author: MAX N. TOBIAS, JR., Judge.

text:
    Wendi BONCK v. Victoria WHITE and Progressive Security Insurance Company.
    No. 2012-CA-1522.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 24, 2013.

      Salvador M. Brocato, III, Law Office of Salvador M. Brocato, III, APLC, Metairie, LA, for Plaintiff/Appellant.
    Charles V. Giordano, Michael Emile Es-cudier, Hebbler & Giordano, LLC, Metair-ie, LA, for Defendant/Appellee.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge ROSEMARY LEDET, Judge SANDRA CABRINA JENKINS).
   MAX N. TOBIAS, JR., Judge.

|2Wendi Bonck, the plaintiff/appellant herein, appeals the trial court’s judgment granting a motion for summary judgment against her on the issue of whether the policy of automobile liability insurance procured by her from the defendant/appellee, Progressive Security Insurance Company (“Progressive”), provided her uninsured/underinsured motorist bodily injury coverage (“UMBI”). After reviewing the record and applicable law, although we find that electronic signatures are acceptable under Louisiana law on a UMBI form, we find the existence of genuine issues of material fact remain, thus presently precluding the granting of summary judgment. Accordingly, we reverse the judgment of the trial court and remand the matter for further proceedings.

The facts are simple and largely undisputed. On Friday, 18 March 2011, Ms. Bonck visited the office of Progressive. There, she met with an insurance agent about obtaining motorist insurance for her and her husband. All discussions that she had with the agent took place in the office. Ms. Bonck completed her insurance application online, with the assistance of a Progressive’s agent. She also ^signed the application online using an “electronic signature.” The insurance became effective for an initial period of six months on Sunday, 20 March 2011; the policy was renewed and extended for another six-month on 20 September 2011; a policy declarations page was transmitted to Ms. Bonck for the original policy period and the extension, both of which reflected that the policy provided no UMBI coverage. Ms., Bonck was involved in a motor vehicle accident on 6 December 2011. On 27 February 2012, she filed suit against the other driver involved in the accident and against Progressive as her UMBI carrier.

Progressive denied providing Ms. Bonck with UMBI coverage and, after answering the petition, filed a motion for summary judgment. In connection with its motion, Progressive produced a UMBI form dated Tuesday, 22 March 2011. This was allegedly initialed and signed electronically by Ms. Bonck waiving the UMBI coverage.

Ms. Bonck opposed the motion, denying that she had signed the form waiving UMBI coverage. She also argued that electronic signatures could not be used on insurance policies, including UMBI forms. Finally, she pointed out that her name was misspelled, to-wit, “Wendy” was typed onto the form, whereas, she spells her name “Wendi,” thereby arguing that someone • other than herself completed the form.

I/The trial court heard the motion for summary judgment, found that the Uniform Electronic Signature Act applied, and granted the motion. This timely appeal followed.

The first issue we address is whether the Uniform Electronic Signature Act satisfies the requirement set forth in Duncan v. U.S.A.A Ins. Co., 06-363 (La.11/29/06), 950 So.2d 544, and thus, is applicable to UMBI forms. After a thorough review, we find that it does.

We first note what La. R.S. 22:1295 states in pertinent part:

The following provisions shall govern the issuance of uninsured motorist coverage in this state:
(l)(a)(i) No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle designed for use on public highways and required to be registered in this state or as provided in this Section unless coverage is provided therein or supplemental thereto, in not less than the limits of bodily injury liability provided by the policy, under provisions filed with and approved by the commissioner of insurance, for the protection of persons insured thereunder who are legally entitled to recover nonpunitive damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness, or disease, including death resulting therefrom; however, the coverage required under this Section is not applicable when any insured named in the policy either rejects coverage, selects lower limits, or selects economic-only coverage, in the manner provided in Item (l)(a)(ii) of this Section. In no event shall the policy limits of an uninsured motorist policy be less than the minimum liability limits required under R.S. 32:900, unless economic-only coverage is selected as authorized in this Section. Such coverage need not be provided in or supplemental to a renewal, reinstatement, or substitute policy when the named insured has rejected the coverage or selected lower limits in connection with a Rpolicy previously issued to him by the same insurer or any of its affiliates. The coverage provided under this Section may exclude coverage for punitive or exemplary damages by the terms of the policy or contract. Insurers may also make available, at a reduced premium, the coverage provided under this Section with an exclusion for all noneco-nomic loss. This coverage shall be known as “economic-only” uninsured motorist coverage. Noneconomic loss means any loss other than economic loss and includes but is not limited to pain, suffering, inconvenience, mental anguish, and other noneconomic damages otherwise recoverable under the laws of this state.
(ii) Such rejection, selection of lower limits, or selection of economic-only coverage shall be made only on a form prescribed by the commissioner of insurance. The prescribed form shall be provided by the insurer and signed by the named insured or his legal representative. The form signed by the named insured or his legal representative which initially rejects such coverage, selects lower limits, or selects economic-only coverage shall be conclusively presumed to become a part of the policy or contract when issued and delivered, irrespective of whether physically attached thereto. A properly completed and signed form creates a rebuttable presumption that the insured knowingly rejected coverage, selected a lower limit, or selected economic-only coverage. The form signed by the insured or his legal representative which initially rejects coverage, selects lower limits, or selects economic-only coverage shall remain valid for the life of the policy and shall not require the completion of a new selection form when a renewal, reinstatement, substitute, or amended policy is issued to the same named insured by the same insurer or any of its affiliates. An insured may change the original uninsured motorist selection or rejection on a policy at any time during the life of the policy by submitting a new uninsured motorist selection form to the insurer on the form prescribed by the commissioner of insurance. Any changes to an existing policy, regardless of whether these changes create new coverage, except changes in the limits of liability, do not create a new policy and do not require the completion of new uninsured motorist selection forms. For the purpose of this Section, a new policy shall mean an original contract of insurance which an insured enters into through the completion of an application on the form required by the insurer.
(iii) This Subparagraph and its requirement for uninsured motorist coverage shall apply to any liability |,¡insurance covering any accident which occurs in this state and involves a resident of this state. [Emphasis supplied.]

As stated earlier, the Louisiana Legislature enacted the Uniform Electronic Signature Act, La. R.S. 9:2606, et seq., in 2001. Section 2607 thereof states:

A. A record or signature may not be denied legal effect or enforceability solely because it is in electronic form.
B. A contract may not be denied legal effect or enforceability solely because an electronic record was used in its formation.
C. If a law requires a record to be in writing, an electronic record satisfies the law.
D. If a law requires a signature, an electronic signature satisfies the law. [Emphasis added.]

La. R.S. 9:2607.

No case exists in Louisiana that applies this statute to a UMBI form. Only one federal court case even mentions the statute. In Hill v. Hornbeck Offshore Services, Inc., 799 F.Supp.2d 658, 661 (E.D.La.2011), the court stated:

Moreover, state law also gives legal effect to both electronic contracts and signatures. See La.Rev.Stat. § 9:2607. Therefore, in the absence of fraud, misrepresentation, or deceit, one is bound under Louisiana law to the terms of a contract, signed electronically or otherwise.

However, we agree with Ms. Bonck that Hill addressed an arbitration clause in an incentive program offered by the plaintiffs employer, not a contract of insurance and a UMBI form. The case, therefore, offers no guidance to us for the issue at hand.

Following the enactment of the Electronic Signature Act, then-Acting Commissioner of Insurance, J. Robert Wooley, issued Advisory Letter # 01-08. Therein, he states that the letter is to advise of the authorization to use electronic |7signatures in transacting the business of insurance in Louisiana. Obviously, this would include automobile insurance contracts and the required UMBI form.

We find that the Uniform Electronic Signature Law, La. R.S. 9:2606, et seq., applies to automobile insurance policies and required UMBI forms, and that signatures includes initialing. This, however, does not end our analysis.

A motion for summary judgment is a procedural device used when no genuine issue of material fact exists for all or part of the relief prayed for by a litigant. Duncan v. U.S.A.A. Inc. Co., 06-363, p. 3 (La.11/29/06), 950 So.2d 544, 546; see La. C.C.P. art. 966. A summary judgment is reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate; i.e., whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. Samaha v. Rau, 07-1726, pp. 4-5 (La.2/26/08), 977 So.2d 880, 882-83.

In Duncan, the Supreme Court set forth the requirements of the UMBI form:

Essentially, the prescribed form involves six tasks: (1) initialing the selection or rejection of coverage chosen; (2) if limits lower than the policy limits are chosen (available in options 2 and 4), then filling in the amount of coverage selected for each person and each accident; (3) printing the name of the named insured or legal representative; (4) signing the name of the named insured or legal representative; (5) filling in the policy number; and (6) filling in the date.

Id., 06-363 at pp. 11-12, 950 So.2d at 551.

In the case at bar, we find that the UMBI form was filled out in accordance with Duncan. However, we find that genuine issues of material fact exist.

First, in her affidavit, Ms. Bonck denies electronically signing the UMBI form. Because the form is dated four days (on Tuesday, 22 March 2011) after the | ^initial application, she asserts that it was not completed on the day (18 March 2011) she visited Progressive’s office. Ms. Bonck claims that all discussions she had with the agent were conducted in person, presumably on 18 March 2011. Because an affidavit from the Progressive insurance agent who dealt with Ms. Bonck was not submitted by Progressive, this testimony is un-controverted. The affidavit from Debra Henry, who was assigned by Progressive to examine the policy, merely states what the UMBI form shows; her affidavit does nothing to refute Ms. Bonck’s assertions that, admittedly, are self-serving. However, her assertions coupled with the 22 March 2011 date on the UMBI form create a genuine issue of material fact. Therefore, summary judgment was erroneously granted.

Based on the foregoing, we reverse the judgment of the trial court and remand the matter for further proceedings.

REVERSED; REMANDED.

      . In 2001, the Louisiana Legislature enacted the Uniform Electronic Signature Act, La. R.S. 9:2606, et seq. In advisory letter # OI-OS, the commissioner of insurance authorized the use of electronic signatures in transacting the business of insurance.

      . We find no merit to the argument regarding the spelling of Ms. Bonck's first name, as it is also "misspelled” on the application for insurance that she herself allegedly completed online. If we were to embrace her argument, Ms. Bonck would have no insurance at all.


source: Caselaw Access Project

author: TERRI F. LOVE, Judge.

license: Public Domain

text:
    John DOE, et al. v. JO ELLEN SMITH MEDICAL FOUNDATION d/b/a Jo Ellen Smith Medical Center and Jo Ellen Smith Psychiatric Center and ABC Insurance Company.
    No. 2012-CA-0966.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 24, 2013.

      R. Ray Orrill, Jr., W. Christopher Beary, Alexandre L.M. Ducros, Orrill Cor-dell & Beary, L.L.C., New Orleans, LA, for Plaintiffs/Appellees, John Doe, et al.
    Peter E. Sperling, Carl E. Hellmers, III, John B. Cazale, V, Frilot L.L.C., Harry T. Lemmon, New Orleans, LA, Thomas H. Dupree, Jr., Pro Hac Vice, Gibson, Dunn & Crutcher, LLP, Washington, DC, Theane Evangelis Kapur, Pro Hac Vice, Gibson, Dunn & Crutcher, LLP, Los An-geles, CA, Jeffrey S. Osgood, Pro Hac Vice, Strasburger & Price, LLP, Dallas, TX, for Defendants/Appellants, P.I.A. Westbank, Inc., d/b/a Jo Ellen Smith Psychiatric Hospital, Tenet HealthSystem Hospitals, Inc., d/b/a Jo Ellen Smith Medical Center, and Tenet Healthcare Corporation.
    (Court composed of Chief Judge JAMES F. McKAY, III, Judge TERRI F. LOVE, Judge ROSEMARY LEDET).
   TERRI F. LOVE, Judge.

| ] This appeal arises from a motion to decertify, based on changes in law and circumstances, a class of plaintiffs claiming damages allegedly suffered as a of the unauthorized placing of confidential medical records and documents in a hospital parking lot where they were subjected to public view and taking. The trial court denied the defendant’s motion to decertify. We find that the trial court did not abuse its discretion by denying the motion to decertify the class because there are no material changes in the facts, circumstances, or law warranting decertification at this stage in the proceedings. Therefore, we affirm.

FACTUAL HISTORY

Tenet Health Systems Hospitals, Inc. was the operator of Jo Ellen Smith Medical Center (“JESMC”), which was located on or around Patterson Drive in New Orleans, in 1996. Adjacent to JESMC was Jo Ellen Smith Psychiatric Hospital (“JESPH”), operated by P.I.A. Westbank, Inc. In 1996, JESPH was closed and the record custodian for JESMC was instructed by the administrator or assistant administrator of JESMC to empty certain offices in the JESPH building.

|2The plaintiffs allege that on or about April 23, 1996, Jo Ellen Smith Psychiatric Hospital (“JESPH”) released without patient authorization confidential medical records of more than 5,649 patients by placing them in the hospital parking lot where they were subjected to public view and scrutiny. These documents were placed in the parking lot along with office furniture and office items which attracted passers-by who allegedly rifled through the discarded documents. The records in question were not retrieved or secured by defendants for a period of approximately ten days to two weeks.

According to deposition testimony, some of the documents left unattended in the parking lot were taken by passers-by. Some of the records retrieved from the parking lot were transferred to the Orleans Parish District Attorney’s office where the documents were reviewed to determine whether criminal charges would be filed in connection with their disposal. Those documents revealed the patient names, addresses, and other patient identifying information — including psychiatric diagnoses and related psychiatric information — of 5,649 JESPH patients.

Additionally, the plaintiffs allege that some or all of the records were further exposed to unauthorized individuals after former JESPH employees retrieved and kept documents found in the parking lot. Victor Lloyd (“Lloyd”) allegedly retrieved and kept documents including inquiry and intake sheets containing patient identifying information. The record also indicates that Lloyd possessed a two-volume register listing every psychiatric patient admitted to JESPH between |s1981 and 1992. After local and electronic media reported the documents in the hospital parking lot, the defendants retrieved and secured the remainder of the documents; however, these documents cannot be found or any internal memos regarding the incident.

As a result of the media attention and the alleged disclosure, former psychiatric patients and/or patient representatives called the hospital after learning of the disclosure, to inquire as to whether their information and/or records were among the documents found in the parking lot.

PROCEDURAL HISTORY

Plaintiffs filed their original class action petition on March 26, 1997, and after amendments, plaintiffs filed their second amended and restated class action petition on February 17, 2004. The class was certified by the trial court on March 29, 2005, which defined the class as:

All patients of Jo Ellen Smith Psychiatric Center, including persons who called the Jo Ellen Smith Psychiatric Center crisis line(s), whose name or other patient identifying information was contained in any document released into the parking lot on Patterson Drive on or about April 23, 1996 by Tenet Health-System Hospitals, Inc., P.I.A. Westbank, INC. or Tenet Healthcare Corporation.

This Court affirmed the trial court’s ruling granting class certification in Doe v. Jo Ellen Smith Medical Foundation, 05-1161 (La.App. 4 Cir. 5/24/06), 932 So.2d 758 (unpub.), and the Louisiana Supreme Court affirmed this Court’s and the trial court’s rulings in Doe v. Jo Ellen Smith Medical Foundation, 06-1617 (La.9/29/06), 937 So.2d 871.

^Subsequently, both parties agreed to send legal notice to the putative class members by multi-state publication. Following notice to the class members by publication, no class member opted out.

In January 2011, pursuant to La.C.C.P. Art. 593.1 as in effect in 1996, the district court issued a case management order bifurcating the case into two trial phases: Phase I to determine liability and common damages; and Phase II to determine any individual damages. JESPH moved for summary judgment on plaintiffs’ claim for common damages, and the trial court denied the motion. JESPH sought supervisory review with this Court which was denied, as well as sought review with the Louisiana Supreme Court, which was denied.

Thereafter, JESPH filed a motion for class decertification alleging changes in law and circumstances surrounding the present matter. JESPH argued that recent rulings from the United States Supreme Court and the Louisiana Supreme Court “fundamentally changed the law of class certification.” JESPH alleged that a party seeking certification must show that the class members’ claims depend on a common contention capable of classwide resolution proven with common evidence. Additionally, JESPH argued that the circumstances in this case changed, mandating decertification. First, JESPH argued that because the putative class can recover common damages irrespective of knowledge, JESPH is precluded from challenging the constitutionality of any award. Second, JESPH argued that any alleged injuries to the class representatives are unique, and therefore their claims are not typical of the class. Third, during post-certification discovery plaintiffs alleged each class member is entitled to damages between $50,000 and $150,000, | Rand JESPH argues that such high claims would result in unfairness to absent class members. The trial court denied the motion finding that no material change in the facts, circumstances, or law warranted de-certification. An appeal to this Court followed.

STANDARD OF REVIEW

The Louisiana Supreme Court in Price v. Martin, 11-0853, pp. 7-8 (La.12/6/11), 79 So.3d 960, 967 explained:

In reviewing a judgment on class certification, the district court’s factual findings are subject to the manifest error standard, while the court’s ultimate decision regarding whether to certify the class is reviewed under the abuse of discretion standard. [Brooks v. Union Pacific Railroad Co., 08-2035, p. 10 (La.5/22/09), 13 So.3d 546, 554.] Whether the district court applied the correct legal standard in determining whether to certify the class is reviewed de novo. [Id., 08-2035 at p. 11, 13 So.3d at 554.]

MOTION TO DECERTIFY

The requirements for class certification applicable to the present action are governed by La.C.C.P. Arts. 591-597. The current form of articles 591-597, however, applies only to actions filed on or after July 10, 1997. Thus, the pre-1997 Louisiana Class Action Statute applies in this case and provides in pertinent part, as follows:

Art. 591 Prerequisites

A class action may be instituted when the persons constituting the class are so numerous as to make it impracticable for all of them to join or be joined as parties, and the character of the right sought to be enforced for or against the members of the class is:
Common to all members of the class; or
| (¡Secondary, in the sense that the owner of a primary right refuses to enforce it, and a member of the class thereby becomes entitled to enforce the right.
Art. 592. Representation
One or more members of a class, who will fairly insure the adequate representation of all members, may sue or be sued in a class action on behalf of all members.

The following three requirements must be met in order for certification of a class action:

“1. a class so numerous that joinder is impractical; 2. the joinder as parties to the suit of one or more parties who are (a) members of the class, and (b) so situated as to provide adequate representation for absent members of the class; and 3. a ‘common character’ between the rights of the representatives of the class and the absent members of the class.” Billieson v. City of New Orleans, 98-1232, p. 6 (La.App. 4 Cir. 3/3/99), 729 So.2d 146, 152.

Additionally, the Louisiana Supreme Court has held, “in our analysis of certification under the pre-1997 statute, this Court has required, among other factors, that there be questions of law or fact common to the class and that those questions predominate over questions affecting only individual members.” Brooks, 08-2035 at p. 14, 13 So.3d at 556.

A motion for decertification is proper when there has been a material change in the facts, law, or circumstances since the initial class ruling. Billieson v. City of New Orleans, 09-0410, p. 9 (La.App. 4 Cir. 11/12/09), 26 So.3d 796, 802. Furthermore,

[i]n the absence of materially changed or clarified circumstances, or the occurrence of a condition on which the initial class ruling was expressly contingent, courts should not condone a series of rearguments on the class issues by either the proponent or the opponent of the class, in the guise of motions to reconsider the class ruling.

Id. (citing Doerr v. Mobil Oil Corp., 04-1789, p. 4 (La.App. 4 Cir. 6/14/06), 935 So.2d 231, 234).

17JESPH contends that decertification is mandated because of recent changes in the law and circumstances surrounding this case. JESPH relies on the United States Supreme Court decision in Wal-Mart Stores, Inc. v. Dukes, — U.S. -, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011), and the Louisiana Supreme Court decision in Price v. Martin, 11-0853 (La.12/6/11), 79 So.3d 960, to support its contention that these cases “fundamentally altered the rules governing class certification” in Louisiana; and thus, the class representatives in this case no longer satisfy the commonality and predominance requirements. JESPH suggests 'that this Court should focus less on the factual circumstances in Wal-Mart and Price and more on “the reasoning, analysis, and legal rules applied in reaching [the] result.” Nevertheless, making factual distinctions and/or comparisons is essential to understanding the Courts’ application of the law for class certification. Notably, JESPH has not demonstrated to this Court how the decisions in Wal-Mart and Price are analogous to the present matter and mandate decertification. On appeal, JESPH argues there is neither common question of law or fact sufficient to support class treatment, nor a common question that predominates over individualized questions.

Wal-Mart, Inc. v. Dukes

JESPH argues that Wal-Mart provides guidance as to what common questions matter for purposes of class certification. Wal-Mart involved a plaintiff class of 1.5 million female employees who claimed damages resulting from Wal-Mart’s alleged discrimination against women in violation of Title VII of the Civil Rights Act of 1964 common to all Wal-Mart’s female employees. Wal-Mart, — U.S. at-, 131 S.Ct. at 2544. Namely, the plaintiff class claimed local managers exercised their discretion over pay and promotions disproportionately in favor of |smen, which had an unlawful disparate impact on its female employees. Id. The district court certified the class finding that the plaintiffs satisfied Fed. R. Civ. Proc. Rule 23(a), and the Ninth Circuit affirmed concluding that plaintiffs met Rule 23(a)(2)’s commonality requirement. Id. The Supreme Court reversed, finding that the commonality requirement was not consistent with Rule 23(a).

The crux of the case, the Supreme Court determined, was the commonality requirement. Id. — U.S. at-, 131 S.Ct. at 2551. Commonality calls for the plaintiff to demonstrate that the class members suffered from the same injury, “this does not mean merely that they have all suffered a violation of the same provision of law.” Id. Rather, the plaintiffs’ claims “must depend upon a common contention ... of such a nature that it is capable of classwide resolution — which means that determination of its truth or falsity will resolve an issue central to the validity of each one of the claims in one stroke.” Id. — U.S. at-, 131 S.Ct. at 2551. In Wal-Mart, the Supreme Court found that plaintiffs failed to submit convincing evidence of companywide discriminatory pay and promotion policy. Further, because the Court found that there was “nothing to unite all of the plaintiffs’ claims, since ... the same employment practices do not ‘touch and concern all members of the class,’ ” the Court concluded that plaintiffs did not establish a common question and reversed the district court’s granting of class certification. Id., — U.S. at-, 131 S.Ct. at 2556-57, n. 10.

The facts in Wal-Mart are distinguishable from the instant matter. In Wal-Mart, the employees held different positions, at different levels, for various periods of time, in thousands of stores across fifty states, with male and female supervisors, and also subject to varying regional policies. Id., — U.S. at-, 131 S.Ct. at 2557. The Supreme Court noted that it is not enough that all class members 19worked at Wal-Mart or even that they all suffered a violation of Title VII. Id., — U.S. at-, 131 S.Ct. at 2551. The plaintiff class in Wal-Mart did not meet the commonality requirement because Title VII ... can be violated in many ways ... [and] the mere claim by employees of the same company that they have suffered a “Title VII injury or even a disparate-impact injury, gives no cause to believe that all their claims can productively be litigated at once.” Id. Instead, class members’ claims must depend on a common contention such as “the assertion of discriminating bias on the part of the same supervisor.” Id.

In the instant case, the common question of fact remains whether JESPH exposed to public view and scrutiny privileged documents containing patient names or other identifying information without the prior written consent of each patient. Additionally, as this Court observed when it previously affirmed class certification, “the single most important issue to be determined is the duty of appellants and their possible liability for this incident.” These issues of law and fact are not only common to all class members, but also predominate over questions raised by individual class members. Thus, even in light of Wal-Mart, this Court finds the trial court did not abuse its discretion in denying JESPH’s motion for decertification.

Price v. Martin

We also find Price to be distinguishable. In Price, the plaintiffs sued wood treatment companies alleging that creosote-treated railroad tie operations damaged their property over a sixty-six year period during which there were three different owners of the companies and legal standards for creosote treatment and storage and disposal had changed over the period of time in question. Price, 11-0853 at p. 1—2, 79 So.3d at 964. The Louisiana Supreme Court held that, under Wal-Mart, plaintiffs failed to identify a common question and therefore could not establish either the commonality or predominance requirements. Id., 11-0853 at p. 11, 79 So.3d at 969. Specifically, the Court explained that the plaintiffs could not establish a common issue of fact on the basis “simply that the emissions occurred,” but instead had to identify common evidence showing “that the emissions resulted in the deposit of unreasonably elevated levels of toxic chemicals on plaintiffs’ properties.” Id. 11-0853 at p. 11, 79 So.3d at 969-70.

Likewise, the Court reasoned that whether the defendant owed a duty was not a common question of law relevant to class certification because “the mere finding of a duty not to pollute will do little to advance the issues in [Price ].” Id. 11-0853 at p. 21, 79 So.3d at 975.

Breach and Causation

The Price court held that issues of breach and causation were not capable of classwide resolution based on common evidence. Id. 11-0853 at p. 12, 79 So.3d at 970. On the issue of breach, the Court focused on the sixty-six year period of emissions and that the defendants’ operation of the facility occurred at varied and unspecified times, and changed over that period. Id. The Court noted that depending on the date of emission different defendants could be responsible. Id. 11-0853 at p. 13, 79 So.3d at 970.

The Court also noted that the legal standards applying to the facility’s operations changed during the period in question. Id. Thus, because the issue of breach would hinge on different conduct, by different defendants, at different times, under different legal standards, and because plaintiffs could not offer evidence to demonstrate that the issue of breach could be resolved from a common | ^nucleus of facts, the Court held that the emissions or the defendants’ conduct did not touch all members of the class.

On the issue of causation, the Court held that the plaintiffs needed to demonstrate through common evidence that chemicals from the facility were found on the plaintiffs’ property. Id. 11-0853 at p. 14, 79 So.3d at 971. However, the Court concluded that because of the different types of damages (personal, property, and business) as well as the plaintiffs’ varying habits, exposures, and lengths of exposure, the issue of causation could not be resolved on a classwide basis. Id. 11-0853 at p. 17-18, 79 So.3d at 972-73.

The present matter is distinguishable as it involves the alleged unauthorized disclosure of a finite number of documents, over a period of approximately ten days to two weeks in April 1996. Further, the same alleged conduct of JESPH is attributable to the same alleged damage to each class member’s right to privacy. Moreover, the documents recovered identify the 5,649 class members as psychiatric patients.

Public Viewing

JESPH argues that Price undermines class certification in this case because the putative class failed to offer proof that the allegedly negligent exposure of the documents resulted in the actual public viewing of each class members’ information and would require thousands of individual trials. JESPH argues that no such evidence exists. JESPH further suggests to this Court that a rigorous analysis requires thousands of mini-trials to determine whether third parties actually viewed each individual class member’s protected information.

The record before this Court establishes that specific third party members of the public actually viewed the documents containing psychiatric patient identifying | ^information. The record indicates there is witness testimony from former JESPH employees Victor Lloyd (“Lloyd”) and Jennie Schuyler (“Schuyler”) wherein both allege that actual public viewing of the confidential documents occurred. Lloyd testified that he inspected records contained in filing cabinets and file boxes left in the parking lot which disclosed the psy-ehiatric histories, diagnoses, and other psychiatric information of JESPH patients. Additionally, Schuyler testified,

Most of what I saw on the ground were ... a[n] initial assessment ... some of the assessments, in-depth assessments. Some of them were clipped to the initial phone call ... Vic [Lloyd] then came over to me and showed me a piece of paper — I guess it was a client he recognized the name maybe — where a lady had said she had been sexually abused as a child, which made him really upset.
He showed me two leather bound logs. I think they were old logs, where when calls came in they logged the calls in. And there were names, their diagnostic codes ...
I saw bills ... [I]t was a list of, you know, numbers with treatments, therapies, that sort of thing.

Schuyler also testified that she was aware of two other people who saw or viewed patient identifying information.

JESPH suggests that for there to be a common answer as to whether the public viewed class members’ patient identifying information, a single witness would have to testify that he or she read the patient identifying information for each and every class member. JESPH argues that this prospect is individualized and not a common answer capable of classwide resolution. JESPH’s interpretation, however, suggests that the class representatives must take an additional step to prove that specific third parties actually saw the disclosed information. We disagree with JESPH’s interpretation.

11sThe evidence indicates that numerous individuals viewed portions of the medical records. Lloyd admitted when he came upon the medical records in the parking lot the records appeared to have been “rummaged through.” Additionally, he admitted he witnessed people in the parking lot digging through boxes. Moreover, records were seized, held, and reviewed by the District Attorney’s Office while it deliberated on whether to file charges in connection with the disposal of records. Accordingly, the class representatives have in fact offered evidence of actual viewing of the medical records by third parties sufficient to satisfy the common evidence requirement in Price. Therefore, we find this argument without merit.

Common Damages

JESPH also argues that the class cannot be certified because JESPH has a due process right to challenge any award of common damages as constitutionally excessive, and this defense cannot be resolved on a classwide basis. JESPH claims that it “must be allowed to challenge any award of ‘common’ presumed damages as unconstitutionally excessive, unreasonable, and disproportionate to the amount of harm suffered by each class member.” JESPH avers that this defense cannot be adjudicated on a classwide basis because it will require an inquiry into the specific amount of harm suffered by each class member to determine whether the award imposed is permissible.

Although, affirmative defenses should be considered when making class certification decisions, the potential complication is not enough to decertify the class. Duhé v. Texaco, Inc., 99-2002 p. 25 (La.App. 3 Cir. 2/7/01), 779 So.2d 1070, 1085. JESPH’s argument suggests that this Court should assume that the common damages will be excessive, and thus, precluding JESPH from asserting its affirmative defense of an unconstitutionally excessive damage award. The issue of damages is within the province of the trier of fact, and not before this Court.

Additionally, La.C.Cr.P. Art. 593.1(C) (1996) provides in pertinent part, that the trial court may adopt a management plan that provides for separate trials for, among others:

“(2) Determination of any item of damage common to the class and the basis for assessment thereof. (3) Assessment of common damages on the basis determined in (2) above or on such basis as may be appropriate in the absence of any prior determination of the basis thereof. (4) Determination and assessment of individual damages not common to the class ...”

The trial court ordered the bifurcation of the trial with Phase I only to determine liability and common damages caused to all class members irrespective of knowledge and Phase II to determine individualized damages. Moreover, “throughout the class action, the court has extensive powers to insure the efficient conduct of the action, and it has the power to revoke, alter or modify the certification order as later developments in the litigation necessitate.” Thus, considering the foregoing, we find the trial court did not abuse its discretion in denying JESPH’s motion for decertification.

We pretermit discussion on the typicality and fairness issues raised by JESPH. As the arguments regarding typicality and fairness focus on commonality and predominance among the putative class members, both issues are addressed as part of this Court’s discussion on commonality and predominance. Moreover, JESPH argues had the trial court engaged in a rigorous analysis as described in | v,Price, “it would have decertified the class.” The record demonstrates that the trial court acknowledged that “there has been a shift” in the law; however, in the trial court’s view, the facts in this case did not mandate decertifi-cation. Thus, based on our review of the record, we find JESPH’s argument that the trial court failed to conduct a “rigorous analysis” to be without merit.

FRIVOLOUS APPEAL

The class representatives argue that this Court should impose sanctions on JESPH for attempting to reargue the same positions denied on previous occasions and to avoid trial. This Court has previously explained:

“Damages for frivolous appeals, like sanctions at the trial court level, are utilized to curtail the filing of appeals that are intended to delay litigation, harass another party, or those that have no reasonable basis in fact or law.” Johnson v. Johnson, 08-0060, p. 5 (La.App. 4 Cir. 5/28/08), 986 So.2d 797, 801. Appellate courts “shall render any judgment which is just, legal, and proper upon the record on appeal” and “may award damages, including attorney fees, for frivolous appeal....” La. C.C.P. art. 2164. The statute permitting frivolous appeal damages must be strictly construed in favor of the appellant, as it is penal in nature. Levy v. Levy, 02-0279, pp. 17-18 (La.App. 4 Cir. 10/2/02), 829 So.2d 640, 650.
Frivolous appeal damages will be awarded if the appellant is trying to “delay the action” or “if the appealing counsel does not seriously believe the law he or she advocates.” Hester v. Hester, 97-2009, p. 5 (La.App. 4 Cir. 6/3/98), 715 So.2d 43, 46. An appeal may also be deemed frivolous if it does not present a “substantial legal question.” Tillmon v. Thrasher Waterproofing, 00-0395, p. 8 (La.App. 4 Cir. 3/28/01), 786 So.2d 131, 137. “Appeals are always favored and, unless the appeal is unquestionably frivolous, damages will not be granted” due in part to the possible chilling effect on the appellate process. Tillmon, 00-0395, p. 8, 786 So.2d at 137.

Hunter v. Maximum Grp. Behavioral Servs., Inc., 10-0930, p. 6 (La.App. 4 Cir. 3/16/11), 61 So.3d 735, 739.

|,(¡Nothing in the record indicates that JESPH filed this appeal in an attempt to delay the present action. The appellate brief submitted by counsel advocates certain interpretations of recent case law to support its argument for class decertification. Because the record before this Court does not suggest that the present appeal is unquestionably frivolous, the request for sanctions is denied.

DECREE

For the reasons set forth above, we find that JESPH has failed to prove that the recent decisions in Wal-Mart and Price warrant class decertification. In addition, we find that no material change occurred in the facts and circumstances of this case to justify decertification. Thus, we find that the trial court did not abuse its discretion in denying JESPH’s motion for de-certification and affirm. The class representatives’ request for frivolous appeal sanctions is denied.

AFFIRMED

      . Doe v. Jo Ellen Smith Medical Foundation, 12-0096 (La.App. 4 Cir. 2/2/12) (unpub.); Doe v. Jo Ellen Smith Medical Foundation, 12-0510 (La.3/30/12), 85 So.3d 128.

      . Acts 1997, No. 839, § 3.

      . La. C.C.P. Arts. 591-92 (1996).

      . Doe v. Jo Ellen Smith Medical Foundation, 05-1161 (La.App. 4 Cir. 5/24/06), 932 So.2d 758 (unpub.).

      . JESPH avers that it did not raise the constitutionality of class certification until recently because the trial court only recently “authorized [the class representatives] to seek damages on behalf of the entire class without proof of actual damages.”

      . John Doe v. Jo Ellen Smith Medical Foundation, 05-1161 (La.App. 4 Cir. 5/24/06), 932 So.2d 758 (unpub.)(citing La. C.C.P. Art. 593.1 (1996)).


author: EDWIN A. LOMBARD, Judge.

text:
    STATE of Louisiana v. Carl LABAT.
    No. 2012-KA-1210.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 24, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, Matthew C. Kirkham, Assistant District Attorney, New Orleans, LA, for the State of Louisiana.
    Michael A. Kennedy, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JAMES F. McKAY, III, Judge EDWIN A. LOMBARD, Judge JOY COSSICH LOBRANO).
   EDWIN A. LOMBARD, Judge.

liThe defendant, Carl Labat, challenges the sufficiency of the evidence underlying his conviction for the murder of Travis Anderson. After review of the record in light of the applicable law and arguments of the parties, we affirm the defendant’s conviction and sentence.

Relevant Procedural History

Mr. Anderson was murdered in the parking lot of the International House of Pancakes (IHOP) in New Orleans East at 12150 1-10 Service Road in the early morning hours of April 19, 2010. On June 24, 2010, the grand jury indicted the defendant for the second degree murder of Mr. Anderson and indicted Sheena Edwards as an accessory to the murder. At his arraignment on August 20, 2010, the defendant pleaded not guilty. The trial court granted the motion to sever the trials of the defendant and Ms. Edwards on August 28, 2011. After a three-day trial (August 24-26, 2011), the defendant was found guilty as charged. He was sentenced to life imprisonment without benefit of parole, probation, or suspension of sentence on December 14, 2011. His appeal is timely-

| ¾Applicable Law and Standard of Review

La.Rev.Stat. 14:80.1 provides in pertinent part that “[sjecond degree murder is the killing of a human being ... [w]hen the offender has a specific intent to kill or to inflict great bodily harm.... ” La.Rev. Stat. 14:30(A)(1).

Pursuant to Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the standard of review in evaluating sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Notably, when reviewing whether sufficient evidence supports a conviction, we are not called upon to decide whether we believe the witnesses or whether the conviction is contrary to the weight of the evidence. State v. Smith, 600 So.2d 1319, 1324 (La.1992). The testimony of a single witness, if believed by the trier of fact, is sufficient to support a conviction. State v. Wells, 2010-1338, p. 5 (La.App. 4 Cir. 3/30/11), 64 So.3d 303, 306. A factfinder’s decision concerning the credibility of a witness will not be disturbed unless it is clearly contrary to the evidence. State v. James, 2009-1188, p. 4 (La.App. 4 Cir. 2/24/10), 32 So.3d 993, 996.

“When the accused asserts justification as a defense to murder, the State bears the burden of proving beyond a reasonable doubt that the killing was not justified.” State v. Matthews, 464 So.2d 298, 299 (La.1985) (citations omitted). Therefore, on review the “applicable standard is whether a rational fact-finder, after viewing the evidence in the light most favorable to the prosecution, could have found beyond a reasonable doubt that the homicide was not committed in self-defense or in defense of others.” Id. (citing Jackson v. Virginia, supra; State v. Faulkner, 441 So.2d 721 (La.1983); State v. Lynch, 436 So.2d 567 (La.1983)). |3Thus, in accordance with Jackson v. Virginia, if rational triers of fact could disagree as to the interpretation of the evidence, the rational trier’s view of all the evidence most favorable to the prosecution must be adopted. State v. Green, 588 So.2d 757, 758 (La.App. 4 Cir.1991).

Relevant Facts

A disturbance erupted between the defendant and victim in the parking lot of Passions Gentleman’s club (“the nightclub”) in New Orleans East on the night of April 18-19, 2010. Both parties left the nightclub after the altercation, but the defendant subsequently shot and killed Mr. Anderson in the IHOP parking lot. The following evidence was adduced at trial.

Alexis Sandifer testified that in April 2010, she shared an apartment with her brother, Rio Sandifer, and Mr. Anderson’s sister, Isone “Sunny” Anderson, as well as Monica Edgar. Ms. Sandifer also worked with Ms. Anderson and Ms. Edgar, as well as Ms. Edwards, at the nightclub. She knew the defendant by the nickname “C” as the boyfriend of Ms. Edwards. According to Ms. Sandifer, the disturbance in the nightclub parking was caused by the defendant slapping Mr. Anderson’s girlfriend, a dancer named Stephanie. The dispute was heated, involving Ms. Sandi-fer’s brother brandishing a shotgun as he and Mr. Anderson stood outside the nightclub challenging the defendant to come outside. The situation was temporarily diffused when someone pulled the defendant’s F-150 pickup truck up to the door of the nightclub and the defendant left, along -with Ms. Edwards. Shortly thereafter, Ms. Sandifer and her brother left the nightclub with Ms. Anderson, returning to the apartment ‘they shared. Ms. Edgar also returned to the apartment. Soon after they returned home, Ms. Edwards arrived, shouting at Mr. Sandifer (who she was intimately involved with) to come outside. Ms. Sandifer |4saw a gun hanging out of Ms. Edwards’s purse and escorted her out to the apartment parking lot where she and Ms. Edgar tried to persuade Ms. Edwards to desist. During the course of her conversation with Ms. Edwards, however, Ms. Sandifer noticed the defendant off to the side “fiddling with the gun trying to put the clip in there.” When Ms. Edwards ran back upstairs to exchange words with Mr. Sandifer (who remained inside the apartment), the defendant walked over to Ms. Sandifer, voicing threats towards her brother and Mr. Anderson. Accordingly, Ms. Sandifer called Mr. Anderson and warned him not to come to the apartment.

According to Ms. Sandifer, twenty minutes after the defendant left with Ms. Edwards, she received a phone call informing her that Mr. Anderson had been shot at the IHOP which was located directly across the interstate from her apartment complex. She drove there and told the police officers on the scene that the defendant and Ms. Edwards had just left her home where they had made threats against the victim. She saw Theo Jackson, a friend of Mr. Anderson, sitting crouched on a curb in the IHOP parking lot with his hands on his head. Ms. Sandifer identified the defendant in court as the person who made threats against Mr. Anderson while in the parking lot of her apartment complex.

Ms. Anderson also testified, stating that she and her brother were originally from Memphis, Tennessee and that, at the time of the shooting, Mr. Sandifer was her boyfriend. She confirmed that a fight occurred between the defendant and her brother outside the nightclub on the night of her brother’s murder. According to Ms. Anderson, her brother wanted to “fist fight” the defendant because he (the defendant) had slapped his (Mr. Anderson’s) girlfriend. She stated that her brother did not like to be around guns and, thus, when Mr. Sandifer attempt to hand her brother a shotgun he retrieved from the trunk of his car during the nightclub |Bparking lot dispute, her brother refused to take it. Ms. Anderson testified that when the defendant’s friends drove up in his truck at the nightclub she saw one of them hand a gun to the defendant. Accordingly, because the defendant had a gun and there were approximately thirty people standing near him, she urged her brother to leave the scene.

Ms. Anderson recalled that they all left the scene before the defendant but soon after she arrived home with the Sandifers, Ms. Edwards came to the apartment threatening Mr. Sandifer. As Ms. Anderson watched from the apartment balcony, Ms. Sandifer tried to diffuse the situation. While she was watching Ms. Sandifer and Ms. Edwards, Ms. Anderson noticed the defendant, who was standing behind a tree, drop a gun and hurriedly try to pick it up. She observed the defendant’s truck parked by the tree and then heard him tell Ms. Edgar to leave with her child because everyone in the house was about to die. She also heard the defendant tell Ms. Sandifer to kiss her brother because it was going to be the last time she would see him. Accordingly, Ms. Anderson called her brother and told him not to come over or, if he did, not use his personal vehicle. When she tried to call him ten to fifteen minutes later, he did not answer his phone. Shortly thereafter, she received a call from her sister, Nicole Anderson, informing her that their brother was dead. She then went to the location of the shooting and, while at the crime scene, received a phone call from Ms. Edwards who initially extended condolences for the loss of her brother. However, when Ms. Anderson asked Ms. Edwards why her brother had been killed, Ms. Edwards hung up and then called back, stating “that’s what you get for fucking with [U]ncle “C’s,” before hanging up again. Ms. Anderson identified Uncle “C” in the courtroom as the defendant.

| RTheo “Jody” Jackson testified via deposition that he and Mr. Anderson were longtime friends. On the night of the murder, he drove Mr. Anderson to the IHOP to meet someone although he did not know who Mr. Anderson planned to meet. After they were seated in the restaurant, the defendant (a “light skinned” guy who Mr. Jackson recognized from the nightclub) came into the restaurant. Mr. Anderson got up to speak to the defendant. Mr. Jackson did not overhear the conversation, describing it as “brief’ and “quiet.” The defendant and Mr. Anderson then went outside of the establishment and, shortly thereafter, the defendant shot Mr. Anderson. Mr. Jackson ducked for cover along with other people in and around the IHOP, but observed shots coming from the dark late model pickup truck that the defendant arrived in and, after the shooting, saw the defendant jump into the truck and leave the scene. Mr. Jackson called 911 and went outside to where Mr. Anderson lay on the ground unresponsive.

Ms. Edgar also testified, confirming that she was a friend of Mr. Anderson, lived with Ms. Sandifer, and worked with Ms. Edwards, Ms. Sandifer, and Ms. Anderson at the nightclub. She knew the defendant as Ms. Edward’s “older boyfriend,” but reiterated that Ms. Edwards was also involved with Mr. Sandifer. Ms. Edgar testified about the initial argument between the defendant and Mr. Anderson, also stating that she saw someone hand the defendant a gun from his truck before he left the nightclub. According to Ms. Edgar, Ms. Edwards approached her and told her to leave the apartment because she (Ms. Edwards) was going to kill everyone there. Ms. Edgar left the nightclub with the San-difers, returning to their shared apartment where Ms. Anderson was present with Ms. Edgar’s child. Soon thereafter, Ms. Edwards arrived and told Mr. Sandifer to come outside to get what was coming to him. Ms. Edwards argued with Mr. San-difer, 17brandished a gun, threatened to kill everyone, and told Ms. Edgar to leave with her child. Ms. Edgar followed Ms. Edwards outside and saw the defendant standing outside in front of his truck with a gun in his hand. The defendant also told her to leave with her baby and told Ms. Sandifer to kiss her brother goodbye. Ms. Edgar then observed Ms. Edwards leave in a gold colored truck and the defendant leave in a black truck. Approximately thirty minutes later, she received a phone call informing her that the victim had been shot.

Yolanda Hayes, a 911 operator for the City of New Orleans on the night of the shooting, testified that she received three calls reporting the incident at the IHOP. She listened to the taped conversations and confirmed that the tapes at trial were in fact the calls that came in the night of the shooting.

Detective Anthony Pardo of the New Orleans Police Department (NOPD), Homicide Division, the lead officer in the investigation of the murder of Mr. Anderson, testified as to the details of the police investigation. He confirmed that he arrived at the IHOP parking lot sixty to ninety minutes after the shooting and assisted in the processing of the crime scene. Detective Pardo stated that multiple nine millimeter shell casings and one live round were found in the area that night and, later, the manager of the IHOP reported that one additional shell casing had been found near the parking lot area. He also indicated that the video evidence, S-B2, was later retrieved by the NOPD video forensics department. He identified both the defendant and Mr. Anderson in the video. Detective Pardo also interviewed Ms. Anderson, Ms. Sandifer, and Mr. Jackson at the crime scene. While he was speaking with Ms. Anderson, she received a phone call from Ms. Edwards. Ms. Anderson placed the phone on speaker mode and he heard the entire conversation between Ms. Anderson and Ms. Edwards.

| ¡According to Detective Pardo, the defendant was not at the scene and no weapons were found at the scene around the victim. He conceded that he had no knowledge as to whether a gun had been removed from the scene by Mr. Anderson’s friends and that he had not questioned Mr. Jackson about whether he or Mr. Anderson possessed guns at the scene of the crime. Detective Pardo also acknowledged that he was not aware that Mr. Sandifer had threatened the defendant earlier in the nightclub parking lot.

Officer Carl Palmer, a NOPD crime laboratory technician, confirmed that he processed the crime scene on the night of the shooting, retrieving casings and fragments from around the victim’s body in the IHOP parking lot and, later, a shell casing from a flower bed nearby.

Cynthia Gardner, M.D., qualified by joint stipulation as an expert in the fields of medicine and forensic pathology, conducted the autopsy on the victim on August 19, 2010. At trial, she identified S-41, her autopsy protocol, and testified that the victim had a total of seventeen penetrating gunshot wounds, several of which caused fatal injuries to the victim. While the majority of Mr. Anderson’s wounds were not immediately fatal, Dr. Gardner opined that he had wounds that interfered with his breathing, causing him to bleed to death. Dr. Gardner also stated that at least one of the wounds was “instantly” fatal, that is, death was not immediate, but was certain to result several minutes post injury. In particular, she stated that “Wound E” entered through the right chest, exiting the left side of the back and causing injury to the diaphragm, the liver, the large intestine, a rib, and causing overall massive internal injury of the chest and abdomen. Dr. Gardner also opined that some of the gunshot wounds were consistent with ricochet penetration of a victim who was lying on the ground. She explained that usually if a person is |9the victim of a ricocheted bullet fragment and is in a standing position, the bullet fragments are usually found in the feet and ankles. However, she distinguished that the bullet fragments found in Mr. Anderson as being located in his stomach and left side of his torso.

Manieshia Hampton testified on behalf of the defendant, stating that she was his girlfriend and, that at the time of the shooting, they were living together. Ms. Hampton testified that the defendant owned a gun that he kept in their apartment. Ms. Hampton did not know Ms. Edwards and was unaware that the defendant was involved with Ms. Edwards at

the same time he was living with her. Ms. Hampton stated that she did not go to the IHOP on the night of the shooting.

Donald Gray, also called as a witness for the defense, testified that he was a friend of the defendant and had gone with him to the nightclub. He denied seeing the defendant in an altercation or with a gun on the night of the shooting.

Finally, the defendant testified on his own behalf, indicating that he did not really know Mr. Anderson or Mr. Sandifer. He denied arguing, slapping, or fighting anyone in the nightclub and, further, having any conflicts with Mr. Anderson or Mr. Sandifer. The defendant asserted that no one gave him a gun at the nightclub and that he never pulled a gun on Mr. Anderson. According to the defendant, on the night of the shooting Ms. Edwards called him while she was engaged in a verbal altercation. He went to the location where she was — the Ghenault Creek Apartments — and told her to get in her car and leave the premises. He asserted that he never spoke to anyone at the apartment complex or brandished a gun. After he left the apartment complex, he went home but then decided he wanted to get something to eat and went with a friend to the IHOP which was about five minutes away from his home. He admitted having a firearm on his |1(lperson when he went to the IHOP. He entered the IHOP and waited to be seated by a hostess, but was not immediately seated. While he waited, Mr. Anderson approached him, saying “I should have killed you last night.” The defendant declared he was nervous and afraid for his life and decided to leave the restaurant. However, Mr. Anderson followed him and then appeared to be reaching in his pocket for something. The defendant claimed he was certain that Mr. Anderson was reaching for a gun, so he shot him before Mr. Anderson could harm him. When asked to describe Mr. Anderson’s gun, however, the defendant was unable to describe the make or model of the gun. The defendant testified that he left the scene after the shooting and went home. He claimed that he never knew he was wanted in connection with the shooting until he was arrested at his home in New Orleans East on August 4, 2010. The defendant also testified that he did not know the location of the gun used in the shooting because he threw it out of the window of the vehicle as he was fleeing the crime scene. He did admit to being aware that Ms. Edwards was arrested the day following the shooting at the IHOP, but denied knowing that he was wanted in connection with the murder.

The defendant’s mother, Mrs. Corinne Labat-Hingle testified that the defendant graduated from high school and attended Xavier University.

Discussion

The testimony of a single witness, if believed by the trier of fact, is sufficient to support a conviction, State v. Wells, supra, and we will not disturb the factfinder’s credibility determinations on appeal unless they are clearly contrary to the evidence. State v. James, supra. In this case, the defendant conceded he shot the victim and, although he asserted that it was in self-defense, three witnesses testified as to his earlier altercation with Mr. Anderson and that the defendant was | nhandling a gun and making threatening remarks pertaining to Mr. Anderson and others shortly before the shooting. Thus, there is clear evidence that the defendant had the requisite specific intent to kill Mr. Anderson and did so. Moreover, in addition to the testimony that Mr. Anderson did not like guns and refused to handle them, no guns were found on his person or in his vicinity after the shooting and, although the shooting took place in a public place, there is no evidence to support the defendant’s self-serving testimony that he thought Mr. Anderson was in possession of a gun. Accordingly, under the circumstances presented, the State met its burden of proof and, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found that the homicide was not committed in self-defense.

Conclusion

The defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . Ms. Edwards pleaded guilty to the crime of accessory after the fact on September 6, 2011, in return for a sentence of eighteen months, credit for time served.


author: PAUL A. BONIN, Judge.

text:
    STATE of Louisiana v. Tam M. TRAN.
    No. 2012-KA-1219.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 24, 2013.
    Leon A. Cannizzaro, Jr., District Attorney, Matthew C. Kirkham, Assistant District Attorney, Kyle Daly Assistant District Attorney, New Orleans, for Appellant.
    Patrick A. Giraud, Esq., New Orleans, for Defendant/Appellee.
    (Court composed of Judge TERRI F. LOVE, Judge PAUL A. BONIN, Judge DANIEL L. DYSART).
   PAUL A. BONIN, Judge.

I,Tam Tran was charged by bill of information with simple possession of cari-soprodol, which is scheduled controlled dangerous substance. Mr. Tran filed a motion to quash the charge under La. C.Cr.P. art. 532(10) because he claimed to have a valid prescription or order from a practitioner. Mr. Tran submitted a Patient’s History Report from Rite Aid which showed that Dr. Michael Hunter had prescribed carisoprodol on August 5, 2009. The prosecution submitted no countervailing evidence and merely noted its objection to the trial judge’s ruling which sustained or granted the motion.

On appeal, the prosecution argues that the trial judge abused her discretion because the prescription, which was admittedly valid, was more than two years old at the time of Mr. Tran’s arrest for possession on December 13, 2011, and the prescription directed that the 120 pills be consumed at the rate of four per day for thirty days. In support of its argument, the prosecution points out that under the Administrative Code, prescriptions are only valid for six months.

|2We have reviewed the trial judge’s ruling under an abuse-of-discretion standard and, especially in the light of our holding last year in State v. Williams, 12-0110 (La.App. 4 Cir. 10/10/12), 101 So.3d 533, conclude that the trial judge did not abuse her discretion. Accordingly, we affirm the ruling and dismissal of the charge of possession of carisoprodol. We explain our decision in greater detail in the Parts which follow.

I

Carisoprodol is scheduled as a controlled dangerous substance. See La. R.S. 40:964, Schedule IV B(4.1). The attributes of a Schedule IV CDS are its low potential for abuse relative to higher scheduled substances, but its abuse may lead to limited physical or psychological dependence; however, it currently has an accepted medical use in treatment in the United States. See La. R.S. 40:963D.

Knowing or intentional possession of a Schedule IV CDS is unlawful “unless such substance was obtained directly or pursuant to a valid prescription or order from a practitioner, or as provided in R.S. 40:978, while acting in the course |aof his professional practice or except as otherwise authorized by this Part.” La. R.S. 40:969C.

With limited exceptions, a Schedule IV drug may not be dispensed or administered without a written prescription. See La. R.S. 40:978B. “ ‘Prescription’ means a written request for a drug ... issued by a licensed physician [among other listed medical professionals] for a legitimate medical purpose, for the purpose of correcting a physical, mental, or bodily ailment, and acting in good faith in the usual course of his professional practice.” La. R.S. 40:961(33). “Such prescription may not be filled or refilled more than six months after the date thereof or refilled more than five times after the date of the prescription unless renewed by the practitioner.” La. R.S. 40:978B.

The prosecution is under no obligation to “negate” the exemption provided under § 968 C, and “the burden of proof of any such exemption or exception shall be upon the person claiming its benefit.” La. R.S. 40:990A. Possession of a valid prescription for a CDS is a defense to the charge of violating the CDS law, and the person who is claiming possession of the prescription has “the obligation to produce sufficient proof of a valid prescription to the appropriate prosecuting office.” La. R.S. 40:990A. “Production of the original prescription bottle with 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.” Id. But, while such production by a defendant would be sufficient proof of a valid prescription, it is not — as we recently held — the exclusive means by which a | ¿defendant may prove possession of a valid prescription. See State v. Williams, 12-0110, p. 5, 101 So.3d at 536 (“Therefore, pursuant to the rules of statutory construction, La. R.S. 40:991 should not be read to restrict the sources of evidence a defendant may use to establish that he possessed a validly issued prescription.”)

Not only does the defendant bear the burden of proving possession of a valid prescription, but he must “raise this defense before commencement of the trial through a motion to quash.” La. R.S. 40: 991C. See also La.C.Cr.P. art. 532(10) (A motion to quash may be based on the ground that “[t]he individual charged with a violation of the Uniform Controlled Dangerous Substances Law has a valid prescription for that substance.”) Importantly, “fe]ll issues, whether of law or fact, that arise on a motion to quash shall be tried by the court without a jury.” La.C.Cr.P. art. 537.

II

We now turn to specifically consider the evidence which Mr. Tran submitted to the trial court in support of his motion to quash.

The defense submitted a Patient History Report from Rite Aid Pharmacy dated May 16, 2012. The patient is identified as Mr. Tran, the defendant, by his full name, address, telephone number, and date of birth. The Report sets out the prescription number, the store from which it was dispensed, and that there were no refills. The carisoprodol was dispensed on August 5, 2009 in a quantity of 120-350 mg tablets. The instructions were “take 1 tablet by mouth four times a day.” |sThe prescriber is identified as Dr. Michael Hunter. The registered pharmacist is identified by his initials only, but he certified that the cari-soprodol was “dispensed to [Mr. Tran] by order of [his] personal physician.” The Report also contains the prescription number.

The Rite Aid Pharmacy Patient History Report discloses virtually all the same information which is sufficient proof of a valid prescription if the original prescription bottle is produced. See La. R.S. 40:991A, ante.

In Williams, supra, the defendant produced at the hearing on his motion to quash a “prescription profile print-out” from Walgreen Pharmacy’s records. There, the prosecution argued that the printout was insufficient to show that the defendant had a valid prescription. But we found that the defendant had sufficiently demonstrated that he possessed a valid prescription for particular drug because the computer-printout documents contained the defendant’s name and prescription number, provided the name of defendant’s prescribing physician, and supported the defendant’s assertion that he had received 140 tablets of the drug over ongoing period of time. See State v. Williams, 12-0110, p. 5, 101 So.3d at 536. As we there commented, the trial judge found nothing irregular or suspicious in the evidence submitted by the defendant at the hearing. Id.

We are not persuaded by the prosecution’s reference to the provision of the Louisiana Administrative Code that prescriptions are, as it characterizes the matter, “only valid” for a period not to exceed six months from the date of issue. We | (¡understand that the prescription written by Dr. Hunter could not be filled or refilled by the dispensing pharmacist more than six months after the physician wrote it unless renewed by him. See La. R.S. 40:978B, ante. But we cannot leap with the prosecution to the unsupportable proposition that such prohibition renders a tablet which was timely dispensed pursuant to the possession of a valid prescription to be unlawfully possessed by the patient if the prescription is more than six months old. Moreover, the prosecution has not furnished to us nor have we found any positive law which requires a patient to destroy validly prescribed medicine in his possession because it is more than six months past the date of the physician’s prescription.

Here, we too find nothing irregular or suspicious in this prescription and are satisfied that the trial judge, especially in the absence of any contravening evidence, did not abuse her discretion in finding that Mr. Tran bore his burden of sufficiently proving that he possessed a valid prescription for carisoprodol and accordingly sustaining the motion to quash.

Ill

Because the prosecution cannot “cure” the defect in the charge, the defendant, Mr. Tran, is entitled to discharge. See La. C.Cr.P. art. 538; cf. State v. Williams, 612 So.2d 216 (La.App. 4th Cir.1992).

|7DECREE

The trial judge’s ruling sustaining the motion to quash with respect to the cariso-prodol count is affirmed. The defendant, Tam Tran, is discharged.

AFFIRMED

      . Carisoprodol is a muscle relaxer, commonly known as Soma. The defendant was also charged with a second count for simple possession of marijuana, which count is not before us.

      . See La. Admin. Code, Title 46:LIII § 2525 B.

      . In reviewing rulings on motions to quash where there are mixed questions of fact as well as law, as here, a trial judge’s ruling on a motion to quash is discretionary and should not be disturbed absent a clear abuse of discretion. State v. Sorden, 09-1416, p. 3 (La.App. 4 Cir. 8/4/10), 45 So.3d 181, 183; see also State v. Love, 00-3347, pp. 9-10 (La.5/23/03), 847 So.2d 1198, 1206 (”[b]e-cause the complementary role of trial courts and appellate courts demands that deference be given to a trial court's discretionary decision, an appellate court is allowed to reverse a trial court judgment on a motion to quash only if that finding represents an abuse of the trial court’s discretion”).

      .Carisoprodol possession is punishable by imprisonment with or without hard labor and a fine of not more than five thousand dollars. See La. R.S. 40:969C(2).

      . All this data is the same as that found on other documentary materials contained in the record.

      . The prosecution references La. Adm.Code, Title 46, Pt. Lili, Sec. 521.