text:
    DAN-CIN CONSTRUCTION COMPANY, INC. v. Johnny THRASHER d/b/a Johnny Thrasher Cement Finishing, Charles Bollinger, American Vehicle Insurance Company, and Atlantic Casualty Insurance Company.
    No. 2008 CA 1552.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 13, 2009.

      Gregory J. St. Angelo, New Orleans, Louisiana, for PlaintiffiAppellant Dan-Cin Construction Company, Inc.
    Marvin H. Olinde, Paula M. Wellons, Baton Rouge, Louisiana, for Defendant/Appellee Charles Bollinger.
    Before PARRO, McCLENDON, and WELCH, JJ.
   McCLENDON, J.

|2This is an appeal from a trial court judgment granting the motion for summary judgment filed by one of the defendants and dismissing the plaintiffs claims for damages against that defendant for the breach of a contract to construct and finish a residential concrete foundation. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

The plaintiff, Dan-Cin Construction Company, Inc. (Dan-Cin), filed a Petition for Damages and for Breach of Contract on April 7, 2006, asserting that it contracted separately with the defendants, Johnny Thrasher d/b/a Johnny Thrasher Cement Finishing (Thrasher) and Charles Bollinger, “to construct and finish a concrete residential slab” on immovable property located in Mandeville, Louisiana. Dan-Cin asserted that the defendants failed to perform their obligation in a good and workmanlike manner, resulting in “major structural defects” in the concrete slab. Bollinger answered the petition generally denying its allegations, except to admit that he contracted with Dan-Cin “to construct a form/frame for a residential concrete foundation” and to state as a defense that he exercised no control over Thrasher. Further, on February 2, 2007, Bollinger propounded Interrogatories, a Request for Production of Documents, and a Request for Admissions. Two months later, on April 3, 2007, Bollinger requested by letter that Dan-Cin respond to his discovery requests, and on May 10, 2007, Bollinger requested a discovery conference by telephone regarding the outstanding discovery. Dan-Cin failed to participate in the telephone conference, and on May 30, 2007, Bollinger filed a motion to compel answers and responses to his discovery requests. Additionally, on June 13, 2007, Bollinger filed a motion for summary judgment, asserting that because Dan-Cin had not responded to his Request for Admissions, under the clear language of the Louisiana Code of Civil Procedure, those requests were deemed admitted, and, ^accordingly, he was entitled to summary judgment as a matter of law. Both motions were set for hearing on July 18, 2007, at which time the trial court deemed the discovery responses admitted and, based on those admissions, granted Bol-linger’s motion for summary judgment. Judgment was signed on July 27, 2007, dismissing Dan-Cin’s suit against Bollinger. A motion for new trial filed by Dan-Cin was denied, and Dan-Cin has appealed.

SUMMARY JUDGMENT LAW

Summary judgments are reviewed on appeal de novo under the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Duplantis v. Dillard’s Dept. Store, 02-0852, p. 5 (La.App. 1 Cir. 5/9/03), 849 So.2d 675, 679, writ denied, 03-1620 (La.10/10/03), 855 So.2d 350. An appellate court thus asks the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Brumfield v. Gafford, 99-1712, p. 3 (La.App. 1 Cir. 9/22/00), 768 So.2d 223, 225.

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. The motion should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. Id., 99-1712 at pp. 3-4, 768 So.2d at 225; see LSA-C.C.P. art. 966 B.

The burden of proof is on the mov-ant. But, if the movant will not bear the burden of proof at the trial of the matter, the movant is not required to negate all essential elements of the adverse party’s claim, but rather to point out an absence of factual support for one or more essential elements. Thereafter, if the adverse party fails to provide factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine |4issue of material fact, and summary judgment is properly granted. See LSA-C.C.P. art. 966 C.

DISCUSSION

In the case sub judice, Dan-Cin asserts that although it did not formally respond to Bollinger’s requests for admissions, the requests were answered and denied under oath on direct examination in depositions taken prior to the hearing on Bollinger’s motion for summary judgment. Dan-Cin further alleges that, even if deemed admitted, the requests for admission are insufficient for summary judgment purposes. Lastly, Dan-Cin contends that Bollinger’s failure to include a list of the essential legal elements and a list of the material facts the mover contends are not genuinely disputed, as required by the local rules of court, precludes summary judgment in this matter.

While we recognize Dan-Cin’s argument regarding Bollinger’s failure to comply with Rule 9.10 of the Louisiana Rules for District Court, we note that Dan-Cin did not raise this issue at any time at the trial court level. As a general rule, appellate courts will not consider issues that were not raised in the pleadings, were not addressed by the trial court, or are raised for the first time on appeal. Stewart v. Livingston Parish School Board, 07-1881, p. 6 (La.App. 1 Cir. 5/2/08), 991 So.2d 469, 474. Because this issue was not raised below, we decline to consider it for the first time in this appeal. Furthermore, Bollinger’s memorandum and supporting documentation for its summary judgment motion was in conformity with the Louisiana Code of Civil Procedure and contained the enumerated elements of Rule 9.10. The trial court was within its discretion in dispensing with the strict application of the local rules when unnecessary to the resolution of a dispute. See Hunt Petroleum Corp. v. Texaco, Inc., 04-0729, p. 3 (La.App. 4 Cir. 12/01/04), 891 So.2d 36, 38.

Regarding the requests for admissions, pursuant to the Louisiana Code of Civil Procedure, a party may serve upon any other party a written request for the admission of the truth of any relevant matters of fact. See LSA-C.C.P. art. 1466. Generally, the matter is deemed admitted if the party to whom the request is | ¿directed does not respond within fifteen days after, service of the request. LSA-C.C.P. art. 1467. Any matter deemed admitted under Article 1467 is conclusively established unless the court, on motion, permits withdrawal or amendment of the admission. LSA-C.C.P. art. 1468. The court may permit withdrawal of an admission when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal of the admission will prejudice him in maintaining his action or defense on the merits. LSA-C.C.P. art. 1468.

Generally, the courts have given full effect to Articles 1467 and 1468 when there has been a total lack of response to requests for admissions. Prestage v. Clark, 97-0524, p. 7 (La.App. 1 Cir. 12/28/98), 723 So.2d 1086, 1090, writ denied, 99-0234 (La.3/26/99), 739 So.2d 800; Vardaman v. Baker Center, Inc., 96-2611, p. 7 (La.App. 1 Cir. 3/13/98), 711 So.2d 727, 732. The language of Article 1467 is very clear; the matter is admitted unless a written answer or objection is served on the party making the request within the specified time after service of the request. Prestage, 97-0524 at p. 7, 723 So.2d at 1090; Vardaman, 96-2611 at p. 9, 711 So.2d at 732-33. However, Article 1467 is not a trap set for the litigant; it provides many options for the party on whom the request is served. For example, if the party cannot answer within the specified time, the court may allow additional time. See LSA-C.C.P. art. 1467; Prestage, 97-0524 at pp. 7-8, 723 So.2d at 1090. Additionally, a party against whom a fact has been deemed admitted has the opportunity to seek to have the fact withdrawn or amended. See LSA-C.C.P. art. 1468; Vardaman, 96-2611 at p. 9, 711 So.2d at 733. However, if a party fails to take any steps available to it, the fact is admitted and, according to Article 1468, is conclusively established. Vardaman, 96-2611 at p. 9, 711 So.2d at 733.

In this matter, at no time did Dan-Cin ask for additional time to respond. Nor did it ever file any pleadings responding to the requests for admission or seeking to withdraw the deemed admissions. Further, Dan-Cin failed to file any opposition to Bollinger’s motion for summary judgment, whether by affidavit, |,Reposition, or otherwise. At the hearing on the motion for summary judgment, Dan-Cin’s argument was simply that the requests made in the interrogatories, request for production of documents, and request for admissions were asked and answered in the depositions of the owners and officers of Dan-Cin, taken at Bollinger’s request approximately one month prior to the hearing. However, the transcripts of the depositions were not introduced into evidence at the hearing, nor was a request made to hold the matter open until the depositions were transcribed and submitted. It was not until Dan-Cin filed its motion for a new trial with the deposition transcripts attached that they were made part of the record. At that time, Dan-Cin argued that the transcripts were not available any earlier. This evidence was clearly untimely and cannot be considered herein. See Vardaman, 96-2611 at pp. 5-6, 711 So.2d at 730-31. Because of the very clear language of LSA-C.C.P. arts. 1467 and 1468 and because Dan-Cin failed to file any response to the requests for admission or to seek to withdraw or amend the admissions, the trial court correctly deemed the requests for admission admitted and conclusively established as facts for the purposes of this litigation.

Consequently, the requests for admission established that on August 5, 2005, Dan-Cin entered into a contract with Bol-linger to construct a form/frame for a concrete foundation on property in Mande-ville; that on August 22, 2005, Dan-Cin entered into a second contract with Thrasher for the pouring and finishing of the concrete slab; that Dan-Cin submitted plans to Bollinger from which to construct the form/frame for the slab; that Dan-Cin and its architect made modifications to the plans and specifications, which, as amended, were complied with in their entirety by Bollinger; that Bollinger did not pour the cement for the concrete foundation; that Bollinger did not perform any finishing work on the concrete foundation; and that Bollinger’s work was completed upon construction of the form/frame for the residential foundation.

By these facts admitted and conclusively established, Bollinger has shown that Dan-Cin has no factual support for an essential element of its claim, namely that Dan-Cin can prove that Bollinger failed to perform the work in a satisfactory 17manner. Accordingly, we conclude that the trial court did not err in granting summary judgment in favor of Bollinger.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court granting summary judgment in favor of Charles Bol-linger and dismissing Dan-Cin’s suit against him. All costs of this appeal are assessed against Dan-Cin Construction Company, Inc.

AFFIRMED.

      . Also named as defendants were American Vehicle Insurance Company and Atlantic Casualty Insurance Company.


source: Caselaw Access Project

author: PARRO, J. KUHN, J., WELCH, J.,

license: Public Domain

text:
    CHARTER SCHOOL OF PINE GROVE, INC. v. ST. HELENA PARISH SCHOOL BOARD.
    No. 2007 CA 2238.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 19, 2009.
    Rehearing Denied April 2, 2009.

      Rodney M. Rabalais, Marksville, LA, for Plaintiff-Appellee Charter School of Pine Grove, Inc.
    Nelson Dan Taylor, Sr., J.K. Haynes Legal Defense Fund, Thibodaux, LA, for Defendant-Appellant St. Helena Parish School Board.
    Before PARRO, KUHN, DOWNING, McClendon, and welch, jj.
   PARRO, J.

|2The St. Helena Parish School Board (the Board) appeals a judgment in favor of the Charter School of Pine Grove, Inc. (Pine Grove), declaring that a valid contract existed between the parties for the establishment and operation of a Type 1 charter school in St. Helena Parish and that the Board breached that contract by attempting to rescind it and by not responding timely to Pine Grove’s attempts to start the charter school. The judgment ordered a contract extension for five years, beginning with the 2007-08 school year, issued a permanent injunction against the Board from interfering with the contract, and ordered the Board to promptly perform its ministerial duties to proceed with the contract. For the following reasons, we amend the judgment in part and affirm as amended.

FACTUAL AND PROCEDURAL BACKGROUND

On April 19, 2004, after months of discussions, the Board voted in a public meeting to approve a Type 1 charter school for Pine Grove. The Board’s president, James Baker, signed the contract at that meeting, and it was signed by Pine Grove on April 28, 2004. The contract, entitled “Charter School Agreement,” provided for a five-year term, beginning with the 2004-OS school year. On May 21, 2004, the Board and Pine Grove jointly filed a “Motion for Authorization to Operate Charter School” in the United States District Court for the Middle District of Louisiana, pursuant to an order in an existing desegregation case, seeking approval for Pine Grove to' operate a Type 1 charter school as outlined in the Charter School Agreement. That approval was granted in a consent order signed on December 2, 2004.

After the contract had been signed by the parties and authorized by the federal district court, the Board received a financial analysis from a school district employee, indicating that the transfer of the state’s Minimum Foundation Program (MFP) funds to Pine Grove could cause a financial hardship for the rest of the parish public school |3system, prompting the Board to attempt rescission of the Charter School Agreement. On February 5, 2005, the Board voted to rescind its prior action of entering into the contract with Pine Grove. Upon learning of this action, Gary Wheat, the Board of Elementary and Secondary Education (BESE) administrator of the state’s charter school program, put the federal grant funding process for Pine Grove on hold and told Pine Grove that since BESE had no guarantee that the school would open, Pine Grove would not be eligible for federal grant money.' Wheat then sought guidance from BESE’s attorneys and from the U.S. Department of Education, which controlled the grant funding, concerning what BESE’s future actions should be with respect to Pine Grove.

On February 15, 2005, Pine Grove filed this lawsuit against the Board, seeking a declaratory judgment, injunctive relief, a writ of mandamus, and alternatively, damages for breach of contract. After a hearing, the court declared that a valid contract had been formed and that the Board’s efforts to rescind the contract were null and void, because the votes — 3 to rescind, 2 against, and 1 abstention — did not constitute a majority of the six-person Board, as required by law for its decisions. The court further found that the Board had tried to obstruct Pine Grove’s efforts, thus potentially causing irreparable harm due to the time constraints of the contract. In a judgment dated May 13, 2005, the court granted a preliminary injunction, prohibiting the Board from disposing of, alienating, or encumbering any of the funds that would be allotted to Pine Grove. The judgment also enjoined the Board from preventing any of the ministerial duties required to allow Pine Grove to proceed and from enforcing its resolution of February 5, 2005, which purportedly rescinded or revoked approval of the Charter School Agreement. The judgment made the writ of mandamus peremptory, ordering the Board to perform the ministerial duties required to allow Pine Grove to open and ^operate a charter school, including the transfer to Pine Grove of MFP funds delivered to the Board for the operation of Pine Grove’s charter school.,

Despite this judgment, on June 1, 2005, Baker wrote a letter to Wheat, in which he said that “it is highly unlikely that the Pine Grove Charter School will open in St. Helena Parish for the upcoming school year, if ever.” The letter raised “serious concerns regarding school desegregation” issues, suggesting the ultimate purpose of the charter school proponents was “to use public school dollars as leverage to finance construction of a private school catering primarily to the white community.” The letter further emphasized that the Board “had been misinformed by the advocates and the charter school as proposed would bankrupt the St. Helena school system.” Baker asked BESE to join the Board’s efforts to resist the creation of the Pine Grove charter school.

Eventually, in light of the court’s preliminary injunction and mandamus ruling, Wheat received assurances from federal authorities that grant money could be released and paid to Pine Grove over a three-year period. In an e-mail dated November 23, 2005, Wheat apprised Pine Grove that it could apply for grant funding, but warned that once it received the first year’s grant, a thirty-six-month time period would begin running. Only eighteen months of that period could be used for planning and program design. Wheat advised that if Pine Grove did not succeed in timely opening and operating the charter school, the second and third years’ grants would be forfeited. He later testified that those grants were worth $200,000 for each year. Wheat noted that as a result of the litigation, Pine Grove’s school opening had already been delayed twelve months, and warned that if the lawsuit “drags on for another 12, 18, 24 months or more,” preventing opening of the school, Pine Grove might exhaust its eligibility for federal grant funding before the school opened.

Because of the delays inherent in the litigation process and the uncertainties engendered by the Board’s actions, Pine Grove decided not to apply for grant money until a final judgment was rendered in this litigation. In January 2006, Pine Grove filed | 6a supplemental petition, adding a request for specific performance of the contract and for an extension of its term to allow Pine Grove to have a full five-year charter.

Along with its supplemental petition, Pine Grove filed a motion to hold the Board in contempt for violating the court’s injunction and mandamus orders. It contended the Board had refused to institute the necessary contacts and communications with Pine Grove in order to permit Pine Grove to comply with provisions of the Charter School Law relating to operations, transportation, staffing, facility construction, academic performance requirements, and related matters. Pine Grove further contended that the Board had authorized its attorney to engage in a pattern of litigation and other activities designed to delay, impair, impede, and/or prevent Pine Grove’s efforts to commence operation, all for the purpose of causing its charter to lapse. After a hearing on February 24, 2006, the court found the Board was in contempt and ordered it to comply with the injunction and mandamus and to meet with Pine Grove’s representatives within thirty days toward accomplishment of that end.

Following a two-day trial on the merits in October 2006, the court rendered a judgment, decreeing that a valid contract for a Type 1 charter school existed and that the Board had breached the contract by trying to rescind it and by failing to respond appropriately to Pine Grove’s attempts to start up the charter school. The court ordered a five-year extension of the Charter School Agreement in lieu of damages, enjoined the Board from interfering with the contract, and ordered the Board to perform its ministerial duties to allow Pine Grove to proceed with the contract. The judgment was signed November 20, 2006. The Board’s motion for a new trial was denied, and this appeal followed.

FIRST ASSIGNMENT OF ERROR

The Board’s first assignment of error is that the trial court had no jurisdiction over this dispute between a charter school applicant and a local school board regarding denial of a charter school application, because the Charter School Law provides for appeal by the applicant to BESE, and Pine Grove had not exhausted its administrative | ^remedies before filing suit. The statute relied on by the Board is LSA-R.S. 17:3983(A)(2)(a)(i), which states, in pertinent part:

Each proposal for a type 1 or type 3 charter school shall first be made to the local school board with jurisdiction where the school is to be located.... If, after review as required by R.S. 17:3982, the local school board denies the proposal, or if conditions placed on the proposal by the local school board ... are not acceptable to those proposing the charter, then a proposal for a type 2 charter school may be made to the State Board of Elementary and Secondary Education.

Pine Grove contends that the Board’s argument concerning “appeal” to BESE is incorrect, because the statute only allows recourse to BESE if the charter school proposal was denied or if the conditions placed on it by the local school board were unacceptable, neither of which occurred in this case. Based on the clear wording of the statute, we agree. The contract was not denied, but was approved by the Board, and the contract’s conditions were acceptable to Pine Grove. Therefore, under the facts of this case, this statute is inapplicable. Additionally, the statute does not prescribe an “appeal” process, but provides an alternative application process that the proponents of a charter school may use if their proposal to a local school board is denied or if the contract conditions are unacceptable to the proponents. Wheat testified that he was unaware of any administrative remedies that Pine Grove could obtain through BESE in an effort to remedy the stalemate between the parties. Perhaps Pine Grove could have decided to apply to BESE for a Type 2 charter school, but it was not required to do so before filing suit. We conclude, therefore, that LSA-R.S. 17:3983(A)(2)(a)(i) did not in any way affect the jurisdiction of the district court or this court over this litigation.

SECOND ASSIGNMENT OF ERROR

The Board’s second assignment of error is that the trial court abused its discretion and exceeded its jurisdiction in granting injunctive relief and mandamus, in finding the Board in contempt, in ordering specific performance of the contract, in extending the contract in contravention of applicable statutes, and in ignoring the discretionary duties entrusted to the Board under the Charter School Law. The Board |7also claims the contract itself was null and void, because the Board did not follow the required legal procedures before voting to approve the Charter School Agreement. As this assignment of error includes multiple issues, we will address them individually-

Validity of Contract

The first matter to be addressed is the validity of the Charter School Agreement. Louisiana Revised Statute 17:3983(D) states that before approving a charter for a Type 1 school, the local school board considering the proposal must hold a public meeting for the purpose of considering the proposal and receiving public input. Such a meeting is to be held after reasonable efforts have been made to notify the public of the meeting and its content. The Board contends it did not hold the requisite public meeting before voting in favor of the contract, and therefore, the contract is null and void. The evidence simply does not support this argument. There are newspaper clippings in the record that show publication in the local newspaper of the minutes of several meetings of the Board during which Pine Grove’s charter school proposal was discussed. The minutes of one of those meetings stated that the charter school proposal would be discussed further at the next meeting and gave the date of that meeting. All of those meetings were open to the public, and at some of them, members of the public did appear and ask questions concerning the charter school proposal. Moreover, the Board represented to the federal district court that the Charter School Agreement was a valid contract between the parties and asked for authorization to open and operate a Type 1 charter school in accord with its provisions. This constitutes an admission by the Board that the contract was valid.

However, the Board also contends that the contract could not be entered into between the parties, because the St. Helena Parish public school system had been | ^declared to be in academic crisis, and thus, pursuant to LSA-R.S. 17:3982(A)(1 )(b), the Board could not act upon Pine Grove’s application for a Type 1 charter school. The only testimony to that effect was from Baker, who said, in response to questions about the school system’s financial situation, that the state department of education had classified the system as being in “financial crisis and academic crisis.” However, there was no indication of when that classification might have been made or whether the Board had been advised of that situation before it entered into the Charter School Agreement with Pine Grove. Nor was there any indication that this information was communicated to Pine Grove, as is also required by LSA-R.S. 17:3982(A)(l)(b). The Board simply did not support that statement with sufficient evidence to establish the invalidity of the contract it signed. Therefore, we agree with the trial court that the Charter School Agreement was a valid contract between the Board and Pine Grove.

Breach of Contract

We also agree that the Board breached that contract by trying to withdraw its approval or rescind the contract without having any of the statutory grounds for such action. Louisiana Revised Statute 17:3992(C) provides:

A school charter may be revoked by the authority that approved its charter upon a determination by an affirmative vote of at least a majority of the local board membership ... that the charter school or its officers or employees did any of the following:
(1) Committed a material violation of any of the conditions, standards, or procedures provided for in the approved charter.
(2) Failed to meet or pursue within the agreed timelines any of the academic and other educational results specified in the approved charter.
(3) Failed to meet generally accepted accounting standards of fiscal management.
(4) Violated any provision of law applicable to a charter school, its officers, or employees.

There was no showing that when the Board attempted to rescind the contract, it did so on the basis of any of the above grounds. Rather, the testimony establishes that the | .Board’s attempt to withdraw its consent was based solely on an estimate showing that the financing of the other public schools in the St. Helena Parish school system might be adversely affected by the transfer of MFP funds to Pine Grove’s charter school. This is not one of the statutorily mandated grounds for which a charter school contract can be revoked. Moreover, the contract itself provides that it could be terminated for any grounds provided by LSA-R.S. 17:3991-3999 or for any material breach of the agreement, none of which occurred or formed the basis of the Board’s decision. Therefore, we agree with the trial court that the Board’s attempt to rescind the contract without having any of the grounds specified in the contract or the Charter School Law, along with the Board’s delaying tactics, constituted a breach of the contract.

Injunctive Relief

The next issue for our consideration is whether the trial court erred in granting injunctive relief. An injunction shall be issued in cases where irreparable injury, loss, or damage may otherwise result to the applicant. LSA-C.C.P. art. 3601(A). Irreparable injury is that which cannot be adequately compensated with monetary damages. See Lassalle v. Daniels, 96-0176 (La.App. 1st Cir.5/10/96), 673 So.2d 704, 709, writ denied, 96-1463 (La.9/20/96), 679 So.2d 435, cert. denied, 519 U.S. 1117, 117 S.Ct. 963, 136 L.Ed.2d 848 (1997). The issuance of a permanent injunction takes place only after a trial on the merits, in which the burden of proof must be carried by a preponderance of the evidence, rather than a prima facie showing. See Hughes v. Muckelroy, 97-0618 (La.App. 1st Cir.9/23/97), 700 So.2d 995, 998. The trial court has great discretion to grant or deny injunctive relief, and its determination should not be disturbed ab sent manifest abuse of discretion. State through, Louisiana State Bd. of Examiners of Psychologists of Dep’t of Health aoid Human Services v. Atterberry, 95-0391 (La.App. 1st Cir.11/9/95), 664 So.2d 1216, 1220.

The Charter School Agreement between the parties was signed in April 2004 and provided for a five-year term, beginning with the 2004-05 school year. This case was filed in February 2005 and was tried in October 2006. By that time, two full school years of the original contractual term had passed and another had already commenced without the school being opened. According to LSA-R.S. 17:3983(A)(4)(d), a charter |inschool is required to begin operation by not later than twenty-four months after the final approval of the charter, unless the school is engaged in desegregation compliance issues, in which case it must begin operation no later than thirty-six months after approval of the charter. If such operation does not occur, the charter for that school is automatically revoked, although a new charter may be proposed if the limit on the total number of charter schools allowed in the state, ie., 42, has not been reached. See LSA-R.S. 17:3983(A)(4)(a) and (d). These simple facts and the statutory requirements demonstrate that the Board’s delaying tactics and this lawsuit had, by the time of trial, already caused irreparable harm, because the Pine Grove charter school had not been able to commence operations and its very existence was threatened unless the court granted it equitable relief.

Joseph Lombardo, a founding member of Pine Grove and its current president, testified that before the Board attempted to rescind the contract, Pine Grove had an option to purchase a forty-acre piece of property on which to build the school; that option expired with the passage of time. Pine Grove had also taken many preliminary steps toward opening the charter school, including having the school site surveyed, having a wetland survey performed, purchasing insurance, advertising throughout the country for teachers, enrolling student applicants, holding community meetings to promote the charter school, advertising the school in various educational journals, and training the persons selected as principal and student life director. All of those activities were halted when it became clear that the Board would continue to oppose Pine Grove’s efforts to open the school. Because of the long delay during this litigation, all of those preliminary steps will have to be re-done. At the present time, the 2008-09 school year has already commenced. Thus, even with the trial court’s contract extension in its judgment, which extended the contract for five years beginning with the 2007-08 school year, one full school year of that extension has passed and another has begun with no progress toward the opening of the school. We note that for the last four years, Pine Grove has been deprived of the opportunity to open a new public school in which innovative teaching methods might transform the learning experience for the children of St. Helena Parish. That injury is irreparable in money damages. ^J^Moreover, the purposes underlying the Charter School Law would be completely undermined if a local school board could, simply by stalling and delaying, prevent a charter school from opening even when it is proceeding in good faith and in reliance on that board’s contractual approval of its existence. Accordingly, we find that Pine Grove proved, by a preponderance of the evidence, that without in-junctive relief, it would suffer irreparable harm.

However, the Board claims injunc-tive relief is not permissible, because LSA-C.C.P. art. 3601(A) and LSA-R.S. 13:4062 prohibit any court from ordering such relief to compel the expenditure of public funds by any state department, board, or agency, when the director of such department, board, or agency certifies that the expenditure of such funds would create a deficit in the funds of said agency. The Board contends that because Baker testified that the transfer of MFP funds to Pine Grove would create a deficit in the Board’s funds, the court could not compel the expenditure of those funds by the Board for the charter school. We disagree. Many provisions of the constitution and revised statutes contain definitions that differentiate between state agencies and political subdivisions, such as local school boards. After reviewing these and many other similar provisions of state law, we conclude that LSA-C.C.P. art. 3601(A) and LSA-jR.S.12 13:4062 do not apply to political subdivisions, such as the Board. Moreover, the funds at issue do not belong to the Board, but are federal, state, and/or local funds that are transferred to the Board to be distributed and administered for the benefit of all the public school children within the parish.

After considering all the Board’s arguments and examining the facts of this situation and the law applicable to injunctive relief, we conclude that the trial court did not abuse its vast discretion in granting injunctive relief to Pine Grove in this case. Mandamus

The Board also contests the trial court’s implicit mandamus ruling. The pertinent portion of the judgment states that “the [Board] is ordered to promptly perform their (sic) ministerial duties to proceed with the contract.” The Board contends this provision of the judgment constitutes a writ of mandamus against it that was not appropriate, because the charter school program involves “a conglomeration of indeterminate discretionary decisions” by the Board in evaluating the viability and soundness of a proposed charter school operation. These decisions must be made after the charter school contract has been preliminarily approved in order to define and negotiate the respective responsibilities of each party to the contract, to advance the process toward opening the school, and then to monitor the operations of the school for compliance with all applicable laws and regulations. The Board contends the court abused its discretion in attempting to define the Board’s discretionary actions and evaluative decisions as “ministerial.”

Article 3863 of the Louisiana Code of Civil Procedure provides, in pertinent part, that a writ of mandamus may be directed to a public officer to compel the performance of a ministerial duty required by law. In re Belle Co., L.L.C., 06-1077 and 1078 (La.App. 1st Cir.12/28/07), 978 So.2d 977, 982, writs denied, 08-0220 and 0229 (La.3/24/08),13 977 So.2d 957 and 958. Mandamus is an extraordinary remedy, which must be used by the courts sparingly to compel something that is clearly provided by law, and only where it is the only available remedy or where the delay occasioned by the use of any other remedy would cause an injustice. See LSA-C.C.P. art. 3862; Allen v. St. Tammany Parish Police Jury, 96-0938 (La.App. 1st Cir.2/14/97), 690 So.2d 150, 153, writ denied, 97-0599 (La.4/18/97), 692 So.2d 455. Moreover, mandamus will not lie in matters in which discretion and evaluation of

evidence must be exercised. The remedy of mandamus is not available to command performance of an act that contains any element of discretion, however slight. Sund v. St. Helena Parish Sch. Bd., 05-2473 (La.App. 1st Cir.5/5/06), 935 So.2d 219, 221, writ denied, 06-1392 (La.9/22/06), 937 So.2d 392. Further, mandamus is to be used only when there is a clear and specific legal right to be enforced or a duty which ought to be performed. It never issues in doubtful cases. City of Hammond v. Parish of Tangipahoa, 07-0574 (La.App. 1st Cir.3/26/08), 985 So.2d 171,181.

The question in this case is whether the performance sought by Pine Grove in its suit is of a ministerial duty required by its contract or by operation of law, or a matter in which discretion and evaluation of evidence must be exercised by the Board. After thoroughly reviewing the Charter School Agreement and the evidence presented by both parties in this case, we agree that there are discretionary elements in the steps the Board must take in order to perform its duties under the contract. Wheat testified that approval of the initial Charter School Agreement is only the beginning of a process leading up to and including the operation of a charter school. That process requires the local school board to review the steps taken by the charter school proponents to determine whether all statutory requirements have been followed and whether the school is ready to open. After the school is fully operative, the local school board has continuing oversight to ensure that the charter school is following the conditions, standards, and procedures specified in its charter; that it is meeting the academic and other educational results specified in its charter; that its finances are being managed responsibly and in accord with generally accepted accounting standards; and that it is operating in compliance with all provisions of law applicable to a charter school, its | ^officers, and its employees. See LSA-R.S. 17:3992(C). Such oversight involves an evaluative function that is inherently discretionary to some extent. Therefore, given the strict parameters within which mandamus can be ordered, we agree with the Board that such a remedy was legally inappropriate in this case. To the extent the trial court’s judgment constituted a mandamus order, that portion of the judgment was legal error.

Specific Performance

However, this conclusion does not end our inquiry concerning the enforcement of the Charter School Agreement. As previously noted, Pine Grove amended its petition to seek specific performance of the contract, and the judgment of the trial court implicitly granted that remedy in ordering the Board to “promptly perform” its ministerial duties to proceed with the contract. The Board has challenged the trial court’s right to grant specific performance of the Charter School Agreement.

Upon an obligor’s failure to perform an obligation to do, the granting of specific performance is at the discretion of the court. See LSA-C.C. art.1986. Under Louisiana’s civil law system, specific performance is the preferred remedy for breach of contract. An obligee enjoys the right to demand, insofar as is practicable, the specific performance of the obligation. Lombardo v. Deshotel, 94-1172 (La.11/30/94), 647 So.2d 1086, 1090; see LSA-C.C. art.1986. An obligee has a right to specific performance for breach of contract except when it is impossible, greatly disproportionate in cost to the actual damage caused, no longer in the creditor’s interest, or of substantial negative effect upon the interests of third parties. J. Weingarten, Inc. v. Northgate Mall, Inc., 404 So.2d 896, 901 (La.1981). When specific performance is impracticable or when the court, in its discretion, refuses to grant specific performance of an obligation to do, the court may instead fix damages. Lombardo, 647 So.2d at 1090; Bourgeois v. Dunn, 01-1185 (La.App. 1st Cir.6/21/02), 822 So.2d 708, 711. The remedy of specific performance may, under some circumstances, be enforced by injunction. The petitioner must have a substantive right to specifically enforce an obligation in order for an injunction to be used as a procedural remedy to enforce the obligation. See J. Weingarten, Inc., 404 So.2d at 899.

| ;r,Given this court’s conclusion that the contract between the parties in this case is valid, Pine Grove has a substantive right to enforce its provisions. Moreover, this court has further found that the Board breached that contract and that Pine Grove will suffer irreparable harm as a result of that breach, thus justifying injunctive relief. The remaining issues concerning the propriety of the remedy of specific performance include whether it is impracticable or impossible, greatly disproportionate in cost to the actual damage caused, no longer in the creditor’s interest, or of substantial negative effect upon the interests of third parties. According to the Charter School Agreement, the Board is to: (1) comply with the terms of the agreement and all applicable local, state, and federal laws, along with all regulations adopted by BESE; (2) defend and indemnify Pine Grove against claims brought against it as a result of the operation of district public schools other than the charter school; (3) provide transportation to the charter school as it does to any other public school in the district, and be reimbursed by Pine Grove for this service on a monthly basis; (4) forward to Pine Grove, within five days of receipt, any federal funds received on behalf of and for the benefit of the charter school students; (5) distribute monthly per-pupil MFP funding, as calculated by BESE, to the charter school within five days of receipt from BESE; (6) include in those monthly payments the local tax dollars allocated to the charter school; (7) turn over to Pine Grove, within five days of receipt, any other funding allowed to a public school student by local, state, or federal funds, which funds follow those children wherever they attend school, including the charter school; and (8) execute all documents to establish the exclusive authority of the education provider of Pine Grove to hire and fire staff and faculty and to establish the salaries for said personnel.

None of these duties are impossible or impracticable to perform, and it certainly is still in Pine Grove’s interest to have these obligations fulfilled by the Board. The more complex assessments involve consideration of whether the costs of specific performance are greatly disproportionate in cost to the actual damage caused by the |i(ibreach of contract or whether specific performance would have a substantial negative effect upon the interests of third parties. The Board contends that specific performance of this contract would cause financial hardship to the other public schools in the district, because a substantial portion of the funds needed for them operations would be diverted to the charter school, thus causing severe negative consequences to the school district and the children who seek an education in the other public schools in the district. The Board presented evidence, through the testimony of Amy Holland, supervisor of business services for the Board, that the transfer of MFP funds to Pine Grove would cause financial hardship to the district as a whole. Holland testified that opening the charter school would “bankrupt” the system and further stated that the charter school would get more money per pupil than the other public schools. However, she later admitted that she did not actually know about the per-pupil amount and had looked only at gross revenue loss without considering the corresponding reduction of expenses that would occur in the other public schools when some of their students were being educated at the charter school. Furthermore, she had not considered that some of the costs would be reimbursed by Pine Grove, such as any transportation provided by the school district. Therefore, we are not persuaded by this testimony or evidence that the costs of specific performance are greatly disproportionate to the actual damage caused by the breach of contract or that specific performance would have a substantial negative effect on the interests of third parties.

In addition, we are struck by the Board’s insistence that an allocation of “per-pupil” funds to a charter school is somehow a depletion of the funds available to the parish public school system. This argument seemingly considers the charter school as something other than a public school, when the legislation clearly includes such schools within the public school system. Moreover, with the addition of federal grant money for the charter school, the public school system will actually have more total funds available for the education of public school children within the parish.

Thei'efore, after considering all the jurisprudential factors for and against the enforcement of specific performance of this contract, we conclude that Pine Grove established its right to specific performance. We interpret the trial court’s statement 117ordering the Board to “promptly perform their (sic) ministerial duties to proceed with the contract” as ordering specific pei'formance of the contract, and find no legal error in ordering such x-emedy. Contempt of Court

The Board contends the trial couiT abused its discretion in finding the Board in contempt of its preliminary injunction and mandamus ruling. Contempt of court is defined in LSA-C.C.P. art. 221 as “any act or omission tending to obstruct or intei-fere with the orderly administration of justice, or to impair the dignity of the court or inspect for its authority.” There are two types of contempt. A direct contempt is one committed in the immediate view and pi-esence of the court and of which it has personal knowledge. LSA-C.C.P. art. 222. A constructive contempt of court is any contempt other than a direct one, including willful disobedience of any lawful judgment, order, mandate, writ, or process of the court. LSA-C.C.P. art. 224(2).

In this case, the Board is alleged to have committed constructive contempt of the coui't’s May 13, 2005 judgment, based on its alleged intentional and bad faith refusal to institute the contacts and cooperation needed for Pine Grove to meet its obligations under the Charter School Law and in willfully engaging in a pattern of dilatory tactics designed to prevent Pine Grove’s efforts to commence operations of the school and to cause its charter to lapse. To find a person guilty of constructive contempt, it is necessary to find that he or she violated the order of the court intentionally, knowingly, and purposely, without justifiable excuse. Barry v. McDaniel, 05-2455 (La.App. 1st Cir.3/24/06), 934 So.2d 69, 73. The trial court is vested with gx'eat discretion in determining whether a party should be held in contempt of court, and its decision will be reversed only when the appellate court discerns a clear abuse of that great discretion. Haydel v. Pellegrin, 07-0922 (La.App. 1st Cir.9/14/07), 970 So.2d 629, 632.

The Boai'd argues that the finding of contempt was an abuse of discretion, 118because by the time the motion for contempt was filed, Pine Grove had made a “business decision” not to begin the grant application process until this litigation was resolved, and it did not disclose that decision to the coui’t. Therefore, according to the Boai'd, it was Pine Grove’s decision, rather than the Board’s action or inaction, that was delaying implementation of the contract. This ai'gument is circular. The evidence supports the court’s conclusion that the Board was engaged in delaying tactics, despite the court’s order. Following the preliminary injunction, the Board continued to ask for infoi'mation that had already been provided to it in connection with the consent order in the federal court and sent a letter to BESE on June 1, 2005, in which it asked BESE to join it in resisting Pine Grove’s attempts to open the chai'ter school on the basis of spurious desegregation issues that had already been addressed by the federal court in its consent order. Thus, Pine Grove’s “business decision” was caused by the Board’s dilatory tactics, which, if they precluded Pine Grove from opening the charter school, would result in the forfeiture of federal grant money. Had the court known about Pine Grove’s decision, that knowledge would have supported, rather than undermined, the court’s conclusion that the Board was still stalling in an effort to defeat Pine Grove’s ability to move toward opening the charter school. Moreover, the court had ample other evidence of the Board’s intentional and active resistance to Pine Grove’s efforts, including its refusal to meet with Pine Grove’s representatives to discuss substantive matters that needed to be addressed in order to facilitate the charter school’s opening. Therefore, the court did not abuse its discretion in holding the Board in contempt.

Extension of the Contract Term

The trial court judgment ordered “that the contract is extended for five (5) years beginning with the 2007-2008 school year.” The Board contends that such an extension was impermissible due to the requirement of LSA-R.S. 17:3983(A)(4)(d) that mandates commencement of a charter school not later than thirty-six months after final approval of the charter if that school is engaged in desegregation compliance issues and further mandates that if operations do not commence within that time, the charter is automatically revoked. Therefore, the Board argues that the charter lapsed as a matter of law and that the contract extension has no legal effect. We disagree. The 119Board breached this contract. Because of the Board’s breach of the contract, Pine Grove could not proceed within the time limits specified by the contract or by statute. This litigation has further delayed performance of the contract. If this court were to accept the Board’s argument, it would allow one party to a contract to prevent the other party from performing the contract until its contractual term or statutory term had elapsed and then claim the court had no right to enforce the contract, because it had expired. We have concluded that Pine Grove is entitled to specific performance of the Charter School Agreement. In order for that to occur, it is entitled to a charter with an initial period of five years. That right cannot be extinguished by the Board’s delaying tactics. Therefore, the trial court was within its legal and equitable authority to extend the term of the contract in order to effectuate the objectives of the contract, the purpose of the Charter School Law, and its judgment. Because additional time has elapsed and will continue to run during this litigation, the extension of the contract term will be modified to provide that the contract will begin to run anew for five (5) years beginning with the first school year following a final judgment in this litigation. See LSA-C.C.P. art. 2164.

THIRD ASSIGNMENT OF ERROR

The Board’s third assignment of error is that the court erred in determining that the Board could not rescind approval of Pine Grove’s charter school application: when that approval was made without compliance with the specific mandates and procedures required by the Charter School Law; when the Board determined that its approval was financially ill advised and detrimental to the public school system; and when, at the time of the Board’s rescission, Pine Grove had not taken any substantial steps in implementing the plans in their charter school application. The Board’s arguments on these issues have been addressed elsewhere in this opinion, so we will merely summarize our conclusions concerning them.

Addressing the last statement first, we again point out that the evidence shows it is simply factually incorrect to assert that Pine Grove had not taken any substantial steps in implementing the plans in their charter school application. Before the Board voted to rescind the Charter School Agreement, Pine Grove had entered into a contract Lpwith a national educational group that would handle the day-to-day administration of the charter school. It had a purchase option on property for the school and had conducted various surveys and appraisals of the site. It had advertised for students and faculty, had held community meetings, had taken enrollment applications from over two hundred students, and had performed many other steps toward opening the charter school. These steps were halted due to the Board’s intransigence. Therefore, this contention is without merit.

We have previously addressed the Board’s argument that it did not have the requisite public meetings before approving the Charter School Agreement, and have concluded that there were public meetings and that notice of those meetings was sufficient to satisfy the statutory mandates. We have also discussed the Board’s claim that its rescission of the agreement should have been upheld by the court due to the financial information developed by the Board following its entry into the contract, and have determined that even if those financial estimates had been adequately established by the evidence, they did not constitute a ground for rescission under either the Charter School Law or the contract at issue. Therefore, we find no merit in the arguments raised in this assignment of error.

CONCLUSION

Based on the foregoing, we interpret the judgment as ordering specific performance of the contract by the Board, and we amend the portion of the judgment extending the contract term of the Charter School Agreement to provide that the contract will run for five (5) years beginning anew with the first school year following a final judgment in this litigation. In all other respects, the judgment of November 20, 2006, is affirmed. All costs of this appeal in the amount of $4,867 are assessed to the Board.

AMENDED IN PART AND AFFIRMED AS AMENDED.

KUHN, J., concurs and assigns reasons.

WELCH, J., concurs in part and dissenting in part with reasons assigned.

KUHN, J.,

concurring.

li Louisiana Revised Statutes 17:3972 A sets forth the legislative intent in enacting the “Charter School Demonstration Programs Law,” La. R.S. 17:3971 et seq. As set forth in Section 3972 A, it is the legislature’s stated purpose to authorize experimentation by parish school boards “by authorizing the creation of innovative kinds of independent public schools,” with the express intention that “the best interests of at-risk pupils shall be the overriding consideration in implementing the provisions of this Chapter.” With that interest in mind, I concur to point out that the provisions of La. R.S. 17:3983(A)(4)(d) do not provide a basis for terminating a valid contract, whose objective has been frustrated by one of the parties. To allow the St. Helena Parish School Board, a signatory to the Charter School Agreement, to engage in delay tactics and then find merit in their contention that the time limits of Section 3983(A)(4)(d) have not been met, would seriously undermine the legislature’s intent in enacting this Chapter for the purpose of providing alternative learning environments to benefit educators, students, and the public. The majority properly rejects the Board’s arguments in this respect.

WELCH, J.,

CONCURRING IN PART, DISSENTING IN PART.

hi agree with the majority insofar as they conclude that the trial court and this court has jurisdiction over this dispute; that the Charter School Agreement was a valid contract between the Board and Pine Grove; that the Board’s attempt to rescind the contract without any statutory grounds or grounds set forth in the contract, along with the Board’s delaying tactics constituted a breach of the contract; and that mandamus was inappropriate. However, I believe that the trial court erred in granting injunctive relief, in ordering specific performance, and in extending the contract for five years, and I would reverse those portions of the judgment of the trial court. The trial court should have awarded damages for the Board’s breach of contract. Therefore, I respectfully dissent in part from the majority opinion.

The trial court’s judgment provided for a five year extension of the charter school agreement beginning with the 2007-2008 school year. The trial court’s reasons for judgment reflect that this five-year extension was “[a]s alternate relief to [monetary] damages” for the Board’s breach of contract. This ruling was erroneous.

Louisiana Revised Statutes 17:3983(A)(4)(d) provides:

A charter school shall begin operation by not later than twenty-four months after the final approval of the charter, unless such charter school is engaged in desegregation compliance issues and therefore must begin operation by not later than thirty-six months. If such operation does not occur, the charter for that school shall be automatically revoked although a new charter may be proposed if the limit on the total number of charter schools allowed in the state has not been reached.

|2The record reflects that Pine Grove obtained final approval of its charter by April 28, 2004, when its representative signed the Charter School Agreement. Since desegregation compliance issues were involved, Pine Grove had thirty-six months (or until the end of April 2007) within which to begin operation as a charter school. Pine Grove did not begin operation as a charter school by the end of April 2007. Therefore, its charter was automatically revoked by operation of law. The trial court had no authority — statutory or otherwise — to grant an extension of the time period within Pine Grove was required to begin operation as a charter school.

Furthermore, the trial court also abused its discretion in ordering specific performance of the contract because specific performance is impossible. Upon an obligor’s failure to perform an obligation to do, the granting of specific performance is at the discretion of the court. If specific performance is impracticable, the court may allow damages. See La. C.C. art.1986. The majority reasons that specific performance was proper because the eight obligations of the Board, as set forth in the charter school agreement, are not impossible. However, the Board’s obligations under the charter school agreement are predicated on Pine Grove either operating as a charter school or having a valid charter and working toward becoming a charter school in operation. And, since Pine Grove’s charter was automatically revoked by operation of law and the evidence established that Pine Grove had taken very few, if any, formidable steps toward establishing a charter school in operation, the trial court abused its discretion in ordering specific performance.

While I believe that both the trial court and the majority are trying to fashion an equitable remedy, 1 do not believe that the law affords the remedy of specific performance under the circumstances of this case. Therefore, I respectfully cqncur in part and dissent in part.

      . The statutory basis for such a contract is found in LSA-R.S. 17:3971-4001, sometimes referred to in this opinion as the Charter School Law.

      . This unpublished action was taken in Hall v. St. Helena Parish School Board, No. 52-1068-D (M.D.La.2004).

      . On March 17, 2005, the Board removed the case to the United States District Court for the Middle District of Louisiana, It was remanded to the state court on April 18, 2005, and the Board appealed the remand order to the United States Court of Appeals for the Fifth Circuit. Finding that the Board had not pled facts implicating the jurisdiction of the federal courts, this appeal was dismissed. Charter School of Pine Grove, Inc. v. St. Helena Parish School Board, 417 F.3d 444 (5th Cir.2005).

      . The court cited LSA-R.S. 17:3992(C), which provides that a school charter may be revoked by the school board upon a determination by an affirmative vote of at least a majority of the local board membership that the charter school or its officers or employees had done or failed to do certain things enumerated in the statute.

      . This judgment was rendered by A. Clayton James, Judge pro tempore presiding.

      . The Board filed an appeal of this judgment with this court, but the appeal was dismissed as abandoned after no appellate brief was filed.

      . This hearing and the trial on the merits were presided over by Judge Elizabeth P. Wolfe.

      . The language of the cited statute was that in effect in 2004. It was amended by 2005 La. Acts, 1st Ex.Sess., No. 35, § 1, but the amendment does not affect this issue.

      . The trial court sustained an objection to any testimony concerning whether specific meetings had been called by the Board for the purpose of discussing charter schools, and the Board proffered Baker's testimony that the Board did not comply with the law and did not hold public meetings that the law required. Although we find no error in the court's evidentiary ruling, we have considered this argument in order to fully address the Board's arguments on appeal.

      . This sub-paragraph (b) was added to the statute after the Pine Grove charter contract was signed. See 2005 La. Acts, 1st Ex.Sess., No. 35, § 1. Therefore, we consider it inapplicable to that contract. However, in an abundance of caution, we address this argument, because LSA-R.S. 17:3999 requires charter schools to comply with amended provisions of the law within ninety days of their effective date.

      . See, e.g., LSA-R.S. 3:313(7) (‘"Political subdivision' means a parish, municipality, and any other unit of local government, including a school board and a special district, authorized by law to perform governmental functions.”); LSA-R.S. 3:313(10) (“'State agency' means any department, office, council, or agency of the state, or any public benefit corporation or authority authorized by the laws of the state.”); LSA-Const. Art. VI, § 44(2) (" 'Political subdivision' means a parish, municipality, and any other unit of local government, including a school board and a special district, authorized by law to perform governmental functions.”); LSA-R.S. 13:5102(A) (" ‘State agency’ does not include any political subdivision or any agency of a political subdivision.”); LSA-R.S. 13:5102(B) ("...'[Political subdivision' means ... [a]ny parish, municipality, special district, school board, ... or an agency or subdivision of any of these, and other public or governmental body of any kind which is not a state agency.”); LSA-R.S. 39:1527(3) (" ‘State agencies’ means the executive branch, the legislative branch, and the judicial branch of state government and the officers and employees thereof, but does not include parish officials ... or their respective officers, deputies, employees, or appointees.”); LSA-R.S. 23:1034 ("For purposes of this Section, 'employees of the state’ means the employees of 'state agencies’ as defined by R.S. 39:1527[3], Employees of political subdivisions shall be provided compensation under this Section by the governing authorities of their respective political subdivisions.”); LSA-R.S. 49:662(A) & (B) (" ‘State agency’ means any board, commission, department, agency, or institution, in-eluding colleges and universities, in the executive, legislative, or judicial branch of the State, or any official or authorized representative of said agency. 'Political subdivision’ means any parish, municipality, or any other unit of local government, including a school board and a special district, authorized by law to perform governmental functions.”); LSA-Const. Art. VII, § 14(A) ("Except as otherwise provided by this constitution, the funds, credit, property, or things of value of the state or of any political subdivision shall not be loaned, pledged, or donated to or for any person, association, or corporation, public or private. Except as otherwise provided in this Section, neither the state nor a political subdivision shall subscribe to or purchase the stock of a corporation or association or for any private enterprise.”)

      . We note also that the only case cited in which a local school board was described as an agency of the state was decided before the Louisiana Constitution was revised in 1974; that case cited constitutional provisions which have since been revised to differentiate between state agencies and political subdivisions. See Jefferson Parish Sch. Dist. v. Jefferson Parish Democratic Exec. Comm., 246 La. 51, 163 So.2d 348, 354 (1964). Moreover, the holding of that case was specifically overruled by the supreme court in Caddo Parish Sch. Bd. v. Board of. Elections Supervisors of Caddo Parish, 384 So.2d 448, 453 (La. 1980). Therefore, we do not believe it remains good authority for the statement that local school boards are state agencies as administrators of public education.

      . This is a reciprocal obligation; Pine Grove is required to defend and indemnify the Board for any claims brought against the Board as a result of the operations of the charter school. To accomplish this reciprocal obligation, the parties are to purchase liability insurance in an amount sufficient to satisfy all potential claims, with each party naming the other as an additional insured on its policy.

      . Having found that a mandamus ruling was legally inappropriate, we address our discussion only to whether the court could reasonably have held the Board in contempt for refusing to obey its preliminary injunction order.


author: WALTER J. ROTHSCHILD, Judge.

text:
    Ray FEYERABEND v. BOOMTOWN CASINO.
    No. 08-CA-807.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 25, 2009.

      Michael S. Zerlin, Attorney at Law, Thi-bodaux, LA, for Plaintiff/Appellant.
    Joseph B. Guilbeau, Attorney at Law, North Metairie, LA, for Defendant/Appel-lee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS, and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge.

|2In this worker’s compensation case, claimant, Ms. Ray Feyerabend, appeals from the May 12, 2008 judgment of the worker’s compensation judge which granted the Exception of Prescription filed by defendant, Louisiana-I Gaming, a Louisiana Partnership in Commendam d/b/a/ Boomtown Belle Casino (hereinafter referred to as “Boomtown”) and dismissed claimant’s claim against Boomtown for worker’s compensation indemnity benefits. For the following reasons,.we affirm.

FACTS AND PROCEDURAL HISTORY

Ray Feyerabend was formerly employed by Boomtown. According to Ms. Feyera-bend, she was involved in two work-related accidents during the course of her employment. On February 2, 1998, while working as a cashier on the casino vessel, Ms. Feyerabend tripped while carrying two cans of coins, causing her to suffer injuries primarily to her neck and left arm. The second accident, which is the subject of this worker’s compensation litigation, occurred on February 29, 2000 while Ms. Feyerabend was working as a revenue auditor in the main casino complex. According to Ms. Feyerabend, while she was walking from the casino ^vessel into the main complex building, she slipped and fell on the gangplank “on the strip that separates the foyer from the complex in the doorway.”

After the February 29, 2000 accident, Ms. Feyerabend continued working at Boomtown and performing her regular duties until February 19, 2002. On May 6, 2002, Ms. Feyerabend filed suit against Boomtown in the 24th Judicial District Court asserting that she was employed by Boomtown as a Jones Act seaman and seeking maintenance and cure, as well as damages, for both the February 2, 1998 and February 29, 2000 accidents. Boom-town filed a Motion for Summary Judgment asserting that Ms. Feyerabend was not a Jones Act seaman at the time of the February 29, 2000 accident. After a hearing on June 13, 2006, the trial judge granted Boomtown’s Motion for Summary Judgment and dismissed Ms. Feyerabend’s claims under the Jones Act for the February 29, 2000 accident.

On June 2, 2006, shortly before Ms. Feyerabend’s Jones Act claims regarding the February 29, 2000 accident were dismissed, Ms. Feyerabend filed a Disputed Claim for Compensation with the Office of Worker’s Compensation seeking benefits for injuries to her head, wrist, hip, and ankle as a result of the February 29, 2000 accident. On February 1, 2008, Boomtown filed an Exception of Prescription, arguing that Ms. Feyerabend’s claim for worker’s compensation benefits had prescribed and should be dismissed. After a hearing on March 3, 2008, the worker’s compensation judge took the matter under advisement. On May 12, 2008, the worker’s compensation judge rendered a judgment in favor of Boomtown, granting its Exception of Prescription and dismissing Ms. Feyerabend’s claim for worker’s compensation indemnity benefits based on a finding that: 1) Ms. Feyerabend did not file her claim for worker’s compensation benefits timely; and 2) Ms. Feyerabend did not meet her burden of proof in ^establishing that an interruption of prescription existed regarding her entitlement to indemnity benefits. It is from this judgment that Ms. Feyera-bend appeals.

LAW AND DISCUSSION

On appeal, Ms. Feyerabend argues that the worker’s compensation judge erred in finding 1) that her worker’s compensation benefits were not timely filed; and 2) that she did not meet her burden of proof in establishing that an interruption of prescription existed as to her entitlement to indemnity benefits. Boomtown responds that the worker’s compensation judge correctly concluded that Ms. Feyerabend did not timely file her claim and that she did not meet her burden of proof in establishing that an interruption to the running of prescription occurred.

LSA-R.S. 23:1209(A) provides:

A. In case of personal injury, including death resulting therefrom, all claims for payments shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter, or unless within one year after the accident a formal claim has been filed as provided in Subsection B of this Section and in this Chapter. Where such payments have been made in any case, the limitation shall not take effect until the expiration of one year from the time of making the last payment, except that in cases of benefits payable pursuant to R.S. 23:1221(3) this limitation shall not take effect until three years from the time of making the last payment of benefits pursuant to R.S. 23:1221(1), (2), (3), or (4). Also, when the injury does not result at the time of, or develop immediately after the accident, the limitation shall not take effect until expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the proceedings have been begun within two years from the date of the accident.

Thus, under LSA-R.S. 23:1209(A), worker’s compensation claims are barred unless filed: 1) within one year from the date of the accident; 2) one year from the last compensation payment for total disability or three years from the last payment of supplemental earnings benefits; or 3) one year from the time the injury develops if not immediately manifested, but no more than two years after the | ¿accident. Jackson v. General Motors Truck Plant, 38, 987, p. 5 (La.App. 2 Cir. 10/27/04), 886 So.2d 603, 606.

The party pleading prescription generally has the burden of proving it. Frazier v. Deltide Fishing and Rental Tool, Inc., 03-53, p. 5 (La.App. 5 Cir. 5/28/03), 848 So.2d 143, 146. However, when prescription is evident from the face of the pleadings, the claimant bears the burden of showing that the action has not prescribed. Id. Accordingly, the claimant must prove that prescription was interrupted, suspended, or renounced. Bracken v. Payne and Keller Co., Inc., 06-865, p. 6 (La.App. 1 Cir. 9/5/07), 970 So.2d 582, 588.

The accident at issue here occurred on February 29, 2000. Ms. Feyerabend did not file her Disputed Claim for Compensation until June 2, 2006. She did not receive disability or weekly indemnity benefits within the prescriptive period after the accident. Therefore, pursuant to LSA-R.S. 23:1209, Ms. Feyerabend’s claim for indemnity benefits had prescribed on its face, and it was Ms. Feyerabend’s burden to prove that prescription was interrupted, suspended, or renounced.

Ms. Feyerabend claims that after the February 29, 2000 accident, Boomtown treated her claim as a Jones Act claim which lulled her into a false sense of security regarding her benefits. She asserts that it was actually Boomtown that was unable to determine if this case was a Jones Act ease or a state worker’s compensation ease, so she should not be penalized for Boomtown’s mistake.

The record contains a June 6, 2001 letter from Boomtown’s risk manager, Larry Bordelon, to a worker’s compensation claims coordinator, Felicia Saunders, indicating that the February 29, 2000 incident was being referred to Ms. Saunders because it had been determined that any claims arising from this incident would be for worker’s compensation, not a Jones Act claim. Thereafter, Ms. Saunders sent a letter to Ms. Feyerabend dated June 28, 2001, informing her that it had been 1 (¡determined that her accident would fall under state worker’s compensation jurisdiction. The record also contains a July 17, 2001 letter from Ms. Saunders to Ms. Feyerabend indicating that her claim for worker’s compensation benefits had been denied, because: 1) the claim was filed untimely; and 2) jurisdiction. After receiving these letters, it was not until May 6, 2002 that Ms. Feyerabend filed a lawsuit pursuant to the Jones Act. She did not file her Disputed Claim for Compensation with the Office of Worker’s Compensation until June 2, 2006.

In order for a claimant to prove that her tardiness in filing a worker’s compensation claim was due to being lulled into a false sense of security by the employer, a worker’s compensation claimant must show that words, actions, or inactions on the part of the employer caused her forbearance. Williams v. William Wrigley, Jr. Co., 94-370, p. 4 (La.App. 5 Cir. 11/16/94), 646 So.2d 1092, 1094, writ denied, 95-373 (La.4/7/95), 652 So.2d 1346.

The record does not show that Boom-town lulled Ms. Feyerabend into a false sense of security regarding the payment of benefits. No weekly indemnity, supplemental earnings, or other compensation benefits were paid to Ms. Feyerabend within one year or even two years after ■ the accident. Further, there was no language in the letters from Ms. Saunders to Ms. Feyerabend that would constitute lulling. Ms. Saunders’ indication that the February 29, 2000 accident would fall under worker’s compensation jurisdiction did not suggest that Ms. Feyerabend would be paid any benefits. Ms. Feyerabend argues that Ms. Saunders’ July 17, 2001 letter indicating that her worker’s compensation claims were denied because they were untimely and due to jurisdiction gave her no choice but to file suit under the Jones Act. However, this denial of her claims for worker’s compensation benefits certainly could not have lulled her into any sense of security.

See Causby v. Perque Floor Covering, 97-1235, p. 10 (La.1/21/98), 707 So.2d 23, 28, wherein the Louisiana Supreme Court held that a worker’s compensation claimant’s reliance on an assertion by the employer’s claims adjuster that claimant was not entitled to further benefits did not lull the claimant into a false sense of security or prevent the claimant from timely filing his claim.

Ms. Feyerabend further contends that she was lulled into a false sense of security regarding her benefits because maintenance payments were made to her under the Jones Act. However, the record shows that Boomtown did not make maintenance payments to Ms. Feyerabend until October 2002, which was after her worker’s compensation claims had prescribed. Thus, these maintenance payments could not interrupt prescription which had already run.

It is well settled that a worker’s compensation judge’s findings are given great deference and will not be set aside by an appellate court absent a finding of manifest error or unless they are clearly wrong. Sperandeo v. Sydran Food Services, II, L.P., 01-675 (La.App. 5 Cir. 12/12/01), 806 So.2d 724, 727. After reviewing the record before us, along with the applicable law, we find no error in the worker’s compensation judge’s determination that Ms. Feyer-abend did not meet her burden of establishing that prescription was interrupted due to being lulled into a false sense of security regarding payment of benefits by Boomtown.

On appeal, Ms. Feyerabend also asserts that following the February 29, 2000 accident, she received unearned wages in lieu of compensation, which interrupted prescription. She contends that she was paid wages for time she was not at work, particularly for time missed while attending doctor’s appointments.

The payment to a claimant of wages in lieu of compensation interrupts prescription. Bledsoe v. Willowdale Country Club, 94-234, p. 3 (La.App. 5 Cir. 9/27/94), 643 So.2d 1302, 1304. “Wages in lieu of compensation” are defined as | ^unearned wages paid to an employee after an injury, and thus if the employee actually earns the wages paid to her, they are not “wages in lieu of compensation” and do not interrupt prescription for worker’s compensation claims. Krieg v. Krieg Bros. Terrazzo Co., Inc., 93-1065, p. 3 (La.App. 3 Cir. 9/28/94), 645 So.2d 661, 664, unit denied, 95-152 (La.3/30/95), 651 So.2d 837.

In her deposition, Ms. Feyerabend testified that after the accident, she continued to work and perform her regular duties as a revenue auditor at Boomtown until February 19, 2002. She stated that no one helped her to perform her duties and no accommodations were made for her. She stated that she even worked some overtime hours after the accident. As she continued to work after the accident, she earned her wages and did not receive weekly indemnity benefits or compensation until she began receiving maintenance payments under the Jones Act in October 2002.

The record does show that Ms. Feyera-bend was paid for some time that she was not at work. However, this time was intermittent short periods of time primarily to seek medical treatment, often just a few hours at a time. The vast majority of her wages were earned. Lynn Belteau, a payroll supervisor at Boomtown, testified in his deposition that he believed it was Boomtown’s policy not to pay an employee for time off to seek medical treatment. Rather, the employee would have to use his or her “paid time off.” However, the employee could ask for the time off and his or her supervisor could decide on a case by case basis whether or not to pay the employee for that time.

Ms. Feyerabend did show that she received wages for some time that she was not at work due primarily to medical treatment. However, she did not establish that she was entitled to worker’s compensation benefits at this time. Therefore, she did not show that the wages she received for the time she was not at|3work were in lieu of compensation. In Love v. East Jefferson General Hospital, 96-1558, p. 6 (La.App. 1 Cir. 5/9/97), 693 So.2d 1245, 1248, the First Circuit held that the fact that an employer allowed a worker’s compensation claimant to receive treatment for her injury while she was “on company time” was insufficient to support a finding that wages paid to her after the accident were in lieu of compensation benefits, so as to interrupt prescription. In Keller v. Marathon Oil Co., 613 So.2d 795, 797 (La.App. 5 Cir.1993), this Court stated that continued wage payments do not interrupt prescription unless they are specifically made in lieu of worker’s compensation benefits.

After reviewing the entire record, along with the exhibits and the applicable law, we find no error in the trial court’s determination that Ms. Feyerabend did not meet her burden of proving that she received wages in lieu of compensation or that an interruption of prescription occurred. Accordingly, we cannot say that the worker’s compensation judge erred in granting Boomtown’s Exception of Prescription and dismissing Ms. Feyerabend’s claim for worker’s compensation indemnity benefits.

DECREE

For the foregoing reasons, we affirm the May 12, 2008 judgment of the worker’s compensation court, granting Boomtown’s Exception of Prescription and dismissing the claim for worker’s compensation indemnity benefits filed by claimant, Ray Feyerabend.

AFFIRMED.

      . Boomtown also filed an Exception of Prescription regarding the February 2, 1998 accident, which was granted by the trial judge. However, claims regarding the February 2, 1998 accident are not at issue in this appeal.


author: MARION F. EDWARDS, Judge.

text:
    STATE of Louisiana v. Kelly RIVIERE.
    No. 08-KA-509.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 25, 2009.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Assistant District Attorneys, Twenty-Fourth Judicial District Court, Parish of Jefferson, State of Louisiana, Gretna, Louisiana, for Plaintiff/Appellee.
    Jane L. Beebe, Attorney at Law, Louisiana Appellate Project, New Orleans, Louisiana, for Defendant/Appellant.
    Kelly Riviere, In Proper Person, Louisiana Correctional Institute for Women (Pisces II), St. Gabriel, Louisiana.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
   MARION F. EDWARDS, Judge.

| ¿This is defendant-appellant’s (Kelly Riviere) (hereinafter “defendant”) second appeal. Defendant was charged with unauthorized entry of an inhabited dwelling in violation of LSA-R.S. 14:62.3. She was tried by a jury and found guilty as charged on May 8, 2007. On May 30, 2007, defendant was sentenced to serve eight years at hard labor. Also on that day, the State filed a multiple offender bill of information. Defendant submitted an unsigned pro se motion for appeal. On June 18, 2007, the trial court allowed-defendant thirty days to resubmit a signed motion for appeal. A motion for appeal was filed and granted on June 29, 2007.

Subsequently, the trial court, on its own motion, reconsidered the sentence and ruled that it was illegally excessive. Accordingly, on August 29, 2007, the court vacated the eight-year sentence and imposed a four-year sentence. The Rmatter came before this Court on appeal. On appeal we affirmed the conviction and remanded the matter to the trial court for the limited purpose of correcting discrepancies between the transcript and the commitment.

In the course of these proceedings, the State has filed three multiple offender bills of information. The first bill, filed on May 30, 2007, charged defendant with being a fourth felony offender; the second bill, on October 29, 2007, reduced the charge to a third felony offender; and the final one, on March 31, 2008, alleged defendant was a second felony offender. The trial court took up the charges on the third multiple bill on March 31, 2008. At that hearing, defendant admitted her status as a second felony offender. The trial court vacated the previous sentence and re-sentenced defendant to twelve years at hard labor pursuant to LSA-R.S. 15:529.1. The sentence was ordered to run concurrent with another one imposed in a separate criminal matter. An appeal from that judgment was granted.

The facts of this case were set forth in the prior appeal and will not be repeated herein.

Defendant has received the assistance of the Louisiana Appellate Project in this appeal. Appointed defense counsel has certified to this Court that she has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, defense counsel has filed a motion to withdraw as counsel of record.

Appointed counsel may request permission to withdraw if she finds her case to be wholly frivolous after a conscientious examination of it. The request must |4be accompanied by “a brief referring to anything in the record that might arguably support the appeal” so as to provide the reviewing court “with a basis for determining whether appointed counsel have fully performed their duty to support their clients’ appeals to the best of their ability” and to assist the reviewing court “in making the critical determination of whether the appeal is indeed so frivolous that counsel should be permitted to withdraw.”

Additionally, when conducting a review for compliance with Anders, an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel’s motion to withdraw and affirm the defendant’s conviction and sentence. However, if the court finds any legal point arguable on the merits, it may either deny the motion and order the court-appointed attorney to file a brief arguing the legal point(s) identified by the court, or grant the motion and appoint substitute appellant counsel.

In her brief to this Court, defense counsel points out that there is no ruling of the trial court to challenge since defendant admitted to the allegations of the multiple offender bill of information as part of a plea agreement. Further, counsel shows that the trial court performed a complete colloquy to assure the plea was made with all constitutional considerations. Counsel also states that, after considering a claim of excessiveness of sentence, she was compelled to conclude such a claim would be frivolous.

An independent review of the record supports appellate counsel’s assertion that there are no non-frivolous issues to be raised on appeal. If a defendant pleads Ifiguilty, she normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea, and precludes review of such defects either by appeal or post-conviction relief. An unconditional plea, willingly and knowingly made, waives any and all non-jurisdictional defects and bars a defendant from later asserting on appeal that the State failed to produce sufficient proof at the multiple offender hearing.

Further, a defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea. This Court has consistently recognized that a defendant is precluded from seeking review of an enhanced sentence to which the defendant agreed.

In the present case defendant was advised of, and indicated she understood, the sentence she would receive if she stipulated to the multiple bill. After stipulating to the multiple bill, a sentence was imposed in conformity with her plea agreement. Because defendant’s sentence is within the sentencing range and was imposed pursuant to a plea agreement, the sentence presents no non-frivolous issues to raise on appeal. Further, by stipulating to the multiple bill, defendant waived her right to a hearing and any possible non-jurisdictional defects were waived. She is barred from asserting on appeal that the State failed to produce sufficient proof at the multiple offender hearing.

Because defendant’s counsel’s brief adequately demonstrates by full discussion and analysis that she has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal and an independent review of |6the record supports counsel’s assertion, appellate counsel’s motion to withdraw as attorney of record is hereby granted.

In accordance with the normal procedure of criminal cases in this procedural posture, this Court sent defendant a letter by certified mail informing her that an Anders brief had been filed and that she could file a pro se supplemental brief. Defendant filed a pro se supplemental brief in this matter asserting the district court lacked jurisdiction to sentence appellant twice for the same offense, resulting in an illegal sentence.

Defendant claims that a formal habitual offender hearing was held on January 29, 2008, and she was found guilty. She further asserts that her four-year sentence was vacated and she was re-sentenced to six years. Thereafter, her six-year sentence was vacated and the twelve-year enhanced sentence was imposed. Defendant concedes that the court had jurisdiction to vacate the four-year sentence and then re-sentence her as a habitual offender but argues it had no jurisdiction to vacate the four-year term and re-sentence her to six years and then vacate the six-year sentence and impose the habitual offender sentence. As such, she concludes her twelve-year enhanced sentence is illegal.

The record before us does not show that a six-year sentence was ever imposed. Defendant was originally sentenced to eight years. That sentence was vacated as illegally excessive, and defendant was re-sentenced to a four-year term. Regardless of whether another sentence was imposed, the record clearly shows that, on March 31, 2007, defendant pled guilty to the multiple offender bill as part of a plea bargain encompassing two criminal cases and, after the vacation of the prior sentence, an enhanced sentence was imposed as a result of the guilty plea. We find no merit in defendant’s assignment of error.

17Pefendant requests an error patent review. However, this Court routinely reviews the record for errors patent regardless of whether defendant makes such a request.

Defendant received an errors patent review on her original appeal. She is now only entitled to an errors patent review of the habitual offender proceedings. Our review reveals no errors patent on the record in this case.

For the foregoing reasons, defendant’s status as a multiple offender and the enhanced sentenced imposed as a result of that status are affirmed. Defense counsel’s motion to withdraw as counsel of record is granted.

AFFIRMED; MOTION TO WITHDRAW GRANTED.

      . There is a minute entry dated January 29, 2008 that indicates defendant was tried before the bench and found guilty on the charge of unauthorized entry. The minute entry also incorrectly shows that the eight-year sentence was vacated on May 30, 2007 and that a new sentence of four years was imposed on January 29, 2008.

      . State v. Riviere, 08-105 (La.App. 5 Cir. 5/27/08), 986 So.2d 768.

      . Id.

      . The plea agreement also included a guilty plea to a separate crime of second degree robbery for which defendant received a fifteen-year sentence. The State agreed not to file a multiple bill in that case.

      . See, State v. Riviere, supra.

        . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). The procedure for compliance with Anders was set forth in State v. Benjamin, 573 So.2d 528, 530 (La.App. 4 Cir. 1990), and sanctioned in State v. Mouton, 95-0981 (La.4/28/95), 653 So.2d 1176, 1177 (per curiam ), and adopted by this Court in State v. Bradford, 95-929 (La.App. 5 Cir. 6/25/96), 676 S.2d 1108, 1110-11.

      . McCoy v. Court of Appeals of Wis., Dist. 1, 486 U.S. 429, 439, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440 (1988).

      . State v. Bradford, 676 So.2d at 1110.

      . Id.

      . State v. Wingerter, 05-697 (La.App. 5 Cir. 3/14/06), 926 So.2d 662, 664-65.

      . State v. Schaefer, 97-465 (La.App. 5 Cir. 11/25/97), 704 So.2d 300, 304.

      . LSA-C.Cr.P. art. 881.2 A(2).

      . State v. Moore, 06-875 (La.App. 5 Cir. 4/11/07), 958 So.2d 36, 46.

      . See, State v. Schaefer, supra.

      . LSA-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).

      . See, State v. Riviere, supra.

      . See, State v. Yrle, 05-202 (La.App. 5 Cir. 10/6/05), 916 So.2d 1197, 1200.