author: STEWART, J.

text:
    STATE of Louisiana, Appellee v. Kevin Ray FISHER, Appellant.
    No. 46,997-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 29, 2012.

      Louisiana Appellate Project, by Peggy J. Sullivan, Monroe, LA, for Appellant.
    Charles R. Scott, II, District Attorney, Tommy J. Johnson, Geya W. Prudhomme, Jordan B. Bird, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, STEWART and SEXTON (Pro Tempore), JJ.
   STEWART, J.

hThe defendant, Kevin Ray Fisher, was found guilty as charged of two counts of armed robbery with a firearm and given concurrent sentences of 27 ½ years at hard labor without benefit of probation, parole, or suspension of sentence. Asserting that the trial court erred in denying his motion to suppress, in allowing other crimes evidence, and in imposing an excessive sentence, the defendant now appeals his conviction and sentence. Though we affirm the defendant’s conviction for Count II, the armed robbery of the Dollar General Store on North Market (hereafter referred to as the “North Market Dollar General”), for other reasons we must reverse his conviction for Count I, the armed robbery of the Dollar General Store on Greenwood Road (hereafter referred to as the “Greenwood Dollar General”). The defendant’s concurrent sentences are vacated, and the matter is remanded for a new sentence to be imposed.

FACTS

The defendant was arrested on January-10, 2005, when an attempt to rob a McDonald’s restaurant located on Youree Drive in Shreveport during the early morning hours was thwarted by the police after a passerby reported seeing suspicious activity. Detective Rod Demery of the Shreveport Police Department conducted two recorded interviews with the defendant following his arrest that day. In both interviews, the defendant implicated himself in a number of robberies that had recently occurred. The defendant was initially charged with four counts of armed robbery involving three different Dollar General Stores and an Econo Lodge motel as well as with one count of the attempted armed robbery of the McDonald’s.

|2On April 24 and 25, 2007, a hearing was held prior to the start of trial to determine whether the defendant’s statements were given freely and voluntarily. Defense counsel also adopted a pro se motion to suppress that had been filed by the defendant. Detective Demery testified that the defendant claimed to be 17 at the time of his arrest. Demery explained that the age given by the defendant matched information in the police records; therefore, he believed the defendant and proceeded to question him. He advised the defendant both verbally and in writing of his Miranda rights. The defendant waived his rights and admitted during the first recorded interview to participating in a spree of robberies. When the defendant’s mother called and reported that the defendant was actually 16, Detective Demery began the process anew with her present and conducted a second recorded interview after informing them of the Miranda rights and allowing them to speak in private. Detective Demery described the defendant as cooperative, respectful, and willing to talk. He denied using promises, threats, or coercion to elicit the defendant’s statements.

The defendant’s mother, Joyce Marie Fisher Mitchell, first claimed that she had not been allowed to speak privately with her son and that she had not been present for any interview. After the state played parts of the second recorded statement, Mitchell recalled that they had been allowed to speak privately and that she was present for the second interview. However, she continued to deny that he admitted any involvement in the robberies. She answered “no” when asked whether she felt her son had been pressured into talking to the police.

IsAfter considering the testimony and arguments of counsel, the trial court determined that the defendant freely and voluntarily gave both recorded statements. The trial court also heard arguments on the motion to suppress, and upon considering the testimony from the free and voluntary hearing, denied that motion.

As the jury trial was about to begin, the defendant pled guilty to three counts of armed robbery with a firearm and one count of attempted armed robbery with a firearm knowing that he would be sentenced to 19 years as to each armed robbery and seven and one-half years on the attempted armed robbery, all concurrent. However, the trial court agreed to defer sentencing for at least 30 days and indicated there was a possibility that a lesser sentence would be imposed.

Within days, the defendant sought to withdraw his guilty plea. However, the motion to withdraw was not heard until May 15, 2008. The defendant argued that he was not adequately advised when he pled and that he had not had sufficient time with counsel. He also complained that his co-defendants had since gotten more favorable outcomes. On June 11, 2008, the trial court allowed the defendant to withdraw his guilty plea and appointed new defense counsel. The trial court expressed concern that the young defendant had only one personal meeting with counsel during the two years from the time of his arrest until the plea.

New defense counsel filed a motion to quash, which the trial court granted as to the bill for the attempted armed robbery of the McDonald’s. l/The ruling was based on the defendant having been a juvenile at the time of the offense.

Because there was some confusion about whether the trial court had ruled on the motion to suppress, the motion was heard again on December 2, 2009, at which time Detective Demery once more testified about the facts and circumstances of the two recorded statements. Though the trial court had previously denied the motion to suppress on April 25, 2007, this time it granted the motion to suppress as to the first statement given by the defendant without parental consultation or presence. However, the trial court denied the motion as to the second statement given while his mother was present.

On January 13, 2010, the state filed a new bill of information charging three counts and gave notice that it intended to use the defendant’s statement as other crimes evidence.

On January 21, 2010, the state filed an amended bill charging just two counts— Count I being the armed robbery with a firearm of the Greenwood Dollar General and Count II being the armed robbery of the North Market Dollar General. Both included the enhancement for use of a firearm under La. R.S. 14:64.3. That same day the trial court held a hearing on the state’s intention to introduce evidence of other crimes, wrongs, or acts by the defendant, but it did not issue a ruling until trial proceedings began on July 26, 2010. The trial court denied the state’s request to use the attempted armed robbery of the McDonald’s but granted its request to introduce anything the defendant said about his codefendants’ actions and the | jobberies of an Econo Lodge and a Texaco. The defendant’s second statement was redacted for trial purposes to exclude parts that could not be shown to or heard by the jury.

The state presented three witnesses. Emily Pizzolato, an employee of the Greenwood Dollar General, and Megan Lodge, a customer whose purse was taken during the robbery of the North Market Dollar General, testified. In both cases, the robbers wore masks and could not be identified. Detective- Demery testified about what he learned from the defendant during the second interview, which was played for the jury. The defendant did not testify and did not present any witnesses. On July 29, 2010, the jury returned a verdict of guilty as charged on both counts.

On October 28, 2010, the trial court imposed concurrent sentences of 24 ½ years for each armed robbery count and an additional -five years for each count for the firearm enhancement under La. R.S. 14:64.3. Thus, the defendant was to serve 29 ½ years at hard labor without benefit of probation, parole, or suspension of sentence. Prior to imposing the sentence, the trial court reviewed the history of the case, including the defendant’s rejection of favorable plea offers. The trial court noted that, unlike his codefendants, the defendant had been steadfast in his refusal to accept a plea. The trial court also noted that the defendant had admitted involve-merit in other robberies for which he had not been tried. According to the trial court, the defendant had not shown maturity, had not expressed remorse, and had not accepted responsibility for his actions. His demeanor had at times indicated frustration and disapproval toward his attorney, and he appeared not to [ r,realize the unlawfulness of his conduct or the seriousness of his situation. The trial court was firm in its belief that the defendant “does not get it.” In mitigation, the trial court referred to the failure of the first appointed attorney to provide sufficient counsel before the guilty plea. The trial court also noted that the defendant, who was 16 when the offenses were committed, had acted under the strong provocation of an older codefendant, Jonathan Black, and that his mother had died since he had been in jail.

A motion to reconsider the sentence was heard on December 16, 2010. Defense counsel argued that the sentence was too long for such a young offender and that he should not be punished for his behavior before the court. The trial court denied the motion. However, on January 2, 2011, the trial court reconsidered its denial of the motion to reconsider and resentenced the defendant to 22 ½ years on each armed robbery along with five years on each count for the firearm enhancement. Thus, the total concurrent sentence was 27 ½ years at hard labor without benefits. This appeal followed.

DISCUSSION

Denial of the Motion to Suppress

The defendant first assigns as error the trial court’s failure to suppress his second statement. He argues that the totality of the circumstances do not show that his statement was free and voluntary. He suggests that he and his mother lacked sufficient sophistication to realize his first statement would not be admissible and that his mother lacked sufficient information to make an informed decision about whether to advise him to talk to Detective 17Pemery. Finally, he argues that because his second statement was the sole evidence linking him to the two robberies, its admission cannot be considered harmless error.

The state counters that the defendant is seeking to impose a burden not required by law, namely, having to prove the sophistication of the parent. The state notes that defense counsel’s argument before the trial court focused on whether the defendant may have been fatigued by the time of the second statement, not the mother’s alleged lack of sophistication or knowledge. The state asserts that Detective Demery followed the proper procedures in obtaining the second statement and that the trial court was correct in not suppressing it.

When a motion to suppress is filed, the defendant has the burden of proving the ground of his motion, but the state bears the burden of proving beyond a reasonable doubt the admissibility of the purported confession or statement by the defendant. La. C. Cr. P. art. 703(D); State v. Roddy, 33,112 (La.App.2d Cir.4/7/00), 756 So.2d 1272, writ denied, 2000-1427 (La.5/11/01), 791 So.2d 1288. Before a confession can be introduced into evidence, the state must affirmatively show that it was “free and voluntary, and not made under the influence of fear, duress, intimidation, menaces, threats, inducements, or promises.” La. R.S. 15:451; State v. Bowers, 39,970 (La. App.2d Cir.8/19/05), 909 So.2d 1038.

The same constitutional protections — the privilege against self-incrimination and the right to counsel — apply equally to adults and juveniles. In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); | 8State v. Fernandez, 96-2719 (La.4/14/98), 712 So.2d 485. The state must show that an accused, who made a statement during custodial interrogation, was first advised of his constitutional rights. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); La. Const. Art. 1, § 13.

In State v. Fernandez, supra, the supreme court overruled State in the Interest of Dino, 359 So.2d 586 (La.1978), cert. denied, 439 U.S. 1047, 99 S.Ct. 722, 58 L.Ed.2d 706 (1978), which had expanded Miranda by requiring the state to affirmatively show that a juvenile had a meaningful consultation with an attorney or an informed parent, guardian, or adult interested in his welfare before waiving his constitutional rights. In place of the Dino requirements, the supreme court reinstated the totality of the circumstances standard for determining whether a juvenile knowingly waived his Miranda rights and made a free and voluntary confession. The court explained:

A confession by a juvenile given without a knowing and voluntary waiver can be, and should be, suppressed under the totality of the circumstances standard applicable to adults, supplemented by consideration of other very significant factors relevant to the juvenile status of the accused.

Fernandez, 96-2719, p. 10, 712 So.2d at 489. Significant factors relevant to the juvenile status of the accused include the juvenile’s age, education, background, experience, and intelligence and whether he had the capacity to understand the warnings, the nature of his rights, and the consequences of waiving them. Id., citing Fare v. Michael C., 442 U.S. 707, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979).

| nWhether a confession or statement is admissible is a question for the trial court whose conclusions on the credibility and weight of testimony relating to the voluntary nature of the confession will not be overturned on appeal unless not supported by the evidence. State v. Thibodeaux, 98-1673 (La.09/08/99), 750 So.2d 916, cert. denied, 529 U.S. 1112, 120 S.Ct. 1969, 146 L.Ed.2d 800 (2000). The testimony of the interviewing police officer alone may be sufficient to prove that the statement was given freely and voluntarily. State v. Bowers, supra. In reviewing the correctness of the trial court’s ruling on a motion to suppress, the appellate court may review the entire record, including testimony at trial. State v. Young, 39,546 (La.App.2d Cir.03/02/05), 895 So.2d 753, citing State v. Sherman, 04-1019 (La.10/29/04), 886 So.2d 1116.

Through the testimony of Detective Demery at the free and voluntary hearing on April 24 and 25, 2007, the motion to suppress hearing on December 2, 2009, and at trial, the record establishes that the trial court did not err in denying the motion to suppress as to the second recorded statement given by the defendant with his mother present. Both the recorded statement and the testimony of Detective Dem-ery show that he advised the defendant and his mother of the Miranda rights and allowed them time to talk privately. Thereafter, the defendant and his mother waived the rights and consented to proceed with the interview. The record shows that Detective Demery inquired into whether the defendant understood his rights, whether he discussed with his mother his rights to have a lawyer present and to remain silent, as well as the fact that anything hnhe would say could be used against him. The defendant affirmed that he had and that there had been no promises, threats, or pressure used against him. The defendant indicated that he had completed eleventh grade and still maintained in the second interview that he was 17, even after his mother reported that he was 16.

After having conducted one interview with the defendant under the justifiable belief that he was 17 and after learning from his mother that he was actually 16, Detective Demery did all he could to follow the proper procedures in conducting the second interview of this teenage defendant with his mother present. Nothing in the record indicates that the defendant lacked the intelligence or capacity to understand his rights and make a knowing and voluntary waiver or that his mother lacked sufficient sophistication or intelligence to meaningfully consult with him about his decision to waive his rights and submit to a second interview.

As expressed in Fernandez, supra, there is no federal or state constitutional basis for invalidating an otherwise valid confession simply because the defendant has not quite reached the age of 17 and achieved non-juvenile status. Here, the totality of the circumstances shows that the defendant waived his Miranda rights and gave a free and voluntary confession. We find no error in the trial court’s ruling and no merit to the defendant’s assignment of error.

Admission ofiOi(B) Evidence

Secondly, the defendant assigns as error the trial court’s ruling allowing the state to present other crimes evidence. The defendant argues |nthat the other crimes evidence was not admissible under La. C.E. art. 404(B). He also argues that the “dearth of other evidence presented at trial” means that the other crimes evidence must have formed part of the basis for his conviction. Thus, its prejudicial effect outweighed its probative value, and its introduction was not harmless error.

The state counters that the other crimes evidence established a pattern of the defendant’s participation in similar robberies and of his receiving money from the robberies. The state asserts that this reflects his knowledge of the crimes and consistent planning.

La. C.E. art. 404(B) states, in relevant part:

B. Other crimes, wrongs, or acts. (1) Except as provided in Article 412, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.

Other crimes evidence allowed under La. C.E. art. 404(B) is not admissible unless it tends to prove a material fact at issue or to rebut a defense. State v. Jacobs, 1999-0991 (La.5/15/01), 803 So.2d 933, cert. denied, 534 U.S. 1087, 122 S.Ct. 826, 151 L.Ed.2d 707 (2002). Also, the probative value of the extraneous crimes evidence must outweigh its prejudicial effect. La. C.E. art. 403; State v. Jacobs, supra.

The trial judge has wide discretion in determining the relevancy of evidence, and its ruling on the admissibility of other crimes evidence will |1gnot be overturned absent a clear showing of an abuse of discretion. State v. Scales, 93-2003 (La.5/22/95), 655 So.2d 1326, cert. denied, 516 U.S. 1050, 116 S.Ct. 716, 133 L.Ed.2d 670 (1996); State v. Cooks, 36,613 (La. App.2d Cir.12/4/02), 833 So.2d 1034.

The improper admission of other crimes evidence is subject to review for harmless error, and the admission will be deemed harmless if the verdict is “surely unattributable to the error.” State v. Parker, 42,311 (La.App.2d Cir.8/15/07), 963 So.2d 497, writ denied, 2007-2053 (La.3/7/08), 977 So.2d 896.

The state gave notice as required by La. C.E. art. 404(B)(1) of its intent to introduce other crimes evidence provided by the defendant in his second statement to Detective Demery. The trial court ruled that the state could present evidence about the defendant’s involvement in robberies of an Econo Lodge and a Texaco. The trial court denied the state’s request to introduce evidence of the defendant’s involvement in the attempted armed robbery of the McDonald’s, but it allowed the state to question Detective Demery about what the defendant told him regarding the actions of his codefendants, particularly Jonathan Black, with regard to the McDonald’s incident and other crimes that linked to the defendant.

Detective Demery testified that he learned the details of Black’s involvement in the attempted armed robbery of the McDonald’s from the defendant; he did not explain how the defendant knew these details. The defendant told Detective Demery that Black went there at 4:00 a.m. to commit the robbery. As he fled the police, Black discarded a firearm. | ISBlack was apprehended, and a .38 revolver was later recovered from the area. As to the Econo Lodge robbery, the defendant told Detective Demery that he waited in the parking lot while Black went inside to commit the robbery. Black returned with about $200, including a pocketful of change. The defendant also told Detective Demery that Black used the same .38 revolver to rob the Econo Lodge and that Black wore a red mask. Detective Dem-ery said that the witness Megan Lodge likewise recalled that the person who robbed the North Market Dollar General wore a red mask. As to the defendant’s information about the Texaco robbery, Detective Demery testified that the defendant claimed that he waited in the car while Black committed the robbery and that Black gave him $50 from the robbery.

In addition to hearing Detective Dem-ery’s testimony, the jury heard the defendant’s recorded statement in which he discussed the robberies of the Econo Lodge, the Texaco, and the North Market Dollar General. The defendant’s statement implicating himself in the commission of the crimes for which he was not charged showed opportunity, intent, knowledge, preparation and plan with regard to these crimes and certainly the robbery of the North Market Dollar General. In each of these instances, the defendant placed himself with the main perpetrator, Black, who entered the businesses to commit robbery while the defendant waited in a vehicle and received a share of the money from the robberies. The defendant had knowledge of the .38 revolver used by Black and indicated that he had procured the firearm for Black. The other crimes evidence was of great probative value in demonstrating the defendant’s involvement in these similar robberies, particularly since no witness identified the perpetrators.

114For these reasons, we find no abuse of discretion by the trial court in allowing the introduction of other crimes evidence. However, in reviewing this assignment, our attention focused on the defendant’s conviction for Count I, the robbery of the Greenwood Dollar General, which we now address.

Count I- — Greenwood Dollar General

Our close examination of this record in reviewing the assigned errors brought to our attention the absence of evidence supporting the defendant’s conviction for Count I.

In State v. Russell, 448 So.2d 798 (La. App. 2d Cir.1984), writ denied, 450 So.2d 956 (La.1984), this court reversed a conviction for solicitation with intent to engage in indiscriminate sexual intercourse for compensation upon finding no evidence that the defendant solicited the undercover officer. Apparently, the issue of sufficiency of the evidence in Russell was briefed but not assigned as error. Though recognizing that insufficiency of the evidence could not be reviewed in the absence of an assignment of error or motion for a new trial and that it does not constitute error patent, this court concluded:

However, if in some fashion — either through a motion for a new trial, assignments of error filed in the trial court, or as here, where the court happens to review assignments which are briefed but not filed — the court determines that the evidence is insufficient to sustain a conviction, then it is our obligation to address this issue.

Id., at 800.

This court’s decision was based on State v. Raymo, 419 So.2d 858 (La.1982), wherein the supreme court set aside the defendant’s forgery | ^conviction because there was no evidence that the. defendant intended to prejudice the rights of another. Though the defendant had filed assignments of error, none pertained to the sufficiency of the evidence. Moreover, the opinion does not indicate that the defendant had filed a motion for a new trial. Nevertheless, the supreme court determined that where the state’s case is “devoid of evidence of an essential element of the charged offense,” it must set aside the conviction and sentence “regardless of how the error is brought to the attention of the reviewing court.” Id.

Armed robbery is defined as the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation while armed with a dangerous weapon. La. R.S. 14:64(A). The law of principals is set forth at La. R.S. 14:24.

To prove its case as to Count I, the state presented the testimony of Emily Pizzolato and Detective Demery in addition to playing the defendant’s second statement for the jury.

Pizzolato was working at the store at the time of the robbery. She testified that she was stocking shelves in the back left corner of the store when she heard the door open. She saw two masked men with guns and heard them demand money. She went into a storage room where she remained until the robbery was over. She had no contact with the perpetrators and could not identify them.

In his testimony, Detective Demery referred to the period from October to mid-January as the “robbery season.” He stated that a number of | ^businesses had been robbed during the latter part of December 2004 through January 2005 and that the investigation had developed a pattern of two individuals committing robberies. Detective Demery testified as to details provided by the defendant about the robberies of the North Market Dollar General, the Econo Lodge, and the Texaco. However, his testimony did not include any details about the defendant’s alleged involvement in the robbery of the Greenwood Dollar General. At most, Detective Demery claimed there was a pattern or some similarity between the robberies of the Dollar Generals. His reference to these similarities was vague at best.

Our review of the defendant’s second statement shows that Detective Demery questioned him about the Dollar General robbery where the customer’s purse was stolen; this was the North Market robbery, not Greenwood. The defendant’s recorded statement does not include any specific reference to or details about the robbery of the Greenwood Dollar General. He did not confess to any involvement in a robbery of the Greenwood Dollar General.

The state is required to prove each element of the crime charged beyond a reasonable doubt. U.S. Const. Amend. XIV; La. Const. Art. I, § 2; La. C. Cr. P. art. 804; Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under the Jackson sufficiency of the evidence review, we are required to view the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Here, there is simply no evidence of the defendant’s involvement in the h7robbery of the Greenwood Dollar General. There is no evidence as to Count I to view in the light most favorable to the state.

Detective Demery’s testimony that the robbery of the Greenwood Dollar General had similarities to the robbery of the North Market Dollar General is the sole “evidence” of the defendant’s guilt. Even if there are similarities among the Greenwood Dollar General robbery and the robberies addressed by the defendant in his second statement, the similarities do not suffice to prove beyond a reasonable doubt that the defendant committed the offense. There was not even any evidence presented to show that the Greenwood Dollar General robbery was committed by Johnathan Black, the person indicated by the defendant’s statement to be the main perpetrator of the robberies.

The record is devoid of proof as to defendant’s commission of the armed robbery of the Greenwood Dollar General. For this reason, we are constrained to reverse the defendant’s conviction and sentence for Count I charging him with the armed robbery with a firearm of the Greenwood Dollar General.

Sentencing

The defendant also assigned as error the excessiveness of his sentences. The trial court imposed concurrent sentences for the two offenses. Because we are reversing the conviction for the Greenwood Dollar General robbery, we find it necessary to remand this matter for resen-tencing. We cannot discern whether the fact that the defendant was found guilty by the jury of both offenses influenced the sentences imposed |18by the trial court. Additionally, the trial court did not order a presentence investigation report before sentencing this young offender. In giving reasons for the sentencés imposed, the trial court referred to the defendant’s attitude in court toward counsel and the fact that the defendant had rejected plea offers. Though we cannot say that the trial court improperly relied on these considerations in imposing its sentence, we caution that the sentence should reflect the crime committed, not the defendant’s courtroom demeanor or decision to go to trial. In light of these considerations, we find that remand is appropriate for a new sentence to be imposed for the conviction on Count II.

CONCLUSION

For the reasons explained, we affirm the defendant’s conviction for Count II, the armed robbery with a firearm of the North Market Dollar General; we reverse the defendant’s conviction for Count I; we vacate the sentences; and we remand the matter for imposition of a new sentence on Count II.

AFFIRMED IN PART and REVERSED IN PART.

SENTENCE VACATED and REMANDED FOR SENTENCING.


source: Caselaw Access Project

author: LOLLEY, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Danny Ray BRADHAM, Sr., Appellant.
    No. 46,985-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 29, 2012.
    Rehearing Denied April 5, 2012.

      James Edward Beal, Jonesboro, LA, Louisiana Appellate Project, for Appellant.
    J. Schuyler Marvin, District Attorney, John Michael Lawrence, Darius Q. Henderson, Assistant District Attorneys, for Appellee.
    Before STEWART, MOORE and LOLLEY, JJ.
   LOLLEY, J.

|! Danny Ray Bradham, Sr., pled guilty to one count of attempted creation of a clandestine lab, in violation of La. R.S. 40:988 and La. R.S. 14:27, and was sentenced to four years at hard labor. Brad-ham now appeals. We affirm his conviction and sentence.

FACTS

On October 18, 2010, Bradham was arrested by an officer of the Bossier City Police Department after a traffic stop, during which, the officer noticed items used for the production of methamphetamines in the backseat of Bradham’s vehicle. Bradham filed a pro se motion for speedy trial on October 27, 2010. On December 13, 2010, Bradham was charged by bill of information with one count of creation of a clandestine lab in violation of La. R.S. 40:983, driving without a license in violation of La. R.S. 14:98.3, and driving with altered or temporary tags in violation of La. R.S. 32:51.

On May 9, 2011, as a result of a plea agreement, Bradham ultimately pled guilty to one count of attempted creation of a clandestine lab in violation of La. R.S. 40:983 and La. R.S. 14:27. In exchange for Bradham’s guilty plea, Bradham was not charged as a multi-offender. Additionally, the two misdemeanor charges against Bradham were dismissed. The trial judge heard testimony from the arresting officer prior to sentencing Bradham to four years at hard labor. Bradham appealed his conviction and sentence.

Bradham’s appellate counsel has filed an Anders brief, which alleges no non-frivolous issues to raise on appeal and seeks the withdrawal of counsel. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241, 2242, writ denied, 1999-3018 (La.03/31/00), 759 So.2d 69; State v. Mouton, 95-0981 (La.04/28/95), 653 So.2d 1176; State v. Benjamin, 573 So.2d 528 (La.App. 4th Cir. 1990). The brief outlines the procedural history and facts of the case set forth by the state. The brief also contains “a detailed and reviewable assessment for both the defendant and the appellate court of whether the appeal is worth pursuing in the first place.” Jyles, supra. The state filed a letter with this Court agreeing that there are no non-frivolous issues to raise on appeal. Defense counsel has verified the mailing of copies of his notice to withdraw and brief to the defendant in accordance with Anders, Jyles, Mouton, and Benjamin, supra.

Despite the assertion by Bradham’s appeal counsel that there are no appealable issues, Bradham has filed a pro se brief raising the following issues as error.

DISCUSSION

Motion for Speedy Trial

On appeal, Bradham contends that the trial court erred by failing to grant his motion for speedy trial and by failing to hold a contradictory hearing pursuant to La. C. Cr. P. art. 701(F), which states that a motion for speedy trial unaccompanied by a verified affidavit from defense counsel shall be set for contradictory hearing within 30 days. We disagree.

Generally, a valid, unqualified plea of guilty waives the defendant’s right to appeal all nonjurisdictional defects prior to the proceeding. State v. Crosby, 338 So.2d 584 (La.1976). The record clearly indicates that Bradham: was advised of his rights by the trial court; waived his rights | (¡knowingly and voluntarily; and, pled guilty without reserving his right to appeal pursuant to Crosby, supra. Nonetheless, even addressing the issue, a review of the record indicates that Bradham’s argument is without merit.

It is well settled that there are two separate and distinct bases for a defendant’s right to a speedy trial: a statutory right granted by La. C. Cr. P. art. 701 and a constitutional right embodied in the Sixth Amendment to the United States Constitution and Article I, Section 16 of the Louisiana Constitution of 1974. The two are not equivalent. State v. Logan, 45,136 (La.App.2d Cir.04/14/10), 34 So.3d 528, writ denied, 2010-1099 (La.11/05/10), 50 So.3d 812; State v. Price, 96-680 (La.App.5th Cir.02/25/97), 690 So.2d 191.

Louisiana C. Cr. P. art. 701 provides that the sole remedy for failure to commence trial within the mandated time period is pretrial release without bail. Once a defendant has been convicted, any allegation that La. C. Cr. P. art. 701 has been violated becomes moot. State v. Mack, 37,174 (La.App.2d Cir.06/27/03), 850 So.2d 1035, writ denied, 2003-2122 (La.01/16/04), 864 So.2d 628; State v. Johnson, 2008-1156 (La.App.5th Cir.04/28/09), 9 So.3d 1084, writ denied, 2009-1394 (La.02/26/10), 28 So.3d 268.

The constitutional right to a speedy trial is fundamental and is guaranteed to an accused. U.S. Const, amends. VI and XIV; La. Const. Art. I, § 16; Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); State v. Jordan, 35,643 (La.App.2d Cir.04/03/02), 813 So.2d 1123, writ denied, 2002-1570 (La.05/30/03), 845 So.2d 1067. The right attaches when an individual becomes an accused, either by formal | ^indictment or bill of information or arrest and actual restraint. State v. Bodley, 394 So.2d 584 (La.1981); State v. Jordan, supra. Louisiana has adopted the four factors used in Barker v. Wingo, supra, to assess whether a defendant’s speedy trial right has been violated. These factors include: (1) length of delay, (2) the reason for the delay, (3) the defendant’s assertion of his right, (4) and prejudice to the defendant. Id.; State v. James, 394 So.2d 1197 (La.1981); State v. Jordan, supra; State v. Johnston, 480 So.2d 823 (La.App. 2d Cir.1985).

Applying the four factors mentioned above, review of the record does not indicate a violation of Bradham’s right to a speedy trial. A delay of six months and three weeks does not appear unreasonable considering the gravity of the offense charged. Furthermore, there is no indication that any delay between the date of Bradham’s arrest and the date of his trial was the result of anything other than what the trial court’s docket and calendar permitted. The record does not indicate a bad faith effort on the part of the prosecutor. Although the defendant asserted his right to a speedy trial on October 27, 2010, he has not alleged that the delay between his arrest and his conviction had prejudiced his ability to prepare a defense. For these reasons, we find that Bradham’s argument on this issue is without merit.

Ineffective Assistance of Counsel

Bradham also contends that he was denied his constitutional right to effective assistance of counsel. Specifically, Brad-ham argues that his attorney’s failure to file an affidavit in support of Bradham’s motion for speedy trial fell outside the range of professionally competent assistance. |sLa. C. Cr. P. art. 701(D) states in pertinent part, “A motion by the defendant for a speedy trial, in order to be valid, must be accompanied by an affidavit by defendant’s counsel certifying that the defendant and his counsel are prepared to proceed to trial within the delays set forth in this Article.”

Ineffective assistance of counsel claims are generally reserved for post-conviction proceedings as opposed to direct appeal. State v. Edwards, 44,552 (La.App. Cir.2d 08/19/09), 17 So.3d 1037. However, where the record contains evidence sufficient to decide the issue, and the issue is raised by an assignment of error, the issue may be considered on appeal in the interest of judicial economy. Id.; State v. Leger, 2005-0011 (La.07/10/06), 936 So.2d 108, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007).

A review of the record shows that Brad-ham’s contention is without merit. Brad-ham’s speedy trial motion was filed one month before the filing of the bill of information and more than two months before discovery was satisfied. A certification by Bradham’s counsel that he was prepared for trial would have been disingenuous and unethical at the time Bradham filed his pro se motion for speedy trial. We find this argument is also without merit.

Finally, an error patent review has been conducted and no error has been found.

^CONCLUSION

For the foregoing reasons, the motion to withdraw is granted, and the conviction and sentence of Danny Ray Bradham, Sr., are affirmed.

AFFIRMED.

APPLICATION FOR REHEARING

Before WILLIAMS, STEWART, GASKINS, MOORE and LOLLEY, JJ.

Rehearing denied.


text:
    JOHNSON CONSTRUCTION COMPANY, INC., Plaintiff-Appellee v. Bubba SHAFFER d/b/a Shaffer’s Auto & Diesel Repair, Defendant-Appellant.
    No. 46,999-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 29, 2012.
    Rehearing Denied April 5, 2012.

      Burt A. Bowers, Shreveport, LA, for Appellant.
    John Robert Johnson, Jr., for Appellee.
    Before CARAWAY, LOLLEY and SEXTON (Pro Tempore), JJ.
   LOLLEY, J.

h Shaffer’s Auto and Diesel Repair, L.L.C. (“Shaffer”) appeals the judgment of the Shreveport City Court, Parish of Cad-do, State of Louisiana, in favor of Johnson Construction Company, Inc. (“Johnson Construction”). For the following reasons, we affirm the trial court’s judgment.

Facts

At issue in this appeal is whether an agreement existed between Johnson Construction and Shaffer for the price of repairs to a 1979 Ford dump truck. In March 2007, Johnson Construction’s truck needed repairs; among other things, it was leaking oil and water. John Robert Johnson, Jr., the president of Johnson Construction, took the truck along with a 15-ton lowboy trailer to Shaffer for the repairs. The truck was reportedly fixed and Johnson paid the initial bill; however, the truck continued to have the same problems. Mr. Johnson returned to Shaffer with the truck; again, the repairs were reported to be made and Mr. Johnson paid the bill. The mechanical problems with the truck continued, and in July 2007, Mr. Johnson returned to Shaffer a third time and left the track and trailer. Although Mr. Johnson believed he had been given an estimate of $1,000 for the repairs, he was ultimately sent an invoice for $5,863.49 by Shaffer. Mr. Johnson offered to settle the matter for the amount of the initial estimate plus the cost of the parts and shipping — a total of $2,480. Shaffer did not respond to the offer, and refused to return Johnson Construction’s truck or trailer until full payment of the invoice was made, plus storage fees of $50 a day and 18% interest.

| Johnson Construction filed suit against Shaffer alleging that its action in withholding his track and trailer amounted to an unfair trade practice pursuant to La. R.S. 51:1405, et seq., and the matter proceeded to trial. After a trial of the matter, the court concluded that the evidence showed that Mr. Johnson had been quoted a price of $1,000 by Shaffer for the repair work, and Mr. Johnson had not been informed by Shaffer that additional engine work would be performed at an additional cost. Further, the trial court determined that Shaffer had acted deceptively in maintaining possession of Johnson Construction’s trailer on which it had performed no work. Accordingly, the trial court awarded Johnson Construction $3,500 in damages under the Louisiana Unfair Trade Practices and Consumer Protection Law, La. R.S. 51:1405, et seq., and $750 in attorneys’ fees. Shaffer was awarded $1,000 (the amount of the initial estimate as determined by the trial court) and ordered to release Johnson’s truck and trailer immediately. This appeal by Shaffer ensued.

DISCUSSION

The Parties’ Agreement

On appeal, Shaffer raises several assignments of error. First, he argues that the trial court erred in failing to award him the full amount of his invoice (i.e., $5,863.49) and his reasonable storage fees for the truck and trailer. At the outset we point out that Mr. Johnson maintained he had a verbal agreement with Bubba Shaffer, the owner of Shaffer’s Auto Diesel & Repair, that the repairs to the track would cost $1,000. Mr. Johnson also testified that he was not informed otherwise. On the other hand, Mr. Shaffer | ^disputed that an agreement for the price of the repairs was ever reached and maintained that Johnson Construction owed the full amount of the invoice.

The existence or nonexistence of a contract is a question of fact, and the finder of fact’s determination may not be set aside unless it is clearly wrong. Red River International, Inc. v. Pierce, 44,869 (La.App.2d Cir.10/28/09), 26 So.3d 196. Furthermore, when there is a conflict in testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed if the factfinder’s conclusions were reasonable under the evidence. Menard v. Lafayette Ins. Co., 2009-1869 (La.03/16/10), 31 So.3d 996; Johnson v. City of Shreveport, 45,819 (La.App.2d Cir.12/29/10), 56 So.3d 1059. A factfinder’s decision that is based on its discretion to credit the testimony of one of two or more witnesses can virtually never be wrong. Menard, supra.

To enforce an oral agreement pertaining to something priced or valued in excess of $500, the contract must be proved by at least one witness and other corroborating circumstances. La. C.C. art. 1846. A party to the action may be a credible witness, and the other corroborating circumstances need only be general in nature. Smith v. Dishman & Bennett Speciality Co., 35,682 (La.App.2d Cir.01/23/02), 805 So.2d 1220.

If the trial court’s conclusion in this matter was reasonable in light of the evidence, we may not reverse its judgment. At the trial of the matter, the trial court was presented with testimony from Mr. Johnson, Mr. Shaffer, and Michael Louton, a mechanic employed by Shaffer. After consideration of the testimony and evidence, the trial court issued thorough reasons for | Judgment, in which it noted its belief that Mr. Johnson did not authorize Shaffer to perform the additional repairs to the truck, and that the repairs performed were not actually part of the original agreement. The trial court also believed that Mr. Johnson had received a verbal quote of $1,000 for the repairs to the truck, and he did not give authorization to tear the engine down (which was the reason for the additional charges). The trial court did not believe Mr. Johnson was informed of the cost for the additional work.

Considering the trial court’s reasons for judgment, along with our review of the record, we cannot say that the trial court was clearly wrong in its determination. Although there were corroborating circumstances to support both parties’ contentions, the trial court was clearly within its discretion to credit the testimony of Mr. Johnson over that of Mr. Shaffer and Mr. Louton. Notably, whether there was an initial verbal agreement that the repairs would cost $1,000 was subject to a credibility call by the trial court, which heard testimony from the involved parties. The trial court viewed Mr. Shaffer’s testimony on the issue as “disingenuous,” and we cannot see where that was in .error. Therefore, the trial court was not in error in (1) determining that an agreement existed between the parties regarding the price for repairs and (2) refusing to award Shaffer the full amount of its invoice in the amount of $5,863.49.

As for the amount that Shaffer contends is due for storage, had it invoiced Mr. Johnson the amount of the original estimate in the first place, |sthere would have been no need to store the truck or trailer. Considering the trial court’s determination that an agreement existed between Mr. Johnson and Shaffer in the amount of $1,000, which Mr. Johnson had expressed a willingness to pay, we cannot see how Shaffer would be entitled to any payment for storage when it failed to return the truck and trailer where an offer of payment for the agreed upon price had been conveyed. In other words, the need to store Johnson Construction’s truck and trailer was created by Shaffer. Thus we see no error in the trial court failing to award Shaffer storage fees for the truck and trailer.

Unfair Trade Practices Claim

Shaffer also argues that the trial court erred in awarding damages and attorneys’ fees to Johnson Construction under Louisiana’s Unfair Trade Practices and Consumer Protection Law (“LUT-PA”).

LUTPA, La. R.S. 51:1401, et seq., does not enumerate those instances of conduct that constitute unfair trade practices, but La. R.S. 51:1405(A) provides that “[ujnfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.” What constitutes an unfair trade practice is determined on a case-by-case basis. Tyler v. Rapid Cash, LLC, 40,656 (La.App.2d Cir.05/17/06), 980 So.2d 1135; A & W Sheet Metal, Inc. v. Berg Mechanical, Inc., 26,799 (La.App.2d Cir.04/05/95), 653 So.2d 158. In Berg, this court explained:

Conduct is deemed unlawful if it involves fraud, misrepresentation, deception, breach of fiduciary duty, or other unethical conduct. A practice is unfair when it offends established public policy and when the practice is unethical, |fioppressive, unscrupulous, or substantially injurious to consumers, including business competitors.

Id., at 164 (citations omitted).

Here, the trial court determined that Shaffer had engaged in unfair trade practices when it refused to release Johnson Construction’s trailer on which Shaffer had performed no work. The trial court noted that the evidence showed that Mr. Johnson had made demand on Shaffer to release the trailer and that no repairs had been made on the trailer. The trial court further observed that under La. R.S. 9:4501, Shaffer would not have a repairman’s privilege over property upon which no repairs were made. We agree.

Louisiana R.S. 9:4501(A) provides, in pertinent part:

Any person operating a garage or other place where automobiles or other machinery are repaired, or parts therefor are made or furnished, has a privilege upon the automobile or other machinery for the amount of the cost of repairs made, parts made or furnished, and labor performed. If an estimate was given by the repairman for the repairs, then in order for the amount of the privilege to exceed the amount of the estimate, the repairman must secure authorization to exceed the amount of the estimate[.](Emphasis added).

Considering that Shaffer performed no repairs on the trailer, the repairman’s privilege allowed under La. R.S. 9:4501 was inapplicable as to that piece of equipment. See Van-Trow Olds Cadillac, Inc. v. Kahn, 345 So.2d 991 (La.App. 2d Cir.1977).

So considering, we see no error in the trial court’s characterization of Shaffer’s actions with the trailer as holding it “hostage in an effort to force payment for unauthorized repairs.” In Slayton v. Davis, 2004-1652 (La.App. 3rd Cir.05/11/05), 901 So.2d 1246, the appeal court concluded that 17the wrongful seizure of a vehicle was an unfair trade practice under La. R.S. 51:1405. Although the facts of Slayton are not precisely on point, we believe it to be analogous to the situation at hand. Shaffer had no legal right to retain possession of the trailer, yet it refused to release it to Johnson Construction. Thus, the trial court did not err in its determination that Shaffer’s retention of Johnson Construction’s trailer was a deceptive conversion of the trailer.

Shaffer also argues that the trial court erred in awarding Johnson Construction general damages in the amount of $3,500 for the “nearly four year unlawful conversion of [its] trailer.” Louisiana R.S. 51:1409(A) provides, in pertinent part:

Any person who suffers any ascertainable loss of money or movable property, corporeal or incorporeal, as a result of the use or employment by another person of an unfair or deceptive method, act, or practice declared unlawful by R.S. 51:1405, may bring an action individually but not in a representative capacity to recover actual damages. If the court finds the unfair or deceptive method, act, or practice was knowingly used, after being put on notice by the attorney general, the court shall award three times the actual damages sustained. In the event that damages are awarded under this Section, the court shall award to the person bringing such action reasonable attorney fees and costs[.]

As noted by the trial court, Johnson Construction did not provide evidence of the precise value of its loss sustained as a result of its deprived use of the trailer. However, “actual damages” as provided in the statute does not require a precise measurement of the damage — only an “ascertainable loss.” Furthermore, recovery of general damages is allowed under LUT-PA. Slayton, supra at 1255. Here, it is obvious that Johnson Construction suffered a loss. Shaffer retained possession of the trailer for four years, |swhich most certainly had some impact on Johnson Construction’s ability to carry on its business. Despite the fact that Mr. Johnson failed to present a precise value of the loss of use for his trailer, considering the length of time that Shaffer retained it and the amount of the award, we do not believe that the trial court abused its discretion in awarding Johnson Construction general damages in the amount of $8,500.

Finally, Shaffer maintains that the trial court erred in its award of $750 in attorneys’ fees to Johnson Construction. Louisiana R.S. 51:1409 mandates an award of reasonable attorney fees and costs to the person bringing the action. Although Mr. Johnson ultimately represented his company pro se at the time of trial, he was initially represented by an attorney who prepared the original petition and, later, an amended petition. When Johnson Construction’s attorney eventually withdrew from its representation, it was not for a failure to pay by Mr. Johnson, so it can be assumed that the attorney was paid some amount of his fee for the legal work performed. We do not believe the trial court’s award of $750 in attorneys’ fees was in error, considering that Johnson Construction had been represented at some time in the litigation and had presumably paid some amount in attorneys’ fees to its counsel of record.

Conclusion

For the foregoing reasons, the judgment of the trial court in favor of Johnson Construction Company, Inc. is affirmed. All costs of this appeal are assessed to Shaffer’s Auto and Diesel Repair, L.L.C.

AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, GASKINS, CARAWAY, LOLLEY and SEXTON, JJ.

Rehearing denied.

      . Although Shaffer noted in brief that Mr. Johnson, after receiving the invoice, had offered to pay the initial $1,000 plus the additional amounts for parts and shipping (a total of $2480), Shaffer has not argued that, alternatively, it was entitled to at least that amount. Notably, Mr. Johnson’s offer to modify the initial $1,000 agreement went unanswered; thus, there was no modification of that agreement.


author: CARAWAY, J.

text:
    Gloria TURNER, Plaintiff-Appellant v. WILLIS KNIGHTON MEDICAL CENTER, Venkateswara Rao, M.D., Navadeep Samra, M.D. and Gazi Zibari, M.D., Defendants-Appellees.
    No. 46,988-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 29, 2012.

      James D. Caldwell, for Appellant.
    Watson, Blanche, Wilson & Posner, Baton Rouge, LA, by Randall L. Champagne, for Appellee, Willis-Knighton Medical Center.
    Louisiana Department of Justice, by Laurie Richardson Wilson, for Appellees, Drs. Rao, Zibari and Samra.
    Before BROWN, WILLIAMS and CARAWAY, JJ.
   CARAWAY, J.

| ,This case concerns the procedures for requesting and maintaining the medical review panel under the Medical Malpractice Act (“MMA”), and their effect upon the running of prescription against the plaintiffs claim. After the plaintiffs filing of her claim requesting a medical review panel, no attorney chairman for the panel was appointed during the one year provided for such appointment. The plaintiff thereafter filed this suit which was met with exceptions of prescription by the defendants. The trial court ruled that plaintiffs claim had prescribed, and this appeal followed. Finding that plaintiffs actions under the MMA had suspended prescription and maintained her claim, we reverse.

Facts

On August 14, 2008, James Turner was admitted to Willis Knighton Medical Center for a right kidney transplant. James’s treating physicians were Dr. Venkates-wara Rao, Dr. Navadeep Samra, and Dr. Gazi Zibari (hereinafter collectively “the doctors”). While the transplant was successfully completed, Mr. Turner died at Willis Knighton on August 20, 2008.

As a result of James’s death, his wife, Gloria Turner (hereinafter “Turner”), filed a complaint alleging medical malpractice and requested a medical review panel. On August 20, 2009, the complaint was sent by fax and certified mail to the Division of Administration, naming as defendants Willis Knighton and the doctors. Within the Division of Administration, the | ¡Patient's Compensation Fund (hereinafter the “PCF”) received the complaint on August 26, 2009.

After this filing, the PCF notified Turner of its receipt of her claim and that Willis Knighton qualified as a healthcare provider under the provisions of La. R.S. 40:1299.41. While the PCF acknowledged that the complaint had been filed against the doctors, it noted that they were considered non-qualified for medical malpractice purposes. The PCF’s letter also informed Turner that “the Oversight Board reserves the right to revise its qualification and coverage determination upon receipt of additional information.”

On May 24, 2010, the PCF sent Turner a letter (hereinafter “the Nine Month Letter”) via certified mail, informing her that her request for a medical review panel would be dismissed if she did not appoint an attorney chairman within one year from the date that she filed the complaint. Turner received this letter on May 28, 2010. The Nine Month Letter was also copied to the attorney representing Willis Knighton. The date of August 20, 2009, was listed at the top of the letter as the date that Turner filed her complaint. The proper procedure for appointing an attorney chairman or initiating the special strike process under La. R.S. 40:1299.47(0 was explained in the letter.

On July 14, 2010, James Caldwell enrolled as Turner’s new counsel of record. The following week, Caldwell received a letter from the PCF |sreminding him that the parties had one year from filing of the complaint to appoint an attorney chairman. On August 25, 2010, the PCF sent Caldwell a letter via certified mail (hereinafter “the Dismissal Letter”) that informed plaintiff that the claim had been dismissed for the failure to appoint an attorney chairman within the one year that ended on August 20, 2010. Although the letter was directed and addressed only to the plaintiff, through her attorney, it was copied to the defendants. In addition, the letter stated that the “filing of a request for a medical review panel shall suspend the time within which suit must be filed until 90 days after the claim has been dismissed in accordance with the Act.” Turner received the Dismissal Letter on August 27, 2010.

Following the PCF’s dismissal of her claim, Turner filed this suit asserting medical malpractice against Willis Knighton and the doctors on November 23, 2010, 90 days after the August 25, 2010 Dismissal Letter. On February 16, 2011, Willis Knighton asserted the exception of prescription seeking dismissal of the claim. The doctors also pled an exception of prescription and, alternatively, an exception of prematurity.

Following the hearing on the exceptions, the trial court gave its oral reasons for judgment. The trial court decided that the May 24, 2010 Nine Month Letter adequately provided the plaintiff with notice of her deadline to either appoint an attorney chairman or have her case dismissed. The court 1¿found that the Nine Month Letter was notice that the suspension of prescription would end 90 days following August 20, 2010. Thus, the plaintiffs filing of suit which did not occur before November 19, 2010, was ruled untimely.

Discussion

As argued at the hearing on the exceptions, the parties again contest in this appeal the meaning of La. R.S. 40:1299.47(A)(2)(c) (hereinafter the “Statute”). Turner argues that since notice of a dismissal was required, the special 90-day period began to run when she received the Dismissal Letter. Since the Dismissal Letter was received on August 27, 2010, Turner argues that her suit was timely filed. The defendants, on the other hand, argue that the Nine Month Letter adequately informed the plaintiff of the August 20, 2010 deadline to either appoint an attorney chairman or risk a dismissal of her claim. As a result, the defendants argue that Turner had 90 days to file suit from August 20, 2010, and thus the prescriptive clock ran out on November 19, 2010, days before Turner filed suit.

The parties do not dispute that Turner’s filing of her PCF complaint on August 20, 2009, was made on the last day of the one-year prescriptive period applicable to her medical malpractice claim. La. R.S. 9:5628; La. R.S. 40:1299.47(A)(2)(b). Turner’s mailing of the complaint by certified mail on that date to the Division of Administration resulted in the suspension of prescription, which is also undisputed.

| aThe statutory provisions governing the PCF’s mailing of both the Nine Month Letter and the Dismissal Letter are set forth in the Statute, which provides as follows:

An attorney chairman for the medical review panel shall be appointed within one year from the date the request for review of the claim was filed. Upon appointment of the attorney chairman, the parties shall notify the board of the name and address of the attorney chairman. If the board has not received notice of the appointment of an attorney chairman within nine months from the date the request for review of the claim was filed, then the board shall send notice to the parties by certified or registered mail that the claim will be dismissed in ninety days unless an attorney chairman is appointed within one year from the date the request for review of the claim was filed. If the board has not received notice of the appointment of an attorney chairman within one year from the date the request for review of the claim was filed, then the board shall promptly send notice to the parties by certified or registered mail that the claim has been dismissed for failure to appoint an attorney chairman and the parties shall be deemed to have waived the use of the medical review panel. The filing of a request for a medical review panel shall suspend the time within which suit must be filed until ninety days after the claim has been dismissed in accordance with this Section.

La. R.S. 40:1299.47(A)(2)(e).

With the parties’ dispute over the meaning of this Statute, the Civil Code directs our statutory interpretation. 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. C.C. art. 9. When the language of the law is susceptible of different meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law. La. C.C. art. 10.

Courts are bound to give effect to all parts of a statute and cannot give a statute an interpretation that makes any part superfluous or meaningless, if that result can be avoided. Langlois v. East Baton Rouge 6 Parish School Bd., 99-2007 (La.5/16/00), 761 So.2d 504. Further, where there are two permissible interpretations of a prescriptive statute, the courts must adopt the one that favors maintaining rather than barring the action. Bustamento v. Tucker, 607 So.2d 582 (La.1992); Holmes v. Lee, 35,021 (La.App.2d Cir.9/28/01), 795 So.2d 1232, 1237.

From our review of the Statute, it is significant that the directives for the accomplishment of the appointment of the attorney chairman are now aimed at all the “parties.” Although the plaintiff has a specific interest in maintaining her claim by timely acting to prevent the running of prescription, both sides of the dispute have a right to receive consideration of the alleged malpractice by the medical review panel. Nevertheless, the Statute clearly provides that if the “parties” do not take steps for the appointment of the attorney chairman within the one-year time period, “the parties shall be deemed to have waived the use of the medical review panel.” This new procedure and its effect result from a 2003 amendment of the MMA. Prior to amendment, in Yokem v. Sisters of Charity of the Incarnate Word, 32,402 (La.App.2d Cir.6/16/99), 742 So.2d 906, we found that the former law placed the burden entirely on the claimant to secure the appointment of the attorney chairman.

With the possibility of such a waiver of the review panel by the inaction of the accused healthcare provider, the nine-month letter required in the Statute serves the purpose of notification to the healthcare provider of the potential of that waiver. In addition, the letter alerts the plaintiff to the 17possible dismissal of her claim and the end of the suspension of prescription effected by the PCF filing. The Statute then provides a second notice by the PCF in the event the “parties” do not attempt or complete the process for the appointment of the attorney chairman and dismissal occurs.

In an analogous setting involving similar dual provisions of the MMA, the Supreme Court in Thibodeaux v. Donnell, 08-2436 (La.5/5/09), 9 So.3d 120, ruled that notice of dissolution of the review panel was the critical event for the recommencement of the running of prescription, even though the review panel’s failure to have rendered a timely opinion had automatically resulted in the allowance for the plaintiffs filing of suit. In that case, the parties had appointed an attorney chairman but the medical review panel did not render an opinion during the panel’s year-long term. Subsequently, the plaintiff filed a lawsuit four months after the medical review panel was dissolved as a matter of law according to La. R.S. 40:1299.47(B)(l)(b). Even though the PCF had previously notified the parties that the review panel would be dismissed in a year if the panel did not timely render an opinion, the Supreme Court held that the second statutory notice of the panel’s dissolution under La. R.S. 40:1299.47(B)(3) was the event that began the special 90-day period before the suspension of prescription could end.

Just as the dissolution of the review panel occurred by operation of law upon the passage of its one-year term in Thibo-deaux, the one-year term for appointing the attorney chairman expired on August 20, 2010, in this case, resulting in the parties’ waiver of the use of the review panel. ^Nevertheless, Thibodeaux recognized that the special notice to the plaintiff of the review panel dissolution was the more specific provision of the MMA which governed the recommencement of prescription and comported “with due process concerns.” Id. at 126. Likewise, in this case, we find that the specific notice of the Dismissal Letter was the governing event for the recommencement of prescription. We find no inherent conflict or repetition resulting from the nine-month letter and the dissolution notice set forth in the Statute, as both serve differing purposes. With the possibility that the parties’ negotiations or process for appointment of the attorney chairman could lead to confusion or dispute on the eve of the running of the one year, the legislature specified that the PCF’s notice of dismissal was the crucial event regarding prescription.

Finally, since the doctors’ argument admits the application of the Statute to the resolution of the issue of prescription, the Statute’s provision concerning the parties’ waiver of the use of the medical panel likewise governs the doctors’ alternative plea of prematurity. Accordingly, the plaintiffs suit was not premature.

Conclusion

The grant of the defendants’ exceptions of prescription is reversed and the case remanded. Costs of appeal are assessed to defendants.

REVERSED AND REMANDED.

      . The PCF initially denied their status as healthcare providers. Later, however, the PCF informed Turner in June 2010 that the doctors qualified under the provisions of La. R.S. 40:1299.39.1.

      . In their exception of prematurity, the doctors argued that the claim was dismissed without a medical review panel opinion and thus Turner has to refile her claim rather than filing in district court. The doctors made no argument that the claim was premature against them due to any time delay resulting from the fact that the PCF did not initially quality them as healthcare providers under La. R.S. 40:1299.39.1. Therefore, we decide the issue of prescription herein considering that all actions taken or not taken by plaintiff applied for the measure of the same prescriptive time period running against her claims against all defendants.

      . La. R.S. 40:1299.47(0 is provided as a special striking process which either side of the dispute can institute if the parties cannot otherwise agree on an attorney chairman.


author: MOORE, J.

text:
    COORDINATING AND DEVELOPMENT CORPORATION, Plaintiff-Appellant v. D.H. PATTEN CHILDREN COMPANY, LLC, and Vision Developments of LA., LLC, Defendant-Appellee.
    No. 47,000-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 29, 2012.
    The Harper Law Firm, Shreveport, LA, by Jerald R. Harper, for Appellant.

      Francis M. Gowen, Jr., Shreveport, LA, for Appellee, D.H. Patten Children Co., LLC.
    William H. Ledbetter, Jr., Bossier City, LA, David M. Newell, Homer, LA, for Amicus Curiae, Vision Developments of La., LLC.
    Before STEWART, MOORE and LOLLEY, JJ.
   MOORE, J.

1 ¾ Coordinating & Development Corp. (“C & D”), the assignee of an option to purchase real estate, appeals the involuntary dismissal of its claim for specific performance of the option against D.H. Patten Children Co. LLC (“D.H. Patten”), the owner of the property and grantor of the option. For the reasons expressed, we affirm.

Factual Background

D.H. Patten owns a 42-acre tract of land situated between East Texas Street and I-20, just west of the 1-220 loop in Bossier City. Witnesses describe the tract as very picturesque, with a creek, large trees and plenty of space. Prior to 2006, D.H. Patten was leasing it to a photography studio for $2,150 a month.

In late 2006, Renee Hall, a local realtor, developer and entrepreneur, was looking for property in the area. Her daughter had just begun at Bossier Parish Community College (“BPCC”) and Ms. Hall felt that a townhouse development close to campus would be a boon to faculty, staff and students. When she saw this tract, she thought it had great potential. She called Andy Querbes, a local realtor, to find out about it.

After learning that D.H. Patten owned the tract, Querbes called Bert Patten and advised that someone was interested in buying it. The Pattens decided to retain the front four acres but to entertain an offer for the back 38 acres (the “option tract”). Vision Developments of La., Ms. Hall’s LLC, Coffered $875,000; the Pattens countered with $1 million plus the payment of all realtor commissions. Vision agreed to buy an option to purchase at this price. On January 24, 2007, the Pattens and Vision signed a “Standard Form Option Agreement” whereby Vision bought the right to buy the option tract for $1,064,000. The option was good for 180 days and granted Vision the right to “assign all or part of this Agreement to another party”; in consideration, Vision paid the Pattens a nonrefundable $5,000.

Two passages of the option agreement are critical to the case. Exhibit A, ¶7 (“the rezoning clause”) stated:

The property shall be rezoned permitting multi-family residential development and high density townhouse development. Buyers shall make necessary zoning change application at Buyer’s effort and expense; however, Sellers shall sign the application as existing property owner.

The standard form option agreement, ¶ 11 (“the specific performance clause”) stated:

In the event of failure or refusal of either Sellers or Buyer to fulfill his obligations specified herein, after Buyer exercises this Option, the party not in default shall have the right to sue the party in default for specific performance and/or damages, costs and reasonable attorney fees incurred. However, if the Buyer defaults because of the inability to obtain proper zoning or is unable to obtain financing, there is no specific performance required by the Buyer. The $5,000 deposit, in this case, would be forfeited to Seller.

Ms. Hall testified that with option in hand, she intended to develop the option tract for townhouses. She hired a survey- or and architect, and on April 25 she filed a rezoning application with the Bossier City Metropolitan |aPlanning Commission (“MPC”).

In May 2007, the U.S. Air Force announced that it would build a Cyber Command Center on East Texas Street between BPCC and the option tract. News reports forecast a $50 million campus with a research park that would generate 10,-000 jobs. By July, the media announced that Bossier City had bought a 58-acre parcel for $4.3 million, or $74,000 an acre, and would donate the tract to Cyber Command.

Bart Patten admitted that at this price, the option tract would be worth nearly three times the option price. He also admitted getting letters from prospective Haynesville Shale lessees; at the going price of $5,000 per acre, he could have netted $190,000 from lease bonuses alone. Nevertheless, the Pattens testified that the option price of $1 million was “very fair” if the property was dedicated to townhouse development.

Meanwhile, Ms. Hall’s rezoning application stalled. She testified that Mr. Mar-siglia of the MPC brusquely advised her that under a Master Plan adopted in 2003, the area was designated for commercial use only; she requested a refund of her application fee on May 2, 2007. Later, the Pattens called Mr. Marsiglia and he gave them the same report, adding that Ms. Hall had already withdrawn her application.

On May 3, Ms. Hall learned that somebody else wanted to buy her option. Kol-by Nix, a real estate agent in Bossier City, testified that he represented C & D, which was interested in the tract. Nix called Ms. Hall’s attorney, Lance Mosley, who relayed C & D’s offer of $500,000. Ms. Hall testified that she was “shocked,” but agreed to sell the option if she could 14“net $1 million.” C & D agreed, and on May 21, 2007, Ms. Hall signed a “Buy/Sell Agreement for the Purchase of an Option to Buy Land,” conveying Vision’s option to C & D for $1.176 million. The buy/sell agreement contained ¶ 23 (“the additional provisions clause”), inserted by C & D’s counsel, Justin Courtney, with underlining in the original:

Additional provisions supersede conflicting terms in the body of this Agreement. The Zoning obligation contained in Exhibit “A” of the 1 February 2007 option as # 7 shall no longer require the buyer to use the property as a multifamily residential development and high density townhouse development. The Purchaser agrees to hold Seller harmless and indemnify Seller from any lesion issues which may arise.

The Pattens testified that nobody ever consulted them about this revocation of the rezoning clause. In mid-July, C & D notified the Pattens by letter that it had acquired the option agreement and asked them to set a closing date. A week later, the Pattens emailed Ms. Hall’s lawyer asking for proof that the option tract had been rezoned in accordance with the rezoning clause. On July 27, C & D hand-delivered a letter to the Pattens stating that the closing would be on July 30.

Shortly before the scheduled closing, the Pattens faxed a letter to C & D, advising that their cause for signing the option agreement was to see that the property would not be for commercial use but rather for multi-family residential and high-density townhouse development. Stating that C & D had failed to comply with the rezoning clause, the Pattens refused to attend the closing.

IsProcedural History and Action of District Court

C & D filed this suit in January 2008, seeking specific performance of its option. It named as defendants D.H. Patten and Vision, Ms. Hall’s LLC. The defendants jointly moved for summary judgment urging that C & D had failed to comply with the rezoning clause. They conceded that Ms. Hall had applied for rezoning, but argued that because of the Master Plan that change could not occur. C & D opposed the motion, urging that D.H. Patten’s real motive was seller’s remorse, the realization that complying with the option would cost the Pattens $1.9 million. The court denied the motion for summary judgment and the matter proceeded to trial.

At the start of trial in May 2011, C & D severed its claims against Vision and proceeded to trial against D.H. Patten only. Over two days, Ms. Hall and the Pattens testified to the facts outlined above. The tenor of C & D’s case was that the rezoning clause in the original option agreement was intended to benefit solely the buyer, Vision; if it was breached, the seller (D.H. Patten) simply could not complain. In support, C & D called Andy Querbes, the broker who conveyed the offers between the Pattens and Ms. Hall; Lance Mosley, the attorney and title examiner who assisted Ms. Hall in assigning Vision’s option to C & D; Kolby Nix, the realtor who put together the buy/sell agreement on behalf of C & D; and Jeffrey Wyatt, the realtor who negotiated the assignment on behalf of C & D’s principal, Mr. LeComte. All these witnesses stated that in their professional opinion, the rezoning clause was an unusual provision which they interpreted as conferring a benefit on the buyer, not the seller. They agreed that a seller 1 sretaining adjacent land might wish to control the future use of the conveyed tract, but the normal mechanism for doing this was to file property restrictions prior to sale. These witnesses all felt that because the Pattens did not benefit from the rezoning clause, they were unaffected by its breach.

The Pattens testified on cross-examination that the rezoning clause was of paramount importance to them. They were retaining the front four acres for commercial use, and they did not want “competition” from other commercial entities on the adjoining option tract. Bert Patten conceded that there were other ways for his LLC to control the use of the option tract after sale, but he thought the rezoning clause gave him this right.

At the close of C & D’s case, D.H. Patten moved for involuntary dismissal. The court granted this with oral reasons. In essence, the court found the rezoning clause was mandatory and an obligation on the buyer; since Ms. Hall did not comply with it, there can be no specific performance. The court also stated in obiter dicta that Ms. Hall, the Pattens, Andy Querbes and Lance Mosley were all in good faith.

C & D has appealed, raising two assignments of error. Vision has filed an- ami-cus curiae brief, also seeking reversal.

Applicable Law

The motion for involuntary dismissal is defined by La. C.C.P. art. 1672 B:

In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then 17determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.

A motion for involuntary dismissal requires the trial court to evaluate all the evidence presented by the plaintiff and render a decision based upon a preponderance of the evidence. Taylor v. Tommie’s Gaming, 2004-2254 (La.5/24/05), 902 So.2d 380; Williams v. Allen, 44,301 (La.App. 2 Cir. 7/1/09), 15 So.3d 1282. Proof by a preponderance of the evidence means that the evidence, taken as a whole, shows that the fact or cause sought to be proved is more probable than not. Hebert v. Rapides Parish Police Jury, 2006-2001 (La.4/11/07), 974 So.2d 635; Bartley v. Fondren, 43,779 (La.App. 2 Cir. 12/3/08), 999 So.2d 146. The plaintiff opposing a motion for involuntary dismissal is entitled to no special inferences in his favor. Crowell v. City of Alexandria, 558 So.2d 216 (La.1990); Williams v. Allen, supra. The appellate court should not reverse an involuntary dismissal in the absence of manifest or legal error. Bartley v. Fondren, supra; Cosman v. Cabrera, 2009-0265 (La.App. 1 Cir. 10/23/09), 28 So.3d 1075.

Interpretation of a contract is the determination of the common intent of the parties. La. C.C. art. 2045. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. La. C.C. art. 2046; Campbell v. Melton, 2001-2578 (La.5/14/02), 817 So.2d 69. Each provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole. La. C.C. art. 2050.

IsWhen a contract can be construed from the four corners of the instrument without looking to extrinsic evidence, the question of contractual interpretation is answered as a matter of law. Prejean v. Guillory, 2010-0740 (La.7/2/10), 38 So.3d 274; Elston v. Montgomery, 46,262 (La.App. 2 Cir. 5/18/11), 70 So.3d 824, writ denied, 2011-1292 (La.9/23/11), 69 So.3d 1165. Nonetheless, factual findings that pertain to the interpretation of a contract will not be disturbed absent manifest error. Campbell v. Melton, supra; Elston v. Montgomery, supra.

Discussion

By its first assignment of error, C & D urges the court erred as a matter of law by failing to give effect to all unambiguous provisions of the option agreement. Citing the general rules of interpretation, La. C.C. arts. 2045-2056, C & D argues that the court applied only the rezoning clause; had it applied the specific performance clause, it would have found that only the buyer is relieved of the obligation of specific performance, not the seller. C & D submits that if the buyer is still willing to buy the property despite being unable to obtain the zoning sought by the seller, “that is a perfectly acceptable allocation of the risk between the parties,” and the buyer should be entitled to specific performance.

By its second assignment, C & D urges that even if parol evidence was admissible to ascertain the intent of the parties, the overwhelming weight of the evidence supported the claim for specific performance, and the court’s decision to the contrary was plainly wrong. C & D contends that the court should have found (1) Andy Querbes was indeed acting as the Pattens’ | ^realtor, so any ambiguity in the option agreement should be construed against D.H. Patten; (2) the Pattens wanted to avoid this option because property values surged with the disclosure of the Cyber Command Center, not because of any qualms about zoning; and (3) the conditions relating to zoning and specific performance inured solely to the benefit of the buyer, so the seller cannot complain about a technical breach.

By amicus curiae brief, Vision urges the option agreement is not clear and explicit because the owner of the tract, D.H. Patten, was not a party to the. agreement; instead, the Pattens signed it, without disclosing their representative capacity; hence, the document is ambiguous. Vision also argues that although the court purported to find the option agreement clear and explicit, the court plainly analyzed a large amount of parol and extrinsic evidence, an exercise that would be totally unwarranted for a truly clear and unambiguous contract; hence, the court must have actually found the option agreement was ambiguous.

We have closely reviewed the rezoning clause and cannot subscribe to Vision’s position that it is, on its face, unclear or ambiguous. The first sentence states, “The property shall be rezoned permitting multi-family residential development and high density townhouse development.” This is a definite, ascertainable condition. The second sentence requires the buyer to “make necessary zoning change application at Buyer’s effort and expense[.]” This places the obligation on the buyer, Vision. These provisions contain no ambiguity or inconsistency; they imply no absurd consequences. They are adequately stated to support, as a matter of law, the |indistrict court’s interpretation of the option agreement.

The district court further found that the condition stated in the rezoning clause never occurred because Ms. Hall “chose to make [the] decision” to withdraw the application. This is a factual finding pertinent to the interpretation of the contract and thus subject to manifest error review. Prejean v. Guillory, supra; Elston v. Montgomery, supra. There was conflicting evidence on this issue: C & D showed that rezoning the option tract to any residential use was virtually impossible owing to Bossier’s Master Plan; three real estate agents and one attorney all testified that in their view, the buyer could withdraw the application without prejudice because the rezoning clause was strictly for the buyer’s benefit. On the other hand, the Pattens testified that the rezoning clause was their effort to control future use of land adjacent to their own. It may have been a somewhat unconventional device for achieving this goal but it is not unreasonable, given their desire to retain the front four acres. Finally, there is the fact that Vision explicitly negated the rezoning clause when it executed the buy/sell agreement on May 21, 2007. On this conflicting evidence, we must defer to the district court’s finding that Ms. Hall and Vision failed to comply with the rezoning clause.

With this finding, we must reject C & D’s first assignment of error, which urges that the court erred in failing to give effect to all the provisions of the contract, particularly the specific performance clause. This clause applies in the event of “failure or refusal of either Sellers or Buyer to fulfill his obligations specified herein, after Buyer exercises this option[.]”

InCritically, it also states that “the party not in default shall have the right to sue the party in default for specific performance!;.]” Because of the finding that the Pattens were not in default, they could not be compelled to perform; because of the finding that Vision was in default due to Ms. Hall’s business decision, C & D as Vision’s assignee cannot sue for specific performance. The district court did not commit legal error in granting the involuntary dismissal. La. C.C.P. art. 1672 B; Bartley v. Fondren, supra.

By its second assignment of error, C & D lists several factual findings which it submits are plainly wrong. Sitting as a finder of fact, this court might not have found the same facts, but on this large, contentious record we will not disturb the court’s findings that pertain to the application of the option agreement. Prejean v. Guillory, supra; Elston v. Montgomery, supra. Vision argues that the court must have considered the option agreement ambiguous, under Art. 2046, because it made so many factual findings. However, the court specifically stated that the option agreement was clear, and we view the various factual findings as part of the court’s effort to establish the narrative, align the parties, and show how they came to their various agreements. We find no error in the court’s interpretation of the option agreement and its finding that D.H. Patten was not in default for the failure of the rezoning clause. These assignments of error lack merit.

Conclusion

For the reasons expressed, the judgment is affirmed. Costs are assessed against Coordinating and Development Corporation.

AFFIRMED.

      . The two members of D.H. Patten Children Co. LLC are Bert Patten and his sister Trina P. Philibert, sometimes referred to herein as "the Pattens” or by their individual names.

      . Apparently, Querbes’s name was on a nearby "for sale” sign, but not on this tract. Although he equivocated in deposition, Bert Patten testified at trial that the Pattens did not consider Querbes to be their realtor. Ms. Hall consistently stated that she never considered him to be hers.

      .The standard form option agreement listed Bart D. Patten and Trina P. Philibert as owners of the option tract, but they later alleged that D.H. Patten, their LLC, was the actual owner.

      . Ms. Hall later signed a separate “Assignment of Option Agreement.”