text:
    Beau GAST v. DEPARTMENT OF POLICE.
    No. 2013-CA-0781.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 13, 2014.

      Raymond C. Burkart, III, Burkart & Associates, L.L.C., Covington, LA, for Plaintiff/Appellant.
    Elizabeth Robins, Assistant City Attorney, Shawn Lindsay, Assistant City Attorney, Sharonda R. Williams, City Attorney, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge, EDWIN A. LOMBARD, Judge JOY COSSICH LOBRANO).
   JOY COSSICH LOBRANO, Judge.

| T Beau Gast (“Gast”), an employee of the New Orleans Police Department (“NOPD”) classified as a Police Officer I, appeals the decision of the New Orleans Civil Service Commission (“CSC”), denying his appeal of the discipline imposed by Superintendent Roñal Serpas (“Supt. Ser-pas”), the appointing authority. Supt. Ser-pas dismissed Gast from the NOPD and suspended him for twenty (20) days after determining that Gast had filed a false police report resulting in the false arrest and false imprisonment of two women. For the reasons that follow, we affirm the CSC’s decision.

Following their' arrest in the French Quarter for prostitution loitering, Quanetia Davis (“Davis”) and Kyana Boykins (“Boy-kins”) filed a complaint with the NOPD Public Integrity Bureau (“PIB”) on November 23, 2009, alleging criminal misconduct by the arresting officers, Gast and Officer Thomas McMasters (“McMas-ters”). The PIB initiated the formal DI-1 investigation into the allegation |2that same day and assigned Sergeant Jenerio Sanders (“Sgt. Sanders”) to investigate the matter.

On July 4, 2010, Sgt. Sanders sent Gast written notice pursuant to La. R.S. 40:2531(B)(7), outlining the sustained charges of misconduct and notifying him that the internal disciplinary investigation was complete. Gast had the opportunity to present facts in mitigation and to explain his conduct at a disciplinary hearing held on March 16 and March 23, 2011.

On March 25, 2011, Gast received a disciplinary letter stating that the appointing authority had determined that he violated NOPD internal rules relative to (a) moral conduct by committing false imprisonment; (b) performance of duty for failing to properly verify Davis’s record in an arrest for prostitution loitering; and (c) official information for documenting false or inaccurate information on the affidavit for the arrest of Davis. Specifically, the appointing authority determined Gast failed to check Davis’s name in the NOPD computer system to determine whether she had a previous arrest and conviction for prostitution within the last twelve months, which is an element of the crime for prostitution loitering. The appointing authority also determined Gast falsely stated in the affidavit of arrest that undercover police officer Marshall Scallan (“Scallan”) had observed Davis approach and stop several males in the 200 block of Bourbon Street and that Davis also approached Scallan but turned and walked away upon seeing him (Gast) approach. For violation of the rule regarding moral conduct, Supt. Serpas terminated Gast. For violation of the rules regarding performance of duty and | ^official information, Gast received a total suspension of 20 days — 10 days for the violation of each rule.

Gast appealed his termination and suspension to the CSC. Following a hearing, the CSC Hearing Examiner recommended the appeal be denied. On December 20, 2012, the CSC denied Gast’s appeal, finding the appointing authority established by a preponderance of the evidence that it had disciplined Gast for cause and that it had not abused its discretion by terminating him considering Gast had filed a false arrest affidavit to justify the false arrest and imprisonment of Davis.

Gast appealed, raising two assignments of error.

The CSC has authority to “hear . and decide” disciplinary cases, which includes the authority to modify (reduce) as well as to reverse or affirm a penalty. La. Const, art. X, § 12; Pope v. New Orleans Police Dep’t, 2004-1888, p. 5 (La.App. 4 Cir. 4/20/05), 903 So.2d 1, 4. The appointing authority is charged with the operation of its department, and it is within its discretion to discipline an employee for sufficient cause. The CSC is not charged with such discipline. “[T]he authority to reduce a penalty can only be exercised if there is insufficient cause for imposing the greater penalty.” Pope, 2004-1888, pp. 5-6, 903 So.2d at 4.

“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 v. Dep’t of Police, 2007-0166, p. 2 (La.App. 4 Cir. |4 8/1/07), 964 So.2d 1093, 1094, citing Marziale v. Dep’t of Police, 2006-0459, p. 10 (La.App. 4 Cir. 11/8/06), 944 So.2d 760, 767. “The protection of civil service employees is only against firing (or other discipline) without cause.” Cornelius v. Dep’t of Police, 2007-1257, 2007-1258, p. 7 (La.App. 4 Cir. 3/19/08), 981 So.2d 720, 724, citing Fihlman v. New Orleans Police Dep’t, 2000-2360, p. 5 (La.App. 4 Cir. 10/31/01), 797 So.2d 783, 787.

The decision of the CSC “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.” Cure, 2007-0166, p. 2, 964 So.2d at 1094, citing La. Const, art. X, § 12(B). 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 CSC order unless it was arbitrary, capricious, or characterized by an abuse of discretion. Cure, 2007-0166, p. 2, 964 So.2d at 1094-95. A decision of the CSC is “arbitrary and capricious” if there is no rational basis for the action taken by the CSC. Id., p. 2, 964 So.2d at 1095.

In determining whether an appointing authority properly imposed disciplinary action against a classified employee, the reviewing court must consider whether the punishment is commensurate with the offense. Staehle v. Dep’t of Police, 98-0216, p. 5 (La.App. 4 Cir. 11/18/98), 723 So.2d 1031, 1034. The evidence in the record must establish a rational basis for the imposed discipline. Id., p. 6, 723 So.2d at 1034.

LFirst, we address the issue of whether the appointing authority had legal cause to discipline Gast for violating departmental rules regarding moral conduct, neglect of duty, and falsifying official information.

Both Davis and Boykins testified at the CSC hearing that they were walking down Bourbon Street in the early morning hours of November 8, 2009, when Gast and McMasters arrested them without justification. Davis testified that Gast informed her that she was under arrest because an undercover police officer told him that she and Boykins were soliciting. The two women were handcuffed and left sitting on the curb until they were taken to Central Lockup, where they spent the weekend until they were released the following Monday. Davis and Boykins had no prior arrests or convictions for prostitution.

Scallan testified that he did work the Bourbon Street promenade at the time the incident occurred, but did not recall the arrest that resulted in Gast’s termination. Nonetheless, Scallan testified that he did not work undercover except on one occasion that did not involve a prostitution arrest. He also testified that he reviewed an incident report that he signed on the same night, along with his partner Officer Jacob Lathrop (“Lathrop”), involving a report of a lost or stolen wallet. Scallan explained that if he was working with La-throp he would have been in uniform and not working undercover. Thus, Scallan concluded that he could not have reported to Gast that he observed Davis and Boy-kins engage in criminal activity while working undercover, as Gast claimed.

|fiGast testified that he did not observe Davis and Boykins soliciting for prostitution but insisted that Scallan was in plain clothes working undercover the night he and McMasters arrested the women and that he relied upon what Scallan told him. Gast testified that his statement in Davis’s affidavit of arrest was true and accurate; otherwise he would not have arrested the subjects. Gast admitted that he failed to check the NOPD computer system to ascertain whether Davis or Boykins had any prior arrests or convictions prior to arresting them. He testified that he was unaware that a prior prostitution conviction was a prerequisite for the crime of prostitution loitering.

Supt. Serpas testified that Gast impaired the efficient operation of the police department because he failed to “enforce the law consistent with law” and his conduct denied two citizens of their freedom. Supt. Serpas further testified that he considered the disciplinary guidelines in imposing the suspension and dismissing Gast from the NOPD.

The Rules of the Civil Service Commission for the City of New Orleans provides that when a classified employee has committed an act to the prejudice of the service or otherwise has been subjected to corrective action, the appointing authority shall take action as warranted by the circumstances to maintain the standards of effective service. See Rule IX, § 1.1. This action may include removal from the service, see Rule IX, § 1.1(a), and suspension without pay not exceeding one hundred twenty (120) calendar days, see Rule IX, § 1.1(e).

|7In upholding the discipline imposed by the appointing authority, the CSC found no evidence that Davis and Boykins engaged in any activity that would have caused Gast to arrest them for prostitution. Although Gast insisted that he relied upon Scallan’s observations to make the arrest, the CSC found Scallan’s testimony that he was in no position on the night in question to observe and report the crime for which the women were arrested to be credible. Based on our review of record, we agree with the CSC’s conclusion that the appointing authority established by a preponderance of the evidence that Gast filed a false arrest affidavit to justify a false arrest and imprisonment and that the appointing authority had just cause to dismiss Gast from the NOPD. Thus, we do not find the CSC was arbitrary and capricious or abused its discretion by denying Gast’s appeal and upholding his termination and suspension.

Gast also argues on appeal that the appointing authority’s investigation did not comply with the sixty-day time limit set forth in La. R.S. 40:2531(B)(7) and, thus, the imposed discipline is an absolute nullity under La. R.S. 40:2531(C). For purposes of La. R.S. 40:2531(B)(7), Gast contends the complaint was initiated on November 23, 2009, when the PIB initiated the formal DI-1 investigation into the allegations made by Davis and Boykins. He claims that the investigation ended on July 7, 2010, when he received the written notice from the NOPD outlining the sustained charges of misconduct and informing him that the internal disciplinary investigation was complete. Because more than sixty days elapsed between the initial complaint and the completion of the investigation, Gast argues the NOPD | ¿failed to comply with sixty-day limitation under the statute, rendering the imposed discipline an absolute nullity.

McMasters raised the same issue in appealing his termination. See n.l infra. This Court reversed the CSC’s decision denying McMasters’s appeal and reinstated him to his former position, finding that the investigation was not completed within sixty days and, thus, the imposed discipline was an absolute nullity. On a writ application from the NOPD, the Louisiana Supreme Court reversed in McMasters v. Dep’t of Police, 2013-2634 (La.2/28/14), 134 So.3d 1163, finding no violation of the sixty-day time limit set forth in La. R.S. 40:2531(B)(7), because “[t]he investigation into McMasters’s conduct was clearly an investigation of alleged criminal activity.” Id. at 1, 134 So.3d at 1164 — . In so holding the Court cited its prior decision in O’Hern v. New Orleans Police Dep’t, 2013-1416 (La.11/8/13), 131 So.3d 29. Thus, the same argument raised by Gast is without merit.

Accordingly, for the reasons set forth herein, we affirm the decision of the CSC to deny Gast’s appeal.

AFFIRMED.

      . McMasters was also suspended and dismissed from the NOPD as a result of his conduct arising from the arrests of Davis and Boykins. The Louisiana Supreme Court re-cendy upheld McMasters’s suspension and dismissal in McMasters v. Dep't of Police, 2013-2634 (La.2/28/14), 134 So.3d 1163.

      . McMasters v. Dep’t of Police, 2013-0348 (La.App. 4 Cir. 10/9/13), 126 So.3d 684.


source: Caselaw Access Project

author: TERRI F. LOVE, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Michael J. MORRISON.
    No. 2013-KA-1067.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 19, 2014.
    Leon A. Cannizzaro, Jr., District Attorney, Kyle Daly, Assistant District Attorney, New Orleans, LA, for Appellant, State of Louisiana.
    Christopher A. Aberle, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellee, Michael Morrison.
    (Court composed of Judge TERRI F. LOVE, Judge DANIEL L. DYSART, Judge ROSEMARY LEDET).
   TERRI F. LOVE, Judge.

1 pThis appeal arises from the arrest of the defendant for disturbing the peace, to which the defendant pled no contest, and his subsequent charge for second degree battery. The defendant filed a motion to quash based on double jeopardy grounds. The trial court granted the defendant’s motion to quash and the State appealed. We find that the trial court abused its discretion in not permitting the State to oppose the motion to quash and by not holding an evidentiary hearing. Therefore, we reverse and remand for proceedings consistent with this opinion.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Detective Anthony Edenfield of the New Orleans Police Department (“NOPD”) investigated an alleged second degree battery that took place on Saturday, November 12, 2011, at approximately 9:45 p.m. at the intersection of Bourbon and Toulouse Streets in New Orleans, Louisiana. Nichole Landry and her boyfriend, Errol Nunez, reported to the Eighth District police station on November 18, 2011, and informed Detective Edenfield that they were walking on Bourbon Street on November 12, 2011, when Ms. Landry saw her friend “Scott” at 711 Bourbon Street. Ms. Landry and Mr. Nunez stopped to converse with Scott. As Ms. Landry and Mr. Nunez were walking away from Scott, the couple’s path was ¡^suddenly blocked by Michael Morrison. Mr. Morrison’s friend, James Price, was with Mr. Morrison.

Mr. Morrison allegedly began making “unwanted romantic advances” towards Ms. Landry, and after pleading with Mr. Morrison to allow them to proceed, Ms. Landry and Mr. Nunez continued to walk down Bourbon Street. The couple was subsequently approached from behind by Mr. Morrison and Mr. Price at the intersection of Bourbon and Toulouse Streets, at which time Mr. Morrison “used closed fists to strike Ms. Landry numerous times in her face and on her head.” As Mr. Morrison struck Ms. Landry, she fell to the ground and lost consciousness. Ms. Landry sustained cuts underneath her left eye and to her forehead area.

Ms. Landry stated that the NOPD were called and arrived on the scene. After Ms. Landry regained consciousness, the responding NOPD officers did not take any statements from her, but Mr. Morrison was placed in handcuffs. Mr. Morrison was arrested on the night in question at the intersection of Bourbon and Toulouse Streets for a municipal charge of violating Section 54-403 of the New Orleans Code of Ordinances, relative to disturbing the peace, New Orleans Police Department number K-19456-11. The report indicates that “based on the evidence provided by Ms. Landry and her statements, Detective Edenfield was in the belief [sic] that the proper criminal charge for this incident was a Louisiana state criminal charge of [La. R.S.] 14:34.1 relative to second degree battery.”

1 ¿According to the municipal summons issued on the date of the incident, Mr. Morrison was charged with “disturbing the peace by fighting.” The summons also indicates that Mr. Morrison struck the victim with a closed fist and that the victim fell to the ground. The name of the victim is not listed in the summons. However, Mr. Nunez’s name, phone number, and address is listed in the summons underneath the heading “City Witnesses.”

On November 12, 2011, Mr. Morrison, was arrested for the municipal offense of disturbing the peace by fighting, a violation of Section 54-403 of the New Orleans Municipal Code, after punching Ms. Landry several times in the head, causing her to lose consciousness. On November 14, 2011, Mr. Morrison pled no contest to the municipal offense and was released. On November 18, 2011, Ms. Landry reported the incident to Detective Edenfield of the NOPD.

An arrest warrant was issued for Mr. Morrison, and he was subsequently-charged by bill of information on December 27, 2011, with one count of committing a second degree battery upon Ms. Landry, a violation of La. R.S. 14:B4.1(B). Mr. Morrison appeared for his arraignment, and was later appointed counsel. A preliminary hearing was held, as well as a hearing on a motion to suppress the evidence. The trial court denied the motion to suppress evidence and found probable cause to substantiate the charges.

Mr. Morrison then moved to quash the bill of information on double jeopardy grounds. The State moved for a continuance, and Mr. Morrison’s counsel | .joined the request. The trial court denied the request and granted the motion to quash.

The State’s appeal followed.

MOTION TO QUASH

The State contends that the trial court erred in granting Mr. Morrison’s motion to quash the bill of information on double jeopardy grounds.

La.C.Cr.P. art. 596 governs double jeopardy and provides:

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

In State v. Holloway, 12-0926, p. 3 (La.App. 4 Cir. 7/3/13), 120 So.3d 795, 797, this Court recently recognized the following principles with respect to double jeopardy:

Both the Fifth Amendment to the United States Constitution and Art. 1, Section 15 of the Louisiana Constitution guarantee that no person shall be twice placed in jeopardy for the same offense. The purpose of these provisions is to protect a person from a second prosecution after he has already been acquitted or convicted of that offense and to protect an accused against multiple punishment for the same conduct. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969); State v. Vaughn, 431 So.2d 763, 767 (La.1983); State v. Warner, 94-2649, p. 4 (La.App. 4 Cir. 3/16/95), 653 So.2d 57, 59.

Similarly, the Louisiana Supreme Court has recognized that Louisiana’s “same evidence” test for double jeopardy requires a court to determine whether the evidence necessary to convict of one crime would also support the conviction of the other crime:

IfiThe Double Jeopardy Clauses of the federal and Louisiana constitutions not only prohibit successive trials for the same offense but also “protect[ ] against multiple punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). When 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 a fact which the other does not.” Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932)(selling narcotics not in original stamped package and selling narcotics not in pursuance to a written order of the purchaser constituted two different offenses although arising from a single delivery of narcotics); see Texas v. Cobb, 532 U.S. 162, [173], 121 S.Ct. 1335, 1343, 149 L.Ed.2d 321 (2001) (“We have since applied the Blockburger test to delineate the scope of the Fifth Amendment’s Double Jeopardy Clause, which prevents multiple or successive prosecutions for the ‘same offense.’ ”)(citing Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977)(barring successive prosecutions of greater and lesser included offenses)). Louisiana’s somewhat broader “same evidence” test considers not only the material elements of each offense but also whether the evidence required to convict of one crime would also support conviction of the other, focusing “on the evidence necessary for conviction, not all the evidence introduced at trial.” State v. Steele, 387 So.2d 1175, 1177 (La.1980). The test precludes the state from “relabeling the offense to charge defendant a second time with the same criminal conduct.” Steele, 387 So.2d at 1178.

State v. Murray, 00-1258, p. 3 (La.9/18/01), 799 So.2d 453, 454-55. (Emphasis added). Thus,

when different acts violate the same statute, the test of whether the offender has committed one or several offenses simply “is whether the individual acts are prohibited, or the course of action which they constitute. If the former, then each act is punishable separately. * * * If the latter, there can be but one penalty.”

Murray, 00-1258, p. 4, 799 So.2d at 455 (quoting Blockburger, 284 U.S. at 302, 52 S.Ct. at 181 (quoting Wharton’s Criminal Law (11th Ed.) § 34, n. 3)).

|7The State asserts that because the trial court granted the motion to quash on the same date that it was filed, the State was denied the opportunity to research the matter and to respond, despite the fact that defense counsel agreed to the State’s request for a continuance.

The trial court’s transcript regarding the Motion to Quash the Bill of Information reads as follows:

[Counsel for Mr. Morrison]:
Your Honor, at this time, I’m filing a Motion to Quash based non [sic] the double jeopardy. In this case, Mr. Morrison was arrested for second degree battery under Item number T19456-11. He was' also — that warrant was issued November 18th, 2011. That was six days after the original incident on November the 12th.
On November 12th, that night, he was arrested for disturbing the peace by fighting. Municipal code defines disturbing the peace by fighting as to engage in a fistic encounter. It’s obvious that these are the same facts if you read through the narrative of the police report, it so much as says so, that it was the same facts that references [sic] the same item number, the same date, same occurrence.
Also, Your Honor, it’s at the same place of Toulouse and Bourbon Street. And the reporting officer did note that he was arrested for disturbing the peace, and also it states that the complainant would like the results of that charge. However, because now jeopardy has attached, it doesn’t matter whether or not they agree with the results of that charge, or how he was charged, and what he was charged to. He pled guilty, and we are requesting that the Bill of information be quashed. [Counsel for the State]:
Judge, I thought—
THE COURT:
Do you have a copy of the plea? [Counsel for Mr. Morrison]:
Yes, Judge.
THE COURT:
Where was it; Municipal Court? [Counsel for Mr. Morrison]:
It’s in the—
|STHE COURT:
What is the additional — I’m sorry. You’re saying that there is no additional element?
[Counsel for Mr. Morrison]:
No, Your Honor. These are the same facts. They’re one in the same facts. No facts have changed.
* ⅜ sji *
[sidebar conference]
THE COURT:
He pled no contest?
[Counsel for Mr. Morrison]:
Yes, Your Honor. It’s still a conviction.
[other court matters are handled]
THE COURT:
All right, State, let’s go back to Michael Morrison. What do you have? Mr. Ghai [counsel for the State]? [Counsel for the State]:
Judge, if I can have some time to go back to the office and do a little research as to the Motion to Quash. Obviously while I’m here in Court, Judge, I have no ability to pull the Municipal Record.
[Counsel for Mr. Morrison]:
Your Honor, based on [the] conversation at the bench, I’ll join in Mr. Ghai’s request.
[Counsel for the State]:
Thank you, Judge. Judge, I’m not asking for [a] long time, which is really what—
THE COURT:
No need. No need. Quash is granted.

The State contends that when the defense raises a claim of double jeopardy, a trial court should defer ruling until the factual context of the claim has been developed. Thus, the State submits that the trial court should have conducted an evi-dentiary hearing to determine whether the factual basis of each charge was the same before ruling on the motion to quash.

|3In the present case, the charge of disturbing the peace by fighting and the charge of second degree battery were not contained in the same bill of information. The charge of second degree battery requires proof of additional facts not necessary for a conviction for disturbing the peace by fighting — i.e., intentionally inflicting serious bodily injury without the consent of the victim. The municipal summons was issued with respect to a fistfight between Mr. Morrison and an unnamed victim.

The transcript is also void of evidence that the trial court determined whether the evidence necessary to convict of one crime would also support the conviction of the other crime. Therefore, we find that the trial court abused its discretion in granting Mr. Morrison’s Motion to Quash without a full evidentiary hearing on the matter and reverse.

DECREE

For the above-mentioned reasons, we find that the trial court abused its discretion in granting Mr. Morrison’s Motion to Quash. Therefore, we reverse the ruling and remand for further proceedings.

REVERSED AND REMANDED.

      . Ms. Landry represented that she had known Mr. Morrison for approximately six years. She denied having a romantic relationship with him.

      . Ms. Landry displayed photographs of her injuries that she had taken on her cell phone on the night of the incident. Ms. Landry also provided documentation of medical attention for her injuries.

      . Ms. Landry surmised that Mr. Price fled the scene before the NOPD officers arrived because Mr. Price was a police officer in St. Bernard Parish.

      . The municipal summons indicates that the date of the incident was November 13, 2011. This conflicts with the arrest register, police report, and narrative, which indicate that the incident occurred on November 12, 2011. However, neither party has raised this as an issue, and the State refers to the date of the incident as November 12, 2011.

      . The municipal summons is stamped “Release Today.”

      .On November 21, 2011, a Non-Domestic Stay Away Order was issued to Mr. Morrison with respect to Ms. Landry effective through April 21, 2012.

      . On March 19, 2012, the State filed a discovery motion, and trial was set for May 16, 2012.

      . The transcript from this hearing is not included in the appellate record.


author: Judge TERRI F. LOVE.

text:
    Jeff MASON v. T & M BOAT RENTALS, LLC., Lester Nunez, Chalmette Levee Constructors Joint Venture and M.V. Mr. Charles.
    No. 2013-CA-1048.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 19, 2014.
    Alphonse M. Thompson, Jr., Thompson, Gibbons, & Westholz, L.L.C., New Orleans, LA, for Plaintiff/Appellant, Jeff Mason.
    David S. Bland, Matthew C. Guy, Bren-dhan H. Thompson, LeBlanc Bland P.L.L.C., New Orleans, LA, for Defendant/Appellee, T & M Boat Rentals, LLC and Chalmette Levee Constructors Joint Venture.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE, Judge SANDRA CABRINA JENKINS).
   Judge TERRI F. LOVE.

|, This appeal arises from the injuries sustained by the plaintiff, who alleged that his injuries were covered pursuant to general maritime law and the Longshore Harbor Workers Compensation Act. The defendants filed a motion for summary judgment, which was granted by the trial court. However, we find that the trial court improperly considered the exhibits attached to the motion for summary judgment that were not automatically deemed admitted into evidence because the amendment to La. C.C.P. art. 966 does not apply retroactively. Therefore, we reverse the ruling of the trial court and remand for further proceedings.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Jeff Mason was working for Chalmette Levee Constructors Joint Venture (“CLC”) when he sustained a tibial plateau fracture, which allegedly lead to avascular necrosis in the hip. Mr. Mason subsequently filed a Petition for Damages against T & M Boat Rentals, LLC (“T & M”), Lester Nunez, CLC, and M.V. Mr. Charles (“The Mr. Charles”) seeking damages arising from his injuries based upon the theory of “maritime negligence.” The Defendants filed a Motion for Summary Judgment asserting that no genuine issues of material fact existed |2because Mr. Mason’s only remedy relative to CLC was through the Longshore Harbor Workers Compensation Act (“LHWCA”), that T & M was not liable because it chartered The Mr. Charles to CLC, and that Mr. Mason possessed no claims against The Mr. Charles because he was not a Jones Act seamen. The trial court granted the Defendants’ Motion for Summary Judgment, but granted Mr. Mason leave to amend his Petition for Damages.

Mr. Mason then filed his First Supplemental and Amended Petition asserting a cause of action pursuant to 33 U.S.C.A. 905(b) of the LHWCA. The Defendants filed a second Motion for Summary Judgment based upon the original suppositions with the additional contention that Mr. Mason “was not engaged in longshore activities, was not engaged in maritime employment and is not covered under the LHWCA.” Mr. Mason filed a Motion for Leave to File a Second Supplemental and Amended Petition. Following a hearing, the trial court denied Mr. Mason’s Motion for Leave to File a Second Supplemental and Amended Petition and granted the Defendants’ second Motion for Summary Judgment, dismissing Mr. Mason’s claims with prejudice. Mr. Mason’s devolutive appeal followed.

Mr. Mason contends that the trial court erred in relying on evidence not offered, introduced, and admitted into evidence at the hearing, in striking and refusing to admit Mr. Mason’s affidavit, which was attached to the Motion for Leave to File Second Supplemental and Amended Petition, and erred in granting the Defendants’ Motion for Summary Judgment because genuine issues of material fact exist regarding Mr. Mason’s coverage by the LHWCA.

MOTION FOR LEAVE TO FILE REPLY BRIEF

Counsel for Mr. Mason filed a Motion for Leave to File Reply Brief on |s January 31, 2014, after both parties filed their supplemental briefs following oral argument, as ordered by this Court. The Motion for Leave to File Reply Brief is denied.

STANDARD OF REVIEW

A motion for summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B)(2). The burden of proof on the motion for summary judgment remains with the mov-ant. La. C.C.P. art. 966(C)(2). However,

[I]f the movant will not bear the burden of proof at trial ... the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out ... that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense.

La. C.C.P. art. 966(C)(2). The adverse party must “then produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial” to defeat the motion for summary judgment. La. C.C.P. art. 966(C)(2).

This Court reviews the trial court’s grant of a motion for summary judgment utilizing the de novo standard of review. Transworld Drilling Co. v. Texas Gen. Res., Inc., 604 So.2d 586, 589 (La.App. 4th Cir.1992). This Court will review the record “using the same criteria applied by trial courts to determine whether summary judgment is appropriate.” Id.

AMENDMENTS TO LA. C.C.P. ART. 966

Mr. Mason contends that the trial court erred by considering evidence that |4was not properly offered, accepted, and introduced as evidence at the hearing on the motion for summary judgment.

Pursuant to Acts 2012, No. 257, § 1, approved on May 25, 2012, and effective August 12, 2012, La. C.C.P. art. 966(E)(2) provided that “[o]nly evidence admitted for purposes of the motion for summary judgment shall be considered by the court in its ruling on the motion.” The amendment also revised La. C.C.P. art. 966(B)(2) by deleting “on file” as follows:

[t]he judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.

However, pursuant to Acts 2013, No: 391, § 1, approved on June 18, 2013, and effective on August 1, 2013, (E)(2) was entirely eliminated and (F)(2) was revised to read as follows:

[evidence cited in and attached to the motion for summary judgment or memorandum filed by an adverse party is deemed admitted for purposes of the motion for summary judgment unless excluded in response to an objection made in accordance with Subparagraph (3) of this Paragraph. Only evidence admitted for purposes of the motion for summary judgment may be considered by the court in its ruling on the motion. (Emphasis added.)

Also, La. C.C.P. art. 966(B)(2) was revised as follows:

[t]he judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. If the motion for summary judgment is denied, the court should provide reasons for the denial on the record, either orally upon rendition or in writing sua sponte or upon request of a party within ten days of rendition. (Emphasis added.)

| sThe Defendants’ second motion for summary judgment was filed in November 2012 and the trial court ruled in December 2012. Accordingly, Mr. Mason asserts that the version of La. C.C.P. art. 966 in effect at that time of the hearing and ruling on the Defendants’ motion for summary judgment applied. The Defendants aver that the version of La. C.C.P. art. 966, effective on August 1, 2013, retroactively pertained to the summary judgment proceedings and, consequently, the analysis of this appeal.

La. C.C. art. 6 provides that “[i]n the absence of contrary legislative expression, substantive laws apply prospectively only. Procedural and interpretative laws apply both prospectively and retroactively, unless there is a legislative expression to the contrary.” Although La. C.C.P. art. 966 is contained in the Louisiana Code of Civil Procedure, its retroactivity is not presumed. This Court must “engage in 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, we must classify the enactment as substantive, procedural or interpretive.” Id. “Substantive laws either establish new rules, rights, and duties or change existing ones.” St. Paul Fire & Marine Ins. Co. v. Smith, 609 So.2d 809, 817 (La.1992). “Interpretive laws, on the other hand, do not create new rules, but merely establish the meaning that the interpretive statute had from the time of its enactment.” Id. “When an existing law is not clear, a subsequent statute clarifying or explaining the law may be regarded as interpretive, and the interpretive statute may be given retrospective effect because it does not change, but merely clarifies, pre-existing law.” Id.

|BThe version of La. C.C.P. art. 966 in effect at the time of the hearing and the trial court’s ruling required that evidence used to support or oppose a motion for summary judgment be “admitted” instead of simply being “on file.” Therefore, the statute, at the time, required the mover to offer, introduce, and receive permission from the trial court to admit evidence into the record on a motion for summary judgment. This also placed an onus on the opponent to object to any evidence “admitted” by the trial court. That amendment placed new duties upon both the mover and the opponent of a motion for summary judgment in order to ensure that only “admitted” evidence was in the record as opposed to being “on file.” The amendment to La. C.C.P. art. 966 currently in effect provides that “[e]vidence cited in and attached to the motion for summary judgment ... is deemed admitted.” Thus, the new amendment removed the duties the previous version placed upon both parties and changed the parties’ required duties. Accordingly, we find that Acts 2013, No. 391, 1 is substantive in nature and cannot be applied retroactively because to do so would remove the Defendants’ responsibility to introduce evidence and deprive Mr. Mason’s right to object to the admission of evidence the trial court was required to approve and deem admitted.

The Defendants contend that [c]ounsel for Defendants did not have an opportunity to formally introduce the evidence attached to the briefs because no oral argument commenced. The transcript reveals otherwise. Once the trial court ruled at the scheduled hearing regarding Mr. Mason’s Motion for Leave to File Second Supplemental and Amended Petition, the trial court stated that the hearing for the Defendants’ motion for summary judgment was scheduled for January 4, 2013, but that if both parties waived their rights “to be noticed and to have that opportunity to respond,” it would proceed with a ruling. The trial court then |7reiterated numerous times that those rights belonged to the parties and could not be waived by the trial court. Both parties waived their rights and stated that they were prepared to proceed. The trial court then asked, “[y]ou all want to argue it” Counsel for the Defendants stated, “I am prepared to submit it on the brief, Your Honor.” Therefore, the Defendants’ assertion that there was no opportunity to formally introduce evidence is disingenuous.

Defendants further aver that this Court previously held that the latest amendment to La. C.C.P. art. 966 was retroactive in Igbokwe v. Moser, 12-1366 (La.App. 4 Cir. 4/24/13), 116 So.3d 727, 730, writ denied, 13-1196 (La.9/13/13), 120 So.3d 698, and Garcia v. City of New Orleans, 12-1459 (La.App. 4 Cir. 4/3/13), 115 So.3d 515, 516. This argument also lacks merit. Neither Igbokwe nor Garcia discussed the retroac-tivity of Acts 2013, No. 391, 1. Both cases merely referenced the deletion of “on file” in La. C.C.P. art. 966(B)(2) in identical footnotes that state: “[w]e note that La. C.C.P. art. 966(B) was amended in 2012 to delete ‘on file.’ However as this case was filed prior to the amendment the former version is applicable.” Igbokwe, 12-1366, p. 3, 116 So.3d at 730, n. 2; Garcia, 12-1459, p. 3, 115 So.3d at 517, n. 1. In fact, if we analyze the dicta contained in these footnotes, this Court stated that the amendment that deleted “on file” was not applicable because the cases occurred pri- or to the amendment. Thus, this Court discussed that the amendment would not be applied retroactively. Therefore, having found that the Defendants’ assertions lack merit and that the new version of La. C.C.P. art. 966 cannot be applied retroactively, we reverse the trial court’s granting of the Defendants’ Motion for Summary Judgment and remand for further proceedings.

IsDECREE

For the above-mentioned reasons, we find that the trial court improperly considered the exhibits attached to the Defendants’ Motion for Summary Judgment that were not automatically deemed admitted into evidence because the amendment to La. C.C.P. art. 966 does not apply retroactively. Therefore, the trial court’s ruling is reversed and the matter is remanded for further proceedings.

REVERSED AND REMANDED, MOTION DENIED.

      . T & M, CLC, and The Mr. Charles are collectively referred to as the Defendants.


author: DYSART, J.

text:
    Adel ABDALLAH v. UPTOWN DANTE SUPERMARKET, INC.
    No. 2013-CA-1200.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 19, 2014.

      Adam S. Lambert, Attorney at Law, New Orleans, LA, for Plaintiff/Appellant.
    P. Michael Breeden, THE BREEDEN LAW FIRM, L.L.C., New Orleans, LA, for Defendant/Appellee.
    Court composed of Chief Judge JAMES F. McKAY, III, Judge DANIEL L. DYSART, Judge MADELEINE M. LANDRIEU.
   DYSART, J.

_]jOn May 28, 2012, appellant Uptown Dante Supermarket, Inc. (hereinafter “Dante”), signed a lease for a corner market at Dante and Spruce streets in New Orleans from Adel Abdallah. Abdallah had operated the market since 1992. The lease set the rent at $7500 a month rent, $3000 of which was for rent of the property and $4500 for rent of the equipment. The lease was signed by both parties and properly recorded.

In January of 2013, the parties entered into a new lease to rent the business for $1500 per month. The lease, which was also signed by both parties and recorded, did not include a breakdown of the rent between property and equipment.

Abdallah contends that the second lease was to be only a reconfiguration of the first lease. In other words, the rent was to remain at $7500 per month, but the breakdown was to be $1500 for rent of the property and $6000 for rent of the equipment. Abdallah testified that the lease he signed was for rent of the building, and that Dante’s representative was to return later in the day with a second lease to | {.cover rental of the equipment. That lease was to be between Dante as lessee and Abdallah’s son as lessor.

Dante contends that the lease was renegotiated for the total amount of $1500 because the business was not making the profit that Abdallah claimed, and the equipment for which rent was being paid was broken and inoperable.

After the signing of the second lease, Dante began making payments of $1500 per month. Copies of the checks made payable to Abdallah dated January 4, February 8, April 1, May 1 and June 1, 2013 were entered into evidence. A check dated June 8, 2013, with a notation “replacement check for March rent” was also entered into evidence. All of the checks were signed and deposited by Abdallah.

Abdallah sent a demand letter to Dante on March 28, 2013 for the $6000 per month he claimed was owed, but no resolution was reached. A Petition for Eviction and or for Damages was filed June 7, 2013.

The record indicates that on June 18, 2013, Abdallah requested service on David Sewell, Dante’s registered agent for service of process; Dennis Brown, Dante’s president; and, any employee of Dante. A return of service indicates that “Ricky,” an employee of Dante, was served on June 21, 2013. A second return of service filed into the record on July 3, 2013, (after the hearing) indicates that Dante’s registered agent for service was served. The return citation was signed by the clerk of court on June 18, and is stamped received by Jefferson Parish on June 20; however, the date of service is blank. Dante admits in its brief that its agent for service of process was served on June 24, 2013.

|sOn June 27, 2013, Dante filed in one pleading, several exceptions, including an exception of improper cumulation, an exception of unauthorized use of summary proceeding, and an exception of no cause of action. Further, it objected to answering the petition for damages/rule for possession as it had not been afforded the legal delays within which to respond. Finally, out of an abundance of caution and to preserve its right to appeal, it answered the petition. The answer was verified pursuant to La.Code Civ. Proc. art. 4735.

On the day of the hearing, the trial court heard the exceptions and overruled them. It then proceeded to conduct a hearing in which testimony was taken and evidence introduced. The trial court granted the eviction and awarded Abdallah $36,000 for unpaid rent from January 1, 2013, through June 30, 2013.

Dante filed a suspensive appeal.

DISCUSSION:

Dante maintains that it paid rent ($1500 per the recorded lease) for the six months that Abdallah claimed he was owed an additional $6,000 per month. The record before us confirms this allegation. Most significantly, Abdallah accepted rent payments for the months of April, May and June, after the notice to vacate letter was sent to Dante.

This Court has held:

The summary action of eviction is based on the required notice to vacate, and the acceptance of rent after that notice, but before judgment of eviction, vitiates the 14notice and prevents a lessor from obtaining such a judgment.

Passalaqua v. Mendez, 388 So.2d 1172 (La.App.4th Cir.1980); also see La.Code Civ. Proc. Arts. 4701, 4702 and 4731; West End Landing, Inc. v. Board of Levee Com’rs, 299 So.2d 418 (La.App. 4th Cir.1974).

Abdallah sent a letter dated March 28, 2013, which included a notice to vacate the premises by April 15, 2013. Despite this notice to vacate, Abdallah received and negotiated rent payments for April, May and June. Therefore, the notice to vacate was vitiated, and the eviction proceedings were improper.

Our review of the record also indicates numerous discrepancies in dates pertinent to service, notice to vacate, and citation. Summary proceedings, such as the eviction proceeding below, “are conducted with rapidity, within the delays allowed by the court, and without citation and the observance of all the formalities required in ordinary proceedings.” La. Code Civ. Proc. art. 2591. To the contrary, ordinary proceedings, such as a suit for money damages, require citation. La. Code Civ. Proc. art. 1201. The citation issued in this case included both a rule date of June 27, 2013, and a notice to file an answer within fifteen days of service. This ambiguity caused Dante to file an answer, basically under protest, to avoid a default judgment. Procedurally, he should have been allowed fifteen days to answer the petition as it pertained to money damages. Instead, the trial court set a trial date on all issues two days after service. This was improper.

|Jn Major v. Hall, the Supreme Court stated: “[t]he law of this state is clear to the effect that damages, in the absence of a special provision, may only be recovered in an ordinary proceeding.” 262 La. 243, 263 So.2d 22 (La.1972). In Friedman v. Hofchar, Inc., 424 So.2d 496 (La.App. 5th Cir.1983), the court, citing Major, stated, “[t]his was a summary proceeding, and the Supreme Court of Louisiana has said, ... that money damages are not recoverable in summary proceedings on a rule to show cause.” [emphasis in original.] Also see, Housing Authority of New Orleans v. Wilson, 503 So.2d 565 (La.App. 4th Cir.1987).

Accordingly, Abdallah’s acceptance of rent after notice to vacate combined with the ambiguities and discrepancies contained in the record, especially as related to the citation, requires this Court to vacate the judgment of eviction and money damages, and to dismiss Abdallah’s petition without prejudice.

JUDGMENT VACATED; PETITION DISMISSED, WITHOUT PREJUDICE.

      . In Dante's brief, it contends that it filed an exception of improper service; however, the pleading in the record does not so indicate.

      . The last paragraph of the letter required a response within five days of receipt. If no response was made, the letter indicated that eviction proceedings would be filed on March 15, 2013, several days prior to the date of the letter.


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

text:
    STATE of Louisiana in the Interest of J.H.
    No. 2013-CA-1026.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 19, 2014.

      Katherine M. Franks, Louisiana Appellate Project, Abita Springs, LA, for Appellant.
    Leon A. Cannizzaro, Jr., District Attorney, Joseph Meyer, Jr., Assistant District Attorney, J. Bryant Clark, Jr., Assistant District Attorney, New Orleans, LA, for Appellee.
    (Court composed of Judge PAUL A. BONIN, Judge DANIEL L. DYSART, Judge SANDRA CABRINA JENKINS).
   PAUL A. BONIN, Judge.

|!J.H. admitted the allegations of the petition accusing him of first-offense possession of marijuana, a misdemeanor-grade act. At the time of his admission, however, he reserved the right to appeal the juvenile-court judge’s denial of his motion to suppress evidence under State v. Crosby. The trial judge entered an order of adjudication, imposing a deferred dispo-sitional agreement whereby further proceedings were suspended, generally conditioned upon J.H.’s good conduct for six months. Upon J.H.’s satisfactory completion of the six-month period, the juvenile-court judge discharged J.H. from further supervision, set aside the adjudication, and dismissed the petition with prejudice. See La. Ch.C. art. 896 F.

Because we also noticed that J.H. is now over the age of seventeen, we directed the parties to show cause in writing why the appeal should not be dismissed as moot. See State v. Malone, 08-2253 (La.12/1/09), 25 So.3d 113. |2 Having the benefit of the parties’ responses, we now conclude that, because any judgment by us can serve no useful purpose and give no practical relief or effect, this entire matter is moot, and we accordingly dismiss the appeal.

We briefly explain our decision below.

I

Having reserved his right to a Crosby appeal, J.H. assigned as error the trial judge’s denial of his motion to suppress the marijuana seized from him. Under Crosby, the relief which we would grant to a successful appellant would be to set aside the guilty plea (or, in a delinquency proceeding, the child’s admission to the petition) and remand for further proceedings. See State v. Crosby, 338 So.2d 584, 592 (La.1976) (“Finally, in our review of preplea rulings or conduct, we may vacate the plea and remand for a new trial if we are not able, in the light of the above principles, to make adequate review of the assignments presented to us.”); see also, e.g., State in the Interest of J.E.T., 09-67, p. 25 (La.App. 3 Cir. 5/6/09), 10 So.3d 1264, 1279. But here the adjudication of delinquency has already been |3set aside; indeed the entire proceeding has been dismissed with prejudice. J.H. tellingly confirms in written argument that he “has achieved the best result he could have obtained as a result of the appeal.”

Conversely, if J.H. were unsuccessful in this appeal, our judgment would not reinstate his admission to the offense, reinstate the adjudication, nor revive the delinquency proceeding against him. Thus, our judgment can change nothing. A “moot” case is one in which a judgment can serve no useful purpose and give no practical effect. See Robin v. Concerned, Citizens for Better Educ. in St. Bernard, Inc., 384 So.2d 405, 406 (La.1980). When a case is moot, there is simply no subject matter on which the judgment of the court could operate. Cat’s Meow, Inc. v. City of New Orleans Through Dept. of Finance, 98-0601, p. 8 (La.10/20/98), 720 So.2d 1186, 1193. And in such a case, jurisdiction, although once established, may abate. Id.

II

J.H.’s second assignment of error requested us to review his disposition as an error patent. Again, because the adjudication has been set aside and the proceedings dismissed, any view that we might express at this point would be purely advisory. More importantly for our purposes, it is clear from the judgment submitted to us by the parties in response to our show cause order that, in light of “no subsequent arrests and/or convictions” of J.H., the juvenile-court judge on 14Pecember 10, 2013 (after the appeal was lodged in our court) granted the dismissal of the proceedings under Article 896: “If the child satisfactorily completes the court ordered period of suspension, the court shall discharge the child from any further supervision or conditions, set aside the adjudication, and dismiss the petition with 'prejudice.” La. Ch.C. art. 896 F (emphasis added).

Here again, any action on our part at this point in time can have no corrective effect on the outcome in this matter.

Ill

J.H., in response to our show cause order, raises several questions undoubtedly occasioned by the reference in our order to State v. Malone. Malone considered whether a defendant’s payment of a fine before he applied for supervisory review of his conviction for a misdemeanor offense mooted his request for judicial review of the conviction. 08-2253 at pp. 1-2, 25 So.3d at 115. The Supreme Court held on the facts presented that the voluntary payment of the fine and costs before appeal rendered judicial review moot. Id., 08-2253 at p. 16, 25 So.3d at 124-125. Our reference to Malone was not intended, however, to suggest that J.H. voluntarily acquiesced in the trial court’s decision before filing his motion for appeal. To the contrary, the record is clear that he intended to obtain judicial review by tendering his admission to the petition under Crosby.

J.H. also expresses concern about whether dismissal of his appeal as moot is a subterfuge whereby a suspended sen-fence might be employed to insulate | ^convictions against constitutional challenges. J.H. himself, however, is no longer at risk of a reoccurrence of the sort of encounter with the police which gave rise to his appeal. The police encounter here was on account of the officer’s reasonable belief that J.H. was absent from school during normal school hours. See La. Ch.C. art. 733.1 A. Only children ranging in ages seven through sixteen are subject to such an encounter. Ibid, (emphasis added). J.H. is now the age of seventeen. Because he cannot be subjected to a reoc-currence of the police conduct, cf. Louisiana Associated Gen. Contractors, Inc. v. State through Div. of Admin., Office of State Purchasing, 95-2105, p. 9 (La.3/8/96), 669 So.2d 1185, 1193, our expressing a view whether or not the eom-plained-of police conduct violated his Fourth Amendment rights would under these circumstances only be advisory. And we shun rendering advisory opinions. See Cat’s Meow, Inc., 98-0601 at p. 8, 720 So.2d at 1193.

DECREE

The appeal of J.H. is dismissed as moot.

APPEAL DISMISSED.

JENKINS, J., Dissents with Reasons.

JENKINS, J.,

Dissents with Reasons.

I respectfully dissent from the majority opinion that this appeal should be dismissed as moot. I would maintain the appeal and address the merits of the arguments raised in the juvenile’s appeal.

This appeal was submitted to our Court almost one month prior to the trial court’s judgment on December 10, 2013 dismissing the delinquency petition pursuant to La. Ch. C. art. 896. Within that period of submission, we could not have dismissed the appeal as moot. Regrettably, it was only through the lapse of time in its submission to this Court that the appeal became potentially moot. In my opinion, this Court did not have facts in the record to provide a basis to dismiss the appeal and our show cause order was issued imprudently. Although the trial court’s judgment on December 10, 2013 dismissing the delinquency petition rendered “the best result [J.H.] could have obtained as a result of the appeal,” that fact was not within the scope of our appellate review when the appeal was submitted. See La. C.C.P. art. 2164. Furthermore, the Louisiana Children’s Code expressly provides to juvenile defendants all the constitutional rights guaranteed criminal defendants by the United States Constitution and the Louisiana Constitution, including the right to judicial review based upon the record of all evidence upon which the judgment is based. State in the Interest of J.T., 11-1646, pp. 5-6 (La.App. 4 Cir. 5/16/12), 94 So.3d 847, 852; La. Ch.C. art. 808; La. Const. Art. I, § 19; La.C.Cr.P. art. 912.1.

      . " 'Misdemeanor-grade delinquent act’ means any offense which if committed by an adult is other than a felony and includes the violation of an ordinance providing a penal sanction." La. Ch.C. art. 804(8). First-offense possession of marijuana is punishable by a fine of not more than $500, imprisonment in the parish jail for not more than six months, or both. See La. R.S. 40:966 E(l). Because the offender may not be sentenced to death or imprisonment at hard labor, the offense is a misdemeanor. See La. R.S. 14:2(4),(6).

      . 338 So.2d 584 (La. 1976).

      . Specifically, J.H. complains that he was subjected to a search of his person at the time the police officer was preparing to lawfully transport him to a truancy center. He correctly notes that being absent from school without justification is not a crime. He claims that his Fourth Amendment right to be secure in his person was violated because the officer had no probable cause to believe he had committed a crime at the time of the search. Cf. State in the Interest of R.D., 99-801 (La.App. 5 Cir. 11/30/99), 749 So.2d 802. See also D.O. v. State, 77 So.3d 787 (Fla. 3rd Dist.Ct.App.2011).

      . In delinquency proceedings, a petition is the functional equivalent of an indictment or bill of information. See La. Ch.C. art. 845 A; La.C.Cr.P. art. 464. “The petition shall conclude with a request that the court adjudicate the child to be delinquent.” La. Ch.C. art. 845 D. A child may admit to the allegations of the petition, and after determining that there is a factual basis for adjudication, the trial judge may adjudicate the child delinquent. See La. Ch.C. art. 856 A(3). Thus, an admission is comparable to a plea of guilty (but without the morally pejorative connotation). See La.C.Cr.P. arts. 552(1), 556, 556.1.

      .In particular, J.H. argues that the juvenile-court judge both deferred the disposition and at the same time imposed the disposition. Cf., State in the Interest of Lucas, 543 So.2d 634, 635-636 (La.App. 1st Cir.1989).

      . J.H. references Jacobs v. New York, 388 U.S. 431, 431-432, 87 S.Ct. 2098, 18 L.Ed.2d 1294 (1967) (Warren, C.J., dissenting). We express no opinion on whether a civil action under 42 U.S.C. § 1983 could be maintained on behalf of J.H.


text:
    STATE of Louisiana v. Martha A. OLIVIA.
    No. 2013-KA-0496.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 26, 2014.

      Leon A. Cannizzaro, Jr., District Attorney, J. Bryant Clark, Jr., Assistant District Attorney, New Orleans, LA, for Appellant/State of Louisiana.
    Bernard J. “Ben” Bagert, Jr., Aubrey M. Harris, Kennedy Harris, LLC, New Orleans, LA, for Defendant/Appellee.
    Court composed of Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE, Judge SANDRA CABRINA JENKINS.
   TERRI F. LOVE, Judge.

LThe State appeals the trial court’s granting of Martha Olivia’s (“Ms. Olivia”) motion to quash the bill of information charging her with violation of La. R.S. 14:39.2. Following a hearing on the motion, the trial court granted the motion based on its consideration of Ms. Olivia’s factual defense to the offense charged. We find a trial court’s ruling on a motion to quash is limited to questions of law and does not extend to defenses based on factual determinations. Therefore, we reverse the trial court’s granting of Ms. Olivia’s motion to quash the bill of information and remand for further proceedings.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Ms. Olivia was arrested in March 2006 for first degree vehicular negligent injury in violation of La. R.S. 14:39.2 and in April 2006, by bill of information,, the State charged Ms. Olivia with the same. Arraignment was set for June of 2006, but Ms. Olivia failed to appear in court. On that date, the trial court issued an alias capias for Ms. Olivia’s arrest with no bond, and the matter was continued without a date.

| ?In February 2010, Ms. Olivia was arrested on the alias capias. At her arraignment in March 2010, Ms. Olivia entered a plea of not guilty and her defense counsel filed several motions including a motion for a bill of particulars. A hearing on those motions was held in April 2010, at which time the defense counsel waived the motions. Thereafter, the defense counsel filed a motion to quash the bill of information. Ms. Olivia asserted in her motion to quash that pursuant to La.C.Cr.P. art. 532(1) and (2), the State’s “defective document” failed to satisfy the minimum essentials of the term “Bill of Information” as required by Chapters 1 and 2 of Title XIII including La.C.Cr.P. art. 464. Specifically, Ms. Olivia contends the State failed to specify which subparagraph of La. R.S. 14:39.2 Ms. Olivia allegedly violated. The trial court subsequently granted the motion in June 2010. The State now appeals the trial court’s granting of Ms. Olivia’s motion to quash.

STANDARD OF REVIEW

As this Court has stated before, “a motion to quash an indictment is treated much like an exception of no cause of action in a civil suit; the court must accept as true the facts contained in the bill of information and the bills of particulars and decide whether or not a crime has been charged.” State v. Lagarde, 95-1497, p. 2 (La.App. 4 Cir. 4/3/96), 672 So.2d 1102, 1103. Additionally, the Louisiana Supreme Court in State v. Byrd, 96-2302 (La.3/13/98), 708 So.2d 401, 411, noted the question becomes “whether the indictment charges a valid offense. If it does not, it is a defective indictment and its invalidity may be declared by a ruling on a motion to quash, for a motion to quash may be based on the ground that the |3indictment fails to charge an offense which is punishable under a valid statute.” This Court noted in State v. Franklin, 13-0488, p. 6 (La.App. 4 Cir. 10/9/13), 126 So.3d 663, 668, that the trial court’s ruling on a motion to quash is solely a question of law. Thus, on appellate review the trial court’s ruling is subject to de novo review. Id. “Under this standard of review, we do not defer to any factual findings by the trial judge. This lack of deference is strongly rooted in the fact that any factual determinations by a trial judge during that time regarding the merits of any defense would be unauthorized.” Id. (citations omitted).

BILL OF INFORMATION

The State contends the trial court abused its discretion by granting Ms. Olivia’s motion to quash because the bill of information sufficiently informed Ms. Olivia of the nature of the charges. The State asserts that a motion for a bill of particulars is the proper procedural vehicle to remedy a bill of information that is deemed insufficient, not a motion to quash. Additionally, the State contends that the record reflects that Ms. Olivia was fully aware of the nature of the charges.

Pursuant to La.C.Cr.P. art. 463, the bill of information shall set forth “an identifiable offense and inform the defendant of the statutory basis of the offense, but need not set out detailed facts constituting violation since those facts can be Lgiven to the defendant in a bill of particulars.” State v. Robinson, 47,427, p. 8 (La.App. 2 Cir. 10/3/12), 105 So.3d 751, 756.

Additionally, La.C.Cr.P. art. 464 provides:

The indictment shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged. It shall state for each count the official or customary citation of the statute which the defendant is alleged to have violated. Error in the citation or its omission shall not be ground for dismissal of the indictment or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice.

Ms. Olivia asserted in her motion to quash that the bill of information failed to charge her with an offense punishable under a valid statute. Specifically, Ms. Olivia asserted that Louisiana’s Criminal Code does not contain a crime denominated “First Degree Negligent Injuring” as alleged in the State’s bill of information. In her motion to quash, she noted that the State would likely assert that the stated offense referred to La. R.S. 14:39.2, “First Degree Vehicular Negligent Injuring.” We find Ms. Olivia’s contention to be a misstatement of the facts.

Although, the State’s bill of information did not contain the actual statute number, it did state Ms. Olivia was charged with “First Degree Vehicular Negligent Injuring.” (emphasis added). Pursuant to La.C.Cr.P. art. 464, the omission of the citation will not be ground for dismissal if the omission did not mislead Ms. Olivia to her prejudice. The bill of information plainly demonstrates the State charged Ms. Olivia with “First Degree Vehicular Negligent Injuring,” and Ms. Olivia could have easily determined which statute she was charged with violating by referencing the Louisiana Criminal Code. Therefore, the bill of information charged Ms. Olivia with an offense punishable under La. R.S. 14:39.2, a valid statute.

| BFurther, La.C.Cr.P. art. 464, requires that the bill of information include “a plain, concise, and definite written statement of the essential facts constituting the offense charged.” Ms. Olivia averred in her motion to quash that because the bill of information did not contain a statement of essential facts, the bill of information did not conform with the requirements of Chapters 1 and 2 of Title XIII, and Ms. Olivia was deprived of her constitutional rights to be informed of the nature and cause of the accusation against her.

In State v. Bouie, 598 So.2d 610, 612 (La.App. 4th Cir.1992), this Court noted that the test in determining whether the bill of information sufficiently informs the defendant of the charged offense is whether the bill of information is misleading to the defendant. See also La.C.Cr.P. art. 464. In that case, the defendant was convicted of attempted aggravated rape and was sentenced to forty years at hard labor. On appeal, this Court affirmed the conviction and sentence. The defendant then requested a review of the trial court’s denial of his application for post-conviction relief. One of the defendant’s claims, in part, was that “the prosecutor amended the bill of information (from attempted forcible rape to attempted aggravated rape) and it was not sufficiently specific, as amended, to inform the defense of the nature and cause of action as required by the U.S. Constitution.” Id. In rejecting this claim, we stated:

Relator’s allegation that the bill was not sufficiently specific to inform him of the charges is without merit. The test is whether the bill is misleading to the defendant. C.Cr.P. article 464 addresses the nature and contents of the information ... Here, the amended charge was based on the same facts and circumstances as the original charge, thus relator was apprised of the incident. Relator has failed to show any error or omission which, if existed, misled relator to his prejudice. The state simply amended the bill of information, and relator was given a reasonable time to prepare for the amended charge. Consequently, this claim is without merit.

|6Id.

The bill of information, in this case, only stated that Ms. Olivia “committed first degree vehicular negligent injuring.” Despite the fact that the bill of information omitted the actual citation of the offense, the statute may be found by referencing the Louisiana Criminal Code. As a result, the bill of information charged Ms. Olivia with violation of La. R.S. 14:39.2 which states in pertinent part:

A. First degree vehicular negligent injuring is the inflicting of serious bodily injury upon the person of a human being when caused proximately or caused directly by an offender engaged in the operation of, or in actual physical control of, any motor vehicle, aircraft, watercraft, or other means of conveyance whenever any of the following conditions exists:
(1) The offender is under the influence of alcoholic beverages.
(2) The offender’s blood alcohol concentration is 0.08 percent or more by weight based upon grams of alcohol per one hundred cubic centimeters of blood.
(3) The offender is under the influence of any controlled dangerous substance listed in Schedule I, II, III, IV, or V as set forth in R.S. 40:964, or any abused substance.
(4)(a) The operator is under the influence of a combination of alcohol and one or more drugs which are not controlled dangerous substances and which are legally obtainable with or without a prescription.
(b) It shall be an affirmative defense to any charge under this Paragraph pursuant to this Section that the label on the container of the prescription drug or the manufacturer’s package of the drug does not contain a warning against combining the medication with alcohol.
(5)The operator is under the influence of one or more drugs which are not controlled dangerous substances and which are legally obtainable with or without a prescription and the influence is caused by the operator knowingly consuming quantities of the drug or drugs which substantially exceed the dosage prescribed by the physician or the dosage recommended by the manufacturer of the drug.

La. R.S. 14:39.2(A).

A review of La. R.S. 14:39.2(A) establishes five subparagraphs under which a defendant may be charged. Ms. Olivia argued in her motion to quash that |7because there are five subparagraphs, the bill of information failed to indicate which specific offense she was charged with violating. This argument calls into question whether the bill of information sufficiently specified the offense being charged.

Applying this Court’s reasoning in Borne, the issue is whether the bill of information was misleading to Ms. Olivia’s prejudice. In Bowie, this Court held that the amended bill of information sufficiently specified the offense charged because the amended bill of information was “based on the same facts and circumstances as the original charge.” Bouie, 598 So.2d at 612.

Conversely, in this case, the record reveals that Ms. Olivia filed a motion to suppress the evidence, including re-suits/refusal of field sobriety tests and administration/results of chemical breath test(s), confessions, inculpatory statements and admissions (including refusal(s) of field sobriety tests), soon after Ms. Olivia’s arrest on the alias capias. The record also indicates that Ms. Olivia was made aware of her rights related to the chemical test for intoxication and such test was conducted. The arrest report indicates that the chemical test for intoxication yielded results of .182g%.

The State contends that because Ms. Olivia filed a motion to suppress the evidence and the record contained information that sufficiently informed her of the details of the offense, she was aware of which subparagraph of La. R.S. 14:39.2 she was charged with violating. Ms. Olivia contends, however, that the bill of information was insufficient in that it failed to inform her of which of the five subpara-graphs of Paragraph A defining the offense under which the State intended to proceed, and thus deprived her constitutional rights to be informed of the nature and cause of the charge against her.

[^Although the argument may be made that because subparagraph (1) and (2) involve alcohol consumption and blood alcohol consumption, Ms. Olivia could have been charged with violating either or both, and therefore, misled to her prejudice, we are not convinced. Namely, the motion to suppress and the arrest report made part of the record indicate that a chemical test for intoxication was conducted and yielded results of .132g%. Given that the arrest report alleges her blood alcohol concentration was above 0.08 percent, Ms. Olivia was not misled to her prejudice as she likely knew or could have determined by referencing the Louisiana Criminal Code, the nature and cause of the charge against her; more specifically, La. R.S. 14:39.2(A)(2). Accordingly, we find the bill of information sufficiently informed Ms. Olivia of the offense charged and the omission of the statute citation did not mislead her to her prejudice.

MOTION TO QUASH

Finding the bill of information sufficient, we next look at whether the trial court properly granted, the motion to quash. The trial court granted Ms. Olivia’s motion to quash because it reasoned that the State would be unable to prove that Ms. Olivia was actually operating the vehicle at the time of the accident. At the hearing on the motion to quash, defense counsel argued that the bill of information failed to provide essential facts for the offense as required by law. Defense |9counsel further requested that the State “just tell us what she did, then [the bill of particulars] will be satisfied.” Defense counsel went on to argue that defense suspected the reason the State could not tell defense what Ms. Olivia did was because the State could not prove that Ms. Olivia was driving the vehicle at the time of the incident. At this suggestion, the trial court began to question the State on whether Ms. Olivia was operating the vehicle at the time of the incident. When the State failed to answer the question, the trial court immediately granted Ms. Olivia’s motion to quash the bill of information.

This Court in State v. Schmolke, 12-0406, p. 2-3 (La.App. 4 Cir. 1/16/13), 108 So.3d 296, 298, held:

“A judge’s consideration of a motion to quash is confined to questions of law and, as a general rule, does not extend to defenses based upon factual findings ... The motion to quash is a mechanism for consideration of pre-trial pleas, which are ‘pleas which do not go to the merits of the charge.’ State v. Byrd, 96-2302 (La.3/13/98), 708 So.2d 401. ‘[T]he question of factual guilt or innocence is not before the court’ at a hearing on the motion to quash. Id. at 411. While evidence may be adduced at a hearing, ‘such may not include a defense on the merits.’ Id. at 411.”

In this case, the only evidence before the trial court on the motion to quash was the bill of information and the supporting oral arguments at the hearing on the motion. Whether Ms. Olivia was operating the vehicle at the time of the incident was not addressed in her motion to quash. Raising the issue at the hearing constitutes a defense to the offense charged. Thus, because the trial court’s consideration of a motion to quash does not extend to defenses based on factual | infindings nor consideration of one’s guilt or innocence, the trial court erred in granting Ms. Olivia’s motion to quash on this ground.

Further, Ms. Olivia asserts an additional basis for the trial court’s granting of her motion to quash. On appeal, Ms. Olivia claims the State failed to timely prosecute within the two year statute of limitations pursuant to La.C.Cr.P. art. 578(A)(2). This Court in Bd. of Directors of Indus. Dev. Bd. of City of New Orleans v. All Taxpayers, Prop. Owners, Citizens of City of New Orleans, 03-0826, p. 4 (La.App. 4 Cir. 5/29/03), 848 So.2d 740, 744, held:

Pursuant to La. C.C.P. art. 2164, an appellate court must render a judgment upon the record on appeal. The record on this appeal is that which is sent by the trial court to the appellate court and includes the pleadings, court minutes, transcript, judgments and other rulings, unless otherwise designated. La. C.C.P. art. 2127 and 2128. An appellate court cannot review evidence that is not in the record on appeal and cannot receive new evidence. Augustus v. St. Mary Parish School Board, 95-2498, p. 16 (La.App. 1 Cir. 6/28/96), 676 So.2d 1144, 1156. The appellate briefs or motions of parties and attachments thereto are not a part of the record on appeal, and this court has no authority to consider on appeal facts referred to therein, or in exhibits attached thereto, if those facts are not in the record on appeal. Id. The appellants must seek their remedy, if any, before the trial court. See La. C.C.P. art.2001, et seq.

Therefore, we cannot consider a new ground for a motion to quash raised for the first time on appellate review. Nonetheless, it is the State who seeks appellate review of the trial court’s judgment. Accordingly, we find that Ms. Olivia’s failure to raise the issue of timely prosecution in her motion to quash in the trial court prohibits this Court from considering it on appeal.

| ^DECREE

•For the foregoing reasons, we reverse the trial court’s ruling granting the motion to quash the bill of information. The matter is remanded to the trial court for further proceedings.

REVERSED AND REMANDED.

      . La.C.Cr.P. art. 463 states: The information may be in substantially the following form: In the (Here state the name of the court.) on the_day of_, 19_State of Louisiana v. A.B. (Here state the name or description of the accused.). X.Y., District Attorney for the Parish of_, charges that A.B. (Here state the name or description of the accused.) committed the offense of_, in that (Here set forth the offense and transaction according to the rules stated in this Title. The particulars of the offense may be added with a view to avoiding the necessity for a bill of particulars.) contrary to the law of the state of Louisiana and against the peace and dignity of the same.

      . In light of this Court’s finding that the bill of information sufficiently informed Ms. Olivia of the offense charged, we pretermit discussion of the State's argument in the alternative that a motion for a bill of particulars is the proper procedural mechanism to correct an insufficient bill of information, not a motion to quash.
      Nonetheless, it is recognized that the docket master constitutes part of the record even if certain filings are absent from the actual minute entries. See State v. Ruffin, 97-0612 (La. App. 4 Cir. 5/19/99), 738 So.2d 624, 625. In this case, despite the absence of a minute entry reflecting the defense’s filing of a motion for a bill of particulars, the docket master indicates that the clerk's office received several motions including a motion for a bill of particulars filed by Ms. Olivia on March 2, 2010.

      . The trial court provided no reasons for granting the motion to quash; however, the hearing transcript and the trial court’s line of questioning imply that its factual finding was the basis for granting the motion to quash.