author: WICKER, J.

text:
    Drayton Waters HOLLEY, II v. Alexandra Robin HOLLEY
    NO. 17-C-325
    Court of Appeal of Louisiana, Fifth Circuit.
    November 20, 2017

      COUNSEL FOR PLAINTIFF/RESPONDENT, DRAYTON WATERS HOLLEY, II, Cynthia A. De Luca, Rebecca Gilson, Mary Cappie Tavary, David I. Courcelle
    COUNSEL FOR DEFENDANT/RELATOR, ALEXANDRA ROBIN HOLLEY, Mitchell J. Hoffman, Jeffrey M. Hoffman, New Orleans, Abigail F. Gerrity
    Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Jude G. Gravois
   WICKER, J.

Bln this writ application, relator-mother seeks review of the trial court’s judgment sustaining father-respondent’s objection to her relocating their minor child from New Orleans to Baton Rouge. Additionally, relator-mother seeks review of the trial court’s issuance of a preliminary injunction, enjoining her from leaving Orleans and Jefferson Parishes with the child “for any reason whatsoever,” as well as the trial court judgments awarding interim joint custody to the parties.

First, as to the relocation issue, we find that the trial judge committed a prejudicial legal error in applying the incorrect law and we, thus, conduct a de novo review of the relocation issue. Upon our de novo review, we find that the appropriate method to measure “miles” under the Relocation Act is by radial miles, or “as the crow flies,” rather than by surface or road miles. In this case, we find that the proposed relocation at issue is less than 75 radial miles from the father-respondent’s domicile and, thus, the relocation statutes, La. R.S. 9:355.1 et seq., do not apply. Second, we find that the preliminary injunction issued is invalid as a matter of law because Mr. Holley failed to post security as required under La. C.C.P. art. 3610. Finally, as to the interim custody orders issued, we find that the trial judge erred in considering evidence not properly offered and introduced. Accordingly, • for the reasons herein, we vacate the interim custody orders, the preliminary injunction, and the relocation judgment at issue, and remahd this matter for further proceedings.

^FACTUAL AND PROCEDURAL BACKGROUND

Drayton Waters Holley, II, and Alexandra Robin.Holley were married on September 27, 2014. Of the marriage, one child, C.H, was born on January 4, 2015. Prior to the proceedings at issue filed in Jefferson Parish, the parties filed dual petitions for protective orders in Civil District Court for the Parish of Orleans. In Ms. Holley’s petition for protective order, she alleged that Mr. Holley “shook” C.H. when C.H. was a three-day old infant. On March 23, 2015, the trial judge in Orleans Parish granted Ms. Holley’s petition for protection from abuse as to C.H. only and denied Mr. Holley’s petition for protection from abuse. The transcript from the Orleans Parish hearing reflects the trial judge found that Mr. Holley’s actions against C.H. were not intentional and ordered that both Mr. Holley and Ms. Holley attend new parenting classes at Children’s Hospital. The trial judge in Orleans Parish issued a protective order on March 26, 2015, for a six-month period, with an established expiration date of September 26, 2015. The protective order additionally awarded Ms. Holley temporary custody of C.H. and Mr. Holley supervised visitation.

On March 23, 2015, Mr. Holley filed a petition for divorce in the. 24th Judicial District Court, seeking a. divorce as well as a determination on initial custody and child support matters. On November 15, 2015, Ms. Holley filed exceptions of insufficiency of citation and service of process, lis pen-dens, and improper venue. On April 21, 2016, the trial judge denied Ms. Holley’s exceptions. In the same judgment, the trial judge awarded Mr. Holley supervised |svisitation with an independent supervisor, Ms. Martha Bujanda, and further appointed Dr. Edward Shwery to perform a custody evaluation as well as conduct psychological testing of both parties.-

On April 26, 2017, Mr. Holley filed a pleading titled, “Objection to Defendant’s Unauthorized Relocation of the Minor Child’s Residence and Request for Attorney’s Fees and Court Costs all with Incorporated Memorandum in Support[;] Request for Ex Parte Temporary Restraining Order Not to Remove Minor Child From Jurisdiction of the Court Pending a Hearing and Request for Injunction, Rule to Change/Modify Custody to Joint Custody with Petitioner Designated as Domiciliary Parent all with Incorporated Memorandum in Support.” In his objection, Mr. Holley alleged that Ms. Holley relocated C.H. to Baton Rouge in February or March 2016, without his knowledge or proper notice as required under La.; R.S. 9:355.4(A). Mr, Holley alleged that Ms. Holley forwarded correspondence to his counsel on March 28, 2017, notifying him that she planned to relocate C.H. to Baton Rouge on May 28, 2017, but that the written notification did not provide a specific address ..in Baton Rouge as required under La. R.S. 9:355.5'. On April 10, 2017, Mr. Holley responded through correspondence to Ms. Holley’s counsel, objecting to the proposed relocation. -

| Jn his objection, Mr. Holley asserted first that Ms. Holley had in fact “relocated” C.H. as contemplated under the Relocation Act, ie,, that the proposed address in Baton Rouge exceeds the 75-mile restriction set forth in the Act and, second, that Ms. Holley should be prohibited from relocating C.H. to Baton Rouge as it is not in the minor,child’s best interest. Mr. Holley contended that Ms. Holley’s March 28, 2017 correspondence was both insufficient and untimely to constitute proper notice of relocation under La. R.S 9:355.5.

Mr. Holley further requested that the parties be awarded joint custody of C.H. He asserted that the custody evaluation with appointed evaluator Dr. Shwery was near completion and that supervised visitation, as ordered in the April 26, 2016 judgment, had continued with-no incidents. He further contended that a change of circumstances occurred since the April 21, 2016 judgment awarding supervised .visitation. Specifically, he alleged that Ms. Holly moved C.H. into her new husband’s-home in Baton Rouge and that Ms. Holley encouraged C.H. to refer to her new husband as “Daddy.” Mr. Holley further alleged that Ms. Holley continued to refuse to inform him of C.H.’s whereabouts, including the address where C.H. lived.

Mr. Holley also requested a temporary restraining order, and a subsequent preliminary injunction, prohibiting Ms. Holley from removing C.H. out of [ 5Jefferson and Orleans Parishes pending a hearing on his objection to the relocation. On April 26, 2017, the trial judge issued a temporary restraining order prohibiting Ms. Holley from removing the minor child from Jefferson and Orleans Parishes “for any reason whatsoever” pending a hearing set for May 30,2017.

Ms. Holley filed an Answer to Mr. Holley’s Objection, as well as a “Motion to Establish Child Support for the Minor Child, Terminate Supervised Visitation, Remove Ms. Bujanda as Supervisor, Request for Attorney Fees and Costs and for Sanctions, and that a TRO be Denied,” In response to Mr. Holley’s objection to relocation, Ms. Holley asserted that her move to Baton Rouge is not in fact a relocation because the distance between her prior residence, which was the child’s primary residence, and her new residence is less than the 75-mile restriction provided in La. R.S. 9:355.2(B). Therefore, she contended that the relocation statutes do hot apply in this case. Concerning custody, Ms. Holley claimed that any custody determination would be premature because the custody evaluation was not yet complete.

The trial court conducted a hearing on May 30, 2017. The matters set before the court were visitation and custody; a request for an injunction prohibiting Ms. Holley from traveling with C.H. outside of Jefferson and Orleans Parishes; and Mr. Holley’s objection to Ms. Holley’s unauthorized relocation to Baton Rouge. Concerning relocation, Mr. Holley asserted first that Ms. Holley had in fact “relocated” the child as contemplated under the Relocation Act, ie., that the proposed address in Baton Rouge exceeds the 75-mile restriction set forth in the relocation statutes and, second, that Ms. Holley should be prohibited from relocating C.H. to Baton Rouge because it is not in C.H.’s best interest.

At the hearing, Mr. Holly testified that he resides at 160 Citrus Road in Jefferson Parish. He testified that-he received correspondence dated March 28, 2017 from Ms. Holley’s counsel indicating that she intended to relocate C.H. to |fiBaton Rouge on or about May 28, 2017. He testified to his suspicions that Ms. Holley relocated with C.H. sometime between Halloween and Christmas of 2016 without his knowledge or the permission of the Court. He testified' that he searched MapQuest, Google maps, and AAA Direction to determine the distance between Ms. Holley’s Baton Rouge address and C.H.’s principal residence in Orleans Parish. He testified that Google Maps reflected the drive to be 75.7 miles and MapQuest reflected the drive as 75.1 miles.

Ms. Holley testified at trial that she is married to Mr. Richard Dickson, who lives and works in Baton Rouge. She testified that her mailing address is 9472 Boone Drive in Baton Rouge and that, since the April 26, 2017 restraining order was issued, she has resided with C.H. at 7300 Lakeshore Drive in New Orleans. She testified that she has abided by the restraining order and further that she has never prevented Mr. Holley from exercising visitation. Although she testified that a relocation to Baton Rouge would make visitation with Mr. Holley more difficult, she maintained that she would still drive to Jefferson Parish to allow Mr. Holley to exercise his visitation with C.H. Ms. Holley introduced into evidence a map reflecting that the mileage, in straight-line or radial miles, from the child’s principal residence in New Orleans to the proposed Baton Rouge address is 64 miles.

Ms. Holley discussed the MapQuest route suggested by Mr. Holley and testified that the route she takes from New Orleans to the Baton Rouge address involves exiting the interstate one exit closer to New Orleans than the route proposed by Mr. Holley, and traveling through residential streets. She testified that everyone in her neighborhood avoids taking the Essen Lane exit of the highway, which is the interstate exit reflected in the MapQuest and other search engines’ ^results, because the hospital near the interstate exit creates a significant amount of traffic. She stated that the route she takes “religiously” reflects a 73.8-mile drive on MapQuest from C.H.’s principal residence in New Orleans to the proposed Baton Rouge residence.

Mr. Richard Dickson testified that he is married to Ms. Holley and that he resides at 9472 Boone Drive in Baton Rouge. He testified as to his customary route he travels from Ms. Holley’s residence in New Orleans to his home in Baton Rouge, which travels through residential neighborhoods and reflects a 73.8-mile drive. He reiterated Ms. Holley’s testimony that the highway route proposed by Mr. Holley, reflecting a 75.7-mile drive, is not his customary route because it includes exiting the interstate next to a major hospital, which significantly increases travel time due to heavy traffic.

During the hearing, the trial judge made it clear that the only issue to be determined, initially, was whether the proposed relocation of C.H.’s principal residence would be considered a “relocation” to which the Relocation Act notice requirements would apply. When counsel attempted to question Ms. Holley on her reasons for moving to Baton Rouge, the trial judge instructed, “I think that would go to the [relocation] factors, if we got to the factors. But we are not there yet.” Counsel reiterated that “we’re limiting ourselves strictly to the number of miles. I would like to put on a relocation case, but I understand your Honor would prefer I not.” The trial judge stated on the record that the merits of relocation was not before the Court at that time.

The Court took a recess and indicated that, upon return, the hearing would continue on the issues of custody and visitation. During the recess, the parties and counsel attempted to reach a compromise on the issue of custody. However, the record indicates that Ms. Holley, who was pregnant at the time, experienced a|spanic attack and left the hearing to seek medical treatment. No consent judgment was reached and no agreement was read into the record.

At the conclusion of the recess, the trial judge returned to the bench and issued her ruling. As to Mr. Holley’s objection to relocation, she determined that “the intention of the legislature was the distance to mean traveling distance and not as-the-crow flies distance.” She found that “we are not crows” and determined that the “most commonly traveled route” should be utilized when calculating mileage under the relocation statutes. She consequently found that the distance between C.H.’s principal .place of residence in New Orleans and the proposed relocation address in Baton Rouge is more than 75 miles and, thus, the relocation statutes apply to this case.

On June 22, 2017, the trial judge issued a written judgment sustaining and granting Mr. Holley’s Objection to Ms. Holley’s “Unauthorized Relocation.” The judgment further granted Mr. Holley’s request for a preliminary injunction in the same form and substance as the temporary restraining order issued April 26, 2017, prohibiting Ms. Holley from removing the minor child from Jefferson or Orleans Parishes for any reason whatsoever.

The trial court issued a second judgment on June 26, 2017, titled an “Interim Judgment,” granting the parties joint legal custody of C.H. and implementing a 3-3-2 physical custody schedule and parenting guidelines. The trial court set a custody hearing for November 29, 2017.

[gLAW AND ANALYSIS

■ In brief to this Court, Ms. Holley asserts three assignments of error. In her first assignment of error, Ms. Holley contends that the trial court erred in applying the relocation statutes to the facts of this case.. She contends that the proposed move to Baton Rouge is not a “relocation” as contemplated under the Relocation Act because the proposed move does not exceed the statutorily provided. 75-mile restriction. Second, Ms. Holley contends that the trial court erred in issuing an overly restrictive injunction, prohibiting her from leaving Orleans and Jefferson Parishes with C.H, “for any reason whatsoever.” Third, Ms. Holley argues that the trial judge erred in issuing an interim custody order without any evidence presented relevant to the issue of custody and under the facts of this case.

For the following reasons, we first find that the trial judge committed an error of law in applying the relocation statutes to the facts of this case and we thus conduct a de novo review of the relocation issue. Upon our de novo review, we find that the proposed move to Baton Rouge is not a relocation contemplated under the Relocation Act because the distance between Mr. Holley’s residence and the Baton Rouge address is less than 75 radial miles. We therefore vacate the judgment-sustaining Mr. Holley’s objection to • relocation. We further find that the preliminary injunction issued, prohibiting Ms. Holley from.leaving Jefferson and Orleans Parishes with C.H. for any reason, is invalid because Mr. Holley failed to provide | ^security as required under La. C.C.P. art. 3610 and we, thus, vacate that portion of the trial court judgment. Finally, considering the interim custody order issued, we find that the trial judge improperly considered evidence not formally intro'duced and we vacate that judgment. We remand this matter to the trial court for further proceedings.

In her first assignment of error, Ms. Holley contends that the proposed move is not a “relocation,” as contemplated under the Relocation Act and defined in La. R.S. 9:355.1, et seq. Specifically, Ms. Holley contends that the trial judge erred in calculating the 75-mile distance restriction from the principal residence of the child in New Orleans to Baton Rouge, as provided in La. R.S. 9:355.2(B)(3), rather than from Mr. Holley’s domicile in River Ridge to Baton Rouge, as provided in La. R.S. 9:355.2(B)(2). Moreover, Ms. Holley argues that even if the 75 miles is calculated from C.H.’s principal residence in New Orleans pursuant to La. R.S.. 9:355.2(B)(3), the proposed move to Baton Rouge is still less than the statutory 75 miles when the distance is measured in radial or air miles, ie,, “as the 'crow flies,” not highway or surface miles as applied by the trial court. We agree.

The statutory provision at issue, La. R.S. 9:355.2(B)-provides, in pertinent part:

This Subpart shall .apply to a proposed relocation when any of the following exist: -
* sH #
(2) There is no court order awarding custody and.there is an intent to establish the principal residence of a - child at any location within the state that'is. at’a distance of more than seventy-five miles from the domicile of . the other parent. ,
(3) There is a court order awarding . custody and there is an intent to establish the principal residence of a ' child at any location within the state that is at a distance of more than seventy-five miles from the principal residence of the child at the time that the most recent custody decree was rendered.

luLouisiana’s relocation statutes, La. R.S, 9:355.1, et seq., govern the relocation of a child’s principal residence. La. R.S. 9:355.2(B) instructs that if there is no custody' order in effect, the relocation statutes apply if the child’s proposed new residence is 75 miles or more from the domicile of the other parent. If, however, there is a custody order in effect between the parties, then the relocation statutes apply when the child’s proposed residence is 75 miles or more from the principal residence of the child. Therefore, to determine the starting point from which the 75-mile restriction begins, a court must first determine whether a custody order was in effect at the time of the proposed relocation.

Our review of the record reflects that there was no custody order in effect at the time of the proposed relocation. Although Ms. Holley was previously granted temporary custody in connection with the protective order issued in Orleans Parish, that order expired as a matter of law and by its own terms in September 2015, long before the relocation hearing at issue. Further, although the trial judge issued a judgment concerning supervised visitation in April 2016, that judgment did not award custody.

Therefore, a review of the record reflects that there was no custody order in effect between the parties at the time of the filing of the objection to the relocation or at the time of the relocation hearing. Therefore, La. R.S. 9:355.2(B)(2), which provides that the 75 miles should be calculated from the domicile of the other parent, applies. In her judgment, the trial judge applied La. R.S. 9:355.2(B)(3j, as reflected by her finding that the proposed relocation was more than 75 miles “from the principal residence of the child.” We find that the trial judge applied the incorrect law in calculating the 75-mile restriction from the principal residence of the child. Because the'trial judge committed a prejudicial legal error in applying the incorrect law, we conduct a de novo review of the relocation issue. See Evans v. Lungrin, 97-0541 (La. 2/6/98), 708 So.2d 731, 735.

h P.Once the starting point for the 75-mile restriction is determined, the court must next determine whether a proposed relocation address is more than 75 “miles” from that starting point. The legal question presented, then, is whether “miles” as provided in the relocation statutes should be defined and calculated in straight line, radial miles, i.e. as the crow flies, or in surface or roadway miles using the most commonly traveled or shortest route available.

Ms. Holley contends that the traditional and customary definition of the word “mile” should apply. She asserts that a “mile” is a uniform measurement of distance in a straight line, or “as the crow flies.” Mr. Holley, on the other hand, contends that because the purpose of the relocation statutes is to assist relocating and non-relócating parents to share custody and maintain contact with the minor child, the most commonly traveled route of roadway or highway miles should be the applicable method of measurement.

The trial judge rejected Ms. Holley’s argument, opining that “we are not, crows,” and applied the commonly-used highways or roadways method of measurement, accepting the most common route as determined by the MapQuest map Mr. Holley introduced into evidence. For the reasons discussed below, we find that the straight line or “as the crow flies” method of measurement is the standard and most uniform method to measure distances under the relocation statutes.

. This is a res nova issue in Louisiana in the context of child relocation. The starting point in the interpretation of any statute is the. language of the statute itself. Faget v. Faget, 10-18 (La. 11/30/10), 53 So.3d 414, 420. A law shall be applied as written when it is clear and unambiguous and its application does not lead to absurd consequences. La. C.C. art. 9. If, however, the law is susceptible to different meanings, the statute must be interpreted in a light best conforming to the law’s purpose. La. C.C. art. 10. La. R.S. 1:3 instructs that courts shall read and | iaconstrue statutory-words and phrases in their context and in accordance with the common and approved usage of the language. Burnette v. Stalder, 00-2167 (La. 6/29/01), 789 So.2d 573, 577; Barron v. Hutzler, 16-485 (La. App. 5 Cir. 8/30/17), 225 So.3d 1161.

The Louisiana Supreme Court has acknowledged that the Louisiana Relocation Act was modeled after the American Academy of Matrimonial Lawyers Model Relocation Act. Curole v. Curole, 02-1891 (La. 10/15/02), 828 So.2d 1094, 1096, citing Edwin J. Terry, Kristin Proctor, P. Caren Phelan, & Jenny Womack, “Relocation: Moving Forward, or Moving Backward?” 15 Journal of the American Academy of Matrimonial Lawyers 167, 225 (1998). Many other states have enacted relocation legislation, or have jurisprudentially recognized the relocation factors and other provisions within the Model Act. (See, e.g., Harrison v. Morgan, 2008 OK CIV APP 68, P23, 191 P.3d 617, wherein the Oklahoma court found that its relocation legislation is "based on the ‘Model Relocation Act’ (the Act), which was prepared by the American Academy of Matrimonial Lawyers for consideration by state legislatures ‘as a template for those jurisdictions desiring a statutory solution to the relocation quandary[.]’ ” See also Dupre v. Dupre, 857 A.2d 242, 259, wherein Rhode Island jurisprudentially recognized the Model Act’s relocation factors and instructed that said factors should be considered in relocation cases; and W.H. v. S.M., 2016, Del. Fam. Ct. LEXIS 19, wherein a Delaware court recognized that although the legislature has not specifically adopted the Model Act, courts may consider the relocation factors provided in the Act, in addition to consideration of the best interest of the child.)

Our research reflects that, concerning the method of measurement of “miles” in a child relocation context, courts which have opined on the subject have found that the straight line or “as the crow flies” method of measurement is the most uniform and, in the absence of any contrary statutory language or provision, 114applies in child relocation cases. See, e.g., Carreiro v. Colbert, 5 N.Y.S.3d 327, 327, 45 Misc.3d 1221A (Sup. Ct. 2014); Bowers v. VanderMeulen-Bowers, 278 Mich. App. 287, 294, 750 N.W.2d 597, 601 (2008); Tucker v. Liebknecht, 86 So.3d 1240, 1242 (Fla. Dist. Ct. App. 2012). For example, a Florida court stated clearly that “[i]n the absence of any statutory or contractual provision governing the manner of measurement of distances, the general rule is that distance should be measured along the shortest straight line, on a horizontal plane and not along the course of a highway or along the usual traveled way,” Tucker v. Liebknecht, 86 So.3d at 1242. The Court further explained that, “utilizing a method of measurement other than the straight line method would create uncertainty and generate needless debate.” Id.

Upon our review of the law in this state and others, we find that, absent any contrary statutory language or governing provision, the straight-line or “as the crow flies” method of measurement is the most uniform method to measure distances and that such method should apply in Louisiana child relocation cases. Applying the straight-line measurement method to the facts of this case, we find .that the distance between Mr. Holley’s residence in River Ridge and the address for the proposed relocation in Baton Rouge is less than 75 radial or straight-line miles. Accordingly, we find that the Relocation Act does' not apply in this case and, thus, we reverse that portion of the trial court’s judgment sustaining Mr. Holley’s procedural objection to relocation. .

In her second assignment of error, Ms. Holley asserts that the trial judge erred in issuing an overly restrictive and vague preliminary injunction, prohibiting | isher from removing the minor child from Jefferson and Orleans Parishes “for any reason whatsoever.”

La. C.C.P. art. 3610 provides that “[a] temporary restraining order or preliminary injunction shall not issue unless the applicant furnishes security in the amount fixed by the court, except where security is dispensed with by law.” (emphasis added). The record before us does not reflect that the trial judge set any security in conjunction with the preliminary injunction at issue. Consequently, we find that the trial judge erred in granting the petition for preliminary injunction without requiring plaintiff to post security. Accordingly, the preliminary injunction is invalid and the trial court’s judgment as it relates to the granting of a preliminary injunction is vacated. See Cochran v. Crosby, 411 So.2d 654, 655 (La. App. 5 Cir. 1982).

In her third assignment of error, Ms. Holley contends that the trial judge erred in awarding Mr. Holley interim joint custody of C.H. under the facts of this case, where Mr. Holley has only previously exercised supervised visitation and where no evidence relevant to the issue of custody or care of, C.H. was introduced at the May 30, 2017 hearing.

Our review of the record reflects that no evidence was introduced at the May 30, 2017 hearing and that no stipulations or consents were entered on the record. However, it is apparent from the record that the trial judge considered the expert report of Dr. Shwery in rendering the interim judgment on the issue of custody.

11fiThe law is clear that evidence not properly and officially offered and introduced cannot be considered, even if it is physically placed in the record. Denoux v. Vessel Mgmt. Services, Inc., 07-2143 (La. 5/21/08), 983 So.2d 84, 88. Documents attached to memoranda do not constitute evidence, and cannot be considered as such on appeal. Id. Appellate courts are courts of record and may not review evidence that is not in' the appellate record, or receive new evidence. Id.; La. C.C.P. art. 2164. These principles are well established in this Circuit. See, e.g., Gulf Coast Bank and Trust Co. v. Eckert, 95-156 (La. App. 5 Cir. 5/30/95), 656 So.2d 1081, writ denied, 95-1632 (La. 10/6/95), 661 So.2d 474; Ray Brandt Nissan, Inc. v. Gurvich, 98-634 (La. App. 5 Cir. 1/26/99), 726 So.2d 474; Jackson v. United Services Auto. Ass’n Cas. Ins. Co., 08-333 (La. App. 5 Cir. 10/28/08), 1 So.3d 512; Wilson v. Beechgrove Redevelopment, L.L.C., 09-1080 (La. App. 5 Cir. 4/27/10), 40 So.3d 242; Anowi v. Nguyen, 11-468 (La. App. 5 Cir. 12/13/11), 81 So.3d 905; Tolmas v. Parish of Jefferson, 11-492 (La. App. 5 Cir. 12/29/11), 80 So.3d 1260. Accordingly, we find the trial judge erred as a matter of law in considering evidence not properly introduced, and we thus vacate the June 26, 2017 and the August 3, 2017 interim custody judgments.

For the reasons fully provided herein, we reverse the trial court’s June 22, 2017 judgment ihsofar as it sustained Mr. Holley’s objection to relocation and issued a preliminary injunction prohibiting Ms. Holley from removing C.H. from Orleans and Jefferson Parishes. We further vacate the trial court’s June 26, 2017 and August 3,2017 interim custody orders. We remand this matter to the trial court for further proceedings.

JUNE 22, 2017 JUDGMENT REVERSED IN PART; JUNE 26, 2017 AND AUGUST 3, 2017 JUDGMENTS VACATED; MATTER REMANDED

      . In brief to this Court, Mr. Holley asserts that the relocation judgment at issue, is a final, appealable judgment and asks this Court to dismiss Ms. Holley’s writ application. Upon our review of the entire record in this matter, we find that the trial court judgment at issue is an interlocutory, non-appeal-able judgment. The judgment sustaining Mr, Holley's objection to relocation determined that the relocation statutes in fact applied under the facts of this case and further determined that Ms. Holley failed to follow the statutory notice requirements under La. R.S. 9:355.2, Our review of the record reflects that the trial judge intentionally limited the hearing to the procedural objection to relocation only, i.e., whether the relocation statutes applied to the facts of this case, and did not consider the merits of the relocation issue, i.e., consideration of the relocation factors, or if the proposed move, whether a "relocation” under the statutes or not, was in C.H.’s best interest. Therefore, we find that the relocation judgment at issue is an interlocutoiy and non-appealable judgment.

      . Ms. Holley and C.H. are domiciled in Orleans Parish. The record reflects that Mr. Holley is domiciled in Jefferson Parish.

      . Ms. Holley alleged that she had not been properly served with Mr. Holley's petition for divorce; that the parties had other domestic litigation pending in the Civil District Court for the Parish of Orleans; and that the parties had previously certified that the Parish of Orleans was the proper venue for determination of community property and other incidental domestic issues between the parties.

      . The judgment further declared ’the parties separate in property and enjoined and prohibited the parties from encumbering or disposing of community property.

      . La. R.S. 9:355.4(A) provides:
      A person proposing relocation of a child’s principal residence shall notify any person recognized "as ¿ parent and any other person awarded custody or visitation under a court decree as required by R.S. 9:355.5.

      . The record.reflects that Mr. Holley made numerous attempts to determine whether Ms. Holley had relocated C.H. to Baton Rouge, to nq avail, On January 24, 2017, Mr. Holley forwarded correspondence to Ms. Holley's counsel inquiring whether Ms. Holley relocated C.H. to Baton Rouge and, if not, whether Ms. Holley intended to relocate C.H. Mr. Holley forwarded additional correspondence on March 7, 2017, stating that Ms. Holley had failed to respond to Mr. Holley's previous correspondence concerning possible relocation and, again, inquiring whether Ms, Holley had relocated C.H. to Baton Rouge or planned to do so in the near future. On March 28, 2017, Mr, Holley forwarded additional correspondence to "Ms. Holley’s counsel, again stating that he had received no response from his previous correspondence concerning relocation, In that correspondence, Mr. Holley additionally attached Interrogatories and Request for Production of Documents, In correspondence dated March 28, ■ 2017, Ms. Holley finally responded to Mr, Holley’s inquiries and notified Mr, Holley of her intent to relocate C.H. to Baton Rouge..

      . La. R.S. 9:355.5 provides:,
      Notice of a proposed relocation of the principal residence of a child shall be given by registered or certified mail, return receipt requested, or delivered by commercial courier as defined in R.S. 13:3204(D), to' the last known address of the person entitled to notice under R.S. 9:355.4 no later than any of the following:
      (1)The sixtieth day before the date of the proposed relocation.
      (2)The tenth day after the date that the person proposing relocation knows the information required to be furnished by Subsection B of this 'Section, if the person did not know and could not reasonably have known the information in sufficient time to provide the sixty-day notice, and it.is not reasonably possible to extend the time for relocation of the child,
      B. The following information shall be included with the notice of intended relocation of the child:
      (1) The current mailing address of the person proposing relocation.
      (2) The intended new residence, including the specific physical address, if known.
      (3) The intended new mailing address, if not the same.
      (4) The'home and cellular telephone numbers of the person-proposing relocation, if -.known.
      (5) The date of the proposed relocation.
      (6) A brief statement of the specific reasons for the proposed Relocation of a child,
      (7) A proposal for a revised schedule of physical custody or visitation with the child.
      (8) A statement that the person entitled to object shall make any objection' to the proposed relocation in writing by. registered or certified mail, return receipt requested, within thirty days -of receipt of the notice and should seek legal advice immediately.
      C. A person required to give notice of a proposed relocation shall have a continuing duty to provide the information required by this Section as that information becomes known.

      . Concerning Mr. Holley’s complaint that he is unaware of C.H.'s whereabouts, Ms. Holley responded, "he is not regularly in the know for all the child’s day to day going ons, neither does he need to be.”

      . Mr. Holley introduced copies of various maps into evidence, reflecting the recommended routes from C.H.’s principal residence to Ms. Holley’s proposed address in Baton Rouge, reflecting a drive of 75,7 miles with GoogleMaps, 75.1 miles with MapQuest, and 75,7 miles with AAA maps.

      . In her judgment, the trial judge further denied Mr. Holley’s request for attorney fees and costs under the relocation statutes. The trial court judgment also denied Ms. Holley’s request for a TRO and for attorney fees.

      , This Court issued an order to the trial judge during the pendency of this writ application, instructing her to combine her June 22 and June 26,' 2017 judgments to one, amended judgment, pointing out two inconsistencies in the judgments. As to which law the trial judge applied in ruling on relocation, this Court found that “while it seems the district court applied La. R.S. 9:355.2(B)(3) in its June 22, 2017 judgment granting Mr. Holley's Objection to Ms. Holley’s Unauthorized Relocation of the Minor Child’s Residence, the district court seemed to apply La. R.S. 9:355.2(B)(2) in its June 26, .2017 judgment ordering that '[njeither parent shall move the residence of the child out of state or within the state at a distance of more than 75 miles from the other parent without giving the other parent written notice[.]’ ” As to the June 26, 2017 interim custody order, this Court found that the judgment’s language that "[njeither parent shall move the residence of the child out of state or within the state at a distance of more than 75 miles...” could be inconsistent with the June 22, 2017 judgment language, enjoining Ms. Holley from removing the minor child out of Jefferson and Orleans Parishes for any reason whatsoever. In our order, this Court stated, “we cannot discern what the district court meant by its June 22, 2017 order enjoining Ms. Holley or any other person acting on her behalf from 'removing the minor child from the jurisdiction of this Court and the New Orleans area, particularly, the Parish of Jefferson and the Parish of Orleans, for any reason whatsoever, •pending order of this Court.’ ” This Court sought clarification to discern whether the trial judge’s June 22, 2017 judgment intended to prohibit Ms. Holley from relocating C.H. outside of Jefferson and Orleans Parishes or to prohibit- Ms. Holley from removing C.H. from those parishes for any reason, including visiting with family or attending a doctor’s appointment, In her response to this court, the trial judge declined to amend the judgments but rather issued a per curiam opinion. , In her per curiam, the trial judge opined that the judgment as to Mr. Holley’s objection to relocation was a final, appealable judgment and, thus, did not prepare one, amended judgment as ordered. Instead, the trial judge amended the June 26, 2017 interim custody order to remove the co-parenting guidelines language related to relocation. The trial judge did not, however, amend the, June 22, 2017 judgment sustaining Mr. Holley’s objection to relocation, which applied La. R.S. 9:355.2(B)(3). The trial judge further did not .address this Court’s concern as to the preliminary injunction. Because the trial judge did not address the preliminary injunction issue, we assume the most restrictive interpretation of the preliminaiy injunction in our analysis, i.e., that it is intended to prohibit Ms. Holley from removing C.H. out of Jefferson and Orleans Parishes “for any reason whatsoever.”

      . In other contexts, the United States Fifth Circuit Court of Appeals has opined that, absent any contrary statutory language or provision, the straight line or "as the crow flies” method to measure distances should be applied. See Sprow v. Hartford Ins. Co., 594 F.2d 412, 417 (5th Cir. 1979), wherein the Fifth Circuit found that "the straight lines or 'as the crow flies’ measure of air miles,” is "a uniform standard, offering more certainty than a measure based on road miles, which will continually fluctuate as new and different routes are constructed.”

      . When an injunction is issued without security, this Court has stated that it is “faced with two alternatives, remand the case to the trial court with directions that security be furnished or reverse the judgment that granted the preliminary injunction.” Advanced Collision Servs. v. Dep't of Transp., 631 So.2d 1245, 1247 (La. App. 5 Cir. 1994). While other circuits have held that this decision is based upon the "totality of the circumstances” and that a remand may be appropriate for judicial efficiency when the grounds for the injunction are clear (See High Plains Fuel Corp. v. Carto Intern. Trading, Inc., 640 So.2d 609 (1st Cir. 1994); Stuart v. Haughton High School, 614 So.2d 804 (2d Cir. 1993); Liberty Bank & Trust Co. v. Dapre-mont, 844 So.2d 877 (4th Cir. 2003); Hernandez v. Star Master Shipping Corp., 653 So.2d 1318 (1st Cir. 1995) and the cases cited therein), this Circuit has consistently found that the language provided in La. C.C.P. art. 3610, requiring security for the issuance of a preliminary injunction, is mandatory. Moreover, under the facts of this case, we find that the injunction prohibiting Ms. Holley from removing C.H. from Jefferson and Orleans Parishes, for "any reason whatsoever,” is overly restrictive and an abuse of the trial judge’s discretion. Accordingly, we decline to remand this matter and find that the injunction is, as a matter of law, invalid.


source: Caselaw Access Project

author: CHAISSON, J.

license: Public Domain

text:
    H3 AESTHETICS AND DERMATOLOGY, LLC v. CELTIC CROSS CONSTRUCTION, LLC and Misha Kachkachishvili
    NO. 17-CA-344
    Court of Appeal of Louisiana, Fifth Circuit.
    November 29, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE, H3 AESTHETICS AND DERMATOLOGY, Stephen K. Conroy, Amanda D. Hogue
    COUNSEL FOR DEFENDANT/APPELLANT, MISHA KACHKACHISHVI-LI, Leslie J. Hill
    Panel composed of Judges Jude G. Grávois, Marc E. Johnson, and Robert A. Chaisson
   CHAISSON, J.

I t On July 15, 2016, HB Aesthetics and Dermatology, LLC (“H3”), filed a petition for damages in the 24th Judicial District Court in Jefferson Parish naming as defendants Celtic Cross Construction, LLC and Misha Kachkachishvili in a dispute arising out of a construction buildout of doctor’s offices and medical spa on property located on Bienville Street in New Orleans.

During the course of the litigation, H3 filed a motion to compel discovery wherein it requested the trial court to compel Mr. Kachkachishvili to respond to interrogatories and requests for production that it had propounded upon him. Four days before the scheduled hearing on the motion to compel, Mr. Kachkachishvili produced responses to the discovery. After the hearing on the motion, the trial court rendered judgment in which it declared the Motion to Compel Discovery moot because Mr. Kachkachishvili had produced the discovery responses; however, the trial court ordered Mr. Kachkachishvili to pay attorney’s fees and costs associated with the motion. It is froni that portion of the judgment that ordered‘ him to pay attorney’s fees and costs that Mr. Kachkachishvili now appeals.

DISCUSSION

.Pursuant to Louisiana Code of Civil Procedure article. 1841, a judgment that does not determine the merits of a case but only' preliminary matters in the course of the action is an interlocutory judgment. An interlocutory judgment is appealable only when expressly provided by law. La. C.C.P. art. 2083(C). A judgment declaring a motion to compel discovery moot and awarding attorney’s fees and costs for the bringing of that motion is an interlocutory judgment. Gorvine v. Travelers Ins. Cos., 98-0287 (La. App. 4 Cir. 11/18/98), 724 So.2d 248, 250; Succession of Holliday, 576 So.2d 1155, 1156 (La. App. 3 Cir. 1991), writ denied, 581 So.2d 708 (La. 1991). We therefore have no appellate jurisdiction to consider the merits of the trial court’s ruling. An appeal may be dismissed at any time for | Jack of jurisdiction of the appellate court. La. C.C.P. art. 2162; Green Tree Servicing, LLC v. Chopin, 16-244 (La. App. 5 Cir. 12/07/16), 207 So.3d 631; O’Krepki v. O’Krepki, 17-130 (La. Ápp. 5 Cir. 10/25/17), 229 So.3d 647, 2017 WL 4799981, 2017 La. App. LEXIS 2047. Accordingly, this appeal is dismissed.

APPEAL DISMISSED


author: MURPHY, J.

text:
    IN RE: MEDICAL REVIEW PANEL PROCEEDINGS FOR the CLAIM OF Hector L. ALONSO
    NO. 17-CA-230
    Court of Appeal of Louisiana, Fifth Circuit.
    December 13, 2017

      PLAINTIFF/APPELLANT, HECTOR L. ALONSO AND MARIA D. ALONSO, Hector L. Alonso, In Proper Person
    COUNSEL FOR DEFENDANT/AP-PELLEE, D’CHEL CLARK THIBODE, RN AND MICHELLE KRAJCE, RN, Peter E. Sperling, James P. Waldron
    COUNSEL FOR DEFENDANT/AP-PELLEE, KIMBERLY BURKE, CRNA, C. William Bradley, Jr., Benjamin J. Biller
    Panel composed of Judges Marc E. Johnson, Robert M. Murphy, and Hans J. Liljeberg
   MURPHY, J.

| -¡Hector Alonso, in proper person, appeals the trial court’s November 7, 2016, judgment sustaining the peremptory exceptions of prescription filed by defendants, D’Chel Clark Thibode, R.N., Michelle Krajce, R.N., and Kimberly C. Burke, CRNA, and dismissing, with prejudice, Mr. Alonso’s medical malpractice complaint filed with the Louisiana Patient’s Compensation Fund. For the following reasons, we find that defendants’ exceptions were properly sustained and affirm the trial court’s judgment.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On July 14, 2016, Mr. Alonso filed a request for medical review panel with the Louisiana Patient’s Compensation Fund (hereinafter “LPCF”)'alleging that defendants committed medical malpractice during his .April 29, 2011 cataract surgery performed by Dr. Shehab Ebrahim at Tulane-Lakeside Hospital. In his panel request, Mr. Alonso averred that he awoke from anesthesia during surgery in excruciating pain and implored the medical staff to stop the surgery to no avail. According to Mr. Alonso, he .was forcefully -held down, tape was placed over his mouth restricting his ability to breathe, and the surgery continued. He claimed that defendants herein held him down and fought him, causing one of his teeth to dislodge, which he apparently swallowed. When surgery was completed, Mr. Alonso claimed he was taken to radiology for X-rays from which it was later confirmed that the dislodged tooth had settled in his stomach. Mr. Alonso alleged [¡>that defendants failed to properly treat him, to use proper procedures, to take adequate measures to insure his safety, restricted his liberty, and committed an assault and battery upon his person.

In response to Mr. Alonso’s request for medical' review panel, on September 8, 2016 defendants, Nurse Thibode and Nurse Krajce, filed a petition to institute discovery in the medical review panel proceeding. See La. R.S. 40:1299.47. Shortly thereafter, Nurse Thibode and Nurse Krajce filed an exception of prescription in the medical review panel discovery suit seeking dismissal of the medical review panel proceedings on the basis that, pursuant to the time periods set forth by La, R.S. 9:5628(A), Mr. Alonso’s July 14, 2016 panel request, filed more than one year after the alleged acts of malpractice, was prescribed on its face. Defendant, CRNA Burke, filed an identical exception in the same proceeding. In support of their respective exceptions, defendants attached two exhibits: (1) a copy of Mr.- Alonso’s July 14, 2016 complaint with the LPCF made the subject of the instant appeal,- and (2) the prior January 21, 2016 judgment rendered in Mr. Alonso’s medical malpractice action against Tulane-Lakeside and Dr. Ebrahimi In opposition, Mr. Alonso submitted numerous exhibits, including letters from the LPCF confirming that each defendant is a qualified health care provider.

Defendants’ exceptions came for hearing on November 7, 2016. The exhibits attached to defendants’ exceptions were submitted on the record and offered into evidence. Mr. Alonso, appearing in proper person, submitted evidence establishing defendants as qualified health care providers, and introduced an October 7, 2016 letter directed to Mr. John Tarlton Olivier, Clerk of Louisiana Supreme Court, from Susan Gremillion, Medical Malpractice Compliance Director for the LPCF, advising that the parties had, not been able to agree on the selection |sof a chairman for the panel and requesting that a list of attorney names be submitted to the LPCF in order that the selection process could timely be completed. Mr. Alonso submitted no further evidence.

At the close of the hearing, the trial judge issued an oral ruling sustaining defendants’ exceptions stating the following, in pertinent part:

Pursuant to Louisiana Revised Statute 9:5628(A), [the] prescriptive period for medical malpractice is within one year from the date of the discovery, but no greater than three years from the date of the event, alleged act, omission and neglect.
Pursuant to the exhibits offered by all parties, the Court considering the Louisiana Compensation Fund’s letters, the date of the alleged offense was ... April 29, 2011. The matter is prescribed. The Exception is granted. The Exception of Prescription, again, is granted. It is clearly outside the one year from the date of the alleged malpractice. And clearly, even if you use a discovery date, which no evidence was presented to this Court, but if discovery was after April 29th, it is still far past the three-year period as well.

Judgment süstaining defendants’ exceptions and dismissing Mr. Alonso’s request for medical review panel, with prejudice, was signed on November 7, 2016. It is from this judgment that Mr. Alonso brings the instant appeal,

ASSIGNMENT OF ERROR

Mr. Alonso alleges the trial court erred in sustaining defendants’ exceptions of prescription on the basis that the filing of his original request for medical review panel against Tulane-Lakeside Hospital and Dr. Shehab Ebrahim, alleged tortfeasors, interrupted or suspended his malpractice claims against Nurses Thibode and Krajce and CRNÁ Burke. Further, Mr. Alonso argues that it was not |¿until July 14, 2016 that he “discovered” he had not included Nurses Thibode and Krajce and CRNA Burke as defendants in his original panel request-

STANDARD OF REVIEW

The Louisiana Supreme Court in London Towne Condominium Homeowners’ Ass’n v. London Towne Co., 06-401, p. 4 (La. 10/17/06), 939 So.2d 1227, 1231, noted that: “When prescription is raised by peremptory exception, with evidence being introduced at the hearing on the exception, the trial court’s findings of fact on the issue of prescription are subject to the manifest error-clearly wrong standard of review.” Id., 06-401 at p. 4, 939 So.2d at 1231; Carter v. Haygood, 04-0646, p. 9 (La. 1/19/05), 892 So.2d 1261, 1267. Under the manifest error standard of review, a factual finding cannot be set aside unless the appellate court finds that it is manifestly erroneous or clearly wrong. Smith v. Louisiana Dept. of Corrections, 93-1305 (La. 2/28/94), 633 So.2d 129, 132; Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La. 1993). In order to reverse a fact finder’s determination of fact, an appellate court must review the record in its entirety and find (1) that a reasonable factual basis does not exist for the finding, and (2) that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Id. The appellate court must not re-weigh the evidence or substitute its own factual findings because it would have decided the case differently Id.; Pinsonneault v. Merchants & Farmers Bank & Trust Co., 01-2217, p.11 (La. 4/3/02), 816 So.2d 270, 278-79.

LAW AND DISCUSSION

Prescription in medical malpractice actions is governed by the provisions of La. R.S. 9:5628, which provides, in pertinent part:

A. No action for damages for injury or death against any physician, chiropractor, nurse, licensed midwife practitioner, dentist, psychologist, optometrist, hospital or nursing home duly licensed under the laws of this state, or community blood center or tissue bank Las defined in R.S. 40:1299.41(A), whether based on tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect; however, even as to claims filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect.
B. The provisions of this Section shall apply to all persons whether ■ or not infirm or under disability of any kind and including minors and interdicts. [Emphasis supplied.]

The Louisiana Supreme Court has noted that La. R.S. 9:5628 sets forth more than one prescriptive period, because it “initially ... coincides with La. C.C. art. 3942’s basic one year prescriptive period for delictual actions, coupled with the ‘discovery’ exception of [Louisiana’s] jurisprudential doctrine of contra non valentón” Bailey v. Khoury, 04-0620, 04-0647, 04-0648, p. 16 (La. 1/20/05), 891 So.2d 1268, 1275, quoting Campo v. Correa, 01-2707, p. 8 (La. 6/21/02), 828 So.2d 502, 508 and Hebert v. Doctors Memorial Hospital, 486 So.2d 717, 723 (La. 1986). In short, La. R.S. 9:5628 sets forth two prescriptive periods within which to bring a medical malpractice action; namely, one year from the date of the alleged act or one year from the date of discovery, “with the qualification that the contra non valentum type exception to prescription embodied in the discovery rule is expressly made inapplicable after three years from the act, omission or neglect.” Borel v. Young, 07-0419, p. 53 (La. 11/27/07), 989 So.2d 42, 69; Campo, 01-2707 at p. 16, 828 So.2d at 509, quoting Hebert, 486 So.2d at 724-725.

Generally, prescription statutes are strictly construed against prescription and in favor of the claim sought to be extinguished by it. Bailey, 04-0620, 04-0647, 04-0648 at p. 16, 891 So.2d at 1275. Ordinarily, the movant bears the burden of proof on trial of the peremptory exception, including the objection of prescription. SS v. State ex rel. Dept. of Social Services, 02-831, p. 7 (La. 12/4/02), 831 So.2d 926, 931. It is only where a petition reveals on its face that prescription has run that the burden shifts to the plaintiff to show that his action has not prescribed. Id. See also Campo, 01-2707 at p. 7, 828 So.2d at 508.

/ Mr. Alonso’s medical malpractice action is prescribed on the face of his complaint. The complaint was filed with the LPCF on July 14, 2016, and alleged that the medical malpractice by defendants occurred on April 29, 2011. Thus, the burden shifted to Mr. Alonso to show that his action was not prescribed. We find that Mr. Alonso failed to carry his burden.

On appeal, Mr. Alonso contends that the timely filing of his request for medical review panel on March 30, 2012 against Tulane-Lakeside and Dr. Ebra-him, whom he alleged were “jointly and in solido” liable with Nurses Thibode and Krajce and CRNA Burke, interrupted or suspended his claims against defendants for 90 days following notification of the panel’s issuance of its opinion on August 28, 2014.B Additionally, Mr. Alonso contends that his belated “discovery’ on July 14, 2016, that defendants herein had been omitted from his ^original panel request, gave him three additional years to file a request for medical review panel against them. According to Mr. Alonso’s calculations, prescription against defendants herein does not run until November 28, 2018, and thus, the July 14, 2016 filing of the instant LPCF panel request was timely. We disagree and find that Mr. Alonso’s calculations and application of La. R.S. 9:5628 are misplaced.

The record reflects that Nurses Thibode and Krajee and CRNA Burke were present during Mr. Alonso’s eye surgery on April 29, 2011. By all accounts, defendants’ relationship to Mr. Alonso began and ended that same day. Applying La. R.S. 9:5268(A), he had until April 29, 2012, to institute an action against defendants for their alleged malpractice. The fact that Mr. Alonso erroneously or mistakenly omitted defendants’ names from his original panel request does not constitute a basis for applying the doctrine of contra non valentum. Even if the doctrine did apply, which application is not supported by any evidence or documentation contained in the record on appeal, pursuant to the express language set forth in La. R.S. 9:5628(A), Mr. Alonso’s claims against defendants prescribed at the latest on April 29, 2014, three years from the date of the alleged act, omission or neglect. Mr. Alon-so’s request for medical review panel filed on July 14, 2016, five years after the alleged act, omission or neglect, is clearly too late and barred by prescription. See Borel, 07-0419 at p. 53, 989 So.2d at 69. See also Richard v. Tenet Health Systems, Inc., 03-1933 (La. App. 4 Cir. 4/14/04), 871 So.2d 671.

IsFor the foregoing reasons, we agree with the trial court judgment sustaining defendants’ peremptory exceptions of prescription and finding that all of Mr. Alon-so’s claims against Nurses Thidode and Krajee and CRNA Burke are outside the one and three-year prescriptive periods pursuant to the dictates of La.R.S. 9:5628(A). Accordingly, we affirm the trial court’s judgment dismissing Mr. Alonso’s claims, with prejudice, against D’Chel Clark Thibode, R.N., Michelle Krajee, R.N., and Kimberly C. Burke, CRNA.

AFFIRMED

      . The record reflects that on March 30, 2012, Mr. Alonso filed a complaint with the LPCF, as well as a petition for damages in the trial court, naming as defendants, University Healthcare System, L.C. d/b/a Tulane-Lakeside Hospital and Dr. Shehab Ebrahim. The medical review panel issued its decision on August 28, 2014 finding there was no breach of the standard of care. Subsequently, on January 21, 2016, Mr, Alonso’s petition for damages was dismissed, without prejudice, in connection with the trial court’s granting of an exception of prematurity in favor of Tulane-Lakeside and Dr. Ebrahim. The trial court's judgment was thereafter affirmed in Alonso v. Tulane Univ. Med. Ctr., 16-420 (La. App. 5 Cir. 12/7/16), 215 So.3d 355, writ denied, 17-0184 (La, 3/24/17), 216 So.3d 816.

      . La. R.S. 40:1299.47(B)(2)(a) allows for a qualified health-care provider to raise an exception during the pendency of the medical review panel proceeding.

      . Although the subject complaint filed by Mr. Alonso, with the LPCF on July 14, 2016 is styled "Amended Complaint,” "RE: Hector Alonso v. M.D. Shehsb [sic] A. Ebrahim, Dr. Anne Panaggo McConville, University Healthcare System d/b/a Tulane Nuiversity [sic] Hospital and Clinic, Tulane Lakeside Hospital of LA, Chavis Kimberly, CRNA, Kracje [sic] Michelle G. RN, Clarrthibode [sic] O’Chel [sic], Scrub,” the record reflects that the original medical review panel had previously issued its opinion in the matter against Dr. Ebrahim and Tulane in August 2014. In short, there was no pending complaint with the LPCF for Mr. Alonso to amend.

      . La. R.S. 40:1299.47(A)(2)(a) provides, in pertinent part:
      The filing of the request for a review of a claim shall suspend the time within suit must be instituted, in accordance with this Part, until ninety days following notification, by certified mail, as provided in Subjection J of this Section, to the claimant or his attorney of the issuance of the opinion by the medical review panel, in the case of those health care providers covered by this Part, or in the case of a health care provider against whom a claim has been filed under the provisions of this Part, but who hits not been qualified under this Part, until ninety days following notification by certified mail to the claimant or his attorney by the board that the health care provider is not covered by this Part. The filing of a request for review of a claim shall suspend the running of prescription against all joint and solidary obligors, and all joint tortfea-sors, including but not limited to health care providers, both qualified and not qualified, to the same extent that prescription is suspended against the party or parties that are subject of the request for review.

      . Other than the judgment rendered in the prior case against Dr. Ebrahim and Tulane-Lakeside Hospital dismissing Mr. Alonso's medical malpractice claims against them in connection with an exception of prematurity, which judgment was introduced into evidence by defendants at the hearing on the exception, the record on appeal is devoid of any evidence or documentation relative to Mr. Alon-so’s suit or his complaint filed with the Louisiana Patient Compensation Fund against Dr. Ebrahim and Tulane-Lakeside Hospital for the alleged malpractice that occurred on April 29, 2011 during this eye surgery.

      . Though La. R.S. 40:1299.47(A)(2)(a) provides for a 90-day period following notification of the medical review panel's decision within which to bring suit against alleged joint tortfeasors, in this case, Mr. Alonso's claims against Nurses Thibode and Krajee and CRNA Burke had already prescribed because the three-year limitation on prescription for medical malpractice actions set forth in La. R.S. 9:5628(A) had elapsed.


author: GREENLEE, J.,

text:
    Joe REEL, Appellant v. Sanford WARREN, Appellee
    NO. 2016-CA-00745-COA
    Court of Appeals of Mississippi.
    05/23/2017
    Rehearing Denied August 29, 2017
    Certiorari Denied November 16, 2017

      ATTORNEY FOR APPELLANT: JOHN HUNTER STEVENS
    ATTORNEY FOR APPELLEE: JEREMY TRISTAN HUTTO
    BEFORE GRIFFIS, P.J., CARLTON AND GREENLEE, JJ.
   GREENLEE, J.,

FOR THE COURT:

¶ 1. Joe Reel sued Sanford Warren for injuries sustained in a motor-vehicle collision when Warren rear-ended Reel. Warren admitted liability, and the casé went to trial on damages. The jury awarded Reel $2,480.12.' Reel moved for a new trial or, in the alternative, additur or a judgment notwithstanding the verdict (JNO.V), which the trial court denied. Reel appeals the denial as error. Finding none, we affirm.

BACKGROUND

¶ 2. On August 21, 2009, Warren caused a motor-vehicle collision when he rear-ended a vehicle operated by Reel’s brother, in which Reel was a passenger, at the intersection of Highways 475 and 80 in Pearl, Mississippi. Warren admitted negligence, and the case proceeded to trial on the issue of damages. Reel submitted evidence of medical expenses totaling $10,914.12, and claimed neck and back pain as a result of the accident. Reel also asserted he sustained an injury to his cervical spine that necessitated medical treatment.

¶ 3. At' trial, Warren submitted photographs of Reel’s vehicle, an accident report from the Pearl Police Department that makes no mention of injuries sustained at the scene of the accident, and admissions from Reel that he proceeded from the accident scene to another location, to give an estimate for a prospective painting job and that he never went to. the emergency room. Warren testified that he was traveling approximately five' miles per hour when impact occurred, and that his vehicle only suffered a cracked headlight.

¶ 4. On direct examination, Reel and his wife both denied that Reel complained of neck pain prior to the accident. However, during, cross-examination, it was demonstrated that Reel complained of neck pain dating back to 2006 and had undergone magnetic resonance imaging because of said pain, and preaccident medical records demonstrated that Reel suffered from cervical-degenerative-disc disease. It was also shown that-Reel had a physical in November 2010, and his physician’s notes stated that Reel was “doing extremely well, not having any major problems.” Further, Reel admitted during direct examination that he fell at work in December 2011, yet denied any falls at work or home in his previous deposition. It was also demonstrated that Reel saw his physician in February 2012, that Reel told -his physician about the fall, and that the physician told Reel that the fall probably exacerbated his neck pain.

¶5. Warren’s medical expert testified that Reel’s preaccident complaints :of pain were consistent with cervical-degenerative-disc disease, that there was no evidence of any acute injury on Reel’s postaccident diagnostic- tests, and that based on comparisons of Reel’s pre- and postaccident testing, the accident did not change the condition of Reel’s neck. The jury found for Reel in the amount of $2,480.12. Reel moved for a new trial or, alternatively, for additur or a JNOV. The circuit court denied Reel’s motion. Reel now appeals,

DISCUSSION

¶ 6. On appeal, Reel asserts he was entitled to a new trial or additur because the jury awarded damages only for certain medical expenses.

¶ 7. Reel takes issue with the jury’s award because it only covered certain medical expenses and not other damages such as pain and suffering, other accident-related medical expenses, and future medical expenses. The amount of damages awarded is a jury question. Downs v. Ackerman, 115 So.3d 785, 790 (¶ 16) (Miss. 2013). “Because a jury award is not merely advisory, it generally will not be set aside unless so unreasonable as to strike mankind at first blush as being beyond all measure, unreasonable in amount[,] and outrageous.” Id. “Additurs represent a judicial incursion into the traditional habitat of the jury, and therefore should never be employed without great caution.” Id. It is the jury that determines a witness’s credibility at trial, and the weight and worth of his testimony. Burge v. Spiers, 856 So.2d 577, 580 (¶ 9) (Miss. Ct. App. 2003) (citing Odom v. Roberts, 606 So.2d 114, 118 (Miss. 1992)). The party seeking additur has the burden of proof. Id. at 579 (¶ 6); Downs, 115 So.3d at 790 (¶16).

¶ 8. The standard of review for the denial of a new trial is abuse of discretion. Cleveland Nursing & Rehab. LLC v. Estate of Gully, 206 So.3d 516, 521 (¶ 15) (Miss. 2016). We also review denial of addi-tur for abuse of discretion. Downs, 115 So.3d at 790 (¶ 16).

¶ 9. Reel argues that “[A] jury verdict awarding damages for medical expenses alone is against the overwhelming weight of the evidence.” Scott Prather Trucking Inc. v. Clay ex rel. Sanders, 821 So.2d 819, 822 (¶ 12) (Miss. 2002) (quoting Rodgers v. Pascagoula Pub. Sch. Dist., 611 So.2d 942, 945 (Miss. 1992)); see also Pham v. Welter, 542 So.2d 884 (Miss. 1989); Matkins v. Lee, 491 So.2d 866 (Miss. 1986); City of Jackson v. Ainsworth, 462 So.2d 325 (Miss. 1984). However, each case involving addi-tur must be decided on a case-by-case basis. Burge, 856 So.2d at 579 (¶ 5) (citing Green v. Grant, 641 So.2d 1203, 1208 (Miss. 1994)). Again, it is the jury that determines a witness’s credibility at trial, and the. weight and worth of his or her testimony. Id. at 580 (¶ 9) (citing Odom, 606 So.2d at 118).

¶ 10. Here, the jury was presented with Reel’s conflicting sworn testimony concerning his prior medical condition and previous injuries, and evidence that called into question the credibility of the expert-medical testimony presented on his behalf. Through the impeachment of Reel’s evidence as to causation of his damages, there was ample evidentiary support for the verdict returned by the jury. We will not disturb the jury’s finding, as the trial court did not abuse its discretion in ruling that the verdict was not against the overwhelming weight of the evidence. We also find the trial court did not abuse its discretion in denying an additur, as the jury’s verdict in no way evinced bias or prejudice. Thus, we find Reel’s arguments without merit.

CONCLUSION

¶ 11. We affirm the circuit court’s order denying Reel’s request for a new trial, or, in the alternative, additur or a JNOV,

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF RANKIN COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR, WILSON AND WESTBROOKS, JJ., CONCUR.

      . Conditions of additur are set out in Mississippi Code Annotated section 11-1-55 (Rev. 2014).

      . Though Reel also asserts the trial court erred in denying his motion for a JNOV, he provides no evidentiary support or caselaw for his argument; therefore, his argument is procedurally barred for lack of relevant authority. Arguments advanced on appeal must "contain the contentions of appellant with respect to the issues presented, and the reasons for those contentions, with citations to authorities, statutes, and parts of the record relied on," M.R.A.P. 28(a)(7). "Failure to comply with Mississippi Rule of Appellate Procedure 28(a)(7) renders an argument procedurally barred.” Martin v. State, 43 So.3d 533, 535 (¶ 10) (Miss. Ct. App. 2010).


author: WILSON, J.,

text:
    Jairus COLLINS a/k/a Jairus J. Collins a/k/a Jairus Jidon Collins a/k/a Jarius Collins a/k/a Jarius J. Collins, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-00422-COA
    Court of Appeals of Mississippi.
    05/23/2017
    Rehearing Denied August 29, 2017
    Certiorari Denied October 26, 2017

      ATTORNEY FOR APPELLANT: MICHAEL ADELMAN
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KATY TAYLOR GERBER ’
    BEFORE GRIFFIS; P.J., ISHEE, WILSON AND GREENLEE, JJ.
   WILSON, J.,

FOR THE COURT:

. ¶ 1. A jury-in the Forrest County Circuit Court convicted Jairus Collins of possession of a weapon by a convicted felon, and the court sentenced him, as a habitual offender, to life in the custody of the Mississippi Department of Corrections (MDOC) without the possibility of parole. Jairus subsequently filed a motion for a judgement notwithstanding the verdict (JNQV) or a new trial, which the trial court denied, and a timely notice of appeal. On appeal, Jairus argues that (1) the charge should have been dismissed with prejudice because his statutory and constitutional rights to a speedy trial were violated, (2) the verdict was against the overwhelming weight of the evidence, and (3) his sentence as a habitual offender violates the Mississippi Constitution. We find no error and affirm Jairus’s conviction and sentence.

FACTS AND PROCEDURAL HISTORY

¶2. On November 14, 2012, the grand jury indicted Jairus for murder (Count I) and possession of a weapon by a convicted felon (Count II). The indictment alleged that between December 7 and 9, 2011, Jairas (I) murdered Ebony Jenkins with deliberate design and (II) possessed a .40 caliber handgun. Jairas was indicted as a habitual offender under Mississippi Code Annotated section 99-19-83 (Rev. 2015).

¶ 3. On November 19, 2012, Jairas pled not guilty and filed a motion requesting that Count I and Count II be severed and tried separately. The State did not object to severing the charges for trial, and on December 17, 2012, the circuit court entered an order granting Jairus’s motion to sever.

f 4. Collins was convicted of murder following a jury trial in March 2013, and his motion for JNOV or a new trial was denied on April 15, 2013. However, the Mississippi Supreme Court reversed Jairus’s murder conviction on the grounds that the trial court erred by failing to suppress Jairus’s statement to police after he invoked his right to counsel, and by allowing a police officer to testify as a lay witness regarding the locations of Jairas’s and Jenkins's cell phones. Collins v. State, 172 So.3d 724, 744 (¶ 30) (Miss. 2015). The Supreme Court reversed and remanded the case for further proceedings consistent with its opinion. Id. The Supreme Court’s mandate issued on September 10, 2015.

¶ 5. On September 16, 2015, the State filed a motion in the circuit court to set the case for trial as to Count II of the indictment only. The circuit court set Count II for trial on February 23,2016.

¶ 6. On October 15, 2015, Jairas moved to dismiss Count II on the ground that trying him more than three years after he was indicted and pled not guilty would violate his right to a speedy trial under Mississippi Code Annotated section 99-17-1 (Rev. 2015) and the Constitution. The court held a hearing on Jairus’s motion on November 9, 2015. At the hearing, defense counsel acknowledged that Jairas requested that the charges against him be severed and tried separately, which resulted in some delay, and that Jairas never asserted his right to a speedy trial at any point prior to his motion to dismiss. Counsel further conceded that the State was not responsible for any delay through the sentencing and post-conviction motions in Jai-rus’s murder trial. At the conclusion of the hearing, the circuit court noted that Jairas was not entitled to dismissal based on the length of the delay alone, and the court denied the motion to dismiss Count II. The case then proceeded to trial on February 23-24, 2016.

¶ 7. Jessie Miles testified at trial that he purchased a .40 caliber Hi-Point handgun .from a pawn shop in Columbia, Mississippi. Records from the pawn shop were introduced showing that in February 2010 Miles purchased a Hi-Point handgun with the serial number X77860. Miles later had “a problem with [the] gun jamming.” Sometimes it would fire, but sometimes it would jam. Miles told Jairus’s brother, Joshia Collins, about his problem with the gun. Joshia told Miles that Jairas could fix it, so Miles spoke to Jairas. Jairas confirmed that he could fix the gun, so in November 2011, Miles “gave [Jairas] the gun so he could fix it.” Jairas never returned the gun.

¶8. Miles identified a gun introduced into evidence at trial as the gun he gave to Jairas in November 2011. However, he testified that it had been altered in two respects: black tape had been wrapped around the handle, and the serial number had been scratched off. Jeff Byrd, a crime scene investigator with the Hattiesburg Police Department, testified that he was able to reveal the gun’s serial number by applying a solvent and sandpaper to it. The serial number matched the number on the gun sold to Miles (X77860).

¶ 9. Jairus’s and Joshia’s father, Melven Collins, testified that between December 7 and 9, 2011, Jairas and Joshia arrived at his home in Hattiesburg. Melven testified that he noticed a “bag” in his sons’ vehicle that “alarmed” him. Melven picked up the bag and put it back down, and “it had weight to it.” Melven did not open the bag, but an “alarm went off’ in his mind, and he told his sons that “whatever it is, you need to get it away from this house.” Melven previously testified that he thought that the object in the bag was a gun, but when confronted with his prior testimony, he denied that he ever formed such an opinion.

¶ 10. Joshia admitted that he knew Miles, but he insisted that he never talked to Miles about Jairas repairing a gun and that he had never seen Miles’s gun. Joshia admitted that Melven told him and Jairas to “get out of his yard” because Melven was “uncomfortable” about something, but Joshia claimed that he did not know why Melven asked them to leave. Joshia further testified that he and Jairas left his father’s house, that he drove Jairas up Interstate 59 (1-59), that he stopped on the side of the highway, and that Jairas got out of the vehicle. However, Joshia testified at trial that he never saw a gun or a bag and that he had no idea why Jairas got out of the vehicle. Joshia previously gave a sworn statement that he knew that Jairas had a gun in the bag, that he drove Jairas to mile marker 118 on 1-59 to -dispose of the • gun, and that Jairas then exited the vehicle and disposed of the gun. However, when confronted with his prior statement, Joshia denied that he could recall a specific mile marker or that he ever saw the gun or bag. Joshia did admit that he led law enforcement to the area along 1-59 where they found the gun.

¶ 11. Lieutenant Brandon McLemore of the Hattiesburg Police Department testified that in December 2011, he and one or more other officers drove with Joshia north on 1-59 to the Vossburg exit, where Jairas told them that they could find the gun in the wood line nearby. McLemore testified that they told Joshia that they were looking for a gun and that Joshia directed them to the location of the gun. In-the wood line, the officers found a plastic bag with a gun inside. The gun had black electrical tape around the handle, and no fingerprints were recovered. McLemore testified that the tape was likely placed on the gun to prevent the collection of fingerprints.

¶ 12. Lori Beall, a forensic scientist with the Mississippi Crime Laboratory, testified as a firearms expert. Beall testified that she test-fired the gun four times, that it did not jam, and that it was operational.

¶ 13. The jury found Jairas guilty of possession of a weapon by a convicted felon. At sentencing, the State presented proof that Jairas had been convicted previously of armed robbery twice, burglary of a dwelling, and lewd and lascivious battery (in Florida). The circuit court found that Jairus’s prior convictions satisfied the requirements of section 99-19-83 and imposed a mandatory sentence of life without eligibility for parole. Jairas filed a motion for JNOV or a new trial, which was denied, and a timely notice of appeal.

¶ 14. Though not relevant to the issues raised in this appeal, we note that in May 2016, Jairas was retried, convicted, and sentenced to life without parole on Count I of the indictment. His appeal from that conviction and sentence has been assigned to this Court and docketed as Collins v. State, 2016-KA-01002-COA.

DISCUSSION

¶ 15. On appeal, Jairas argues that (1) his statutory and constitutional rights to a speedy trial were violated; (2) the jury’s verdict is against the overwhelming weight of the evidence; and (3) his sentence of life without parole is unconstitutional.

I. Speedy Trial

A. Statutory Right

¶ 16. Jairus first alleges a violation of "his statutory right to a speedy trial. Section 99-17-1 provides that “[u]nless good cause be shown, and a continuance duly granted by the court, all offenses for which indictments áre presented to the court shall be tried no later than two hundred seventy (270) days after the accused has been arraigned.” However, this Court has repeatedly “held that if a defendant fails to raise the statutory right to a speedy trial within 270 days of his arraignment, he acquiesces to the delay.” Whitaker v. State, 114 So.3d 725, 730 (¶ 18) (Miss. Ct. App. 2012) (quoting Roach v. State, 938 So.2d 863, 867 (¶ 9) (Miss. Ct. App. 2006)); accord, e.g., Mims v. State, 856 So.2d 518, 522 (¶ 11) (Miss. Ct. App. 2003); Malone v. State, 829 So.2d 1253, 1257 (¶ 11) (Miss. Ct. App. 2002) (citing Walton v. State, 678 So.2d 645, 649-50 (Miss. 1996)). The Supreme Court has also held that “a defendant may effectively waive his right to complain of not being tried within the 270-day period set out in [section] 99-17-1, when the defendant does not request or assert his right to a speedy trial or object to a delay, especially when the defendant fails to show any prejudice in the failure to be tried within the statutory 270-day period.” Guice v. State, 952 So.2d 129, 142 (¶ 28) (Miss. 2007) (citing Walton, 678 So.2d at 650).

¶ 17. Jairus was 'arraigned in November 2012 and was not tried until February 2016, which obviously was much more than 270 days later. However, Jairus failed to assert his statutory right to a speedy trial until October 2015, approximately three years after his arraignment, and his trial commenced only four months after he raised the issue. Under the precedent of this Court and the Supreme Court, Jairus’s delay in raising the issue waived his statutory right to be tried within 270 days of arraignment,

B. Constitutional Right

¶ 18. “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial ....” U.S. Const, amend. VI; accord Miss. Const, art. 3, § 26. “In determining whether a defendant’s [constitutional]. right, to a speedy trial has been violated, courts must analyze four factors: 1) the length of delay, 2) the reason for the delay, 3) the defendant’s assertion of his right to speedy trial, and 4) prejudice to the defendant.” Hurst v. State, 195 So.3d 736, 741 (¶ 11) (Miss. 2016) (citing Barker v. Wingo, 407 U.S. 514, 515, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972)). “[E]ach case should be considered on an ‘ad hoc basis’ and ... no one factor is outcome determinative.” Rowsey v. State, 188 So.3d 486, 493 (¶ 17) (Miss. 2015) (quoting Barker, 407 U.S. at 530, 92 S.Ct. 2182). The United States “Supreme Court, has held that courts must ‘engage in a difficult and sensitive balancing process’ of the four factors because none of the factors is ‘either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant.’” Reed v. State, 191 So.3d 134, 139 (¶ 8) (Miss. Ct. App. 2016) (quoting Barker, 407 U.S. at 533, 92 S.Ct. 2182).

1.Length of Delay

¶ 19. “The constitutional right to a speedy trial attaches ‘at" the'time of a formal indictment or information or élse the actual restraints imposed by arrest and holding to a criminal charge.’ ” Rowsey, 188 So.3d at 495 (¶ 24). The Mississippi Supreme Court has previously held that a delay of eight months or more is presumptively prejudicial. Id. Because the delay in this case was:, more than eight months, this factor weights against the State.

2.Reasons for the Delay

¶ 20. “Once the delay is deemed presumptively prejudicial, the burden shifts to the State to produce evidence justifying the delay and to persuade the trier of fact of the legitimacy of these reasons.” Reed, 191 So.3d at 139 (¶ 11). This Court must then determine whether the delay is attributable to the State or the defendant. McCormick v. State, 183 So.3d 898, 903 (¶ 18) (Miss. Ct. App. 2015). “Deliberate attempts to delay the trial in order to hamper the defense are weighed heavily against the State. On the other hand, ‘a more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant’ ” Hardy v. State, 137 So.3d 289, 299 (¶ 30) (Miss. 2014) (quoting Ben v. State, 95 So.3d 1236, 1242-43 (¶ 11) (Miss. 2012)).

¶ 21. Jairus concedes that the delay between his arrest and ⅛ first trial and sentencing on Count I of the indictment (murder) are not attributable to the State. However, Jairus insists that the nearly three-year delay between his initial sentencing on Count I and his trial on Count II is attributable to the State. Jarius alleges that the State “simply assumed” that his murder conviction would be affirmed— and that all delay based on this assumption should be weighed against the State.

¶ 22. The State argues that the delay was caused' by Jairus’s motion to sever the charges against him for a separate trial. Citing Baine v. State, 604 So.2d 258, 264 (Miss. 1992), the State argues that delays due to a defendant’s motion to sever are not chargeable to the State. In the trial court, the State also argued that considerations of “judicial economy” weighed against burdening the court system with a trial for a defendant who had already been sentenced to life without parole on á separate charge. However, Jairus’s motion to sever did not preclude the State from trying him on Count II throughout the pen-dency of his appeal on Count I. And, in general, the constitutional speedy trial clock is not tolled simply because the defendant is already serving a sentence on a separate charge. See Smith v. Hooey, 393 U.S. 374, 378-79, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969). Ultimately, “[i]t is the burden of the State to see that a defendant receives a speedy trial” and “to show good cause for [any] delay.” Vickery v. State, 535 So.2d 1371, 1377 (Miss. 1988).

¶ 23. As we explain below, under applicable precedent, Jairus’s speedy trial claim fails even .if we. charge .the State, with responsibility for the delay between Jai-rus’s initial sentencing on Count I and his trial on Count II. Therefore, for purposes of this appeal, we will assume that this period of delay should be weighed against the State.

3.Assertion of the. Right to a Speedy Trial

¶24. “[T]he failure to assert the right to á speedy trial ‘will make it difficult for a defendant to prove he was denied a speedy trial.’ ” Fisher v. State, 532 So.2d 992, 996 (Miss. 1988) (quoting Barker, 407 U.S. at 531-32, 92 S.Ct. 2182). Furthermore, “a motion to dismiss does not equate to an assertion of the right to a speedy trial.” Moffett v. State, 49 So.3d 1073, 1087 (¶ 39) (Miss. 2010).

¶25. As discussed above, Jairus first mentioned his right to a speedy trial almost three years after his arraignment, at which point his trial was already scheduled to be held in only four months. Even then, he sought only dismissal of the indictment, not a speedy trial. Accordingly, this factor weighs against Jairus.

4. Prejudice

¶ 26. “To determine whether the delay resulted in actual prejudice the Court considers three interests that the right to a speedy trial was meant to protect: ‘(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.’ ” Taylor v. State, 162 So.3d 780, 787 (¶ 16) (Miss. 2015) (quoting Jenkins v. State, 947 So.2d 270, 277 (¶21) (Miss. 2006)). “Of these three interests, the last is the most important; and when violated, the most prejudicial to the defendant.” Hersick v. State, 904 So.2d 116, 123 (¶ 18) (Miss. 2004). “Generally, proof of prejudice entails the loss of evidence, death of witnesses, or staleness of an investigation.” McCormick, 183 So.3d at 903 (¶ 21) (quoting Sharp v. State, 786 So.2d 372, 381 (¶ 19) (Miss. 2001)). Jairus bears the burden of showing actual prejudice, “since the defendant is clearly in the best position to show prejudice under [this] prong.” See Johnson v. State, 68 So.3d 1239, 1245 (¶ 16) (Miss. 2011).

¶ 27. On appeal, Jairus fails to articulate any prejudice. He simply states that the lengthy delay was “obviously prejudicial.” He fails to identify any way in which his defense was prejudiced or any oppression or hardship caused by the delay in trial on Count II. The Supreme Court has held that a defendant fails to establish actual prejudice by “simply repeating the factors to be considered” with “nary a scintilla of evidence to support his claims.” Taylor, 162 So.3d at 787 (¶ 16). Jairus likewise has failed to establish any prejudice whatsoever.

¶28. To summarize, the length of the delay weighs against the State. We will also assume that the reason for the delay weighs against the State, as the State was not precluded from bringing Jairus to trial during the pendency of his appeal on Count I. However, Jairus never demanded a speedy trial. Indeed, he did not mention the right for almost three years, and when he finally did raise the issue, his trial was only four months away. Most important, Jairus fails to articulate any prejudice whatsoever. Balancing these factors, we agree with the trial judge that there was no violation of Jairus’s constitutional right to a speedy trial. See Taylor, 162 So.3d at 787 (¶ 17) (holding that, notwithstanding a lengthy and presumptively prejudicial delay, there is no speedy trial violation where there is no evidence of actual prejudice and “the other factors are neutral or only slightly in [the defendant’s] favor, at best”); accord Reed, 191 So.3d at 141 (¶ 21).

II. Weight of the Evidence

¶29. Jairus argues that the trial judge erred by denying his motion for a new trial because the verdict was against the overwhelming weight of the evidence. He emphasizes that there were no fingerprints on the gun and that Miles was the only witness who “placefd] a weapon in [his] possession.” Jairus argues that Miles was not credible because he testified that his gun jammed, while Beall testified that “[t]o [her] knowledge [the gun] had not been altered or repaired at all.”

¶ 30. “When reviewing a denial of a motion for a new trial based on an objection to the.weight of the evidence, we will only disturb a verdict when it is. so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 836, 844 (¶18) (Miss. 2005). “[T]he evidence should be weighed in the light most favorable to the verdict,” and we will not reverse unless “[t]he trial court ... abuse[d] its discretion in denying a new trial.” Id. at 844-45 (¶¶ 18-19).

¶ 31. The trial judge did not abuse his discretion by denying Jairus’s motion. Miles testified that he gave Jairas the gun at issue, and there was ample evidence that it was the same gun later retrieved by law enforcement. Jairas suggests that Beall’s testimony undermines Miles’s credibility, but Miles testified 'that even before he gave the gun to Jairas, it was not totally inoperable and would fire sometimes. Moreover, Jairas was supposed to fix the gun and claimed that he could, and Beall testified only that, “to [her] knowledge,” the gun had not been repaired. In addition, even after all of Melven’s and Joshia’s crawfishing from their prior testimony and statements, their testimony at the present trial, when considered with-the testimony of other witnesses, still supported a reasonable inference that Jairas disposed of the gun alongside 1-59, where it was retrieved by law enforcement.

¶ 32. “When a criminal case is tried to a jury, the members of the jury act as the finders of fact.” Brown v. State, 764 So.2d 463, 467 (¶9) (Miss. Ct. App. 2000). “They are charged to listen to the evidence, observe the demeanor of the witnesses, and decide the issue of the credibility of the witnesses and what weight to give to any particular piece of evidence.” Id. The jury in this case obviously found the State’s witnesses sufficiently credible as to material issues to prove Jairus’s guilt beyond a reasonable doubt; Having reviewed the record on appeal, we cannot say that the jury’s verdict is against the overwhelming weight of the evidence or that the trial judge abused his discretion by denying Jairus’s motion for a new trial.

III. Habitual Offender Sentence

¶ 33.- Jairas argues that his enhanced sentence as a habitual offender under section 99-19-83 is contrary to the United States Supreme Court’s decisions in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). However, “the - rule” expressed and applied in those cases is as follows: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Blakely, 542 U.S. at 301, 124 S.Ct. 2531 (quoting Apprendi, 530 U.S. at 490, 120 S.Ct. 2348) (emphasis added). Thus, Apprendi and Blakely do not require the State to prove prior convictions to a jury. It is constitutionally permissible for a judge to impose an enhanced sentence based on the judge’s own finding that the defendant’s prior convictions satisfy the requirements of section 99-19-83. See Smith v. State, 963 So.2d 1168, 1169-70 (¶ 5) (Miss. Ct. App. 2007).

¶ 34. Jairas ■ also asserts that the- use of his prior convictions to impose an enhanced sentence violated Mississippi Rule of Evidence 404(b). This arguments fails for at least three reasons. First, the Rules of Evidence do not apply in sentencing hearings. M.R.E. 1101(b)(4); Randall v. State, 806 So.2d 185, 231-32 (¶ 131) (Miss. 2001). Second, Rule 404(b) provides only that “[ejvidence of a crirtie ... is not admissible to prove a person’s character m order to' show that on a particular occasion the person acted in accordance with the character” M.R.E, 404(b)(1) (emphasis added). “The evidence may be used for another purpose ..,. ” M.R.E. 404(b)(2). Jairus’s prior convictions were not admitted to show that he acted in conformity with his character on a particular occasion. Indeed, they were not admitted until after his jury trial on the instant charge had concluded. His prior convictions were admitted only as a basis for enhancing his sentence, which is “another purpose” not prohibited by Rule 404(b). Third,-a rule of evidence cannot override a sentence mandated by the Legislature. As our Supreme Court put it, “It is the [Legislature’s prerogative, and not this Court’s, to set the length of sentences.” Stromas v. State, 618 So.2d 116, 123 (Miss. 1993). Accordingly, Jairus’s final argument is without merit,

CONCLUSION

¶ 35, Jairas waived his statutory speedy trial right by failing to timely assert it; under applicable precedent, there was no violation of his constitutional speedy trial right; his conviction is not against the overwhelming weight of the evidence; and his sentence is valid and constitutional. Therefore, we affirm - his conviction and sentence.

¶ 36. THE JUDGMENT OF THE CIRCUIT COURT OF FORREST COUNTY OF CONVICTION OF POSSESSION OF A WEAPON BY A CONVICTED FELON AND SENTENCE AS A HABITUAL OFFENDER OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITHOUT ELIGIBILITY FOR PAROLE OR ANY FORM OF EARLY RELEASE, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR, GREENLEE AND WESTBROOKS, JJ., CONCUR.

      . The defendant’s father and brother testified at trial, so we refer to him as Jairus to avoid confusion.

      . Jairus's reply brief on this issue concludes: "As Appellant argued in his opening [b]rief, Justice Dickinson got it right with his dissent in McBride v. State, 61 So.3d 138 (Miss. 2011).” This is an argument better directed to the Supreme Court,