author: WHIPPLE, J. McCLENDON, J.,

text:
    STATE of Louisiana v. Arria S. LOPER.
    No. 2010 KA 0582.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 29, 2010.

      Scott M. Perrilloux, Leslie Burns, Livingston, LA, Patricia Parker, Amite, LA, for Appellee, State of Louisiana.
    Thomas J. Frierson, Livingston, LA, for Defendant/Appellant, Arria S. Loper.
    Arria S. Loper, In Proper Person.
    Before WHIPPLE, McDONALD, and McClendon, jj.
   WHIPPLE, J.

| ¿The defendant, Arria S. Loper, was charged by bill of information with possession of a firearm by a convicted felon, a violation of LSA-R.S. 14:95.1. The defendant pled not guilty and, following a jury trial, was found guilty as charged. The defendant filed a motion for postverdict judgment of acquittal, which was denied. The defendant was sentenced to thirteen years imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. The defendant now appeals, designating one counseled assignment of error and two pro se assignments of error. We affirm the defendant’s conviction and sentence.

FACTS

On January 11, 2008, Detective Ken McMorris, with the Livingston Parish Sheriffs Office, received information from a confidential informant that the defendant was involved in criminal activity. Detective McMorris, along with Livingston Parish Sheriffs Office Deputy Lance Landry, met the defendant at a prearranged location in Livingston Parish. As Detective McMorris approached the defendant, he noticed a bulge in the defendant’s right front pants pocket. Detective McMorris conducted a pat-down and retrieved from the defendant’s pocket a .38 Special revolver with four live rounds in it. The defendant was subsequently arrested.

COUNSELED ASSIGNMENT OF ERROR

In his sole counseled assignment of error, the defendant argues that the evidence was insufficient to support the guilty verdict. Specifically, the defendant contends that the State failed to prove that the gun was capable of firing or that the gun, as a weapon, was used or designed to be used in destroying, defeating, or injuring an enemy.

When conviction based on insufficient evidence cannot stand as it violates Due Process. See U.S. Const, amend. XIV; La. Const, art. I, § 2. The standard of preview for the sufficiency of the evidence to uphold a conviction is whether or not, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). See also LSA-C.Cr.P. art. 821(B); State v. Ordodi, 2006-0207, p. 10 (La.11/29/06), 946 So.2d 654, 660; State v. Mussall, 523 So.2d 1305, 1308-09 (La.1988). The Jackson standard of review, incorporated in Article 821, is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, LSA-R.S. 15:438 provides that the factfinder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence. See State v. Patorno, 2001-2585, pp. 4-5 (La.App. 1st Cir.6/21/02), 822 So.2d 141, 144.

The trier of fact’s determination of the weight to be given evidence is not subject to appellate review. An appellate court will not reweigh the evidence to overturn a factfinder’s determination of guilt. State v. Taylor, 97-2261, pp. 5-6 (La.App. 1st Cir.9/25/98), 721 So.2d 929, 932. We are constitutionally precluded from acting as a “thirteenth juror” in assessing what weight to give evidence in criminal cases. See State v. Mitchell, 99-3342, p. 8 (La.10/17/00), 772 So.2d 78, 83.

In his brief, the defendant refers to Black’s Law Dictionary definitions of “firearm” and “weapon,” and asserts the evidence was insufficient because his gun was “never shown to be capable of the propulsion of shot,” the Black’s Law Dictionary definition of “firearm,” and it was not shown that his gun was used or designed to be used in destroying, defeating or injuring an “enemy,” the Black’s Law Dictionary definition of “weapon.”

However, to prove a violation of LSA-R.S. 14:95.1, the State must prove: (1) the defendant’s status as a convicted felon; and (2) that the defendant was in Lpossession of a firearm. See State v. Mose, 412 So.2d 584, 585 (La.1982). The State must also prove that ten years have not elapsed since the date of completion of the punishment for the prior felony conviction. LSA-R.S. 14:95.1(0(1) (Prior to amendment by La. Acts 2010, No. 942. Following the amendment, the cited language is contained in LSA-R.S. 14:95.1(0.) Thus, a violation of LSA-R.S. 14:95.1 by the defendant required no more than that he had a prior felony conviction and was in possession of a firearm.

Through the trial testimony of Detective McMorris, Deputy Landry, and Craig Meyer, a probation and parole officer for the State of Louisiana, the State clearly proved the elements of possession of a firearm by a convicted felon. Detective McMorris’s testimony, corroborated by Deputy Landry’s testimony, established that the defendant was carrying a .38 Special revolver with three or four bullets in his right front pants pocket. Meyer testified that he was assigned to the defendant, who had been convicted of possession of cocaine, xanax, and hydrocodone in January 2007. The defendant was placed on parole in March of 2007 and completed parole in August 2007.

Detective McMorris testified on cross-examination that he had not fired the defendant’s gun and did not know whether or not the gun was working. Similarly, Deputy Landry testified on cross-examination that he did not know if the rounds in the gun could be fired or if the gun was operational. The .38 revolver the defendant had in his possession was published to the jury members at trial. While there is nothing before us to suggest that the gun did not work properly or that it was inoperable, the State was not required to prove that the gun was capable of |fifiring live ammunition. Such a condition is not an element of the crime of possession of a firearm by a convicted felon. See State v. Jenkins, 540 So.2d 1037, 1039-40 (La.App. 2d Cir.1989); State v. Rogers, 494 So.2d 1251, 1254-55 (La.App. 2d Cir.1986), writ denied, 499 So.2d 83 (La.1987). See also United States v. Perez, 897 F.2d 751, 754 (5th Cir.1990), cert. denied, 498 U.S. 865, 111 S.Ct. 177, 112 L.Ed.2d 141 (1990) (where, in reviewing a federal statute similar to LSA-R.S. 14:95.1, which prohibited possession of a firearm by a felon, the court found irrelevant whether or not the rifle possessed by the defendant was inoperable since “[a]n inoperable firearm is nonetheless a firearm.”).

After a thorough review of the record, we find that the evidence supports the jury’s verdict. We are convinced that viewing the evidence in the light most favorable to the State, any rational trier of fact could have found beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, that the defendant was guilty of possession of a firearm by a convicted felon. See State v. Calloway, 2007-2306, pp. 1-2, 10-12 (La.1/21/09), 1 So.3d 417, 418, 422-23 (per curiam).

The counseled assignment of error is without merit.

PRO SE ASSIGNMENT OF ERROR NO. 1

In his first pro se assignment of error, the defendant argues he had ineffective assistance of counsel because of a conflict of interest with his court-appointed counsel.

Initially, we note that when the defendant sought to have defense counsel discharged, the attorney sought to withdraw as counsel of record. The trial judge | fidenied the withdrawal. However, the trial court allowed the defendant to represent himself, but ordered the attorney to sit “second chair,” in an advisory capacity, in the defendant’s case. In his pro se brief, the defendant asserts without support that defense counsel “was not operating in his best interest.” Further without support, the defendant states, “The level of competency asserted by restrained [sic] counsel’s performance failed to meet the normal demands called for adequate representation and was not based on informed professional deliberations.” The defendant also complains that defense counsel failed to file a motion to suppress the evidence. However, the record indicates that defense counsel did file a motion to suppress, a hearing was held on the matter, and the trial court denied the motion to suppress.

Louisiana Constitution article 1, § 13 provides in pertinent part that “[a]t each stage of the proceedings, every person is entitled to assistance of counsel of his choice, or appointed by the court if he is indigent and charged with an offense punishable by imprisonment.” The Sixth Amendment to the United States Constitution likewise carries such a guarantee. As a general proposition, a person accused in a criminal trial has the right to counsel of his choice. If a defendant is indigent, he has the right to court-appointed counsel. However, an indigent defendant does not have the right to have a particular attorney appointed to represent him. An indigent’s right to choose his counsel only extends so far as to allow the accused to retain the attorney of his choice, if he can manage to do so, but that right is not absolute and cannot be manipulated so as to obstruct orderly procedure in courts and cannot be used to thwart the administration of justice. The question of withdrawal of counsel largely rests with the discretion of the trial judge, and his ruling will not be disturbed in the absence of a clear showing of an abuse of discretion. State v. Leger, 2005-0011, p. 43 (La.7/10/06), 936 So.2d 108, 142, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007).

[7In Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), the United States Supreme Court enunciated the test for evaluating the competence of trial counsel:

First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

In evaluating the performance of counsel, the inquiry must be whether counsel’s assistance was reasonable considering all the circumstances. State v. Morgan, 472 So.2d 934, 937 (La.App. 1st Cir.1985). Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. State v. Robinson, 471 So.2d 1035, 1038-39 (La.App. 1st Cir.), writ denied, 476 So.2d 350 (La.1985).

A claim of ineffective assistance of counsel is more properly raised by an application for postconviction relief in the district court, where a full evidentiary hearing may be conducted. However, where the record discloses sufficient evidence to decide the issue of ineffective assistance of counsel when raised by assignment of error on appeal, it may be addressed in the interest of judicial economy. State v. Carter, 96-0337, p. 10 (La.App. 1st Cir.11/8/96), 684 So.2d 432, 438.

In the instant matter, the allegations of ineffective assistance of counsel at trial cannot be sufficiently investigated from an inspection of the record alone. Decisions relating to investigation, preparation, and strategy cannot possibly be reviewed on appeal. Only in an evidentia-ry hearing in the district court, where the defendant could present evidence beyond what is contained in the instant record, | scould these allegations be sufficiently investigated. Accordingly, these allegations are not subject to appellate review. See State v. Albert, 96-1991, p. 11 (La.App. 1st Cir.6/20/97), 697 So.2d 1355, 1863-64. See also State v. Johnson, 2006-1235, p. 15 (La.App. 1st Cir.12/28/06), 951 So.2d 294, 304.

PRO SE ASSIGNMENT OF ERROR NO. 2

In his second pro se assignment of error, the defendant argues that his sentence is excessive.

A thorough review of the record indicates that neither the defendant nor defense counsel made a written or oral motion to reconsider his sentence. Under LSA-C.Cr.P. arts. 881.1(E) and 881.2(A)(1), the failure to make or file a motion to reconsider sentence shall preclude the defendant from raising an objection to the sentence on appeal, including a claim of excessiveness. The defendant, therefore, is proeedurally barred from having this assignment of error reviewed. See State v. Duncan, 94-1563, p. 2 (La.App. 1st Cir.12/15/95), 667 So.2d 1141, 1143 (en banc per curiam). See also State v. LeBouef, 97-0902, pp. 2-3 (La.App. 1st Cir.2/20/98), 708 So.2d 808, 808-09, writ denied, 98-0767 (La.7/2/98), 724 So.2d 206.

This pro se assignment of error also is without merit.

SENTENCING ERROR

Under LSA-C.Cr.P. art. 920(2), we are limited in our review to errors discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence. After a careful review of the record, we have found a sentencing error. See State v. Price, 2005-2514 (La.App. 1st Cir.12/28/06), 952 So.2d 112 (en banc), writ denied, 2007-0130 (La.2/22/08), 976 So.2d 1277.

|3For his conviction of possession of a firearm by a convicted felon, the defendant was sentenced to thirteen years at hard labor without benefit of probation, parole, or suspension of sentence. At the time of the instant offense, the law provided that whoever is found guilty of violating the possession-of-a-firearm-by-a-convicted felon provision shall be imprisoned at hard labor for not less than ten nor more than fifteen years without benefits and be fined not less than one thousand dollars nor more than five thousand dollars. LSA-R.S. 14:95.1(B) (prior to amendment by La. Acts 2010, No. 815). The trial court failed to impose the mandatory fine. Accordingly, the defendant’s sentence, which did not include the mandatory fine, is illegally lenient. However, since the sentence is not inherently prejudicial to the defendant, and neither the State nor the defendant has raised this sentencing issue on appeal, we decline to correct this error. See Price, 2005-2514 at pp. 21-22, 952 So.2d at 124-25.

CONVICTION AND SENTENCE AFFIRMED.

McCLENDON, J. concurs and assigns reasons.

McCLENDON, J.,

concurs and assigns reasons.

1!While I am concerned about the failure of the trial court to impose the legislatively mandated fine, given the state’s failure to object and in the interest of judicial economy, I concur with the majority opinion.

      . Although proved at trial, the element of the ten-year cleansing period is not at issue.

      . Trial testimony, in fact, suggests the gun was working properly. Detective McMorris testified that after retrieving the gun from the defendant, he opened the gun and removed the four live rounds to make it safe. He also testified he brought the gun to the detective’s office, made it safe to where it could not be shot, and tagged and placed it into evidence. He further testified that he had been with the Sheriff’s Office for ten-and-a-half years and that with his law enforcement training in firearms, the bullets in the defendant’s gun looked like they were able to be fired.

      . The defendant would have to satisfy the requirements of LSA-C.Cr.P. art. 924, et seq., in order to receive such a hearing.

      . The minutes also reflect that no fine was imposed.


source: Caselaw Access Project

author: PETTIGREW, J.

license: Public Domain

text:
    Penny LABRANCHE v. FATTY’S, LLC.
    No. 2010 CA 0475.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 29, 2010.

      Laurie W. Maschek, Slidell, LA, for Plaintiff-Appellant Penny Labranche.
    John J. Rabalais, Covington, LA, for Defendant-Appellee Super Stop Enterprises.
    Before KUHN, PETTIGREW, JJ., and KLINE, J. pro tempore.

      . Judge William F. Kline, Jr., retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   PETTIGREW, J.

1 ¡/The primary issue presented in this appeal is whether defendant, Super Stop Enterprises, Inc. (“Super Stop”), was the statutory employer of claimant, Penny La-branche, at the time of her alleged work-related accident. Following a judgment granting Super Stop’s exception raising the objection of no right of action and dismissing Ms. Labranche’s claims, with prejudice, Ms. Labranche now appeals. For the reasons set forth below, we affirm.

FACTS AND PROCEDURAL , HISTORY

On April 23, 2009, Ms. Labranche was working in the course and scope of her employment with Fatty’s II, a restaurant providing food services on the premises of a truck stop owned by Super Stop. According to the record, Ms. Labranche was coming out of the kitchen when she slipped on a freshly mopped floor and injured her left shoulder. Ms. Labranche filed a disputed claim for compensation naming Fatty’s II as her direct employer and Super Stop as her statutory employer.

In response to Ms. Labranche’s claim, Super Stop filed an exception raising the objection of no right of action, alleging that there was no employment relationship between Ms. Labranche and Super Stop and that Ms. Labranche had no right to workers’ compensation benefits from Super Stop. The matter proceeded to hearing on December 18, 2009, at which time the workers’ compensation judge (“WCJ”) heard arguments from the parties and took the matter under advisement. After considering the applicable law and the evidence in the record, the WCJ rendered judgment on January 4, 2010, sustaining Super Stop’s no right of action exception and dismissing, with prejudice, Ms. La-branche’s claim against Super Stop. It is from this judgment that Ms. Labranche has appealed.

INAPPLICABLE LAW

No Right of Action

Generally an action can only be brought by a person having a real and actual interest that he asserts. La.Code Civ. P. art. 681. The objection of no right of action tests whether the plaintiff, who seeks relief, is a person in whose favor the law extends a remedy. Howard v. Administrators of Tulane Educational Fund, 2007-2224, p. 16 (La.7/1/08), 986 So.2d 47, 59. A peremptory exception pleading the objection of no right of action tests whether the plaintiff has any interest in judicially enforcing the right asserted. La.Code Civ. P. art. 927 A(6). The objection of no right of action assumes that the petition states a valid cause of action for some person and questions whether the plaintiff in the particular case is a member of the class that has a legal interest in the subject matter of the litigation. Red Stick Studio Development, L.L.C. v. State ex rel. Dept. of Economic Development, 2009-1349, p. 5 (La.App. 1 Cir. 4/8/10), 37 So.3d 1029, 1033. Whether a plaintiff has a right of action is a question of law. Therefore, it is reviewed de novo on appeal. To prevail, the defendant must show that the plaintiff does not possess an interest in the subject matter of the suit. Estate of Mayeaux v. Glover, 2008-2031, p. 5 (La.App. 1 Cir. 1/12/10), 31 So.3d 1090, 1093, wnt denied, 2010-0312 (La.4/16/10), 31 So.3d 1069.

Statutory Employer

The ultimate determination of whether a principal is a statutory employer entitled to immunity is a question of law for the court to decide. Fleming v. JE Merit Constructors, Inc., 2007-0926, p. 8 (La.App. 1 Cir. 3/19/08), 985 So.2d 141, 146. An employer seeking to avail itself of tort immunity bears the burden of proving its entitlement to immunity. Weber v. State, 93-0062, p. 5 (La.4/11/94), 635 So.2d 188, 191. Furthermore, immunity statutes must be strictly construed against the party claiming the immunity. Weber, 93-0062 at 8, 635 So.2d at 193.

Under the Louisiana Workers’ Compensation Act (“the Act”), an employer is liable for compensation benefits to an employee who is injured as a result of an accident arising out of and in the course of employment. La. R.S. 23:1031. Generally, the rights |4and remedies under the Act, La. R.S. 23:1021-1415, provide an employee’s exclusive remedy against the employer for such injury. La. R.S. 23:1032. The Act applies both to a direct employer/employee relationship, as well as to a statutory employer/employee relationship.

Specifically, La. R.S. 23:1061 A(l) provides that when a “ ‘principal’... undertakes to execute any work, which is a part of his trade, business, or occupation and contracts with any person, in this Section referred to as a ‘contractor’, for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal, as a statutory employer, shall be granted the exclusive remedy protections of R.S. 23:1032... .”

The doctrine of “statutory employer” codified in La. R.S. 23:1061, was amended in 1997 to provide that, except in the two-contract situation set forth in La. R.S. 23:1061 A(2), a statutory employer relationship “shall not exist ... unless there is a written contract between the principal and a contractor ... which recognizes the principal as a statutory employer.” La. R.S. 23:1061 A(3). It further provides that when there is such a written contractual recognition of the relationship, there shall be a rebuttable presumption of a statutory employer relationship between the principal and the contractor’s employees that may only be overcome by showing the work performed is not an integral part of or essential to the ability of the principal to generate that principal’s goods, products, or services. La. R.S. 23:1061 A(3).

In sum, there are two bases for finding statutory employment: first, when the principal is in the middle of two contracts, referred to as the “two-contract theory,” see La. R.S. 23:1061 A(2); and second, when there is a written contract recognizing the principal as the statutory employer, see La. R.S. 23:1061 A(3).

1 ¿DISCUSSION

In the instant case, Ms. Labranche argues the trial court erred in sustaining Super Stop’s no right of action exception and dismissing, with prejudice, Ms. La-branche’s claim against Super Stop. Ms. Labranche asserts that there is a written contract in this case; i.e., the commercial lease entered into by Super Stop and Fatty’s II, that establishes a principal/contractor relationship such that Super Stop is indebted to Ms. Labranche for her claim for workers’ compensation benefits. While acknowledging that the lease at issue does not use the terms “principal” and “contractor,” Ms. Labranche asserts this is not fatal to her claim as La. R.S. 23:1061 A(3) merely requires that the contract “recognizes the principal as a statutory employer.” Ms. Labranche maintains that the lease does, in fact, establish and recognize Super Stop as Ms. Labranche’s statutory employer, and, thus, La. R.S. 23:1061 mandates that Super Stop shall provide workers’ compensation benefits to Ms. La-branche.

Citing the general rules of contract interpretation (La. Civ. Code arts. 2045-2057) and maintaining that the words of the lease are clear and explicit, Ms. Labranche highlights sections of the lease as support for her position that Super Stop should be recognized as her statutory employer. Specifically, Ms. Labranche points to sections 8 and 9 of the lease, which provide as follows:

8. OPERATIONS. Lessee must be open for business for 24 hours per day for the first ninety days of its operations. Thereafter, any change in hours may not be made without the written consent of Lessor. Lessee must also maintain and operate the Premises in a clean and orderly manner, in accordance with Section 12 herein [MAINTENANCE AND REPAIR], and must serve food and provide customer service to Lessor’s satisfaction. Failure of Lessee to comply with these requirements, or any related written requests, shall permit Lessor to terminate this contract with three-days written notice.
9. VIDEO POKER OPERATIONS. Lessee must abide by and comply with all provisions of the law and regulations that govern video gaming contained in LSA-R.S. 27:301 et seq. and the Louisiana Administrative Code, Title 42:Part XI¡Section 2401 et seq., and any subsequent amendments thereto.
Lessee must also provide such information and documentation and perform such acts as are required by the Video Draw Poker Devices Control Law, LSA-R.S. 27:301 et seq., and all rules and regulations promulgated pursuant thereto, necessary for the video poker licensee to procure and maintain a Type V video draw poker qualified truck stop facility license to permit the placement of video draw poker devices in the premises.
1 fiLessee further acknowledges and agrees that, for purposes of compliance with the video gaming law at LSA-R.S. 27:306.A(5)(a), and in order to permit the continued operation of video gaming devices upon the premises of the truck stop facility, Lessor does hereby reserve and shall have ultimate authority, supervision and control over the entire premises of the truck stop facility, including the leased premises, as would be required to satisfy any and all regulatory obligations for the continued operation of the truck stop facility and the video gaming devices located thereon, including the right to terminate this Lease upon the disapproval of the Louisiana Gaming Control Board of this Lease, or upon the disapproval of this Lease by any other regulatory agency which requires said approval.

Based on these two sections of the lease, Ms. Labranche argues in brief to this court that “Super Stop had ultimate authority, supervision and control of Fatty’s II, and that Fatty’s II was contracting to provide food services as required by Super Stop and to Super Stop’s satisfaction.” Ms. Labranche continues, noting that there is no ambiguity in the lease and that the “lease’s plain meaning establishes that Super Stop is the principal and Fatty’s II is a contractor to provide food services which is essential to Super Stop’s trade, business or occupation of operating a truck stop.”

After a thorough review of the record, we find Ms. Labranche’s argument to be without merit. There is simply nothing in the commercial lease between Super Stop and Fatty’s II that serves to establish a principal/contractor relationship such that Super Stop would be recognized as Ms. Labranche’s statutory employer. Rather, the lease establishes nothing more than a lessor/lessee relationship between Super Stop and Fatty’s II. Accordingly, the WO did not err in sustaining Super Stop’s no right of action exception and dismissing, with prejudice, Ms. Labranche’s claims. Based on the unique facts and circumstances herein, Ms. Labranche clearly had no interest in judicially enforcing the right asserted against Super Stop. See La.Code Civ. P. art. 927 A(6).

CONCLUSION

For the above and foregoing reasons, we affirm the January 4, 2010 judgment and assess all appeal costs against Penny La-branche.

AFFIRMED.

J. KLINE, concurs.

      . Ms. Labranche originally named Ten-G, L.L.C./DBA Reserve Truck Stop ("Ten-G”) as her statutory employer but later amended her claim to substitute Super Stop as her statutory employer. Ms. Labranche subsequently filed a motion for partial dismissal concerning her claim against Ten-G, and an order dismissing said claim, without prejudice, was signed on October 29, 2009.

      .The only evidence introduced into the record of this matter was a commercial lease dated October 31, 2008, entered into between Super Stop and Fatty’s II concerning the terms and conditions under which Fatty’s II would operate its restaurant within Super Stop's premises.

      . Under La. R.S. 23:1061 A(l), "work shall be considered part of the principal's trade, business, or occupation if it is an integral part of or essential to the ability of the principal to generate that individual principal's goods, products, or services.”


author: HUGHES, J.

text:
    Malcolm THOMAS v. Randall HODGES and State Farm Mutual Automobile Insurance Company. Larry Grant, Lisa Dunn Thomas, and LaFaye Dunn v. Randall Hodges and State Farm Mutual Automobile Insurance Company.
    Nos. 2010 CA 0678, 2010 CA 0679.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 29, 2010.

      Walter C. Dumas, Travis J. Turner, Baton Rouge, LA, for Plaintiffs/First Appellants, Larry Grant, Lisa Dunn Thomas, and LaFaye Dunn.
    Terry L. Bonnie, Baton Rouge, for Plaintiff/Second Appellant, Malcolm Thomas.
    Harold J. Adkins, Baton Rouge, LA, for Defendants/Appellees, Randall Hodges and State Farm Mutual Automobile Ins. Co.
    John T. Roethele, Denham Springs, LA, for Defendant/Appellee, State Farm Mutual Automobile Ins. Co.
    Before PARRO, GUIDRY, and HUGHES, JJ.
   HUGHES, J.

| sThis is an appeal from a summary judgment dismissing the alleged tortfeasor and his insurance company (also named as a defendant as the other driver’s uninsured/underinsured motorist carrier) in this automobile accident case. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On October 25, 2003 a vehicular collision occurred on Louisiana Highway 67, north of Clinton, Louisiana, between a 1990 Chevrolet pick-up truck driven by Fred Dunn, Jr., and a flat-bed tandem axle trailer being pulled by a 2000 Chevrolet pickup truck driven by Randall Hodges. After colliding with the Hodges trailer, the Dunn pick-up truck then struck, head-on, a 1998 Chevrolet pick-up driven by Brian Keith Yarborough. Mr. Dunn was killed in the accident, and both Mr. Yarborough and a passenger in Mr. Dunn’s vehicle, Malcolm Thomas, were injured.

In October of 2004 both Mr. Thomas and the heirs of Mr. Dunn brought separate suits against Mr. Hodges and his insurer, State Farm Mutual Automobile Insurance Company (“State Farm”), claiming that the accident was caused by Mr. Hodges’ trailer crossing into Mr. Dunn’s lane of travel. State Farm was also named as a defendant in its capacity as the uninsured/underinsured motorist carrier for Mr. Dunn.

These suits were consolidated for trial in the district court. Subsequently, Mr. Hodges and State Farm filed motions for summary judgment contending that all the evidence that had been submitted showed that Mr. Hodges was lawfully traveling in his own lane when Mr. Dunn caused the accident by driving across the centerline and that the plaintiffs were unable to prove any negligence or fault on the part of Mr. Hodges that contributed to the accident.

14After a November 4, 2009 hearing on the motions for summary judgment, the trial court rendered judgment in favor of the defendants, dismissing the plaintiffs’ consolidated suits. Plaintiffs have appealed, asserting that the trial court erred in granting summary judgment, as material issues of fact remain unresolved in the case.

LAW AND ANALYSIS

The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by LSA-C.C.P. art. 969; the procedure is favored and shall be construed to accomplish these ends. LSA-C.C.P. art. 966(A)(2). Summary judgment shall be rendered in favor of the mover 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. LSA-C.C.P. art. 966(B).

Appellate courts review summary judgments de novo under the same criteria that govern a district court’s consideration of whether summary judgment is appropriate. Samaha v. Rau, 2007-1726, pp. 3-4 (La.2/26/08), 977 So.2d 880, 882; Allen v. State ex rel. Ernest N. Morial-New Orleans Exhibition Hall Authority, 2002-1072, p. 5 (La.4/9/03), 842 So.2d 373, 377; Boudreaux v. Vankerkhove, 2007-2555, p. 5 (La.App. 1 Cir. 8/11/08), 993 So.2d 725, 729-30.

In ruling on a motion for summary judgment, the judge’s role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. All doubts should be resolved in the non-moving party’s favor. Hines v. Garett, 2004-0806, p. 1 (La.6/25/04), 876 So.2d 764, 765.

1¡;A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Id., 2004-0806 at p. 1, 876 So.2d at 765-66.

On motion for summary judgment, the burden of proof remains with the movant. However, if the moving party will not bear the burden of proof on the issue at trial and points out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense, then the non-moving party must produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the opponent of the motion fails to do so, there is no genuine issue of material fact and summary judgment will be granted. See LSA-C.C.P. art. 966(C)(2).

When a motion for summary judgment is made and supported as provided in LSA-C.C.P. art. 967, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him. LSA-C.C.P. art. 967(B). See also Board of Supervisors of Louisiana State University v. Louisiana Agricultural Finance Authority, 2007-0107, p. 9 (La.App. 1 Cir. 2/8/08), 984 So.2d 72, 79-80; Cressionnie v. Intrepid, Inc., 2003-1714, p. 3 (La.App. 1 Cir. 5/14/04), 879 So.2d 736, 738.

In the instant case, the plaintiffs’ pleadings allege the accident was caused by Mr. Hodges, in negligently allowing the trailer he was pulling | fiwith his truck to cross the centerline. Plaintiffs also argue that Randall Hodges was further negligent in allowing a four-wheeler to become loose and fall off his trailer into Mr. Dunn’s lane of travel. Conversely, the defendants produced affidavit and deposition testimony showing that Mr. Hodges was not transporting a four-wheeler, that his trailer was empty prior to the accident, and that he did not drive his vehicle or trailer into Mr. Dunn’s lane of travel.

Randall Hodges testified by affidavit and deposition that immediately prior to the accident he was traveling southbound on Highway 67, with passengers Cody Hodges, his son, and Lane Hodges, his nephew. Mr. Hodges testified that he was pulling an empty flat-bed trailer behind his truck. Mr. Hodges further stated that he was following a pick-up truck driven by his brother, Rodney Hodges (Lane’s father), and that he, in turn, was followed by his friend, Brian Keith Yarborough, driving a third pick-up. Neither Rodney Hodges nor Mr. Yarborough had passengers in their vehicles. Rodney was also towing a trailer behind his truck and Mr. Yarbor-ough had a four-wheeler in the bed of his truck.

Mr. Hodges further testified that he and his companions were en route back to their respective homes in the Baton Rouge area, after spending the day at a hunting camp in Mississippi. Mr. Hodges stated that although he had used the trailer he was towing to haul a tractor earlier that day, he had left the tractor in Mississippi. He further said that they were going to stop at a Mr. Hooge’s barn near Clinton to store the trailer Rodney Hodges was pulling. Mr. Hodges testified that his brother, Rodney, had already made the turn into the driveway leading to Mr. Hooge’s barn, when he saw the Dunn truck swerving into his lane. Mr. Hodges had already slowed his vehicle and activated his turn signal in preparation for turning into the driveway, which 17he said was about 100 yards away, and upon seeing the Dunn vehicle swerve into his lane, he began to pull onto the shoulder of the road in an attempt to avoid an accident. According to Mr. Hodges, Mr. Dunn’s truck “clipped” the left rear section of his trailer and then went on to collide head-on with Mr. Yarborough’s truck, which was behind him.

The testimony of Brian Keith Yarbor-ough, Cody Hodges, and Lane Hodges reiterated and confirmed the testimony of Randall Hodges. Rodney Hodges did not witness the accident itself, but testified that after the accident he saw all of the vehicles resting in the southbound lane or on the southbound shoulder. Mr. Yarbor-ough further testified that he had a four-wheeler strapped down in the bed of his truck but that the impact of Mr. Dunn’s truck caused the straps to break, and the four-wheeler was thrown out onto the highway.

While Malcolm Thomas initially gave a March 6, 2007 affidavit indicating that the •Hodges trailer had crossed into Mr. Dunn’s lane, causing the accident, and that Mr. Dunn did not cross into the southbound lane until after he was struck by the trailer, he later withdrew these assertions in deposition testimony. In Mr. Thomas’s subsequent deposition testimony, he admitted that he never saw either Randall Hodges’ truck or trailer come into his lane before the accident. Mr. Thomas testified that immediately before the accident he heard “something hit the truck” on what he thought was the right side. Mr. Thomas stated that he turned his head to the right to look for the source of the noise, and then when he turned his head back toward Mr. Dunn, he saw headlights and “that was it.” At that point, he lost consciousness. Mr. Thomas testified that the impact occurred in the southbound (Mr. Hodges’) lane of travel.

|sThe investigating officer for the accident, Louisiana State Trooper Joe Billingsly, testified by depositions taken on June 7, 2005 and March 11, 2009. He identified the accident report he prepared regarding the instant accident, and the report was attached as an exhibit to his March 2009 deposition. Based on the statements of the witnesses, the position of the vehicles after the accident, and physical markings on the roadway, Trooper Billingsly concluded that the accident occurred when Mr. Dunn’s vehicle crossed the centerline and struck the other two vehicles in their lane of travel. Trooper Billingsly also concluded that both Mr. Hodges and Mr. Yar-borough were engaging in “normal movement” immediately prior to the accident. Trooper Billingsly further testified that both Mr. Hodges and a blood sample from Mr. Dunn were subjected to blood alcohol testing, and that the results of the blood alcohol testing showed blood alcohol levels of 0.0% for Mr. Hodges and 0.17% for Mr. Dunn.

In support of their contention that Mr. Hodges caused the accident, plaintiffs submitted the deposition testimony of Irma Dyer, who resided near the accident site at the time of the accident. Early in her deposition, Ms. Dyer stated: “A four-wheeler had fell [sic] off the back of some hunter’s truck, and [Fred Dunn] was trying to dodge it, and he got hit head-on.” Upon further questioning, it became clear that Ms. Dyer was inside her house at the time of the accident and did not see the collision. Ms. Dyer admitted that she was merely repeating remarks she had heard from unidentified person(s) present at the accident scene during the subsequent investigation.

Trooper Billingsly testified that he made an inquiry of persons present at the accident scene as to whether anyone had been a witness to the |9accident. He further testified that, aside from the Hodgeses, Mr. Yarborough, and Mr. Thomas, there were no other witnesses.

The plaintiffs further rely on the testimony of accident reconstruction expert, Michael S. Gillen. Mr. Gillen was provided with the statements and depositions that had been taken prior to his review of the accident, along with the accident report (including accident scene photographs) prepared by Trooper Billingsly. Although Mr. Gillen was not hired to reconstruct the accident, after reviewing the documents provided to him, he stated that it was equally likely for the accident to have occurred in either lane.

In their appellate brief, the plaintiffs also point to the testimony of Lane Hodges, apparently in an attempt to show a remaining question of fact as to whether Randall Hodges did, contrary to defense testimony, have a four-wheeler on his trailer prior to the accident. The plaintiffs’ appellate brief states the following:

Lane Hodges testified as to two (2) 4-wheelers. He testified that his dad, Randall Hodges, and Keith (Keith Yar-borough) each had a 4-wheeler.... His dad’s 4-wheeler was in the back of his truck and Keith’s (Keith Yarborough) 4-wheeler was in the bed of his truck.... Lane Hodges testified they were going to drop off the 4-wheeler in his dad’s truck on the Hooge’s [sic] property. [Emphasis added.]

However, plaintiffs have confused the two Hodges brothers in their argument. Lane Hodges’ testimony actually reflects that Randall Hodges was his uncle, while Rodney Hodges was his father; facts which were also testified to by both Rodney and Randall Hodges. Although Lane Hodges gave testimony indicating that his father, Rodney Hodges, may also have been transporting a second four-wheeler in his truck, none of the other | ^witnesses were asked about this fact and since Rodney’s truck was not involved in the instant accident, it is not relevant to this inquiry.

In this same vein, the plaintiffs/appellants further point to the fact that Randall Hodges was questioned by the investigating law enforcement officers at the accident scene about whether he had a four-wheeler on his trailer, directing this court’s attention to the photograph of a four-wheeler at the accident scene introduced into evidence. However, Trooper Billingsly concluded that, at the time of the accident, Randall Hodges’ trailer was empty and that the four-wheeler found at the scene was thrown from the back of Mr. Yarborough’s truck, coming to rest just off of the southbound shoulder.

Next, in brief to this court, plaintiffs/appellants attempt to raise as a question of fact some discrepancies in the testimony of the Hodges/Yarborough witnesses concerning their activities at their Mississippi hunting camp during the day leading up to the accident at issue. Plaintiffs/appellants point out that “Randall Hodges[ ] testified he went to Mississippi for bow hunting and to drop off equipment.... However, Keith Yarborough testified ... Randall Hodges[ ] went to Mississippi to plant food plots for deer.” Our review of the depositions at issue reveals that the questioning during the taking of the depositions did not focus on obtaining an exhaustive list of the activities engaged in by Mr. Hodges and his companions at their hunting camp, which may explain any differences in the witnesses’ statements. Moreover, these activities were not shown to have any relevance to the vehicular accident occurring later in the day.

Plaintiffs/appellants also, in brief to this court, place some emphasis on the activities of Mr. Dunn and Mr. Thomas prior to their arrival at the accident site. In particular, the plaintiffs/appellants recite deposition lutestimony in the record of Mr. Thomas and reference the affidavit of Lillie Matthews, wherein these witnesses state that they did not see Mr. Dunn drink alcoholic beverages when in their company during the time leading up to the accident. Nonetheless, just because these witnesses did not see Mr. Dunn consume alcoholic beverages on the day of the accident does not mean that he did not do so. Moreover, direct evidence established that Mr. Dunn’s blood alcohol level was 0.17 %.

In their appellate brief, the plaintiffs/appellants further enumerate as genuine issues of fact the following: in addition to Trooper Billingsly, four other troopers were involved in the accident investigation; the accident report indicates Acadian Ambulance arrived at 19:42 (7:42 p.m.); the accident report indicates that Trooper Bill-ingsly arrived at 20:29 (8:29 p.m.); photographs taken at the scene showed Acadian Ambulance paramedics performing CPR on Mr. Dunn but “miraculously the radio remote Mr. Dunn allegedly had in his hand at the time of the accident did not fall out of his hand;” and that Trooper Billingsley testified that he witnessed the coroner draw a post-mortem blood sample from Mr. Dunn but that “[t]his procedure likewise did not cause the remote to fall out of Mr. Dunn’s hand.” Nevertheless, the plaintiffs/appellants fail to state what significance should be attached to these facts, nor is it immediately apparent that these facts were contested or what other evidence in the record conflicts with this evidence.

| ^Furthermore, the plaintiffs/appellants emphasize the fact that accident recon-structionist Michael Gillen questioned whether a “gouge” mark, noted by Trooper Billingsly as having been made in the roadway following the collision of the vehicles involved in the accident, was in fact related to the accident. In his deposition testimony, Mr. Gillen cited the roadway construction in the area of the accident and particularly the fact that the surface of the roadway had been “scarified,” the top layer having been mechanically scraped off, as making it difficult to determine whether the gouge marks pre-existed or were caused by the accident. Mr. Gillen admitted that he did not personally examine the surface of the roadway, though he did drive through the area, and he acknowledged that the roadway has since been resurfaced, eliminating all evidence. More importantly, Mr. Gillen unequivocally stated that he could not reach a conclusion as to which lane the accident occurred in. At most, Mr. Gillen’s testimony would result in discounting the gouge mark as evidence in resolving the issues before the court on motion for summary judgment. Nevertheless, the remaining uncontrovert-ed testimony still places the accident in Randall Hodges’ lane, with no affirmative evidence having been produced • to show any fault on his part in causing the accident.

|lsAs pointed out hereinabove, when a motion for summary judgment is made and supported as provided in LSA-C.C.P. art. 967, an adverse party may not rest on the mere allegations or denials but must respond with affirmative evidence. Plaintiffs have failed to meet their burden to show any fault on the part of Randall Hodges in the instant accident. Therefore, we find no error in the trial court’s grant of summary judgment in this case.

CONCLUSION

For the reasons assigned herein, the summary judgment granted by the trial court in favor of Randall Hodges and State Farm Mutual Automobile Insurance Company, in both capacities, is hereby affirmed. All costs of this appeal are to be borne by plaintiffs/appellants, Malcolm Thomas, Larry Grant, Lisa Dunn Thomas, and LaFaye Dunn.

AFFIRMED.

      . While Mr. Gillen stated in his deposition testimony that there were some sixty police photographs taken in conjunction with the accident investigation, only about ten of these photographs were filed into the record, annexed to the various depositions.

      . The affidavit of Lillie Matthews states that she is the mother of LaFaye Dunn, one of Fred Dunn's children, that Mr. Dunn and Mr. Thomas were at her home at about 5:00 p.m. on the day of the accident, that she offered Mr. Dunn a beer, but that he did not accept the beer or drink any other alcoholic beverages at her home. Ms. Matthews further averred that she had been in Mr. Dunn’s presence over the course of twenty-two years "on many occasions” when he had consumed alcohol, and that Mr. Dunn did not display any of "his ways and/or actions after he consumed alcohol” on the date of the accident.

      . This photograph does not appear in the record on appeal.

      . We note that Mr. Gillen, in his first deposition, noted a discrepancy in Trooper Billingsly’s accident report, in that on the legend for the diagrams of the accident scene, he indicated that the reference point and line for his measurements was the fog line, while on the diagram an arrow was drawn to the edge of the roadway and marked as the reference line. However, subsequent to Mr. Gillen’s first deposition, Trooper Billingsly was informed of the discrepancy by one of the attorneys involved in the case. After receiving this information, Trooper Billingsly testified in his 2009 deposition that he reviewed his accident report and the photographs he had taken of the accident scene and realized he had made a mistake in the legend, in that he had mistakenly labeled the reference point and line as the fog line when he should have labeled it as the edge of the road, as indicated on the actual diagrams attached to the report. Trooper Billingsly then completed a narrative supplement to the original accident report, clarifying that rather than stating that the reference point and line used was the fog line, the accident report legend should have stated that the reference point and line used was the roadway edge. We conclude that the discrepancy recognized by Mr. Gillen was thus resolved by the supplement to the accident report, along with Trooper Billingsly’s testimony; therefore, we conclude that no question of material fact remains as to this issue; particularly as plaintiffs have produced no evidence to contradict the trooper’s testimony.

      . We note that in this case, not only were the plaintiffs unable to show fault on the part of defendant Randall Hodges, but they also had the burden to justify Mr. Dunn’s movement outside his lane of travel, which they likewise failed to do. Under LSA-R.S. 32:79, the driver on a roadway laned for traffic must drive as nearly as practicable entirely within a single lane and must not move from that lane until he or she has first ascertained such movement can be made with safety. When a collision occurs between two vehicles, one of which is in the wrong lane of travel, there is a presumption that the driver in the wrong lane was negligent, and the burden is on him to show that the collision was not caused by his negligence. Hano v. Louisiana Department of Transportation and Development, 519 So.2d 796, 798 (La.App. 1 Cir.1987), writ denied. 523 So.2d 861 (La.1988) (citing Simon v. Ford Motor Company, 282 So.2d 126, 128 (La.1973); Jones v. Continental Casualty Company of Chicago, Illinois, 246 La. 921, 942-43, 169 So.2d 50, 57 (1964)). See also Gatlin v. Kleinheitz, 2009-0828, p. 6 (La.App. 1 Cir. 12/23/09), 34 So.3d 872, 875, writ denied, 2010-0084 (La.2/26/10), 28 So.3d 280.


author: KUHN, J.

text:
    Gordon Lawrence Obo Dominique LAWRENCE v. OUR LADY OF THE LAKE HOSPITAL and Dr. Frierson.
    No. 2010 CA 0849.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 29, 2010.

      Terry L. Bonnie, Baton Rouge, LA, for Plaintiff-Appellant Gordon Lawrence on behalf of Dominique Lawrence.
    Douglas K. Williams, Chris D. Billings, Baton Rouge, LA, for Defendant-Appellee Our Lady of the Lake Hospital d/b/a Our Lady of the Lake Regional Medical Center.
    Herbert J. Mang, Jr., Tara S. Bourgeois, Baton Rouge, LA, for Defendant-Appellee Dr. Michael A. Frierson.
    Before KUHN, PETTIGREW, and KLINE, JJ.

      . The Honorable William F. Kline, Jr. is serving pro tempore by special appointment of the Louisiana Supreme Court.

   KUHN, J.

12Plaintiff-app ellant, Gordon Lawrence, on behalf of the minor child, Dominique, appeals the district court’s judgment, sustaining peremptory exceptions raising the objection of prescription filed by defendant-appellees, Our Lady of the Lake Hospital, Inc., doing business as Our Lady of the Lake Regional Medical Center (OLOL), and Dr. Michael Frierson. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Dominique, a minor, developed scoliosis at a young age. On May 31, 2004, Dominique underwent a posterior spinal fusion that was performed by Dr. Frierson at OLOL. The surgery involved the placement of instrumentation including pedicle screws. Nearly two years later, in February 2006, Dominique developed itching and discoloration over the lower portion of the surgical site. Dr. Frierson examined her and determined an abscess had developed. Dr. Frierson described it as “a fluctuant area over her lower back in the midline over the incision.” On February 5, 2006, Dominique was admitted to OLOL for treatment by Dr. Frierson, which included incising and draining the abscess.

The OLOL discharge summary stated that subsequent to the incision and draining of the abscess area over Dominique’s spine, her wound “was draining minimal-to-moderate amounts,” and “had been loosely approximated with retention sutures.” The summary indicated, “[t]he family grew increasingly irritated by her hospital stay and the care that they received” and “left against | ^medical advice.” OLOL records indicate that the family-wanted Dominique to receive medical treatment from Texas Children’s Hospital in Houston (TCH).

On January 30, 2009, Mr. Lawrence filed a petition to impanel a medical review panel, naming as defendants, OLOL and Dr. Frierson. The allegations state that Dr. Frierson performed surgery on Dominique to correct spinal complications and failed to diagnose, used surgical utensils that were not sanitary, performed the surgery at the wrong site, and used the wrong hardware. Thus, he averred, a medical malpractice had occurred.

The Patient’s Compensation Fund (PCF), Medical Malpractice Compliance Director subsequently contacted Mr. Lawrence and advised of the failure of his petition to provide the dates of the alleged malpractice. Mr. Lawrence responded with a letter, which stated:

Date of Release: [OLOL] 2/12/2007
Date of Admission: [TCH] 2/12/2007
Released from Doctor’s Care to Start Rehabilitation 10/19/2007[.]

On February 16, 2009, Mr. Lawrence filed a subsequent petition with the PCF. The petition averred:

Specimens Found Left Behind in Patient and Abstracted: The Chief of Staff of [TCH], Dr. William A. Phillips MD, performed the emergency surgery.
1. One Lamina Hook
2. One Additional Screw Cap
J/SPECIAL NOTE: ALL IMPLANTS WERE REMOVE (sic) INCLUDING TWO RODS, (15) SCREWS. AND 15 SCREW CAP[J

Mr. Lawrence also alleged that the “method of treating the infection was not effective.”

On August 13, 2009, OLOL and Dr. Fri-erson filed a motion to assign a suit number to the malpractice claim Mr. Lawrence had filed with the PCF. Each defendant subsequently filed peremptory exceptions raising the objection of prescription. After a hearing on January 11, 2010, the district court sustained the exceptions and dismissed Mr. Lawrence’s claims against OLOL and Dr. Frierson. A judgment in conformity with the district court’s ruling was signed on April 14, 2010. This appeal followed.

Mr. Lawrence contends that the district court erred in concluding that he failed to file suit on behalf of Dominique within one year from the date of discovery of the alleged malpractice.

DISCUSSION

La. R.S. 9:5628 addresses actions for medical malpractice, providing in relevant part:

A. No action for damages for injury or death against any physician [or] hospital ... whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect; however, even as to claims 'filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect.
B. The provisions of this Section shall apply to all persons whether or not infirm or under disability of any kind and including minors and interdicts.

|sThis statute sets forth two prescriptive limits within which to bring a medical malpractice action, namely one year from the date of the alleged act or one year from the date of discovery. La. R.S. 9:5628 corresponds with the basic one year prescriptive period for delictual actions provided in La. C.C. art. 3492, but it additionally embodies the discovery rule delineated as the fourth category of the jurisprudential doctrine of contra non valentem (“within one year from the date of the alleged act, omission or neglect, or within one year from the date of discovery of the alleged act, omission or neglect”), with the single qualification that the discovery rule is expressly made inapplicable after three years from the act, omission or neglect. See Campo v. Correa, 2001-2707, p. 9 (La.6/21/02), 828 So.2d 502, 509. Both the one-year and three-year limitation periods of La. R.S. 9:5628 are prescriptive. Borel v. Young, 2007-0419, p. 29 (La.11/27/07), 989 So.2d 42, 69.

Burden of Proof

Ordinarily, the exceptor bears the burden of proof at the trial of the peremptory exception. If, however, the action is prescribed on its face, the patient bears the burden of showing that the action has not prescribed. Bosarge v. DePaul/Tulane Behavioral Health Ctr., 2009-1345, p. 3 (La.App. 4th Cir.5/19/10), 39 So.3d 790, 793; accord Vaughn v. City of Baton Rouge, 2009-0930, p. 3 (La.App. 1st Cir.5/26/10), 39 So.3d 799, 800. On the trial of the prescription exception pleaded at or prior to the trial of the case, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition. La. C.C.P. art. 931. The general rule regarding the exceptor’s burden of proof is that a petition should not be found prescribed on its |fiface if it is brought within one year of the date of discovery and facts alleged with particularly in the petition show that the patient was unaware of the malpractice prior to the alleged date of discovery, and the delay in filing suit was not due to willful, negligent, or unreasonable action of the patient. Campo, 2001-2707 at p. 9, 828 So.2d at 509; Holmes v. LSU/E. A. Conway Med. Ctr., 43,662, pp. 5-6 (La.App.2d Cir.10/22/08), 997 So.2d 605, 609-10.

We initially note that this matter is before the district court on defendants’ exceptions, filed pursuant to defendants’ motion to assign a suit number, prior to the completion of the review process by the medical review panel. See La. R.S. 40:1299.47(B)(2)(a) of the Medical Malpractice Act (MMA) (allowing a health care provider against whom a claim has been filed before a medical review panel to raise the exception of prescription in a court of competent jurisdiction and proper venue at any time without need for completion of the review process by the medical review panel). When met with an exception of prescription filed in district court during a pending medical panel review under the MMA, the plaintiff is required to prove the defense of contra non valentem as allowed under La. R.S. 9:5628. Holmes, 43,662 at p. 9, 997 So.2d at 611.

Outstanding Motions Filed on Appeal

In support of the contra non valen-tem defense, on appeal, Mr. Lawrence asks this court to consider his and Dominique’s affidavit, which was filed into the record prior to the hearing on the exception attached to his memorandum opposing the exceptions of prescription. Because the appellate record did not include these items, Mr. Lawrence filed with this court a motion to supplement the record, which was opposed by OLOL and Dr. Frierson. Additionally, OLOL filed a 17motion to supplement the appellate record with the transcript of the January 11, 2010 hearing on the prescription exceptions. Because on appeal the record “shall be a transcript of all the proceedings,” see La. C.C.P. art. 2128, we have ordered the supplementation of the record with the January 11, 2010 transcript on our own motion. Thus, we deny as moot, OLOL’s motion to supplement the record.

At the hearing, Mr. Lawrence attempted to have the affidavit placed into evidence. OLOL objected asserting that the affidavit was not competent evidence in response to an exception. The district court judge specifically asked Mr. Lawrence’s attorney, “But the affidavit is of your client who is here today in court, correct?” And the attorney responded, “Yes, sir, one of them.” The district court then sustained the objection to the admission of the affidavit into evidence.

At the conclusion of the hearing, which consisted of the admission of evidence by each of the defendants and the argument of counsel, the district court judge expressly asked, “Does anyone want to be heard?” Mr. Lawrence did not respond. The district court judge then noted “that it did not receive a written copy of the plaintiffs memorandum in opposition to the exceptions,” to which counsel for Mr. Lawrence stated, “We filed it, judge.” The district court judge stated that he would take the matter under advisement and review the memorandum in opposition in making his decision.

Since the record on appeal “shall be ... all documents filed in the [district] court,” see La. C.C.P. art. 2128, and because the judge considered the opposition memorandum in making his ruling, the motion to supplement the record with the memorandum, which apparently attached the affidavit, is granted. Nevertheless, the contents of the affidavit are hearsay evidence and, as such, the district court |8correctly concluded the affidavit was inadmissible. See Bd. of Commissioners of Port of New Orleans v. Louisiana Comm’n on Ethics for Pub. Employees, 416 So.2d 231, 238-39 (La.App. 1st Cir.), writ denied, 421 So.2d 248 (La.1982).

Propriety of the District Court’s Ruling on the Merits

As we have already noted, it was Mr. Lawrence’s burden of proof to show that the defense of contra non valentem interrupted or suspended prescription of Dominique’s medical malpractice claim. We have also concluded that the district court correctly determined that the affidavit of Mr. Lawrence and Dominique was inadmissible. Insofar as the allegations of the petition that Mr. Lawrence filed to impanel the medical review panel, those assertions addressing alleged malpractice as a result of the May 31, 2004 surgery are clearly prescribed, having been filed in excess of three years from the date of the alleged usage of surgical utensils that were not sanitary, performance of the surgery at the wrong site, and usage of the wrong hardware, including one lamina hook and one additional screw cap as averred in the February 16, 2009 amended petition he filed with the medical review panel.

Although the contents of the affidavit are inadmissible, because Mr. Lawrence’s medical malpractice claim is still pending with the medical review panel and he has not had the opportunity to file a petition in district court, we are limited to the vague allegations of the defense of contra non valentem contained in his petition invoking a medical review panel, for which he was required merely to set forth, among other things, a brief description of the alleged malpractice as to each named defendant health care provider and a brief description of the alleged injuries. See La. R.S. 40:1299.47 A(l )(b)(vi) and (vii). And while his counsel | nchose not to put on testimony from his client, in his original and amended petition filed under the MMA, Mr. Lawrence contended that Dr. Frierson “failed to diagnose” and that “the method of treating the infection was not effective.” In response to the request for dates of the alleged malpractice by the PCF, Mr. Lawrence provided February 12, 2007, as the date of release from OLOL. These allegations alone do not establish a basis for finding that the MMA petition, filed on January 80, 2009, was timely under La. R.S. 9:5628.

Even if we were to consider the assertions contained in Mr. Lawrence’s appellate brief, see Holmes, 43,662 at pp. 8-9, 997 So.2d at 611, we would reach the same result. In support of his defense of contra non valentem, Mr. Lawrence admits that he knew something was wrong as early as mid-2006, when symptoms of infection developed. He urges, however, that the defendants informed him that the infection was from a source other than the hardware and suggests that the inaccurate diagnosis continued until February 12, 2007, when Dominique was transferred to TCH. Mr. Lawrence asks this court to conclude that it was “[i]n late 2008 and 2009 that the plaintiff discovered that she had become disabled and would continue to be disabled.”

Prescription commences when a plaintiff obtains actual or constructive knowledge of facts indicating to a reasonable person that he or she is the victim of a tort. Constructive knowledge is whatever notice is enough to excite attention and put the injured party on guard and call for inquiry. Such notice is tantamount |into knowledge or notice of everything to which a reasonable inquiry may lead. Campo, 2001-2707 at pp. 11-12, 828 So.2d at 510-11; Med. Review Panel Proceeding of Williams v. Lewis, 2008-2228, p. 5 (La.App. 1st Cir.5/13/09), 17 So.3d 26, 29.

A medical malpractice plaintiffs mere apprehension that something may be wrong is insufficient for prescription to begin running; rather, the plaintiffs knowledge must rise to the level of constructive knowledge, i.e., the plaintiff either knew or should have known through the exercise of reasonable diligence that his or her problem may have been caused by an act of malpractice. Prescription will not run if it was reasonable for the medical malpractice plaintiff not to recognize that the condition might be related to the treatment. Campo, 2001-2707 at p. 12, 828 So.2d at 511; Med. Review Panel Proceeding of Williams, 2008-2223 at p. 5, 17 So.3d at 29.

In rendering its ruling, the district court judge stated, “it appears that plaintiffs claims have prescribed.” Whether we interpret this as a factual determination that Mr. Lawrence knew or should have known through the exercise of reasonable diligence that his problem may have been caused by an act of malpractice or as a conclusion that Mr. Lawrence failed his burden of proving that he filed his suit within one year from the date of discovery of the alleged malpractice, we find no error. When prescription is raised by a peremptory exception, with evidence introduced at a hearing, the district court’s finding of fact on the issue of prescription is subject to the manifest error standard of review. TIG Ins. Co. v. Louisiana Workers’ Comp. Corp., 2009-0330, p. 3 (La.App. 1st Cir.9/11/09), 22 So.3d 981, 983. In his appellate brief, Mr. Lawrence states that 1 n after entering TCH on February 12, 2007, he learned that the hardware should be removed. An implicit finding by the district court that this was enough to excite Mr. Lawrence’s attention and put him on guard and call for inquiry is not manifestly erroneous or clearly wrong. As such, Mr. Lawrence had notice tantamount to knowledge or notice of everything to which a reasonable inquiry may lead, including of the alleged failure of Dr. Frierson to diagnose and the allegedly ineffective method of treating the infection, ostensibly by both OLOL and Dr. Frierson. Thus, we may not reverse the district court’s ruling.

DECREE

For these reasons, the district court judgment sustaining the peremptory exception raising the objection of prescription filed by OLOL and Dr. Frierson is affirmed. Appeal costs are assessed against plaintiff-appellant, Gordon Lawrence.

MOTION TO SUPPLEMENT WITH TRANSCRIPT DENIED AS MOOT; MOTION TO SUPPLEMENT WITH OPPOSITION MEMORANDUM GRANTED; JUDGMENT AFFIRMED.

      . The record does not establish the relationship of Mr. Lawrence to Dominique. Representations of counsel for Mr. Lawrence suggest he is her elder brother. Because the parties have not challenged his right to bring this lawsuit on behalf of the minor child, we presume that he has the legal capacity to proceed on Dominique’s behalf. See La. C.C.P. art. 926.

      . See La. R.S. La. R.S. 40:1299.47; Holmes v. LSU/E. A. Conway Med Ctr., 43,662. pp. 4-5 (La.App.2d Cir. 10/22/08), 997 So.2d 605, 609 (permitting a plaintiff to initiate a medical review proceeding and articulating the criteria necessary to do so).

      . While Mr. Lawrence also supplied the date of October 19, 2007, as the release date Dominique was permitted to start rehabilitation, he does not make any assertions either in his petition or in brief relating this date to an alleged malpractice by either OLOL or Dr. Frierson. As such, we find no basis for concluding that October 19, 2007 was "the date of discovery” of the alleged malpractice so as to commence the accrual of prescription under La. R.S. 9:5628 A.


author: KLINE, J. KUHN, J.,

text:
    STATE of Louisiana v. Alvin KING.
    No. 2010 KA 0074.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 29, 2010.

      Hon. Hillar C. Moore, III, District Attorney, Steven Danielson, Dylan C. Alge, Adam Haney, Assistant District Attorneys, Baton Rouge, Louisiana, for Appellant, State of Louisiana.
    Franz Borghardt, Baton Rouge, Louisiana, Mark D. Plaisance, Baker, Louisiana, for Appellee, Alvin King.
    Before KUHN, PETTIGREW and KLINE, JJ.

      . Judge William F. Kline, Jr., retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   KLINE, J.

|2The defendant, Alvin King, was charged by East Baton Rouge Parish bill of information number 3-08-0419 with issuing a worthless check in an amount over $500.00, a violation of La. R.S. 14:71. On March 20, 2008, the defendant was arraigned. He entered a plea of not guilty. The matter came before the court for a status conference on May 18, July 22, and September 9, 2008. On each of these dates, the matter was continued on motion of the defendant. On January 20, 2009, the defendant filed a pro se motion for a speedy trial (pursuant to La.Code Crim. P. art. 701) and a motion to dismiss defense counsel. The trial court took no action and ordered defense counsel to speak with the defendant regarding representation. The pretrial status conference was continued until January 26, 2009. At the January 26, 2009, status conference, the matter was set for trial on March 23, 2009. On March 23, 2009, the state orally moved for a continuance of the trial. The prosecutor explained that he “had a little bit of trouble procuring some of the financial records from the bank.” Over the objection of the defense, the trial court granted the state’s motion. In granting the motion, the court explained:

... And so the state’s requesting a continuance — and Mr. King, like I’ve told— you’ve been in court and I’m going to grant either side one but that would be it and so this will be the state’s only chance to continue it. I’m going to— and I will grant their request and I will reset the matter for another trial date and it won’t be continued next time.

The trial of the matter was reset for May 20, 2009. When the matter came for trial on May 20, 2009, the state again sought a continuance. The prosecutor explained that the bank had not fully complied with a subpoena duces tecum. He further noted that the bank had not yet provided a custodian of record to testify regarding the authenticity and accuracy of its records. The defendant objected to |3the state’s request for a second continuance and the trial court denied the motion. The state immediately moved to dismiss the bill of information. The trial court ordered that the case be dismissed.

Thereafter, on May 21, 2009, the state reinstituted the issuing worthless check in an amount over $500.00 charge in East Baton Rouge Parish by bill of information number 05-09-0639. At the arraignment on this bill, the defendant entered a plea of not guilty. On September 11, 2009, the defendant moved to quash the bill of information arguing that the state circumvented the trial court’s power to grant and/or deny continuances by dismissing and re-instituting the bill of information. A hearing on the motion to quash was held on October 13, 2009. At the conclusion of the hearing, the court took the matter under advisement. Thereafter, on October 21, 2009, over the state’s objection, the trial court granted the defendant’s motion to quash. The state now seeks review of the trial court’s ruling.

FACTS

The only facts in the record indicate the defendant is alleged to have issued a check drawn on Capital One Bank, in the amount of $15,500.00, to J.T. Electrical Service. The check was returned unpaid with an “Account Closed” notation. The defendant did not respond to subsequent demands for payment.

ASSIGNMENT OF ERROR GRANTING OF DEFENSE MOTION TO QUASH

In a single assignment of error, the state asserts the trial court erred in granting the defendant’s motion to quash the bill of information in this case. The state argues it was within its authority, under La.Code Crim. P. art. 691, in dismissing the initial bill of information and reinstitut-ing the charge in a second bill. The state contends that the dismissal and reinstitution of the charge were not |4done to avoid the time delays for trial of the matter and in no way infringed upon the defendant’s constitutional or speedy trial rights.

In his motion to quash, and at the hearing on the motion, the defendant argued that by dismissing and reinstituting the instant charge after being denied a continuance, the state circumvented the trial court’s authority to grant and deny continuances. Noting that the trial court had in place an internal rule limiting trial continuances to one per party, the defendant further argued that the district attorney’s actions frustrated the trial judge’s right to control the court over which he presides. Finally, the defendant argued the state’s ability to dismiss and reinstitute charges in response to the denial of a continuance (a privilege the defense does not share) violated his due process and equal protection rights.

In granting the motion to quash in this case, the trial court reasoned:

The state is in charge of bringing criminal prosecutions to trial. They investigate their cases, they collect and review evidence, and they make decisions based on its own discretion to file formal charges against defendants it believes violated this state’s laws. No other entity has any input into this decision. After formal charges the state decides, alone, which cases it wishes to bring to trial. The state selects all trial dates for trials by jury in this court. This court does not interfere with the state’s process of selecting jury trials or the number of trails [sic] it may set for a particular day on a particular jury week. This court has operated a rule wherein each side is granted one continuance as the court realizes that certain problems can arise both for the state and the defense, and this second setting is provided so that both sides can make correct any deficiencies in their case, i.e., witnesses problems, crime lab problems, et cetera. Certain counsel have interpreted this one free continuance, quote, unquote— and I’m quoting that from, I believe, argument I received on the motion to quash as the basis for indicating that the court will continue matters for any or no reason. While this is true, this rule was never derived to keep or prevent counsel, from either side, for preparing for trials. This court believes that if ten cases are set by the DA’s office for trial, that all ten cases will be worked up and be ready to proceed on the trial date. Again, the state controls the number of trials set on any jury week. In the instant case, the original bill of information was filed March 17, 2008, alleging that worthless checks were issued by the defendant on January 1, 2007. The defendant was assigned — was arraigned on March 20, 2008. A preliminary examination was waived on May 15, 2008. On September 9, 2008, the state picked January 20, 2009, for a pretrial conference and March 28, 2009, for trial. Let me go back. The state picked March 23rd '09. The court picked, with the ]¿concurrence of state and counsel — defense, January 20th for pretrial conference. On January 20, 2009, the state did not indicate that there were any problems with its case, and the matter proceeded towards trial. Maintain the trial date, judge. March 23rd of '09, this matter came up for trial. Ten other jury matters had been scheduled for that same date and apparently either resolved themselves or were rescheduled. The state indicated that it needed a continuance on the matter before the court that day because bank records were unavailable. The record indicates that no subpoenas were ever issued directed to any financial institution. On that date the state indicated that they just realized that there were [sic] other information needed to try the case. The court granted a continuance, and the state picked May 20th of '09, for a second jury trial. The court explicitly told the state to be ready to go on the next date. On the second trial date the state, again, failed to have its witnesses, although, the record does reflect that subpoenas were issued for financial records for that date. The state requested a second continuance, the court denied that request. The state dismissed. The second bill of information has been filed and here we are today under a second bill of information bearing bill number 9-5-9-639. The defense, after the filing of this second bill and after arraignment, filed a motion to quash. The court has reviewed the case law, which there are not a lot of cases on point with regard to this issue, but the problems that I have — and let me continue where — just one second. Had the proper witnesses been in place for the first trial setting, the issue would never have been — this issue would’ve been avoided on a second trial setting. And had the state’s witnesses still failed to appear on the second trial setting, which was May 20th '09, remedies could have been made by the state to guarantee their appearances, i.e., we’ve had cases where the DA’s Office actually goes out and gets the witnesses or alternatively the court or the state could have filed a rule to show cause after the first trial date setting as why the custodian of the records shouldn’t be found to be in contempt of court for failure to abide by subpoena. However, the problem resulted when nothing occurred for the first trial date setting. Because of the state’s failure to prepare for the first trial date setting which resulted in problems occurring for the second trial date setting — and the only reason for the continuance, in my mind, was because on the first trial date setting the case was not prepared for trial. Based on these reasons, the court will grant the motion to quash.

Article 691 of the Louisiana Code of Criminal Procedure confers on the district attorney the power to dismiss a formal charge, in whole or in part, and provides that leave of court is not needed. La.Code Crim. P. art. 693 expressly provides, subject to narrowly delineated exceptions, that dismissal of a prosecution]^ is not a bar to a subsequent prosecution....” La.Code Crim. P. art. 576, which sets forth the only legislative limitations on the state’s ability to dismiss and reinstate charges, provides:

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.

Under La.Code of Crim. P. art. 578(2), the state had two years from the institution of prosecution to bring the defendant to trial. The original bill of information was filed on March 17, 2008. When the state dismissed and reinstituted the charge, approximately 14 months had lapsed. The defendant did not allege, in his motion to quash or at the hearing on the motion, that the district attorney was attempting to avoid the time limitation of Art. 578 in dismissing and reinstituting the bill of information. Nor did he challenge the district attorney’s decision to dismiss and reinstitute the charge as a violation of his constitutional and/or statutory speedy trial rights. Accordingly, we conclude that the state did not violate the provisions of La.Code Crim. P. arts. 576 or 578 in dismissing and reinstituting the bill of information.

Even so, the Louisiana Supreme Court has recognized “a serious issue as to whether the district court or the prosecutor ultimately controls the docket in certain instances.” State v. Batiste, 2005-1571, p. 6 (La.10/17/06), 939 So.2d 1245, 1249-50 (where the court noted that this issue need not be addressed in that case). 17As Justice Weimer explained in his dissent in Batiste, “[t]he practice of the State ‘granting itself a continuance’ via a nolle prosequi after the trial court denies the State’s motion for a continuance has been the source of growing concern.” Id., 2005-1571 at p. 1 n. 2, 939 So.2d at 1253 n. 2 (Weimer, J., dissenting).

A trial court has the authority to grant a motion to quash when the circumstances of the individual case warrant such an action. State v. Love, 2000-3347, p. 13 (La.5/23/03), 847 So.2d 1198, 1208. A trial court’s resolution of motions to quash in cases where the district attorney entered a nolle prosequi and later reinstituted charges should be decided on a case-by-case basis. See Id., 2000-3347 at p. 14, 847 So.2d at 1209. The supreme court instructed that “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. A trial court’s ruling that grants a defendant’s motion to quash a bill of information is a discretionary ruling, and absent abuse, the ruling should not be disturbed on appeal. See Id., 00-3347 at pp. 6-7, 847 So.2d at 1204-05.

In this matter, the trial court’s express reason for granting defendant’s motion to quash was the state’s failure to prepare for trial on two settings. The record supports the trial court’s conclusion in this regard that, essentially, the state flaunted its authority by granting itself a continuance that the trial court denied. The state had control of the case and the evidence from the time of defendant’s arraignment on or about March 20, 2008, forward. The trial was originally set for. March 23, 2009, and was continued on the state’s motion until May 20, 2009, at which time the state dismissed the indictment. The alleged worthless check offense at issue occurred on or about January 1, 2007. The trial court here had the | sadvantage of observing the actions of the state firsthand in evaluating the State’s actions. Under these circumstances, we cannot conclude that the trial court abused its discretion. We, therefore, should not disturb its ruling.

DECREE

The judgment of the trial court granting the defendant’s motion to quash the bill of information is affirmed.

AFFIRMED

KUHN, J., dissents & assigns reasons.

KUHN, J.,

dissenting.

|U disagree with the majority’s affir-mance of the trial court’s grant of the defendant’s motion to quash. In this case, the trial court “created” a procedural rule, not established by the Code of Criminal Procedure, which allows the State and the defendant each one continuance. The majority’s failure to address the propriety of such a bright line rule on the parties’ entitlement to continuances adopts and ratifies this practice by the trial court. Moreover, the motion to quash filed by the defendant was not specific and did not conform to the requirements of La.C.Cr.P. arts. 532-534. Lastly, the prosecutor’s actions were in accordance with the law.

While it is true that matters pertaining to the conduct of trial are within the sound discretion of the trial court, see La. C.Cr.P. art. 17; State v. Odom, 2007-0516, p. 20 (La.App. 1st Cir.7/31/08), 993 So.2d 663, 677, exercise of such discretion necessarily entails “action taken in light of reason as applied to all facts and with [a] view to the rights of all parties to [the] action while having regard for what is right and equitable under all circumstances and law.” See Blacks Law DictionaRY, 466 (6th ed.1990). I question whether the trial court’s bright line rule on continuances qualifies as “discretion” and believe that the majority’s failure to address this issue encourages such a practice.

Turning to the codal bases for motions to quash, I point out that the motion to quash filed by the defendant stated:

_kl-
Defendant is charged in the amended Bill of Information with the offense of Issuing Worthless Checks, La. R.S. 14:71.
2.
Defendant avers that the court has an internal rule that each side, the State of Louisiana and the Defendant, gets one continuance for trial.
3.
lOn March 23, 2009 the court granted the State’s first Motion for Continuance.
4.
On May 20, 2009 the court denied the State’s second Motion for Continuance.
5.
Subsequent to being denied a continuance, the State dismissed the Bill of Information filed against the Defendant and filed a new Bill of Information on the proceeding day.
6.
The State’s circumvention of the Court’s power to grant and deny continuances by dismissing and then rebilling a bill of information violates the Court’s judicial authority to grant and deny continuances, violates the Court’s judicial authority to set and control its docket under La.C.Cr.P. Article 17, and violates Defendant’s Federal and State Constitutional Due Process and Equal Protection Rights by making the Defendant subject to a constructive court rule of granting each side one continuance, when in truth the Defendant is the only side subject to said rale.

Nothing in these allegations conforms to La.C.Cr.P. arts. 532-534, which provide the grounds upon which a motion to quash may be based. The majority has not explained why the motion is properly before the court, simply ignoring the “alleged” grounds asserted by the defendant, and implicitly created its own basis for granting the motion.

| ¡^Moreover, nothing in the record supports a finding that the district attorney, in dismissing the charge in the first bill of information, was flaunting his authority at the expense of the defendant. See State v. Love, 2000-3347, p. 14 (La.5/23/03), 847 So.2d 1198, 1209. Rather, the record indicates the State’s dismissal of the bill of information was because Capital One Bank did not fully comply with its discovery request and a key witness (documents custodian) was not present for trial. The record is devoid of anything that suggests the State dismissed the charge and reinsti-tuted prosecution to obtain a tactical advantage over the defendant. As the majority correctly notes, the district attorney controls dismissing and reinstating cases, see La.C.Cr.P. arts. 691 and 693, and the timeliness of prosecution is not at issue. See La.C.Cr.P. arts. 576 and 578(2). Accordingly, this record demonstrates that the State acted within its authority when it dismissed and reinstated the charge in this matter, see State v. Batiste, 2005-1571 (La.10/17/06), 939 So.2d 1245, and, therefore, the trial court abused its discretion in denying the motion to quash.

For these reasons, I dissent.