text:
    STATE ex rel. Shawn WICKEM v. STATE of Louisiana.
    No. 2008-KH-2593.
    Supreme Court of Louisiana.
    April 24, 2009.
   In re Wickem, Shawn; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. O, No. 98-2298; to the Court of Appeal, Fifth Circuit, No. 02-KH-73.

This application is transferred to the Fifth Circuit Court of Appeal for consideration pursuant to the procedures outlined in that court’s en banc resolution of September 9, 2008. See State v. Cordero, 08-1717 (La.10-3-08), 993 So.2d 203.

WEIMER, J.,

concurs in part and dissents in part for the reasons assigned in State v. Cordero, 08-1717 (La.10-03-08), 993 So.2d 203.


source: Caselaw Access Project

author: WEIMER, J.,

license: Public Domain

text:
    STATE ex rel. Moses MAYER v. STATE of Louisiana.
    No. 2008-KH-2594.
    Supreme Court of Louisiana.
    April 24, 2009.
   In re Mayer, Moses; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. M, No. 89-754; to the Court of Appeal, Fifth Circuit, Nos. 94-KH-866, 06-KH-242, 06-KH-292.

This application is transferred to the Fifth Circuit Court of Appeal for consideration pursuant to the procedures outlined in that court’s en banc resolution of September 9, 2008. See State v. Cordero, 08-1717 (La.10-3-08), 993 So.2d 203.

WEIMER, J.,

concurs in part and dissents in part for the reasons assigned in State v. Cordero, 08-1717 (La.10-03-08), 993 So.2d 203.


text:
    STATE ex rel. Shedrick GIVENS v. STATE of Louisiana.
    No. 2008-KH-2633.
    Supreme Court of Louisiana.
    April 24, 2009.
   In re Givens, Shedrick; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. B, No. 95-2188; to the Court of Appeal, Fifth Circuit, Nos. 07/ KH7956, 99-KH-1244.

This application is transferred to the Fifth Circuit Court of Appeal for consideration pursuant to the procedures outlined in that court’s en banc resolution of September 9, 2008. See State v. Cordero, 08-1717 (La.10-3-08), 993 So.2d 203.

WEIMER, J.,

concurs in part and dissents in part for the reasons assigned in State v. Cordero, 08-1717 (La.10-03-08), 993 So.2d 203.


text:
    STATE ex rel. Joseph J. BRITTON, Jr. v. STATE of Louisiana.
    No. 2008-KH-2647.
    Supreme Court of Louisiana.
    April 24, 2009.
   In re Britton, Joseph J. Jr.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. A, No. 93-5014; to the Court of Appeal, Fifth Circuit, No. 07-KH-42.

This application is transferred to the Fifth Circuit Court of Appeal for consideration pursuant to the procedures outlined in that court’s en banc resolution of September 9, 2008. See State v. Cordero, 08-1717 (La.10-3-08), 993 So.2d 203.

WEIMER, J.,

concurs in part and dissents in part for the reasons assigned in State v. Cordero, 08-1717 (La.10-03-08), 993 So.2d 203.


text:
    STATE ex rel. Jerome GREEN v. STATE of Louisiana.
    No. 2008-KH-2683.
    Supreme Court of Louisiana.
    April 24, 2009.
   In re Green, Jerome; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. N, No. 99-0623; to the Court of Appeal, Fifth Circuit, No. 04-KH-1230.

This application is transferred to the Fifth Circuit Court of Appeal for consideration pursuant to the procedures outlined in that court’s en banc resolution of September 9, 2008. See State v. Cordero, 08-1717 (La.10-3-08), 993 So.2d 203.

WEIMER, J.,

concurs in part and dissents in part for the reasons assigned in State v. Cordero, 08-1717 (La.10-03-08), 993 So.2d 203.


text:
    STATE ex rel. Isiah CRAYTON, III v. STATE of Louisiana.
    No. 2008-KH-2684.
    Supreme Court of Louisiana.
    April 24, 2009.
   In re Crayton, Isiah III; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. H, No. 86-653; to the Court of Appeal, Fifth Circuit, No. 96-KH-741.

This application is transferred to the Fifth Circuit Court of Appeal for consideration pursuant to the procedures outlined in that court’s en banc resolution of September 9, 2008. See State v. Cordero, 08-1717 (La.10-3-08), 993 So.2d 203.

WEIMER, J.,

concurs in part and dissents in part for the reasons assigned in State v. Cordero, 08-1717 (La.10-03-08), 993 So.2d 203.


text:
    STATE ex rel. David LAPELL v. STATE of Louisiana.
    No. 2008-KH-2685.
    Supreme Court of Louisiana.
    April 24, 2009.
   In re Lapell, David; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. C, Nos. 95-4250, 95-1258; to the Court of Appeal, Fifth Circuit, No. 98-KH-1091.

This application is transferred to the Fifth Circuit Court of Appeal for consideration pursuant to the procedures outlined in that court’s en banc resolution of September 9, 2008. See State v. Cordero, 08-1717 (La.10-3-08), 993 So.2d 203.

WEIMER, J.,

concurs in part and dissents in part for the reasons assigned in State v. Cordero, 08-1717 (La.10-03-08), 993 So.2d 203.


text:
    STATE ex rel. Lenard HICKS v. STATE of Louisiana.
    No. 2008-KH-2687.
    Supreme Court of Louisiana.
    April 24, 2009.
   In re Hicks, Lenard; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. P, No. 99-7491; to the Court of Appeal, Fifth Circuit, Nos. 05-KH-424, 06-KH-770.

This application is transferred to the Fifth Circuit Court of Appeal for consideration pursuant to the procedures outlined in that court’s en banc resolution of September 9, 2008. See State v. Cordero, 08-1717 (La.10-3-08), 993 So.2d 203.

WEIMER, J.,

concurs in part and dissents in part for the reasons assigned in State v. Cordero, 08-1717 (La.10-03-08), 993 So.2d 203.


text:
    STATE ex rel. Phillip SMITH v. STATE of Louisiana.
    No. 2008-KH-2690.
    Supreme Court of Louisiana.
    April 24, 2009.
   In re Smith, Phillip;- — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. G, No. 95-5434; to the Court of Appeal, Fifth Circuit, No. 01-KH-731.

This application is transferred to the Fifth Circuit Court of Appeal for consideration pursuant to the procedures outlined in that court’s en banc resolution of September 9, 2008. See State v. Cordero, 08-1717 (La.10-3-08), 993 So.2d 203.

WEIMER, J.,

concurs in part and dissents in part for the reasons assigned in State v. Cordero, 08-1717 (La.10-03-08), 993 So.2d 203.


text:
    STATE ex rel. Leroy SWAINGAN v. STATE of Louisiana.
    No. 2008-KH-2705.
    Supreme Court of Louisiana.
    April 24, 2009.
   In re Swaingan, Leroy; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Charles, 29th Judicial District Court Div. D, No. 88-0481; to the Court of Appeal, Fifth Circuit, No. 06-KH-882.

This application is transferred to the Fifth Circuit Court of Appeal for consideration pursuant to the procedures outlined in that court’s en banc resolution of September 9, 2008. See State v. Cordero, 08-1717 (La.10-3-08), 993 So.2d 203.

WEIMER, J.,

concurs in part and dissents in part for the reasons assigned in State v. Cordero, 08-1717 (La.10-03-08), 993 So.2d 203.


text:
    STATE ex rel. Shannon ALEXANDER v. STATE of Louisiana.
    No. 2008-KH-2708.
    Supreme Court of Louisiana.
    April 24, 2009.
   In re Alexander, Shannon; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. N, No. 96 — 1508; to the Court of Appeal, Fifth Circuit, No. 06-KH-424.

This application is transferred to the Fifth Circuit Court of Appeal for consideration pursuant to the procedures outlined in that court’s en banc resolution of September 9, 2008. See State v. Cordero, 08-1717 (La.10-3-08), 993 So.2d 203.

WEIMER, J.,

concurs in part and dissents in part for the reasons assigned in State v. Cordero, 08-1717 (La.10-03-08), 993 So.2d 203.


text:
    STATE ex rel. Louis ALEXANDER v. STATE of Louisiana.
    No. 2008-KH-2709.
    Supreme Court of Louisiana.
    April 24, 2009.
   In re Alexander, Louis; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. P, No. 97-7259; to the Court of Appeal, Fifth Circuit, Nos. 02-KH-1142, 01-KH-246, 02-KH-1230.

This application is transferred to the Fifth Circuit Court of Appeal for consideration pursuant to the procedures outlined in that court’s en banc resolution of September 9, 2008. See State v. Cordero, 08-1717 (La.10-3-08), 993 So.2d 203.

WEIMER, J.,

concurs in part and dissents in part for the reasons assigned in State v. Cordero, 08-1717 (La.10-03-08), 993 So.2d 203.


text:
    STATE ex rel. Dale J. ARCENEAUX v. STATE of Louisiana.
    No. 2008-KH-2712.
    Supreme Court of Louisiana.
    April 24, 2009.
   In re Arceneaux, Dale J.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. L, No. 05-3691; to the Court of Appeal, Fifth Circuit, No. 07-KH-284.

This application is transferred to the Fifth Circuit Court of Appeal for consideration pursuant to the procedures outlined in that court’s en banc resolution of September 9, 2008. See State v. Cordero, 08-1717 (La.10-3-08), 993 So.2d 203.

WEIMER, J.,

concurs in part and dissents in part for the reasons assigned in State v. Cordero, 08-1717 (La.10-03-08), 993 So.2d 203.


text:
    STATE ex rel. Timothy JOSEPH v. STATE of Louisiana.
    No. 2008-KH-2748.
    Supreme Court of Louisiana.
    April 24, 2009.
   In re Joseph, Timothy; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Divs. A, B, Nos. 90-251, 89-0084; to the Court of Appeal, Fifth Circuit, Nos. 05-KH-872, 04-KH-789, 00-KH-1873, 00-KH-1263, 97-KH-708, 96-KH-129.

This application is transferred to the Fifth Circuit Court of Appeal for consideration pursuant to the procedures outlined in that court’s en banc resolution of September 9, 2008. See State v. Cordero, 08-1717 (La.10-3-08), 993 So.2d 203.

WEIMER, J.,

concurs in part and dissents in part for the reasons assigned in State v. Cordero, 08-1717 (La.10-03-08), 993 So.2d 203.


text:
    STATE ex rel. Michael P. ENCLARD v. STATE of Louisiana.
    No. 2008-KH-2760.
    Supreme Court of Louisiana.
    April 24, 2009.
   In re Enclard, Michael P.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Divs. C, M, Nos. 01-2578, 01-2578; to the Court of Appeal, Fifth Circuit, Nos. 05-KH-291, 04-KH-211.

This application is transferred to the Fifth Circuit Court of Appeal for consideration pursuant to the procedures outlined in that court’s en banc resolution of September 9, 2008. See State v. Cordero, 08-1717 (La.10-3-08), 993 So.2d 203.

WEIMER, J.,

concurs in part and dissents in part for the reasons assigned in State v. Cordero, 08-1717 (La.10-03-08), 993 So.2d 203.


text:
    STATE ex rel. Michael BANFORD v. STATE of Louisiana.
    No. 2008-KH-2761.
    Supreme Court of Louisiana.
    April 24, 2009.
   In re Banford, Michael; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. J, No. 93-6380; to the Court of Appeal, Fifth Circuit, No. 98-KH-0955.

This application is transferred to the Fifth Circuit Court of Appeal for consideration pursuant to the procedures outlined in that court’s en banc resolution of September 9, 2008. See State v. Cordero, 08-1717 (La.10-3-08), 993 So.2d 203.

WEIMER, J.,

concurs in part and dissents in part for the reasons assigned in State v. Cordero, 08-1717 (La.10-03-08), 993 So.2d 203.


text:
    STATE ex rel. Nathan LEWIS v. STATE of Louisiana.
    No. 2008-KH-2762.
    Supreme Court of Louisiana.
    April 24, 2009.
   In re Lewis, Nathan; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. M, No. 95-2755; to the Court of Appeal, Fifth Circuit, No. 03-KH-1141.

This application is transferred to the Fifth Circuit Court of Appeal for consideration pursuant to the procedures outlined in that court’s en banc resolution of September 9, 2008. See State v. Cordero, 08-1717 (La.10-3-08), 993 So.2d 203.

WEIMER, J.,

concurs in part and dissents in part for the reasons assigned in State v. Cordero, 08-1717 (La.10-03-08), 993 So.2d 203.


text:
    STATE ex rel. Carl L. SMITH v. STATE of Louisiana.
    No. 2008-KH-2763.
    Supreme Court of Louisiana.
    April 24, 2009.
   In re Smith, Carl L.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. N, No. 93-6517; to the Court of Appeal, Fifth Circuit, No. 02-KH-905.

This application is transferred to the Fifth Circuit Court of Appeal for consideration pursuant to the procedures outlined in that court’s en banc resolution of September 9, 2008. See State v. Cordero, 08-1717 (La.10-3-08), 993 So.2d 203.

WEIMER, J.,

concurs in part and dissents in part for the reasons assigned in State v. Cordero, 08-1717 (La.10-03-08), 993 So.2d 203.


text:
    STATE ex rel. Christopher E. SANBORN v. STATE of Louisiana.
    No. 2008-KH-2792.
    Supreme Court of Louisiana.
    April 24, 2009.
   In re Sanborn, Christopher E.;- — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Charles, 29th Judicial District Court Div. D, No. 99-0313; to the Court of Appeal, Fifth Circuit, No. 07-KH-98.

This application is transferred to the Fifth Circuit Court of Appeal for consideration pursuant to the procedures outlined in that court’s en banc resolution of September 9, 2008. See State v. Cordero, 08-1717 (La.10-3-08), 993 So.2d 203.

WEIMER, J.,

concurs in part and dissents in part for the reasons assigned in State v. Cordero, 08-1717 (La.10-03-08), 993 So.2d 203.


text:
    STATE ex rel. Donahue SMITH v. STATE of Louisiana.
    No. 2008-KH-2793.
    Supreme Court of Louisiana.
    April 24, 2009.
   In re Smith, Donahue; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Divs. B, F, Nos. 91-6218, 91-6218; to the Court of Appeal, Fifth Circuit, Nos. 97-KH-209, 00-KH-1710.

This application is transferred to the Fifth Circuit Court of Appeal for consideration pursuant to the procedures outlined in that court’s en banc resolution of September 9, 2008. See State v. Cordero, 08-1717 (La.10-3-08), 993 So.2d 203.

WEIMER, J.,

concurs in part and dissents in part for the reasons assigned in State v. Cordero, 08-1717 (La.10-03-08), 993 So.2d 203.


text:
    STATE ex rel. Derrick NELLON v. STATE of Louisiana.
    No. 2008-KH-2794.
    Supreme Court of Louisiana.
    April 24, 2009.
   In re Nellon, Derrick; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. G, No. 99-6870; to the Court of Appeal, Fifth Circuit, No. 06-KH-710.

This application is transferred to the Fifth Circuit Court of Appeal for consideration pursuant to the procedures outlined in that court’s en banc resolution of September 9, 2008. See State v. Cordero, 08-1717 (La.10-3-08), 993 So.2d 203.

WEIMER, J.,

concurs in part and dissents in part for the reasons assigned in State v. Cordero, 08-1717 (La.10-03-08), 993 So.2d 203.


text:
    STATE ex rel. Joseph PETTY v. STATE of Louisiana.
    No. 2008-KH-2795.
    Supreme Court of Louisiana.
    April 24, 2009.
   In re Petty, Joseph; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. P, No. 99325; to the Court of Appeal, Fifth Circuit, No. 04-KH-944.

This application is transferred to the Fifth Circuit Court of Appeal for consideration pursuant to the procedures outlined in that court’s en banc resolution of September 9, 2008. See State v. Cordero, 08-1717 (La.10-3-08), 993 So.2d 203.

WEIMER, J.,

concurs in part and dissents in part for the reasons assigned in State v. Cordero, 08-1717 (La.10-03-08), 993 So.2d 203.


text:
    STATE ex rel. Samuel KELLY v. STATE of Louisiana.
    No. 2008-KH-2796.
    Supreme Court of Louisiana.
    April 24, 2009.
   In re Kelly, Samuel; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. F, No. 98-4959; to the Court of Appeal, Fifth Circuit, No. 05-KH-657.

This application is transferred to the Fifth Circuit Court of Appeal for consideration pursuant to the procedures outlined in that court’s en banc resolution of September 9, 2008. See State v. Cordero, 08-1717 (La.10-3-08), 993 So.2d 203.

WEIMER, J.,

concurs in part and dissents in part for the reasons assigned in State v. Cordero, 08-1717 (La.10-03-08), 993 So.2d 203.


text:
    STATE ex rel. Aaron HARRELL v. STATE of Louisiana.
    No. 2008-KH-2797.
    Supreme Court of Louisiana.
    April 24, 2009.
   In re Harrell, Aaron; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. C, No. 97-3187; to the Court of Appeal, Fifth Circuit, No. 00-KH-1245.

This application is transferred to the Fifth Circuit Court of Appeal for consideration pursuant to the procedures outlined in that court’s en banc resolution of September 9, 2008. See State v. Cordero, 08-1717 (La.10-3-08), 993 So.2d 203.

WEIMER, J.,

concurs in part and dissents in part for the reasons assigned in State v. Cordero, 08-1717 (La.10-03-08), 993 So.2d 203.


text:
    STATE ex rel. Christopher WEATHERSBY v. STATE of Louisiana.
    No. 2008-KH-2837.
    Supreme Court of Louisiana.
    April 24, 2009.
   In re Weathersby, Christopher; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. John, 40th Judicial District Court Div. B, No. 03-42; to the Court of Appeal, Fifth Circuit, Nos. 07-KH-349, 05-KH-444.

This application is transferred to the Fifth Circuit Court of Appeal for consideration pursuant to the procedures outlined in that court’s en banc resolution of September 9, 2008. See State v. Cordero, 08-1717 (La.10-3-08), 993 So.2d 203.

WEIMER, J.,

concurs in part and dissents in part for the reasons assigned in State v. Cordero, 08-1717 (La.10-03-08), 993 So.2d 203.


text:
    STATE ex rel. Emanuel MILLS v. STATE of Louisiana.
    No. 2008-KH-2853.
    Supreme Court of Louisiana.
    April 24, 2009.
   In re Mills, Emanuel;- — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. D, No. 00-0802; to the Court of Appeal, Fifth Circuit, No. 02-KH-1250.

This application is transferred to the Fifth Circuit Court of Appeal for consideration pursuant to the procedures outlined in that court’s en banc resolution of September 9, 2008. See State v. Cordero, 08-1717 (La.10-3-08), 993 So.2d 203.

WEIMER, J.,

concurs in part and dissents in part for the reasons assigned in State v. Cordero, 08-1717 (La.10-03-08), 993 So.2d 203.


text:
    STATE ex rel. Renaldo QUINN v. STATE of Louisiana.
    No. 2008-KH-2854.
    Supreme Court of Louisiana.
    April 24, 2009.
   In re Quinn, Renaldo; — Plaintiff;- Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. N, No. 99-726; to the Court of Appeal, Fifth Circuit, No. 04-KH-783.

This application is transferred to the Fifth Circuit Court of Appeal for consideration pursuant to the procedures outlined in that court’s en banc resolution of September 9, 2008. See State v. Cordero, 08-1717 (La.10-3-08), 993 So.2d 203.

WEIMER, J.,

concurs in part and dissents in part for the reasons assigned in State v. Cordero, 08-1717 (La.10-03-08), 993 So.2d 203.


text:
    STATE ex rel. Romalis HARTWELL v. STATE of Louisiana.
    No. 2008-KH-2855.
    Supreme Court of Louisiana.
    April 24, 2009.
   In re Hartwell, Romalis; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. P, No. 02-5117; to the Court of Appeal, Fifth Circuit, No. 05-KH-873.

This application is transferred to the Fifth Circuit Court of Appeal for consideration pursuant to the procedures outlined in that court’s en banc resolution of September 9, 2008. See State v. Cordero, 08-1717 (La.10-3-08), 993 So.2d 203.

WEIMER, J.,

concurs in part and dissents in part for the reasons assigned in State v. Cordero, 08-1717 (La.10-03-08), 993 So.2d 203.


text:
    STATE ex rel. Billy SISUNG v. STATE of Louisiana.
    No. 2008-KH-2856.
    Supreme Court of Louisiana.
    April 24, 2009.
   In re Sisung, Billy; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. B, No. 02-1849; to the Court of Appeal, Fifth Circuit, No. 05-KH-14.

This application is transferred to the Fifth Circuit Court of Appeal for consideration pursuant to the procedures outlined in that court’s en banc resolution of September 9, 2008. See State v. Cordero, 08-1717 (La.10-3-08), 993 So.2d 203.

WEIMER, J.,

concurs in part and dissents in part for the reasons assigned in State v. Cordero, 08-1717 (La.10-03-08), 993 So.2d 203.


text:
    STATE ex rel. Otis Y. MAGEE v. STATE of Louisiana.
    No. 2008-KH-2857.
    Supreme Court of Louisiana.
    April 24, 2009.
   In re Magee, Otis Y.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. E, No. 93^4846; to the Court of Appeal, Fifth Circuit, No. 98-KH-0907.

This application is transferred to the Fifth Circuit Court of Appeal for consideration pursuant to the procedures outlined in that court’s en banc resolution of September 9, 2008. See State v. Cordero, 08-1717 (La.10-3-08), 993 So.2d 203.

WEIMER, J.,

concurs in part and dissents in part for the reasons assigned in State v. Cordero, 08-1717 (La.10-03-08), 993 So.2d 203.


text:
    STATE ex rel. Joseph PAUL IV v. STATE of Louisiana.
    No. 2008-KH-2861.
    Supreme Court of Louisiana.
    April 24, 2009.
   In re Paul, Joseph IV; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. A, No. 04-3724; to the Court of Appeal, Fifth Circuit, No. 06-KH-943.

This application is transferred to the Fifth Circuit Court of Appeal for consideration pursuant to the procedures outlined in that court’s en banc resolution of September 9, 2008. See State v. Cordero, 08-1717 (La.10-3-08), 993 So.2d 203.

WEIMER, J.,

concurs in part and dissents in part for the reasons assigned in State v. Cordero, 08-1717 (La.10-03-08), 993 So.2d 203.


text:
    STATE ex rel. Byron GEORGE v. STATE of Louisiana.
    No. 2008-KH-2858.
    Supreme Court of Louisiana.
    April 28, 2009.
   In re George, Byron; — Plaintiff; Applying For Supervisory and/or Remedial Wi’its, Parish of Jefferson, 24th Judicial District Court Div. O, No. 99-7750; to the Court of Appeal, Fifth Circuit, No. 06-KH-7.

This application is transferred to the Fifth Circuit Court of Appeal for consideration pursuant to the procedures outlined in that court’s en banc resolution of September 9, 2008. See State v. Cordero, OS-1717 (La.10-3-08), 993 So.2d 203.

WEIMER, J.,

concurs in part and dissents in part for the reasons assigned in State v. Cordero, 08-1717 (La.10-03-08), 993 So.2d 203.


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

text:
    Jimmy BRUMLEY v. AKZONA, INC. f/k/a/ American Enka Corporation, et al.
    No. 2009-CM-0021.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 18, 2009.
    David R. Cannella, Mickey P. Landry, Frank J. Swarr, Landry & Swarr, L.L.C., New Orleans, LA, Waters & Kraus, LLP, Dallas, TX, for Plaintiff/Appellant.
    Erin Fury Parkinson, Margaret Diamond, McGlinchey Stafford, PLLC, New Orleans, LA, for American Cyanamid Company.
    (Court composed of Judge CHARLES R. JONES, Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD).
   MAX N. TOBIAS, JR., Judge.

|, This court has reviewed American Cyanamid Company’s (“the mover”) motion to have this court declare the appeal of Jimmy Brumley, the plaintiff/appellant, as devolutive rather than suspensive.

We find that the trial court erred in failing to set an appeal bond as required by La. C.C.P. art. 2124 B(3) for a specific dollar amount when the plaintiff/ appellant moved for a suspensive appeal of the judgment granting the mover’s exception of forum non conveniens. (Our substantive law does not declare a specific formula for the dollar amount of a suspensive appeal bond when a trial court grants an exception oí forum non conveniens; the specific dollar amount of the bond must be set by the trial court and is reviewed by this court using an abuse of discretion standard.) However, when the trial court failed to set a specific dollar amount bond, the burden fell upon the mover, not the plaintiff/appellant, to cause the trial court to set a proper bond, either by filing a rule in the trial court pursuant to La. C.C.P. art. 5123 or, alternatively, by seeking a writ of mandamus from this |2court to order the trial court set a proper bond. See La. C.C.P. art. 2161; Estate of Helis v. Hoth, 137 So.2d 472, 474 (La.App. 4th Cir.1962); Hebert v. Stansbury, 351 So.2d 253, 257 (La.App. 3rd Cir.1977); Government Employees Ins. Co. v. Thompson, 347 So.2d 1196, 1198 (La.App. 1st Cir.1977).

Accordingly, the motion of American Cyanamid Company is denied. We decline to issue an order to declare that the plaintiff/appellant’s appeal is devolutive and not suspensive.

MOTION DENIED.

JONES, J., concurs in the result with reasons.

JONES, J.,

concurs in the result with reasons.

hi agree that the motion should be denied, but I do not agree that the district court should have set bond in the instant matter.

      . Article 2124 B(3) states: "In all other cases, the security shall be fixed by the trial court at an amount sufficient to assure the satisfaction of the judgment, together with damages for the delay resulting from the suspension of the execution.”

      . Article 5123 states:
      Any person in interest wishing to test the sufficiency, solvency of the surety, or validity of a bond furnished as security in a judicial proceeding shall rule the party furnishing the bond into the trial court in which the proceeding was brought to show cause why the bond should not be decreed insufficient or invalid, and why the order, judgment, writ, mandate, or process conditioned on the furnishing of security should not be set aside or dissolved. If the bond is sought to be held invalid on the ground of the insolvency of a surety other than a surety company licensed to do business in this state, the party furnishing the bond shall prove the solvency of the surety on the trial of the rule.


author: EDWIN A. LOMBARD, Judge.

text:
    John WESTMORELAND v. Cory STRANDER, Individually and d/b/a Trainers Supply Company; Double M. Feed, L.L.C. and State Farm Insurance Company.
    No. 2008-CA-0948.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 11, 2009.

      William E. Mura, Jr., Warren A. For-stall, Jr., Christopher H. Sherwood, New Orleans, LA, for Plaintiff/Appellant.
    Kathryn T. Wiedorn, Pelleteri & Wie-dorn, L.L.C., New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY, Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

|/.The plaintiff, John Westmoreland appeals the judgment in favor of the defendants dismissing his claim. After review of the record in light of the applicable law and arguments of the party, the judgment of the trial court is affirmed.

Relevant Facts and Procedural History

On March 17, 2005, the plaintiff/appellant was employed at the New Orleans Fairgrounds Race Course by Eddie Guste as an exercise rider for Zarb’s Flight, a race horse owned by Guste. En route to the barn shortly after the track closed for exercise purposes at 10 a.m., the plaintiff/appellant removed his feet from the stirrups. The horse began prancing and then flipped over, throwing the plaintiff/appellant. A forklift owned by the defendants, Cory Strander, individually and d/b/a Trainers Supply Company and Double M Feed Company, and driven by an employee of the defendant, was in the vicinity. Accordingly, on November 22, 2005, the plaintiff filed suit against the defendant claiming that he was injured as a result of the defendant’s negligence. After a bench trial on May 7, 2005, the 12district court signed a judgment on May 27, 2008, in favor of the defendant pursuant to La. Rev. Stat 9:2795.1, dismissing the plaintiffs claim with prejudice, each party to bear their own costs. In his Reasons for Judgment, the trial judge found that the parties and activities in which the parties were engaged at the time of the plaintiffs claimed injury fell within the purview of La.Rev.Stat. 9:2795.1 and, as such, the defendants could not be liable for any injuries sustained by the plaintiff. In addition, the trial judge found that the plaintiffs unsupported and contradicted testimony relative to the speed of the forklift did not warrant invocation of the statutory exceptions for willful and wanton conduct of intentional injury provided for in La. Rev. Stat. 9:2795.1 C (4) & (5).

Discussion

The plaintiff appeals the judgment of the trial court, arguing that it was error for the trial court to find La.Rev.Stat. 9:2795.1 applicable to either the defendants or the plaintiff because a thoroughbred race horse should not be categorized as a “farm animal,” the racing industry should not be categorized as a farm animal activity, and a professional exercise rider should not be categorized as a participant engaged in farm animal activity. This argument, while novel, is without foundation.

La.Rev.Stat. 9:2795(B) provides:

Except as provided in Subsection C of this Section, a farm animal activity sponsor, a farm animal professional, or any other person, which shall include a corporation of partnership, shall not be | Jiable for an injury to or the death of a participant resulting from the inherent risks of a farm animal activity and, except as provided by Subsection C of this Section, no participant or participant’s representative shall make any claim against, maintain an action against, or recover from a farm animal activity sponsor, a farm animal professional, or any other person for injury, loss, damage, or death of the participant resulting from any of the inherent risks of farm animal activities.

The statutory definitions do not support the plaintiffs arguments. First, La.Rev. Stat. 9:2795.1(A)(2) specifically states that a “ ‘Farm animal’ means one or more of the following animals: horse.... ” Thus, the plaintiffs contention that a race horse is not a “farm animal” under the statute is simply wrong.

Next, La.Rev.Stat. 9:2795(A)(3)(a) provides that a “Farm animal activity” includes competitions involving horses such as the steeplechase. Although a horse race on a flat race course is not included in the examples of competitions covered, a steeplechase is a race between horses (mostly thoroughbreds) over a race course with jumps and obstacles and, accordingly, indicates that a race over a flat course is also a statutory “farm animal activity.” Likewise, “Farm animal activity” includes “daily care” related to “[bjoarding a [horse],” La.Rev.Stat. 9:2795.1(A)(3)(c), or “training ... activities ... involving [horses].” La.Rev.Stat. 9:2795.1(A)(3)(b). Thus, the defendant’s employee transporting grain and hay to the barn for the horse’s consumption, part of the daily care provided to horses boarded at the racetrack, is clearly a covered activity, as is an exercise rider’s return to the barn after a training session on the track. Similarly, pursuant to La.Rev.Stat. 9:2795.1(A)(8), “participant” is defined as “any person, whether amateur or professional, who engages in a farm animal activity,” ie., horse ^competitions, and, thus, the plaintiff was clearly a participant within the meaning of the statute. Finally, as recognized by the statute, there are inherent risks involved in horse-related activities due to the “the propensity of a [horse] to behave in ways that may result in injury or harm to those around them ...” and ‘[t]he unpredictability of a [horse’s] reaction to such things as sounds, sudden movement, and unfamiliar objects, persons, or other animals. La. Rev.Stat. 9:2795.1 A(7)(a) & (b).

In this case, the plaintiff (a statutory-participant) was purportedly injured when riding back to the barn (a statutory activity) without stirrups on an animal with a recognized propensity to react unpredictably to sights and sounds. The defendant’s employee was in the vicinity moving feed and hay, part of the daily care related to boarding a horse at the racetrack. Under these circumstances, La.Rev.Stat. 9:2795.1 is clearly applicable.

Conclusion

The judgment of the trial court is affirmed.

AFFIRMED.

      . Subsection C, in turn, provides that nothing shall prevent or limit the liability of a farm animal activity sponsor commits "an act or omission that constitutes willful or wanton disregard for the safety of the participant, and that act or omission caused the injuries.” La.Rev.Stat. 9:2795.1(C)(4).


author: PAUL A. BONIN, Judge.

text:
    ELYSIAN FIELDS CHURCH OF CHRIST v. Larry DILLON, Rogers Nunnery, James Smith and Barnabas Tibbs James Smith and Barnabas Tibbs, in their Own Capacity and Acting as the Director and Treasurer of the Board of Directors of the Elysian Fields Church of Christ v. Otis Shields and Mikel Wilson.
    No. 2008-CA-0989.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 18, 2009.

      Frank J. D’Amico, Jr., David J. Mitchell, Frank J. D’Amico, Jr., APLC, New Orleans, LA, for Elysian Fields Church of Christ.
    Marion D. Floyd, Kenner, LA, for Larry Dillon et al.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY, Judge PAUL A. BONIN).
   PAUL A. BONIN, Judge.

[ jWe consider this an appeal from a permanent injunction issued, without bond, on March 28, 2008 against the Tibbs faction “forever enjoining, restraining, and prohibiting [the Tibbs faction] from interfering with the business and financial matters related to the corporation or representing to third parties that they or any of them are duly authorized representatives of the corporation or the church.” The corporation is the Elysian Fields Church of Christ, a Louisiana non-profit corporation. For the reasons which follow, we reverse the judgment granting the permanent injunction and remand the matter to the district court.

History of the Case

The Elysian Fields Church of Christ, like any non-profit corporation in Louisiana, is governed by its articles of corporation. Elysian Fields Church of Christ was first incorporated in 1983 and amended its articles on several occasions thereafter. On December 27, 2006, amended and restated articles of incorporation were filed with the Louisiana Secretary of State. It appears from the record that|2the primary reason for a change in the governance of the corporation was that there was an insufficient number of men “willing and qualified to serve on the Board of Elders.” This necessitated the creation of a Board of Directors to govern the affairs of the corporation.

The 2006 amendment provided that there would be four directors and named Otis Shields, Mikel Wilson, Barnabas Tibbs, and James Smith as the directors. Mr. Tibbs was named as treasurer and Mr. Larry Dillon was named as executive secretary, making him responsible to “be the custodian of the church membership records.” Article VII of the amended articles provided that “The members of the Corporation shall consist of all persons who shall comprise the congregation of the church, becoming members in accordance with the New Testament, and as may be accepted by placing membership from other Churches of Christ, in accordance with guidelines set forth by the Board.” The 2006 amendments also contained the provision that the articles of incorporation could be amended upon “approval of the majority of the Board of Elders or in the absence of the Board of Elders, then the Board of Directors ...” (underlining in original)

During the year 2007 disagreement arose among the four directors about the continued employment of the church’s pastor, Brother Jarvis James. Two directors, Mr. Shields and Mr. Wilson, took the side of the pastor. The other two directors, Mr. Tibbs and Mr. Smith, were adamant about terminating the pastor. The difference of view became irreconcilable and the evenly split board of ^directors remained deadlocked. The Shields faction became concerned that the Tibbs faction would seize control of the corporation’s assets, including its financial accounts, amend the articles of corporation, and fire the pastor. The Tibbs faction had similar concerns. Each faction had a following in the membership.

Four outside ministers were called into the church to attempt a mediation and reconciliation, but were unsuccessful. At least one faction requested police security at worship services and meetings because of real or perceived threats. A portion of one of the meetings was captured on DVD by a Tibbs faction member.

On March 5, 2008, the Shields faction submitted one form to the Louisiana Secretary of State deleting Mr. Tibbs as registered agent and Mr. Smith as a director and another form deleting Mr. Tibbs as treasurer and director and Mr. Dillon as executive secretary. These actions were done pursuant to a meeting which occurred on March 2, 2008, which the Shields faction contends was a membership meeting.

On March 11, 2008, the Shields faction in the name of the Elysian Fields Church of Christ filed a petition for writ of injunction against the Tibbs faction, in which petition it sought a temporary restraining order, a preliminary injunction and, ultimately, a permanent injunction “restraining, enjoining, and prohibiting Defendants from interfering with the business and financial matters related to the corporation.” The district judge granted a TRO conditioned upon $500 security and set a hearing on the request for preliminary injunction for March 20, 2008.

|4Later on March 11, 2008, the Tibbs faction filed its own petition for temporary restraining order and permanent injunction, writ of quo warranto and writ of mandamus, in which it sought to enjoin the Shields faction “from transferring any assets or funds from any financial institution.” A different district judge granted the TRO without requiring bond and set a hearing on the preliminary injunction request for March 20, 2008.

Before the scheduled hearing on the opposing requests for preliminary injunction, the two cases were consolidated before a single district judge, who proceeded to consider the requests for preliminary injunction on March 20, 2008. The district judge had issued an order on March 12, 2008, that, inter alia, the hearing on the application for preliminary injunction would be conducted “upon the verified pleadings and/or supporting affidavits and oral arguments only.” The order also required supporting affidavits to be filed not less than 72 hours before the hearing and opposing affidavits not less than 24 hours before the hearing.

The Hearing on the Requests for Preliminary Injunctions

During the hearing the trial court allowed considerable oral argument from counsel. Submitted to the court was a notarized statement of the pastor with an unverified “petition” signed by 80 people. The court also received, over the objection of the Tibbs faction, about 28 affidavits, untimely filed. Each affiant claimed to be a member of the Elysian Fields Church of Christ and basically confirmed that he or she cast his or her vote in favor of the Shields faction and|Bagainst the Tibbs faction. The court also permitted the Shields faction to supplement its submissions with proof that “notice” of a membership meeting had been given to the members in the church bulletin. It also appears that the court accepted a late submission from the Tibbs faction, including an affidavit verifying the previously mentioned DVD as well as the videotape and another affidavit verifying that none of the weekly church bulletins in 2008, which were attached, gave “notice” of a membership meeting.

On March 26, 2008, the trial court rendered judgment ordering “that an injunction issue upon the posting of a $500.00 bond in favor of Elysian Fields Church of Christ and against [the Tibbs faction] enjoining them from interfering with the business and financial matters of the Elysian Fields Church of Christ.” The record shows that the bond was posted on March 28, 2008. In her written reasons the trial judge expressed the court’s reluctance “to interfere in the operations of a church” but concluded after viewing the DVD “that a majority of the congregation supports the outcome ordered by this Court.”

On March 28, 2008, without any further proceedings or stipulations, the trial court rendered another judgment, from which we quoted above: “forever enjoining, restraining, and prohibiting [the Tibbs faction] from interfering with the business and financial matters related to the corporation or representing to third parties that they or any of them are duly authorized representatives of the corporation or the church.”

IfiOn May 28, 2008, the Tibbs faction timely filed a devolutive appeal from “the Order dated March 28, 2008.” This appeal follows.

The Preliminary Injunction Dated March 26, 2008

We review the preliminary injunction judgment of March 26, 2008, for the sole purpose of highlighting the distinction between the preliminary injunction which issued on March 26, 2008 and the permanent injunction which is the subject of this appeal. Our court in Desire Narcotics Rehabilitation Center, Inc. v. State, Department of Health and Hospitals, 07-0390, pp. 3-4 (La.App. 4 Cir. 10/17/07), 970 So.2d 17, 20 explained in summary form the preliminary injunction:

Article 3601 of the Louisiana Code of Civil Procedure provides that, “an injunction shall be issued in cases where irreparable injury, loss, or damage may otherwise result to the applicant, or in other cases specifically provided by law ...” La.Code. Civ. Proc. art. 3601. Generally, in order to obtain a preliminary injunction pursuant to article 3601, a petitioner must show that he will suffer irreparable injury in the absence of the injunction, that he is entitled to the relief sought, and that he can make a prima facie showing that he will prevail on the merits. ...
A preliminary injunction is an interlocutory procedural device designed to preserve the status quo as it exists between the parties, pending trial on the merits. ... The trial judge in a preliminary injunction hearing has great discretion to grant or deny the relief.... An appellate court will disturb the trial court judgment only upon a showing that the trial court abused its great discretion. ...
(emphasis added)

The prima facie showing standard of proof to obtain a preliminary injunction is “less than that required for a permanent injunction.” Historic Restoration, Inc. v. RSUI Indem. Company, 06-1178, p. 11 (La.App. 4 Cir. 3/21/07), 955 So.2d 200, 208. A hearing on a permanent injunction is “an ordinary proceeding.” Hall v. Fertility Inst. of New Orleans, 94-1135 p. 4 (La.App. 4 Cir. 12/15/94), 647 So.2d 1348, 1351. In order to obtain a permanent injunction, a party must show by a preponderance of the evidence at an evidentiary hearing that he is entitled to the permanent injunction. Denta-Max v. Maxicare Louiisana, Inc., 95-2128 (La.App. 4 Cir; 3/14/96), 671 So.2d 995, 997. Unlike the special provision of La. C.C.P. art. 3609 providing for the court hearing a preliminary injunction “upon the verified pleadings or supporting affidavits,” there is no such provision in an ordinary proceeding for a permanent injunction.

For the very reason that a preliminary injunction is merely provisional, the successful applicant is required in the usual case to furnish security to indemnify a person wrongfully enjoined for costs incurred and damages sustained. La. C.C.P. art. 3610. No security is required for a permanent injunction.

The trial judge had much discretion in ordering the preliminary injunction, with bond, in this matter. The judgment of March 26, 2008, granting the preliminary injunction is now final because it was not appealed within fifteen days. La. C.C.P. art. 3612(C). The preliminary injunction of March 26, 2008, secured by a bond, remains in effect during the pen-dency of the action or until it is dissolved or modified by the court. La. C.C.P. arts. 3601(C) and 3607.

The Permanent Injunction Dated March 28, 2008

There is no doubt that the judgment dated March 28, 2008 is a judgment granting a permanent injunction. The very language of the judgment itself restrains, prohibits, and enjoins the Tibbs faction “forever.” Moreover, the | ¡¿judgment issued without any requirement for security, which is of course permissible for a permanent, but not preliminary, injunction.

This case, however, was only tried on the request for a preliminary injunction, and the evidentiary procedures employed are authorized only in preliminary injunction proceedings. The record discloses “no stipulation between the parties that [the preliminary injunction] hearing would also be considered as a hearing on a permanent injunction.” Springlake Homeowners Ass’n, Inc. v. Pecot, 321 So.2d 789, 790 (La.App. 4 th Cir.1975). “[T]he jurisprudence is clear that a preliminary hearing cannot be converted to a permanent injunction hearing absent a stipulation of the parties to the contrary.” Louisiana Service and Contracting Co., Inc. v. St. Bernard Parish Government, 08-0174, p. 5 (La.App. 4 Cir. 11/26/08), 1 So.2d 557.

The Tibbs faction is entitled to a “full trial on the merits of the permanent injunction.” SpringlaJce Homeowners, supra. “The issuance of a permanent injunction, ..., takes place only after a trial on the merits in which the burden of proof is a preponderance of the evidence rather than a prima facie showing.” Bollinger Machine Shop and Shipyard, Inc. v. United States Marine, Inc., 595 So.2d 756, 758 (La.App. 4 th Cir.1992) (emphasis in original).

| ¡Decree

We reverse the judgment of March 28, 2008 and remand the matter to the trial court for further proceedings.

REVERSED AND REMANDED.

      . Our reference to the “Tibbs faction” includes Barnabas Tibbs, Larry Dillon, James Smith, and Rogers Nunnery.

      . The reference to the "Shields faction” includes Otis Shields, Mikel Wilson, and the pastor, Jarvis James.

      . The DVD was viewed by the district judge.

      . The petition also sought to demand that the Shields faction show by what authority they changed the articles of incorporation and to cause them to "refrain from all acts in contravention of the Louisiana Nonprofit Corporation laws”.

      . The judgment also denied the injunction, quo warranto and mandamus request of the Tibbs faction.

      . The ellipses outside of quotations indicate citations omitted.

      . The fifteen-day appeal limitation applies only to preliminary injunctions and not to permanent injunctions the delays for which are "governed by the same delays afforded in ordinary proceedings.” Brickman v. Board of Directors of West Jefferson General Hospital, 363 So.2d 86 (La.App. 4 th Cir.1978).

      . A trial court may be able to determine from the hearing on the preliminary injunction request that the matter is so unmeritorious that no further proceedings are required. In other words, it may be that in denying a preliminary injunction a court could determine that there is no legal basis for a permanent injunction, but it could not from granting a preliminary injunction determine at the same time to grant the permanent injunction in the absence of a stipulation.


author: CHARLES R. JONES, Judge.

text:
    ENVIRONMENTAL OPERATORS, L.L.C. v. NATCO, INC., et al.
    No. 2008-CA-1183.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 18, 2009.

      Marcus Louis Giusti, Hannan Drake & Giusti, L.L.P., Metairie, LA, for Plaintiff/Appellee.
    Lloyd N. Shields, Andrew G. Vicknair, Jeffrey K. Prattini, Shields Mott Lund, L.L.P., New Orleans, LA, for NATCO, Inc., Travelers Casualty & Surety Company of America and David Cooper.
    (Court composed of Judge CHARLES R. JONES, Judge MAX N. TOBIAS, JR., and Judge EDWIN A. LOMBARD).
   CHARLES R. JONES, Judge.

hThe named appellants, NATCO, David Cooper, and Travelers Casualty & Surety Company of America (the appellants), seek review of a district court judgment which granted the Environmental Operators, L.L.C.’s (E.O.) motion for summary judgment. We reverse and remand.

The instant matter arises out of a subcontract agreement (“the waste agreement”) between E.O. and NATCO, whereby E.O. agreed to accept creosote timber debris which NATCO, disposed for the Plaquemines Parish Government (the Parish). The contract between the NATCO and the Parish was for the negotiated amount of $697,203.00. In turn, NATCO disposed of the debris for the Parish for “Hurricane Katrina Removal of Stockpiled Creosote Timber Piling.” The waste agreement was completed without any problems.

However, once the creosote disposal was completed, NATCO, through its project manager, Mr. Brian Torrans, requested an invoice from E.O. for the debris accepted at its landfill.

On May 1, 2007, E.O. submitted an invoice to NATCO which reflected a lump sum price of $375,000.00, rather than submitting an invoice reflecting the price per cubic yard of creosote debris deposited in E.O.’s landfill. NATCO ^objected and asserted that the terms of the waste agreement were based on a cubic yard rate, rather than a lump sum rate. At that time, the Parish had not yet paid NATCO the $697,203.00, which represented the full balance of the contract.

Essentially, the dispute between NAT-CO and E.O. concerns whether the waste agreement was based on a lump sum price/ flat fee or a per cubic yard rate. NATCO insists that the waste agreement was based on a per cubic yard rate of $25.00 per cubic yard. E.O. asserts that the waste agreement is based upon a lump sum price, regardless of the total cubic yards deposited into the landfill.

Because of the objection over payment, E.O. eventually filed a lien in the Parish’s public records to preserve any rights it may have under the Louisiana Public Works Act. As a result of E.O.’s lien, and the aforementioned dispute between NAT-CO and E.O., the Parish issued a joint check on June 11, 2007, in the amount of $375,000.00 made payable to NATCO and E.O. NATCO returned the joint check to the Parish.

On July 18, 2007, E.O. filed a petition for amounts due and to enforce, recognize, and maintain a lien and privilege. Named as defendants in the lawsuit were the appellants, NATCO, David Cooper, Travelers and the Parish. Through its petition, E.O. sought to recover sums allegedly due from the subcontract, interest, late fees, attorney’s fees, and to recognize and maintain the properly filed lien.

On September 5, 2007, the appellants filed an answer to the petition. Subsequently, the Parish filed its answer on November 26, 2007. Three months later, the Parish filed a petition for coneursus to deposit sums remaining on the public contract related to this matter into the registry of the court. On March 10, 2008, the district court gave the Parish leave to deposit the funds into the registry of court.

LOn May 6, 2008, E.O. filed its motion for summary judgment. The appellants filed an opposition on May 27, 2008.

On June 3, 2008, the hearing on the motion for summary judgment occurred. Although the matter was scheduled for trial on June 24, 2008, the district court issued a judgment on June 23, 2008, which granted E.O.’s motion for summary judgment.

The appellants filed their motion and order for suspensive appeal.

On July 17, 2008, the appellants filed a Motion and Incorporated memorandum to Release Undisputed Funds Without Affecting Defendant’s Rigid to Appeal. E.O. filed its opposition on July 30, 2008.

The hearing on the Motion and Incorporated memorandum to Release Undisputed Funds Without Affecting Defendant’s Right to Appeal was on August 5, 2008. On August 13, 2008, the district court issued an order granting in part, the appellants’ motion to release undisputed funds. However, while the distinct court granted the release of funds, it refused to rule on whether the request of the appellants to release the undisputed funds would affect or preclude the appellants from appealing the June 23rd order which granted E.O.’s motion for summary judgment.

On August 13, 2008, the appellants filed a motion to prohibit the release of funds pending the outcome of the supervisory writ filed on the issue of whether or not a release of funds would preclude these parties from appealing the June 23 order. However, the district court denied this motion on the same date.

The appellants filed a supervisory writ application with this Court on August 21, 2008, which was denied on that same day. This timely appeal follows.

l4In its sole assignment of error, the appellants argue that the district court erred in granting E.O.’s motion for summary judgment.

DISCUSSION

In Danos v. Avondale Industries, Inc., 2007-1094, pp. 2-3 (La.App. 4 Cir. 7/2/08), 989 So.2d 160, 162, we reiterated the standard of review for summary judgments as follows:

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257, p. 7 (La.2/29/00), 755 So.2d 226, 230; Grant v. American Sugar Refining, Inc., 06-1180, p. 3 (La.App. 4 Cir. 1/31/07), 952 So.2d 746, 748. Summary judgments shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file together with affidavits, if any, scrutinized equally, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La.Code Civ. Proe. art. 966(B). However, as noted by the Supreme Court in Sunbeam, supra, the trial court cannot make credibility determinations on a motion for summary judgment. Sunbeam, 99-2181, 99-2257, p. 16, 755 So.2d at 236.
A fact is material if it is essential to plaintiffs cause of action under the applicable theory of recovery and, without the establishment of the fact by a preponderance of the evidence, plaintiff could not prevail. Grant, 06-1180, p. 4, 952 So.2d at 748-49. Generally, material facts are those that potentially insure or preclude recovery, affect the litigant’s ultimate success, or determine the outcome of a legal dispute. Grunt, 06-1180, p. 4, 952 So.2d at 749. Thus, to determine if the trial court erred in granting Foster Wheeler’s motion for summary judgment, we must determine whether any genuine issues of material fact exist.

In the instant matter, the appellants assert that the district court failed to issue its ruling on the summary judgment for three reasons. However, before we Ldiscuss the merits of the instant appeal, we must point out a substantial legal error, which requires immediate discussion.

The appellants argue that the district court’s June 23, 2007 order granting summary judgment to E.O. violated article 966(D) of the Louisiana Code of Civil Procedure, because the court rendered that judgment on the day before the scheduled trial. Specifically, they assert that civil procedure article 966(D) requires that “the court shall hear and render judgment on a motion for summary judgment within a reasonable time but in any event the judgment shall be rendered at least 10 days prior to trial.”

However, before we advance further with a discussion of the procedural error raised in this case, we take note that this Circuit and other circuits have also come to different conclusions, depending on the factual circumstances regarding the application of La.C.C.P. art 966(D).

For example, in Bell v. Uniroyal, Inc., 96-2838, (La.App. 4 Cir. 6/11/97), 696 So.2d 268, 270, the ten day rule was not enforced when a worker who had been injured while mounting a tire on a larger wheel rim brought a products liability action against the tire’s manufacturer and others. The district court granted summary judgment in favor of the tire manufacturer and the worker appealed. On appeal, we reversed the district court and held: (1) that the worker failed to create genuine issues of material fact that would preclude summary judgment, Id., at p. 269; and (2) the fact that summary judgment had been entered only eight days before trial date did not require a reversal, Id. at 270. Specifically, we opined:

... Bell raises a procedural point; the trial court rendered summary judgment only eight days before trial was to begin. This is in violation of La. C.C.P. art. 966(D), which calls for summary judgments to be | ^rendered at least ten days before the trial date, so as not to burden parties with unnecessary trial preparation.
However, we also find no evidence that Bell’s case was in any way prejudiced by the two day delay. In fact, it appears from the record that the reason for the delay was Bell’s own last-minute submission of Forney’s affidavit. He cannot now ask us to overturn the lower court’s judgment because it was forty-eight hours late due to his own untimely introduction of new evidence.

In Strong’s Plumbing, Inc. v. Leon Angel Constructors. Inc., 35,105 (La.App. 2 Cir. 10/21/01), 796 So.2d 926, the ten day rule was enforced when a plumbing company brought an action against a contractor to collect a judgment owed by a roofing company, to which the contractor was a successor in interest. The city court granted the contractor’s motion for summary judgment. The plumbing company appealed. On appeal, the Second Circuit held, inter alia, that the plumbing company was not prejudiced by the grant of summary judgment only three days prior to trial, noting:

The requirement of La.C.C.P. article 966 that a judgment on the motion be rendered at least ten days prior to the scheduled trial date prevents the parties from being burdened with unnecessary trial preparation. Lassere [v. State, 00-0306 (La.App. 1st Cir.03/28/01), 808 So. 2d 513], supra; Bell, supra. The instant case is primarily a paper case, and the evidence on the issue presented to the court in the motion for summary judgment would largely be duplicated at trial. We conclude, therefore, that plaintiff was not prejudiced by the court’s ruling on the motion for summary judgment just three days prior to trial. We turn now to the merits of the motion.

Id., pp. 3-4, 969 So.2d at 929.

Additionally, in Mitchell v. St. Paul Marine, 1998-1924 (La.App. 4 Cir. 1/27/99), 727 So.2d 1245, a claimant appealed from an order of the Office of Workers’ Compensation, granting the employer’s summary judgment motion. This Court reversed the district court and held that granting the motion for |7summary judgment one day before trial was in violation of La.C.C.P. art 966(D), which provides that judgment on motion shall be rendered at least ten days prior to trial, constituted reversible error. Id., pp. 4-5, 727 So.2d at 1247.

Lastly, in Johnson v. Canale, 00-891 (La.App. 5 Cir. 10/18/00), 769 So.2d 833, several real estate purchasers brought an action for misrepresentation against a vendor and the vendor’s insurer. The district court granted summary judgment in favor of the insurer on its duty to defend and other indemnification issues. After the vendor and purchaser reached settlement, the vendor appealed the district court’s grant of summary judgment to the insurer. On appeal, the Fifth Circuit held that the trial court’s failure to render judgment on summary judgment motion until one day before trial warranted reversal. Id., 727 So.2d at 837.

In the instant matter, the appellants assert that failure to abide by the time requirements of the article is reversible error, relying upon City of Baton Rouge v. American Home Assurance Company, 2007-1755 (La.App. 1 Cir. 5/2/08), 991 So.2d 48. In City of Baton Rouge, a subcontractor filed a petition in intervention in a breach of contract action brought by the city against the general contractor in connection with an airport renovation project. In the petition for intervention, the subcontractor alleged that the general contractor had not paid in full an amount due on its contract for the manufacture and delivery of the jetways. However, the general contractor filed a motion for summary judgment. The district court granted the general contractor’s motion on the same day that trial in the matter was scheduled to begin. The subcontractor appealed.

On appeal, the First Circuit reversed the district court’s granting of summary judgment, holding that “[t]he mandate of Article 966(D) is clear and unequivocal: ‘in any event judgment on the motion shall be rendered at least ten days prior to IgtriaL’ ” Id. at p. 54. Furthermore, “[a] motion for summary judgment must be secured in accordance with the procedural law in order to have the summary judgment upheld on appeal.” Id. at p. 52, citing Lassere v. State, Dep’t of Health & Hosp., Office of Pub. Health, 2000-0306, p. 4 (La.App. 1 Cir. 3/28/01), 808 So.2d 513, 516. The court also held that “although the court may hear and render judgment on the motion for summary judgment within a reasonable time, judgment on the motion must be rendered at least ten days prior to trial.” Id. at p. 51, See also La.C.C.P. art. 966(D).

“A legal error occurs when a trial court applies incorrect principles of law and such errors are prejudicial.” Lam ex rel. Lam v. State Farm Mut. Auto. Ins. Co., 2003-0180, p. 4 (La.App. 4 Cir. 4/1/05) 901 So.2d 559, 564, citing Lasha v. Olin Corp., 625 So.2d 1002, 1006 (La.1993). “Legal errors are prejudicial when they materially affect the outcome and deprive a party of substantial rights.” Id.

Our review of the record indicates that on June 3, 2008, the hearing on the summary judgment occurred. Although the matter was scheduled for trial on June 24, 2008, the district court issued a judgment on the motion dated June 23, 2008, which granted E.O.’s motion for summary judgment. The issuance of the judgment granting E.O.’s motion for summary judgment supports the appellants’ argument that the district court erred when it granted the appellee’s motion for summary judgment less than ten (10) days prior to trial. The constraint imposed by La.Code Civ. Proc. art. 966(D) is mandatory, rather than permissive. For this legal error alone, the district court judgment granting the motion for summary | ¡judgment is vacated, and the matter remanded to the district court for reconsideration.

Because of our determination that the district court erred in granting E.O.’s motion for summary judgment less than ten days prior to trial, we pretermit further discussion of the appellants’ assignment of error.

DECREE

For the above reasons, the judgment of the district court is vacated and remanded to the district court with instructions to reconsider the matter, consistent with this Court’s opinion.

JUDGMENT VACATED AND REMANDED.

      . In Lassere, the First Circuit enforced the ten day rule of La.C.C.P. art 966(D) as mandatory when a summary judgment was granted five days prior to trial.


text:
    STATE of Louisiana v. Pamela S. BROWN.
    No. 2008-KA-1434.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 18, 2009.
    Leon A. Cannizzaro, Jr., District Attorney, Andrew M. Pickett, Assistant District Attorney, Orleans, LA, for Appellee, State of Louisiana.
    Christopher A. Aberle, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellant, Pamela S. Brown.
    (Court composed of Judge CHARLES R. JONES, Judge MAX N. TOBIAS, JR., Judge DAVID S. GORBATY).
   MAX N. TOBIAS, JR., Judge.

| iQn 6 December 2007 the state filed a bill of information charging the defendant/appellant, Pamela S. Brown (“Brown”), with one count of theft in an amount over $500.00, a violation of La. R.S. 14:67. Brown entered a not guilty plea at her arraignment on 13 December 2007. On 29 January 2008 Brown was tried before a six-person jury that returned a verdict of guilty as charged. Sentencing was delayed for several months during which time Brown was attempting to pay restitution and a presentence investigation report was being prepared. By 9 May 2008 she had paid full restitution to the victim. On 13 May 2008 the trial court sentenced Brown to serve four years at hard labor. The court then denied her motion to reconsider sentence but granted her motion for an appeal.

STATEMENT OF THE FACTS

On 8 October 2007, Mr. Walid Kronfel was working at the Algiers Central Market, a grocery store and check cashing service that he owned. The defendant, whom Mr. Kronfel recognized from prior times she had been in his store, approached the counter and presented a check which she wished to have cashed. She showed Mr. Kronfel her identification card, and when he told her the picture 1 ¿did not look like her, she said it was because she was wearing a wig and removed it to show him. Mr. Kronfel noticed the defendant appeared very nervous, even smoking a cigarette in the store. Therefore, he examined the check which Brown had given him and concluded that it looked legitimate. Brown endorsed the back of the check, and then in accordance with Mr. Kronfel’s usual procedure for cashing checks, she placed her thumbprint on the check. Mr. Kronfel then used a camera and took a split image picture of Brown, the check, and her identification. After completing these steps, Mr. Kronfel paid Brown the face amount of the check, $1256.09, less a check-cashing fee. The net amount according to Mr. Kronfel was $1221.00.

After Brown cashed the check, another person approached Mr. Kronfel and presented a check purporting to be from the same company and drawn on the same bank as that which Brown had just cashed. Becoming suspicious, Mr. Kronfel told the second customer that he did not have sufficient funds to cash the check. Mr. Kron-fel’s wife then placed phone calls in an attempt to find out if the company shown on the payroll check existed or had an account. Mr. Kronfel testified at trial that his wife was unable to confirm the existence of the company. The trial court sustained the defense counsel’s hearsay objection to Mr. Kronfel’s further testimony that customer service personnel at Bank of America, the bank upon which the check was supposedly drawn, advised that there was no account number corresponding to the number on the check.

Mr. Kronfel also testified that he first tried to follow a vehicle or vehicles in which Brown and the other person who tried to cash a check left the store. ^Because they were speeding he did not follow them. Instead he drove to the address on Brown’s identification. When he arrived, he saw her getting out of the car. He confronted Brown and demanded his money back. She ran inside the house and would not respond to Mr. Kronfel’s attempts to have her open the door. Mr. Kronfel then looked down the side of the house and saw Brown trying to jump the fence. He was able to catch her and again demanded his money. Brown had approximately $100.00 in her hand which Mr. Kronfel took from her. She told him that the rest of the money was in the house and that she would go inside and get it. Mr. Kronfel agreed to wait outside the house, but when she did not come back out within a short time, he called the police.

Officer Alvin Walton testified at trial that he and Sergeant Kevin Guillot responded separately to the call from Mr. Kronfel. After interviewing the victim, the officers approached the residence and knocked at the door for several minutes. Finally, a woman named Lisa Hansel opened the door and stated that it was her residence. She admitted that Brown was inside and allowed the officers to enter. The officers searched the house twice before they found Brown hiding in a laundry chute in the bathroom. Also hiding in the chute was another woman, whom Officer Walton testified was a resident of a nearby house and known to have mental problems.

The police took custody of the check that Brown had cashed. At trial, Mr. Kronfel identified State’s Exhibit One as the photograph that he took of Brown, the check, and the identification. He identified Brown as the person who cashed the check. Officer George Jackson, a fingerprint expert, testified at trial that he compared the fingerprint on the check with the defendant’s fingerprint and that they were a match.

\ .ERRORS PATENT

A review of the record for errors patent reveals that none exist.

DISCUSSION

In a single assignment of error, Brown argues that no evidence was presented that she attempted to pass a bad check, and therefore the sentence must be reversed. The constitutional standard for testing the sufficiency of the evidence, enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. State v. Rosiere, 488 So.2d 965 (La.1986). However, the reviewing court may not disregard this duty simply because the record contains evidence that tends to support each fact necessary to constitute the crime. State v. Mussall, 523 So.2d 1305 (La.1988). The reviewing court must consider the record as a whole since that is what a rational trier of fact would do. State v. Shaw, 07-1427, p. 15 (La.App. 4 Cir. 6/18/08), 987 So.2d 398, 408. If rational triers of fact could disagree as to the interpretation of the evidence, the rational triers’ view of all the evidence most favorable to the prosecution must be adopted. Id. The fact finder’s discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. Id. “[A] reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence.” State v. Smith, 600 So.2d 1319, 1324 (La.1992).

In addition, when circumstantial evidence forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and | ^common experience. State v. Shapiro, 431 So.2d 372 (La.1982). The elements must be proven such that every reasonable hypothesis of innocence is excluded. La. R.S. 15:438. This is not a separate test from Jackson v. Virginia, but rather an evidentiary guideline to facilitate appellate review of whether a rational juror could have found a defendant guilty beyond a reasonable doubt. State v. Wright, 445 So.2d 1198 (La.1984). All evidence, direct and circumstantial, must meet the Jackson reasonable doubt standard. State v. Jacobs, 504 So.2d 817 (La.1987). Additionally, case law holds clearly that it is not the function of an appellate court to evaluate the credibility of the witnesses and to overturn the jury on its factual determination of guilt. State v. Richardson, 425 So.2d 1228 (La.1983).

In this case, Brown was convicted of theft of property having a value of more than $500.00. The offense of theft is defined in La. R.S. 14:67 that in pertinent part reads:

A. Theft is the misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations. An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential.

Thus, in order for Brown’s conviction to be upheld on appeal, the state must have proven the following essential elements beyond a reasonable doubt: (1) that the defendant misappropriated or took by means of fraudulent conduct, practices, or representations; (2) a thing of value; (3) that belonged to another; and (4) that the defendant had the intent to deprive the owner permanently of that which was misappropriated or taken. State v. Pittman, 368 So.2d 708 (La.1979). The state must further prove the value of the stolen property, for upon this proof depends the determination of the severity of the theft, and the punishment for a convicted | (¡offender. State v. Monterroso, 96-376 (La.App. 5 Cir. 11/14/96), 685 So.2d 249, 251; La. R.S. 14:67 B.

Brown argues that there was insufficient evidence to show that she intentionally and fraudulently cashed a check that was not a legitimate instrument. She notes in particular that the state presented no evidence to show that the check was not honored by the bank upon which it purportedly was drawn because Mr. Kronfel never attempted to negotiate the check. As to the circumstantial evidence of guilt, she admits that there was evidence that she attempted to hide from the police. However, she also contends that there is circumstantial evidence which supports the conclusion that she did not intend to defraud Mr. Kronfel, specifically that she used her own identification, which contained a correct address; she placed her fingerprint on the check; and she allowed Mr. Kronfel to take her photograph. Furthermore, she presented the check at a location where she was known to the owner, and when he did not recognize her identification picture, she removed her wig.

Brown also argues that the fact that she did not return the money when Mr. Kron-fel offered not to call the police if she did so shows that she “stood upon a belief that she had a right to keep it” and that she only ran and hid from Mr. Kronfel because he was “an enraged man trying to take her money away.” However, the alleged circumstantial evidence that she believed the money was legally hers is undercut significantly by the lack of evidence that she was in possession of the money when the police arrested her only a short while after she Jjhad cashed the check. Moreover, rather than call the police herself when confronted by Mr. Kronfel, she first tried to run away and then hid in a laundry chute.

We find that Brown is correct in the portion of her argument wherein she suggests that the hearsay testimony to which the defense successfully objected was damaging evidence to show that she cashed a bad check. As noted above, Mr. Kronfel testified that his wife learned from the bank’s customer service personnel that the account shown on the check was non-existent and that the alleged payor-company on the cheek also did not exist. The defense objected immediately after Mr. Kronfel testified that the Bank of America “said there is no account.” The court sustained the objection “[a]s to anything Bank of America may have said” Despite the court’s ruling, Mr. Kronfel immediately continued with similar hearsay testimony:

A. We find out that there is no account exist [sic] and no company exist [sic],
Q. Okay, And, did you — how did you get in touch with Bank of America?
A. We just called their customer service to verify the check.
Q. Did they ask you for any information off of the check?
A. Yes, they asked for the account number and they asked for the — the title on the check.
Q. The what, I’m sorry.
A. The title, the name on the check.
Q. Okay.
A. Who—
Q. Did you give them that information?
|8A. It’s really not me. My wife did this work.
Q. Okay.
A. This process.
Q. Okay, And what did you learn from that process?

Defense counsel made another objection before the witness answered the prosecutor’s last question. The court sustained the objection, noting that it had “already done so,” and directed the prosecutor to move on. The prosecutor then began to question Mr. Kronfel on another issue, although he returned to the subject briefly on redirect. At that time, the prosecutor asked Mr. Kronfel about the photograph of the check and whether it reflected “the same check number that you presented to Bank of America” Mr. Kronfel responded that it was “the one we called to verify.”

Whether admissible or inadmissible, hearsay evidence is to be considered when assessing the conviction for sufficiency of the evidence. See State v. Hearold, 603 So.2d 731, 734 (La.1992), in which the court stated:

When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accordance with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) in the light most favorable to the prosecution, could not reasonably conclude that all of the essential elements of the offense have been proved beyond a reasonable doubt. When the entirety of the evidence, including inadmissible evidence which was erroneously admitted, is insufficient to support the conviction, the accused must be discharged as to that crime, and any discussion by the court of the trial error issues as to that crime would be pure dicta since those issues are moot.
|flOn the other hand, when the entirety of the evidence, both admissible and inadmissible, is sufficient to support the conviction, the accused is not entitled to an acquittal, and the reviewing court must then consider the assignments of trial error to determine whether the accused is entitled to a new trial. If the reviewing court determines there has been trial error (which was not harmless) in cases in which the entirety of the evidence was sufficient to support the conviction, then the accused must receive a new trial, but is not entitled to an acquittal even though the admissible evidence, considered alone, was insufficient. Lockhart v. Nelson, 488 U.S. 33, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988). [Footnote omitted.]

Here, a review of all of the evidence, including Mr. Kronfel’s testimony that representatives from the Bank of America informed his wife that the account number on the check did not exist and that his wife had learned that the company whose name was on the check was non-existent, as well as Brown’s attempts to flee and then conceal herself from the police, shows that it was sufficient to support the jury’s verdict. Thus, although some of the testimony may have been hearsay, Brown is not entitled to a verdict of acquittal.

Furthermore, in contrast to Hearold, Brown is not entitled to any other relief herein. In Hearold, the defendant unsuccessfully moved for a mistrial after his objection to hearsay testimony was sustained. Because the trial court’s error in denying the motion for mistrial was not harmless, the Supreme Court ordered that the defendant be retried. In contrast the defense in the instant case neither asked for an admonishment nor moved for a mistrial after the trial court sustained the _|_i!Jdefense objection to Mr. Kronfel’s testimony regarding what his wife was told. Thus, she has no other grounds for relief arising from the hearsay testimony.

We conclude that the assignment of error lacks merit.

CONCLUSION

For the foregoing reasons, we affirm the conviction and sentence of Pamela S. Brown.

AFFIRMED.

JONES, J., dissents with reasons.

JONES, J.,

dissents with reasons.

hThe majority’s opinion, to me, finds a clear violation of the defendant’s due process rights, but that the court is not empowered to act because the error results from “ineffective assistance of counsel.”

There is no competent evidence in the record to form the basis of the conviction. Rather the majority only cites hearsay evidence to support its conclusion that the conviction must be affirmed. The basic tenets of the United States and the Louisiana constitutions are that such clear violations of criminal procedure resulting in a four year conviction and sentence is unfair in an ordered society. For these reasons, I respectfully dissent.

      . The bill of information initially stated that the defendant’s name is Pamela Brown. The bill was amended on January 29, 2008 at the beginning of trial to add that she is also known as Pamela Selfe, which was the name she was using at the time of the offense.

      . La. R.S. 14:67 B(l) provides that the penalty for theft of property valued in excess of $500.00 shall be imprisonment with or without hard labor for not more than ten years, or a fine of not more than three thousand dollars, or both.

      . No claim is made by Brown in her appeal that she had ineffective assistance of counsel; that issue is properly addressed on an application for post-conviction relief. State ex rel. Glover v. State, 97-1474 (La. 12/19/97), 704 So.2d 242; see also Rule 2-12.24, Uniform Rules, Cts. of App.


text:
    STATE of Louisiana v. Virtis VINCENT.
    No. 2008-KA-1432.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 18, 2009.

      Leon A. Cannizzaro, Jr., District Attorney, Brandi Dohre, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge CHARLES R. JONES, Judge MAX N. TOBIAS, JR., and Judge DAVID S. GORBATY).
   CHARLES R. JONES, Judge.

_JjThe appellant, Virtis Vincent, appeals his conviction and sentence for theft of used building components. We affirm.

Vincent was charged with theft of used building components, a violation of La. R.S. 14:67.23. The district court denied the motion to suppress the evidence and found probable cause to hold Vincent for trial. Vincent, following a jury trial, was found guilty as charged. The State filed a multiple bill of information to which Vincent entered a not guilty plea. He was sentenced to serve three years at hard labor with credit for time served and concurrent with any other sentences. The defense filed a motion for appeal which was granted. The hearing on the multiple bill was held, and Vincent was found to be a double offender. The district court vacated the prior sentence, and re-sentenced Vincent to five (5) years hard labor with credit for time served. Vincent timely filed this appeal.

Garren Mims is the owner of a home located at 610 Thayer Street in Orleans Parish. Mr. Mims testified that on the morning of August 29, 2007, he arrived at |2610 Thayer St. to check on his home, which was under construction. Mr. Mims testified that he walked through the house towards the rear and looked out of a bedroom window. He further testified that he observed a black male — who was later identified as Vincent — in the back yard of the abandoned house adjacent to his home. The address of the abandoned home is 612 Thayer St. Mr. Mims testified that Vincent was rolling up and using a yellow rope to tie copper pipes, which were lying on the ground. Mr. Mims testified that he immediately called 911 to report the suspicious activity.

Mr. Mims further testified that he then turned on the faucets in his home and discovered that he had no water. He testified that he went outside to see if the main water line had been shut off. Mr. Mims testified that he then looked under his house and he discovered that all of his copper plumbing pipes were missing all the way up to the shut off valve. He testified that he walked toward his backyard and observed Vincent walking toward the backyard at 612 Thayer St. where copper pipes were on the ground; he observed Vincent attempting to roll all of the copper pipes and tie them together. Mr. Mims testified that he again called 911 to report the theft of the pipes. He testified that he described Vincent as wearing a dark shirt and pants. He then asked Vincent what he was doing. Mr. Mims further testified that Vincent replied that he lived in the house next door. Mr. Mims testified that at this juncture he directed Vincent to knock on the door of 610 Thayer St. to prove that he lived there. Mr. Mims testified that the owner of the house denied that Vincent lived there. Mr. Mims testified that he called 911 a third time to see when the police would arrive. Mr. Mims testified that Vincent then attempted to leave the scene on a bicycle. Mr. Mims testified that he ordered Vincent not to |oleave and within five minutes officers from the New Orleans Police Department arrived.

Mr. Mims testified that as Vincent rode a bicycle down a side yard, the police officers met Vincent at the front of the home and arrested him. Mr. Mims testi-fíed that he spoke to the officers, and related to them what he had seen and showed them the missing pipes. Mr. Mims further testified that one of the officers took pictures of the copper pipes and a yellow electrical cord that Vincent used to tie the pipe. He testified that none of the other raised houses in the area had pipes missing. Mr. Mims testified that the pipes were not returned to him and that it costs him $4000.00 to replace the copper pipes.

On cross-examination, Mr. Mims testified that he did not see Vincent cut the pipe, and that Vincent was not carrying any pipes when he was observed coming from Mr. Mims’ backyard. On re-direct examination, Mr. Mims testified that when he looked at the ends of the pipe it appeared to him that the pipe had been cut “... with snips or something like that.”

Detective Aaron Cronk of the New Orleans Police Department testified that at approximately 8:15 a.m. he and his partner received a 911 dispatch that someone was stealing copper pipe from a home at 610 Thayer Street Det. Cronk testified that the suspect was described as a tall black male wearing a dark shirt and pants. Det. Cronk further testified that he and his partner drove to the nearest cross-street, Evelina Street. Det. Cronk further testified that he exited the police vehicle while his partner remained inside the vehicle in the event the suspect attempted to flee. Det. Cronk testified that he began walking southbound on Thayer St. As he passed some bushes growing next to the house at 610 Thayer St., he testified that he heard |4a conversation and observed the feet of two individuals standing between 610 and 612 Thayer St. At that point, Det. Cronk further testified that he saw Vincent, who fit the description of the suspect, run from the area; Det. Cronk apprehended him. Det. Cronk testified that he then spoke with the owner of the home, Garren Mims. Det. Cronk testified that he looked under Mr. Mims’ home and observed empty brackets where copper plumbing pipes had been installed. Det. Cronk further testified that he located a stack of missing copper pipes lying next to a shed in the back yard of 612 Thayer St.; the pipes were covered with a black plastic bag.

On cross-examination, Det. Cronk testified that he did not see Vincent remove the pipes from under the house, and that Mr. Mims did not tell him that he (Mr. Mims) observed Vincent cut the pipes. He testified that he apprehended Vincent and arrested him within minutes after his arrival when he observed Vincent — who fit the description of the suspect — run from the scene. Det. Cronk testified that Vincent was not wearing gloves, and that he did not find any wire cutters, saws, hammers or any other tool in Vincent’s possession. Det. Cronk did testify that a bicycle was found at the scene. Lastly, Det. Cronk testified that he did not order the crime lab to test for fingerprints because the pipes were too covered with mud and grass for a test to be successful.

Vincent raises two assignments of error on appeal: 1.) the district court erred in finding that the evidence presented was sufficient to support his conviction, and 2.) the district court made improper comments on the evidence, during closing arguments, after sustaining the State’s objection to defense counsel’s remarks about the failure to take fingerprint evidence from the pipes.

|r,In his first assignment of error, Vincent asserts that the evidence was insufficient to support his conviction. Specifically, he argues that the State failed to prove that the pipes taken from 610 Thayer St. were valued at $500.00 or more. He asserts that the State only proved that pipes of an undetermined amount were taken.

In evaluating whether evidence is constitutionally sufficient to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Green, 588 So.2d 757 (La.App. 4th Cir.1991). However, the reviewing court may not disregard this duty simply because the record contains evidence that tends to support each fact necessary to constitute the crime. State v. Mussall, 523 So.2d 1305 (La.1988). The reviewing court is not permitted to consider just the evidence most favorable to the prosecution but must consider the record as a whole since that is what a rational trier of fact would do. If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier’s view of all the evidence most favorable to the prosecution must be adopted. The factfinder’s discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. Mussall, 523 So.2d at 1309-1310. “[A] reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence.” State v. Smith, 600 So.2d 1319, 1324 (La.1992).

In addition, when circumstantial evidence forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from | nwhich the existence of the main fact may be inferred according to reason and common experience. State v. Shapiro, 431 So.2d 372 (La.1982). The elements must be proven such that every reasonable hypothesis of innocence is excluded. La. R.S. 15:438. This is not a separate test from Jackson v. Virginia, but rather is an evidentiary guideline to facilitate appellate review of whether a rational juror could have found a defendant guilty beyond a reasonable doubt. State v. Wright, 445 So.2d 1198 (La.1984). All evidence, direct and circumstantial, must meet the Jackson reasonable doubt standard. State v. Jacobs, 504 So.2d 817 (La.1987). If a rational trier of fact reasonably rejects the defendant’s hypothesis of innocence, that hypothesis falls; and, unless another one creates reasonable doubt, the defendant is guilty. State v. Captville, 448 So.2d 676 (La.1984).

A factfinder’s credibility decision should not be disturbed unless it is clearly contrary to the evidence. State v. Huckabay, 2000-1082, p. 33 (La.App. 4 Cir. 2/6/02), 809 So.2d 1093, 1111 (quoting State v. Harris, 99-3147, p. 6 (La.App. 4 Cir. 5/31/00), 765 So.2d 432, 435). A single witness, if believed by the trier of fact, is sufficient to support a conviction. See State v. White, 28,095 (La.App.2d Cir.5/8/96), 674 So.2d 1018.

La.R.S. 14:67.23 provides in pertinent part:

A. Theft of a used building component is the misappropriation or the taking of a used building component from immovable property belonging to another, either without the consent of the owner of the immovable property, or by means of fraudulent conduct, practices, or representations. An intent to deprive the owner of the immovable property permanently of the used building component is essential.
|7B. “Used building component” shall mean any object produced shaped by human workmanship or tools that is an element of [a] structural ... component ..., that is immovable property or fixture, including but not limited to ... plumbing ... parts of immovable property of any nature or kind whatsoever.
C. (1) Whoever commits the crime of theft of a used building component, when the theft or taking amounts to a value or replacement value, whichever is greater, of five hundred dollars or more shall be fined not more than three thousand dollars, imprisoned with or without hard labor for not more than ten years, or both, (emphasis added).

In the instant case, the victim — Mr. Mims — testified that all of the copper plumbing pipes had been installed on the house prior to the theft; that when he looked under the house he observed that all the copper pipes were missing up to the shut off valve, and that the replacement cost of the pipes was $4000.00. Furthermore, any rational trier of fact could conclude that the amount of copper pipes, shown in the photographs, constituted at least a portion of the copper pipes that were installed on Mr. Mims’ house. Mr. Mims observed Vincent walking from the back of his house to the stack of copper pipes lying in the backyard of the neighboring house where Vincent was attempting to roll and tie the pipes. Obviously, the jury concluded that Vincent took the pipes and that Mr. Mims’ testimony as to the replacement cost of the pipes was credible. While the actual replacement cost for the pipes shown in photographic exhibit number 5 may not be $4000.00, it was reasonable for the jury to conclude that the replacement value cost for the copper shown in photographic exhibit number 5 exceeded $500.00 No evidence disputes the jury’s conclusion. The State presented sufficient evidence to support Vincent’s conviction. This assignment of error is without merit.

| sIn his second assignment of error, Vincent argues that the district court made improper comments on the evidence, during closing arguments, after sustaining the State’s objection to defense counsel’s remarks about the failure to take fingerprint evidence from the pipes.

The following argument and exchange occurred:

BY MR. DUFFY:
But it’s also ridiculous that in the 21st century, the New Orleans Police Department may not have the capabilities to dust these things for fingerprints, even if they’re dirty. I mean, even if they are dirty, that’s even more reason that the fingerprints would be on them. Sherlock Holmes was doing it with a magnifying glass in the 19th century. I mean, we’re not talking about C.S.I. here, folks. But all we’re doing is putting some dust and taking tape. If he had gone over there and taken these pipes, his prints would be all over them.
BY MR. BLAIR:
Objection, Your Honor.
BY THE COURT:
Sustained, You’re commenting on facts that are not in evidence, and I instruct the ladies and gentlemen of the jury to disregard that remark about what could have been done in the 18th [sicjcentury, as not being part of the evidence in this case.

Vincent did not object to these comments made by the district court; thus, he is precluded from raising this claim of error on appeal. La.C.Cr.P. article 841; State v. Lanclos, 2007-0082, 2007-0716 (La.4/8/08), 980 So.2d 643. We pretermit further discussion of this assignment of error.

| flLastly, a review of the record for errors patent reveals that none exist.

DECREE

For the foregoing reasons, the conviction and sentence of Virtis Vincent are affirmed.

AFFIRMED.

      . The list of responsive verdicts to the theft charge given to the jury was technically incorrect under La. C. Cr. P. art. 814(26). However, because the jury returned a verdict of guilty of the crime charged, no prejudice resulted to the defendant. See State v. Pres-tridge, 399 So.2d 564, 578 (La. 1981) (held, erroneous charge is not prejudicial when jury returns guilty verdict of crime charged).