author: SANDRA CABRINA JENKINS, Judge.

text:
    VIEUX CARRE PROPERTY OWNERS, et al. v. CITY OF NEW ORLEANS, Board of Zoning Adjustments.
    No. 2014-CA-0825.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 15, 2015.

      Stuart H. Smith, Smith Stag, L.L.C., Barry J. Cooper, Jr., Cooper Law Firm, L.L.C., Michael L. Martin, New Orleans, LA, for Plaintiffs/Appellants.
    Christy C. Harowski, Chief Deputy City Attorney, Sharonda R. Williams, City Attorney, Justin B. Schmidt, Adams And Reese, LLP, Gino J. Rendeiro, Kavanagh & Rendeiro, New Orleans, LA, for Defendants/Appellees.
    (Court composed of Judge ROLAND L. BELSOME, Judge ROSEMARY LEDET, Judge SANDRA CABRINA JENKINS).
   SANDRA CABRINA JENKINS, Judge.

|! This is a zoning dispute over a live entertainment permit issued to Antoine’s Restaurant, L.L.C. (“Antoine’s”) by the Department of Safety and Permits (the “Department”). Antoine’s submitted an application for a live entertainment permit to the Department along with fourteen affidavits attesting to the nonconforming use of live entertainment at Antoine’s. Although it is undisputed that Antoine’s is situated within a zoning district in which live entertainment is not a permitted use under the current Comprehensive Zoning Ordinance (“CZO”), the Director of the Department approved the permit for live entertainment based on a determination that Antoine’s had established by sufficient evidence the existence of a legal nonconforming use.

The Vieux Carre Property Owners, Residents & Associates, Inc., French Quarter Citizens, Inc., and Carol Allen (collectively the “Plaintiffs”), filed an appeal with the Board of Zoning Adjustments (“BZA”) seeking to overturn the determination that Antoine’s sufficiently established the existence of a legal ^nonconforming use in accordance with the requirements of the CZO. The BZA denied Plaintiffs’ appeal and upheld the decision of the Department. Plaintiffs then sought judicial review of the BZA decision in the district court, which found that the BZA’s decision was not arbitrary, capricious, or manifestly erroneous and affirmed the BZA’s decision. Plaintiffs’ timely appeal to this Court followed.

Upon our review of the record in light of the applicable law and standard of review, we affirm the district court’s judgment and uphold the BZA’s decision.

FACTUAL AND PROCEDURAL BACKGROUND

Antoine’s is the oldest continuously operating restaurant in New Orleans. Antoine’s opened its original restaurant in 1840, moved to its current location at 713 St. Louis Street in 1868, and continued to expand its business through the acquisition of several adjoining lots of record (719, 723, and 725 St. Louis Street, and 513 and 519 Royal Street). Since 1940, Antoine’s has operated its restaurant out of a complex of buddings and several distinct dining areas that are all connected to one another through an intricate set of passageways. Similar to other businesses in the French Quarter that operate out of adjoining buildings upon several lots of record, Antoine’s operates as a single business entity under one occupational license issued for the entirety of its complex.

| sIn 2008, Antoine’s began renovating one of its distinct dining areas, the Hermes Room, to re-designate it the Hermes Bar. Antoine’s applied for and received building permits for the renovations from the Department, and, in December, 2010, Antoine’s received the Certificate of Occupancy and Completion for the “renovation (non-structural)” at 713 St. Louis Street. The conversion into the Hermes Bar included the installation of a full bar and an exterior entrance on St. Louis Street, next to the main entrance of Antoine’s; it also maintains access to and from the restaurant complex by three interior passageways. Rather than the traditional Antoine’s menu formerly served in the Hermes Room, the Hermes Bar offers a more casual Antoine’s fare, cocktails, and live entertainment.

On April 11, 2011, Antoine’s received a letter from the Dept, of Safety & Permits stating that live entertainment was not a permitted use at “713 St. Louis Street (Hermes Bar)” because the property is zoned VCC-2, Vieux Carre Commercial, under the Comprehensive Zoning Ordinance (CZO). Upon receipt of the letter, Antoine’s filed an application for a Mayoralty Permit to be issued to Antoine’s for its live entertainment. Along with the application, Antoine’s submitted fourteen (14) affidavits from staff members and owners of Antoine’s attesting to each person’s knowledge that Antoine’s has offered live entertainment as part of its operation on a continuous, uninterrupted basis, since as far back as L1955. The application and affidavits were submitted to the Department and reviewed by the Director, Paul May, who approved the issuance of the Mayoralty Permit for live entertainment to Antoine’s on April 15, 2011.

In granting the application for the live entertainment permit, the Director noted that the application was “approved pursuant to affidavits of non-conforming use” and such nonconforming status would be “re-examined if contrary documentation is submitted to the City.”

On May 31, 2011, Plaintiffs filed an appeal of the Director’s decision with the BZA seeking the rescission of the live entertainment permit to Antoine’s. In their appeal, Plaintiffs argued that the live entertainment permit issued “at a cocktail lounge at one property (713 St. Louis)” was being used “in an attempt to legitimize an illegal use at another parcel (725 St. Louis);” that Antoine’s failed to establish a nonconforming use because the submitted affidavits failed to establish the “4-hour, 5-day use required by the CZO;” and “the operation of the cocktail lounge itself is clearly an illegal use for the property where the live entertainment license was sought.”

On December 12, 2011, the BZA held a public hearing on Plaintiffs’ appeal. After considering the facts, arguments for and against the appeal, and the pertinent CZO regulations, the BZA voted on a motion to deny the appeal, “based on the fact that the [Plaintiffs] did not meet the burden of proof’ to overturn the decision of the Director of Safety and Permits. The BZA voted unanimously to deny | BPlaintiffs’ appeal and uphold the decision of the Director of Safety and Permits to issue the permit to Antoine’s.

On January 11, 2012, Plaintiffs filed a petition for writ of certiorari in the district court seeking judicial review of the BZA’s decision, in accordance with La. R.S. 33:4727(E). As part of its consideration of the matter on certiorari review, the district court allowed Antoine’s to join the matter as a defendant-in-intervention and allowed the introduction of the deposition of Paul May as additional evidence. After a hearing on February 13, 2014, the district court took the matter under advisement and rendered a judgment affirming the BZA’s decision on April 4, 2014. In its reasons for judgment, the district court found the BZA’s decision denying Plaintiffs’ appeal and upholding the decision of the Director of Safety and Permits was not arbitrary, capricious, or an abuse of discretion; or manifestly erroneous in light of the substantial evidence in the record.

Plaintiffs now appeal the district court’s judgment affirming the BZA’s decision.

STANDARD OF REVIEW

Zoning laws and decisions fall within the legislative function of the state and local municipalities. Toups v. City of Shreveport, 10-1559, pp. 3-4 (La.3/15/11), 60 So.3d 1215, 1217. Consequently, the courts afford a presumption of validity to the decisions of zoning boards. Cordes v. Bd. of Zoning Adjustments, 09-0976, p. |fi6 (La.App. 4 Cir. 1/20/10), 31 So.3d 504, 508; Flex Enterprises, Inc. v. City of New Orleans, 00-0815, p. 6 (La.App. 4 Cir. 2/14/01), 780 So.2d 1145, 1149. However, that presumption is rebuttable; and a party aggrieved by a decision of the BZA is entitled to judicial review through a writ of certiorari. Cordes, 09-0976, p. 6, 31 So.3d at 508; see also La. R.S. 33:4727(E); La. R.S. 49:964. The purpose of certiorari review of the BZA decision is to determine whether the evidence establishes a legal and substantial basis for the decision or whether the BZA has exceeded its jurisdiction and acted in an arbitrary and capricious manner. Esplanade Ridge Civic Ass’n v. City of New Orleans, 13-1062, p. 3 (La.App. 4 Cir. 2/12/14), 136 So.3d 166, 169; Elysian Fields, Inc. v. St. Martini 600 So.2d 69, 72 (La.App. 4th Cir.1992). “The test of whether a zoning board’s action is arbitrary and capricious is whether the action is reasonable under the circumstances.” Esplanade Ridge, 13-1062, p. 4, 136 So.3d at 169 quoting King v. Caddo Parish Com’n, 97-1873, p. 14 (La.10/20/98), 719 So.2d 410, 418. “[W]hen there is room for two opinions, an action is not arbitrary or capricious when exercised honestly and upon due consideration, even though it may be believed an erroneous conclusion has been reached.” Toups, 10-1559, pp. 3-4, 60 So.3d at 1217; see also Palm-Air Civic Ass’n v. Syncor Int’l Corp., 97-1485, p. 7 (La.App. 4 Cir. 3/4/98), 709 So.2d 258, 262 (“[W]henever the propriety of a zoning decision is debatable, it will be upheld. Thus, doubts as to the reasonableness of the City’s action in issuing the permits at issue herein are to be resolved in favor of the defendant.”).

JjThe aggrieved party bears the burden of showing that the BZA decision is arbitrary, capricious, or manifestly erroneous in light of substantial evidence in the record. Esplanade Ridge, 13-1062, p. 8, 136 So.3d at 171; Cordes, 09-0976, pp. 67, 31 So.3d at 508-09. Absent this showing, the reviewing court may not substitute its own judgment for that of the BZA. Esplanade Ridge, 13-1062, p. 4, 136 So.3d at 169; King, 97-1873, pp. 14-15, 719 So.2d at 418; see also La. R.S. 49:964(G); Clark v. La. State Racing Com’n, 12-1049, pp. 10-11 (La.App. 4 Cir. 12/12/12), 104 So.3d 820, 827.

DISCUSSION

At issue in this appeal is whether the BZA rendered an arbitrary and capricious decision by upholding the determination by the Director of Safety and Permits that Antoine’s sufficiently established the existence of a legal nonconforming use.

The Director of Safety and Permits renders the initial decisions concerning the application and enforcement of the zoning ordinances and regulations within the CZO. Any party aggrieved by “any decision of the Director of Safety and Permits concerning application and interpretation of the provisions of the [CZO] ” may appeal to the BZA. CZO § 14.5.1; La. R.S. 33:4727(C)(2)(a). Appeals shall be heard by the BZA for a determination of whether the Director’s decision | ^complies with the requirements and intent of the CZO. CZO § 14.4.1; La. R.S. 33:4727(C)(3)(a).

In its administration of the CZO, the BZA “may determine and vary” the application of zoning regulations “in harmony with their general purpose and intent.” La. R.S. 33:4727(A)(1). “In passing upon appeals, where there are practical difficulties” in “carrying out the strict letter of the ordinance,” the BZA shall have the power to “vary or modify the application” of any provisions of the CZO relating to the use of buildings, structures, or land “so that the spirit of the ordinance shall be observed, public safety and welfare secured, and substantial justice done.” La. R.S. 33:4727(C)(3)(c). The BZA may “reverse or affirm, wholly or partly, or may modify” the decision or determination appealed from and may make such decision “as ought to be made, and to that end shall have all the powers of the officer from whom the appeal is taken.” La. R.S. 33:4727(D)(1).

In this case, the BZA decision upheld the decision of the Director of Safety and Permits, to issue a live entertainment permit to Antoine’s “pursuant to affidavits of nonconforming use.” Plaintiffs contend, however, that the affidavits submitted by Antoine’s, which were relied upon by the Director of Safety and Permits, and accepted by the BZA and the district court, are insufficient evidence to establish a legal nonconforming use in accordance with the CZO. Plaintiffs further contend that the BZA and the district court failed to properly interpret the requirements of the CZO regarding nonconforming use; and, consequently, the BZA and the district court acted in an arbitrary, capricious manner, and manifestly | flerred by upholding the determination by the Director of Safety and Permits that Antoine’s had established the existence of a legal nonconforming use.

A nonconforming use is defined as “[a] use which lawfully existed prior to the enactment of a zoning ordinance, and which is maintained after the effective date of the ordinance although it does not comply with the use restrictions applicable to the area in which it is situated.” Redfearn v. Creppel, 455 So.2d 1356, 1358-59 (La. 1984). “The permitted continuance of a nonconforming use is designed to avoid the hardship, injustice, and doubtful constitutionality of compelling the immediate removal of objectionable buildings and uses already in the area.” Id.; see FQCPRQ v. Brandon Investments, L.L.C., 05-0793, pp. 1-2 (La.App. 4 Cir. 3/29/06), 930 So.2d 107, 109. However, nonconforming uses are inconsistent with the purpose of zoning ordinances to confine certain types of buildings and uses to certain areas; thus, decisions regarding nonconforming use should be viewed narrowly with all doubt resolved against continuation or expansion of the nonconformity. Cordes, 09-0976, p. 10, 31 So.3d at 511; Weisler v. Bd. of Zoning Adjustments, 98-3007 (La.App. 4 Cir. 11/17/99), 745 So.2d 1259, 1261; see CZO § 13.2.2.

A property owner who seeks to establish and retain a nonconforming use has the burden of producing evidence that the nonconforming use of the property has been continuous and consistent. “What constitutes sufficient usage to establish nonconforming status may vary with the facts of each ease,” but our jurisprudence holds that the nonconforming use must be continuous and not interrupted for a |inperiod in excess of six months. Weisler, 98-3007, 745 So.2d at 1263; see FQCPRQ, 05-0793, pp. 3-4, 930 So.2d at 110; Humphrey v. Robertson, 97-1742 (La.App. 4 Cir. 3/11/98), 709 So.2d 333, 338.

In addition, the CZO places the burden on the property owner to establish the existence and retention of a nonconforming use by clear and convincing evidence. CZO Article 13, § 13.2.1. “Such evidence shall include, but need not be necessarily restricted to, such documents, as rent receipts, affidavits, documentation of utility services, or other information as may be deemed necessary in a particular case.” CZO Article 13, § 13.7. At the time a permit or certificate of occupancy is filed, the property owner must produce acceptable evidence to the Director of Safety and Permits for an initial determination of the existence of the nonconforming use.

In this case, Antoine’s sought a permit for the existence of its nonconforming use of live entertainment and submitted fourteen affidavits from employees and members of the family owning Antoine’s. Each affidavit indicates the length of time the affiant has worked at and been “familiar with all facets of the operations of Antoine’s,” dating back to 1955; and each affiant attests that Antoine’s “has had live entertainment with no interruptions in excess of six months as part of the Antoine’s experience” during the entire period of the affiant’s tenure at Antoine’s. Antoine’s submitted these affidavits as evidence of the continuous, consistent use of live entertainment at the complex from 1955 to the present; and Inthe Director of Safety and Permits accepted the affidavits as sufficient evidence to establish the nonconforming use.

Plaintiffs argue, however, that the Director erred in accepting Antoine’s affidavits as sufficient evidence to establish nonconforming use. Plaintiffs contend that both our jurisprudence and the CZO require more specific information about the regular, continuous use of live entertainment. Plaintiffs first cite the case of Humphrey v. Robertson, 97-1742 (La.App. 4 Cir. 3/11/98), 709 So.2d 333, in support of their argument.

In Humphrey, as in this case, neighbors appealed a BZA decision upholding the issuance of a live entertainment permit to a local bar granted by the Department. The issue before the Court was “whether the evidence establishes continuous live entertainment in the establishment in order to ascertain whether Little People’s Place occupies the status of a nonconforming use.” Humphrey, 709 So.2d at 338. Upon review of all the evidence submitted in that case, the Court found the affidavits submitted by the owners only established that “the conduct of live entertainment at the property was sporadic and intermittent at best” and, thus, did not establish a nonconforming use for live entertainment. Id. at 338. Plaintiffs in this case argue that Antoine’s affidavits similarly fail to provide sufficient information about the regular, continuous use of live entertainment to establish nonconforming use.

In Humphrey, however, the Court reviewed the evidence “without the benefit of the Board of Zoning Adjustments or trial judge’s conclusions” on the 112substantive issue of whether the bar owner’s established a nonconforming use. Humphrey, 709 So.2d at 338. “[T]he basis of the decision of the Department of Safety and Permits to allow live entertainment was based on a prescription question and the decision of the trial judge was based on res judiciata.” Id. Under those circumstances, the Court reviewed the facts and evidence without deference to the BZA, which had rendered an erroneous decision based on prescription without consideration of whether the bar owner had produced sufficient evidence and testimony of the consistent, continuous use of live entertainment.

In the instant case, the BZA rendered its decision after a full hearing on the substantive issue of whether Antoine’s had established the legal nonconforming use of live entertainment with evidence attesting to such use. The BZA had the opportunity to review the evidence considered by the Director and take further evidence and testimony on this issue. The only evidence submitted, however, were Antoine’s affidavits attesting to the continuous nonconforming use. Both the Director and the BZA provided Plaintiffs the opportunity to submit evidence contrary to the affidavits submitted by Antoine’s. The Director’s approval | ^specifically noted that the nonconforming status could be reconsidered pursuant to contrary evidence being submitted to the City. Notably, in Humphrey, the evidence included affidavits and testimony clearly indicating that the live entertainment at the club had not been consistent or continuous and without interruption for more than six months. Whereas in this case, Plaintiffs did- not submit evidence contradicting the affidavits submitted by Antoine’s attesting to the continuous use of live entertainment.

Plaintiffs insist, however, that Antoine’s affidavits do not satisfy the property owner’s burden of establishing nonconforming use because the affidavits lack specificity regarding the frequency and duration of the nonconforming use. Plaintiffs contend that CZO requires a nonconforming use to be continuously operating for four hours a day, five days a week. CZO Article 13, § 13.6.1 provides,

The casual, intermittent, temporary, or illegal use of land or buildings shall not be sufficient to establish and maintain the existence of a nonconforming use. In order to provide for the continuation of a nonconforming use, it must be opened for business a minimum of four (4) hours per day, five (5) days per week. The hours of operation must be posted on the entrance to the use. Equipment or furnishings required by City ordinances for the specific type of activity must be available and the structure shall be maintained in accordance with applicable ordinances of the City. The existence of a nonconforming use on part of a lot or tract shall not be construed to establish a nonconforming use on the entire lot or tract,

| ^Plaintiffs first raised this argument of a threshold frequency and duration of nonconforming use at the BZA hearing. The BZA heard testimony from Ed Horan, the Zoning Administrator for the Department, who stated that CZO Article 13, § 13.6.1 is interpreted to mean “that the location must have that nonconforming use be operating [sic] for four hours a days, five days a week.” Mr. Horan did not state if specific evidence was required to be submitted to establish that frequency and duration, and he acknowledged that he was not familiar with the evidence submitted to establish the nonconforming use at that location. Mr. Horan stated that the Director, Paul May, reviewed and approved all permit applications; and in this case, the Director found that Antoine’s provided the evidence necessary to establish a nonconforming use.

Paul May did not testify at the BZA hearing, but Mr. May’s deposition testimony was admitted by the district court as additional evidence in its certiorari review of this matter. Mr. May testified that the four hours a day, five days a week (4/5) standard was not in the original 1970 Code of Zoning Ordinances, but was developed later to provide some standard to apply to businesses applying for permits. Mr. May interpreted the 4/5 rule in terms of the use of the property to operate a business. In regards to Antoine’s, Mr. May testified that the 4/5 rule was satisfied by the fact that Antoine’s operates as a business upon that property for four hours a day, five days a week, and the nonconforming use for live entertainment has been regular and continuous part of Antoine’s opera tions; but the h ¿nonconforming use itself does not need to continuously operate for four hours a day, five days a week.

Plaintiffs argue that Mr. May’s interpretation and application of the 4/5 rule is directly contradicted by this Court’s decision in Phillips’ Bar & Restaurant, Inc. v. City of New Orleans, 12-1396 (La.App. 4 Cir. 4/24/13), 116 So.3d 92. We disagree and find the Phillips’ decision inapplicable under the facts of this case.

At issue in Phillips’ was whether Phillips’ Bar had acquired a vested property right to use a separate, adjacent lot in connection with their existing legal nonconforming use at the original lot upon which the bar operated. Phillips Bar argued that the prescriptive period for the City to enforce zoning restrictions on its second lot had expired; and, therefore, it had acquired an expanded legal nonconforming use. The Court explained that “a legal non-conforming use can arise by virtue of the fact that a given use pre-existed the enactment of a current and otherwise applicable, zoning law. On the other hand, a legal non-conforming use can also arise by virtue of sustained governmental acquiescence.” Phillips’ Bar, 12-1396, p. 18, 116 So.2d at 104. Although Phillips Bar could not establish by the necessary evidence that a legal nonconforming use existed at the second, adjacent lot, the Court upheld the finding that a legal nonconforming use existed at the original location of Phillips Bar. As noted by this Court, the permitted continuation of nonconforming use is designed to protect those uses that were established prior to the enactment of more restrictive regulations. Phillips’ Bar, 12-1396, p. 13, 116 So.3d at 101, citing Redfearn, 455 So.2d at 1359.

hfiIn contrast to the cases cited by plaintiffs, the instant case does not involve the expansion or change of nonconforming use, and this case does not arise from an action by the City to enforce zoning regulations upon notice of a violation. In this case, plaintiffs seek to rescind the City’s recognition of the longstanding existence and continuation of a legal nonconforming use at Antoine’s. Plaintiffs, however, have failed to produce any evidence to contradict the evidence accepted by the City’s zoning authorities establishing the existence of a nonconforming use at Antoine’s.

Based upon our review of the record in light of the applicable CZO provisions, we cannot say that the BZA rendered an arbitrary, capricious or unreasonable decision in upholding the determination of the existence of a nonconforming use at Antoine’s. The evidence establishes that Antoine’s has been operating as a restaurant complex at its current location since prior to the original 1956 Code of Ordinances. The evidence further establishes that Antoine’s has offered live entertainment as a regular and continuous part of its operation of the restaurant complex since 1955, fifteen years prior to the adoption of the 1970 ordinance restricting live entertainment within the Vieux Carre zoning districts. On the basis of the evidence submitted, as required by the CZO, the Director made a determination that the existence of a nonconforming use had been sufficiently established. Under our jurisprudence and the applicable provisions of the CZO, we find no basis to conclude that either the Director’s initial determination, or the |1vBZA’s decision affirming that determination, was arbitrary, capricious, or manifestly erroneous.

CONCLUSION

For the foregoing reasons, we affirm the district court’s judgment and uphold the BZA’s decision.

AFFIRMED.

      .Antoine’s property consists of a complex of buildings on several adjoining lots of record (513 and 519 Royal Street and 713, 719, 723 and 725 St. Louis Street) situated within VCC-2, Vieux Carre Commercial district. See CZO Article 8, §§ 8.5.1-8.5.5.

      . Defendants in this appeal are the BZA and Antoine's, as defendant in intervention.

      . All lots comprising the current Antoine’s complex were acquired by 1940; and all lots have been used as part of the restaurant complex, with the exception of 513 Royal Street, That lot was originally used partially as a kitchen expansion and partially leased out for retail space. Following Hurricane Katrina, 513 Royal Street was converted into “Antoine’s Annex,” which now serves casual food fare from the Antoine’s kitchen.

      . Paul May, the former Director of the Department, testified that many businesses in the City of New Orleans, particularly in the French Quarter, operate upon more than one lot of record under one occupational license and are considered by the City as valid complexes for purposes of permits and licensing.

      . Antoine's also submitted renovation plans to the Vieux Carre Commission, which granted Antoine’s a permit, No. 080446, for certain renovations to 713-723 St. Louis St. on July 16, 2008.

      . The City of New Orleans Code of Ordinances Chapter 30, Article III provides the guidelines for the issuance of Mayoralty Permits, which are issued for certain activities such as live entertainment.

      . Mayoralty Permit No, 20240 was issued to Antoine’s Restaurant, L.L.C. to allow for "Orchestras In Businesses/No Admission Charged” at 713 St. Louis Street.

      . Upon review of a ruling by the BZA, the district court may take additional evidence if deemed necessary for the proper disposition of the matter. La, R.S. 33:4727(E)(4); Cordes v. Bd of Zoning Adjustments, 09-0976, p. 7 (La.App. 4 Cir. 1/20/10), 31 So.3d 504, 509.

      . The Director of Safety and Permits receives and reviews all applications for building permits and Certificates of Occupancy, determines whether applicants demonstrate compliance with the requirements of the CZO, issues all permits and certificates, and enforces continued compliance with the CZO. CZO§ 17.1-17.2.4; § 17.3.

      . La. R.S. 9:5625 provides prescriptive periods governing actions for the enforcement of zoning provisions. In Humphrey, the applicable prescriptive period provided that the City had two years from first notice of the violation in which to bring an action for enforcement. The Director of the Department had found that the City had not brought an action to enforce a known violation within the two year prescriptive period; based on prescription, the Director granted the live entertainment permit. The BZA affirmed the Director’s determination on that basis, On appeal, this Court determined that the Director erred in determining that the prescriptive period had expired. The Court determined that prescription was interrupted by the filing of a reconventional demand for in-junctive relief, alleging a violation of the zoning restrictions by the several bar owners, within the two year period. Consequently, the Director and the BZA erred in granting and upholding the permit on the basis that the zoning provisions could not be enforced, Humphrey, 709 So.2d at 336-338. Neither the Director nor the BZA considered the issue of whether the bar owners had sufficiently established a nonconforming use through evidence of consistent, continuous use.

      . The Court described the affidavits establishing that live entertainment had been provided on a sporadic and spontaneous basis from sometime in the 1960s until about 1992 when live entertainment was offered "as more of a regularly scheduled activity.” The opposing neighbors relied on affidavits and depositions testimony contesting the use of the club for live entertainment prior to 1991 or 1992.

      . See infra n. 8.


source: Caselaw Access Project

author: DANIEL L. DYSART, Judge. LOVE, J.,

license: Public Domain

text:
    Martha HOHENSEE v. Sean C. TURNER, Turner Design Collaborative, L.L.C., ABC Insurance Company, Raymond C. Bergeron, Jr., XYZ Insurance Company, Modern Classic Concepts, L.L.C. and American Safety Indemnity Company.
    No. 2014-CA-0796.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 22, 2015.

      Leonard M. Berins, Gerald Wasserman, Gerald Wasserman, LLC, Metairie, LA, for Plaintiff/Appellant.
    Edward F. Rudiger, Jr., Lambert J. Hassinger, Jr., Jason A. Camelford, Galloway, Johnson, Tompkins, Burr & Smith, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge TERRI F. LOVE, Judge PAUL A. BONIN, Judge DANIEL L. DYSART).
   DANIEL L. DYSART, Judge.

| jPlaintiff Martha Hohensee, appeals a partial summary judgment granted in favor of Raymond C. Bergeron, Jr., and Raymond C. Bergeron, Jr., Architects, L.L.C. The ruling dismissed Bergeron from the case in his individual capacity, and dismissed plaintiffs claim against his company insofar as its liability for any construction-related issues. Hohensee also appeals the trial court’s grant of a motion to strike her expert’s report from the record. For the reasons that follow, we affirm the judgment of the trial court.

BACKGROUND:

Martha Hohensee sought the services of Raymond Bergeron, an architect, to design plans for her new home. Bergeron informed Hohensee that he did not do residential designs, but referred her to Sean Turner, an architectural designer (but not an architect) and contractor. Hohensee met with Turner, and subsequently he, through his business, Turner Design Collaborative (“TDC”), designed plans for Ho-hensee’s new home. As Turner was not a licensed architect or civil engineer, he 12asked, with Hohensee’s knowledge, Ber-geron to stamp the design plans so that Hohensee could obtain a building permit from the City of New Orleans.

Before the permit was granted, the City sent Bergeron a letter indicating that a few minor changes had to be made to the plans before the City would issue the permit. Bergeron gave the letter to Turner, who made the changes. Thereafter, Ho-hensee obtained the permit and construction began.

In addition to the contract Hohensee signed with TDC, she entered into a contract with Modern Classic Concepts, L.L.C. (“MCC”). Sean Turner and Charles Sexton were members of that limited liability company. During construction, changes were made to the original design, particularly adding a second sub-floor and enclosing the crawl space beneath the house with brick. Both Turner and Bergeron testified that Bergeron was never consulted about these changes to the original plans. Post-construction inspections also revealed that the house was not constructed at the proper base elevation.

Hohensee filed suit against Sean Turner, individually; TDC; Bergeron, individually; MCC; and various insurers. She later amended her petition to add Raymond C. Bergeron, Jr.—Architects, LLC, and Charles Sexton.

Bergeron, individually, and Raymond C. Bergeron, Jr.—Architects, LLC (“RCB-Architects”), filed a motion for partial summary judgment arguing that |sthere is no legal basis to hold Bergeron individually liable for any alleged actions of his professional limited liability company, and that neither he nor his company are liable for any construction-related issues in this case. Specifically, he alleges that he is not Hable for any components of the house that were: 1) not present on the plans, but constructed, or, 2) not constructed according to the plans. The motion acknowledges that because Hohensee’s experts have identified “deficiencies” with the design, genuine issues of fact exist. However, movers argue that their motion is limited to liability for construction of the house, not design.

The trial court granted partial summary judgment in favor of Bergeron, individually, and to RCB—Architects for constructed-related claims only.

Additionally, Bergeron filed a Motion to Strike the deposition of Roger Bailey, an expert retained by Hohensee, which was attached to her memorandum in opposition to the motion for partial judgment. Ber-geron argued that the deposition testimony was hearsay; the trial court agreed and granted the motion to strike.

Hohensee appeals arguing that the trial court erred as genuine issues of material fact exist as to RCB—Architects’ involvement in the construction of the house and as to Bergeron’s individual liability. Further, she contends the tidal court erred in striking the report of her expert.

^DISCUSSION:

MOTION TO STRIKE

Hohensee argues that the trial court erred in striking the report of one of her expert’s, Roger Bailey, which was attached to her opposition to the motion impartial summary judgment. Bailey’s deposition was attached to defendants’ motion without the report. Hohensee claims that without the report, Bailey’s deposition testimony is distorted. Further, she argues that the report was certified and authenticated by Bailey in his deposition testimony and in an affidavit which was made a part of the trial court record prior to the summary judgment proceedings.

Defendants argue that the report is unauthenticated hearsay and is thus impermissible evidence for purposes of opposing a summary judgment.

First, we note that “evidentiary rulings by the trial court are reviewed under an abuse of discretion standard.” 727 Toulouse, L.L.C. v. Bistro at the Maison De Ville, L.L.C., 12-1014, p. 19 (La. App. 4 Cir. 8/21/13), 122 So.3d 1152, 1163. Second, generally, a report prepared by an expert is not admissible because it is hearsay. See Guzzardo v. Town of Greensburg, 563 So.2d 424, 426 (La.App. 1st Cir. 1990). Unless an attesting affidavit is attached, expert reports standing alone, are not admissible. See Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, pp. 18-19 (La.2/29/00), 755 So.2d 226, 237 (“Article 967 of the Louisiana Rules of | sCivil Procedure does not preclude from consideration expert opinion testimony in the form of an affidavit or deposition submitted in support of or opposition to a motion for summary judgment.”)(emphasis added.).

“[Unverified documents, such as letters or reports, annexed to motions for summary judgment are not self-proving and therefore will not be considered; ‘merely stapling them to a motion for summary judgment’ does not “magically” transform such documents into competent summary judgment evidence.” Williams v. Memorial Medical Center, 03-1806, p. 14 (La.App. 4 Cir. 3/17/04), 870 So.2d 1044, 1053, citing Schully v. Hughes, 00-2605, p. 5 (La.App. 4 Cir. 6/5/02), 820 So.2d 1219, 1222. Contrary to Hohensee’s assertion, attaching the report to her expert’s deposition does not create competent summary judgment evidence. Marino v. Parish of St. Charles, 09-0197, p. 7 (La.App. 5 Cir. 10/27/09), 27 So.3d 926, 930-931.

Our review of Bailey’s deposition testimony reveals that, although he was examined thoroughly as to the contents of his report, it was not attached or made a part of Bailey’s testimony. As such, Bailey’s report is not competent evidence suitable for opposing a motion for summary judgment, as it is unsworn. The expert report itself is not self-proving. Id. 09-197, p. 7, 27 So.3d at 930.

Thus, applying the above principles, we do not find that the trial court abused its discretion in granting defendants’ motion to strike Bailey’s report.

|flMOTION FOR PARTIAL SUMMARY JUDGMENT

Hohensee also argues that the trial court erred in granting defendants’ Motion for Partial Summary Judgment, dismissing Bergeron in his individual capacity, and RCB Architects relative to constructed-related issues.

A motion for summary judgment shall be granted “if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ. Proc. art. 966 B(2). The movant bears the burden of proof. La. Code Civ. Proc. art. 966 C. “However, if the movant will not bear the burden of proof at trial ..,, the movant’s burden” is “to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense,” La.Code Civ. Proc. art. 966 C(2). “Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.” La.Code Civ, Proc. art. 966 C(2).

To determine whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria employed by the trial court. Quantum Resources Mgmt., L.L.C. v. Pirate Lake Oil Corp., 12-1472, p. 5 (Laj 73/19/13), 112 So.3d 209, 214; Garrrison v. Old Man River Esplanade, 13-0869, p. 3, 133 So.3d 699, 701; La.Code Civ. Proc. art. 966.

Defendant, RCB-Architects, moves for partial summary judgment as to construction-related issues only, arguing that the facts were undisputed that RCB-Architects was not hired for, responsible for, or retained to perform any tasks related to construction of the house. Bergeron also argues that because he is a member of RCB—Architects, which is a limited liability company, he cannot be personally liable under Louisiana law.

Hohensee argues that RCB—Architects and Bergeron, individually, are liable for construction-related defects in her house based on her interpretation of La. R.S. 37:152 B and 46 La. Admin. Code Pt. I, 1313 and 1319.

Bergeron and RBA—Architects set forth in their memorandum in support that there is an absence of factual support for Hohensee’s contention that Sean Turner and Bergeron or his company had entered into a design/build agreement. Such evidence would be necessary to demonstrate a breach of the rules listed in 46 La. Admin. Code Pt. I, 1313. They offer proof that Bergeron did not participate in lathe actual construction of the house, only in its design. The involvement in the design was limited to reviewing the | pdesign plans drawn by Turner, and affixing Ber-geron’s architect seal to the plans. Ho-hensee offers no proof that Turner and Bergeron had a partnership or corporation created to offer a combination of design and construction services. Thus, application of 46 La. Admin. Code-Pt. I, 1319 is unwarranted.

As such, Hohensee has failed to demonstrate that she will be able to satisfy her evidentiary proof at trial.

We agree and find summary judgment was appropriate as to the construction-related issues as they relate to both defendants.

Hohensee also argues that Berger-on should be held individually liable for the damages to her home based on the language of La. R.S. 37:152 B, which provides that “no architect shall affix his seal or stamp or permit it to be affixed to any specification, drawing, or other related document which was not prepared either by him or under his responsible supervision.”

It is undisputed that Hohensee requested Bergeron’s architectural services for designing her house, and that Bergeron declined, but referred her to Turner. Also, as stated infra, it is undisputed that Bergeron reviewed the original design plans drawn by Turner, and affixed his seal to the plans, as a favor to Turner, who was not an architect.

Evidence in support of the motion for summary judgment revealed that Berger-on did visit the construction site once or twice by chance, but it was not a professional call.

| mHohensee testified that she had no dealings with Bergeron other than the initial contact to ask him to design her house. When asked if, in her opinion, she had a verbal contract with Bergeron, she answered “no.” Hohensee testified that she never paid Bergeron for any services. Ho-hensee’s contention that Bergeron is responsible for the damage to her house is based upon Bergeron’s affixing his architect’s seal on the house plans, and her testimony that Sean Turner told her that he consulted Bergeron on a regular basis. She testified that Turner told her that “Ray said this or Ray said that,” when asked about how to proceed with the construction. She also offered evidence that Charles Sexton testified in his deposition that Turner informed him that Bergeron had visited the construction site more than once. We find that both Hohensee’s testimony as it regards Turner’s statements, and Charles Sexton’s testimony are inadmissible hearsay, and therefore not proper support for a motion for summary judgment. Notwithstanding, we find that if Hohensee’s conversations with Turner and Sexton were admissible, the alleged content of those conversations would not rise to the level of support necessary to prove a contractor/owner relationship between Ho-hensee and Bergeron.

In contrast, Turner testified that he did not consult with Bergeron prior to making major changes to the design of the house, that is, the original design to which Ber-geron affixed his seal.

PERSONAL LIABILITY

lnHohensee also argues that Ber-geron breached his professional duty as a licensed Louisiana architect, which permits piercing the corporate veil, and exposes Bergeron to personal liability.

Pursuant to the provisions of La. R.S. 12:1320 B and C, a member, manager, employee or agent of an LLC cannot be hable in such capacity for the debt, obligation or liability of such entity and such persons are not proper parties to a proceeding against the LLC. However, La. R.S. 12:1320 D is the exception to the protection afforded such persons in instances where a claim is made arising out of the breach of a professional duty. Ho-hensee relies on Matherne v. Barnum, 11-0827, p. 8 (La.App. 1 Cir. 3/19/12), 94 So.3d 782, 788, in which the First Circuit held that "... Subsection D of this same statute clearly provides a cause of action against a member of a limited liability company because of any breach of professional duty.... ” She further relies on Ogea v. Merritt, 13-1085, p. 12 (La.12/10/13), 130 So.3d 888, 898, which held that “recovery can be had from an individual member for ‘any breach of professional duty[,]’ ” thereby recognizing an exception to the limited liability provisions of La. R.S. 12:1320. The Ogea court found that the meaning of the word “professional” was meant to include any persons entitled to form professional corporations under Louisiana’s corporate laws, such as physicians, dentists, accountants, chiropractors, nurses, architects, optometrists, psychologists, veterinarians and architectural-engineering professionals. Ogea, 13-1085, p. 13, 130 So.3d at 898. Thus, Hohensee argues | iathat because Bergeron is a licensed architect, he is not immune from personal liability for debts, obligations and liabilities of his LLC, when sued for a breach of his professional duty.

Members of a limited liability company generally may not be assessed with personal liability for the debts and obligations of the limited liability company to third parties absent proof of fraud. See La. R.S. 12:1320 B; Charming Charlie, Inc. v. Perkins Rowe Associates, L.L.C., 11-2254, p. 5 (La.App. 1 Cir. 7/10/12), 97 So.3d 595, 598. Thus, a limited liability company member is not a proper party in any proceeding against the LLC. La. R.S. 12:1320 B; Prasad v. Bullard, 10-291, p. 6 (La.App. 5 Cir. 10/12/10), 51 So.3d 35, 40. There are, however, certain limited exceptions to the rule of non-liability of shareholders for the debts of a corporation. These exceptions allow a court to ignore the legal fiction and hold the individual shareholders liable. Charming Charlie, 11-2254, p. 6, 97 So.3d at 599.

Third parties can bring claims against a member for “any fraud practiced upon him, because of any breach of professional duty or other negligent or wrongful act by such person, or in derogation of any right which the limited liability company may have against any such person because of any fraud practiced upon it by him.” La. R.S. 12:1320 D.

Accordingly, for Hohensee to succeed in holding Bergeron personally liable, she must prove that either Bergeron perpetrated a fraud against her or that he breached his professional duty to her by negligence or some other wrongful conduct.

1^Bergeron argues that Hohensee did not sustain her burden of proving that he was personally guilty of negligence or wrongful conduct with regard to the original design of the house. To support his motion, Bergeron attaches the affidavit of Donald Maginnis, an expert in architecture. Maginnis stated in his affidavit that the stamped plans, which he personally reviewed, met the applicable City of New Orleans code requirements, that the plans contained sufficient detail to allow the contractor to build the project as designed, and that Bergeron met the standard of care in reviewing and stamping the drawings made by Turner. Maginnis also testified that Turner deviated from the plans in significant ways, which led to construction deficiencies.

In response, Hohensee offers no admissible evidence to rebut the testimony of Maginnis.

In Ogea, the Supreme Court explains that the Civil Code “suggests an example of when a person might act outside the capacity of a member of an LLC and, thereby, undertake a ‘personal duty,’ the negligent or wrongful breach of which could subject the member to personal liability.” Ogea, 13-1085, p. 23, 130 So.3d at 904.

The existence of a duty is a question of law. Ogea, 13-1085, p. 24, 130 So.3d at 905, citing Faucheaux v. Terrebonne Consol. Government, 615 So.2d 289, 292 (La.2/22/93). “Simply put, the inquiry is whether the plaintiff has any |ulaw-statutory, jurisprudential, or arising from general principles of fault-to support his claim.” Id.

Hohensee has offered no proof that Ber-geron owed her a personal duty. Although Bergeron stamped the plans for Hohensee’s house, there is no evidence in the record that Bergeron breached any professional duty as an architect. As in Ogea, Bergeron’s affixing his seal was in furtherance of the Hohensee’s contract with Turner, a contract to which Bergeron was not a party. Conduct taken in furtherance of the legitimate goals of that contract does not subject Bergeron to personal liability. See Ogea, 13-1085, p. 25, 130 So.3d at 905-06.

Thus, for the reasons stated herein, we affirm the partial summary judgment granted by the trial court, dismissing Raymond C. Bergeron, Jr., in his individual capacity, and dismissing Hohensee’s claims against RCB—Architects insofar as its liability for any construction-related issues.

AFFIRMED

LOVE, J., concurs in part and dissents in part and assigns reasons.

LOVE, J.,

concurs in part and dissents in part and assigns reasons.

hi concur with the majority’s affirmation of the trial court’s granting the defendants’ Motion to Strike Mr. Bailey’s report. However, I respectfully dissent from the conclusions reached by the majority regarding liability.

Ms. Hohensee partially relied upon La. R.S. 37:152(B), which provides that “no architect shall affix his seal or stamp or permit it to be affixed to any specification, drawing, or other related document which was not prepared either by him or under his responsible supervision.”

Mr. Bergeron does not dispute that he affixed his architectural seal on the plans designed by Mr. Turner. The Defendants also admit that they “were only involved in the design process of the plaintiffs house, not the construction.” Mr. Bergeron’s architectural stamp included the following statement: “I am (not) providing periodic inspection of this project.” Ms. Hohensee never signed any written contract with Mr. Bergeron or RBA and did not pay either any money. It is undisputed that Ms. Hohensee contracted with Mr. Turner and Mr. Sexton and/or MCC to construct her new home. The testimony presented in support and [ ^.opposition to the Motion for Partial Summary Judgment reflects that Mr. Bergeron visited the construction site once or twice to say “hello” to Mr. Turner because he was already visiting his wife’s aunt who lived on the same street. Ms. Hohensee never saw Mr. Bergeron at the construction site supervising workers. There is no evidence that Mr. Bergeron functioned as a construction coordinator.

However, Ms. Hohensee testified that Mr. Turner repeatedly informed her that “Ray said this or Ray said that” in conjunction with determining the best way to proceed with the construction of her home. Mr. Turner testified that he did not consult with Mr. Bergeron prior to deciding upon elevation changes and the addition of another floor to Ms. Hohensee’s home. Mr. Sexton stated in his deposition that Mr. Turner informed him that Mr. Berger-on visited the construction site more than once. Choosing which testimony to believe requires a credibility determination that is prohibited on consideration of a motion for summary judgment. Indep. Fire Ins. Co. v. Sunbeam Corp., 99-2181, p. 16 (La.2/29/00), 756 So.2d 226, 236.

Ms. Hohensee’s testimony that Mr. Ber-geron was consulted regarding the design alterations during the construction of her home requires a credibility determination. Likewise, Mr. Sexton’s deposition testimony presents questions of fact as to the purpose of Mr. Bergeron’s visits to the construction site. These credibility determinations are improper for a motion for summary judgment. Therefore, I find that genuine issues of material fact exist as it relates to Mr. Bergeron and RBA’s alleged liability for construction-related issues.

Ms. Hohensee also avers that Mr. Ber-geron breached his professional duty as a licensed Louisiana architect, which would permit the piercing of the corporate veil to hold him personally liable.

“Except as otherwise specifically set forth in this Chapter, no member, manager, employee, or agent of a limited liability company is liable in such | .-¡capacity for a debt, obligation, or liability of the limited liability company.” La. R.S. 12:1320(B). “Without a doubt, statutory law found in La. R.S. 12:1320(B) insulates a member of a limited liability company from personal liability for a debt or obligation of the limited liability company.” Matherne v. Barnum, 11-0827, p. 8 (La.App. 1 Cir. 3/19/12), 94 So.3d 782, 788. “However, Subsection D of this same statute clearly provides a cause of action against a member of a limited liability company because of any breach of professional duty, as well as for any fraud or other negligent or wrongful act by such person.” Id.

“The existence of a duty is a question of law.” Ogea v. Merritt, 13-1085, p. 24 (La.12/10/13), 130 So.3d 888, 905. However, whether a party breached a duty is a question of fact. Mundy v. Dep’t of Health & Human Res., 620 So.2d 811, 813 (La.1993). The following four factors are utilized to determine if personal liability should be found:

1) whether a member’s conduct could be fairly characterized as a traditionally recognized tort; 2) whether a member’s conduct could be fairly characterized as a crime, for which a natural person, not a juridical person, could be held culpable; 3) whether the conduct at issue was required by, or was in furtherance of, a contract between the claimant and the LLC; and 4) whether the conduct at issue was done outside the member’s capacity as a member.

Ogea, 13-1085, p. 16, 130 So.3d at 900-01.

As an architect, Mr. Bergeron is part of a “legislatively-recognized profession.” Id., 13-1085, p. 13, 130 So.3d at 899. The evidence presented proves that Mr. Ber-geron recommended Mr. Turner to Ms. Hohensee, and that Mr. Turner was not a licensed architect. Mr. Bergeron also provided the meeting space for Ms. Hohensee and Mr. Turner, Mr. Bergeron testified that when he informed Ms. Hohensee that he would help her, he “meant” by certifying the plans for her new home. However, he did not convey his intended method of assistance to Ms. Hohensee. Ms. Hohen-see testified that Mr. Bergeron should have “[bjeen upfront |4with [her] about who was going to stamp the plans and make sure I understood that.” Mr. Bailey stated in his deposition that:

[wjhen he puts his seal and signs those documents, that indicates something. It indicates that he is professionally liable and responsible for the design of the building. That is about as—as extensive as it gets in my profession.

This presents a genuine issue of material fact as to whether Mr. Bergeron breached a professional duty and incurred personal liability by stamping and certifying the plans. These contested issues of material fact must be applied to the factual determination of whether Mr. Bergeron breached his professional duty as an architect. As such, I find that genuine issues of material fact exist as to Mr. Bergeron’s personal liability. Therefore, I would reverse the trial court’s grant of summary judgment and remand for further proceedings.

      . Enclosing the crawl space apparently caused the floors to buckle in the house, which precipitated the second change of adding a subfloor to correct the problem.

      . Turner and Sexton filed motions for summary judgment arguing that they could not be held personally liable for Hohensee's alleged damages. The trial court granted summary judgments, but this Court reversed finding that genuine issues of material fact existed, See Hohensee v. Turner, 13-0615 (La.App. 4 Cir. 1/22/14), 133 So.3d 141.

      .The Motion for Summaiy Judgment is unclear in that movers are collectively referred to as "Bergeron,” but part of the motion applies to Raymond Bergeron only, i.e„ his personal liability as to construction and design.

      . The motion to strike by defendants is incorporated in defendants’ Reply to Plaintiff’s Opposition to Motion for Partial Summary Judgment.

      . La. Admin. Code, tit, 46, pt. I, § 1313 and 1319, interpret La. R.S. 37:152(B) and 37:141(b)(3), respectively.

      . § 1313. Interpretation of R.S. 37:152(B)
      A. 1. Specifications, drawings, or other related documents will be deemed to have been prepared either by the architect or under the architect’s responsible supervision only when:
      a. the client requesting preparation of such plans, specifications, drawings, reports or other documents makes the request directly to the architect, or the architect's employee as long as the employee works in the architect’s office;

        b. the architect personally controls the preparation of the plans, specifications, drawings, reports or other documents and has input into their preparation prior to their completion;
      c. if the plans, specifications, drawings, reports, or other such documents are prepared outside the architect’s office, the architect shall maintain evidence of the architect’s responsible control including correspondence, time records, check prints, telephone logs, site visit logs, research done for the project, calculations, changes, and written agreements with any persons preparing the documents outside of the architect’s offices accepting professional responsibility for such work;
      d. the architect reviews the final plans, specifications, drawings, reports or other documents; and
      e. the architect has the authority to, and does, make necessary and appropriate changes to the final plans, specifications, drawings, reports or other documents.
      2, If an architect fails to maintain written documentation of the items set forth above, when such are applicable, then the architect shall be considered to be in violation of R.S. 37:152, and the architect shall be subject to the disciplinary penalties provided in R.S. 37:153. This written documentation should be maintained for the prescriptive period applicable to claims against the architect which may arise from his or her involvement in the project.
      B. 1. Nothing precludes the use of prototypical documents provided the architect;
      a.has written permission to revise and adapt the prototypical documents from the person who either sealed the prototypical documents or is the legal owner of the prototypical documents;
      b. reviewed the prototypical documents and made necessary revisions to bring the design documents into compliance with applicable codes, regulations, and job specific requirements;
      c. independently performed and maintains on file necessary calculations;
      d. after reviewing, analyzing, and making revisions and/or additions, issued the documents with his/her title block and seal (by applying his/her seal, the architect assumes professional responsibility as the architect of record); and
      e. maintained design control over the use of site adapted documents just as if they were his/her original design.
      2. The term prototypical documents shall mean model documents of buildings that are intended to be built in several locations with substantially few changes and/or additions except those required to adapt the documents to each particular site; that are generic in nature, that are not designed or premised upon the laws, rules or regulations of any particular state, parish, or municipal building code; that do not account for localized weather, topography, soil, subsistence, local building codes, or other such conditions or requirements; and that are not intended to be used as the actual documents to be employed in the construction of a building, but rather as a sample or a model to provide instruction or guidance. The term legal owner shall mean the person who provides the architect with a letter that he or she is the owner of the documents and has the written permission to allow the use thereof.

      . Citing James S. Holliday, Jr., & H. Bruce Shreves, Louisiana Practice Series: Louisiana Construction Law, 1:19 pp. 10-11 (2013).

      . The City required some minor changes be made before issuing the permit. Bergeron reviewed the changes, and forwarded the letter to Turner.

      . There is a dispute in the record regarding whether Ms. Hohensee contracted with MCC or Mr. Turner and Mr. Sexton individually.


author: JOY COSSICH LOBRANO, Judge. LOVE, J., BONIN, J., BAGNERIS, J.,

text:
    Hiram Lawrence ARMSTRONG v. Simon METZNER, State Farm Mutual Automobile Insurance Company, and Progressive Security Insurance Company.
    No. 2014-CA-1137.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 22, 2015.
    Vernon P. Thomas, Attorney at Law, New Orleans, LA, for Plaintiff/Appellee.
    Tamara D. Simien, Senior Staff Attorney, Baton Rouge, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JAMES F. McKAY, III, Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE, Judge PAUL A. BONIN, Judge JOY COSSICH LOBRANO).
   JOY COSSICH LOBRANO, Judge.

I defendant, the Board of Supervisors for Louisiana State University Agricultural and Mechanical College through the Health Care Services División (“LSU”), appeals the July 21, 2014 trial court judgment issued pursuant to a writ of mandamus filed by plaintiff, Hiram Armstrong. This writ of mandamus was filed by plaintiff for the reduction and determination of the amount of money to be paid to LSU (which formerly operated the Interim LSU Public Hospital) and to University Medical Center Management Company d/b/a Interim Louisiana Hospital (“University”) pursuant to their liens and privileges filed under La. R.S. 9:4752 for reimbursement of medical expenses paid for plaintiffs care related to his February 22, 2013 accident.

On June 14, 2013, plaintiff filed a petition for damages as a result of a February 22, 2013 accident, which occurred when plaintiff was riding a bicycle on D’Abadie Street in New Orleans and was struck by a vehicle driven by Simon Metzner. Plaintiff named Metzner as a defendant, along with Metzner’s insurer, State Farm Mutual Automobile Insurance Company, and plaintiffs 12uninsured/underinsured motorist coverage insurer, Progressive Security Insurance Company.

On May 20, 2014, plaintiff filed a petition for writ of mandamus against the State of Louisiana, through the Department of Health and Hospitals (“DHH”). Plaintiff attached to his petition a letter dated February 5, 2014 to him from LSU and University, formally notifying him of their liens and privileges under the provisions of La. R.S. 9:4752 et seq., against the proceeds of any recovery by plaintiff for personal injuries suffered in the accident. These privileges were asserted to recoup payment for medical services rendered to plaintiff. Plaintiff alleged that he has compromised and settled his claims against Metzner’s insurer, State Farm, and his uninsured/underinsured motorist earner, Progressive, and those defendants have issued checks for payment of plaintiffs claim, with the checks being made payable to plaintiff, his attorney and Interim LSU Public Hospital. Settlement documents have been executed by plaintiff, and pleadings required to dismiss and terminate this lawsuit have been completed. However, according to plaintiff, the delay and inaction of DHH has halted any progression of the settlement process.

By letters dated February 18, 2014 and March 12, 2014, plaintiff asked DHH for its assistance in reducing the liens to an acceptable amount that plaintiff could pay. However, as of the date the petition for writ of mandamus was filed, plaintiff received no response from DHH. Plaintiff alleged that other attempts to |sget information from DHH have also been unsuccessful. Plaintiff further alleged that he returned the checks issued by the insurers based on his concern that the checks would become “stale” due to his inability to satisfy the liens and privileges of DHH.

Plaintiff alleged that he is aggrieved by the delay and inaction of DHH, and asked the trial court to order DHH to provide him with information regarding the dollar amount required to pay and satisfy the liens and privileges within a certain period of time, or, in the alternative, that the court order DHH to appear and show cause why the liens and privileges should not be dissolved. After plaintiffs petition for writ of mandamus was filed, the trial court issued an order on May 20, 2014, ordering DHH to provide plaintiff with information regarding the dollar amount of money required to pay and satisfy the liens and privileges in these proceedings by the close of business on June 3, 2014.

On May 30, 2014, plaintiff amended his petition for writ of mandamus, alleging that after the filing of his original petition for writ of mandamus, the LSU Health Care Services Division sent plaintiff a letter, stating $28,900.00 as the total dollar amount of the liens and privileges owed for services rendered by LSU and University. Plaintiff alleged that this amount varies greatly from the guidelines for negotiating a Medicaid lien as established by the United States Supreme Court in Arkansas Dept. of Health and Human Services v, Ahlborn, 547 U.S. 268, 126 S.Ct. 1752, 164 L.Ed.2d 459 (2006). Plaintiff contended that the offer of settlement of the total lien amount stated by LSU is at such great variance with the guidelines of |4the Ahl-bom case that it is tantamount to being in defiance of the trial court’s May 20, 2014 order, and in defiance of the guidelines established in the Ahlbom case. Plaintiff asked the trial court to fix the dollar amount of the liens and privileges, because of LSU’s alleged unwillingness to do so within the guidelines established by the United States Supreme Court in the Ahl-bom case.

On June 27, 2014, LSU and University filed an answer to plaintiff’s original and amended petitions for writ of mandamus, alleging that they are the proper defendants in this matter, and not DHH. They further alleged that they presented initial offers of lien reduction to plaintiffs counsel on May 12, 2014, not on May 29, 2014 as alleged by plaintiff. They also alleged that the liens at issue are not Medicaid liens; rather, they are healthcare provider liens, so the Ahlbom case cited by plaintiff is not applicable.

The answer alleged that between February 22, 2013 and May 31, 2013, the Interim LSU Public Hospital, the former public medical facility that was managed by LSU Health Care Services Division (LSU) through June 23, 2013, provided medical treatment to plaintiff in the amount of $51,801.66, which is still due and owing. Between July 26, 2013 and January 24, 2014, the University Medical Center Management Company d/b/a the Interim Louisiana Hospital (University), the private medical facility that took over the operations of the Interim LSU Public Hospital on June 24, 2013, provided medical treatment to plaintiff in the amount of $6,912.73, which is still due and owing. On February 5, 2014, both LSU and University issued to plaintiff formal notices of their liens and privileges, pursuant | Bto La. R.S. 9:4752, et seq., for these outstanding charges. Letters sent to plaintiff dated May 12, 2014 show that LSU offered to reduce its lien amount to $25,900.00 for full payment, and University offered to reduce its lien amount to $3,000.00 for full payment.

DHH also filed an answer to the original and amended petitions for writ of mandamus, stating that it has not paid any medical expenses related to injuries sustained by plaintiff in the February 22, 2013 accident. Accordingly, DHH confirmed that it is not due any reimbursement from settlement funds received by plaintiff.

Following a hearing, the trial court issued a judgment on July 21, 2014, stating that she was following the guidelines for deciding reductions in medical liens for Medicaid reimbursement as set forth in Arkansas Dept. of Health and Human Services, et al. v. Ahlborn, 547 U.S. 268, 126 S.Ct. 1752, 164 L.Ed.2d 459 (2006). The trial court found the following facts:

(1) The amount of the lien and privilege under La. R.S. 9:4752 is $51,801.66 for LSU and $6,912.73 for University, or a total of $58,714.39;
(2) The available settlement amount from State Farm and Progressive respectively is $45,000.00 and $10,500.00, or a total of $55,500.00;
(3) The reasonable value of the plaintiffs injuries is $300,000.00;
(4) The ratio of total liens ($58,714.39) to the reasonable value ($300,000.00) is 5.11;
1⅜(5) The net amount available for liens after deduction of attorney’s fees and costs is $28,760.35; and
(6) The ratio of medical liens to reasonable value (5.11) divided by the available net settlement ($28,760.35) is $5,628.25 total with pro rata share being 87% for LSU and 13% for University, or $4,896,57 and $731.67 respectively.

Based on these factual findings, the tidal court rendered judgment reducing the lien of LSU from $51,801.66 to $4,896.57, and reducing the lien of University from $6,912.73 to $731.67. LSU now appeals the July 21, 2014 trial court judgment.

On appeal, LSU argues that the trial court erred by distinguishing the amount of recovery that can be recovered by a public health care provider versus a private one for liens perfected pursuant to La. R.S. 9:4752 et seq, LSU also argues that the trial court erred by applying the Ahlborn formula, which is used to determine the reduction of Medicaid lien reimbursements owed to DHH, in its determination of the amounts owed to LSU as a result of its health care provider liens that were properly perfected pursuant to La. R.S. 9:4752 et seq.

La. R.S. 9:4752 states as follows:

A health care provider, hospital, or ambulance service that furnishes services or supplies to any injured person shall have a privilege for the reasonable charges or fees of such health care provider, hospital, or ambulance service on the net amount payable to the injured person, his heirs, or legal representatives, out of the total amount of any recovery or sum had, collected, or to be collected, whether by judgment or by settlement or compromise, from another person on account of such injuries, and on the net amount payable by any insurance company under |7any contract providing for indemnity or compensation to the injured person. The privilege of an attorney shall have precedence over the privilege created under this Section.

The record shows that the lien from LSU represents treatment received by plaintiff when the hospital where he was treated was a public facility, and the lien from University represents treatment received by plaintiff after the hospital became a privately-run facility. LSU argues that when the trial court made its determination as to the proper distribution of settlement funds between plaintiff and LSU, the public health care provider, the court erroneously followed guidelines established for reducing Medicaid liens owed to DHH for health care benefits that DHH had previously extended to injured persons. LSU further argues that La. R.S. 9:4752 does not limit its application to only private health care providers, or include a formula for determining how much should be allotted to the health care provider and the injured person. Nonetheless, the trial court chose to apply Medicaid lien guidelines to determine the proper distribution to the public health care provider, LSU. In doing so, the trial court stated at the hearing that she believed it was unfair for a health care provider to get all of the money from a plaintiffs settlement, with the plaintiff getting nothing.

LSU cites the case of Marquez v. Progressive Ins. Co., 06-1024 (La.App. 3 Cir. 12/6/06), 944 So.2d 876, in which a plaintiff received no amount from settlement funds after disbursements were made for attorney’s fees, court costs and medical services that were the subject of a health care provider lien perfected under La. R.S. 9:4752. The Marquez eourt cited the case of Moore v. State, La. State Univ. Med. Ctr., 596 So.2d 293 (La.App. 3 Cir.1992), which held that LSU |sMedical Center at Shreveport was entitled to recover the full amount of its lien because plaintiff was a debtor of the hospital, stating:

The clear language of La. R.S. 9:4752 states that the hospital shall have a privilege for the reasonable charges or fees on the net amount payable to the injured person out of the total amount of recovery, whether by judgment or settlement. ... The statute also clearly gives precedence to the privilege of an attorney over that of the hospital. Under this statute, it is clear that the attorney’s privilege would be satisfied first and the hospital’s privilege should be satisfied next out of the net amount payable to [plaintiff],

Marquez, 06-1024, p. 7, 944 So.2d at 881.

The Marquez court, following the reasoning in the Moore case, found that the trial court did not err in ordering disbursement of the insurance proceeds in accordance with La. R.S. 9:4752.

Plaintiff argues that the trial court was correct in finding that the enforcement of La. R.S. 9:4752 in this case would be unreasonable and fundamentally unfair, and that the formula used in cases involving Medicaid liens offered a more fair solution. But the flaw in that solution is that the liens at issue in this case are not Medicaid liens; they are health care provider liens, which are controlled by the provisions of La. R.S. 9:4752. Because of that fact, the trial court erred in applying Medicaid lien guidelines to determine the amount of funds owed to LSU out of plaintiffs settlement proceeds.

InFor the reasons stated above, the July 21, 2014 trial court judgment is hereby reversed, and this matter is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED

LOVE, J., concurs and assigns reasons.

BONIN, J., concurs with reasons.

McKAY, C.J., dissents for the reasons assigned by Judge BAGNERIS.

BAGNERIS, J., dissents with reasons.

LOVE, J.,

concurs and assigns reasons.

hi respectfully concur for the reasons assigned by Judge Bonin.

BONIN, J.,

concurs with reasons.

hi concur in the reversal of the judgment because there was insufficient evi-dentiary support for the specifics of the ruling. On remand, the parties should be required to produce evidence so that the trial judge could determine (1) what are “reasonable charges and fees” for the services provided by the hospital to Mr. Armstrong, taking into consideration inter alia customary reductions for payments by insurers, (2) what is the total amount of Mr. Armstrong’s general and special damages sustained as a result of the accident, and whether the tortfeasor (and insurers) would have been entitled to a reduction of that amount due to the compared fault of Mr. Armstrong, (3) what is the ratio of the past and future medical specials to the total of the general and special damages, (4) what was the total amount of liability and UM insurance recoverable by Mr. Armstrong, and (5) the total amount of “med pay” insurance recoverable by Mr. Armstrong. Once there is an evidentiary basis for these decisions, the trial judge should proceed to determine the amount of the hospital’s statutory lien which may only be satisfied out the amount of the available med pay insurance (after attorney’s fees) and from the portion of the net recovery attributable to special medical damages. The statutory lien, being accessory, cannot exceed the amount which Mr. Armstrong recovered for that item of damage.

McKAY, C. J., dissents for the reasons assigned by Judge BAGNERIS.

BAGNERIS, J.,

dissents with reasons.

|¶1 respectfully dissent from the majority opinion that reverses the district court’s judgment to reduce the medical lien of Louisiana State University, Health System, Health Care Services Division from $51,801.66 to $4,896.57 and the medical lien of University Medical Center Management Company from $6,912.73 to $731.67. I find that La. R.S. 9:4752 is silent to the current situation wherein the settlement recovery proves insufficient to satisfy the medical expenses incurred and also provide compensation for the injured person. The plaintiff settled his damage claim for the total amount of $55,500.00; however, the medical liens asserted totaled $58,714.39. As the trial court stated in the hearing on the writ of mandamus, “it just seems inherently unfair to me that someone who suppose [sic] to be providing health care is going to get all of the money and the person who is injured doesn’t get any of it.” Further, medical provider liens should not deprive a plaintiff a portion of the recovery for his non-medical damages, such as pain and suffering. For these reasons, I would affirm the district court’s judgment to reduce the medical liens and its finding that the medical provider should not be entitled to the entire net settlement amount.

      . The letters attached to the petition were addressed to LSU Health System, but plaintiff states in his petition that his request for a dollar amount of the liens was made to DHH.

      . The figure stated in the fifth factual finding, $28,750.35, was a typographical error. The amount of the settlement, $55,500.00, minus the amount of attorney’s fees and costs submitted (and apparently accepted by the trial court) by plaintiff, $26,739.65, equals $28,760.35. The $28,760.35 figure was used by the trial court in the sixth factual finding.

      . Also, there is no evidence in the record that the reasonable value of plaintiff’s injuries is $300,000,00, as stated by the trial court in its finding of facts. The trial court apparently accepted this estimation of the value of plaintiff’s injuries as stated by plaintiffs counsel at the hearing, with no further evidentiary support.


author: EDWIN A. LOMBARD, Judge. LOBRANO, J.,

text:
    STATE of Louisiana v. Dominique DOMINO.
    No. 2014-KA-1351.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 3, 2015.

      Leon A. Cannizzaro, Jr., District Attorney, J. Bryant Clark, Jr., Assistant District Attorney, Parish of Orleans, New Orleans, LA, for Appellant/State of Louisiana.

      Demetrie E. Ford, Gretna, LA, for Defendant/Appellee.
    (Court composed of Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME, Judge JOY COSSICH LOBRANO).
   EDWIN A. LOMBARD, Judge.

_jjThe State seeks reversal of the trial court judgment granting the defendant’s motion to quash the bill of information. After review of the record in light of the applicable law and arguments of the parties, we affirm the judgment of the trial court.

Relevant Facts and Procedural History

On July 6, 2011, a Chase Visa debit card was stolen and used to obtain over $1500 in cash from Harrah’s Casino, Walgreens, and Brothers Food. On August 25, 2011, Dominique Domino was charged by bill of information with unauthorized use of an access card as theft, a violation of La.Rev. Stat. 14:67, and obstruction of justice, a violation of La.Rev.Stat. 14:67.3(A). At his arraignment on August 30, 2011, the defendant pleaded not guilty. On October 13, 2011, the trial court found insufficient probable cause to substantiate the charges “due to the State not announcing ready when the matter was called in open court” and the State’s failure to turn over the police report until the date of the hearing. The State sought supervisory review of this ruling but due to its three requests to extend the return date, the writ was not filed in this court until January 25, 2012.

| .¿Meanwhile, the defendant waived extradition to Florida and, according to the court minutes of October 31, 2011, failed to appear at the scheduled hearing because he “is said to be incarcerated in the State of Florida.” The trial court issued an alias capias and continued the hearing without date. Although this court subsequently (on March 14, 2012) granted the State’s writ application, vacated the ruling of October 13, 2011, and remanded the matter back to the trial court for further proceedings court, State v. Domino, un-pub. 2012-0166 (La.App. 4 Cir. 3/14/12), the State took no further action until after the defendant’s arrest in July 2014. On July 23, 2014, the defendant was released by the trial court and the alias capias was recalled. On August 20, 2014, the defendant moved to quash the bill of information, arguing that the State failed to timely prosecute the charges after filing the bill of information on August 26, 2011. A hearing on the motion was initially set for September 5, 2014, but continued until September 12, 2014, by motion of the State. Notably, the State never filed a written response to the motion and arrived at the hearing apparently unprepared, arguing that the defendant, in waiving his extradition to Florida, “basically absconded, even though he was in the custody of jail, he absconded knowing that he had pending charges.” Further, the State argued that the “clock was still ticking” until a notice was filed in accordance with La. Code Crim. Proc. art. 579(C). The State was unaware of this court’s judgment of March 2012 granting the State’s writ and remanding the matter back for further proceedings.

The trial judge, finding the State arguments unpersuasive, granted the defendant’s motion to quash. The State appeals.

| Standard of Review

A trial court’s ruling on a motion to quash is a discretionary one, which should not be disturbed absent a clear abuse of discretion. State v. Love, 2000-3347, pp. 9-10 (La.5/23/07), 847 So.2d 1198, 1206; State v. Sorden, 2009-1416, p. 3 (La.App. 4 Cir. 8/4/10), 45 So.3d 181,183.

Applicable Law

Louisiana’s relevant statute provides that no felony trial, other than for a capital offense, may be commenced two years after the date the prosecution was instituted, see La.Code Crim. Proc. art. 578(A)(2), although this period shall be interrupted if:

(1) The defendant at any time, with the purpose to avoid detection, apprehension, or prosecution, flees from the state, is outside the state, or is absent from his usual place of abode; or
(2) The defendant cannot be tided because of insanity or because his presence for trial cannot be obtained by legal process, or for any other cause beyond the control of the state; or
(3) The defendant fails to appear at any proceeding pursuant to actual notice, proof of which appears in the record.

La.Code Crim. Proc. art. 579(A); see also La.Code Crim. Proc. art. 579(B) (the periods of limitation begin to run anew from the date the cause of the interruption no longer exists). Upon expiration of the time period, the court shall, upon motion of the defendant prior to trial, dismiss the indictment. La. Code Crim, Proc. art. 581.

The purpose of mandating dismissal upon expiration of legislative time limits is to enforce an accused’s right to a speedy trial and prevent the oppression caused by suspending criminal prosecutions over citizens for indefinite periods of time. State v. Romar, 2007-2140, p. 3 (La.7/1/08), 985 So.2d 722, 725 (citing State v. Rome, 93-1221, p. 3 (La.1/14/94), 630 So.2d 1284, 1286) (citations | ¿omitted). In addition, the “statutory scheme limiting the state’s time in which to commence trial after initiating prosecution prevents delays in the administration of justice by imposing on judicial tribunals an obligation of proceeding with reasonable dispatch in the trial of criminal prosecutions.” Rome, supra. Because the statutes of limitation are the primary guarantee against inordinate delays and represent the legislative balancing of the interests of the state against the interests of the defendant, “these limitations should be given effect unless the state carries its burden of showing valid grounds to support an interruption or sufficient suspension of these time periods,” Rome, supra.

Accordingly, when a defendant brings an apparent meritorious motion to quash based on the prescription, the State bears a heavy burden to demonstrate that the time period was interrupted or suspended. State v. Joseph, 2012-1176, p. 3 (La.App. 4 Cir. 3/20/13), 112 So.3d 363, 365 (citing Rome, supra). Ordinarily, that burden requires the State to exercise due diligence in discovering the whereabouts of the defendant as well as taking appropriate steps to secure his presence for trial once it has found him. State v. Romar, 2007-2140 (La.7/1/08), 985 So.2d 722.

Discussion

In his motion to quash, the defendant argued that the State failed to exercise the requisite “due diligence” to institute a timely prosecution against him. As pointed out by the defendant, this prosecution was instituted when he was charged by bill of information on August 25, 2011. He was arrested several days later and incarcerated in Orleans Parish Prison until his transfer to Escambia County Jail (after waiving extradition to Florida) where he remained until his release on March | ,-27, 2012. Notably, although this court granted the State’s writ on March 14, 2012, (while the defendant was still incarcerated in Florida) and remanded the matter for further proceedings, the State took no action until after the defendant moved to quash the indictment in August 2014. Even then, the State’s response was desultory at best, arguing that the defendant’s waiver of extradition to Florida was the equivalent of “absconding” and that the defendant had failed to fíle a notice as required by La.Code Crim. Proc. art. 579(C), apparently unaware that paragraph C is inapplicable in this case because it was added in 2013, after the defendant was released from jail in both Florida and El Paso, Texas. The State also suggested the burden was on the defendant to provide the impetus for timely prosecution of his case in Louisiana because “when he was in the Orleans Parish prison, he was aware that he had pending charges here.” Notably, the trial court’s last ruling with the defendant in attendance was the finding of no probable cause underlying the charges and, as indicated at the hearing in August 2014, even the State itself was unaware that this ruling had been overturned. Therefore, it is unsurprising that the trial judge did not find the State’s arguments persuasive or that the State met its “heavy burden” to demonstrate that the time period was interrupted or suspended.

On appeal, the State argues for the first time that the time limitations to commence trial are suspended because there has been no ruling on the defendant’s motions to suppress and for a bill of particulars which was filed on September 26, 2011. In addition, the State asserts that the time limitations were suspended by this court’s remand of the matter back to the trial court (in March 2012) for further proceedings. This court does not consider issues presented for the first time on | r,appeal and, in any event, our standard of review is whether the district court abused its discretion in granting the motion to quash. Clearly, on the record in this case, there was no abuse of discretion. There is no evidence whatsoever that the State exercised due diligence in prosecuting this defendant in a timely manner and, in its arguments before the district court, the State appeared unprepared, unaware of both the record and the applicable law.

Finally, the dissenting judge in this matter insists that the State’s erroneous arguments at the hearing make no difference because “[t]he record reveals that Defendant had actual notice at the October 13, 2011 hearing that he was to appear on October 31, 2011, and failed to do so, triggering the issuance of a capias for his arrest.” As the dissenting judge correctly notes, pursuant to the La.Code Crim. Proc. art. 579(A)(3), the time period set forth in La.Code Crim. Proc. art. 578 is interrupted if “[t]he defendant fails to appear at any proceeding pursuant to actual notice, proof of which appears in the record” La.Code Crim. Proc. art. 579(A)(3) (Emphasis added).

However, the court minutes of October 13, 2011, do not show that the defendant had “actual notice” on that date that he was to appear on October 31, 2011. Rather, the court minutes of October 13, 2011, indicate that the defendant appeared with counsel for the preliminary hearing and the court “found insufficient probable cause to substantiate the charges” due to the State’s announcing that it was not ready and because “the State did not turn over the very “lengthy” police report until this hearing on motion date, 13 October 2011.” The court minutes also indicate that the State announced its intention to seek a writ on the court’s ruling 17and was granted a return date of October 31, 2011. Further, a “release” was “issued” and the capias recalled. Finally, whereas at the previous hearing on September 26, 2011, the court minutes indicated that “the defendant was notified in open court,” the court minutes of October 13, 2011, clearly state “HEARING ON MOTIONS SET FOR 10/31/11 > SEND NOTICES. NOTIFY DEFENDANT. > SEND NOTICE TO DEFENSE COUNSEL DEM-ETRI FORD.” (Emphasis added).

It is not clear in the record when exactly the defendant waived extradition and was transferred to Florida, but there is also no evidence in the record that the defendant received the notification of the October 31, 2011, hearing date. Accordingly, there is no “actual notice, proof of which appears in the record” that the defendant was notified of the October 31, 2011, court date and, therefore, the time period set forth in La. Code Crim. Proc. art. 578 is not interrupted.

Conclusion

The district court judgment granting the defendant’s motion to quash is affirmed.

AFFIRMED.

LOBRANO, J.,

dissents with reasons.

hi respectfully dissent from the majority opinion. I would find that the trial court abused its discretion in granting the motion to quash filed by Defendant, Dominique Domino. The majority opinion is primarily based on a finding that the State failed to present evidence to show its own due diligence in discovering and monitoring the whereabouts of Defendant so that prosecution against Defendant could be commenced in a timely manner. However, Louisiana jurisprudence, in particular State v. Romar and State v. McQuirter, compels a different result: Once a defendant receives actual notice of a pending hearing or trial date and subsequently fails to appear in court, the effort made by the State to locate a defendant who is “theoretically ‘locatable’ ” is of no significance as prescription was interrupted until the cause of the interruption no longer exists.

In State v. Romar, the defendant was charged with a third offense of operating a vehicle while intoxicated in 1997 and arraigned in January 1998. 12The defendant appeared for a pretrial motion hearing, which was then reset for April 1998. The court issued an attachment for the defendant’s arrest when he failed to appear in April 1998 and again in June 1998. Eight years later, the defendant was arrested on another charge of operating a vehicle while intoxicated and as a result of the capias for his arrest previously issued. The defendant then filed a motion to quash on the basis that the State had failed to exercise due diligence to execute the outstanding warrant in the years following the defendant’s failure to appear for the scheduled hearings. The trial court granted the motion to quash and the appellate court affirmed. Romar, 2007-2140, pp. 1-2, 985 So.2d at 724.

The Louisiana Supreme Court, however, reversed. The Court initially recognized that the State “bears the heavy burden of showing that it is excused from trying the accused on a charge later than the period mandated by [La.C,Cr. P. art.] 578 ... which “ordinarily requires the State to exercise due diligence in discovering the whereabouts of the defendant as well as taking appropriate steps to secure his presence for trial once it has found him.” Id. at p.3, 985 So.2d at 725. However, the Court found that when prescription is interrupted under La.C.Cr.P. art; 579(A)(3), as a result of the defendant’s failure to appear at any proceeding pursuant to actual notice, proof of which appears in the record, the State no longer has an affirmative duty to search for the defendant." Id. at p. 6, 985 So.2d at 726. Since an arrest warrant remains in effect until executed, the Romar Court found that Louisiana law grants the State the discretion to keep the attachment open as a “trip wire” against the day when a defendant 'again comes under the scrutiny of authorities. Id. at pp. 7-8, 985 So.2d at 727. The Louisiana IsSupreme Court stated:

In the present case, the period of limitation did not begin to run anew until the cause of the interruption no longer existed, i.e., until defendant was finally arrested on the open attachment and appeared in court to dispose of the criminal contempt proceeding. The burden under La.C.Cr. P. art. 579(A)(3) thus falls not on the state to show that defendant had placed himself outside of its control to secure his presence at trial but on the defendant and his sureties to avoid the consequences of his failure to appear in court after receiving notice, and one of those consequence, since 1984, is the interruption of the time limits placed on trial.

The Romar Court thus found that, although the defendant was theoretically “locatable,” the State’s efforts to find him were of no significance once it was established that the defendant had failed to appear in court after receiving actual notice.

In State v. McQuirter, the defendant/ap-pellee was charged in Orleans Parish by bill of information with the crime of Simple Burglary on June 19, 2003. McQuirter, 2012-0486, pp. 1-2, 108 So.3d at 371. Bond was set at $7,500. The defendant was arraigned on June 24, 2003, and pled not guilty. As a special condition of her bond, she was ordered to participate in the court’s intensive probation program and to report for weekly drug tests beginning on June 25, 2003, The record indicated that the defendant was notified that her next hearing date would be July 14, 2003. The July 14th hearing was subsequently reset several times due to the defendant not being served. The trial court issued an alias capias and set the matter for bond forfeiture on August 27, 2003. The matter was reset on August 27, 2003, and, again on September 15, 2003 when the court learned that the appellee had not been served. When the defendant did not appear for the September 15, 2003 bond forfeiture hearing, the trial court issued an alias capias and ordered that no bond be set. The bond forfeiture hearing was continued without date.

Meanwhile, the defendant in McQuirter was arrested by Jefferson Parish authorities on December 29, 2003, and was sentenced to serve seven years with the ^Louisiana Department of Corrections on March 25, 2004. An arrest warrant was issued by the Orleans Parish Sheriff on December 6, 2011, based on the alias capi-as of September 15,2003. With the defendant scheduled to be released from custody on the Jefferson Parish conviction on December 7, 2011, the defense attorney made an unscheduled court appearance in Orleans Parish on December 6, 2011, where a capias for the arrest of the defendant was issued for December 7, 2011. On December 7, 2011, the defendant appeared before the Orleans Parish trial court where her bond obligation was set at $1,000.00. The matter was reset for a status hearing on December 19, 2011. At the status hearing of December 19, 2011, counsel for the defendant orally moved to quash the State’s bill of information of June 19, 2003, After a hearing on January 12, 2012, the trial court granted defendant’s motion to quash and the State appealed.

This Court in McQuirter found no statutory basis for quashing the bill of information in that the State had carried its burden of proving that the defendant had received notice in open court on June 24, 2003 that she was to appear on July 14, 2003 and yet she failed to do so. This Court stated:

Further, we do not find that the State had an obligation to bring the appellee to trial while she was incarcerated in Jefferson Parish once the prescription period was interrupted when appellee failed to appear in court. See State v. Williams, 2011-1231, pp. 6-7 (La.App. 4 Cir. 5/23/12), 95 So.3d 554, 558, (whereby this Court held that the State is under no obligation to locate a defendant who was subsequently incarcerated in another parish once the prescriptive period has been interrupted by record proof of actual notice.)

McQuirter, 2012-0486, pp. 9-10, 108 So.3d at 375-76, The Court therefore reversed the judgment of the trial court, which had granted the motion to quash. Id. at pp. 9-10,108 So.3d at 375-76.

In the case sub judice, the record reveals that Defendant was charged by bill of information on August 20, 2011, and therefore the State had to proceed to trial no later than August 20, 2013. See La. C.Cr.P. art. 578(A)(2). The time period set | (-forth in La.C.Cr. P. art. 578(A)(2) is interrupted if “the defendant fails to appear at any proceeding pursuant to actual notice, proof of which appears in the record.” La. C. Cr. P. art. 579(A)(3). The record reveals that Defendant had actual notice at the October 13, 2011 hearing that he was to appear on October 31, 2011, and failed to do so, triggering the issuance of a capias for his arrest. Based upon the aforementioned jurisprudence, although the State learned of Defendant’s incarceration in Florida as early as October 2011, the State had no affirmative duty to monitor the status of the outstanding arrest warrant issued for Defendant. Thus, the running of the limitation period commenced to “run anew” once the cause of the interruption no longer existed and prescription was interrupted until Defendant reappeared in court on July 23, 2014, and the trial court recalled the alias capi- as. Accordingly, I would reverse the ruling of the trial court granting Defendant’s motion to quash and remand the case for further proceedings.

      . Notably, when questioned by the trial judge about the State writ application, the ADA responded that "it appears that a writ was taken” but "I don't know the results of the writ.”

        , The defendant was also briefly incarcerated in El Paso, Texas, in July 2012.

      . We do note that in accordance with La. Code Crim. Proc. art. 572(A), institution of prosecution for theft must take place within four years of the charged offense. The underlying offense in this case took place on July 6, 2011.

      .The majority also faults the State for arguing in favor of prescription being suspended, an issue the State failed to first raise with the trial court. Moreover, the majority notes that the State advocated for application of La. C.Cr. P. art. 579(C), a provision which was not yet in effect at the time Defendant was incarcerated. While the State certainly made some erroneous arguments to the trial court in support of its opposition to the motion to quash, the State did properly raise the issue to the trial court that Defendant’s failure to appear at the scheduled hearing was sufficient to interrupt prescription.

      . State v. Romar, 2007-2140, pp. 7-8 (La.7/1/08); 985 So.2d 722, 727.

      . State v. McQuirter, 2012-0486, p. 5 (La.App. 4 Cir. 1/23/13); 108 So.3d 370, 373.

      , See La.C.Cr. P. art, 205.

      . See State v. Williams, 11-1231, pp. 4-5 (La. App. 4 Cir 5/23/12); 95 So.3d 554, 557, writ denied, 12-1447 (La. 1/18/13); 107 So.3d 623 (where the State had no “affirmative duty to search for a defendant” after he failed to appear at the May 5, 2005 bond hearing, and, as such, the interruption of the time limitation for commencing trial began to run anew when the cause of the interruption no longer existed).