author: DENNIS R. BAGNERIS, SR., Judge. McKAY, C.J.,

text:
    Kathleen Hill TILDEN and James Tilden v. BLANCA, L.L.C., 746 Tchoupitoulas, L.L.C., 752 Tchoupitoulas, L.L.C., and Essex Insurance Company.
    No. 2012-CA-1311.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 26, 2013.
    Mark A. Pivach, Pivach, Pivach, Hufft, Thriffiley & Nolan, L.L.C., Belle Chasse, LA, for Plaintiffs/Appellants, Kathleen Hill Tilden and James Tilden.
    André C. Gaudin, Richard C. Pavlick, Burglass & Tankersley, LLC, Metairie, LA, for Defendants/Appellees, Blanca, L.L.C. and Essex Insurance Company.
    (Court composed of Chief Judge JAMES F. McKAY, III, Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE).
   DENNIS R. BAGNERIS, SR., Judge.

_[iThis matter involves a slip and fall accident that happened at Tommy’s Cuisine Restaurant. Plaintiffs, Kathleen Hill Tilden and James Tilden, appeal the trial court judgment in favor of defendants, Blanca, L.L.C., 746 Tchouptioulas, L.L.C., 752 Tchoupitoulas, L.L.C., and Essex Insurance Company (collectively, “Tommy’s”). Finding that plaintiffs failed to prove that a condition existed at Tommy’s that caused the fall, we affirm the judgment.

FACTS

Kathleen Tilden and some co-workers went to Tommy’s on December 12, 2006, for an office Christmas celebration. First, each had a drink in the wine bar section of the restaurant. Thereafter, the owner of the restaurant, Tommy Andrade, escorted Mrs. Tilden and her party to their table in the dining area. Upon entering the dining area, she fell, resulting in alleged injuries to her shoulder, back, and neck. The ensuing lawsuit filed by Mrs. Tilden and her husband, James Tilden, alleged that she slipped on a slippery, wet surface and asserted that the accident 1 ^occurred because Tommy’s failed to properly maintain its flooring and failed to warn of a hazardous condition.

Prior to trial, Tommy’s filed a Motion in Limine to exclude testimony from plaintiffs’ witnesses who claimed that after the accident, Tommy’s placed additional rugs on the floor and who also claimed to have seen a waiter slip. Tommy’s argued that the post-accident rugs testimony should be excluded because La. C.E. art. 407 provides that evidence of subsequent remedial measures is not admissible to prove negligence. Tommy’s also contended that the waiter’s alleged slip should be excluded because Mrs. Tilden’s witnesses differed as to where the waiter slipped and none could say what caused the slip.

The plaintiffs countered that the post-accident rugs testimony should be admitted under the exceptions to La. C.E. art. 407 that permit evidence of subsequent remedial measures for another purpose, such as proving ownership, authority, knowledge, control, or feasibility of precautionary measures, or for attacking credibility. In this case, plaintiffs contended that testimony as to the post-accident addition of the rugs should be admitted for the purpose of showing that 1) Tommy’s had knowledge that the floors of the 150 year-old restaurant had a tendency to “sweat” during weather changes; 2) establishing the feasibility of precautionary measures; and 3) attacking Tommy Andrade’s credibility because he had previously given deposition testimony that no rugs were placed on the floor after the accident. The plaintiffs added that the testimony regarding the “slipping” 1 ¡¡waiter should be admitted because it happened at substantially the same place, same time, and under similar conditions as Mrs. Tilden’s fall.

The trial court allowed the testimony regarding the waiter, noting that the alleged slip happened near in time and place to Mrs. Tilden’s slip and fall. On the other hand, the trial court excluded testimony regarding the post-accident placement of the rugs. It considered admitting the testimony to attack Mr. Andrade’s credibility based on plaintiffs’ assertion that Mr. An-drade had previously testified in his deposition that additional rugs were not used after the accident. Upon review, however, the trial court concluded that Mr. An-drade’s deposition testimony made no such clear-cut declaration. Instead, he testified that that he did not remember if he had asked any restaurant personnel to put out additional rugs after Mrs. Tilden’s fall. Accordingly, the trial court determined that any evidence as to the post-accident rug placement was inadmissible evidence of subsequent remedial measures.

At trial, Mrs. Tilden stated that it was humid and somewhat misting on the evening of the fall. In regards to the fall itself, she testified that she walked directly behind Mr. Andrade, followed by co-workers, Carolyn Guidry, Natasha Arabie, Lynn Scarengos, and her boss, Dr. Gizelle Richard. As she walked about two or three feet into the dining area, her feet went out from underneath her and she fell backwards. Mrs. Tilden did not identify any particular defect or condition of the floor that caused her to fall. She said she stayed with her party after the fall ¡¿because they had all ridden in one car together and she did not want to ruin the fun for everyone else.

Carolyn Guidry testified that it was somewhat rainy, very humid, and damp on the day of the accident. She was right behind Mrs. Tilden when she fell. She represented that when she helped Mrs. Tilden get to her feet, she felt that Mrs. Tilden’s shirt and pants were soaked and wet. Ms. Guidry first noticed that the floor looked shiny, wet, and damp after she sat down at their table. Ms. Guidry stated that when Mr. Andrade came to their table and gave Mrs. Tilden an ice pack, he told Mrs. Tilden that the restaurant was having trouble controlling the floor because of dampness. She added that she also saw a waiter, who was waiting on a table on the other side of their table and carrying a tray, lose his balance.

On cross-examination, Ms. Guidry acknowledged that she had been to Tommy’s about three or four times before the accident. On those occasions, she found that the restaurant was clean and well maintained; she never noticed any substances on the floor. Ms. Guidry also admitted that on the accident date, she never noticed anything slippery about the flooring before the -fall, Ms. Guidry verified that she did not touch the floor and admitted that she did not see any puddles or drops of water on the floor. She relayed that after the fall, the group tried to figure out what had happened. However, she never heard Mrs. Tilden offer any explanation as to why she fell. Ms. Guidry also conceded that she had previously testified in her deposition that she did not feel Mrs. Til-den’s clothes and | Bthat she did not remember the exact words that Mr. Andrade spoke to Mrs. Tilden when he came to their table.

Lynn Scarengos testified that she did not see the actual fall. After the fall, she inspected Mrs. Tilden’s shoes. However, she did not touch the floors. She also described that she saw a waiter, who was carrying a tray, slip. She claimed that she almost slipped in another part of the restaurant on a slight incline.

On cross-examination, Ms. Scarengos stated that when she previously visited Tommy’s, the restaurant was well-maintained. Ms. Scarengos testified that she did not notice that Mrs. Tilden’s clothes were wet. Ms. Scarengos admitted that she did not see any beads or puddles of water on the floor nor did she observe any sweating or condescension on the floor. She also did not see any moisture on Mrs. Tilden’s shoes or anything that would cause her to fall.

Tommy Andrade, the owner, testified that the restaurant is cleaned at the close of each business day. He said that he and his wait staff had a meeting in the dining area about an hour and a half before Mrs. Tilden’s fall. No one saw or reported a problem with the flooring. Mr. Andrade testified that as part of his owner’s responsibility to greet customers and to be aware of everything that is happening in the restaurant, he had walked the area where Mrs. Tilden fell about thirty or forty times before the fall. He said that the floor was not slippery. He stressed that none of his wait staff or other customers told him that the floor was slippery before the accident. Mr. Andrade did not think that Mrs. Til-den slipped; in his estimation, she seemed to have fainted. He said he tried to reach out to | fibreak her fall. Mr. Andrade denied telling Mrs. Tilden or anyone in her party that the restaurant was having trouble controlling its floors because of wetness or dampness. He stated that he complimented Mrs. Tilden and her party their meals out of a sense of customer service, not as any admission that the floor was defective. He declared that the floor was not sweating, shiny, or wet, and that the restaurant had no history of “sweating” floors. Mr. Andrade did not observe any wetness on Mrs. Tilden’s clothes.

Mr. Andrade reiterated on cross-examination that he was unaware of any “sweating” floor problem and that he was not familiar with the concept. He acknowledged that he had traversed the area where Mrs. Tilden fell numerous times before the fall and did not issue any warning as to the floor’s condition. He explained that he issued no warning because he did not observe any problem with the floor. He also was unaware of any previous slip and falls accidents at the restaurant.

At the conclusion of the trial, the jury assessed no fault against Tommy’s. The jury unanimously concluded that no condition at Tommy’s caused Mrs. Tilden’s fall. This appeal followed.

DISCUSSION

Plaintiffs argue on appeal that the trial court erred in excluding evidence regarding the placement of additional rugs after the accident. Plaintiffs contend that the evidence was admissible for the purpose of attacking the credibility of Mr. Andrade; they also represent that the placement of the additional rugs was not an 17excluded La. C.E. art. 407 subsequent remedial measure; but rather, was an admissible remedial measure. Plaintiffs suggest Tommy’s alleged practice of placing additional rugs on the floor as a safety measure to prevent slip and fall accidents had been employed before Mrs. Tilden’s fall. Howevei’, our review of the record shows plaintiffs’ assignments of error lack merit.

The general rule is that evidence of subsequent remedial measures is not admissible to prove negligence or culpable conduct. However, such evidence is admissible when offered for another purpose such as proving ownership, authority, knowledge, control, or feasibility of precautionary measures, or for attacking credibility. Jones v. Parish of Jefferson, 95-659, p. 6 (La.App. 5 Cir. 11/28/95), 665 So.2d 570, 578; see La. C.E. art. 407. With reference to plaintiffs’ claim that testimony regarding the placement of the rugs should have been admitted, we find no inconsistency between the deposition testimony cited by the parties and Mr. An-drade’s trial testimony to admit any post-accident rug testimony into evidence in order to attack Mr. Andrade’s credibility.

We also see no evidence to support plaintiffs’ claim that the placement of additional rugs was an established safety precaution used by Tommy’s before Mrs. Til-den’s fall. The trial record is devoid of testimony by Mr. Andrade or any other witnesses that discussed Tommy’s use of rugs before Mrs. Tilden’s fall. We simply do not know if the rugs were used for safety reasons, aesthetics, or a combination thereof.

|8The trial court is accorded vast discretion concerning the admission of evidence, and its discretion will not be reversed on appeal absent an abuse of that discretion. See O’Neill v. Thibodeaux, 97-1065, p. 12 (La.App. 3 Cir. 3/6/98), 709 So.2d 962, 969. Based on the record before us, we find that the trial court did not abuse its discretion in ruling that evidence of post-accident rug placement was inadmissible as a subsequent remedial measure. Notwithstanding, even had the trial court erred in deciding that the post-accident addition of the rugs was a subsequent remedial measure, plaintiffs’ assignments of error fail because they did not meet their burden of proof to show Tommy’s was at fault in causing Mrs. Tilden’s accident.

The burden of proof that must be met in claims against merchants is outlined in Louisiana Revised Statute 9:2800.6(B) as follows:

B. In a negligence claim brought against a merchant by a person lawfully on the merchant’s premises for damages as a result of an injury, death or loss sustained because of a fall due to a condition existing in or on a merchant’s premises, the claimant shall have the burden of proving, in addition to all other elements of his cause of action, all of the following:
(1) The condition presented an unreasonable risk of harm to the claimant and that the risk of harm was reasonably foreseeable.
(2) The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence.
(3) The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.

In the present matter, none of the plaintiffs’ witnesses, including Mrs. Tilden, could definitively identify what caused plaintiffs fall. Plaintiffs theorized in their briefs and arguments that the fall resulted from a sweating floor within an aging building; however, plaintiffs offered no proof in support of this theory. |flNeither Mrs. Tilden nor her co-workers inspected the floor after the fall. No one touched the floor; no one saw water or puddles or water on the floor. Plaintiffs presented no witnesses to show that Tommy’s had notice of any hazardous condition or that it had any history of sweating floors either before or after the accident. Instead, plaintiffs’ witnesses said that Tommy’s was clean and well-maintained prior to the accident. In short, plaintiffs did not meet their burden of proof as required by La. R.S. 9:2800.6.

Plaintiffs’ evidence or lack thereof supported the jury’s finding that no condition created by Tommy’s caused Mrs. Tilden’s fall. In deciding the effect of an erroneous ruling on the admissibility of evidence, the reviewing court must first determine whether the excluded evidence affected a substantial right of the complaining party. See La. C.E. art. 103. Absent such a showing, the excluded evidence amounts to harmless error. Midland Funding LLC v. Kelly, 2011-0659, pp. 7-8 (La.App. 4 Cir. 12/7/11), 81 So.3d 84, 89. In this case, plaintiffs made no such showing as they failed to prove that a condition at Tommy’s caused the fall. Hence, plaintiffs’ claims that the trial court improperly excluded evidence of post-accident rug placement lack relevancy and do not warrant reversal.

Wherefore, based on the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED

McKAY, C.J., dissents.

McKAY, C.J.,

dissents.

|¶1 respectfully dissent from the majority opinion. I would reverse the judgment of the trial court and remand this case for further proceedings.

Under Louisiana Code of Evidence Article 103, error may not be predicated upon a ruling which excludes evidence unless (1) a substantial right of a party is affected, and (2) the substance of the evidence was made known to the court by counsel. Although evidence of subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event under La.Code Evid. Art. 407, the article does not require the exclusion of evidence of subsequent measures when offered for the purpose of proving “ownership, authority, knowledge, control, or feasibility of precautionary measures,” or for attacking credibility.

In the instant case, we are dealing with a woman (Mrs. Tilden) who fell on the floor at a restaurant. What caused her to fall? The plaintiffs had three witnesses who would have testified that rugs were placed on the floor after Mrs. Tilden fell. However, the trial court excluded their testimony, but allowed the owner of the restaurant to testify concerning the condition of the floor. Thus, the trial court’s exclusion of evidence of subsequent remedial measures to impeach Mr. Andrade prevented the jury from weighing that evidence when it decided the |2cause of Mrs. Tilden’s fall. Accordingly, this exclusion of evidence affected the substantial rights of the plaintiffs.


source: Caselaw Access Project

author: TERRI F. LOVE, Judge.

license: Public Domain

text:
    CHURCH MUTUAL INSURANCE COMPANY and Trinity United Methodist Preschool v. Thelma DARDAR. Thelma Dardar v. Trinity Universal Methodist Preschool, et al.
    Nos. 2012-CA-0659, 2013-C-0037.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 26, 2013.
    Rehearing Denied Sept. 11, 2013.

      C. Ray Murry, Slidell, LA, for Defendant/Appellant, Thelma Dardar.
    Azelie Ziegler Shelby, Sarah K. Lunn, Racheal Bellermin, Shelby Law Firm, Baton Rouge, LA, for Plaintiff/Appellee, Trinity United Methodist Preschool and Church Mutual Insurance Company.
    Stephen Winston Glusman, Glusman, Broyles & Glusman, LLC, Baton Rouge, LA, Denis Paul Juge, Juge Napolitano Gu-ilbeau Ruli Frieman & Whitley, Metairie, LA, Amicus Curiae, Luba Casualty Insurance Company, et al.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE, Judge MADELEINE M. LANDRIEU).
   TERRI F. LOVE, Judge.

|, This appeal arises from a dispute as to whether a recipient of workers’ compensation benefits failed to comply with submitting to a second medical opinion and sanctions related thereto. The workers’ compensation judge found that the employee failed to submit to a second medical opinion. The workers’ compensation judge then ordered the employee to present at the doctor’s office for another appointment, to complete all of the medical forms required by the doctor, and suspended the employee’s medical benefits retroactively, from the date of the first appointment to the second appointment. The workers’ compensation judge conducted a second hearing wherein she sanctioned the employee’s attorney pursuant to La. C.C.P. art. 863. We convert the appeal regarding the motion to compel into an application for supervisory review and deny the writ, as that issue is moot. We further find that the trial court erred in granting the motion for sanctions against employee’s counsel because counsel was attempting to assert a legal right, which does not present an exceptional circumstance warranting the award of sanctions.

This Court consolidated a separate application for supervisory review filed by the employee seeking review of the workers’ compensation judge’s decision to Rapply La. R.S. 23:1203.1 retroactively. We find that the workers’ compensation judge erred in retroactively applying a substantive statute, grant the writ, and remand for further proceedings.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Thelma Dardar originally injured her back in a work-related accident on October 21,1999. The Office of Workers’ Compensation approved an indemnity settlement on January 30, 2008. Ms. Dardar’s rights to medical treatment remained ongoing after the settlement. Ms. Dardar received a letter from her employer regarding the scheduling of an appointment for a second medical opinion (“SMO”) with Dr. Alan Joseph in reference to her ongoing receipt of workers’ compensation medical benefits. Forms for authorization and release of confidential information (“Forms”) were also included with the letter. Following receipt of the letter, Ms. Dardar contacted Attorney C. Ray Murry, her previous counsel, who handled the settlement, to provide legal counsel regarding the new demand for an SMO.

Attorney Murry reviewed the Forms and redacted certain portions. He then instructed Ms. Dardar to execute the Forms and initial by the redactions. Once completed, Attorney Murry faxed the Forms to Dr. Joseph’s office prior to Ms. Dardar’s scheduled appointment. Ms. Dardar presented for her scheduled appointment with Dr. Joseph. However, due to the redactions in the Forms signed by Ms. Dardar, Dr. Joseph refused to see Ms. Dardar.

After Dr. Joseph refused to see Ms. Dardar, Trinity United Methodist Preschool (“Trinity”), Ms. Dardar’s employer, and Church Mutual Insurance Company (“Church”), the insurer of Trinity (collectively “Plaintiffs”), filed a Disputed Claim for Compensation, an LDOL-WC-1008, alleging that:

|s[c]laimant failed to execute requested documents from insurer’s choice of physician, Dr. Alan Joseph, as provided by his office. Due to this failure, claimant was not seen by Church Mutual’s choice of physician. Church requests the claimant be compelled to attend this examination, her benefits be suspended during any period of refusal and Church Mutual be reimbursed the cost of this appointment.

A motion to compel was also attached, in which Ms. Dardar’s redacted Forms were labeled as “tantamount to refusal.”

Ms. Dardar then filed a dilatory exception of prematurity, pursuant to La. R.S. 23:1314, as well as peremptory exceptions of no cause of action and no right of action. Ms. Dardar also filed a motion to dismiss the disputed claim and a motion for sanctions in the form of attorney’s fees.

Following a hearing, the workers’ compensation judge issued an interlocutory judgment granting the motion to compel and ordered that Ms. Dardar submit to an exam with Dr. Joseph and complete his Forms on January 20, 2012. The workers’ compensation judge also suspended Ms. Dardar’s medical workers’ compensation benefits retroactively from the date of the first scheduled appointment. Ms. Dar-dar’s motions to dismiss Church’s Motion to Compel and for sanctions, which sought reasonable expenses and attorney’s fees, were denied. Additionally, the workers’ compensation judge overruled Ms. Dar-dar’s exceptions of prematurity, no right of action, and no cause of action. Lastly, the workers’ compensation judge granted Trinity’s oral motion for sanctions and set the matter for a hearing. Ms. Dardar then filed a notice of appeal, on January 25, 2012, and a notice of intent to apply for supervisory writs, on January 27, 2012. The workers’ compensation judge denied Ms. Dardar’s motion for a stay.

|4The workers’ compensation judge conducted a hearing on Trinity’s oral motion for sanctions, pursuant to La. C.C.P. art. 863. On February 10, 2012, the motion was granted and the workers’ compensation judge ordered Attorney Murry to pay $3,300 in attorney’s fees and $250 in travel expenses. The workers’ compensation judge then stated that the judgment was final and appealable. Ms. Dardar and Attorney Murry filed a motion for a suspen-sive appeal from both the interlocutory judgment previously rendered and the judgment regarding the motion for sanctions on February 15, 2012.

STANDARD OF REVIEW

Legal questions are reviewed by appellate courts with the de novo standard of review. O’Dwyer v. Edwards, 08-1492, p. 3 (La.App. 4 Cir. 6/10/09), 15 So.3d 308, 310.

MOTION TO COMPEL/PREMATURI-TYINO CAUSE OF ACTION/NO RIGHT OF ACTION/MOTION TO DISMISS AND FOR SANCTIONS

Ms. Dardar asserts that the workers’ compensation judge erred in overruling her dilatory exception of prematurity, exception of no right of action, exception of no cause of action, and in granting Church’s Motion to Compel because the Disputed Claim for Compensation did not contain one of the enumerated reasons contained in La. R.S. 23:1314.

Procedural Posture

First, we must address the procedural posture of Ms. Dardar’s contention regarding the exceptions before this Court. The denial of an exception of prematurity, no right of action, no cause of action, and the granting of a motion to 15compel are all interlocutory judgments that are not subject to appeal. See Ganier v. Inglewood Homes, Inc., 06-0642, p. 2 (La.App. 4 Cir. 11/8/06), 944 So.2d 753, 755-56; Box v. French Mkt. Corp., 593 So.2d 836, 837 (La.App. 4th Cir.1992); Price v. Price, 03-272, p. 2 (La.App. 5 Cir. 6/19/03), 850 So.2d 860, 861. “The proper procedural vehicle to contest an interlocutory judgment that is not immediately appealable is an application for supervisory writ.” Ganier, 06-0642, p. 2, 944 So.2d at 755-56. “However, we have the authority to exercise our supervisory jurisdiction and, in the interest of justice, treat the appeal of this interlocutory judgment as an application for supervisory writ.” Ganier, 06-0642, p. 2, 944 So.2d at 756.

Ms. Dardar filed her notice of appeal and notice of intent to apply for supervisory writs within thirty days of the judgment. See Rule 4-3, Uniform Rules— Court of Appeal. Therefore, we will consider the merits of Ms. Dardar’s claims in the form of an application for supervisory review.

Merits

“[T]he dilatory exception merely retards the progress of the action.” La. C.C.P. art. 923. The exception of prematurity is a dilatory exception. La. C.C.P. art. 926. “If the dilatory exception pleading want of amicable demand is sustained, the judgment shall impose all court costs upon the plaintiff.” La. C.C.P. art. 933.

Ms. Dardar contends that the Disputed Claim for Compensation was filed prematurely, as it did not contain one of the enumerated reasons specified in La. R.S. 23:1314 as required at the time of filing. Ms. Dardar also filed the exceptions of no right of action and no cause of action.

La. R.S. 23:1314 mandates that one of the following four allegations be contained in the Disputed Claim for Compensation:

|fil) The employee or dependent is not being or has not been paid, and the employer has refused to pay, the maximum percentage of wages to which the petitioner is entitled under the Chapter; or
2) The employee has not been furnished the proper medical attention, or the employer or insurer has not paid for medical attention furnished; or
3) The employee has not been furnished copies of the report of examination made by the employer’s medical practitioners after written request therefore has been made under this Chapter; or
4) The employer or insurer has not paid penalties or attorney’s fees to which the employee or his dependent is entitled. The application for supervisory review

consolidated with the appeal contained the following substantive footnote regarding Church’s motion to compel and Ms. Dar-dar’s exceptions:

The SMO physician’s two-page Authorization for Release of Protected Health Information (PHI): (1) required Ms. Dardar to financially obligate herself to the cost of the examination even though it had been requested by the Insurer, in violation of the WCA; (2) expanded the scope of release of medical records beyond that permitted by the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), 42 U.S.C. § 1320d; and (3) required Ms. Dardar to accept medical treatment even though the SMO was for evaluation only, in violation of the WCA. In any event, the physician later withdrew his demand that Ms. Dardar agree to this language. (Emphasis added).

Additionally, Ms. Dardar admitted, in her response to this Court’s rule to show cause, that she “subsequently attended a medical examination with Dr. Joseph (after objectionable language was removed from the release presented to Ms. Dardar).”

“A matter is considered moot in a case when the rendition of the judgment can have no practical legal effect upon the existing controversy.” Cook v. Cook, 320 So.2d 612, 613 (La.App. 4th Cir.1975). “It is well established that courts will not rule on questions which become moot since the decree will render no 17useful purpose and can give no practical relief.” Id. See also Graves v. Louisiana Nat. Bank of Baton Rouge, 434 So.2d 1169, 1170 (La.App. 1st Cir.1983). This Court will not render advisory opinions. Council of City of New Orleans v. Sewerage And Water Bd. of New Orleans, 06-1989, p. 4 (La.4/11/07), 953 So.2d 798, 800, quoting St. Charles Parish School Board v. GAF Corp., 512 So.2d 1165 (La.1987), on reh’g.

Given the undisputed facts provided in the consolidated application for supervisory review and Ms. Dardar’s response to our rule to show cause, we find that Ms. Dardar’s assertions regarding Church’s Motion to Compel, the trial court’s order for her to submit to an examination with Dr. Joseph, the order for her signature on the Forms, the suspension of her right to medical compensation, and her Motion to Dismiss and for Sanctions no longer presents an existing controversy because Ms. Dardar has signed the Forms and seen Dr. Joseph. Also, reviewing the trial court’s overruling of Ms. Dardar’s exceptions of prematurity, no right of action, and no cause of action would grant no practical relief. Therefore, the issues are moot, and a decree would result in an advisory opinion regarding the interpretation of La. R.S. 23:1314. We deny Ms. Dardar’s claims that were converted to an application for supervisory review.

APPEAL ON SANCTIONS

Attorney Murry asserts that the trial court erroneously granted Church’s Motion for Sanctions and ordered him to pay $3,300 in attorney’s fees and $250 in travel expenses. Attorney Murry contends that Church’s Motion for Sanctions was retaliatory when the workers’ compensation judge denied Ms. Dardar’s Motion for Sanctions.

La. C.C.P. art. 863 provides, in pertinent part:

|SD. If, upon motion of any party or upon its own motion, the court determines that a certification has been made in violation of the provisions of this Article, the court shall impose upon the person who made the certification or the represented party, or both, an appropriate sanction which may include an order to pay to the other party the amount of the reasonable expenses incurred because of the filing of the pleading, including reasonable attorney fees.
E. A sanction authorized in Paragraph D shall be imposed only after a hearing at which any party or his counsel may present any evidence or argument relevant to the issue of imposition of the sanction.
G. If the court imposes a sanction, it shall describe the conduct determined to constitute a violation of the provisions of this Article and explain the basis for the sanction imposed.

“La.C.C.P. art. 863 imposes an obligation upon litigants and their counsel who sign a pleading to make an objectively reasonable inquiry into the facts and the law; subjective good faith will not satisfy the duty of reasonable inquiry.” Goldbach v. Atchley, 01-616, p. 21 (La.App. 5 Cir. 11/27/01), 801 So.2d 1217, 1228. “The imposition of sanctions is used only in exceptional circumstances, and when there is even the slightest justification for the assertion of a legal right, sanctions are not warranted.’ ” Capdeville v. Winn Dixie Store #1473, 07-1425, p. 5 (La.App. 3 Cir. 4/9/08), 981 So.2d 121, 125, quoting Curole v. Avondale Indus., Inc., 01-1808, p. 5 (La.App. 4 Cir. 10/17/01), 798 So.2d 319, 322. “The failure of a party to prevail on a claim does not justify the imposition of sanctions.” Id. “A trial court’s determination of whether to impose sanctions will not be reversed unless it is manifestly erroneous or clearly wrong.” Id., 01-616, p. 21, 801 So.2d at 1229.

The workers’ compensation judge stated, at the hearing on Church’s Motion for Sanctions:

What I’d like to focus on is, just so that everybody’s clear, the reason that I granted the Motion for the Sanctions and we’re here this morning it’s not so much the exceptions that were filed, it’s the Motion for Sanctions that you all filed against Ms. Shelby on her Rend. So, if that helps everybody kind of keep a better focus on the whole matter.
⅜ ⅝ ⅝ ⅛ ⅜ ⅝
What I’m trying to struggle with is and, you know, having dealt with you for as long as I have, the Motions for Sanctions that you filed when they clearly, in my opinion, had a right to get a second opinion under 1124.
That just to me seems like overkill and it almost seems like you’re confirming, yes, it was just so I could get paid.
I don’t find that that really makes it any better or it’s more of a justification under 863. To me it’s an even more egregious motivation to just flat out admit, well, it’s a medical dispute. I won’t get paid. I just want to make sure I get my costs offset.
And let me just note for the record, too, the finding under 863 is that, you know, again, not the exceptions that were filed in conjunction with the Motion to Compel, but on top of that it was the actual Motion for Sanctions that I didn’t feel was appropriate given the clear wording of Title 23, section 1124(B), which gives the employer the right to compel attendance at a second medical opinion. I didn’t feel that it was filed for any purpose other than, you know, I guess in your own words, was to kind of recoup your expenses that you wouldn’t ordinarily recoup from the client because we weren’t dealing with an indemnity claim and it was just simply a medical issue.
And for those reasons, I’m awarding sanctions under 863 and, again, the total is $3,550. And this will be a final ap-pealable judgment.

When there is the slightest justification for the assertion of a legal right, sanctions are not appropriate. According to the workers’ compensation judge’s statements, she ordered Attorney Murry to pay attorney’s fees and costs because he filed a separate Motion for Sanctions, which she did not find was warranted. However, Attorney Murry believed that Ms. Dardar tried to comply with Church’s request for a second medical opinion and that Church’s Motion to Compel was premature. Thus, his conduct does not present an exceptional circumstance, which would warrant sanctions. Therefore, we find that the trial court committed | mmanifest error in sanctioning Attorney Murry and reverse.

CONSOLIDATED WRIT FILED BY MS. DARDAR

Ms. Dardar contends that the trial court committed legal error by partially granting Church’s exception of prematurity as to Ms. Dardar’s claim for injections recommended by Dr. Rand Metoyer and by retroactively applying La. R.S. 23:1203.1. The workers’ compensation judge also ordered that the request for injections be resubmitted within thirty days according to requirements of La. R.S. 23:1203.1.

The workers’ compensation judge held that the version of La. R.S. 23:1203.1 in effect at the time of the request for medical treatment applied and ordered Ms. Dardar to “re-submit the request for injections to the payor on Form 1010 and to the Medical Director on Form 1009 within thirty days” in compliance therewith. Ms. Dardar asserts that the new guidelines for seeking medical benefits contained in La. R.S. 23:1203.1 do not apply because she was injured in 1999 and the settlement order regarding the payment of Ms. Dar-dar’s medical benefits was confected in 2008.

“[T]he general principle” is “that the law in effect at the time of the injury generally governs an action for workers’ compensation benefits.” Frith v. Riverwood, Inc., 04-1086, pp. 7-8 (La.1/19/05), 892 So.2d 7, 12-13. See also Bruno v. Harbert Int’l Inc., 593 So.2d 357, 360 (La.1992).

While the trial court found that the medical guidelines effective at the time of Ms. Dardar’s request for medical benefits applied, the analysis should have focused on the date of Ms. Dardar’s injury, October 21, 1999, and whether the new medical guidelines should be applied retroactively.

InThe Louisiana Supreme Court held that the determination of the retroactivity of a statute requires a “two-fold inquiry.” Cole v. Celotex Corp., 599 So.2d 1058, 1063 (La.1992). “First, we must ascertain whether in the enactment the legislature expressed its intent regarding retrospective or prospective application.” Id. If the legislature did not express its intent, “we must classify the enactment as substantive, procedural or interpretive.” Id. The Louisiana legislature did not expressly provide that the guidelines contained in La. R.S. 23:1203.1 would be applied retroactively. Therefore, we must determine whether the new provisions are substantive, procedural, or interpretive in nature.

“Substantive laws establish new rules, rights, and duties or change existing ones.” Segura v. Frank, 93-1271, 93-1401 (La.1/14/94), 630 So.2d 714, 723. “Procedural laws prescribe a method for enforcing a substantive right and relate to the form of the proceeding or the operation of the laws.” Id. “Interpretive laws merely establish the meaning the interpreted statute had from the time of its enactment.” Id.

We find that La. R.S. 23:1203.1, which contains guidelines that did not exist when Ms. Dardar was injured, creates and places rules, rights, and duties upon a claimant seeking reimbursement for recommended medical treatment. Thus, we find that the enactment of La. R.S. 23:1203.1 was substantive in nature. Therefore, it does not apply retroactively to Ms. Dardar’s rights acquired when she sustained her work-related injury in 1999. Accordingly, we grant the writ, reverse the ruling of the workers’ compensation judge, and remand for the consideration of attorney’s fees and penalties.

DECREE

For the above-mentioned reasons, we deny Ms. Dardar’s converted | ^application for supervisory review as moot. We find that the workers’ compensation judge erroneously sanctioned Attorney Murry and reverse. Lastly, we find that La. R.S. 23:1203.1 was not meant to apply retroactively and grant Ms. Dardar’s application for supervisory review.

WRIT DENIED IN PART; WRIT GRANTED IN PART; APPEAL REVERSED AND REMANDED

      . An exhibit filed with the consolidated application for supervisory review indicates that Ms. Dardar’s appointment with Dr. Joseph was rescheduled for March 6, 2012.

      . La. R.S. 23:1203.1, a provision regarding the Medical Treatment Schedule, became effective on July 13, 2011.


author: JAMES F. McKAY III, Chief Judge.

text:
    Joseph WAGUESPACK v. DEPARTMENT OF POLICE.
    No. 2012-CA-1691.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 26, 2013.
    Donovan A. Livaccari, Livaccari Villar-rubia Lemmon, LLC, New Orleans, LA, for Plaintiff/Appellant.

      Mary Katherine Taylor, Assistant City Attorney, Sharonda R. Williams, Chief Of Litigation, Richard F. Cortizas, City Attorney, New Orleans, LA, for Defendant/Ap-pellee.
    (Court composed of Chief Judge JAMES F. McKAY III, Judge ROLAND L. BELSOME, Judge ROSEMARY LEDET).
   JAMES F. McKAY III, Chief Judge.

I,The appellant, Joseph Waguespack, a New Orleans Police Department (NOPD) Captain with permanent status, appeals the judgment of the Civil Service Commission of the City Of New Orleans denying his appeal of the discipline imposed by the appointing authority. We affirm.

FACTS AND PROCEDURAL HISTORY

On August 14, 2006, Captain Wagues-pack and his wife Joann formed a limited liability company called JJW for purposes connected to certain paid off-duty police details he coordinated. Capt. Waguespack utilized this limited liability company to process the payroll for off-duty police officers who were performing security services for Marriot International, Inc. at its various downtown New Orleans hotels.

On May 6, 2011, the NOPD initiated an internal investigation of Capt. Waguespack for allegedly violating NOPD Rule 4, Performance of Duty, Paragraph 2, Instructions from an Authoritative Source, more particularly NOPD Operations Manual Chapter 22.8, Paid Details, Paragraph 43. Paragraph 43 ^provides: “[mjembers of this department are prohibited from forming any corporation, company, trust, fund, or cooperative banking account for the purpose of billing, receiving compensation, or offering services of paid details.” Lieutenant Errol Foy of the Public Integrity Bureau was assigned to investigate the matter. It was determined that Capt. Waguespack utilized an LLC to process payroll for security services provided by off-duty NOPD officers to Marriot.

The NOPD conducted a disciplinary hearing before Deputy Superintendent Kirk Bouyelas on August 2, 2011. Dept. Supt. Bouyelas found that Capt. Wagues-pack had violated departmental rules and recommended a three day suspension and a prohibition from working paid details for a period of six months. On August 18, 2011, Superintendent of Police Roñal Ser-pas issued a disciplinary letter concurring in Dept. Supt. Bouyelas’s determination and adopting the penalty of a three day suspension as well as the prohibition from working paid details for a period of six months.

Capt. Waguespack timely appealed this disciplinary action to the Civil Service Commission. On November 17, 2011, a hearing took place before Hearing Examiner Jay Ginsberg. At the hearing, Capt. Waguespack admitted to forming an LLC for the purpose of compensating officers who worked paid details, and to receiving a ten percent (10%) coordination fee. Lt. Foy and Dept. Supt. Bouyelas also testified at the hearing. On September 7, 2012, the Civil Service Commission denied Capt. Waguespack’s appeal, finding that “the rule serves a legitimate ^purpose and that its violation undermines the efficient operation of the department.” It is from this judgment that Capt. Waguespack now appeals.

DISCUSSION

On appeal, Capt. Waguespack argues that the Civil Service Commission erred in finding the existence of legal cause to discipline him.

The burden of proof on appeal to the Civil Service Commission is on the appointing authority. Cure v. Dept. of Police, 07-0166, p. 2 (La.App. 4 Cir. 8/1/07), 964 So.2d 1093, 1094, citing Marziale v. Dept. of Police, 06-0459, p. 10 (La.App. 4 Cir. 11/8/06), 944 So.2d 760, 767. The decision of the Civil Service Commission is subject to review on any question of law or fact upon appeal to this Court, and this Court may only review findings of fact using the manifestly erroneous/clearly wrong standard of review. La. Const, art. X, § 12(B); Cure, 07-0166, p. 2, 964 So.2d at 1094. In determining whether the disciplinary action was based on good cause and whether the punishment is commensurate with the infraction, this Court should not modify the Civil Service Commission determination unless it is arbitrary, capricious, or characterized by an abuse of discretion. Id. A decision by the Civil Service Commission is “arbitrary or capricious” if there is no rational basis for the action taken by the Civil Service Commission. Cure, 07-0166, p. 2, 964 So.2d at 1095. The appointing authority has the burden of proving, by a preponderance of the evidence, that the complained of activity or dereliction occurred, and that such dereliction bore a real and substantial relationship to the efficient operation of the appointing authority. Cure, 07-0166, p. 2, 964 So.2d 1094, citing Marziale, 06-0459, at p. 10, 944 So.2d at 767.

In the instant case, Capt. Wagues-pack admits that he formed an LLC for the purpose of administering paid details. Capt. Waguespack also admits that he received a ten percent coordination fee for doing paperwork and arranging lineups. These actions are violations of NOPD Rule 4.

The NOPD contends that Capt. Wagues-pack’s actions impaired the efficient operation of the department. Specifically, the NOPD argues that Capt. Waguespack’s formation of an LLC for coordinating paid details constitutes selling the services of other officers and it disrupts the chain of command. At the Civil Service Commission hearing, Dept. Supt. Bouyelas testified that the department “wanted to prohibit police officers from profiting off of the work of other police officers.” The NOPD takes the position that when an officer is selling the services of other officers, it disrupts the hierarchy of the department. It argues that creating an LLC to operate paid details creates a conflict of interest, or at least the appearance thereof, and it creates a breach of the public’s trust. The NOPD’s argument appears to be valid; Capt. Waguespack’s formation of an LLC for purposes of coordinating off-duty details bears a real and substantial relationship to the efficient operation of the department.

We must now turn to the question of whether Capt. Waguespack’s discipline was commensurate with his dereliction. The punishment imposed by the appointing authority must be commensurate with the dereliction. Walters v. Dept. of Police of City of New Orleans, 454 So.2d 106, 114 (La.1984). The disci pline must have a rational basis to be commensurate with the dereliction or else it is arbitrary and capricious. Staehle v. Dept. of Police, 98-0216 (La.App. 4 Cir. 11/18/98), 723 So.2d 1031, 1033. In the instant case, Capt. Waguespack was given a three day suspension and was prohibited from working paid details for a period of six months. Other officers who committed the same infraction as Capt. Wag-uespack received the same discipline. Accordingly, the discipline was commensurate with the dereliction and was not arbitrary or capricious.

CONCLUSION

For the above and foregoing reasons, we affirm the Civil Service Commission’s denial of Capt. Waguespack’s appeal.

AFFIRMED


author: CARAWAY, J. DREW, J.,

text:
    STATE of Louisiana, Appellee v. Oscar Cleoffice BALENTINE, Appellant.
    No. 47,858-KA.
    Court of Appeal of Louisiana, Second Circuit.
    July 10, 2013.
    Rehearing Denied Aug. 1, 2013.

      Paula C. Marx, Louisiana Appellate Project, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, R. Randall Smith, Assistant District Attorneys, for Appellee.
    Before CARAWAY, DREW and LOLLEY, JJ.
   CARAWAY, J.

_[iThis appeal resulted from the trial court’s denial of the defendant’s motion to quash which was based on his assertion of double jeopardy. After being arrested and convicted in Webster Parish for events that transpired on September 9, 2009, the defendant was charged in Bossier Parish for additional charges involving events that occurred on the same day. For the following reasons, we reverse.

Facts

All of the arrests, charges, and convictions stem from events that occurred on September 9, 2009. At that time, the defendant, Oscar Cleoffice Balentine, was arrested in Webster Parish. He was charged with and ultimately pled guilty to operation of a clandestine laboratory for the unlawful manufacture of a Schedule II controlled dangerous substance, methamphetamine, in violation of La. R.S. 40:983. After conducting a presentence investigation report (“PSI”), the trial court sentenced the defendant to the minimum, 5 years’ hard labor punishment.

The defendant came up for parole a few years into his sentence. At that time, the state charged the defendant in Bossier Parish with the manufacture of a controlled dangerous substance, Schedule II, namely methamphetamine, in violation of La. R.S. 40:967(A)(1) and conspiracy to manufacture a controlled dangerous substance in violation of La. R.S. 14:26 and 40:967(A)(1) based upon events that also occurred on September 9, 2009.

|2On March 13, 2012, Balentine filed a motion to quash on the basis of double jeopardy, arguing that he had previously pled guilty to operation of a clandestine lab for the unlawful manufacture of methamphetamine in violation of La. R.S. 40:983 based on the same events. Balentine argued that the conviction in Webster Parish and the current charges in Bossier Parish are part of a continuous offense that occurred on or about September 9, 2009.

At the hearing on the motion to quash held on April 16, 2012, the state argued that the motion to quash should be denied. The assistant district attorney asserted:

In Webster Parish ... he has pled guilty to a lab, but he has not pled guilty to the manufacturing, which is different and under Note 9, although, what they did, they started manufacturing in Bossier Parish and during the manufacturing process they determined that one of the ingredients they needed had gotten wet, couldn’t use it, so they bundled everything up and took it over to Webster Parish. There they were convicted of the lab because they never finished the manufacturing process over there. They were apparently arrested soon after they got over there as near as I can determine from the facts. The police were given a tip by someone. They showed up over in Webster Parish ... 30 feet away from the residence of Oscar Balentine, where they found the glassware in a backpack.

The state’s explanation indicated that the substance that left Bossier Parish was the same substance recovered by police in Webster Parish. Despite this, the state argued that the elements for the two statutes were different and warranted a denial of the defendant’s motion to quash. The trial court agreed and denied the motion.

As a result of the trial court’s ruling, the defendant pled guilty to attempted manufacturing of methamphetamine in Bossier Parish, reserving |3his right to appeal the denial of his motion to quash. The sécond count, conspiracy, was dismissed.

The facts to which defendant pled guilty under Boykin in Bossier Parish were stated as follows:

Within the confines of Bossier Parish, Louisiana, on or about September 9, 2009, this defendant, along with Benjamin Balentine and Michael Huddleston, started assembling in Bossier City, Bossier Parish, Louisiana, the materials to manufacture schedule II substance, namely, methamphetamine.... The gathering of the materials began the weekend before, which was Labor Day weekend, culminated with them going out on or about September the 9th, where they started to or — or they began the process of manufacturing methamphetamine. There was at some point in the manufacturing process one of the ingredients they needed had become where they could not use it. So they took the product they had at that time, which only needed the one more ingredient, it was in a container of some type, they — they vented it out through the car and they transported it over to Webster Parish, Louisiana.... But they had all of the ingredients to manufacture the methamphetamine, it’s just some of it got wet and they couldn’t use it. So they were attempting to manufacture a methamphetamine in Bossier Parish, Louisiana.

In comparison, the factual basis for the Webster Parish case was set forth in the Boykin transcript for the defendant’s plea and attached to the state’s opposition to the motion to quash:

If this matter were to go to trial, the State would present evidence which would prove that Oscar Balentine, on or about the 9th day of September of 2009, did knowingly and intentionally operate a clandestine laboratory with unlawful manufacture of a Schedule II controlled dangerous substance, namely, methamphetamine. Officers went to ... the residence of Oscar Balentine, and did discover the makings of what appeared to be an operation that was creating a substance that was believed to be a Schedule II methamphetamine. That substance was discovered there at that residence and was subsequently sent to the North Louisiana Criminalistic Laboratory and in fact determined to be and did determine to contain methamphetamine, a Schedule II.

1,[Balentine’s sentencing hearing was scheduled for July 3, 2012. The trial court ordered a PSI report. At the sentencing hearing, the trial court noted that this was the defendant’s third felony conviction. However, he noted that the “second felony arose out of a string of facts and circumstances that were connected to this particular charge just in a separate parish, our neighbor, sister parish of Webster.” Given the connection between the two felonies, the trial court sentenced Balentine to five years at hard labor to run concurrently with the Webster Parish sentence and credit for time served. Balentine appeals the denial of his motion to quash on the basis of double jeopardy.

Discussion

The double jeopardy clause was made applicable to the states through the Fourteenth Amendment, and Article I, § 15, of the Louisiana Constitution contains a similar guarantee. State v. Redfearn, 44,709 (La.App.2d Cir.9/23/09), 22 So.3d 1078, writ denied, 09-2206 (La.4/9/10), 31 So.3d 381. The guarantee provides three central constitutional protections: (1) protection against a second prosecution for the same offense after acquittal; (2) protection against a second prosecution for the same offense after convictions; and (3) protection against multiple punishment for the same offense. State v. Drake, 46,232 (La.App.2d Cir.6/22/11), 71 So.3d 452, 461; State v. Redfearn, supra. La.C.Cr.P. art. 596 states that:

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

Louisiana uses both the “Block-burger test” and the “same evidence test” in determining whether double jeopardy exists. La.C.Cr.P. art. 596; State v. Ceasar, 37,770 (La.App.2d Cir.10/9/03), 856 So.2d 236; State v. White, 35,235 (La.App.2d Cir.10/31/01), 799 So.2d 1165. In Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), the Supreme Court held that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not. Additionally, Louisiana uses the “same evidence test” which states that if the evidence required to support a finding of guilt of one crime would also have supported conviction of the other, the two are the same offense under a plea of double jeopardy, and a defendant can be placed in jeopardy for only one. The test depends on the evidence necessary for the conviction, not all the evidence introduced at trial. State v. Steele, 387 So.2d 1175 (La.1980); State v. Ceasar, supra; State v. White, supra; State v. Robertson, 511 So.2d 1237 (La. App. 2d Cir.1987), writ denied, 516 So.2d 366 (La.1988).

In this case, the defendant alleges double jeopardy exists due to the “same evidence test.” Some defendants claiming double jeopardy under the “same evidence test,” including Balentine, have asserted that there was one, continuous offense with one set of evidence, instead of two separate and ^distinct offenses with separate evidence supporting each. A continuous offense has been defined by the state supreme court as “a continuous, unlawful act or series of acts set in motion by a single impulse and operated by uninterrupted force.” City of Baton Rouge v. Ross, 94-0695 (La.4/28/95), 654 So.2d 1311, 1321.

The burden of proof at a hearing on a motion to quash based on double jeopardy grounds has not been addressed by the Louisiana jurisprudence. A clear majority of federal circuit courts have held that once a defendant makes a prima facie nonfrivolous double jeopardy claim, the burden of proof shifts to the prosecution to prove by a preponderance of the evidence that the indictments charge separate offenses. State v. Green, 96-0256 (La.App. 1st Cir.12/10/96), 687 So.2d 109.

The defendant was charged and convicted of La. R.S. 40:983 in Webster Parish. La. R.S. 40:983 makes it unlawful for any person to knowingly or intentionally create or operate a clandestine laboratory for the unlawful manufacture of a controlled dangerous substance and defines this crime, in pertinent part, as follows:

A. Creation or operation of a clandestine laboratory for the unlawful manufacture of a controlled dangerous substance is any of the following:
(1)The purchase, sale, distribution, or possession of any material, compound, mixture, preparation, supplies, equipment or structure with the intent that it be used for the unlawful manufacture of a controlled dangerous substance.
(2) The transportation or arranging for the transportation of any material, compound, mixture, preparation, supplies, or equipment with the intent that such material, compound, mixture, preparation, supplies, or equipment be used for the unlawful manufacture of a controlled dangerous substance.
(3) The distribution of any material, compound, mixture, preparation, equipment, supplies, or products which material, [7compound, mixture, preparation, equipment, supplies, or products have been used in, or produced by, the unlawful manufacture of a controlled dangerous substance.
(4) The disposal of any material, compound, mixture, preparation, equipment, supplies, products, or byproducts, which material, compound, mixture, preparation, equipment, supplies, products, or byproducts have been used in, or produced by, the unlawful manufacture of a controlled dangerous substance.

In the present prosecution, Balentine was charged and pled guilty to the attempt to manufacture a controlled dangerous substance, Schedule II, in violation of La. R.S. 40:967(A)(1). La. R.S. 40:967(A)(1) states that it shall be unlawful for any person knowingly or intentionally:

(1) to produce, manufacture, distribute, or dispense or possess with intent to produce, manufacture, distribute, or dispense, a controlled dangerous substance or controlled substance analogue classified in Schedule II.

The jurisprudence reveals a conviction under La. R.S. 40:967(A)(1) for attempted production and manufacture by a defendant found in possession solely of the equipment used for the processing of methamphetamine without the finished product. State v. Theriot, 04-897 (La.App. 3d Cir.2/9/05), 893 So.2d 1016.

Manufacture means the production, preparation, propagation, compounding, or processing of a controlled dangerous substance, either directly or indirectly by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis. La. R.S. 40:961(24).

Our review of the two crimes charged in the separate parishes reveals that both involve the same offense of manufacture of methamphetamine, though expressed in distinct statutory provisions. Critically, neither statute [^requires possession of the finished methamphetamine. Of the two statutes, only Section 967(A)(1) mentions possession as a possible element for the crime of distribution. Yet, that was not the statute of conviction in Webster Parish, the only place where the finished methamphetamine was found. Likewise, both statutes’ use of the statutorily defined term “manufacture” reveals that the common element of intent to manufacture may be proven by the preparation and processing of compounds that might lead to the finished controlled dangerous substance. Finishing the processing of the compounds is not required as an element of either crime. We therefore find that the charges in each parish meet the test for double jeopardy under La. C.Cr.P. art. 596(1) and that the elements of proof required for intent to manufacture methamphetamine were the same.

The second aspect of the analysis concerns the “same evidence test.” Also related to this inquiry is the Legislature’s expression in Article 596(2) that the second charge be “based on a part of a continuous offense for which offense the defendant was in jeopardy in the first trial.” La.C.Cr.P. art. 596(2).

At the hearing on the motion to quash, the assistant district attorney admitted that on September 9, 2009, the manufacturing process, with an unfinished compound of ingredients for the manufacture of methamphetamine, began in Bossier Parish and moved to Webster Parish. The evidence of that manufacturing operation served as the basis for Balentine’s first conviction. While it is not completely clear, all expressions in the record, including the description of the crime at the two Boykin | ¡¡hearings, indicate that equipment for the “lab” moved with the unfinished compound between parishes. From this prima facie showing, the state was required to show that separate labs or distinct manufacturing events occurred in both parishes. As the record now stands, the same facts surrounding Balentine and the vehicle containing the lab and compound could prove a crime under either statute in Bossier Parish on September 9, and those same facts, sufficient for the first conviction, continuously existed as that vehicle moved into Webster Parish. Accordingly, we find that the “same evidence test” is met and that double jeopardy requires reversal of the present conviction.

Decree

Defendant’s conviction is reversed upon our finding of double jeopardy.

REVERSED.

DREW, J., dissents with written reasons.

DREW, J.,

dissenting.

hi respectfully dissent, with these brief comments.

THIS CASE

The majority has found a double jeopardy violation where none exists.

This defendant broke two different laws, admittedly on the same date, but on two separate occasions and in two different parishes.

One crime occurred in Bossier Parish, and the other crime occurred later in Webster Parish. The facts in each parish establish the respective wrongdoings, without necessity of reliance of any facts from the other parish.

• Balentine gathered materials for several days in Bossier Parish, breaking the law in that parish by trying to manufacture methamphetamines, being thwarted in that endeavor only because some of his precursor materials became unusable, leading to his trip to the adjoining parish to find what he needed.

• He was able to locate the missing component in Webster, and succeeded later that same day in establishing a meth lab, actually producing methamphetamines, shortly before being arrested in conjunction with the execution of a search warrant in Webster Parish.

He first pled guilty in Webster for the second chronological crime, the violation of La. R.S. 40:983. He was sentenced to five years at hard labor.

He was then charged in Bossier Parish with a violation of La. R.S. 40:967(A)(1), a law that prohibits the knowing or intentional production or manufacturing or possession with intent to produce or manufacture methamphetamine. The defendant’s motion to quash was overruled by the trial court. That ruling is the issue in this appeal.

12Balentine immediately pled guilty to a reduced charge of attempted manufacturing of meth, with a Crosby reservation of his right to appeal this issue.

The defendant’s argument would be stronger if all criminality occurred in the same parish. The state’s position would be stronger if the criminality happened months apart. But here we are.

Two different criminal statutes were violated in two different parishes, on two different and independent sets of facts. It is a two-parish “crime spree.” And just because of the temporal and subject matter similarities, the defendant should not get a free pass for what he first did in Bossier.

DOUBLE JEOPARDY ANALYSIS IN LOUISIANA

Three out of every four states settle Fifth Amendment claims of double jeopardy by simply applying the precepts of Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), wherein a defendant can be convicted of two offenses arising out of the same criminal incident if each crime contains an element not found in the other. This is a straightforward test.

In Louisiana, courts are required to also add a murky “same evidence” test, which few understand, and none can clearly explain. This double l.^whammy has lead to inconsistent results and wildly uneven double jeopardy analyses. Blockburger, supra, has been the gold standard for 80 years. It is more than sufficient to afford protection against double jeopardy under the Fifth Amendment.

William Shakespeare wrote: “Consistency, thou art a jewel.” In this state’s haphazard jurisprudence analyzing double jeopardy claims, we need some bling.

I respectfully dissent.

APPLICATION FOR REHEARING

Before STEWART, CARAWAY, DREW, LOLLEY and GARRETT, JJ.

Rehearing denied.

DREW, J., would grant rehearing.

      . Boykin v, Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

      . The motion to quash alleged a double jeopardy violation.

      . State v. Crosby, 338 So.2d 584 (La.1976).

      . The trial court used its discretion and wisely sentenced the defendant to serve five years for this Bossier crime, to be served concurrently with the Webster sentence. The restraint of the trial court is appreciated, recognizing the equities of this situation.

      .See list of cases at footnote 27 of State v. Watkins, 362 S.W.3d 530 (Tenn.2012), wherein the Tennessee Supreme Court jettisoned its four-stage double jeopardy analysis in favor of the Blockburger analysis, already in use at that time by 38 states and the federal courts.