text:
    Leah HARBIN v. Gertrude WARD, National Automotive Insurance Company, and Garrison Property And Casualty Insurance Company.
    No. 2013 CA 1620.
    Court of Appeal of Louisiana, First Circuit.
    May 29, 2014.
    Rehearing Denied July 1, 2014.

      R. Vaughn Cimini, Karen G. Arena, Me-tairie, Louisiana, for Defendants/Appellants National Automotive Insurance and Gertrude Ward.
    Marcus J. Plaisance, Baton Rouge, Louisiana, for Plaintiff/Appellee Leah Harbin.
    Before PETTIGREW, McDONALD, and McClendon, jj.
   McClendon, j.

| ¡¿Defendants, an insurer and its insured, appeal a trial court judgment assigning its insured with sole fault for causing an accident. Defendants also seek review of the amounts awarded to the plaintiff for medical specials and general damages. For the reasons that follow, we amend the judgment to assign 25% fault to the plaintiff, and affirm the judgment, as amended.

FACTS AND PROCEDURAL HISTORY

On October 28, 2010, Ms. Gertrude Ward was exiting a gas station and attempting to make a left turn into the northbound lanes of South Range Avenue in Denham Springs. To reach the northbound lanes, Ms. Ward had to cross three lanes of southbound traffic. Ms. Ward was able to traverse the first two lanes, but did not see a Livingston Parish school bus, which was being operated by Joan Delatte within the third lane of travel, until she entered the lane being occupied by the school bus. The school bus struck the side of Ms. Ward’s vehicle.

Ms. Leah Harbin, who was driving a 2009 Kia Rio, was traveling behind the school bus in the third lane of travel. Following the collision between the school bus and Ms. Ward’s vehicle, Ms. Harbin’s vehicle ran into and partially underneath the school bus. As a result of the accident, Ms. Harbin sought medical treatment for airbag and seatbelt burn, as well as for injuries to her left shoulder, back, and neck.

On September 28, 2011, Ms. Harbin filed suit against Ms. Ward and Ms. Ward’s automobile liability insurer, National Automotive Insurance Company. Following trial, the trial court found Ms. Ward 100% at fault for causing the three vehicle wreck and the subsequent injuries to Ms. Harbin. In assessing all fault for the accident against Ms. Ward, the trial court reasoned:

In the present case [Ms. Ward] attempted to traverse three lanes of traffic without control lights or signs at which time [Ms. | sWard] was struck by a bus. This unexpected course of events gave [Ms. Harbin] little or no time to respond to the hazardous condition enveloping the roadway. Unable to avoid colliding with the bus, [Ms. Harbin] was put in the precise situation as contemplated by the Sudden Emergency Doctrine as it relates to the following driver statute. Further, as established above, it was the negligence of [Ms. Ward], rather than [Ms. Harbin], that was the proximate cause of the hazardous condition. Therefore, the Sudden Emergency Doctrine shields [Ms. Harbin] from any allocation of fault rendering [Ms. Ward] solely liable for the resulting damages.

Ms. Ward and her insurer, National Automotive Insurance Company, were cast in judgment, in solido, for $18,068.14, plus judicial interest from the date of demand.

Ms. Ward and National Automotive Insurance Company (hereinafter collectively referred to as “National Automotive”) have appealed, assigning the following as error:

1. The trial court erred in determining that Ms. Ward’s actions precipitating the first accident excused Ms. Harbin’s fault for the subsequent rear-end collision.
2. The trial court erred in applying the Sudden Emergency Doctrine to excuse Ms. Harbin from liability for her own negligence.
3. The trial court erred in not considering the comparative fault of Ms. De-latte and in not finding Ms. Delatte was comparatively at fault.
4. The trial court erred in not reducing special and general damages based upon the intervening accident and two-month setback.

DISCUSSION

Liability

In reviewing a trial court’s findings of fact, appellate courts employ a “manifest error” or “clearly wrong” standard of review. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989) (citations omitted). Where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are more reasonable. Id. Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Id. However, if a trial court |4applies incorrect principles of law and such errors are prejudicial, the appellate court is required (if it can) to render judgment on the record applying the correct law and determining the essential material facts de novo. Rideau v. State Farm Mut. Auto. Ins. Co., 06-0894 (La.App. 1 Cir. 8/29/07), 970 So.2d 564, 571, writ denied, 07-2228 (La.1/11/08), 972 So.2d 1168 (citing Evans v. Lungrin, 97-0541, 97-0577 (La.2/6/98), 708 So.2d 731, 735).

For liability for damages to attach under a duty-risk analysis, a plaintiff must prove five separate elements: (1) the defendant had a duty to conform his or her conduct to a specific standard of care (the duty element); (2) the defendant failed to conform his or her conduct to the appropriate standard of care (the breach of duty element); (3) the defendant’s substandard conduct was a cause in fact of the plaintiffs injuries (the cause in fact element); (4) the defendant’s substandard conduct was a legal cause of the plaintiffs injuries (the scope of protection element); and (5) actual damages (the damage element). Pinsonneault v. Merchants & Farmers Bank & Trust Co., 01-2217 (La.4/3/02), 816 So.2d 270, 275-76.

All motorists owe a general duty to observe what should be observed. Mart v. Hill, 505 So.2d 1120, 1123 (La. 1987). Additional duties arise depending on the motorist’s movements on the roadway in relation to other vehicles. Relevant hereto are the duties and presumptions associated with a motorist entering a highway and with a following motorist.

First, LSA-R.S. 32:124 provides that the driver of a vehicle about to enter or cross a highway from a private road, driveway, alley or building, shall yield the right of way to all approaching vehicles so close as to constitute an immediate hazard. The driver entering a highway has the primary duty to avoid a collision. Walley v. Vargas, 12-022 (La.App. 1 Cir. 9/21/12), 104 So.3d 93, 105. Unusual, extreme, and high care toward favored traffic is required of such a motorist under the case law. Id.

Second, with regard to the following motorist, the law has established a rebuttable presumption that a following motorist who strikes a preceding | ^motorist from the rear has breached the standard of conduct prescribed by LSA-R.S. 32:81A and is therefore liable for the accident. Johnson v. Magitt, 12-0200 (La.App. 1 Cir. 9/21/12), 111 So.3d 11, 12. The rule is based on the premise that a following motorist whose vehicle rear-ends a preceding motorist either has failed in his responsibility to maintain a sharp lookout or has followed at a distance from the preceding vehicle which is insufficient to allow him to stop safely under normal circumstances. Johnson, 111 So.3d at 13. While a following motorist may assume that the vehicle in front is being driven with care and caution, he must drive at an appropriate speed and must maintain an interval between the two vehicles as would enable him to avoid a collision with the lead vehicle under circumstances which should be reasonably anticipated. Leonard v. Favaloro, 05-206 (La.App. 5 Cir. 10/6/05), 916 So.2d 1191, 1192, and Bertrand v. Henry, 01-348 (La.App. 3 Cir. 12/19/01), 815 So.2d 868, 871, writ denied, 02-0190 (La.3/28/02), 811 So.2d 945.

A following motorist, however, may rebut the presumption of negligence by proving that he had his vehicle under control, closely observed the preceding vehicle, and followed at a safe distance under the circumstances. Johnson, 111 So.3d at 13. The following motorist may also avoid liability by proving that the driver of the lead vehicle negligently created a hazard that he could not reasonably avoid (a sudden emergency). Id. However, the rule of sudden emergency cannot be invoked by one who has not used due care to avoid the emergency. Anderson v. May, 01-1031 (La.App. 5 Cir. 2/13/02), 812 So.2d 81, 86. The following motorist must exonerate himself from fault before he can completely avoid liability. Matherne v. Lorraine, 03-2369 (La.App. 1 Cir. 9/17/04), 888 So.2d 244, 246. Although the sudden emergency doctrine was developed when contributory negligence was a complete bar to recovery, our courts continue to apply the doctrine. Duzon v. Stallworth, 01-1187 (La.App. 1 |fiCir. 12/11/02), 866 So.2d 837, 858, writs denied, 03-0589, 03-0605 (La.5/2/03), 842 So.2d 1101, 1110. While the sudden emergency doctrine has not been subsumed by comparative fault, see Jefferson v. Soileau, 03-0541 (La.App. 1 Cir. 12/31/03), 864 So.2d 250, 253, writ denied 04-0594 (La.4/23/04), 870 So.2d 306, some courts have treated the defense of sudden emergency as one of the factual considerations used in assessing the degree of fault to be attributed to a party. See King v. State Farm Ins. Co., 47,368 (La.App. 2 Cir. 8/8/12), 104 So.3d 33, 38, and Manuel v. St. John the Baptist Parish Sch. Bd., 98-1265 (La.App. 5th Cir. 3/30/99), 734 So.2d 766, 769, writ denied, 99-1193 (La.6/4/99), 744 So.2d 632.

National Automotive contends that the trial court did not apply the appropriate standard and burden of proof in evaluating Ms. Harbin’s comparative fault. National Automotive contends that in assessing Ms. Harbin with no liability for rear-ending the school bus, the trial court did not properly consider the presumption that a following driver is liable when she strikes the vehicle in front of her. National Automotive avers that Ms. Harbin did not establish that she was traveling at a safe distance behind the school bus, at a safe speed, and in a safe manner. Moreover, National Automotive contends that because Ms. Harbin’s view ahead was obstructed by the bus, she had to take extra care in case of an emergency. See Ly v. State Through Dept. of Public Safety and Corrections, 633 So.2d 197, 201 (La.App. 1 Cir.1993), writ denied, 93-3134 (La.2/25/94), 634 So,2d 835 (“[W]hen a preceding vehicle is obstructing a motorist’s view ahead, the motorist has a duty to leave sufficient space between himself and the preceding vehicle to stop in case of an unexpected hazard in the road ahead.”) National Automotive concludes that if Ms. Harbin were traveling attentively at a safe distance behind the school bus and at a reasonably safe speed, she could have stopped to avoid the accident.

At trial, Ms. Ward testified that when she was leaving the gas station and attempting to make a left hand turn, she did not see the school bus in the third 17lane of travel. After the accident, her vehicle was stopped directly in the path of the school bus. She indicated that she received a citation for her failure to yield.

Ms. Delatte, who was operating the school bus, testified that she was in a “moving lane of traffic that was traveling.” She indicated that “if there were any cars in front of me, they were many car lengths up.” She testified that the first time she saw Ms. Ward’s vehicle was when “[i]t was peering out from the cars that were stopped and moving across.” Ms. Delatte testified that there was no way that she could have avoided the accident.

Ms. Harbin indicated that on the morning of the accident, South Range Avenue was “[v]ery busy” and road construction had started in the area. Ms. Harbin testified that she was “[r]oughly around two car lengths” behind the school bus and she had sped up to a rate of speed between 30 and 35 miles per hour. She indicated that she sped up because she could see the traffic light ahead had turned green. She also testified that the bus had also sped up and was traveling “about 35 plus an hour.” She testified that she was unable to see vehicles coming out of the gas station, which was to her right, due to the traffic in the two lanes to the right of her vehicle. Ms. Harbin also admitted that she did not see the bus hit Ms. Ward’s vehicle and that the bus “just stopped instantly in front of my face.” In her deposition, Ms. Harbin indicated that when she saw the brake lights of the bus, “I was already — there was no way of stopping my car,” and that she slammed on her brakes “right when she was hitting the bus.”

The trial court found Ms. Ward was solely at fault for the accident. In cutting between ears in two lanes, attempting to cross a third lane and enter a fourth, Ms. Ward clearly breached the duty she owed under LSA-R.S. 32:124.

The trial court also found that Ms. Ward’s actions afforded Ms. Harbin “little or no time to respond to the hazardous condition” on the roadway and applied the sudden emergency doctrine to Ms. Harbin. While the trial court | ^applied the sudden emergency doctrine, it did not specifically address whether Ms. Harbin met the burden, which was on her as the following motorist, to establish that she exercised due care to avoid the accident. In this regard, given the traffic, one should expect that a lead vehicle, especially a school bus that might block Ms. Harbin’s view, might be required to make a sudden stop. Although Ms. Harbin saw the brake lights of the bus, she indicated that “there was no way of stopping my car” and slammed on her brakes about the same time her vehicle struck the bus. Under these circumstances, we conclude that Ms. Harbin breached the duties owed by a following motorist by not keeping a proper lookout for the traffic ahead of her and failing to maintain a safe distance from the bus. Accordingly, because Ms. Harbin breached the duties owed by the following motorist, we conclude that the trial court committed manifest error in failing to apportion any fault to her.

After an appellate court finds manifest error in the apportionment of fault, it should adjust the award, but only to the extent of lowering or raising it to the highest or lowest point respectively that is reasonably within the trial court’s discretion. Clement v. Frey, 95-1119 (La.1/16/96), 666 So.2d 607, 609-11. Considering the factors set forth in Watson v. State Farm Fire & Cas. Ins. Co., 469 So.2d 967 (La.1985), the lowest percentage of fault reasonably within the trial court’s discretion that could have been assessed against Ms. Harbin is 25%.

Damages

Uln its fourth assignment of error, National Automotive contends that the trial court, in awarding damages, did not consider Ms. Harbin’s subsequent motor vehicle accident on December 1, 2010. National Automotive notes that the second accident was significant enough to require Ms. Harbin to replace her rear bumper. National Automotive also avers that Ms. Harbin produced a separate billing package from the same provider for each accident. The medicals for the December accident reflect a two-month span of treatment, through January 18, 2011, while the accident at issue reflects treatment through May 8, 2011. Moreover, at trial, Ms. Harbin admitted that the second wreck did set her treatment back. National Automotive concludes that Ms. Harbin’s recovery for both general and special damages should be reduced by 2/5, representing the two months of treatment she received for the December accident.

A trial court’s award of special damages is subject to the manifest error standard on appeal, and its award of general damages is reviewed under the abuse of discretion standard. Webster v. Ballard, 05-2247 (La.App. 1 Cir. 3/2/07), 961 So.2d 13, 15. With regard to special damages, it appears that the trial court did not award Ms. Harbin any medical specials that she correlated to the second accident. The trial court awarded Ms. Harbin $3,945.00 for her medical expenses, $735.00 which represents her initial treatment at Denham Springs Urgent Care on October 28, 2010, and $3,210.00 which represents her treatment at Anthon Chiropractic Care from November 9, 2010 through November 30, 2010 and again from January 18, 2011, through May 12, 2011. The $1,157.00 in medical specials from Anthon Chiropractic Care which Ms. Harbin related to the second accident is not included in the total awarded by the trial court. Considering the foregoing, we cannot conclude that the trial court manifestly erred in its award of medical specials.

The trial court also awarded Ms Harbin $13,000.00 in general damages. We note that the trial court was aware that Ms. Harbin was involved in two accidents, and she was cross-examined in detail regarding how her injuries were affected by the second accident. Vast discretion is accorded the trier of fact in Infixing general damage awards. LSA-C.C. art. 2324.1. This vast discretion is such that an appellate court should rarely disturb an award of general damages. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). Thus, the role of the appellate court in reviewing general damage awards is not to decide what it considers to be an appropriate award, but rather to review the exereise of discretion by the trier of fact. Youn, 623 So.2d at 1260. Following our review of the record, we cannot conclude that the trial court abused its discretion in its award of general damages. Assignment of error number four is without merit.

CONCLUSION

For the foregoing reasons, the May 1, 2013 trial court judgment is amended to assign 25% of the fault to plaintiff, Leah Harbin, and to reduce the damage award in proportion to her fault, from $18,068.14 to $13,551.11. Costs of this appeal are to be split between the parties.

JUDGMENT AMENDED, AND AFFIRMED, AS AMENDED.

      . Ms. Harbin also filed suit against her uninsured/underinsured motorist carrier, Garrison Property and Casualty Insurance Company, but that claim was dismissed with prejudice on June 7, 2013.

      . Louisiana Revised Statutes 32:81A provides: The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon and the condition of the highway.

      . Ms. Harbin had previously testified in her deposition that she was unsure how many car lengths she was behind the school bus.

      . National Automotive also contends that the trial court did not consider the comparative fault of Ms. Delatte, the school bus driver, in failing to see what she should have seen and in failing to take more prompt action to avoid the collision. National Automotive asserts that the record evidence establishes that had comparative fault been considered, the fact-finder would be clearly wrong in failing to assign some degree of fault to Ms. Delatte. However, following our review of the record, we find no manifest error in the trial court not assessing Ms. Delatte with any fault.

      . In determining percentages of fault, the trier of fact must consider both the nature of the conduct of all parties and the extent of the causal relationship between the conduct and the damages claimed. The factors that may influence the degree of fault assigned include: (I) whether the conduct resulted from inadvertence or involved an awareness of the danger; (2) how great a risk was created by the conduct; (3) the significance of what was sought by the conduct; (4) the capacities of the actor, whether superior or inferior; and (5) any extenuating circumstances that might require the actor to proceed in haste without proper thought. Watson, 469 So.2d at 974.


source: Caselaw Access Project

author: THERIOT, J.

license: Public Domain

text:
    OUR LADY OF THE LAKE HOSPITAL, INC. v. Keri Chaney JACKSON.
    No. 2013 CA 1314.
    Court of Appeal of Louisiana, First Circuit.
    June 6, 2014.

      Gregory T. Stevens, Baton Rouge, Louisiana, for PlaintiffiAppellant, Our Lady of the Lake Hospital, Inc.
    Michelle M. Sorrells, Baton Rouge, Louisiana, for Defendant/Appellee, Keri Chaney Jackson.
    Before KUHN, HIGGINBOTHAM, and THERIOT, JJ.
   THERIOT, J.

lain this workers’ compensation case, an employer appeals a judgment awarding indemnity benefits to the injured employee, and the employee answers the appeal. We affirm and deny the employee’s request for additional attorney fees for work done on this appeal.

FACTS AND PROCEDURAL HISTORY

Keri Chaney Jackson, was injured in the course and scope of her employment as a Licensed Practical Nurse (LPN) with Our Lady of the Lake Hospital, Inc. (“OLOL”) on December 8, 2006. On that date, Mrs. Jackson was plugging in a laptop computer when she received an electric shock. The electricity traveled through her right hand, up her arm, and out her left hand. She was seen immediately in the emergency department, and later followed up with an occupational physician at OLOL. As a result of the accident, Mrs. Jackson developed Complex Regional Pain Syndrome (“CRPS”), which caused numbness, burning, muscular pain, and an inability to grab and hold things with her right hand. She was treated with physical therapy and pain medication. She also attempted nerve blocks and a spinal cord stimulator trial, which were unsuccessful in alleviating her pain, and was eventually referred for pain management. She also experienced nightmares about the accident and developed a fear of electrical appliances and outlets.

Mrs. Jackson later developed radiating leg pain. She underwent an MRI and EMG and was diagnosed with lumbar ra-diculitis. Mrs. Jackson related the leg pain to her workplace accident, but OLOL took the position that Mrs. Jackson’s leg pain was caused by a fall she sustained at an LSU football game in 2007. OLOL denied payment for treatment for her leg pain [Sbased on a second medical opinion that it was unrelated to the workplace accident.

Mrs. Jackson began receiving workers’ compensation benefits from the date of her injury. In October 2008, her treating pain management physician, Dr. Joseph Turnip-seed, stated that he had exhausted conservative treatment and could offer her nothing more for her CRPS than continued prescription medicine. In December 2008, Dr. Turnipseed stated that Mrs. Jackson would suffer from chronic neuropathic pain indefinitely and gave her a permanent partial disability. Dr. Turnipseed authorized Mrs. Jackson to return to work at sedentary duty.

In early 2009, Mrs. Jackson underwent a Functional Capacity Exam (“FCE”), which concluded that she could not return to work in her former capacity as an LPN, but that she could return to work at sedentary duty with limited use of her right arm and hand. In July of 2009, Mrs. Jackson sought psychological treatment with Dr. Robert Davis due to her nightmares and anxiety. Dr. Davis diagnosed Mrs. Jackson with Posh-Traumatic Stress Disorder (“PTSD”) as a result of the workplace accident. Mrs. Jackson was making progress in her treatment with Dr. Davis, but voluntarily discontinued her treatment with him in January of 2010 so that she could devote her time to planning her wedding.

OLOL sought a second medical opinion on Mrs. Jackson’s PTSD diagnosis from Dr. Charles Frey. The purpose of the second medical opinion was to determine the impact of Mrs. Jackson’s psychological symptoms on her ability to return to work. Mrs. Jackson appeared for an interview and testing in Dr. Frey’s office on March 2 and 9, 2010. At the end of the testing, Mrs. Jackson informed the examiner that she had not given her best effort on the test due to pain, but she did not alert him to this |4or ask to take a break because she did not want to have to return to the office. This allegedly inconsistent effort created a problem with Dr. Frey’s test results. Absent Mrs. Jackson’s statement that she did not give her best effort, Dr. Frey reported that her test results would indicate malingering. However, because of her statement regarding her effort level, Dr. Frey was unable to definitively diagnose malingering. Nevertheless, Dr. Frey pointed out that this did not rule out a finding of intentional exaggeration of symptoms and disability. Dr. Frey diagnosed Mrs. Jackson with an anxiety disorder and a pain disorder, but he did not diagnose her with PTSD because he could not rule out intentional exaggeration of symptoms or malingering, which is necessary for a PTSD diagnosis. Furthermore, he did not find her anxiety symptoms to be disabling, and found that “inconsistent motivation” was among the chief contributors to her slow progress in rehabilitation.

In May 2010, Mrs. Jackson married and moved into her husband’s home in McComb, Mississippi. By October 2010, she had voluntarily discontinued all of her pain medication in order to get pregnant. She saw a chiropractor, Dr. Webb, during her pregnancy, but stayed off of all pain medication throughout her pregnancy. Dr. Webb believed that Mrs. Jackson could return to work only part-time.

OLOL suggested to Mrs. Jackson that she find new doctors in McComb after she moved, but she chose to continue seeing her doctors in Baton Rouge because she had an established relationship with them. OLOL refused to reimburse Mrs. Jackson’s full mileage from McComb to Baton Rouge for doctor visits, and instead continued reimbursing her mileage from her former home in Clinton, Louisiana to Baton Rouge.

OLOL filed a Disputed Claim for Compensation on March 23, 2011, along with a petition seeking to suspend benefits under La. R.S. 23:1124, ^because it alleged Mrs. Jackson obstructed the psychological evaluation by Dr. Frey by not putting forth her best effort. OLOL argued that Mrs. Jackson remained off of work, purportedly due to psychological problems, but that she unilaterally terminated her psychological treatment and deprived OLOL of its statutory right to a second medical opinion in that field by refusing to make an effort to comply with testing. Mrs. Jackson filed a reconventional demand, seeking penalties and attorney fees for OLOL’s failure to reimburse her for her mileage from McComb and for her out-of-pocket medical costs, as well as for its failure to authorize psychological treatment. After a hearing, the Workers’ Compensation Judge (WCJ) denied OLOL’s request to suspend benefits and to compel supplemental testing by Dr. Frey, and ordered an Independent Medical Examination (“IME”) of Mrs. Jackson’s psychiatric/psychological issues by Dr. Ashwin Sura to determine her diagnosis, treatment plan, and ability to return to work. The IME was conducted and Dr. Sura diagnosed Mrs. Jackson with PTSD and a depressive disorder related to the accident.

Mrs. Jackson began receiving supplemental earnings benefits (“SEB”) at the temporary total disability (“TTD”) rate on April 10, 2011. She met with Tara Inzin-na, a licensed vocational counselor, on April 25, 2011 at the request of OLOL in an attempt to find a job that she could perform. On May 3, 2011, Ms. Inzinna learned of a potential job with OLOL for Mrs. Jackson as a medical transcriptionist. The transcriptionist job was a work-at-home position, so Mrs. Jackson could work on her own schedule and take breaks as needed. The job would require Mrs. Jackson to travel to Baton Rouge for two weeks of training prior to starting, and thereafter three times a month. Ms. In-zinna testified that the transcriptionist job was offered with accommodations which would require no use of Mrs. Jackson’s right upper ^extremity. Very minimal typing would be required to correct errors made by the voice recognition software, and could all be done with her left hand. Ms. Inzinna testified that she felt it would be possible for Mrs. Jackson to do the transcriptionist job with the offered accommodations. Dr. Turnipseed did not approve the transcriptionist job until Mrs. Jackson delivered her baby and could resume her pain medicine; until that point, he did not believe she could work in any capacity. Mrs. Jackson expressed interest in the transcriptionist position after delivering her baby and resuming her pain medication. Mrs. Jackson was offered the transcriptionist job on June 20, 2011, to begin work on July 5, 2011 with training in Baton Rouge. Mrs. Jackson requested that OLOL hold the job for her until after she had her baby, but they would not do so, so she turned it down. Mrs. Jackson’s SEB was reduced based upon her declining the transcriptionist job on July 5, 2011.

OLOL filed a supplemental petition on February 3, 2012, in which it alleged that Mrs. Jackson had made false statements or representations for the purpose of obtaining workers’ compensation benefits, entitling OLOL to relief under La. R.S. 23:1208.

After a trial, the WCJ found that Mrs. Jackson did not violate La. R.S. 23:1208. The WCJ found that Mrs. Jackson developed CRPS of the upper right extremity as a result of the workplace accident, as well as PTSD, but that the injury to her right lower extremity was unrelated to the work accident. The WCJ awarded continuing indemnity benefits for the upper right extremity, but did not award any further benefits for the PTSD, finding that her right to benefits for that condition ceased when she voluntarily terminated treatment with Dr. Davis in January of 2010. The WCJ found [7that Mrs. Jackson was entitled to receive TTD benefits from the date of the accident through February 11, 2009 at the rate of $379.92 per week, and SEB from February 12, 2009 on at the full TTD rate, less benefits received and any earned income, plus interest. The WCJ did not award penalties or attorney fees for OLOL’s reduction of Mrs. Jackson’s SEB’s, nor for OLOL’s prior termination of Mrs. Jackson’s indemnity benefits. The WCJ also found that OLOL reimbursed Mrs. Jackson’s mileage at the proper rate and that OLOL was not untimely in authorizing a psychological consultation with Dr. Davis in 2012.

OLOL appealed, arguing that the WCJ erred in finding that Mrs. Jackson did not violate La. R.S. 23:1208 and that the tender of the medical transcriptionist job was insufficient to justify a reduction in benefits. Mrs. Jackson answered the appeal, asserting that the WCJ erred in failing to award penalties and attorney fees, in failing to award reimbursement of her actual mileage incurred, and in failing to award costs. Mrs. Jackson also requests attorney fees for additional work done on this appeal.

DISCUSSION

OLOL first argues that the WCJ erred in finding that it failed to prove fraud under La. R.S. 23:1208. In support of this argument, OLOL points to evidence presented at trial which it allege proved that Mrs. Jackson exaggerated her symptoms once she started recovering in order to continue receiving benefits. OLOL asserts that Mrs. Jackson’s testimony and her doctors’ testimony regarding her severe pain are at odds with the surveillance footage of Mrs. Jackson going about her daily life without her hand brace and using her right hand. OLOL asserts that the WCJ’s credibility determinations were clearly wrong on this issue.

Louisiana Revised Statutes 23:1208(A) provides in part that:

Lit shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.

An employee violating La. R.S. 23:1208 shall forfeit any right to workers’ compensation benefits. La. R.S. 23:1208(E). The three requirements for forfeiture of the right to benefits under Section 1208 are: (1) there is a false statement or representation; (2) it is willfully made; and (3) it is made for the purpose of obtaining or defeating any benefit or payment. Fontenot v. State, Department of Health and Hospitals, 12-1265, p. 4 (La.App. 1 Cir. 4/2/13), 116 So.3d 695, 697-98. Forfeiture of workers’ compensation is a harsh remedy, and statutory forfeiture must be strictly construed. An employer has the burden of proving each element within the statute, and the lack of any one of the elements is fatal to an employer’s avoidance of liability. Id. at p. 4,116 So.3d at 698.

The issue of whether an allegedly false statement or misrepresentation by the employee requires forfeiture of workers’ compensation benefits pursuant to La. R.S. 23:1208 is one of fact, which may not be reversed on appeal absent manifest error. Dominic v. BREC, 04-0485, pp. 4-5 (La.App. 1 Cir. 3/24/05), 907 So.2d 73, 76. Under that standard of review, in order to reverse the WCJ’s factual determination that Mrs. Jackson did not commit fraud, this court must find that a reasonable factual basis does not exist for the finding and that the finding is clearly wrong (manifestly erroneous). Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La.1993). On appeal, the issue to be resolved by this court is not whether the WCJ was right or wrong, but whether the WCJ’s conclusion was a reasonable one. Id.

|gIn finding that OLOL failed to prove that Mrs. Jackson made false statements for the purpose of obtaining benefits in violation of La. R.S. 23:1208, the WCJ made a credibility determination, choosing to believe the testimony of Mrs. Jackson, her husband Jamie Jackson, and her father Stewart Chaney that Mrs. Jackson did not willfully misrepresent anything to do with her case. The WCJ found that although Mrs. Jackson “may have exaggerated her situation” in discussing things as they happened, she was very young at the time of the accident and even at the time of trial, and the video surveillance actually supported, rather than contradicted, the testimony by Mrs. Jackson, Jamie Jackson, and Stewart Chaney. Upon reviewing the evidence, we find no manifest error in the WCJ’s factual determination that Mrs. Jackson did not commit fraud in violation of La. R.S. 23:1208. Mrs. Jackson and her husband both testified that she has good days and bad days depending on the weather and her activity level, that she does not always wear her brace, that she attempts to use her right hand as a “helper” hand when she can and then switches to her left hand when her right hand gets tired, and that she is attempting to get on with her life in spite of the pain. The surveillance video showing her going about her daily life without her brace and using her right hand from time to time does not conflict with this testimony. Therefore, we may not disturb the WCJ’s fact finding.

OLOL next argues that the WCJ erred in finding that OLOL should not have reduced Mrs. Jackson’s SEB based on her rejection of the transcriptionist job.

The purpose of SEB is to compensate the injured employee for the wage-earning capacity she has lost as a result of the accident. Carral v. Winn-Dixie Louisiana, Inc., 05-1482, p. 3 (La.App. 1 Cir. 6/9/06), 938 So.2d 799, 801. The claimant bears the initial burden of proof in SEB [inclaims. Zirlott v. The Chitimacha Tribe of Louisiana, 04-1010, p. 4 (La.App. 1 Cir. 5/6/05), 915 So.2d 860, 862. In order to recover SEB, an employee must first prove by a preponderance of the evidence that she is unable to earn wages equal to 90% or more of wages she earned at the time of the injury. La. R.S. 23:1221(3)(a); Zirlott at pp. 4-5, 915 So.2d at 862. Once the employee’s burden is met, the burden shifts to the employer, who, in order to defeat the employee’s SEB claim or to establish the employee’s earning capacity, must prove, by a preponderance of the evidence, that the employee is physically able to perform a certain job and that the job was offered to the employee in his or the employer’s community or reasonable geographic region. Connor v. Family Dollar Store, 09-1537, pp. 7-8 (La.App. 1 Cir. 3/26/10), 36 So.3d 339, 346, writ denied, 10-0959 (La.6/25/10), 38 So.3d 344.

In ruling that OLOL failed to defeat the claim for SEB, the WCJ found that OLOL did not provide proof of a suitable job offered to Mrs. Jackson once Mrs. Jackson carried her burden of proving that she was unable to earn 90% or more of her pre-injury wage. The WCJ noted that because Mrs. Jackson is unable to adequately use her dominant arm, she cannot live on her own. Soon after the accident, Mrs. Jackson had to give up her apartment and move back in with her parents. Mr. Chaney testified that his wife had to help Mrs. Jackson with basic care, including bathing, and that Mrs. Jackson was unable to contribute much. She later moved to her husband’s home in McComb, which he remodeled to accommodate her limitations related to her accident. Because of her limitations and need for support services, the WCJ found that suitable jobs would need to be located in McComb, Mississippi in order for Mrs. Jackson to be able to perform them. As a result of the regular travel to Baton Rouge required by the transcriptionist job, the WCJ found the job to be Baton Rouge-based, and therefore unsuitable for Mrs. Jackson. As such, a reduction of SEB could not be based on the rejection of that job.

The WCJ’s finding that OLOL did not offer Mrs. Jackson a suitable job is a factual finding, which will not be reversed absent manifest error or unless it is clearly wrong. Based upon the evidence before us regarding Mrs. Jackson’s limitations and the amount of travel to Baton Rouge required for the job, we cannot say the WCJ was manifestly erroneous in finding that the transcriptionist job was not a suitable one on which to base a reduction in benefits. This assignment of error lacks merit.

In her answer to the appeal, Mrs. Jackson first argued that the WCJ erred in failing to make an award of penalties and attorney fees based upon OLOL’s “malicious” job offer.

Louisiana Revised Statutes 23:1201(1) provides that an employer will be subject to a penalty and payment of reasonable attorney fees for the prosecution and collection of a claim where the employer discontinues payment of claims due and such discontinuance is found to be arbitrary, capricious, or without probable cause. Arbitrary and capricious behavior consists of willful and unreasoning action, without consideration and regard for facts and circumstances presented, or action of seemingly unfounded motivation. Arretteig v. Our Lady of the Lake Hosp., Inc., 13-1603, p. 14 (La.App. 1 Cir. 3/21/14), 142 So.3d 1048, 1056. Whether a refusal to pay is arbitrary, capricious, or without probable cause depends primarily on the facts known to the employer or insurer at the time of its action. Silverman v. Weatherford Int’l, Inc., 46,402, p. 12 (La.App. 2 Cir. 10/19/11), 83 So.3d 11, 19 writ denied. 12-0076 (La.3/23/12), 85 So.3d 89. The crucial inquiry is whether the employer had articulable and objective reasons for denying or | ^discontinuing the benefits at the time it took that action. Id. The determination of whether an employer has been arbitrary or capricious or has failed to reasonably controvert a claim is a question of fact subject to the manifest error standard of review. Arretteig at p. 14, 142 So.3d at 1056.

In finding that OLOL was not arbitrary or capricious in reducing Mrs. Jackson’s benefits, the WCJ noted that even though she ultimately concluded that OLOL did not carry its burden of proving fraud, at the time it reduced Mrs. Jackson’s SEB, OLOL had before it information to support its allegations of fraud. The WCJ noted that another factfinder could reasonably have concluded that this information proved OLOL’s allegations of fraud, and the WCJ “[did] not blame the [OLOL] for questioning it.” Therefore, the WCJ concluded that OLOL did not act arbitrarily or capriciously. Considering the evidence which was available to OLOL at the time of its decision, including the surveillance videos and Dr. Frey’s opinion that Mrs. Jackson was intentionally exaggerating her symptoms and possibly malingering, we agree with the WCJ that OLOL legitimately pursued a defense to payment under La. R.S. 23:1208 and had factual information to support this defense at the time of the reduction of benefits. The WCJ was neither manifestly erroneous nor clearly wrong in finding that OLOL was not arbitrary or capricious and denying Mrs. Jackson’s claim for penalties and attorney fees. This assignment of error by Mrs. Jackson has no merit.

Mrs. Jackson next argues that the WCJ erred in failing to award reimbursement of her mileage for her travel to see her treating physicians in Baton Rouge following her move to McComb.

Louisiana Revised Statutes 23:1203(D) provides that the employer “shall be hable for the actual expenses reasonably and necessarily incurred by the employee for mileage reasonably and necessarily traveled by the 11semployee in order to obtain the medical services ... which the employer is required to furnish under this Section.” (Emphasis added.)

The WCJ noted that Mrs. Jackson was given the option to use doctors in McComb following her move, but that she chose to continue treatment with her doctors in Baton Rouge. Mrs. Jackson did not testify that there were no suitable doctors available in the McComb area; rather, she testified that she had developed a relationship with her pain management doctor in Baton Rouge and “didn’t want to change.” The WCJ found that OLOL’s payment of mileage from her former home in Clinton to her doctors in Baton Rouge was not unreasonable. Based on the evidence before us, we cannot say that this fact finding by the WCJ is manifestly erroneous or clearly wrong. This assignment of error is without merit.

Mrs. Jackson next argues that the WCJ abused its discretion in refusing to award her court costs for the wrongful reduction of her benefits under La. R.S. 23:1317(B), which states in part that costs “may be awarded by the workers’ compensation judge, in his discretion, and when so awarded the same may be allowed, taxed, and collected as in other civil proceedings.” Mrs. Jackson argues that she should be awarded costs because the reduction of her SEB caused her to have to hire an independent vocational counselor to address the wrongful reduction of her benefits. In denying costs, the WCJ noted that the information provided by Mrs. Jackson’s independent vocational counselor was of no use to the court. Considering the WCJ’s finding that OLOL had a reasonable factual basis for its decision to reduce Mrs. Jackson’s benefits, although it was ultimately unsuccessful, we cannot say that the WCJ abused her discretion in denying costs to Mrs. Jackson.

Finally, Mrs. Jackson filed a supplemental answer to the appeal requesting additional attorney fees for work performed on the appeal of this |14matter. This court has held that such an increase is appropriate when the employer appeals, obtains no relief, and the appeal necessitates additional work for the employee’s counsel, provided that the employee properly requests the increase. Lewis v. Temple Inland, 11-0729, p. 22 (La.App. 1 Cir. 11/9/11); 80 So.3d 52, 66. Given that Mrs. Jackson raised several unsuccessful assignments of error of her own, which necessitated additional work for the employer’s counsel, we find an award of additional attorney fees inappropriate.

CONCLUSION

For the reasons set forth above, the judgment appealed from is affirmed, and Mrs. Jackson’s request for attorney fees for work done on appeal is denied. Costs of this appeal are to be borne equally by OLOL and Mrs. Jackson.

AFFIRMED; REQUEST FOR ATTORNEY FEES DENIED.

      . At the time of the accident at issue herein, the plaintiff's name was Keri Chaney. In 2010, she married and became Keri Chaney Jackson. For simplicity, we will refer to her as Mrs. Jackson throughout the opinion.

      . Her baby was bom July 12, 2011.


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

text:
    STATE of Louisiana v. Herman FRANKLIN.
    No. 2013-KA-1489.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 11, 2014.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, Parish of Orleans, New Orleans, LA, for Appellant/State of Louisiana.
    Kevin Vincent Boshea, Metairie, LA, for Defendant/Appellee.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge PAUL A. BONIN, Judge JOY COSSICH LOBRANO).
   PAUL A. BONIN, Judge.

_JjThe district attorney appeals the trial judge’s decision to quash the bill of information charging Herman Franklin with public payroll fraud. While employed as an officer with the New Orleans Police Department, Mr. Franklin also performed private duty work for Walgreens. Following his initial arrest but prior to the institution of the instant formal charges, Mr. Franklin was accepted into the former district attorney’s pre-trial diversion program and successfully completed that program under the supervision of the succeeding, now-current district attorney.

Despite the resultant “dismissal” of the charges, the successor district attorney later resuscitated the investigation of Mr. Franklin and, after concluding that his payroll transgressions were more extensive than initially discovered, instituted the instant prosecution. Mr. Franklin subsequently moved to quash this bill of information, claiming that the district attorney was precluded from instituting these formal charges by principles of contract law as such action contravened their prior agreement that he would not be prosecuted. At the [^conclusion of an evidentiary hearing, the trial judge, finding that the district attorney was “hiding the ball” and that “[a] deal is a deal,” sustained the motion and quashed the bill of information.

We review the trial judge’s ruling under an abuse-of-discretion standard and decline to disturb his finding that a binding agreement existed between Mr. Franklin and the former district attorney. That agreement provided that, if Mr. Franklin successfully completed the district attorney’s pre-trial diversion program, no prosecution for public payroll fraud would be instituted. After Mr. Franklin fulfilled that condition, the current district attorney breached their agreement by instituting the instant prosecution, entitling Mr. Franklin to seek judicial enforcement by quashal of the bill of information.

Accordingly, we hold that the trial judge did not abuse his discretion and affirm his decision to sustain Mr. Franklin’s motion to quash and dismiss the underlying charges. We explain our decision in greater detail below.

I

In this Part we set forth the facts pertinent to our review of the trial judge’s ruling on Mr. Franklin’s motion to quash.

As previously stated, Mr. Franklin was employed as an officer with the NOPD. Apparently stemming from an anonymous complaint filed with the Public Integrity Bureau, the police initiated an internal investigation into Mr. Franklin’s private duty work with Walgreens. Sergeant Daniel Wharton prepared and submitted a report documenting the results of this investigation to the district | .¡attorney's office in February of 2008. The report indicated that public payroll fraud occurred from August 1st through September 25th of 2007 and identified several specific time periods, varying in length from hours to minutes, in which Mr. Franklin’s work overlapped in the payroll records of Wal-greens and the NOPD. During the district attorney’s subsequent screening procedures regarding this case, an internal memorandum was drafted finding that the NOPD’s payroll procedures at that time were “extremely flawed and did not accurately reflect the specific hours worked.” The memorandum continued: “[S]upervi-sors ... submit hours worked only as a recognition that the officer worked that particular day and do not reflect the actual hours of work.”

At that point, the District Attorney for Orleans Parish, Eddie Jordan, chose not to pursue formal charges for public payroll fraud and instead allowed Mr. Franklin to enter into his pre-trial diversion program. On February 6, 2009, after Leon Cannizza-ro, Jr. had succeeded Mr. Jordan, the district attorney’s office issued a letter to Mr. Franklin which, without reservation, read: “Congratulations. You have successfully completed the Diversionary Program of the District Attorney’s Office. The Office will now dismiss the case.” The letter specifically referenced La. R.S. 14:138, but did not contain any limiting language or conditions as to when the offenses covered by this agreement occurred.

Eight months later, on November 10, 2009, the district attorney ordered Lieutenant James Wiloem to investigate further into this matter. After examining Mr. Franklin’s 2007 payroll records, Lieutenant Wiloem identified several Ladditional overlaps — none of which involved different employers or occurred after those incidences previously documented by Sergeant Wharton. On April 15, 2010, the district attorney, relying on this new investigation, filed a bill of information formally charging Mr. Franklin with committing public payroll fraud between January 1st and September 12th of 2007.

At an evidentiary hearing, Mr. Franklin’s counsel argued, “[T]here has to be some sort of rule of law that says when I ... complete a Diversionary Program that involves a specific allegation, and in this instance payroll fraud, and we complete it successfully, which we clearly did, then that ends the matter.” Defense counsel also informed the trial judge that Mr. Franklin had paid $575,000 in fees and restitution to the district attorney’s office in order to successfully complete the diversionary program. The assistant district attorney, responding to defense counsel’s argument “as being one of contract law that [we should be barred] from prosecuting him for these other crimes because he entered into Diversion,” contended, “[Mr. Franklin] entered into Diversion with regards to specific allegations for specific dates as a result of Sergeant Wharton’s report. The State has subsequently learned that the Defendant engaged in other criminal conduct ... that is the subject of this prosecution.” At the conclusion of this hearing, the trial judge granted Mr. Franklin’s motion to quash, finding that the district attorney was “hiding the ball” and that “[a] deal is a deal.”

II

In this Part we discuss the parameters of the district attorney’s prosecutorial discretion, which is vast but which has limits in the context of this and similar case.

|RThe district attorney has authority over every criminal prosecution instituted by the State of Louisiana in his district. See La. Const. art. 5, § 26(B), but see La.C.Cr.P. art. 61 (noting that the district attorney’s decision-making is “[s]ubject to the supervision of the attorney general, as provided in Article 62 ... ”). The bounds of this discretion extend to determinations of “whom, when, and how [the district attorney] shall prosecute.” La.C.Cr.P. art. 61 (emphasis added). See also Bd. of Comm’rs of Orleans Levee Dist. v. Connick, 94-3161, p. 14 (La.3/9/95), 654 So.2d 1073, 1080 (“The constitutional role of the district attorney is incipient to the criminal process; [the] decision to file charges in a court of criminal jurisdiction is the event which incites a trial court’s exercise of that jurisdiction.”). This authority also includes the “‘broad discretionary power’ not to institute a prosecution,” which can be exercised in numerous constitutionally-permissible ways. See State v. Hayes, 10-1538, p. 6 (La.App. 4 Cir. 9/1/11), 75 So.3d 8, 13 (emphasis added), quoting Briede v. Orleans Parish Dist. Attorney’s Office, 04-1773, p. 5 (La.App. 4 Cir. 6/22/05), 907 So.2d 790, 793.

The district attorney can choose not to obtain any concessions or conditions in return from a defendant by, for example, never instituting formal charges, dismissing an already-commenced prosecution by entering a nolle prosequi, or allowing the time limitations for the commencement of trial to expire. See La.C.Cr.P. arts. 382, 691, 578. The district attorney may also reach agreements with criminal defendants in which further prosecution or trial for a particular offense is forgone in exchange for the fulfillment of certain conditions by that defendant. These agreements are usually categorized as plea bargains or agreements not to | ¿prosecute. Plea bargains are agree-ments wherein defendants traditionally waive their right to plead not guilty to certain charges in exchange for possible or certain leniency in sentencing or other considerations. See Corbitt v. New Jersey, 439 U.S. 212, 223-224, 99 S.Ct. 492, 58 L.Ed.2d 466. See also La.C.Cr.P. art. 552. An agreement not to prosecute is generally formed when the district attorney offers to refrain from instituting prosecution for certain charges upon a defendant’s successful completion of a pre-trial diversion program. See State v. Cardon, 06-2305, p. 1 (La.1/12/07), 946 So.2d 171, 171-172 (per curiam); State v. Louis, 94-0761, pp. 10-11 (La.11/30/94), 645 So.2d 1144, 1149.

The conditions that a defendant must fulfill in order to complete a pre-trial diversion program may vary immensely, but those terms must be explicit and enumerated in the agreement. See, e.g., In re Bertucci, 08-1349, p. 2 (La.9/26/08), 990 So.2d 1275, 1276 (per curiam); In re An-sell, 00-2662, p. 1 (La.5/25/01), 788 So.2d 1172, 1172 n. 1 (per curiam). In determining the conditions of any agreement to divert a defendant from the processes of prosecution, the district attorney is at the outset of the agreement free of judicial interference or coercion. See State v. Thomas, 00-0129, p. 1 (La.1/26/01), 778 So.2d 1126, 1126-1127 (per curiam) (holding that a trial court lacks the authority to compel a defendant’s admission into a drug diversion probation program in the absence of a recommendation by the district attorney).

A defendant’s compliance with the terms and conditions established by the district attorney and provided for in the pre-trial diversion program ensures the district attorney’s reciprocal promise to refrain from or to no longer pursue prosecuting that defendant for a certain offense. See, e.g., Bertucci, 08-1349, p. 2, |7990 So.2d at 1276. See also State in the Interest of L.T., 09-1200 (La.App. 4 Cir. 2/3/10), 30 So.3d 1136.

These types of agreements are not only constitutionally-permissible, but have also been heralded as essential to the proper functioning of our justice system. See Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978), quoting Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962) (“Within the limits set by the legislature’s constitutionally valid definition of chargeable offenses, ‘the conscious exercise of some selectivity is not in itself a federal constitutional violation....’”); Santobello v. New York, 404 U.S. 257, 260, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971) (“The disposition of criminal charges by agreement between the prosecutor and the accused ... is an essential component of the administration of justice.... If every criminal charge were subjected to a full-scale trial, the States and the Federal Government would need to multiply by many times the number of judges and court facilities.”). Courts encourage the formation of these extra-judicial compacts. See id. at 260-261, 92 S.Ct. 495. We promote the use of these agreements by holding a defendant’s admission into a pre-trial diversion program interrupts the tolling of time in which the district attorney must commence trial under La.C.Cr.P. art. 578 so that the district attorney is not disadvantaged in commencing prosecution if the accused fails to successfully complete the diversionary program. See State v. Jones, 12-0653, p. 8 (La.App. 4 Cir. 2/6/13), 107 So.3d 1285, 1290; La.C.Cr.P. art. 579 A(2).

Upon a defendant’s fulfillment of the conditions contained in an agreement, however, the breadth of the previously-discussed prosecutorial discretion contracts significantly; the district attorney is obligated to comply with the terms of his agreement. See Id. at 262 (holding that these agreements “must be attended by safeguards to insure [sic] the defendant what . is reasonably due in the | scircumstances”); Cardon, 06-2305, p. 1-2, 946 So.2d at 171-172 (ruling that a trial judge may order the district attorney to refrain from instituting and pursuing prosecution after a defendant substantially complied with the terms contained in an agreement not to prosecute). The district attorney can thus be rendered bound to the terms of these agreements, and defendants may seek judicial enforcement upon the district attorney’s breach. This will be discussed further in Part IV, post.

Ill

In this Part we highlight that a motion to quash is the proper mechanism through which to seek judicial enforcement of an agreement not to prosecute. We then discuss the abuse-of-discretion standard with which we review the trial judge’s decision to grant this particular motion to quash.

A

We begin by examining whether judicial enforcement of an agreement not to prosecute is properly sought through the filing of 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. See State v. Clark, 12-1296, p. 3 (La.5/7/13), 117 So.3d 1246, 1249 (per curiam); State v. Franklin, 13-0488, p. 3 (La.App. 4 Cir. 10/9/13), 126 So.3d 663, 666. See also La.C.Cr.P. art. 531 (“All pleas or defenses raised before trial, other than mental incapacity to proceed, or pleas of ‘not guilty’ and of ‘not guilty and not guilty by reason of insanity,’ shall be urged by a motion to quash.”). Articles 532 and 534 of the Louisiana Code of Criminal Procedure set forth grounds upon which motions to quash bills of information may be based — the enforcement of agreements not to prosecute is not included. See La.C.Cr.P. arts. 532, 534. These statutorily-provided examples, however, are merely illustrative and far from exhaustive. See State v. Marcelin, 13-0893, p. 4 (La.App. 4 Cir. 12/18/13), 131 So.3d 427, 430, citing State v. Tanner, 425 So.2d 760, 762 (La. 1983).

In determining whether a given issue is properly raised through a motion to quash, a court should decide “whether ‘it is a defense which, if successful, requires dismissal of the ... bill of information regardless of the merits of the charge and which by its nature must be available before trial’.” Marcelin, 13-0893, p. 5, 131 So.3d at 430, citing State v. Reaves, 376 So.2d 136, 138 (La.1979) (internal punctuation omitted). Thus, we must undertake a two-part analysis. First, we must decide whether this plea is properly determined prior to a trial on the merits. Second, we must determine whether success on this motion mandates that the challenged bill of information be quashed and the underlying charges dismissed.

Mr. Franklin contends that judicial enforcement of this agreement not to prosecute was properly sought through the filing of a motion to quash. We agree. First, this matter should be considered prior to Mr. Franklin’s trial for public payroll fraud as rendering a decision on this motion does not reach the merits of that charge. Though factual findings must be made to properly rule on this motion, a judicial determination of this matter prior to trial is not precluded. See La.C.Cr.P. art. 537. Furthermore, a fact-finder could likely not consider this matter at trial as such considerations extend far beyond the scope of relevant argumentation. See La. C.Cr.P. art. 531; La. C.E. arts. 401, 402. Second, once the trial judge granted Mr. Franklin’s motion, the enforcement of that agreement not to prosecute required that the bill of information filed against Mr. Franklin be quashed. This stems from the nature of the agreement undertaken by the district attorney and the proper remedy for such obligations. This issue will be more thoroughly discussed in Part IV D, post.

ImThe Supreme Court has also endorsed the use of motions to quash to assert this defense. See Cardon, 06-2305, p. 2, 946 So.2d at 172 (remanding a case with orders to grant a defendant’s motion to quash a bill of information filed in connection with a criminal matter for which the defendant was previously placed in diversion); Louis, 94-0761, p. 1, 645 So.2d at 1145 (reviewing atrial judge’s denial of a defendant’s motion to quash seeking enforcement of an agreement to forgo prosecution). Thus, we hold that Mr. Franklin properly sought enforcement of the terms of his agreement with the district attorney through the filing of a motion to quash. After the trial judge granted Mr. Franklin’s motion, the district attorney properly sought our review of that adverse judgment through a motion for appeal. See La C.Cr.P. arts. 912 B (l), 914.

B

We next set forth the legal precepts that guide our review of the trial judge’s decision to grant this motion to quash.

We review trial judges’ rulings on motions to quash which involve determinations of mixed questions of law and fact under an abuse-of-discretion standard. See Hayes, 10-1538, p. 11, 75 So.3d at 15 (“A case-specific resolution by a trial judge of these fact-intensive countervailing considerations may be entitled to our deference under an abuse-of-discretion standard.”); State v. Tran, 12-1219, p. 2 (La.App. 4 Cir. 4/24/13), 115 So.3d 672, 673 n. 3. See, e.g., State v. Love, 00-3347, pp. 7-10 (La.5/23/03), 847 So.2d 1198, 1205-1207 (violation of the constitutional right to a speedy trial); State v. Batiste, 05-1571, pp. 8-9 (La.10/17/06), 939 So.2d 1245, 1251 (violation of the statutory right to a speedy trial); In Tran, 12-1219, p. 2, 115 So.3d at 673 (claiming a valid prescription for a substance after being charged with a violation of the Uniform Controlled Dangerous Substances Law). To determine whether an agreement not to prosecute bars the institution of prosecution for certain formal charges, a trial judge must first make findings of fact as to the terms of and the conditions surrounding that agreement and then apply those findings to principles of contract and constitutional law. See, e.g., Cardon, 06-2305, pp. 1-2, 946 So.2d at 171-172; Louis, 94-0761, pp. 2-7, 645 So.2d at 1145-1148. Thus, a proper ruling on this issue necessitates the determination of a mixed question of law and fact, and, as such, we review the trial judge’s ruling on this motion to quash under an abuse-of-discretion standard.

In our review, we give great deference to findings of fact made by the trial judge while ruling on a petitioner’s motion to quash. We will “not overturn those findings unless there is no evidence to support [them].” State v. Wells, 08-2262, p. 4 (La.7/6/10), 45 So.3d 577, 580 (emphasis added), but see State v. Byrd, 96-2302, p. 18 (La.3/13/98), 708 So.2d 401, 411; La.C.Cr.P. art. 531(holding that, when ruling on a motion to quash, findings of fact may reach issues properly raised pre-trial, but not defenses on the merits of the pending charge). Our extremely-heightened deference stems from the constitutional limitation on our appellate jurisdiction: “In criminal cases [an appellate court’s] jurisdiction extends only to questions of law.” La. Const, art. 5, § 10(B). This limited scope of review also aligns with the “complementary role of trial courts and appellate courts,” Love, 00-3347, p. 9, 847 So.2d at 1206, because trial judges have the unique “opportunity to | ^observe the witnesses and weigh the credibility of their testimony.” Wells, 08-2262, p. 5, 45 So.3d at 581.

We then review the trial judge’s application of those factual findings to principles of law. A trial court necessarily abuses its discretion if its ruling is based on an erroneous view or application of the law. See Cooter & Gell v. Hartmax Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990). See also 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”) (internal punctuation omitted). In that instance, the trial judge’s ruling is not entitled to our deference. See State v. Dillon, 11-0188, p. 4 (La.App. 4 Cir. 8/24/11), 72 So.3d 473, 476.

IV

In this Part we review the trial judge’s decision to grant Mr. Franklin’s motion to quash. We find the trial judge correctly held that a binding agreement existed between the parties, that the terms of that agreement precluded the institution of the instant prosecution, that the district attorney breached that agreement, and that the proper remedy for enforcing the terms of that agreement was to grant Mr. Franklin’s motion to quash. As such, we necessarily conclude that the trial judge did not abuse his discretion.

In reviewing these types of claims, we generally refer by analogy to commercial contract principles. See Ricketts v. Adamson, 483 U.S. 1, 16, 107 S.Ct. 2680, 97 L.Ed.2d 1 (1987) (“[T]he law of commercial contract may in some cases prove useful as an analogy ... because plea agreements are constitutional contracts .... The values that underlie commercial contract law, and that govern the relations between economic actors, are not coextensive with those that underlie the Due Process Clause, and Iathat govern relations between criminal defendants and the State. Unlike some commercial contracts, plea agreements must be construed in light of the rights and obligations created by the Constitution.”); Cardon, 06-2305, p. 1, 946 So.2d at 171, quoting State v. Givens, 99-3518, p. 14 (La.1/17/01), 776 So.2d 443, 455 (“The validity of an agreement not to prosecute is generally determined under contract principles ‘while recognizing at the same time that a criminal defendant’s constitutional rights to fairness may be broader than his or her rights under contract law.’”). See also State v. Caminita, 411 So.2d 13, 16 (La.1982) (“[T]he traditional law of contracts guides educated expectations of fairness in any negotiation and can be useful by analogy in weighing claims of denial of due process_”). Thus, we utilize these principles to determine whether the trial judge abused his discretion in finding that an agreement existed, that its scope precluded the institution of the instant prosecution, that a breach of the agreement occurred, and that the legally correct remedy for that breach was to quash the bill of information and dismiss all pending charges.

A

We begin by examining whether an agreement not to prosecute was formed between Mr. Franklin and the district attorney.

As previously mentioned, we review relevant principles of contract law to apply by analogy. A contract is created when all parties consent to an agreement for a lawful cause. See La. Civil Code art. 1927 (“A contract is formed by the consent of the parties established through offer and acceptance.”); La. Civil Code art. 1967 (“Cause is the reason why a party obligates himself.”). See also La. Civil Code arts.1906, 1966, 1968. It is undisputed that both Mr. Franklin and the former district attorney consented to this agreement not to prosecute. The assistant district |14attorney conceded this at the evi-dentiary hearing, and the letter issued from that office to Mr. Franklin supports this notion. The trial judge also found that Mr. Franklin proved the existence of this agreement. See La. Civil Code art. 1831; Givens, 99-3518, p. 15, 776 So.2d at 455 (“The party demanding performance of a contract has the burden of proving its existence.”). Finally, the “cause” of these types of agreements has been held lawful. See Cardon, 06-2305, pp. 1-2, 946 So.2d at 171-72. Thus, we conclude that a binding agreement not to prosecute was properly formed between Mr. Franklin and the district attorney.

As the formation and existence of this agreement are undisputed, the district attorney could only claim that his consent should be vitiated by his own unilateral error. See La. Civil Code art. 2029 (“A contract is null when the requirements for its formation have not been met.”); La. Civil Code art. 1948 (“Consent may be vitiated by error...See also State v. Nall, 379 So.2d 731, 733 (La.1980). In order to nullify this agreement, the district attorney would have to establish that but for this error as to the extent of Mr. Franklin’s transgression, Mr. Franklin would not have been admitted into the pretrial diversion program. See La. Civil Code art. 1949 (“Error vitiates consent only when it concerns a cause without which the obligation would not have been incurred and that cause was known or should have been known to the other party.”); La. Civil Code art. 1950 (“Error may concern a cause when it bears on the nature of the contract ... or the person or the qualities of the other party ... or any other circumstance that the parties regarded, or should in good faith have regarded, as a cause of the obligation.”).

But here, error-in-the-cause could not be found for two reasons. First, the district attorney failed to raise this argument at the evidentiary hearing or in his assignments of error in briefing on appeal. See La.C.Cr.P. art. 920(1). Second and | TSsubstantively, the district attorney cannot prove that his unilateral error vitiated his consent and that this agreement, as a result, should be rescinded. See La. Civil Code art. 1831; Peironnet v. Matador Res. Co., 12-2292, p. 25 (La.6/28/13), 144 So.3d 791, 807. The district attorney is charged with the authority to determine how to prosecute defendants in his district. See La.C.Cr.P. art. 61. With this authority, comes the responsibility to ensure that criminal investigators are thorough and comprehensive. Should an error occur, the district attorney, at minimum, is required to show that the error affected the cause of the agreement and that Mr. Franklin knew or should have known that the matter affected by that error was the cause of the agreement for the district attorney. See La Civil Code art. 1949.

The district attorney did not show that the extent of public payroll fraud committed by Mr. Franklin, when including the additional overlaps discovered by Lieutenant Wiloem, would have made Mr. Franklin ineligible for admission into the pretrial diversion program. See Louis, 94-0761, pp. 11-12, 645 So.2d at 1150 (noting that the district attorney bears the burden of showing that a defendant’s continued involvement in illicit activity constituted a breach of an agreement not to prosecute); State v. Kenniston, 07-0849, p. 7 (La.App. 4 Cir. 1/16/08), 976 So.2d 226, 230 (stating that the defendant was ineligible for admission into a diversionary program due to the amount of money at issue in a prosecution for a violation of La. R.S. 14:202). Here, the district attorney made no such showing that 11fiis predecessor or even he would have excluded Mr. Franklin from participation in the diversionary program on account of the pre-diversion conduct of Mr. Franklin.

We find that the trial judge did not abuse his discretion when he found that the district attorney and Mr. Franklin agreed that Mr. Franklin would not be prosecuted for payroll fraud if he successfully completed the diversionary program.

B

We next review the trial judge’s determination that the institution of prosecution for the instant charges was precluded by the terms of the agreement.

In order to properly rule on this motion to quash, the trial judge first made factual findings as to the contents of the terms of this agreement. While the trial judge did not express those findings, the terms of the agreement are clear from the record: If Mr. Franklin successfully completed the pre-trial diversion program, the district attorney would refrain from instituting prosecution against Mr. Franklin for public payroll fraud. The substance of this agreement conforms to the general form of agreements not to prosecute. See Cardon, 06-2305, p. 1, 946 So.2d at 172; Louis, 94-0761, pp. 10-11, 645 So.2d at 1149. See, e.g., Bertucci, 08-1349, p. 2, 990 So.2d at 1276 (“The pre-trial diversion agreement further provided that if respondent complied with all the terms and conditions thereof, he would not be prosecuted for the offense set forth in the bill of information.”); Ansell, 00-2662, p. 1, 788 So.2d at 1173 n. 1. The trial judge then ruled that the district attorney was precluded from instituting the instant prosecution, finding that “a deal is a deal” and, thus, that Mr. Franklin’s other prior acts of public payroll fraud fell within the scope of that agreement.

|l7On appeal, the district attorney does not claim that- Mr. Franklin committed public payroll fraud after the formation of their agreement or with any additional employers. In fact, the investigation by Lieutenant Wiloem found no evidence of recent acts of public payroll fraud or transgressions involving any other employers. Instead, the current district attorney claims that the pre-trial diversion agreement should be construed to include only those dates of public payroll fraud found by Sergeant Wharton and that the additional overlaps unearthed by Lieutenant Wiloem form the basis of a new prosecution. We disagree.

The agreement not to prosecute was not date, but offense-specific. The letter issued to Mr. Franklin by the current district attorney’s office read: “Congratulations. You have successfully completed the Diversionary Program of the District Attorney’s Office. The Office will now dismiss the case.” As previously mentioned, this letter specifically referenced the statute defining and punishing public payroll fraud, La. R.S. 14:138, but did not contain any limiting language or conditions as to the time period of the relevant offenses. This ambiguity must be clarified.

In resolving this matter, we refer by analogy to the Civil Code articles governing the interpretation of contracts. See La Civil Code arts. 2045-2057. When interpreting a contract, we should first attempt to ascertain “the common intent of the parties,” La. Civil Code art. 2045, and to regulate “only those things it appears the parties intended to include.” La. Civil Code art. 2051. As both Articles 2045 and 2051 require a determination of the parties’ intent, which is precisely the issue in dispute and the most unclear in this case, we instead examine other articles to find the rule most applicable to this case.

11sAs the documents evidencing Mr. Franklin’s admission into and completion of the pre-trial diversion program were generated by the district attorney’s office, we interpret any ambiguity contained in those documents’ terms in favor of the party that did not furnish the text — Mr. Franklin. See La. Civil Code art. 2056 (“In case of doubt that cannot otherwise be resolved, a provision in a contract must be interpreted against the party who furnished its text.”). The former district attorney bore the duty to clarify the terms of this agreement not to prosecute and the current district attorney to understand the parameters of that agreement. See Santobello, 404 U.S. at 262, 92 S.Ct. 495 (replacement of one prosecutor with another does not justify failure to abide by agreement). The agreement referenced only the specific offense for which the district attorney would refrain from prosecuting Mr. Franklin, but failed to set forth the time parameters for the offenses included in this agreement. We interpret the ambiguity in this agreement in favor of Mr. Franklin and find that the district attorney was precluded by the terms of this agreement from instituting prosecution against Mr. Franklin for his prior acts of public payroll fraud. See Cardon, 06-2305, p. 1, 946 So.2d at 172 (Noting, in a case where “[t]he defendant did not violate the law anew or participate in new criminal conduct after he signed the agreement not to prosecute”, that language in an agreement not to prosecute prohibiting the commission of “new” offenses is ambiguous and “must be construed against the District Attorney’s office which drafted its provisions,” thus restraining the district attorney from pursuing further prosecution); Louis, 94-0761, p. 12, 645 So.2d at 1150. Here, the illicit conduct discovered by the investigations of Sergeant Wharton and Lieutenant Wiloem both involved the same employers and occurred in the same calendar year. None of the newly-discovered violations occurred after Mr. Franklin’s acceptance into the pre-trial diversion program. The trial judge’s | ^interpretation that these acts were included in the terms of this agreement was reasonable and rendered the agreement effective. See La. Civil Code art. 2049.

Thus, we find that the trial judge did not abuse his discretion in finding the scope of this agreement not to prosecute included Mr. Franklin’s other transgressions involving the same employer which preceded his acceptance into the diversionary program.

C

In this Part we analyze the trial judge’s holding that the district attorney breached the agreement not to prosecute by instituting the instant prosecution.

In order to determine whether a breach occurred, we must first understand what constituted compliance. In their agreement, the district attorney agreed to refrain from instituting prosecution for public payroll fraud if Mr. Franklin successfully completed the pretrial diversion program. Their agreement should be interpreted as an onerous, bilateral contract subject to a suspensive condition. See La. Civil Code art. 1909 (“A contract is onerous when each of the parties obtains an advantage in exchange for his obligation.”); La. Civil Code art. 1908 (“A contract is bilateral, or synallag-matic, when the parties obligate themselves reciprocally, so that the obligation of each party is correlative to the obligation of the other.”); La. Civil Code art. 1767 (A contract is subject to a suspen-sive condition “[i]f the obligation may not be enforced until the uncertain event occurs ... ”). Upon the fulfillment of that suspensive condition, the State then became bound to perform an “obligation not to do.” See La. Civil Code arts.1983, 1987.

The suspensive condition in this agreement was Mr. Franklin’s successful completion of the diversionary program. See, e.g., Louis, 94-0761, p. 11, 645 Soj2d20 at 1149. The district attorney concedes that this condition occurred when Mr. Franklin successfully completed that program, and the trial judge clearly found that Mr. Franklin had proven his own full and substantial compliance with the terms of this agreement. Thus, after Mr. Franklin fulfilled that condition, the obligation “not to do” became enforceable, and the district attorney, as obligor, was bound to refrain from instituting prosecution against Mr. Franklin, the obligee, for public payroll fraud as promised. See id., 94-0761, p. 11, 645 So.2d at 1149-1150 (The agreement not to prosecute “was not enforceable until the occurrence of the uncertain event which was a suspensive condition of the contract.... Considerations of constitutional fairness generally come into play after the formation of an agreement not to prosecute, and generally involve the performance of the defendant’s obligations under the agreement”). See also La. Civil Code art. 1767; La. Civil Code art. 1983 (requiring performance of contracts in good faith).

As a result of Mr. Franklin’s performance, the district attorney initially complied with the terms of this agreement and, in response, “dismissed the case,” thus refraining from instituting prosecution. Subsequent to this, however, the district attorney resuscitated the investigation into Mr. Franklin, instituted formal prosecution for charges included in the scope of that agreement not to prosecute, and breached the agreement previously struck with Mr. Franklin. Non-compliance with the terms of these agreements undermines the trust that is essential to the proper functioning of our system of justice. See State v. Tate, 185 La. 1006, 171 So. 108, 112 (1936) (“The district attorney is a quasi judicial officer. He represents the State, and the State demands no victims. It seeks justice only, equal and impartial justice....”); State v. Hamilton, 96-0807, p. 8 (La.App. 4 Cir. 6/7/96), 677 So.2d 539, 543 (“When, as here, promises are broken, the honor of the system is at stake |⅞1 along with public confidence in the fair and reliable administration of justice. The integrity of the process demands that all participants in this process be clear and reliably dependable in their commitments and promises-”). Thus, we hold that the trial judge, after finding the instant prosecution precluded, did not abuse his discretion in finding that the district attorney breached its agreement not to prosecute Mr. Franklin.

D

Lastly, we determine whether the trial judge abused his discretion by granting Mr. Franklin’s motion to quash the bill of information and dismissing the charges of public payroll fraud.

As previously-stated, the decision whether to admit a defendant into a pretrial diversion program is solely within the discretion of the district attorney as part of his authority not to institute prosecution. See La. Const. art. 5, § 26(B); La.C.Cr.P. art. 61; Hayes, 10-1538, p. 6, 75 So.3d at 13. As prosecution is generally not instituted, the implementation of these agreements is not usually overseen by the district courts as the jurisdiction of those courts has not been invoked. See La. Const. art. 5, § 16(A); Connick, 94-3161, p. 14, 654 So.2d at 1080; La.C.Cr.P. arts. 381-386. Thus, these agreements are traditionally administered and overseen extra-judicially.

Judicial enforcement only becomes necessary after the defendant has successfully complied with its terms of an agreement not to prosecute and the district attorney subsequently breaches. See Cardon, 06-2305, p. 1-2, 946 So.2d at 171-172. In these instances, a remedy must be provided to the defendant harmed by the district attorney’s breach. Louis, 94-0761, p. 11, 645 So.2d at 1149-1150; Santobello, 404 U.S. at 262, 92 S.Ct. 495.

| a?The proper remedy for the breach of the terms of these agreements differs slightly from the remedy supplied for violations of the terms of a plea bargain. In the context of plea bargains, usually one of two remedies is offered to the criminal defendant. First, a defendant may demand specific performance of the district attorney’s promise if the defendant can show that the parties reached an agreement, that the defendant performed, and that, in performing, the defendant relinquished an fundamental right. See State v. Givens, 99-3518, p. 15 (La.1/17/01), 776 So.2d 443, 455. A defendant may demand specific performance of the state’s promise if he can show that the parties reached an agreement, that he performed his part of the agreement, and that in doing so, he relinquished a fundamental right. See Louis, 94-0761, p. 9-10, 645 So.2d at 1149-1150. Second, the trial judge can allow for the defendant to rescind his guilty plea and proceed to trial. See State v. Trahan, 99-3470, p. 3 (La.10/5/01), 797 So.2d 38, 40. See also Santobello, 404 U.S. at 262-263, 92 S.Ct. 495 (setting forth these remedies in the context of a plea bargain).

The proper remedy when a district attorney breaches the terms of an agreement not to prosecute can be determined by examining the nature of the obligation. In the context of agreements not to prosecute, the district attorney’s performance is generally conditioned upon the defendant’s successful completion of the pre-trial diversion program. See Louis, 94-0761, p. 11, 645 So.2d at 1149-1150. Upon the occurrence of the suspensive condition in an agreement, i.e. the defendant’s successful completion of the pre-trial diversion program, the district attorney is bound to fulfill his “obligation not to do” and thus refrain from instituting or continuing prosecution against the defendant. The district attorney, as an obligor, “may be restrained from doing anything in violation of an obligation | mnot to do.” La. Civil Code art. 1987 (permitting in the civil context the right to injunctive relief). See, Cardon, 06-2305, pp. 1-2, 946 So.2d at 171-172.

In the context of criminal prosecutions, the proper means of restraining or enjoining the institution or continuance of a prosecution is to sustain the defendant’s motion to quash and dismiss the underlying charges. By sustaining a motion to quash, a trial judge is restraining any continued pursuit of prosecution for the charges contained in that bill of information. Thus, in the event that a trial judge finds that the district attorney subsequently instituted, re-instituted, or pursued the charges pending against a criminal defendant following that defendant’s successful completion of the pre-trial diversion program, a trial judge ensures the district attorney’s specific performance of his obligation by sustaining the motion to quash. See, e.g., Cardon, 06-2305, p. 2, 946 So.2d at 172. The trial judge in this case did just that. After holding that the district attorney had breached his agreement not to prosecute with the defendant, the trial judge, stating that “a deal is a deal,” granted Mr. Franklin’s motion to quash. Accordingly, we find no abuse of discretion in the trial judge’s decision to grant this motion to quash the bill of information.

DECREE

The trial judge’s complained-of ruling which sustained Herman Franklin’s motion to quash this bill of information, dismissed the charge of public payroll fraud, and discharged the defendant is affirmed.

AFFIRMED.

BAGNERIS, J., concurs in the result.

LOB RANO, J., dissents with reasons.

LOBRANO, J.,

dissents with reasons.

hi respectfully dissent. I find that the trial court erred in granting the defendant’s motion to quash the bill of information, dismissing the charge against the defendant. I would reverse the trial court’s ruling and remand the case for further proceedings.

In his written motion to quash and at the contradictory hearing, defendant claimed that institution of the formal charge of payroll fraud against him violated his constitutional right against being twice placed in jeopardy. • See U.S. Const, amend. VI; La. Const, art. 1, § 15. The majority opinion pretermits the double jeopardy issue and focuses on the agreement entered into between the District Attorney’s Office and the defendant that allowed him to enter and complete a pretrial diversion program to avoid prosecution on public payroll fraud. However, the actual agreement was never introduced into evidence at the contradictory hearing. Without the agreement, there was no basis for the trial court to conclude the District Attorney breached the agreement by instituting the instant prosecution.

I believe the actual issue is whether the defendant was ever placed in jeopardy for the alleged offense of public payroll fraud.

| ?“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, 95-61 (La.7/2/96), 676 So.2d 1068, 1069.

Double jeopardy is defined in La.C.Cr.P. art. 591 as:

No person shall be twice put in jeopardy of life or liberty for the same offense, except, when on his own motion, a new trial has been granted or judgment has been arrested, or where there has been a mistrial legally ordered under the provisions of Article 775 or ordered with the express consent of the defendant.

La.C.Cr.P. art. 592 sets forth when double jeopardy begins. It provides:

When a defendant pleads not guilty and is tried by jury, jeopardy begins when the jury panel is sworn pursuant to Article 790. When a defendant pleads not guilty, and is tried without a jury, jeopardy begins when the first witness is sworn at the trial on the merits. When a defendant pleads guilty, jeopardy begins when a valid sentence is imposed.

A motion to quash a bill of information may be based on the ground that trial for the offense charged would constitute double jeopardy. See La.C.Cr.P. art. 532(6).

In State v. Daigle, 344 So.2d 1380, 1388 (La.1977), the Louisiana Supreme court held that “jeopardy does not attach until the first witness is sworn at the trial on the merits.” In State v. Cloud, 2006-877 (La.App. 3 Cir. 12/13/06), 946 So.2d 265, 268, the Third Circuit, citing La.C.Cr.P. art. 592, held that “the defendant was not placed in double jeopardy by his subsequent trial on the previously filed charges and those that had been previously dismissed, since jeopardy never attached in the first place.” Additionally, in Mares v. Glasgow, 219 So.2d 19, 20 |s(La.App. 4th Cir.1969), this Court held that “[a] nolle prosequi filed by the District Attorney did not have the effect of barring further prosecution” in the ease citing La.C.Cr.P. art. 693.

The formal bill of information in this case alleged that the defendant committed numerous instances of public payroll fraud while he was employed by the NOPD and Walgreens from August 1, 2007 through September 25, 2007. James Wiloem, an investigator with the Orleans Parish District Attorney’s Office testified at the motion to quash hearing that he was asked to conduct an investigation into the payroll fraud allegations involving the defendant. After reviewing the police report submitted by the NOPD Internal Affairs or Public Integrity Bureau and Walgreens’ payroll records, Wiloem discovered that the police report failed to cover twenty-two additional occurrences of alleged payroll fraud by the defendant. The State claims these additional occurrences of alleged payroll fraud were not covered by the diversion program.

Nothing in the record before us indicates that the State had filed the formal bill of information against the defendant or that a trial date had been scheduled or that a jury had been sworn when the defendant entered into the agreement with the District Attorney’s Office to participate in the pre-trial diversion program. Although the State refused the charge against the defendant after he successfully completed the diversion program, the State was not barred from subsequently filing that charge since jeopardy never attached in the first place. See Mares, 219 So.2d at 20.

[/‘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. 9 (La.10/17/06), 939 So.2d 1245, 1252. After reviewing the record, I find the trial court abused its discretion in granting the defendant’s motion to quash the bill of information. I would reverse the trial court’s ruling and remand the matter for further proceedings.

      . Mr. Franklin also claimed that the institution of this formal charge violated his constitutional right against being twice placed in jeopardy. See U.S. Const, amend. 5; La. Const, art. 1, § 15. Because the trial judge granted relief on another ground and we affirm his ruling on that ground, we pretermit a discussion of this issue.

      . Due to the sparse factual record in these proceedings, we have included some background (but not evidentiary) facts gleaned from our opinion in Franklin v. Dep’t of Police, unpub., 10-1581 (La.App. 4 Cir. 4/6/11), 2011 WL 9165414, in which Mr. Franklin appealed the New Orleans Civil Service Commission’s decision regarding the proper employment discipline for this matter.

      . La. R.S. 14:138, in relevant part, provides: “Public payroll fraud is committed when ... [a]ny person shall knowingly receive any payment or compensation, or knowingly permit his name to be carried on any employment list or payroll for any payment or compensation from the state, for services not actually rendered by himself, or for services grossly inadequate for the payment or compensation received or to be received according to such employment list or payroll_” La. R.S. 14:138 A(l).

      . La.C.Cr.P. art. 62 A states: "The attorney general shall exercise supervision over all district attorneys in the state.”

      . In contrast, we apply a de novo standard of review when reviewing rulings on motions to quash involving solely legal issues. See State v. Hamdan, 12-1986, p. 6 (La.3/19/13), 112 So.3d 812, 816; State v. Lawson, 13-0812, p. 6 (La.App. 4 Cir. 11/20/13), 129 So.3d 792, 796 n. 3.

      . A district attorney, because of education and experience, would have a difficult burden in convincing a court that his consent to enter into a diversionary agreement was vitiated by error. See Peironnet, 12-2292, p. 25, 144 So.3d at 814.

      . La.C.Cr.P. art. 693 provides: Dismissal by the district attorney of an indictment or of a count of an indictment, discharges that particular indictment or count. The dismissal is not a bar to a subsequent prosecution, except that: (1) A dismissal entered without the defendant’s consent after the first witness is sworn at the trial on the merits, shall operate as an acquittal and bar a subsequent prosecution for the charge dismissed; and (2) A dismissal entered after a city court conviction has been appealed to the district court for a trial de novo, shall operate as an acquittal and bar a subsequent prosecution for the charge dismissed.