text:
    Lee DROKE, Appellant, v. Christopher ANDINO, Appellee.
    No. 5D13-2726.
    District Court of Appeal of Florida, Fifth District.
    Aug. 22, 2014.
    Andrew L. Moses, of Moses and Rooth, Attorneys at Law, Orlando, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

Lee Droke appeals a final judgment for protection against repeat violence entered against him in favor of Christopher Andi-no. Mr. Droke argues that the trial court erred by entering the petition where Mr. Andino only proved one act of violence. We agree.

Section 784.046(l)(b), Florida Statutes (2013) defines repeat violence as “two incidents of violence or stalking committed by the respondent, one of which must have been within 6 months of the filing of the petition, which are directed against the petitioner or the petitioner’s immediate family member.” An assault qualifies as an act of violence under the statute. § 784.046(l)(a), Fla. Stat. (2013). An assault is defined as “an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.” § 784.011(1), Fla. Stat. (2013). In other words, “[a] person’s mere intention to commit an assault is not enough; there must be some overt act sufficient to demonstrate a threat directed at the person placed in fear.” Johnson v. Brooks, 567 So.2d 34, 35 (Fla. 1st DCA 1990).

In the instant case, the evidence established that Andino threatened Droke on two separate occasions, but -violence appeared imminent on only one occasion. Thus, only one assault was shown. See Russell v. Doughty, 28 So.3d 169, 170 (Fla. 1st DCA 2010) (reversing where evidence of second violent act was respondent yelling profanities and threats, without an indication that respondent threatened to do violence or that he took some action that could have created a well-founded fear that violence was imminent); Sorin v. Cole, 929 So.2d 1092, 1094 (Fla. 4th DCA 2006) (“Mere shouting and obscene hand gestures, without an overt act that places the victim in fear, does not constitute the type of violence required for an injunction.”); Gagnard v. Sticht, 886 So.2d 321, 322 (Fla. 4th DCA 2004) (reversing because threat to kill petitioner and “ ‘F’ him up,” without “overt acts indicating an ability to carry out the threats or justifying a belief in [petitioner] that violence was imminent” did not constitute an act of violence); Perez v. Siegel, 857 So.2d 353, 355 (Fla. 3d DCA 2003) (reversing upon finding that although respondent threatened to kill petitioner and her family during a face to face confrontation, petitioner never alleged or proved that respondent had the apparent ability to do so, or that respondent committed any overt act creating well-founded fear that violence was imminent). Accordingly, we reverse and remand with directions that the trial court vacate the injunction and dismiss the petition.

REVERSED and REMANDED with directions.

TORPY, C.J., LAWSON and BERGER, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ryan McCARTHY, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-2387.
    District Court of Appeal of Florida, First District.
    Aug. 26, 2014.
    Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General; Samuel B. Steinberg and Jay Kubica, Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Ryan McCarthy, was convicted and sentenced for the unlawful use of a computer service, traveling to meet a minor, and transmission of material harmful to minors by electronic device or equipment. Appellant raises three issues on appeal. We affirm as to all issues and briefly discuss one.

Appellant asserts that his convictions for the unlawful use of a computer service and traveling to meeting a minor violate double jeopardy because they arose out of the same criminal episode. We have previously rejected this argument. See Elsberry v. State, 130 So.3d 798, 798 (Fla. 1st DCA 2014); State v. Murphy, 124 So.3d 323, 330-31 (Fla. 1st DCA 2013). As we did in Elsberry, we certify conflict with the decision of Hartley v. State, 129 So.3d 486 (Fla. 4th DCA 2014).

AFFIRMED.

WOLF, ROWE, and OSTERHAUS, JJ., concur.


text:
    Donnie BERRY, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-3638.
    District Court of Appeal of Florida, First District.
    Aug. 26, 2014.

      Deana K. Marshall of Law Office of Deana K. Marshall, P.A., Riverview, for Appellant.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Donnie Berry appeals the summary denial of an eight-ground motion for postcon-viction relief alleging ineffective assistance of counsel in the proceedings leading to his convictions for two counts of robbery with a firearm and one count of resisting an officer without violence. Based on our own careful review of Berry’s arguments, we hold that Berry has established reversible error with respect to two grounds. We reverse and remand for either an evi-dentiary hearing or attachment of portions of the record conclusively refuting Berry’s claims that counsel rendered ineffective assistance (1) in failing to move to suppress a victim’s identifications of Berry after an unduly suggestive identification procedure, as argued in ground II of the motion, and (2) in failing to raise a Brady issue due to the State’s failure to collect and preserve certain evidence, as argued in ground Y. In all other respects, we affirm.

When considering ground II on remand, the trial court should apply the non-exhaustive list of factors provided in Simmons v. State, 934 So.2d 1100, 1118 (Fla.2006) (quoting Grant v. State, 390 So.2d 341, 343 (Fla.1980)), and Edwards v. State, 538 So.2d 440, 442 (Fla.1989). The court’s order references these factors but fails to apply them to all the relevant allegations in Berry’s motion, which the court was required to accept as true absent either conclusive refutation by the record or an evidentiary hearing. See Freeman v. State, 761 So.2d 1055,1061 (Fla.2000).

As to ground V, Berry’s allegations indicate that the perpetrator’s shirt was in the State’s constructive custody, that it was potentially useful to his defense, and that its destruction or loss was caused by bad faith on the part of law enforcement. If these allegations are all true, which we must assume based on the case’s current posture, Berry is entitled to relief. See State v. Buitrago, 39 So.3d 540, 541 (Fla. 2d DCA 2010) (quoting State v. Thomas, 826 So.2d 1048, 1049 (Fla. 2d DCA 2002)).

AFFIRMED in part; REVERSED in part; and REMANDED.

THOMAS, RAY, and SWANSON, JJ„ concur.

      . We ordered the State to show cause why we should not reverse on four of the grounds but ultimately decided to affirm on two of them. See Toler v. State, 493 So.2d 489 (Fla. 1st DCA 1986). Merely quoting the trial court’s reasoning, which was already in the record, and citing familiar standards of review, the State’s response to the Toler order did not facilitate our consideration of the issues. We take this opportunity to note that when this Court issues a Toler order, it is because the trial court’s reasoning does not readily resolve our concerns about a particular issue and express adversarial testing of the issue would serve the interests of justice.

      . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).


text:
    Richard RIGHTMIRE, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-1314.
    District Court of Appeal of Florida, First District.
    Aug. 26, 2014.
    Richard Rightmire, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Jay Kubica, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In this appeal of the lower court’s partial denial of appellant’s motion to return seized property, the State properly concedes that it failed to present evidence that meets the standard for withholding seized property. See Stone v. State, 630 So.2d 660, 661 (Fla. 2d DCA 1994) (“If, however, the state was unable to connect the items to specific criminal activity ... [the property] should be returned to [the movant] or to such person(s) as he may designate.”).

Finding no evidentiary basis for the denial of the motion, we REVERSE and REMAND for entry of an order granting the motion and returning the property to appellant’s designated representative.

WOLF, ROBERTS, and ROWE, JJ., concur.


text:
    Charles R. CORDA, Appellant, v. CITY OF MIAMI, etc., et. al., Appellees.
    No. 3D14-1839.
    District Court of Appeal of Florida, Third District.
    Aug. 26, 2014.
    Charles R. Corda, in proper person.
    Victoria Méndez, City Attorney, and John A. Greco, Deputy City Attorney, and Warren Bittner, Deputy Emeritus, and Forrest L. Andrews, Assistant City Attorney; Greenberg Traurig, P.A., and Alan T. Dimond, Elliot H. Scherker and Brigid F. Cech Samóle; White & Case LLP, and Raoul G. Cantero and Evan M. Golden-berg; Feigeles Avallone & Haimo LLP, and Julie Feigeles; R.A. Cuevas, Jr., Miami-Dade County Attorney, and Michael B. Valdes, Assistant County Attorney, for ap-pellees.
    Before WELLS, EMAS and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. Charter Review Comm’n of Orange Cnty. v. Scott, 647 So.2d 835 (Fla.1994); Miami Dolphins, Ltd. v. Metro. Dade Cnty., 394 So.2d 981 (Fla.1981).


author: OSTERHAUS, J.

text:
    Jennifer KISH, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-1093.
    District Court of Appeal of Florida, First District.
    Aug. 28, 2014.

      Nancy A. Daniels, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Assistant Attorney General, and Kristen Lynn Bonjour, Assistant Attorney General, Tallahassee, for Appel-lee.
   OSTERHAUS, J.

Appellant Jennifer Kish appeals her convictions on three counts of culpable negligence under section 784.05(1), Florida Statutes, for allowing her children, ages 10, 8, and 7, who were sick with cold and upper respiratory symptoms, to be left unsupervised for two to three hours after school until adults arrived home from work. Ms. Kish argues that the trial court should have granted her motion for judgment of acquittal because the evidence was insufficient to establish culpable negligence. We agree and reverse.

I.

A.

On January 26, 2012, Ms. Kish was called away to Jacksonville in the middle of the day because her mother had a medical emergency. Ms. Kish expected to return home late, after her children’s school day ended, so she called the school and arranged for the school bus to drop off her 10-, 8-, and 7-year-old children at the home of her former husband and his wife (the “Meadows”). Ms. Kish had not rerouted her children like this before, but the Meadows were trusted caregivers. They were the father and step-mother of the 10-year-old child and shared custody of her with Ms. Kish. The children had taken the school bus to the Meadows’ house before and the Meadows regularly welcomed the children in their home. Ms. Meadows was home by 8 PM on most school days, or at least by 6 PM on days when the Meadows’ other children stayed late at school.

Ms. Kish did not advise the Meadows of her emergency on January 26th, or that the children would be coming over after school. And no one was home when the school bus dropped off the children at the Meadows home at about 3:45 PM. Nevertheless, the children let themselves in the house, did homework, and watched TV. At some point within the next couple hours, the 8-year-old began vomiting, the 7-year-old’s nose began to run, and the 10-year-old testified that she was “running a high fever and panicking.” Nonetheless, the 10-year-old cared for her siblings by cleaning them up in a bath and looking for medicine. When the Meadows arrived home around 6 PM, they were surprised to see the children in their home, sick and unsupervised. And they were quite upset with Ms. Kish.

Ms. Meadows found all three children to have fevers and she gave them medicine. The Meadows tried, unsuccessfully, to contact Ms. Kish (only later did they learn from a Facebook post that Ms. Kish was in a Jacksonville emergency room with her mother). The Meadows also contacted the police, in order to file a report, and the father of the two younger children. Hours later, they took the children to the emergency room.

At the hospital, the eldest was diagnosed ■with bronchitis and the other two with upper respiratory infections, or common colds. The record indicates that Ms. Kish arrived back from Jacksonville at about 9 PM, but found no one home at the Meadows’ house. Having no information about where anyone was, she searched for them for a couple of hours before ultimately arriving at the hospital around 11 PM. The police arrived later and, after questioning Ms. Kish, they arrested her.

B.

The State charged Ms. Kish with three counts of felony child neglect. A bench trial was held in October 2012, in which the State’s ease set forth the basic facts described above. After the state rested, Ms. Kish moved for a judgment of acquittal asserting that the State had presented insufficient evidence establishing a probability of harm to the children, or establishing a total want of care. But her motion was denied. In the trial court’s view:

None of [the children] seemed overly mature.... And the facts of the matter are [that the children] were sick before school started and a call was made to the school to put them on a bus to go to an empty house. Why that second call wasn’t made to the dad to say, hey, your child and my other two children are coming to your house because I have an emergency, I don’t know. But that’s what the facts are before the court now, and I do find that it rises to the level of ... culpable negligence.

Defense counsel renewed the argument for acquittal in its closing.

Ultimately, the trial court acquitted Ms. Kish of child neglect, but it found her guilty of three counts of the lesser offense of culpable negligence. The court withheld adjudication and sentenced Ms. Kish to 12 months’ probation. Ms. Kish then filed a timely appeal of the trial court’s decision to deny her motion for a judgment of acquittal.

II.

A.

This Court reviews the trial court’s denial of a motion for judgment of acquittal de novo, with the evidence and all reasonable inferences from the evidence being viewed in a light most favorable to the State. See Ramos v. State, 89 So.3d 1119, 1122 (Fla. 1st DCA 2012) (citing Jones v. State, 790 So.2d 1194, 1196-97 (Fla. 1st DCA 2001)). It is a crime in Florida to expose another person to personal injury through culpable negligence. § 784.05(1), Fla. Stat. “Culpable negligence” isn’t statutorily defined, but has been defined in caselaw consistent with the standard jury instruction used by the trial court in this case:

For negligence to be called culpable negligence, it must be gross and flagrant. The negligence must be committed with an utter disregard for the safety of others. Culpable negligence is consciously doing an act or following a course of conduct that the defendant must have known, or reasonably should have known, was likely to cause death or great bodily harm.

Fla. Std. Jury Instr. (Crim.) 16.6. And the facts are critical; culpable negligence is determined “upon the facts and the totality of the circumstances in each particular case.” See Ibeagwa v. State, 141 So.3d 246 (Fla. 1st DCA 2014).

B.

In denying the motion for judgment of acquittal, the trial court determined that Ms. Kish could be criminally culpable due to the children’s ages, the uncertain prospect of adult supervision at the Meadows home, and the children’s sicknesses. But we find this evidence insufficient to sustain Ms. Kish’s conviction for culpable negligence. The facts simply don’t show Ms. Kish to have had a “gross and flagrant ... utter disregard for the safety of [her children or] a course of conduct that [she] must have known, or reasonably should have known, was likely to cause death or great bodily harm.”

Rather, the evidence showed Ms. Kish tried to provide for her children’s safety on an especially difficult day. Encountering a family emergency mid-day while the children were at school, Ms. Kish called the children’s school and changed their bus route because she didn’t expect to be home when the children arrived. She opted to have the school bus drop her children off at the home of trusted caregivers, who were often home at that time and invariably welcomed the children. Now, it is true that Ms. Kish did not confirm whether the Meadows would be home to actually supervise the children. And she should have. But her incomplete regard for her children’s care in this instance didn’t manifest an “utter disregard” for their safety.

Moreover, the children in this case weren’t so young that leaving them alone in a familiar home for a couple hours could be considered a gross, flagrant, and utter disregard for their safety, or an act “likely to cause death or great bodily harm.” The children were 10-, 8-, and 7-years-old. And though the trial court did not consider them “overly mature,” their comparative ability to care for themselves wholly distinguishes this ease from those in which culpable negligence convictions have been upheld. See, e.g., Ibeagwa, 141 So.3d 246 (involving children ages 3- and 6-years-old who were left unsupervised for several hours in a home where a ladder allowed them to access a neighbor’s pool); Ramos, 89 So.3d 1119 (involving repeated failure to supervise a nineteen-month-old child who drowned in a retaining pond); State v. Brooks, 17 So.3d 1261 (Fla. 2d DCA 2009) (reversing trial court’s order granting motion for judgment acquittal in child neglect case where a nine-month-old and 2-year-old were left unattended in a bathtub for between fifteen and forty minutes). The evidence in this case bears out the importance of age differences. Here, the 10-year-old could and did provide appropriate care for her sick siblings until the Meadows arrived.

The facts of Bernard, v. State, 769 So.2d 1066 (Fla. 3d DCA 2000), come closest to this case. There, the court reversed a probationer’s child neglect conviction for leaving a 7-year-old child unsupervised in an apartment for forty-five minutes while walking to pick up her baby from daycare. Although the probationer in Bernard phoned the 7-year-old from the daycare to check on her (whereas Ms. Kish sent her children to a home with no landline telephone), this fact wasn’t dispositive, nor substantively distinguishes that case. Simply put, the State cannot establish culpable negligence based on a parent’s decision to leave children ages 10-, 8-, and 7-years-old in a familiar home without adult supervision for a few hours after school, doing their homework and watching TV until an adult arrives. See also Dep’t of Health and Rehab. Services v. S.L., 1994 WL 1028645 (Fla.Div.Admin.Hrgs.) (noting that “ours is a nation of latch-key children and working class parents who have few choices of adequate child care.”).

Finally, that all three children were sick with upper respiratory issues does not change the calculus on Ms. Kish’s culpability. However manifest the children’s symptoms became that evening after school, they had gone to school, studied a full day at school, and taken the school bus to the Meadows house without evidence of being significantly debilitated. There was no evidence, for instance, that the school contacted Ms. Kish (or the other parents) about any child being too sick or debilitated to remain at school that day. And when the Meadows arrived home, the State’s evidence wasn’t that they immediately rushed their daughter or the other children to the emergency room. Rather, they delayed visiting the hospital for hours so that they could file a police report and contact the father of the younger children. Indeed, the hospital ultimately diagnosed the two younger children with “upper respiratory infections or colds” and their fevers were broken by over-the-counter medication. This evidence of illness doesn’t support the conclusion that the children were at much risk at all from being left unsupervised for a few hours after school, much less that Ms. Kish exposed them to death or great bodily harm. Nor did the State put on any medical testimony that the children risked great harm or death at the Meadows’ house that afternoon. See Weeks v. State, 832 So.2d 954 (Fla. 2d DCA 2002) (reversing a child neglect conviction for want of medical evidence).

III.

And so, viewing the evidence in a light most favorable to the State, we conclude that the State’s evidence does not support Ms. Kish’s conviction. While Ms. Kish’s actions that day may have been inconsiderate to the Meadows and unwise on a day when the children were experiencing upper respiratory symptoms, the evidence failed to satisfy the higher threshold required to criminally convict Ms. Kish for culpable negligence. We reverse and remand with instructions for the trial court to enter an acquittal on all three charges.

REVERSED and REMANDED.

ROBERTS, and WETHERELL, JJ., concur.

      . Ms. Kish was married but separated at the time to the father of the two younger children — the 8- and 7-year-olds — but they were in the process of getting divorced. She had sole custody of the two children.

      . The Meadows did not have a landline telephone at their house, but both Mr. and Ms. Meadows carried cell phones.

      . Nor did the trial court mention the lack of a landline telephone as a factor in denying the motion for judgment of acquittal.


text:
    STATE of Louisiana v. Darrius R. WILLIAMS.
    No. 2012-K-1723.
    Supreme Court of Louisiana.
    March 8, 2013.
   PER CURIAM.

| jWrit granted in part. Defendant is presently serving a sentence of life imprisonment without possibility of parole for a second degree murder committed in 2008 when he was 17 years old. The sentence was mandated by the penalty provision of the statute establishing the offense. The court of appeal affirmed defendant’s conviction and sentence in State v. Williams, 47,146 (La.App. 2 Cir. 6/20/12); 93 So.3d 830, and defendant applied to this Court for discretionary review. While defendant’s application was pending, the United States Supreme Court held in Miller v. Alabama, 567 U.S. —, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), that “the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juveniles offenders.” However, the Miller court did not establish a categorical prohibition against life without parole for juveniles. Instead, the court required that a sentencing court consider an offender’s youth and attendant characteristics as mitigating circumstances before deciding whether to impose the harshest possible penalty for juveniles: “Although we do not foreclose a sentencer’s ability to make that judgment in homicide cases, |2we require it to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.” Miller, 567 U.S. at —, 132 S.Ct. at 2469. Defendant’s case was pending on direct review when Miller was decided. Therefore, we grant to remand to the district court to reconsider the sentence after conducting a new sentencing hearing in accordance with the principles enunciated in Miller v. Alabama. The applications are otherwise denied.


author: WEIMER, J.,

text:
    STATE of Louisiana v. Barbara VINCENT (In re Louisiana Public Defender Board).
    No. 2013-KK-0859.
    Supreme Court of Louisiana.
    May 22, 2013.
    Rehearing Denied Aug. 30, 2013.
   WEIMER, J.,

dissents.

|TI respectfully dissent from the majority’s decision to permit the subpoenas requested by the Calcasieu Parish District Attorney’s Office to go forward.

The real issue presented in this matter is whether the subpoenas sought in this case are a correct vehicle for addressing issues related to indigent defense funding. For multiple reasons, I believe that the majority’s decision to sanction the issuance of the subpoenas sought by the District Attorney is fundamentally at odds with the law, and while I share my colleagues’ frustration with the recurring problem of providing for and funding adequate indigent defense, I do not believe the wide-ranging subpoenas sought in this criminal proceeding represent the |2correct procedure or venue for addressing the funding issues that seemingly persist in parts of our state.

The subpoenas that are in dispute in this matter were sought pursuant to La. C.E. art. 507, which requires, inter alia, a showing that the information sought is essential to the successful completion of an ongoing investigation, prosecution, defense, and there is no practicable alternative means of obtaining the information. La. C.E. art. 507(A)(1) and (4). The subpoenas sought by the District Attorney fail to satisfy both prongs of this test.

First, the subpoenas do not meet the requirement that the information sought be essential (and not simply relevant) to the successful completion of an ongoing investigation, prosecution, or defense. La. C.E. art. 507(A)(1) (emphasis added). The prosecution at issue — that of the Vin-cents — raises only one issue for the district court to resolve: should the proceedings in this non-capital prosecution be stayed because there are no funds available to pay for expert witnesses? The testimony of James Dixon, Jr., the head of the Calca-sieu Parish Office of Indigent Defense, establishes that there are no funds available for expert witnesses, and that even if additional funds are made available, they will not be allocated to pay for experts in this case (as more pressing needs exist in the jurisdiction). At any rate, the district court cannot order the Louisiana Public Defender Board (“LPDB”) to provide additional funds to Calcasieu Parish. State v. Citizen, 04-1841 (La.4/1/05), 898 So.2d 325 (La. Const, art. II, § 2 provides that “no one of [the three separate |sbranches of government], nor any person holding office in one of them, shall exercise power belonging to either of the others” and “the constitution explicitly places the duty of providing a working system for securing the representation of indigent defendants squarely on the shoulders of the legislature.”); State v. Lee, 04-0129 (LaApp. 1 Cir. 4/6/04), 879 So.2d 173, 179 (a district court “has no statutory authority to order [a legislatively created public defender board] to change the way it allots funds for the various indigent defense systems or to order [a legislatively created public defendant board] to spend funds on [a] particular case.”). Therefore, even if an investigation into the funding decisions of the LPDB and the use of LPDB funds by the non-profit indigent defense offices is arguably relevant to the issue presented— whether the prosecution can proceed with the lack of funds available for expert witnesses — the information is certainly not essential to the prosecution, when it cannot lead to any meaningful resolution of the problem.

Further, the fact that the information sought via subpoena is not essential to the prosecution is made even more evident when it is considered that the District Attorney is also required to prove as part of the La. C.E. art. 507 showing that there is no practicable alternative means of obtaining the information sought. The LPDB and the nonprofit indigent defense firms are subject to an annual audit. These annual audits are public documents, readily available on the internet, and provide a complete picture of how dollars are allocated and spent on indigent defense. The District Attorney has not offered an explanation as to why the documents available on the internet are not sufficient to satisfy its concerns, other than to argue “they’re fiscal audits, they’re not performance audits.”

Clearly, then, the subpoenas requested by the District Attorney fail to meet |4the statutory requirements of La. C.E. art. 507; but they are improper for another, more fundamental reason. As the District Attorney candidly acknowledges, the purpose of the subpoenas is to challenge and attack the funding decisions of the LPDB as regards capital cases. Through the subpoenas, the District Attorney is attempting to do indirectly, under the auspices of a criminal prosecution, what it cannot do directly: challenge the funding mechanism and decisions of the LPDB in Calcasieu Parish. Funding indigent defense is a matter within the exclusive purview of the legislature. Such funding is a matter of statewide concern. For that reason, the legislature has provided, in La. R.S. 15:149.1, a mandatory venue for any civil proceedings against the LPDB in East Baton Rouge Parish. To allow the current subpoenas to issue will result in an unworkable and untenable situation: district courts in every jurisdiction will be able to engage in wide-ranging inquiries regarding LPDB funding decisions, resulting in numerous conflicting decisions as judges second guess decisions that are the exclusive province of the legislature and the executive branch. The mandatory venue provision of La. R.S. 15:149.1 is, I would suggest, designed to prevent precisely | Ssuch an occurrence.

While there is no doubt that the funding of indigent defense is a matter of great and pressing concern in Calcasieu Parish, the problem is not unique to Calcasieu Parish. Any concerns and/or challenges to the LPDB’s funding decisions must, in accordance with the relevant statutory provisions, be addressed in a civil proceeding in which the LPDB is made a party, in a single forum — East Baton Rouge Parish— and not through the vehicle of wide-ranging subpoenas in a criminal prosecution in Calcasieu Parish.

      . The district court, in its ruling permitting the subpoenas to go forward, left for another day the question of whether the subpoenas comply with La. C.E. art. 507(A)(3) by seeking information "reasonably limited as to subject matter and period of time.” Thus, whether the subpoenas are, as the various nonprofits involved in this matter argue, unduly burdensome, and ultimately self-defeating because compliance will force the reallocation of limited employee and financial resources and disrupt client representation, is a matter not presently before the court.

      . The District Attorney's office argued:
      [T]he State’s position is that the problem faced by the Calcasieu Parish Public Defender’s Office is the fact that it receives inadequate funds from the Louisiana Public Defender Board, due, in part, to that agen-cie’s [sic] excessive funding to various entities and agencies in the ever-shrinking litigation area of pre and post capital defense. That money, instead, should be put where the majority of cases are. And so it’s the State Board that’s manufactured — according to the State's theory, the State Board has manufactured the funding crisis.

      . La. Const, art. I, § 13 provides, in relevant part: "The legislature shall provide for a uniform system for securing and compensating qualified counsel for indigents.”

      . In fact, the legislatively declared mission of the Louisiana Public Defender Act is to ensure "that the right to counsel is delivered by qualified and competent counsel in a manner that is fair and consistent throughout the state." La. R.S. 15:142(B)(4) (emphasis added).

      . This appears to be exactly the type of result the legislature attempted to prevent when it included in La. R.S. 15:142(B)(2) an express declaration that one purpose of the Act was to ensure "that the public defender system is free from undue political and judicial interference."


text:
    STATE of Louisiana v. Barbara and William VINCENT (In re LA Capital Assistance).
    No. 2013-KK-0848.
    Supreme Court of Louisiana.
    May 22, 2013.
    Rehearing Denied Aug. 30, 2013.
   WEIMER, J.,

dissents.

_JjI respectfully dissent from the majority’s decision to permit the subpoenas requested by the Calcasieu Parish District Attorney’s Office to go forward.

The real issue presented in this matter is whether the subpoenas sought in this case are a correct vehicle for addressing issues related to indigent defense funding. For multiple reasons, I believe that the majority’s decision to sanction the issuance of the subpoenas sought by the District Attorney is fundamentally at odds with the law, and while I share my colleagues’ frustration with the recurring problem of providing for and funding adequate indigent defense, I do not believe the wide-ranging subpoenas sought in this criminal proceeding represent the ^correct procedure or venue for addressing the funding issues that seemingly persist in parts of our state.

The subpoenas that are in dispute in this matter were sought pursuant to La. C.E. art. 507, which requires, inter alia, a showing that the information sought is essential to the successful completion of an ongoing investigation, prosecution, defense, and there is no practicable alternative means of obtaining the information. La. C.E. art. 507(A)(1) and (4). The subpoenas sought by the District Attorney fail to satisfy both prongs of this test.

First, the subpoenas do not meet the requirement that the information sought be essential (and not simply relevant) to the successful completion of an ongoing investigation, prosecution, or defense. La. C.E. art. 507(A)(1) (emphasis added). The prosecution at issue — that of the Vin-cents — raises only one issue for the district court to resolve: should the proceedings in this non-capital prosecution be stayed because there are no funds available to pay for expert witnesses? The testimony of James Dixon, Jr., the head of the Calca-sieu Parish Office of Indigent Defense, establishes that there are no funds available for expert witnesses, and that even if additional funds are made available, they will not be allocated to pay for experts in this case (as more pressing needs exist in the jurisdiction). At any rate, the district court cannot order the Louisiana Public Defender Board (“LPDB”) to provide additional funds to Calcasieu Parish. State v. Citizen, 04-1841 (La.4/1/05), 898 So.2d 325 (La. Const, art. II, § 2 provides that “no one of [the three separate | ^branches of government], nor any person holding office in one of them, shall exercise power belonging to either of the others” and “the constitution explicitly places the duty of providing a working system for securing the representation of indigent defendants squarely on the shoulders of the legislature.”); State v. Lee, 04-0129 (La.App. 1 Cir. 4/6/04), 879 So.2d 173, 179 (a district court “has no statutory authority to order [a legislatively created public defender board] to change the way it allots funds for the various indigent defense systems or to order [a legislatively created public defendant board] to spend funds on [a] particular case.”). Therefore, even if an investigation into the funding decisions of the LPDB and the use of LPDB funds by the non-profit indigent defense offices is arguably relevant to the issue presented— whether the prosecution can proceed with the lack of funds available for expert witnesses — the information is certainly not essential to the prosecution, when it cannot lead to any meaningful resolution of the problem.

Further, the fact that the information sought via subpoena is not essential to the prosecution is made even more evident when it is considered that the District Attorney is also required to prove as part of the La. C.E. art. 507 showing that there is no practicable alternative means of obtaining the information sought. The LPDB and the nonprofit indigent defense firms are subject to an annual audit. These annual audits are public documents, readily available on the internet, and provide a complete picture of how dollars are allocated and spent on indigent defense. The District Attorney has not offered an explanation as to why the documents available on the internet are not sufficient to satisfy its concerns, other than to argue “they’re fiscal audits, they’re not performance audits.”

Clearly, then, the subpoenas requested by the District Attorney fail to meet 14the statutory requirements of La. C.E. art. 507; but they are improper for another, more fundamental reason. As the District Attorney candidly acknowledges, the purpose of the subpoenas is to challenge and attack the funding decisions of the LPDB as regards capital cases. Through the subpoenas, the District Attorney is attempting to do indirectly, under the auspices of a criminal prosecution, what it cannot do directly: challenge the funding mechanism and decisions of the LPDB in Calcasieu Parish. Funding indigent defense is a matter within the exclusive purview of the legislature. Such funding is a matter of statewide concern. For that reason, the legislature has provided, in La. R.S. 15:149.1, a mandatory venue for any civil proceedings against the LPDB in East Baton Rouge Parish. To allow the current subpoenas to issue will result in an unworkable and untenable situation: district courts in every jurisdiction will be able to engage in wide-ranging inquiries regarding LPDB funding decisions, resulting in numerous conflicting decisions as judges second guess decisions that are the exclusive province of the legislature and the executive branch. The mandatory venue provision of La. R.S. 15:149.1 is, I would suggest, designed to prevent precisely |fisuch an occurrence.

While there is no doubt that the funding of indigent defense is a matter of great and pressing concern in Calcasieu Parish, the problem is not unique to Calcasieu Parish. Any concerns and/or challenges to the LPDB’s funding decisions must, in accordance with the relevant statutory provisions, be addressed in a civil proceeding in which the LPDB is made a party, in a single forum — East Baton Rouge Parish— and not through the vehicle of wide-ranging subpoenas in a criminal prosecution in Calcasieu Parish.

      . The district court, in its ruling permitting the subpoenas to go forward, left for another day the question of whether the subpoenas comply with La. C.E. art. 507(A)(3) by seeking information “reasonably limited as to subject matter and period of time.” Thus, whether the subpoenas are, as the various nonprofits involved in this matter argue, unduly burdensome, and ultimately self-defeating because compliance will force the reallocation of limited employee and financial resources and disrupt client representation, is a matter not presently before the court.

      .The District Attorney’s office argued:
      [T]he State's position is that the problem faced by the Calcasieu Parish Public Defender's Office is the fact that it receives inadequate funds from the Louisiana Public Defender Board, due, in part, to that agen-cie's [sic] excessive funding to various entities and agencies in the ever-shrinking litigation area of pre and post capital defense. That money, instead, should be put where the majority of cases are. And so it's the State Board that's manufactured — according to the State’s theory, the State Board has manufactured the funding crisis.

      . La. Const, art. I, § 13 provides, in relevant part: “The legislature shall provide for a uniform system for securing and compensating qualified counsel for indigents."

      . In fact, the legislatively declared mission of the Louisiana Public Defender Act is to ensure "that the right to counsel is delivered by qualified and competent counsel in a manner that is fair and consistent throughout the

        state." La. R.S. 15:142(B)(4) (emphasis added).

      . This appears to be exactly the type of result the legislature attempted to prevent when it included in La. R.S. 15:142(B)(2) an express declaration that one purpose of the Act was to ensure "that the public defender system is free from undue political and judicial interference.”


text:
    USA DISASTER RECOVERY, INC. v. ST. TAMMANY PARISH GOVERNMENT, et al.
    No. 2013-C-0656.
    Supreme Court of Louisiana.
    May 31, 2013.
    Rehearing Denied Aug. 30, 2013.
   PER CURIAM.

1 |We grant USA Disaster Recovery, Inc.’s (“USA”) writ application to reverse the judgment of the court of appeal and reinstate the district court’s ruling. Under the direction of the sheriffs office, USA performed emergency road cleaning work for St. Tammany Parish (the “Parish”) that was essential to search and rescue efforts in the immediate aftermath of the chaos following Hurricane Katrina for which USA was not compensated. After a trial on the merits, the district court found that the Parish was liable to USA for unjust enrichment damages in the amount of $37,500 plus legal interest — an amount less than half the invoiced total. In so ruling, the district court evaluated the five elements of a claim for unjust enrichment under La. C.C. art. 2298 and made factual findings that each of the elements were met. In reversing the district court’s judgment, the court of appeal found that the Parish was |2not liable to USA for unjust enrichment, making factual findings of its own that three of the five elements for an unjust enrichment claim had not been met. USA Disaster Recovery, Inc. v. St. Tammany Parish Government and St. Tammany Parish Sheriff, 12-0679 (La. App. 1 Cir. 12/21/12), 111 So.3d 425. In so ruling, the court of appeal did not adhere to the manifest error standard of review, and instead substituted its own judgment for that of the factfinder. Because we find that the district court’s ruling that the Parish was liable to USA in the amount of $37,500 plus legal interest was not manifestly erroneous, we reverse the judgment of the court of appeal and reinstate the district court’s judgment.

DECREE

For the forgoing reasons, it is ordered that the judgment of the court of appeal is reversed and the district court judgment is reinstated.

REVERSED; DISTRICT COURT JUDGMENT REINSTATED.

GUIDRY, Justice, dissents.

      . The five elements of a claim for unjust enrichment under La. C.C. art. 2298 are (1) an enrichment; (2) an impoverishment; (3) a connection between the enrichment and the impoverishment; (4) an absence of cause or justification for the enrichment and impoverishment; and (5) no other remedy at law. Edwards v. Conforto, 636 So.2d 901 (La. 1993); Minyard v. Curtis Products, Inc., 251 La. 624, 205 So.2d 422 (1967).

       Justice Jefferson D. Hughes III, recused.


author: HUGHES, J.,

text:
    STATE of Louisiana v. Kenneth BROWN.
    No. 2013-KK-2830.
    Supreme Court of Louisiana.
    Feb. 28, 2014.
   HUGHES, J.,

concurring.

Iil concur with the denial of the writ, not because the defendant is engaged in a “fishing expedition,” but because the subpoena at issue is not properly to be used as a discovery device.

Far from being a fishing expedition, a dash cam -video may well be the best evidence of the defendant’s stop and arrest, and the state may wish to introduce it against the defendant at trial.

But La. C. Cr. P. art. 732 only refers to the production of things “at a hearing or trial.” As it appears that no hearing on a motion to suppress or trial date has been set, defendant’s request for a subpoena duces tecum is premature.


text:
    Denise EBANKS v. STATE of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 2014-CC-359.
    Supreme Court of Louisiana.
    April 11, 2014.
    HUGHES, J., concurs for the reasons assigned by Judge TOBIAS.
   HUGHES, J.,

concurring.

|J respectfully concur for the reasons assigned by Judge Tobias. A witness in a criminal case may elect to exercise his or her constitutional rights, but a related civil proceeding may not be indefinitely delayed.


author: GUIDRY, Justice. VICTORY, J.,

text:
    Patricia WATKINS v. EXXON MOBIL CORPORATION.
    No. 2013-CC-1545.
    Supreme Court of Louisiana.
    May 7, 2014.
    Rehearing Denied July 1, 2014.
    Victory, J., dissented and assigned reasons.

      Kean Miller, LLP, Michael R. Phillips, Louis Matthew Grossman, Brittany Buckley Salup, Richard Stuart Pabst, Julie Par-elman Silbert, Adams and Reese, LLP, Glen Marion Pilie, Martin A. Stern, Raymond Peter Ward, Valeria Munsterman Sercovich, Johnson Gray McNamara, LLC, Mary Susan Johnson, Jill Thompson Losch, Chadwick James Moliere, Sarah Suzanne Mahoney, Nicole Mart Gray, Johnson, Johnson, Barrios & Yacoubian, Bettye A. Barrios Esq., Gavin Hodges Guillot Esq., New Orleans, LA, Rodney & Etter, LLC, Roy J. Rodney, Jr., for Applicant.
    Falcon Law Firm, Timothy John Falcon, Jeremiah Alexander Mark Sprague, Mar-rero, LA, Frank M Buck Jr, PLC, Frank Marion Buck, Jr., for Respondent.
   GUIDRY, Justice.

liWe granted the writ application to answer the question of whether the one-year time period for instituting a survival action pursuant to La. Civ.Code art. 2315.1, particularly as amended by Acts 1986, No. 211, § 2, is prescriptive, within the meaning of La. Civ.Code art. 3447, or is per-emptive, within the meaning of La. Civ. Code art. 3458. The trial court granted the defendants’ peremptory exceptions of peremption and no cause of action. The trial court found the plaintiffs survival action was extinguished because it was perempted, having been filed more than one year from the date of the decedent’s death. The court of appeal reversed, finding the one-year period for bringing the survival action is a period of liberative prescription rather than a period of per-emption. The court of appeal then remanded the case to the trial court for further proceedings. For the reasons set forth below, we affirm the court of appeal’s decision.

FACTS AND PROCEDURAL HISTORY

James Hicks, Sr., the father of the plaintiff, Patricia Watkins, died on December 27, 1986. On June 17, 2011, the plaintiff filed a survival action pursuant to La. Civ.Code. art. 2315.1 and a wrongful death action pursuant to La. Civ.Code art. 2315.2 against numerous defendants, including various oil | ^companies and a pipe-cleaning contractor. The plaintiff alleged that her father was exposed to naturally occurring radioactive material (more commonly referred to as “NORM”) at the facility where the contractor cleaned pipe used by the oil company defendants. At this facility, the plaintiff alleged, her father was exposed to dust containing radioactive material, which resulted in injury to him and, ultimately, his death. The plaintiff claimed that, by operation of contra non valentem, she had neither constructive nor actual notice of her causes of action until June 22, 2010, and thus her petition for damages was timely filed within one-year.

The defendant oil companies filed various exceptions, including the peremptory exceptions of prescription, peremption, and no right of action. La.Code Civ. Proc. art. 927A. Among other exceptions, they alleged the one-year time period for instituting a survival action set forth in La. Civ. Code art. 2815.1(A) is one of peremption, which is not susceptible to renunciation, interruption, or suspension, see La. Civ. Code art. 3461, nor is it susceptible to the doctrine of contra non valentem. See State Through Div. of Admin, v. McInnis Bros. Const., 97-0742 (La.10/21/97), 701 So.2d 937. Because the suit was filed more than one year from the date of the decedent’s death, the defendants asserted the suit was perempted and should be dismissed. The trial court sustained the exceptions of peremption and no cause of action.

|sThe court of appeal reversed and remanded. Watkins v. Exxon Mobil Corporation, 12-0477 (LaApp. 4 Cir. 5/29/13), 117 So.3d 548. The court of appeal found the one-year period for bringing a survival claim is prescriptive, not peremptive, relying in large part on the fact that the 1986 amendment clearly and unambiguously describes the time period as prescriptive: “We find the explicit language in Article 2315.1(C), describing the delay as a ‘prescriptive period,’ is the ‘best evidence’ that the legislature intends what it says in the codal article itself.” Id., p. 7, 117 So.3d at 553. The court of appeal, also distinguished its prior jurisprudence, namely Succession of Roux v. Guidry, 182 So.2d 109 (LaApp. 4 Cir.1966), which had held that the time period set forth in former Art. 2315 was peremptive, on the basis that that decision was restricted to a wrongful death action, and was later overruled by Guidry v. Theriot, 377 So.2d- 319 (La.1979), which held that the time period for bringing a wrongful death action was the one-year prescriptive period for instituting a delictual action under La. Civ. Code art. 3462, rather than the one-year period for instituting a survival action set forth in Art. 2315. The court of appeal further distinguished conflicting decisions of the appellate courts on the basis that those courts either relied on what it characterized as dicta in Guidry v. Theriot, were not confronted with the precise issue of the nature of the time limitation for a survival action, relied on decisions that preceded the legislative amendment of Art. 2315.1 in 1986, or failed to acknowledge the language in the 1986 amendment. Id., pp. 8-12, 117 So.3d at 554-56 (discussing Barber v. Employers Ins. Co. of Wausau, 11-0357 (LaApp. 1 Cir. 6/28/13), 97 So.3d 454; Adams v. Asbestos Corp., 41,028 (La. App. 2 Cir. 5/17/06), 930 So.2d 342; and Courtland v. Century Indem. Co., 00-333 (LaApp. 5 Cir. 10/18/00), 772 So.2d 797). The concurring judge below found the legislature had changed the |4law in 1986 when it amended the statute to characterize the time period as prescriptive.

We granted the defendants’ writ application to determine the correctness of the lower court’s decision. Watkins v. Exxon Mobil Corporation, 13-1545 (La.11/08/13), 129 So.3d 522.

LAW and DISCUSSION

We commence with a brief review of the survival and wrongful death actions in Louisiana. At common law, there were two well established rules: personal tort actions abated upon the death of the person of the victim and the death of a person did not create a cause of action on behalf of the living person who was injured by reason of the death. See H. Alston Johnson, III, “Death on the Calíais Coach: The Mystery of Louisiana Wrongful Death and Survival Actions,” 37 La. L.Rev. 1 (1976). Eventually, the former rule was changed by statute to permit survival of the victim’s action for damages, despite the death of the victim. Id., p. 5 (citing Wex Malone, “The Genesis of Wrongful Death,” 17 Stan. L.Rev. 1043 (1965)). The latter rule was changed in 1846 in England to grant a remedy for wrongful death in favor of certain named beneficiaries. Id. These statutorily-created rights, however, were considered derogations from the common law, and English and American courts were constrained to apply them strictly.

In Louisiana, however, the essence of our civilian tradition is explicitly set forth in Article 1 of the Civil Code: “The sources of law are legislation and custom.” The source of our tort law comes from Article 1382 of the Code Napoleon (1804), and was first set forth in Article 2294 of the Louisiana Civil Code of 1825: “Every act whatever of man, that causes damage to another, obliges him, by whose fault it happened, to repair it.” Although French courts had found | ¡¡authority for the wrongful death action in this language, Louisiana courts, largely relying on common law sources, discerned no such authority for either the survival action or the wrongful death action. See Levy v. State Through Charity Hosp. of La., 253 La. 73, 216 So.2d 818 (1968) (citing Hubgh v. New Orleans & Carrollton R.R. Co., 6 La.Ann. 495 (1851); Hermann v. New Orleans & Carrollton R.R. Co., 11 La.Ann. 5 (1856)); see also Comment, “Wrongful Death: Prescription? Peremption? Confusion!,” 39 La. L.Rev. 1239, 124CM1. The legislature, by Act 223 of 1855, created a so-called survival action and set forth the time period for bringing the action, adding to the language of Article 2294: “... the right of this action shall survive in cases of death in favor of the minor children and widow of the deceased or either of them, and in default of these in favor of the surviving father and mother or either of them, for the space of one year from the death.” See Levy, 253 La. at 76, 216 So.2d at 819.

This survival action was continued in the Revised Civil Code of 1870, Article 2315 of which provided as follows:

Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it; the right of this action shall survive in case of death in favor of the minor children and widow of the deceased or either of them, and in default of these in favor of the surviving father and mother or either of them, for the space of one year from the death.

The wrongful death action, allowing recovery for damages occasioned certain beneficiaries by the death of the deceased resulting from the fault of another, was added by amendment of Article 2315 by Act 71 in 1884, see Levy, 253 La. at 77, 216 So.2d at 819. Article 2315 then provided:

Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it; the right of this action shall survive in case of death in favor of the minor children or widow of the deceased, or either of them, and in default of these, in favor of the surviving father and mother, or either of them, for the space of one year from the death. The survivors above mentioned | fimay also recover the damages sustained by them by the death of the parent or child, or husband or wife, as the case may be.

Apparently in response to several judicial decisions, the legislature amended and reenacted Article 2315 by La. Acts 1960, No. 30, § 1, in conjunction with the adoption of the Code of Civil Procedure, to specify that the right to recover damages to property is inherited by an obligee’s heirs upon his death and, notably, that the survival and wrongful death actions, also deemed property rights, are inherited by the survivor’s heirs upon the survivor’s death, whether or not the survivor had instituted suit prior to his death. See Guidry v. Theriot, 377 So.2d at 322-25; see also Johnson, supra, pp. 21-23; see also, e.g., Dumas v. U.S. Fidelity & Guaranty Co., 241 La. 1096, 134 So.2d 45 (1961) (holding the survival action abated at the death of the beneficiary). The article then provided in pertinent part:

Article 2315. Liability for acts causing damage; survival action
Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.
The right to recover damages to property caused by an offense or quasi offense is a property right which, on the death of the obligee, is inherited by his legal, instituted, or irregular heirs, subject to the community rights of the surviving spouse.
The right to recover all other damages caused by an offense or quasi offense, if the injured person dies, shall survive for a period of one year from the death of the deceased in favor of (1) the surviving spouse and child or children of the deceased, or either such spouse or such child or children; (2) the surviving father and mother of the deceased, or either of them, if he left no spouse or child surviving; and (3) the surviving brothers and sisters of the deceased, or any of them, if he left no spouse, child, or parent surviving. The survivors in whose favor this right of action survives may also recover the damages which they sustained through the wrongful death of the deceased. A right to recover damages under the provisions of this paragraph is a property right which, on the death of the survivor in whose favor the right of action survived, is inherited by his legal, instituted, or irregular heirs, whether suit has been instituted thereon by the survivor or not.

|7In 1982, Article 2315 was amended by La. Acts 1982, No. 202, to add a paragraph specifying that recoverable damages could include loss of consortium, service and society, whether or not the injured person dies. See, e.g., Ferguson v. Burkett, 454 So.2d 413 (LaApp. 3rd Cir.1984). And in 1984, the legislature by Acts 1984, No. 397, § 1, amended the article to provide for recovery of expenses and monetary obligations incurred by the injured person.

Although it now appears well-settled that the survival action and the wrongful death action are separate and distinct causes of action, see Walls v. American Optical Corp., 98-0455 (La.9/8/99), 740 So.2d 1262, 1273, that was not always the case. In Guidry v. Theriot, the court recognized the confusing line of jurisprudence and attendant commentary in this regard and held that, although both actions arise from a common tort they are, nevertheless, separate and distinct because each arises at a different time. 377 So.2d at 321-22. The court explained:

The survival action comes into existence simultaneously with the commission of the tort and is transmitted to the beneficiaries upon the victim’s death. The wrongful death action does not arise until the victim dies. Each right addresses itself to the recovery of damages for totally different injuries and losses. The survival action permits recovery only of the damages suffered by the victim from the time of injury to the moment of death. The wrongful death action is intended to compensate the beneficiaries for compensable injuries suffered from the moment of death and thereafter.

377 So.2d at 322; see also Taylor v. Giddens, 618 So.2d 834, 840 (La.1993).

Apparently recognizing the jurisprudential distinction between the two actions, the legislature in 1986 amended Article 2315 to separate out the survival and wrongful death actions. La. Acts 1986, No. 211, severed the provisions dealing with the survival action and the wrongful death action from Article 2315 and transferred the language into new articles: La. Civ.Code arts. 2315.3 (the survival action) and 2315.4 (the wrongful death action). Article 2315.3 was [ ^redesignated as Article 2315.1 pursuant to the statutory revision authority of the Louisiana State Law Institute to provide as follows:

A. If a person who has been injured by an offense or quasi-offense dies, the right to recover all damages for injury to that person, his property or otherwise, caused by the offense or quasi-offense, shall survive for a period of one year from the death of the deceased in favor of:
(1) The surviving spouse and child or children of the deceased, or either the spouse or the child or children;
(2) The surviving father and mother of the deceased, or either of them if he left no spouse or child surviving; and
(3) The surviving brothers and sisters of the deceased, or any of them, if he left no spouse, child, or parent surviving.
B. In addition, the right to recover medical expenses and funeral expenses only, may be urged by the decedent’s succession representative in the absence of any class of beneficiary set out in the preceding Paragraph.
C. The right of action granted under this Article is heritable, but the inheritance of it neither interrupts nor prolongs the prescriptive period defined in this Article.
D. As used in this Article, the words “child”, “brother”, “sister”, “father”, and “mother” include child, brother, sister, father, mother by adoption, respectively. [Emphasis supplied.]

This is the version of the statute that was in effect at the time the plaintiffs father died. As did the lower court, we find this version is the law applicable to the plaintiffs right to assert the cause of action at issue in this case. Although we acknowledge our jurisprudence that the substantive law governing the decedent’s right to recover damages from an offense or quasi-offense under La. Civ.Code art. 2315, i.e., his cause of action in tort, is that which was in effect at the time of the alleged tort, e.g., Walls v. American Optical, supra, the survivor’s right to assert the claim for damages incurred by her father, which is in the nature of an inherited right, certainly does not come into existence until the moment of his death, |aassuming that either he has not asserted a claim for damages prior to his death or that his claim had not prescribed prior to his death.

Having determined the applicable version of Article 2315.1(C), we turn to whether the one-year time period for asserting that action is prescriptive or per-emptive. Because what the legislature says in the text of a statute is considered the best evidence of legislative intent, State v. Williams, 00-1725, p. 13 (La.11/28/01), 800 So.2d 790, 800, we begin with an examination of the language of La. Civ.Code. art. 2315.1(C). See also Borel v. Young, 07-0419 (La.11/27/07), 989 So.2d 42, 59. As noted above, prior to the 1986 enactment of the article, there was jurisprudence holding that the time limitation for bringing the survival action was a one-year peremptive period. However, as previously explained that issue was far from settled, and had never been definitively answered by this court. Accordingly, we must determine what the legislature intended when in Art. 2315.1(C) it described the time limitation for asserting a survival cause of action set forth in Art. 2815.1(A) as “prescriptive.”

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. La. Civ.Code art. 9; Pumphrey v. City of New Orleans, 05-979, p. 10 (La.4/4/06), 925 So.2d 1202, 1209. Moreover, the words of a law must be given their generally prevailing meaning. La. Civ.Code art. 11; Pumphrey, 05-979 at p. 11, 925 So.2d at 1209-10. In determining the meaning of Article 2815.1(C), we look to the applicable rules of statutory construction, which were recently set out by this court as follows:

The fundamental question in all cases of statutory interpretation is legislative intent. SWAT 21 Shreveport Bossier, Inc. v. Bond, 2000-1695,10 p. 11 (La.6/29/01), 808 So.2d 294, 302; Succession of Boyter, 99-0761, p. 9 (La.1/7/00), 756 So.2d 1122, 1128. The rules of statutory construction are designed to ascertain and enforce the intent of the legislature. Id.; Stogner v. Stogner, 98-3044, p. 5 (La.7/7/99), 739 So.2d 762, 766.
The meaning and intent of a law is determined by considering the law in its entirety and all other laws on the same subject matter and by placing a construction on the law that is consistent with the express terms of the law and with the obvious intent of the legislature in enacting the law. SWAT 24 Shreveport Bossier, 2000-1695 at p. 11, 808 So.2d at 302; Succession of Boyter, 99-0761 at p. 9, 756 So.2d at 1129. A statute must be applied and interpreted in a manner that is logical and consistent with the presumed purpose and intent of the legislature. Id.
Further, it is presumed that every word, sentence, or provision in a law was intended to serve some useful purpose, that some effect is to be given to each such provision, and that no unnecessary words or provisions were employed. Sultana Corporation v. Jewelers Mutual Insurance Company, 03-0360, p. 9 (La.12/3/03), 860 So.2d 1112, 1119. As a result, courts are bound, if possible, to give effect to all parts of a statute and to construe no sentence, clause or word as meaningless and surplusage if a construction giving force to, and preserving, all words can legitimately be found. St. Martin Parish Police Jury v. Iberville Parish Police Jury, 212 La. 886, 33 So.2d 671, 676 (1947); State v. Fontenot, 112 La. 628, 36 So. 630, 634 (1904). Finally, it is presumed that the legislature acts with full knowledge of well-[settled] principles of statutory construction. Sultana Corporation, 03-0360 at p. 9, 860 So.2d at 1119.

Colvin v. Louisiana Patient’s Compensation Fund Oversight Bd., 06-1104 pp. 6-7 (La.1/17/07), 947 So.2d 15,19-20.

In addition to the above judicial principles, which are guides to determine the intent of the legislature, the legislature has enacted rules for the construction of statutes in the provisions of the revised statutes. The following are pertinent to this case. La.Rev.Stat. 1:3 provides:

Words and phrases shall be read with their context and shall be construed according to the common and approved usage of the language. Technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning.

|nApplying those precepts and guidelines to the instant case, we must conclude the legislature intended to provide that the time limitation for asserting the survival action is a one year period of liberative prescription. There can be little doubt that the legislature is well aware of the distinction between a period of libera-tive prescription and a period of peremption. See, e.g., La.Rev.Stat. 9:5604(B), governing actions for professional accounting liability: “The one-year and three-year periods of limitation provided in Subsection A of this Section are peremptive periods within the meaning of Civil Code Article 3458 and, in accordance with Civil Code Article 3461, may not be renounced, interrupted, or suspended.” Certainly the legislature could have deemed the time period one of peremption had it desired to do so. See Borel v. Young, supra. The legislature must have intended the time period to be one of liberative prescription, given that the term “prescriptive period” has a well-settled meaning in our law and jurisprudence. This court has recognized there are policy considerations in favor of strictly limiting the time period for the assertion of a survival action. See Guidry v. Theriot, 377 So.2d at 326 (because the beneficiary is in effect the recipient of a bonus year to bring the victim’s action, it is reasonable that the legislature would be concerned about the interval during which a potential defendant might be vulnerable to a survival action and therefore foreclosed the issue by providing an express time limitation). However, the policy considerations weigh just as equally in favor of applying the legislature’s language describing the time limitation as one of prescription, given that the decedent’s actual tort claim, as well as the survivor’s wrongful death claim, are both governed by one-year periods of liberative prescription. In the context of the time limitations for those causes of Inactions, we do not find the legislature’s designation of the time limitation as prescriptive leading to absurd results.

CONCLUSION

For the reasons set forth above, we affirm the judgment of the court of appeal holding that the one-year time limitation for asserting the survival action under La. Civ.Code art. 2315.1(A) is a period of liberative prescription rather than a period of peremption. See La. Civ.Code art. 2315.1(C). The case is remanded to the trial court for further proceedings.

AFFIRMED; CASE REMANDED TO THE DISTRICT COURT.

VICTORY, Justice, dissents and assigns reasons.

VICTORY, J.,

dissenting.

hi dissent from the majority’s holding that the one-year period for bringing a survival action in La. R.S. 2315.1 is prescriptive rather than peremptive. In my view, the legislature did not intend to change the law in 1986 when it amended La. R.S. 2315 to separate survival and wrongful death actions by enacting La. R.S. 2315.1 (survival actions) and La. R.S. 2315.2 (wrongful death actions).

Prior to 1986, the one-year period applicable to survival actions under La-. C.C. art. 2315 was one of peremption, not prescription. In Guidry v. Theriot, 377 So.2d 319 (La.1979), the Court went to great lengths to describe the difference between survival actions and wrongful death actions and to explain its position that while the one-year period applicable to survival actions under La. C.C. art. 2315 (“the right to recover all other damages ... if the injured person dies, ... shall survive for a period of one year from the death of the deceased ... ”) was peremptive, a wrongful death action could be brought under the general tort law prescriptive period of La. C.C. art. 3536. The Court explained:

The survival action is transmitted by the victim to the beneficiary who has one year from the date of the victim’s death to bring the survival action if the victim died within a year of injury and without having brought suit. In such instances the beneficiary is in effect the recipient to a time bonus of more than one year in which to institute the victim’s faction. We deem it reasonable that the legislature would be concerned about the interval during which a potential defendant might be vulnerable to a survival action and therefore foreclosed the issue by providing an express time limitation.
These same considerations are not necessarily applicable to the totally separate and distinct wrongful death action which is a tort action that arises upon the death of the victim. It is not inherited, neither is it transmitted. From its inception it arises and exists only in favor of the beneficiary. Because Article 2315, does not provide a time limitation for the wrongful death action, we can conclude that it intended the general tort law of La. C.C. article 3526, which provides a prescriptive period of one year, applies to the action for wrongful death.

377 So.2d at 326.

With presumed knowledge of the law governing survival claims, in 1986 the Legislature enacted La. C.C. art. 2315.1 and 2315.2 to set forth the law regarding survival actions and wrongful death actions into two separate codal articles. Pursuant to La. C.C. art. 2315.1, “[i]f a person who has been injured by an offense or quasi offense dies, the right to recover all damages for injury to that person ... shall survive for a period of one year from the death of the deceased ...” That is precisely the same language used in La. C.C. art. 2315 prior to 1986 that was held to be peremptive. When the legislature revises existing legislation but retains the language of the original law, our rules of

statutory construction demand that we recognize this as legislative intent to continue and perpetuate the existing law. Billiot v. B.P. Oil Company, 93-1118 (La.9/29/94), 645 So.2d 604, 610; State v. Mathe, 219 La. 661, 53 So.2d 802, 805 (1951). The majority fails to recognize this point, instead concluding that the inclusion of the word “prescriptive” in paragraph (C) repeals, by implication, the per-emptive period established by paragraph (A). However, the terms “prescriptive” and “peremptive” are not mutually exclusive and the use of the term “prescriptive” or “prescribes” in a statute does not necessitate a finding that the statute is prescriptive. “Prescription can be characterized as a species of prescription, indeed, and has been referred to as a form of prescription.” Dauterive Contractors, Inc. v. Landry and Watkins, 01-1112 (La.App. 3 Cir. 3/13/02), 811 So.2d 1242 (cites omitted); see also Bunge Corp. v. GATX Corp., 557 So.2d 1376, 1379 (La.1990) (“peremption is prescription which is not subject to interruption or suspension”). While the use of the word “peremptive” in a statute indicates the legislative intent that the statute is peremptive, see e.g., Reeder v. North, 97-239 (La.10/21/97), 701 So.2d 1291, 1297, the corollary is not the case as courts routinely find statutes containing the words “prescriptive” or “prescribe” to be peremptive. See e.g., Succession of Pizzillo, 223 La. 328, 65 So.2d 783 (1953) (finding statute regarding adoption annulments to be peremptive even though it described the claim as one which would be “prescribed” after a certain lapse of time); Checkpoint Fluidic Systems Intern., Ltd. v. Guccione, 888 F.Supp.2d 780, 790 (E.D.La.2012), Tubus de Acero de Mexico, S.A v. American Intern. Inv. Corp., 292 F.3d 471, 482 (5th Cir.2002), Glod v. Baker, 04-1483 (La.App. 3 Cir. 3/23/05), 899 So.2d 642, 646 (all holding that the time period in La. R.S. 51: 1409(E) is peremptive rather than prescriptive even though it uses the phrase “shall be prescribed”); State through La. Div. of Admin, v. McInnis Bros. Constr., 97-0742 (La.10/21/97), 701 So.2d 937, 948 (holding that La. R.S. 38:2189, which states the action “shall prescribe” is a peremptive time period).

We have historically found any statute which both creates or grants a right of action and provides for the time period in which to bring that action to be peremptive, see Mclnnis, supra at 941, and this one does. However, this is not the sole test, and courts should also focus on the language of the statute, the purpose behind the statute, and the public policy mitigating for or against suspension, interruption, or renunciation of the time limitation in order to determine whether the statute is presci’iptive of peremptive. Id.; State v. Bd. of Ethics v. Ourso, 02-1978 (La.4/9/03), 842 So.2d 346, 349. Instead of these things, the majority erroneously focuses solely |4on the word “prescriptive” in a separate paragraph of the statute.

In 1960, Article 2315 was amended to recognize the survival action as an exception to the traditional rule that the right of action for damages for personal injuries was a purely personal right that did not survive in case of death. See Guidry, supra at 323. The creation of a one-year peremptive period for survival actions in 2315 allowed the beneficiaries the right to file the claim, but addressed the problems of proof of decedent’s damages and his knowledge of such, which are essential to a survival claim because it provides for damages sustained by the decedent. These problems are evident in this case where the decedent passed away 27 years ago. Obviously, medical records and witnesses evidencing his injuries will be difficult if not impossible to find, which will greatly prejudice the defendants who must defend this claim.

In my view, the one-year time period for survival actions under La. C.C. art. 2315.1 is a peremptive period just as it was under La. C.C. art. 2315. Public policy mitigates against suspension or interruption of that period. Further, there is no indication the legislature intended to change the law. For all the above reasons, I respectfully dissent.

      . The oil company defendants include Exxon Mobil Corporation, ExxonMobil Oil Corporation, Humble Inc., Chevron USA, Inc., Shell Oil Company, Marathon Oil Company, OXY USA, Inc., individually and as successor to Placid Oil Company, and BP America Production Company, individually and as successor to Amoco Production Company. The pipe cleaning contractor was Alpha Technical Services, Inc.

      . Contra non valentem agere nulla currit praescriptio is the judicially-recognized doctrine whereby the running of prescription is suspended under certain conditions. See, e.g., Carter v. Haygood, 04-0646 (La. 1/19/05), 892 So.2d 1261.