author: PER CURIAM. WEIMER, J.,

text:
    STATE of Louisiana v. Alvin KING.
    No. 2010-K-2638.
    Supreme Court of Louisiana.
    May 6, 2011.
   PER CURIAM.

_jjThe court of appeal affirmed the trial court’s grant of defendant’s motion to quash the pending prosecution against him for issuing worthless checks in an amount over $500, in violation of La.R.S. 14:71, because it agreed with the lower court that the state had abused its plenary charging discretion by dismissing the original bill of information and refiling the bill a day later after the court denied its motion to continue the ease at its second trial setting. State v. King, 10-0074, p. 7 (La.App. 1st Cir.10/29/10), 48 So.3d 1288, 1293 (Kuhn, J., dissenting). We granted the state’s application to review that decision and reverse for the reasons that follow.

The state charged defendant with issuing worthless checks by bill of information filed on March 17, 2008. The trial court appointed the Public Defender’s Office to represent defendant. The early stages of the proceedings were marked by the filing of preliminary motions, continuance of three status conferences at the request of the defense, and failed plea negotiations in which defendant rejected an | ^offer of seven years imprisonment at hard labor on September 8, 2008, after which the court set a trial date for March 23, 2009. At a status conference on January 20, 2009, the trial court directed counsel to speak with defendant about his representation and thereafter, on January 26, 2009, denied a pro se motion filed by defendant to dismiss counsel. The court maintained the trial date of March 23, 2009. On that date, after defendant stated for the record that he again rejected a plea offer, this time for two years imprisonment at hard labor, the state orally moved for a continuance on grounds that it “had a little bit of trouble in procuring some of the financial records from the bank.” The trial court granted the continuance in accord with its internal policy of affording both sides one continuance only, as a means of managing its docket and encouraging the parties to prepare their cases for trial. The court informed defendant that “this will be the state’s only chance to continue [the case],” and reset trial for May 20, 2009.

Shortly thereafter, the state issued a subpoena duces tecum to Capitol One Bank and set a return date of May 11, 2009, or 10 days before the scheduled trial date. On May 20, 2009, and despite the court’s earlier admonition, the state again moved for a continuance. The prosecutor informed the court that after determining the bank had not responded to the subpoena, he called Capitol One and made inquiries that prompted a facsimile transmission to him of some records which, however, “were incomplete and not fully compliant with” the subpoena. The prosecutor further informed the court that the bank had yet to give him the name of a records custodian “who will be able to come and testify as to the authenticity and accuracy of the records where they do provide them to me,” although personnel in the security office had assured him that they would be able to secure the records and provide him with someone who could testify in court. In short, the prosecutor |sinformed the court that because Capitol One had not complied with the subpoena he was unable to proceed to trial. However, the court denied the continuance summarily and the prosecutor immediately responded by dismissing the bill of information. It is clear from their remarks at the close of the proceedings that both defense counsel and the trial court anticipated that the state would refile the charge. In the meantime, defendant remained in the parish jail on an out-of-state detainer.

On the following day, the state reinsti-tuted the same charge against defendant for issuing worthless checks by filing a new bill of information. At arraignment, defendant pleaded not guilty and thereafter, on September 11, 2009, he filed a motion to quash the bill of information on grounds that the state had circumvented the trial court’s authority as a matter of La.C.Cr.P. art 17 to manage its own docket by dismissing and then immediately reinstituting the worthless check charge, thereby granting the state a continuance to which it was otherwise not entitled, either as a matter of the one-continuance-per-side internal policy of the trial court, or as a matter of the requirements set out in La.C.Cr.P. art. 709 for obtaining a continuance based on the absence of witnesses. The motion alleged a denial of due process because, in effect, only the defense was subject to the court’s internal one-continuance rule. With trial of the reinstituted charge set for October 21, 2009, the court conducted a hearing on the motion to quash on October 12, 2009, and thereafter, on October 21, 2009, granted the motion and dismissed the prosecution.

On appeal of that ruling by the state, a majority on the First Circuit panel acknowledged that in the motion to quash, the defense did not allege that the state had dismissed and refiled the worthless check charge to avoid the running of the two-year time limit on trial imposed by La.C.Cr.P. art. 578(2). King, 10-0074 at 4, 48 So.3d at 1290. Nor did the motion assert that defendant’s Sixth Amendment right to a | ¿speedy trial had been abridged. However, the majority quoted' extensively from the trial court’s remarks on October 21, 2009, in which the court stressed not its one-continuance rule but the lack of preparation by the state, first in setting an initial trial date of March 28, 2009, but not issuing any subpoenas for its witnesses or bank records, and then by resetting trial for May 20, 2009, improving on its initial poor showing by issuing some subpoenas, but then failing to insure that the sought-after witness would appear on the date scheduled with the relevant bank records. For the trial court, the problems faced by the state on May 20, 2009⅝ would not have occurred but for its failure to prepare properly for trial on March 23, 2009. Given this detailed statement of reasons by the trial judge, a majority on the First Circuit panel determined that “[t]he record supports the trial court’s conclusion ... that, essentially, the state flaunted its authority by granting itself a continuance that the trial court denied.” King, 10-0074 at 7, 48 So.3d at 1293.

Dissenting, Judge Kuhn questioned whether the trial eourt?s one-eontinuance-per-side rule qualified as the exercise of a trial judge’s sound discretion conferred by La.C.Cr.P. art. 17 over the conduct of proceedings in his or her court. King, 10-0074 at 1, 48 So.3d 1288 (Kuhn, J., dissenting). He further observed that the state’s dismissal of the original bill “was because Capital One Bank did not fully comply with its discovery request and a key witness (documents custodian) was not present at trial.” Id., 10-0074 at 3, 48 So.3d 1288 (Kuhn, J., dissenting). Thus, the record appeared “devoid of anything that suggests the State dismissed the charge and reinstituted prosecution to obtain a tactical advantage over the defendant.” Id. Given that the timeliness of the prosecution under La.C.Cr.P. art. 578 was not an issue, Judge Kuhn concluded that the trial court abused its discretion in granting the motion to quash. Id.

| fiWe subscribe to the views expressed by Judge Kuhn in his dissent. Decisions in this Court and in the courts of appeal have documented the frequent collisions between a trial judge’s authority to conduct proceedings “in an orderly and expeditious manner,” La.C.Cr.P. art. 17, including the authority to adopt rules “governing the procedure for setting cases for trial and giving notice thereof,” La. C.Cr.P. art. 702, and a district attorney’s plenary “charge and control” over every criminal prosecution instituted or pending in his district, including the determination of “whom, when, and how he shall prosecute.” La.C.Cr.P. art. 61. See, e.g., State v. Batiste, 05-1571 (La.10/17/06), 939 So.2d 1245; State v. Love, 00-3347 (La.5/23/03), 847 So.2d 1198; State v. Brown, 05-1146 (La.App. 4th Cir.7/26/06), 937 So.2d 419; State v. Larce, 01-1992 (La.App. 4th Cir.1/23/02), 807 So.2d 1080. We have recognized that the trial court possesses the inherent discretion to grant a motion to quash and to order a prosecution dismissed with prejudice after the state has used its broad prosecutorial discretion by dismissing and then reinstituting a prosecution to force a continuance of trial, even under circumstances in which prescription had not tolled or would not shortly thereafter toll as a matter of La.C.Cr.P. art. 578, or in which the Speedy Trial Clause of the Sixth Amendment would not also require that result. Love, 00-3347 at 14, 847 So.2d at 1209 (“The upshot of all of these cases is that Louisiana courts understand that determination of motions to quash in which the district attorney entered a nolle pros and later reinstituted charges should be decided on the basis of the facts and circumstances of the individual case.”). Accordingly, “[i]n situations where it is evident that the district attorney is flaunting his authority for reasons that show that he wants to favor the State at the expense of the defendant, such as putting the defendant at risk of losing witnesses, the trial court should grant |fia motion to quash and an appellate court can appropriately reverse a ruling denying a motion to quash in such a situation.” Id.

When, as in the present case, a prosecutor dismisses a pending prosecution in the face of a trial court’s denial of a continuance to the state, and then refiles the same charge to continue the prosecution after a brief pause, he can be said to have “flaunted” the state’s unique power and authority that the defense does not also possess. State v. Stephens, 00-2472, p. 1, n. 1 (La.3/16/01), 782 So.2d 562, 566 (Lemmon, J., dissenting) (“If the defendant had sought and been denied a continuance, his only two choices would have been seeking supervisory review of the denial or going to trial. He could not have flaunted the trial judge’s decision or taken over the judge’s control of his docket, as the prosecutor did [by dismissing the original indictment and re-indicting the defendant].”). However, because of the severe consequences of dismissing a pending prosecution that is neither time-barred as a matter of La.C.Cr.P. art. 578, nor precluded by the Speedy Trial Clause of the Sixth Amendment, we made clear in Love that the state must exercise that authority in such a way that it does not simply disrupt the trial court’s conduct of the proceedings or challenge the court’s authority to manage its docket, but also significantly disadvantages the defense at any forthcoming trial. Thus, in Batiste, we overturned the trial court’s grant of a motion to quash because the record gave “no indication that the district attorney was flaunting his authority at the expense of the defendant .... the record indicates a nolle prosequi was entered because the victim was not present for trial and was wavering in her commitment to going forward with the case.” Batiste, 05-1571 at 5-6, 939 So.2d at 1249.

Similarly, in the present case, although the trial court took a dim view of the state’s efforts in preparing its case for trial, the court did not challenge the credibility |7of the state’s explanation that its problems stemmed from difficulties with Capitol One Bank. The court discounted the prosecutor’s explanation on grounds that, but for the state’s lack of diligence in preparing the case for its first trial setting, it would not have had the problems with the bank at the second trial setting in May 2009. However, as Judge Kuhn emphasized in his dissent, the record fails to suggest that the state simply sought a tactical advantage over the defense, or that it was whipsawing defense witnesses by forcing them to make repeated but futile trips to the courthouse, see State v. Reaves, 376 So.2d 136, 138 (La.1979), as opposed to struggling to put its case together by identifying and summoning the appropriate witnesses. Nor does the record support an inference that the state delayed matters to wear down the defendant and incline him to reconsider the rejected plea bargain, as the delays in the first year of the proceedings were attributable as much, if not more, to the defense as they were to the state, and, if anything, worked to defendant’s advantage, as the state reduced by over half its initial plea bargain offer of seven years imprisonment at hard labor.

The filing of the motion to quash in September 2009, and the hearing conducted on the motion a month later, occurred well within the two-year time limit for bringing the case to trial by March 17, 2010, after which a conclusive presumption of prejudice would apply to any further delays not justified by causes of suspension or interruption. United States v. Marion, 404 U.S. 307, 322, 92 S.Ct. 455, 464, 30 L.Ed.2d 468 (1971)(statutory periods of limitation on the prosecution of cases offer the primary means of enforcing the Sixth Amendment right to a speedy trial because they “provide predictability by specifying a limit beyond which there is an irrebuttable presumption that a defendant’s right to a fair trial would be prejudiced.”). Short of that statutory tolling, our decision in Love requires the defendant to make a 18showing of specific prejudice to his defense because even under the Sixth Amendment, which offers a defendant the ultimate bulwark against the state’s manipulation of its plenary charging powers, and “unlike the right to counsel or the right to be free from compelled self-incrimination, deprivation of the right to speedy trial does not per se prejudice the accused’s ability to defend himself.” Barker v. Wingo, 407 U.S. 514, 521, 92 S.Ct. 2182, 2187, 33 L.Ed.2d 101 (1972).

To the extent that the defense motion to quash did not assert violation of defendant’s Sixth Amendment speedy trial rights, and in any event claimed no prejudice to his defense of the case arising out of the delay occasioned by the state’s dismissal and immediate reinstitution of the prosecution to force a second continuance of trial, the district court erred in granting the motion and dismissing the prosecution with prejudice. The ruling before the Court is therefore reversed and this case is remanded to the district court for other proceedings consistent with the views expressed herein.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

WEIMER, J., dissents with reasons.

WEIMER, J.,

dissenting.

hi respectfully dissent for the reasons cited in my dissent in State v. Batiste, 05-1571 (La.10/17/06), 939 So.2d 1245, 1253, quoting State v. Love, 00-3347 (La.5/23/03), 847 So.2d 1198, 1213-14 (Weimer, J., concurring in part, dissenting in part).

The State errs in arguing the trial court quashed the bill of information only because of its so-called one-continuance rule. In fact, the trial court said little about that rule and clearly articulated that it believed the State had done nothing to subpoena the documents or witness before the first trial and then did little to ensure that the late-issued subpoena was complied with for the second trial. Thus, this one-continuance argument is of no moment.

Accordingly, and contrary to the State’s argument, the trial court did review the particular facts of the instant case and appears to have believed that the State was not 12taking proper control of the case based on its prior failure to properly prepare for either trial.

I note the court of appeal majority, upon review of this record, found there was no abuse of discretion by the trial court in granting the motion to quash. The trial court had the advantage of observing the actions of the State firsthand in determining whether to grant the motion to quash.

I would find the trial court did not abuse its discretion in granting the motion to quash.

      . See Baptiste, 05-1571 at 1-2, 939 So.2d at 1253, quoting Love, 00-3347 at 4-5, 847 So.2d at 1213-14:
      When the State dismisses charges within seven days of trial and thereafter reinsti-tutes the charges, the State should have the burden to establish the defendant was not prejudiced. Imposing such a burden on the State would strike an equilibrium between the statutory authority of the District Attorney and the court and ensure the District Attorney has not abused the authority. Such a requirement should not be considered a limitation on the authority of the District Attorney, but rather a limitation on a potentially abusive practice. This equilibrium between the statutory authority of the court and the District Attorney was recognized in State v. Frith, 194 La. 508, 518, 194 So. 1, 4 (1940). [Footnote omitted.]


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Louisiana v. Mark RAINEY.
    No. 2011-KK-0569.
    Supreme Court of Louisiana.
    May 6, 2011.
   PER CURIAM.

Writ granted.

The trial court erred in suppressing the evidence for lack of probable cause to arrest defendant for possession of a firearm. The record shows that defendant’s arm movement from the driver to passenger side of the vehicle and the unusual location of the firearm under the driver’s right thigh provided probable cause for the defendant’s arrest.

Constructive possession occurs when a firearm is subject to the defendant’s dominion and control. State v. Johnson, 2003-1228 (La.4/14/04) 870 So.2d 995, 998. Defendant’s abrupt arm motion witnessed by police as they approached the vehicle during the traffic stop and the location of the firearm were sufficient to cause the police to believe that more likely than not the defendant had dominion and control over the firearm to establish constructive possession. The fact that the firearm was ultimately found underneath the driver’s right thigh when police reached the side of the vehicle does not detract from a finding of probable cause because dominion and control constitute possession even if temporary or if shared. Id.

      . Kimball, C.J., not participating in the decision.


author: JOHNSON, J.,

text:
    STATE of Louisiana v. Bobby D. HIGGINBOTHAM.
    No. 2011-KK-0564.
    Supreme Court of Louisiana.
    May 6, 2011.
   JOHNSON, J.,

would grant defendant’s writ application and assigns, reasons.

FACTS:

| defendant, Bobby Higginbotham, a former mayor of the Town of Waterproof, was charged by a grand jury with a 44-count indictment on February 12, 2009. The indictment was amended, dropping 42 of the counts. One count of public contract fraud, (violation of LSA-R.S. 14:140), was added to the remaining two charges of malfeasance in office and a violation of LSA-R.S.14:67. The state filed a motion to disqualify Mr. Higginbotham’s retained counsel (who was the town attorney), based on a conflict of interest, which was granted on July 9, 2009 by the trial judge. The Court Appeal affirmed the trial court’s ruling finding that representation of both the victim of the alleged offenses and the accused of those offenses presented an | impermissible conflict of interest under Louisiana Rule of Professional Conduct 1.7

Trial was set for October 26, 2009; however, the matter was continued several times at Mr. Higginbotham’s request. Ultimately, the trial date was re-fixed for March 29, 2010, and a status conference was held to determine the identity of Mr. Higginbotham’s counsel. Mr. Higginbotham invoked his 5th Amendment right to remain silent as to the identity of his counsel, and the matter proceeded to trial as scheduled, despite Mr. Higginbotham’s request for a stay. Mr. Higginbotham went to trial representing himself. The state rested its case two days later. The next day, the Court of Appeal granted Mr. Higginbotham a 30-day continuance and stayed the proceedings. When the trial resumed for the presentation of Mr. Higginbotham’s case, Mr. Higginbotham was represented by counsel.

During the presentation of its case, the state presented evidence in support of the public contract fraud charge against Mr. Higginbotham, which included the |stestimony of two witnesses, Ted Higginbotham, (Mr. Higginbotham’s brother), and Dr. Glenda Richardson, (Mr. Higginbotham’s business partner), and introduced at least 11 documentary exhibits, to support its allegations that Mr. Higginbotham illegally used his power as mayor to enrich himself by $56,582.57. Neither of these two witnesses’ testimony was recorded. Ultimately, the trial judge issued a partial mistrial as to the public contract fraud charge since the testimony of the two witnesses had not been recorded by the court reporter. Mr. Higginbotham made writ application to the Court of Appeal which ruled that a partial mistrial was an appropriate remedy. The exhibits pertaining to the public contract fraud charge were removed from the record, and the jury was admonished to disregard the testimony and the exhibits.

Mr. Higginbotham argues that the information presented relative to the public contract fraud charge constituted inadmissible “other crimes, wrongs, acts” evidence in violation of LSA-C.E. art. 404(B). The erroneous admission of other crimes evidence is subject to harmless error review on appeal. See State v. Johnson, 94-1379 (La.11/27/95), 664 So.2d 94, 99-100. Harmless error exists where the guilty verdict actually rendered was “surely unattributable” to the error. Id. at 100, quoting Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993). Due to the lack of a transcript, Mr. Higginbotham argues that there is simply no way for the appellate courts to conduct a harmless error analysis or to determine if the guilty verdict was surely unattributable to the error; therefore, his constitutional right to appellate review |4has been fatally impaired.

Following a jury trial, Mr. Higginbotham was convicted on the charge of malfeasance in office (a violation of LSA-R.S. 14:134) and of a violation of LSA-R.S. 14:67. On May 19, 2010, Mr. Higginbotham was remanded to jail without bond where he remains incarcerated. The sentencing phase of his trial was continued twice during which time Mr. Higginbotham filed a motion for new trial based on allegations of constitutional and statutory errors from the arraignment through jury deliberations and to establish that significant portions of the trial, including the testimony of the two previously identified witnesses, was not recorded by the court reporter.

Mr. Higginbotham’s trial was riddled with errors and irregularities, and although each is not addressed herein, the combination these errors, in particular, the missing record of testimony presented to the jury by two of the State’s witnesses relative to the public contract fraud charge, cannot be cured by admonishing the jury. A bell once rung cannot be unrung. This error warrants granting a new trial.

In State v. Harris, 01-1910 (La.App. 4 Cir. 4/24/02) 817 So.2d 1164, following jury trial, defendant was convicted in the Criminal District Court, Orleans | ¡¡Parish, No. 413-972, of unauthorized use of a movable having value of $500 or more. The court held defendant was denied the right of appellate review, when the transcript of trial testimony was not part of his record (the court reporter could not locate transcripts of trial and tapes of the proceedings could not be reproduced). LSA-Const. Art. 1, § 19; LSA-C.Cr.P. art. 843. Similarly, in State v. Clark, 2000-0348 (La.App. 4 Cir. 12/13/00) 776 So.2d 1249, a Defendant was convicted in the Criminal District Court, Orleans Parish, No. 378-494, of second degree murder, and he appealed. The Court of Appeal held that the missing transcript of the first day of a two-day trial rendered the record so incomplete as to warrant that conviction be vacated and the case remanded for a new trial. The defendant in State v. Bright, 809 So.2d 1112, 2000-1255 (La.App. 4 Cir. 2/6/02), also obtained a new trial because of omissions in the transcript of defendant’s first degree murder trial. In Bright, the transcript did not contain the defendant’s testimony on direct examination, the testimony from a criminalist, a witness, and the victim’s maternal grandmother. The Bright court concluded:

[W]e must reverse because it could not be determined what was in the missing excerpts. We cannot determine whether the missing evidence was not crucial to the defense or could be gleaned from other sources. This court cannot review whether the defense conducted a thorough cross-examination of the “missing” witnesses. We cannot conclude on the record before us that the defense was unable to establish internal inconsistencies in their stories, or aspects of their stories that were inconsistent with the testimony of the other witnesses.

As in the Bright case, the case at bar involves a trial wherein the entire testimony of at least two witnesses was not recorded. A reviewing court, likewise, is unable to determine what transpired during that period of Mr. Higginbotham’s trial. Thus, we are unable to conclude that the defendant was not prejudiced thereby.

A criminal defendant has a right to a complete transcript of the trial [¿proceedings, particularly where counsel on appeal was not counsel at trial. U.S. v. Atilus, 425 F.2d 816 (5 Cir.1970), citing Hardy v. U.S., 375 U.S. 277, 84 S.Ct. 424, 11 L.Ed.2d 331 (1964). The trial judge is duty-bound to see that the court reporter makes a true, complete, and accurate record of the trial. State v. Landry, 97-0499 (La.6/29/99), 751 So.2d 214, 216. “[WJhere a defendant’s attorney is unable, through no fault of his own, to review a substantial portion of the trial record for errors so that he may properly perform his duty as appellate counsel, the interests of justice require that a defendant be afforded a new, fully recorded trial.” Landry, 751 So.2d at 215, quoting State v. Ford, 338 So.2d 107, 110 (La.1976).

      . LSA-R.S. 14:134.C. (1): Whoever commits the crime of malfeasance in office shall be imprisoned for not more than five years with or without hard labor or shall be fined not more than five thousand dollars, or both.

      . LSA-R.S. 14:67 B(l)(2): Whoever commits the crime of theft when the misappropriation or taking amounts to a value of one thousand five hundred dollars or more shall be imprisoned, with or without hard labor, for not more than ten years, or may be fined not more than three thousand dollars, or both. When the misappropriation or taking amounts to a value of five hundred dollars or more, but less than a value of one thousand five hundred dollars, the offender shall be imprisoned, with or without hard labor, for not more than five years, or may be fined not more than two thousand dollars, or both.

      . Rule 1.7 provides:
      (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
      (1) the representation of one client will be directly adverse to another client; or
      (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.
      (b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:
      (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
      (2) the representation is not prohibited by law;
      (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and
      (4) each affected client gives informed consent, confirmed in writing.

      . Concerning other crimes, wrongs, or acts, LSA-C.E. art. 404(B)(1) provides:
      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.

      . LSA-C.Cr.P. Art. 332: Bail after conviction
      B.After conviction and before sentence, bail shall be allowed if the maximum sentence which may be imposed is imprisonment for five years or less. Bail may be allowed pending sentence if the maximum sentence which may be imposed is imprisonment exceeding five years, except when the court has reason to believe, based on competent evidence, that the release of the person convicted will pose a danger to any other person or the community, or that there is a substantial risk that the person convicted might flee.
      C. After sentence and until final judgment, bail shall be allowed if a sentence of five years or less is actually imposed. Bail may be allowed after sentence and until final judgment if the sentence actually imposed exceeds imprisonment for five years, except when the court has reason to believe, based on competent evidence, that the release of the person convicted will pose a danger to any other person or the community, or that there is a substantial risk that the person convicted might flee.
      D. In those instances above in which bail shall be allowed, the court shall consider whether the release of the person convicted or sentenced will pose a danger to any other person or the community in determining the amount of bail.


author: LOLLEY, J.

text:
    Mark HEACOCK, Individually and as Administrator of the Estate of His Minor Child, Curtis Heacock and Margaret Heacock, Individually, Plaintiffs-Appellants v. Douglas Wayne COOK, M.D. and Palmetto Addiction Recovery Center, Inc., Defendants-Appellees.
    Nos. 45,868-CA, 45,869-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 29, 2010.

      Edmund M. Thomas, Georgia P. Kosmi-tis, Shreveport, LA, for Plaintiffs-Appellants.
    Ayres, Warren, Shelton & Williams by Lee H. Ayres, Jason W. Poe, Shreeveport, LA, for Defendant-Appellee, Palmetto.
    Nelson, Zentner, Sartor & Snellings by David H. Nelson, Monroe, LA, for Defendant-Appellee, Douglas Wayne Cook, M.D.
    Before STEWART, MOORE and LOLLEY, JJ.
   LOLLEY, J.

| ¡.Plaintiffs, Mark Heacock, individually and as administrator of the estate of his minor child Curtis Heacock, and Margaret Heacock, appeal the judgments of the Fourth Judicial District Court, Parish of Ouachita, Louisiana, which dismissed their claims pursuant to the exceptions of prematurity by the defendants, Douglas Wayne Cook, M.D. and Palmetto Addiction Recovery Center, Inc. The two actions from the trial court have been consolidated on appeal. For the following reasons, we reverse one judgment of the trial court and affirm the other.

Facts

|sOn December 24, 2005, Margaret Heacock was admitted to Palmetto Addiction Recovery Center, Inc. (“Palmetto”) for inpatient treatment of her substance abuse. She was subsequently discharged in May 2006, and began outpatient treatment, which continued through January 18, 2008. Her treating physician, Dr. Douglas Cook (“Dr. Cook”), was also the medical director at the facility. The plaintiffs claim that during Mrs. Heacock’s treatment at Palmetto, Dr. Cook entered into an inappropriate, sexual relationship with her.

On January 16, 2009, the plaintiffs filed two separate petitions in the trial court, and later a petition for medical review with the Louisiana Patients’ Compensation Fund against Dr. Cook and Palmetto. In one lawsuit (4th Judicial District Proceeding No. 09-0208) the plaintiffs allege that Dr. Cook committed intentional torts against Mrs. Heacock (the “intentional tort lawsuit”). In the other lawsuit (4th Judicial District Proceeding No. 09-0204) they claim that Dr. Cook committed negligent acts against Mrs. Heacock (the “negligent tort lawsuit”). As to Palmetto, the plaintiffs make virtually the same allegations in both lawsuits, claiming that Palmetto had knowledge of Dr. Cook’s own chemical dependency requiring close supervision and monitoring which he did not receive. They also claim |4Palmetto was liable under the doctrine of respondeat superior for the “negligent actions” of Dr. Cook and list various particular reasons for which Palmetto is so liable.

In both lawsuits, the defendants filed exceptions of prematurity, seeking to have all claims dismissed in the trial court and brought before the medical review panel. After a joint hearing on the exceptions, the trial court determined that, for the most part, the plaintiffs’ claims sounded in medical malpractice and were, therefore, premature and granted the exceptions. A judgment was rendered in each proceeding dismissing the plaintiffs’ claims without prejudice, and the plaintiffs filed an appeal in each proceeding.

Discussion

On appeal, the plaintiffs argue that the trial court erred in granting the defendants’ exceptions of prematurity. The trial court determined that the majority of the plaintiffs’ claims fell under the purview of the Louisiana Medical Malpractice Act (“LMMA”). As stated, these proceedings deal with claims that Dr. Cook and Palmetto committed both intentional and negligent torts against the plaintiffs as a result of Dr. Cook’s sexual relationship with Mrs. Heacock. The plaintiffs take the position that although they have a Impending LMMA claim, the nature of their allegations is such that the claims fall outside the ambit of the LMMA, and the exceptions of prematurity should have been denied.

Louisiana C.C.P. art. 926 provides for the dilatory exception raising the objection of prematurity. The exception of prematurity addresses the issue of whether a judicial cause of action has yet come into existence because a prerequisite condition has not been fulfilled. White v. St. Elizabeth B.C. Bd. of Directors, 43,329 (La.App.2d Cir.06/04/08) 986 So.2d 202, writ denied, 2008-1440 (La.10/10/08), 993 So.2d 1284. An action will be deemed premature when it is brought before the right to enforce it has accrued. Prematurity is determined by the facts existing at the time the lawsuit is filed. Id.

Specifically, under the LMMA, a medical malpractice claim against a private qualified health care provider is subject to dismissal on an exception of prematurity if such claim has not first been presented to a medical review panel. La. R.S. 40:1299.47(A); LaCoste v. Pendleton Methodist Hosp., L.L.C., 2007-0008 (La.09/05/07), 966 So.2d 519. This exception is the proper procedural mechanism for a qualified health care provider to invoke when a medical malpractice plaintiff has failed to submit the claim for | ficonsideration by a medical review panel before filing suit against the provider. La. C.C.P. art. 926; LaCoste, supra. The burden of proving prematurity is on the exceptor. Id.

Notably, the LMMA applies only to “malpractice” as defined by the statute; other tort liability on the part of a qualified health care provider is governed by general tort law. Coleman v. Deno, 2001-1517 (La.01/25/02), 813 So.2d 303. Louisiana R.S. 40:1299.41(A)(13) and (22) provide the following definitions for malpractice and tort, respectively:

“Malpractice” means any unintentional tort or any breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient, including failure to render services timely and the handling of a patient, including loading and unloading of a patient, and also includes all legal responsibility of a health care provider arising from acts or omissions during the procurement of blood or blood components, in the training or supervision of health care providers, or from defects in blood, tissue, transplants, drugs, and medicines, or from defects in or failures of prosthetic devices implanted in or used on or in the person of a patient.
⅜ ⅜ ⅜ ⅜ jjj ⅜
“Tort” means any breach of duty or any negligent act or omission proximately causing injury or damage to another. The standard of care required of every health care provider, except a hospital, in ^rendering professional services or health care to a patient, shall be to exercise that degree of skill ordinarily employed, under similar circumstances, by the members of his profession in good standing in the same community or locality, and to use reasonable care and diligence, along with his best judgment, in the application of his skill.

Thus, by definition “malpractice” does not include the intentional acts of the health care provider.

As already explained, the plaintiffs filed two separate lawsuits against Dr. Cook and Palmetto: the intentional tort lawsuit and the negligent tort lawsuit. As to Palmetto, the claims in both lawsuits are virtually identical. Likewise, pertaining to Dr. Cook, the allegations in the two lawsuits are very similar. Several of the claims against Dr. Cook relate directly to a negligent deviation from the standard of care and treatment rendered to Mrs. Heacock, thus being malpractice claims. However, several of the claims are not “malpractice” as defined by the LMMA and should be addressed at the trial court, regardless of whether the plaintiffs are proceeding with a petition for medical review with the Louisiana Patients’ Compensation Fund. The trial court determined that “at least a portion” of the plaintiffs’ claims fell within the LMMA and granted the exceptions of prematurity in the interest of judicial economy. Although separate judgments were | ¿rendered for each lawsuit, the trial court made no distinction between the two in its reasons, and the judgments are virtually identical.

Intentional Torts

As to the intentional claims against Dr. Cook, the plaintiffs claim that he intentionally:

1) became émotionally, physically and sexually involved with Mrs. Heacock through January 18, 2008;
2) took advantage of her fragile emotional condition;
3) used his position of treating physician and therapist to manipulate Mrs. Heacock;
4) prescribed to his patient, Mrs. Heac-ock, medications' which caused physical and emotional harm;
5) advised and counseled patient in a manner to cause her harm;
6) inflicted sexual battery and assault on Mrs. Heacock.

The statutory law leaves no doubt that “malpractice” under the LMMA does not include intentional torts. See La. R.S. 40:1299.41(A)(13). However, examination of the nature of the acts must be conducted to determine whether they truly constitute intentional torts as alleged by the plaintiffs.

|3The jurisprudence provides guidance as to this specific conduct by Dr. Cook. Specifically, this court has previously determined that sexual exploitation of a patient is an intentional tort not considered malpractice under the LMMA. L.T. v. Chandler, 40,417 (La.App.2d Cir.12/14/05), 917 So.2d 753. The Fourth Circuit has also held that allegations of sexual misconduct do not constitute medical malpractice under the LMMA, because the act does not qualify as an unintentional tort. See Fuentes v. Doctors Hosp. of Jefferson, 2001-0305 (La.App. 4th Cir. 11/21/01), 802 So.2d 865; Jure v. Raviotta, 612 So.2d 225 (La.App. 4th Cir.1992), writ denied, 614 So.2d 1257 (La.1993).

As alleged, Dr. Cook took deliberate action as a physician by becoming involved in a sexual relationship with his patient, Mrs. Heacock — he obviously acted intentionally. Therefore, we believe that plaintiffs’ claims as alleged of intentional torts committed by Dr. Cook (i.e., that he participated in a sexual relationship with his patient), are not to be considered “malpractice” as defined by the LMMA. This type of deliberate action, a sexual relationship, has been deemed to be an intentional tort, and, as such, not considered a malpractice claim. We agree that the body of jurisprudence |inclassifying sexual misconduct by a physician as an intentional tort is applicable in this circumstance. Those claims against Dr. Cook that he acted intentionally in conducting a sexual relationship with Mrs. Heacock, as well as his intentional actions that flowed from that relationship, cannot be considered malpractice as defined by the LMMA. As a result, we conclude that the trial court erred in granting Dr. Cook’s exception of prematurity regarding the claims of intentional torts by Dr. Cook.

The plaintiffs have also brought claims against Palmetto in their intentional tort lawsuit, claiming that Palmetto is vicariously liable for Dr. Cook’s actions. At this juncture in the litigation, we are simply called to determine whether the plaintiffs’ action against Palmetto was premature-an analysis of the merits of the claims is inappropriate. Thus, we consider the issue of whether the judicial cause of action has yet to come into existence because a prerequisite condition has not been fulfilled. See White v. St. Elizabeth B.C. Bd. of Directors, supra. In order to do so, we must determine if the plaintiffs’ claim against Palmetto is an unintentional tort, i.e., malpractice. If they have stated a proper intentional tort as to Palmetto, such a claim is not malpractice and not premature.

|n Considering that the plaintiffs’ claims against Dr. Cook for intentional tortious conduct are not malpractice claims and, therefore, not premature, it follows that an allegation of Palmetto’s vicarious liability for Dr. Cook’s intentional tortious conduct likewise is not malpractice and not premature. Although Palmetto argues that the plaintiffs’ claims of intentional tortious conduct, if any, cannot be imputed to it, such an argument goes to the merits of the plaintiffs’ claims. Whether or not the plaintiffs would prevail in their claim for Palmetto’s vicarious liability for Dr. Cook’s intentional acts is not the issue-the fact that the plaintiffs have made a claim against Palmetto that is not malpractice is the issue we must consider to determine whether or not the claim was premature.

In making its argument, Palmetto argues the inapplicability of Samuels v. Southern Baptist Hosp., 594 So.2d 571 (La.App. 4th Cir.02/13/92), writ denied, 599 So.2d 316 (La.1992), in which case Southern Baptist Hospital was deemed to be vicariously liable for the intentional acts of its employee. Instead, Palmetto submits that the more recent decision in Baumeister v. Plunkett, 1995-2270 (La.05/21/96), 673 So.2d 994 should be considered. In Baumeister, the Supreme Court considered four factors to determine whether vicarious liability applied to the alleged conduct, and ultimately decided that the hospital was not vicariously | pliable for the intentional act (a rape) of its employee/nurse. However, at this phase in the litigation, we are not interested in considering the merits of the plaintiffs’ claims. Notably, what both Samuels and Bau-meister tell us is that a court will consider a claim that an employer is vicariously liable for an employee’s intentional torts. At this time, an analysis of whether the plaintiffs will prevail against Palmetto is irrelevant. What is relevant is that the plaintiffs raised a valid claim against Palmetto that did not fit within the definition of malpractice; thus those claims were improperly dismissed by the trial court for prematurity.

Negligent Torts

In addition to the intentional tort allegations by the plaintiffs, they have also asserted some claims of negligence that they maintain fall outside the definition of malpractice. Our review of the negligent tort lawsuit shows the following allegations that sound in negligence:

1) Dr. Cook’s continuous negligent advice and counseling influenced Mrs. Heacock to engage in personally harmful and destructive behavior and damaged her ability to communicate and relate to her husband;
2) Dr. Cook’s continuous negligent advice, counseling and actions caused negligent infliction of emotional pain and distress to plaintiffs; and
11S3) Dr. Cook continuously negligently prescribed medications to Mrs. Heacock which medications caused her physical and emotional harm.

It is possible for a plaintiff to make negligence claims against a health care provider that fall outside of the definition of malpractice. See LaCoste, supra. However, in this case, we believe that the unintentional claims against Dr. Cook, as alleged, fall within the definition of malpractice and should be considered by a medical review panel.

The Louisiana Supreme Court has set fourth six factors which determine whether a claims sounds in medical malpractice and must first be presented to a medical review panel. Coleman v. Deno, supra at 315-16. Those factors are:

(1) whether the particular wrong is “treatment related” or caused by a dereliction of professional skill;
(2) whether the wrong requires expert medical evidence to determine whether the appropriate standard of care was breached;
(3) whether the pertinent act or omission involved assessment of the patient’s condition;
(4) whether an incident occurred in the context of a physician-patient relationship, or was within the scope of activities which a hospital is licensed to perform;
114(5) whether the injury would have occurred if the patient had not sought treatment; and,
(6) whether the tort alleged was intentional.

We now apply the Coleman factors to the allegations made in the plaintiffs’ petition, which we accept as true for purposes of this dispute.

(i) Whether the particular wrong is “treatment related” or caused by a dereliction of professional skill

The Heacocks allege that Dr. Cook’s negligent advice and counseling as well as his negligent prescription of medication caused Mrs. Heacock’s harm. Initially, we nóte that the allegations of negligence on their face sound treatment related. Obviously, Dr. Cook was in a position to advise, counsel and medicate Mrs. Heacock in his role as a physician. In fact, before a sexual relationship ever developed, we assume that she was under his care so he could render treatment, which would obviously include advice, counsel and medication. Those are things a physician routinely does with a patient. Specifically, considering the nature of Dr. Cook’s medical specialty and Mrs. Heacock’s illness, it is readily apparent that his treatment of this particular patient involved advice, counsel and | ^medication. His negligence in rendering such treatment would be malpractice. Thus, under this factor, the negligence claims against Dr. Cook sound in malpractice and not general negligence.

(ii) Whether the wrong requires expert medical evidence to determine whether the appropriate standard of care was breached

Considering that we have determined that the negligence allegations against Dr. Cook are treatment related, it stands to reason that expert medical evidence would be necessary to determine whether the standard of care was breached in rendering that treatment. The negligence actions' complained of by the plaintiffs do not involve obvious malpractice (for instance, Dr. Cook did not amputate the wrong limb). In order to prove that Dr. Cook breached the medical standard of care as to Mrs. Heacock, it would be necessary to have expert medical evidence. Without expert medical evidence, a factfinder would be unable to determine if the negligent advice, counsel and medication was indeed a deviation from the standard. This is not a case in which the alleged wrongful conduct could be evaluated based on common knowledge-expert medical evidence would be necessary.

(Hi) Whether the pertinent act or omission involved assessment of the patient’s condition

11 (¡Allegations were made that Mrs. Heacock was the patient of Dr. Cook — that is the basis for the litigation. It obviously follows that if Dr. Cook, her physician, was rendering advice, counsel and medication to Mrs. Heacock, his patient, some assessment of her condition had to be made by him at some point in time. Thus, based on the fact that Mrs. Heacock was clearly the patient of Dr. Cook’s, even as the sexual relationship continued, his ongoing treatment of her, albeit allegedly negligent, necessitated some assessment of her condition.

(iv)Whether an incident occurred in the context of a physician-patient relationship

The negligent incidents alleged by the plaintiffs clearly occurred in the context of the physician-patient relationship. In fact, the basis of the plaintiffs’ lawsuits is the physician-patient relationship between Dr. Cook and Mrs, Heacock, and the theory that this sexual relationship should not have occurred due to the physician-patient relationship. If the incident did not occur in the context of a physician-patient relationship, this would be no different from the run-of-the-mill extramarital affair. The basis of the litigation and the crux of the plaintiffs’ allegations is that the incidents | ^occurred in the context of, and despite, the physician-patient relationship and it hindered Mrs. Heacock’s recovery.

(v) Whether the injury would have occurred if the patient had not sought treatment

■ From the record, it is unknown whether Dr. Cook and Mrs. Heacock knew each other before she sought treatment from him at Palmetto; however, it does not appear that they did. Had Mrs. Heacock not sought treatment from Dr. Cook for her substance abuse, common sense would dictate that her alleged injuries sustained as a result of his advice, counsel and medication would not have occurred.

(vi) Whether the tort alleged was intentional

As the plaintiffs have filed separate lawsuits claiming intentional torts and negligent torts, the claims addressed herein are distinguishable from the claims of intentional tortious acts allegedly conducted by Dr. Cook. The claims discussed herein address those unintentional acts by Dr. Cook, and so potentially would fit within the definition of malpractice.

Accordingly, considering the ' Coleman factors, the claims of negligent behavior by Dr. Cook fall within the ambit of the statutory 11sdefinition of malpractice. As such, they should be considered pursuant to the LMMA and were properly deemed to have been filed prematurely.

As to Palmetto, the plaintiffs claim that it is vicariously liable for the negligent acts of Dr. Cook. Regarding the negligence claims that we have determined are claims of malpractice and not simply general negligence, it follows that if Palmetto is vicariously liable for those actions, such claims against Palmetto would also be considered malpractice.

The plaintiffs have also alleged that Palmetto failed to train and/or supervise Dr. Cook, naming several particular ways in which they believe Palmetto was negligent. Notably, however, the definition of malpractice specifically “includes all legal responsibility of a health care provider arising from ... the training or supervision of health care -providers.” These specific claims by the plaintiffs fall squarely within the definition of malpractice under the LMMA. Thus, these claims must be considered by the medical review panel prior to being brought before the trial court. As to these particular claims against Palmetto, the trial court did not err in granting its exception of prematurity.

| inFinally, we note the trial court’s reason for granting the exceptions of prematurity in the interest of judicial economy. Whereas we wholeheartedly agree that judicial economy is a worthwhile consideration, the courts should not lose sight of justice in the pursuit of economy. Here, there are other means in which the trial court might achieve greater judicial economy and deter piecemeal litigation. The trial court might consider consolidating the matters and/or staying the district court litigation pending the outcome of the medical review panel. Otherwise, we see no express prohibition of two legal actions (i.e., the medical review panel and the district court litigation) being held simultaneously. The plaintiffs should be able to proceed with their proper legal claims.

Conclusion

Considering the foregoing, the judgment of the trial court in proceeding no. 09-0208 is reversed, and the judgment of the trial court in proceeding no. 09-0204 is affirmed. Each party is to bear its own costs of appeal.

NO. 45,868-CA REVERSED; NO. 45,-869-CA AFFIRMED.

      . This court consolidated the appeals by its own motion on August 16, 2010.

      . Whether or not Dr. Cook indeed committed those intentional torts against the plaintiffs will be determined by the evidence yet to be considered by the trial court.

      . We note that the plaintiffs have alleged that "[Palmetto] is liable under the doctrine of respondeat superior for the negligent actions of its employee, [Dr. Cook].... ” Considering that this lawsuit puts forth the claims of intentional torts by Dr. Cook (even though some of the wording of the allegations is somewhat questionable), and the parties have taken the position that the plaintiffs have claimed vicarious liability for the intentional acts as well as the negligent acts, we will assume that plaintiffs are alleging vicarious liability for the intentional acts of Dr. Cook.


author: SUSAN M. CHEHARDY, Judge.

text:
    BOTTOM LINE EQUIPMENT, L.L.C. v. BZ EQUIPMENT, L.L.C., John Bodilly and Darin Zech.
    No. 10-CA-830.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 25, 2011.

      Scott G. Wolfe, Jr., Seth J. Smiley, Attorneys at Law, New Orleans, LA, for Plaintiff/Appellant, Bottom Line Equipment, L.L.C.
    Robert L. Raymond, Attorney at Law, Destrehan, LA, for Defendant/Appellee, John Bodilly.
    Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and ROBERT L. LOBRANO, Pro Tempore.
   SUSAN M. CHEHARDY, Judge.

LThis appeal concerns whether the trial court erred in failing to find the managing member of a limited liability company personally liable for corporate debts. We affirm the trial court’s determination that the corporate veil may not be pierced.

FACTS

Bottom Line Equipment, L.L.C. (hereafter “Bottom Line”) leased three pieces of construction equipment to BZ Equipment, L.L.C. (“BZ”) between Api*il 2007 and June 2007. In November 2008 BZ ceased doing business, leaving its debt to Bottom Line unpaid.

Bottom Line filed suit against BZ, seeking money owed under the terms of the rental agreements, repair expenses for damage to the equipment, and loss of rent during the time it took to repair the equipment. Bottom Line also named as defendants the members of the BZ limited liability company, John Bodilly and Darin Zech. Bottom Line sought to pierce the corporate veil on the ground that BZ was the alter ego of the company’s members and, hence, judgment should be rendered against them individually.

IsPrior to trial, Bottom Line dismissed its claims against Zech without prejudice due to lack of service.

At trial the testimony established that John Bodilly and Darin Zech, both residents of Wisconsin, formed BZ Equipment, L.L.C., a limited liability company, in Wisconsin in 2005. Bodilly is a CPA who had done tax returns for Zech; Zech worked in the construction industry. Bo-dilly invested $40,000 in the company and was managing member; Zech invested $10,000 and was participating member. They intended for BZ to go into the business of demolition and debris removal in Wisconsin. After Hurricane Katrina, however, they decided to focus on demolition and debris removal in Louisiana. Zech came to Louisiana, while Bodilly remained in Wisconsin. BZ had a Samsung excavator, two freight liner trucks, as well as a tractor and trailer.

In Louisiana BZ made applications for an occupational license, payroll taxes, and so on. Bodilly handled the paperwork from Wisconsin; Zech was in Louisiana to perform day-to-day operations. Zech went to Bottom Line in December 2006 to lease some heavy machinery. BZ first had to submit a credit application to Bottom Line. The application form was faxed to Bodilly in Wisconsin; Bodilly completed the form, signing his name with the title “Managing Member,” and faxed it back to Bottom Line. The application was accepted.

In April 2007 BZ leased a Lugong loader for a week or two; the rent was paid, and the Lugong was returned to Bottom Line in due course with no problems. BZ also leased a Caterpillar 320C excavator and then a Kobelco 160 excavator with pulverizer. The Caterpillar was leased for 10 weeks, and the Kobelco was leased for a little more than a week.

Bottom Line eventually repossessed the Caterpillar because BZ failed to make the lease payments. After recovering the Caterpillar, Bottom Line found it |4had extensive damage that included broken windows and destruction of doors, among other things. The damage went beyond normal wear-and-tear and the machine could not be rented to another customer until it was repaired. The Caterpillar was out of service for approximately two months while it was repaired. Similarly, when BZ returned the Kobelco equipment it was damaged, although less extensively than the Caterpillar. Bottom Line made claims against BZ’s insurer, but the claims were denied. BZ never paid the repair invoices or the balance of the rentals due on the machines.

Bodilly testified that while BZ was operating in Louisiana, he and Zech formed two additional companies. Louisiana Environmental Reclamation (“LER”) was formed so they could get a bank loan to purchase a concrete-crusher machine, which was used by BZ. By the time of the trial, both BZ and LER had ceased doing business.

In April 2007 Bodilly and Zech formed Williams Concrete, L.L.C., with a man from St. Bernard Parish who supposedly had local contacts to sell crushed concrete. The expected sales did not materialize, and Williams Concrete also went out of business.

Bodilly testified that BZ had a difficult time collecting accounts receivables, which ultimately led to the company’s insolvency. Although the equipment BZ owned eventually was sold, the proceeds were paid to the bank that had a secured interest in the equipment. In addition, Bodilly repeatedly lent his own money to BZ to repay the bank loan. He did this by writing a personal check to BZ, which was deposited in BZ’s checking account, then checks were written from BZ’s account for loan repayment. Bodilly testified he never used BZ’s account to pay his personal expenses or for non-company-related payments.

|aBodilly testified that LER generated some revenue, but it was not enough to pay its debts.

Neither the credit agreement signed by Bodilly, nor the individual rental agreements for the various pieces of equipment, contained any provision making Bodilly or Zech personally liable for BZ’s debt to Bottom Line. Bodilly signed all documents related to BZ as “managing member.”

Bottom Line directed all invoices for payments due by BZ to BZ Equipment. All invoices and expenses of BZ Equipment were paid from BZ’s bank account at a Wisconsin bank, Middleton Community Bank.

The district court found in favor of Bottom Line and awarded damages of $81,634.24, plus interest and costs, against BZ only. The court dismissed the claims against Bodilly.

In written reasons for judgment, the court made the following conclusions:

Plaintiff in this case has failed to carry his burden to pierce the corporate veil either to Mr. Bodilly personally or Mr. Bodilly’s other corporations. First, plaintiff has failed to establish that BZ Equipment engaged in fraud or deceit in an attempt to defraud its creditors. Second, plaintiff has failed to establish that BZ was simply the alter ego of Mr. Bodilly and the corporation was indistinguishable from its shareholders. Third, plaintiff has failed to establish that BZ Equipment and Mr. Bodilly’s other ventures operated as a single business entity. Furthermore, plaintiff cannot pierce the corporate veil of these separate corporations because they were not named as parties in this litigation.

Bottom Line appeals. It does not challenge the damages awarded, but raising the following assignments of error:

(1) The trial court misapplied applicable law in determining whether to pierce the corporate veil of BZ Equipment, L.L.C.;

ls(2) The trial court erred in not considering the “single business entity” theory when determining whether to pierce the corporate veil and hold an individual member liable;

(3) The trial court erred in dismissing Bodilly and its determination that BZ Equipment, L.L.C.’s corporate veil should not be pierced.

LAW AND ANALYSIS

Juridical persons, such as corporations and limited liability companies, are distinct from their members. La. C.C. art. 24. Generally, members of a limited liability company (“LLC”) are not personally liable for the debts, obligations and other liabilities of the LLC to third parties, and an LLC member is not a proper party in any proceeding against the LLC. La. R.S. 12:1320(B). However, third parties can bring claims against a member for “any fraud practiced upon him, because of any breach of professional duty or other negligent or wrongful act by such person, or in derogation of any right which the limited liability company may have against such person because of any fraud practiced upon it by him.” La. R.S. 12:1320(D).

Under certain circumstances, therefore, a court can pierce the corporate veil in order to reach the “alter ego” of the corporate member and hold the corporate member liable for the debts of the corporation. Peyton Place Condominium Associates, Inc. v. Guastella, 08-365, p. 25 (La.App. 5 Cir. 5/29/09), 18 So.3d 132, 149. The theory of piercing the corporate veil applies to limited liability companies and is not limited to corporations. ORX Resources, Inc. v. MBW Exploration, LLC, 09-662, p. 7 (La.App. 4 Cir. 2/10/10), 32 So.3d 931, 935, writ denied, 10-530 (La.5/7/10), 34 So.3d 862.

Due to the beneficial role of the corporate concept, the limited liability attendant to corporate ownership should be disregarded only in exceptional circumstances. |7... Before the corporate entity is disregarded on the basis it is simply the alter ego of the member, proof of fraud or deceit is usually required. The corporate entity may also be disregarded when the individualities of the corporation and member cease to exist. [Citations omitted.]

Prasad v. Bullard, 10-291, p. 7 (La.App. 5 Cir. 10/12/10), 51 So.3d 35, 40.

When a party seeks to pierce the corporate veil, the totality of the circumstances is determinative. The Louisiana Supreme Court has identified five non-exclusive factors to be used in determining whether to apply the alter ego doctrine: (1) commingling of corporate and shareholder funds; (2) failure to follow statutory formalities for incorporating and transacting corporate affairs; (3) undercapitalization; (4) failure to provide separate bank accounts and bookkeeping records; and, (5) failure to hold regular shareholder and director meetings. The involvement of a sole shareholder in a corporation is insufficient alone to establish a basis for disregarding the corporate entity. In determining whether to pierce the corporate veil to impose contractual or legal obligations on an individual, competing policies supporting the recognition of a separate corporate existence and those justifying piercing the veil must be weighed to determine if there is some misuse of the corporate privilege or other justification for limiting it under the facts of a particular situation. A trial court’s finding that the corporate entity should be disregarded is a finding of fact which is subject to the manifest error standard of review. [Citations omitted.]

Prasad v. Bullard, 10-291 at pp. 7-8, 51 So.3d at 40-41, citing Town of Haynesville, Inc. v. Entergy Corp., 42,019, p. 8 (La.App. 2 Cir. 5/2/07), 956 So.2d 192, 197, writ denied, 07-1172 (La.9/21/07), 964 So.2d 334.

The trial court stated in its Reasons for Judgment that there is no evidence John Bodilly used the corporate form to perpetrate fraud, although he may have made questionable and/or poor business decisions. The court found that Bodilly’s actions of writing personal cheeks to BZ that were deposited into BZ’s account, then writing checks from the BZ account to company debts, was essentially an | finterest-free loan and did not constitute sufficient grounds to find Bodilly disregarded the corporate entity.

The trial court also found no merit to Bottom Line’s claim that BZ failed to follow statutory formalities for incorporating and transacting corporate affairs by failing to properly register in Louisiana. The court noted that BZ obtained the proper occupational and local licenses, registered for tax purposes, filed tax reports and returns, and obtained all permits it believed were necessary to transact business in Louisiana. Further, at trial Bottom Line failed to introduce proper evidence to establish that BZ was not authorized to do business in Louisiana.

The trial court further found there was no evidence that BZ was under-capitalized. At startup the company owned one piece of equipment and had $50,000 in cash. During the course of its operations the company received additional infusions of capital in the form of a $272,912.81 bank loan and a personal loan from Bodilly of $195,506.34. The balance sheet showed only $16,877.44 in revenue and one piece of equipment worth approximately $50,000. The court found that raised a question as to competency of the company’s business practices, but it did not establish that BZ was inadequately capitalized.

In addition, the trial court found no evidence that Bodilly and BZ Equipment failed to maintain separate bank accounts and bookkeeping records.

Finally, with regard to whether the corporation failed to hold regular meetings of shareholders and directors, the court noted there was no testimony to establish such. The court found, however, Bodilly’s testimony that he and Zech regularly discussed business operations and that they met informally sufficed to |3satisfy the spirit of the requirement, because this was a small, closely-held corporation in which they were the only members.

Bottom Line contends the trial court erred in limiting its analysis to the five factors set out in the Town of Haynesville case. Bottom Line asserts the court should have looked at the “totality of the circumstances” to determine that Bodilly was using the corporate form to defraud creditors. As examples, Bottom Line points to failure to follow statutory formalities for incorporation; one corporation causing the incorporation of another; commingling of corporate and shareholder funds; diversion of corporate assets; common use of corporate equipment; one corporation financing the other corporation; common payment by one corporation of the other corporation’s salaries or financial losses; unclear allocations of profits and losses; excessive fragmentation of corporate business.

Further, Bottom Line argues that the trial court erroneously separated its “alter ego” analysis into (1) the Town of Haynes-ville factors and (2) the single entity doctrine. Bottom Line contends the trial court erred in dismissing the single entity theory' on the basis that Bottom Line failed to sue the other corporations or to seek to hold the other corporations liable for BZ’s debts. Bottom Line argues piercing the corporate veil is applicable to situations in which the shareholders are using the corporate forms from other corporations to defraud creditors.

In support of its arguments, Bottom Line cites the following testimony:

(1) Bodilly sent correspondence to Bottom Line on January 26,' 2008, attaching BZ’s 2007 Profit and Loss Statement and Balance Sheet, asserting that BZ “was in very poor financial condition” and “unable to pay.”

(2) Bodilly represented to another company in early 2008 that BZ was “insolvent.”

lm(3) Bodilly did not remember whether he registered with the Louisiana Secretary of State’s for authority to do business in Louisiana.

(4) Despite representations to its creditor in January 2008 that BZ was “insolvent” and “unable to pay,” BZ continued in business until November 2008;

(5) Despite representations to its creditor in January 2008 that BZ was “insolvent” and “unable to pay,” Bodilly filed a UCC Financing Statement against BZ for “all business assets including but not limited to cash, accounts receivables and equipment” on May 30, 2008.

(6) With regard to BZ’s reporting $869,962.14 in expenses, but only $16,877.44 of total revenue, Bodilly testified that during the time BZ contracted with Bottom Line the Williams Concrete company earned revenue for work produced by equipment leased or owned by BZ.

(7) Bodilly incorporated LER through the Louisiana Secretary of State’s office in 2008, and LER performed work identical to the work performed by BZ and used equipment owned by BZ to perform the work, at no compensation to BZ.

(8) LER operated on the same property in St. Bernard Parish where BZ operated in 2007 and 2008.

(9) Bodilly stated LER was started because BZ could not qualify for a bank loan, while the new company could qualify for a loan.

(10) Although Bodilly asserted LER is now also insolvent and last performed work in November 2009, he admitted he filed a UCC Financing Statement against the company’s asserts, accounts receivable and equipment in December 2009.

(11) Bodilly admitted the companies paid rent for the St. Bernard Parish property where work was performed through November 2009 and denied any Inpayments of rent thereafter. Nevertheless, Bodilly admitted the equipment owned by BZ is still present on the St. Bernard Parish property.

(12) Middleton Community Bank in Wisconsin lent BZ $272,912.81, and Bodilly personally loaned BZ $195,506.34 in 2007. Yet BZ had only $16,877.44 in revenue and equipment, one piece of equipment worth $50,000.

(13) The Middleton Community Bank loan to BZ still maintains a balance, which Bodilly continues to pay with his personal funds by writing a check to BZ and then having BZ write a check to Middleton.

(14) LER leased equipment from Scott’s Equipment and has been sued for failing to pay in the same style as this litigation.

Bottom Line asserts all the above factors justify piercing the corporate veil to hold Bodilly personally liable. Bottom Line argues it presented evidence that Bo-dilly used BZ and the other corporations to commingle assets, to systematically divert and hide assets, to improperly allocate profits and losses, and to defraud BZ’s creditors. Bottom Line avers the trial court erred because it held these maneuvers need not be considered because the trial court found the “single business entity theory” inapplicable where neither of the other corporations were made defendant in this suit.

In conclusion, Bottom Line asserts the trial court’s refusal to consider evidence demonstrating that various business entities were used to defraud creditors was a legal error, and such should have been considered in determining “whether the veil should be pierced to hold the members orchestrating such fraud personally liable for the corporate debts.”

Where there is a conflict in the testimony, inferences of fact should not be disturbed upon review, even though the reviewing court may feel that its own evaluations and inferences are as reasonable. In order to reverse a district court’s determination of a fact, a reviewing court must | ^review the record in its entirety and (1) find a reasonable factual basis does not exist for the finding, and (2) further determine the record establishes the factfinder is clearly wrong or manifestly erroneous. The issue to be resolved by the reviewing court is not whether the factfinder was right or wrong, but whether the factfinder’s conclusion was a reasonable one.
Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. When findings are based on determinations regarding the credibility of witnesses, the manifest error or clearly wrong standard demands great deference to the trier of fact’s findings because only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said.

Garrity v. St. Paul Fire & Marine Ins. Co., 07-965 (La.App. 5 Cir. 4/15/08), 984 So.2d 900, 904, writ denied, 2008-1051 (La.8/29/08), 989 So.2d 106.

In response, Bodilly asserts Bottom Line cannot show on appeal that the trial court’s judgment was unreasonable, considering the record in its entirety. With respect to the factors to be considered in determining whether there is sufficient evidence to support a finding that a company is merely an alter ego of an individual, so as to hold the individual liable for the company’s debts.

Bodilly contends the trial court’s judgment is reasonable based upon the evidence. Bodilly asserts there is no evidence in the record to support a finding that the companies in which Bodilly had an interest integrated their resources and operated to achieve a common business purpose. The mere fact of Bodilly’s having an interest in several companies is insufficient to warrant disregarding the corporate entities.

Bodilly further argues that Bottom Line’s assertion that Williams Concrete benefited from revenue for debts and expenses incurred by BZ is incorrect. Rather, Bodilly points to his testimony that he did not make money through the Williams Concrete venture.

| ,Jn addition, Bodilly asserts that BZ did not incur expenses for another company to receive payment; rather, BZ was unable to collect on its outstanding accounts receivable. BZ had incurred debts to perform work, but was not paid for the work performed, and that is what resulted in BZ’s ultimate insolvency.

We find no manifest error in the trial court’s determinations that Bottom Line failed to establish that Bodilly engaged in fraud or deceit in an attempt to defraud creditors, that Bottom Line failed to establish that Bodilly was merely the alter ego of BZ, and that Bottom Line failed to establish that the other companies in which Bodilly had an interest operated as a single entity.

Reviewing the evidence, we find no manifest error in the trial court’s obvious assessment that Bodilly’s testimony was credible, and in the court’s determination that neither the alter ego nor single business enterprise theories apply in this case. Hence, we affirm the judgment that dismissed Bottom Line’s claims against Bodilly-

For the foregoing reasons, the judgment is affirmed. Costs of appeal are assessed against the appellant, Bottom Line Equipment, L.L.C.

AFFIRMED

      . Counsel for Bottom Line attempted to introduce testimony about a search of the records of the Louisiana Secretary of State, but the court excluded the testimony on the basis of hearsay. The court upheld the defense’s objection that Bottom Line should have obtained a certificate from the Secretary of State as to any information or lack of information in the records, rather than attempting to introduce evidence from an individual connected with Bottom Line who had researched the Secretary of State's records.


author: ROBERT L. LOBRANO, Judge Pro Tempore.

text:
    STATE of Louisiana v. Derrick WILLIAMS.
    No. 10-KA-384.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 25, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorney, Gretna, LA, for Plaintiff/Appel-lee.
    Bruce G. Whittaker, Attorney at Law, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges WALTER J. ROTHSCHILD, MARC E. JOHNSON and ROBERT L. LOBRANO.
   ROBERT L. LOBRANO, Judge Pro Tempore.

li.On September 23, 2004, the Jefferson Parish Grand Jury returned an indictment charging defendant, Derrick Williams, with second degree murder in violation of LSA-R.S. 14:30.1. At the September 27, 2004 arraignment, defendant pled not guilty. Thereafter, on February 10, 2009, the State amended the indictment charging defendant with manslaughter in violation of LSA-R.S. 14:31. On this same date, defendant withdrew his not guilty plea and pled guilty to the amended charge of manslaughter. In accordance with the plea agreement, the trial judge sentenced defendant to thirty years imprisonment at hard labor. On December 28, 2009, the trial court granted defendant an out-of-time appeal.

ANDERS BRIEF

On appeal, defendant’s appellate counsel filed a brief pursuant to the procedure approved by the United States Supreme Court in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting that he has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. The Anders procedure used in Louisiana was discussed in State 3v. Benjamin, 573 So.2d 528, 530 (La.App. 4 Cir.1990), sanctioned by the Louisiana Supreme Court in State v. Mouton, 95-981 (La.4/28/95), 653 So.2d 1176, 1177 (per curiam), adopted for use by this Court in State v. Bradford, 95-929 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110, and expanded by the Louisiana Supreme Court in State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241 (per curiam).

In Anders, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if he finds his case to be wholly frivolous after a conscientious examination of it. The request must be 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 whether the appeal is indeed so frivolous that counsel should be permitted to withdraw.” McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 439, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440 (1988).

In State v. Jyles, 704 So.2d at 241, the Louisiana Supreme Court stated that an Anders brief need not tediously catalog every meritless pretrial motion or objection made at trial with a detailed explanation of why the motions or objections lack merit. The Supreme Court explained that an Anders brief must demonstrate by full discussion and analysis that appellate counsel “has cast an advocate’s eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration.”

14When 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. State v. Bradford, 676 So.2d at 1110.

In his brief, defendant’s appellate counsel asserts that after a detailed review of the record, he could find no non-frivolous issues to raise on appeal. Counsel first discusses the trial court’s ruling on defendant’s motion to suppress statement. He specifically notes the testimony of Detective Gorumba at the suppression hearing that he advised defendant of his rights and that defendant signed the waiver of rights form indicating that he wished to waive his rights and give a statement. Counsel further points out that the defense offered no evidence to contest Detective Gorumba’s testimony and concludes that the denial of defendant’s motion to suppress statement was not unsupported by the evidence.

In his brief, appellate counsel next addresses the competency proceedings. Recognizing that defense counsel stipulated to defendant’s competency, appellate counsel asserts that the record supports the trial court’s determination that defendant was competent to proceed.

Counsel also contends that defendant’s thirty year sentence at hard labor is significantly less severe than the sentence mandated by law for the original charge of second degree murder and is ten years less than the maximum available for the manslaughter crime to which defendant pled guilty. He further notes that the sentence, which was imposed in compliance with the plea agreement, does not appear to be constitutionally excessive under the circumstances of the case.

|fiIn his brief, appellate counsel lastly asserts that the indictment appears to be in order and the minutes indicate that defendant was present for all critical court proceedings.

Along with his brief, appellate counsel has filed a motion to withdraw as attorney of record, stating that he has conducted a conscientious and thorough examination of the record herein and found no non-frivolous issue upon which to arguably support an appeal. He contends he mailed a copy of the brief he filed to defendant and moves to withdraw from the case, preserving to defendant any and all rights including the right to file a pro se supplemental brief. Additionally, this Court sent defendant a letter by certified mail informing him that an Anders brief had been filed and that he had until July 15, 2010, to file a pro se supplemental brief. In a subsequent order, this Court gave defendant until August 5, 2010 to file a supplemental brief in this appeal. As of this date, defendant has not filed a supplemental brief.

Our independent review of the record supports appellate counsel’s assertion that there are no non-frivolous issues and no rulings which arguably support an appeal. In the present case, defendant pled guilty to manslaughter. If a defendant pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea and precludes a review of such defects either by appeal or post-conviction relief. State v. Wingerter, 05-697 (La.App. 5 Cir. 3/14/06), 926 So.2d 662, 664.

Defendant filed a motion to suppress confession, identification, and physical evidence. However, only the motion to suppress statement was presented at the hearing, after the State verified that no physical evidence was recovered and that there were no photographic lineup identifications other than those made by the co-defendants. The trial judge denied the motion to suppress statement, finding that lathe statement was freely and voluntarily given after full advice of rights. This ruling was not preserved for appeal under the holding in State v. Crosby, 338 So.2d 584 (La.1976). As such, the trial court’s denial of the motion to suppress statement is not an issue that would support an appeal.

Another ruling by the trial court that is included in the record is from the September 12, 2007 hearing, where the trial court found that defendant was competent to proceed to trial. Defense counsel appeared to stipulate as to defendant’s competency at the hearing. As such, this ruling does not present an issue that would support an appeal.

With regard to defendant’s guilty plea, the record shows that defendant was aware he was pleading guilty to manslaughter. Defendant was advised of his right to a judge or jury trial, his right to confrontation, and his privilege against self-incrimination, as required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Defendant was advised of these rights by means of the waiver of rights form. He was also advised of these rights during the colloquy with the trial judge. Defendant indicated during the colloquy that he understood that he was waiving these rights.

The waiver of rights form reflects that defendant was satisfied with his attorney’s explanation and that he had not been forced, coerced, or threatened tc plead guilty. The form also reflects that defendant was advised that his guilty plea could be used against him in the future if he was convicted of another felony, making the possible penalty greater. Defendant was also advised that he faced a possible sentencing range of zero to forty years and that he would be sentenced to thirty years at hard labor. With the knowledge of all that the judge explained to him, defendant indicated that he still wanted to plead guilty.

17With regard to defendant’s sentence, we note that it falls within the sentencing range prescribed by statute. See LSA-R.S. 14:31. Further, defendant’s sentence was imposed pursuant to a plea agreement. LSA-C.Cr.P. art. 881.2(A)(2) precludes a defendant from seeking review of his sentence imposed in conformity with a plea agreement, which was set forth in the record at the time of the plea. See State v. Washington, 05-211 (La.App. 5 Cir. 10/6/05), 916 So.2d 1171, 1173.

Based on the foregoing, the proceedings surrounding defendant’s plea of guilty and his sentence do not appear to present any non-frivolous issues'to be raised on appeal. Because appellant counsel’s brief adequately demonstrates by full discussion and analysis that he has reviewed the trial court proceedings and cannot identify any basis for a non-frivólous appeal, and an independent review of the record supports counsel’s assertion, appellate counsel’s motion to withdraw as attorney of record is granted.

ERROR PATENT REVIEW

The record was reviewed for errors patent in accordance with LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Wetland, 556 So.2d 175 (La.App. 5 Cir.1990). Our review reveals no errors patent in this case.

For the foregoing reasons, defendant’s conviction and sentence are affirmed. The motion to withdraw as counsel for defendant is hereby granted.

CONVICTION AND SENTENCE AFFIRMED.

      . The United States Supreme Court most recently reaffirmed its position in Anders in Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).