Law, New Orleans, LA, for Defendant/Ap-pellee.
    Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
   WALTER J. ROTHSCHILD, Judge.

12PIaintiff, Ruth Mora Avila, appeals the trial court’s judgment in favor of defendant, sanofi-aventis U.S. LLC, dismissing Ms. Avila’s claims with prejudice. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Ruth Avila was formerly employed by sanofi-aventis as an Oncology Sales Professional. In October of 2009, sanofi-aventis terminated Ms. Avila’s employment on the grounds that she had violated various company policies. On August 2, 2010, Ms. Avila brought summary proceedings against sanofi-aventis, asserting a claim under the Louisiana Wage Payment Act, LSA-R.S. 23:631, et seg., for wages remaining unpaid after termination of her employment. Specifically, Ms. Avila contends that she was awarded a bonus based on her performance for 2008 and she was only paid one-third of the bonus prior to her [stermination. She claims that she is entitled to the remaining two-thirds, sa-nofi-aventis responds that she is not entitled to the remaining two-thirds of the bonus, because the bonus was conditioned on employment with the company and acceptable performance at the times when the second and third installments were to be paid, and Ms. Avila’s employment was terminated for just cause prior to the second and third installments.

Trial of this matter was held on February 8, 2011. At trial, Ms. Avila testified that she worked for sanofi-aventis from 2004 to 2009, and that her compensation consisted of a salary along with a bonus structure. She testified that she qualified and earned a deferred bonus of $40,000.00, pursuant to sanofi-aventis’ Oncology Deferred Annual Bonus Program (“ODABP”), as a result of her work performance in 2008. The bonus was to be paid to her in 2009, 2010, and 2011 in three installments. In June 2009, Ms. Avila received the first installment of $13,333.33, but sanofi-aventis refused to pay the remaining two-thirds of the bonus when her employment was terminated in October of 2009.

On cross-examination, Ms. Avila acknowledged that the PhRMA Code Guidelines provide instructions on how a sales representative in the pharmaceutical industry is to perform her job, and these guidelines changed on January 1, 2009. The company guidelines also changed to comply with the PhRMA Code Guidelines. Ms. Avila admitted that she received training on these policy changes. Ms. Avila was questioned about some of her actions that sanofi-aventis claims were violations of company policy and the PhRMA Code Guidelines, and were the reasons for her termination from employment.

Ms. Avila admitted taking a Dr. Hamilton and a registered nurse, Barbara Sloan, out to dinner in September 2009, which sanofi-aventis asserts was a violation of the company’s “Meals and Prohibition of Entertainment Policy.” Ms. 14Avila testified that she did not believe that taking these people to dinner was a violation, because the dinner was paid for with a gift certificate issued by the restaurant in August 2009. According to Ms. Avila, the company paid for a Speaker Program at the restaurant in August 2009, but not enough people attended to satisfy the amount paid by sanofi-aventis. The restaurant issued a gift certificate for the remaining balance, which was used to pay for the dinner with Dr. Hamilton and Barbara Sloan. Ms. Avila admitted that neither Dr. Hamilton nor Barbara Sloan attended the Speaker Program in August 2009, but she did not believe that she violated company policy or PhRMA Code guidelines, as claimed by sanofi-aventis.

Ms. Avila also testified that she used her sanofi-aventis credit card to pay for pizza to be delivered to the office of two physicians in June 2009, even though she was not present at the office to conduct a “lunch and learn” as she recorded in the company’s records. She admitted that this “apparently” violated company policy.

John Hamm, who is a district sales manager and was Ms. Avila’s supervisor, testified that Ms. Avila received training on sanofi-aventis’ policies and procedures designed to insure compliance with the PhRMA Code Guidelines. He stated that he informed Ms. Avila that her employment was being terminated and explained the reasons for the termination, but she did not contest or deny the allegations. Mr. Hamm admitted that he did not have any personal knowledge of any of the allegations against Ms. Avila.

Mr. Hamm further testified that he notified Ms. Avila of her ODABP award for 2008. He explained the letter sent to Ms. Avila and noted that the document provides that the awards partially vest and are paid over a three-year vesting period, assuming continued employment and acceptable performance throughout the vesting period.

| fiFinally, Jeanette Fontanes testified that she is the employee relations manager for sanofi-aventis. One of her job duties is to investigate employee misconduct. Ms. Fontanes testified that she spoke with Ms. Avila regarding the allegations against her, reviewed records, met with witnesses, and prepared a “Summary of Allegations or Findings Report.” She testified that there were seven allegations against Ms. Avila, and four of the allegations were substantiated through her own admission. She stated that when she spoke with Ms. Avila, Ms. Avila confirmed four of the allegations and explained her conduct. Ms. Fontanes testified that she shared the findings of her investigation with the company’s discipline committee, which decided that three violations admitted by Ms. Avila were terminable offenses. She testified that the bonus program did not influence her investigation findings in any way.

At the conclusion of trial, the trial judge gave the parties additional time to submit memoranda on the law pertaining to the issues in this case. Thereafter, he took the matter under advisement. On April 5, 2011, the trial judge rendered a judgment in favor of sanofi-aventis, dismissing Ms. Avila’s claims with prejudice. Ms. Avila appeals.

LAW AN DISCUSSION

In her first assignment of error, Ms. Avila contends that the trial court erred by rendering a verdict for sanofi-aventis which fails to afford her the protections of the Louisiana Wage Payment Act, LSA-R.S. 23:631 et seq. She asserts that the bonus she earned in 2008 was part of an incentive plan to award compensation for performance. She claims that although payment of the bonus was deferred, the bonus was earned in 2008 and owed as wages under LSA-R.S. 23:631. Ms. Avila asserts that company policy providing for forfeiture of an earned bonus if employment is terminated is a violation of LSA-R.S. 23:634.

| (jSanofi-aventis responds that the ODABP provided eligible employees the opportunity to receive bonus payments but did not guarantee payments. It notes that the June 8, 2009 letter to Ms. Avila regarding the ODABP award specifically provides that the awards partially vest and are paid out over a three-year period, assuming continued employment and acceptable performance throughout the vesting period. It points out that the Eligibility Criteria for the ODABP provides that the employee must be employed on the date of each installment in order to receive payment and must be in good standing during the vesting period, sanofi-aventis further asserts that Ms. Avila received training on the PhRMA Code Guidelines and company policies, yet she still committed at least three violations of the company guidelines which caused her termination. Finally, it contends that the ODABP’s deferred vesting provisions are valid and enforceable because Ms. Avila was terminated for cause.

The Eligibility Criteria for the 2008 ODABP provides that if the company achieves its sales objectives, up to the top 20% of Oncology Sales Professionals will be eligible to receive an ODABP award for that assessment period. It further provides, in pertinent part, that to qualify to receive an ODABP in a given year, the top performer must also:

• Be employed at the date of payment of each installment to be eligible to receive the payment
• Be in good standing (not on a Final Written Plan or have received a Notice of Violation or an Annual Performance Rating of less than Meets Expectations) during vesting period up through date of the installment payment. Any such occurrence voids all outstanding ODABP Award Payments
• Not be eligible to receive any other long-term incentive plan, e.g. Stock Options, etc.

The June 8, 2009 letter to Ms. Avila about the 2008 ODABP award provides 17that the $40,000 award would be paid in three installments of $13,333.33, and these installments would be paid in 2009, 2010, and 2011. The letter further provides that the 2008 ODABP awards “partially vest and are paid out over a three-year vesting period assuming continued employment and acceptable performance throughout the vesting period.”

Clearly, under the eligibility criteria for the ODABP and the terms set forth in the June 8, 2009 letter, Ms. Avila was not entitled to the remaining two-thirds of the bonus, because she was not employed by sanofi-aventis at the time of the scheduled second and third payments, and she did not remain in good standing throughout the vesting period. Accordingly, we must consider whether these provisions of sano-fi-aventis’ policy comply with the law.

LSA-R.S. 23:631(l)(a) provides:

Upon the discharge of any laborer or other employee of any kind whatever, it shall be the duty of the person employing such laborer or other employee to pay the amount then due under the terms of employment, whether the employment is by the hour, day, week, or month, on or before the next regular payday or no later than fifteen days following the date of discharge, whichever occurs first. (Emphasis added.)

LSA-R.S. 23:634(A) provides:

No person, acting either for himself or as agent or otherwise, shall require any of his employees to sign contracts by which the employees shall forfeit their wages if discharged before the contract is completed or if the employees resign their employment before the contract is completed; but in all such cases the employees shall be entitled to the wages actually earned up to the time of their discharge or resignation. (Emphasis added.)

LSA-R.S. 23:635 provides:

No person, acting either for himself or as agent or otherwise, shall assess any fines against his employees or deduct any sum as fines from their wages. This Section shall not apply in cases where the employees willfully or negligently damage or break goods or works, or in cases where the employees willfully or negligently damage or break the property of the employer, or in cases where the employee is convicted or has pled guilty to the crime of theft of employer funds, | sbut in such cases the fines shall not exceed the actual damage done.

Ms. Avila claims that sanofi-aventis has violated each of the foregoing statutory provisions by failing to pay her the remaining two installments of her $40,000 bonus. We disagree.

First, the second and third installments of the $40,000 bonus were not “an amount then due under the terms of employment,” pursuant to LSA-R.S. 23:631, at the time of Ms. Avila’s termination from employment. At the time of her termination, the remainder of the bonus was not to be paid until a later date and only if the terms of eligibility were met. The June 8, 2009 letter specifically indicates that the awards “partially vest and are paid out over a three-year vesting period.” Further, the award was not yet “actually earned” under LSA-R.S. 23:634, because all of the provisions of the eligibility criteria were met not at the time of her termination. Finally, we do not find that the failure to pay the remaining two-thirds of the bonus was a prohibited fine under the provisions of LSA-R.S. 23:635.

Ms. Avila cites several cases in support of her position. She cites Beard v. Summit Institute of Pulmonary Medicine and Rehabilitation, Inc., 97-1784 (La.3/4/98), 707 So.2d 1233, in which the Louisiana Supreme Court held that an employee who walked off the job was entitled to compensation for accrued vacation time, which constituted “wages” under company policy, notwithstanding the employer’s policy that an employee forfeits all accrued benefits when she walks off the job. The Court stated that accrued vacation time is an “amount then due under terms of employment” and constitutes wages under LSA-R.S. 23:631. Id. at 1235. However, the Beard case is distinguishable from the instant case. In the present case, Ms. Avila did not walk off the job but was terminated for cause. |sFurther, the benefits in Beard were “vested and accrued” when the employee left her job, whereas in the present case, the bonus payments were only partially vested when Ms. Avila was terminated and there was a three-year vesting period requiring continued employment and acceptable performance during that period.

Ms. Avila also cites Kearney v. Lee Medical International, Inc., 06-597 (La.App. 5 Cir. 1/16/07), 951 So.2d 417, writ denied, 07-344 (La.3/30/07), 953 So.2d 70. In that case, Mr. Kearney was paid a $5,000 bonus that the employer required to be repaid to the company if the employee did not remain employed for two years after the payment. Kearney, 06-597 at 4, 951 So.2d at 419. Thereafter, Mr. Kearney was involuntarily terminated which prevented him from fulfilling his obligation to remain with the company for two years, and the company withheld the amount of this bonus from his final paycheck. This Court found that the bonus fell within the ambit of LSA-R.S. 23:631, et seq., and was “wages” subject to the provisions of the Louisiana Wage Payment Act. Id. at 6, 951 So.2d at 420. This Court upheld the trial court’s judgment awarding Mr. Kear-ney the $5,000 in bonus wages, finding that the repayment condition only applied if the plaintiff left the defendant’s employ voluntarily. Kearney, 06-597 at 5, 951 So.2d at 420.

The present case is distinguishable from Kearney, because the agreement in that case provided that the bonus was not related to job performance, the bonus was already paid to the employee in full, and the employer attempted to receive repayment of a bonus already paid by reducing the employee’s paycheck. In the instant case, Ms. Avila’s bonus was related to job performance, only partially paid, and only partially vested at the time of her termination.

Although Ms. Avila cites several additional cases in support of her position, we have reviewed each of these cases and find that they are all distinguishable on their facts and unpersuasive.

| mThe record before us shows that Ms. Avila was discharged from her employment for just cause. Further, the ODABP bonus awards only partially vested during Ms. Avila’s employment and would be paid over a three-year vesting period if continued employment and acceptable performance requirements were met. Thus, although top work performance in 2008 was the primary reason for the bonus, there were additional conditions and qualifications that had to be met. Ms. Avila did not meet the required qualifications for eligibility at the time of her termination, including continued employment and good standing.

Considering the facts, the entire record, and applying the pertinent law, we find that sanofi-aventis’ requirements for receiving bonus payments were not in violation of the Louisiana Wage Payment Act and that Ms. Avila was not entitled to the remaining two-thirds of the $40,000 bonus. Accordingly, the trial judge did not err by ruling in favor of sanofi-aventis and dismissing Ms. Avila’s claims.

In Ms. Avila’s remaining assignments of error, she contends that the trial judge erred in failing to award her attorney fees, penalty wages, and costs. However, considering our finding that the bonus payments claimed by Ms. Avila were not owed to Ms. Avila upon her termination, we find these arguments to be without merit.

DECREE

For the foregoing reasons, we affirm the April 5, 2011 judgment of the trial court in favor of sanofi-aventis and dismissing Ms. Avila’s claims.

AFFIRMED

      . According to the parties and the record, defendant does not capitalize its name.

      . Ms. Avila contends that sanofi-aventis failed to prove that it had cause to terminate her. However, the record supports the finding that Ms. Avila was terminated for violations of company policy, which constituted just cause for her termination.


text:
    YUR-MAR, LLC v. JEFFERSON PARISH COUNCIL.
    No. 11-CA-669.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 2012.

      Thomas P. Anzelmo, Sr., Lou Anne Gwartney, Attorneys at Law, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
   WALTER J. ROTHSCHILD, Judge.

_JjThe Jefferson Parish Council is appealing from the trial court’s ruling granting a preliminary injunction in favor of Yur-Mar, LLC. For the reasons stated herein, the trial court’s judgment as well as the preliminary injunction preventing enforcement of Resolution No. 115740 are hereby vacated.

On December 15, 2010, Yur-Mar, LLC filed the instant Petition for Judicial Review, Temporary Restraining Order and/or for a Preliminary Injunction naming as defendant the Jefferson Parish Council. Plaintiff alleged that it owned a business in Jefferson Parish operating under the name “City Bar” and that it held a permit to sell alcoholic beverages at this location. Plaintiff further alleged that on September 4, 2010, an investigation by state and parish officials resulted in misdemeanor summons for the sale of alcohol to adults under the age of twenty-one years. As set forth by parish ordinance, The Jefferson Parish Alcoholic Beverage Review Committee conducted a hearing on these charges, and recommended a Resolution to the Council that plaintiffs alcohol permit be suspended for a period of two weeks, but that enforcement of the suspension would be suspended as long as the policy of the bar to only admit patrons over the age of twenty-one remain in effect for one year after the date of the Resolution. At its | <¡meeting on December 8, 2010, the Jefferson Parish Council unanimously adopted Resolution No. 115740, which provided for suspension of plaintiffs 2010 alcohol permit for a period of two weeks beginning ten days from the council’s action.

Yur-Mar then filed this summary proceeding seeking injunctive relief, asserting that the Council’s action was unlawful and in violation of parish ordinances and state statutes. Yur-Mar alleged that it would sustain irreparable harm if the suspension of the permit was not temporarily stayed, and sought a temporary restraining order against the Council preventing it from enforcing Resolution No. 115740. Plaintiff also sought a hearing on a preliminary injunction, and after trial on the merits, a rescission of the Council’s Resolution No. 115740.

On December 16, 2010, the trial court issued a temporary restraining order prohibiting the Jefferson Parish Council from suspending the alcohol beverage sales permit held by Yur-Mar, LLC. A hearing on the preliminary injunction was set for December 28, 2010. The Jefferson Parish Council filed a Motion to Dissolve the TRO, which was opposed by Yur-Mar, and this matter was also set for hearing on December 28, 2010. The Jefferson Parish Council also filed an exception of unauthorized use of summary proceeding and an answer to plaintiffs petition. The record does not contain a ruling on the Parish’s dilatory exception.

Hearing on the preliminary injunction was held on December 28, 2010. By judgment rendered the following day, the trial court granted a preliminary injunction in favor of Yur-Mar and against the Jefferson Parish Council, ordering that “the plaintiff shall be allowed to continuing [sic] operating Yur-Mar, LLC, while ensuring that each customer must be 21 years of age to enter.” The trial court also denied the Council’s motion to dissolve the TRO.

|4On January 12, 2011, the Jefferson Parish Council filed this timely devolutive appeal from the judgment on the basis that the district court had no basis for the entry of a preliminary injunction in this case. The Parish Council contends that the adoption of the Resolution imposing the sanction was lawfully executed and that plaintiff failed to prove its entitlement to injunctive relief. We agree.

Generally, a party seeking the issuance of a preliminary injunction must show that he will suffer irreparable injury if the injunction does not issue and must show entitlement to the relief sought; this must be done by a prima facie showing that the party will prevail on the merits of the case. H20 Hair, Inc. v. Marquette, 06-930 (La.App. 5 Cir. 5/15/07), 960 So.2d 250, 259, citing Jurisich v. Jenkins, 97-1870 (La.App. 1 Cir. 9/25/98), 722 So.2d 1008, 1011, reversed on other grounds, 99-0076 (La.10/19/99), 749 So.2d 597. See also, USI Ins. Services, LLC v. Tappel, 09-149 (La.App. 5 Cir. 11/10/09), 28 So.3d 419, 424, writ denied, 09-2697 (La.2/26/10), 28 So.3d 271. The principal demand is determined on its merits only after a full trial under ordinary process, even though the hearing on the summary proceedings to obtain the preliminary injunction may touch upon or tentatively decide merit issues. Smith v. West Virginia Oil & Gas Co., 373 So.2d 488, 494 (La.1979). Further, the prima facie right to a permanent injunction must be proved before a preliminary injunction may issue. Equitable Pe- troleum Corp. v. Central Transmission, Inc., 431 So.2d 1084 (La.App. 2 Cir.1983). Irreparable injury means the petitioner cannot be adequately compensated in money damages or suffers injuries which cannot be measured by pecuniary standards. Camp, Dresser McKee, Inc. v. Steimle and Associates, Inc., 94-547 (La.App. 5 Cir. 2/15/95), 652 So.2d 44, 47.

[f¡A trial court’s issuance of a preliminary injunction will not be disturbed on appeal absent a clear abuse of discretion. H20 Hair, Inc. v. Marquette, supra, 960 So.2d at 259.

In its petition seeking injunctive relief, Yur-Mar alleged that the Council erred in suspending its alcohol permit without taking additional evidence or providing notice. Plaintiff alleges that because the council action was in violation of law, the requirement of demonstrating irreparable harm is unnecessary. Plaintiff nevertheless alleges that without injunctive relief, plaintiff will suffer irreparable harm in terms of lost business that will likely result in the complete failure of its enterprise.

To resolve the propriety of the injunction in this case, we must first determine whether the council action was in violation of law as alleged by plaintiff.

Government regulation of the sale of alcoholic beverages is derived from La. R.S. 26:493, which provides as follows:

Except as limited by the provisions of this Chapter the various subdivisions of the state may regulate but not prohibit, except by referendum vote as provided by Chapter 3 of this Title or by legally authorized zoning laws of municipalities, the business of wholesaling, retailing, and dealing in alcoholic beverages. No parish or municipality shall, in the exercise of its police power, regulate the business of selling such beverages more than is necessary for the protection of the public health, morals, safety, and peace. Local subdivisions, in adopting these regulatory ordinances, may provide, in addition to the ordinary penalties authorized by law for their violation, provisions which subject the permittee to having his permit suspended or revoked in the manner provided by law for the suspension or revocation of permits.

In the Parish of Jefferson, the regulations governing the business of dealing in alcoholic beverages are contained in the Jefferson Parish Code of Ordinances, | fiPart II, Chapter 4. Article II of that Chapter governs required dealer permits and Section 4-16 provides that those engaged in the business of dealing in alcoholic beverages in the parish shall obtain a permit to conduct the business.

Sec. 4-32 of the Chapter provides in part:

No holder of a retail dealer’s permit issued under the provisions of this chapter, or any servant, agent or employee of the permittee, shall do any of the following upon the licensed premises:
(1) Sell or serve alcoholic beverages as described in this chapter to a person under the age of twenty-one (21) years;

The Code further provides that violations of any of the provisions of this Chapter are sufficient cause for suspension or revocation of any permit required by this article. Sec. 4-33. The procedures for suspension and revocation of permits are contained in Sec. 4-34 and provide in pertinent part:

Upon violation of any offense enumerated in Chapter 4, Article II, a hearing may be had as follows:

(1) Committee. There is hereby created a committee to be known as the alcohol beverage permit review committee; ... The committee shall have the authority to conduct all public hearings, as provided in this article, regarding the suspension or revocation of alcoholic beverage permits ...
(2) Initiating Procedure; hearing required. Within sixty (60) days of notice of a violation enumerated in Chapter 4, Article II, a hearing may be held before the alcoholic beverage permit review committee or the parish council ... Such hearing shall be noticed by the committee ... a hearing shall be held in accordance with the provisions of this article to determine whether the permit of the person charged shall be suspended or revoked or ...
(3) Notice. A notice or summons shall be served upon the holder of the permit stating the time and place of the hearing, which shall not be less than forty-eight (48) hours from the date and time such notice is given....
(4) Hearings. Hearings required by this article may be conducted by the alcoholic beverage permit review committee or by the parish council....
(5) Conduct of Hearing. Whenever a hearing is conducted pursuant to this article, opportunity shall be afforded all parties to respond and present evidence on all issues of fact involved and argument on all issues of law and policy involved and to conduct such direct examination and cross-examination of witnesses; ... When a hearing is referred to the alcoholic beverage permit review committee, it shall hear all testimony and arguments, receive all the evidence and briefs and compile same into 17record, which record shall then be certified by the chairman of said committee. The committee shall submit the certified record to the parish council with the committee’s recommendation as to whether the permit of the person charged shall be suspended or revoked ...
(6)Council Action. If the hearing is conducted by the committee, the council shall not be required to conduct another hearing during its deliberation, unless a majority of the council votes to do so; however, nothing herein shall prohibit a permit holder from submitting written objections regarding any alleged errors in the record prior to the council considering the permit revocation or suspension. No permit shall be suspended or revoked, ... however, except by a majority vote of the parish council. No rehearing shall be granted after judgment of the parish council had been had.

The record in this case contains a copy of the certified record of the Alcoholic Beverage Permit Review Committee hearing which was conducted on October 29, 2010. The record also contains a copy of the police narrative for the incident at City Bar which occurred on September 4, 2010 as well as a copy of the Jefferson Parish Sheriffs Office (JPSO) crime report for the incident.

During the committee hearing, the committee heard the testimony of law enforcement officials who participated in an investigation of complaints regarding underage drinking at the City Bar on September 4, 2010. The testimony included that of Agents Tim Morphis and Melissa Peri of the Louisiana Office of Alcohol and Tobacco Control who stated that they participated in an investigation of City Bar on September 4, 2010. In conjunction with this investigation, the agents went to City Bar with a 19 year old operative and observed her purchase alcoholic beverages from four of the bartenders working that evening. The Jefferson Parish Sheriffs Office was called into the establishment and Agent Morphis testified that the bartenders received citations for selling alcohol to a person under 21 years of age. Two JPSO officers further testified that they had received complaints of underage drinking at the City Bar, and they participated in the investigation of the establishment and issued citations as a result.

| sYur-Mar presented the testimony of its owner Anthony Marullo, who stated that the business trains its employees not to sell alcohol to anyone less than 21 years of age. He stated that this was the first time he had been cited for serving alcohol to underage persons. He testified that on the day following this incident he decided that the bar would no longer permit patrons under the age of 21 to enter the bar. Yur-Mar also submitted testimony of bar employees working on the night in question who stated that they generally do not sell alcohol to persons under the age of 21 and that they did not recall doing so on that particular night.

Following the hearing, the Chairman stated as follows:

The Committee is back in session. We decided in camera, and with a majority vote to recommend a suspension of the permit of this establishment for two weeks, but they further recommend that suspension be, itself, suspended as long as the policy at the bar to only admit persons over the age of twenty-one continues in effect for at least a year.
This is a recommendation only, obviously. Obviously this [is] an advisory panel, as I stated earlier, and this is going to be our recommendation to the Council for their action.

By letter dated December 3, 2010 to counsel for Yur-Mar, a copy of a Resolution proposed by the committee was sent to plaintiff with a notification that the matter would be considered by the Jefferson Parish Council at its meeting on December 8, 2010. At the December 8, 2010 meeting of the Jefferson Parish Council, Resolution 115740 was unanimously adopted by the Council suspending Yur-Mar’s 2010 alcoholic beverage permit for a period of two weeks effective ten days from the date of the adoption.

By this action, Yur-Mar contends that the Parish Council failed to comply with the requirements of parish ordinances pri- or to enacting the suspension of the | apermit. Specifically, plaintiff contends that the Parish Council failed to comply with the notice requirements set forth in the applicable ordinances.

There is no dispute that the required notice to Yur-Mar was provided prior to the committee hearing and the hearing was continued at least once on motion of plaintiff. Further, the ordinances specifically provide that if the committee conducts a hearing, the Council is not required to hold an additional hearing prior to its action. The record shows that by letter dated December 3, 2010, plaintiff was notified of the Council’s intent to consider the Committee’s recommendation, and although the ordinances permitted plaintiff to file written objections regarding errors in the record prior to consideration by the Council, plaintiff failed to do so. Under these circumstances, we find no merit in plaintiffs argument regarding lack of notice.

Further, although plaintiff contends the Council had no authority to deviate from the committee’s recommended resolution without further notice and an opportunity to be heard, we find no support for this argument. Pursuant to the parish ordinances, the committee is authorized to conduct hearings regarding the suspension of an alcoholic beverage permit and to make a recommendation of action to the Council. However, the Council by majority vote has the authority to act on allegations of violations of the ordinances, and the ordinances do not provide that the recommendation of the committee is binding on the Council.

In addition, according to Part I, Article II of the Jefferson Parish Ordinances, the Parish is the appropriate body to adopt ordinances and resolutions. Section 2.01 provides in part:

The Parish Council shall be the legislative and policy making body of the parish and shall have authority, except as otherwise provided by this Charter, by the Constitution of this State, and specifically by Article XIV, Section 3(c) of the Constitution of 1921 and Article |inVI, of the Constitution of 1974, pertaining to the powers of the Sheriff, the Tax Assessor, the Clerk of the District Court, the School Board, and the incorporated municipalities of the parish, to exercise all powers of the parish, and to adopt such ordinances and resolutions as may be proper in the exercise thereof.

A review of the record in this case indicates that the Parish Council was within its authority as a legislative body to enact Resolution 115740 pertaining to a violation of an alcohol beverage permit regulated by the Parish. The record indicates that the matter was properly noticed and heard, and that the Council was not bound by the recommendation of the committee. Further, the record shows that based on the hearing conducted by the committee established for that purpose, the Council had grounds to impose an appropriate sanction on Yur-Mar for its violation of the ordinances pertaining to alcoholic beverage outlets. We therefore find that the Council’s action in enacting Resolution 115740 was not in violation of the law.

Based on our finding that the legislative action in this case regulating the sale of alcoholic beverages did not exceed the bounds of power delegated by the state legislature, we find that the action is not subject to injunction by way of summary proceeding. There was no evidence presented that the action of the parish body violates a law which expressly prohibits the adoption of the Resolution. Courts should not ordinarily interfere with the exercise of the legislative function and we find no proof in these summary proceedings that the Council action was arbitrary or capricious or made in bad faith. Without evidence sufficient to make a prima facie showing that Yur-Mar could prevail on the merits that the Council action was unlawful, we find Yur-Mar has not met the necessary burden for issuance of a preliminary injunction prohibiting the legislative action.

|„We also find insufficient evidence that the adoption or enforcement of the Resolution imparts immediate irreparable damage on plaintiff. Money damages can certainly compensate Yur-Mar for the loss of business associated with the suspension of its alcoholic beverage permit.

We therefore conclude that the trial court abused its discretion in issuing a preliminary injunction in this case. The injunction preventing enforcement of Council Resolution 115740 is hereby vacated. We also vacate the trial court judgment holding that Yur-Mar can continue to operate while ensuring customers are 21 years of age to enter. Yur-Mar, LLC shall bear all costs of this appeal.

JUDGMENT AND PRELIMINARY INJUNCTION VACATED

      . After the issuance of the TRO, the trial judge recused herself stating she had interest rn the cause and the matter was realloted.