author: TERRI F. LOVE, Judge.

text:
    STATE of Louisiana v. Morris PATIN.
    No. 2011-KA-0488.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 23, 2012.

      Leon A. Cannizzaro, Jr., District Attorney, Matthew Caplan, Assistant District Attorney, New Orleans, LA, for State of Louisiana/Appellee.
    David W. Price, Mario E. Guadamud, Baton Rouge Capital Conflict Office, Baton Rouge, LA, for Defendant/Appellant.
    (Court composed of Judge JAMES F. McKAY III, Judge TERRI F. LOVE, Judge ROSEMARY LEDET).
   TERRI F. LOVE, Judge.

Lin this criminal case, Morris Patín appeals his guilty plea and sentence to manslaughter, asserting that the trial court erred by denying his motion to quash the charge against him based upon the violation of his constitutional and statutory rights to a speedy trial.

After finding that neither of these claims has merit, we affirm the judgment of the trial court.

STATEMENT OF THE CASE

Morris Patín and Eugene Thomas were indicted on February 28, 2002, for the first degree murder of Christopher McCrory. They pled not guilty at their arraignment on March 6, 2002. The case was reset for determination of counsel for both defendants, and both defendants appeared with counsel on May 10, 2002. The court held motion hearings on June 14 and July 10, 2002, and at the conclusion of the latter hearing, the court denied the motions to suppress. The court set trial for August 18, 2002. Trial was reset several times after that, and on October 31, 2002, the State nolle prosequied the charges.

On October 17, 2002, the State obtained a superseding first degree murder indictment against Patín, Thomas, and Eric McCormick, a charge to which they |2pled not guilty. This is the case at bar. Each defendant had separate counsel who filed various pretrial motions. In May 2003, the court severed the trial of McCormick from that of Patín and Thomas. In October 2003, the State brought McCormick to trial, which ended in a mistrial. The State then indicated that it would try Patín and Thomas. Trial as to these two defendants was reset several times, sometimes by joint motion. The final continuance prior to Hurricane Katrina reset the trial to September 12, 2005.

The next action in the case occurred when the State set a status hearing for June 30, 2006. Counsel for Patín withdrew, and new counsel enrolled. In August 2006, McCormick moved to quash the charge against him. The court granted McCormick’s motion in September 2006, and the State appealed the ruling. However, the State subsequently dismissed its appeal because McCormick died.

The court set trial for Patín and Thomas for November 13, 2006. On that date, counsel for Thomas withdrew, and the matter was reset again. When new counsel for Thomas enrolled, he filed more pretrial motions. Trial was set for June 25, 2007, but then was continued to November 5. On that date, counsel for Patin withdrew, and the trial was reset on joint motion by Patin and the State, over Thomas’ objection. New counsel eventually enrolled and filed several more pretrial motions. The matter was reset several times, and on April 20, 2009, the State amended the indictment to charge Thomas and Pa-tin with second degree murder. Counsel for Thomas withdrew; new counsel enrolled in July and filed a motion to sever the trials of Thomas and Patin. The matter was reset several more times, and on August 31, Patin filed a motion to quash the indictment. Thomas filed his motion to quash on September 3. The court heard the matter on September 10 and denied the motions on statutory grounds. The court held open |sthe opportunity for an evidentiary hearing on each defendants’ constitutional claim. On October 28, 2009, after denying the defendants’ motion for an evidentiary hearing, the court denied both motions to quash. The court set a trial date of February 1, 2010. Both defendants objected and noted their intent to seek writs, and the court granted the defendants until November 30. On November 19, the court granted Thomas’ motion to sever. The State objected and noted its intent to seek writs, and the court granted the State until December 21 to do so, staying all proceedings while the State sought writs. The State failed to seek relief, and on January 4, 2010, the court set the matter for January 13 for the State to indicate which defendant it intended to try first. On January 13, the State elected to try Patin first, and the court ruled that all dates previously set were to remain in effect.

This court granted both Patin’s and Thomas’ writ applications, vacated the court’s denial of their motions to quash, and remanded the cases with the instructions to allow the defendants to present evidence on the issue of prejudice from the delay in going to trial. State v. Patin, unpub. 2009-1620 (La.App. 4 Cir. 1/29/10); State v. Thomas, unpub. 2009-1647 (La.App. 4 Cir. 1/27/10).

On remand, the court heard the matter on February 4, 2010. At the conclusion of the hearing, the court granted both motions to quash only on the issue of the violation of the defendants’ constitutional right to speedy trial. The State noted its intent to appeal, and the court stayed the release of the defendants to allow the State time to file its appeal. On February 10, the court denied the defendants’ motion for release pending the State’s appeal. Both defendants sought writs, which this court granted, ordering the defendants’ release. State v. Thomas, unpub. 2010-0205 (La.App. 4 Cir. 2/11/10); State v. Patin, unpub. 2010-0206 (La.App. 4 Cir. 2/11/10). However, the Supreme Court reversed this court’s release, bordering a stay of their release until further orders from that Court. The Court then ordered the State to file its appeal “forthwith” and this court to give the State’s appeal expedited consideration. State v. Patin, 2010-0335 (La.2/24/10), 28 So.3d 261.

Thomas filed a writ in this court seeking reversal of the trial court’s denial of his motion to quash on statutory speedy trial grounds. This court denied writs, noting that it did not have jurisdiction to consider the application because of the State’s pending appeal. State v. Thomas, unpub. 2010-0303 (La.App. 4 Cir. 3/1/10). Thomas sought relief in the Supreme Court. The Court granted the writ, remanding the writ to this court to be considered as a cross-application to the State’s appeal. The Court also directed this court to give the appeal expedited consideration. State v. Thomas, 2010-0586 (La.3/31/10), 31 So.3d 353. Patin, however, did not seek review of the trial court’s denial of his motion to quash on statutory grounds.

This court subsequently consolidated the State’s appeals as to Patín and Thomas, and it reversed the trial court’s rulings as to both defendants. State v. Thomas, 2010-0528, 2010-0529 (La.App. 4 Cir. 7/15/10), 54 So.3d 1. The Supreme Court denied writs, State v. Thomas, 2010-1517 (La.9/3/10), 44 So.3d 702, and the U.S. Supreme Court dismissed the subsequent writ, Thomas v. Louisiana, — U.S. —, 131 S.Ct. 556, 178 L.Ed.2d 411(2010).

On remand, a jury found Thomas not guilty on October 7, 2010. On October 18, 2010, the State amended the bill of indictment to charge Patín with manslaughter, and Patín pled guilty as charged under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) and under State v. Crosby, 338 So.2d 584 (La.1976), reserving his right to appeal the trial court’s denial of his motion to quash. The liiCourt sentenced him to serve ten years at hard labor and granted his motion for appeal.

FACTS AND PROCEDURAL HISTORY

The facts of the offense are relatively unknown; the record contains neither any pretrial suppression hearing transcripts nor any police reports other than a short one involving the arrest of McCormick, a former codefendant. Patín and Thomas were charged with shooting Christopher McCrory, Malcolm Green, and Troy Steen on Parc Brittany Court on December 23, 2001. McCrory died as a result of the shooting. Green and Steen survived their wounds, but Green is now deceased. Green and Steen apparently gave statements indicating that there were three gunmen involved in the shooting. Patín became a suspect, and on December 26, 2001, Patín surrendered to the police. Thomas, his brother, accompanied him to the police station and gave a statement. He and Patín were both arrested for the murder. A grand jury returned an indictment charging both of them for the first degree murder of McCrory. A Crime Stopper tip in August 2002 led to the arrest of Eric McCormick as the third shooter, and in October 2002 the grand jury returned a new indictment charging all three defendants with first degree murder.

Patin’s and Thomas’ defense was that they were at the Lake Forest Plaza mall at the time of the shooting.

Because Patin’s constitutional speedy trial claim is based on the length of time he has been incarcerated for the present offense, see State v. Page, 95-2401 (La.App. 4 Cir. 8/21/96), 680 So.2d 700, the following is a chronology of all the events leading up to the present appeal:

Magistrate # 39604.8

12/27/01 First appearance; bond set; rule to show cause set for 1/8/02
|fil/8/02 Rule to show cause reset 1/11/02
1/11/02 Preliminary hearing set for 1/18/02
1/18/02 Preliminary hearing reset to 1/25/02
1/25/02 Patín represented by J.C. Lawrence; probable cause found; rule to show cause set for 2/27/02
2/27/02 Rule to show cause reset to 3/1/02

#428-349

2/28/02 Patín and Thomas indicted for 14:30
3/1/02 Case allotted to Section D
3/6/02 Both defendants appeared and pled not guilty; hearing to determine counsel for both set for 8/27/02
3/27/02 Reset for a status hearing on 4/12/02
4/4/02 Status hearing reset to 4/10/02
4/10/02 Motion hearing set 5/10/02
5/10/02 Patín appeared with counsel Sonny Armond; Thomas appeared with counsel Clyde Merritt of the Orleans Indigent Defender Program; reset motions to 6/13/02
6/13/02 Reset motions to 6/14/02
6/14/02 More motions heard, to be completed on 7/10/02; trial 8/13/02
7/10/02 Counsel present and motions heard; witnesses called; court denied motion to suppress; trial set 8/13/02
7/15/02 Trial reset to 9/24/02, no indication on whose motion
9/17/02 Trial reset to 11/12/02 on State’s motion
9/24/02 Trial reset to 10/21/02 on State’s motion
10/21/02 Matter set in error; trial reset to 10/23/02
10/23/02 Defendants not brought up from jail; status set 10/28/02
10/28/02 Counsel present without defendants; status reset to 10/31/02
1710/31/02 Charges nolle prosequied as to each defendant; case closed

#m-092

10/17/02 Patín, Thomas, and McCormick indicted for La.R.S. 14:30
10/18/02 Case allotted to Section G; arraignment set for 10/22/02
10/22/02 Arraignment reset on motion of counsel for McCormick to 10/24/02
10/24/02 All defendants, accompanied by counsel, pled not guilty (Armond for Patín, Merritt for Thomas, Kerry Cuccia for McCormick); motions to be filed by 10/29/02; status set 10/31/02
10/30/02 Patín filed motion to quash (based on allegation of deficient indictment) and motion to adopt for all defendants any motion filed by any defendant
10/31/02 Court ordered State’s response by 11/18/02, rebuttal due 11/15/02; hearing set 11/15/02
11/7/02 Patín filed memorandum of law
11/18/02 State filed response to motion to quash; counsel for Patín and McCormick argued; status set 11/27/02
11/27/02 Court closed; reset 1/9/03
1/9/03 Ruling reset to 1/27/03 (McCormick attorney not present)
1/27/03 Motion to quash denied; motion hearing set for 2/27/03, trial 3/13/03'
2/24/03 Hearing reset on State’s motion to 3/7/03 for outstanding discovery as to all defendants
3/7/03 State filed motion for discovery and its answers; all dates to remain in effect
3/13/03 Motions set as to McCormick only; motion to suppress denied and probable cause found; scheduling conference set for 3/25/03
3/25/03 Attorneys for all defendants present; court reset discovery conference to 4/10/03; motions for 4/15/03; pretrial hearing for 5/9/03; and trial for 5/19/03
4/10/03 Defendants not brought up from jail; reset to 4/15/03
184/15/03 Defendants present; reset motion hearing to 5/6/03
5/6/03 McCormick filed motion to sever; reset motion hearing to 5/12/03
5/12/03 State advised all motions have been satisfied; court denied motion to sever as premature; final discovery conference (possibly for McCormick) set 5/19/03
5/15/03 Patin filed various motions for subpoenas duces tecum, returnable 5/29/03
5/19/03 Court granted McCormick’s motion to sever; State indicated it will try McCormick first; final pretrial hearing set for 7/11/03; trial as to McCormick set 7/21/03; trial as to Patin and Thomas set 8/25/03
7/15/03 Trial for McCormick reset to 10/20/03
7/22/03 Patin filed motion to quash (based on composition of grand jury claim); hearing set 7/31/03
7/31/03 Counsel for Patin not present; reset on defense motion without date; all other dates to remain in effect
8/20/03 Patin filed motion to continue trial of 8/25/03; granted, reset to 10/20/03
10/20/03 Patin and Thomas status set 10/21/03
10/21/03 Status reset to 11/4/03
10/22/03 McCormick’s trial ended in a mistrial
11/4/03 State to proceed with trial for Patin and Thomas first; final pretrial set 1/30/04, trial 2/9/04
1/30/04 Joint continuance of trial by State and both defendants to 4/26/04
4/20/04 Patin moved for continuance of trial; granted, reset to 6/28/04
4/26/04 Thomas appeared; trial reset to 6/28/04 as per continuance by Patin
6/17/04 Patin moved for continuance of trial; motion hearing as to Patin set 8/2/04; status 8/2/04 as to Thomas and McCormick
08/02/04 State granted continuance; pretrial 10/18/04 & trial 10/25/04 as to Patin & Thomas
10/18/04 State moved to continue; status set 10/21/04
1910/19/04 Counsel for Patin appeared, made no objection to State’s continuance; reset trial to 1/24/05
1/21/05 Matter reset on motion of both defendants and State; trial 3/28/05
3/11/05 Trial reset on Thomas’ motion to 6/20/05
3/28/05 Patin moved to continue trial; 701 release as to Patin denied; reset status 3/29/05
3/29/05 All counsel present; trial for Patin and Thomas reset to 6/20/05
6/20/05 Trial reset on Thomas’ motion to 9/12/05
6/13/06 ADA set status hearing 6/30/06
6/30/06 Defendants not present; status set 7/27/06 for Patin and Thomas and for determination of counsel for Patin
7/27/06 Counsel for Patin (Armond) withdrew; determination of counsel for Patin and status for Thomas set 8/14/06
8/14/06 Determination of counsel for Patin set 9/20/06; status for Thomas set 9/5/06
8/15/06 New counsel for Patin (Edwin Hawkins) signed record; scheduling conference for all defendants set 8/24/06
8/24/06 McCormick filed motion to quash
9/5/06 Trial set 11/13/06 for Patin (John Fuller enrolled as co-counsel) and Thomas (Merritt — co-counsel Dwight Doskey allowed to withdraw because no longer employed by OIDP)
11/13/06 Patin and State ready for trial; counsel for Thomas no longer represents him (Merritt no longer employed by the now-Orleans Parish Defender office); status set 11/17/06
11/17/06 Patín status hearing reset 12/11/06; new counsel (Lewis Ungles-by) to appear for Thomas 11/27/06
11/27/06 Court closed due to bomb threat; reset 12/11/06
12/11/06 New counsel for Thomas (Un-glesby) signed record; pretrial conference as to Patín and Thomas set 1/17/07
1/17/07 Defendants not brought to court; reset 2/5/07
2/5/07 Trial for Patín and Thomas set 6/25/07
hn6/6/07 Thomas filed motion to continue trial
6/20/07 Thomas filed applications for subpoenas duces tecum, returnable 7/12/07
6/25/07 Trial continued to 11/5/07 for Patín and Thomas
11/5/07 Counsel for Patín (Hawkins) withdrew; trial'continued on joint motion of Patín and State; Thomas objected to continuance; determination of counsel for Patín set 1/7/08
1/7/08 New counsel (Dennis Moore) accepted appointment for Patín, but must wait to see if appointment needs to be submitted to the conflict panel; reset to 1/11/08
1/11/08 Status reset to 1/17/08
1/17/08 Patin’s attorney (OPD) requested one week extension for determination of counsel; reset to 1/25/08
1/25/08 Counsel still uncertain as to Patín; reset to 1/28/08
1/28/08 Yet different counsel (David Price of the Baton Rouge Capital Conflict Office) will represent Patín; status set 2/12/08
2/12/08 Thomas’ counsel not present; Patin’s counsel had a scheduling conflict and could not appear that day for hearing; continued on defense motion to 2/19/08
2/19/08 Counsel for Patín (Price) appointed and enrolled; status for Patín and Thomas set 3/3/08
3/3/08 Both counsel appeared; discovery hearing for both set 4/17/08; status set 5/2/08; motion hearing set 6/9/08
4/17/08 Discovery heard; status set as to both 5/2/08
5/2/08 Patín filed several pretrial motions; motion hearing 6/9/08 as to both
6/9/08 Another trial in progress; reset for motions for both defendants to 7/22/08
7/22/08 State filed answers to Patin’s motions; hearing on motions reset on State motion to 8/19/08
8/19/08 Court ruled on various motions filed by Patín, but another motion hearing set for 9/30/08; Patín to seek writs, granted seven days to do so
ln8/26/08 Patín granted to 8/29/08 to seek writs
8/29/08 Court closed due to Hurricane Gustav; prior dates to remain
9/30/08 Another trial in progress; reset motion hearing to 11/30/08
10/24/08 Court received this court’s judgment of denial in 2008-K-1138 (writ taken by Patín on State’s intention to introduce victim impact testimony at penalty phase of trial)
11/3/08 Court rendered more judgments on Patin’s outstanding motions; trial set for 4/20/09
2/5/09 Patin’s writ denied by Supreme Court 2008-KH-2766
3/10/09 Patín filed notice of receipt of evidence; notation that motions still outstanding
3/26/09 Patín filed more pretrial motions, placed items under seal, requested hearing on each motion; hearing set 4/1/09
4/1/09 Patín moved for ruling on outstanding motions; hearing set 4/16/09; State granted continuance of 4/20/09 trial; status set 4/20/09
4/16/09 Patín appeared for discovery hearing; brief hearing held; status 4/20/09
4/20/09 State amended indictment to 14:30.1 as to both defendants; status set 5/18/09 and trial 7/27/09 as to both
5/18/09 Another trial in progress; status not held; keep all dates
7/9/09 Counsel for Thomas (Unglesby) withdrew; but the minute entry notes that Thomas waived any potential conflict, and the court ordered Unglesby to remain as counsel
7/24/09 New counsel for Thomas (Trida Ward of OPD) appeared and filed motion to sever defendants; status set 7/27/09
7/27/09 Another trial in progress; motion to sever reset to 7/31/09, trial set 9/14/09
7/31/09 Status hearing set 8/7/09
8/7/09 Motion hearing set 8/13/09 |128/13/09 Motion hearing set 9/3/09, trial 10/12/09 as to both defendants; Un-glesby re-enrolled to be co-counsel with present counsel for Thomas
8/20/09 Trial reset to 10/13/09 as 10/12/09 is Columbus Day and court would be closed
8/31/09 Patín filed motion to quash based on statutory and constitutional speedy trial grounds
9/1/09 Ruling on Patin’s motion to quash set 9/3/09
9/3/09 State moved to continue hearing on Patin’s motion to quash; Thomas filed motion to quash on statutory and constitutional speedy trial grounds; hearing on all set 9/10/09
9/10/09 Hearing held; matter reset for evidentiary hearing 9/24/09
9/22/09 Thomas filed motion for instan-ters
9/24/09 Another trial in progress; matter continued over both defendants’ objection to 10/15/09
10/13/09 Trial date moot; keep eviden-tiary hearing of 10/15/09
10/15/09 Court was closed; reset evi-dentiary hearing to 10/28/09
10/28/09 Court denied motions to quash and denied evidentiary hearing; both defendants objected, granted to 11/30/09 to file writs; Thomas asked for evidentiary hearing on motion to sever, hearing set 11/19/09; trial as to both set 2/1 /10
11/19/09 Court granted Thomas’s motion to sever, found Patin’s motion to sever moot; State to take writs by 12/21/09; case stayed pending State’s writ; status set 12/21/09
12/1/09 Thomas obtained extension of time to file writ
1/4/10 Both defendants appeared; State did not take writ; reset to 1/13/10 for determination of which defendant State will try first
1/13/10 State indicated it will try Patín first; all dates to remain in effect
1/29/10 This court reversed court’s ruling on the motion to quash and remanded the case for evidentiary hearing
2/4/10 The trial court held the hearing and granted the motion to quash on constitutional speedy trial grounds
11s6/27/10 This court reversed the trial court and remanded the case
9/3/10 The Louisiana Supreme Court denied Patin’s writ from this court’s ruling
10/5/10 Patín filed requests for subpoenas and various motions, including a motion to declare La.C.Cr.P. art. 782 A unconstitutional because it permits non-unanimous verdicts; Patín also moved that a hearing on these matters be set for October 14
10/14/10 The trial court denied Patin’s various motions; he noted his intent to seek writs in this court, and the trial court set a return date of October 18
10/18/10 The State amended the indictment to charge Patín with manslaughter; Patín pled guilty under Alford and Crosby; the court sentenced Pa-tín to serve ten years at hard labor

ASSIGNMENTS OF ERROR

1. Appellant Morris Patín asserts the eight-year delay in prosecuting his case violated his constitutional rights.
2. Appellant Morris Patín asserts the eight-year delay in prosecuting his case violated his statutory rights.
3. Appellant Morris Patins avers the trial court erred by denying his motion to quash based upon statutory grounds.

LAW AND DISCUSSION

Errors Patent

A review of the record reveals no patent errors.

Assignments of Error

By his assignments of error, the Appellant Patín contends that both his constitutional and statutory rights to a speedy trial were violated by the delay in taking him to trial. As he did in the trial court in 2009, he argues that the amount of time that has elapsed since he was first charged with murder in the original case, which at the time of his Crosby plea was almost nine years, was so long that it violated his constitutional right to a speedy trial. He further argues that his 114statutory right to a speedy trial was violated because the State failed to bring him to trial within the time limitations set forth in La.C.Cr.P. art. 578. We find that neither of these claims has merit.

Constitutional Right to a Speedy Trial

Appellant contends his constitutional right to a speedy trial has been violated because over eight years elapsed between the filing of the first indictment and the filing of his motion to quash. This issue was raised, fully discussed, and rejected by this court in the State’s prior appeal of the trial court’s granting of the motion to quash. See Thomas, 2010-0528, 2010-0529, 54 So.3d 1. For this reason, the State argues that this issue should not be considered in this appeal, citing the “law of the case” doctrine. This court recently discussed this doctrine in State v. Cox, 2011-0670, pp. 5-6 (La.App. 4 Cir. 2/22/12), 85 So.3d 252, 256:

The “law of the case” doctrine is well-settled; when it is applied and the reasons for it were explained in State v. McElveen, 2010-0172, p. 13, fn. 8 (La.App. 4 Cir. 9/28/11), 73 So.3d 1033, 1054:
The “law of the case” doctrine applies to all prior rulings or decisions of an appellate court or the Supreme Court in the same case, not merely those arising from the full appeal process. See Pumphrey v. City of New Orleans, 2005-0979 (La.4/4/06), 925 So.2d 1202. This policy applies to parties who were parties to the case when the former decision was rendered and who thus had their day in court. The reasons for the “law of the case” doctrine is to avoid relitigation of the same issue; to promote consistency of result in the same litigation; and to promote efficiency and fairness to both parties by affording a single opportunity for the argument and decision of the matter at issue. Day v. Campbell-Grosjean Roofing and Sheet Metal Corp., 260 La. 325, 256 So.2d 105 (1971). This doctrine is not an inflexible [ islaw; thus appellate courts are not absolutely bound thereby and may exercise discretion in application of the doctrine. It should not be applied where it would accomplish an obvious injustice or where the former appellate decision was manifestly erroneous.
See also State v. Scoggins, 2010-0869, p. 19 (La.App. 4 Cir. 6/17/11), 70 So.3d 145, 156.

In Cox, the trial court granted the defendant’s motion to suppress. The State took writs, and this court reversed the trial court’s ruling. On remand, the defendant withdrew his not guilty plea and pled guilty under Crosby, reserving his right to appeal the denial of his motion to suppress the evidence. No new testimony was taken, nor were any new arguments or pleadings filed. On appeal, this court applied the “law of the case” and refused to revisit the issue of the suppression of the evidence.

In McElveen, from which this court quoted in Cox, the defendants argued the trial court erred by excluding evidence that the defendants contended would impeach the credibility of a State’s witness. This court refused to consider the argument, noting that it had already ruled on the matter in a pretrial writ from the State, and the defendants had presented no new evidence to show that this court’s earlier ruling was in error. Likewise, in Scoggins, also cited in Cox, the defendant alleged that the trial court erred by allowing and then limiting testimony in violation of the “clergyman’s privilege.” This court refused to reconsider the claim, noting that it had been considered both by this court and the Supreme Court pre-trial, and the defendant had not presented any new evidence to convince this court that it erred in its earlier ruling.

In the case at hand, Appellant Patín raises the same constitutional speedy trial claim as was raised in the State’s earlier appeal. The record is void of any | ^evidence that he re-urged his motion to quash after the case was remanded and the Supreme Court denied the writ. Additionally, Appellant has failed to present any new evidence for this court to consider.

Considering that this court has already found that Appellant Patin’s constitutional right to a speedy trial has not been violated, and he has presented no new evidence to dispute this ruling, this court will not reconsider this matter under the “law of the case” doctrine.

Statutory Right to a Speedy Trial

Appellant Patín also argues that his statutory right to a speedy trial has been violated because the State failed to bring him to trial within the statutory limits set forth in La.C.Cr.P. art. 578. The trial court denied Appellant’s motion to quash based on statutory speedy trial grounds on September 10, 2009. Appellant Patín sought review of this ruling and the trial court’s denial of his constitutional speedy trial claim in his 2009 writ. This court reversed the trial court’s ruling and remanded the case for an evidentiary hearing to allow Appellant and his co-defendant Thomas to present evidence on the issue of prejudice from the delay in going to trial, a matter only pertinent to Appellant’s constitutional speedy trial claim. This court did not address his statutory speedy trial claim. On remand, the trial court granted the motion to quash on the constitutional ground only. Although Thomas subsequently sought writs from the court’s denial of his statutory claim, which was consolidated with the State’s appeals from the granting of Patin’s and Thomas’ motions to quash based on constitutional grounds, Pa-tin did not seek review by writ at that time of the denial of his statutory claim. Thus, although this court rejected this claim as to Thomas, it had not considered Patin’s statutory speedy trial claim.

117AppeIlant Patín was originally indicted for first degree murder, a charge to which he was exposed to the death penalty. Pursuant to La.C.Cr.P. art. 578 A(l), trial for a capital case must commence within three years from the date of institution of prosecution. Nonetheless, the time periods set forth in La.C.Cr.P. art. 578 may be suspended by the filing of preliminary pleas (La.C.Cr.P. art. 580) or interrupted by: (1) the defendant’s absence for the purpose of avoiding detection, apprehension, or prosecution; (2) the State’s inability to try the defendant because he is insane, his presence cannot be obtained by legal process, or for any other reason beyond the State’s control; or (3) the defendant’s failure to appear in court at a proceeding for which he was given actual notice, proof of which is in the court record. La.C.Cr.P. art. 579.

In cases in which there is interruption, the time limitations set forth in La.C.Cr.P. art. 578 start anew. Once the time limitations set forth in La.C.Cr.P. art. 578 have expired, the trial court shall dismiss the charge upon the defendant’s filing of a motion to quash the bill. La.C.Cr.P. art. 581. As noted by this court in State v. Bell, 2002-2349, p. 9 (La.App. 4 Cir. 8/6/03), 854 So.2d 429, 434: “When a defendant brings an apparently meritorious motion to quash based on prescription, the State bears a heavy burden of demonstrating either an interruption or a suspension of the time limitation such that prescription will not have tolled. State v. Rome, 93-1221, p. 3 (La.1/14/94), 630 So.2d 1284, 1286; see also State v. Brent, 2000-0072, p. 6 (La.App. 4 Cir. 11/29/00), 775 So.2d 565, 569.” Nonetheless, according to La. C.Cr.P. art. 580, once a defendant files a motion to quash “or other preliminary plea,” the time limitations are suspended until the court rules on the motion, “but in no case shall the state have less than one year after the ruling to commence trial.”

[iSIn addition, this court has held that the delays caused by Hurricane Katrina constituted a “cause beyond the control of the State” which interrupted the time periods set forth in La.C.Cr.P. art. 578. State v. Brazile, 2006-1611 (La.App. 4 Cir. 5/30/07), 960 So.2d 333. This court set June 5, 2006, as the date upon which interruption based upon Hurricane Katrina ended. State v. Francis, 2007-0480 (La.App. 4 Cir. 1/30/08), 977 So.2d 187.

In the case at hand, the grand jury returned the indictment on October 17, 2002. Appellant Patín filed his first motion to quash the indictment on October 30, 2002, thereby suspending the three-year prescriptive period to bring him to trial. He also filed a motion to adopt for all defendants any pleadings filed by any defendant. The court denied the motion to quash on January 27, 2003, thereby giving the State at least until January 27, 2004 to try him. On July 22, 2003, Appellant filed a second motion to quash, which again suspended the time period. There is no evidence in the record that the court ruled on that particular motion, but on August 20, 2003, Appellant moved to continue his trial. The motion was granted, and at that point, the State had until at least August 20, 2004 to try him. On January 30, 2004, Appellant Patín joined the State in a motion to continue his trial, giving the State until at least January 30, 2005 to try him. On April 20, 2004, Appellant Patin again moved to continue trial,' thereby granting the State until April 20, 2005, to try him. Appellant subsequently moved to continue trial on June 17, 2004, and then on January 21, 2005, he joined in a motion to continue trial, giving the State until at least January 21, 2006, to try him. Appellant Patin again moved to continue the trial on March 11, 2005, giving the State until March 11, 2006, to try him.

| TflHurricane Katrina struck New Orleans on August 29, 2005, and the time limitations of La.C.Cr.P. art. 578 were interrupted. Pursuant to Francis, time limits did not begin to run anew until June 5, 2006. Counsel withdrew, again suspending the La.C.Cr.P. art. 578 time limitations. New counsel was appointed on August 15, 2006, but that counsel withdrew on November 5, 2007, and new counsel was not appointed until January 28, 2008. On February 12, 2008, Appellant Patin moved for a continuance, which was granted and gave the State until at least February 12, 2009, to try him. On May 2, 2008, Appellant filed numerous pretrial motions (“preliminary pleas” under La.C.Cr.P. art. 580), further suspending the time period. The court ruled on some of the motions on August 18, 2008, and Appellant Patin filed more motions on March 10, 2009. On April 20, 2009, the State amended the indictment to charge him with second degree murder. At the time Patin filed his final motion to quash on August 31, 2009 (the subject of his 2009 writ), he still had outstanding pretrial motions that had suspended the time limitations of La.C.Cr. P. art. 578. Therefore, the time limitations of La.C.Cr.P. art. 578 had not tolled at the time he filed his motion to quash on August 31, 2009, and the trial court correctly denied his motion on that basis.

Regarding the constitutional speedy trial claim, and on remand from this court’s ruling, the trial court held an evidentiary hearing on February 4, 2010. At the conclusion of which it granted Appellant’s and Thomas’ motions to quash based upon constitutional grounds. Again, the State could not try the appellant, and it appealed this ruling. This court reversed the quashing of the bill of information on June 27, 2010. This gave the State until June 27, 2011, to try Appellant. In early October 2010, the Appellant Patin filed more preliminary motions, which the court denied on October 14, 2010.

12fAPPellant subsequently pled guilty under Crosby on October 18, 2010, approximately eight months before the one-year time limitation that the State obtained pursuant to La.C.Cr.P. art. 580. Thus, we find no merit in Appellant’s argument that his statutory right to a speedy trial was violated.

CONCLUSION

This court fully considered Appellant Patin’s constitutional right to speedy trial claim in the 2010 appeal, and he has presented no new evidence to show that this court erred in its 2010 ruling. Thus, pursuant to the “law of the case” doctrine, this court’s previous ruling will not be considered. Additionally, we find that Appellant Patin’s statutory speedy trial claim has no merit. We further find the trial court did not err by denying Appellant’s motion to quash based upon statutory grounds

Accordingly, the findings of the trial court are affirmed.

AFFIRMED


source: Caselaw Access Project

author: DANIEL L. DYSART, Judge. LEDET, J.,

license: Public Domain

text:
    STATE of Louisiana v. Brian WILLIAMS.
    No. 2011-KA-1231.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 23, 2012.

      Leon A. Cannizzaro, Jr., District Attorney, Matthew Caplan, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    Christopher A. Aberle, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellee.
    (Court composed of Judge TERRI F. LOVE, Judge DANIEL L. DYSART, Judge ROSEMARY LEDET).
   DANIEL L. DYSART, Judge.

| iThis appeal concerns the trial court’s grant of defendant’s motion to quash a bill of information based on the State’s failure to timely bring him to trial pursuant to La.C.Cr.P. art. 578. For the reasons that follow, we reverse the trial court’s ruling and remand this matter for further proceedings.

PROCEDURAL BACKGROUND

By bill of information dated January 31, 2005, Brian L. Williams, Sr., (“defendant”) was charged with a felony charge, possession of cocaine, in violation of LSA-R.S. 40I967. Defendant did not appear for a status hearing on March 30, 2005 (apparently because he was incarcerated in Jefferson Parish at the time). Defendant was placed on the jail list and the State filed a Motion for a Writ of Habeas Corpus Ad Prosequendum. An arraignment was scheduled for April 12, 2005, and defendant again did not appear. He was again placed on the jail list and the trial court reset the arraignment for April 26, 2005.

| gDefendant appeared for the arraignment on April 26, 2005, at which time an attorney was appointed to represent him, and he plead not guilty. The minute entry for that date reflects that a bond hearing was set for May 5, 2005. The transcript of the arraignment reflects a discrepancy in the trial court’s notice of the bond hearing. The trial court advised defendant to “return one week from today, which is May the 3rd.” He reiterated that defendant was to return the following Tuesday (which, again, would have been May 3, 2005) for a bond hearing. At the conclusion of the hearing the trial court advised defendant several times that the bond hearing would be set for the following Thursday, May 5, 2005 (as reflected in the minute entry). The trial court also stated the following: “[m]ake sure the gentleman is served in open court to be here for May 5th.”

While the foregoing suggests some confusion as to the date of the bond hearing, there is nothing suggesting that defendant made any effort to clarify the issue and he failed to appear for the bond hearing on May 5, 2005. There was likewise no appearance made by his court appointed counsel, despite the trial court’s having specifically advised defendant’s counsel that she was appointed “for that hearing.” The trial court then granted the State’s request for bond forfeiture and issued an alias capias for defendant’s arrest.

Defendant’s next appearance in court was for a January 10, 2011 hearing." A hearing on motions was set for February 11, 2011. At that hearing, defendant filed an oral motion to quash the bill of information based on the State’s failure to | .¡bring defendant to trial. The Court granted the motion to quash on March 11, 2011, the same date that defendant filed a written motion to quash. The State has timely filed an appeal of the trial court’s ruling.

STANDARD OF REVIEW

In its sole assignment of error, the State maintains that the trial court erred in “ruling that the State has a duty to locate a defendant who has failed to appear having received actual notice.” The transcript of the hearing on defendant’s motion to quash does not reflect the basis of the trial court’s ruling; accordingly, we review the record as a whole to determine whether the trial court’s grant of the motion to quash represents an abuse of the trial court’s discretion. State v. Chambers, 2007-0398, p. 8 (La.App. 4 Cir. 8/22/07), 966 So.2d 98, 103, citing State v. Love, 2000-3347 (La.5/23/03), 847 So.2d 1198. In so doing, we note that this Court has explained:

... [T]he proper approach to the question of whether the defendant’s right to a speedy trial was violated is not merely a review of the dates and circumstances of the hearings, but an examination of the entire record in order to discern whether there was “palpable abuse” on the part of the trial court in granting the motion to quash.

State v. Harris, 2003-0524, p. 4 (La.App. 4 Cir. 9/10/03), 857 So.2d 16,18.

Based on our review of the record, we find that the trial court abused its discretion in granting the motion to quash.

| ¿DISCUSSION

The right to a speedy trial is guaranteed by La. C. Cr. P. art. 701(A), which provides that “[t]he state and the defendant have the right to a speedy trial.” In furtherance of that right, La.C.Cr. Pr. art. 578, provides, in pertinent part:

A. Except as otherwise provided in this Chapter, no trial shall be commenced nor any bail obligation be enforceable ...
(2)In other felony cases after two years from the date of institution of the prosecution ...

The time periods established under the foregoing article are subject to interruption, as set forth in La.C.Cr. Pr. art. 579, which provides as follows:

A. The period of limitation established by Article 578 shall be interrupted if:
(1) The defendant at any time, with the purpose to avoid detection, apprehension, or prosecution, flees from the state, is outside the state, or is absent from his usual place of abode within the state; or
(2) The defendant cannot be tried because of insanity or because his presence for trial cannot be obtained by legal process, or for any other cause beyond the control of the state; or
(3) The defendant fails to appear at any proceeding pursuant to actual notice, proof of which appears of record.
B. The periods of limitation established by Article 578 shall commence to run anew from the date the cause of interruption no longer exists.

Once the cause of an interruption no longer exists, the running of the limitation commences to “run anew,” effectively starting the limitation period Lover. State v. Sorden, 2009-1416, p. 5 (La.App. 4 Cir. 8/4/10), 45 So.3d 181, 184; La. C. Cr.Pr. art. 579(B).

A resolution of the instant matter, thus, turns on whether, as the State maintains, defendant’s failure to appear for the bond hearing operated to interrupt the time limitation set forth in Article 578. Defendant submits that he had inadequate notice of the bond hearing date based upon the discrepancy in the trial court’s instruction as to when the hearing would be conducted. He further argues that, although the trial court noted that defendant was to receive a subpoena, the record does not show that a subpoena was served on him. We agree that the transcript reflects an inconsistency regarding the date of the hearing. However, no effort was made at the hearing to clarify this discrepancy. Likewise, the record reflects that neither defendant nor his court appointed attorney appeared in court on either date to which the trial court referred. We therefore do not agree that defendant failed to receive sufficient actual notice of the hearing date, as defendant suggests. We further reject the argument that a subpoena was necessary, as defendant, and his counsel, received notice of a hearing date in open court (their failure to clarify the date notwithstanding).

Next, we consider whether the time period for commencing trial was interrupted by defendant’s failure to appear for the bond hearing, and specifically, whether the record supports a finding of interruption based upon defendant’s “fail[ure] to appear at any proceeding pursuant to actual notice, proof of which | ^appears of record” pursuant to La.C.Cr. Pr. art. 579(A)(3). In interpreting this statute, the Louisiana Supreme Court stated:

... La.C.Cr.P. art. 579(A)(3) does not impose on the state the affirmative duty to search for a defendant who has failed to appear for trial after receiving actual notice. The 1984 amendment of La. C.Cr.P. art. 579 made a defendant’s contumacious failure to appear for trial after receiving notice, a direct contempt of court, La.C.Cr.P. art. 21(A)(1), a ground of interruption of the time limits in La. C.Cr.P. art. 578 for bringing him to trial, without regard to whether he thereby intended to avoid prosecution altogether by rendering himself a fugitive from justice, or whether he had otherwise placed himself beyond the control of the state to secure his presence for trial.

State v. Romar; 2007-2140, p. 6 (La.7/1/08) 985 So.2d 722, 726. While defendant correctly notes that the State bears the heavy burden of “showing that it is excused from trying the accused on a charge later than the period of time mandated by La.C.Cr. Pr. art. 578,” the Romar decision clearly set forth the burden under Article 579:

The burden under La.C.Cr.P. art. 579(A)(3) thus falls not on the state to show that defendant [hasjplaced himself outside of its control to secure his presence at trial but on defendant and his sureties to avoid the consequences of his failure to appear in court after receiving notice and one of those consequence ... is the interruption of the time limits placed on trial.

Id., pp. 7-8, 985 So.2d at 727.

Similarly in State v. Baptiste, 2008-2468 (La.6/23/10), 38 So.3d 247, the Supreme Court again noted that the State had no duty under Article 578 to monitor an arrest warrant and therefore, was under no obligation to locate a defendant who [ 7was subsequently incarcerated in another parish. This Court recently summarized the application of the Romar and Baptiste decisions: “[i]f the prescriptive period [has] been interrupted by record proof of actual notice, no further action on the part of the prosecution would be required to carry its burden.” State v. Dillon, 2011-0188, p. 6 (La.App. 4 Cir. 8/24/11), 72 So.3d 473, 477. We also noted in State v. Sorden, 2009-1416, p. 14 (La.App. 4 Cir. 8/4/10), 45 So.3d 181, 189 that “[h]ad [defendant] been adequately notified [of the arraignment], the prosecution’s reinstitution of the charge would have been timely, as the prosecution would not bear the burden of showing that it attempted to locate her, and the time limits [for commencing trial] would then have been interrupted until her reappearance.”

Applying these principles to the instant matter, we find that the State met its burden of proving an interruption of the time limitation set forth in Article 578 based on defendant’s failure to appear at the bond hearing. In his appellate brief, defendant submits that the record “suggests that [defendant] may have actually been in the custody of Jefferson Parish at the time of his arraignment and thus, he may have still been there nine days later when he was supposed to be in court” (second emphasis added). Defendant further states that “the State failed to disprove the very real possibility that [defendant] was in the Jefferson Parish Prison on the date he was supposed to appear in court in Orleans Parish” (emphasis added). Defendant does not once state that he was actually incarcerated on May 5, 2005.

Likewise, the transcript of the April 26, 2005 arraignment does not affirmatively show that defendant would be incarcerated at the time of the May 5, 2005 bond hearing and neither defendant nor his counsel challenged the prosecutor’s statement that she thought defendant had “[made] a bond in Jefferson | sParish.” Even at the February 11, 2011 and March 11, 2011 hearings, no explanation was offered as to why defendant failed to appear at the May 5, 2005 hearing. Defendant’s written motion to quash broadly states that “[f]rom May 5, 2005 until January 10, 2011, [defendant] was incarcerated several times in Jefferson Parish, beginning February 21, 2006 until June 28, 2008, when [defendant] began an eight (8) year sentence” (emphasis added). However, this statement suggests that defendant was not incarcerated in May 5, 2005, as he specifically states that his incarceration began on February 21, 2006.

Further, our review of the record fails to indicate the whereabouts of defendant from April 26, 2005 until June 26, 2008, when, as indicated by his motion to quash, he was remanded to Jefferson Parish to commence his sentence under case 07-02945 (suggesting defendant’s charge in Jefferson Parish was not billed until 2007). Defendant’s position appears to be that the State “likely knew his whereabouts” based upon his several subsequent imprisonments in Jefferson Parish and, therefore, could have timely brought him in for trial.

Based upon Remar and its progeny, we find that the State had no “affirmative duty to search for a defendant” after he failed to appear at the May 5, 2005 bond hearing. As such, the interruption of the time limitation for commencing trial began to run anew when the cause of the interruption no longer existed. In Romar, the cause of the interruption ceased when defendant was arrested on an open attachment.

|9In this matter, the record, as a whole, is silent as to the how and when the State became aware of defendant’s whereabouts and how he came to appear before the trial court on January 11, 2011. Presumably, the State knew of defendant’s whereabouts as of December 10, 2011, when the State requested a hearing and notice to be given to defendant. Accordingly, the record fails to demonstrate when the interruption of Article 578’s time limitation no longer existed. We therefore remand this matter to the trial court for consideration of when “the period[ ] of limitation established by Article 578 ... commence[d] to run anew” under Article 579.

REVERSED AND REMANDED.

LEDET, J., dissents with reasons.

LEDET, J.,

dissents with reasons.

liOnce a defendant establishes the State’s failure to bring him to trial within the period specified by La.C.Cr.P. art. 578, the State has a heavy burden of establishing an interruption or a suspension of the period. State v. Morris, 99-3235, p. 1 (La.2/18/00), 755 So.2d 205 (collecting cases). In this case, the State contends that it established an interruption. In support, the State cites La.C.Cr.P. art. 579 A(2), which provides that the period is interrupted when “[t]he defendant fails to appear at any proceeding pursuant to actual notice, proof of which appears of record.”

At the April 26, 2011 hearing, the trial court ordered that the defendant be provided with actual notice in court of the May 5, 2011 hearing. Although the defendant was provided with actual notice, neither the defendant nor his attorney appeared for the May 5, 2011 hearing. The State’s position, which the majority accepts, is that these circumstances are sufficient to establish an interruption under Article 579 A(2). I disagree.

It is undisputed that for some period before the April 26, 2011 hearing the defendant was incarcerated in Jefferson Parish on unrelated charges. Indeed, the record reflects that the State filed motions for writs of habeas corpus ad prosequendum on two separate occasions between March 30, 2005 and April 13,122005, directing the Jefferson Parish Correctional Center to deliver the defendant to court in this case. The State, however, failed to file a third motion for writ of habeas ad prosequen-dum to secure the defendant’s presence at the May 5, 2011 hearing. The State also failed to introduce any evidence that the defendant was not incarcerated on May 5, 2011. If the defendant was incarcerated— a fact that cannot be ascertained from the record — he could not produce himself at the May 5, 2011 hearing. Nonetheless, if the defendant was incarcerated, his presence for the hearing could have been secured by the State filing a third motion for writ of habeas.

The requirement under Article 579 A(2) of “actual notice” of the hearing implicitly includes a requirement that the defendant have the ability to produce himself for the hearing. An incarcerated defendant cannot produce himself; rather, an incarcerated defendant’s presence must be secured by the State filing a motion for writ of habeas corpus. See La.C.Cr.P. art. 351. The State in this case neither filed a writ of habeas corpus nor established that the defendant was not incarcerated at the time of the May 5, 2011 hearing.

Given these circumstances, I would find that the State failed to meet its heavy burden of proving its entitlement to an interruption under Article 579 A(2). See State v. Bobo, 03-2362, pp. 4-5, (La.4/30/04), 872 So.2d 1052, 1055-56 (quoting State v. Chadboume, 98-1998, p. 1 (La.1/8/99), 728 So.2d 832)(noting that “ ‘[t]his heavy burden “requires the State to exercise due diligence in discovering the whereabouts of the defendant as well as taking appropriate steps to secure ' his presence for trial once it has found him.” ’ ”) For these reasons, I would | ¡¡find that the trial court did not abuse its discretion in granting the defendant’s motion to quash.

      . There is some information in the record that defendant was charged with possession of marijuana as well and the transcripts of the hearings suggest this second charge. However, the bill of information and the majority of the other documents in the record note only a charge of possession of cocaine in this matter. We note that the Arrest Register and Incident Report are the only documents in the record which mention the possession of marijuana charge.

      . The docket report and a minute entry reflect that counsel for defendant again appeared in court the following date, April 13, 2005 for "hearing on motions” and the State filed another Writ of Habeas Corpus Ad Prosequen-dum.

      . There is nothing in the record to indicate that defendant appeared in court on May 3, 2005 either.

      . The record is silent as to what transpired between the April 26, 2005 hearing and December 8, 2010 when the State filed a request for hearing which resulted in defendant's appearance in court on January 10, 2011.

      . We note that defendant’s written motion to quash refers to an Exhibit '"A” which reportedly evidences that defendant was remanded to the custody of Jefferson Parish on June 26, 2008 to begin an 8 year sentence. The record, however, does not contain a copy of Exhibit “A.” Likewise, the Motion refers to an Exhibit "B,” which reportedly reflects a July 8, 2008 transfer from Jefferson Parish to the Hunt Correction Facility. The record does not contain a copy of Exhibit "B.”

      . We note that the co-defendant, Louis Williams, also failed to appear on December 12, 2006 and according to the record, a capi-as remains outstanding.

      . Id., p. 3, 985 So.2d at 725, citing State v. Chadbourne, 98-1998, p. 1 (La. 1/8/99), 728 So.2d 832.

      . At the hearings on defendant’s motion to quash, his counsel argued that he was incarcerated in 2007 for eleven months and again commencing on June 26, 2008 for an eight-year sentence (presumably in aforementioned case no. 07-0295). Defendant references Exhibit "A,” which, again, does not exist in the record.

      . A writ of habeas corpus ad prosequendum is defined as " '[a] writ which issues when it is necessary to remove a prisoner in order to prosecute in the proper jurisdiction wherein the fact was committed.’ ” State v. Teiry, 458 So.2d 97, 99 (La.1984) (quoting Black's Law Dictionary 837 (4th ed.1968))


author: JOY COSSICH LOBRANO, Judge.

text:
    Emmett E. CARTER, Jr., Individually and on Behalf of the Emmett E. Carter, Jr. Individual Retirement Account v. James R. HOLDMAN, NWT Financial Group, LLD, and Penson Financial Services, Inc.
    No. 2011-CA-1473.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 23, 2012.

      Winston W. Riddick, Baton Rouge, LA W. Andrew Clayton, Jr. (Pro Hac Vice), Johnson, Browing, & Clayton, Sarasota, FL, for Plaintiff/Appellee.
    Craig Isenberg, Barrasso Usdin Kup-perman Freeman & Sarver, LLC, New Orleans, LA, Mark G. Hanchet (Pro Hac Vice), Mayer Brown, LLP, New York, NY, for Defendant/Appellant.
    (Court composed of Chief Judge CHARLES R. JONES, Judge DANIEL L. DYSART, Judge JOY COSSICH LOBRANO).
   JOY COSSICH LOBRANO, Judge.

1 defendant, Penson Financial Services, Inc. (“Penson”), appeals a district court judgment confirming an arbitration award rendered in favor of Emmett E. Carter, Jr. (“Mr. Carter”). For the reasons that follow, we affirm.

In January 2006, Mr. Carter retired from ExxonMobil, after thirty-five years of service at its refinery in Baton Rouge. In addition to stock, Mr. Carter received a lump sum retirement distribution of $513,544.00 from the ExxonMobil Retirement Plan as well as $595,000.00 from the ExxonMobil Savings Plan for employees. On the advice of James R. Holdman (“Mr. Holdman”), a licensed security broker and registered representative of Electronic Access Direct, Inc. (“E.A. Direct”), a financial securities firm, Mr. Carter set up an Individual Retirement Account (“IRA”) and invested the retirement money in two hedge funds (“the Wing Funds”) managed by Mr. Holdman. Penson, a “clearing broker,” provided ministerial services for E.A. Direct, which included processing the fund manager’s trade instructions, i.e., buying and selling securities, and preparing 12monthly statements for investors. Pen-son also served as custodian of Mr. Carter’s IRA.

After E.A. Direct went out of business in 2007, Mr. Holdman became a registered representative of NWT Financial Group, LLC (“NWT”), but continued to manage the Wing Funds. Penson remained the clearing broker for NWT and the custodian of Mr. Carter’s IRA. Both Penson and Mr. Holdman sent monthly statements to Mr. Carter reporting the status of his investments. Despite the declining financial markets, the monthly statements indicated Mr. Carter’s investments were either stable or increasing in value. Nonetheless, in October 2008, Mr. Carter received a notice from Mr. Holdman that the values of the Wing Funds had plummeted, resulting in a substantial loss of his investments.

In July 2009, Mr. Carter filed a “Statement of Claim” with the Financial Industry Regulatory Authority (“FINRA”), asserting causes of action against Mr. Holdman, NWT, Penson and others for breach of contract, breach of fiduciary duty, negligence, fraud, and violations of Louisiana securities laws. He requested compensatory damages in excess of $1,000,000.00, exemplary damages, and attorney’s fees. Mr. Holdman, NWT, and Penson answered the claim, denying the allegations.

Pursuant to the FINRA Arbitration Submission Agreement executed by the parties, the matter was submitted to a three member arbitration panel for 1 ^resolution. Following a hearing, the panel rendered a 2-1 decision, holding Penson, NWT and Mr. Holdman jointly and severally liable, and awarded Mr. Carter compensatory damages of $851,368.74, expert witness fees of $17,798.50, and legal interest from the date of filing the claim. In written reasons, the dissenting arbitrator opined that the award should not exceed $700,000.00, Mr. Carter should share some responsibility, and the market conditions contributed to Mr. Carter’s financial losses.

Pursuant to the Federal Arbitration Act, 9 U.S.C. § 1, et seq., and the Louisiana Binding Arbitration Law, La. R.S. 9:4201, et seq., Mr. Carter filed a petition in the district court to confirm the arbitration award. Penson, on the other hand, filed a motion to vacate the award,-asserting that (1) the arbitration panel manifestly disregarded the law of causation by awarding Mr. Carter his total damages despite undisputed evidence that the declining stock market contributed to his losses; and (2) the arbitration panel disregarded Texas law (the law applicable to the dispute), by holding the responsible parties jointly and severally liable rather than apportioning fault among them. Following a hearing, the district court rendered the judgment confirming the award.

Arbitration is a substitute for litigation. The purpose of arbitration is the settlement of differences in a fast, inexpensive manner before a tribunal of the | parties’ choice; this purpose is defeated when participants seek judicial review of an arbitration award. Johnson v. U25 Dauphine, L.L.C., 2010-0793, p. 7 (La.App. Cir.12/1/10), 52 So.3d 962, 967, writ denied, 2011-0001 (La.2/18/11), 57 So.3d 334 (Citation omitted). Pursuant to La. C.C. arts. 3099, et seq., and La. R.S. 9:4201, et seq., arbitration is favored in Louisiana. Dicarte v. Landrieii, 2008-0249, p. 3 (La.App. 4 Cir. 9/10/08), 993 So.2d 799, 801. Therefore, arbitration awards are presumed to be valid. Id. (Citing American LifeCare, Inc. v. Wood, 2002-1354, p. 5 (La.App. 4 Cir. 8/28/02), 826 So.2d 646, 649).

Errors of fact or law do not invalidate an arbitration award. Montelepre v. Waring Architects, 2000-0671, 2000-0672, p. 4, (La.App. 4 Cir. 5/16/01), 787 So.2d 1127, 1130. Because the parties must agree to arbitration, they are presumed to accept the risk of procedural and substantive mistakes of either fact or law. Id. at p. 5, 787 So.2d at 1130 (citation omitted). Therefore, an arbitration award must be confirmed by the trial court unless statutory grounds for vacating it exist. Id. at p. 4, 787 So.2d at 1130 (citation omitted). The burden of proof is on the party attacking the award. Id. (Citations omitted).

La. R.S. 9:4210 sets forth the sole grounds for vacating an arbitration award, which are:

A. Where the award was procured by corruption, fraud, or undue means.
B. Where there was evident partiality or corruption on the part of the arbitrators or any of them.
C. Where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy, or of any |fiother misbehavior by which the rights of any party have been prejudiced.
D. Where the arbitrators exceeded their powers or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.

In the instant case, Penson argues that the majority arbitrators “exceeded their powers” and manifestly disregarded the law by failing to consider evidence that the declining stock market contributed to Mr. Carter’s losses. Penson contends that it presented the arbitration panel with un-controverted evidence that the Dow Jones Industrial Average, i.e., the stock market index, declined by 19.2% during the period that Mr. Carter invested with Mr. Hold-man. Penson points out that.even if Mr. Carter had never invested funds with Mr. Holdman, his holdings still would have declined by a comparable amount and therefore his claimed damages, at the very least, should be discounted.

Penson also argues that the majority arbitrators, by holding the defendants jointly and severally liable, disregarded Tex. Civ. Prac. & Rem. § 38.013, which bars joint and several liability unless a party is more than 50% responsible for damages. Penson contends that given the evidence the arbitration panel could not have found it more than 50% responsible for Mr. Carter’s damages.

|fiWe find no merit to Penson’s arguments. The record indicates the arbitration panel was presented with undisputed evidence that the stock market declined 19.2% between January 2006 and December 2008. Nonetheless, Mr. Carter testified that although he had informed Mr. Holdman that he did not want to invest his retirement money in “risky” investments, Mr. Holdman had assured him that hedge funds perform well in “up or down” markets, and would make money either way. Mr. Carter also presented evidence that the monthly statements Penson and Mr. Holdman sent to him were false and misleading. According to Mr. Carter, if he had known the statements were false, then he would have withdrawn his money from the hedge funds well before the market crashed in September 2008. Expert witness Nicholas Vu, a financial analyst, verified that Mr. Carter could have withdrawn his money from the hedge funds prior to November 2007, without sustaining a net loss, had he known the actual value of the funds. James Lenaghan, an expert on IRAs, testified that Penson, as the IRA custodian, had a fiduciary duty to annually report the value of each hedge fund to Mr. Carter.

The evidence clearly supports the arbitration panel’s majority decision. The fact that the dissenting arbitrator would have attributed some liability to Mr. Carter and reduced the total damages, given the evidence of the stock market decline, is not a basis under La. R.S. 9:4210 for vacating or modifying the arbitration award. Moreover, nothing in the record indicates that the arbitration panel failed to apply Texas law as required under the terms of the Penson Customer Service Agreement. Regardless, errors of fact or law do not invalidate an arbitration agreement. See Montelepre, supra.

^Because Penson has failed to satisfy its burden of proving a statutory basis under La. R.S. 9:4210 to vacate or modify the arbitration award, we find no error in the district court judgment confirming the award.

Accordingly, the district court judgment is affirmed.

AFFIRMED

      . After the death of Mr. Carter on May 2, 2011, his surviving spouse, Patricia R. Carter, was substituted as the plaintiff/appellee in this matter.

      . Mr. Carter asserted claims against Leslie M. Hausse, a licensed security broker and NWT agent who occasionally advised him, as well as Scott D. Johnson, a securities trader. Mr. Carter settled his claims against Mr. Hausse and Mr. Johnson prior to the arbitration hearing.

      . The record indicates that Mr. Holdman did not sign the FINRA Arbitration Submission Agreement, but consented to arbitration as a condition of maintaining a securities industry registration and license.

      . The Penson Customer Service Agreement signed by Mr. Carter provided:

        15. Miscellaneous ... This Agreement and its enforcement shall be governed by the laws of the state of Texas and shall cover individually and collectively all accounts which the undersigned has previously opened, now has open or may open or reopen with you ... and any and all previous, current and future transactions in such accounts.

      . Tex. Civ. Prac. & Rem. § 33.013, provides, in pertinent part:
      § 33.013. Amount of Liability
      (a) Except as provided in Subsection (b), a liable defendant is liable to a claimant only for the percentage of the damages found by the trier of fact equal to that defendant’s percentage of responsibility with respect to the personal injury, property damage, death, or other harm for which the damages are allowed.
      (b) Notwithstanding Subsection (a), each liable defendant is, in addition to his liability under Subsection (a), jointly and severally liable for the damages recoverable by the claimant under Section 33.012 with respect to a cause of action if:
      (1) the percentage of responsibility attributed to the defendant with respect to a cause of action is greater than 50 percent;


author: MAX N. TOBIAS, JR., Judge. LANDRIEU, J.,

text:
    Denis J. DWYER v. David A. BINEGAR, Binegar Christian, L.L.C., Bryan C. Reuter and Stanley, Flanagan and Reuter, L.L.C.
    No. 2011-CA-1782.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 23, 2012.
    Daniel J. Mackel, Jr., New Orleans, LA, for PlaintiffAppellant.

      Gustave A. Fritchie, III, Edward W. Trapolin, Irwin Fritchie Urquhart & Moore, LLC., New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge MAX N. TOBIAS, JR., Judge MADELEINE M. LANDRIEU).
   MAX N. TOBIAS, JR., Judge.

1, Denis J. Dwyer (“Dwyer”), the plaintiff/appellant, appeals a judgment that dismissed his lawsuit against the defendants/appellees, (a) David A. Binegar (“Binegar”); (b) Binegar Christian, L.L.C.; (c) Bryan C. Reuter (“Reuter”); (d) Stanley, Flanagan and Reuter, L.L.C., (hereinafter the “defendant lawyers”); (e) CNA Insurance Company (“CNA”); and (f) Westport Insurance Corporation. After reviewing the record and applicable law, we reverse the judgment below, finding that the trial court erred in granting the exceptions of prematurity and no right of action filed by all the defendants, except CNA.

In May 2006, Dwyer invested $250,000.00 -with MBS Realty Investors, Ltd., (“MBS”), a partnership, for which he was to receive and did receive “dividends.” For referring other investors to MBS, an additional sum of $11,500.00 was recognized toward the amount of Dwyer’s investment with MBS.

In August 2006, Dwyer made a second investment with MBS in the amount of $250,000.00 and received a further credit for his investment in the sum of 12$5,000.00 for referral of other investors. Dwyer continued to receive “dividends” for the sums invested until the second quarter of 2007 after which the dividend payments stopped. On 80 October 2007, Dwyer received notice by letter from Edwin White (“White”), a partner of MBS, informing him that Michael B. Smuck (“Smuck”), another partner of MBS, had fraudulently misappropriatéd, commingled, and/or converted investment funds of Dwyer and other investors that had been paid to MBS.

On 26 September 2008, the plaintiff and other investors employed the defendant attorneys to prosecute a claim for damages against Smuck, White, and other persons or entities responsible for the conversion, commingling, misappropriation, gross mismanagement of sums invested by him and others in MBS. Dwyer was informed that such a suit had been filed on his behalf.

In late February 2010, Dwyer requested a copy of the lawsuit. On 26 April 2010, Dwyer learned from Binegar that his name had been omitted from the matter entitled, “Ben Louviere, Edward Richardson, Charles and Deborah Settoon, Patrick L. Donahue and Rebecca B. Donahue v. Michael Smuck, et al,” No. 665-161, Division “K”, 24th Judicial District Court for the Parish of Jefferson (the “underlying case”). On 28 April 2010, Binegar filed an amended and supplemental petition adding Dwyer as a plaintiff in the underlying case.

Sometime thereafter, it is alleged that Binegar informed Dwyer that he and the other defendant attorneys “no longer had time” to prosecute his cause of action |sor those causes of action of the other plaintiffs in the underlying case and, therefore, Dwyer should seek other counsel.

On 7 May 2010, Dwyer met with a new attorney who informed him that any cause of action he might have had against the defendants in the underlying action had prescribed. The lawyer explained that the 28 April 2010 amended and supplemental petition adding him as a party plaintiff would not “relate back” to the date that the original suit was filed since Dwyer lacked a “commonality of interest” with the other plaintiffs for whom suit had been timely instituted in September 2008.

In response to the amended and supplemental petition filed on Dwyer’s behalf, the various defendants in the underlying matter filed answers and peremptory exceptions of prescription. The record on appeal does not reflect that the exceptions have been set for hearing or disposed of definitively.

On 30 November 2010, Dwyer filed the instant legal malpractice suit against the defendant attorneys. The malpractice insurers were added later. In May 2011, the defendant attorneys filed exceptions of prematurity, no right of action, no cause of action, and preseription/peremption, seeking to dismiss Dwyer’s lawsuit. The matters were heard on 4 August 2011.

The trial court rendered judgment on 24 August 2011, granting the exceptions of prematurity filed by the defendant lawyers and dismissed Dwyer’s claims without prejudice. The trial court also granted the defendant lawyers’ exceptions of no right of action, dismissing the claims with prejudice. The 14exceptions of prescription/per-emption were pretermitted due to the previous rulings. Finding no just cause for delay, the trial court designated the judgment as final pursuant to La. C.C.P. art. 1915 B.

In its 6 October 2011 reasons for judgment, the trial court found no evidence that Dwyer’s rights in the underlying action had been adversely affected because his claims had not been dismissed as prescribed and, as of the hearing on 4 August 2011, the pending exceptions in the underlying case had not been set for hearing. The court noted that exceptions of prescription had been filed against all the plaintiffs, not just Dwyer, and that no activity has taken place regarding any of the exceptions and affirmative defenses. The court further noted that no exception of prescription had been specifically raised against Dwyer based on the fact that he was added as a party plaintiff in April 2010. Further, the trial court opined that Dwyer provided no evidence that his claims would not relate back and be timely, if such an exception were heard against him.

Finally, the court noted that, even if the defendant lawyers had breached a duty to Dwyer in the context of an attorney-client relationship, the Supreme Court, in Brand v. New England Ins. Co., 576 So.2d 466, 468 (La.1991), stated that “[t]he mere breach of a professional duty, causing only nominal damages, speculative harm, or the threat of future harm — not yet realized— does not suffice to create a delictual action.”

IsThis timely appeal followed.

Dwyer has set forth several assignments of error for review. However, they can be summed up as follows:

• Whether the trial court committed legal error in concluding that his lawsuit against the defendant attorneys is premature until an exception of prescription in the underlying case is heard, rather than when the exception is filed; and
• Whether the trial court committed legal error in concluding that he had no right of action for legal malpractice against his former attorneys for failing to timely file a lawsuit on his behalf until an exception of prescription is sustained in the underlying case, rather than when the exception is filed.

Pursuant to La. C.C.P. art. 926, a dilatory exception of prematurity must be specifically pleaded and if not pleaded is waived. The dilatory exception of prematurity questions whether the cause of action has matured to the point where it is ripe for judicial determination. Williamson v. Hospital Service Dist. No. 1 of Jefferson, 04-0451, p. 4 (La.12/1/04), 888 So.2d 782, 785.

The time period in which to file a legal malpractice action is found in La. R.S. 9:5605, which states in pertinent part:

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

A straightforward reading of the statute provides two peremptive periods. Teague v. St Paul Fire & Marine Ins. Co., 07-1384, p. 11 (La.2/1/08), 974 So.2d 1266,1274. Under La. R.S. 9:5605 B, both the one-year and three-year periods are peremptive and, thus, cannot be renounced, interrupted, or suspended under La. C.C. art. 3461. Reeder v. North, 97-0239, p. 9 (La.10/21/97), 701 So.2d 1291, 1297. Thus, legal malpractice actions must be filed no later than one year from the date the plaintiff discovered, or should have discovered, the alleged malpractice but no later than three years from the date of the alleged malpractice, whichever comes first. Brumfield v. McElwee, 07-0548 (La.App. 4 Cir. 1/16/08), 976 So.2d 234.

In Burk Property Investments, L.L.C. v. Alliance Insurance Agency Sewices, Inc., 08-0489, p. 5 (La.App. 4 Cir. 9/10/08), 993 So.2d 810, 814, we held that peremption in legal malpractice cases begins to run from the date of discovery, not the date that damages begin to accrue.

No one contests the fact that Dwyer discovered that he had not been included as a party in the underlying case on 26 April 2010; this legal malpractice action was filed on 30 November 2010, well within one year of that discovery. |7However, the issue of whether his claims in the underlying action are prescribed or relate back has not been addressed. The defendant lawyers argue that Dwyer will not have a cause or right of action against them for legal malpractice until he is dismissed from the underlying suit. This rationale, however, ignores the fact that the three-year peremptive period will accrue on 26 April 2013, approximately one year from now. In other words, if the issues of prescription and relating back are not determined before 26 April 2013, Dwyer’s cause of action for legal malpractice will be extinguished.

In Reeder v. North, 97-0239 (La.10/21/97), 701 So.2d 1291, 1298-99, the plaintiff originally sued in federal court on 10 July 1989, to recover damages sustained as the result of an alleged check kiting and Ponzi scheme, alleging violations of state and federal securities laws. His complaint was dismissed by the district court, and that dismissal was affirmed on appeal. Pending the appeal, the plaintiff filed a separate state court action against the same defendants, asserting other claims arising under Louisiana law. That action was ultimately dismissed on the grounds that the federal judgment was res judicata as to the omitted Louisiana law claims. The plaintiff then sued his attorneys on 15 September 1994, for their negligence in failing to include the Louisiana law claims in the‘federal suit. The court of appeal held that, until the judgment giving rise to the malpractice claim became definitive, a legal malpractice claim did not ripen into a cause of action. In that vein, the appellate court held that the plaintiffs claim did not “ripen” until the U.S. Supreme Court denied certiorari in the federal action.

The Louisiana Supreme Court squarely rejected the court of appeal’s conclusion that the peremptive period did not begin to run until the U.S. Supreme Court denied certiorari. It likewise rejected the plaintiffs argument that “his | smalpractice claim might have been dismissed as premature” if filed while the underlying action was still on appeal. Id. at p. 7, 701 So.2d at 1296. The Court expressly recognized “the perceived inequities of this statute,” but held that the date of the negligent act itself, not the judgment giving definitive effect to that act, triggers the one-year and three-year periods. Id. While also recognizing the possibility that “a person’s claim may be extinguished before he realizes the full extent of his damages,” the Court held that the establishment of a peremptive statute of limitations is “exclusively a legislative prerogative.” Id. at p. 9, 701 So.2d at 1296.

In Augman v. Colwart, 03-0869 (La. App. 1 Cir. 2/23/04), 874 So.2d 191, Aug-man was charged with the criminal felony offense of possession of a firearm by a convicted felon in proceedings in the 16th Judicial District Court for St. Mary Parish. The court assigned him counsel from the St. Mary Parish Indigent Defender’s Office based on his indigent status. Aug-man’s defense was undertaken by the defendant, the chief indigent defender. Following a jury trial, Augman was convicted as charged on 23 October 2001. His conviction was ultimately affirmed on appeal, although the original sentence was amended.

Augman filed his petition against the defendant on 22 October 2002, alleging that Colwart committed a number of acts constituting malpractice during his representation of Augman through the conclusion of the trial. He further alleged that Colwart was liable for acts constituting breach of contract, fraud, and conspiracy to deprive him of his constitutional rights prior to his conviction.

Colwart filed an exception of prematurity in response to the petition. A hearing on the exception was held, after which, the trial court sustained the exception. Aug-man appealed that judgment.

|nThe First Circuit examined the law and the facts presented, stating:

Here, the issue is the “other side of the coin.” If the plaintiff in a legal malpractice claim cannot urge the suspension of peremption of his cause of action, or that his cause of action does not “ripen” and the peremptive period does not begin until a definitive judgment in the original litigation, then it seems obvious that the defendant may not urge prematurity as a defense on the same grounds. To hold otherwise would lead to the absurd result that a suit for legal malpractice would always be premature pending a final and definitive judgment on the relevant issue in an underlying action, even if the peremp-tive period accrues prior to that time, extinguishing the cause of action. Such an interpretation is not only unreasonable, but patently unjust. The Supreme Court’s holdings in Brand v. New England Insurance Company, 576 So.2d 466 (La.1991) ] and Reeder [v. North, 97-0239 (La.10/21/97), 701 So.2d 1291] compel the conclusion that the dilatory exception pleading prematurity is not properly applicable to this cause of action.

Id. at p. 6, 874 So.2d at 194

In S. Parish Oil Co. v. Slater Law Firm, 02-1717 (La.App. 4 Cir. 4/9/08), 844 So.2d 1056, the plaintiff, a debtor in a pending bankruptcy proceeding, brought a legal malpractice action against its attorneys in state court. The defendants argued that the state trial court lacked jurisdiction over the matter based on the argument that the state court matter involved core issues germane to the ongoing bankruptcy case in federal court. The trial court granted the defendants’ declinatory exception of lack of subject matter jurisdiction and dilatory exception of prematurity. The effect of that judgment, if allowed to stand, would virtually dismiss the appellants’ state action.

In the interests of judicial economy and equity, we found that the trial court erred in granting either of the exceptions. For that reason, we vacated the trial court’s judgment and ordered that the trial court stay further proceedings pending | inthe final disposition of the matter in the United States Bankruptcy Court for the Eastern District of Louisiana; at that time both parties could reassert their claims.

Similarly, in the interests of judicial economy and equity, we find that the trial court erred in granting the exceptions of prematurity. Because an exception of prescription may be heard at any stage of the proceeding in the trial court, see La. C.C.P. art. 928 A, it could be sometime until the issue is resolved in the underlying case.

The trial court also held that Dwyer had no right of action. In other words, the defendant attorneys argued at the hearing that they did not have an attorney-client relationship with Dwyer. Louisiana jurisprudence provides that, to establish a claim for legal malpractice, a plaintiff must first prove the existence of an attorney-client relationship. Costello v. Hardy, 03-1146, p. 9 (La.1/21/04), 864 So.2d 129,138.

In St. Paul Fire and Marine Ins. Co. v. GAB Robins N. Am., Inc., OS-331, pp. 8-9 (La.App. 4 Cir. 11/19/08), 999 So.2d 72, 77, we stated:

The existence of an attorney-client relationship turns largely on the client’s subjective belief that it exists. Louisiana State Bar Association v. Bosworth, 481 So.2d 567, 571 (La.1986); Francois v. Andry, 05-0388 (La.App. 4 Cir. 4/5/06), 930 So.2d 995. However, a person’s subjective belief that an attorney represents him must be reasonable under the circumstances. Exhibition [Exposition] Partner, L.L.P. v. King, Le-Blanc & Bland, L.L.P., 03-580 (La.App. 4 Cir. 3/10/04), 869 So.2d 934; Williams v. Roberts, 06-169 (La.App. 3 Cir. 5/31/06), 931 So.2d 1217. The requirement that the belief be reasonable is an objective standard. “The claimant’s subjective belief does not establish an attorney-client relationship unless the lawyer reasonably induced that belief.” Ronald E. Mallen and Jeffrey M. Smith, 1 Legal Malpractice § 8:3 (2008 ed.). For this reason, an attorney client Inrelationship cannot exist in the absence of any initial communication — verbal, written, or otherwise — between the attorney and the client. Lirette v. Roe, 93-0441 (La.App. 4 Cir. 1/13/94), [631 So.2d 503] 631 So.2d 503, 506.

At the 4 August 2011 hearing, Binegar admitted that he represented Dwyer in the underlying matter. Therefore, the trial court clearly erred when it granted the exception of no right of action dismissing Binegar and his law firm. We reverse that part of the judgment.

As to Reuter and his law firm, we find insufficient evidence in the record to support the granting of the exception of no right of action filed by them. Therefore, we reverse that part of the judgment as well.

Consequently, we reverse the judgment of the trial court and remand the matter to the court below. The trial court is to issue a stay of these proceedings, to be lifted in whole or in part in order to facilitate the needs of the parties and to manage these proceedings as warranted. Once the issue of prescription has been determined finally and definitively in the underlying case, this matter may either proceed or be dismissed. To find otherwise could lead to the extinguishment of Dwyer’s cause of action against the defendants before one knows whether a party defendant herein actually may have malpracticed — an absurd result.

REVERSED; REMANDED.

LANDRIEU, J., concurs with reasons.

LANDRIEU, J.,

concurs with reasons.

hi agree with the majority that the trial court erred in granting the exceptions of prematurity and no right of action. I write separately to note that given the clear and unambiguous pronouncement of the legislature in La. R.S. 9:5605, the Louisiana Supreme Court’s holding in Reeder v. North, 97-0239 (La.10/21/97), 701 So.2d 1291, and our holding in Jeansonne v. Attorney’s Liability Assur. Soc., 2003-1985 (La.App. 4 Cir. 12/15/04), 891 So.2d 721, the dilatory exception of prematurity is not applicable to a cause of action for legal malpractice.

Accordingly, I respectfully concur.

      . CNA is the legal malpractice insurer of Binegar and his law firm.

      . The defendant attorneys also filed motions for a protective order; Reuter and his firm filed an exception of res judicata. The trial court held that the exception was not properly before it and that the motions were moot in light of its ruling on the other matters.

      . It certainly would, however, behoove Dwyer’s attorney to seek a resolution of that issue in the underlying case sooner rather than later.

      . The evidence exists only in the form of an affidavit. An affidavit, except with agreement by the parties, is inadmissible on an exception of no right of action. Live testimony is required. No objection was raised to the use of affidavits in this case by the parties.

      . See footnote 4 above. We understand that Reuter and his law firm were listed as co-counsel with Binegar.

      . Prescription begins to run when a claimant knew or should have known of the existence of facts that would have enabled him to state a cause of action for legal malpractice. Turn-bull v. Thensted, 99-0025, p. 8, (La.App. 4 Cir. 3/1/00), 757 So.2d 145, 150.


author: MAX N. TOBIAS, JR., Judge.

text:
    Walter THEODORE v. KRAZY KORNER.
    No. 2012-CA-0173.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 23, 2012.
    John Fox, John Fox & Associates, L.L.C., New Orleans, LA, for Plaintifl/Ap-pellant.
    Lydia Habliston Toso, Peter J. Butler, Jr., Richard G. Passler, Breazeale Sachse & Wilson, LLP, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge PAUL A. BONIN, Judge ROSEMARY LEDET).
   MAX N. TOBIAS, JR., Judge.

| ,The claimant, Walter Theodore (“Theodore”), seeks review of a ruling by the Office of Workers’ Compensation, determining that he was an independent contractor at the time of his alleged injury. Specifically, Theodore alleged that he was an employee of the defendant, Krazy Kor-ner, at the time of his work-related injury and entitled to workers’ compensation benefits. For the following reasons, we reverse and remand the ruling of the trial court.

On 4 June 2010, Theodore filed a disputed claim for workers’ compensation benefits, alleging that he was an employee of Krazy Korner. Krazy Korner is a bar located on Bourbon Street in the French Quarter of New Orleans. Theodore began working as a doorman at Krazy Korner in 2008, checking identifications and removing unruly patrons. He alleged that he received an injury in February 2010, during the course and scope of his employment at Krazy Korner when he picked up a patron and removed him from a stage where a band was playing.

Krazy Korner filed a motion for summary | ¡judgment, averring that Theodore was an independent contractor and therefore was not entitled to workers’ compensation benefits under the law. In support of its motion for summary judgment, Kra-zy Korner attached the affidavit of Dale Trosclair (“Trosclair”), manager of Krazy Korner, who asserted that he served as manager of the bar from March 2008 through December 2010. Trosclair stated that his responsibilities included hiring and firing employees, arranging work schedules, and supervising leave. He stated that Theodore was not under the supervision and control of Krazy Korner as Theodore himself determined the manner in which he performed his work. Trosclair averred that Theodore sat on a stool at the entrance and checked identifications and talked with potential customers. He asserted that Theodore was asked occasionally to escort a patron from Krazy Korner, but that that was rare. Further, he asserted that there were no physical requirements for Theodore’s job. Trosclair stated that Theodore was not exclusively employed by Krazy Korner and was free to be employed elsewhere.

Krazy Korner also attached to its motion the affidavit of Corky Irwin (“Irwin”). Irwin stated that he had been employed by Nicholas S. Karno # 1, Inc. for forty years. He asserted that he has been the manager/payroll clerk for the past fifteen years and served in that capacity during the entirety of Theodore’s employment. Irwin stated that Theodore was not entitled to leave time, a pension plan, any type of insurance, or any other type of employee benefit. He further noted that Theodore signed numerous documents attesting to his status as an independent contractor. These documents, and others, were attached as exhibits to Irwin’s affidavit.

Attached to Irwin’s affidavit is an acknowledgment of independent contractor status signed by Theodore wherein Theodore acknowledged that he would receive a Form 1099 for tax purposes and acknowledged that he understood that the company would not pay unemployment or social security contributions on |shis behalf. The document listed several factors that determined independent contractor status:

1. Work and contract is based upon their own time, conditions, dates and fees.
2. Work and contract per each individual job is based upon convenience.
3. Work and contract is based upon the fact that they provide their own insurance.
4. Work and contract on basis that they operate from home or own place of business.
5. Work and contract based upon fact that they make own decisions.

Also attached to Irwin’s affidavit is an Internal Revenue Service (“IRS”) Form W-9 signed by Theodore; an IRS Form 1099-MISC issued to Theodore for the 2010 tax year; and statements of earnings, revealing that Theodore worked between eight hours to thirty-eight hours per week.

In opposition, Theodore submitted his own affidavit. He averred that he was paid an hourly wage and reported to work at Krazy Korner on a schedule mandated by Krazy Korner. Further, he stated that he reported to work Wednesdays through Saturdays, from 7:00 p.m. until closing time and on Sundays from 2:00 p.m. until 8:00 p.m. Theodore stated that Krazy Korner exercised control over the manner in which he performed his job by instructing him in how to perform his job duties. He averred that he was the head of security, in which capacity he noted that his job duties included checking identifications at the entrance to Krazy Korner and escorting unruly patrons from Krazy Korner (which sometimes involved physically restraining and ejecting the unruly patron). Theodore stated that the incident giving rise to his injury occurred when an unruly patron jumped on the stage while |4the band was playing and he had to physically remove the patron from the stage and sustaining an injury in the process.

The workers’ compensation judge issued a judgment on 15 November 2011, granting the motion for summary judgment. This timely devolutive appeal followed.

An appellate courts review a summary judgment de novo. Morgan v. Bell, 10-0278, p. 2 (La.App. 4 Cir. 7/28/10), 44 So.3d 851, 852-853, writ den., 10-2004 (La.11/5/10), 50 So.3d 803. Thus, an appellate court asks the same questions as the trial court in determining whether summary judgment is appropriate: whether a genuine issue of material exists and whether the movant is entitled to judgment as a matter of law. Tate v. Progressive Sec. Ins. Co., 05-0393, p. 3 (La.App. 4 Cir. 3/22/06), 929 So.2d 188,190.

In his only assignment of error, Theodore contends that the determination by the workers’ compensation judge that he was an independent contractor was erroneous.

Workers’ compensation is a remedy between an employer and an employee and that absent such a relationship, there can be no recovery of workers’ compensation benefits for a work-related injury. Hillman v. Comm-Care, Inc., 01-1140, p. 6 (La.1/15/02), 805 So.2d 1157, 1161. Generally, an independent contractor does not qualify for workers’ compensation benefits. This court has noted that “the distinction between employee and independent contractor status is a factual determination to be decided on a case-by-case basis.” Tate v. Progressive Sec. Ins. Co., 08-0950, p. 2 (La.App. 4 Cir. 1/28/09), 4 So.3d 915, 916, citing Arroyo v. East Jefferson General Hosp., 06-799, p. 6 (La.App. 5 Cir. 3/13/07), 956 So.2d 661.

[fiUnder the Workers’ Compensation Act, an “independent contractor” means:

any person who renders service, other than manual labor, for a specified recompense for a specified result either as a unit or as a whole, under the control of his principal as to results of his work only, and not as to the means by which such result is accomplished, and are expressly excluded from the provisions of this Chapter unless a substantial part of the work time of an independent contractor is spent in manual labor by him in carrying out the terms of the contract, in which case the independent contractor is expressly covered by the provisions of this Chapter.

La. R.S. 23:1021(7).

In support of his argument that he is not an independent contractor, Theodore cites McLeod v. Moore, 44,022, (La.App. 2 Cir. 4/8/09), 7 So.3d 190, where the court noted that the Supreme Court had developed the following factors for determining whether or not an individual is an employee or independent contractor:

(1) there is a valid contract between the parties; (2) the work being done is of an independent nature such that the contractor may employ non-exclusive means in accomplishing it; (3) the contract calls for specific piecework as a unit to be done according to the independent contractor’s own methods, without being subject to the control and direction of the principal, except as to the result of the services to be rendered; (4) there is a specific price for the overall undertaking agreed upon; and (5) the duration of the work is for a specific time and not subject to and not subject to termination or discontinuance at the will of either side without a corresponding liability for its breach.

Id., p. 3, 7 So.3d at 192, citing Hickman v. Southern Pac. Transport Co., 262 La. ,102, 262 So.2d 385 (1972). (Krazy Korner likewise relied on the Hickman factors in its brief.)

| (¡This court recently noted that the “essence of the employer-employee relationship is the right to control.” Morgan, 10-0278, p. 3, 44 So.3d at 853, quoting Hill-man, 01-1140, p. 8, 805 So.2d at 1162. The Morgan court noted that the primary factors evidencing the right to control are “1) selection and engagement, 2) payment of wages, 3) power of dismissal and 4) power of control.” Morgan, 10-0278, p. 3, 44 So.3d at 853, quoting Hillman, 01-1140, p. 8, 805 So.2d at 1162. None of the factors alone is determinative. Rather, the court must consider the totality of the circumstances. Id., citing Harrington v. Hebert, 00-1548, p. 7 (La.App. 3 Cir. 5/23/01), 789 So.2d 649, 653.

In Morgan, the plaintiffs filed suit alleging that the vehicle driven by Dennis Morgan was struck by Johnny Bell, an alleged employee of COB Enterprise of Louisiana, Inc. (“COB”). Morgan, 10-0278, p. 1, 44 So.3d at 852. COB, a defendant therein, filed a motion for summary judgment, alleging that Mr. Bell was an independent contractor. Id., p. 2, 44 So.3d at 853. This court noted that

Before being hired, Bell was required to sign a COB hauling agreement; it labeled Bell as an “independent contractor.” He was paid by the ton, did not receive reimbursement of any expenses, did not receive benefits, and had no taxes withheld from his pay. According to the hauling agreement, COB did not have an exclusive arrangement with him and Bell was allowed to choose his own route when making the hauls on his own schedule. Conversely, Bell testified in his deposition that COB had at times designated a specific delivery time and could designate his route. Although COB had never told him what route to take, if it did, he would be compelled to follow COB’s instructions. COB also instructed him where to pick up and deliver each load. At the time of the accident, his truck was empty, but COB had already instructed him to get another load so he was ‘under dispatch’ when the accident occurred.

Id., p. 4, 44 So.3d at 854. We concluded that the trial court was presented with conflicting evidence regarding Bell’s status with COB that was subject to different | interpretations and thus created a genuine issue of material fact precluding summary judgment.

Krazy Korner, in its supporting affidavits, asserted that Theodore, like Mr. Bell in Morgan, signed a contract acknowledging that he was an independent contractor, did not receive any benefits, and did not have taxes withheld. Krazy Kor-ner claimed that Theodore was allowed to work elsewhere and he determined the manner in which his work was performed. However, Theodore testified that he received an hourly wage, he worked a schedule mandated by Krazy Korner, and that like Mr. Bell in Morgan he was subject to termination and in fact was terminated for failing to report to work while recuperating from his work-related injury.

Based upon our de novo review and applying the McLeod v. Moore factors, we find that the evidence regarding Theodore’s status is conflicting. Thus, we find that genuine issues of material fact exist that precludes the granting of the motion for summary judgment.

Accordingly, we reverse the judgment granting the motion for summary judgment filed by Krazy Korner and remand this matter to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

      . Krazy Korner is owned and operated by Nicholas S. Karno # 1, Inc.