author: /s/ E. James Gaidry /s/ J. Michael McDonald /s/ Page McClendon

text:
    RADCLIFFE 10, L.L.C. v. ZIP TUBE SYSTEMS OF LOUISIANA, INC., Burger Engineering, L.L.C., Ronald Burger and Bryan Burger. Burger Engineering, L.L.C. v. Radcliffe 10, L.L.C. and James M. Radcliffe.
    Nos. 2007/CA/1801, 2007/CA/1802.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 3, 2008.
   REHEARING REQUESTS:

The rehearing request of appellee, Radcliffe 10, L.L.C. is granted for the limited purpose of amending the original decree so the same reads as follows:

Radcliffe 10, L.L.C. owes Burger Engineering, L.L.C. the sum of eight hundred and fifty thousand dollars ($850,000.00) plus legal interest from the date of judicial demand, which sum is to be credited to Burger Engineering as an offset of the damages owed by Burger Engineering, L.L.C. to Radcliffe 10, L.L.C. Section “c” of the first order of the judgment, declaring that the Act of Cash Sale of Business Assets is a complete transaction transla-tive of ownership, is deleted. In all other respects, the judgment is affirmed

/s/ E. James Gaidry

E. James Gaidry

/s/ J. Michael McDonald

J. Michael McDonald

/s/ Page McClendon

Page McClendon


source: Caselaw Access Project

author: JOAN BERNARD ARMSTRONG, Chief Judge.

license: Public Domain

text:
    Eulister WILSON, E & S Construction L.L.C. v. Irshad Daniel RAHMAN.
    No. 2008-CA-1511.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 20, 2009.

      Eulister Wilson, E & S Construction L.L.C., Winston Salem, NC, In Proper Person, Plaintiff/Appellant.
    Timothy G. Schafer, Stacey E. Stringer, Schafer & Schafer, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge CHARLES R. JONES and Judge TERRI F. LOVE).
   JOAN BERNARD ARMSTRONG, Chief Judge.

| 'The plaintiff-appellant in the main demand and defendant-appellee in reconvention, Eulister Wilson, appeals pro se a judgment rendered by the First City Court of the City of New Orleans on September 11, 2008, dismissing his claim with prejudice against the defendant-appellee in the main demand and plaintiff-appellee in reconvention, Irshad Daniel Rahman. Mr. Rahman in turn appeals the dismissal in the same judgment of his reconventional demand against Mr. Wilson.

This is a fact intensive case involving no significant legal issues. Therefore, our review essentially consists of reviewing the record as a whole to determine whether the trial judge committed manifest error in reaching the conclusions he reached.

Mr. Wilson filed suit on June 20, 2007, claiming that Mr. Rahman owed him $25,000.00 for construction work he allegedly performed on properties owned by Mr. Rahman located at 4121 Fountainbleu Drive and 5420 Clara Street in New Orleans. On November 28, 2007, Mr. Rah-man filed an- answer and reconventional demand based on theories of breach of contract and constructive abandonment and asking for unspecified damages for:

|21) Cost to repair substandard work;
2) Cost to complete work left uncompleted;
3) Loss of rent;
4) Any and all other damages.

In his written reasons for judgment issued contemporaneously with the judgment, the trial judge dismissed both parties’ claims, finding that Mr. Wilson did not complete the job timely and Mr. Rah-man was in part responsible for the delay because he pulled Mr. Wilson off of one job to have him work on another unrelated job. The trial judge further found that Mr. Wilson did not perform all the work he performed in a workman like manner and that he failed to supervise or hire someone to supervise his employees or subcontractors. The trial judge also found that Mr. Wilson hired people who were not qualified or who failed to perform the work they were hired to do, specifically the electrical, plumbing and sheet rock contractors.

In addition to ruling against Mr. Rah-man’s claim in reconvention because he pulled Mr. Wilson off of the jobs for which he had contracted to work on another job, the trial judge also found that Mr. Rahman was not entitled to some of the damages he claimed. Those damages were claimed by Mr. Rahman in connection with payments he was allegedly forced to make to other contractors he hired to correct and finish the work he hired Wilson to do. However, the trial judge found that some of what Mr. Rahman claimed in this regard was not for work that Mr. Wilson had contracted to do.

All of these are factual findings subject to manifest error of review.

The trial on the merits commenced on July 31, 2008. Eulister Wilson was the first to testify. He testified that in March of 2006 he entered into a written |3agreement with Mr. Rahman to do work on his 4131 Fountainbleu Drive property in the sum of $66,641. This contract is dated March 15, 2006. While Mr. Wilson filed suit in his name and that of his limited liability corporation, E & S Construction, Mr. Eulister is not shown as a party to the contract; only his limited liability corporation, E & S Construction, L.L.C. is. The contract provided for payment as follows:

Upfront materials deposit of $18,247.00 and 3 progressive payments of $13,917.00 leaving a retainage balance of $6,643.14 to be collected at completion of project.

The contract stated an estimated time of completion of 90 days and the contract provided that the “term of this Agreement will begin on the date of this Agreement and will remain in full force and effect until completion of the Services.” Paragraph “9” of the Agreement is entitled in boldface “Time of the Essence ” and, as indicated in the title, provides that time is of the essence and that: “No extension or variation of this Agreement will operate as a waiver of this provision.” Although Paragraph “5” of the Agreement is given the boldface title, “Non Performance Penalties ” the contract is silent as to penalties. Annexed to the contract in evidence is an “Invoice/Proposal” along with a detailed listing and cost of each item of work to be performed under the contract. However, the issue is not so much a dispute over the meaning and scope of the contract, but the quality, quantity and timeliness of the work performed by Mr. Wilson.

Mr. Wilson testified that because of post-Katrina issues there was no electrician available between March 3, 2006 and April 14, 2006. He testified that Mr. Rah-man had an electrician he wanted to use, but that he never showed up. He testified that workmen hired by Mr. Rahman cut out all of the wood flooring and |4left nothing but joists, requiring him to give Mr. Rahman a price on redecking the floor and the stairwell for the back of the house, thereby creating a change.

Mr. Wilson then testified that on April 14, 2006, Mr. Rahman, pulled him off the job to work on his brother’s house. As a result he worked on both Mr. Rahman’s house and that of his brother between April 14, 2006 and September 29, 2006.

Mr. Wilson testified that on May 4, 2006, Mr. Rahman put in the first change order which was in writing and entitled, “Change Order # 1.” He also testified that Mr. Rah-man decided to have central air instead of window units, thus requiring a change in wiring which in turn required a change in the panel boxes.

Mr. Wilson then testified that on May 15, 2006, Mr. Rahman pulled him off of the job again, this time to work on property he owned at 5422 Clara Street. At the same time Mr. Rahman had him doing roofing work at 7635 Freret Street.

Mr. Wilson testified that Clara Street had galvanized pipes that needed to be replaced at considerable expense. Mr. Rahman’s indecision concerning the cost resulted in delay.

Mr. Wilson testified that on July 25, 2006, Mr. Rahman issued a change order calling for “major changes” regarding the Fountainbleu property. The record contains a substantial written change order of that date signed by both parties. He testified that at this time he went to his home in North Carolina to work on the new proposal. He testified that he returned to New Orleans a week later with the change order, but that Mr. Rahman put off signing it until August 23. He testified that he did not proceed with the work during the period of time he was waiting for Mr. Rahman to sign the change order. During the period of time during which he | ¿waited for Mr. Rahman to sign the change order he worked on Mr. Rahman’s brother’s house.

Mr. Wilson testified that before he could even get started on the change order dated July 25, 2006 referred to in the preceding paragraph, Mr. Rahman asked for another change order for the work to be done on the Fountainbleu property. A copy of the written change order is in the record signed by both parties.

Next, Mr. Wilson testified that on September 13, 2006, Mr. Rahman called him with instructions that now he wanted him to complete the work he was doing on the Clara Street property. Mr. Rahman also wanted him to give him a price to repair flood damage to a property he owned on Jay Street.

On October 23, 2006, Mr. Rahman again pulled him off of the Fountainbleu property to work on Clara Street.

He testified that Mr. Rahman was aware that he lived in North Carolina and that he went back and forth. He further testified that it was Mr. Rahman’s hope that he would finish Clara Street and Jay Street by the end of February, 2007. Mr. Rah-man told him in December, 2006, that he was taking a month’s vacation to Bangladesh. He left on December 27, 2006, and did not return until the end of January.

He explained that another cause of delay was the fact that Mr. Rahman was to provide materials because he was always in search of cheaper materials. Of course, according to Mr. Wilson, while Mr. Rah-man was in Bangladesh it delayed the job because he was not here to provide materials.

Mr. Wilson testified that he tried unsuccessfully to reach Mr. Rahman in Bangladesh to make arrangements to keep working, but as he was unable to do so, Rhe went back to North Carolina. When Mr. Rahman returned in late January he contacted him in North Carolina and asked when he was returning to New Orleans to finish the projects. He told Mr. Rahman that he would do so as soon as he finished the “little job I was doing out here.” Mr. Wilson explained:

I took on work. I just can’t stand around and do nothing.
I got bills to pay.
And so, of course, I didn’t finish the job [in North Carolina] until February 15th. February 15th, I return home, and I worked on all three projects until March 8th.

Mr. Wilson explained that during this period of time he would go home to North Carolina on a Friday and return on the following Tuesday. He went back to North Carolina on March 8th and did not return until March 15th, at which time he worked on the Jay Street property until March 26th.

On March 26th Mr. Wilson testified that he “had to go home [to North Carolina] to take care of some very important business.” On the way his truck broke down and his transmission had to be rebuilt. He testified that he was stuck in North Carolina until April 18th because of these problems with the truck. When he returned to New Orleans on April 19th, Mr. Rahman directed him to work on Founta-inbleu, which he did “intensely” until May 15th. Mr. Wilson testified that during the same period of time he also performed some minor work on Clara Street. He presented Mr. Rahman with a bill for $9,055.00 on May 14th, which Mr. Rahman paid with ill grace. (At this point there is some confusion in the testimony because Mr. Wilson then testified to a figure of $10,955.00 and said that Mr. Rahman gave him a check for $10,000.00.) He then went to North Carolina for a couple of days “to be with my family,” but he left two workers on the Fountainbleu project. On May 17th he received a call from his son saying that Mr. Rahman had laid him and the workers off. He went to see Mr. Rahman at his home on May |719th, at which time Mr. Rahman told him he no longer desired his services. On May 21st he found that he was overdrawn at his bank because Mr. Rahman had stopped payment on the $10,000.00 check.

Mr. Wilson testified that there is a balance due to him $10,943.91 from the various projects he was working on for Mr. Rahman.

On cross-examination he admitted that there were a number of things unfinished that were called for in the contract which he explained by saying that:

You terminate me on the job, of course, the job is incomplete.

He admitted that he did not really get going on the job until a month after he signed the contract, but he had informed Mr. Rahman that he couldn’t get started until he finished another job he was working on.

Mr. Glenn Dexter, an electrical contractor with Malone Electrical Services, was next to testify. He testified that he gave Mr. Rahman a quote for electrical work and that, “Mr. Malone got with him later on and kind of gave him a better deal.” He testified that to his knowledge, Malone was never called out by the contractor to do the job at Fountainbleu. He testified that later they found that some electrical work had been done but that would not have met code. The trial court rejected his testimony as hearsay.

Then Mr. Rahman testified. He testified that he met with Mr. Malone in March of 2006 along with Mr. Wilson. At that time Mr. Malone quoted him a figure of $4,800.00. He testified that Mr. Wilson told him that, “Glynn had an attitude, Glynn didn’t want to do the job.” So Mr. Wilson enlisted his own electricians. However, the first ones he hired botched the job. ‘Thereafter, he and | sMr. Wilson contacted Malone and Malone sent out two men to fix the electrical work for the originally quoted price of $4,800.00.

Mr. Rahman testified that when he signed the original contract, Mr. Wilson did not tell him he had other work he had to finish before he could begin on his job. He had short term financing on the property so he needed to be able to make it habitable and rentable expeditiously so that he could get long-term financing.

He testified that Mr. Wilson never informed him that Mr. Wilson’s insurance had been cancelled and changed. He testified that the demolition work Mr. Wilson testified to had been done months before he and Mr. Wilson signed the contract. He also denied that he pulled Mr. Wilson off the Fountainbleu job to do work for his brother, Dell: .

[T]he first time I found out that he did some work for my brother is about three days ago, after I read this diary.

He then described a number of items called for in the contract that Mr. Wilson did not perform and/or were performed by others such as Malone. He testified that Mr. Wilson told him he could do the “upgrade” on Clara Street in “about a week’s time.” However, it dragged on for six or seven weeks. He said that on many occasions Mr. Wilson would leave for North Carolina and that when he did so the progress at Fountainbleu would come to a, “Total standstill.”

As to his trip to Bangladesh in December of 2006, Mr. Rahman testified that he had informed Mr. Wilson of his travel plans the previous June and that he had been assured by Mr. Wilson that the work would be completed prior to that time. He confirmed that at the time he return from Bangladesh, Mr. Wilson had three jobs in progress for him. He called Mr. Wilson in North Carolina when he returned from Bangladesh and complained to him that he had promised to be back |9in New Orleans when he returned and he reminded Mr. Wilson that he had long ago informed him that he had a bank deadline.

He then informed the court of the dates he had given checks to Mr. Wilson and how woefully he had underperformed. He testified that he was never informed that copper pipes had been stolen. He explained that as an insurance man he would have known to file a police report. Mr. Rahman testified that the first he learned of it was this day in court. He testified that it was Mr. Wilson:

“[Wjas always coming back with change order, change order, change order. Even when I got my own electrician to do the work, he brought in an electrician, he comes back with a change order number 1 and hits me with $6,600 and says, You owe a balance of $1,400 more. So the whole game played around change orders. And I knew nothing about construction.”

When Mr. Rahman testified that on May 15, 2007, when he gave Mr. Wilson the check for $10,000.00 he informed Mr. Wilson that he did so only on condition that Mr. Wilson would complete the job before returning again to North Carolina. Mr. Rahman testified that in response Mr. Wilson told him that he would work night and day and finish the job in one week, and that he would go nowhere until the job was complete. However, before Mr. Wilson left Mr. Rahman’s house that night he informed Mr. Rahman that his daughter had a “recitation or something” and that he wanted to attend:

I said, Look, I understand family things are important. It’s an occasion for your daughter. It is a bankruptcy for me. And I’ve told you you can’t go.

The next day Mr. Rahman went by several times to check on the job, but there was never anyone there. “I was very, very upset. He had left town.”

11()Mr. Rahman identified photos of the Fountainbleu property taken on May 18, 2007, showing that, “the house was in a total mess.” He testified that he called his lawyer on May 17th and was advised to stop payment on the $10,000.00 check which he did. At this point he retained Jeff Nichols to finish the job. He identified checks he had paid to Mr. Nichols in the sum of $1,087.00, $3,300.00, and another for $1500.00 that pertained to work on both Fountainbleu and Clara Streets.

He also paid $3,100.00 to Santos Martinez and $450.00 to Mike converse. He also paid $154.00 to Shawn Kins for some carpentry. He paid $600.00 to Raymond Harris:

And at this same time, I was paying a lot of people cash right and left to get anything done. I was picking up people from the street to come and do work.

He went on to testify that he had to pay another contractor approximately $65,000.00 to correct faulty work done by Mr. Wilson on Jay Street and to complete the job on that location. At a later date he had to do a lot of corrective work at the Fountainbleu location. He paid Mr. Chris Haring one check for $1,250.00 and another for $2,600.00 to do the necessary plumbing work on Fountainbleu. After tenants moved in he discovered that the waste from the toilet was emptying directly under the house. He paid Lester LeMeunier $6,500.00 to correct this and other problems. He said that because of the delays the interest rate on the loan he needed increased from 7.75% to 10.9%, not to mention the loss of potential rents.

On cross-examination, Mr. Rahman testified that he did not ask for change orders and that he signed them without reading them and continued to advance money to Mr. Wilson in spite of the fact that he was doing little or no work in return. When asked why he continued to pay for work allegedly not done, Mr. InRahman responded: “I’ve been asking myself the same question.” Mr. Wilson asked him on pro se cross-examination:

Q. Why would you just give me money and not read anything about what I’m doing? And to top it off, you signed it.
A. I signed it, because you compelled me to sign it.
Q. In what way [did] I compel you? How did I compel you.
A. I said, What is this? We have a contract. At one time, I do remember having a conversation with you, What is this? We have a contract, and you just keep bringing these things and charge me money.
You said, Man, if that changes, it’s got to be done. Otherwise, the work can’t go on. So, I signed it and I gave you the check every time.

However, Mr. Rahman testified that he read the original contract. Mr. Wilson admitted that the last time he went to North Carolina he told Mr. Rahman that he had to do what the had to do and that his family came first.

Leslie LeMeunier, a licensed journeyman plumber, testified next. He testified that he was paid by Mr. Rahman to fix several sewer leaks under the Fountain-bleu property.

Robert Morris, a licensed building contractor, testified that he inspected Mr. Rahman’s property on Jay Street in the fall of 2007. He testified that the sheet-rock work had been cut very unevenly leaving a three to four inch gap between the old pre-Katrina sheetrock that was above the spoilage line and the new post-Katrina sheetrock that replace the damaged portion of the old sheetrock. He testified that the sheetrock work he found did not meet his standards. Mr. Rahman paid him to correct and finish the Jay Street sheetrock job.

Nazeen Rahman, Mr. Rahman’s wife, testified that she was present when Mr. Wilson stated that the work would be done by the end of December. She |12testified that she was present in the house when Mr. Wilson came in May for the $10,000.00 check referenced elsewhere in this opinion and that it was her understanding that Mr. Wilson was not to go back to North Carolina, but was to stay and finish the job. And as to the paper work, on cross-examination she basically admitted that she was not involved and/or had no recollection.

At the end of the trial, Mr. Wilson was allowed to make a statement. He stated that at the time he took the check for $10,000.00 he informed Mr. Rahman of his imminent return to North Carolina, “but I did promise him that somebody would be on the job when I’m gone.” He also stated as to the jagged edged sheetrock, that it was a simple matter to go back in and fix it which had been his intention all along, and that there was no necessity for Mr. Morris to tear out all the work he had done. It was his opinion that it was torn out by Mr. Morris just to inflate his contract price. He admitted that the job was incomplete, but attributed that to his unwarranted premature dismissal from the job by Mr. Rahman. He also stated that he never agreed to do the kind of work required to rectify the sewerage problems and referred to those problems as “hidden costs” for which he would not be responsible under the contract or change orders. He felt that Malone and Mackie overcharged for their work and that he should not be responsible for their excessive charges. He also elaborated on why being asked to work on several projects at once delayed completion.

On final cross-examination, Mr. Wilson acknowledged he had highlighted on Exhibit C all of the many items that remained incomplete on the Fountainbleu property.

The trier of fact may choose to reject all of the testimony of any witness or may believe and accept any part or parts of a witness’ testimony and refuse to | isaccept any other part or parts thereof. Ladner v. Government Employees’ Ins. Co., 08-0323, (La.App. 4 Cir. 10/8/08), 992 So.2d 1098, 1101; Temple v. Schwegmann Giant Super Markets, 95-2491, pp. 4-5 (La.App. 4 Cir. 7/10/96), 677 So.2d 1103, 1105-1106.

In this case we may readily infer that the trial judge chose to believe that portion of the Mr. Rahman’s testimony and that of his witnesses indicating that Mr. Wilson frequently absented from New Orleans during the time he was supposed to be performing work for Mr. Rahman, thereby contributing to the delay of the completion of the projects. Mr. Wilson’s absence from the city also contributed to the finding that he failed to adequately supervise his employees and/or sub contractors. While there may have been some difference of opinion as to how much time Mr. Wilson spent in North Carolina, Mr. Wilson essentially admitted to such absences.

However, the trial judge was also entitled to believe that portion of Mr. Wilson’s testimony leading to the conclusion that Mr. Rahman “was the main cause of the delay by pulling the plaintiff off the main job to do work on other properties.” The documented change orders also support the conclusion that Mr. Rahman was the main cause of the delay.

The testimony of Mr. Rahman along with that of his contractor, electrical and plumbing witnesses permit the reasonable finding by the trial judge that Mr. Wilson did not perform all the work he was hired to do in a workman like manner and failed to supervise or hire someone to supervise his employees and/or sub contractors on those occasions when he did not do so himself.

Accordingly, we find no manifest error in the trial judge’s reasons for judgment based on the reasonable findings by the trial judge discussed above, 114supported by our review of the record as a whole. As Mr. Wilson failed to complete the contract in a timely and workman like manner as he contracted to do, we find no error in the decision of the trial judge to deny his claim.

As Mr. Rahman was the chief cause of the delays of which he complained and may have incurred some unnecessary expense in the manner in which he chose to supplant Mr. Wilson in the completion of the work, we find no error in the decision of the trial judge to deny his recon-ventional demand.

Therefore, we find that there is a sufficient factual basis in the record to support the findings of the trial judge. Mindful of the fact that our duty of review is not completed by simply reading so much of the record as will reveal a reasonable factual basis for the findings in the trial court, we have further reviewed the record as a whole in order to determine whether the findings are manifestly erroneous/clearly wrong. Ambrose v. New Orleans Police Ambulance Serv., 93-3099 (La.7/5/94), 639 So.2d 216. Based on this review of the record as a whole, we find, as explained above, a reasonable factual basis for the findings in the trial court. We further find that none of the trial court’s findings is so contradicted by documentary evidence or is based on evidence or testimony that is so internally inconsistent as to be unworthy of belief as to permit this court to find manifest error in the findings of the trial judge.

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

JONES, J., concurs in the result.

      . We note that the record contains a notice to Mr. Wilson that he must remit to the clerk of the trial court the five dollar fax filing fee for his notice of appeal. Accordingly, this Court ordered Mr. Wilson to show cause why his appeal should not be dismissed for failure to pay facsimile filing fees as required by La. R.S. 13:850. By separate Order this Court declared itself to be satisfied with Mr. Wilson's response to the show cause order.


author: CARTER, C.J.

text:
    Christina TAYLOR v. BAYOU FABRICATORS, Roderick Lacombe, and X-Insurance Company.
    No. 2009 CA 0317.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 11, 2009.

      Chris D. Nails, Baton Rouge, LA, for Plaintiff-Appellant, Christina Taylor.
    Suzanne W. Miller, Baton Rouge, LA, for Defendants-Appellees, Bayou Fabricators, et al.
    Before CARTER, C.J., GUIDRY AND PETTIGREW, JJ.
   CARTER, C.J.

12This appeal raises the issue of whether a facsimile filing pursuant to LSA-R.S. 13:850 requires a receipt from the clerk of court before the five-day period for filing the original document and payment of the applicable filing and transmission fees begins to run. The trial court found that the mandatory statutory language required that the original signed document, applicable filing fee, and transmission fee of $5.00, be sent within five days, exclusive of legal holidays, after the clerk of court received the facsimile transmission, regardless of whether the clerk of court transmitted an acknowledgment of receipt of the transmission to the plaintiff. Because the plaintiff failed to send the required document and payments within five days of the undisputed facsimile transmission, the trial court dismissed the plaintiffs ease as prescribed. We affirm.

FACTS

It is undisputed that the plaintiff, Christina Taylor, filed suit by facsimile transmission and the clerk’s office received the filing on April 11, 2008, for damages arising out of a motor vehicle accident that occurred on April 19, 2007. Thereafter, the plaintiffs original signed petition was filed on April 30, 2008. The record contains no evidence of the plaintiffs payment of applicable filing or transmission fees. The defendants, Bayou Fabricators and Roderick Lacombe, filed a peremptory exception raising the objection of prescription, alleging that the plaintiffs petition was clearly prescribed on its face. The plaintiff opposed the exception, arguing that the timely fax-filed petition on April 11, 2008, interrupted prescription, and that because the clerk of court never acknowledged receipt of the facsimile | ^transmission, the five-day time period for forwarding the original petition and paying the required fees never began.

A hearing was held on the prescription issue, where argument was heard, but no evidence was introduced. At the hearing, counsel for plaintiff acknowledged that the original signed petition had not been sent within five days after the facsimile transmission had been undeniably received by the clerk’s office. Counsel for plaintiff further acknowledged that the applicable filing and transmission fees had not been paid within five days after the clerk of court received the facsimile transmission. It was undisputed that the clerk of court never sent plaintiff a receipt of the transmission. After the hearing, the trial court held that the plaintiff’s case was prescribed because the original petition was not filed and the fees were not paid within the statutorily required five-day time period after the clerk of court’s undisputed receipt of the facsimile transmission. The plaintiffs suit was dismissed with prejudice and at her cost. The plaintiff appealed, arguing that the clerk of court’s failure to acknowledge receipt of the timely fax-filed petition did not negate the facsimile transmission.

DISCUSSION

Louisiana Revised Statute 13:850 provides the following, in pertinent part:

A. Any paper in a civil action may be filed with the court by facsimile transmission. ... Filing shall be deemed complete at the time that the facsimile transmission is received and a receipt of transmission has been transmitted to the sender by the clerk of court. The facsimile when filed has the same force and effect as the original.
B. Within five days, exclusive of legal holidays, after the clerk of court has received the transmission, the party filing the document shall forward the following to the clerk:
14(/ )The original signed document.
(2) The applicable filing fee, if any.
(3) A transmission fee of five dollars.
C. If the party fails to comply with the requirements of Subsection B, the facsimile filing shall have no force or effect.... (Emphasis added.)

The Louisiana supreme court recently interpreted the meaning of “shall forward” in this statute to mean “the sending of the document towards the place of destination[,]” thereby overruling in part much of the sparse jurisprudence analyzing LSA-R.S. 13:850. Hunter v. Morton’s Seafood Restaurant & Catering, 08-1667 (La.3/17/09), 6 So.3d 152, 156. The supreme court further held that under the statute at issue, “a filing is merely conditional once a facsimile of a document is transmitted.... The date when an original document and fees have been forwarded to the Clerk’s Office is a fact to be proved by the sender. The sender must establish, by a preponderance of the evidence, that the original document and required fees have been forwarded to the Clerk’s Office in the time set forth in the statute.” Id. (Emphasis added.)

In this case, the parties do not dispute and the hearing transcript on the exception of prescription clearly reveals that the plaintiffs original signed petition and required fees were not sent to the clerk of court within five days of the clerk’s undisputed receipt of the plaintiffs fax-filed petition. Therefore, pursuant to LSA-R.S. 13:850 C, the facsimile filing had no effect because the plaintiff failed to send the required documents and fees within the statutorily-mandated five days. The plaintiffs fax-filed petition could have interrupted prescription only if all of the other requirements of LSA-R.S. 13:850 had been followed. Antoine v. McDonald’s Restaurant, 98-1736 (La.App. 3 Cir. 5/5/99), 734 So.2d 1257, 1259 (overruled on other grounds by Hunter, 6 So.3d at 155 n. 4). We find no merit to the plaintiffs argument that the clerk of court’s failure to issue a receipt of the facsimile transmission somehow negated the plaintiffs responsibility of sending the original signed petition and required fees within five days of the fax-filed petition. See Northern Ins. Co. of New York v. Gabus, 04-153 (La.App. 3 Cir. 7/7/04), 877 So.2d 1183, 1185-1186. The statute does not require that the clerk of court transmit receipt of the fax-filing within a certain time. Antoine, 734 So.2d at 1260. The purpose of the statute is carried out by looking to the fax filing as complete for prescription purposes upon receipt of the transmission by the clerk’s office, which is not disputed in this case. However, the transmission of a receipt of the facsimile by the clerk of court to the plaintiff serves only as an acknowledgment and proof of the time of the fax filing. Id. The timing and proof of the facsimile transmission are not at issue in this case.

In summary, the undisputed facts are that the plaintiff fax-filed the petition on April 11, 2008, and the clerk’s office received the transmission on that same date. The absence of a transmission receipt by the clerk’s office to the plaintiff does not change these facts. Therefore, the plaintiffs fax-filed petition could have interrupted prescription on her cause of action had the remaining statutory requirements for fax filings been met. See Antoine, 734 So.2d at 1259. However, like the trial court, we find that the plaintiff failed to meet the mandatory requirements of LSA-R.S. 13:850 B by not forwarding the original signed petition and required filing and transmission fees within five days of the clerk’s office receipt of the fax-filed petition. Louisiana Revised Statute 13:850 C expressly provides that a fax filing has no force or effect if the requirements of Subsection B are not | ^complied with. The only record of an original petition is the one filed on April 30, 2008, which plaintiff acknowledges was forwarded to the clerk of court after the required five-day time period and after the one-year prescriptive date for the plaintiffs cause of action. Accordingly, we agree with the trial court that the plaintiffs fax-filed petition did not interrupt prescription on the plaintiffs claim. Thus, the trial court correctly granted the defendant’s peremptory exception raising the objection of prescription.

CONCLUSION

For these reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed to the plaintiff/appellant, Christina Taylor.

AFFIRMED.


author: CARTER, C.J. PETTIGREW,

text:
    Lisa D. DENNIS v. Jeffrey F. WILEY, Individually, and in his Capacity as Sheriff of Ascension Parish, Harold Tridico, Individually, and in his Capacity as Former Sheriff of Ascension Parish, QRS Insurance Company, and XYZ Insurance Company.
    No. 2009 CA 0236.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 11, 2009.

      Georgia G. Turgeau, Tracey Powell, Sli-dell, LA, Attorney for Plaintiff-Appellee, Lisa D. Dennis.
    Fred Schroeder, Craig E. Frosch, New Orleans, LA, Attorneys for Defendants-Appellants, Sheriff Jeffrey Wiley and Former Sheriff Harold Tridico.
    Before CARTER, C.J., GUIDRY and PETTIGREW, JJ.
   CARTER, C.J.

|2This case involves a res nova issue in Louisiana: whether the victim of a crime is entitled to an award of damages for the negligent infliction of emotional distress due to the wrongful disposal of evidence collected during an ongoing criminal investigation. The trial court awarded the plaintiff $50,000.00 for the emotional distress and mental anguish she suffered as a result of the defendant’s breach of duty to preserve the criminal evidence. For the following reasons, we reverse.

FACTS

It is undisputed that twenty years ago, on January 31, 1989, the plaintiff, Lisa Dennis, was raped at knifepoint by an unknown assailant in her Donaldsonville, Louisiana home. The Ascension Parish Sheriffs Office (Sheriffs Office) investigated the aggravated rape. As part of the investigation, the plaintiff was taken to the Provost Memorial Hospital where a rape kit was conducted. Additionally, the plaintiffs clothing was collected, her home was processed for evidence, and she provided a physical description for a composite sketch of her attacker. Unfortunately, the rapist was never identified, arrested, or prosecuted, and the plaintiffs case remains open and unresolved to this date.

Fourteen years after the attack, in May 2003, the plaintiff was watching media coverage of the Baton Rouge area serial rapist and killer, Derrick Todd Lee. Convinced that the serial killer was her attacker, the plaintiff contacted the Sheriffs Office to identify him as the possible rapist. The plaintiff requested that the Sheriffs Office examine the evidence collected during the investigation of her |,fi989 rape to determine if the serial killer was her assailant. The same detective who had investigated the initial crime handled the ongoing investigation.

During a search for the evidence, the Sheriffs Office quickly ascertained that the plaintiffs rape kit, as well as all of the other physical evidence connected with the initial investigation, had been destroyed pursuant to a court order in 1995. The court ordered the disposal of the evidence following the Sheriffs Office request that the District Attorney for Ascension Parish file a motion to dispose of the evidence. It is undisputed that the District Attorney’s motion to dispose of the evidence in 1995 was based on the fact that the evidence had been mislabeled by the Sheriffs Office as evidence of a crime that could no longer be prosecuted and was therefore considered abandoned/forfeited contraband held in connection with a criminal investigation.

On June 9, 2003, the Sheriffs Office conducted a meeting with the plaintiff to inform her that the evidence had been mislabeled as a simple rape case instead of an aggravated rape case. The Sheriffs Office explained that evidence for a simple rape case could legally be disposed of after a statutorily-mandated period of time because the offender could no longer be prosecuted for the crime and that there was no statute of limitation for the destruction of evidence in an aggravated rape ease. The Sheriffs Office also informed the plaintiff that the physical description of her rapist did not match the physical description of the serial killer (based on the serial killer task force timeline); thus, there was no positive lead or identification linking the serial killer to the plaintiffs rape. Additionally, the Sheriffs Office told the plaintiff that her case would continue to be an ongoing and open criminal investigation even without the evidence.

On June 7, 2004, the plaintiff filed suit against the Sheriffs Office for the negligent infliction of mental anguish and emotional distress as a result of the | ^Sheriff s Office incorrectly disposing all of the evidence connected with her 1989 aggravated rape. The plaintiff made no allegations of intentional destruction of the criminal evidence. Instead, she alleged that the actions of the Sheriffs Office were reckless, wanton, and grossly negligent. The plaintiff maintained that when she learned the evidence had been mistakenly destroyed, she re-lived the emotional terror, trauma, and severe distress that accompanied the initial attack, and that her life was drastically altered just as it had been immediately after the attack. The plaintiff also alleged that she was extremely fearful, and she felt vulnerable, humiliated, and re-victimized. The plaintiff testified that although she realized that the Sheriffs Office did not intentionally set out to harm her by destroying the evidence, she would never have closure or peace of mind because her attacker is not behind bars and there is no longer any evidence that can be used to prosecute the rapist in the future, or for use in any available legal remedy she may have against her assailant if he should ever be identified. The plaintiff acknowledged, however, that she may be able to identify the rapist based on her eyewitness recollection.

After a bench trial on June 18, 2008, the trial court ruled that the Sheriffs Office had liability for negligent infliction of emotional distress, finding that the Sheriffs Office had breached its duty to retain and preserve the evidence of the plaintiffs aggravated rape, and that the breach had caused the plaintiffs damages. The trial court issued lengthy reasons for judgment, outlining the law on the duty-risk analysis and examining the jurisprudence on emotional distress and mental anguish damage awards. The trial court concluded that the plaintiff was entitled to $50,000.00 from the Sheriffs Office. The Sheriffs Office appealed, arguing that it has no liability under these facts, and alternatively, that the damage award was excessive.

IsLAW AND ANALYSIS

Initially, we note that the Sheriffs Office pled the affirmative defense of discretionary function immunity under LSA-R.S. 9:2798.1 based upon the exercise or performance of its policy-making or discretionary acts within the course and scope of its lawful powers and duties. But the issue of statutory immunity was not addressed by the trial court in its lengthy written reasons for judgment, nor was this issue raised by the Sheriffs Office in its appellate brief. However, an appellate court may notice ex proprio motu that the law does not extend a remedy against a particular defendant. LSA-C.C.P. art. 927 B; See Capital City Towing & Recovery, Inc. v. City of Baton Rouge, 97-0098 (La.App. 1 Cir. 2/20/98), 709 So.2d 248, 251. And we must first determine whether the discretionary function immunity of LSA-R.S. 9:2798.1 applies so that the Sheriffs Office can be exposed to liability in this case. Gregor v. Argenot Great Cent. Ins. Co., 02-1138 (La.5/20/03), 851 So.2d 959, 963.

Under these factual allegations, it is apparent that the mislabeled evidence that led to the Sheriffs Office’s decision to dispose of the evidence in the plaintiffs criminal case is not the kind of discretionary choice or action that is based on public policy. The Sheriffs Office admits that a mistake was made after the collection of the evidence and that the evidence was mislabeled as pertaining to an investigation of a simple rape instead of an aggravated rape case. This mistake was not the result of a decision based on social, economic, or political policy, nor was it a discretionary act within the Sheriffs Office lawful duties. When the government acts negligently for reasons unrelated to public policy considerations, it is liable to those it causes injury. See Gregor, 851 So.2d at 968. Therefore, the Sheriffs Office cannot rely on statutory immunity to shield itself from potential negligence liability in this situation.

|fiA claim for negligent infliction of genuine and serious emotional distress is a viable claim in Louisiana. See Moresi v. State Dept. of Wildlife and Fisheries, 567 So.2d 1081, 1096 (La.1990); see also Barrino v. East Baton Rouge Parish School Bd., 96-1824 (La.App. 1 Cir. 6/20/97), 697 So.2d 27, 33. Recovery for mental anguish or emotional distress is based on LSA-C.C. art. 2315, which provides in part: “[e]very act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” Courts use the duty-risk analysis to determine recovery under article 2315. Barrino, 697 So.2d at 33. For liability to attach under the duty-risk analysis, the plaintiff must prove that the conduct in question was a cause-in-fact of the resulting harm or damages, the defendant owed a duty of care to the plaintiff, the requisite duty was breached by the defendant, and the risk of harm was within the scope of protection afforded by the duty breached. Hardy v. Bowie, 98-2821 (La.9/8/99), 744 So.2d 606, 613. A negative answer to any of the inquiries of the duty-risk analysis results in a determination of no liability. Barrino, 697 So.2d at 33-34.

In this case, the Sheriff’s Office readily admits that a mistake was made in the processing of the evidence obtained during the investigation of the plaintiffs rape resulting in the mislabeled evidence. The mislabeling mistake led to the court-approved destruction of the evidence after the statutorily-mandated time period for retention of criminal evidence had passed. The Sheriffs Office vehemently denies, however, that it owes any special duty to preserve evidence 17obtained during the investigation of a particular crime for the benefit of the victim of the crime. We find merit to this argument. Our research has not revealed any statutory or jurisprudential basis for the imposition of such a duty to be extended to crime victims. Whether a duty is owed is clearly a question of law. Faucheaux v. Terrebonne Consol. Government, 615 So.2d 289, 292 (La.1993). The inquiry is whether the plaintiff has any law — statutory, jurisprudential, or arising from general principles of fault — to support her claim. Hardy, 744 So.2d at 614. It is the judiciary’s role to determine whether there is any rule of law or policy reason why a duty would be owed to the plaintiff to compensate her for her damages. Id.

The Sheriffs Office is charged with a general duty to preserve peace and apprehend criminal offenders. LSA-R.S. 33:1435. Nothing in that general duty is designed to protect the individual victim of a crime from emotional distress or mental anguish that may result from the knowledge that evidence of the crime has been negligently misplaced or mistakenly destroyed. Likewise, nothing in that general duty is designed to benefit an individual victim of a crime so that the victim may someday pursue a civil suit or some other legal remedy. Obviously, the proper preservation of criminal evidence is necessary for the successful apprehension and prosecution of criminals. However, it is apparent that the duty to preserve evidence obtained in a criminal investigation is directed toward the general public to aid in maintaining public order, as well as for the benefit of the District Attorney so that criminal suspects can be more readily apprehended and successfully prosecuted.

It is important to note that the Sheriffs Office has absolutely no authority to prosecute criminal cases. Also, the Sheriffs Office cannot dispose of evidence for a criminal case without a court order. See LSA-R.S. 15:41 and LSA-C.Cr.P. art. 167. The District Attorney is given independent charge of every criminal | ^prosecution in his district, and the District Attorney determines whom, when, and how he should prosecute. LSA-C.Cr.P. art. 61. Therefore, the preservation of evidence collected during a criminal investigation by the Sheriffs Office, or any other law enforcement agency, is only one of many considerations utilized in the District Attorney’s determination of whether to prosecute. Clearly, the District Attorney’s power to prosecute is independent from the actions of the Sheriffs Office or the needs and wishes of the victim of a crime.

Further, this case does not present the typical negligent spoliation of evidence daim or the negligent impairment of a civil action claim, where the destruction or loss of evidence involves evidence that would have benefited a plaintiffs potential or pending civil claim. See Robertson v. Frank’s Super Value Foods, Inc., 08-592 (La.App. 5 Cir. 1/13/09), 7 So.3d 669, 672-673. Those causes of action are premised on the right of a plaintiff to be free from interference in pursuing and/or proving his or her civil lawsuit. Id., 7 So.3d at 674. The case sub judice is distinguishable because it centers on the plaintiffs right to have evidence available for the District Attorney’s prosecution of the criminal offender in the future. But in either scenario, the evidence has been negligently destroyed.

Arguably, the obligation or duty to preserve evidence arises from the foreseeability of the need for the evidence in the future. Id., 7 So.3d at 675, n. 3. Thus, the same pertinent question raised in negligent spoliation cases is helpful in this situation: “[d]id the defendant have a duty to preserve the evidence for the plaintiff, whether arising from a statute, a contract, a special relationship between |9the parties, or an affirmative agreement or undertaking to preserve the evidence?” Longwell v. Jefferson Parish Hosp. Service Dist. No. 1, 07-259 (La.App. 5 Cir. 10/16/07), 970 So.2d 1100, 1104-1105, writ denied, 07-2223 (La.1/25/08), 973 So.2d 756 (emphasis added). If so, then the plaintiff has a claim for the defendant’s breach of this duty. If not, the plaintiff has no remedy. Id., 970 So.2d at 1105. Because there is no statutory or jurisprudential duty to preserve the evidence in a criminal investigation for the personal benefit of the victim of a crime, and the record is devoid of evidence of any special relationship or affirmative agreement or undertaking by the Sheriffs Office to preserve the evidence for the plaintiffs emotional well-being, personal sense of security, or possible civil remedy, the plaintiffs action for negligent infliction of emotional distress fails.

Further, determining the scope of a duty is “ultimately a question of policy as to whether the particular risk falls within the scope of the duty.” Roberts v. Benoit, 605 So.2d 1032, 1044 (La.1991). Seldom does a rule protect every victim against every risk merely because it is shown that the violation of the rule played a part in producing the injury. Id. There must be an “ease of association” between the rule of conduct, the risk of injury, and the loss sought to be recovered. See Hill v. Lundin & Associates, Inc., 260 La. 542, 549, 256 So.2d 620, 622 (La.1972).

Additionally, even if we found that the Sheriffs Office owed a personal duty to the plaintiff in this case, which we decline to do, we seriously question the cause-in-fact of the plaintiffs damages. A plaintiffs case must fail if there is only a possibility of or speculation as to a causative connection. McIntyre v. St. Tammany Parish Sheriff, 02-0700 (La.App. 1 Cir. 3/28/03), 844 So.2d 304, 310. Cause-in-fact is generally a “but for” inquiry. If the plaintiff probably would not have been injured but for the defendant’s substandard conduct, such conduct is a | incause-in-fact. Rhodes v. State through Dept. of Transp. and Development, 94-1758 (La.App. 1 Cir. 12/20/96), 684 So.2d 1134, 1143, writ not considered, 97-0242 (La.2/7/97), 688 So.2d 487. Where there are concurrent causes of an injury, the proper inquiry is whether the conduct in question was a substantial factor in bringing about the harm. Perkins v. Entergy Corp., 00-1372 (La.3/23/01), 782 So.2d 606, 611-612. This is a factual question, and an appellate court may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. Id., 782 So.2d at 612.

In this case, it cannot be said that “but for” the negligent disposal of the criminal evidence the plaintiff would not have suffered emotional distress. The plaintiff relived the terror of her rape when she realized the possibility that the serial killer was the man who had raped her fourteen years earlier. The plaintiffs distress increased when she met with the Sheriffs Office and was told that the physical description of her attacker and the serial killer did not match. At the same time, the plaintiff learned that the Sheriffs Office no longer possessed the evidence collected during the initial investigation of the rape. It is evident, however, that regardless of whether the criminal evidence was preserved the serial killer was not linked to the plaintiffs attack. As a result, the plaintiff faced the unfortunate realization that the rapist would not be apprehended and that her case would remain an open investigation rather than be solved, i.e., the plaintiff had no closure. This is true whether the evidence from the original criminal investigation exists or not. Clearly, this reality is the cause-in-fact of the plaintiffs emotional distress, since it was the plaintiffs belief that the serial killer was her rapist that initially began the regrettable chain of events that led to the discovery of the discarded evidence. Thus, the trial court manifestly erred in its conclusion that the disposal of the evidence was a substantial factor in bringing about the plaintiffs h[emotional distress. That factual conclusion is simply not reasonably supported by the record.

CONCLUSION

We find as a matter of law that the Sheriffs Office has no liability to this plaintiff under this factual scenario. The trial court erred in concluding that the Sheriffs Office had a duty to preserve the evidence in the criminal investigation for the personal benefit of this victim of a crime and in finding that the plaintiff had established cause-in-fact by a preponderance of the evidence. Accordingly, while we have great sympathy for the plaintiff, we feel constrained to reverse the trial court’s judgment. The plaintiff is assessed with all costs of this appeal.

REVERSED.

GUIDRY, J., concurs in the result.

PETTIGREW, J., concurs and assign reason.

PETTIGREW,

1, concurring.

11The majority recognizes, and I agree, that a claim for negligent infliction of genuine and serious emotional distress is a viable claim in Louisiana. Barrino v. East Baton Rouge Parish School Bd., 96-1824 (La.App. 1 Cir. 6/20/97), 697 So.2d 27, 33. The majority then relieves the Sheriffs Office of liability by finding that the Sheriffs Office has no special duty to preserve evidence obtained during the investigation of a particular crime for the benefit of the victim of the crime. I disagree with this legal premise based on the general duties of the Sheriffs Office pursuant to La. R.S. 33:1435 and La. Civ.Code art. 2315 and the Rights of Crime Victims and Witnesses’ Act, pursuant to La. R.S. 46:1841 et seq., as amended. In particular, La. R.S. 46:1844(1) provides that “[t]he victim shall be protected at all times by all rules and laws governing the criminal procedure and the admissibility of evidence applicable to criminal proceedings.” Moreover, La. R.S. 46:1844(L) provides that “[a]ll judicial and law enforcement agencies shall expeditiously return any stolen or other personal property to victims or victims’ families when no longer needed as evidence.”

Ultimately, I am of the opinion there is a legal duty to preserve evidence obtained during the investigation of a particular crime, not only for the benefit of the general public, but also the victim of the crime.

However, I still concur in the result reached by the majority because I am of the opinion the plaintiff failed to carry her burden of proof to prove serious emotional distress caused by the destruction of the evidence as required in Barrino.

      . In 1989, Harold Tridico was the sheriff of Ascension Parish. His successor, and the sheriff of Ascension Parish at the time of the plaintiff's suit, is Jeffrey F. Wiley. Both sheriffs were named as defendants, individually, and in their official capacities.

      . Louisiana Revised Statute 15:41 provides for the disposal of property seized in connection with a criminal proceeding that is not to be used as evidence or is no longer needed as evidence. Louisiana Code of Criminal Procedure art. 572 A(l) provides that no person shall be prosecuted for a felony necessarily punishable by imprisonment at hard labor after six years from the date that the offense was committed. The crime of simple rape is punishable by imprisonment with or without hard labor. LSA-R.S. 14:43 B. Conversely, there is no time limitation for the prosecution of a crime that is punishable by death or life imprisonment, such as the crime of aggravated rape. LSA-C.Cr.P. art. 571; LSA-R.S. 14:42 D(l). It is undisputed that the requisite period of time had passed for disposal of the evidence connected with the investigation of a simple rape.

      . The District Attorney's power and duties are subject to the supervision of the Attorney General. See LSA-C.Cr.P. arts. 61 and 62. It is well-settled that the District Attorney is absolutely immune from civil liability for actions within the scope of duties such as initiating and pursuing a criminal prosecution. Sinclair v. State ex rel. Dept. of Public Safety and Corrections, 99-2290 (La.App. 1 Cir. 11/3/00), 769 So.2d 1270, 1271, writ denied, 00-3331 (La.1/25/02), 806 So.2d 665, cert. denied, 536 U.S. 910, 122 S.Ct. 2369, 153 L.Ed.2d 189 (2002).


author: JAMES F. MCKAY III, Judge.

text:
    STATE of Louisiana v. Dwayne WHITE.
    No. 2009-KA-0025.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 16, 2009.

      Leon A. Cannizzaro, Jr., District Attorney of Orleans Parish, Andrew M. Pickett, Assistant District Attorney of Orleans Parish, New Orleans, LA, for Appellee.
    C. Gary Wainwright, New Orleans, LA, for Defendant/Appellant.
    Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge JAMES F. MCKAY III, Judge MAX N. TOBIAS, JR.
   JAMES F. MCKAY III, Judge.

| STATEMENT OF CASE

On December 7, 2007, the State filed a bill of information charging the appellant, Dwayne White, with possession of cocaine pursuant to La. R.S. 40:967(C). He entered a not guilty plea on January 3, 2008. A hearing on motions began on February 11, 2008, and concluded on February 19, 2008, with the district court finding probable cause, denying the motion to suppress the evidence, and granting the motion to suppress the statement. Following a jury trial on April 28, 2008, the appellant was found guilty as charged. He was sentenced on May 5, 2008, to serve a suspended four-year sentence. The appellant was placed on four years of active probation with special conditions, fines, and fees imposed. His motion for appeal was granted on July 14, 2008.

STATEMENT OF FACT

New Orleans Police Officers Torres and Mitchell and Sergeant LaCabe were on patrol in a marked police vehicle on the evening of November 3, 2007. They were on North Dorgenois Street at approximately 7:00 p.m. when they observed a red Ford Mustang traveling southbound on O’Reilly Street. The Mustang stopped for a stop sign, and the officers observed that the driver of the Mustang was not 12wearing a seatbelt. The window on the Mustang was down, and the street was well lit by streetlights.

As the Mustang continued further down the street, the driver failed to yield to a Regional Transit Authority bus traveling down St. Bernard Avenue, causing the driver of the bus to apply the breaks in order to avoid a collision with the Mustang. At that point, the officers decided to initiate a traffic stop. Officer Mitchell, who was driving, positioned the police vehicle behind the Mustang, and activated the lights, siren, and spotlight. After a short distance, the driver of the Mustang pulled over onto the side of the road. However, just before the Mustang stopped, Officer Torres and Sergeant La-Cabe observed the passenger of the Mustang extend his arm outside of the window and drop two white objects onto the pavement.

Sergeant LaCabe, who was sitting in the front, passenger seat of the police vehicle, kept his focus on the dropped objects. Once the vehicle stopped, he immediately went to the discarded objects. He retrieved the objects, and he informed Officers Torres and Mitchell that the objects appeared to be crack cocaine. The two occupants of the Mustang, Russell Davis and Dwayne White, were ordered out of the vehicle. Officer Torres informed the passenger, who was later identified as Dwayne White, that he was being arrested for possession of the two bags of cocaine, and he was advised of his rights. The driver of the Mustang, Russell Davis, was also handcuffed and placed in the back seat of the police vehicle with Dwayne White until after the canine unit searched the vehicle and found no additional contraband. After ascertaining that there were no drugs in the |3vehicle the officers released Mr. Davis and issued him a citation for no seat belt, failure to yield, and no driver’s license.

At trial, the parties stipulated to the fact that Officer John Palm was an expert in the examination and identification of cocaine and that the substance discarded by the appellant from the Mustang tested positive for cocaine.

ERRORS PATENT

None.

ASSIGNMENT OF ERROR NUMBER 1

By his first assignment of error, the appellant asserts that he was prevented from presenting his case because the trial court limited cross-examination insofar as he tried to show that the wrong person was arrested and that the officers were less than truthful in their testimony.

The Sixth Amendment to the United States Constitution guarantees an accused in a criminal prosecution the right to be confronted with the witnesses against him. An accused is entitled to confront and cross examine the witnesses against him. La. Const, art. I, § 16. La. C.E. art. 611(B) provides that a witness may be cross-examined on any matter relevant to any issue in the case. Due process affords a defendant the right of full confrontation and cross examination of the State’s witnesses. State v. Van Winkle, 94-0947, p. 5 (La.6/30/95), 658 So.2d 198, 201-202. The trial court has the discretionary power to control the extent of the examination of witnesses as long as the court does not deprive the defendant of his right to effective cross-examination. State v. Hawkins, 96-0766, p. 6 (La.1/14/97), 688 So.2d 473, 479; State v. Robinson, 99-2236, p. 6 (La.App. 4 Cir. 11/29/00), 772 So.2d 966, 971, reversed on other grounds, 2001-0273 (La.5/17/02), 817 So.2d 1131. It has been held that evidentiary rules may not | supersede the fundamental right to present a defense. Id. However, evidence may be excluded if it is irrelevant. See State v. Casey, 99-0023, pp. 18-19 (La.1/26/00), 775 So.2d 1022, 1037.

A witness, on cross-examination, may be questioned on any matter relevant to any issue in the case, including credibility. La. C.E. article 611(B). However, relevant evidence may be excluded if its “probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time.” La. C.E. article 403. All evidence including attacking the credibility of a witness is subject to the balancing test of the La. C.E. article 403. Absent an abuse of discretion, a trial court’s ruling on the scope and extent of cross-examination will not be disturbed on review. State v. Coleman, 406 So.2d 563, 568 (La.1981); State v. Fleming, 574 So.2d 486, 495 (La.App. 4th Cir.1991).

Further, confrontation errors are subject to the harmless error analysis; the verdict may stand if the reviewing court determines that the guilty verdict rendered in the particular trial was surely unattributable to the error. State v. Broadway, 96-2659, p. 24 (La.10/19/99), 753 So.2d 801, 817.

The appellant cites several instances of the trial court sustaining objections made by the State during defense counsel’s cross-examination of Officers Torres and Mitchell.

The appellant argues that counsel was prevented from questioning Officer Torres about the owner of the vehicle, Ms. Pamela White. Ms. White arrived at the scene after the defendant had been arrested. At some point, after it was ascertained that there was no contraband in the vehicle, the Mustang was relinquished to Ms. White. Ms. White testified for the defense and stated that she was Dwayne | ^White’s aunt, and the driver of the vehicle, Russell Davis, was her son. Ms. White also verified that the windows on her Mustang were tinted.

At trial, Officer Torres admitted that Ms. White came to the scene and that this fact was left out of the police report. Counsel then asked the officer whether he spoke to the woman, and he replied that he did not. Next, counsel asked who gave Ms. White back her keys, and the officer replied that he did not know. Counsel then continued this line of questioning attempting to have Officer Torres verify that he did not know who gave the woman her keys. The State objected. The court sustained the objection, finding the issue concerning Ms. White to be irrelevant. The trial court noted “I don’t see the relevancy of returning of the keys to a lady who may have owned the vehicle.”

We find no abuse of discretion in the trial court’s ruling sustaining the objection on relevancy grounds. Who returned the keys to the owner of the vehicle is irrelevant to the issue of whether the appellant physically possessed cocaine. Officer Torres had already admitted to the omission of this information from his report. However, even if the trial court erred in sustaining the objection, the error was harmless because the guilty verdict was surely unattributable to any such error. Id. at 817.

The appellant also argues that he was thwarted in his attempts to question Officer Mitchell regarding the absence of any mention in the police report of the K-9 unit being deployed as the K-9 unit’s failure to find additional drugs was the |r,basis for the release of the driver of the vehicle. The trial court found this line of questioning concerning the absence of information as to how and when the K-9 unit was called to the scene to be irrelevant and a collateral issue. The evidence the defense counsel sought to elicit was not relevant to the appellant’s guilt or innocence based on the instant facts. Notably, Officer Mitchell was not the author of the report, and he would not have been privy to Officer Torres’ reasons for omitting this detail. Moreover, counsel had already thoroughly questioned Officer Torres’ regarding the matter. Officer Torres stated that it was error on his part for not having included the information in the police report. This claim is without merit.

The appellant contends that he was prevented from questioning Officer Mitchell about the owner of the vehicle coming to retrieve her car. The line of questioning to which he refers begins with counsel asking Officer Mitchell whether he remembered Ms. White coming to the scene and asking why her son was being arrested. Counsel then asked whether the officer remembered his reasons for releasing the driver. The State objected, and the district court again sustained the objection on relevancy grounds, noting that if counsel believed the driver possessed the alleged cocaine, he could argue that to the jury.

Officer Mitchell testified that he did not remember the owner coming to retrieve her vehicle. Counsel asked the officer where he was during that time, and the State objected. The trial court sustained the objection by again noting that the fact of Ms. White’s coming to retrieve her vehicle was irrelevant to the issue before the jury. There appears to be no error in that ruling for reasons noted above in defence counsel’s cross examination of Officer Torres. Here, counsel attempted to attack the credibility of the officer by his lack of memory; however, the fact that |7Ms. White arrived at the scene after the arrest of appellant is irrelevant to the issue of whether the appellant possessed cocaine. In any event, if an error is presumed, it was harmless. Id. at 817.

Additionally, as a part of this assignment of error, the appellant complains that the trial court prevented him from asking Officer Mitchell any details concerning the Regional Transit Authority bus that almost collided with the Mustang. In this particular instance, counsel asked whether the officer obtained the name of the driver of the bus or the number on the front of the bus, and the officer replied that he did not because no accident occurred. Counsel then asked the officer whether Regional Transit Authority buses have numbers on them, and the State objected. The trial court sustained the objection on relevancy grounds. There is no error in this ruling. The number of the bus that almost collided with the Mustang is irrelevant to the issue of whether appellant possessed cocaine.

The appellant also asserts that the district court thwarted his attempts to elicit testimony from Officer Mitchell that would show that the wrong person had been arrested. Appellant’s theory of the case is in essence that the police arrested the wrong person and that the police officers were less than truthful in their testimony. The appellant complains that it was judicial error as he was improperly prevented from demonstrating that the driver, Russell Davis, not the appellant/passenger, Dwayne White, was actually guilty of the instant act of possession.

IsThe appellant testified as to his version of the events that transpired relevant to his arrest for possession of cocaine. He asserted that once they were pulled over by the officers, both he and his cousin were placed on the back of the vehicle and searched. The officers found nothing. Approximately twenty minutes later, Sergeant LaCabe returned saying he found something alongside the road that appeared to be cocaine. He then asked which of the two men was going to take the blame for the cocaine. When neither he nor his cousin replied, Sergeant La-Cabe decided to arrest appellant for the cocaine. The appellant asserts that he was arrested for the cocaine possession because of another case that he and Sergeant LaCabe were involved in which he was never convicted. After appellant posted bail, he filed a report against Sergeant LaCabe with the Public Integrity Unit of the police department, and the investigation was ongoing. Appellant also denied tossing the cocaine out of the Mustang. He testified that his window was closed and that he never told the officers that the cocaine was his.

In rebuttal, Sergeant LaCabe denied saying anything to appellant regarding a previous case that he worked on involving the appellant. He also stated that he was aware of the complaint filed against him by appellant. The officer testified further that after being advised of his rights, appellant admitted to having thrown narcotics from the Mustang.

In the instant case, Officer Torres and Sergeant LaCabe each testified that he directly observed appellant discard cocaine rocks to the ground through the passenger side window of the red Mustang. On his behalf, the appellant and Ms. White both testified, contradicting testimony of the State’s witnesses, denying that he ever possessed cocaine, and implying either that the contraband belonged to Russell Davis or that Sergeant LaCabe had planted the narcotics on the appellant. 1aWhich of the two versions of the events that transpired was more plausible is clearly a question of credibility and fact to be made by the jury. We cannot decipher the allegations made by defense counsel on this issue. However, what is reinforced by the record is that this issue was ultimately determined by the jury that the defendant was guilty as charged.

In sum, the district court properly sustained all of the State’s objections on relevancy grounds. This Court discussed relevant evidence in State v. Hall, 2002-1098, p. 8 (La.App. 4 Cir. 3/19/03), 843 So.2d 488, 495-196:

Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. La. C.E. art. 401. Relevant evidence is generally admissible. La. C.E. art. 402. Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time. La. C.E. art. 403.
A trial court’s ruling as to relevancy will not be disturbed absent a clear abuse of discretion. State v. Lewis, 97-2854 (La.App. 4 Cir. 5/19/99), 736 So.2d 1004; State v. Badon, 95-0452 (La.App. 4 Cir. 11/16/95), 664 So.2d 1291. A trial court is vested with much discretion in determining whether the probative value of relevant evidence is substantially outweighed by its prejudicial effect. See State v. Lambert, 98-0730 (La.App. 4 Cir. 11/17/99), 749 So.2d 739; State v. Brooks, 98-0693 (La.App. 4 Cir. 7/21/99), 758 So.2d 814.

None of the evidence sought to be elicited by defense counsel as to the ownership of the car, the presence of the K-9 unit, the presence of Pamela White on the scene, or the number of the Regional Transit Authority bus, was directly related to the decisive issue before the jury, namely, whether the appellant was observed by officers discarding cocaine from the passenger window of the | inMustang that they were in the process of pulling over. These issues have no bearing on the existence of any fact that was of consequence to the determination of the action, and would not make such facts more or less probable in the mind of the jury.

There was no clear abuse of discretion in the district court’s sustaining the State’s relevancy objections. This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER 2

By his final assignment of error, the appellant asserts that the trial court erred in commenting upon the evidence in front of the jury.

La.Code Crim. P. art. 772 provides:

The judge in the presence of the jury shall not comment upon the facts of the case, either by commenting upon or recapitulating the evidence, repeating the testimony of any witness, or giving an opinion as to what has been proved, not proved, or refuted.

One element of a fair trial is the requirement of complete neutrality on the part of the judge. State v. Jones, 593 So.2d 802, 803 (La.App. 4 Cir.1992). It is the duty of the trial judge to abstain from any expression of opinion or comment on facts or evidence in a criminal jury trial. State v. Williams, 375 So.2d 1379 (La.1979). Reasons given by the trial judge in the jury’s presence for his rulings on objections for admitting or excluding evidence or explaining the purpose for which evidence is offered or admitted are not objectionable as comments or expressions of opinion provided they are not unfair or prejudicial to the accused. State v. Edwards, 420 So.2d 663, 679 (La.1982).

The instances to which the appellant refers are the same as those noted above in his first assignment of error. In the first instance, the State’s objection to defense counsel’s questions surrounding the returning of the keys to the owner of |nthe Mustang was sustained on relevancy grounds, the court finding that the fact was collateral to the real issue in the case. The second instance involves defense counsel’s attempt to question Officer Mitchell regarding the absence of any mention in the police report of the K-9 unit being deployed. The court sustained the State’s objection on relevancy grounds and again noted that it was a collateral issue. The third instance involves defense counsel’s questioning of Officer Mitchell regarding his reasons for releasing the driver of the Mustang. Again, the district court sustained the State’s objection on relevancy grounds, noting that his reason for releasing the driver is of no moment. The fourth instance involves the number on the front of the Regional Transit Authority bus that almost collided with the Mustang. The court sustained the State’s objection on relevancy grounds.

As the four examples clearly illustrate, the district court merely explained its reasons for sustaining the State’s objections; it neither commented on the evidence in a manner prejudicial to the appellant, nor, did it imply an opinion as to the appellant’s guilt or innocence.

In fact, the district court explicitly explained on the record its role in determining the admissibility of evidence and its ability to comment on the evidence when it admonished:

Ladies and gentlemen of the Jury, I want you to know that the law allows the Judge to offer an explanation of why he or she is ruling the way they are. The law allows me to do what I just did, as I appreciate the law. The law does not allow me to comment on the evidence. I am not commenting on the evidence. I’m commenting on whether or not it’s admissible or not. And because I’ve ruled it’s not admissible, I’m explaining why. That’s all.

The court clearly made an effort to enlighten the jury as to its role in the case and to insure that the jurors did not view his comments as going to the weight of the evidence against the appellant. Therefore, the district court’s comments were 1 ^permissible and do not constitute error. Accordingly, this assignment of error is without merit.

Based on applicable law and jurisprudence we find no abuse of discretion by the trial court in limiting cross-examination by the defense counsel at trial. Based on the above and foregoing we find no error in the trial court’s permissible commentary on the evidence in the presence of the jury. Accordingly, we affirm the defendant’s conviction and sentence.

AFFIRMED.

      . The K-9 unit was called after the Mustang was stopped and the passengers were removed from the vehicle.

      . Officer Torres and LaCabe could not remember whether the windows on the Mustang were tinted.

      . Officer Torres was the author of the police report.

      . As the State correctly notes, this case does not involve "constructive” possession of cocaine. Two officers testified that they observed appellant physically discard cocaine from the passenger window of the Mustang. Hence, establishing ownership of the vehicle is really of no consequence.

      . Based upon questions asked of Sergeant LaCabe, who testified after Officer Mitchell, counsel apparently sought to get before the jury the possibility that the driver was released only because Ms. White begged the officers to release him. However, the officers testified consistently that her son was released only after the canine failed to alert to any additional drugs inside the Mustang. Though Ms. White testified at trial for the defense, counsel failed to question her regarding her alleged conversation with the officers insofar as she begged for her son’s release.