text:
    JEFFERSON DAVIS PARISH SCHOOL BOARD through SALES/USE TAX DEPT. v. LOUISIANA MACHINERY RENTALS, LLC. Jefferson Davis Parish School Board through Sales/Use Tax Dept. v. Louisiana Machinery Company, LLC.
    Nos. 11-510, 11-512.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 5, 2011.

      Pamela Roman Mascari, Kean, Miller, LLP, Baton Rouge, LA, for Defendant/Appellant, Louisiana Machinery Rentals, LLC, Louisiana Machinery Company, LLC.
    Drew M. Talbot, Rainer, Anding & McLindon, Baton Rouge, LA, for Plaintiff/Appellee, Jefferson Davis Parish School Board through Sales and Use Tax Department.
    Court composed of JOHN D. SAUNDERS, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   SAUNDERS, Judge.

1 iThis is a tax collection case. The tax collector properly followed the procedure outlined in La.R.S. 47:337.51 and issued two dealers with notices of assessment. Neither dealer responded to the assessment within sixty days or at the administrative level.

The tax collector then filed a rule to show cause in a summary sales and use tax proceeding in the trial court. There, the two dealers attempted to challenge the assessments on the merits and through exceptions. The trial court found that these challenges were not allowed under La.R.S. 47:337.51, as the assessments were final. The dealers have appealed. We affirm.

FACTS AND PROCEDURAL HISTORY:

Louisiana Machinery Rentals, LLC (LMR) and Louisiana Machinery Company, LLC (LMC) were audited by the Jefferson Davis Parish School Board (tax collector) for the period of December 1, 2003 through June 30, 2007. The audits revealed a substantial sales and/or use tax deficiency.

The tax collector, in conformity with La. R.S. 47:337.48, issued to both LMR and LMC a separate 30 Day Notices of Intent to Assess. Neither LMR nor LMC responded to these notices.

After thirty days had elapsed, the tax collector, as required by La.R.S. 47:337.51, issued both LMR and LMC a separate Notices of Assessment 60-day Notice— La.R.S. 47:337.51 REVISED. The assessments were issued on July 2, 2010, and were received by both LMR and LMC. Neither requested, as was its right under La.R.S. 47:337.51, a hearing to raise any factual or legal objections to the assessments.

On October 25, 2010, the tax collector filed two separate petitions for rules to show cause in summary sales and use tax proceeding against each LMR and |2LMC. Both responded to the petitions by filing various exceptions and raising various arguments contesting the validity of the assessments both factually and legally. At the hearing on both rules, the trial court refused to hear these exceptions and arguments due to the assessment being final. As such, the trial court issued separate judgments, both denying exceptions raised by LMR and LMC and both granting the tax collector’s motions for partial summary judgment against each for the amounts specified in each assessment. Both LMR and LMC have appealed. The appeals were consolidated, with LMR and LMC raising the following assignments of error.

ASSIGNMENTS OF ERROR:

1. The Trial Court erred in precluding LMR[] and LMC’s defenses to the assessment of sales and use tax where the assessments were not “final” in the sense that they could not be defended, whether by exception or on the merits, in a summary rule to collect sales tax;
2. The Trial Court erred in pretermit-ing and failing to sustain LMR’s peremptory exception of improper party defendant where LMR never engaged in any business or taxable transactions within the parish;
3. The Trial Court erred in pretermit-ing and failing to sustain LMC[] and LMR’s peremptory exceptions of prescription where the Tax Collector’s claims against LMC and LMR had prescribed before the tax was assessed; and
4. The Trial Court erred in granting partial summary judgments in favor of the Jefferson Davis Tax Collector and against LMC and LMR for sales tax, penalty[,] and interest allegedly due where (i) the motions for partial summary judgment were not authorized by the procedure governing summary rules to collect sales tax; (ii) the affidavits of the Jefferson Davis Tax Collector were not based upon personal knowledge and consisted of hearsay testimony and the motions for summary judgment did not contain certified or sworn copies of the documents referenced in the affidavits by reference to the Petitions; (iii) the Tax Collector failed to present evidence of essential elements of his claim — the existence of a contract with a private auditing firm and that the contract was approved by a majority of the taxing authorities within the parish; and (iv) a genuine issue of material fact exists as to the amount of tax (and penalty and interest) due.

\ .ASSIGNMENT OF ERROR NUMBER ONE:

LMR and LMC’s first assignment of error is that the trial court erred in precluding their defenses to the assessment of sales and use tax where the assessments were not “final” in the sense that they could be defended, whether by exception or on the merits, in a summary rule to collect sales tax. We find no merit in this assignment of error.

Louisiana Revised Statutes 47:337.51 states:

A. Having assessed the amount determined to be due, the collector shall send a notice by certified mail to the taxpayer against whom the assessment is imposed at the address given in the last report filed by said taxpayer, or to any address obtainable from any private entity which will provide such address free of charge or from any federal, state, or local government entity, including but not limited to the United States Postal Service or from the United States Postal Service certified software. If no report has been timely filed, the collector shall send a notice by certified mail to the taxpayer against whom the assessment is imposed at any address obtainable from any private entity which will provide such address free of charge or from any federal, state, or local government entity, including but not limited to the United States Postal Service or from the United States Postal Service certified software. This notice shall inform the taxpayer of the assessment and that he has thirty calendar days from the date of the notice to (a) pay the amount of the assessment; (b) request mandatory arbitration pursuant to R.S. 47:387.51.1 or; (c) pay under protest in accordance with R.S. 47:337.63 and file suit as provided for in that Section or request mandatory arbitration pursuant to R.S. 47:337.51.1.
B. If any dealer shall be aggrieved by any findings or assessment of the collector, he may, within thirty days of the receipt of notice of the assessment or finding, do any of the following:
(l)(a) File an appeal from the decision of the collector directed to any state, city, or federal court of competent jurisdiction.
(b) Pay under protest in accordance with R.S. 47:337.63, and either file suit as provided for in that Section, or make a written request for mandatory arbitration pursuant to R.S. 47:337.51.1.
(c) Mail a written request for mandatory arbitration pursuant to R.S. 47:337.51.1 -without payment under protest.
|⅜(2) This Section shall afford a legal remedy and right of action in any state, city, or federal court having jurisdiction of the parties and subject matter for a full and complete adjudication of any and all questions arising in the enforcement of the local ordinance and this Chapter as to the legality of any tax accrued or accruing or the method of enforcement thereof.
C. (1) No assessment made by the collector shall be final if it is determined that the assessment was based on an error of fact or of law. An “error of fact” for this purpose means facts material to the assessment assumed by the collector at the time of the assessment to be true but which subsequently are determined by the collector to be false. “Error of law” for this purpose means that in making the assessment the collector applied the law contrary to the construction followed by the collector in making other assessments.
(2) The determination of an error of fact or of law under this Subsection shall be solely that of the collector, and no action against the collector with respect to the determination shall be brought in any court, and no court shall have jurisdiction of any such action, it being the intent of this Subsection only to permit the collector to correct manifest errors of fact or in the application of the law made by the collector in making the assessment; however, all reductions of assessments based on such errors, except estimated assessments made due to the failure of the taxpayer to file a proper tax return, must be approved and signed by the collector. Estimated assessments made due to the failure of the taxpayer to file a proper tax return may be corrected by the acceptance of the proper tax return and must be approved by the collector or his designee.

“When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.” La.Civ.Code art. 9. We find the language of La.R.S. 47:337.51(B) to be clear. A dealer, here both LMR and LMC, has three avenues it could take once it receives an assessment: file an appeal to the assessment, pay the assessment under protest, or simply pay the assessment. Each avenue requires the dealer to take action once it receives an assessment. If no action is taken by the dealer, the assessment becomes final. This interpretation is consistent with this court’s finding in Lafayette Parish School Board v. Simmons, 09-926, p. 1 (La.App. 3 Cir. 3/17/10), 33 So.3d 973, 974, wherein it stated, “the School Board’s Sales and Use Tax Collection Division issued a Notice of Assessment in accordance with La. R.S. 47:337.51, which required action on the part of the defendants within sixty days. A failure to act within the sixty day period results in a final enforceable assessment.”

In the case before us, neither LMR nor LMC took any action on the administrative level once either received its notice of assessment. Thus, as the trial court correctly found, the assessment was final, and both were precluded from raising defenses, whether by exception or on the merits, in a summary rule to collect sales tax. Accordingly, we find no error by the trial court in its judgment.

ASSIGNMENTS OF ERROR NUMBERS TWO, THREE, AND FOUR:

LMR and LMC’s remaining assignments of error all are predicated on their ability, post final assessments, to contest that assessment made by the tax collector. In order to find merit in LMR and LMC’s arguments raised in the remaining assignments of error requires this court to make interpretations of law that are improper and, further, would be in conflict with our finding in assignment of error number one. Our finding in that assignment that the trial court properly deemed the assessment as final pretermits adjudication of whether LMR’s peremptory exception of improper party defendant was proper, whether LMR and LMC’s peremptory exceptions of prescription were proper, and whether the trial court erred in granting partial summary judgments in favor of the tax collector and against LMR and LMC. Both LMR and LMC had a right to present these exceptions, evidence, and arguments through clearly expressed options under La.R.S. 47:337.51. They failed to do so.

CONCLUSION:

Louisiana Machinery Rentals, LLC and Louisiana Machinery Company, LLC raise four assignments of error. First, they contend that the trial court erred in | ¿precluding their defenses to the assessment of sales and use tax where the assessments were not final in the sense that they could not be defended, whether by exception or on the merits, in a summary rule to collect sales tax. We find that the procedure delineated in La.R.S. 47:337.51 is clear, and that neither Louisiana Machinery Rentals, LLC nor Louisiana Machinery Company, LLC followed that procedure. Accordingly, the tax assessment against them was final. This finding precludes adjudication of their remaining assignments of error. Thus, we affirm the trial court’s ruling in its entirety. All costs of these proceedings are assessed to Louisiana Machinery Rentals, LLC and Louisiana Machinery Company, LLC.

AFFIRMED.


source: Caselaw Access Project

author: THIBODEAUX, Chief Judge. AMY, J.,

license: Public Domain

text:
    Carl R. GUIDRY, et ux. v. STATE FARM FIRE AND CASUALTY COMPANY, et al.
    No. 11-262.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 5, 2011.

      Kenny Layne Oliver, David Oliver Way, Oliver & Way, L.L.C., Lafayette, LA, for Defendants/Appellees, Louisiana Farm Bureau Mutual Insurance Company and Evelyn B. Smith.
    Ian Alexander MacDonald, Jones Walker, Lafayette, LA, for Defendant/Appellant, Progressive Security Insurance Company.
    Michael Langdon Cave, Cave Law Firm, L.L.C., Baton Rouge, LA, for Plaintiffs/Appellants, Carl R. Guidry and Barbara Guidry.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and PHYLLIS M. KEATY, Judges.
   THIBODEAUX, Chief Judge.

| j Carl Guidry was hit from behind in two vehicular rear-end collisions, two weeks apart. He sued the drivers and their insurers for each accident, and he sued his own insurance company for mishandling his underinsured driver claim. Mr. Guidry settled with and dismissed the defendants in the first accident and proceeded to trial against the defendants in the second accident, and against his own insurance company. Mr. Guidry appeals the jury’s resulting general damages award of $10,000.00 as abusively low. Mr. Guidry’s insurer also filed an appeal from the awards against it for arbitrary and capricious claims handling. We do not find an abuse of discretion and affirm the jury’s awards in both instances.

I.

ISSUES

We must decide:

(1) whether the jury’s award of general damages for the second accident was abusively low; and
(2) whether Mr. Guidry’s own insurance company was arbitrary and capricious in its handling of Mr. Guidry’s claims.

II.

FACTS AND PROCEDURAL HISTORY

On October 27, 2004, Carl Guidry and his granddaughter were rear-ended by Amber Guidry (Amber). Mr. Guidry’s truck was slightly knocked forward.

Two weeks later, on November 11, 2004, Mr. Guidry and his granddaughter were again rear-ended, this time by Evelyn B. Smith (Smith). Mr. Guidry had slowed for a vehicle turning in front of him. Ms. Smith testified that |2she did not see him in time, and afraid of flipping her SUV if she braked too hard, she hit him. Her SUV was towed, and Mr. Guidry sustained damage to his back bumper and tailgate, requiring repairs in the amount of $3,500.00. Mr. Guidry had neck and back pain after the first accident and neck, back, and shoulder pain after the second accident.

Carl Guidry and his wife, Barbara Gui-dry, along with the parents of their granddaughter, sued Amber and her insurer, State Farm Fire and Casualty Company, for the October accident; and, they sued Smith and her insurer, Louisiana Farm Bureau Mutual Insurance Company, for the November accident.

The plaintiffs subsequently amended their petition to add Mr. Guidry’s uninsured/underinsured motorist (UM) carrier, Progressive Security Insurance Company, as a defendant.

Mr. Guidry and his wife settled with Amber and State Farm for the first accident and proceeded against Smith and Farm Bureau for the second accident. They proceeded against Progressive for both accidents. Following trial, the jury found that Mr. Guidry did not suffer damages in the October accident with Amber, who had settled for State Farm’s policy limits of $10,000.00 and had been released. The jury found that Mr. Guidry did suffer damages in the November accident with Smith and awarded him medical damages of $19,859.40 and general damages of $10,000.00, to be paid by Smith’s insurer, Farm Bureau. It also awarded Mr. Gui-dry’s wife $2,500.00 for loss of consortium, to be paid by Farm Bureau.

The jury further found that Mr. Gui-dry’s UM insurer, Progressive, had been arbitrary and capricious in handling Mr. Guidry’s claims for general damages and medical expenses. The jury awarded Mr. Guidry $50,000.00 for the breach of |sduty and $10,000.00 in attorney fees, with respect to the November accident. The trial judge awarded Mr. Guidry $100,000.00 in penalties against Progressive, pursuant to La.R.S. 22:1973.

Two appeals were filed in this matter: (1) Mr. Guidry appeals his $10,000.00 general damage award against Smith and Farm Bureau as abusively low; and (2) Progressive appeals the $160,000.00 assessed against it for its breach of duty in handling the UM claims of Mr. Guidry.

For the following reasons, we affirm the general damage award against Smith and Farm Bureau, and we affirm the awards against Progressive for breach of duty, attorney fees, and penalties.

III.

STANDARD OF REVIEW

An appellate court may not set aside a trial court’s findings of fact in absence of manifest error or unless it is clearly wrong. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993). A reviewing court must keep in mind that if a trial court’s findings are reasonable based upon the entire record, an appellate court may not reverse those findings, even if it is convinced that, had it been sitting as trier of fact, it would have weighed the evidence differently. Housley v. Cerise, 579 So.2d 973 (La.1991). The basis for this principle of review is grounded upon the better capacity of the trial court to evaluate live witnesses and upon the proper allocation of trial and appellate functions between the respective courts. Canter v. Koehring Co., 283 So.2d 716 (La.1973).

Ji.IV.

LAW AND DISCUSSION

Appeal of the Jury’s General Damage Award

Mr. Guidry contends that the jury’s award of $10,000.00 for general damages was abusively low where the November accident caused a partial tear of the rota-tor cuff and AC joint impingement necessitating a Mumford Procedure, aggravated pre-existing cervical and lumbar problems, and was a substantial factor in causing an L4-5 disc herniation. Mr. Guidry further contends that: (1) medical causation established by Mr. Guidry’s treating physician was uncontroverted; (2) the medical expense award included the treatment of the left shoulder injuries and aggravations to the cervical and low back areas; and, (3) there was no evidence of an intervening event.

Farm Bureau argues that the jury’s modest award for pain and suffering was due to the jury’s conclusion that Mr. Gui-dry sustained only minor aggravations of pre-existing conditions as a result of the November accident. It contends that the jury properly weighed the credibility of Mr. Guidry and his physicians regarding causation, given the incomplete history supplied by Mr. Guidry and his use of narcotic pain medication from multiple pharmacies and physicians for shoulder and back injuries since 1989.

Mr. Guidry was a chronic pain patient who had been disabled since 1989, when he fell on an offshore rig. He underwent surgery to his left shoulder. Subsequently, Dr. Louis Blanda, an orthopedic surgeon with the Lafayette Bone & Joint Clinic, performed a surgical fusion at L5-S1 that had to be re-grafted the following year. The fusion appeared solid in some images and appeared failed in others. Mr. Guidry continued to have back pain and was on pain management with various pain management physicians from that time forward.

|fiMr. Guidry was rear-ended in 1997 in an automobile accident. Dr. Blanda treated him conservatively for a small disc herniation at C5-6; this included physical therapy, pain medication, and various injection therapies.

In 2002, pursuant to a CT of the lumbar spine, Dr. Doreen Abadco found a bulging disc at L4-5 and treated Mr. Guidry with nerve blocks.

Following the October 2004 accident, Mr. Guidry went to the emergency room at Southwest Medical Center with complaints of neck and back pain. His x-ray showed degenerative disc disease at L5-S1 and at C5-6 with a straightening of the lordotic curve of the cervical spine involving neck spasm. The Southwest emergency room physician diagnosed him with cervical and lumbar strain, gave him pain medication, and told him to see an orthopedist if his problems persisted.

Following the second accident in November, 2004, Mr. Guidry went to the emergency room at Our Lady of Lourdes Hospital with neck and back pain. He was examined, x-rayed, and told to see his primary doctor in a week. His x-rays again showed degenerative disc disease at the prior fusion site, L5-S1, and at C5-6.

For the subject accidents, Dr. Blanda first saw Mr. Guidry on December 16, 2004, after a rescheduled appointment earlier in December. Mr. Guidry complained of injury and pain in his neck, his left shoulder, and his lower back. Dr. Blanda noted that Mr. Guidry had neck and back pain with numbness in his legs after the first accident, and had shoulder pain and an increase in the neck and back pain with continuing numbness in the legs after the second accident. Objectively, Dr. Blanda found spasm in Mr. Guidry’s neck and low back muscles. Mr. Guidry had weakness upon lifting his left shoulder, called abduction; a feeling of crepitus or a grinding, roughened sensation in his shoulder joint; and, diffuse numbness and loss of grip strength in his left hand.

|fiDr. Blanda ordered an MRI of Mr. Guidry’s neck and left shoulder and a CT scan of the lumbar spine. The CT scan showed arthritic changes at the prior fusion site, L5-S1, with a central broad-based disc herniation and spinal stenosis at L4-5, the level above the prior fusion. The MRI of the cervical spine indicated a small central focal subligamentous herniation of the disc at C6-7. The MRI of the left shoulder showed arthritic spurs at the AC joint and was suspicious for a partial tear of the rotator cuff.

In January of 2005, Dr. Blanda recommended surgical decompression and instrumentation at L4-5 and rotator cuff repair for the shoulder. He required a deposit of $27,721.46 for his estimated surgical services, but never received insurance authorization for the surgeries.

Dr. Blanda next saw Mr. Guidry in May of 2005. He still had neck, low back, and left shoulder pain, but reported that the back was somewhat improved. He asked about a referral since his pain management physician was moving his practice to Baton Rouge. Dr. Blanda was still waiting for authorization for the recommended surgeries.

Dr. Blanda saw Mr. Guidry in November of 2005. His left shoulder was still painful and weak, and he wanted the procedure done. With ongoing pain management, his neck and back symptoms had stabilized to a tolerable level. Dr. Blanda wanted an updated MRI before determining what type of surgery should be done. Mr. Guidry continued to treat with pain management specialists but did not see Dr. Blanda again until September of 2008.

In October of 2008, Dr. Blanda reviewed new MRI’s of the low back and the left shoulder, as well as an x-ray of the shoulder. The x-ray showed arthritis of the AC joint and the ball and socket part of the shoulder. It also showed calcitic tendonitis, or calcification of the rotator cuff, which, as Dr. Blanda explained, is the body’s way of trying to heal the tear. The calcium deposits can |7also produce pain. The MRI of the shoulder now showed the calcifications instead of a tear and more arthritis and impingement on the rotator cuff. Instead of a rotator cuff repair, Dr. Blanda now recommended a Mumford Procedure, which is the removal of the tip of the clavicle, or collarbone, to relieve the pain in the AC joint as well as the pressure in the impingement. The Mumford Procedure was performed on December 22, 2008, and was successful in relieving Mr. Guidry’s shoulder pain. It was paid for my Medicare/Medicaid.

Dr. Blanda testified that disc herniations were caused by lifting, bending, twisting, and any sudden flexion or extension. He indicated that a fairly common cause of sudden flexion or extension is being hit from behind in a low-impact, rear-end vehicular accident; the cause does not have to be a bone-breaking blow or blunt trauma type of accident. Dr. Blanda indicated that most people injure the rotator cuff by falling or bracing themselves to prevent a fall which is the same mechanism as holding on to a steering wheel and being rear-ended.

Dr. Blanda stated that Mr. Guidry’s preexisting low back problems had limited him to light or sedentary activity, and the new problems increased the pain and his whole body physical impairment by ten to fifteen percent due to the new back injury. Dr. Blanda assessed the aggravation of the pre-existing neck injury at ten percent and the shoulder injury at around twenty percent as it involves the physical functioning of the arm as well.

Dr. Blanda stated that, while it was difficult to sort out which accident caused which injury, he thought that the October accident started the process with the L4-5 disc herniation, aggravating low back problems and causing numbness in the legs; it also initiated the neck problems, aggravating an asymptomatic condition in the neck. Dr. Blanda opined that the November accident further aggravated the back and neck problems and caused the need for a new surgery of the left shoulder.

|sDr. Blanda was aware that Mr. Guidry had used various pain management physicians over the years and that he had been dischai’ged once before the subject accidents and once after the subject accidents for simultaneously using the services of two pain management physicians. He testified, however, that he had treated Mr. Guidry orthopedieally for twenty-one years and did not consider him to be a liar and had never had that issue with him. Dr. Blanda explained that pain management therapists try to do what is necessary to make a patient comfortable for a better quality of life. He made a distinction between addiction and a dependence on pain medication needed for quality of life issues.

The only other physician to testify was Dr. Michael Duval, an orthopedic surgeon in Lafayette who examined Mr. Guidry’s left shoulder on behalf of Farm Bureau on December 2, 2008, over four years after the accidents, but before the Mumford Procedure performed by Dr. Blanda. Dr. Duval testified that he specialized in shoulders and did not examine Mr. Guidry’s neck or back. He described the 2004 accidents as low impact events which would not cause a rotator cuff tear. He did not find symptoms of a rotator cuff tear in 2008.

Dr. Duval opined that Mr. Guidry had osteoarthritis of the ball and socket joint (back of shoulder) and arthritis of the AC joint (front of shoulder; end of collar bone) and said that his Hawkins test, which is an elbow to nose test, was positive for AC joint pain. He stated that numbness in the hands is a symptom of a herniated cervical disc but not of a rotator cuff injury or a shoulder impingement, as shoulder pain does not refer past the elbow. Dr. Duval said that he would not expect to see an aggravation of arthritis from a low impact rear-end accident.

Dr. Duval admitted that he did not know the speed of the vehicles in either accident and that he had spent only ten to fifteen minutes with Mr. Guidry. Dr. Duval also stated that, when he evaluated Mr. Guidry, he was examining him for an opinion on a rotator cuff repair, which is not the surgery that was later | ¡¡performed. Dr. Du-val stated that Dr. Blanda subsequently performed a Mumford procedure, which addressed the AC joint arthritis, and he admitted that he did not know the outcome of that surgery. He opined that a trauma can aggravate, but did not cause, Mr. Gui-dry’s shoulder problems. Dr. Duval testified, however, that bracing oneself with an arm, as if bracing for a fall, can cause an aggravation to a pre-existing arthritic condition. He admitted that he had examined Mr. Guidry over four years after the subject accidents and that the treating physician does have a better perspective on a patient’s good days and bad days because of having treated the patient over time.

“As a general rule, the treating physician’s testimony should be given more weight than that of a doctor who examines a claimant for diagnostic purposes only.” Knox v. Calcasieu Parish Police Jury, 04-1497, p. 8 (La.App. 3 Cir. 4/27/05), 900 So.2d 1128, 1134 (quoting Clark v. State Farm Ins. Co., 520 So.2d 860, 864 (La.App. 3 Cir.1987)).

There is no doubt that Mr. Guidry, with his history of prior injuries, surgeries, and conditions, was an eggshell plaintiff. In fact, he had been disabled for fifteen years when these accidents occurred in 2004, and he had been in pain management for a long time. However,

[t]he defendant’s liability for damages is not mitigated by the fact that the plaintiffs pre-existing physical infirmity was responsible in part for the consequences of the plaintiffs injury by the defendant. It is clear that a defendant takes his victim as he finds him and is responsible for all natural and probable consequences of his tortious conduct.

Bienemann v. State Farm Mut. Auto. Ins. Co., 08-1045, p. 4 (La.App. 3 Cir. 2/4/09), 3 So.3d 621, 623 (quoting Lasha v. Olin Corp., 625 So.2d 1002, 1005 (La.1993)).

Here, Mr. Guidry settled with the driver from the October accident, Amber Guidry, and with her insurer, State Farm, prior to trial. The jury made no |inaward for that accident, stating on the verdict form that there were no injuries. This is contrary to Dr. Blanda’s impression, but Mr. Guidry did not appeal that portion of the verdict. Mr. Guidry’s appeal addresses the second rear-end collision by Smith in November, which is insured by Farm Bureau.

On the day of the second accident, November 11, 2004, but prior to the accident at 3:45 p.m., Mr. Guidry went to his pain management physician, Dr. Paul Hubbell, with complaints of low back pain. He reported that Mr. Guidry was medically stable, was tolerating his medications well, was able to do his housework and tend to minor activities, and that Mr. Guidry reported “an improved quality of life.” Mrs. Guidry testified that after the accident, Mr. Guidry could not sleep, wash his own hair, or reach items overhead. The jury found that Mr. Guidry was injured in the second accident and awarded him $10,000.00 in pain and suffering, and $19,859.40 for past medical expenses, to be paid by Smith’s insurer, Farm Bureau.

Mr. Guidry appeals only the $10,000.00 general damage award as abusively low. His counsel cites various cases and suggests that the jury should have awarded damages for pain and suffering between $50,000.00 and $150,000.00. However, the cited cases do not involve a plaintiff who was already disabled with as extensive pre-existing injuries as those of Mr. Guidry. In general, an appellate court reviews an award of damages for an abuse of discretion and may only raise or lower the award to the nearest reasonable amount. Coco v. Winston Indus., Inc., 341 So.2d 332 (La.1976). While we find that the jury’s award of $10,000.00 for general damages in Mr. Guidry’s case was low, we cannot say that it was abusively low for the aggravation injuries that the jury assessed to Farm Bureau for the second accident.

| nProgressive’s Appeal

Progressive was Mr. Guidry’s UM carrier at the time of both accidents. It paid no amounts for Mr. Guidry’s medical care resulting from either accident. The jury found that Progressive had breached its duty in handling the claims of Mr. Guidry with respect to the November accident and awarded him $50,000.00 in general and special damages, plus $10,000.00 in attorney fees. The trial judge awarded Mr. Guidry $100,000.00 in penalties, citing La. R.S. 22:1973.

Progressive contends that it was not arbitrary and capricious in handling Mr. Guidry’s claims and that the jury and trial judge erred in awarding him any sums because: there was no evidence that Mr. Guidry communicated an intent to claim medical payments; there was a good faith dispute regarding whether Mr. Guidry sustained any injuries in either accident; and, the jury’s award was well within Farm Bureau’s policy limits. We disagree. After a thorough review of the record and applicable law, we find that there was a reasonable factual basis in the record for the jury’s awards, and the statutes support the award by the trial judge.

|12Mr. Guidry had three vehicles insured through Progressive and paid over $1,200.00 in annual premiums. His coverage on the 1997 Ford truck that he was driving when rear-ended in October and November of 2004 was not in dispute. His medical pay coverage under the policy was $5,000.00 per accident. The UM portion of his policy provided him $25,000.00 in coverage for each accident. Hence, Mr. Gui-dry’s own policy provided a total $60,000.00 of coverage for both accidents.

The testimony of Progressive’s representative, Vickie Hale-Benson, established that Progressive had received notice of Mr. Guidry’s 2004 accidents and began investigating the coverage by September of 2006, within the period required to file a UM claim. Ms. Hale-Benson testified that she had spoken to Mr. Guidry’s attorney on several occasions about resolving the claims but she considered those settlement discussions, not written demands for specific amounts.

In general, if the insured has shown that he was not at fault, that the other driver was uninsured or underin-sured, and that he was in fact damaged, the insurer cannot avoid liability when the insured is unable to prove the exact extent of his general damages; rather, the insurer must tender the reasonable amount due as a sign of its good faith and its willingness to comply with the duties imposed upon it under the insurance policy. McDill v. Utica Mut. Ins. Co., 475 So.2d 1085 (La.1985). “This amount would be unconditionally tendered to the plaintiff not in settlement of the case, but to show their good faith in the matter and to comply with the duties imposed upon them under their contract of insurance with the insured. The amount that is due would be a figure over which reasonable minds could not differ.” Id. at 1091-92. An insurer must take substantive and affirmative steps to accumulate the facts necessary to evaluate a claim; merely opening a file is not sufficient. McClendon v. Economy Fire & Cas. Ins. Co., 98-1587 (La.App. 3 Cir. 4/7/99), 732 So.2d 727.

| isHere, Progressive opened its file in September of 2006 but did not depose Mr. Guidry’s treating physician and orthopedist, Dr. Blanda, until June 13, 2008, almost two years later.

Progressive knew in September of 2006 that Mr. Guidry’s policy covered both accidents; that Dr. Blanda had previously recommended surgery; and that State Farm had paid its policy limits of $10,000.00 for the first accident.

Progressive noted in July of 2007 that it needed to sort out causation between the two accidents, but it would be another year before they deposed Dr. Blanda. It still had not obtained Farm Bureau’s policy or determined how much coverage Smith had for the second accident. Its notes indicate that it was waiting for Farm Bureau to put up money for the second accident, but Progressive did not obtain Farm Bureau’s coverage amount for the second accident until July of 2008.

Nor did Progressive tender any of the medical pay coverage of $5,000.00 per accident that Mr. Guidry had paid a premium for in his policy, separate from the UM coverage of $25,000.00 per accident. Progressive also knew that Mr. Guidry’s granddaughter had been injured when her knee hit the dashboard in the second accident, and that she had resolved her claims and would not be seeking UM coverage from Progressive.

When Dr. Blanda was finally deposed on June 13, 2008, he indicated that he wanted updated MRI’s before recommending surgery again. However, he opined that the first accident started the new spinal problems and that the second accident aggravated those and caused the shoulder to become symptomatic. Progressive did not schedule a second opinion medical examination (IME) of Mr. Guidry to refute any of Dr. Blanda’s assessments. Dr. Blanda’s records showed that Mr. Guidry, who had been in pain management since 1989, said he could not live with the pain that he was experiencing in January of 2005, after the 2004 | ^accidents. Yet, Progressive noted in its records that there was no change in Mr. Guidry’s pre and post-MVA complaints.

Progressive had known at least since March of 2008 that Mr. Guidry had been disabled in the old work accident and did not have money for the L4-5 and left shoulder surgery that Dr. Blanda had recommended in January of 2005. It knew that he had property damage of $3,000.00 to his truck (Mr. Guidry testified that his truck repairs were $3,500.00), and noted that there were at least aggravation injuries from the accidents. But Progressive did not offer a tender or file a subrogation suit to recover its tender, even after it had evidence of causation.

In July of 2008, Progressive’s notes indicate that it evaluated its worst case exposure at $34,000.00; it calculated $2,500.00 per month for general damages, times twelve months, based upon Mr. Guidry’s visits with Dr. Blanda only, plus $4,000.00 in medical expenses with Dr. Blanda. Progressive received, for the first time, verbal confirmation that Smith’s policy with Farm Bureau was for $300,000.00. It noted that Farm Bureau was going to try the case, even though at this point there was still nothing to refute Dr. Blanda’s testimony finding causation in both accidents.

In August of 2008, Mr. Guidry made a total demand of $50,000.00 for both accidents, inclusive of the medical pay amounts. He informed Progressive that he was returning to Dr. Blanda for new MRI’s. Progressive made no good faith tender of any amount. In September of 2008, Mr. Guidry amended his suit against Progressive to add a claim for arbitrary and capricious claims handling. In October, Dr. Blanda obtained new MRI’s showing that the rotator cuff tear had calcified; he then recommended a Mumford Procedure, instead of a rotator cuff repair.

In early December of 2008, over four years after the accidents, Farm Bureau, not Progressive, deposed Dr. Duval regarding the second opinion | ^examination of Mr. Guidry’s shoulder that he had performed for Farm Bureau. Dr. Duval did not agree that there had been a rotator cuff tear or relate the shoulder injury to either accident; he did not assess the back and neck injuries at all.

In mid-December of 2008, Dr. Blanda performed the Mumford Procedure as explained above. It was paid for by Medicare/Medicaid.

In May of 2009, Mr. Guidry’s counsel informed Progressive that Mr. Guidry had undergone the shoulder procedure and again asked for $50,000.00 to resolve all claims. Progressive knew that Mr. Guidry was not at fault for either accident and that both Amber and Smith were at fault for rear-ending Mr. Guidry in the respective accidents. Progressive did not tender any amount.

In July of 2009, Progressive filed a motion for summary judgment seeking relief on the issue of arbitrary and capricious claims handling, stating that Dr. Blanda was not recommending surgery. Dr. Blanda’s deposition, used in support, was over a year old. In fact, Dr. Blanda had performed the shoulder procedure six months earlier, in December of 2008, and Progressive had known about the surgery at least by April of 2009. In opposing Progressive’s motion for summary judgment, Mr. Guidry’s attorney attached medical summaries showing over $16,642.61 in medical bills alone. Progressive’s July 2009 motion for summary judgment was denied. Still, it tendered no good faith amount for any of Mr. Guidry’s medical care, not even one of the $5,000.00 medical pay amounts.

In January of 2010, Mr. Guidry’s counsel asked for $35,000.00 to settle his claims. At the time of trial in June of 2010, no tender had been made, and Mr. Guidry had received nothing for the second accident or the related medical expenses, surgery, and general damages.

Progressive had never scheduled depositions with, or called, any of Mr. Guidry’s pain management physicians, but it knew of Dr. Hubbell’s report of November 11, 2004, stating that Mr. Guidry was medically stable before the | ^November accident later that same day. Progressive had medical authorizations from Mr. Guidry for all of his medical records, which reflected that he was in unrelievable pain in January of 2005, and that he continued to have unrelieved shoulder pain until the surgery in December of 2008. Progressive’s notes indicate that it knew that Mr. Guidry was disabled and could not afford surgery. It had evidence of aggravation injuries and causation but made no good faith effort to investigate or assist its insured with his medicals. It did not even tender the $5,000.00 medical pay coverage after the Mumford Procedure.

The jury ultimately found that Mr. Gui-dry suffered injuries and awarded him damages that finally paid for the Mumford Procedure that relieved his shoulder pain over four years after the accident. Based upon all of the foregoing, we conclude that the jury was not unreasonable in finding that Progressive breached its duty to Mr. Guidry by failing to pay the amount of any claim within sixty days and by failing in its duty to timely investigate the accidents.

Progressive argues that Mr. Guidry did not prove that he suffered actual general or special damages by Progressive’s failure to tender policy amounts and cites Sultana Corp. v. Jewelers Mutual Insurance Co., 01-2059 (La.App. 1 Cir. 12/31/02), 837 So.2d 134. That case, however, was reversed. Proving actual damages is not a prerequisite to an assessment of penalties under La.R.S. 22:1973, formerly R.S. 22:1220. In reversing the first circuit and in deciding a split among the circuit courts regarding proof of damages, the Louisiana Supreme Court in Sultana Corp. v. Jewelers Mutual Insurance Co., 03-360 (La.12/03/03), 860 So.2d 1112, articulated as follows:

As to the other circuit courts of appeal who have addressed the question of whether proof of actual damages is a prerequisite to the award of penalties, Midland Risk Ins. Co. v. State Farm Mut. Auto. Ins. Co., 93-1611 (La.App. 3 Cir. 9/21/94), 643 So.2d 242, best 117illustrates the countervailing position that a showing of damages is not required. The Third Circuit stated:
Section 1220(A) legislatively imposes a duty of good faith and fair dealing on insurers. Section 1220(B) enumerates certain acts, which if knowingly committed or performed by an insurer, constitute a breach of its duty of good faith and fair dealing.
Penalties are imposed to discourage certain types of conduct by an insurer. The language in Section 1220(C) does not expressly require that a claimant suffer damages before recovering penalties. Moreover, if this requirement was so, the statute’s purpose more often would be thwarted. Claimants may decide not to file claims against insurers if the disputed amount or the damages are not substantial. As an end result, the misconduct which the legislature obviously intended to curb or deter would thrive. Thus, we find if an insurer commits any one of the acts enumerated in Section 1220(B), penalties may be imposed without a showing of damages.
Midland, 643 So.2d at 244.

Sultana, 860 So.2d at 1118. The Sultana court then stated:

[W]e find the Third, Fourth, and Fifth Circuits’ holdings with regard to the interpretation and application of LA. REV. STAT. ANN. § 22:1220(0 correct and more reconcilable with the Legislature’s enactment of this statute. Such an understanding squares well with the principle that an insurer’s duty of fair dealing emanates from the contractual and fiduciary relationship between the insured and insurer.
... Requiring the insured or claimant to prove general or special damages as a prerequisite to the award of penalties as advocated in the First Circuit, even though the insured or claimant has not so claimed, interjects a requirement not provided in the statute.

Sultana, 860 So.2d at 1118-19 (citations omitted).

In Hudson v. AIG Nat. Ins. Co., 10-63 (La.App. 3 Cir. 6/2/10), 40 So.3d 484, AIG, the UM carrier, made a tender of $11,744.00, which was |18essentially too little and too late and was rejected as arbitrary and capricious. Pursuant to La.R.S. 22:1973(B)(5), the trial court awarded $25,000.00 in damages, and pursuant to La.R.S. 22:1973(C), it awarded double that amount, or $50,000.00, in penalties. We affirmed, citing Sultana.

More recently, in Wegener v. Lafayette Insurance Co., 10-810 (La.3/15/11), 60 So.3d 1220, a Katrina wind-and-flood-damage case, the Louisiana Supreme Court reiterated its finding under Sultana, and again quoted with approval the reasoning and language set forth by this court in Midland, that penalties may be imposed under La.R.S. 22:1220(0 (now 22:1973(0) without a showing of damages. In Wegener, the jury interrogatories were found to have misled the jury to the extent that it was prevented from dispensing justice on the issue of mental anguish damages and penalties under La.R.S. 22:1220, and the case was remanded for a new trial.

Specifically, in Wegener, Interrogatory 9 asked whether the plaintiffs suffered mental anguish damages due to one insurer’s conduct. If the jury answered “YES,” it was instructed to proceed to Interrogatory 10, relative to the amount of mental anguish damages, and then to Interrogatory 11, relative to penalties. However, if the answer was “NO” as to mental anguish damages under Interrogatory 9, the jury was instructed to skip Interrogatories 10 and 11. Consequently, the jury, which did not award mental anguish damages under Interrogatory 9, skipped Interrogatories 10 and 11. The Wegener court stated that, “because penalties are permissive pursuant to La.R.S. 22:1220 [22:1973] even if no damages have been awarded as a result of the breach, the structure of the Jury Interrogatories in this case resulted in legal error.”

Accordingly, based upon the foregoing, Mr. Guidry does not have to prove actual damages resulting from the breach, and we cannot say that the jury abused its discretion in awarding $50,000.00 to Mr. Guidry for Progressive’s |19breach of its insurer’s duty to timely investigate the claims of its insured causing Mr. Guidry to wait four years for a surgery that ultimately relieved his shoulder injuries. Likewise, the trial court did not abuse its discretion in awarding double that amount under La.R.S. 22:1973(0 for penalties due to Progressive’s arbitrary and capricious conduct.

Progressive also argues that, pursuant to Sher v. Lafayette Insurance Co., 07-2441 (La.4/08/08), 988 So.2d 186, nonpe-cuniary damages are only available if the insurer intended to aggrieve the feelings of the insured. Progressive not only misstates Sher, but it attempts to strip that court’s holding completely bare of its contextual foundation. Sher involved Katrina-based property loss and breach of a commercial insurance contract which covered only economic loss. The plaintiff unsuccessfully sought mental anguish damages under La.Civ.Code art. 1998. That article provides that nonpecuniary losses “may be recovered,” not “may only be recovered,” when the contract is intended to gratify a nonpecuniary interest, such as creative work, and the obligor knew or should have known that its failure to perform would cause that kind of loss. See La.Civ.Code art. 1998 (emphasis added). It addresses conventional obligations and contracts and does not provide the only circumstances in which nonpecuniary damages can be awarded. Under La.R.S. 22:1973, an insurer is liable for any damages, general or special, sustained as a result of the breach. La.R.S. 22:1973(A) and (C).

Following its reasoning in Manuel v. Louisiana Sheriff’s Risk Management, 95-406 (La.11/27/95), 664 So.2d 81, and the Federal Fifth Circuit’s reasoning in Dickerson v. Lexington Ins. Co., 556 F.3d 290 (5th Cir.2009), the Louisiana Supreme Court in Wegener, 60 So.3d 1220, explained that the good faith duties of an insurer under La.R.S. 22:1220 (now R.S. 22:1973) are separate and distinct from its duties under the insurance contract. The Wegener court specifically held that Article 1998 has no applicability in a claim for mental 12panguish damages under La.R.S. 22:1220 (22:1973), which permits “ ‘any general or special damages’ with no limitation or additional requirement other than the breach of duty by the insurer.” Wegener, 60 So.3d at 1230. Hence, the court in Wegener found that the trial court’s inclusion of a jury instruction requiring proof of intent was legal error.

Progressive argues that the jury’s award of $10,000.00 for attorney fees was unsupported where there was no evidence in the record that Mr. Guidry incurred attorney fees or the value of those fees. This argument has no merit. The record contains twelve volumes of documents and is replete with evidence of Mr. Guidry’s attorney’s representation for six years. The fees awarded are certainly reasonable and appropriate under Rule 1.5 of the Rules of Professional Conduct, where the factors to be considered include time, labor, experience, skill, results obtained, and whether there is a contingency payment method.

V.

CONCLUSION

Based upon the foregoing, the Judgment of the trial court is affirmed in all respects. Costs of these appeals are assessed to the plaintiff and to Progressive, respectively.

AFFIRMED.

AMY, J., concurs in the result and assigns reasons.

KEATY, J., concurs in the result for the reasons assigned by Judge AMY.

AMY, J.,

concurring in the result.

| iLike the majority, I find that an affirmation is required in this case. However, in my view, the damages and penalties awarded pursuant to La.R.S. 22:1973 must be affirmed under the wording of the statute alone. I do not find that this is a case controlled by Sultana Corp. v. Jewelers Mut. Ins. Co., 03-0360 (La.12/3/03), 860 So.2d 1112.

Louisiana Revised Statutes 22:1973 distinctly provides for damages sustained due to a breach of the duty of good faith and fair dealing, under Paragraph A, and for penalties due to that breach, under Paragraph C.

In my view, the record supports the jury’s $50,000 award for damages due to the breach of duties owed under La.R.S. 22:1973(A). As cited by the majority, Mr. Guidry sustained medical expenses and experienced pain, suffering, and frustration associated with the multi-year delay in treatment. Thus, the plaintiff presented proof of these damages and the award of damages in the amount of $50,000 is supported.

As for the penalty provision, La.R.S. 22:1973(0 separately provides for penalties not to exceed “two times the damages sustained” or “five thousand dollars, whichever is greater.” In this case, and as stated above, the record supports the view that Mr. Guidry sustained $50,000 of general and special damages under Paragraph (A). Thus, the $100,000 penalty awarded in this case is 12permissible under the La.R.S. 22:1973(0 as it is “two times the damages sustained[.]” I do not find that this type of award could be supported absent proof of actual damages insofar as the damages are necessary for the calculation. On this point, I depart from the majority’s reference to Sultana, 860 So.2d 1112.

The facts of Sultana, 860 So.2d at 1118, are at odds with the present matter insofar as the plaintiff in the supreme court case was “entitled to seek general or special damages from its insurer[,]” but it “chose not to seek such damages[.]” Although the plaintiff in Sultana did not seek or prove actual damages, the supreme court found that a penalty was still available under La.R.S. 22:1973(C). In my view, such an award would be under the alternative, $5,000 award under Paragraph (C) as the calculation necessary for the arguably greater award would be impossible without proof of the amount of damages sustained. In reaching its conclusion, the supreme court in Sultana favorably cited this court’s opinion in Midland Risk Ins. Co. v. State Farm Mut. Auto. Ins. Co., 93-1611 (La.App. 3 Cir. 9/21/94), 643 So.2d 242, a case in which only the $5,000 penalty was at issue.

In this case, since the plaintiffs proved and were awarded general and special damages, I believe that the $100,000 penalty is permissible insofar as it is “two times the damages sustained.” The majority’s reference to proof of actual damages being unnecessary is irrelevant under these facts since the record contains proof of damages. Thus, I would affirm the damages and penalties in light of the evidence in the record and under the terms of La.R.S. 22:1973(A) and (C).

For these reasons, I concur in the result.

      . The plaintiffs are not related to Amber Gui-dry, the defendant driver in the first accident.

      . Progressive states in its brief that, during trial, Mr. Guidry "dismissed” his UM claim for the second accident, pointing us to Mr. Guidry’s attorney’s question to Mr. Guidry on direct examination regarding a discussion of dropping the UM claim for the second accident. This reference is ambiguous, as we find no such dismissal in the record, other than the dismissal of Barbara Guidry's loss of consortium claim against Progressive for the second accident.

      . Louisiana Revised Statutes 22:1973 provides in pertinent part:
      A. An insurer ... owes to his insured a duty of good faith and fair dealing. The insurer has an affirmative duty to adjust claims fairly and promptly and to make a reasonable effort to settle claims with the insured or the claimant, or both. Any insurer who breaches these duties shall be liable for any damages sustained as a result of the breach.
      B. Any one of the following acts, if knowingly committed or performed by an insurer, constitutes a breach of the insurer’s duties imposed in Subsection A:

      (5) Failing to pay the amount of any claim due any person insured by the contract within sixty days after receipt of satisfactory proof of loss from the claimant when such failure is arbitrary, capricious, or without probable cause.

      C. In addition to any general or special damages to which a claimant is entitled for breach of the imposed duty, the claimant may be awarded penalties assessed against the insurer in an amount not to exceed two times the damages sustained or five thousand dollars, whichever is greater.


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    STATE of Louisiana v. Jomo CARTER.
    No. 10-KA-973.
    Court of Appeal of Louisiana, Fifth Circuit.
    Aug. 30, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Kenneth P. Bordelon, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appel-lee.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Jomo Carter, In Proper Person, Jackson LA, Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and MARC E. JOHNSON.
   FREDERICKA HOMBERG WICKER, Judge.

12Defendant/AppelIant, Jomo Carter, appeals his convictions and sentences. In the counseled assignments of error, Mr. Carter argues that the trial court erred in denying the motion to suppress, and in charging the jury that a less than unanimous verdict was sufficient to convict him. In the pro se assignments, he asserts that prosecutorial misconduct on the part of the District Attorney’s office impaired his right to a fair trial. For the reasons that follow, we affirm and remand with instructions.

Mr. Carter was originally charged by a four-count bill of information charging him with three drug-related offenses and one count of being a felon in possession of a firearm, all offenses allegedly occurring on April 1, 2009. Specifically, the counts charged as follows: Count 1, possession with intent to distribute marijuana, in violation of La.R.S. 40:966(A); Count 2, possession with intent to distribute MDMA, in violation of La.R.S. 40:966(A); Count 3, possession with intent to distribute cocaine, in violation of La.R.S. 40:967(A); and, Count 4, felon in possession of a firearm, in violation of La.R.S. 14:95.1. Before trial, the Instate entered a nolle prosequi as to Count 2, possession with intent to distribute MDMA.

Also before trial, the trial judge denied Mr. Carter’s motion to suppress evidence seized as a result of a search warrant. Later, a 12-person jury found Mr. Carter guilty as charged on the remaining three counts, Counts 1, 3, and 4. No jury polling was requested. The trial judge, however, elicited from the jury that the verdict was unanimous on all but one undisclosed count, which was an 11 to one verdict. On April 29, 2010 the trial judge denied Mr. Carter’s motion for a new trial and imposed sentencing. Mr. Carter, who had waived all applicable delays, was sentenced that day. The trial judge imposed 25-year concurrent hard labor sentences on Counts 1 (possession with intent to distribute marijuana) and 3 (possession with intent to distribute cocaine), while ordering that the sentence on Count 4 (felon in possession of a firearm), 15 years at hard labor, run consecutive with the other two sentences and any other sentence that Mr. Carter might be serving. In addition, the trial judge imposed the statutory restrictions on the firearm and cocaine convictions; namely, the first two years of the cocaine sentence being without benefit of parole, probation, or suspension of sentence and the entire firearms sentence having these statutory restrictions. Mr. Carter timely appealed his convictions and sentences.

After a timely appeal was granted and after sentencing, the state noticed its intent to file a habitual offender bill of information. Subsequently, the state filed a habitual offender bill of information alleging that Mr. Carter was a third felony offender. The state sought to enhance the sentence on Count 3, possession with intent to distribute cocaine. Although the habitual offender proceedings of June 14, 2010 are not subject to this appeal, the appellate record contains the commitment/minute entry of June 14, 2010 reflecting that Mr. Carter’s sentence on J^Count 3 was vacated and he was sentenced under the habitual offender bill of information to the enhanced term of 25 years at hard labor.

TRIAL

On April 1, 2009, Detective Joseph Blackledge of the Kenner Police Department, one of several police officers who executed a search warrant at 2628 Phoenix Street in Kenner, arrested Mr. Carter there. According to Detective Black-ledge — the lead detective — officers acquired probable cause for a search warrant before then. In the interim, the officers conducted several surveillance sessions at that location. There they saw Mr. Carter walk to and from the driveway while meeting with several subjects. Detective Blackledge, an experienced narcotics detective, stated that the subjects, including Mr. Carter, apparently engaged in hand-to-hand transactions. The officers also saw Mr. Carter go from inside the house to the driveway-parked vehicle’s rearward portion. During the surveillance, Detective Blackledge never saw the vehicle move. It appeared to be inoperable because of the deflated tires and accumulation of debris around the area. Moreover, there was no license plate on the vehicle and officers discovered that the vehicle was not registered to Mr. Carter. Detective Blackledge testified that he obtained a search warrant for the vehicle at that location as well as the premises because he learned that Mr. Carter was dealing illegal narcotics from the parked car’s back area. He stated that based on his narcotics experience, drug dealers commonly hide their drugs someplace other than a residence.

According to Detective Blackledge, on the date of the arrest, he was particularly focused on that vehicle’s area where, during the surveillance, the officers had often spotted Mr. Carter. As he approached that location, Detective Blackledge saw the vehicle backed into the driveway, its trunk open, and Mr. Carter at its rearward section. Despite the car’s location and the raised trunk, [.¡Detective Blackledge clearly saw Mr. Carter. Nothing obstructed his view. Upon spotting the officers, Mr. Carter threw a white plastic grocery bag into the trunk and slammed the trunk lid shut, thus confirming Detective Black-ledge’s belief that Mr. Carter was selling narcotics from the ear’s rearward section. Furthermore, a trained and certified narcotics K-9 dog sniffed the vehicle and alerted to the rearward section. Detective Blackledge ordered Mr. Carter to the ground while officers detained another female, who was also outside with Mr. Carter. Mr. Carter complied with the detective’s instruction and discarded the keys to the car. Detective Blackledge advised Mr. Carter of his rights, picked him up from the ground, retrieved the keys, and patted Mr. Carter. Detective Blackledge used the keys to open the trunk.

Upon opening the trunk, Detective Blackledge spotted the white plastic grocery bag, along with other items, including a digital scale, a loaded .380 handgun, and a rifle. The grocery bag, and other bags containing drugs (later learned to be marijuana and crack cocaine), were introduced into evidence without objection at trial.

Raven Barrios, an expert in the analysis of controlled dangerous substances, testified that she analyzed evidence in this case. She analyzed the contents of a large plastic zip lock bag containing vegetative material. The material tested positive for marijuana, having a gross weight of 432.93 grams.

She also analyzed “rock” specimens from the two smaller plastic bags that were contained in a large plastic bag. The material was found to contain cocaine having a gross weight of 18.68 grams.

| Jn addition, she examined two grocery bags. Each contained various items. One bag contained three sandwich bags, and two grocery bag corners holding marijuana. One of the sandwich bags contained 19 sandwich bag corners each holding marijuana. The gross weight of the entire grocery bag was 77.33 grams.

Ms. Barrios testified that the other grocery bag contained 10 sandwich bag corners, each containing vegetative material. She concluded that the material was positive for marijuana, having a gross weight of 262.89 grams.

In considering the amounts of the drugs in this case, the type of packaging, and the digital scale, Sergeant Elvin Módica, an expert in the field of value, packaging, and distribution of controlled dangerous substances (specifically narcotics), testified that the amount of cocaine found in the two plastic bags indicated that the person possessed it with the intent to distribute it. Additionally, each one of the bags contained crack cocaine that was prepared for resale. Both Sergeant Módica and Detective Blackledge testified that digital scales are associated with drug sales. Sergeant Módica testified that the three bags of marijuana also contained amounts and packaging indicative of commercial sale.

Based on the trial evidence, stipulations, and testimony, the jury rendered its verdicts finding Mr. Carter guilty as charged on three counts.

MOTION TO SUPPRESS

At trial, the state introduced seized evidence resulting from a search warrant. Before trial, the trial judge conducted a hearing on a motion to suppress that evidence and denied the motion without reasons. The suppression hearing revealed that after receiving information from a confidential informant, who had proven reliable in the past, the police set up a controlled buy with Mr. Carter. Thereafter, the purchased drugs tested positive for cocaine. Then, within seventy-[two7 hours, the police sought and obtained a search warrant. The warrant described the premises with particularity. It authorized the search of the premises and any vehicle “located on the premises or vehicles found in immediate possession of persons found therein.” The police seized the evidence from the locked trunk of an inoperable vehicle that was parked in the driveway at the described residence. On appeal, Mr. Carter argues that the search exceeded the scope of the search warrant because (unlike the particularly described premises) there was only a general authorization to search any vehicle “located on the premises or vehicles found in immediate possession of persons found therein.” Thus, he asserts that the search warrant was constitutionally overbroad.

Although the trial judge conducted a suppression hearing before trial, defense counsel never asked him to rule on the “constitutionally overbroad” issue nor did the defense state the grounds for challenging admission. Further, the record on appeal does not contain a motion to suppress.

Now for the first time on appeal, Mr. Carter argues that the trial judge erred in denying the motion because the search of the locked trunk of the immobile and inoperable vehicle was “clearly an unreasonable search beyond the scope of the search properly authorized by the warrant.”

Louisiana courts have long held a defendant may not raise new grounds for suppressing evidence on appeal that he did not raise at the trial court in a motion to suppress. State v. Montejo, 06-1807, p. 22 (La.5/11/10), 40 So.3d 952, 967, cert. denied, Montejo v. Louisiana, — U.S. -, 181 S.Ct. 656, 178 L.Ed.2d 513 (2010) (citations omitted). See: La.C.Cr.P. art. 841(A) (“An irregularity or error cannot be availed of after verdict unless it was objected to at [sthe time of occurrence.”). Accordingly, Mr. Carter has waived the argument that evidence should be suppressed because the search exceeded the scope of the search warrant.

Even had this claim been preserved, it lacks merit, as we find that a warrant authorizing the search of a particularly described premises permits the search of the vehicle located on the premises targeted for the search and subject to the authority of the warrant. This is so because the vehicle is capable of concealing the sought-after contraband. State v. Smith, 02-1842, p. 1 (La.9/20/02), 827 So.2d 1122, 1123 (per curiam) (citations omitted).

JURY CHARGE

After questioning the jury, the trial judge determined that the verdicts were legal. The jury indicated that only one (undisclosed) verdict was non-unanimous-11 to one. La.C.Cr.P. art. 782(A) authorizes non-unanimous verdicts “in which punishment is necessarily confinement at hard labor.” In such cases, “ten [of the twelve jurors] must concur to render a verdict.” Id. See also: La. Const, art. 1, § 17(A). Now for the first time on appeal, Mr. Carter argues that his conviction by the non-unanimous jury verdict is invalid because La.C.Cr.P. art. 782 violates the Sixth Amendment right to a jury trial and due process. Even assuming the assignment is before us, it lacks merit.

The Louisiana Supreme Court and this Court have rejected the argument that a non-unanimous verdict in a case such as this, provided for by La.C.Cr. P. art. 782(A), violates the U.S. Fifth, Sixth or Fourteenth Amendments to the U.S. Constitution. State v. Bertrand, 08-2311, p. 7 (La.3/17/09), 6 So.3d 738, 743; State v. Jacobs, 07-887 (La.App. 5 Cir. 5/24/11), 67 So.3d 535, 571-72.

| ¡¿Previously, in Apodaea v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972), the United States Supreme Court in a plurality decision determined that the United States Constitution did not mandate unanimous jury verdicts in state court felony criminal trials. Bertrand, 6 So.3d at 741. Mr. Carter asserts that the decision in Apodaea was wrong and subject to change in State v. Barbour, 09-1258 (La.App. 4 Cir. 3/24/10), 35 So.3d 1142, writ denied, 10-934 (La.11/19/10), 49 So.3d 396, cert. denied, - U.S. -, 131 S.Ct. 1477, 179 L.Ed.2d 302 (2011) (a case determining that Article 782 withstands constitutional scrutiny). At the time of the defense’s brief, Barbour was before the United States Supreme Court on certiorari. Cer-tiorari has since been denied and Apodaea has not been overturned.

Therefore, even if preserved for appellate purposes, the assignment lacks merit.

PROSECUTORIAL MISCONDUCT

Mr. Carter’s allegations of prosecu-torial misconduct are based upon the assertion that the prosecutor allowed Detective Blackledge to testify fraudulently. First, he contends that Detective Black-ledge testified differently at the suppression hearing than he did in his search warrant affidavit when, at the hearing, unlike in the affidavit, the detective allegedly testified that he had a clear line of sight during the controlled purchase. Second, he asserts that the prosecutor allowed fraudulent information to be presented to the jury; namely, testimony of the controlled buy between himself and the confidential informant.

The record discloses no contemporaneous objection to claims of prosecutorial misconduct.

The contemporaneous objection rule is contained in La.C.E. art. 103(A)(1) and La.C.Cr.P. art. 841(A). It is specifically designed to promote judicial | inefficiency by preventing a defendant from gambling for a favorable verdict and then, upon conviction, resorting to appeal on errors which either could have been avoided or corrected at the time or should have put an immediate halt to the proceedings. State v. Taylor, 93-2201, p. 7 (La.2/28/96), 669 So.2d 364, 368, cert. denied, 519 U.S. 860, 117 S.Ct. 162, 136 L.Ed.2d 106 (1996). An irregularity or error cannot be availed of after verdict unless it was objected to at the time of its occurrence. State v. Ruiz, 06-1755, p. 8 (La.4/11/07), 955 So.2d 81, 87 (citations omitted). This contemporaneous objection rule applies to claims of prosecutorial misconduct. State v. Hoffman, 98-3118 (La.4/11/00), 768 So.2d 542, 582, opinion supplemented, 00-1609 (La.6/14/00), 768 So.2d 592, cert. denied, 531 U.S. 946, 121 S.Ct. 345, 148 L.Ed.2d 277 (2000).

Accordingly, Mr. Carter has waived any error based on these allegations by his failure to enter a contemporaneous objection.

Furthermore, the allegations are not supported by the record.

First, the allegation that Detective Blackledge’s testimony was inconsistent does not support that charge of prosecu-torial misconduct. The statement in the affidavit is consistent with Detective Blackledge’s testimony at the suppression hearing.

In the search warrant affidavit, Detective Blackledge attested that the confidential informant, who performed the controlled buy, walked to the suspected residence. He averred that he, Detective Blackledge, “was unable to maintain constant visual surveillance [of the confidential informant] due to the fact that the area [had] high pedestrian foot traffic and the persons residing in the area [knew] the undercover units.”

At the suppression hearing, defense counsel asked Detective Blackledge whether, during the time that he conducted surveillance, he clearly saw the 11¾transactions or Mr. Carter standing behind the vehicle. The detective was confused and asked whether counsel was asking if he had a clear line of sight during the controlled purchase. Counsel clarified that he meant during the surveillance. Thereafter, Detective Blaekledge responded affirmatively. Counsel then clarified that he was not referring to the controlled purchase, and Detective Blaekledge again responded affirmatively.

Second, although Detective Blaekledge testified at trial that Mr. Carter was the target of an investigation in which he observed Mr. Carter conducting hand-to-hand transactions, and actions for which the detective had probable cause to obtain a search warrant, Detective Blaekledge did not testify specifically about the controlled buy. Moreover, State’s Exhibit Number 6, the application for the search warrant, the search warrant, and the return, were introduced without objection into the record for record purposes only and not presented to the jury. Thus, the testimony surrounding the controlled buy occurred during the suppression hearing. To the extent that Mr. Carter alleges that such testimony at the suppression hearing was fraudulent, we find no record support for that allegation.

We therefore conclude, based on the record before us, that even assuming the charge of prosecutorial misconduct was before the court, the assignment lacks merit.

ERROR PATENT

Our review of the record for error patent reveals two matters requiring a remand for correction. See: La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990).

First, the commitments/minute entries, both on the original sentencing and the enhanced multiple bill sentencing, reflect that the sentence on Count 4 (felon in 1 ^possession of a firearm) was to run consecutively to the sentences on Count 1 (possession with intent to distribute marijuana) and Count 3 (possession with intent to distribute cocaine). However, unlike the transcript, these documents do not contain any language stating that the trial court also ordered Count 3 to run consecutively to any other sentence Mr. Carter might be serving. Whenever there is a conflict between the transcript and the minutes, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). Accordingly, we remand this matter for correction of these two minute entries/commitments to additionally reflect that the sentence on Count 4 is to run consecutively to any other sentence Mr. Carter might be serving.

Second, there are typographical errors in the fourth paragraph of the April 29, 2010 commitmenVminute entry. The fourth paragraph, a summary, incorrectly reflects that Counts 1 and 2 are to run concurrent to each other and consecutive to Count 3. Based on the transcript, the summary paragraph should have read that Counts 1 and 3 are to run concurrent to each other and consecutive to Count 4. Accordingly, we remand the matter for correction of the April 29, 2010 commitment/minute entry to reflect the proper counts.

Furthermore, we direct the clerk of court to transmit the original of the respective commitments/minute entries to the officer in charge of the institution to which Mr. Carter has been sentenced, La. C.Cr.P. art. 892(B)(2); State ex rel. Roland v. State, 06-0244 (La.9/15/06), 937 So.2d 846 (per curiam), and to the legal department, the Department of Public and Safety Corrections (DOC).

CONCLUSION

Accordingly, for the reasons stated, we affirm and remand with instructions.

AFFIRMED; REMANDED WITH INSTRUCTIONS.

      . The defense stipulated in the jury's presence that Mr. Carter was the same individual who had two previous felony convictions; namely, possession of cocaine and possession with intent to distribute cocaine, both of which occurred within the last 10 years.

      . See infra note 1.

      . We glean from defense counsel’s questions during Detective Blackledge's cross-examination, that defense counsel was concerned about reliability; namely, the confidential informant's reliability and the basis for the officer's observations corroborating that information.


author: PAUL A. BONIN, Judge. LOVE, J.,

text:
    STATE of Louisiana v. Alonzo HAYES.
    No. 2010-KA-1538.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 1, 2011.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for Appellant, State of Louisiana.
    Jee Park, James Harper, Orleans Public Defenders, New Orleans, LA, for Defendant/Appellee, Alonzo Hayes.
    (Court composed of Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR., Judge PAUL A. BONIN).
   PAUL A. BONIN, Judge.

h For the third time, the district attorney filed a bill of information charging Alonzo Hayes, the defendant, with sexual battery of the minor, K.R. The district attorney dismissed the two previous filings when the trial court denied the prosecution’s motions to continue the trial, but re-filed the bills of information the same day as the respective dismissals.

Mr. Hayes moved to quash the bill of information. In his motion he did not assert a claim that his constitutional or statutory rights to a speedy trial have been violated. See State v. Reaves, 376 So.2d 136 (La.1979); see also La.C.Cr.P. Art. 532(7). He also did not contend that the prosecution was attempting to avoid the time limitations for the commencement of trial. See La.C.Cr.P. Art. 576. Mr. Hayes argued that the prosecution is flaunting its authority, and that its exercise in this case of its dismissal and reinsti-tution power violates his due process rights as well as the constitutional separation of powers doctrine.

laThe prosecution argues that the district attorney enjoys plenary power to dismiss formal charges and — subject only to specific limitations which are not here applicable — to reinstitute the charges, that it is not flaunting its authority, and, most importantly, that Mr. Hayes has shown no prejudice to his defense.

The trial court, without any explanation, sustained the defense motion. The prosecution appealed. See La.C.Cr.P. Art. 912 B(l).

Because we find that Mr. Hayes has shown no prejudice to his defense on account of the conduct of the prosecutor, we conclude that the trial judge abused his discretion in sustaining the motion to quash, and we reverse the ruling. We explain below our decision in detail.

I

The district attorney filed the first bill of information charging Mr. Hayes with aggravated incest with K.R., a minor, on May 20, 2009. See La. R.S. 14:78.1. The prosecution later reduced the charge to sexual battery. See La. R.S. 14:43.1. Over the following year, trial was scheduled and continued for a variety of reasons. At the trial setting on May 18, 2010, the prosecutor reported to the trial judge that the home of the victim and her family had sustained severe fire damage rendering the home uninhabitable and that they had relocated to a shelter. The prosecutor further explained that it was the victim’s last day of school and that the family was staying in a shelter and meeting with charitable organizations to obtain alternative housing. The prosecutor requested a forty-eight hour continuance. The trial judge denied a continuance. The prosecutor then dismissed the charge.

| oLater that same day, the district attorney reinstituted the charge against Mr. Hayes by filing a second bill of information. At the first and only trial setting on June 21, 2010, the prosecutor informed the trial judge that K.R., the minor victim, had recently recanted her accusation against Mr. Hayes. And that even more recently K.R., after a teary-eyed session with the district attorney’s victim-witness counsel- or, told the prosecutor that the accusation was true. The prosecutor requested a brief continuance to further investigate. The trial judge denied a continuance and the prosecutor then dismissed the charge.

Later that same day, the district attorney reinstituted the charge against Mr. Hayes by filing a third bill of information. On July 8, 2010, Mr. Hayes filed the motion to quash.

In his motion Mr. Hayes principally complains that the district attorney’s use of his dismissal and reinstitution power affords the prosecution the exclusive and unfair ability to circumvent the trial judge’s denial of a continuance and to unilaterally effectively obtain a continuance. He argues from Wardius v. Oregon that the Due Process Clause of the Fourteenth Amendment “speak[s] to the balance of forces between the accused and his accuser.” Wardius v. Oregon, 412 U.S. 470, 474, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973). He declaims the tactical disadvantage to the defense from the imbalance arising from the ability of the prosecution to grant itself a continuance. Even more so, Mr. Hayes further argues, in the imbalanced advantage to the prosecution, the prosecutor displaces the trial judge and usurps the role of the trial judge, whose duty is “to so control the proceedings that justice is done.” LaJC.Cr.P.4 Art. 17. Mr. Hayes emphasizes that it is the trial judge, not the prosecutor, who is entrusted with the grant or denial of a motion to continue a trial. See La.C.Cr.P. ART. 707, 712, and 713. The defendant contends that the prosecutor’s displacement of the trial judge violates the separation of powers.

On July 22, 2010, after a hearing consisting of argument of counsel alone, the trial judge sustained the motion.

II

At the outset of our analysis we emphasize that the filing of a motion to quash is the appropriate procedural vehicle to raise the issue of the district attorney’s abuse of his considerable authority to dismiss and reinstitute prosecutions. See La. C.Cr.P. Art. 531 (“All pleas or defenses raised before trial, other than mental incapacity to proceed, or pleas of ‘not guilty’ and of ‘not guilty and not guilty by reason of insanity,’ shall be urged by motion to quash.”). The motion to quash on the ground of prosecutorial abuse of its dismissal-reinstitution authority may be raised independently of a claim that the defendant’s speedy trial rights have been violated.

The Louisiana Supreme Court has “rec0gniZed that the trial court possesses inherent discretion to grant a motion quash and to order a prosecution dismissed with prejudice after the state has used its broad prosecutorial discretion by dismissing and then reinstituting a prosecution to force a continuance of trial”, State v. King, 10-2638, p. 5 (La.5/6/11), 60 So.3d 615, 618 (per curiam). The trial court’s discretion extends “even under circumstances in which prescription had not tolled or would not shortly thereafter toll as a matter of La.C.Cr.P. art. 578, or in which the Speedy Trial Clause of the Sixth Amendment would not also require that result.” Id. The Supreme Court cited to its earlier decision in State v. Love, 00-3347, p. 14 (La.5/23/03), 847 So.2d 1198, 1209. Id.

This explicit recognition by the Louisiana Supreme Court of the availability of the motion to quash for this specific type of prosecutorial abuse — independent of any speedy trial violation — suggests that some of our decisions implying the contrary have lost their vitality. For example, we have “long required that a defendant challenging the State’s dismissal and reinstitution of charges must show that his right to a speedy trial was thereby violated.” State v. Henderson, 00-0511, p. 7 (La.App. 4 Cir. 12/13/00), 775 So.2d 1138, 1142. See also State v. Polk, 05-1118, p. 5 (La.App. 4 Cir. 5/31/06), 933 So.2d 838, 841 (“The State has plenary authority pursuant to La.C.Cr.P. art. 576 to dismiss a charge and then reinstitute prosecution in a case, such as this one, where doing so will not circumvent the statutory time limits for commencing trial under La.C.Cr.P. art. 578.”)

The district attorney’s discretionary prosecutorial authority is vast. “Except as otherwise provided by this constitution, a district attorney, or his designated representative, shall have charge of every criminal prosecution by the state in his district”. La. Const. Art. V, § 26(B). “Under the Louisiana constitution it is the district attorney who is charged with the duty of seeking out potential criminals | fiand bringing them to trial for their alleged wrongs.” Bd. of Comm’rs of Orleans Levee District v. Connick, 94-3161 (La.3/9/95), 654 So.2d 1073, 1080. “The constitutional role of the district attorney is incipient to the criminal process; his decision to file charges in a court of criminal jurisdiction is the event which incites a trial court’s exercise of that jurisdiction.” Id.

“Subject to the supervision of the attorney general, as provided in Article 62, the district attorney has entire charge and control of every criminal prosecution instituted or pending in his district, and determines whom, when, and how he shall prosecute.” La.C.Cr.P. Art. 61. A district attorney is not liable to anyone, including a crime victim, when he exercises his “broad discretionary power” not to institute a prosecution. Briede v. Orleans Parish Dist. Attorney’s Office, 04-1773, p. 5 (La.App. 4 Cir. 6/22/05), 907 So.2d 790, 793. This is “because the decision to take any action to prosecute or not prosecute is within the district attorney?s constitutionally granted powers.” Id.

Once having instituted a prosecution, “[t]he district attorney has the power to dismiss [it] ... and in order to exercise that power it is not necessary that he obtain consent of the court.” La. C. Cr. P. Art. 691. “The entering of a nolle prose-qui [dismissal] rests entirely within the discretion of the prosecuting attorney.” State v. Sykes, 364 So.2d 1293, 1297 (La.1978). The district attorney possesses “absolute discretion” to dismiss a prosecution. Id.

Generally, a timely instituted prosecution which is subsequently dismissed by the district attorney may be reinstituted by him at his discretion. See La.C.Cr.P.7 Art. 576. The exceptions to the general rule involve considerations of time limitations, id., none of which are of concern in this case. Here again, despite the use of his dismissal-reinstitution authority as a tactic to gain time, or — as it has been described — to grant himself a continuance of the trial, it is “not unreasonable for the prosecutor to avail himself of all legitimate means to gain adequate time to marshal the proof needed to properly present its case.” State v. Alfred, 337 So.2d 1049, 1056-1057 (La.1976) (on rehearing).

Notwithstanding the extent of his discretionary prosecutorial authority in the dismissal-reinstitution of formal charges, the district attorney may not, however, flaunt “his authority for reasons that show he wants to favor the State at the expense of the defendant, such as putting the defendant at risk of losing witnesses”. Love, 00-3347, p. 14, 847 So.2d at 1209. Accord, Bd. of Comm’rs of Orleans Levee District v. Connick, 94-3161, p. 14, 654 So.2d at 1081 (“The district attorney, as long as he is not flagrantly violating the constitution by doing so, has the right and duty to ferret out wrongdoers ... and bring them before a tribunal exercising criminal jurisdiction”). Dismissing a pending prosecution in the face of a trial court’s denial of the prosecutor’s request for a continuance and then re-filing the same charge to continue the prosecution after a brief pause, is flaunting the “state’s unique power and authority that the defense does not also possess.” State v. King, 10-2638, p. 6, 60 So.3d at 618, citing to State v. Stephens, 00-2472, p. 1, n. 1 (La.3/16/01), 782 So.2d 562, 566 (Lemmon, J., dissenting).

IsThe flaunting of the prosecutor’s authority to favor the state at the defendant’s expense must be evident. See State v. Love, 00-3347, p. 14, 847 So.2d at 1209. When, for example, the record indicates that a dismissal was entered because the victim was not present for trial and was wavering in her commitment to going forward with the prosecution, the district attorney in dismissing-reinstituting the charges is not evidently flaunting his authority. See State v. Batiste, 05-1571, p. 6 (La.10/17/06), 939 So.2d 1245, 1249.

But the flaunting of the prosecutor’s authority is merely a gateway consideration to granting a motion to quash on these grounds. The granting of a motion to quash on the ground of prosecutorial abuse of its authority is dismissal with prejudice. State v. King, 10-2638, p. 5, 60 So.3d at 618. The enforcement of this protection that the defendant is not significantly disadvantaged by the prosecution’s abuse of its unilateral authority, just as with enforcement of the constitutional right to a speedy trial, “leads to the unsatisfactorily severe remedy of dismissal of the indictment when the right has been deprived. This is indeed a serious consequence because it means that a defendant who may be guilty of a serious crime will go free, without having been tried.” Barker v. Wingo, 407 U.S. 514, 522, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). “Such a remedy is more serious than an exclusionary rule or a reversal for a new trial, but it is the only possible remedy.” Id. Overzealous application of the remedy of dismissal with prejudice is no virtue. Id., n. 16.

Because of the severe remedy, a trial court may not quash the formal charges and dismiss them with prejudice when the prosecution’s abusive exercise of its | ^authority simply disrupts a trial court’s conduct of the proceedings or challenges the court’s authority to manage its docket, but does not significantly disadvantage the defense at any forthcoming trial. See State v. King, 10-2638, p. 6, 60 So.3d at 619. Thus, a finding of the prosecution’s abusively exercising its authority is necessary but not sufficient to the sustaining of a motion to quash.

The defendant must show that the district attorney’s abusive exercise of its power actually violates the defendant’s constitutional right to a fair trial. “An accused is entitled to confront and cross-examine the witnesses against him, to compel the attendance of witnesses, to present a defense, and to testify on his own behalf.” La. Const. Art. I, § 16 (emphasis added). Paralleling the burden in a claim of a violation of a constitutional right to a speedy trial, the Louisiana Supreme Court requires the defendant “to make a showing of specific prejudice to his defense.” State v. King, 10-2638, p. 8, 60 So.3d at 620, citing to State v. Love, supra, and Barker v. Wingo, supra. Notably, the Supreme Court has not adopted the suggestion of Justice Weimer that if the reinstitution of the formal charges occurs within seven days of the dismissal, “the State should have the burden to establish the defendant was not prejudiced.” See State v. Love, 00-3347, p. 1, 847 So.2d at 1215 (Weimer, J., concurring in part and dissenting in part); see also State v. Batiste, 05-1571, p. 1-2, 939 So.2d at 1253. Thus, we conclude, a prosecutor’s evident, flagrant, objectionable, and ill-motived “flaunting” is not in itself specific prejudice to the defense at a forthcoming trial. In order to sustain a | inmotion to quash, the resulting specific prejudice to his right to a fair trial must be shown by the defendant.

Ill

As we previously noted, the trial judge made no specific findings at the time he sustained the motion to quash. Because the complementary role of the trial court and our intermediate appellate court demands that deference be given to a trial court’s discretionary decision, we review a trial court’s ruling under an abuse-of-discretion standard. See State v. Love, 00-3347, pp. 9-10, 847 So.2d at 1206-1207. In a case involving the use or abuse of the dismissal-reinstitution authority of the prosecutor, each case is to be decided on the facts and circumstances of the individual case. Id., p. 14, 847 So.2d at 1209; State v. Batiste, 05-1571, p. 5, 939 So.2d at 1249.

We assume that the trial judge found that the prosecution was flaunting its authority and granting itself a second continuance despite his rulings that the prosecution was not entitled to continuances. The prosecutor’s use of his dismissal-reinstitution authority twice on the day of trial and re-filing the same day is more “egregious” than the prosecutor’s conduct in Love and is more akin to the prosecutor’s conduct in Alfred, supra. See State v. Love, 00-3347, p. 10, 847 So.2d at 1207. On the other hand, the prosecution compares the justification of its more recent dismissal-reinstitution with that of the prosecution in Batiste, where an absent and reluctant witness necessitated a dismissal to avoid an approaching trial date. See State v. Batiste, 05-1571, p. 6, 939 So.2d at 1249. To which argument Inthe defense responds by distinguishing that in our case the reluctant witness was not absent (she was physically present in the district attorney’s office) and that, unlike Batiste, here the second dismissal followed upon a second denial of the prosecution’s request for a continuance of the trial.

A case-specific resolution by a trial judge of these fact-intensive countervailing considerations may be entitled to our deference under an abuse-of-discretion standard. But we have no need to so decide because we find that the trial judge abused his discretion if he found, as he would have been required to find, that Mr. Hayes has shown specific prejudice to his defense at any forthcoming trial. A trial court necessarily abuses its discretion if its ruling is based on an erroneous view of the law. See, e.g., Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990); United States v. Taylor, 487 U.S. 326, 336, 108 S.Ct. 2413, 101 L.Ed.2d 297 (1988) (noting that discretionary choices are not left to a court’s inclination, but to its judgment, which is guided by sound legal principles). Thus, if a trial court in exercising its discretion bases its ruling upon an erroneous view or application of the law, its ruling is not entitled to our deference.

IV

We have carefully examined Mr. Hayes’ motion to quash. He makes no claim to a specific prejudice to his defense at any forthcoming trial. The prejudice he identifies in his motion is the self-evident inequity of one party’s ability to avoid trial without authorization of the court. The implication is that the defense would have prevailed at trial because the prosecution was unprepared, and it would | ianot prevail if the prosecution was prepared with its witnesses and its evidence. The further implication is that an unprepared defendant is sometimes forced to trial by the court and is convicted on that account. But in neither of these situations is there a specific prejudice to this defendant at his upcoming trial.

We have also carefully examined the contradictory hearing on the motion to quash. During the arguments the prosecutor noted that he had heard no allegation from the defense that it had been prejudiced in any way. Defense counsel urged that the very inequity of the procedural options available to the parties was the prejudice. This same argument was echoed in Mr. Hayes’ brief to this court.

After this matter was submitted, the Louisiana Supreme Court decided State v. King, supra. We invited the parties to submit supplemental briefs to address the applicability of the King decision. Mr. Hayes responded that he was specifically prejudiced in two ways. The first is his continued pretrial detention and the second, he repeats, is the prosecution’s tactical advantage of avoiding trial when he was prepared with his witnesses for trial.

We reject the argument that Mr. Hayes’s continued pretrial detention is prejudicing his defense. Of course, oppressive lengthy pretrial incarceration is disadvantageous to an accused awaiting trial. See Barker v. Wingo, 407 U.S. at 532, 92 S.Ct. 2182. And the prevention of just such lengthy incarceration is one of the objectives of ensuring speedy trials, especially and primarily through enforcement of statutory protections. See United States v. Marion, 404 U.S. 307, 322, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). Mr. Hayes concedes — indeed, affirmatively argues — that none of his speedy trial rights have |isyet been implicated. That alone suggests that Mr. Hayes’ pretrial incarceration has not been oppressively lengthy to cause prejudice to his defense which would result in dismissal with prejudice. For example, exceeding the periods of pretrial detention authorized by La.C.Cr.P. Art. 701 D(2), which are the earliest triggers for a speedy trial claim, at best only entitles a defendant to release from custody and not to dismissal with prejudice. See La.C.Cr.P. Art. 701 D(2). See also State v. Campechano, 06-1329, p. 4 (La.App. 4 Cir. 4/4/07), 956 So.2d 673, 674-675. When a trial judge does find that the only prejudice from the prosecution? s tactics is undue continued pretrial incarceration, he ought to first consider a remedy less drastic and more commensurate with the harm, such as reducing the amount of bail. See LA. C.CR.P. ART. 342. See also State v. Thomas, 10-528, p. 15 (La.App. 4 Cir. 7/15/10), 54 So.3d 1 (Bonin, J., concurring).

But in evaluating even speedy trial violations, courts recognize that the most serious kind of prejudice is not pretrial detention, but rather “the possibility that the defense will be impaired.” See Barker v. Wingo, 407 U.S. at 532, 92 S.Ct. 2182. And this is the exact sort of prejudice which the defendant must show to obtain the remedy of dismissal with prejudice. Yet Mr. Hayes has not alleged, much less shown, how his defense has been impaired, which leads us to address Mr. Hayes’ second contention of prejudice: the prosecution’s tactical advantage in avoiding trial when Mr. Hayes’ witnesses were present.

His second contention merely focuses on or emphasizes the prosecution?s flaunting of its authority to escape a trial setting disadvantageous to it. The focus, 114however, of specific prejudice to the defendant is at a later trial. Here, Mr. Hayes filed his motion to quash as soon as the formal charges were reinstituted. He was not confronted with a trial setting at which he was unable to produce any witness. He was not confronted with a denial of a request for a continuance due to the absence of his witness. These are the kinds of conditions under which a defendant could show specific prejudice that his defense has been significantly disadvantaged at a forthcoming trial. See State v. King, 10-2638, p. 6, 60 So.3d at 619.

Mr. Hayes has not shown, as he is required to show, specific prejudice to his defense from the prosecution’s use of its dismissal-reinstitution authority. Because in this case at this point in time the trial judge could not have found such specific prejudice which would justify a dismissal with prejudice, granting the motion to quash was an abuse of discretion and we accordingly reverse the ruling.

DECREE

The ruling of the trial court sustaining the motion to quash filed by Alonzo Hayes is reversed. The matter is remanded to the trial court for further proceedings.

REVERSED AND REMANDED

LOVE, J., concurs in the result.

LOVE, J.,

concurs.

IT respectfully concur in the result.

      . Mr. Hayes references La. Const, art. II, § 2: "Except as otherwise provided by this constitution, no one of these branches, nor any person holding office in one of them, shall exercise power belonging to either of the others.” We note en passant that the prosecuto-rial power under the Louisiana constitution, unlike the federal, is in the judicial branch and not in the executive branch. See La. Const. Art. V, § 26.

      . See, e.g., State v. Batiste, 05-1571, p. 4 (La.10/17/06), 939 So.2d 1245, 1253 (Weimer, J., dissenting).