author: PAUL A. BONIN, Judge.

text:
    Michelle ALBE v. CITY OF NEW ORLEANS, Photo Safety Program.
    No. 2014-CA-0186.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 17, 2014.

      Jennifer N. Willis, Willis & Buckley, APC, Joseph G. Albe, Roy F. Amedee, Jr., Edward R. Washington, III, Attorney at Law, Kristin Mosely Jones, Bienvenu, Foster, Ryan & O’Bannon, LLC, New Or-
    leans, LA, Robert A. Lenter, Gregory John McDonald, Joseph McMahon, III, Attorney at Law, Metairie, LA, Anthony S. Maska, The Law Firm of Edward S. Bopp, Mandeville, LA, for Plaintiff/Appellant-Vernetta Ballard.
    Kim M. Boyle, Allen C. Miller, Phelps Dunbar LLP, New Orleans, LA, Jessica C. Huffman, Attorney at Law, Baton Rouge, LA, for Defendant/Appellee-American Traffic Solutions, Inc.
    Patricia S. LeBlanc, Carl Butler, Michael L. Fantaci, Deborah A. Villio, Le-Blanc Butler, LLC, Metairie, LA, Shawn Lindsay, Assistant City Attorney, Sharon-da R. Williams, Chief of Litigation City Attorney, New Orleans, LA, for Defendant/Appellee-City of New Orleans.
    (Court composed of Judge ROLAND L. BELSOME, Judge PAUL A. BONIN, Judge DANIEL L. DYSART).
   PAUL A. BONIN, Judge.

11Vernetta Ballard, one of the current plaintiffs in this putative class-action lawsuit, concedes that her tort claims against the defendants, the City of New Orleans and its contractor, American Traffic Solutions, Inc., would be prescribed because they were not asserted within the applicable one-year prescriptive period. But, she argues, that by applying the softening doctrine of contra non valentem, the one-year prescriptive period is tolled and her claims are timely, and thus the district court’s sustaining of American Traffic’s exception of prescription and dismissal with prejudice of her lawsuit against it should be reversed.

American Traffic operates a traffic enforcement system using cameras. After Mrs. Ballard failed to timely pay two camera-generated red-light citations, the defendants issued two delinquency notices, both of which threatened her with the possibility of “jail time” if she persisted in her refusal to pay the citations. The parties now all agree that there is no legal basis or justification for such a threat.

The kernel of Mrs. Ballard’s invocation of contra non valentem is her assertion that American Traffic prevented her from timely filing suit because it 12supplied her with false information about the possibility of jail time and did not take any corrective action to notify her of the falsity of its threat of the possibility of jail time. We conclude that Mrs. Ballard’s ignorance of the law-as opposed to her ignorance of any facts-does not toll the applicable one-year prescriptive period. And because we also conclude that the trial judge’s factual findings were not clearly wrong and were reasonable and that her application of the controlling law was correct, we affirm the judgment dismissing with prejudice Ms. Ballard’s suit against American Traffic. We explain our decision in greater detail below.

I

At the outset we provide a brief description of the background of these' proceedings.

This case arises out of the City of New Orleans’ Automated Traffic Enforcement System. The City and American Traffic entered into a contract whereby American Traffic installed traffic cameras on select City streets, issued citations, and collected monies for traffic violations.

It was Michelle Albe, and not Mrs. Ballard, who originally filed suit on December 8, 2008, against the City asking the district court to rule that the City’s |sAutomated Traffic Enforcement System ordinance is unconstitutional and reverse a traffic ticket issued to her under the system. Mrs. Albe amended her petition several times to add American Traffic as well as tort claims for fraud, intentional infliction of emotional distress, and negligent infliction of emotional distress arising out of the mental anguish associated with receiving delinquency notices with the “jail time” language. The specific objectionable language was contained on the back of the delinquency notices: “Failure to respond will cause this matter to be submitted to a collection agency in accordance with applicable state and federal laws and additional fines and possible jail time may be assessed against you. It may also result in the vehicle being immobilized and/or impounded.” (emphasis added)

Mrs. Albe amended her suit on July 16, 2009, to include several class action claims. It appears that the scope of the class- was then narrowed to comprise only those indi-victuals who received delinquency notices threatening jail time.

At this point, Mrs. Albe and Oliver Green, the remaining two class representatives, sought to be removed as class representatives and amended the petition to name Mrs. Ballard, and two others, as class representatives. With the filing of this supplemental petition, the plaintiffs are no longer seeking a declaration that all or parts of the Automated Traffic Enforcement System ordinance are unconstitutional. Rather, the plaintiffs’ claims are limited solely to Rtort claims for fraud, intentional infliction of emotional distress, and negligent infliction of emotional distress stemming from the issuance of delinquency notices containing the “jail time” language.

Mrs. Ballard received two applicable notices of delinquency — one on May 30, 2008, and the other on June 3, 2008. Both notices were received more than one year before the filing of the supplemental petition on July 16, 2009. American Traffic filed its exception of prescription on August 23, 2013, arguing that Mrs. Ballard’s claims should be dismissed as untimely because Mrs. Albe did not seek class status until July 16, 2009, more than one year after Mrs. Ballard would have received a delinquent notice containing the “jail time” language. As we have already stated, Mrs. Ballard conceded that more than one year elapsed between her June 3, 2008 notice and Mrs. Albe’s July 16, 2009 filing of the class action petition, but nonetheless argued that the doctrine of contra non valentem should apply to toll the prescriptive period and preserve her claims.

Specifically, Mrs, Ballard asserts that she did not know that the “jail time” language was false until after she saw the class action’s website and spoke with an attorney, and that her lack of knowledge was attributable to the City’s failure to notify her that the inclusión of the “jail time” language in the 2008 notices was improper.

The parties, argued the merits of American Traffic’s exception and introduced exhibits in support of their respective positions. The district judge granted the exception, without assigning reasons, and signed a judgment on | ¡¡October 17, 2013, dismissing Mrs. Ballard’s claims against American Traffic with prejudice. Mrs. Ballard subsequently filed a timely petition for devolutive appeal.

II

We summarize now the well-established decisional rules applicable to exceptions of prescription and the contra non valentem doctrine.

A

“Prescription must be pleaded. Courts may not supply a plea of prescription.” La. Civil Code art. 3452. See also La. C.C.P. art. 927 B (“The court may not supply the objection of prescription, which shall be specially pleaded.”). Prescription is an objection raised by peremptory exception. ■ See La. C.C.P. art. 927 A(l). Like other peremptory exceptions, a defendant may raise the exception of prescription in the trial court at any time prior to the matter’s submission after trial. La. C.C.P. arts. 927 and 928(B). La. C.C.P. art. 929 provides that when a peremptory exception is pled prior to trial, the exception is tried and disposed of in advance of or on the trial of the case.

Ordinarily, the exceptor bears the burden of proof at the trial of the peremptory exception. See Spott v. Otis Elevator Co., 601 So.2d 1355, 1361 (La. 1992). If prescription is evident on the face of the pleadings, however, the burden shifts to the plaintiff to show that- the action has not prescribed. See Williams v. Sewerage & Water Bd. of New Orleans, 611 So.2d 1383,1386 (La.1993).

The district court is not bound to accept as true the allegations of plaintiffs petition in its trial of the péremptory exception. See Bowers v. Orleans Parish | School Bd., 95-2530 (La.App. 4 Cir. 5/29/96); 694 So.2d 967, 972. Evidence may be introduced at the trial of all peremptory exceptions, except the objection of no cause of action. See La. C.C.P. art. 931.

A judgment granting a peremptory exception is generally reviewed de novo, because the exception raises a legal question. See Metairie III v. Poche’ Const, Inc., 10-0353, p. 3 (La.App. 4 Cir. 9/29/10); 49 So.3d 446, 449. When evidence is introduced and evaluated at the trial of a peremptory exception, we must review the entire record to determine whether the district court manifestly erred with its factual conclusions. See Davis v. Hibernia Nat. Bank, 98-1164 (La.App. 4 Cir. 2/24/99); 732 So.2d 61, 63. The standard of review of a district court’s finding of facts supporting prescription is that the appellate court should not disturb the finding of the district court unless it is clearly wrong. See In re Medical Review Proceedings of Ivon, 01-1296, p. 5 (La.App. 4 Cir. 3/13/02); 813 So.2d 532, 536. The standard controlling our review of a peremptory exception of prescription requires that we strictly construe the statutes against prescription and in favor of the claim that is said to be extinguished. See Proctor’s Landing Property Owners Ass’n, Inc. v. Leopold, 11-0668, p. 10 (La.App. 4 Cir. 1/30/12); 83 So.3d 1199,1206; Bosarge v. DePaul/Tulane Behavioral Health Center, 09-1345, p. 2 (La.App. 4 Cir. 5/19/10); 39 So.3d 790, 792.

B

Although La. Civil Code art. 3467 provides that “prescription runs against all persons unless exception is established by legislation,” Louisiana jurisprudence |7has long recognized the doctrine of contra non valentem as a means of suspending the running of prescription when the circumstances of a case fall within one of four categories. See Frank L. Maraist and Thomas C. Galligan, Louisiana Tort Law § 10-4(b), 222 (1996). The jurisprudence also recognizes that the doctrine is used to soften the occasional harshness of prescriptive statutes. See Carter v. Haygood, 04-646, p. 11 (La.1/19/05);' 892 So.2d 1261, 1268. Nevertheless, the Supreme Court has cautioned that the doctrine only applies in exceptional circumstances. See Marin v. Exxon Mobil Corporation, 09-2368, p. 13 (La. 10/19/10); 48 So.3d 234, 245.

But “[t]here is no question but that contra non valentem continues to be a viable exception to the running of Iiberative prescription in Louisiana.” Plaquemines Parish Commission Council v. Delta Development Company, Inc., 502 So.2d 1034, 1056 (La.1987). The Supreme Court recognized the four instances where contra non valentem can be applied to prevent the running of prescription: 1) where there was some legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiffs action; 2) where there was some condition coupled with the contract or connected with the proceedings which prevented the creditor from suing or acting; 3) where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action; and 4) where the cause of action is not known or reasonably | sknowable by the plaintiff, even though this ignorance is not induced by the defendant. These categories allow “the courts to weigh the ‘equitable nature of the circumstances in each individual case’ to determine whether prescription will be tolled.” Wells v. Zadeck, 11-1232, p. 9 (La.3/30/12); 89 So.3d 1145, 1150, citing Plaquemines Parish Commission Council, 502 So.2d at 1054-1055. Here, we need only attend to the third and fourth instances as Mrs. Ballard does not rely upon the first and second instances in her argument.

III

Upon our de novo review of the matter, we conclude that the district judge correctly sustained American Traffic’s exception of prescription. We restrict our review in this instance to a de novo because there is no controversy regarding any factual resolutions by the district judge.

The nature of a cause of action must be determined before it can be decided which prescriptive term is applicable. See Ames v. Okie, 11-1540, p. 6 (La.App. 4 Cir. 5/23/12); 97 So.3d 386, 391. The character of an action disclosed in the pleadings determines the prescriptive period applicable to that action. Id. The present iteration of plaintiffs’ petition asserts three causes of action: 1) fraud; 2) intentional infliction of emotional distress; and 3) negligent infliction of emotional | fldistress. These causes of action are, unquestionably, tort-based or delictual, and thus subject to one-year prescriptive period. See La. Civil Code art. 3492. See also Cacioppo v. Alton Ochsner Foundation Hospital, 01-808, p. 5 (La.App. 5 Cir. 12/26/01); 806 So.2d 803, 805; King v. Phelps Dunbar, 98-1805, p. 7 (La.6/4/99); 743 So.2d 181, 187; Duncan v. Bartholomew, 11-0855, p. 11 (La.App. 4 Cir. 3/14/12); 88 So.3d 698, 707-708.

' We turn then to explain why the one-year prescriptive period was npt tolled under the third and fourth instances of contra non valentem and address each instance in turn.

A

The third category of contra non valentem prevents the running of prescription “when the defendant has done some act effectually to lull the victim into inaction and prevent him from availing himself of his cause of action.” Ames, 11-1540, p. 15, 97 So.3d at 395. This category has been applied to cases where a defendant has concealed the fact of the offense or has committed acts (including [^concealment, fraud, misrepresentation, or other “ill practices”) which tend to hinder, impede, or prevent the plaintiff from asserting his cause of action, as long as plaintiffs delay in bringing suit is not willful or the result of his own negligence. Marin, 09-2368, p. 23, 48 So.3d at 251-252. This category is implicated only when: 1) the defendant engages in conduct which rises to the level of concealment, misrepresentation, fraud or ill'practice; 2) the defendant’s actions effectually prevented the plaintiff from pursuing a cause of action; and 3) the plaintiff must have been reasonable in his or her inaction. See Marin, 09-2368, p. 24, 48 So.3d at 252; Allstate Ins. Co. v. Fred’s Inc., 09-2275 (La.1/29/10); 25 So.3d 821 (contra non valentem not applicable where plaintiffs lack of due diligence resulted in failure to ascertain manufacturer’s identity which was not disclosed on label). Put differently, contra non valen-tem “will not exempt a plaintiffs claim from running if his ignorance is attributable to his own willfulness, neglect, or unreasonableness.” Dominion Exploration & Prod., Inc. v. Waters, 07-0386, p. 14 (La.App. 4 Cir. 11/14/07); 972 So.2d 350, 360.

In this case, Mrs. Ballard argues that the “jail time” language on her delinquency notices constitutes fraud on the part of the defendants, and that the City’s failure to notify her that the language was incorrect effectively prevented her from pursuing her cause of action. While it is clear that the “jail time” language was legally false, it is equally clear, however, that neither the City nor American Traffic did anything to prevent Mrs. Ballard from investigating the truth of the matter herself.

[nOur examination of Mrs. Ballard’s delinquency notices reveals that they reference a toll free customer service telephone number that was set up to answer ticket recipient’s questions. Similarly, the same section on Mrs. Ballard’s, notices that contains the “jail time” language also references the Automated Traffic Enforcement System’s governing ordinances — Sections 154-1701 to 154-1704 of the New Orleans Municipal Code. A simple perusal of these statutes — which are available in print and on the internet — reveals the program to be entirely civil in nature. For example, Section 154-1704, titled “Effect of Liability; exclusion of civil remedy”, provides:

(a) The imposition of a civil penalty under this article shall not be considered a criminal conviction.
(b) A civil penalty may not be imposed under this article upon the owner of a motor vehicle, if the operator of the vehicle was arrested or was issued a speeding citation and notice to appear by a law or public safety officer as a violation of R.S. 32:232, even if such violation was captured by the automated traffic enforcement system. The imposition of a civil penalty under this article is an alternative method of detecting and deterring red-light violations and speeding.
(c) An owner who fails to pay the civil penalty or to timely challenge liability for the penalty is considered to admit liability for the full amount of the civil penalty stated in the notice of violation mailed to the vehicle owner, and the matter will be transmitted to the parking adjudication bureau of the city. The city attorney is authorized to file suit to enforce collection of unpaid fines and/or related fees and penalties imposed under section 154-1703 to secure such payments.
(d) If the owner fails to timely respond to the second notice, the department of public works is authorized to enforce the payment of this civil penalty and related fees by use of the following methods: immobilization of vehicles (booting), towing and impounding, reporting the debt to collection 1^agencies/credit reporting agencies, and/or initiating actions through the court.
(Emphasis added.)

Far from prohibiting further investigation, Mrs. Ballard’s delinquency notices provided sufficient information to excite attention and prompt further inquiry into the underlying ordinances which would have revealed the mistaken nature of the “jail time” language. Thus, the third category of contra non valentem cannot be applied here to toll the prescriptive period.

B

In the fourth instance of contra non valentem, prescription does not run when “the cause of action is not known or reasonably knowable by the plaintiff, even though this ignorance is not induced by the defendant.” Wells, 11-1282, p. 9, 89 So.3d at 1150. Under this category, “the plaintiff must show not only that he did not know facts upon which to base his claim, but also that he did not have reason to know or discover such facts and that his lack of knowledge was not attributable to his own neglect.” Wilhike v. Polk, 08-0379, p. 5 (La.App. 4 Cir. 11/19/08); 999 So.2d 83, 86. The Supreme Court describes the knowledge sufficient to start the running of prescription under the fourth category of contra non valentem as constructive knowledge, or the “ ‘acquisition of sufficient information, which, if pursued, will lead to the true condition of things.’” Marin, 09-2368, pp. 13-14, 48 So.3d at 246, citing Young v. International Paper Co., 179 La. 803, 155 So. 231 (1934).

| , According to Marin, “the ultimate issue in determining whether a plaintiff had constructive knowledge sufficient to commence a prescriptive period is the reasonableness of the plaintiffs action or inaction in light of his education, intelligence, and the nature of the defendant’s conduct.” Marin, 09-2368, p. 15, 48 So.3d at 246. Conversely, the Supreme Court has noted that contra non valentem “will not exempt the plaintiffs claim from the running of prescription if his ignorance is attributable to his own willfulness or neglect; that is, a plaintiff will be deemed to know what he could by reasonable diligence have learned.” Marin, 09-2368, p. 13, 48 So.3d at 246, citing State Through Div. of Admin. v. McInnis Bros. Const., 97-0742, p. 3 (La.10/21/97); 701 So.2d 937, 940 n. 2.

Here, Mrs. Ballard contends that the tortious behavior which gave rise to all three of her stated causes of action was the inclusion of the “jail time” language in the delinquency notices. The language’s inclusion is tortious, she argues, because it is false. As the governing statutes make plain, tickets issued in conjunction with this program are entirely civil in nature. See New Orleans Municipal Code Sections 154-1701 — 154-1704. Mrs. Ballard claims that she did not discover this falsity until after the one-year prescriptive period had passed. The one piece of knowledge she lacked by the time her claims prescribed, therefore, was the fact that the “jail time” language was wrong because the Automated Traffic Enforcement System is entirely civil in nature.

We observe, however, that Mrs. Ballard’s argument on this point overlooks a fundamental difference between “ignorance of the facts giving rise to a legal | M claim, and ignorance of one’s legal rights under the known facts.” See Lieber v. State, Department of Transportation & Development, 28,745, p. 12 (La.App. 2 Cir. 10/30/96); 682 So.2d 1257, 1262. Although ignorance of specific facts giving rise to a legal claim can prevent the running of prescription in certain circumstances, ignorance of the law does not. Id. Indeed, it has long been held that mere ignorance of one’s rights will not toll prescription. See Martin v. Mvd Supply Co., 239 La. 616, 119 So.2d 484, 492 (La.1960) (on rehearing). “It is not and has never been the law that one must receive notice of a law before it can affect him.” West v. State, 356 So.2d 1015, 1016 (La.App. 1 Cir.1977). The fourth category of contra non valentem, therefore, does not apply under these circumstances so as to toll the prescriptive period.

CONCLUSION

Mrs. Ballard has failed to establish that the third or fourth instances or categories of the softening doctrine of contra non valentem can be applied to toll the one-year prescriptive period. Because her lawsuit was filed more than one year after her receipt of the objectionable delinquency notices threatening her with “possible jail time,” her delictual claims against American Traffic are prescribed.

DECREE

The district court judgment sustaining the exception of prescription filed by American Traffic Solutions, Inc. and dismissing with prejudice Vernetta Ballard’s claims against it is affirmed.

AFFIRMED.

      . The record before us is void of any exception of prescription filed by the City. And we may not supply the exception. See La. Civil Code art. 3452; La. C.C.P. art. 927 B.

      . We note that this is not the first time that this matter has appeared before us. In Albe v. City of New Orleans, 12-0073 (La.App. 4 Cir. 7/5/12); 97 So.3d 583, we affirmed a judgment granting American Traffic’s exception of no right of action seeking the dismissal of the plaintiffs’ Fair Debt Collection Practices Act claims. See 15 U.S.C. 1692 et seq. In the course of that opinion we held that the contract between the City and American Traffic, which provides that collection of assessed fines for traffic violations will comply with the Fair Debt Collection Practices Act, was not a “stipulation pour autrui” for the benefit of motorists. Further, in Albe v. City of New Orleans, 12-1636 (La.App. 4 Cir. 1/4/13); un-pub., we affirmed the district judge’s denial of American Traffic's motion for summary judgment seeking the dismissal of all plaintiffs’ claims for fraud, intentional infliction of emotional distress, negligent infliction of emotional distress, and class action certification.

      .The defendants discontinued the threat of “possible jail time” in notices issued after April 2009.

      . The plaintiffs' Fifth Supplemental and Amending Petition contends that American Traffic issued delinquent notices with the "jail time” language between February 2007 and April 2009.

      . Although they no longer serve as class representatives, Mrs. Albe and Mr. Green are still named plaintiffs, and thus retain their individual claims.

        . Contra non valentem non currit praescriptio means that prescription does not run against a person who could not bring his suit. See Harvey v. Dixie Graphics, Inc., 593 So.2d 351, 354 (La.1992); see also, Cartwright v. Chrysler Corp., 255 La. 597, 232 So.2d 285, 287 (La.1970).

      . Plaintiffs' fifth supplemental and amending petition and class action suit for damages prefaces its numbered allegations with the following statement: "The original and all supplemental and amending petitions are hereby amended in their entirety to read as follows.”

      . To recover under a cause of action for delic-tual fraud, a plaintiff must prove three elements: “(1) a misrepresentation of material fact, (2) made with the intent to deceive, (3) causing justifiable reliance with resultant injury.” Becnel v. Grodner, 07-1041, p. 3 (La.App. 4 Cir. 4/2/08); 982 So.2d 891, 894. To establish a claim for intentional infliction of emotional distress, the plaintiff must prove: 1) that the conduct of the defendant was extreme and outrageous; 2) that the emotional distress suffered by the plaintiff was severe; and 3) that the defendant desired to' inflict severe emotional distress or knew that severe emotional distress would be certain or substantially certain to result from his conduct. See Zeigler v. Housing Authority of New Orleans, 12-1168, p. 9 (La.App. 4 Cir. 4/24/13); 118 So.3d 442, 450. With respect to negligent infliction of emotional distress, this Court has noted: "It is well established in Louisiana jurisprudence that a claim for negligent infliction of emotional distress unaccompanied by physical injury is viable. In addition to satisfying the La. C.C. art. 2315 test, some cases have entailed extraordinary factual scenarios and recovery has been limited to cases involving the likelihood of real and serious mental distress arising from the particular circumstances.” Crockett v. Cardo-na, 97-2346, p. 6 (La.App. 4 Cir. 5/20/98); 713 So.2d 802, 805.

      . Section 154-1704 has not been amended since January 14, 2008.


source: Caselaw Access Project

author: DANIEL L. DYSART, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Garland RAINEY.
    No. 2014-KA-0523.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 17, 2014.

      Leon A. Cannizzaro, Jr., District Attorney, J. Bryant Clark, Jr., Assistant District Attorney, Parish of Orleans, New Orleans, LA, for Appellant/State of Louisiana.
    D. Omavi Harshaw, Orleans Public Defenders, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge ROLAND L. BELSOME, Judge PAUL A. BONIN, Judge DANIEL L. DYSART).
   DANIEL L. DYSART, Judge.

liThe State appeals the trial court’s granting of defendant, Garland Rainey’s, motion to quash. For the reasons discussed below, we reverse the trial court’s ruling and remand for further proceedings.

BACKGROUND:

Garland Rainey was charged by bill of information with one count of possession of oxycodone, a violation of La. R.S. 40:967C(2). The defendant filed a motion to quash the bill of information, arguing that he had a valid prescription for the pills found in his possession. As evidence, the defendant introduced a copy of a prescription and his patient’s history report from Wilkinson Family Pharmacy. The trial court granted the motion, dismissing the charge against the defendant. The State has appealed that ruling.

DISCUSSION:

Appellate courts review motions to quash using an abuse of discretion standard. State v. Tran, 12-1219, p. 2 (La.App. 4 Cir. 4/24/13), 115 So.3d 672, 673; State v. Williams, 12-0110, p. 2 (La.App. 4 Cir. 10/10/12), 101 So.3d 533, 534.

|2We note that this court has held that the proper standard of review relative to a motion to quash is de novo, and that a motion to quash is analogous to an exception of no cause of action in a civil case. State v. Marcelin, 13 — 0893, p. 4 (La.App. 4 Cir. 12/18/13), 131 So.3d 427, 430; State v. Schmolke, 12-0406, pp. 3-4 (La.App. 4 Cir. 1/16/13), 108 So.3d 296, 298. Further, it has been explained that a motion to quash is a mechanism for consideration of pretrial pleas, which are pleas that do not go to the merits of the charge, and that a trial court’s consideration of the motion is confined to questions of law, and as a general rule, does not extend to defenses based upon factual findings. Marcelin, 13-0893, pp. 3-4, 131 So.3d at 430 (“... ,[t]he trial judge’s range of permissible actions is limited to those matters which do not go to the merits of the charge.”); Schmolke, 12-0406, p. 4, 108 So.3d at 299 (Any factual determinations by a trial judge at this time regarding the merits of the defense are unauthorized.).

In 2009, La.Code Crim. Proc. art. 532 was amended to add subsection (10), which added to the list of grounds to be raised by a motion to quash. Article 532 provides that “[a] motion to quash may be based on one or more of the following grounds.” Section 10 reads as follows:

The individual charged with a violation of the Uniform Controlled Dangerous Substances Law has a valid prescription for that substance.

Clearly, if a defendant possesses a valid prescription for a controlled dangerous substance, and he presents it to a trial court for consideration in connection with a motion to quash, the trial court must make a factual finding as to the validity of the evidence, which necessarily reaches the merits of the defense.

The 2009 legislation amending La. Code Crim. Proc. art. 532 also added La. R.S. 40:991, which sets forth that “[production of the original prescription bottle |swith the defendant’s name, the pharmacist’s name, and prescription number shall be sufficient proof of a valid prescription as provided for in this Section.”

Since the amendment to La.Code Crim. Proc. art. 532 and the creation of La. R.S. 40:991, several cases have come before this Court for consideration of a trial court’s granting of motions to quash on the ground that the defendant possessed a valid prescription for the controlled dangerous substance he was charged with possessing. •

In Williams, supra, the defendant was charged with possession of a legend drug. At the hearing on the motion to quash, the defendant presented a computer print-out from his pharmacy indicating that the defendant had a prescription filled for that particular drug. He did not present a prescription or the prescription bottle. The trial court granted the motion to quash finding that the printout was sufficient evidence. The State appealed, arguing that the computer print-out was hearsay. This Court found that the State had waived its hearsay objection by not raising it in the trial court.

The Williams court also found La. R.S. 40:991 “does not limit the nature of evidence that can be used to prove that a defendant had a prescription, but merely recognizes that a prescription bottle is sufficient proof of prescription.” Id. at p. 5, 101 So.3d at 536. Applying rules of statu- ' tory construction, i.e., criminal statutes are subject to strict construction under the rule of lenity and are given a narrow interpretation in favor of the accused, this Court held that the trial court did not err in finding the computer print-out sufficient proof that the defendant had a valid prescription. Id., citing State v. Brown, 03-2788, p. 5 (La.7/6/04), 879 So.2d 1276,1280.

Lin State v. Tran, supra, the defendant was charged with simple possession of car-isoprodol, a controlled dangerous substance. He brought a motion to quash pursuant to La. Code Crim. Proc. art. 532(10), and submitted a patient history report from his pharmacy indicating that a prescription for this particular substance had been written more than two years prior to his arrest. The State argued that because prescriptions are only valid for six months, the evidence offered was not valid for purposes of a motion to quash. This Court found that the trial court did not err in finding the printout sufficient because it evidenced the prescription number, the store from which it was dispensed, the amount dispensed, instructions for taking the drug, the prescribing doctor’s name, the pharmacist’s initials, and a certification signed by the pharmacist that the drug was dispensed to the defendant by order of his personal physician. Id. at pp. 4-5, 115 So.3d at 674..

Turning now to the facts of this case, we must decide if a copy of a prescription and/or a patient history, both of which are signed with no name corresponding to the signature and no certification of authenticity, is sufficient proof of a valid prescription.

The State argues, as it did on appeal in Williams, that the trial court abused its discretion in granting the defendant’s motion to quash the bill of information as the only evidence the defendant presented at the hearing, that is, a copy of the prescription and a patient history report from Wilkinson Family Pharmacy, was inadmissible hearsay. The State asserts that neither item submitted by the defendant was authenticated, and that no testimony was given to prove the validity of the documents.

|sThe defendant, relying on this Court’s opinion in Williams, argues that the items offered to prove he possessed a valid prescription were sufficient to carry his burden of proof.

We find the facts of Williams to be distinguishable. In this case, unlike in Williams, the State did raise a hearsay objection to the admission of the prescription copy and patient history report at the hearing. The State argued that the documents were not certified, nor were any witnesses called to authenticate the documents.

The State further argues on appeal that the Code of Criminal Procedure provides that “[a]ll issues, whether of law or fact, that arise on a motion to quash shall be tried by the court without a jury.” La. Code Crim. Proc. art. 537. Thus, because a hearing on a motion to quash is a formal judicial examination, the Louisiana Code of Evidence applies. The State points to La. Code Evid. art. 1101, which provides in pertinent part:

A. Proceedings generally; rule of privilege.
(1) Except as otherwise provided by legislation, the provisions of this Code shall be applicable to the determination of questions of fact in all contradictory judicial proceedings and in proceedings to confirm a default judgment....

Thus, as discussed above, rulings on motions to quash based on La.Code Crim. Proc. art. 532(10), which require factual determinations by the trial court, also require application of the rules of evidence.

La.Code Evid. art. 1101B(8) provides: Except as otherwise provided by Article 1101(A)(2) and other legislation, in the following proceedings, the principles underlying this Code shall serve as guides to the admissibility of evidence. The specific exclusionary rules and other provisions, however, shall be applied only to the extent that they tend to promote the purposes of the 1 (¡proceeding ... (8) Hearings on motions and other summary proceedings involving questions of fact not disposi-tive of or central to the disposition of the case on the merits, or to the dismissal of the case, excluding in criminal cases hearings on motions to suppress evidence and hearings to determine mental capacity to proceed.

(emphasis added).

The State argues La.Code Evid. art. 1101B(8) is applicable as a determination that the defendant had a valid prescription for oxycodone at the time of his arrest “goes directly to the disposition of the case on the merits or to-the dismissal of the case.”

This argument has merit. The trial court found that the defendant had a valid prescription for oxycodone at the time of his arrest, granted the defendant’s motion to quash, and dismissed the charges against him.

The State argued at the hearing that the computer printout from the defendant’s pharmacy and the copy of the prescription were not authenticated, as they were not certified and no witnesses were called by the defense.

The defense countered that this Court in Tran had allowed a computer printout into evidence without any authentication, and granted the motion to quash. Counsel also noted that the defendant in Tran, unlike his client, did not have a copy of the original prescription.

In Tran, this Court was not asked to consider whether the computer printout offered as proof of a valid prescription was hearsay. Rather, the State argued that the printout demonstrated that the prescription had been filled over two years prior to the defendant’s arrest; therefore, it was unreasonable for the court to find the pills possessed on the date of arrest were the same pills acquired with the prescription.

17Here, the State argued contemporaneously with the introduction of the evidence that the evidence offered was inadmissible hearsay as it was not authenticated.

La.Code Evid. art. 803 et seq., provides that “[t]he following are not excluded by the hearsay rule, even though the declar-ant is available as a witness.” La.Code Evid. art. 803(6) provides an exception to the hearsay rule, namely, records of regularly conducted business activity. This exception applies to records made of events by a person with knowledge, “if made and kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make and to keep the ... record, ... all as shown by the testimony of the custodian or other qualified witness.... ” (emphasis added.) Also see, La.Code Evid. art. 901A.

Based on the above, we find that the copy of a prescription and the pharmacy’s computer printout were not properly authenticated, and should have been ruled inadmissible hearsay.

Accordingly, we reverse the ruling of the trial court granting the defendant’s motion to quash, and remand for further proceedings.

REVERSED AND REMANDED.


author: DENNIS R. BAGNERIS, SR., Judge.

text:
    SUCCESSION OF Andrew Forster CLEMETSON.
    No. 2014-CA-0321.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 17, 2014.

      Harold Edward Molaison, Molaison Law Firm, LLC, Jack Edward Morris, Jack E. Morris, Attorney at Law Metairie, LA, for Appellant/Claudia Clemetson Booth and Charles Clemetson.
    Susan J. Burkenstock, Gary J. Elkins, Thomas M. Beh, Elkins, PLC, New Orleans, LA, for Appellee, Thomas Forrest Thurston.
    Court composed of Chief Judge JAMES F. McKAY, III, Judge DENNIS R. BAGNERIS, SR., Judge SANDRA CABRINA JENKINS.

      . A detailed description of the properties is outlined in the judgment.

   DENNIS R. BAGNERIS, SR., Judge.

|! This appeal involves the succession of the estate of the decedent, Andrew Forster Clemetson (“Forster-Clemetson”).

Appellants, Claudia Clemetson Booth and Charles Clemetson, the decedent’s siblings, appeal the ex parte judgment of possession and the amended ex parte judgment of possession (collectively, “the judgments”) which placed petitioner/appellee, Thomas Forrest Thurston, “and all other legatees and heirs” into possession of Forster-Clemetson’s estate. For the reasons that follow, we vacate the judgments and remand to the trial court for further proceedings consistent with this opinion.

FACTS/PROCEDURAL HISTORY

On December 13, 2013, Thurston filed an ex parte “Petition For Probate Of Foreign Will And For Possession.” The petition represented in part that the decedent, Forster-Clemetson, died on November 26, 2013; was domiciled in Orleans Parish; never married; had no children, by birth or adoption; that the decedent was not adopted; and that Thurston was his life partner. The petition also ^contended that Forster-Clemetson left a Last Will & Testament dated November 25, 2013. The will purportedly was executed in the State of Pennsylvania “according to all formalities of La. Civ.Code art. 1577 and La. Civ.Code art. 1578, in which the testator knew how to sign his name but was unable to provide his normal legible signature because of physical infirmity and, instead, ‘made his mark,’ witnessed by two disinterested persons of the age of majority and domiciled in the State of Pennsylvania, as well as a Notary Public licensed in the State of Pennsylvania.” The petition added that the decedent appointed Thurston, his life partner, as his personal representative to settle or administer the succession of decedent’s estate pursuant to the will. Thurston prayed in the petition that the will be probated and that he “as well as other legatees expressly named or referred to in the will, be recognized as owners and placed into possession of all of the property of the decedent situated in Orleans, Parish,, Louisiana; and for all other general and equitable relief.” Attached to the petition was a descriptive list of assets and liabilities, along with a copy of the will.

On December 17, 2013, the trial court signed an ex parte judgment of possession that placed Thurston and “all other legatees and heirs of the decedent” (hereinafter, collectively referenced as “Thurston”) into possession of all of the decedent’s property situated in Orleans Parish. In general, the properties included several lots of ground, automobiles, business assets, bank accounts, and the decedent’s interest in a pending lawsuit. An amended judgment of possession was signed on January 15, 2014 that also placed Thurston into possession of properties that were erroneously omitted from the original judgment.

|sOn February 14, 2014, the appellants filed the present appeal.

DISCUSSION

The appellants argue that the trial court contravened La. C.C.P. art. 8061(A) in signing the ex parte judgments of possession because an examination of the petition for possession 'and record shows that Thurston was not entitled to the relief as prayed for in his petition. In support, they maintain that Thurston’s petition did not comply with the prerequisites to send legatees into possession without administration pursuant to La. C.C.P. art. 3031(A); and did not comport with the requirements to send intestate heirs into possession without administration as mandated by La. C.C.P. art. 3001(A). The appellants also contend that the probated will is absolutely null for lack of proper form on its face and as judicially confessed in the petition.

With reference to their arguments that Thurston’s petition for possession did not comply with the requirements to send legatees or intestate heirs into possession ■without administration, the appellants rely on La. C.C.P. art. 3031(A) and La. C.C.P. art. 3001(A).

La. C.C.P. art. 3031(A) provides that:
A. When a testament has been probated or given the effect of probate, and subject to the provision of Article 3033, the court may send all of the legatees into possession of their respective legacies without an administration of the succession, on the ex parte petition of all of the general and universal legatees, if each of them is either competent or is acting through a qualified legal representative, and each of them accepts the succession, and none of the creditors of the succession has demanded its administration; and .

|4La. C.C.P. art. 3001(A) states in part that:

A. The heirs of an intestate decedent shall be recognized by the court, and sent into possession of his property without an administration of the succession, on the ex parte petition of all of the heirs, when all of, them are competent and accept the possession, and the succession is relatively free of debt.

In applying these articles to the present matter, the appellants show that Thur-ston’s petition for possession names only Thurston as a legatee. However, they note that the will made particular bequests of specific items to certain parties, not just to Thurston. Consequently, Thurston is not a universal legatee and the bequests are not universal legacies. As a result, they argue that pursuant to Art. 3031(A), Thurston alone cannot accept the legacies on behalf of all of the general and universal legatees in order to be placed into possession without administration; nor can he accept for all the legatees under Art. 3001(A) in the event the decedent is deemed to have died intestate.

This Court agrees with the appellants. Moreover, the appellee, Thurston, concedes that the judgment should be vacated and remanded to the trial court because his petition was not in compliance with Articles 3031(A) and 3001(A) of the Louisiana Code of Civil Procedure.

Having determined that the judgments should be vacated pretermits any discussion of the appellants’ claim that the will should be declared an absolute nullity.

Wherefore, based on the foregoing reasons, the judgments of the trial court placing Thurston into possession are vacated and the matter is remanded for further proceedings.

VACATED AND REMANDED.

      . A detailed description of the properties is outlined in the amended judgment.

      . Art. 3061. Judgment rendered and signed immediately
      A. The court shall render and sign immediately a judgment of possession, if it finds from an examination, of the petition for possession, and from the record of the proceeding that the petitioners are entitled to the relief prayed for.


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

text:
    Anthony J. RUSSO v. Lionel BURNS, Jr., and the Honorable Arthur A. Morrell.
    No. 2014-CA-1008.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 17, 2014.

      Richard Charles Stanley, William M. Ross, W. Raley Alford, III, Stanley Reuter Ross Thornton & Alford, L.L.C., New Orleans, LA, for Plaintiff/Appellant.
    Lionel Lon Burns, Law Offices of Lionel Lon Burns, New Orleans, LA, Defendant/Appellee/In Proper Person.
    (Court composed of Chief Judge JAMES F. McKAY, III, Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME, Judge PAUL A. BONIN, Judge DANIEL L. DYSART, Judge MADELEINE M. LANDRIEU, Judge JOY COSSICH LOBRANO, Judge ROSEMARY LEDET)

      . Judge Sandra Cabrina Jenkins is recused.

   DENNIS R. BAGNERIS, SR., Judge.

I,This is an election contest suit. Plaintiff/appellant, Anthony J. Russo, appeals the trial court’s judgment which overruled its previous decision to disqualify the ap-pellee, Lionel Lon Burns, as a candidate of Orleans Parish District Attorney. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On August 29, 2014, Mr. Russo filed a petition objecting to Lionel Lon Burns as a candidate for Orleans Parish District Attorney. The petition alleged that Mr. Burns had falsely certified on his notice of candidacy form that he had filed his federal and state income tax returns for the previous five years.

At the initial hearing on September 2, 2014, a representative of the Louisiana Department of Revenue testified that the department had no record of state income tax returns from Mr. Bums for the years 2010, 2011, 2012, and 2013. 12Mr. Burns countered that he had retained a tax preparer, Monica Jackson, to prepare and file his tax returns for the disputed years; and that he believed she had timely filed the returns when he qualified for Orleans Parish District Attorney. Mr. Burns submitted records of his purported tax returns into evidence. He requested that the trial court allow him until the following morning to call Ms. Jackson as a witness to verify that the returns had been filed. The trial court denied the request. Thereafter, it rendered judgment in favor of Mr. Russo and disqualified Mr. Burns as a candidate. Mr. Burns appealed. This Court found that the trial court abused its discretion when it denied Mr. Burns’ request to call Ms. Jackson as a witness. Accordingly, we vacated the judgment and remanded the matter to the trial court to allow testimony from Ms. Jackson.

Upon remand, Ms. Jackson stated that she owned a tax and accounting business. She testified that Mr. Burns retained her in early August to prepare and file his tax returns. She maintained that she indeed prepared and filed the returns. Ms. Jackson advised that the returns were placed in a single envelope and mailed to the Louisiana Department of Revenue.

Ms. Jackson averred that the returns were mailed from a post office on Louisiana Avenue in New Orleans. Ms. Jackson acknowledged that she may not have been the one who physically went inside the post office to mail the returns; however, she claimed she drove to the post office with the person from her office who would have gone inside and actually mailed the returns. She explained that |3she has memory lapses because of a diabetic condition. Ms. Jackson went on to identify a United States Postal Service Certificate of Mailing, dated August 15, 2014, that was admitted into evidence. She said she kept this certificate from the post office to document that the tax returns had been mailed and typically retains similar receipts to show to the client. Ms. Jackson also verified that she told Mr. Burns that his returns had been mailed.

In rebuttal, Mr. Russo presented testimony from Helena Shear, a paralegal employed by the law firm for plaintiffs counsel. Ms., Shear said she went to the same post office to mail letters and to obtain certificates of mailing. The certificates of

■⅜ mailing received by Ms. Shear showed postage paid affixed to the certificates, unlike the certificate of mailing introduced into evidence by Mr. Burns.

At the conclusion of the hearing, the trial court determined that the facts presented to the court indicated that Mr. Burns had a good faith belief that he had filed his tax returns when he qualified for office and that he had rebutted the prima facie case for disqualification established by the plaintiff. Accordingly, the court overruled its previous judgment that had granted.plaintiffs objection to Mr. Burns’ candidacy. The effect of the judgment reinstated Mr. Burns’ candidacy.

This appeal followed.

LAW AND DISCUSSION

|4Mr. Russo argues in his assignment of error that the district court committed legal error by essentially rewriting La. R.S. 18:463(A)(2) (a) (iv) to allow Mr. Burns to avoid disqualification premised on Mr. Burns’ belief that “to the best of his knowledge” that he had filed his tax returns. Mr. Russo maintains that the certification requirement of the statute means that a candidate has in fact filed his federal and state tax returns for the previous five years preceding an election. Hence, a candidate’s subjective belief or state of mind has no bearing on disqualification if his certification that his taxes have been filed is indeed false.

Mr. Russo notes that in its previous judgment, the trial judge found that he had met his prima facie burden of proof to disqualify Mr. Burns as the Louisiana Department of Revenue had no record of Mr. Burns’ tax returns and Mr. Burns presented no proof that the returns had been filed. Upon remand, Mr. Russo contends that the testimony of Ms. Jackson and the certificate of mailing introduced into evidence at the remand hearing did not prove that Mr. Burns’ tax returns were actually filed with the Louisiana Department of Revenue. Accordingly, he suggests that because the trial court did not expressly find that Mr. Burns had filed his taxes, it erred as a matter of law in considering Mr. Burns’ state of mind in deciding that he had not made a false certification. We disagree.

|fiMr. Russo’s argument is flawed because La. R.S. 18:492(A)(7) provides for an action to object to candidacy based on false certifications made by the certifying candidate. Therefore, the basis to maintain an action under R.S. 18:492(A)(7) hinges not on whether the taxes were filed, but rather, whether the candidate falsely certified that the taxes were filed.

In order to determine whether a certification was false, courts must consider scienter; that is, knowledge by the representing party that material facts have been knowingly misrepresented with the intent to deceive. Indeed in a related •election contest suit, Louisiana Board Of Ethics v, Wilson, the Third Circuit Court of Appeal, affirmed the judgment of the trial court to not disqualify a candidate for falsely certifying that he had paid an election fine where the candidate believed that the outstanding fine had been paid by an associate. Therefore, we conclude it was not an error of law for the trial court to consider Mr. Burns’ state of mind in deciding if he made a false certification.

Having determined that the trial court did not make an error of law that requires de novo review, we now decide whether the trial court’s decision to overrule the disqualification of Mr. Burns was error.

Our jurisprudence is well-established that for an appellate court to reverse a fact finder’s determinations, the appellate court must find from the record that a | (¡reasonable factual basis does not exist for the finding of the trial court; and the appellate court must further determine that the record establishes that the finding is clearly wrong. Darnell v. Alcorn, 99-2405, p. 6 (La.App. 4 Cir. 9/24/99), 757 So.2d 716, 719. See also Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La.1993). Here, Mr. Russo questions the credibility of Mr. Burns’ witnesses and the evidence he admitted at trial. However, courts of appeal must give deference to the trier of fact’s factual findings based on credibility judgments. Scalione v. Juneau, 10-1109, p. 5 (La.App. 4 Cir. 8/4/10), 45 So.3d 191, 195. Even where the appellate court believes its inferences are more reasonable than the fact finders, reasonable determinations and inferences of facts should not be disturbed on appeal. Arceneaux v. Do-mingue, 365 So.2d 1330 (La.1978).

A careful review of the record shows that the trial court had a reasonable basis upon which to find that Mr. Burns truthfully believed that he had in fact filed his taxes when he certified that he had done so. In particular, Ms. Jackson, the tax preparer, testified that she prepared Mr. Burns’ returns; that the returns were mailed to the Louisiana Department of Revenue; and that she told Mr. Burns that the returns had been mailed. Accordingly, the trial court made a finding that the facts as presented suggested that Mr. Burns certified to the best of his knowledge that he had in fact filed his taxes when he qualified for office. Therefore, this Court cannot say the trial court’s findings were manifestly erroneous or clearly wrong.

|7We also note the jurisprudential rule that candidacies for public office are favored and the courts should uphold a candidacy if an interpretation of the laws would promote the candidacy. See Landiak v. Richmond, 05-0758 p. 7 (La.3/24/05), 899 So.2d 535, 541; Becker v. Dean, OS-2493, p. 7 (La.9/18/03), 854 So.2d 864, 869. The record before us and the interpretation of established case law support that Mr. Burns’ candidacy should be upheld.

Wherefore, based on the foregoing reasons, we affirm the judgment of the trial court overruling Mr. Burns’ disqualification and reinstating his candidacy.

AFFIRMED.

BELSOME, J., concurs in the result with reasons.

DYSART, J., concurs for the reasons set forth by Judge BELSOME.

LOBRANO, J., concurs in the result.

McKAY, C.J., dissents.

TOBIAS, J., dissents and assigns reasons.

LANDRIEU, J., dissents for the reasons assigned by McKAY, C.J.

McKAY, C.J.,

dissents.

This case was remanded to the district court for the specific purpose of permitting Mr. Burns to call Monica Jackson as a witness, whom he claimed could prove that his state tax returns for 2010-2013 were filed with the Louisiana Department of Revenue prior to the execution of his Notice of Candidacy on August 20, 2014. However, Ms. Jackson produced no evidence and gave no testimony establishing that the tax returns were delivered to the LDR.

Louisiana law is unambiguous that a tax return that is never received by the LDR is not deemed to have been “filed.” The taxpayer’s subjective intent to file a return is not enough; the return must actually be delivered. La. Admin. Code tit. 61, pt. I, § 4911(B)(1). Because it is undisputed that Mr. Burns’s returns were not delivered to the LDR, they were not filed as a matter of law. Therefore, his certification in the Notice was false, and he should be disqualified as a candidate in the upcoming election.

TOBIAS, J.,

dissents and assigns reasons.

hi respectfully dissent. I find that the trial court erred as a matter of law by incorrectly interpreting La. R.S. 18:468. Therefore, contrary to the majority’s argument, the proper standard of review is de novo.

I first note that the appellant, Mr. Russo, did not seek supervisory review from the Supreme Court of this court’s 9 September 2014 decision that remanded this case to the trial court for the testimony of Mr. Burns’ tax preparer. Whether it was proper to remand this election case for further testimony has not been resolved by the Supreme Court in spite of this court’s unique holding that it was proper. I have not been able to locate an election contest case where an appellate court remanded for further evidence, save one case where a remand was granted for the limited purpose to determine whether the appellate court had jurisdiction to even hear the appeal. The statutory procedures were followed to the letter by Mr. Russo and it was totally proper for the court to proceed to trial on 2 September 2014 and require Mr. Burns to present his entire case that day.

Second, the additional evidence produced by Mr. Burns at the remand does not address the ultimate issue in this case, to-wit, did Mr. Burns file his tax returns. This issue is addressed further infra. Mr. Burns has omitted significant evidence in |2support of his position. See Russo v. Bums, 14-0952 (La.App. 4 Cir. 9/9/14), 150 So.3d 67, 72-75, 2014 WL 4636409 (Tobias, J. dissenting.)

|sAt the remanded hearing, Monica Jackson, who prepared Mr. Burns’ tax returns, testified that she could not remember who, less than a month earlier, had actually mailed the envelope containing his returns. She testified that she drove to the post office in uptown New Orleans with another person, who she did not recall, to affect mailing. She blamed her lack of memory of various issues on her diabetes and use of insulin to control it. In addition, it strains credibility to accept her testimony that the tax returns were actually mailed uptown, when Mr. Burns went to her home in LaPlace on 14 August 2014 to sign those returns, in light of the necessity to have them filed before 20 August 2014, the date on which Mr. Burns signed his notice of candidacy. The certificate of mailing produced by Ms. Jackson did not contain the amount of postal fee paid for the certificate of mailing |4despite the place on the certificate where such a notation was to be made. Therefore, in my opinion, little weight, if any, can be given to her testimony.

This discrepancy was made even more apparent when compared to the two certificates of mailing produced by a paralegal, who worked for the plaintiffs counsel, who mailed two separate envelopes at the same uptown post office the day before the hearing. Both of those certificates indicated the amount of postal fee for the certificate of mailing paid on their face. See Mailing Standards of the U.S.P.S., Domestic Mail Manual 503.5.1.1 through 503.5.1.4.

Now, Mr. Burns, as echoed by the majority, argues that the trial court made certain credibility determinations before rendering its decision, thereby creating a manifest error/clearly wrong standard of review. However, nowhere in the opinion does the trial court make any credibility determinations. In fact, the trial court acknowledges “that the testimony [subjective at best] and the exhibits [objective] differ significantly.” [Emphasis supplied.] In addition, as quoted infra, the trial court never holds the evidence “proves” that Mr. Burns carried his burden of proof; merely that it is “suggested” that he did so.

La. R.S. 18:463 states in pertinent part: A. (l)(a) A notice of candidacy shall be in writing and shall state the candidate’s name, the office he seeks, the address of his domicile, and the parish, ward, and precinct where he is registered to vote. The candidate shall list on the notice of candidacy the name of the political party if he is registered as being affiliated with a recognized political party, “other” if he is registered as being affiliated with a political party that is not a recognized political party, or “no party” or an abbreviation thereof if he is registered with no political party affiliation. No candidate shall change or add his political party designation, for purposes of printing on the election ballot as required by R.S. 18:551(D), after he has qualified for the election.
(b) The candidate shall designate in the notice the form in which his name shall be printed on the ballot. The candidate may designate his given, first, and middle name, the initials of his given, first, and middle name, a |finickname, or any combination thereof as the form in which his name shall be printed on the ballot, but he shall not designate a title, designation, or deceptive name, nor shall he designate an occupational or professional description or abbreviation. If the candidate designates a nickname in place of or in combination with his given name or the initials thereof, the nickname shall be set off with quotation marks and shall be placed immediately preceding his surname. A candidate shall include his surname in his designation of the form in which his name shall be printed on the ballot.
(2)(a) The notice of candidacy also shall include a certificate, signed by the candidate, certifying all of the following:
(iv) Except for a candidate for United States senator or representative in congress, that for each of the previous five tax years, he has filed his federal and state income tax returns, has filed for an extension of time for filing either his federal or state income tax return or both, or was not required to file either a federal or state income tax return or both.
(viii) That all of the statements contained in it are true and correct.

[Emphasis supplied.]

In this matter, the trial court held:
Thus, the facts presented to this court suggest that when Mr. Burns qualified for office, he certified to the best of his knowledge, that he had in fact filed his taxes. Mr. Burns has submitted sufficient evidence to rebut the prima facia case established by the plaintiff. [Emphasis supplied.]
This ruling is incorrect for two reasons.

First, although it is true, as a general matter, that the law favors candidacy, those cases clarify that once an objector makes a prima facie showing (as was done here), the burden shifts to the defendant to rebut that showing. Landiak v. Richmond, 05-0758, p. 8 (La.3/24/05), 899 So.2d 535, 542; Louisiana State Board of Ethics v. Garrett, 06-0263, p. 8 (La.App. 4 Cir. 3/21/06), 929 So.2d 176, 180_£81.6 Absent rebuttal, the objection to candidacy must be sustained. See Garrett, p. 10, 929 So.2d at 181-182.

In the instant case, the plaintiff proved that as of 2 September 2014, Mr. Burns’ tax returns for years 2010-2013 had not been filed with the Louisiana Department of Revenue (“LDR”). The burden then shifted to Mr. Burns to prove, not suggest, that the returns had been received by the LDR.

Pursuant to the La. Admin. Code title 61, pt. I, § 4911(B)(1):

B. File Date of a Return, Report and Other Document
1. Delivery by the United States Postal Service. A return, report or other document in a properly addressed envelope with sufficient postage delivered by the United States Postal Service is deemed filed on the date postmarked by the United States Postal Service. The postmark must bear a date on or before the last date prescribed for filing the return, report or other document in order to be considered timely filed. If the postmark on the envelope is not legible, the taxpayer has the burden of proving the date that the postmark was made. If the return, report or other document is sent by United States registered or certified mail, , the date of registration is treated as the date of postmark. A postage meter date is considered a valid postmark date provided it does not conflict with a legible United States Postal Service postmark date. If the dates conflict, the United States Postal Service date shall override the meter date.

In this case, Mr. Burns did not objectively prove (as acknowledged by the trial court) that his tax returns had been mailed. In addition, Mr. Burns did not supply, or even proffer, evidence, that his tax returns had been received by the LDR between the initial hearing on 2 September 2014 and the subsequent hearing nine days later; thus, he did not demonstrate that the returns were actually filed under the law. I, therefore, disagree as a matter of law with the trial court that Mr. Burns submitted sufficient evidence to rebut the prima facia case established by the plaintiff.

Second, the notice of candidacy and La. R.S. 18:463 require the candidate to sign the notice certifying “[t]hat all of the statements contained in it are true and 17correct,” not true and correct to the best of his/her knowledge. This holding creates a subjective standard on the part of the candidate. If, as asserted by Mr. Burns, all the candidate would have to prove is “good faith” or “the best of [one’s] knowledge” and belief, election disputes would require lengthy evidentiary processes to prove that the candidate was not in good faith when he/she signed the notice of candidacy. A challenger would have an almost impossible task to disqualify a candidate for office in the limited timeframe for election challenges. This is not what the statute states, contemplates, or requires.

As stated by the Supreme Court in Benjamin v. Zeichner, 12-1763, pp. 5-6 (La.4/5/13), 113 So.3d 197, 202:

The starting point in the interpretation of any statute is the language of the statute itself. When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature. However, when the language of the law is susceptible of different meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law. Moreover, when the words of a law are ambiguous, their meaning must be sought by examining the context in which they occur and the text of the law as a whole. Further, the legislature is presumed to act with full knowledge of well-settled principles of statutory construction. [Footnote omitted.]

Here, the language of La. R.S. 18:463 is clear and unambiguous. It creates an objective test: were Mr. Burns’ tax returns filed, either by objective proof of mailing or actual delivery to the LDR, on 20 August 2014 when he signed the notice of candidacy to run for district attorney. The answer to that question is an unequivocal “No.”

Therefore, I would reverse the district court and hold that Mr. Burns is disqualified as a candidate for the office of Orleans Parish District Attorney.

BELSOME, J.,

concurs in the result with reasons.

|,I concur in the majority’s result to affirm the trial court’s judgment for the reasons stated in my previous concurrence in this case.

      . See Anthony J. Russo v. Lionel Bums, Jr., et al, CDC# 2014-8590.

      .La. R.S. 18:492(A)(7) allows for an action objecting to the candidacy of a person who qualified as a candidate in a primary election where “[t]he defendant falsely certified on his notice of candidacy that for each of the previous five years he has filed his federal and state income tax returns, has filed for an extension of time for filing either his federal or state income tax return or both as provided in R.S. 18:463(A)(2), or was not required to file either a federal or state income tax return or both.”

      . Hereinafter, "tax returns” shall reference returns for the years 2010, 2011, 2012, and 2013.

      . See Anthony Russo v. Lionel Bums, Jr., et al, 2014-CA-0952 (La.App. 4 Cir. 9/9/14), 150 So.3d 67, 2014 WL 4636409.

      . La. R.S. 18:463(A)(2)(a)(iv) provides in part that the notice of candidacy shall also include a certificate by the candidate that "[e]xcept for a candidate for United States senator or representative in congress, that for each of the previous five tax years, he has filed his federal and state income tax returns, has filed for an extension of time for filing either his federal or state income tax return or both, or was not required to file either a federal or state income tax return or both.”

      . La. R.S. 18:492(A)(7) states that an action objecting to candidacy can be based on ”[t]he defendant falsely certified on his notice of candidacy that for each of the previous five tax years he has filed his federal and state income tax returns, has filed an extension of time for filing either his federal or state income tax return or both as provided in R.S. 18:463(A)(2), or was not required to file either a federal or state income tax return or both.”

      . 14-925 (La.App. 3 Cir. 9/9/14), — So.3d —; 2014 WL 4413227; writ denied, 2014-1908 (La.9/15/14), 148 So.3d 938.

      . The dissent reads in pertinent part as follows:
      I find the majority errs by granting a remand in this case.

      After the trial began, the trial court granted Mr. Burns’ request for a recess in order to obtain copies of his 2010-2013 tax returns from his Algiers office. Approximately an hour and forty-five minutes later, Mr. Burns presented tax returns bearing original signatures of himself and his tax preparer dated 14 August 2014. These tax returns appear in the record on appeal. Mr. Burns does not clearly explain how he possessed original tax returns; he seems to say that he signed two copies of each of his tax returns, left one with the tax preparer for mailing, and kept one with the cover letter of transmittal to him dated 11 August 2014 for his records.
      I do not find erroneous the trial judge's conclusions that Mr. Burns' candidacy must be stricken and that he is disqualified to run for the office of district attorney. The trial judge implicitly concluded that Mr. Burns did not file his state income tax returns before he qualified for office on 20 August 2014. The finding is not manifestly erroneous or clearly wrong. If, as Mr. Burns contended in the trial court that his tax preparer mailed the returns on 14 August 2014 k the returns clearly had not been received by the Louisiana Department of Revenue ("LDR”) by 29 August 2014 or during the 2 September 2014 trial, when the LDR witness was testifying I do not find it credible that he relied upon his tax preparer (as he testified) to timely mail the returns given the exigent circumstances.
      I would reject the proffers of Mr. Burns and strike them as the appellees have so moved. He did not file the proffers in the trial court and they do not form a part of the record on appeal. No law or rule of court permits proffers to be filed in the first instance in an appellate court. Therefore, unlike the majority, I would not consider anything in the proffers.
      If I were to consider the proffers, however, I note the following matters which make them questionable and unreliable.
      Mr. Burns’ appellate brief was to be filed in this court by 1:00 p.m. on 5 September 2014. On 5 September 2014, he filed a motion requesting an extension of time to file his appellate brief later that day; the extension was granted. He delivered with his motion two proffers: (1) a purported affidavit of his tax return preparer (Monica Jackson, whose tax preparing service, "Error Proof Tax Service,” is apparently located somewhere west of New Orleans, such as LaPlace or Kenner, Louisiana), stating that she mailed his four state tax returns to the LDR on 15 August 2014: and (2) a U.S. Postal Service certificate of mailing with a cancellation stamp/postmark from a branch post office in uptown New Orleans (zip code 70115) bearing the date of 15 August 2014.
      This first purported original affidavit dated 5 September 2014 does not bear the signature of the tax preparer, Ms. Jackson; it is signed by two witnesses and the notary public only. Later on 5 September 2014, Mr. Burns filed a motion to supplement the record to replace the first purported affidavit. The second affidavit bears the signature of his tax preparer, Ms. Jackson. A comparison of the first purported affidavit with the second affidavit strongly suggests that the notary public and witnesses signed the document prior to the affiant and were not present when Ms. Jackson signed. The signatures of the notary public and witnesses are identical in every respect whatsoever, including and even to the extent that the signature of the notary public crosses the handwritten number “5” in the date of the jurat at the precise same place. The handwritten word "September” in both jurats is distinctively identical with an imperfection in the "ep” of the word "September.” I do not pi dee much credence or credibility in the second affidavit presented to this court on 5 September 2014. I would, therefore, reject this proffer.
      The certificate of mailing is questionable. The certificate of mailing has no postage affixed as the certificate itself says should be and I wonder why a tax preparer would mail a letter in uptown New Orleans when her office is in Kenner and, as stated by Mr. Burns in oral argument, she resides in La-Place. I would reject the proffer.
      Mr. Burns statements about being unprepared ring hollow. Mr. Burns testified that he was unprepared for the 2 September 2014 trial because he did not know until that morning that a chállenge to his candidacy had been filed by Mr. Russo. He asserts various versions of his actions over the preceding Labor Day weekend: that he was in Atlanta, Georgia visiting his minor son over the Labor Day weekend (29 August through 1 September); that he was halfway to Georgia and had to turn back because of this election contest; that he was at his 5740 Eastover Drive home (where service of the petition and citation was attempted three times) several, times over the Labor Day weekend, which he later modified to say that he was there only for about five minutes early Saturday morning, 30 August 2014. Mr. Burns’ credibility is obviously suspect in these regards.
      The trial judge was under statutory item restraints to begin the trial of the case, and refused to recess the trial for yet a second time to permit Mr. Bums to bring his tax preparer into court the following day to testify that she mailed the tax returns prior to 20 August 2014 (the day Mr. Burns qualified for office with the clerk of court). I cannot say that the trial judge abused her discretion in refusing to entertain the second recess; it is apparent from the testimony the judge heard and evidence presented that the judge did not believe Mr. Burns.
      Our statutory expedited procedures to challenge candidacy have been adhered to by the trial court. I do not find a remand in order. I would affirm the judgment of the trial court.
      Further, Mr. Burns moved and the trial court granted a stay of her 3 September 2014 judgment. No law permits the granting of a stay in an election contest. I would order the stay entered by the trial court vacated.

      . See Russo v. Bums, 14-952 (La.App. 4 Cir. 9/9/14), 150 So.3d 67, 2014 WL 4636409 (Belsome, J., concurring).


author: MADELEINE M. LANDRIEU, Judge.

text:
    STATE of Louisiana v. Louis J. MARSHALL.
    No. 2013-KA-1456.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 17, 2014.
    Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for Appel-lee/State of Louisiana.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge MADELEINE M. LANDRIEU, Judge JOY COSSICH LOBRANO).
   MADELEINE M. LANDRIEU, Judge.

| following a jury trial, the defendant, Louis Marshall, was found guilty as charged of one count of possession with intent to distribute heroin and one count of possession with intent to distribute cocaine. Mr. Marshall appeals his convictions on the ground that the trial court erred in denying his motion for a mistrial. For the reasons set forth below, we affirm Mr. Marshall’s convictions and amend one of his sentences.

PROCEEDINGS BELOW

On January 21, 2011, Mr. Marshall was charged by bill of information with one count of possession with intent to distribute heroin, a violation of Louisiana Revised Statute 40:966(A)(1), and one count of possession with intent to distribute cocaine, a violation of Louisiana Revised Statute 40:967(A)(1). After a one-day jury trial on November 10, 2011, Mr. Marshall was found guilty as charged. He was sentenced to serve fifty years at hard labor, without benefit of probation, parole or suspension of sentence and ordered to pay court costs of $191.50 for possession with intent to distribute heroin. For possession with intent to distribute |2cocaine, Mr. Marshall was sentenced to serve thirty years at hard labor, without benefit of parole or suspension of sentence, to run concurrently with the heroin sentence, and ordered to pay court costs of $191.50. Mr. Marshall appeals this convictions.

FACTS

Mr. Marshall was arrested on January 6, 2011, at his girlfriend’s residence. Detective Desmond Pratt of the New Orleans Police Department and members of the New Orleans Police Department Sixth District Task Force went to the residence to execute a search warrant unrelated to the narcotics charges. Upon arriving at the residence, Detective Pratt was greeted at the door by Mr. Marshall’s girlfriend, Crystal Williams. Detective Pratt testified that there were about six individuals inside the residence, including Mr. Marshall. Detective Pratt could see, in plain view, crack cocaine, a scale, and some baggies on the kitchen counter. When asked about the cocaine, Mr. Marshall stated, “That shit is mine. All that shit is mine, crack, all that shit.” Mr. Marshall was immediately arrested. A search incident to his arrest recovered from his pocket a clear plastic bag with several smaller plastic bags of a brown-powder like substance, which was determined to be heroin.

ERRORS PATENT

A review of the record for errors patent reveals one. In the sentence for possession with intent to distribute cocaine, the trial court sentenced Mr. Marshall to thirty years without benefit of probation, parole, or suspension of sentence under | .-¡Louisiana Revised Statute 40:967 B(4)(b). This statute provides that the sentence for possession with intent to distribute cocaine shall be “not less than two years nor more than thirty years, with the first two years of said sentence being without benefit of parole, probation, or suspension of sentence.” La. R.S. 40:967 B(4)(b).

“An illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review.” La. C. Cr. P. art. 882(A). We amend Mr. Marshall’s sentence to delete the denial of probation and parole eligibility after the first two years of the sentence and instruct the trial court to make a minute entry and issue a new commitment form reflecting this change.

DISCUSSION

In his sole assignment of error, Mr. Marshall asserts that the trial court abused its discretion in denying his motion for mistrial after a police detective, on cross-examination by defense counsel, improperly referred to the fact that the police went to the residence to conduct a search in connection with a homicide investigation.

Mr. Marshall contends that Detective Pratt’s reference to the homicide report violated an agreement reached by the parties and the trial court at a pre-trial conference and was intentional and not responsive to • defense counsel’s question. Detective Pratt testified during cross-examination as follows:

Q. The residence you were in where you found this [sic] narcotics, was that Mr. Marshall’s residence?
A. It’s his girl — it’s Christy Williams— Chrystal Williams, she has a Section 8 for — she’s out of the projects, housing development too.
|tQ. And you said there were about five or six people, at least five or six people in the residence?
A. There was [sic] about six people, yeah. Yes.
Q. And were they happening to be playing cards when you arrived there?
A. I’m not sure if they were playing cards.
Q. And did you record the names of these five or six people?
A. It’s in my homicide report, the names of the people. You didn’t see it in the report right here so—

After this exchange, defense counsel asked to approach the bench. The jury was removed from the courtroom. The trial judge asked Detective Pratt whether or not the State had instructed him to mention the homicide investigation during his testimony. Detective Pratt responded that the State had told him not to bring up the homicide investigation. Then, defense counsel requested a mistrial. The trial judge denied the request, stating that any defect could be rectified by a “curative instruction” and noting the defense’s objection. During the resumed cross-examination, defense counsel asked Detective Pratt if Mr. Marshall had any involvement in the homicide case that he was investigating. Detective Pratt stated that Mr. Marshall did not. During the reading of the jury charges, the trial court admonished the jury to disregard any reference to a homicide investigation.

Louisiana Code of Criminal Procedure article 771 provides, in pertinent part,

upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial ... when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury: (2) when the remark or comment is made by the witness ... regardless of whether the remark or comment is within the scope of Article 770.

|¡jThe article further states that the “court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.” La.C.Cr.P. art. 771. This court has consistently held that the granting of a mistrial is a drastic measure, which is authorized when the defendant will be prejudiced to the extent that he would not receive a fair trial. See, State v. Smith, 418 So.2d 515 (La.1982); State v. Tribbet, 415 So.2d 182 (La.1982); State v. Governor, 331 So.2d 443 (La.1976). The decision to grant or deny such motion, or to admonish a jury, is squarely within the discretion of the trial court. State v. Smith, 418 So.2d at 522. Absent abuse of that discretion, we will not overturn a trial court’s ruling. State v. Wessinger, 98-1234, p. 24 (La.5/28/99), 736 So.2d 162, 183.

We cannot say that Mr. Marshall was improperly prejudiced by the detective’s remark. The trial court properly questioned the witness outside the presence of the jury and was satisfied that the reference to the homicide investigation was inadvertent on the part of the witness and unsolicited by the State. Once the trial resumed, defense counsel elicited from Detective Pratt testimony that Mr. Marshall had no involvement in the homicide, and the trial court gave a limiting instruction to the jury to disregard any mention of the homicide investigation. We find that the trial court did not abuse its discretion in denying Mr. Marshall’s motion for mistrial. This assignment of error is without merit.

^CONCLUSION

For the reasons stated, we affirm Mr. Marshall’s convictions and amend his sentence for possession with intent to distribute cocaine in accordance with this opinion.

CONVICTIONS AFFIRMED; SENTENCE AMENDED


author: TERRI F. LOVE, Judge.

text:
    STATE of Louisiana in the Interest of A.M.
    No. 2014-CA-0351.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 17, 2014.
    Shaylan G. Miles, Fairbanks, AL, Appellant/In Proper Person.
    Lakeisha N. Jefferson, New Orleans, LA, for Appellee/A.M.
    (Court composed of Judge TERRI F. LOVE, Judge JOY COSSICH LOBRANO, Judge ROSEMARY LEDET).
   TERRI F. LOVE, Judge.

|, The appellant, Shaylan Miles (“Mr. Miles”) appeals the trial court’s August 15, 2013 judgment that found by clear and convincing evidence that Mr: Miles’ consent to the intrafamily adoption of A.M. was not necessary, permitting the adoption and formal changing of the child’s last name. Due to the untimely filing of Mr. Miles’ notice of appeal, his appeal to this Court is dismissed.

La. Ch.C. art. 332(A) states in pertinent part, that “appeals shall be taken within fifteen days from the mailing of the judgment.” Following the trial court’s ruling on August 15, 2013, Mr. Miles initially received a copy of the reasons for judgment from his court-appointed attorney on October 10, 2013. The Clerk of Court of Orleans Parish Juvenile Court sent Mr. Miles a certified letter enclosing a copy of the Reasons for Judgment on October 24, 2013. Subsequently, Mr. Miles filed two motions for extensions of time to file a notice'of appeal. Nevertheless, there is no statutory authority that allows a trial court to extend the time delays for filing a notice of appeal. Because the Clerk of Court on October 24, 2013, sent by certified mail a certified copy of the August 15, 2013 Reasons for Judgment and Mr. Miles received the notice of judgment on November 6, 2013, Mr. Miles had 12fifteen days from the mailing of the notice of judgment to file a notice of appeal. Mr. Miles did not file an appeal until February 18, 2014. Considering Mr. Miles filed his motion for appeal outside the fifteen day time frame under La. Ch. C. art. 332, we find the present appeal untimely. Accordingly, Mr. Miles’ appeal is dismissed.

APPEAL DISMISSED.