author: CRAIN, J.

text:
    Robert G. CLAITOR v. Laurance W. BROOKS, Jr.
    No. 2013 CA 0178.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 2013.

      Troy J. Charpentier, William L. Caugh-man, III, Baton Rouge, Louisiana, for Plaintiff/Appellant, R.G. Claitor’s Realty.
    John Stone Campbell, III, Baton Rouge, Louisiana, for Defendant/Appellee, Lau-rance W. Brooks, Jr.
    Before WHIPPLE, C.J., WELCH, and CRAIN, JJ.
   CRAIN, J.

Ijn this suit to declare a predial servitude of passage extinguished by prescription of nonuse, the plaintiff appeals from a summary judgment granted in favor of the defendant dismissing the claims with prejudice. We affirm.

FACTS AND PROCEDURAL HISTORY

The servitude at issue burdens property owned by R.G. Claitor’s Realty in the northeast quadrant of the intersection of Perkins Road and South Acadian Thruway in Baton Rouge. The dominant estate is owned by the defendant, Laurance W. Brooks, Jr., and is located at the corner of the intersection, fronting on both roadways to the south and west and surrounded on the east and north by the Claitor property. The Brooks parcel was carved out of the larger tract in 1968, when the original owners, Mr. and Mrs. Robert G. Claitor, Sr., agreed to sell it to Brooks. The transfer was accomplished through an act of exchange with another party on October 16, 1968, who then conveyed ownership of the parcel to Brooks on October 28, 1968.

In the act of exchange, the Claitors provided that they “do hereby establish and create in favor of the [Brooks parcel] a servitude of passage for, and use by, vehicles of all descriptions, animals' and pedestrians, over and across the following described property....” The boundaries of the servitude are described in detail by a metes and bounds description and an attached plat, which is reproduced below and depicts the servitude in the shaded area.

As illustrated, the servitude is somewhat T-shaped and extends north from Perkins Road approximately 242 feet at a width of 25 feet, and then west to South Acadian Thruway at a width of 30 feet, together with a short length to the east. The Brooks parcel is identified as “TRACT ‘A’l,” and all other property to the north (above) and east (right) shown on the plat is owned by Claitor’s Realty and is used as access and parking for businesses on other parts of the property not shown on the plat. The servitude is further described as “permanent ... in the nature of a covenant running with the land, [and] is for the benefit of said Tract ‘A-l’.... ”

According to his affidavit, Mr. Claitor granted the servitude with the' [/‘understanding and intent” that it would be used as a drive-through lane for a proposed fast-food restaurant on the Brooks parcel However, Brooks leased the parcel in 1969 to ExxonMobile Corporation, who built and opened a gasoline service station at the location in 1970. During the construction, Exxon used fill dirt to raise the level of the parcel several feet above the servitude and other adjacent property. A set of steps was constructed on the east side of the parcel leading to the servitude to enable pedestrians to walk to and from the service station across the servitude. The servitude was not necessary for vehicular traffic to access the service station because the parcel contained two driveways directly connecting to Perkins Road and Acadian Thruway. The service station was demolished in 2001, and the property remained vacant through at least 2010.

In 2011, Mr. Claitor filed suit against Brooks and alleged that the servitude was extinguished by prescription of nonuse for ten years pursuant to Louisiana Civil Code article 753. Brooks filed a motion for summary judgment asserting that the servitude was valid and enforceable and that the petition should be dismissed with prejudice. The motion was supported by affidavits and other evidence that indicated repeated use of the servitude by pedestrians to access the Brooks parcel, including Brooks’ sworn statement that he personally used the servitude to access the parcel on a weekly basis or, at the very least, several times a year since he acquired the property in 1968. Brooks also attested that a surveyor, realtor, two appraisers, and a representative of a potential tenant used the servitude in his presence to access the property. An attorney, Daniel D. Holliday, III, attested that on multiple occasions in 2002, 2008, and 2004, he used the servitude to access the property in connection with his representation of Brooks in litigation against Exxon; and a groundskeeper confirmed by affidavit that he parked his truck on the servitude to unload and operate equipment that he used to maintain the [^Brooks property on at least two occasions in 2010. Finally, a manager of the service station from 1992 through 1997 attested that he observed patrons and employees of the station often use the concrete steps leading down to the servitude to access Perkins Road and other businesses located nearby.

Claitor’s Realty opposed the motion with Mr. Claitor’s affidavit wherein he stated that he agreed to grant the servitude for the purpose of the drive-through lane. According to Mr. Claitor, it was his “understanding and intent that the [servitude was going to be used as a drive-through lane at a proposed McDonald’s restaurant.” However, after Brooks acquired the property, a gasoline service station was constructed on it, and the elevation of the tract and placement of concrete retaining walls during that construction made it physically impossible for any vehicle to travel from the servitude onto the Brooks parcel. To his personal knowledge, no vehicle had ever done so. He further confirmed that the pedestrian and vehicular access to the tract is provided by driveways on the Brooks parcel leading to Perkins Road and Acadian Thruway and that the servitude was never needed for pedestrians to access the service station. The servitude is not marked by any signs, and Brooks never sought permission, nor was any granted, for Brooks or his tenants or invitees to use the parking lot on the Claitor property.

Claitor’s Realty also introduced excerpts of Brooks’ deposition wherein he acknowledged that there was never an entryway for vehicular traffic from the servitude onto the Brooks parcel. Brooks also knew of only one instance of a vehicle accessing the property from the servitude, which occurred in 2010 when he drove his vehicle onto the property. A video of that event showed Brooks’ vehicle attempting to climb a side hill of the parcel but apparently unable to crest the hill. Both parties also offered numerous photographs depicting the property over the course of several years.

IfiThe trial court granted the summary judgment in favor of Brooks and adopted his supporting memorandum as reasons. A judgment was entered dismissing the claims with prejudice, and Claitor’s Realty appealed assigning as error the- trial court’s finding that there were no material issues of fact that prevented the granting of the motion for summary judgment.

LAW AND ANALYSIS

A predial servitude is a charge on a servient estate for the benefit of a dominant estate. La. Civ.Code art. 646. The use and extent of such servitudes are regulated by the title by which they are created, and, in the absence of such regulation, they are governed by the rules set forth in Louisiana Civil Code articles 698 through 774. La. Civ.Code art. 697. A servitude of passage is the right for the benefit of the dominant estate whereby persons, animals, utilities, or vehicles are permitted to pass through the servient estate. La. Civ. Code art. 705.

A predial servitude is extinguished by nonuse for ten years. La. Civ.Code art. 753. When the prescription of nonuse is pled, the owner of the dominant estate has the burden of proving that he or some other person has made use of the servitude as appertaining to his estate during the period of time required for the accrual of the prescription, such that no continuous ten-year period of non-use occurred. La. Civ.Code art. 764; Palace Properties, L.L.C., 839 So.2d at 94. A predial servitude, such as a servitude of passage, is preserved by the use made of it by anyone, even a stranger, if it is used as appertaining to the dominant estate. La. Civ.Code art. 757. The phrase “appertaining to the dominant estate” has been | interpreted by this court as requiring that someone must use the servitude for the purpose of going onto the dominant estate for some legitimate purpose, either to see the owner or for something connected with the use of that property. See Dupont v. Hebert, 06-2334 (LaApp. 1 Cir. 2/20/08), 984 So.2d 800, 806, writ denied, 08-0640 (La.5/9/08), 980 So.2d 695; Palace Properties, L.L.C., 839 So.2d at 94; Latour v. Francis, 417 So.2d 485, 489 (La.App. 1 Cir.), writ denied, 420 So.2d 983 (La.1982). A partial use of a servitude constitutes use of the whole. La. Civ. Code art. 759. Therefore, the use of a part of the area burdened with a predial servitude interrupts the prescription of nonuse as to the entire area. Du-pont, 984 So.2d at 806.

A. Intent and Manner of Use of Servitude

Claitor’s Realty first asserts that a summary judgment was inappropriate because Mr. Claitor’s intent in granting the servitude is a material fact at issue in the case. Claitor’s Realty contends that Mr. Claitor’s purpose for granting the servitude is relevant for determining what uses are sufficient to interrupt the prescription of nonuse, and Mr. Claitor’s affidavit establishes that he granted the servitude with the understanding that it would be used as a drive-through lane for a fast-food restaurant. Therefore, according to Claitor’s Realty, there “is a clear dispute between the parties as to whether the alleged passing of pedestrians over the [s]ervitude constitutes ‘use’ of the servitude.” However, as explained hereinafter, the Civil Code articles governing predial servitudes permit evidence of the servitude’s purpose to determine its uses only if the servitude agreement does not identify the uses.

| ¿Predial servitudes of passage are addressed in Article 705, which provides in pertinent part, “Unless the title provides otherwise, the extent of the right and the mode of its exercise shall be suitable for the kind of traffic or utility necessary for the reasonable use of the dominant estate.” La. Civ.Code art. 705. According to Article 749, “If the title is silent as to the extent and manner of use of the servitude, the intention of the parties is to be determined in light of its purpose.” A court should resort to an examination of the intent of the parties to determine the purpose of the servitude only if the title is silent as to the extent and manner of use of the servitude. Dupont, 984 So.2d at 807. Doubt as to the existence, extent, or manner of exercise of a predial servitude shall be resolved in favor of the servient estate. La. Civ.Code art. 730.

Relying on Article 749, Claitor’s Realty argues that the servitude agreement is “silent” as to the “manner of use” of the servitude, so the intention of the parties must be determined “in light of its purpose.” Claitor’s Realty claims that only the extent of the servitude (its dimensions) and “mode of its use” were set forth in the agreement, but “other specifics of how the [servitude was to be used, its limitations, and its purpose, were not stated.”

Although summary judgment is generally not appropriate to establish the intent of contracting parties, where the words of a contract are clear, explicit and lead to no absurd consequences, the meaning and intent of the parties must be sought within the four corners of the in-strument and cannot be explained or contradicted by parol evidence. Hayden v. Phillips, 94-0130 (La.App. 1 Cir. _J_gl1/10/94), 646 So.2d 1014, 1016, unit denied, 95-0244 (La.3/24/95), 651 So.2d 291; see also La. Civ.Code art. 1848. Under those circumstances, the interpretation of the contract is a matter of law and summary judgment is appropriate. Sims v. Mulhearn Funeral Home, Inc., 07-0054 (La.5/22/07), 956 So.2d 588, 590.

Claitors Realty’s assertion that the agreement’s language authorizing use of the servitude by vehicles, animals, and pedestrians only identifies the servitude’s “modes of use” and not its “manner of use” assumes a meaningful difference between those terms. We disagree. The terms “mode” and “manner” are not widely used in this context in the Civil Code articles governing predial servitudes. The word “mode” appears once in Article 705, which is applicable to servitudes of passage and addresses the “extent of the right and the mode of its exercise.” The word “manner” appears twice, first in Article 730, which provides that doubt as to the existence, extent or “manner of exercise” of a predial servitude is resolved in favor of the ser-vient estate; and a second time in Article 749, which permits evidence of intent of the parties if the title is silent as to the extent and “manner of use” of the servitude. Although the current Civil Code does not define “mode” and “manner” as used in these articles, the terms can be traced to the Louisiana Civil Code of 1870, which used them interchangeably to refer to uses of a servitude. Former Article 796 provided, in part, “By mode of servitude, in this case, is understood the manner of using the servitude as is prescribed in this title.” Thus, “mode” was defined as the “manner” of using the servitude. See also Black’s Law Dictionary (9th ed.2009) (defining “mode” as a “manner of doing something”).

The present Civil Code makes numerous references to the “use” of a servitude without expressing any significance or distinction as to the “manner” or “mode” of use. See La. Civ.Code arts. 697 (the “use” and extent of predial servitudes are regulated by title and relevant Civil Code articles), 728 (the “use” of |10a predial servitude may be limited to certain times), 743 (rights necessary for the “use” of the servitude are acquired at the time the servitude is established). These articles, construed in pari materia with Articles 705, 730 and 749, do not indicate that uses of a servitude should be divided into separate legal classifications of “modes of use” and “manners of use.” The phrases are synonymous and describe the uses that are expressly provided for in the servitude agreement, or in the absence of any such provisions, by the relevant Civil Code articles governing the use of servitudes. See La. Civ.Code arts. 13, 697, 705, 749.

Therefore, the resolution of this assignment of error does not turn on a purported distinction between a mode of use and a manner of use. Instead, this assignment of error requires a determination of whether the servitude agreement is “silent” as to its extent and use under Article 749, or whether the agreement “provides otherwise” by identifying the extent and uses pursuant to Article 705. If the agreement is silent, then, and only then, does Mr. Claitor’s intent concerning the purpose of the servitude become a material fact that is necessary to determine the permitted uses of the servitude.

The servitude agreement created a “servitude of passage for, and use by, vehicles of all descriptions, animals and pedestrians, over and across” the Claitor parcel (emphasis added). Claitor’s Realty does not dispute that this language established a servitude of passage and that the agreement contains no limitations on the use of the servitude of passage. Any attempt to limit the right of passage only to vehicular traffic to reflect the “purpose” of the servitude under Article 749 cannot be reconciled with the express terms of the servitude agreement which extends the right to “pedestrians.” The express terms of the • servitude agreement control the use the servitude. See La. Civ.Code arts. 697 and 705. Adopting the position advanced by Claitor’s Realty would require this court to disregard the word “pedestrian” used to identify one of the permissible uses of the servitude. |irWhen a clause in a contract is clear and unambiguous, the letter of that clause should not be disregarded under the pretext of pursuing its spirit. Clovelly Oil Co., LLC v. Midstates Petroleum, Co., LLC, 12-2055 (La.3/19/13), 112 So.3d 187, 192.

Based upon the language of the servitude agreement creating a servitude of passage for use by vehicles, animals, and pedestrians, we find that the servitude agreement “provides otherwise” and therefore is not “silent” as to use of the servitude by pedestrians. See La. Civ.Code arts. 705, 749; Harris v. Darinn Corp., 431 So.2d 441, 442-43 nn. 4-5 (La.App. 1 Cir.1983), unit denied, 435 So.2d 429 (La. 1983) (servitude agreement providing that servitude was for “vehicular traffic and/or pedestrians” was not silent as to its manner of use).

Our holding is also in accord with this court’s decision in Cate Properties, LLC v. Hepburn, 11-0515 (La.App. 1 Cir. 11/9/11), 2011 WL 5407898 (unpublished), wherein the plaintiff asserted that a general servitude of passage had prescribed because it had not been used for the specific purpose intended by the grantors. The servitude agreement described the extent of the servitude and then generally described the right as a “predial right-of-way or servitude of passage” without further mention or description of its uses. Cate Properties, LLC, at *2. The servient estate owners argued that the servitude was established for the purpose of removing timber from the dominant estate and was extinguished by the prescription of nonuse because a ten-year period elapsed without a legally sufficient use of the servitude. In affirming a summary judgment in favor of the dominant estate owners, this court found:

By the clear language of the agreement, the servitude is one of passage. Unless the title provides otherwise, the extent of the right and the mode of. its exercise shall be suitable for the kind of traffic necessary for the reasonable use of the dominant estate. La. Civ.Code Ann. art. 705. The title does not provide that the servitude is restricted or limited in any way. In particular, the title does not indicate that the servitude’s purpose is for use in removing timber from the Cate property during periodic logging operations, as suggested by the Hep-burns. Rather, the title establishes a general | fright of passage over [the ser-vient estate] in favor of the Cate property-

Cate Properties, LLC, at *2. Based upon evidence that individuals had used the servitude for access to the dominant estate, this court found that the servitude had been sufficiently used to prevent its extin-guishment by the prescription of nonuse. Cate Properties, LLC, at *3.

The language of the servitude agreement in this case provides an even more complete description of the servitude’s intended use than the agreement in Cate Properties, LLC because it not only defines the physical extent of the servitude, but it also provides that the right to use the servitude is extended to “vehicles of all descriptions, animals and pedestrians.”

The servitude agreement authorizes both vehicular and pedestrian use and places no limitations on those uses.

Claitor’s Realty primarily relies upon Palgrave v. Gros, 02-249 (La.App. 5 Cir. 9/30/02), 829 So.2d 579 (“Palgrave II”), in support of its argument that the court must go beyond the terms of the agreement to identify the purpose of the servitude to determine whether it has been used in a manner that will interrupt the prescription of nonuse. However, Palgrave II and its predecessor opinion, Palgrave v. Tallieu, 508 So.2d 97, 98 (La.App. 5 Cir.1987) (“Palgrave I”), are factually distinguishable because the original servitude agreement in that litigation failed to identify the extent (physical dimensions) of the servitude. The agreement under review in Palgmve I granted the Palgraves the “right to use Lot 1 Square 2 as a means of ingress and egress to Bayou Barataría.” Palgmve I, 508 So.2d at 98. Lot 1 bordered on Bayou Barataría, and the Palgraves needed access to the bayou for boat launching in connection with a contemplated shrimping and crabbing business. Palgmve I, 508 So.2d at 98. Notably, the agreement made no attempt to identify the extent of the servitude created on Lot 1. The initial litigation arose after the owner of Lot 1 sold the property to a third party who then | , .¡attempted to prevent the Palgraves from using it. At issue was whether the servitude was personal (and not enforceable against the new owner of Lot 1) or predial (enforceable against the new owner), and the trial court held that the right was a predial servitude. Palgrave I, 508 So.2d at 99.

The court of appeal affirmed and observed that “the appealed-from judgment does not specify the extent of the servitude granted.... ” Palgmve I, 508 So.2d at 100 (emphasis added). Given the absence of a description of the size of the servitude, the court considered the intention of the parties inferred from the purpose of the servitude to conclude that the Palgraves were “entitled to a servitude sufficient to allow them to bring their boats in and out of Bayou Barataría ... with the least possible inconvenience and disruption” to the owners of the servient estate. Palgmve I, 508 So.2d at 100. The parties then entered a consent judgment that specifically described the servitude’s boundaries and provided that “additional space may be required near the road to back a trailered boat into” the servient estate. See Pal-gmve II, 829 So.2d at 581.

Because the servitude agreement was silent as to the extent of the servitude, the court in Palgmve I determined the purpose of the servitude in order to define its extent so that it would be the least burdensome for the servient estate. The admission of evidence of the purpose of the servitude under those circumstances is authorized by Article 749. Claitor’s Realty does not dispute that the subject servitude agreement contains a detailed description of the extent of the servitude through a legal description and an attached plat. Therefore, Palgmve I provides no support for the position that evidence of the purpose of the servitude in this case is admissible.

The prescription of nonuse was addressed in the subsequent litigation in Pal-gmve II. After the passage of ten years, the owner of the servient estate filed a suit alleging that the servitude had prescribed due to nonuse. The court reviewed 114the prior judgments that modified the terms of the servitude agreement and recognized that the resulting agreement “granted the Palgraves the right of ingress and egress to the bayou and the right to bring their boats in and out of Bayou Barataría.” Palgmve II, 829 So.2d at 582-583. Therefore, the “purpose of the servitude was to allow the Palgraves ingress and egress through the property to bring their boats to Bayou Barataría.” Palgrave II, 829 So.2d at 584. Although individuals had walked across the servitude, the court held that such uses were not sufficient to interrupt prescription without some attempt to bring a boat across the servitude to access the bayou. Palgrave II, 829 So.2d at 584.

The holding in Palgrave II was dictated by the terms of the servitude granted by the court in Palgrave I (a servitude “sufficient to allow [the Palgraves] to bring their boats in and out of Bayou Barata-ría”), and the ensuing consent judgment wherein the parties agreed that the servitude included “additional space [as] may be required near the road to back a trail-ered boat into” the servient estate. See Palgrave I, 508 So.2d at 100; Palgrave II, 829 So.2d at 581. These express terms identified that the purpose of the servitude was to permit the Palgraves to launch their boats in the bayou. Consequently, any other uses were not sufficient to interrupt the prescription of nonuse.

In contrast, the servitude agreement in this case does not suggest in any way that it was granted only for vehicular traffic for a fast-food restaurant drive-through lane. Rather, the agreement expressly provides that the servitude is one of passage granted for use by “vehicles of all descriptions, animals and pedestrians.” Neither Pal-grave I nor Palgrave II support the use of evidence of the servitude’s purpose to eliminate a permitted use of a servitude when that use is clearly set forth in the servitude agreement. See La. Civ.Code arts. 697, 705, 749; Cate Properties, LLC, 2011 WL 5407898 at *2.

11fiIn a final argument that the agreement is “silent” as to the intended uses of the servitude, Claitor’s Realty claims that the provision merely tracks the language used to define the servitude of passage in former Article 722, which was in effect at the time the servitude was created. While we note distinctions between the language of prior Article 722 and the subject servitude agreement, any similarity between the two does not negate the fact that the subject agreement identified both the extent of the servitude and its intended use as a servitude of passage by “vehicles of all descriptions, animals and pedestrians.” If a more restrictive use was intended, the parties were obligated to express those restrictions in the agreement. See La. Civ.Code arts. 697 and 705.

The subject servitude agreement establishes a servitude of passage that maybe used by vehicles, animals, and pedestrians. The title is not silent as to the extent or the use of the servitude, so the court is not required to resort to the purpose of the servitude to identify the intended uses. Therefore, Mr. Claitor’s intent in granting the servitude is not a material fact that precludes the granting of summary judgment. This argument by Claitor’s Realty has no merit.

B. Intent of Users of Servitude

Claitor’s Realty also asserts that the intent of the users of the servitude is a factual issue and cites comment (b) of Louisiana Civil Code article 757, which states that if one “passes over the land of another considering the way as public, or as belonging to another estate, the owner of the dominant estate may not avail himself of the use thus made of the servitude in order to prevent the running of prescription.” La. Civ.Code art. 757, Official Revision Comments (b). Claitor’s Realty contends that the court must determine “the intent of any third party that |1Rwalked across the [servitude, and why they did it and what they thought at the time.”

The cited comment to Article 757 is based upon former Louisiana Civil Code article 794, repealed in 1977 and replaced by Article 757, which now provides that a predial servitude is “preserved by the use made of it by anyone, even a stranger, if it is used as appertaining to the dominant estate.” As previously noted, the phrase “appertaining to the dominant estate” has been consistently interpreted by this court to mean that someone must use the servitude for the purpose of going onto the dominant estate for some legitimate purpose, either to see the owner or for something connected with the use of that property. See Dupont, 984 So.2d at 806; Palace Properties, L.L.C., 839 So.2d at 94; Latour, 417 So.2d at 489. The evidence presented by Brooks established that a number of individuals, including Brooks, have used the servitude on multiple occasions to access the Brooks parcel for legitimate purposes connected with the use of that property, including inspecting, surveying, appraising, maintaining, and marketing the property. Third parties also used the servitude to pass to and from the Brooks parcel. Claitor’s Realty presented no evidence to contradict these uses. All of these uses are sufficiently “appertaining to the dominant estate” to satisfy the requirements of Article 757 without any further determination of the intent of the users. See Cate Properties, LLC, 2011 WL 5407898 at *3 (servitude was sufficiently used to prevent its extin-guishment by prescription of nonuse where individuals used the servitude for access to the dominant estate); Palace Properties, L.L.C., 839 So.2d at 95-96 (real estate broker and developer’s use of servitude of passage to access dominant estate for purposes of inspecting, listing, and marketing the property, all of which were directly connected to the property, appertained to the dominant estate and interrupted prescription). This argument also lacks merit,

IijC. Brooks’ Credibility

Claitor’s Realty also challenges Brooks’ credibility and argues that a summary judgment should not have been granted based upon the “self-serving” statements in his affidavit, citing for support Hines v. Garrett, 04-0806 (La.6/25/04), 876 So.2d 764. However, in Hines the supreme court was confronted with an “unusual situation” v/herein a defendant moving for summary judgment presented his “own self-serving testimony to overcome a presumption of negligence ... but that testimony also contained] significant discrepancies which would logically be considered by a fact-finder in determining his credibility and in weighing the evidence.” Hines, 876 So.2d at 768. Under those circumstances, the court held that the general rule that a court must accept an affiant’s testimony or affidavit as credible on a motion for summary judgment is not appropriate. Hines, 876 So.2d at 768-69.

Claitor’s Realty has not identified any significant discrepancies in Brooks’ affidavit or deposition testimony. Brooks did state in his deposition and affidavit that he once used the servitude to access his parcel by vehicle, specifying in his affidavit that the area accessed was the “northeast corner” of the property. A video of that event revealed a very limited accessing of that portion of the property when Brooks drove his vehicle onto a side hill that apparently could not be crested. Nevertheless, the vehicle did, to that limited degree, “access” the northeast corner of the property. Regardless of whether the video offers any proof of a use of the servitude sufficient to interrupt prescription, it does not reveal a “significant discrepancy” in Brooks’ testimony.

We further note that Brooks offered other uncontradicted evidence of the úse of the servitude that was set forth in affidavits from a manager of the service station, a groundskeeper, and Brooks’ attorney from prior litigation involving the | isparcel. The trial court did not err in basing the summary judgment on Brooks’ affidavit and the other evidence submitted in support thereof.

D. Prescription of Particular Mode of Use

In a final alternative argument, Claitor’s Realty asserts that the particular use of the servitude for vehicular traffic has prescribed and relies upon former Louisiana Civil Code article 796, which provided that a mode of using a servitude could prescribe by nonuse, and former Article 798, which stated that if an owner “enjoyed a right less extensive than is given him by his title, the servitude ... is reduced to that which is preserved by possession during the time necessary to establish prescription.” Both of those articles were repealed effective January 1, 1978 by Acts 1977, No. 514. See Continental Group., Inc. v. Allison, 404 So.2d 428, 436 n. 2 (La.1981) (on rehearing), cert. denied, 456 U.S. 906, 102 S.Ct. 1753, 72 L.Ed.2d 163 (1982). The substance of former Article 796 was not reproduced in any current article following the 1977 revision; and the partial use of a servitude, addressed in former Article 798, is now governed by Article 759, which contradicts the former article by providing that a “partial use of the servitude constitutes use of the whole.”

The servitude in the present case was established on October 16, 1968, so the minimum ten-year period of nonuse ended on October 16, 1978, approximately ten months after the repeal of Articles 796 and 798. Given that the articles were not in effect on October 16, 1978, they have no application to the loss of any rights by the prescription of nonuse accruing on or after that date. For these same reasons, the reliance by Claitor’s Realty on the holding in Continental Group., Inc. |19is misplaced because the court therein was applying the law “in effect when the servitude was made in 1956, and when the right to strip-mine for lignite under said servitude prescribed in 1966,” which was well before the repeal of Articles 796 and 798. See Continental Group, Inc., 404 So.2d at 436 (emphasis added).

Claitor’s Realty cites the official revision comments for Article 759 as support for its claim that a particular “mode” of use can terminate, independently of other uses, by ten years of nonuse even after the 1977 repeal of former Article 798. The cited comments contain no support for that assertion. The comments begin with the statement that the article “is new” and “changes the law but accords in part with Louisiana jurisprudence.” La. Civ.Code art. 759, Comment (a). The ensuing comments explain the history of former Article 798 and its interpretation in the jurisprudence. The explanation contains no suggestion that a particular mode of use is subject to prescription after the repeal of former Article 798. Absent a contrary provision in the title creating the servitude, the concept of prescription of a mode of use ended in Louisiana with the repeal of Articles 796 and 798 effective January 1, 1978.

This conclusion is further supported by the language of current Article 759, which mandates that a partial use of a servitude constitutes use of the whole servitude. As explained by Professor A.N. Yiannopoulos:

According to Article 759 of the Louisiana Civil Code, a partial use of a servitude “constitutes use of the whole.” This provision is an application of the principle of indivisibility of predial servi-tudes and the maxim servitus per par-tem retinetur [servitude by part retained]. Therefore, the use of a part of the area burdened with a predial servitude interrupts the prescription of non-use as to the entire area, and the use of the servitude in any manner interrupts the prescription of nonuse as to all manners of use.

4 La. Civ. L. Treatise, Predial Servitudes § 8.8 (4th ed.) (footnotes omitted and emphasis added). In recognition that this was a change in the law produced by the 1977 revision, Professor Yiannopoulos continued the above explanation by noting, |j.n“[The law] was otherwise under the regime of the Louisiana Civil Code of 1870,” referencing repealed Articles 796 and 798. The argument that the vehicular use of the servitude prescribed by nonuse has no merit.

CONCLUSION

For these reasons, we affirm the October 8, 2012 judgment of trial court granting summary judgment in favor of Brooks and dismissing the claims of Claitor’s Realty with prejudice. Costs of this appeal are assessed to Claitor’s Realty.

AFFIRMED.

      . The Claitor property was eventually transferred to Claitor’s Realty, and Mr. Claitor is the general partner of that entity,

      . Claitor’s Realty, the current owner of the Claitor property, was substituted as the plaintiff through an amended petition.

      . The section of the Louisiana Civil Code dealing with predial servitudes was revised, effective January 1, 1978. See 1977 La. Acts, No. 514, § 1. Citations in this opinion are to the code articles after the revision. Unless otherwise indicated, the changes in the law do not affect the issues in this case. See Palace Properties, L.L.C. v. Sizeler Hammond Square Ltd. Partnership, 01-2812 (La.App. 1 Cir. 12/30/02), 839 So.2d 82, 94 n. 16, writ denied, 03-0306 (La.4/4/03), 840 So.2d 1219.

      . A fact is material when its existence or nonexistence may be essential to the plaintiffs cause of action under the applicable theory of recovery, meaning that the fact potentially insures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 751.

      . Article 749 is based on former Article 780, which provided that if the title "does not designate [the servitude’s] breadth, nor the manner in which it is to be used,” the court could consider evidence of prior use of the servitude area, or in the absence thereof, the intention of the parties, and the purpose for which the servitude was granted. Therefore, both Article 749 and former Article 780 require that the title be silent as to the extent (breadth) and manner of use of the servitude to permit evidence of the intention of the parties. See Hospital Service District No. 2 of Parish of Lafourche v. Community Bank of Lafourche, 00-1035 (La.App. 1 Cir. 6/22/01), 790 So.2d 688, 693-94, Wright v. Department of Highways, 342 So.2d 230, 232 (La.App. 1 Cir. 1976), writ denied, 343 So.2d 1075 (La. 1977).

      . Article 722 of the 1870 Louisiana Civil Code provided, in pertinent part, "The right of passage, or of way, is a servitude imposed by law or by convention, and by virtue of which one has a right to pass on foot, on horseback, or in a vehicle, to drive beasts of burden or carts through the estate of another.”

      . See Louisiana Civil Code, Book II, Disposition Table. See also La. Civ.Code art. 759, Comments (a)-(c); and La. Civ.Code art. 8 (“Laws are repealed, either entirely or partially, by other laws. A repeal may be express or implied. It is express when it is literally declared by a subsequent law. It is implied when the new law contains provisions that are contrary to, or irreconcilable with, those of the former law....”); La. R.S. 24:176.

      . We recognize that parties may contractually limit a servitude to an exclusive use and assign a period of time for the exercise of that use. See La. Civ.Code arts. 697, 705, and 749; Ashland Oil Co., Inc. v. Palo Alto, Inc., 615 So.2d 971, 974 (La.App. 1 Cir. 1993) (pipeline servitude agreement provided exclusive use of servitude as transportation of carbon dioxide and that servitude would terminate if not used for a period of twelve consecutive months).


source: Caselaw Access Project

author: PARRO, J.

license: Public Domain

text:
    STATE of Louisiana v. Willie DORSEY.
    No. 2012 KA 1816.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 4, 2014.

      Walter P. Reed, District Attorney, Cov-ington, LA, Kathryn Landry, Special Appeals Counsel, Baton Rouge, LA, for Ap-pellee, State of Louisiana.
    Frank Sloan, Louisiana Appellate Project, Mandeville, LA, for Defendant-Appellant, Willie Dorsey.
    Before PARRO, GUIDRY, AND DRAKE, JJ.
   PARRO, J.

| ¡>The defendant, Willie Dorsey, was charged by grand jury indictment with aggravated rape, a violation of LSA-R.S. 14:42 (count 1), and aggravated incest, a violation of LSA-R.S. 14:78.1 (count 2). He pled not guilty. The defendant proceeded to trial. His first trial resulted in a deadlocked jury, and the district court declared a mistrial. The defendant filed a motion to quash, raising the issue of the constitutionality of non-unanimous jury verdicts, which the district court denied. Following a second jury trial, he was found guilty as charged. The defendant was sentenced on count 1 to life imprisonment at hard labor, without the benefit of parole, probation, or suspension of sentence. He was sentenced on count 2 to twenty-five years of imprisonment at hard labor, and the sentences were ordered to run concurrently. The defendant now appeals, assigning two assignments of error. For the following reasons, we affirm his convictions and sentences, and we remand with instructions.

FACTS

In August 2007, twelve-year-old B.D. disclosed that her stepfather, the defendant, raped her multiple times. At trial, B.D. testified that the abuse began when she was eight years old while she, her mother, her sister, and the defendant lived in New Orleans, Louisiana. The abuse continued when the family moved to Arkansas in 2005. In 2006, the family moved to Mt. Hermon, in the Parish of Washington, Louisiana, and the abuse continued to occur. The last incident took place before B.D. left for New Orleans to stay with relatives to whom she disclosed the abuse.

ASSIGNMENT OF ERROR NUMBER 1

In his first assignment of error, the defendant argues that the district court erred in refusing to delete a portion of his recorded statement. Specifically, he claims that the portion of his statement in which he requested the assistance of counsel and |sexercised his Fifth Amendment rights should have been deleted, because it was not relevant or probative of the volun-tariness of his statement.

Detective Jim Miller with the Washington Parish Sheriff’s Office conducted an interview with the defendant that was recorded and transcribed. Near the end of the interview, the defendant stated that he would “rather talk to an attorney.” As soon as the defendant made it clear that he wanted the assistance of counsel before he answered any more questions, Detective Miller concluded the interview. Before trial, defense counsel moved to have this portion of the statement deleted, arguing that it tainted the credibility of the defendant, was prejudicial, and was not probative. The state responded and contended that playing this portion of the statement would show that Detective Miller honored the rights of the defendant. The district court agreed with the state and refused to delete that portion of the defendant’s statement.

The defendant cites Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), in support of his argument. However, his reliance on Doyle is misplaced. In Doyle, the United States Supreme Court held that the use for impeachment purposes of a defendant’s silence at the time of arrest, after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment. Doyle, 426 U.S. at 615-19, 96 S.Ct. at 2243-45. In the instant case, the defendant did not remain silent after he received his Miranda warnings, nor did the state attempt to use the defendant’s request for assistance of counsel for impeachment purposes.

“Every confession, admission or declaration sought to be used against any one must be used in its entirety, so that the person to be affected thereby may have the benefit of any exculpation or explanation that the whole statement may afford.” LSA-R.S. 15:450. “Before what purports to be a confession can be introduced into 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.” LSA-R.S. 15:451. When a ruling on a motion to suppress a confession or statement is adverse to the defendant, the state shall be required, pri- or to presenting the confession |4or statement to the jury, to introduce evidence concerning the circumstances surrounding the making of the confession or statement for the purpose of enabling the jury to determine the weight to be given the confession or statement. LSA-C.Cr.P. art. 703(G).

In refusing to delete that portion of the defendant’s statement, the district court noted that it was “important to keep [it] in” because it showed that “Detective Miller acted with integrity and acted with regard for [the] defendant’s rights.” The district court also opined that there was probative value in that portion of the defendant’s statement and that the jurors could make a determination regarding Detective Miller’s credibility based on how he treated the defendant. Concluding that the probative value was substantially outweighed by any prejudicial effect, the court stated that the portion at issue was probative “because it would go to the overall weight that would be given the statement whether there has been any coercion, duress, whether it was voluntary, those types of things that are still at issue.”

We see no reason to disturb the district court’s ruling. A district court’s determination regarding the relevancy and admissibility of evidence will not be overturned on appeal absent a clear abuse of discretion. See State v. Freeman, 07-0470 (La. App. 1st Cir.9/14/07), 970 So.2d 621, 625, writ denied, 07-2129 (La.3/14/08), 977 So.2d 930. Accordingly, this assignment of error has no merit.

ASSIGNMENT OF ERROR NUMBER 2

In his second assignment of error, the defendant argues that LSA-Const. art. I, § 17(A), which allows for non-unanimous jury verdicts, violates equal protection under the Fourteenth Amendment of the United States Constitution and LSA-Const. art. I, § 3. Specifically, the defendant contends that the enactment of LSA-Const. art. I, § 17(A) was motivated by an express and overt desire to discriminate and has had a racially discriminatory impact since its adoption.

LThe punishment for aggravated rape is life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. See LSA-R.S. 14:42(D)(2)(b). Article I, § 17(A) of the Louisiana Constitution and Louisiana Code of Criminal Procedure article 782(A) provide that, in cases where punishment is necessarily at hard labor, the case shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict. Under both state and federal jurisprudence, a criminal conviction by a less than unanimous jury does not violate the right to trial by jury specified by the Sixth Amendment and made applicable to the states by the Fourteenth Amendment. See Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972); State v. Belgard, 410 So.2d 720, 726-27 (La.1982); State v. Shanks, 97-1885 (La.App. 1st Cir.6/29/98), 715 So.2d 157,164-65.

Contrary to the defendant’s assertion that this issue has not been addressed by any court, this court and the Louisiana Supreme Court have previously rejected the argument that Article I, § 17(A) violates the right to equal protection. See State v. Bertrand, 08-2215 (La.3/17/09), 6 So.3d 738, 742-43; State v. Smith, 06-0820 (La.App. 1st Cir.12/28/06), 952 So.2d 1, 16, writ denied, 07-0211 (La.9/28/07), 964 So.2d 352. In Bertrand, the Louisiana Supreme Court specifically found that a non-unanimous twelve-person jury verdict is constitutional and that Article 782 does not violate the Fifth, Sixth, and Fourteenth Amendments. Moreover, the Bertrand court rejected the argument that non-unanimous jury verdicts have an insidious racial component and pointed out that a majority of the United States Supreme Court also rejected that argument in Apo-daca. Although Apodaca was a plurality rather than a majority decision, the United States Supreme Court has cited or discussed the opinion various times since its issuance and, on each of these occasions, it is apparent that its |fiholding as to non-unanimous jury verdicts represents well-settled law. See Bertrand, 6 So.3d at 742-43. Thus, Louisiana Constitution article I, § 17(A) and Louisiana Code of Criminal Procedure article 782(A) are not unconstitutional and, therefore, not in violation of the defendant’s federal constitutional rights. See State v. Hammond, 12-1559 (La.App. 1st Cir.3/25/13), 115 So.3d 513, 514-15. Accordingly, this assignment of error is without merit.

SENTENCING ERROR

In accordance with LSA-C.Cr.P. art. 920(2), we are limited in our review to errors discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence. See State v. Price, 05-2514 (La.App. 1st Cir.12/28/06), 952 So.2d 112, 123 (en banc), writ denied, 07-0130 (La.2/22/08), 976 So.2d 1277. After a careful review of the record, we have found a sentencing error with respect to count 2.

Under the facts of this case, the sentencing range for aggravated incest was imprisonment at hard labor for not less than twenty-five years nor more than life imprisonment. LSA-R.S. 14:78.1(D)(2). The defendant was sentenced to twenty-five years of imprisonment at hard labor on count 2. However, LSA-R.S. 14:78.1(D)(2) provides that at least twenty-five years of the sentence imposed shall be served without benefit of parole, probation, or suspension of sentence. The district court failed to specify that the defendant’s twenty-five-year sentence was to be served without benefits. Pursuant to LSA-R.S. 15:301.1(A), if a criminal statute requires that all or a portion of a sentence imposed for a violation of that statute be served without benefit of probation, parole, or suspension of sentence, each sentence which is imposed under the provisions of that statute shall be deemed to contain the provisions relating to the service of that sentence without benefit of probation, parole, or suspension of sentence. Nevertheless, LSA-R.S. 15:301.1(A) cannot apply where the district court must exercise discretion concerning any portion of the sentence that is to be served without benefit of probation, parole, or suspension of sentence. In the instant case, however, because the minimum sentence of twenty-five years was imposed and at least twenty-five years 17of the sentence had to be served without benefit of probation, parole, or suspension of sentence, no discretion was involved. Thus, LSA-R.S. 15:301.1(A) is applicable, and the defendant’s twenty-five-year sentence is deemed to contain the provisions relating to the service of that sentence without benefit of probation, parole, or suspension of sentence. Therefore, we remand this matter to the district court for correction of the minute entry and commitment order, in accordance with this opinion.

CONVICTIONS AND SENTENCES AFFIRMED; REMANDED WITH INSTRUCTIONS.

      . The defendant was originally charged with two counts of aggravated rape (count 1 related to B.D. and count 2 related to another victim) and two counts of aggravated incest (neither count designated a victim). Prior to trial, the state advised that it would only proceed with one count of aggravated rape and one count of aggravated incest, both related to B.D.

      . The minor victim in this matter is referenced only by her initials. See LSA-R.S. 46:1844(W)(3).

      . Prior to the first trial, the defendant filed a motion to suppress the statement. The hearing on the motion was deferred to the trial. The issue of the admissibility of the statement was not raised again at the second trial.

      . In Bertrand, the supreme court only considered Article 782, while the defendant in the instant case attacks Article I, § 17(A) itself. We find this approach to be a distinction without a difference, because Article 782 closely tracks the language of Article I, § 17(A).

      . Apodaca involved a challenge to the non-unanimous jury verdict provision of Oregon’s state constitution. Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972), decided with Apodaca, also upheld Louisiana’s then-existing constitutional and statutory provisions allowing nine-to-three jury verdicts.


text:
    STATE of Louisiana v. Arthur Leon LEBLANC, Jr.
    No. 2013 KA 0202.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 4, 2014.

      J. Phil Haney, District Attorney, Walter J. Senette, Jr., Assistant District Attorney, Franklin, LA, for Appellee, State of Louisiana.

      J. Kevin Stockstill, Lafayette, LA, for Defendant-Appellant, Arthur Leon Leblanc, Jr.
    Before PARRO, GUIDRY, and DRAKE, JJ.
   PARRO, J.

12Pefendant, Arthur Leon Leblanc, Jr., was charged by bill of information with pornography involving juveniles, a violation of LSA-R.S. 14:81.1(A)(3) (prior to 2010 amendments). He pled not guilty and filed a motion to suppress. The trial court denied the motion to suppress, and defendant withdrew his earlier plea and entered a new plea of guilty as charged, reserving his right to appeal the denial of his motion to suppress under State v. Crosby, 338 So.2d 584 (La.1976). The trial court sentenced defendant to serve two years of imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence, and to pay a $250 fine. Defendant filed a motion to reconsider sentence, but the trial court denied that motion. He now appeals, alleging two assignments of error related to the denial of his motion to suppress. For the following reasons, we affirm defendant’s conviction and sentence,

FACTS

Because defendant pled guilty, the facts of his offense were not developed at trial. The following recitation of facts is taken from the factual basis stipulated to by the state and the defense at the time that defendant pled guilty.

On or about September 28, 2009, agents with the Louisiana Attorney General’s office conducted an undercover operation to look for persons who were potentially in possession of pornography involving juveniles. At that time, they came across an internet protocol (IP) address that they observed to be sharing files suggestive of child pornography. On the motion of the Attorney General’s office, the court ordered the issuance of a subpoena duces tecum under LSA-C.Cr.P. art. 66 to Cox Communications for the customer records of that IP address. The returned records revealed that someone in defendant’s residence was the owner of that IP address.

|sThe Attorney General’s office, with assistance, executed a search warrant at defendant’s home. During the execution of that search warrant, technicians performed an on-scene forensic preview of a computer belonging to defendant. They recovered content depicting child pornography. After being informed of his Miranda rights, defendant admitted to knowingly possessing, downloading, and viewing hundreds of movies of child pornography.

ASSIGNMENT OF ERROR NO. 1

In his first assignment of error, defendant argues that the trial court erred in finding that the Attorney General investigators did not need to obtain a search warrant to request defendant’s customer information from his internet service provider (ISP). Specifically, he contends that information held by an ISP implicates privacy interests in which internet users have a reasonable expectation of confidentiality.

Agent David Ferris, an investigator with the Attorney General’s office, was the only witness called at the hearing on defendant’s motion to suppress. Agent Ferris testified that during a peer-to-peer investigation, he discovered an IP address, namely, 68.229.154.86, which was downloading and sharing files indicative of child pornography. According to Agent Ferris, the IP address and file information were both readily visible and available to anyone running the same peer-to-peer software, including the general public. Agent Ferris entered the IP address into a public record database called the American Registry for Internet Numbers (ARIN), and he discovered that it was registered to Cox Communications (Cox).

Based upon this information, the Attorney General’s office submitted a motion for a subpoena duces tecum under LSA-C.Cr.P. art. 66 with the Nineteenth Judicial District Court, Parish of East Baton Rouge. That court signed an order for the issuance of a subpoena duces tecum to be issued to Cox for the subscriber ^information related to IP address 68.229.154.86. Agent Ferris subsequently served this subpoena duces tecum on Cox via fax. Cox returned billing information indicating that the IP address was registered to defendant’s wife at an address in Franklin, Louisiana. Agent Ferris used this billing information to apply for a search warrant of the residence. During the ensuing search, the agents discovered numerous files of child pornography on defendant’s computer, and defendant admitted to knowingly possessing those files.

Defendant filed a motion to suppress, alleging two grounds for suppression. First, he argued that the state should have been required to seek a search warrant in order to obtain his customer information from Cox. He contended that an individual has a reasonable expectation of privacy in his customer information held by an ISP. The trial court denied defendant’s motion to suppress, finding that defendant had no reasonable expectation of privacy in information provided to, and maintained by, Cox in the ordinary course of its business.

At the trial of a motion to suppress, the burden of proof is on the defendant to prove the ground of his motion, except that the state shall have the burden of proving the admissibility of any evidence seized without a warrant. See LSA-C.Cr.P. art. 708(D). When a trial court denies a motion to suppress, factual and credibility determinations should not be reversed in the absence of a clear abuse of the trial court’s discretion, i.e., unless such a ruling is not supported by the evidence. See State v. Green, 94-0887 (La.5/22/95), 655 So.2d 272, 280-81. However, a trial court’s legal findings are subject to a de novo standard of review. See State v. Hunt, 09-1589 (La.12/1/09), 25 So.3d 746, 751.

The Fourth Amendment to the United States Constitution protects individuals from “unreasonable searches and seizures.” Whether the Fourth | ¡Amendment protects an individual from a warrantless search rests on whether the individual can demonstrate a reasonable expectation of privacy against government intrusion. See Katz v. United States, 389 U.S. 347, 353, 88 S.Ct. 507, 512,19 L.Ed.2d 576 (1967). Only individuals who actually enjoy the reasonable expectation of privacy have standing to challenge the validity of a government search. See Rakas v. Illinois, 439 U.S. 128, 134, 99 S.Ct. 421, 425, 58 L.Ed.2d 387 (1978).

Federal case law interpreting the Fourth Amendment has found no expectation of privacy in internet subscriber information. See, e.g., Guest v. Leis, 255 F.3d 325, 336 (6th Cir.2001); U.S. v. Kennedy, 81 F.Supp.2d 1103, 1110 (D.Kan.2000). These and other similar decisions rely in part on settled federal law that a person has no reasonable expectation of privacy in information exposed to third parties, like a telephone company or a bank. See Smith v. Maryland, 442 U.S. 735, 742, 99 S.Ct. 2577, 2581, 61 L.Ed.2d 220 (1979) (finding no privacy interest in telephone numbers dialed); United States v. Miller, 425 U.S. 435, 442-44, 96 S.Ct. 1619, 1623-24, 48 L.Ed.2d 71 (1976) (finding no privacy interest in bank records). The United States Supreme Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed. See Miller, 425 U.S. at 443, 96 S.Ct. at 1624.

Even if we are to assume that the federal courts who have addressed this issue are correct in finding that there is no expectation of privacy in internet subscriber information under the Fourth Amendment, we still must determine whether the greater protections of privacy found in the Louisiana Constitution | (¡require a different conclusion. Louisiana Constitution article 1, section 5 provides, “Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy.” Thus, this constitutional provision protects individuals not only from unreasonable searches or seizures, but also from unreasonable invasions of privacy. The Louisiana Supreme Court has interpreted the right of privacy to afford even more stringent protection of individual liberty than the Fourth Amendment. See State v. Perry, 610 So.2d 746, 756 (La.1992).

As support for his contention that an individual has a reasonable expectation of privacy in customer information held by an ISP, defendant cites the New Jersey case of State v. Reid, 194 N.J. 386, 945 A.2d 26 (2008). In Reid, 945 A.2d at 28, the New Jersey Supreme Court addressed this issue squarely and found that, under the New Jersey Constitution, citizens have a reasonable expectation of privacy in their internet subscriber information on file with an ISP. The Reid court noted that although such an expectation of privacy had not been recognized in federal case law, New Jersey’s Constitution provides more protection than federal law affords. In doing so, the court pointed out that a New Jersey citizen has a reasonable expectation of privacy in his bank and telephone billing records even though these rights have not been recognized under federal law. See Reid, 945 A.2d at 32-33. In ultimately holding that an internet user has a privacy interest in the subscriber information he provides to an ISP, the Reid court reasoned that disclosure to a third-party provider does not upend the privacy interest at stake under New Jersey law. See Reid, 945 A.2d at 33. The court stated that users make such disclosures to ISPs for the limited goal of using the subscribed-to technology and not to promote the release of personal information to others. Id.

However, we do not find persuasive defendant’s argument that the Reid case from New Jersey should itself compel this court to require a search warrant in order to obtain ISP subscriber information. We note that, in Reid, the |7subscriber information was provided to law enforcement authorities in response to what the New Jersey Supreme Court termed a “defective municipal subpoena.” Reid, 945 A.2d at 37. The Reid court did not go so far as to say that the privacy interest a person holds in his subscriber information required a search warrant for its disclosure. Instead, the court stated that law enforcement officials could satisfy the protection of the right to privacy in this instance by serving a grand jury subpoena on an ISP without notice to the subscriber. Reid, 945 A.2d at 38. The court even stated that, in that case, the state could seek to reacquire the same subscriber information with a proper grand jury subpoena. Id. Therefore, Reid does not strongly support defendant’s argument for suppression of the evidence recovered pursuant to the search warrant, which was issued after the state received defendant’s subscriber information in response to an Article 66 subpoena.

We turn now to the facts of the instant case. The test for determining whether one has a reasonable expectation of privacy is not only whether the person had an actual or subjective expectation of privacy, but also whether that expectation is of a type which society is prepared to recognize as being reasonable. State v. Ragsdale, 381 So.2d 492, 497 (La.1980). At least one Louisiana appellate court has found that historical usage and billing data maintained by a cell phone provider implicated neither the Fourth Amendment nor LSA-Const. art. I, § 5, and that, under those circumstances, the state was not obligated to obtain those records by warrant rather than by subpoena. See State v. Marinello, 09-1260 (La.App. 3rd Cir.10/6/10), 49 So.3d 488, 510, writs denied, 10-2494 (La.3/25/11), 61 So.3d 660, and 10-2534 (La.3/25/11), 61 So.3d 661.

At the outset, we note a lack of evidence as to whether defendant or his wife had any actual or subjective expectation of privacy in the billing information provided to Cox as their ISP. The information provided by Cox in response to the | sArticle 66 subpoena was voluntarily disclosed by defendant’s wife in order to obtain internet service. It included her name, address, phone number, and payment information. All subscribers undoubtedly realize that ISPs have both the capability and the necessity of keeping on file such information for billing and troubleshooting purposes. Once defendant’s wife subscribed to internet services through Cox, she divested herself of any expectation of privacy in the information she provided in order to receive the service.

Even if we were to assume that defendant or his wife had an actual or subjective expectation of privacy in the subscriber information provided to Cox, we would still find that this expectation of privacy would not be recognized by society as reasonable. The subscriber information provided by defendant’s wife to Cox was no different, and perhaps even less intrusive, than the information a cell phone provider stores on each call for billing purposes. In Marinello, 49 So.3d at 509, a representative of the cell phone company testified that it automatically collected and stored the following information for each call: the mobile number, the electronic serial number of the phone, the calling number, the time, the location of the phone, the cell site, and the area code for the location. Whereas cell phone users may have no idea of the nature of the information they communicate to their service providers, internet subscribers, at least in this circumstance, know exactly the type of information they have submitted to their ISPs in order to obtain service. Under these facts, we find that where an internet subscriber voluntarily discloses routine billing information to an ISP in order to receive service, he has no reasonable expectation of privacy in that information, and, therefore, the issuance of a search warrant for its disclosure would not be required. Accordingly, the trial court did not err or abuse its discretion in finding that an Article 66 subpoena was a sufficient means for the Attorney General’s office to request the subscriber information from defendant’s ISP.

This assignment of error is without merit.

[ 'ASSIGNMENT OF ERROR NO. 2

In his second assignment of error, defendant argues that the trial court erred in not ruling as to whether investigators failed to follow the proper procedure in using an Article 66 subpoena to obtain his customer records from his ISP. He requests this court to consider this issue and find that the Attorney General’s office improperly served his ISP via facsimile, rather than by one of the methods of service listed in LSA-C.Cr.P. arts. 735 and 741.

Defendant’s motion to suppress raised this argument as its second ground for suppression. After the hearing on the motion to suppress, Judge Charles L. Porter ordered both sides to brief the arguments raised at the hearing. The state and the defense complied, briefing both the issue addressed in the first assignment of error and the issue about whether the Article 66 subpoena was properly served on Cox. On January 17, 2012, Judge Porter issued written reasons for judgment, in which he stated the motion to suppress was denied, However, these written reasons addressed only the argument raised in the first assignment of error, and they did not address the service issue. On February 3, 2012, defendant filed a motion to reconsider his motion to suppress, noting the trial court’s failure to address the service issue and asking for consideration of that issue. Defendant did not ask for a formal hearing on that motion, and it appears from the record that no action was ever taken on it. The minutes reveal that on March 5, 2012, a pretrial conference was held with the state and defense counsel, and it was presided over by Judge James R. McClelland. Judge McClelland later accepted defendant’s Crosby plea on March 20, 2012.

Now, defendant asks this court on appeal to consider the merits of the second argument raised in his motion to suppress. It is ordinarily incumbent upon the proponent of a motion to move for a hearing date on that motion. Otherwise, it may be considered that the motion has been abandoned. State v. Coates, 509 So.2d 438, 440 (La.App. 1st Cir.1987). In the instant case, Judge Porter clearly 1 indenied defendant’s motion to suppress, but based on his written reasons, it is unknown whether he failed to consider or simply found no merit at all in defendant’s second argument. Defendant moved for reconsideration of Judge Porter’s ruling on the basis that he did not address the second argument, but he did not formally request a hearing on that issue. Further, nothing in the record indicates that he ever raised this issue before Judge McClelland. The record does not reflect why defendant’s case was transferred from Judge Porter to Judge McClelland, but defendant should have remained aware that no action had been taken on his motion to reconsider. He took no further steps to secure a disposition on this issue before his plea. Because he did not, we are constrained to conclude that defendant abandoned this argument in the trial court.

Accordingly, this assignment of error presents nothing for review on appeal.

CONVICTION AND SENTENCE AFFIRMED.

      . Judge Charles L. Porter presided at the hearing on the motion to suppress.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . We note that law enforcement officers seized the evidence from defendant’s computer under the authority of a search warrant. However, defendant argues that the state was required to obtain an additional, earlier search warrant to secure his subscriber information from his ISP. For the reasons that follow, we doubt whether the state's conduct in securing this subscriber information via a subpoena duces tecum even constituted a "search” or an “invasion of privacy.” Therefore, under either burden, our following analysis remains unchanged.

      . We note that any privacy interest implicated in this case belonged, on its face, to defendant’s wife, who was the account holder for the IP address. However, to the extent that defendant was "adversely affected” in relation to any such privacy interest, he would have standing to raise that illegality under the Louisiana Constitution. See LSA-Const. art. I,§ 5.


author: PAUL A. BONIN, Judge. LOBRANO, J.,

text:
    STATE of Louisiana v. Rochelle GREGORY.
    No. 2013-K-1593.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 5, 2014.

      Jonathon Trout, Student-Practitioner, Stephen I. Singer, Supervising Attorney, Loyola Law Clinic, New Orleans, LA, for Defendant/Relator.
    Leon A. Cannizzaro, District Attorney, Parish of Orleans, New Orleans, LA, for State of Louisiana/Respondent.
    (Court composed of Judge PAUL A. BONIN, Judge JOY COSSICH LOBRANO, Judge ROSEMARY LEDET).
   PAUL A. BONIN, Judge.

| iRochelle Gregory, the defendant, applied to us seeking the exercise of our supervisory jurisdiction to review the trial judge’s denial of her motion to quash the bill of information. The ground specified in Ms. Gregory’s motion to quash was that the prescriptive period which requires the district attorney to commence her trial within “two years from the date of institution of the prosecution” had expired and trial had not commenced. La.C.Cr.P. art. 578 A(2).

We have reviewed the complained-of ruling under an abuse-of-discretion standard, but having found that the trial judge based her ruling upon an erroneous determination of the law applicable to this matter, we conclude that the trial judge’s denial of Ms. Gregory’s motion is not entitled to our deference and is, moreover, incorrect. And because reversal of the ruling will result in the final disposition of the proceedings, we now peremptorily grant Ms. Gregory’s application, reverse the ruling, sustain this motion to quash, dismiss the proceedings against Ms. Gregory, and order her discharged. See La.C.Cr.P. art. 538(8). We explain the specifics of our action in greater detail in the following Parts.

I

By way of summary, in order for the trial judge to deny Ms. Gregory’s motion on these undisputed facts, it was necessary for her to find that the running of the two-year limitations period had been interrupted under La.C.Cr.P. art. 579. Here, the trial judge found that the interruption was effected by virtue of the holding in State v. Varmall. The trial judge held that Ms. Gregory’s duty to provide a current address on a bond, from which she had been previously released by operation of the express provisions of La.C.Cr.P. art. 701 B, was resuscitated and that her failure to provide that address resulted in the inability of the district attorney to obtain her presence for trial by legal process. See La.C.Cr.P. art. 579 A(2). We, however, find that Varmall does not apply to, much less control, the undisputed facts and that the trial judge should have applied the principle announced by us in State v. Sorden, as urged by Ms. Gregory. The principle set forth in Sorden states that, once a defendant was released from her bail obligation, she no longer carries a duty pursuant to that bond to update the prosecution with her current address. Applying the principle from Sorden, we find that the district attorney failed to timely commence Ms. Gregory’s trial on this matter because the prescriptive period was not interrupted.

II

Here we set out the specifics facts pertinent to our review.

|aOn December 11, 2006, Ms. Gregory was arrested in Orleans Parish. Two days later, Ms. Gregory was released on an ROR bond in the amount of five thousand dollars after being ordered to be electronically monitored by a pre-trial services organization. The defendant, however, failed to include an address at which she could be served on this bond. See La. C.CrJP. art. 322 A. On May 13, 2007, the magistrate judge released Ms. Gregory from that bond obligation after the district attorney failed to timely file a bill of information or indictment charging her with an offense stemming from that arrest. See La.C.Cr.P. art. 701 B(2).

Over ten months later, the district attorney filed a bill of information charging Ms. Gregory with one count of possession of cocaine, a felony, in violation of La. R.S. 40:967 C. See La.C.Cr.P. art. 382 A. An arraignment hearing was set for April 14, 2008. Ms. Gregory was never served with notice of this arraignment date and, not surprisingly, failed to appear. The district court in that hearing granted a judgment of bond forfeiture and issued an alias capi-as with a fifty thousand dollar bond. No further action was taken in this matter for over five years.

On September 27, 2013, Ms. Gregory filed a motion to quash this bill of information, claiming that the prescriptive period to commence her trial under Article 578 A(2), had expired. A hearing on the motion was held, and the trial judge denied Ms. Gregory’s motion to quash the bill of information. The trial judge, citing Var-mall, found that the subsequent filing of the bill of information by 14the State was a superseding judicial event allowing for the district attorney to seek the issuance of an alias capias and to examine the bond for the purpose of effecting service. The trial judge then noted that Ms. Gregory did not provide a complete address on her bond in compliance with Article 322 A. The court then ruled that Ms. Gregory’s failure to provide an address on that bond was sufficient to interrupt the prescriptive period set forth in Article 578 A(2) as her presence for trial could not be obtained by legal process. See La C.Cr.P. art. 579 A(2).

Ill

In this Part we discuss the legal precepts which guide our review of a trial judge’s ruling on 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. Franklin, 13-0488, p. 3 (La.App. 4 Cir. 10/9/13), 126 So.3d 663, 666 (citing State v. Carter, 11-0859, p. 3 (La. App. 4 Cir. 3/21/12), 88 So.3d 1181, 1182). See also State v. Clark, 12-1296, p. 3 (La.5/7/13), 117 So.3d 1246, 1249. “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.

“All pleas or defenses raised before trial, other than mental incapacity to proceed, or pleas of ‘not guilty' and ‘not guilty and not guilty by reason of insanity,’ shall be urged by a motion to quash.” La.C.Cr.P. art. 531. A motion to quash may be based on the prosecution’s failure to timely commence a defendant’s trial. See La.C.Cr.P. arts. 532(7), 578 A(2). See also State v. Ramirez, 07-0652, p. 3 (La.App. 4 Cir. 1/9/08), 976 So.2d 204, 207.

15In non-capital felony cases, the district attorney is required to commence a defendant’s trial within “two years from the date of institution of the prosecution.” See La.C.Cr.P. art. 578 A(2). This serves “to enforce the accused’s right to a speedy trial and to prevent the oppression caused by suspending criminal prosecutions over citizens for indefinite periods of time.” Ramirez, 07-0652 at p. 4, 976 So.2d at 207. See also Sorden, 09-1416 at p. 5, 45 So.3d at 184. The two-year limitations period set forth in La. C.Cr.P. art. 578 A(2) is prescriptive in nature. See State v. Morris, 99-3235, p. 1 (La.2/18/00), 755 So.2d 205, 205 (per curiam). See also La.C.Cr.P. art. 578 cmt. (b). As such, the running of this time period may be interrupted. See La.C.Cr.P. art. 579 A.

Once a defendant brings a facially meritorious motion to quash based on a failure to timely commence her trial, the district attorney “bears the heavy burden” of showing that the running of this prescriptive period was interrupted. State v. Bobo, 03-2362, p. 4 (La.4/30/04), 872 So.2d 1052, 1055. Article 579 A provides three grounds for interruption of this limitations period, only one of which arguably applies in this case: when “[t]he defendant cannot be tried because ... [her] presence for trial cannot be obtained by legal process, or for any other cause beyond the control” of the prosecution. La.C.Cr.P. art. 579 A(2). Should interruption be proven by the prosecution, then the time periods for commencement of trial shall run “anew from the date the cause of interruption no longer exists.” La.C.Cr.P. art. 579 B. See also La.C.Cr.P. art. 580. Should the state fail to meet its burden of proof, however, the statute of limitation shall be hgiven effect. See Ramirez, 07-0652 at p. 4, 976 So.2d at 207 (citing State v. Rome, 93-1221 (La.1/14/94), 630 So.2d 1284,1286).

We review a trial judge’s ruling on a motion to quash which requires factual determinations under an abuse of discretion standard. See State v. Batiste, 05-1571, pp. 8-9 (La.10/17/06), 939 So.2d 1245, 1251. A trial judge’s ruling on a motion to quash involving a speedy trial violation is a mixed question of law and fact. See State v. Brady, 13-0863, p. 3 (La.App. 4 Cir. 12/11/13), 131 So.3d 166, 168-69. As such, a judge must first make findings of fact and apply law to those findings thereafter. These rulings should not be disturbed absent an abuse of the trial judge’s discretion. See Ramirez, 07-0652 at p. 4, 976 So.2d at 207. See also State v. Love, 00-3347, pp. 9-10 (La.5/23/03), 847 So.2d 1198, 1206 (Setting forth that the complementary roles of the trial courts and our intermediate appellate courts demand that deference be given to a trial judge’s discretionary decisions).

■ [11] Our review to determine whether a trial judge abused her discretion in ruling on this mixed question of law and fact requires us to examine both her findings of fact and her choice of law to be applied to those facts. First, in reviewing a trial judge’s findings of fact, we are extremely deferential and “will ‘not overturn those findings unless there is no evidence to support’ ” them. State v. McClendon, 13-1454, p. 6 (La.App. 4 Cir. 1/30/14), 133 So.3d 239, 245, writ denied 14-0324 (La.2/19/14), 133 So.3d 667, (quoting State v. Wells, 08-2262, p. 4 (La.7/6/10), 45 So.3d 577, 580). “This extremely heightened deference is rooted in the limitations of our appellate jurisdiction set forth in La. Const, art. 5, § 10(B), which |7provides:

Tn criminal cases, [an appellate court’s] jurisdiction extends only to questions of law.’ ” Id.

Second, we review whether the trial judge’s choice and application of law were proper. A trial judge necessarily abuses her discretion in denying a motion to quash if her ruling is based on an erroneous view of the law. See State v. Hayes, 10-1538, p. 11 (La.App. 4 Cir. 9/1/11), 75 So.3d 8, 15 (citing Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447,110 L.Ed.2d 359 (1990); United States v. Taylor, 487 U.S. 326, 336, 108 S.Ct. 2413, 101 L.Ed.2d 297 (1988) (Noting that “discretionary choices are not left to a court’s inclination, but to its judgment,” which is guided by sound legal principles)). If a trial judge in exercising her discretion “bases [her] ruling upon an erroneous view or application of the law, [her] ruling is not entitled to our deference.” State v. Dillon, 11-0188, p. 4 (La.App. 4 Cir. 8/24/11), 72 So.3d 473, 476. Thus, if we find that the trial judge improperly applied or stated the law, we will adopt the trial judge’s findings of fact, provided that they are supported by any evidence, and apply those facts to the proper legal principles.

IY

In this Part we apply these guiding precepts to the undisputed findings of fact in this case. We find that the trial judge committed legal error by holding that, through the prosecution’s filing of charges under Varmall, Ms. Gregory’s duty to provide a current address stemming from a bond, from which she had previously been released, was resuscitated and that her failure to provide that address resulted in the inability of the district attorney to obtain her presence for trial by legal process. See La.C.Cr.P. art. 579 A(2). We then hold that the legal principle that should have been applied was set forth by this Court in Sorden. Finally, we determine that the prosecution failed to exercise due diligence in its effort to locate |sMs. Gregory in order to timely commence trial. As such, the prosecution failed to timely commence Ms. Gregory’s trial.

A

The trial judge determined that, under Varmall, commencement of this prosecution somehow re-imposed upon Ms. Gregory an obligation to furnish an address stemming from an ROR bond from which she had previously been released. In this respect, the trial judge simply applied Var-mall too expansively and thus committed legal error in her ruling.

In Varmall, the defendant was similarly released under Article 701 B because the district attorney had failed to timely commence prosecution. See 5B9 So.2d at 45. Thereafter, the grand jury indicted the defendant on one charge, and the district attorney filed a bill of information on another charge. Id. The defendant was then re-arrested on the same charges for which he had been previously released under Article 701 B. Relying upon an earlier decision, we found that a “defendant must be released without a bond obligation even if charges are then instituted.” State v. Varmall, 584 So.2d 989, 990 (La.App. 4th Cir. 1988).

Noting that “the issue is whether [the defendant] may be rearrested for the same offenses after prosecution has been instituted,” the Supreme Court reversed our ruling. Varmall, 539 So.2d at 46 (emphasis added). The Supreme Court found that “the illegality of detaining [the defendant] ended when the prosecution was instituted, although the statutory period had already elapsed, and he was thereafter subject to being rearrested.” Id. The Supreme Court held that “[t]he trial court properly denied his motion for release without bail.” Id. (emphasis added).

Here, if the alias capias, which issued following the commencement of this prosecution by bill of information, was based upon a finding of probable cause by |9a neutral magistrate, then most assuredly, under Varmall, Ms. Gregory was subject to being rearrested and was no longer entitled to release without bail. The trial judge, however, misinterpreted Varmall to stand for the principle that the commencement of the prosecution retroactively returned the bond undertaking to the status quo ante. Thus, in misapplying Varmall, the trial judge concluded that Ms. Gregory’s duty to furnish an address at which she could be served was re-imposed. On account of that legal error, which served as the predicate for her ruling on the motion to quash, we find that the trial judge abused her discretion and that no deference need be given to her ruling.

B

Having found legal error in the trial judge’s ruling, we must now determine the proper legal principles to apply to the facts of this case. The prosecution contends that, despite being released from this bond, Ms. Gregory continued to be bound by a duty similar to that of a defendant released on bond, who must update the court with any change of address as required by Article 322 A. See State v. Peters, 10-0989, p. 11 (La.App. 4 Cir. 11/17/10), 52 So.3d 233, 239. If we chose to apply the principle set forth in Peters, Ms. Gregory’s failure to provide an address on her bond would have prevented the prosecution from obtaining her presence for trial and, thus, interrupted the prescriptive period for the commencement of her trial. See La.C.Cr.P. arts. 322 A; 579 A(2).

We agree with the district attorney that the defendant in Peters had an affirmative duty to provide an accurate address at which he could be served and to | inupdate the court with any changes. See La.C.Cr.P. art. 322 A (“The defendant ... [when] signing a bail bond shall write the address at which [she] can be served....”); La.C.Cr.P. art. 322 B (The address provided “shall be conclusively presumed to continue for all proceedings on the bond, until the party providing the address changes it by filing a written declaration in the proceeding for which the bond was filed”) (emphasis added). Ms. Gregory, however, is not similarly situated to the defendant in Peters because she was released from her bail obligation prior to the institution of her prosecution by the district attorney. Ms. Gregory was released due to the district attorney’s failure to timely institute prosecution. See La. C.Cr.P. art. 701 B (“Failure to institute prosecution as provided in Subparagraph [B](2) shall result in the release of the bail obligation if, after contradictory hearing with the district attorney, just cause for the delay is not shown.”) (emphasis added). As Ms. Gregory was under no current bail obligation when the district attorney instituted her prosecution, the application of the principle set forth in Peters is inappropriate in this case.

We instead find that the principle announced by us in Sorden should have been applied. In that case, the defendant had also initially been released on an ROR bond. Sorden, 09-1416 at p. 2, 45 So.3d at 183. The district attorney subsequently dismissed the bill of information by a nolle prosequi, and the defendant’s obligations under that bond were presumptively extinguished. Id., 09-1416 at pp. 10-11, 45 So.3d at 187-188. The district attorney argued that the defendant’s failure to update her address, between his entering of the nolle prosequi and his re-institution of prosecution, prevented him from effecting service of process on her and thus interrupted the limitations period under Article 579 A(2). Id., 09-1416 at p. 9, 45 So.3d at 187. After discussing the obligations undertaken when a person is ^admitted to bail, we concluded in Sorden that the prosecution had failed to establish that the defendant had violated any bail obligation. Id., 09-1416 at p. 11, 45 So.3d at 188. Thus, in the absence of a contractual obligation under an existing bond, a defendant has no obligation to update the prosecution or the court of her whereabouts so that she may be served with notice. And a defendant’s failure to update them is, thus, not a ground for interruption of the limitations period.

Adhering to the principle set forth in Sorden, we conclude that Ms. Gregory had no continuing duty to supply the court with an accurate address following her release from her bail obligation under Article 701. The failure of Ms. Gregory to furnish an accurate or updated address was not the cause of the prosecution’s failure to obtain her presence for trial by legal process and did not constitute “any other cause beyond the control of the state.” La.C.Cr.P. art. 579 A(2). This cannot serve as an interruption of the Article 578 prescriptive period to commence trial.

C

Other than the issuance of the alias capias, which was apparently never executed, there is no indication of any other effort by the prosecution to locate Ms. Gregory. There is, for example, no evidence in the record that the district attorney even made inquiry of the private pre-trial program which had supervised Ms. Gregory. The district attorney has simply not demonstrated that, despite the exercise of due diligence, he was unable to locate Ms. Gregory and obtain her presence. See State v. Chadboume, 98-1998 (La.1/8/99), 728 So.2d 832 (per curiam); State v. Estill, 614 So.2d 709, 710 (La.1993) (per curiam).

DECREE

Rochelle Gregory’s application for the exercise of our supervisory jurisdiction is peremptorily granted, the complained-of denial of her motion to ]12quash is reversed, her motion to quash the bill of information is sustained, the charge is dismissed, and the defendant, Rochelle Gregory, is discharged.

WRIT GRANTED; REVERSED AND RENDERED

LOBRANO, J., Dissents.

LOBRANO, J.,

Dissents.

hi respectfully dissent. Because I find the trial court correctly denied relator’s motion to quash, I would deny the writ application.

      . The denial of a motion to quash is not an appealable judgment. Cf. La.C.Cr.P. art. 912 C. An appeal is the exercise of a right to have a ruling reviewed by the proper appellate court. See La.C.Cr.P. art. 911. In the absence of a right to have a ruling reviewed, a party may nonetheless apply to us imploring the exercise of our supervisory jurisdiction under La. Const, art. 5, § 10(A). ‘‘[Tjhe difference between supervisory jurisdiction and appellate jurisdiction is that the former is discretionary on the part of the appellate court while the latter is invocable by the litigant as a matter of right.” Livingston Downs Racing Association, Inc. v. Louisiana State Racing Comm’n, 96-1215 (La.App. 4 Cir. 6/5/96), 675 So.2d 1214, 1216.

      . 539 So.2d 45 (La. 1989) (per curiam).

      . 09-1416 (La.App. 4 Cir. 8/4/10), 45 So.3d 181.

      . A felony is "any crime for which an offender may be sentenced to death or imprisonment at hard labor.” La. R.S. 14:2(4). A person convicted of a violation of La. R.S. 40:967 C “shall be imprisoned with or without hard labor for not more than five years and, in addition, may be sentenced to pay a fine of not more than five thousand dollars.” La. R.S. 40:967 C(2).

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

      . It is not disputed that Ms. Gregory timely filed this motion "before commencement of trial.” La.C.Cr.P. art. 535 B.

      . "Evidence may be adduced in a motion to quash and at the subsequent hearing on the matter. The sole purpose of this evidence, however, must not be to support a defense on the merits." Franklin, 13-0488 at p. 6, 126 So.3d at 667.

      . Rulings on motions to quash, which do not require factual determinations and present only questions of law, are reviewed de novo— without any deference to the trial judge's legal findings or conclusions. See, e.g., State v. Schmolke, 12-0406, pp. 1-4 (La.App. 4 Cir. 1/16/13), 108 So.3d 296, 298-299.

      . I condition this statement because it was not custom or practice in trial courts at the time of the issuance of this alias capias to require a showing of probable cause to arrest following the filing of a bill of information. Compare the current provisions of La.C.Cr.P. art. 496 B with State v. Rochon, 11-0009, p. 2, (La. 10/25/11), 75 So.3d 876, 879.