author: SUSAN M. CHEHARDY, Chief Judge.

text:
    LIVE OAK HOMES CORPORATION v. CARRIER SALES AND DISTRIBUTION, LLC and Multiaqua, Inc.
    No. 13-CA-516.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 23, 2014.

      J. William Starr, Attorney at Law, Me-tairie, LA, for Appellee, Live Oak Homes Corporation.
    Michael A. Rosenblatt, Attorney at Law, Gretna, LA, for Appellant, Multiaqua, Inc.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and JUDE G. GRAVOIS.
   SUSAN M. CHEHARDY, Chief Judge.

lain this case, the purchaser filed suit against the seller and the manufacturer of commercial air handler units alleging that the units were defective and seeking rescission of the sale. In two separate proceedings, the trial court found that the air handler units contained a redhibitory defect, rescinded the sale, and awarded the purchaser a refund of the purchase price, plus interest from the date of the sale, damages, costs, and attorneys’ fees. The manufacturer appeals the judgments. For the following reasons, we amend the judgment and affirm as amended.

Facts

Live Oak Homes Corporation (“Live Oak”) is a maintenance and construction contractor for several residential apartment complexes. On December 7, 2006, Live Oak purchased 416 Air Handler Units (“units”), which had been manufactured by Multiaqua, Inc. (“Multiaqua”), from Carrier Sales and Distribution, L.L.C. (“Carrier”). The total purchase price of the units was $117,242.38.

In 2007, Live Oak installed 172 of the units in three apartment complexes located in the metropolitan New Orleans area. When the weather turned cold in Ríate 2007, tenants in 23 apartments reported that the units would not heat their apartments. Live Oak reported the problem to Carrier then to Multiaqua.

Live Oak hired two independent heating and cooling equipment specialists to investigate the problem. One specialist reported that the units were not operating properly as heaters because excessive radiant heat inside of the units was “overheating” the thermal overload device. The second specialist further explained that the manufacturer’s “design of the heat strip does not put enough of the strip itself in the fan airflow path,” which “is causing the heat chamber to overheat (above 220 degrees) and the heater to fail on thermal disc or overload safeties.” In essence, the manufacturer’s configuration of the heating element inside of the unit, which placed the heating element, or “heat strip,” partially outside of the direct air flow, generated high temperatures, which triggered the device’s safety mechanisms to shut off the unit.

On April 29, 2008, Live Oak made formal demand upon Carrier and Multiaqua to return the purchase price and the cost of installation and removal of the installed units. Neither Carrier nor Multiaqua complied with the demand.

On June 4, 2008,. Live Oak filed suit against Carrier, as the seller, and Multia-qua, as the manufacturer, alleging that the air handler units had a redhibitory defect. Carrier answered, denying the allegations of the petition and filed a cross-claim against the manufacturer, Multiaqua.

Multiaqua answered denying the allegations of the petition and raising the defense that the units that were installed failed due to an “incompatibility with the | ¿ventilation and electrical systems” extant in the buildings where Live Oak installed the units.

On January 10, 2012, Live Oak moved for partial summary judgment on the basis that the air handlers at issue were “not fit for their intended purpose.” Live Oak attached to its motion for summary judgment, an affidavit and excerpts from the deposition of its employee, Joey Baldassa-ro; the report from a mechanical engineer, Robert Wilson, regarding the ductwork and equipment; reports from two heating and air conditioning system consultants; the Service Bulletin issued by Multiaqua regarding excessive heat buildup inside the units; the report from an electrical engineer, Michael Smith, regarding the standard voltage delivered by Entergy; a report issued by Entergy on Power Quality Standards for Electric Service; photographs of face plate data and the heating coil apparatus of the units in question and a competitor’s unit; and an affidavit from Raul Mena regarding the remediation attempt on the air handlers in April of 2008.

On March 7, 2012, Carrier filed its opposition to Live Oak’s motion for partial summary judgment on the basis that it had supplied equipment that matched the specifications provided by Live Oak. To its opposition, Carrier attached an affidavit from its employee, Mike Judge; a copy of the equipment quotation made by Carrier to Live Oak through its agent, Joey Bal-dassaro; and the entire deposition of Joey Baldassaro as well as copies of his licenses and certifications.

On March 12, 2012, Multiaqua filed its opposition to Live Oak’s motion for partial summary judgment on the basis that there existed a genuine issue of material fact as to whether the air handlers contained a design defect. To its opposition, Multia-qua attached an affidavit from its principal, Ralph Feria and an excerpt from Joey Baldassaro’s deposition.

|ROn October 18, 2012, the trial judge heard the motion for partial summary judgment and took the matter under advisement. The next day, the trial judge granted partial summary judgment in favor of Live Oak, finding that “Live Oak has established as a matter of law that the overheating of the units was due to a redhibitory defect.” Within 60 days of the judgment, Multiaqua filed its motion for devolutive appeal of the summary judgment, which was granted.

On November 26, 2012, trial of the quantum of damages commenced. At the beginning of trial, the parties stipulated that Live Oak purchased the air handler units in question through Carrier for $117,242.33 and Multiaqua is the “defacto manufacturer” of those units. After hearing two days of testimony and evidence, the trial judge took the matter under advisement.

On February 27, 2013, the trial judge rendered judgment in favor of Live Oak, against Multiaqua and Carrier for $216,099.65, plus “interest on the purchase price of $117,242.33 from the date(s) purchase price was paid.” Further, the trial judge awarded attorneys’ fees to Live Oak from Multiaqua of $65,575.88, “plus actual attorneys’ fees for preparation and filing of the post-trial brief and financial reconciliation.” In her written reasons for judgment, the trial judge stated:

[Pjursuant to the Civil Code’s articles on redhibition, Live Oak is entitled to: return of the $117,242.33 purchase price with interest from the time it was paid, reimbursement for reasonable expenses occasioned by the sale, reimbursement for expenses incurred for the preservation of the units, actual damages, and reasonable attorney fees, less any credits for Live Oak’s use of the units and for diminution in the value of the units owing to Live Oak’s failure to act as a prudent administrator.
Specifically, besides the purchase price •with interest, the trial judge awarded:
■ Labor to remove and replace 172 Multiaqua units.$77,197.50 Miscellaneous expenses including expert fees, rental conces-
■ sions, | (¡repair service calls, and space heaters for tenants .. $10,305.41
■ Testing of units to prove defect.$15,479.11
■ Reimbursement for storage of 410 units.$8,585.00
$111,567.02

The total award to Live Oak of $228,809.35 was subject to a credit in favor of Multia-qua of $12,709.70 for Live Oak’s use of the units; thus, the award of $216,099.65, plus interest from the date(s) of purchase and attorneys’ fees.

On March 13, 2013, after the initial judgment was rendered, Carrier moved for a new trial or amendment of the judgment to assert its claim for attorneys’ fees of $26,328.16, pursuant to the parties’ stipulation at trial. That same day, the trial judge rendered an amended judgment, including the previous judgment and adding judgment in favor of Carrier against Mul-tiaqua in the stipulated amount for attorneys’ fees.

On April 8, 2013, Multiaqua filed a sus-pensive appeal, which was granted that same day. On April 9, 2013, the trial judge issued a “supplemental judgment” against Multiaqua, awarding Live Oak the additional sum of $5,512.50 for “legal fees for preparation and filing of post-trial brief and financial reconciliation.”

On appeal, Multiaqua raises seven assignments of error challenging the finding of liability and the award of damages. Multiaqua specifically argues: first, the trial court erred in determining the air handler units had a redhibitory defect; second, the trial court erred in not finding that Live Oak suffered a diminution of the warranty due to failure to allow Multiaqua the opportunity to make the required repairs; third, the trial court erred in not finding that Live Oak failed to care for the air handler units as a prudent administrator; fourth, the trial court erred in not awarding Live Oak a reduction in price in proportion to Live Oak’s interest, pursuant to La. C.C. art. 2538; fifth, the trial court erred in awarding Live Oak the |7sum of $77,197.50 for labor to remove and replace the 172 Multiaqua units; sixth, the trial court erred in awarding Live Oak the sum of $15,479.11 for unit testing prior to the Court’s finding of a redhibitory defect; and, finally, the trial court erred in awarding $8,585.00 for the equitable amount of reimbursement for storing the units in two of Live Oaks vacant apartment units and unused storage containers.

DISCUSSION

PRELIMINARY NOTE

At this point, we must note a clerical error in the judgment granting Live Oak’s motion for partial summary judgment. That judgment is dated October 19, 2010, which is clearly a clerical error for several reasons. First, the judgment itself refers to the hearing that occurred on October 18, 2012. Further, the Notice of Judgment from the Clerk of Court indicates that the judgment was signed and issued on October 19, 2012 and mailed to the parties on October 22, 2012.

The trial court could have corrected this error on its own initiative pursuant to La. C.C.P. art. 1951. Further, this Court may correct clerical errors in the judgment of a trial court. Frazier v. Carl E. Woodward, Inc., 378 So.2d 209 (La.App. 4 Cir.1979). Accordingly, we amend the judgment to reflect the date of the judgment to October 19, 2012. See, Moss v. Moss, 05-455 (La.App. 3 Cir. 11/2/05), 916 So.2d 455, 458.

REDHIBITION

In its first assignment of error, Multia-qua argues that the trial court erred in granting summary judgment, finding that the air handler units had a redhibitory defect. Multiaqua specifically contends that the trial judge erred in finding that “regardless of which of the two mechanisms caused the malfunction, the units nonetheless contained a redhibitory defect.”

IsSummary judgment will be granted if the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). The party bringing the motion bears the burden of proof; however, where the moving party will not bear the burden of proof at trial, the moving party must only point out that there is an absence of factual support for one or more elements essential to the adverse party’s claim. La. C.C.P. art. 966(C)(2); Babin v. Winn-Dixie Louisiana, Inc., 00-0078 (La.6/30/00), 764 So.2d 37, 38-41.

On appeal, our review of summary judgments is de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Pizani v. Progressive Ins. Co., 98-225 (La.App. 5 Cir. 9/16/98), 719 So.2d 1086, 1087. The decision as to the propriety of a grant of a motion for summary judgment must be made with reference to the substantive law applicable to the case. Muller v. Carrier Corp., 07-770 (La.App. 5 Cir. 4/15/08), 984 So.2d 883, 885.

In Louisiana, the seller warrants the buyer against redhibitory defects, or vices, in the thing sold. La. C.C. art. 2520 further provides:

A defect is redhibitory when it renders the thing useless, or its use so inconvenient that it must be presumed that a buyer would not have bought the thing had he known of the defect. The existence of such a defect gives a buyer the right to obtain rescission of the sale. A defect is redhibitory also when, without rendering the thing totally useless, it diminishes its usefulness or its value so that it must be presumed that a buyer would still have bought it but for a lesser price. The existence of such a defect limits the right of a buyer to a reduction of the price.

| n“The warranty against redhibitory defects covers only defects that exist at the time of delivery.” La. C.C. art. 2530; Aucoin v. Southern Quality Homes, LLC, 07-1014 (La.2/26/08), 984 So.2d 685, 691.

The extent of a seller’s liability to a buyer for breaching this warranty depends on whether the seller knew, or did not know, of the defect. See La. C.C. arts. 2531 and 2545. With regard to a seller who knew of the defect, La. C.C. art. 2545 provides as follows:

A seller who ... declares that the thing has a quality that he knows it does not have, is hable to the buyer for the return of the price with interest from the time it was paid, for the reimbursement of the reasonable expenses occasioned by the sale and those incurred for the preservation of the thing, and also for damages and reasonable attorney fees. If the use made of the thing, or the fruits it might have yielded, were of some value to the buyer, such a seller may be allowed credit for such use or fruits.
A seller is deemed to know that the thing he sells has a redhibitory defect when he is a manufacturer of that thing.

A manufacturer is conclusively presumed to have knowledge of defects in the object it manufactures. Id.; Young v. Ford Motor Co., Inc., 595 So.2d 1123, 1126 (La.1992). Because of this presumption, the manufacturer “is deemed to be in bad faith in selling a defective product” and is liable to the buyer for all damages recoverable under La. C.C. art. 2545. Pratt v. Himel Marine, Inc., 01-1832 (La.App. 1 Cir. 6/21/02), 823 So.2d 394, 404, writs denied, 02-2128, 02-2025 (La.11/1/02), 828 So.2d 571, 572. A buyer can recover directly from the manufacturer for breach of warranty, despite the fact that there is no privity of contract between them. Aucoin v. Southern Quality Homes, LLC, supra, at 692.

In this case, the trial court held that the redhibitory defects were manufacturing defects, for which the manufacturer is liable. The trial court found that there was “overwhelming evidence indicating that the overheating was caused by a design flaw in the way the heating elements were cooled,” which was clearly 110attributable to the manufacturer. Based on our de novo review of the record, we find no manifest error in the trial court’s finding that the manufacturing defects were redhibitory. Finding no error in the trial court’s finding of redhibitory defects, we affirm the judgment as amended, supra.

OBLIGATION TO TENDER

In its second assignment of error, Multiaqua argues that the trial court erred in failing to find that Live Oak suffered a “diminution” of Multiaqua’s warranty because Live Oak refused to allow Multiaqua to “repair” the units.

First, the buyer’s obligation to tender the product for repair or correction applies only to a good-faith seller but not to a manufacturer, who is presumed to have knowledge of the defects. Hale Farms, Inc. v. Am. Cyanamid Co., 580 So.2d 684, 695 (La.App. 2 Cir.1991), writ denied, 586 So.2d 537 (La.1991).

Second, the record reflects that Live Oak did allow Multiaqua the opportunity to repair the units by installing a deflector inside of the unit to deflect air toward the heating coils to cool the coils. Carlos Mena installed and adjusted deflectors inside of the air handler at Multiaqua’s direction, but the repair did not correct the problem of the units’ overheating.

Finally, “[t]he fact that the defects were confined to a specific part of the machinery and that the units could have been made to function properly by installing new motors or by rehabilitating the defective ones, does not furnish a valid basis for denying plaintiff the remedy of redhibition provided by Article 2520.” Radalec, Inc. v. Automatic Firing Corp., 228 La. 116, 122-23, 81 So.2d 830, 832 (1955). We find no merit in Multiaqua’s argument that its warranty against defects was somehow “diminished” by the buyer’s decision not to attempt further repairs. This assignment of error lacks merit.

PRUDENT ADMINISTRATOR

Inin its third assignment of error, Multiaqua argues that the trial court erred in failing to find that Live Oak did not act as a prudent administrator. Specifically, Multiaqua contends that the trial court erred in finding that “by the time of trial [the units] had become antiquated and essentially unmarketable.”

La. C.C. art. 2532 provides:

A buyer who obtains rescission because of a redhibitory defect is bound to return the thing to the seller, for which purpose he must take care of the thing as a prudent administrator, but is not bound to deliver it back until all his claims, or judgments, arising from the defect are satisfied.
If the redhibitory defect has caused the destruction of the thing the loss is borne by the seller, and the buyer may bring his action even after the destruction has occurred.
If the thing is destroyed by a fortuitous event before the buyer gives the seller notice of the existence of a redhibitory defect that would have given rise to a rescission of the sale, the loss is borne by the buyer.
After such notice is given, the loss is borne by the seller, except to the extent the buyer has insured that loss. A seller who returns the price, or a part thereof, is subrogated to the buyer’s right against third persons who may be liable for the destruction of the thing.

At trial, Multiaqua’s principal, Ralph Fe-ria, testified that the air handler units that he recovered from Live Oak had been stored for at least four years, by the time of trial, in non-climate-controlled shipping containers, which were not weatherproof. His expert testified that at least one-third, if not more, of the units were inside of cardboard boxes that had disintegrated under the storage conditions. Mr. Feria stated that, based on the conditions the units had been exposed to while in Live Oak’s care, there value was as “scrap.”

Live Oak’s agent, Joey Baldassaro, testified that the units is question became obsolete in 2010 when the refrigerant, R-22, was discontinued for use in new air conditioning systems.

|iaBased on the testimony and evidence introduced at trial, the trial judge found .that Multiaqua did not establish that Live Oak failed to act as a prudent administrator. See, Hughes v. Goodreau, 01-2107 (La.App. 1 Cir. 12/31/02), 836 So.2d 649, 666, writ denied, 03-0232 (La.4/21/03), 841 So.2d 793. A court of appeal may not set aside a trial court’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Rosell v. ESCO, 549 So.2d 840 (La.1989). We find no manifest error in the trial court’s ruling. This assignment of error lacks merit.

MULTIPLE BUYERS

In its fourth assignment of error, Multiaqua argues that Live Oak is not the only buyer so its interest should have been limited to a reduction in price proportionate to its interest.

La. C.C. art. 2538 reads, in pertinent part: “Multiple buyers must concur in an action for rescission because of a redhibi-tory defect. An action for reduction of the price may be brought by one of multiple buyers in proportion to his interest.”

At trial, Live Oak’s representative, Joey Baldassaro, testified that Live Oak was the sole owner of the air handler units at all times pertinent to this litigation. Accordingly, we find no merit in Multiaqua’s argument.

DAMAGES

Lastly, Multiaqua levies complaints against several items of damages the trial court awarded, including the removal and replacement of 172 air handler units; electrical voltage testing of air handler units performed by Live Oak; and storage fees.

In this case, Live Oak presented evidence of the following expenses at trial, including 1) $108,095.50 for the installation and removal of 173 units; 2) |ia$15,479.11 for electrical testing of the units; and $13,835.00 for storage of the units after removal.

The trial judge, however, awarded 1) $77,197.50 for removal and replacement of 172 Multiaqua units; 2) $15,479.11 for electrical testing of the units; and 3) $8,585.00 for storage of the units after removal, which is significantly lower than the damages prayed for by Live Oak.

On appeal, Multiaqua seeks diminution of the quantum of damages awarded.

A manufacturer is “liable to the buyer for the return of the price with interest from the time it was paid, for the reimbursement of the reasonable expenses occasioned by the sale and those incurred for the preservation of the thing, and also for damages and reasonable attorney fees.” La. C.C. art. 2545. The trier of fact is given much discretion in the assessment of damages. La. C.C. art. 2324.1. The ultimate determination by an appellate court as to whether a judge abused their “much discretion” as a matter of law in awarding damages is a judgment call. Coco v. Winston Indus., Inc., 341 So.2d 332, 335 (La.1976); Carnaggio v. Cambre, 11-552 (La.App. 5 Cir. 12/13/11), 84 So.3d 631, 640.

Before an appellate court can disturb a trial court’s award, the record must clearly reveal that the trier of fact abused its discretion in making its award. Coco v. Winston Industries, Inc., 341 So.2d 332, 335 (La.1976). “Only after making the finding that the record supports that the lower court abused its much discretion can the appellate court disturb the award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court.” Id.

Upon review, we find that the record does not clearly reveal an abuse of discretion by the trial court in its award. Finding no abuse of the trial court’s discretion, we find this argument without merit.

JUDGMENT OF OCTOBER 19, 2012 AMENDED AND AFFIRMED, AS AMENDED.

      . Each unit was equipped with an auto-limiter, which is a factory-installed safely switch that shuts off electricity to the metal heating coil when the temperature inside of the unit reaches 140°F.

      . According to Live Oak's maintenance records introduced at trial, Live Oak removed 164 of the units by December 22, 2009. Further, according to their records, three units were still in use at its clients’ complexes at the time of trial.

      . On November 2, 2012, Live Oak filed stipulations into the district court record admitting that it could not establish that Carrier was not a good-faith seller or knew or could have known that the units in question was redhibi-torily defective. At trial, the parties stipulated that Carrier’s attorneys’ fees were $26,328.16.

      . The total attorney fee award was $65,575.88 + $5,512.50, which totals $71,088.38.


source: Caselaw Access Project

author: JOY COSSICH LOBRANO, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Kemon J. MAGEE.
    No. 2013-KA-1267.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 23, 2014.

      Leon A. Cannizzaro, Jr., District Attorney, J. Bryant Clark, Jr., Assistant District Attorney, New Orleans, LA, for Appellant/State of Louisiana.
    Powell W. Miller, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge ROLAND L. BELSOME, Judge JOY COSSICH LOBRANO).
   JOY COSSICH LOBRANO, Judge.

h The State of Louisiana appeals from a judgment of the trial court that quashed the bill of information against defendant, Kemon Magee, on the basis of double jeopardy pursuant to La.C.Cr.P. art. 532(6) For the reasons stated herein, we affirm.

As to the underlying facts, the record indicates that the police officers observed Magee approach a parked vehicle, open the front passenger side door, remove a firearm from his waistband, place it on the passenger seat, enter the vehicle, and sit in the front passenger seat atop the firearm. Based on their observations, the officers conducted an investigatory stop of the vehicle and its occupants. After the officers discovered the firearm was fully loaded with one bullet in the firing well, they arrested Magee and read him his Miranda rights. Subsequent investigation revealed that the firearm had been stolen from the City of Gretna in July 2011.

| gMagee was charged by bill of information filed in the Municipal Court for the City of New Orleans with one count of illegal carrying of a weapon, first offense, a violation of La. R.S. 14:95(A)(1). After entering a plea of guilty on July 12, 2012, he was sentenced to serve thirty days in jail. In relation to the same incident, Ma-gee was later charged by a bill of information filed in Orleans Parish Criminal District Court, with one count of illegal carrying of a weapon, second offense, a violation of La. R.S. 14:95(C); and one count of illegal possession of a stolen firearm, a violation of La. R.S. 14:69.1(B)(1).

La. R.S. 14:95 provides in pertinent part:

A. Illegal carrying of weapons is:
(1) The intentional concealment of any firearm, or other instrumentality customarily used or intended for probable use as a dangerous weapon, on one’s person; ...
* * *
C. On a second conviction, the offender shall be imprisoned with or without hard labor for not more than five years.

Likewise, La. R.S. 14:69.1 provides in pertinent part:

A. Illegal possession of stolen firearms is the intentional possessing, procuring, receiving, or concealing of a firearm which has been the subject of any robbery or theft under circumstances which indicate that the offender knew or should have known that the firearm was the subject of a robbery or theft.
B. Whoever commits the crime of illegal possession of firearms shall be punished as follows:
(1) For a first offense, the penalty shall be imprisonment, with or without hard labor, for not less than one year nor more than five years.

IsMagee asserted in his motion to quash that pursuant to La.C.Cr.P. art. 532 and the Double Jeopardy Clauses of the United States Constitution and the Louisiana Constitution, the State is prohibited from placing him twice in jeopardy for the same offense. See U.S. Const, amend. VI; La. Const, art. I, § 15. Specifically, the defendant asserted that: (1) as to the charge of illegal carrying of a weapon, second offense, the conduct that supported the charge of illegal carrying of a weapon in municipal court was the same conduct that supported the charge of illegal carrying of a weapon, second offense, in criminal court; and, (2) as to the charge of illegal possession of a stolen firearm, the conduct that supported the charge of illegal carrying of a weapon in municipal court was the same conduct that supported the charge of illegal possession of a stolen firearm in criminal court.

In its sole assignment of error, the State argues that the trial court abused its discretion by granting Magee’s motion to quash the bill of information because each of the charged offenses has an element that the other offense does not require.

“The granting of a defendant’s motion to quash the bill of information is a discretionary ruling by the trial court, and absent abuse, the ruling should not be disturbed by the appellate court.” State v. Batiste, 2005-1571, p. 2 (La.10/17/06), 939 So.2d 1245, 1252 (citation omitted).

Regarding the requirements for double jeopardy, La.C.Cr.P. art. 596 provides:

Double jeopardy exists in a second trial only when the charge in that trial is:
(1) Identical with or a different grade of the same offense for which the defendant was in jeopardy in the first trial, whether or not a responsive verdict could have been rendered in the first trial as to the charge in the second trial; or
|4(2) Based on a part of a continuous offense for which offense the defendant was in jeopardy in the first trial.

Additionally, “the Fifth Amendment to the U.S. Constitution and La. Const, art. 1, § 15 guaranty that no person shall be twice placed in jeopardy for the same offense. This guaranty protects against 1) a second prosecution for the same offense after acquittal; 2) a second prosecution for the same offense after conviction; and 3) multiple punishments for the same offense.” State v. Jones, 2012-0565, p. 6 (La.App. 4 Cir. 4/24/13), 115 So.3d 643, 648, citing State v. Smith, 95-0061 (La.7/2/96), 676 So.2d 1068, 1069.

Louisiana courts apply two tests to analyze double jeopardy claims: (1) the “distinct fact” or Blockburger test established by the United States Supreme Court in Blockburger v. U.S., 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932); and (2) the “same evidence” test. State v. Steele, 387 So.2d 1175 (La.1980).

Under the Blockburger test:

where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not.

Blockburger, 284 U.S. at 304, 52 S.Ct. at 182 (citation omitted).

Under the broader “same evidence” test:

If the evidence required to support a finding of guilt of one crime would also have supported conviction of another, the two are the same offense under a plea of double jeopardy, and a defendant can be placed in jeopardy for only one. The test depends on the evidence necessary for conviction, not all the evidence adduced at trial.

Steele, 387 So.2d at 1177 (citation omitted).

The broader same evidence test “considers the actual physical and testimonial evidence necessary to secure a conviction, and concerns its self [sic] | Bwith the eviden-tiary focus’ of the facts adduced at trial in light of the verdict rendered, i.e., how the evidence satisfies the prosecution’s burden of proof.” Jones, 2012-0565, p. 7, 115 So.3d at 648 (quoting State v. Williams, 2007-0931, p. 5 (La.2/26/08), 978 So.2d 895, 897).

The Blockburger Test

As previously noted, Magee was charged by bill of information with illegal carrying of a weapon, second offense, and illegal possession of a stolen firearm. Under the Blockburger test the inquiry is whether each statute requires proof of an additional element which the other does not. In order for Magee to be convicted of illegal carrying of a weapon under La. R.S. 14:95(A)(1), the State would have to prove that he intentionally concealed a firearm, or other dangerous weapon, on his person. On the other hand, in order for Magee to be convicted of illegal possession of a stolen firearm under La. R.S. 14:69.1, the State would have to prove that he intentionally possessed, procured, received, or concealed a firearm, that the firearm was the subject of any robbery or theft, and that he knew or should have known that the firearm was the subject of a robbery or theft.

A comparison of the charged offenses indicates that the elements are different. That is, each charge requires the State to prove additional facts not present in the other. For example, the crime of illegal carrying of a weapon required the State to establish that Magee intentionally concealed a weapon on his person. And the crime of illegal possession of a stolen firearm required the State to prove the firearm was stolen and that Magee knew or should have known it was stolen. Since the State will have to prove additional facts not present in the other |ficharge, Magee will not be subjected to double jeopardy under the Blockburger test with respect to La. R.S. 14:69.1 and La. R.S. 14:95(A)(1).

However, pertaining to La. R.S. 14:95(C), illegal carrying of a weapon, second offense, Magee will be subjected to double jeopardy under the Blockburger test. This charge includes a previous conviction in magistrate court of illegal carrying of a weapon as well as Magee’s municipal court guilty plea to the same offense. Consistent with the Blockburger test, besides the additional element of a second conviction, La. R.S. 14:95(A)(1) and La. R.S. 14:95(C) do not require any additional elements that the other charge does not. In order to convict Magee of illegal carrying of a weapon, second offense, the State would have to prove that on two separate occasions he intentionally concealed a firearm on his person. Since Magee already pled guilty in municipal court to illegal carrying of a weapon and was sentenced, the State cannot charge the defendant as a second offender of the same statute, La. R.S. 14:95(A)(1). Otherwise, Magee will be subjected to double jeopardy with respect to La. R.S. 14:95(C). Therefore, we find the trial court correctly quashed the bill of information as to that charge.

The “Same Evidence” Test

According to the “same evidence” test, the inquiry is whether the evidence required to support a conviction of one offense would have also supported the conviction of the other offense. See Steele, 387 So.2d at 1177. The NOPD Gist Sheet in this case indicates the two police officers observed Magee approach a parked vehicle, open the front passenger side door, remove a firearm from his waistband, place it on the passenger seat, enter the vehicle, and sit in the front passenger seat atop the firearm. Based on their observations, the officers |7conducted an investigatory stop of the vehicle and its occupants. After the officers discovered the firearm was fully loaded with one bullet in the firing well, they arrested Magee and read him his Miranda rights. Subsequent investigation revealed that the firearm had been stolen from the City of Gretna in July 2011. Given these facts, with respect to the pending charge of illegal possession of a stolen weapon pursuant to La. R.S. 14:69.1, the defendant will be subjected to double jeopardy if the matter proceeds to trial, even though double jeopardy does not exist under the Blockburger test, because the evidence needed to support a conviction for the offense, i.e. testimony from the police officers that they observed Magee intentionally possess and conceal a stolen firearm on his person while standing next to the vehicle and seated in the vehicle, would have been sufficient to convict Magee of the illegal carrying of a weapon, the offense to which he previously pled guilty and was sentenced in municipal court. Thus, applying the broader “same evidence” test, we find the trial court correctly quashed the bill of information as to La. R.S. 14:69.1 on the basis of double jeopardy.

Accordingly, for the reasons set forth herein, the trial court judgment is affirmed.

AFFIRMED.

      . La.C.Cr.P. art. 532(6) provides:
      A motion to quash may be based on one or more of the following grounds:

      (6) Trial for the offense charged would constitute double jeopardy.

      . The second offense charge is based upon a previous conviction of the same offense in case number 445-559 "M-2”.