author: SANDRA CABRINA JENKINS, Judge.

text:
    John H. VAGELOS, Theodore H. Vagelos and Citibank, N.A., et al. v. Kim ABRAMSON, Neil Abramson and Phelps Dunbar, LLP.
    No. 2012-CA-1235.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 2, 2013.

      Robert C. Stern, Killeen & Stern, PC, New Orleans, LA, for PlaintiffiAppellant.
    Nancy J. Marshall, Matthew M. McCluer, Deutsch, Kerrigan & Stiles, L.L.P., New Orleans, LA, for Defendant/Appellee.
    (Court composed of Chief Judge JAMES F. McKAY, III, Judge ROSEMARY LEDET, Judge SANDRA CAB RINA Jenkins).
   SANDRA CABRINA JENKINS, Judge.

[ plaintiffs in this action involving allegations of legal malpractice appeal the two judgments of the trial court sustaining attorney, Kim Abramson’s, Exceptions of Peremption, No Right of Action, and No Cause of Action. In response, Abramson has filed Partial Motions to Dismiss and Alternative Peremptory Exceptions of Res Judicata and a Motion to Seal the Record on Appeal. For the reasons discussed herein, Abramson’s partial motions to dismiss the appeal and motion to seal the records are denied, and the judgments of the trial court dismissing the plaintiffs’ claims are affirmed.

PROCEDURAL HISTORY

Kim Abramson was one of several attorneys hired by Panos Tsolainos to represent him in connection with charges of second degree murder, for which he was tried and found guilty. The case was appealed through the state courts and on February 28, 2005, the United States Supreme Court denied Tsolainos’ petition for writ of certiorari. Based on this ruling, Tsolainos had one year, or until February | ⅞28, 2006, to apply for post-conviction relief in federal court. This legal malpractice lawsuit ensued because the attorneys missed this filing deadline. Also named as plaintiffs in this litigation are the Mar-iongoula T. Tsolainos Living Trust, which was set up by Tsolainos’ late mother to pay for his legal expenses, and its Trustees, John Vagelos, Theodore Vagelos, and Citibank, N.A. (hereinafter collectively referred to as the “Trustees”).

The original petition for damages filed on March 21, 2011, alleged that the attorneys were liable in legal malpractice and contract for the following: (1) failing to provide the contracted for legal services; (2) allowing the February 28, 2006 deadline to pass; (3) failing to disclose the missed deadline; (4) undertaking complex post-conviction representation without adequate experience; and (5) misrepresenting the extent of each attorney’s involvement in the case. It also alleged that Tsolainos was forced to request “out of time” federal post-conviction relief as a result of the attorneys’ “defalcations.”

The Trustees’ claims against the attorneys were based on allegations that they made three separate payments for legal fees to Tsolainos and his attorneys on April 10, 2008 and February 27, 2009-ajHer the deadline for seeking post-conviction relief had already expired. They additionally complained that Abramson did not produce a draft application for post-conviction relief, provide any research concerning the federal filing deadlines or law, or provide an itemized accounting for the work being performed.

| -.Abramson responded to the petition by filing exceptions of peremption, no right of action, and no cause of action. Pursuant to the exceptions, Abramson argued that (1) all of the plaintiffs’ claims should be dismissed pursuant to La. R.S. 9:5605 because the petition was filed more than three years after the attorneys missed the February 28, 2006 deadline, and (2) the Trustees were not proper parties to the litigation because there was no attorney-client relationship between the Trustees and Abramson. At the hearing on the exceptions, the plaintiffs requested leave to amend their petition in order to more clearly assert claims based on unjust enrichment and claims that the attorneys charged for work that was never performed in the case. They filed the amended petition while the exceptions were still under the advisement.

In the amended petition, the Trustees alternatively argued that Abramson was unjustly enriched at the expense of the trust “by virtue of having failed to perform services which would justify the funds received and/or by continuing to request funds for services after her own actions made those services impossible to properly complete.” The amended petition also stated that Abramson “failed to provide the services she said she would, overcharged for services actually provided in violation of Rule of Professional Conduct 1.5(a) and refused to account to the Trust ... or, alternatively, allow Tsolainos to approve itemized billings ... through the Trustees.”

\4First Trial Court Ruling on Exceptions (October 18, 2011)

On October 18, 2011, the trial court rendered its judgment granting Abramson’s Exception of Peremption, No Cause of Action and No Right of Action. The judgment also granted the plaintiffs thirty days in which to amend their petition to state a cause of action. In its Reasons for Judgment, the trial court stated:

This malpractice action was filed on March 24, 2011, which is more than five years after the error or omission alleged by the plaintiffs. This action is per-empted by La. R.S. 9:5605.
Further, neither the Trust nor the Trustee has any right nor have they stated any viable claim against Mrs. Abramson. However, this Court must allow the petitioners one opportunity to amend their petition.

The trial court did not certify this judgment as a final judgment and there was no language explicitly dismissing any of the claims with or without prejudice. Two days later, the trial court signed plaintiffs’ amended petition.

Motion to Clarify

On October 27, 2011, the plaintiffs filed a “Motion for New Trial/Motion to Clarify” the trial court’s October 18, 2011 Judgment. The motion complained that the trial court failed to refer to the amended petition or clarify whether it encompassed the amended petition. In response, on October 28, 2011, the trial court entered an order clarifying its judgment and stating:

This Court based its Judgment and Reasons solely on the original Petition. It has NOT considered any claim for unjust enrichment.

| .¡Second Trial Court Ruling on Exceptions (February 13, 2012)

On November 10, 2011, Abramson re-urged the exceptions of no cause and no right of action, asserting that the case should be dismissed on the grounds that the petition, as amended, failed to state a cause of action on behalf of the Trustees because their unjust enrichment claims still sought the return of attorneys’ fees. Abramson argued that the plaintiffs could not circumvent the law by substituting the Trustees as surrogate plaintiffs for Tsolai-nos, the proper plaintiff, whose legal malpractice claims had already been dismissed as untimely. A hearing was held on the exception of no cause of action. On February 13, 2012, the trial court granted Abramson’s exceptions of no cause of action and no right of action, and dismissed the plaintiffs’ claims with prejudice. The trial court’s reasons for judgment stated:

One cannot use the theory of unjust enrichment to revive a claim that has already been prescribed or been [per-empted].

This appeal was lodged within 60 days of the February 13, 2013 Judgment, on April 12, 2013. On appeal, the plaintiffs argue that the trial court erred in dismissing their claims based on the exceptions. In opposition, Abramson reasserted the claims made in her exceptions before the trial court. She also filed motions to dismiss the appeal and to seal the record on appeal.

DISCUSSION

Partial Motion to Dismiss Appeal

A threshold issue before us on appeal is whether or not the plaintiffs have timely appealed the October 18, 2011 judgment of the trial court. Abramson argues that because any and all of the plaintiffs’ legal malpractice claims were 1 fidismissed pursuant to the October judgment, the plaintiffs had 60 days from the trial court’s entry of a final judgment — or until April 13, 2012 — to appeal any and all claims sounding in legal malpractice. For the reasons discussed below, Abramson’s motions to dismiss are denied.

Louisiana Code of Civil Procedure article 2083 outlines the general law regarding appealable matters; it provides that an appeal may be taken from both final judgments and interlocutory judgments when allowed by law. Article 1841 defines both final and interlocutory judgments. It states that a judgment that does not determine the merits but only preliminary matters in the course of the action is an interlocutory judgment, while a judgment that determines the merits in whole or in part is a final judgment. La. C.C.P. art. 1841.

Louisiana Code of Civil Procedure Article 1915 states:

When a court renders a partial judgment ... or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories ..., the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court
In the absence of such a determination and designation, any order or decision which adjudicates fewer than all claims or the rights and liabilities of less than all of the parties shall not terminate the action as to any of the claims or parties and shall not constitute a final judgment for the purpose of an immediate appeal.

La. C.C.P. art. 1915(B).

Based on the plain language of Article 1915, we find that the trial court’s October 2011 judgment was a partial judgment. First, it did not dispose of all of the claims in the lawsuit. Although the trial court’s judgment stated that Abramson’s exceptions of peremption, no right of action, and no cause of action were granted, the judgment also stated that the court would allow the plaintiffs to amend their petition to state a cause of action. Spencer v. Burglass, 288 So.2d 68, 69 (La.App. 4 Cir.1974); Imperial Trading Co. v. Rouse, 194 So.2d 417, 419 (La.App. 4 Cir.1967). Thus, the judgment did not dispose of all of the claims and rights of the parties and was not appealable. Second, the judgment was never designated as a final, appealable judgment by the trial court as required by La. C.C.P. art. 1915(B).

In addition, we find that the trial court did not err in allowing the plaintiffs to amend their petition because during oral argument, plaintiffs raised issues related to overbilling, unjust enrichment, and the existence of separate and distinct acts of malpractice not barred by peremption. Louisiana Code of Civil Procedure Article 934 states, “When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court” (Emphasis added). In addition, the Louisiana Supreme Court declared that in situations “where the plaintiff has raised allegations in argument which might be sufficient to overcome a peremptory exception of prescription, he should be allowed time to amend his petition to assert such allegations, even though the claim asserted in the original petition is prescribed on its face.” Whitnell v. Menville, 540 So.2d 304, 309 (La.1989). According to the Court, “[t]his rule recognizes this state’s liberal approach toward allowing amended pleadings, and promotes the interests of justice.” Id.

For the reasons expressed above, we find that the October 18, 2011 judgment was not a final, appealable judgment; the plaintiffs were properly ^afforded an opportunity to amend; and the lawsuit filed on April 12, 2013 was timely as to any and all claims extinguished by the trial court’s October 18, 2011 ruling. Accordingly, Abramson’s Partial Motions to Dismiss and Alternative Peremptory Exceptions of Res Judicata are denied.

Motion to Seal Record

The second threshold matter before us on appeal is Abramson’s motion to seal the appellate record. In the motion, Abramson advises that the trial court sealed the record based on the unopposed motion to seal filed by the plaintiffs. No further reasoning is given in support of the defendant’s motion to seal.

Our review of the trial court record reveals that the plaintiffs filed a motion to seal the record of the trial court the day after the petition for damages was filed. The motion stated:

Petitioners respectfully request that the above entitled matter be sealed for 30 days from the filing of the Petition so that possible resolution of the case may be explored. No defendants in the matter have an objection to the sealing of the record.

The same day, the trial court signed the order providing “that any reference to the suit caption and the suit indices be omitted for thirty days.” Although this Court has reviewed the record and found no additional motions or orders to seal the record beyond the initial thirty day period, filings in the trial court continued to be marked as “sealed” after that period expired.

The Louisiana Supreme Court directly addressed the rights of litigants to have court records sealed in Copeland v. Copeland, 06-1023 (La.6/2/06), 930 So.2d 940 (“Copeland I”) and Copeland v. Copeland, 07-0177 (La.10/16/07), 966 So.2d 1040 (“Copeland II”), which involved the high profile divorce proceedings of restaurant mogul, Alvin Copeland. Although the parties jointly requested that the records be sealed, the Times-Picayune newspaper intervened, seeking access to the records. In limiting the circumstances under which parties could have records sealed and protected from public access, the Louisiana Supreme Court considered the United States Supreme Court precedent holding that trials are public events; that what transpires in a courtroom is public property; and that the public has a right to inspect and copy public court records. Copeland II, 07-0177 at p. 3, 966 So.2d at 1042-43. The Court additionally pointed out that the Louisiana Constitution provides that “[a]ll courts shall be open” and “[n]o person shall be denied the right to observe the deliberations of public bodies and examine public records, except in cases established by law.” See La. Const, art. I, § 22 and art. XII, § 3 (emphasis omitted). At the same time, the Court recognized that not all records need necessarily be accessible to the public. Rather, discretion regarding access to sensitive information can be left to the sound discretion of the trial court, which has the general authority to seal all or part of a record when appropriate. Copeland II, 07-0177 at p. 6, 966 So.2d at 1044-45.

The Court ultimately concluded that weighing the right of public access against the parties’ privacy rights requires that a balancing test be employed. Under the balancing test, motions to seal are left to the trial court’s discretion. At the same time, the burden of proof is placed on the parties seeking concealment. | inThe test balances “the parties privacy interests against the public’s constitutional rights of access to court proceedings and documents.” Copeland II, 07-0177 at p. 10, 966 So.2d at 1047. The Court explained:

Although there may be some justification for sealing certain sensitive evidence in a proceeding, the parties have the burden of making a specific showing that their privacy interests outweigh the public’s constitutional right of access to the record. The trial court, should it grant such relief, must ensure that its order is narrowly tailored to canee the least interference possible with the right of public access.

Copeland II, 07-0177 at p. 10, 966 So.2d at 1047 (emphasis added).

In the present case, although the plaintiffs filed a motion requesting that the record be sealed for a limited period of thirty days, the seal remained active in the case throughout the duration of the trial court proceedings. Not only did this have the effect of extending the concealment of the records beyond 30-days authorized by the trial court, it also allowed the parties to avoid satisfying their burden of proving that the request was not overly broad. Because the court’s ultimate action in sealing the entire record exceeded the scope of the parties’ original motion to seal and the order issued by the court, this action was not “narrowly tailored to cause the least interference possible with the right of public access” as required by law. Copeland II, 07-0177 at p. 10, 966 So.2d at 1047.

Based on the foregoing, Abram-son’s motion to seal the record of appeal is denied. The trial court did not conduct a hearing on the matter and there is nothing in the record before us to indicate that the parties satisfied their burden of proving the existence of private and sensitive information which would outweigh the public’s constitutional right of access to the records in this proceeding. Mere allegations of attorney malpractice or misconduct do not, without more, warrant protection from public disclosure. See also In re Lee, 12-0862 (La.6/15/12), 90 So.3d 1030 (wherein the Supreme Court vacated a blanket order to seal records regarding attorney disciplinary proceeding, and instead limited the protective order to sensitive information contained in the underlying domestic case).

Legal Malpractice and Peremption

Also at issue before us on appeal is whether or not the trial court erred in dismissing all of the plaintiffs’ legal malpractice claims as perempted. Pursuant to Louisiana Revised Statute 9:5605, plaintiffs must file their legal malpractice claims within one year from their attorney’s negligent act or omission, or one year from the date that the malpractice was discovered. Moreover, regardless of the date of discovery, the claim must be filed within three years of the alleged acts of malpractice. Both the one-year and three-year periods of limitations are, by statute, characterized as peremptive in nature “within the meaning of Civil Code Article 3458 and in accordance with Civil Code Article 3461, may not be renounced, interrupted, or suspended.” La. R.S. 9:5605(B). As stated in Article 3458, “[pjeremption is a period of time fixed by law for the existence of a right.” La. C.C. art. 3458. Therefore, unless timely exercised, the right is extinguished upon the expiration of the peremptive period. Id,.

In an attempt to avoid the harsh consequences of peremption, the plaintiffs argue that Abramson committed four separate acts of malpractice for which different per-emption periods should apply. In so doing, the plaintiffs rely on this court’s decision in Wong v. Hoffman, 05-1483 (La.App. 4 Cir. 11/7/07), 973 So.2d 4, wherein we held that in cases where a plaintiff has alleged on the face of the petition that their attorney committed distinct acts of legal malpractice which occurred on different dates, “each separate act of malpractice must be considered | i2to be a separate cause of action with its own one-year and three-year peremptive period.” Wong, 05-1483 at p. 10, 973 So.2d at 10. In considering whether or not this Court’s ruling in Wong applies to the facts of the case before us, we look to Louisiana Supreme Court jurisprudence for guidance.

The Louisiana Supreme Court recognized the harsh consequences and “perceived inequities” that might flow from the classification of La. R.S. 9:5605’s deadlines as peremptive in the landmark case, Reeder v. North, 97-0239, p. 9 (La.10/2/97), 701 So.2d 1291, 1295-96. At issue before the Court was whether or not the three-year deadline for a legal malpractice claim could be suspended while the attorney-client relationship was still in existence and the attorney was actively attempting to remedy the alleged malpractice. Reeder, 97-0239 at pp. 5-6, 701 So.2d at 1295. Prior jurisprudence held that prescription was suspended during an attorney’s “ ‘continuous representation of a client regarding the specific subject matter in which the alleged wrongful act or omission occurred.’” Reeder, 97-0239 at p. 11, 701 So.2d at 1297 (Emphasis added). However, because Article 5605, expressly characterized the deadlines as peremptive, the Court found that the “continuous representation” rule could no longer apply. Reeder, 97-0239 at p. 12, 701 So.2d at 1298.

Addressing the clear wording of the statute and the authority of the Legislature to designate deadlines as peremptive, the Court stated, “While the terms of the legal malpractice statute of limitations statute may seem unfair in that a person’s claim may be extinguished before he realizes the full extent of his damages, the enactment of such a statute of limitations is exclusively a legislative | ^prerogative.” Reeder, 97-0239 at p. 9, 701 So.2d at 1296. It further reasoned: “The Legislature was aware of the pitfalls in [La. R.S. 9:5605] but decided, within its prerogative, to a three-year absolute limit on a person’s right to sue for legal malpractice, just as it would be within its prerogative to not allow legal malpractice claims at all.” Reeder, 97-0239 at p. 9, 701 So.2d at 1297.

The Supreme Court revisited the legal malpractice peremption statute more recently in Jenkins v. Starns, 11-1170 (La.01/24/12), 85 So.3d 612. In Jenkins, a client sued her attorney in legal malpractice for allowing a default judgment to be taken against her. After the client notified the attorney that she had been served with the default judgment, the attorney unsuccessfully attempted to have the judgment annulled. The client testified that she did not realize that things had seriously gone wrong until two years later when her check started being garnished; it was at that time that she filed her legal malpractice lawsuit. Jenkins, 11-1170 at p. 6, 85 So.2d at 616. The Supreme Court found that her lawsuit filed nearly two years after she was served with notice of the default was untimely because despite the harsh consequences, the continuous representation rule could not apply to suspend the one-year peremption set forth in La. R.S. 9:5605. Jenkins, 11-1170 at p. 20, 85 So.3d at 624.

The facts in Wong were distinguishable from the facts is Reeder based upon the nature of the attorney’s actions following the initial act of malpractice. Of significance, in Reeder, and more recently in Jenkins, there was evidence to show that the clients knew or should have known of the attorney’s initial act of malpractice, yet continued to allow the attorney to represent them, which resulted |14in failed attempts to remedy the initial negligent act or omission. More importantly, during the period of the attorney’s “continuous representation,” there was no evidence that the attorneys had committed separate and distinct acts of malpractice unrelated to the prior malpractice.

To the contrary, in Wong, we found that the plaintiff had alleged four separate acts of malpractice wholly unrelated to the initial act of malpractice. Ms. Wong alleged that her divorce attorneys committed the following acts: (1) erroneously advised her to agree to joint custody, (2) failed to object to certain expert testimony, (3) agreed to a consent judgment without her knowledge or consent, and (4) failed to object to deposition testimony eliciting attorney-client privileged information. Under those circumstances, we rejected the defendants’ argument that the alleged acts of malpractice had to be treated as a single act for the entire duration of the law firm’s representation under the continuing representation rule. Wong, 05-1483 at p. 8, 973 So.2d at 7. We explained that to accept the defendant’s argument would be to force a client to initiate a claim against them attorney the first time they believed the attorney acted in a way that could be interpreted as negligence. Wong, 05-1483 at p. 10, 973 So.2d at 10. “Such a rule would negate the right of a client who believes his counsel has been negligent to forgive one or more potential or arguable acts of malpractice, but then decide to file suit later when the attorney does something more egregious that the client is not willing to forgive.” Id.

11fiThe plaintiffs ax-gue in the case before us that Abramson’s initial malpractice was missing the fedei'al filing deadline. They claim that she committed subsequent acts of legal malpractice on or about April 10, 2008 and February 27, 2009, when she billed and was compensated for work on the habeas petition that was not actually performed and that was already overdue. According to the plaintiffs, because these independent breaches of contract occurred within the three years befoi'e the lawsuit was filed on March 21, 2011, these claims are not barred by the three-year pei'emp-tive period under La. R.S. 9:5605.

We find that the allegations of wrongful billing alleged by the plaintiffs do not amount to separate acts of malpractice to which different peremption periods would apply. Rather, as in Reeder and Jenkins, the allegations of wrong-doing are inextricably tied to Abramson’s original act of alleged malpi'actice — ie., missing the federal filing deadline. To hold otherwise would mean that an attorney would be subject to a new legal malpractice claim with a new peremptive period each time the attorney billed a client for work perforated after committing an act which could be deemed malpractice. This is clearly not the intent of the law.

Finally, out of an abundance of caution, we also note that the plaintiffs’ allegations did not rise to the level of fraud, which would make the three-year 11fiperemptive period inapplicable under La. R.S. 9:5605(E). Thus, to the extent that the trial court rejected the plaintiffs’ arguments or insinuations that Abramson intentionally charged Tsolainos for federal post-conviction relief work that was not done, that determination was not in error. Fraud is defined as “a misrepresentation or a suppression of the truth made with the intention to either obtain an unjust advantage for one party or to cause a loss or inconvenience to the other” and it may result from silence or inaction. La. C.C. art. 1953. It is well-settled that allegations of fraud must be pled with particularity. La. C.C.P. art. 856. While the plaintiffs argue that Abramson charged for work that was not done, the allegations in their petition do not rise to the level of specificity required by Louisiana law to allege fraud. The plaintiffs allege, for instance, that they were harmed as a result of Abramson’s “defalcations.” However, the Louisiana Supreme Court has held that although the term defalcation, “as ordinarily understood, implies some bad faith or misconduct,” it “must be given a meaning different from fraud, embezzlement or misappropriation, and that the word does not necessarily imply dishonesty or fraud.” Emery & Kaufman v. Heyl, 227 La. 616, 80 So.2d 95, 99 (1954). Moreover, even if Abramson had known that she missed the deadline and continued to work and seek “out of time” federal post-conviction relief without advising Ms. Tsolainos of her error, her conduct would not have risen to the level of fraud under Louisiana law. See Smart v. Vazquez, 02-1694, p. 8 (La.App. 4 Cir. 6/12/13), 119 So.3d 901.

Based on the foregoing, the trials court’s judgment dismissing the plaintiffs’ claims based on peremption is affirmed.

117Exceptions of No Cause and No Right of Action

Two alternative arguments are raised on behalf of the Trustees on appeal. First, they argue that they have claims based on legal malpractice that are not barred by peremption. In the alternative, they argue that if they do not have claims based on malpractice, they have claims based on the theory of unjust enrichment that are subject to a ten-year prescription period and are therefore not prescribed. For the reasons addressed more fully below, we find that the Trustees can assert no viable claim against Abramson based on either theory. There was no attorney-client relationship between the Trustees and Abramson that would allow them to sue her based on legal malpractice. In addition, they could not use unjust enrichment as a substitute means of asserting what would otherwise be a legal malpractice claim, which can be brought only by a client against his or her attorney.

Given the trial court granted Abramson’s exception of no cause of action, we begin our analysis by assuming the factual allegations in the plaintiffs’ petition for damages to be true. Fink v. Bryant, 01-0987, p. 3 (La.11/29/01), 801 So.2d 346, 348. Our task is to determine whether, based on the face of the petition, the Trustees are entitled to the relief sought. Id.

We observe, on de novo review, that all of the allegations asserted by the Trustees against Abramson stem from the contractual relationship between 11RAbramson and Tsolainos. There was no contractual relationship between Abram-son and the Trustees that would confer upon them a right to assert a legal malpractice claim. In order to establish a claim for legal malpractice, a plaintiff must prove: 1) a duty arising from an attorney-client relationship; 2) breach of this duty by failure to exercise a reasonable degree of skill in counseling or representing a client; and 3) damages or loss arising out of the breach. Teague v. St. Paul Fire and Marine Ins. Co., 07-1384, p. 8 (La.2/1/08) 974 So.2d 1266, 1272. The first requirement is missing in this case. There was no duty arising from an attorney-client relationship because Ms. Abramson did not represent the trust or its Trustees.

Moreover, the circumstances under which a plaintiff can establish a cause of action against an attorney representing another party are very limited. In Penalber v. Blount, 550 So.2d 577 (La.1989), for instance, the Louisiana Supreme Court held that an attorney may be held liable to a non-client for intentional tortious conduct; however, no cause of action could lie in favor of a non-client based on theories of negligence or malpractice because an attorney owes no duty to his client’s adversary. In the present case, the relationship between Tsolainos and the Trustees was clearly adversarial in nature. In fact, in the memorandum supporting her exceptions, Abramson admits that she helped Tsolainos locate an attorney to represent him in an action against the Trustees. Litigation is, by definition, adversarial in nature.

In addition, legal malpractice claims are not assignable. In Taylor v. Babin, 08-2063 (La.App. 1 Cir. 5/8/09), 13 So.3d 633, the First Circuit Court of Appeal examined the res novo issue of whether or not legal malpractice claims could be hnassigned to third parties pursuant to Louisiana Civil Code Article 2642, governing rights which may be assigned, and Article 2044, governing insolvency by failure to exercise a right. After reviewing state and federal cases from various other jurisdictions, the Court, “persuaded by the reasoning of the federal courts and the majority of our sister states”, held that legal malpractice claims are not assignable. The Court concluded that “[t]he mere threat of a malpractice claim being assigned would be detrimental to an attorney’s duty of loyalty and confidentiality to his client, would promote collusion, and would increase a lawyer’s reluctance to represent an underinsured or insolvent client.” Taylor, 08-2063 at p. 14, 13 So.3d at 642.

Finally, we are aware of no case law in Louisiana which would allow a third-party who has taken on the obligation of paying attorneys’ fees for a client to step in and sue the attorney based on allegations of malpractice. In fact, this Court addressed an almost identical situation in Seals v. DeBose-Parent, 12-0437 (La.App. 4 Cir. 8/5/12), 99 So.3d 72. In Seals, a criminal defendant’s brother had consulted with, hired, and paid an attorney to represent her in connection with murder charges. After the attorney withdrew from the case, the brother not only filed a complaint with the Louisiana Disciplinary Board, but also filed suit in district court alleging legal malpractice, misrepresentation, deceptive business practices, negligent intentional affliction of mental and emotional distress, violation of the professional rules of conduct, attempted extortion, and failure to perform contracted for services. Seals, 12-0437 at p. 2, 99 So.3d at 73. The sole issue on appeal was whether the brother, who had retained and paid the attorney on behalf of his sister, could pursue a claim for legal malpractice as a non-client. We 120held that he could not. Not only were there no facts to indicate the existence of an attorney-client relationship between the brother and the attorney, there was nothing to indicate that the brother believed he was hiring the attorney on his own behalf. As a result, we found that the trial court did not err in dismissing the case on the grounds that there was no attorney-client relationship between the parties, despite the alternative theories of liability asserted by the brother.

In the alternative, the plaintiffs ask this Court to find that Abramson is liable to the Trustees based on the theory of unjust enrichment. Claims for unjust enrichment are governed by Louisiana Civil Code Article 2298, which states:

A person who has been enriched without cause at the expense of another person is bound to compensate that person. The term “without cause” is used in this context to exclude cases in which the enrichment results from a valid juridical act or the law. The remedy declared here is subsidiary and shall not be available if the law provides another remedy for the impoverishment or declares a contrary rule.

La. C.C. art. 2298. The plaintiffs have also asked this Court to apply this Court’s rationale in Dugas v. Thompson, 11-0178 (La. App 4 Cir. 6/29/11), 71 [71] So.3d 1059 in support of maintaining their cause of action against Abramson. As stated in Dugas, we look to five elements to determine whether or not a plaintiff has established a claim based on unjust enrichment. The elements are: (1) an enrichment, (2) an impoverishment, (3) a connection between the enrichment and resulting impoverishment, (4) an absence of “justification” or “cause” for the enrichment and impoverishment, and (5) no other remedy at law available to plaintiff. Dugas, 11-0178 at p. 13, 71 So.3d at 1067-68.

In Dugas, the property owner attempted to sue a demolition company hired by the city on the grounds that the demolition company improperly removed building materials from the site. The demolition company, however, was dismissed on an exception of prescription because it was not named as a defendant until more than a year after the demolition work was performed. On appeal, the plaintiff argued that his claim against the demolition company was timely because it was based on the theory of unjust enrichment, which is subject to a ten-year prescriptive period. Based on the five elements listed above, we found that the plaintiff could not state a claim based on unjust enrichment because an alternative theory of recovery was available to the plaintiff. Dugas, 11-0178 at p. 14, 71 So.3d at 1068; Mouton v. State, 525 So.2d 1136, 1142 (La.App. 1 Cir.1988). In particular, the plaintiff had a cause of action in tort based on conversion. We reasoned:

It is “of no moment that plaintiffs tort claims have been held to be prescribed. The mere fact that a plaintiff does not successfully pursue another available remedy does not give the plaintiff the right to recover under the theory of unjust enrichment.” MedSouth Record Management, [LLC, 10-0352, pp. 2-3 (La.6/4/10), 38 So.3d 241, 242] (citing Jim Walter Homes v. Jessen, 98-1685, p. 13 (La.App. 3 Cir. 3/31/99), 732 So.2d 699, 706). Stated otherwise, “[t]o find that [the plaintiff] ... now has no other remedy and to provide it one under unjust enrichment would be tantamount to allowing any plaintiff who let his cause of action prescribe ... to recover under an enrichment theory.” Jessen, 98-1685 at p. 13, 732 So.2d at 706.

Dugas, 11-0178 at p. 14, 71 So.3d at 1068.

Contrary to the plaintiffs’ contentions, we find the facts as alleged by the plaintiffs in this case are no different from the facts in Dugas. Like the plaintiff in Dugas, the Trustees do have another remedy available to them by law. Their remedy was to sue Tsolainos to recover the sums that they allege were erroneously reimbursed to cover his legal expenses. The mere fact that a party does not have 122privity to sue an attorney for legal malpractice does not confer upon them a right to seek damages based on unjust enrichment. See e.g., Seals, supra.

By amending their petition to assert claims of unjust enrichment against Abramson on behalf of the Trustees, the plaintiffs were attempting to avoid the ramifications of peremption under La. R.S. 9:5605 by substituting a third party to assert a claim of legal malpractice on Tso-lainos’ behalf. That is not allowed. As a result, we find that the trial court did not err in granting Abramson’s exceptions of no right of action and no cause of action based upon a finding that “[o]ne cannot use the theory of unjust enrichment to revive a claim that has already been prescribed or been [perempted].”

Because we find that the Trustees could assert no cause of action against Abramson based on malpractice or a theory of unjust enrichment, it follows that they have no right of action. Accordingly, the trial court’s judgments dismissing the Trustees’ claims are affirmed.

DECREE

For the reasons addressed herein, the Motions to Dismiss and Alternative Peremptory Exceptions of Res Judicata, and Motion to Seal the Appellate Court Record filed by the defendant, Kim Abramson, are DENIED. The trial eoui't’s judgments dated October 18, 2011 and February 13, 2012, dismissing all of the claims of the plaintiffs, Panos Tsolainos, Mariongoula T. Tsolainos Living Trust, and its Trustees, John Vagelos, Theodore Vagelos, and Citibank, N.A. pursuant to exceptions of per-emption, no cause of action, and no right of action are AFFIRMED.

^AFFIRMED; MOTION TO DISMISS AND MOTION TO SEAL DENIED

      . State of Louisiana v. Panos Tsolainos, No. 290-874, Division "H," Twenty-Second Judicial Court for Tangipahoa Parish, State of Louisiana.

      . State v. Tsolainos, 00-1664 (La.App. 1 Cir. 12/31/03), 864 So.2d 905; State v. Tsolainos, 04-0616 (La.7/2/04), 877 So.2d 144; and Tsolainos v. Louisiana, 543 U.S. 1186, 125 S.Ct. 1395, 161 L.Ed.2d 189 (2005).

      . Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2241 etseq.

      . The other attorneys named as defendants in this litigation have settled.

      . Abramson argues as a defense that the plaintiffs never explicitly allege that Abram-son is liable to Tsolainos. Instead, the petition only avers that Abramson is liable to the trust, and the other attorneys are liable to Tsolainos. Nevertheless, because the allegations throughout their petition clearly arise from transactions and occurrences between Abramson and Tsolainos, we find that the petition sufficiently alleges claims by Tsolai-nos against Abramson. A party may be granted any relief to which he is entitled so long as the facts pled give the opposing party adequate notice of the existence of potential causes of action. Cox v. W.M. Heroman and Co., 298 So.2d 848 (La.1974), overruled on other grounds by A. Copeland Enterprises, Inc. v. Slidell Memorial Hosp., 94-2011, p. 9 (La.6/30/95), 657 So.2d 1292, 1299.

      . The court did not issue a ruling specific to the alternatively filed motion for new trial.

      . The court postponed the hearing on the exception of no right of action due to an ongoing discovery dispute, noting that its ruling on the exception of no cause of action might render the exception of no right of action moot.

      . See also Wyman v. Dupepe Construction, 09-0817 (La.12/1/09), 24 So.3d 848, 849 (per curiam); Reeder v. North, 97-0239, p. 14 (La.10/21/97), 701 So.2d 1291, 1299; Chapital v. Guaranty Sav. & Homestead Ass'n, 96-0244, pp. 4-5 (La.App. 4 Cir. 10/2/96), 681 So.2d 1307, 1310; Whitnell v. Menville, 540 So.2d 304, 309 (La.1989).

      . See Craig v. Harney, 331 U.S. 367, 374, 67 S.Ct. 1249, 91 L.Ed. 1546 (1947); Nixon v. Warner Communications, Inc., 435 U.S. 589, 597, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978).

      . See also Bester v. Louisiana Supreme Court Committee on Bar Admissions, 00-1360, pp. 12-13 (La.2/21/01), 779 So.2d 715, 721.

      . Citing Lima v. Schmidt, 595 So.2d 624, 630 (La.1992) and Braud v. New England Ins. Co., 576 So.2d 466, 468 (La.1991).

      . See also Gettys v. Fishman, 00-1077, p. 5 (La.App. 5 Cir. 10/31/00), 772 So.2d 874, 877 (wherein the Fifth Circuit held that an attorney’s act of inserting wrong information into contract, and then correcting it without the parties’ knowledge were not two separate acts to which two different prescriptive periods would apply);

      . In their petitions of damages, plaintiffs allege that Abramson’s liability stems from her failure to provide contracted for legal services; for being inexperienced; for not disclosing the missed deadline prior to collecting payment; for not producing work related to the federal application for post-conviction relief; for failing "to perform services which would justify the funds received;” and/or because "her own actions made those services impossible to properly complete” in violation of Rule of Professional Conduct 1.5(a).

      . In Wong, although the acts were each committed during the same child custody litigation, they were alleged to have occurred on different dates and related to entirely different matters, including a joint custody agreement, expert testimony, a consent decree, and deposition testimony. Cf., Dauterive Contractors, Inc. v. Landry and Watkins, 01-1112 (La.App. 3 Cir. 3/13/02), 811 So.2d 1242 (holding that law firm's breach of the professional rules of conduct while trying to remedy act of missing a filing deadline did not constitute a separate act of malpractice).

      . Even if the Trustees could assert a claim based on legal malpractice, their claims would be perempted for the same reasons as Tsolainos’. However, because the Trustees' claims for malpractice and claims for unjust enrichment overlap, we address them in conjunction with each other.

      . We review the trial court’s ruling on an exception of no cause of action de novo. Friel v. Louisiana Citizens Property Ins. Corp., 11-1032, p. 4 (La.App. 4 Cir. 2/8/12), 85 So.3d 180, 183.

      . See also JCD Marketing Co. v. Bass Hotels and Resorts, Inc., 01-1096, p. 13 (La.App. 4 Cir. 3/6/02), 812 So.2d 834, 842; Baker v. Maclay Properties Co., 94-1529, p. 18 (La.1/17/95), 648 So.2d 888, 897.


source: Caselaw Access Project

author: JOY COSSICH LOBRANO, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Kenneth LEWIS.
    No. 2013-KA-0344.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for Appel-lee/State of Louisiana.
    Samantha P. Griffin, Anne-Marie J. Mitchell, Stone Pigman Walther Wittmann L.L.C., New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JAMES F. McKAY, III, Judge TERRI F. LOVE, Judge JOY COSSICH LOBRANO).
   JOY COSSICH LOBRANO, Judge.

I,Kenneth Lewis appeals his conviction and sentence for simple possession of cocaine, attacking the trial court’s denial of his motions to suppress the evidence and statements. For reasons that follow, we affirm the appellant’s conviction and sentence.

The State of Louisiana charged Kenneth Lewis on December 28, 2011, with one count of possession with the intent to distribute cocaine, a violation of La. R.S. 40:967 B, a charge to which he subsequently pled not guilty. The court heard and denied Lewis’ motions to suppress the evidence and statements on June 1, 2012. Lewis sought supervisory review in this court, which this court denied. State v. Lewis, unpub. 2012-1045 (La.App. 4 Cir. 7/19/12). On October 29, 2012, a twelve-person jury found him guilty of simple possession of cocaine, a violation of La. R.S. 40:967(C). The court sentenced Lewis on November 2, 2012, to five years at hard labor, suspended, and placed him on five years active probation. The court subsequently granted his motion for appeal.

^Kenneth Lewis was convicted of possession of cocaine pursuant to his arrest on November 16, 2011, which arose out of a controlled narcotics purchase. Detective Glenn Washington testified at trial that on that date, he was working as an undercover officer. He testified that as he was driving in the 2200 block of Urquhart Street, he saw Kenneth Lewis and Jerome Lewis standing in front of a double at 2252-54 Urquhart. Det. Washington testified that he pulled over and made a motion of smoking, putting his fingers to his mouth, which he explained indicated that he wanted to purchase some marijuana. Jerome approached the passenger side of the detective’s undercover vehicle and said that “he,” whom the detective believed meant Kenneth, did not have any weed. Det. Washington then asked if he had any “hard,” which he explained was street slang for crack cocaine. Jerome responded that he would see if “he” had any, and the two men agreed on a price of $40. Jerome walked over to Kenneth. The two men spoke and then both walked inside the residence at 2254 Urquhart. The men almost immediately came back outside, and while Kenneth remained in front of the double, Jerome walked back to the undercover vehicle and gave Det. Washington four rocks and several smaller pieces of what appeared to be crack cocaine. Det. Washington then gave Jerome $40 consisting of one $20 bill and two $10 bills. Jerome walked away from the vehicle, and Det. Washington drove away, signaling the backup officers that the deal had been completed.

Det. Washington testified that the entire transaction was captured on videotape from a camera inside his vehicle. The DVD of the transaction was played for the jury, and Det. Washington testified that the DVD showed Jerome handing him several pieces of crack cocaine in exchange for money. Det. Washington testified that earlier on the morning of the transaction, he had ^photocopied the money that he later used to buy the cocaine from Jerome. He admitted that neither Kenneth nor Jerome was the target of any investigation that day; instead, Det. Washington merely drove down Urquhart Street to see if he could conduct any narcotics transactions.

Det. Washington testified that Kenneth did not give him any drugs or receive any money from him, and Kenneth did not approach his vehicle. Det. Washington stated that he left after conducting the transaction and was not present when more cocaine was seized from Kenneth’s residence. He also did not see Jerome give any money to Kenneth.

Detective Ricky Jackson testified that he observed the drug transaction between the older man (Jerome) and Det. Washington from a position about a block away. He stated that he was equipped with a microphone, and a cameraman was riding in the back seat of his vehicle as part of a taping of a COPS episode for Spike TV. Det. Jackson described the drug transaction, noting that he saw Jerome walk up to the undercover vehicle, speak with Det. Washington, and then speak with a younger man with dreadlocks (Kenneth), who was standing on the sidewalk. He watched as Kenneth and Jerome went inside Kenneth’s residence and then saw them come back outside. Jerome then returned to the undercover vehicle. Det. Jackson stated that Det. Washington radioed when the transaction was completed and drove from the scene. Det. Jackson then saw Jerome walk back to Kenneth, who was talking with a female who was standing next to a white vehicle. He testified that Jerome then went back to Kenneth and gave him an unknown object, which Det. Jackson thought was the money that he had received from Det. Washington.

|4Pet. Jackson ordered other officers to detain Jerome and Kenneth, describing both men. He arrived after other officers had detained the suspects, who were by then handcuffed and sitting on the steps of the other side of the double, where Kenneth’s aunt lived. Det. Jackson advised the men of the nature of the investigation and told them what he had seen. The officers got the keys to Kenneth’s apartment, but the door was unlocked, and they entered to secure the scene while they obtained a warrant. Det. Jackson stated that when he entered the apartment, he saw several rocks of what appeared to be crack cocaine lying on the top shelf of a black iron bookcase right inside the door. Det. Jackson stated that he went back outside and spoke with Kenneth, who stated that he had just come from the apartment. Det. Jackson grabbed Kenneth’s arm and took him inside the apartment, showing him the cocaine on the shelf. Det. Jackson testified that Kenneth then agreed to consent to a search of the residence, signing a consent form after Det. Jackson read it to him, and Kenneth stated that he understood the form. The officers then searched the apartment, finding a loaded gun magazine, a gun box, a box of sandwich bags, and a razor blade.

Det. Jackson testified that Kenneth started arguing with another officer, and he took Kenneth out of the apartment and put him in a police car, telling him to calm down. He stated that they spoke about the situation, and the detective told Kenneth that he would love to walk around with $1000 in his pocket, but he would not do that because of his job. He testified that Kenneth then responded: “I understand. You’re right. You know, I have kids, you know, and I’m doing this and it’s hard to find a job ... You’re right, I fucked up.” The State then played the DVD of the footage from the Spike TV show that included Det. Jackson’s observation of the drug transaction, the detention of both men, the search of |fiKenneth’s apartment, and Det. Jackson’s conversation with Kenneth while Kenneth was sitting in the police car. The footage shows that both men were detained in front of the other side of the double, where Kenneth stated his aunt lived. Officers briefly entered that apartment after a woman responded to their knock on the door, but they quickly came back outside. Although Kenneth at first denied that he lived at the apartment, he said something that made Det. Jackson believe that he admitted that he had just come from the apartment, and at that point, Det. Jackson walked him into the apartment. The video also shows that a female was present when the suspects were detained, but the officers let her go soon thereafter.

Det. Jackson testified that Kenneth did not give any drugs to Det. Washington or receive any money from him. He reiterated that he saw Jerome give Kenneth what he surmised was the money he received from Det. Washington, and the arresting officers found this money on the ground right next to Kenneth when they detained him. He stated that the officers first entered the apartment to make sure there was no one inside who could destroy any evidence. Det. Jackson testified that during the search, Kenneth became involved in a heated exchange with another officer who berated him because he had a college degree and was selling drugs, and because Kenneth had a gun case and loaded magazine. He stated that he took Kenneth outside to calm him down. Det. Jackson noted that he did not advise Kenneth of his Miranda rights, but he testified that Det. Michel did so when the appellant was arrested, and Sergeant Sislo also advised him when they were inside the apartment.

Jerome admitted that he had several prior convictions for burglary and possession of stolen property. He also admitted that he pled guilty in the presentíase to a lesser offense and received an eight-year sentence in exchange for his testimony. He stated that on November 16, 2011, the undercover officer drove up to him and asked if he had any “hard.” Jerome stated that he told the officer that he had none, but he would ask his partner if he had any. He stated that he asked Kenneth if he had any crack cocaine, and then he and Kenneth went inside Kenneth’s apartment where he got the crack from Kenneth. He then took it back outside and gave it to the undercover officer in exchange for money, which he gave to Kenneth. On cross-examination, Jerome stated that he was no relation to Kenneth. He insisted that his testimony was true and that he pled guilty to the reduced charge in order to do his time and move on with his life. He insisted on redirect that Kenneth gave him the crack cocaine that he sold to the officer.

Detective Andrew Roecaforte participated in the search of Kenneth’s apartment. Det. Roecaforte seized the cocaine from a shelf in the living room. He stated that the cocaine was unpackaged and lying in plain view, and he took a baggie from a box of sandwich bags that was lying on a lower shelf to retrieve the cocaine. He stated that he seized a razor blade that was lying nearby. He also seized a letter from the District Attorney’s Office, addressed to Kenneth at that address, which involved a case of domestic violence. He explained, however, that the letter indicated that Kenneth was the victim of the incident.

Corey Hall, a criminalist with N.O.P.D. and qualified as an expert in the field of narcotics analysis, testified that he tested the substance sold to Det. Washington and the substance seized from Kenneth’s apartment. He identified his report, which indicated that both substances tested positive for cocaine.

A review of the record reveals no patent errors.

|7By his first assignment of error, the appellant contends that the trial court erred by denying his motion to suppress the evidence seized from his home; he does not raise any argument as to the cocaine sold to Det. Washington or the money seized from him incidental to his arrest. He argues that the evidence adduced by the State did not prove that there were exigent circumstances to allow the officers to enter his apartment without a warrant, and without such circumstances, the officers’ entry was unlawful, thereby tainting their discovery of the crack cocaine, the box of sandwich bags, and the razor blade lying in plain view just inside the door. He further argues that he did not freely and voluntarily consent to a search of his residence.

Det. Washington was the only State witness who testified at the suppression hearing. His testimony at that hearing was consistent with the testimony he gave at trial. Additionally, he testified that he thought that the gun magazine was found in a back bedroom. He also stated that although he left just after the transaction was completed, he was told that the appellant, Kenneth, and Jerome were advised of their Miranda rights at the time they were arrested. He also testified that the door to the appellant’s apartment was left open, and the officers entered it to make sure there was no one inside who could destroy any evidence. He testified that after the officers came out of the apartment and told the appellant that they had seen the transaction between him and Jerome, the appellant admitted that he lived in the apartment, and he signed a consent to search form. Det. Washington testified that a search incidental to arrest of the appellant revealed that he had $547, $40 of which was the marked money from Det. Washington. He reiterated that when he drove off, he did not know if anyone else was inside the apartment.

|sOn cross-examination, Det. Washington stated that the appellant and Jerome were near each other but not standing next to each other when he drove up to them. He admitted that he did not see Jerome walk back to the appellant and give him the marked money because he had already driven away. He stated that a search incidental to Jerome’s arrest revealed no money or drugs. He also stated that when he asked Jerome if he had any “hard,” Jerome replied: “He got a couple of pieces of that,” referring to the appellant. He admitted that he did not see anyone else inside the house, nor did he see the appellant or Jerome motion to anyone inside, but he was not parked so that he could see inside through the door.

The defense called Erica Alphonse, the appellant’s girlfriend, who was present at the arrests. She denied that any drug transaction occurred. She stated that she was sitting outside the residence with the appellant and Jerome, and at some point she saw the appellant and Jerome enter the appellant’s apartment, but she did not see Jerome give the appellant any money. She insisted that she was sitting on the porch of the other side of the double when the officers arrived. She explained that the appellant’s aunt and cousin lived on that side of the double. She insisted that the officer knocked on doors in the area, but only the appellant’s aunt opened her door. She insisted that the door to the appellant’s apartment was closed, and the officers used a key to open the door and enter. She was not arrested. On cross-examination, she stated that she did not know Jerome and only saw him on that day. She admitted that she saw Jerome go to the undercover car, and then both Jerome and the appellant went inside the residence. She also admitted that she was convicted of bribery in 2010. She insisted that no one else was inside the appellant’s apartment when the officers entered.

|9The defense also called Zina Jackson, who identified herself as the appellant’s cousin and who lives in the other side of the double. She testified that on the day that the appellant was arrested, she was sleeping and awoke to a knock on her door. She answered the door and saw the appellant and another man handcuffed outside the apartment. She testified that she told the officers that neither man lived in her apartment and that she did not know the other man. She admitted that she did not know what happened outside the apartment before the police awakened her.

As per La.C.Cr.P. art. 703(D), the State has the burden of showing any evidence seized in the absence of a warrant was lawfully seized. State v. Wells, 2008-2262, p. 5 (La.7/6/10), 45 So.3d 577, 581. It is well-settled that an appellate court should review a trial court’s ruling under a deferential standard with regard to factual determinations, while legal findings are subject to a de novo standard of review. State v. Hunt, 2009-1589, p. 6 (La.12/1/09), 25 So.3d 746, 751; State v. Hampton, 98-0331, p. 18 (La.4/23/99), 750 So.2d 867, 884. Moreover, “a trial court’s decision relative to the suppression of evidence is afforded great weight and will not be set aside unless there is an abuse of that discretion.” Wells, 08-2262, p. 5, 45 So.3d at 581. As noted by the Court in State v. Thompson, 2011-0915, pp. 13-14 (La.5/8/12), 93 So.3d 553, 563:

The analysis may be further broken down into the component parts of the trial court decision. “When a trial court makes findings of fact based on the weight of the testimony and the credibility of the witnesses, a reviewing court owes those findings great deference, and may not overturn those findings unless there is no evidence to support those findings.” Wells, 2008-2262, p. 4; 45 So.3d at 580; State v. Hunt, 2009-1589, p. 6 (La.12/1/09); 25 So.3d 746, 751. Legal findings or conclusions of the trial court are reviewed de novo. Id.; State ex rel. Thibodeaux v. State, 2001-2510, p. 1 (La.3/8/02); 811 So.2d 875.

Because the evidence was seized in this case without a warrant, the State bore the burden of showing that it was lawfully seized.

The appellant first argues that the officers’ entry into his apartment, during which they saw the cocaine in plain view, was unlawful. Police officers may enter a house without a warrant if they have probable cause to believe there is contraband inside and exigent circumstances that require immediate entry. State v. Jones, 2002-1931, p. 5 (La.App. 4 Cir. 11/6/02), 832 So.2d 382, 384; State v. Page, 95-2401, p. 10 (La.App. 4 Cir. 8/21/96), 680 So.2d 700, 709. In State v. Page, this court described exigent circumstances as:

exceptional circumstances which, when coupled with probable cause, justify an entry into a “protected” area that, without those exceptional circumstances, would be unlawful. Examples of exigent circumstances have been found to be escape of the defendant, avoidance of a possible violent confrontation that could cause injury to the officers and the pub-lie, and the destruction of evidence. State v. Hathaway, 411 So.2d 1074, 1079 (La.1982).

Page, 95-2401, p. 10, 680 So.2d at 709. See also State v. Fournette, 2008-0254 (La.App. 4 Cir. 7/2/08), 989 So.2d 199. In State v. Wright, 2002-2354, p. 5 (La.App. 4 Cir. 6/18/03), 850 So.2d 778, 781, this Court listed factors set forth in United States v. Rubin, 474 F.2d 262, 268-269 (3rd Cir.1973), for a reviewing court to consider in determining if an officer was justified in making a warrantless entry: “(1) the immediacy of the situation and the length of time it would take to obtain a warrant; (2) a reasonable belief that evidence would be moved or destroyed; (3) the danger to any officers who would be guarding the evi-denceJLywhile the warrant was being obtained; (4) any information that the person who is in possession of the evidence knows that the authorities know he is in possession; and (5) the ability of the person to destroy the evidence and/or escape.” See also State v. Fournette, supra. Probable cause alone will not allow an officer to enter a residence; it must be accompanied by exigent circumstances. See Kirk v. Louisiana, 536 U.S. 635, 122 S.Ct. 2458, 153 L.Ed.2d 599 (2002); Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); State v. Fournette, supra; State v. Jones, supra.

The appellant argues that there were no exigent circumstances for the officers to enter his apartment because both he and Jerome, the only person involved in the sale to Det. Washington, were apprehended outside the apartment. He points out that the only other person found on the scene, Ms. Alphonse, was also outside, and the officers did not give specific reasons for their belief that someone else might have been inside the apartment that could have destroyed any evidence.

In support, appellant cites State v. Marley, 2006-0317 (La. App 4 Cir 11/8/06), 945 So.2d 808, where this court found no exigent circumstances for the officers’ entry. The officers had a tip of a suspicious person involving a possible theft at the defendant’s building. Id. at p. 4, 945 So.2d at 811. When they arrived, they saw the defendant and her friend leave her apartment and jump the fence that surrounded the building. The officers stopped the women and found that the defendant’s identification had a different address. The defendant told the officers that she lived in the apartment but did not have keys to the door or to the gate. The officers arrested her, went to the apartment, whose door was slightly open, and entered. Id. Inside they saw drugs lying in plain view. Id. at p. 2, 945 So.2d at 810. One officer testified that he entered the apartment to see if anyone inside had 112been harmed. Id. at p. 4, 945 So.2d at 811. On appeal, this court reversed, finding that there was no probable cause to believe the apartment contained contraband nor was there any basis for the officers’ entry to aid of any persons who may have been inside and needed help. Id. at pp. 8-9, 945 So.2d at 814.

Marley is distinguishable from the facts of the present case in that there was no basis for the officers in that case to believe that the apartment contained any evidence or that there were people inside who needed help. By contrast, here the officers watched Jerome enter the apartment after telling Det. Washington that he had no “hard” but would see if “he” had some. Jerome and the appellant entered, and when they exited soon thereafter, Jerome returned to Det. Washington and sold him the cocaine. Thus, the officers had probable cause to believe there was cocaine inside the apartment. More importantly, as admitted by the appellant, the officers apprehended him and Jerome right outside the apartment, and anyone inside could have seen the arrests and destroyed any cocaine that may have remained inside the apartment.

The other cases cited by the appellant do not support his argument. In State v. Warren, 2005-2248 (La.2/22/07), 949 So.2d 1215, the main thrust of the Court’s opinion was the issue of whether the officers were justified in conducting a warrantless search of a duffel bag found in a hotel room that the officers entered. In reaching this issue, the Court noted that the State had shown exigent circumstances to enter the room because the defendant told the undercover officer that he shared the room with two other men who were in the bar and would shortly return. Id. at p. 13, 949 So.2d at 1226.

In State v. Kirk, 2000-0190 (La.App. 4 Cir. 11/13/02), 833 So.2d 418, this court found no exigent circumstances because the officers’ detention of the buyer |lsof drugs occurred a block away from the apartment where he bought them, and there was no evidence that there was anyone on the scene of the detention who could have alerted anyone inside the residence. Likewise, in State v. Jones, 2002-1931 (La.App. 4 Cir. 11/6/02), 832 So.2d 382, the other person involved in the drug sales was arrested approximately five blocks from the defendant’s residence, and there was no indication that that person was expected back at the residence. In addition, the officers had already begun typing an affidavit for a search warrant due to other activity they had observed from the defendant’s apartment on previous days, and this court found that there was no reason why the officers could not have already obtained the warrant. Id. at p. 6, 832 So.2d at 387.

In the matter sub judice, unlike in Jones and Kirk, the arrests of the appellant and Jerome occurred directly in front of the other side of the double from the appellant’s apartment. Thus, the officers had a justifiable belief that if someone were inside, it was quite likely that the person would have been alerted to the arrests and could have destroyed the remaining cocaine.

In its response, the State cites State v. Woods, 591 So.2d 1323 (La.App. 4 Cir.1991), where this court found that the officers had exigent circumstances to enter the defendant’s residence. After receiving a tip of drug sales and conducting a surveillance of the residence, from which they saw drug sales, the officers saw the defendant leave the residence. As he passed their car, he looked at them and then sped away. The officers stopped the defendant and returned him to his apartment, which they entered to secure while they obtained a search warrant. An officer testified that they entered because they were afraid that if someone was inside the house and learned of the defendant’s arrest, that person could possibly destroy any remaining drugs. This court found that the entry was justified because [14the officers could not be sure that there was no one inside the house. Id., 591 So.2d at 1325. This court also noted that the defendant’s girlfriend lived in the apartment. Id., 591 So.2d at 1324.

In State v. Williams, 619 So.2d 650 (La.1993), also cited by the State, the officers received a tip concerning two brothers selling drugs from a residence, which was corroborated by surveillance. The officers stopped both brothers while they were away from the residence, and then they entered it to secure it. This court found the entry justified because other occupants could have destroyed any remaining drugs when the defendants did not return. Id., 619 So.2d at 654.

In other cases, this court has found exigent circumstances existed where the area entered was rented by someone other than the defendant, indicating that there were possibly other people who could destroy contraband, State v. Page, 95-2401 (La.App. 4 Cir. 8/21/96), 680 So.2d 700; or where someone alerted the defendant to the presence of officers during a surveillance, State v. Wright, 2002-2354 (La.App. 4 Cir. 6/18/03), 850 So.2d 778; or where there was a possible third suspect who had witnessed the defendant’s arrest at his car, State v. Roebuck, 530 So.2d 1242 (La.App. 4 Cir.1988); or where the circumstances of a long-range investigation of the defendants showed that there was a distinct possibility that drugs would be destroyed due to the past caution shown by those participating in the drug enterprise, State v. Tate, 623 So.2d 908 (La.App. 4 Cir.1993).

Our review of the line of cases on this issue shows that courts have upheld war-rantless entries into protected areas where there have been arrests or detentions directly in the area where anyone who might be inside could see the arrests or detentions. Here, both the appellant and Jerome were arrested in front of the other side of the double from the appellant’s apartment. The appellant contends that the | indoor was locked when the officers entered. Although the door was open, it was unlocked. Nonetheless, we conclude that this factor would not play any part in determining whether there were exigent circumstances to enter the apartment; either way, the officers had a justifiable belief that anyone inside the apartment could see the arrests and dispose of any remaining cocaine. Contrary to the appellant’s assertion, the cases discussed above show that the fact that the officers did not specify a basis for this belief would not defeat a finding of exigent circumstances. Given the circumstances of this case, we find that the State showed exigent circumstances for a warrantless entry into the appellant’s apartment.

The appellant next argues that because the officers’ entry was unlawful, they could not seize the cocaine, the sandwich bags, and the razor blade that they found lying in plain view. However, because of our conclusion that the entry was lawful, there is no merit to this claim. In State v. Jones, 2002-1171, p. 10 (La.App. 4 Cir. 6/26/02), 822 So.2d 205, 211, this court noted that the plain view exception requires that an officer have a prior justification for being in an area where he observes an object that is “immediately apparent” to him without close inspection as contraband. See also State v. Smith, 96-2161, p. 3 (La.App. 4 Cir. 6/3/98), 715 So.2d 547, 549. Once the officers entered the apartment, they saw the crack cocaine and the other items associated with drug distribution lying on the shelves in plain view. These items were “immediately apparent” as contraband, and their seizure falls within the parameters of the plain view exception to the warrant requirement.

The appellant concludes this assignment of error by arguing that the State did not prove that he freely and voluntarily consented to the search of his apartment. Because the officers had probable cause to believe the apartment |1ñcontained cocaine and exigent circumstances existed to enter the apartment, we need not reach this issue with respect to the items seized from the shelves in the front room right next to the door. The record shows that the only other items that were seized were the domestic abuse letter from the District Attorney’s Office in a matter where the appellant was the victim, the loaded magazine, and the gun case. The letter would not be evidence of a crime or contraband, and thus it would not fall under the plain view exception to the warrant requirement. In addition, Det. Washington testified at the suppression hearing that the magazine was seized from the bedroom, and the DVD shows that one of the officers found the gun case in a room that was behind the living room; in both cases, it is clear that they were in plain view. Thus, at least with respect to the letter, the loaded magazine, and the gun case, we must address the issue of consent.

This court discussed the standard for reviewing whether property was properly seized pursuant to the consent exception in State v. Hopkins, 2004-1268, pp. 10-11 (La.App. 4 Cir. 12/8/04), 891 So.2d 707, 714:

The State has the burden of proving valid consent. State v. Green, 376 So.2d 1249 (La.1979). The voluntariness of the consent must be determined based on the overall facts and circumstances of the case. State v. Edwards, 434 So.2d 395 (La.1983). A trial judge’s factual determination on this issue is entitled to great weight on appellate review. [State v.] Franklin, 95-1876 at p. 5, 686 So.2d [38] at 41 [ (La.1997) ]; See also State v. Nogess, 98-0670 (La.App. 4 Cir. 3/3/99), 729 So.2d 132; State v. O’Shea, 97-0400 (La.App. 4 Cir. 5/21/97), 696 So.2d 115.

The appellant does not deny that he consented to the search; rather, he asserts that his consent was the result of the officers’ exploitation of their unlawful entry and discovery of the cocaine. He argues that his consent was coerced by the officers after they found the cocaine, told him he was going to jail, and took him 117inside the apartment. However, the officers had already told the appellant, when they initially found the cocaine inside the apartment, that he was going to jail. In addition, as discussed above, there were exigent circumstances for the entry, at which time the officers found the cocaine lying in plain view. Thus, there was no “illegality” that the officers exploited to get the appellant to agree to the search. Although the DVD does not corroborate Det. Jackson’s testimony that he read the appellant the consent form, the DVD shows that the appellant signed the consent form after the officers told him that he could sign it and allow them to search immediately, and he could “fight [them] in court,” or he could refuse and wait a few hours while they got a warrant. This advisement was not a “threat;” rather, it was an advisement of the option and what the consequences would be if he did not consent to the search. As such, there was no showing that the appellant’s consent was not voluntarily and freely given, or at least as voluntarily and freely given as anyone else who had been arrested and drugs had been found in his house.

In summation, the officers had probable cause to believe the appellant’s apartment contained more cocaine, and there were exigent circumstances to support their warrantless entry. Once inside, they saw the cocaine and packaging paraphernalia lying in plain view. In addition, there was no showing that the appellant’s consent to search was not freely and voluntarily given. The trial court did not err in denying the motion to suppress the evidence, and this claim has no merit.

By his final assignment of error, the appellant contends that the trial court erred by denying his motion to suppress his statements. He notes that although the DVD shows that while one officer started to advise him of his rights once he had been taken inside his apartment, the officer did not explain all of his rights, | isincluding the right to remain silent. He also notes that although Det. Jackson testified that another officer advised him of his rights when he was placed under arrest, this advisement is not contained on the DVD, and that officer did not testify as to what he actually advised the appellant. He asserts that the State thus failed to prove that the statements he subsequently made to Det. Jackson once he was placed in the police car were freely and knowingly given. We disagree.

As per La.C.Cr.P. art. 703(D), the State had the burden of showing that the defendant’s statements were admissible. In addition, La. R.S. 15:451 provides: “[b]efore what purports to be a confession can be introduced in evidence, it must be affirmatively shown that it was free and voluntary, and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises.” See State v. Gradley, 97-0641, p. 9 (La.5/19/98), 745 So.2d 1160, 1166; State v. Butler, 2004-0880, p. 4 (La.App. 4 Cir. 1/12/05), 894 So.2d 415, 418. As noted in State v. Vigne, 2001-2940, p. 6 (La.6/21/02), 820 So.2d 533, 537, in order for a statement made by a suspect in custody to be admissible at trial, police officers must advise the suspect of his Fifth Amendment rights prior to interrogating him. Generally, a trial court’s ruling on a motion to suppress a statement is entitled to great weight and will not be disturbed unless clearly unsupported by the evidence. Id. It is well-settled that an appellate court should review a trial court’s ruling under a deferential standard with regard to factual determinations, while legal findings are subject to a de novo standard of review. State v. Hunt, 2009-1589, p. 6 (La.12/1/09), 25 So.3d 746, 751.

The statements that the appellant contends were unlawfully admitted were elicited while he was seated in the police car and speaking with Det. Jackson. When the detective told the appellant that he should have been using his college 1 indegree rather than selling drugs, the appellant replied: “Like I said, I got kids. You got situations you got to take care of. I ain’t frontin’ — I ain’t frontin’ [sic] on the situation. Y’all did what you had to do. I fucked up. It is what it is. I’m gonna lay down for it.” Det. Jackson testified that he arrived just after the detention and that another officer, Det. Michel, advised the appellant of his Miranda rights while they were outside prior to the appellant making the statement. Thus, the trial court properly denied the appellant’s motion to suppress his statements and properly found that the appellant was advised of and knowingly and freely waived his Miranda rights. This assignment has no merit.

We find that the trial court did not err in denying the appellant’s motion to suppress the evidence and motion to suppress his statements. Accordingly, we affirm the appellant’s conviction and sentence.

AFFIRMED.

      . The bill also charged Jerome Lewis with one count of distribution of cocaine. The State subsequently amended the bill to charge him with attempted distribution; he pled guilty to the amended bill and was sentenced to serve eight years at hard labor as a multiple offender. He is not a party to this appeal.


author: PAUL A. BONIN, Judge.

text:
    STATE of Louisiana v. Joshua FRANKLIN.
    No. 2013-KA-0488.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, J. Bryant Clark, Jr., Assistant District Attorney, New Orleans, LA, for Appellant.
    Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge PAUL A. BONIN, Judge DANIEL L. DYSART, Judge ROSEMARY LEDET).
   PAUL A. BONIN, Judge.

hThe district attorney appeals the trial judge’s granting of the motion to quash filed by the defendant, Joshua Franklin. The district attorney charged Mr. Franklin with jumping bail, a violation of La. R.S. 14:110.1 A, which criminalizes the “intentional failure to appear at a date, time, and place as ordered by the court in which the defendant’s case is pending.” The ground specified in Mr. Franklin’s motion to quash was that his failure to appear was unintentional as he was hospitalized in a trauma intensive care unit on his court date.

Upon our de novo review of the bill of information and the quashal, we find that the trial judge did not limit his consideration of the motion only to appropriate questions of law, but also improperly considered factual defenses going to the merits of the offense charged. Because we find that the trial court’s consideration | aof factual defenses resulted in the quashing of the bill of information, we reverse the ruling and remand the matter to the district court for further proceedings. We explain our decision below.

I

The record before us is limited to certain pre-trial documents and the transcript from the hearing on the motion to quash. According to the .bill of information, Mr. Franklin was originally charged with possession of cocaine, a felony. Mr. Franklin was released from incarceration on bail while his prosecution was pending before the Criminal District Court for the Parish of Orleans in proceedings numbered 506-844.

According to the bill of information in this ease, Mr. Franklin was charged on September 29, 2011 with committing the crime of “Bail Jumping” for intentionally failing to appear on September 22, 2011 before Section C for a hearing in the felony case. The date listed on the bill of information for the commission of the offense, though, is disputed. Mr. Franklin claims that his missed court date was actually on August 23, 2011.

Mr. Franklin, however, did not file a motion for a bill of particulars which might require the district attorney to set forth “more specifically the nature and cause of the charge against the defendant.” La. C.Cr.P. art. 484. Mr. Franklin asserts in brief that a bill of particulars is not needed, as all necessary information is contained in the court records for the alleged offenses. Mr. Franklin further contends that the trial judge could take “judicial notice” of the court’s record in the |s506-844 proceedings, and find that the missed court date was on August 23, 2011, and not September 22, 2011, the date alleged in the bill of information.

Instead, Mr. Franklin filed a Motion to Quash Bill of Information on November 2, 2011. Mr. Franklin attached to his motion documents from the Interim LSU Public Hospital, which, if accurate and authentic, would establish that he was hospitalized in that facility from August 18, 2011 until his discharge on August 26, 2011.

After hearing the arguments of counsel, the trial judge, apparently swayed by the documentation attached to the motion to quash and Mr. Franklin’s ensuing argument, granted the motion to quash. The district attorney promptly moved for an appeal.

II

In this Part, we turn our attention to the general precepts pertaining to the appellate review of a ruling granting a motion to quash.

A motion to quash is “a mechanism whereby pre-trial pleas are urged, i.e., pleas which do not go to the merits of the charge.” State v. Carter, 11-859, p. 3 (La.App. 4 Cir. 3/21/12), 88 So.3d 1181, 1182 (citing State v. Byrd, 96-2302, p. 18 (La.3/13/98), 708 So.2d 401, 411; State v. Rembert, 312 So.2d 282, 284 (La.1975)). See also State v. Clark, 12-1296, p. 3 (La.5/7/13), 117 So.3d 1246, 1249. "All pleas or defenses raised before trial, other than mental incapacity to proceed, or pleas of ‘not guilty’ and of ‘not guilty and not guilty by reason of insanity,’ shall be urged by a motion to quash.” La.C.Cr.P. art. 531.

“All issues, whether of law or fact, that arise on a motion to quash shall be tried by the court without a jury.” La.C.Cr.P. art. 537. The scope of permissible consideration by the trial court on a motion to quash an indictment or bill of information is similar to an exception of no cause of action in a civil suit. See State v. Schmolke, 12-406, pp. 2-3 (La.App. 4 Cir. 1/16/13), 108 So.3d 296, 298. See also State v. Gerstenberger, 260 La. 145, 255 So.2d 720, 723 (1971). Thus, “[a] judge’s consideration of a motion to quash is confined to questions of law and, as a general rule, does not extend to defenses based upon factual findings.” Schmolke, 12-406, p. 2, 108 So.3d at 298. This is because the question raised by a motion to quash is not of factual guilt or innocence of the offense charged, as that is an appropriate determination for the fact-finder at trial. State v. Perez, 464 So.2d 737, 740 (La.1985). See also Byrd, 96-2302, p. 18, 708 So.2d at 411; State v. Patterson, 301 So.2d 604, 604 (La.1974). Rather, the trial judge’s range of permissible actions is limited to those matters which do not go to the merits of the charge. See La.C.Cr.P. arts. 532-534. See also Rembert, 312 So.2d at 284.

While La.C.Cr.P. arts. 532 and 534 provide numerous grounds for motions to quash bills of information, their lists are merely illustrative, and motions not | abased on the grounds therein should not be automatically denied. See State v. Tanner, 425 So.2d 760, 762 (La.1983); State v. Reaves, 376 So.2d 136, 137-138 (La.1979); State v. Moten, 99-552, p. 2 (La.App. 5 Cir. 11/30/99), 748 So.2d 1210, 1211; State v. Cooper, 449 So.2d 1376, 1380 (La.App. 2 Cir.1984); State v. Fisher, 12-412, p. 6 (La.App. 5 Cir. 11/27/12); 105 So.3d 964, 968 n. 1. In making the determination of whether a given issue is appropriate to raise in a motion to quash, a court should determine whether “it is a defense which, if successful, requires dismissal of the indictment [or bill of information] regardless of the merits of the charge ... and which by its nature must be available before trial.” Reaves, 376 So.2d at 138. Should the given issue not fit this paradigm, the court need not consider the issue any further, and may simply deny the motion to quash the bill of information or indictment. It is important to note, however, that the prosecution’s ability to meet its factual burden of proof at trial is a factual matter going to the merits of the charge and should not be a sufficient ground to quash a bill of information. See State v. Masino, 214 La. 744, 38 So.2d 622, 623 (1949); State v. Rivers, 05-1121, pp. 5-6 (La.App. 4 Cir. 10/11/06), 942 So.2d 1176, 1179.

When considering a motion to quash, “the court must accept as true the facts contained in the bill of information and the bills of particulars and decide whether or not a crime has been charged.” Schmolke, 12-406, p. 3, 108 So.3d at 298 (quoting State v. Lagarde, 95-1497, p. 2 (La.App. 4 Cir. 4/3/96), 672 So.2d 1102, 1103 (internal quotations omitted)). See also State v. Bremer, 97-0456, p. 3 (La.App. 4 Cir. 12/10/97), 704 So.2d 917, 919; Gerstenberger, 255 So.2d at 722. Evidence may be adduced in a motion to quash and at the subsequent hearing on the matter. See Perez, 464 So.2d at 739. See also Byrd, 96-2302, p. 18, 708 So.2d at 411. The sole purpose of this evidence, however, must not be to support a defense on the merits. Id. at 96-2302, p. 18-19, 708 So.2d at 411. If the indictment, bill of information, and/or bill of particulars fails to inform the defendant adequately of the charges against him, the trial court may order the indictment or bill of information quashed. See State v. DeJesus, 94-261, p. 4 (La.9/16/94), 642 So.2d 854, 855. See also State v. Dowl, 09-989, p. 18 (La.App. 4 Cir. 5/12/10), 39 So.3d 754, 766.

The decision by the trial court to grant or deny a motion to quash is solely a question of law. See Byrd, 96-2302, p. 18, 708 So.2d at 411. Thus, we review the trial judge’s ruling in this case under a de novo standard. See State v. Hamdan, 12-1986, p. 6 (La.3/19/13), 112 So.3d 812, 816. See also Schmolke, 12-406, p. 4, 108 So.3d at 299. Under this standard of review, we do not defer to any factual findings by the trial judge. Id. See, e.g., Byrd, 96-2302, pp. 19-20, 708 So.2d at 422-412. This lack of deference is strongly rooted in the fact that any factual determinations by a trial judge during that time regarding the merits of the defense would be unauthorized. Id.

Ill

As previously stated, Mr. Franklin did not file a motion for a bill of particulars under La.C.Cr.P. art. 484. Mr. Franklin instead filed a motion to quash 17but does not base his motion to quash upon any listed general or special ground. See La. C.Cr.P. arts. 532, 534. For example, Mr. Franklin does not argue that the bill of information fails to charge an offense which is punishable under a valid statute. See La.C.Cr.P. art. 532(1). Mr. Franklin simply asserts that the medical documents attached to his motion to quash are sufficient to show that his failure to appear at the court was not intentional.

An essential element of the offense of jumping bail is that the failure to appear for a court date as ordered by the court must be intentional. See La. R.S. 14:110.1 A. Thus, jumping bail requires proof of specific intent. “Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” La. R.S. 14:10(1). Whether Mr. Franklin acted with specific intent goes to the merits of the charge and is a question of fact to be determined by the fact-finder at trial. See State v. Ordodi, 06-207, p. 11 (La.11/29/06), 946 So.2d 654, 661 (citing State v. Legrand, 02-1462, p. 8 (La.12/3/03), 864 So.2d 89, 96; State v. Williams, 490 So.2d 255, 260 (La.1986)). Additionally, the trial judge’s consideration of the medical documents was improper as their sole purpose is to further Mr. Franklin’s defense on the merits. It may well be that Mr. Franklin has a good defense on the merits, but the fact that a defendant “may have a good defense is not sufficient grounds to quash the indictment.” Masino, 38 So.2d at 623. And, such considerations do not support a ruling to quash.

1 «DECREE

We reverse the ruling sustaining the motion to quash. The matter is remanded to the district court for further proceedings.

REVERSED AND REMANDED.

      . A motion to quash "shall specify distinctly the grounds on which it is based.” La. C.Cr.P. art. 536. “The court shall hear no objection based on grounds not stated in the motion.” Id.

      . The actual date of Mr. Franklin’s missed court hearing is not relevant to our appellate review of the trial court’s decision to grant the motion to quash. It is important to note, however, that bills of information and particulars are means to assure that persons accused of crimes are “informed of the nature and cause of the accusation against” them. La. Const, art. I, § 13. Thus, if there is any error regarding the date of Mr. Franklin’s alleged violation of La. R.S. 14:110.1 A, it should be remedied by either an amendment to the bill of information prior to trial, or some other appropriate means. See La. C.Cr.P. art. 487; La. C.Cr.P. art. 468 cmt. c.

      . Apparently, Mr. Franklin had been the victim of a gunshot wound.

      . A noted exception to this rule is contained within the provisions of the Uniform Controlled Dangerous Substances Law. This exception allows for an “individual who claims possession of a valid prescription for any controlled dangerous substance” to "raise this defense before commencement of the trial through a motion to quash.” La. R.S. 40:991. See State v. Tran, 12-1219, pp. 1-4 (La.App. 4 Cir. 4/24/13), 115 So.3d 672, 672-674.