text:
    Alicia Margarita ESCOBAR v. CAJUN OPERATING COMPANY
    NO. 2016 CA 0558
    Court of Appeal of Louisiana, First Circuit.
    DECEMBER 22, 2016
    Peter J. Wanek, Lynda A. Tafaro, Trevor C. Davies, Kathryn T. Trew, New Orleans, LA, Attorneys for D efendant-App el-lant, Cajun Operating Company
    John C. Orgeron, Cut Off, LA, Attorney for Plaintiff-Appellee, Alicia Margarita Escobar

      BEFORE: HIGGINBOTHAM, THERIOT, AND CHUTZ, JJ.
   HIGGINBOTHAM, J.

|2The owner-operator of a restaurant appeals a judgment awarding damages to a customer for alleged injuries .she sustained when her finger was caught on the underside of a chair at the restaurant.

BACKGROUND

Alicia Escobar filed suit against Cajun Operating Company (“Cajun”), the owner-operator of a Church’s Fried Chicken restaurant in Thibodaux, Louisiana. Alicia alleged that on October 18, 2014, she injured her right index finger on the underside of a chair at the restaurant, as she sat in the chair while simultaneously moving the chair closer to a table. Alicia’s finger somehow became pinched between the underside of the seat and the chair’s frame, causing a painful laceration of her fingernail that involved the nail bed. Alicia’s mother, Susan Martinez, who was dining at the restaurant with Alicia, informed the restaurant’s employees that they should remove the chair before someone else was injured, and she proceeded to drive Alicia to the emergency room at Thibodaux Regional Medical Center. Alicia’s injured finger was not fractured, and the injury did not require surgery or stitches. She was treated with antibiotics, pain medication, and a tetanus shot. After her finger was bandaged, Alicia was discharged from the emergency room. Six days later, on October 24, 2014, she followed up with an orthopedic physician, Dr. Christopher E. Ce-nac, Jr., but no further treatment was needed as the wound continued to heal. Alicia experienced sensitivity and numbness in her finger for three to four months. Her fingernail eventually fell off and a new one grew in its place. Her new fingernail has a normal appearance, with no permanent disfigurement.

The matter proceeded to a bench trial on February 5, 2016. Alicia and her mother were the only two witnesses to testify. They both recalled that Alicia sat and | «got up twice from the chair without incident as they waited for their food to be prepared. When she sat for the third .time and attempted to pull the chair up to the table to eat, her finger got caught under the seat and was cut. Alicia testified that she did not know what had actually cut her finger, but she believed that the bottom part of the chair somehow separated from the chair’s frame as she moved the chair. Neither Alicia nor her mother observed anything obvious or unusual that indicated a problem with the chair prior to her injury, and neither of them had any evidence to suggest that the problem had ever occurred before. Alicia’s mother testified that she saw that the bottom of the chair was loose when an employee pulled the chair to the back of the restaurant after her daughter was injured. Alicia and her mother stated that they had no evidence that any of the restaurant’s employees knew of a problem with the chair, and neither of them knew how long the problem had existed before Alicia was injured.

At the conclusion of Alicia’s case-in-chief, Cajun moved for an involuntary dismissal, asserting that Alicia had failed to prove that any employees or managers at the restaurant knew or should have known of the problem with the chair. Alicia’s counsel countered that the doctrine of res ipsa loquitur could be applied to find negligence on the part of the restaurant. The trial court denied the motion for involuntary dismissal, and ultimately ruled at the close of all evidence that constructive notice could be satisfied in part by res ipsa loquitur. The trial court signed a judgment in favor of Alicia and against Cajun on February 22, 2016. Alicia was awarded $1,757.66 for past medical expenses and $5,500.00 in general damages. Cajun appeals the trial court’s judgment, asserting four assignments of error: (1) the trial court erred in denying Cajun’s motion for involuntaiy dismissal; (2) the trial court erred in applying the doctrine of res ipsa loquitur, (3) the trial court L erred in assuming an existence of a defect without proof; and (4) the trial court’s general damage award was abusively high for a lacerated finger.

DISCUSSION

Involuntary Dismissal

Cajun maintains that the trial court should have granted its motion for involuntary dismissal since Alicia did not prove that a defect existed prior to the incident and Alicia admitted that she had no proof that the restaurant’s employees had knowledge of the problem with the chair. Because actual or constructive knowledge of a defect is an essential element of Alicia’s claim for damages under La. Civ. Code art. 2317.1, Cajun submits that the trial court erred in denying the motion for involuntary dismissal. Louisiana Code of Civil Procedure article 1672(B) affords the trial court discretion to render or to decline to render any judgment until the close of all evidence. Smith v. Gramercy Ins. Co., 2015-0845 (La.App. 1st Cir. 3/10/16), 189 So.3d 497, 500. The purely discretionary decision of a trial court to deny a motion for involuntary dismissal at the close of a plaintiffs case and then render a decision after hearing all of the evidence presented in the matter, leaves nothing for this court to review on appeal concerning the motion for involuntary dismissal. Id. Accordingly, we find Cajun’s first assignment of error to be without merit.

The Doctrine of Res Ipsa Loquitur

Cajun next asserts that the trial court erred in applying the doctrine of res ipsa loquitur to infer negligence on the part of the restaurant when there was no evidence |Bthat any of the restaurant’s employees knew or should have known of a problem with the chair. In this case, Alicia alleged that she was injured by a defective thing — a chair — owned or possessed by the restaurant operated by Cajun. As such, the general negligence principles found in La. Civ. Code art. 2317.1 are the applicable law, providing:

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case. [Emphasis added.]

The concept of constructive knowledge under La. Civ. Code art. 2317.1 imposes a reasonable duty to discover apparent defects in the thing in the defendant’s legal custody. Broussard v. Voorhies, 2006-2306 (La.App. 1st Cir. 9/19/07), 970 So.2d 1038, 1045, writ denied, 2007-2052 (La. 12/14/07), 970 So.2d 535. In order to recover under Article 2317.1, Alicia was required to establish that the chair was in the restaurant’s custody, that the chair contained a defect which presented an unreasonable risk of harm to others, that this defective condition caused the damage, and that the restaurant’s employees knew or should have known of the defect. See Thompson v. Nelon’s Fast Foods, Inc., 42,825 (La.App. 2d Cir. 1/23/08), 974 So.2d 835, 836.

Cajun concedes that it had custody of the chair. For purposes of this analysis, we assume, as did the trial court, that Alicia’s injury was caused by some sort of defective condition on the underside of the chair that was not readily apparent. The |6trial court relied on the uncontradicted testimony of Alicia’s mother who observed that the bottom of the chair was in fact loose after her daughter was injured. The record reasonably supports that finding of fact. Thus, we focus on the element of the restaurant’s knowledge of the defective condition. Alicia concedes that no one, not even the restaurant’s employees, had actual knowledge of a defect in the chair, leaving the issue of whether the restaurant’s employees had constructive knowledge of the defect.

When she sat on the chair the first two times, Alicia herself noted no apparent or obvious defect. It was only when she sat in the chair for the third time, while simultaneously moving the chair closer to a table, that Alicia experienced the problem with the chair. There was no evidence as to how long the defective condition that caused Alicia’s injury existed, so there was nothing to support a finding that those, responsible for the condition of the chair had time to discover the danger and guard the public from injury. The trial court relied o.n the doctrine of res ipsa .loquitur to satisfy the element of constructive notice. Cajun maintains that this was error, and we agree. The trial court erred in applying the doctrine to this case.

Res ipsa loquitur (the thing speaks for itself) is not a substantive legal tenet, but rather an evidentiary doctrine under which a. tort claim may be proved by circumstantial evidence. Broussard, 970 So.2d at 1043. The doctrine permits the inference of negligence from the surrounding circumstances, and assists the plaintiff in presenting a prima facie case of negligence when direct evidence is not available. Cangelosi v. Our Lady of the Lake Regional Medical Center, 564 So.2d 654, 665 (La. 1989) (on rehearing). Generally, the doctrine is applicable.in cases involving only circumstantial evidence, when all of the following three criteria are met; (1) the injury is of the kind which does not ordinarily occur in the absence of negligence; (2) the evidence sufficiently eliminates other more probable causes of the injury, 17such as the conduct of the plaintiff or a third, person; and: (3) the alleged negligence of the defendant must be within the scope of its duty to the plaintiff. Linnear v. CenterPoint Energy Entex/Reliant Energy, 2006-3030 (La. 9/5/07), 966 So.2d 36, 43-44. If reasonable minds cannot conclude that all three criteria are satisfied, then the legal requirements for the use of res ipsa loquitur are not met. Id., 966 So.2d at 44.

In this case, while direct evidence of the restaurant’s constructive knowledge may have been available, no testimony or evidence was introduced regarding the restaurant’s inspection or care of the chairs in the dining area, nor was there evidence of any of the chairs having such loose seats that the restaurant’s employees should have known of a defective condition. Alicia offered only circumstantial evidence from which the restaurant’s negligence might have been inferred. However, using the analysis outlined by our Supreme Court in Linnear, we find that the second criteria for the use of res ipsa loquitur to infer negligence is not met in this case. The facts do not suggest that the negligence of the restaurant, rather than some other factor, is the most plausible explanation for Alicia’s injury. The evidence does not sufficiently eliminate other probable causes of the injury such as the conduct of a third person, e.g., the manufacturer or designer of the chair. The evidence does not specifically eliminate the possibility that Alicia’s injury was the result of a defective design of the chair. The trial court acknowledged such a possibility in its oral reasons:

Whether or not the injury resulted from either a loose screw or a loose bolt holding that seat to the frame, or whether it was a defective condition to where the plastic seat just, itself, flexed too much and would allow the possibility of a hand being pinched. The Court still doesn’t see a big difference. The Court can find, just based upon common sense, and what I just stated, that that could constitute a defective design. [Emphasis added.]

IsBased upon the possibility that Alicia’s injury was caused by a design defect rather than the restaurant’s negligence, we conclude that the doctrine of res ipsa lo-quitur is not applicable in this matter. The trial court erred in applying the doctrine to hold Cajun responsible for Alicia’s injury. There is no evidence that Cajun knew or should have known of the defective condition or any problem with the chair in its possession; therefore, Alicia has failed to establish all of the elements of her negligence claim against Cajun. Accordingly, we reverse and render judgment in favor of Cajun. All remaining assignments of error are rendered moot in light of our reversal.

DECREE

For the outlined reasons, the trial court’s judgment in favor of the plaintiff, Alicia Escobar, is reversed. Judgment is rendered in favor of the defendant, Cajun Operating Company, and the plaintiffs claims are hereby dismissed. All costs of this appeal are assessed against the plaintiff, Alicia Escobar.

REVERSED AND RENDERED.

      . Louisiana Code of Civil Procedure article 1672(B) provides, with emphasis added:
      In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.

      . Similarly, claims made pursuant to the Louisiana Merchant Liability Statute, La. R.S. 9:2800.6(B), require proof of actual or constructive knowledge on the part of the merchant concerning the hazardous condition on the premises that caused the damage prior to the occurrence. However, because Alicia's claim concerns an injury arising out of an allegedly defective chair, as opposed to a hazardous condition on the restaurant’s premises that caused her to fall, we find that the more appropriate statute governing Alicia's claim is La. Civ. Code art. 2317.1.


source: Caselaw Access Project

author: Judge Rosemary Ledet BELSOME, J.,

license: Public Domain

text:
    STATE of Louisiana v. Billy R. LEWIS
    NO. 2016-KA-0224
    Court of Appeal of Louisiana, Fourth Circuit.
    DECEMBER 29, 2016
    Rehearing Denied January 18, 2017

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, PARISH OF ORLEANS, 619 South White Street, New Orleans, LA 70119 COUNSEL FOR APPEL-LEE/STATE OF LOUISIANA
    Christopher A. Aberle, LOUISIANA APPELLATE PROJECT, P.O. Box 8583, Mandeville, LA 70470-8583 COUNSEL FOR DEFENDANT/APPELLANT .
    (Court composed of Chief Judge James F. McKay, III, Judge Roland L. Belsome, Judge Rosemary Ledet)
   Judge Rosemary Ledet

| T This is a criminal appeal. The defendant, Billy Lewis, appeals his two convictions for second degree murder, in violation of La. R.S. 14:30.1,. and two life sentences. For the reasons that follow, we affirm.

STATEMENT OF THE CASE

On October 10, 2002, the defendant, Mr. Lewis, and a co-defendant, Ronald Anderson, were charged by grand jury indictment with two counts of first degree murder, in violation of La. R.S. 14:3o. The charges stemmed from the July 24, 2002 shooting deaths of sixteen-year-old Travis Webb (“Travis”) and his eleven-year-old niece, Daveion Jones (“Daveion”). On October 25, 2002, Mr. Lewis pled not guilty at his arraignment. On October 19, 2009, the State amended the charges against Mr. Lewis to two counts of second-degree murder. Mr. Lewis pled not guilty to those charges.

Following a four-day trial, the jury found Mr. Lewis guilty as charged on both counts; the district court sentenced him to life imprisonment. Although this [ 2court affirmed the convictions, the Louisiana Supreme Court reversed based on the denial of back strikes during voir dire. State v. Lewis, 10-1775 (La.App. 4 Cir. 4/4/12), 96 So.3d 1165, writ granted, 12-1021 (La. 12/14/12), 104 So.3d 425, rev’d, 12-1021 (La. 3/19/13), 112 So.3d 796, reh’g denied (5/3/13). The Supreme Court remanded the matter for a new trial.

On September 14, 2015, Mr. Lewis’ new trial commenced; it concluded three days later. The jury found him guilty on both counts of second degree murder. On October 2, 2015, Mr. Lewis filed motions for arrest of judgment, downward departure of sentence, and new trial. On October 19, 2015, the district court denied all three motions. On October 23, 2015, the district court sentenced Mr. Lewis to two concurrent life sentences without benefit of probation, parole, or suspension of sentence, with credit for time served. This appeal followed.

STATEMENT OF THE FACTS

Two days before the shootings, one of the homicide victims, Travis, had a physical altercation with Mr. Lewis’ sixteen-year-old friend, Dominique Jones (“Dominique”), during which he pushed her. Dominique lived in the same neighborhood as Travis. Ezekial Harris (“Ezekial”), Travis’ best friend and neighbor for five years before his death, testified that on the day after the physical altercation, Mr. Lewis rode around their neighborhood looking for Travis. The following day, Travis was shot.

On the day of the shooting, Ezekial and Travis worked together at an amusement park in New Orleans East; and they arranged to get together after work. On that night, Ezekial, Travis, and Travis’ girlfriend, Kieotha Brown |s(“Kieotha”), visited with friends. At about 11:00 p.m., they drove to Travis’ house and sat in the driveway conversing for about twenty minutes. Then, Travis went inside his house; and Ezekial walked across the street to his house. Five minutes later, Ezekial heard multiple gunshots. When the firing stopped, Ezekial looked out his kitchen window. He saw that the front door of Travis’ house was open and that Travis’ mother, Terry Varnado, was sitting outside crying.

Ms. Varnado testified that on the night of the shooting she was at her house on Intrepid Street in New Orleans, Louisiana. Six other people were at her house that night — her four grandchildren, which included Tierra Jones (“Tierra”) and Da-vieon; her son, Travis; and his girlfriend, Kieotha. At about 11:00 p.m., Ms. Varnado and her grandchildren were exercising in the back of the house when someone rang the front doorbell. At that time, Travis was taking a bath. Tierra, followed by her sister Davieon, went to answer the front door. A wrought iron screen door protected the wooden front door. When Tierra opened the wooden door, a man armed with a black gun and wearing a black hat and a bandanna around his mouth and over his ears stood on the front step. Tier-ra explained that she was not afraid because she thought the man was one of Travis’ friends playing with a BB gun. The man asked to speak with her Uncle Travis. Tierra closed the wooden door, leaving at best a crack in it; she apparently never opened the protective screen door. Tierra then went to summon Travis.

As Travis walked down the hall to the door, Tierra waited in the living room, standing by a mirror that faced the front door. Ms. Varnado walked behind Travis to the door. Before Travis reached the front door, Tierra heard gunshots. |4The gunfire blew open the front door. Ms. Varnado saw Tierra, Davieon, and Travis fall to the floor. When the shooting stopped, Ms. Var-nado ran to the front window and observed two unidentified men running from the front of her house with something in their hands. About that same time, Travis yelled, “She’s dying, get us to the hospital.”

At this point, Ezekial had come to the house. Ezekial placed Travis, who was shot in the stomach, and Tierra, whose hand was maimed by gunshots, in his sister’s car. Ezekial then returned inside the house to check on the other occupants. Davieon, who sustained a massive, fatal wound to her head, was dead in Ms. Varnado’s arms. Ms. Varnado called 911. As Ezekial drove Tierra and Travis to the nearest hospital, which was Lakeland Hospital, Travis told Ezekial that “Billy” and another man had shot him.

Detective Darryl Ribet, the lead detective, described the crime scene as a single family home lit by a porch light. When he arrived at the scene, both the screen door and the wooden front door were open, and each was riddled with bullet holes. Just inside the threshold, a young, deceased female was lying in a pool of blood caused by a massive injury to her head. Detective Ribet testified that the gunmen shot into the house from the outside. The ballistics evidence, which was lost in the aftermath of Hurricane Katrina, indicated that both a small caliber weapon and an assault rifle were used in the shootings. Detective Ri-bet directed Sergeant Kevin Seuzeneau to check on the status of the two surviving victims who |fiwere transported .to the hospital and to gather information from those victims. Detective Ribet later learned that Officer Jason Sloan performed the same function as Sergeant Seuzeneau.

When Sergeant Seuzeneau arrived at the hospital, he spotted Ezekial speeding away. Sergeant Seuzeneau stopped Ezekial, who had blood on his shirt. Ezekial told Sergeant Seuzeneau that he was on his way back to the crime scene. Sergeant Seuzeneau accompanied Ezekial there to ensure Ezekial made contact with the investigating officers. After he assessed the crime scene, Sergeant Seuzeneau relocated to the hospital to speak with the surviving victims. Although he was unable to speak with Tierra, Sergeant Seuzeneau spoke to Travis, who was on a stretcher in the emergency room. Sergeant Seuzeneau testified that Travis told him that “Billy,” Dominique’s friend, shot him. Travis was certain it was “Billy” who shot him because he saw “Billy” through the door. Travis, however, did not know Billy’s last name. A few moments later, Officer Sloan arrived at the emergency room.

Officer Sloan testified that Travis, who was conscious and lucid, told him that he knew that “Billy” was one of the shooters. He further testified that Travis explained he knew it was “Billy” because he saw “Billy” when he answered the door. Sergeant Seuzeneau also heard Travis tell Officer Sloan that it was “Billy” who shot him. Both Sergeant Seuzeneau and Officer Sloan relayed the information they received from Travis to the lead detective, Detective Ribet.

On the night of the shooting, New Orleans Police Department (“NOPD”) officers canvassed the neighborhood, locating a number of witnesses. Detective Ribet’s report reflects that a total of seven witnesses were interviewed immediately after the shooting, including Ezekial, Dominique, and Kieotha. Detective Ribet ran 16Mr. Lewis’ name through the computer and placed his photograph in a line-up for identification purposes. Although the witnesses who were interviewed identified Mr. Lewis’ picture, none of them was an eyewitness to the shooting.

Detective Ribet spoke with Ezekial before leaving the scene that night. Ezekial referred him to Dominique. Ezekial explained that he recognized Mr. Lewis from the neighborhood as Dominique’s boyfriend. He further explained that Dominique lived in their neighborhood — two blocks away from his house and Travis’ house. A few days after the shooting, Ez-ekial viewed a photograph lineup and identified “Billy” from seeing him in the neighborhood, while “Billy” had his hair braided by Dominique. Dominique informed the police that she met Mr. Lewis, who was twenty-seven years old,. at Wal-Mart. When Ezekial learned that the police were searching for a Green Mustang with black stripes, he provided the police with Mr. Sutton’s name as the owner of a vehicle fitting that description.

On the day after the shooting, Detective Ribet spoke with Mr. Sutton, who admitted that he owned a green Mustang in 2002 and that he loaned it to Mr. Lewis on the night of the shooting. Mr. Sutton testified at trial that he worked with Mr. Lewis at an amusement park in New Orleans East. He acknowledged that he loaned his green Mustang to the Mr. Lewis on July 24, 2002, at approximately 7:00 p.m., and that Mr. Lewis returned the vehicle around 11:00 p.m. that night.

Stacy Jenkins (“Stacy”) testified that she knew Mr. Lewis and that in 2002 he dated her sister, Lawanda Jenkins (“Lawanda”). Stacy explained that Mr. Lewis and her sister, Lawanda, had two children together. In 2002, she would see Lawanda at her house on a daily basis; Mr. Lewis usually was present unless he |7was working. Stacy further explained that, in 2002, she was dating Mr. Sutton, who at that time owned a green Mustang. Stacy saw Mr. Sutton on the day of the shooting between 5:00 p.m. and 6:00 p.m., riding his motorbike. She also saw Mr. Lewis that evening driving Mr. Sutton’s green Mustang. When she saw him, Mr. Lewis was talking to Mr. Anderson on the corner of Rocheblave and Columbus Street. Stacy-observed Mr. Anderson get into the green Mustang with Mr. Lewis and then drive away with him. ■

Based on the information the officers obtained, Detective Ribet prepared a warrant for Mr. Lewis’ arrest. The police located Mr. Lewis with the assistance of his cell phone records and the FBI. After the shooting, Detective Ribet made several unsuccessful attempts to interview Travis and Tierra. Travis was on a ventilator and died a month after the shooting without ever leaving the hospital; his death was classified a homicide. Tierra recovered from her injuries. A' month after the shooting, when her condition had improved, Tierra viewed a photograph lineup that Detective Ribet displayed to her, which contained Mr. Anderson’s photograph. Mr. Anderson had been developed as a suspect in this case based on a Cri-meStoppers’ tip. Tierra identified Mr. Anderson as one of the shooters.

Detective Ribet secured a warrant for Mr. Anderson’s arrest at his last known address on Duplessis Street. At that location, Detective Ribet made contact |swith Tamara Anderson, Mr. Anderson’s wife, who signed a consent to search the premises. From that location, Detective Ribet seized assault rifle ammunition. Subsequently, Ms. Anderson directed Detective Ribet to 3704 Gibson Street where she obtained an AK-47 rifle and turned it over to Detective Ribet. Other than Mr. Lewis and Mr. Anderson, no other suspects were developed in the murders of Travis and Davieon.

NOPD firearms examiner Kenneth Leary testified by stipulation as an expert in the fields of firearms examination and identification. Mr. Leary testified that three fired .40 caliber cartridge cases and two fired 7.62 mm jacketed lead bullets were recovered from the crime scene. The three .40 caliber cartridge cases were fired from the same weapon. Likewise, the 7.62 mm ammunition, which is used in a semiautomatic assault rifle known as an AK-47, was fired from the same rifle. Mr. Leary could not say with certainty that the AK-47 rifle that he tested in connection with this case was the weapon fired in the shootings. Mr. Leary tested another bullet, which was recovered from Lakeland Hospital. This bullet was similar to the AK-47 ammunition recovered from the crime scene, but this bullet did not exhibit sufficient striation to positively link it to the AK-47 rifle connected to this case.

Deputy Anthony Bruscato of the Plaque-mines Parish Sheriff’s Office executed a search warrant on Mr. Lewis’ residence in St. Bernard Parish in 2002. Incident to the warrant, Deputy Bruscato seized a letter from a bed in the | residence. Deputy Bruscato opined that the letter revealed the identity of the killer in this case and thus he contacted the NOPD.

DISCUSSION

Assignment of Error Number One

Mr. Lewis’ first assignment is that “[a]s one Judge on this Court has already found, all statutory delays for commencing trial had expired when Mr. Lewis filed- his motion to quash. The motion should have been granted.” Mr. Lewis’ reference is .to Judge Bonin’s dissent from this court’s denial of his writ application, which sought review of the same issue. Particularly, Mr. Lewis cites the following language from Judge Bonin’s dissent:

This period of suspension, unlike a period of interruption, which does not commence anew until the cause of the interruption disappears, only lasts “until the trial court rules on the filing of the preliminary plea.” State v. Rome, 630 So.2d 1284, 1287 (La. 1994). The period from the filing of the motion until the ruling is the relevant period of suspension, and “[t]he relevant period is simply not counted; and the running of the time resumes when the motions are ruled on.” Id. ... Notably, the other one-year period, that is the one-year minimum-guaranteed period which follows a ruling on the preliminary plea is not, strictly speaking, a period of suspension. It serves as additional protection to allow the prosecution the opportunity to prepare for trial. Because the trial judge ruled on the defendant’s preliminary plea on November 7, 2013, the state-had until Monday, November 9, 2014 to commence the trial of Mr. Lewis.
In finding that the period of suspension is continuing despite her ruling granting the motion, the trial judge misapplied the law, and her ruling on the motion to quasb is not entitled to our deference.

I mBoth this court and the Louisiana Supreme Court-denied Mr. Léwis’ writ application seeking review of the district court’s ruling denying his motion to quash. Under the law of the case doctrine, appellate courts generally decline to reconsider their own rulings of law on a subsequent appeal in the same case. State v. Duncan, 11-0563, p. 26 (La.App. 4 Cir. 5/2/12), 91 So.3d 504, 520 (citing Pitre v. Louisiana Tech University, 95-1466, p. 7 (La. 5/10/96), 673 So.2d 585, 589). The law of the case doctrine applies to all prior rulings or decisions of an appellate court or the Supreme Court in the same case, not only those arising from an appeal. Duncan, supra (citing State v. Molineux, 11-0275, p. 3 (La.App. 4 Cir. 10/19/11), 76 So.3d 617, 619).

Applying the law of the case doctrine, an appellate court will not reverse its pretrial- decision unless the defendant presents new evidence tending to show that the pretrial decision was patently erroneous and produced an unjust result. Duncan, supra (citing State v. Gillet, 99-2474, p. 5 (La.App. 4 Cir. 5/10/00), 763 So.2d 725, 728). Although a different decision on appeal is not absolutely precluded, judicial efficiency demands that great deference be accorded to the earlier decision. Id.

Here, Mr. Lewis failed to present any new evidence bearing on the correctness of this court’s prior decision denying his pretrial writ application seeking review of the district court’s denial of his motion to quash. State v. Lewis, 15-0021, (La. App. 4 Cir. 3/5/15) (unpub.). Thus, Mr. Lewis has failed to show that this court should not follow the law of the case doctrine and decline to exercise its discretion to reconsider its prior ruling on this issue.

^Regardless, turning to the merits of the motion to quash, we reach the same result. A trial court’s ruling on a motion to quash is discretionary and should not be disturbed by an appellate court absent a clear abuse of discretion. State v. Love, 00-3347, pp. 9-10 (La. 5/23/03), 847 So.2d 1198, 1206 (“[b]ecause the complementary role of trial courts and appellate courts demands that deference be given to a trial court’s discretionary decision, an appellate court is allowed to reverse a trial court judgment on a motion to quash only if that finding represents an abuse of the trial court’s discretion.”). See also State v. Sorden, 09-1416, p. 3 (La. App. 4 Cir. 8/4/10), 45 So.3d 181, 183; State v. Kitchens, 09-0834, 09-0836, p. 4 (La.App. 4 Cir. 3/24/10), 35 So.3d 404, 406; State v. Ramirez, 07-0652, p. 4 (La.App. 4 Cir. 1/9/08), 976 So.2d 204, 207. As the Supreme Court explained in Love, “[w]hen a trial judge exercises his discretion to deny a motion to quash, he presumably acts appropriately, based on his appreciation of the statutory and procedural rules giving him the right to run his court.” 00-3347 at p. 12, 847 So.2d at 1208.

Mr. Lewis’ position is that the Motion for Access and Inspection of Evidence he filed was not a preliminary plea as contemplated by La. C.Cr.P. art. 580(A), as it would not have delayed trial thereby triggering suspension of the running of the one-year time limit for retrial. In the alternative, he contends that even if the motion was a preliminary plea, which did suspend the one-year period within which the state had to bring him to trial, that period of suspension ended on November 7, 2013, when the trial court ruled upon the Motion for Access and Inspection of Evidence. He thus contends that more than one year elapsed between the district court’s ruling on that motion and November 17, 2014 — the date on | iawhich he filed the motion to quash. It follows, he contends, that the district court erred in denying his motion to quash.

The State counters that the Motion to Access and Inspect the Evidence was a preliminary plea, which suspended the time period to commence trial. Moreover, the State argues that as defense counsel had not yet viewed the evidence by the time the motion to quash was filed, defense counsel was not ready for trial at that time and would not be ready until the evidence was viewed. Agreeing with the State, the district court denied the motion to quash.

This court cannot conclude that the district court abused its discretion in denying Mr. Lewis’ motion to quash. Mr. Lewis’ Motion to Access and Inspect the Evidence was a preliminary pleading for purposes of suspending the time to bring him to trial under La. C.Cr.P. arts. 580 and 582. Although the district court granted Mr. Lewis’ Motion to Access and Inspect the Evidence shortly after it was filed in November 2014, the district court, sua sponte, noted the defense’s discovery request was still outstanding the week before the case was set for trial. As the district court explained in denying the motion to quash:

Although this Court granted the defense motion, thereby ruling on the motion, this Court is of the opinion that the defense counsel’s motion is still outstanding, even until this very day.
At a bench conference the week prior to this case being set for trial, defense counsel noted to this Court that he had not yet accessed evidence in the matter, as there were issues with the evidence being located. On the record yesterday, defense counsel still could not state whether he had actually accessed and inspected the evidence in preparation for trial in accordance with the Court’s ruling.
Since this Court had been made aware of the fact that there were issues surrounding the location of the evidence in this matter, the Court believed that the discovery had not been fully satisfied, as counsel had not even accessed the evidence.
|1sIt is this Court’s ruling that the time limitations have been suspended and therefore the State of Louisiana is not out of time to bring this matter to trial and therefore defense counsel’s Motion to Quash the Indictment is hereby denied.

Addressing a similar issue, the court in State v. Catalon, 14-768, p. 5 (La.App. 3 Cir. 12/23/14), 158 So.3d 114, 117-18, writ denied, 15-0462 (La. 1/8/16), 184 So.3d 692, remanded for an evidentiary hearing on the motion to quash. In so doing, the court noted:

Within this period, the trial court continued the case on its own to allow the defense time to changeover to newly-appointed counsel. At this hearing, former counsel for the defense appeared and informed the court that he would be turning over his entire discovery packet to Defendant’s new counsel the next week. The court responded by resetting the matter and issuing a new discovery order. Under similar circumstances, the supreme court has found such court action to suspend the prescriptive period. In [State v. Brooks, 02-0792 (La. 2/14/03), 838 So.2d 778, the supreme court found that the trial court’s own continuance, for the purpose of allowing a defendant time to substitute counsel, constituted a preliminary plea within the scope óf La.Code Crim.P. art. 580. The court reasoned that the trial court’s continuance, made solely to accommodate the defense and effectuate the defendant’s right to counsel, suspended prescription because the State’s ability to prosecute was affected until the matter of the defendant’s representation was settled. Id. As in Brooks, the trial court here continued the case to accommodate the defense. Similarly to Brooks, the State’s ability to prosecute was affected until Defendant’s new counsel had the opportunity to receive discovery material from former defense counsel and file any necessary motions. Accordingly, the trial court’s continuance on June 1, 2012, suspended the time period for commencing trial. The State had until June 1, 2013 to commence trial.

Id. The jurisprudence thus recognizes that, under certain circumstances, a trial court’s sua sponte action taken to benefit a defendant may result in a suspension of the statutory time limit to bring a defendant to trial. Such is the case here.

The district court, sua sponte, recognized that the defense’s discovery request had not been satisfied. Despite that the district court formally ruled on the discovery motion shortly after it was filed, the district court properly concluded luthat discovery had not been satisfied and thus could be considered “outstanding,” thereby suspending the time within which the State had to commence trial. Stated otherwise, the district court, in effect, granted its own discovery motion or continuance to allow defense counsel an opportunity before trial to .view the evidence. Because that extension was granted for Mr. Lewis’ benefit, it extended the time the State had to bring him to trial.

In finding no abuse of discretion, we find it significant, that Mr. Lewis failed to show any prejudice as a result of the delay. The lack of prejudice to the. defendant is one of the factors considered, in deciding whether a defendant’s constitutional right to a- speedy trial has been violated. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972) (identifying four factors to be considered — “[ljength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant”). The lack of prejudice to Mr. -Lewis buttresses our finding that the district court did not abuse its discretion in denying his motion to quash. For all these reasons, we find this assignment lacks merit.

Assignment of Error Number Two

Mr. Lewis’ second assignment is that “[t]he district court erred in refusing to grant a mistrial when the State declined to call a witness whom the State 'had promised in opening statement would testify to an oral confession Mr. Lewis had allegedly made to him in prison.” ■ The prosecutor made this statement toward the end of opening statement; particularly, the prosecutor told the jury the following about Mr. Lewis’ jailhouse confession to Norman Trahan:

Mr. Trahan will take this stand and tell you about a conversation that he had with Billy Lewis in 2014. At that time, Mr. Lewis told him that he believed he was getting away with murder; that Itfihe had two bodies on him, Travis Webb and Daveron [sic]. Those two bodies, he felt, he knew, he was confident he was getting away with murder[,]

To place this issue in context, a brief review of the record is required.

Three days before trial, the State filed its notice to use Mr. Lewis’ oral confession. The State’s notice indicated that the confession was made to a known witness in Orleans. Parish Prison between October and December 2014. On September 10, 2015, Mr. Lewis opposed the use of the confession on the basis that the notice was untimely and that it failed to provide specific information required by La. C.Cr.P. art. 716(B). On .the next day, the State amended its notice by naming the witness as Mr. Trahan.

On the first day of trial, which was September 15, 2015, the defense filed several motions, including a motion to continue the trial to investigate the facts and circumstances of the confession and a motion to exclude the evidence. In support, the defense claimed that the State was in possession of the information as early as January of 2015, yet waited until the eleventh hour to inform the defense. Denying that it was in possession of the confession before it notified the defense, the State refuted the defense’s argument. In addition, the State advised the district court that it had not offered Mr. Trahan any deal in exchange for his testimony. The district court denied the defense’s motion to exclude the confession at trial. The next day, before the taking of evidence, the district court once again denied the defense’s motion for a continuance, a mistrial, and an exclusion of Mr. Trahan’s testimony.

At various points during trial, the defense repeated its objection to the introduction of Mr. Trahan’s testimony. On the last day of trial, the State revealed that it had recently learned of additional information from another source that it should have disclosed to the defense. Ultimately, the State advised the district 11ficourt that it would not call Mr. Trahan to testify. As a result, the State argued that the defense’s motions for mistrial, for exclusion of the evidence, and for continuance were moot. Arguing the State’s reference to Mr. Trahan in its opening statement prejudiced Mr. Lewis because the jury would not hear from Mr. Trahan during trial, the defense maintained that the motions were not moot. The district court disagreed.

On appeal, Mr. Lewis contends that the prosecutor’s reference in opening statement to Mr. Trahan’s anticipated, but never introduced, testimony concerning Mr. Lewis’ confession to the murders of Travis and Davieon was so prejudicial as to require that his conviction be vacated. A “mistrial is a drastic remedy which should only be declared upon a clear showing of prejudice by the defendant.” State v. Leonard, 05-1382, p. 11 (La. 6/16/06), 932 So.2d 660, 667. The governing statutory provisions on mistrial are La. C.Cr.P. art. 770, 771, and 775. “The determination of whether actual prejudice has occurred, and thus whether a mistrial is warranted, lies within the sound discretion of the trial judge, and this decision will not be overturned on appeal absent an abuse of that discretion.” State v. Wessinger, 98-1234, p. 24 (La. 5/28/99), 736 So.2d 162, 183.

A prosecutor’s reference during opening statement to evidence that is ultimately not admitted can, in some instances, require reversal. State v. Bell, 279 So.2d 164 (La. 1973). The general rule, however, is that, “absent bad faith on the part of the prosecutor or clear and substantial prejudice, the reference in the opening statement to evidence later ruled inadmissible is not a ground for a mistrial.” State v. Green, 343 So.2d 149, 151 (La. 1977). The prosecutor’s opening statement is not evidence and has no probative force. Rather, it is designed to inform the jury so that they may understand the evidence as it unfolds and to | ^protect the defendant from surprise. La. C. Cr. P. art. 766; State v. Shaffer, 260 La. 605, 267 So.2d 121 (1971); State v. Kreller, 255 La. 982, 233 So.2d 906 (1970).

The scenario presented here is similar to the one presented in State v. Scott, 454 So.2d 851 (La. App. 5th Cir. 1984). There, the prosecutor stated in his opening statement that a police officer would testify that he used a license plate number to determine that the getaway vehicle in an armed robbery belonged to the defendant. The license plate number was never introduced in evidence. Finding no reversible error, the court in Scott explained:

Article 766 of the Louisiana Code of Criminal Procedure states that the State’s opening statement shall explain the nature of the charge and set forth, in general terms, the nature of the evidence by which the State expects to prove the charge. In State v. Green, 343 So.2d 149, 151 (La.1977), the court stated:
The general rule is that, absent bad faith on the part of the prosecutor or clear and substantial prejudice, the reference in the opening statement to evidence later ruled inadmissible is not a ground for a mistrial. The rule takes into account that proof frequently falls short of professional expectations.

Scott, 454 So.2d at 853.

Similarly, in Shaffer, supra, in which four defendants were tried and convicted of aggravated rape, the State declared in its opening statement that it would show that the medical findings in the case were compatible with rape and recent sexual intercourse. After the State rested its case, the defendants moved for a mistrial on the ground that they were prejudiced because no evidence had been offered as to those medical findings. Rejecting this argument, the Supreme Court reasoned that an opening statement has no probative force and that the failure to produce the medical evidence raised only a question of sufficiency of the proof, which was not a ground for a mistrial. See La. C.Cr.P. art. 775.

| isHere, the prosecution intended to present Mr. Trahan’s testimony regarding the jailhouse confession at trial. Subsequent to opening statements, the prosecution learned of information not previously contained in its file to which the defense was entitled. The State tendered that information to the defense on the third day of trial, acknowledged the late disclosure and the merit of the defense’s motion to exclude Mr. Trahan’s testimony, and decided that it would not present Mr. Tra-han’s testimony at trial. These facts preclude a finding of bad faith on the part of the prosecutor.

Moreover, Mr. Lewis has failed to show clear and substantial prejudice that would entitle him to a new trial. The district court cautioned the jury both at the beginning of trial, and at the time the case was released to them for deliberation that opening statements are not evidence. It is hard to imagine that Mr. Lewis could have been prejudiced by the exclusion of the evidence of a jailhouse confession. It is more likely that the jury would have viewed the State’s case in a less favorable light for its failure to present evidence it had “promised” the jury at the beginning of trial, Indeed, the Louisiana Supreme Court in State v. Johnson, 226 La. 30, 44-45, 74 So.2d 402, 407, in addressing a similar issue, noted this logical conclusion, stating:

[T]he mere fact that the district attorney mentioned it in his opening statement and did not offer it in evidence does not supply a sound predicate for concluding that appellant sustained injury thereby. Albeit, we know of no rule of law which requires that the State offer all evidence referred to by the prosecutor in his opening statement or any jurisprudence holding that the accused necessarily suffers prejudice if he does not. Quite the contrary, it would be more logical and reasonable to conclude that the failure or inability of the State to elicit any evidence outlined in the opening statement redounds to the advantage and benefit of the accused.

19Id.; see also State v. Augustine, 241 La. 761, 772, 131 So.2d 56, 60 (1961) (quoting Johnson, supra). Thus, it is more logical to conclude the State’s failure to introduce the alleged jailhouse confession redounded to Mr. Lewis’ benefit. We thus find no error in the district court’s denial of Mr. Lewis’ motion for a mistrial.

Mr. Lewis also complains of prejudice based on the trial testimony of Ms. Varnado, Travis’ mother, that Mr. Lewis admitted to a witness that he had killed her son. Mr. Lewis contends that Ms. Var-nado improperly alluded to Mr. Trahan’s anticipated testimony.

At trial, Ms. Varnado was the State’s first witness. During cross-examination, defense counsel posed questions to Ms. Varndao regarding what she saw on the night of the crime and was trying to impeach her with her testimony from the first trial. Defense counsel questioned Ms. Varnado about the fact that she had never given a description to the police of either of the men that she saw running from the scene through the window. After insisting that she had given a description to the police and then being shown that she had not, Ms. Varnado stated: “It may not be in be in the transcript but he already admit [sic] to doing what he did. Okay, he admit to someone. So when you get your other witness in here you can find out.”

As the State emphasizes, Ms. Var-nado’s testimony was given in response to defense counsel’s questioning of her on cross-examination. Ms. Varnado never identified Mr. Trahan as “the other witness” who would testify that Mr. Lewis confessed to the murders. Moreover, defense counsel failed to lodge an objection at any time during the trial to Ms. Varna-do’s statement or to move for a mistrial based on this testimony. See La. C.Cr.P. art. 841. Regardless, assuming, arguendo, either that the claim was preserved for appellate review or that a mistrial was Unwarranted under article 770, 771, or 775, or both, the district court’s failure to grant a mistrial would not result in an automatic reversal of Mr. Lewis’ conviction; it would constitute a trial error subject to the harmless error analysis on appeal. State v. Givens, 99-3518, p. 12, n. 8 (La. 1/17/01), 776 So.2d 443, 453. Trial error is harmless where the verdict rendered is “surely unattributable to the error.” State v. Johnson, 94-1379, p. 18 (La. 11/27/95), 664 So.2d 94, 102.

Here, Mr. Lewis failed to state how he was prejudiced by Ms. Varnado’s statement, considering that her statement was elicited by the defense coupled with the fact that she did not identify Mr. Trahan as the witness to whom Mr. Lewis had confessed. Moreover, the prosecution presented evidence that the victim, Travis, made dying declarations to three people— Ezekial, Sergeant Seuzeneau, and Detective Sloan — each time identifying Mr. Lewis as the shooter. Given the testimony of these three witnesses, it cannot be said the verdict in this case was attributable to any error. Based upon the record in this case, Mr. Lewis has failed to show he suffered prejudice warranting reversal of his conviction. This assignment lacks merit.

Assignment of Error Number Three

Mr. Lewis’ third, and final, assignment of error is that the non-unanimous jury verdict violated his right to a jury trial under the Sixth and Fourteenth Amendments. The Louisiana Supreme Court has previously rejected this same argument. In State v. Bertrand, 08-2215, p. 6 (La. 3/17/09), 6 So.3d 738, 742, the Supreme Court stated that under current jurisprudence from the United States Supreme Court, non-unanimous twelve-person jury verdicts do not violate the Sixth and Fourteenth Amendments. Rejecting a similar argument, this court recently stated:

21In State v. Bertrand, 2008-2215, pp. 6-7 (La. 3/17/09), 6 So.3d 738, 742, the Louisiana Supreme Court held that non-unanimous jury verdicts were not unconstitutional. The Court noted that La. C.Cr.P. art. 782 “withstands constitutional scrutiny,” and the Court refused to assume that the United States Supreme Court’s “still valid determination that non-unanimous twelve-person jury verdicts are still constitutional may someday be overturned.” Id., 2008-2215 at p. 8, 6 So.3d at 743. See also State v. Barbour, 2009-1258, p. 16 (La.App. 4 Cir. 3/24/10), 35 So.3d 1142, 1151, writ denied, 2010-0934 (La. 11/19/10), 49 So.3d 396, cert. denied, 562 U.S. 1217, 131 S.Ct. 1477, 179 L.Ed.2d 302 (2011) (rejecting a defendant’s argument that a non-unanimous jury verdict violated the Fifth, Sixth and Fourteenth Amendments, and noting “Bertrand is dispositive of defendant’s argument in this assignment of error which we find is meritless.”); State v. Frith, 2013-1133, pp. 18-19 (La.App. 4 Cir. 10/22/14), 151 So.3d 946, 957 (finding that a defendant failed to meet his burden of proving either that La. Const. art. I, § 17(A) or La.C.Cr.P. art. 782(A) is unconstitutional under the Equal Protection Clause of the Fourteenth Amendment' in a challenge to Louisiana’s system allowing non-unanimous jury verdicts).

State v. Hickman, 15-0817, pp. 13-14 (La. App. 4 Cir. 5/16/16), 194 So.3d 1160, 1168-69. For the same reasons, we find this assignment lacks merit.

DECREE

For the forgoing reasons, the defendant’s convictions and sentences are affirmed.

AFFIRMED

BELSOME, J., DISSENTS IN PART WITH REASONS AND CONCURS IN PART

BELSOME, J.,

DISSENTS IN PART WITH REASONS AND CONCURS IN PART

IH respectfully dissent from the majority opinion that the trial court did not abuse its discretion in denying the defendant’s motion to quash. Rather, I would find that the trial court misapplied the law and thus necessarily abused its discretion in denying the motion.

Pursuant to La. C.Cr.P. art. 582, when a defendant is granted a new trial, the State is required to commence the second trial within one year from the date the new trial is granted, or within the time limits set by La. C.Cr.P. art. 578, whichever period is longer. The State “bears a heavy burden” to prove either a suspension or an interruption of the time limit to commence trial to overcome a defendant’s apparently meritorious motion to quash based on prescription. State v. Rome, 93-1221 (La. 1/14/94), 630 So.2d 1284, 1286.

|2In this case, the Supreme Court decree ordering the defendant’s new trial became final on May 3, 2013. Therefore, pursuant to La. C.Cr.P. art. 582, the State had until May 5, 2014—one year from the order date — to commence retrial. However, the defendant filed a discovery motion requesting access and inspection to certain evidence on November 7, 2013. That motion, as the majority acknowledged, had the effect of suspending the time period for retrial to commence.

When a defendant files a preliminary pleading, the prescriptive period for the State to commence the second trial is suspended until the court rules on the pleading. La. C. Cr. P. art. 580 (emphasis added). The State shall not have less than one year after the trial court rules on the pleading to commence retrial. Id. Thus, the State must commence retrial one year from the date the trial court rules on defendant’s qualifying preliminary pleading. See State v. Campbell, 97-0358, p. 13 (La.App. 4 Cir. 5/20/98), 715 So.2d 488, 495, writ denied, 98-2485 (La. 2/12/99), 738 So.2d 564.

The record indicates that the trial court ruled on the motion on November 13, 2013. Therefore, the State had one year from that date to commence the retrial. I disagree with the majority’s reasoning that the trial court properly concluded that the defendant’s discovery request was still outstanding and thus the suspension remained ongoing.

The law is clear that a suspension triggered by a preliminary pleading terminates upon the ruling on the motion. Thus, I would find that the trial court 13was legally incorrect in denying Billy Lewis’s motion to quash. Accordingly, I would reverse that ruling and vacate his convictions and sentences.

In all other aspects of the majority’s decision, I concur.

      . On May 20, 2009, Mr. Anderson pled guilty to manslaughter under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970); he was sentenced to ten years.

      . Tierra testified that she did not remember anything until she woke up on the floor and discovered that she had been shot in the hand, face, and chest. She explained that Travis’ best friend Ezekial drove Tierra and Travis to Lakeland Hospital. She again lost consciousness when she arrived at the hospital and woke up two weeks later in Charity Hospital, where she had undergone numerous surgeries for her injuries.

      . The 911 operator testified at trial that the first 911 call from the crime scene was received at 11:09 p.m., July 24, 2002.

      . The green Mustang that Mr. Sutton owned was a very distinct vehicle. It was described as a lime or loud green car.

      . Travis lived about a month; however, he never was released from the hospital. As Travis convalesced, Ezekial testified that he visited and spoke with him almost every day until Travis’ death. Pathologist Dr. Gerald Liuzza performed an autopsy on Travis' body. Dr. Liuzza noted a gunshot wound to the front of the abdomen, left of mid-line. The bullet entered from the left side of Travis' body, passed through portions of the colon, small intestine, stomach, and liver, and exited the right flank area, just below the rib cage. In addition, Dr. Liuzza noted two wounds on the back of Travis’ right forearm. The body also exhibited a gaping surgical incision through the abdominal wall, created when emergency room physicians performed a laparotomy to repair the abdominal wound. Dr. Liuzza described findings of a tracheostomy, urinary catheter and intravenous lines. Dr. Liuzza noted the internal organs were badly infected by the gunshot, and he related all of Travis’ injuries to the gunshot wounds. Dr. Liuzza, like the corner, classified Travis’ death as a homicide.

      . The letter in question is undated and unsigned. The envelope accompanying the letter is post marked September 3, 2002, and addressed to "Tricey Lewis” with a return address of: "Billy Lewis #1104, H.O.D. S-3-8 Floor, 3000 Perdido Street, New Orleans, La. 70119.” In the letter, the writer enlists the aid of a female, directing her to call CrimeStop-pers and report that Keland "Jimmy” Milton was Ronald Anderson’s accomplice in these shootings.

      . In every criminal case, we review the record for errors patent. In this case, we found none.

      . The Louisiana Supreme Court likewise denied Mr. Lewis' writ application seeking review of the denial of his motion to quash. State v. Lewis, 15-0630 (La. 5/22/15), 171 So.3d 252.

      . See State v. Gregory, 2013-1593, p. 6 (La. App. 4 Cir. 3/5/14), 137 So.3d 663, 668, writ denied, 2014-0716 (La. 5/23/14), 140 So.3d 730. "A trial judge necessarily abuses her discretion in denying a motion to quash if her ruling is based on an erroneous view of the law.” '

      . La. C.Cr.P. art. 578. General Rule
      A. Except as otherwise provided in this Chapter, no trial shall be commenced nor any bail obligation be enforceable:
      (1) In capital cases after three years from the date of institution of the prosecution;
      (2) In other felony cases after two years from the date of institution of the prosecution; and
      (3) In misdemeanor cases after one year from the date of institution of the prosecution.
      B. The offense charged shall determine the applicable limitation.

      . May 3, 2014 was a Saturday.


author: JAMES F. MCKAY III, CHIEF JUDGE

text:
    STATE of Louisiana IN the INTEREST OF R.M.
    NO. 2016-CA-0972
    Court of Appeal of Louisiana, Fourth Circuit.
    JANUARY 11, 2017

      LEON A. CANNIZZARO, JR., DISTRICT ATTORNEY, ORLEANS PARISH, DONNA ANDRIEU, CHIEF OF APPEALS, ASSISTANT DISTRICT ATTORNEY, CHRISTOPHER J. PONO-ROFF, ASSISTANT DISTRICT ATTORNEY, 619 South White Street, New Orleans, Louisiana 70119, COUNSEL FOR STATE OF LOUISIANA
    KATHERINE M. FRANKS, LOUISIANA APPELLATE PROJECT, P.O. Box 1677, Abita Springs, Louisiana 70420, COUNSEL FOR APPELLANT
    (Court composed of Chief Judge James F. McKay III, Judge Roland L. Belsome, Judge Rosemary Ledet)
   JAMES F. MCKAY III, CHIEF JUDGE

| iThe juvenile, R.M., seeks appellate review of his delinquency adjudication for possession of cocaine, a violation of La. R.S. 40:967C(2). For the reasons that follow, we affirm the adjudication. We affirm the disposition as amended, and remand the matter to the trial court with instructions.

FACTUAL AND PROCEDURAL BACKGROUND

An adjudication hearing was held on June 27, 2016. R.M.’s motion to suppress evidence was conducted within the context of the trial.

The State presented testimony from Elliott Gray, Larry Adams, and Mark Schmidt, NOPD detectives assigned to the narcotics unit in the 8th District and working a proactive plain clothes patrol. All three testified that on January 26, 2016, at approximately 12:15 a.m., they observed R.M. on Bourbon Street near the corner of St. Louis Street. Detective Gray explained that they knew R.M. to be a juvenile from previous stops for curfew violations.

The detectives approached R.M. and identified themselves. Det. Gray testified that R.M. was already acquainted with them. They informed R.M. that they would be taking him to the curfew center. Det. Gray stated that they decided to take R.M. into custody because of his repeated curfew violations. R.M. | .¿cooperated and walked with the detectives a couple of blocks to the 8th District Station on Royal Street, where Det. Adam’s patrol car was parked. R.M. was not handcuffed during this time.

Before placing R.M. in the patrol car, Det. Schmidt conducted a full inventory search of R.M., which yielded a bag containing a white powered substance and ninety-one dollars in cash. Det. Schmidt stated that a field test of the substance revealed it to be cocaine. R.M. was arrested for possession of narcotics.

All three detectives testified that NOPD standard procedure dictated that they search R.M. before putting him into the patrol car. Det. Adams stated that the search was also conducted for officer safety and to ensure that there was nothing that could be hidden in the vehicle. He further explained that R.M. would be searched when he arrived at the curfew center, so a search was inevitable.

At the close of testimony, the trial court denied R.M.’s motion to suppress evidence. The trial court also denied R.M.’s objection to the State’s introduction of the criminalist report, which demonstrated that the evidence seized resulted in a positive analysis for cocaine. R.M.’s objection was based on the fact that the State did not provide the required forty-five-day notice of their intent to use the report in lieu of live testimony.

At the conclusion of the trial, R.M. was adjudicated delinquent for possession of cocaine, a violation of La. R.S. 40:9670(2). R.M. was placed on house arrest until the disposition hearing, which was set for July 18, 2016. The court record from July 18, 2016 reflects that within hours of the June 27, 2016 ^adjudication, R.M. ran away from his mother’s home, and a warrant was issued for his arrest.

A motion’s hearing was held on July 28, 2016. At that time, the court denied R.M.’s motion for release and noted that R.M. was presently detained at the Youth Study Center, where he would be held pending disposition.

A disposition was rendered on August 15, 2016, and amended on August 25, 2016 (to clarify that the petition contains only one charge, namely, La. R.S. 40:967(B)). R.M. was sentenced to the Department of Public Safety and Corrections for a period of six months. The sentence further states that R.M. would be placed in the custody of the Office of Juvenile Justice for the purpose of recommending a non-secure placement.

On appeal, R.M. asserts that the trial court erred in: 1) denying his motion to suppress evidence; and 2) permitting the State to introduce the Certificate of Analysis from the Criminalistics Laboratory. Additionally, R.M. has identified a patent error, ie., the trial court erred in failing to award him credit for time served in secure detention.

DISCUSSION

Assignment of Error No. 1: The trial court erred in denying the motion to suppress evidence.

The Fourth Amendment to the United States Constitution and Article I, Section 5 of the Louisiana Constitution protect persons against unreasonable searches and seizures. “A defendant adversely affected may move to suppress any evidence from use at the trial on the merits on the ground that it was unconstitutionally obtained.” La. C.Cr.P. art. 703.

14“A trial court’s ruling on a motion to suppress the evidence is entitled' to great weight, because the court has the opportunity to observe the witnesses and weigh the credibility of their testimony.” State in the Interest of R.L., 11-1721, pp. 2-3 (La.App. 4 Cir. 5/30/12), 95 So.3d 1147, 1149 (citing State in the Interest of J.S., 08-1401, p. 4 (La.App. 4 Cir. 2/18/09), 6 So.3d 904, 907).

As this Court stated in State in Interest of T.H., 12-0223, p. 3 (La.App. 4 Cir. 12/12/12), 106 So.3d 703, 706,

“A trial judge’s decision to' deny a motion to suppress will be afforded great weight and will not be set aside unless to do so is clearly mandated by d preponderance of evidence.” State v. Adams, 99-2123, p. 4 (La.App. 4 Cir. 1/24/01), 779 So.2d 113, 117. Therefore, when a trial court denies a motion to suppress, factual and credibility determinations should not be reversed in the absence of a clear abuse of the trial court’s discretion, i.e., unless such ruling is not supported by “reliable evidence.” State v. Green, 94-0887, p. 11 (La. 5/22/95), 655 So.2d 272, 281. “[T]he district court’s findings of fact on a motion to suppress” are reviewed “under a clearly erroneous standard” and “the district court’s ultimate determination of Fourth Amendment reasonableness” is reviewed de novo. State v. Pham, 01-2199, p. 3 (La.App. 4 Cir. 1/22/03), 839 So.2d 214, 218. Accordingly, “[o]n mixed questions of law and fact, the appellate court reviews the underlying facts on ah abuse of discretion standard, but' reviews conclusions to be drawn from those facts de novo.” Id.

Here, R.M. argues that the detectives did not have the authority to search him at the time he was taken into custody. Specifically, R.M. argues that because the detectives had not observed him commit any criminal offense (other than a curfew violation), and because he was cooperative with the detectives, it was unreasonable to take him into custody. Thus, he submits that the search exceeded the scope of a search justified by La. C.Cr.P. art. 215.1 or Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) and did not constitute either a search incident to a lawful arrest or an inventory search.

lflIn denying the motion to suppress, the trial court issued written reasons for judgment, stating as follows:

In this Court’s view, the NOPD policy of searching the back of the police vehicle prior to placing a person inside for transport and the concomitant full inventory search of the person prior to being place in that vehicle is not an unreasonable procedure that offends the 4th Amendment.
The stop was a lawful stop for curfew of a youth known by name and age to the officers from previous contact. Nonetheless, the officers testified they again verified his age at the time of the stop. This makes the stop a lawful one for curfew violation. Having verified that the youth was out past curfew, his detention for transport to the curfew center [was] also lawful. He was not free to leave.
The policy to search the back of the police vehicle where the youth would be placed for transport serves to protect .the defendant from later allegations that contraband or a weapon was found in the back of the car after he exited it. The full search of the youth prior to being placed in the police unit serves to both protect officer safety while they make the transport and to account for his personal possessions. - ■
The Court notes that the full inventory search could just as easily been conducted upon arrival at the curfew center. But that fact alone makes the point that the purpose of a search on entering the curfew center is to protect the center’s staff from a later allegation that staff stole a youth’s personal possession(s) and protects the youth from having items disappear for the reason that there was no inventory made on his arrival.
Given the purpose of the inventory search policy both for the NOPD in transporting youth and for the curfew center in admitting youth into the facility, the Court does not see a violation of the 4th Amendment where a youth has been lawfully arrested for curfew violation.
Thus, under either the initial inventory search or under the inevitable discovery rule, the Court denied the motion to suppress.

“It is well established that a search incident to a lawful custodial arrest is a limited exception to the constitutional prohibition of warrantless searches. State v. Sherman, 05-0779, p. 8 (La. 4/4/06); 931 So.2d 286, 292 (citing United States v. Robinson, 414 U.S. 218, 224, 94 S.Ct. 467, 471, 38 L.Ed.2d 427 (1973)).

|6As this Court stated in State v. Gayton, 13-1613, p. 9 (La.App. 4 Cir. 12/10/14), 156 So.3d 738, 746.

The U.S. Supreme Court has long held that the warrantless arrest of a suspect based on probable cause is reasonable under the Fourth Amendment. See Robinson, 414 U.S. at 235, 94 S.Ct. 467. Article 213 of the Louisiana Code of Criminal Procedure permits officers to execute warrantless arrests of persons when “[t]he person to be arrested has committed an offense in his presence....” See La. C.Cr.P. art. 213 A(1).8 See also Atwater v. City of Lago Vista, 532 U.S. 318, 354, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001) ( “If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.”). (Emphasis added).

In their trial testimony, the detectives explained that they initially stopped R.M., a juvenile known to them from prior stops, for a curfew violation. It is clear that R.M. committed an offense, albeit a minor one, in the presence of the detectives. Thus, they were authorized to arrest him. They further explained their reasons for searching R.M,, stating that NOPD policy required that they conduct a full inventory search prior to placing R.M. into the patrol car for transport to the curfew center. Additionally, it was stated that R.M. would be searched upon arrival at the curfew center. Thus, a search was inevitable.

Under the circumstances presented here, the search incident to the lawful arrest was proper. Accordingly, we find no error in the trial court’s denial of the motion to suppress the evidence.

Assignment of Error No. 2: The trial court erred in permitting the State to introduce the Certificate of Analysis from the Criminalistics Laboratory,

La. R.S. 15:501 provides:

A. The party seeking to introduce a certificate made in accordance with R.S. 15:499 shall, not less than forty-five days prior to the | commencement of the trial, give written notice of intent to offer proof by certificate. Such notice shall include a copy of the certificate.
B. The attorney for the defendant, or the defendant acting in his own defense, if not represented by counsel, may demand that the person making the examination or analysis testify by filing a written demand and serving it upon the district attorney or attorney general seeking to introduce the certifícate. If such a demand is made timely as set forth below, the certificate shall not constitute prima facie proof of the facts thereon as set forth in R.S. 15:500.
C. Demand for the testimony of the person making the examination or analysis shall be filed and served by counsel for the defendant, or by a defendant acting as his own counsel, within thirty days of the receipt of the notice provided for in Subsection A of this Section. The trial court may extend this thirty-day period for good cause shown if such request is made prior to the expiration of the thirty days.
D. If no request for additional time is made prior to the expiration of the thirty-day period, an extension of time in which to make such a demand may be made only upon a showing of exceptional circumstances. Any allegation that such circumstances exist shall constitute a preliminary plea on the defendant’s behalf for the pui-poses of Louisiana Code of Criminal Procedure Article 580. The demand shall be made in writing and notice shall be served on the district attorney or the attorney general prosecuting the matter. The court shall conduct a contradictory hearing to determine if the extension is warranted.
E. The filing of a demand by the defendant does not prevent the admission of the certificate or its contents in any other manner otherwise appropriate pursuant to the Louisiana Code of Evidence or its ancillaries.

The record reflects that on June 8, 2016, the State filed its notice of intent to offer the criminalist report along with an attached copy of the report. At that time, the trial was set for June 18, 2016. By joint motion, the trial was continued to June 27, 2016. At no time prior to trial did R.M. file a written demand that the person making the criminalist report testify at trial.

After all the trial testimony was taken, and the State attempted to introduce the report into evidence, R.M. objected, asserting that the State failed to comply with the forty-five-day notice requirement set forth in La. R.S. 15:501.

IsThe trial court admitted the criminalist report into evidence over R.M.’s objection. In overruling R.M.’s objection, the court noted that thirty-eight days elapsed between the answer hearing on May 17, 21016, and the June 27, 2016 agreed upon trial date. Thus, it was impossible for the State to comply with the forty-five-day requirement of La. R.S. 15:501.

In written reasons for judgment, the trial court further explained:

It is significant to this Court that the statutory filing deadline requirements were an impossibility for either the State or the Defendant to comply with. Thus, the issue shifts to whether the parties tried to comply with the spirit of the statute — and actually not simply the spirit of the law, but the entire purpose of the law — which is to give the Defendant notice of the State’s intent to use the criminalist report and to give notice to the State that the Defendant objects and demands live testimony.
As noted, the State filed actual notice and the criminalist report on June 6. Defendant had actual [notice] as of that date. However, Defendant did not file an objection to the untimely filing of the 15:499 notice, nor did Defendant file an objection to the use of the criminalist report and demand live testimony.
In this Court’s view, given the fact that (1) the trial date was set in a shorter period of time than the 15:501 filing deadlines and (2) it was impossible for either the State of the Defendant to comply with the statutory filing deadlines, the issue here is the parties compliance with the substance of the statute, which is notice.
⅜⅜⅜⅜
The Court further notes that the mandatory trial settling deadlines provided by Ch.C. Art. 877 and the statutory deadlines in La. R.S. 15:501 operate in conflict with one another in most drug cases heard in juvenile court on a routine basis. The only way for a court to avoid the conflict would be to set a trial date that is at least 45-days after the answer hearing, with the consequence that the State would have to file its 15:499 notice at the Answer Hearing (assuming the evidence had been tested and the report prepared). The further consequence of setting the trial date at least 45 days out, would be to leave a balance of only 45 days within which to conduct the trial before the expiration 1 aof the mandatory 90-day trial period. In this Court’s view, the underlying factual circumstances in the case at bar happen on a recurring basis, and by operation of the conflicting statutes, will continue to occur, barring legislative action to amend the deadlines of one or the other statutes, (footnote added).

Clearly, neither side complied with the time requirements of La. R.S. 15:501. However, as the trial court thoroughly explained, the deadlines set forth in La. Ch.C. art. 877 and La. R.S. 15:501 are in conflict in juvenile court drug cases, essentially rendering it impossible for either party to meet the deadlines. Under the circumstances, we find no abuse of discretion in the trial court’s determination that the State substantially complied with the statutory deadlines. Accordingly, the trial court did not err in allowing the introduction of the criminalist report.

Errors Patent: The trial court erred in failing to award R.M. credit for time served in secure detention.

R.M. submits that he was incarcerated for a substantial length of time in the Youth Study Center following his adjudication, and should have been awarded credit for the time served. Although the record before us does not indicate the length of the incarceration, we agree that R.M. is entitled to credit for time served in secure detention.

La. Ch.C. art. 898(A) provides that with a felony grade disposition, as in the present case, “[t]he court shall give a child credit for time spent in secure detention prior to the imposition of disposition.” R.M.’s disposition does not include credit for time served. Thus, we amend the disposition to give R.M. credit for time spent in a secure detention facility before the imposition of disposition, if any, and remand this matter with instructions to the juvenile court to note the amendment in the written disposition and in the minute entry.

^CONCLUSION

For the foregoing reasons, we find no error in the trial court’s denial of the motion to suppress evidence and in the trial court’s admission of the crime lab certificate over R.M.’s objection. Thus, the adjudication of R.M. as delinquent on the charge of possession of cocaine, a violation of La. R.S. 40:967 C(2), must be affirmed. Finding a patent error, we amend the disposition to reflect credit for time spent in secure detention prior to disposition, and affirm the disposition as amended. We remand this matter with instructions to the juvenile court to note the amendment in the written disposition and in the minute entry.

ADJUDICATION AFFIRMED; DISPOSITION AFFIRMED AS AMENDED; REMANDED WITH INSTRUCTIONS.

      . Det. Schmidt identified the bag containing the white power in court.

      . See La. R.S. 15:501.

      . See Municipal Code § 54-8.

      . In this case, La. Ch.C. art. 877(B) provides that "[i]f the child is not continued in custody, the adjudication hearing shall commence within ninety days of the appearance to answer the petition.”


author: JUDGE SANDRA CABRINA JENKINS • • :

text:
    COZZY SPOT, LLC v. The CITY OF NEW ORLEANS, et al
    NO. 2016-CA-0529
    Court of Appeal of Louisiana, Fourth Circuit.
    JANUARY 11, 2017

      Stavros Panagoulopoulos, PELICAN LAW GROUP, L.L.C., 1515 S. Salcedo St., Suite 130, New Orleans, LA 70125, COUNSEL FOR PLAINTIFF/APPELLANT
    Eraka W. DeLarge, Assistant City Attorney, Mark D. Macnamara, Deputy City Attorney, Cherrell S. Taplin, Sr. Chief Deputy Attorney, Rebecca H. Dietz, City Attorney, CITY OF NEW ORLEANS, 1300 Perdido Street, Suite 5E03, New Orleans, LA 70112, COUNSEL FOR' DEFENDANT/APPELLEE
    (Court composed of Judge Terri F. Love, Judge Sandra Cabrina Jenkins, Judge Marion F. Edwards, Pro Tempore)
   JUDGE SANDRA CABRINA JENKINS • • :

11 Cozzy Spot, L.L.C. (“Cozzy Spot”) appeals the trial court’s December 14, 2015 judgment affirming the decision by the New Orleans Alcohol Beverage Control Board (“the ABC Board”) to revoke Cozzy Spot’s alcohol permits. Finding that the district court erred in affirming the ABC Board’s decision, ‘we reverse and vacate the revocation of Cozzy Spot’s alcohol permits, and remand to the district court for a trial de novo on Cozzy Spot’s appeal of the ABC Board’s decision.

PROCEDURAL AND FACTUAL BACKGROUND

Up until September 2015, Cozzy Spot operated a bar at 326 North Miro Street in New Orleans, Louisiana. On July 25, 2014, the City of New Orleans (the “City”) filed suit against Cozzy Spot alleging violations of New Orleans City Code Section 10, which governs city permits for the sale of alcoholic beverages. The City sought suspension or revocation of Cozzy Spots’ alcohol permits, and sanctions. A hearing was scheduled before the ABC Board on August 19, 2014. On September 16, 2014, the City and Cozzy Spot settled the lawsuit by entering into a consent judgment.

2In October 2014, the City filed a second lawsuit against Cozzy Spot alleging violations of the consent judgment and City Code Section 10. A hearing was held on November 18, 2014, after which the ABC Board denied the City’s requested relief.

In June 2015, the City filed a third suit against Cozzy Spot, again alleging violations of the consent judgment and City Code Section 10. A hearing was held before the ABC Board on August 7, 2015, at which multiple witnesses testified and physical evidence was presented. Following the hearing, the ABC Board revoked Cozzy Spot’s alcohol permits.

In September 2015, Cozzy Spot filed a petition in the district court seeking review of the ABC Board’s decision. On December 9, 2015, a hearing was held on Cozzy Spot’s petition. On December 14, 2015, the district court signed a Judgment With Incorporated Reasons affirming the ABC Board’s decision to revoke Cozzy Spot’s alcohol permits. The district court found that the ABC Board was not arbitrary in its decision to revoke Cozzy Spot’s alcohol permits based on breaches of the consent judgment and additional “nuisance behavior.” Cozzy Spot timely appealed.

DISCUSSION

Standard of Review

On appeal of the district court’s judgment, this court reviews the district court’s findings of fact under the manifest error or clearly wrong standard of review. Williams v. Parish of St. Bernard, 15-1105, p. 4 (La.App. 4 Cir. 12/2/16), 206 So.3d 259, 266, 2016 WL 7031015, *8. On questions of law, however, the appellate court gives no special weight to the district court’s findings. Id., 15-1105, p. 5, 206 So.3d at 266, 2016 WL 7031015 at *8. “Appellate review of questions of law is simply a | ¡¡determination of whether the trial court was legally correct or legally incorrect in its application of the law.” Id.‘A legal error occurs when a trial court applies the incorrect principles of law and such errors are prejudicial.’ ” Id.

Trial De Novo Under La. R.S. 33:4788

Under La. R.S. 33:4788, “[t]he holder of an alcohol permit who is aggrieved by a decision of the governing body of the municipality or parish or municipal alcoholic beverage control board to suspend or revoke the permit is entitled to appeal the suspension or revocation to the district court.” Williams, 15-1105, p. 4, 206 So.3d at 266, 2016 WL 7031015 at *8. An appeal to the district court of a decision to revoke an alcohol permit “shall” be tried de novo. La. R.S. 33:4788.

Where a statute provides for a trial de novo, as in La. R.S. 33:4788, the reviewing court acts as the court or agency of original jurisdiction and the whole case is open for a decision. Williams, 15-1105, p. 4, 206 So.3d at 266, 2016 WL 7031015 at *8. In other words, a trial de novo of an administrative decision is a new trial on the entire case, on both questions of fact and issues of law, conducted as if there had been no trial in the first instance. Id. Thus, the district court can make its own factual determinations, exercise its own discretion, and substitute its own judgment for that of the governing, decision-making body. Id. The district court’s findings and determinations, however, must be based on “competent evidence.” Id., 15-1105, p. 6, 206 So.3d at 268, 2016 WL 7031015 at *12.

After a review of the district court record, we find that the trial court did not conduct a trial de novo, as required by La. R.S. 33:4788. The trial court’s December 14, 2015 judgment states that “[b]y stipulation of the parties, the matter was submitted on the record below, memoran-da, and argument of counsel.” Although the parties filed into the district court record the exhibits presented at the |4ABC Board hearing, there is nothing in the record to establish that the exhibits were ever formally introduced and admitted by the trial court. The record does not contain a transcript of the December 9, 2015 hearing on Cozzy Spot’s petition for review of the ABC Board’s decision. Evidence not properly and officially offered and introduced cannot be considered, even if it is physically placed in the record. Denoux v. Vessel Mgmt. Servs., Inc., 07-2143, p. 6 (La. 5/21/08), 983 So.2d 84, 88. Thus, none of the evidence necessary for the trial court to review the ABC Board’s decision was properly before the trial court. Nor is it properly before this court, as appellate courts may not consider documents not introduced in the trial court. 2400 Canal, LLC v. Bd. of Supervisors of Louisiana State Univ., 12-0220, p. 12 (La.App. 4 Cir. 11/7/12), 105 So.3d 819, 827. In short, we find that there simply is no competent evidence in the record for us to review.

The City argues in its appellate brief that “[t]he parties stipulated to the admissibility of the record below.” There is, however, no such stipulation in the record. Appellate briefs are not a part of the record on appeal, and this court has no authority to consider facts referred to in appellate briefs if those facts are not in the record on appeal. Gulf Coast Housing & Dev. Corp. v. Capital One, 16-0296, p. 3 (La.App. 4 Cir. 10/5/16), 203 So.3d 366, 369. We, therefore, find that the trial court erred in rendering a judgment on the basis of a purported stipulation that was not made part of the record. See Franklin v. City of Baton Rouge, 525 So.2d 674, 675 (La. App. 1st Cir. 1988) (trial court should not have ruled on matter where judgment stated that it was based on stipulations of fact which were not included in record); In re Succession of Morgan, 15-0335 (La. App. 1 Cir. 2/24/16), 2016 WL 770192, *3-4 (same).

| Jn sum, the “facts” supporting the trial court’s December 14, 2015 judgment appear only in the form of arguments of counsel and the court’s reasons for judgment, not in the form of renewable evidence. Without competent evidence, the record is inadequate for meaningful appellate review of the trial court’s judgment affirming the ABC Board’s decision.

La. Code Civ. P. art. 2164 provides that an “appellate court shall render any judgment which is just, legal and proper upon the record on appeal.” It is well-settled that an appellate court is empowered under Article 2164 to “remand a case to the district court for the taking of additional evidence where it is necessary to reach a just decision and to prevent a miscarriage of justice.” Alex v. Rayne Concrete Serv., 05-1457, p. 23 (La. 1/26/07), 951 So.2d 138, 155. “Although a court should always remand a case whenever the nature and extent of the proceedings dictate such a course, whether or not any particular case should be remanded is a matter which is vested largely within the court’s discretion and depends upon the circumstances of the case.” Id.

In the interest of justice, therefore, we remand this matter to the district court for a trial de novo on Cozzy Spot’s appeal of the ABC Board’s decision. See Fini v. Alcoholic Beverage Control Bd., 09-0854, p. 4 (La.App. 1 Cir. 2/10/10), 35 So.3d 301, 305.

VACATED AND REMANDED