author: EZELL, Judge.

text:
    Margaret C. CAMALO, et al. v. Patricia Laura ESTRADA, et al.
    17-1184
    Court of Appeal of Louisiana, Third Circuit.
    September 26, 2018
    Alan K. Breaud, Breaud & Meyers, P. O. Drawer 3448, Lafayette, LA 70502, (337) 266-2200, COUNSEL FOR PLAINTIFFS/APPELLEES: Margaret C. Camalo, Frank Camalo
    Joseph C. Giglio, Jr., Liskow & Lewis, P. O. Box 52008, Lafayette, LA 70505-2008, (337) 232-7424, COUNSEL FOR DEFENDANTS/APPELLEES: Joseph C. Giglio, III, Margaret P. Giglio
    Jonathan B. Andry, Andry Law Group, L.L.C., 610 Baronne St., New Orleans, LA 70113, (504) 525-5535, COUNSEL FOR DEFENDANTS/APPELLANTS: Cye Courtois, Patricia Laura Estrada
    Court composed of Billy Howard Ezell, Shannon J. Gremillion, and D. Kent Savoie, Judges.
   EZELL, Judge.

Patricia and Cye Courtois appeal the decision of the trial court below awarding attorney fees to Margaret and Joseph Giglio for work done on a motion to hold Mr. Courtois in contempt of court. For the following reasons, we affirm the decision of the trial court.

The matter currently before this court is but part of a larger property dispute between the Courtois and two sets of their neighbors, the aforementioned Giglios on one side and Margaret and Frank Camalo on the other. During the course of the litigation, the Courtois and Giglios stipulated to a preliminary injunction preventing either party from communicating with the other, as well as ordering each party to refrain from harassing the other or damaging the other's property. After Mr. Courtois deliberately violated this injunction by damaging drainage, trees, and shrubs on the Giglios' property, among other things, the Giglios filed a motion for contempt.

The trial court found that Mr. Courtois "willfully disobeyed the order and judgment of the court" by cutting the Giglios' shrubs, performing prohibited work within a seven-and-one-half foot setback, damaging the Giglios' drainage pipe, and in peering over the Giglios' wall and photographing their back yard. The trial court imposed a $500.00 fine and set a later hearing to determine an award of attorney fees for the contempt motion. After that later hearing, the trial court awarded the Giglios $11,587.50 in attorney fees. From that decision, the Courtois appeal.

On appeal, the Courtois assert two assignments of error. They claim that the trial court erred in awarding attorney fees to a party that has not paid nor incurred an obligation to pay attorney fees, and that the trial court erred in striking an untimely supplemental memorandum. The Courtois do not challenge the trial court's finding that Mr. Courtois willfully violated the injunction. We find no error in the decision of the trial court.

The Courtois first assert that attorney fees cannot be awarded to the Giglios, citing Goodrich v. Exxon Co., USA , 608 So.2d 1019, 1034 (La.Ct.App. 3 Cir. 1992), writ denied , 614 So.2d 1241 (La.1993) (alteration in original) (quoting Rhodes v. Collier , 215 La. 754, 41 So.2d 669, 673 (1949) ), for the proposition that "In cases where attorneys' fees are allowed, absence of proof that the fees have actually been paid, or an obligation incurred to pay, defeats recovery." They argue that the Giglios' attorney, Mr. Giglio's father, had admitted to representing the couple free of charge and that, therefore, the Giglios had not incurred any obligation to pay attorney fees. It is worth noting again that the Courtois do not challenge the trial court finding Mr. Courtois in contempt, nor do they challenge the amount or reasonableness of the attorney fee award, but merely challenge the trial court's ability to award attorney fees where the Giglios' attorney was representing them for free. We find their argument unpersuasive.

Goodrich and the line of older cases cited by the Courtois did not deal with contempt of court, but rather contract disputes and various other civil matters designed to benefit a party to the suits pending in those specific cases. This facet of the current lawsuit before this court was not such a matter, but rather a contempt proceeding based on Mr. Courtois' direct disregard of a court order. A proceeding for contempt in refusing to obey the court's orders is not designed for the benefit of the litigant, though infliction of a punishment may inure to the benefit of the mover in the rule. The object of a contempt proceeding is to vindicate the dignity of the court. Howard v. Oden , 44,191 (La.App. 2 Cir. 2/25/09), 5 So.3d 989, writ denied , 09-965 (La. 6/26/09), 11 So.3d 496. "The trial court is vested with great discretion in determining whether a party should be held in contempt for disobeying the court's order, and its decision will only be reversed when the appellate court can discern an abuse of that discretion." Id. at 997. See also Fradella v. Rowell , 49,350 (La. App. 2 Cir. 8/13/14), 147 So.3d 817 ; Mizell v. Mizell , 37,004 (La. App. 2 Cir. 3/7/03), 839 So.2d 1222. Yet again, the Courtois do not challenge the ruling holding Mr. Courtois in contempt.

Under La.R.S. 13:4611(1)(g), "[t]he court may award attorney fees to the prevailing party in a contempt of court proceeding provided for in this Section." The general rule is that "[t]he decision whether to grant relief against a recalcitrant party rests within the discretion of the trial court and will not be disturbed absent an abuse of that discretion." Rodock v. Pommier , 16-809, pp. 12-13 (La.App. 3 Cir. 2/1/17), 225 So.3d 512, 521, writ denied , 17-631 (La. 5/1/17), 221 So.3d 70 (alteration in original) (quoting LeJeune v. Lafayette Tower Serv. , 94-1240, p. 4 (La.App. 3 Cir. 4/5/95), 653 So.2d 112, 114.)

Based on the record before us, we find no abuse of discretion in the trial court's award of attorney fees related to the contempt of court proceeding below. While the Giglios' attorney may indeed receive something of a windfall under the peculiar facts of this case, it is better in the eyes of this court that a generous attorney receive payment for work actually performed, though originally volunteered, than to reward an intentional bad actor for openly defying a court order. This especially applies in this matter, where Mr. Courtois violated the court order in a willful and ongoing manner, multiple times, and in multiple ways. We can find no merit in this assignment of error.

The Courtois next claim that the trial court erred in striking their untimely supplemental opposition to the Giglios' motion to fix attorney fees, which had been filed in violation of District Court Rule 9.9. Pursuant to Louisiana District Court Rule 9.9, opposition memoranda must be filed at least eight days before a hearing. Those time limitations are mandatory, and if a filing is untimely, the trial court may rule it inadmissible and exclude it from evidence. Phillips v. Lafayette Parish Sch. Bd., 10-373 (La.App. 3 Cir. 12/8/10), 54 So.3d 739. Although the trial court has some discretion to admit late-filed materials, the trial court's decision to disallow the affidavits is not an abuse of discretion. Id.

The Courtois' supplemental memo was clearly filed in an untimely manner, just two days before the scheduled hearing. The trial court was within its discretion to strike the late supplemental opposition memoranda. Moreover, the contents of that stricken memo dealt exclusively with the Courtois' argument above concerning the Giglios' right to attorney fees where their attorney had worked for free. That memo included the same exact contentions and case citations the Courtois made in their unpersuasive arguments before this court. Therefore, our ruling above that the trial court did not err in awarding the Giglios' attorney fees ultimately renders this assignment of error moot. There is no merit in this assertion.

Finally, the Giglios have requested an additional award of attorney fees for work performed on appeal. When an appellee neither appeals nor answers the appeal, he is not entitled to additional attorney fees for legal services rendered on appeal. La.Code Civ.P. art. 2133 ; Dugas v. Aaron Rents, Inc ., 02-1276 (La.App. 3 Cir. 3/5/03), 839 So.2d 1205. Moreover, the award given to the Giglios's attorney is already substantial for a simple contempt motion and would have been under serious scrutiny had the Courtois actually challenged its reasonableness, rather than merely disputing the trial court's ability to make the award. The Giglios are not entitled to attorney fees for work done on appeal.

For the above reasons, the decision of the trial court is hereby affirmed. Costs of this appeal are hereby assessed against the Courtois.

AFFIRMED.

      Though the trial court stated the award was for $12,387.50 in its oral ruling, the judgment signed by the trial court awarded $11,587.50. In such a situation, the written judgment will prevail. Hebert v. Hebert , 351 So.2d 1199, 1200 (La.1977) ; Rodgers v. Rodgers , 26,093 (La.App. 2nd Cir. 9/21/94), 643 So.2d 764.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Claiborn MOSK
    NO. 2018-KA-0287
    Court of Appeal of Louisiana, Fourth Circuit.
    SEPTEMBER 26, 2018
   James F. Kreihs, Attorney At Law, 200 Jewel Street- Suite B, New Orleans, LA 70124, COUNSEL FOR FINANCIAL CASUALTY & SURETY, INC/APPELLANT

Leon Cannizzaro, District Attorney, Scott G. Vincent, Assistant District Attorney, William Dieters, Assistant District Attorney, District Attorney's Office, Orleans Parish, 619 S. White Street, New Orleans, LA 70119, COUNSEL FOR STATE OF LOUISIANA/APPELLEE

(Court composed of Judge Terri F. Love, Judge Rosemary Ledet, Judge Tiffany G. Chase )

Judge Tiffany G. Chase In this bond forfeiture proceeding Appellant, Financial Casualty & Surety, Inc. (hereinafter "Financial"), seeks review of the trial court's May 12, 2017 judgment sustaining the State of Louisiana's (hereinafter "State") exception of no cause of action. Financial raises two assignments of error: (1) the trial court erred in finding its petition failed to state a cause of action under La. C.C.P. art. 2004 ; and (2) the trial court erred in denying its request to amend the petition pursuant to La. C.C.P. art. 934. After consideration of the record before this Court and the applicable law, we affirm the trial court's judgment granting the exception of no cause of action.

FACTS AND PROCEDURAL HISTORY

Defendant, Cliborn Mosk was charged with possession of various controlled substances; illicit possession of a firearm (having been convicted of a prior felony); and resisting arrest. On May 16, 2013, Financial posted appearance bonds in Orleans Criminal District Court on behalf of the defendant in the amount of $16,000. Trial was scheduled for June 23, 2014, but was ultimately continued to March 30, 2015.

Neither the defendant nor his attorney appeared for trial. The trial court issued a bench warrant for defendant's arrest and signed judgments of bond forfeiture. On May 10, 2015, a notice of signing of judgment for bond forfeiture was timely mailed to Financial, Troy's Bail Bonds (Financial's agent), and the defendant. No appeal was taken.

On May 18, 2015, the defendant's attorney appeared in court to address why neither he nor his client appeared for trial. The trial court accepted the defendant's appearance through his attorney, waived the defendant's presence and recalled the bench warrant. However, the trial court did not set aside the judgments of bond forfeiture. The defendant did not personally appear in court until July 20, 2016.

On August 5, 2016, the State sent a demand for payment to Financial for numerous unpaid judgments of bond forfeiture, including the bonds for the defendant. After Financial failed to make payment, the State filed a motion for contempt. A contradictory hearing was set for September 16, 2016, and notice was given to Financial through the Secretary of State. Financial failed to make an appearance at the hearing and the Court ordered a fine of $500.00 with an additional $500.00 per day until paid.

On September 28, 2016, Financial filed a petition for nullity of judgments of bond forfeiture pursuant to La. C.C.P. art. 2004. In response, the State filed exceptions of no cause of action; unauthorized use of summary proceedings; insufficiency of citation; and service of process and vagueness and ambiguity of the petition. The hearing on the exceptions was held on May 12, 2017, wherein the trial court granted the State's exception of no cause of action and dismissed Financial's petition for nullity of judgments of bond forfeiture with prejudice. This timely appeal followed.

DISCUSSION

Exceptions of no cause of action present legal questions which are reviewed using the de novo standard of review. O'Dwyer v. Edwards , 2008-1492, p. 3 (La.App. 4 Cir. 6/10/09), 15 So.3d 308, 310. "The function of the peremptory exception of no cause of action is to question whether the law extends a remedy against the defendant to anyone under the factual allegations of the petition." Indus. Co., Inc. v. Durbin , 2002-0665, p. 6 (La. 1/28/03), 837 So.2d 1207, 1213.

To maintain an action for nullity under La. C.C.P. art. 2004, the final judgment sought to be annulled must have been obtained by fraud or ill practices. However, La. C.C.P. art. 2004 is broad enough to encompass all situations wherein a judgment is rendered through some improper practice or procedure, even if by innocent mistake. Montana v. Jordan , 2013-1410, p. 13 (La.App. 4 Cir. 2/26/14), 135 So.3d 1212, 1219 (citing Kem Search, Inc. v. Sheffield , 434 So.2d 1067, 1070 (La. 1983) ). To determine whether a judgment was obtained by fraud or ill practices, we examine: (1) whether the circumstances under which the judgment was rendered illustrated a deprivation of legal rights of the individual seeking relief; and (2) whether enforcement of the judgment would be inequitable or unconscionable. Id. , 2013-1410 at p. 14, 135 So.3d at 1220. Thus, applying the foregoing framework, we will evaluate whether Financial's petition for nullity of judgments of bond forfeiture states a valid cause of action.

Deprivation of Legal Rights

Financial contends the State's enforcement of the judgments of bond forfeiture constituted a fraudulent or ill practice because the judgments should have been set aside by operation of law. Financial's premise is predicated on its interpretation of the phrase "appearance of the defendant" in former La. C.Cr.P. art. 349.8(A)(1), which Financial maintains is broad enough to include the instant scenario. "A criminal statute, like all other statutes, must be applied and interpreted in a manner that is logical and consistent with the presumed purpose and intent of the legislature." State v. Dennis , 2015-0831, pp. 4-5 (La.App. 4 Cir. 8/10/16), 198 So.3d 272, 275 (citing State v. Nellon , 2012-1429, p. 4 (La.App. 4 Cir. 9/4/13), 124 So.3d 1115, 1118 ). "In ascertaining the true meaning of a word, phrase, or section of a statute, the act as a whole must be considered." Anderson v. Ochsner Health Sys ., 2013-2970, p. 4 (La. 7/1/14), 172 So.3d 579, 581 (citing Fruge v. Muffoletto , 242 La. 569, 137 So.2d 336, 339 (1962) ). Further, the Louisiana Supreme Court has always strictly construed various aspects of the bond forfeiture provisions. State v. Washington , 386 So.2d 89, 91 (La. 1980).

Prior to January 1, 2017, La. C.Cr.P. art. 349.8(A)(1) read as follows:

For bonds that have a face value under fifty thousand dollars, a judgment forfeiting the appearance bond shall at any time, within one hundred eighty days after the date of mailing the notice of the signing of the judgment of bond forfeiture, be fully satisfied and set aside upon the surrender of the defendant or the appearance of the defendant. The surrender of the defendant also relieves the surety of all obligations under the bond and the judgment.

Financial relies on State v. Melancon , 2004-1727, p.2 (La.App. 1 Cir. 9/23/05), 925 So.2d 552, wherein the First Circuit held that an appearance, as contemplated by a related provision of bond forfeiture law does not require that the defendant appear of record or in court. However, the operative facts are distinguishable from the instant case - while Melancon was not present in court, she physically presented to the Ascension Parish Sheriff's Office.

In the instant case, the trial court issued a bench warrant and judgments of bond forfeiture when both the defendant and his attorney failed to appear for a scheduled trial. Under the clear language of La. C.Cr.P. art. 831, and Financial does not contest, the defendant was obligated to make a physical appearance at his trial. Financial's conclusion is that the subsequent May 18, 2015 appearance by defense counsel constitutes an appearance under La. C.Cr.P art. 834 and since the trial court did not specifically require the defendant's physical presence, it was "not essential," thus not necessary, to set aside the judgments of bond forfeiture.

"The presence of the defendant is only essential at proceedings which have a reasonably substantial relation to the fullness of the opportunity of the defendant to defend against the charge." State v. Kahey , 436 So.2d 475, 483 (La. 1983) (citing Snyder v. Commonwealth of Mass. , 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934) ). Conversely, the provisions regarding bail serve a completely different function. "The purpose of a bail (and a bond securing bail) is to ensure that the accused will appear at all stages of the proceedings to answer the charge for which he will be prosecuted." State v. Jones , 2015-1232, p. 4 (La.App. 4 Cir. 8/17/16), 200 So.3d 950, 952 (citation omitted); see also State v. Matteson , 36,628, p. 7 (La.App. 2 Cir. 12/11/02), 833 So.2d 1199, 1203 ("basic concept of the bail obligation is to make certain that a defendant appears in court with the surety paying a financial penalty when he fails to do so").

The bail provisions, as they existed during the relevant time period, contemplate that the physical presence of the defendant is necessary to set aside a judgment of bond forfeiture. Former La. C.Cr.P. art. 311 defines "[b]ail [as] the security given by a person to assure his appearance before the proper court whenever required." Since the physical presence of the defendant is required for trials, and bail is intended to secure a person's appearance whenever required, physical appearance by the defendant is required to set aside a judgment of bond forfeiture resulting from the absence of the defendant from his trial. We agree with the State's argument that Financial's interpretation of former La. C.Cr.P. art. 349.8(A)(1) would effectively amend the statute to allow for a third option to set aside a judgment of bond forfeiture: waiver of presence of the defendant and appearance by defendant's counsel. Our interpretation of La. C.Cr.P. art. 349.8(A)(1) requires the physical presence of the defendant, and the defendant did not physically appear. Therefore, we find no error in the trial court's determination that Financial failed to state a cause of action for nullity. Accordingly, we affirm the trial court's granting of the State's exception of no cause of action.

Inequitable/Unconscionable Enforcement

Financial contends the trial court's failure to set aside the judgments of bond forfeiture contemporaneous with the recalling of the warrant was improper procedure. In considering how bond forfeiture statutes apply to the facts of a case, we are mindful that bond forfeitures are not favored in Louisiana. State v. Brown , 2011-0804, p. 2 (La.App. 4 Cir. 1/11/12), 80 So.3d 1288, 1290 (citation omitted). "The purpose of the bond forfeiture statute, La. R.S. 15:85, 'is to shield the surety from prejudice brought about by the delay in learning of the defendant's failure to appear.' " Id. , 2011-0804 at p. 3, 80 So.3d at 1290 (quoting State v. Williams , 2007-648, p. 6 (La.App. 5 Cir. 1/22/08), 977 So.2d 154, 157-158 ) (citation omitted). Typically, these concerns apply to state actors failing to comply with the procedural requirements of notification that a judgment has been rendered. See, e.g. , State v. Nix , 2015-1368 (La.App. 4 Cir. 6/8/16), 195 So.3d 691. Financial presents this Court with an issue of first impression: whether the actions by the trial court recalling the bench warrant without setting aside the judgments of bond forfeiture can be the basis for a petition for nullity.

In its extensive oral reasons, the trial court emphasized that despite recalling the bench warrant, Financial had actual notice of the judgments of bond forfeiture yet the surety failed to "take up its obligation to verify that the State was proceeding" on enforcement. Financial contends the trial court's recalling of the bench warrant on May 18, 2015, led the surety to believe the court was satisfied that the requirements of the statute had been met. The State points out that Financial had actual notice of the judgments of bond forfeiture but failed to file a timely motion to set aside. "[A] judgment should not be annulled under ordinary circumstances simply because there was a lack of diligent presentation of a valid defense which could have been pleaded before judgment." Muller v. Michel Lecler, Inc ., 266 So.2d 916, 918 (La.App. 4 Cir. 1972). The judgments of bond forfeiture were still in force after the May 18, 2015 hearing. Nothing prevented Financial from making inquiries and protecting their interest through the filing of a motion to set aside the judgments. As any loss of a legal right is attributable to Financial's own inaction, the result of enforcement of the judgments of bond forfeiture is neither unconscionable nor inequitable. We therefore do not find that the trial court's actions constitute improper procedure.

In light of the above reasoning, we pretermit Financial's second assignment of error. There are no additional facts Financial could plead to cure the grounds of the exception. See La. C.C.P. art. 934.

CONCLUSION

Accordingly, we find no error in the trial court's sustaining of the State's exception of no cause of action. For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED

      The defendant's name is alternatively spelled "Claiborn" and "Cliborn" in the Criminal District Court record. For the purposes of this appeal, we refer to the defendant as Cliborn, as this is the name that appears on the bond at issue.

      The trial court pretermitted ruling on the other exceptions pending this appeal.

      Although repealed by Acts 2016, No. 613, § 4, La. C.Cr.P. art. 349.8 was the law in effect when the judgments of bond forfeiture in this case were signed. See, e.g. , State v. Adkins , 613 So.2d 164, 166 (La. 1993) (which holds the law in effect at the time of the bond forfeiture applies). Similarly, the text of the other bail provisions cited to for interpretive purposes is from the former incarnations of the statutes as they existed at the relevant time.

      La. R.S. 15:85(10) (2001).

      La. C.Cr.P. arts. 831 and 834 proscribe when the presence of the defendant is (and is not) necessary during various stages of criminal proceedings.

      Further examination of the bail provisions as they existed reinforces the requirement of the physical presence of the defendant to set aside a judgment of bond forfeiture. See La. C.Cr.P. art. 330.1(B) (2015) (defendant may be held without bail if there is a "substantial risk" he might flee or pose danger to another or the community); La. C.Cr.P. art. 334 (2015) (relevant factors in calculating the amount of bail include characteristics of the defendant and concerns of safety to the community); La. C.Cr.P. art. 335 (2015) ("court may impose any additional condition of release that is reasonably related to assuring the appearance of the defendant before the court); La. C.Cr.P. art. 335.1 (2015) (court may order the defendant be equipped with a GPS device as a condition to release for crimes against family, household member, or dating partner).


author: Judge Terri F. Love

text:
    AN ERNY GIRL, L.L.C. v. BCNO 4 L.L.C., et al
    NO. 2018-CA-0360
    Court of Appeal of Louisiana, Fourth Circuit.
    SEPTEMBER 26, 2018
    David P. Vicknair, Metairie, Brad P. Scott, Kassie L. Richbourg, SCOTT VICKNAIR HAIR & CHECKI, LLC, 909 Poydras Street, Suite 1100, New Orleans, LA 70112, COUNSEL FOR PLAINTIFF/APPELLEE/DEFENDANT-IN-RECONVENTION, AN ERNY GIRL, L.L.C.
    Christy L. McMannen, F. Sherman Boughton, Jr., CHRISTOVICH & KEARNEY, LLP, 601 Poydras Street, Suite 2300, New Orleans, LA 70130, COUNSEL FOR DEFENDANT/APPELLANT/PLAINTIFF-IN-RECONVENTION, BCNO 4, LLC
    (Court composed of Judge Terri F. Love, Judge Rosemary Ledet, Judge Tiffany G. Chase )
   Judge Terri F. Love

This appeal derives from disputes regarding the commercial lease of property used for an art market in New Orleans. The lessor successfully evicted the lessee, a limited liability company. Subsequently, when the lessor attempted to deposit past rent checks, the bank refused to negotiate the checks, indicating that the account was closed. The lessor filed a reconventional demand alleging fraud, conversion, and criminal conduct on the part of the limited liability company and the member/manager. The lessee limited liability company and its member/manager filed exceptions of no cause of action and vagueness. The trial court granted the exceptions as it relates to the member/manager in her individual capacity.

The lessor appeals contending that the trial court erred by granting the exceptions, or, at the very least, should have permitted it a chance to amend its reconventional demand to cure the defects. We find that the trial court correctly sustained the exception of no cause of action. However, the trial court abused its discretion by not allowing the lessor to amend the reconventional demand. This matter is remanded to the trial court to afford the lessor the opportunity to amend within the time provided by the trial court.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

An Erny Girl, L.L.C. ("Erny") leased the premises located at 619 Frenchman Street in New Orleans to operate the Frenchmen Art Market from BCNO 4, L.L.C. ("BCNO"). After operating the Frenchmen Art Market for a time, BCNO sought to evict Erny from the premises. The facts surrounding BCNO's eviction of Erny were summarized by this Court as follows:

On January 28, 2016, Erny Girl filed a Petition for Damages, Declaratory Judgment and Permanent Injunction (the "Declaratory Action"), captioned " An Erny Girl, L.L.C. v. BCNO 4 L.L.C. and John Gregory Fox ," which was allotted to Division "C" of the Orleans Parish Civil District Court ("CDC"). In its Declaratory Action, Erny Girl requested, among other things, a declaration that "the Lease is effective and continuing through June 9, 2016, and that the defendant, BCNO [4], is obligated and ordered to cease any and all attempts to improperly terminate the lease and undermine Lessee's peaceful possession."
In the Declaratory Action, Erny Girl alleged the following regarding the term of the Lease:
• The Lease had an initial term of February 1, 2013 through January 31, 2014 (Section 2 of the Lease);
• Sometime after January 31, 2014, Erny Girl began discussing a renewal option with BCNO 4; and around June 1, 2014, BCNO 4 and Erny Girl renewed the Lease for an additional year, through June 1, 2015.
• Around February 25, 2015, BCNO 4 began to discuss and negotiate with Erny Girl an additional renewal of the Lease for a third term.
• On June 9, 2015, BCNO 4 and Erny Girl agreed to a renewal option on the Lease, extending the Lease through June 9, 2016.
On the same day it filed the Declaratory Action (January 28, 2016), Erny Girl, by letter, attempted to exercise the renewal option under the Lease and thereby extend the term of the Lease to June 9, 2017. The letter stated that Erny Girl was "electing to exercise its renewal option within Section 4 of the Lease, extending the term of the Lease through June 9, 2017." The renewal clause (Section 4 of the Lease), however, provided that "Tenant shall have the option to renew this lease thirty (30) days before the end of the initial term." (Emphasis supplied).
By letter dated February 15, 2016, BCNO 4 rejected Erny Girl's attempted renewal of the Lease, stating:
[Erny Girl's] attempt to exercise the option to renew is without effect. The lease had an initial term of one year, expiring January 31, 2014 (See Section 2), with an option to renew for an additional one year term expiring January 31, 2015 (See Section 4). Upon expiration of the renewal term on January 31, 2015, the lease converted to month to month term. On January 11, 2016, my client [BCNO 4] sent the lessee written notice of lease termination, effective February 12, 2016.
In its answer to the Declaratory Judgment Action, BCNO 4 asserted that the Lease was validly terminated as of February 12, 2016. BCNO 4 also filed a reconventional demand requesting, among other thing [sic], "a declaratory judgment be issued, stating that the Lease expired on February 12, 2016." Additionally, BCNO 4 gave Erny Girl notice to vacate.
Thereafter, BCNO 4 filed two petitions for possession (eviction actions). Both actions were entitled " BCNO 4, L.L.C. v. An Erny Girl ;" both actions were filed in the same case number and allotted to CDC Division "J." The first action, which was filed on April 25, 2016, sought to evict Erny Girl based on its failure to maintain all-risk property insurance as required by the Lease (the "First Eviction Action."). The second action, which was filed on June 24, 2016, sought to evict Erny Girl based upon its judicial admission in its Declaratory Action that the Lease terminated on June 9, 2016 (the "Second Eviction Action"). Although Erny Girl was served with the Second Eviction Action on July 28, 2016, it failed to file an answer to that action.
On July 25, 2016, Erny Girl filed a declinatory exception of lis pendens . On July 29, 2016, Erny Girl filed an unverified answer to the First Eviction Action. The trial court, in Division "J," set a hearing on the lis pendens exception for August 15, 2016.
In opposing Erny Girl's lis pendens exception, BCNO 4 suggested that the trial court in Division "J"-the division in which the eviction actions (the later filed actions) were pending-transfer the eviction actions to Division "C"-the division in which the Declaratory Action was pending (the earlier filed action). See La. Rules for District Courts, Rule 9.4 (b) (providing that "all subsequent actions asserting the same claim by the same parties ... shall be transferred to the division to which the first case filed was allotted, whether or not the first case is still pending."). Adopting the suggestion, the trial court in Division "J" transferred the eviction actions to Division "C" on August 1, 2016.
On August 15, 2016, a hearing was held, in Division "C," on both BCNO 4's pending eviction action and Erny Girl's lis pendens exception. On August 17, 2016, the trial court rendered judgment overruling Erny Girls' [sic] lis pendens exception and granting BCNO 4's Second Eviction Action. In its written reasons for judgment, the trial court stated as follows:
After hearing argument, this Court overruled An Erny Girl, L.L.C.'s Exceptions of Lis Pendens filed in response and opposition to BCNO 4, L.L.C.'s two Petitions for Possession of Premises, finding that lis pendens, La. C.C.P. Art. 531, is inapplicable in this matter. An Erny Girl's "Petition for Damages, Declaratory Judgment, And Permanent Injunction" seeks a declaration from the Court that the lease is effective through June 9, 2016. BCNO 4, L.L.C.'s second "Petition for Possession of Premises", filed June 24, 2016, seeks possession of the premises based on the expiration of the lease on June 9, 2016, which An Erny Girl, L.L.C. judicially admitted in their Petition. The Declaratory Judgment action does not assert any right to possession past June 9, 2016.6
From this judgment, Erny Girl filed a suspensive appeal.

An Erny Girl, L.L.C. v. BCNO 4 L.L.C. , 16-1011, pp. 1-5 (La. App. 4 Cir. 3/30/17), 216 So.3d 833, 835-37, reh'g denied (Apr. 18, 2017), writ denied , 17-0815 (La. 6/29/17), 222 So.3d 48 (footnotes omitted).

This Court converted the suspensive appeal to a devolutive appeal and affirmed the judgment of the trial court, upholding Erny's eviction. Id. , 16-1011, p. 18, 216 So.3d at 844.

Following the denial of writs by the Louisiana Supreme Court, on July 13, 2017, BCNO attempted to deposit eight rent checks written by Katherine Erny Gaar, the member/manager of Erny, for rents due from February 2016 - October 2016. However, the bank returned the checks, as Erny's account was closed. Subsequently, BCNO filed a Supplemental Reconventional Demand ("Demand") against Ms. Gaar, as the member and manager of Erny. The Supplemental Reconventional Demand sought $43,940 in past rent and $96 for check fees charged by the bank.

Ms. Gaar and Erny filed exceptions of no cause of action and vagueness, asserting that the checks were legally stale by July 13, 2017, when BCNO attempted to negotiate them. The trial court granted the exceptions of vagueness and no cause of action as to Ms. Gaar, and dismissed her without prejudice. BCNO's devolutive appeal followed.

STANDARD OF REVIEW

"Exceptions of no cause of action present legal questions, which are reviewed using the de novo standard of review." O'Dwyer v. Edwards , 08-1492, p. 3 (La. App. 4 Cir. 6/10/09), 15 So.3d 308, 310.

"Because the district court's judgment on an exception of vagueness is based on a factual determination, an appellate court reviews the district court's judgment under the manifest error standard of review." Frankowski v. Frankowski , 16-1313, pp. 2-3 (La. App. 4 Cir. 2/22/17), 214 So.3d 35, 37.

NO CAUSE OF ACTION

" 'The function of the peremptory exception of no cause of action is to question whether the law extends a remedy against the defendant to anyone under the factual allegations of the petition.' " O'Dwyer , 08-1492, p. 4, 15 So.3d at 310 ; quoting Indus. Co., Inc. v. Durbin , 02-0665, p. 6 (La. 1/28/03), 837 So.2d 1207, 1213. "An exception of no cause of action should be granted only when it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim which would entitle him to relief." Jamison v. D'Amico , 06-0842, p. 9 (La. App. 4 Cir. 3/14/07), 955 So.2d 161, 167.

"In deciding whether to sustain an exception of no cause of action, the court accepts the facts alleged in the plaintiffs' petition without reference to any extraneous supporting or controverting evidence and determines whether the law affords any relief to the plaintiff if those facts are proved at trial." Bibbins v. City of New Orleans , 02-1510, p. 2 (La. App. 4 Cir. 5/21/03), 848 So.2d 686, 689. "[T]he well-pleaded facts in the petition must be accepted as true." Id. , 02-1510, p. 2, 848 So.2d at 690. "The burden of proof is on the exceptor." Id. , 02-1510, p. 3, 848 So.2d at 690.

"The trial court may not assume any facts not in the plaintiff's original or amended petitions in determining whether to grant an exception of no cause of action." Id. , 02-1510, p. 5, 848 So.2d at 691. "It is insufficient to state a cause of action where the petition simply states legal or factual conclusions without setting forth facts that support the conclusions." Id. "The pertinent question is whether, in the light most favorable to plaintiff and with every doubt resolved in plaintiff's behalf, the petition states any valid cause of action for relief." Ramey v. DeCaire , 03-1299, p. 8 (La. 3/19/04), 869 So.2d 114, 119.

Supplemental Reconventional Demand

BCNO alleged in the Demand that Ms. Gaar was the member/manager of Erny. The Demand alleged the following:

4.
From February 2016 through October 2016, Erny Girl, acting through Gaar, issued checks in payment of rent to BCNO 4 as follows: # 5074 in the amount of $4,680.00; # 5097 in the amount of $5,180.00; # 5101 in the amount of $5,180.00; # 5064 in the amount of $5,680.00; # 5086 in the amount of $5,680.00; # 5080 in the amount of $5,680.00; # 5121 in the amount of $5,680.00; and # 5109 in the amount of $6,180.00 (the "Rent Checks").
* * *
8.
BCNO 4 held the Rent Checks pending a resolution of the litigation over possession. On July 13, 2017, after the appellate court judgment became final, BCNO 4 attempted to deposit the Rent Checks
9.
On July 17, 2017, Erny Girl's bank returned the Rent Checks unpaid and marked "Account Closed" and charged BCNO 4 a fee of $12.00 per dishonored check. See Exhibit "A".
* * *
11.
Erny Girl never disputed that it owed rent to BCNO 4 for the months it possessed the Leased Premises and operated its business.
12.
On the contrary, Erny Girl delivered the Rent Checks to BCNO 4, represented to this court that it had always paid the rent due BCNO 4 and, commencing November 2016, agreed to deposit monthly rent into the registry of this court. See Exhibit "C", Erny Girl's "Memorandum in Support of Opposition to BCNO 4's Motion to Declare Suspensive Appeal Bond Insufficient ," filed herein on October 14, 2016.
13.
After this court's judgment became final, Gaar made public statements that she had continued to pay rent during the litigation over possession of the Lease Premises. See In Globo Exhibit "B" attached hereto.
14.
Upon information and belief, and despite her public representations on the contrary, Gaar closed the Erny Girl account after this court's judgment became final but before BCNO 4 deposited the Rent Checks.
15.
BCNO 4 has made demand on Erny Girl and Gaar to pay the rent in the amount of $43,940.00, plus $96.00 in dishonored check fees, but defendants have failed to remit payment.
16.
BCNO 4 never forgave Erny Girl the sums due and represented by the Rent Checks, and it never authorized the closure of the Erny Girl account.
17.
Gaar's closing the Erny Girl account, with the Rent Checks outstanding, removing the funds from the account, and then refusing to remit payment of the sums due BCNO 4 constitute conversion, for which Erny Girl should be found liable and for which for Gaar, individually, should be found liable under La. R.S. 12:1320(D).
18.
Gaar's closing the Erny Girl account, with the Rent Checks outstanding, removing the funds from the account and placing them beyond the reach of BCNO 4, the owner of the funds, and then refusing to remit payment of the sums due BCNO 4, constitute a violation of one or more provisions of Louisiana Revised Statutes Title 14, which subjects Gaar to individual liability under La. R.S. 12:1320(D).
19.
Gaar's personal actions also amount to fraud, which subjects her to individual liability under La. R.S. 12:1320(D). Gaar caused Erny Girl to remain in possession of BCNO 4's immovable property beyond the time provided by the Lease. While it possessed the premises, Erny Girl issued the Rent Checks to avoid eviction for failure to pay rent.
20.
Gaar caused Erny Girl to make rent payments by check and to represent to this court that the rent had been paid. Gaar personally represented to BCNO 4 and the public at large that the rent has been paid. BCNO 4 held the Rent Checks until this court's judgment became final. Gaar closed the Erny Girl account without notice to BCNO 4 and then refused to remit payment for the rent due.
21.
The circumstances described above make clear that Gaar's representations regarding the rent payments were made with the intent to obtain an unjust advantage and to cause loss or inconvenience to BCNO 4.

Subsequently, BCNO amended the Demand to include:

14.
Upon information and belief, and despite her public representations on the contrary, Erny Girl closed its bank account on November 3, 2016, before BCNO 4 deposited the Rent Checks. See , Exhibit "D."

Legal Relationship of a Limited Liability Company and Its Member(s)

BCNO contends that the Demand pled a cause of action against Ms. Gaar pursuant to La. R.S. 12:1320.

However, "the personalities of an L.L.C. and its members are wholly separate by law." Nunez v. Pinnacle Homes, L.L.C. , 15-0087, p. 5 (La. 10/14/15), 180 So.3d 285, 289. "[T]he legislature clearly intended to promote business in the state by limiting personal liability for some debts incurred or acts performed on behalf of business entities." Id. "Thus, the legislature intended to shield individual members, managers, and employees of an L.L.C. from liability, albeit with certain exceptions." Id. , 15-0087, p. 6, 180 So.3d at 289.

Holding an L.L.C. member personally liable for obligations of the L.L.C. is referred to as piercing the corporate veil. Ogea v. Merritt , 13-1085, p. 6 (La. 12/10/13), 130 So.3d 888, 895. "With regard to the jurisprudential doctrine of 'piercing the corporate veil,' Louisiana courts have generally allowed this remedy when one of two exceptional circumstances exists." Hodge v. Strong Built Int'l, LLC , 14-1086, p. 4 (La. App. 3 Cir. 3/4/15), 159 So.3d 1159, 1163. Firstly, if "the company is the 'alter ego' of the members and has been used to defraud third parties." Id. Secondly, if "the members have failed to conduct business on a 'corporate footing' such that it is not possible to distinguish the corporation from its managers." Id. The theory of piercing the corporate veil is applicable to limited liability companies as well as corporations. ORX Res., Inc. v. MBW Expl., L.L.C. , 09-0662, p. 6 (La. App. 4 Cir. 2/10/10), 32 So.3d 931, 935.

Further, La. R.S. 12:1320(B) states that "[e]xcept as otherwise specifically set forth in this Chapter, no member, manager, employee, or agent of a limited liability company is liable in such capacity for a debt, obligation, or liability of the limited liability company." However, Section D outlines exceptions for those engaged in fraud, breach of professional duty, or a negligent/wrongful act.

Fraud

"Fraud is a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other." La. C.C. art. 1953. "In pleading fraud or mistake, the circumstances constituting fraud or mistake shall be alleged with particularity. Malice, intent, knowledge, and other condition of mind of a person may be alleged generally." La. C.C.P. art. 856. " 'A mere allegation of fraud, unaccompanied by factual allegations setting forth with particularity the circumstances which constitute the same, is a mere conclusion of the pleader and does not set forth a cause of action as to fraud.' " Ivy Rest. New Orleans, LLC v. Torre , 16-0777, p. 6 (La. App. 4 Cir. 2/1/17), 211 So.3d 676, 680 ; quoting Loeb v. Badalamenti , 192 So.2d 246, 249 (La. App. 4th Cir. 1966). " 'It is insufficient to plead merely that a defendant defrauded a plaintiff.' " Ivy , 16-0777, p. 6, 211 So.3d at 680 ; quoting Private Connection Prop., Inc. v. Fox Cars, LLC , 08-1129, p. 10 (La. App. 4 Cir. 2/10/09), 6 So.3d 866, 872.

While BCNO contends that Ms. Gaar made misrepresentations regarding the fact that she continued to pay rent throughout the litigation, the record reflects that she was writing the checks to pay the rent when she made the statements. It is undisputed that all of the checks were over six months old when BCNO attempted a negotiation. No allegations contend that the checks were written on insufficient funds at the time of authorship or that Ms. Gaar knew the checks remained outstanding when she closed the account. Likewise, the Demand lacks nonconclusory allegations that Ms. Gaar intended to cause a loss or inconvenience to BCNO. The Demand also does not set forth that Erny was the alter ego of Ms. Gaar. Therefore, we find BCNO's present Demand failed to set forth with specificity Ms. Gaar's alleged misrepresentations or suppressions of truth to substantiate a claim of fraud.

Negligent or Wrongful Conduct

"[T]he 'negligent or wrongful act' exception differs from the other exceptions examined because the 'negligent or wrongful act' exception contains two distinct concepts (i.e., the exception applies to an act that is 'negligent' or an act that is 'wrongful')." Ogea , 13-1085, p. 14, 130 So.3d at 899. The Louisiana Supreme Court found that four factors "assist" the determination of whether negligent or wrongful conduct has occurred "while also respecting the general limitation of liability." Id. , 13-1085, p. 16, 130 So.3d at 900. The factors are as follows:

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

Id. , 13-1085, p. 16, 130 So.3d at 900-01. "A court is to evaluate each situation on a case-by-case basis and consider each of the above factors when determining whether the general rule of limited liability must yield to the exception for a member's 'negligent or wrongful act.' " Ogea , 13-1085, p. 24, 130 So.3d at 905. Further, " 'the phrase 'or other negligent or wrongful act by such person' must refer to acts done outside one's capacity as a member, manager, employee, or agent of the limited liability company.' " ORX Res. , 09-0662, p. 6, 32 So.3d at 935 ; quoting Curole v. Ochsner Clinic, L.L.C. , 01-1734, pp. 7-8 (La. App. 4 Cir. 2/20/02), 811 So.2d 92, 97.

BCNO's Demand did not allege that Ms. Gaar was acting outside her capacity as a member/manager of Erny. See ORX Res. , 09-0662, p. 6, 32 So.3d at 935. Therefore, BCNO failed to state a cause of action against Ms. Gaar based on negligent or wrongful conduct.

Conversion

BCNO also asserts that it sufficiently pled a cause of action for conversion against Ms. Gaar. "Generally, 'conversion consists of an act in derogation of the plaintiff's possessory rights, and any wrongful exercise or assumption of authority over another's goods, depriving him of the possession, permanently or for an indefinite time, is a conversion.' " New Orleans Jazz & Heritage Found., Inc. v. Kirksey , 09-1433, p. 17 (La. App. 4 Cir. 5/26/10), 40 So.3d 394, 405 ; quoting Quealy v. Paine, Webber, Jackson & Curtis, Inc. , 475 So.2d 756, 760 (La. 1985). This Court held that "[a] conversion is committed when any of the following occurs:

1) possession is acquired in an unauthorized manner; 2) the chattel is removed from one place to another with the intent to exercise control over it; 3) possession of the chattel is transferred without authority; 4) possession is withheld from the owner or possessor; 5) the chattel is altered or destroyed; 6) the chattel is used improperly; or 7) ownership is asserted over the chattel.

New Orleans Jazz & Heritage Found. , 09-1433, p. 17, 40 So.3d at 405-06.

Ownership of the allegedly converted goods is the main requirement for conversion. BCNO was not the owner of the actual money in the closed account or the account itself. Without ownership, BCNO has not stated a cause of action for conversion against Ms. Gaar.

VAGUENESS

"[T]he purpose of the dilatory exception of vagueness is to allow a defendant to be placed on notice of the cause of action and prevent its future re-litigation after a judgment is obtained." Frankowski , 16-1313, p. 2, 214 So.3d at 37. "The exception, however, does not permit the defendant to demand exactitude and detail beyond what is necessary for the above purposes." Id. , 16-1313, p. 2, 214 So.3d at 37. Because we found that the trial court correctly maintained the exception of no cause of action, we pretermit discussion on the exception of vagueness.

AMENDMENT

Alternatively, BCNO maintains that the trial court should have granted it the opportunity to amend the Demand to cure the defect.

La. C.C.P. art. 934 provides:

When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection raised through the exception cannot be so removed, or if the plaintiff fails to comply with the order to amend, the action, claim, demand, issue, or theory shall be dismissed.

Further, "[i]f the allegations of the petition are merely conclusory and fail to specify the acts or circumstances that establish a cause of action, then the trial court should permit the plaintiff the opportunity to amend." McClain v. City of New Orleans , 13-1291, p. 8 (La. App. 4 Cir. 3/5/14), 137 So.3d 671, 677. Moreover, "[t]he language of La. C.C.P. art. 934 does not limit a plaintiff to a single amendment of her petition; rather, additional opportunities for amendment of a petition may be allowed in the discretion of the court." Id. , 13-1291, p. 9, 137 So.3d at 677.

Ms. Gaar contends that BCNO waived its right to amend the Demand because it failed to object at the hearing and did not request extra time to amend in the opposition to the exceptions or at the hearing. This Court previously held that parties who fail to object or request the opportunity to amend waive the right to raise the issue on appeal. Hershberger v. LKM Chinese, L.L.C. , 14-1079, p. 6 (La. App. 4 Cir. 5/20/15), 172 So.3d 140, 144. However, this Court is mindful that La. C.C.P. art. 934 states that the trial court "shall" order amendment when the grounds of the exception may be removed. Moreover, La. C.C.P. art. 2164 provides that "[t]he appellate court shall render any judgment which is just, legal, and proper upon the record on appeal."

Based on the facts and circumstances contained in the record before us and the claims alleged by BCNO, we find that the trial court abused its discretion by not permitting BCNO an opportunity to amend the Demand, as it relates to fraud. BCNO can amend the Demand without changing the substance of the claims yet removing the grounds of the exception. Therefore, amendment would not be a vain and useless act, as to the claim of fraud. Accordingly, we remand the matter to the trial court to afford BCNO an opportunity to amend its Demand within the time allotted by the trial court.

DECREE

For the above-mentioned reasons, we find that the trial court correctly sustained the exception of no cause of action. However, we find that the trial court abused its discretion by not permitting BCNO to amend the Demand. The matter is remanded to the trial court to give BCNO the opportunity to amend the Demand within a delay set by the trial court.

AFFIRMED AND REMANDED

      The L.L.C. is not before this Court on appeal.

      It is undisputed that all of the checks were over six months old when negotiation was attempted.


author: GREMILLION, Judge.

text:
    Vera BERNARD v. ACE PROPERTY & CASUALTY INS. CO., et al.
    18-42
    Court of Appeal of Louisiana, Third Circuit.
    October 3, 2018
    Lawrence Blake Jones, David C. Whitmore, Blake Jones Law Firm, LLC, 701 Poydras Street, Suite 4100, New Orleans, LA 70139, (504) 525-4361, COUNSEL FOR PLAINTIFF/APPELLANT: Vera Bernard
    Steven B. Witman, Law Offices of Steven B. Whitman, 209 Highway 22 West, Suite G, Madisonville, LA 70447, (985) 792-5220, COUNSEL FOR DEFENDANT/APPELLEE: Stanley Access Technologies LLC
    Court composed of Billy Howard Ezell, Shannon J. Gremillion, and D. Kent Savoie, Judges.
   GREMILLION, Judge.

The plaintiff, Vera Bernard (Bernard), appeals the trial court's judgment granting summary judgment in favor of Stanley Access Technologies LLC (Stanley). For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Bernard filed a petition for damages in February 2012, alleging that she sustained injuries in February 2011 at the Lafayette Airport when she struck a revolving door that came to "an abrupt halt" as she was exiting the airport. Stanley was later named as a defendant in an amending petition. Stanley installed the revolving doors at the Lafayette Airport, which were thereafter inspected and certified by Boon Edam, Inc. Stanley filed a motion for summary judgment in July 2017. Following an August 2017 hearing, the trial court granted summary judgment in Stanley's favor finding it owed no duty to Bernard.

Bernard assigns as error:

1. The trial court erred in failing to find that the appellees owed a duty to appellant.
2. Insofar as the trial court determined that Stanley did not owe a duty to Ms. Bernard because there was no contractual relationship between Ms. Bernard and Stanley, such a determination was an error of law.
3. Insofar as the failure to find a duty was owed is based upon the trial court's determination of the issue of garde, the trial court erred in finding that the property owner had garde over the doors involved in plaintiff's accident when the issue of garde had not been addressed by the Motion for Summary Judgment (as well as no other pleading) and there are questions of fact as to who had garde.
4. The trial court erred in failing to find that there was sufficient circumstantial evidence that the door involved in appellant's accident was malfunctioning at or near the time of the appellant's accident, and that the malfunction was due to matters which appellees were contractually obligated to remedy.
5. The trial court erred in failing to find that there were genuine issues of material fact as to whether the lack of adequate warning was a contributing factor to the accident in question.
6. The trial court erred in failing to find that there were genuine issues of material fact as to whether the appellees breached a duty owed by the appellees to the appellant.

SUMMARY JUDGMENT

On appeal, summary judgments are reviewed de novo. Magnon v. Collins, 98-2822 (La. 7/7/99), 739 So.2d 191. Thus, the appellate court asks the same questions the trial court asks to determine whether summary judgment is appropriate.
Id. This inquiry seeks to determine whether any genuine issues of material fact exist and whether the movant is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B) and (C). This means that judgment must be rendered in favor of the movant if the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show a lack of factual support for an essential element of the opposing party's claim. Id. If the opposing party cannot produce any evidence to suggest that he will be able to meet his evidentiary burden at trial, no genuine issues of material fact exist. Id.
Material facts are those that determine the outcome of the legal dispute. Soileau v. D & J Tire, Inc., 97-318 (La.App. 3 Cir. 10/8/97), 702 So.2d 818, writ denied , 97-2737 (La. 1/16/98), 706 So.2d 979. In deciding whether facts are material to an action, we look to the applicable substantive law. Id. Finally, summary judgment procedure is favored and designed to secure the just, speedy, and inexpensive determination of every action. La.Code Civ.P. art. 966(A)(2).

Am. Zurich Ins. Co. v. Caterpillar, Inc. , 12-270, p. 4-5 (La.App. 3 Cir. 10/3/12), 99 So.3d 739, 742-43.

Bernard's amending petition naming Stanley as a defendant alleged that it was under contract with the Lafayette Airport Commission for the "installation, repair, maintenance, upkeep and/or training and/or supervising personnel regarding such acts in regard to the revolving doors involved in plaintiff's accident." Bernard further alleged that her injuries were due to Stanley's negligence in "failing to properly install, inspect, maintain and/or repair the automatic revolving doors, failing to properly train their employees or employees of other defendants herein in the proper repair, maintenance and upkeep of the revolving doors, and such other acts of negligence as may be shown at the trial of this matter."

In support of its motion for summary judgment, Stanley submitted the deposition of Bernard, who stated that she did not know what caused her to fall; the Lafayette Regional Airport incident narrative, which stated that Bernard did not know what caused her to fall; the affidavits of two experts who attested that Stanley was not required by any contract to inspect, maintain, or repair the doors or train employees, that the doors were inspected and certified to have been installed correctly, and the doors operated correctly on the day of the accident. Further, Stanley submitted evidence indicating that the doors were marked with "CAUTION," "AUTOMATIC DOORS," and "KEEP RIGHT" warning signs.

In opposition to the motion for summary judgment, Bernard claimed that the expert witness testimony was based on hearsay and biased, as the parties were employed by subsidiaries of Stanley. Further, Bernard argued that Stanley was required to "inspect, maintain and repair" the doors at the time of the accident and afterward. Bernard attached a "Letter of Guarantee" issued by Stanley, which warranties the door equipment and instructs that, if the equipment malfunctions, the owner shall immediately turn off the door operating equipment and notify Stanley. Bernard further submitted a "Field Report No. 12" indicating that on March 9, 2011, a Stanley representative made notes for an installer to adjust a sensor in the door. According to Bernard, this showed Stanley continued to maintain and inspect the door. Bernard also points to a service report dated January 2012, noting that Stanley "performed pm inspection on 2 Boon Edam doors," as evidence of its duty to inspect, maintain, and repair after installation. Bernard attached emails in which Stanley employees discussed training airport personnel. Bernard further argued that questions of fact remain as to whether the warning signs on the door were sufficient. She pointed to the fact that after the accident, additional warning indicators were placed on the doors. Bernard further submitted that she reported being hit by the revolving door shortly after the accident when presenting to her orthopedic doctor.

Stanley maintained that Bernard failed to put forth any evidence that the doors were defectively installed or any expert testimony to refute the affidavits of the expert testimony provided by Stanley.

The trial court based its grant of summary judgment on the fact that the duty to inspect the doors daily rested with the airport rather than Stanley and that there was no evidence that the door malfunctioned. The trial court stated, "[T]he airport is the one that has guard [sic] over the door. The airport has a responsibility." The trial court further found that there was no evidence to show that the incident was caused by a lack of training of anyone. The trial court determined that Bernard failed to put on any evidence that Stanley had a daily duty to inspect the doors. The trial court stated:

[T]he burden was on the plaintiff to show that there is some basis on which Stanley has breached a duty owed to this plaintiff. And I don't - The evidence submitted does not establish that.
The only, quote, evidence is the claim of the plaintiff that she was hit by the door. But there's no evidence in the record to establish that anything was malfunctioning that day and that any malfunction was a result of the breach of a duty by Stanley owed to this plaintiff.

We agree with the trial court. Bernard simply failed to put forth any evidence that she would be able to meet her burden of proving at trial that Stanley owed a duty to her or that it breached that duty. Ordinary negligence claims under La.Civ.Code art. 2315 are governed by a duty/risk analysis and an examination of the particular facts in question. Berthiaume v. Gros , 15-116 (La.App. 3 Cir. 6/3/15), 165 So.3d 1275. A plaintiff must prove "1) that the defendant had a duty to conform his conduct to a specific standard of care; 2) that the defendant failed to do so; 3) that the substandard conduct was a cause-in-fact of the plaintiff's injuries; 4) that the conduct was a legal cause of the plaintiff's injuries; and 5) actual damages." Id. at 1278. Whether a defendant owes a duty to a plaintiff is a question of law. Baheth v. Lafayette Parish Sch. Sys. , 17-821 (La.App. 3 Cir. 4/25/18), 245 So.3d 1252. A plaintiff can support her claims with any law, whether it be statutory, jurisprudential or arising from general principles of fault. Talbert v. Restoration Hardware, Inc. , 17-986 (La.App. 1 Cir. 5/31/18), 251 So.3d 569.

ASSIGNMENTS OF ERROR ONE, TWO & THREE

Bernard's first three assignments of error revolve around the threshold issue in this case, i.e., whether Stanley owed a duty to Bernard. While the first assignment makes the general claim that the trial court erred in finding no duty, assignments two and three address specific reasons why Bernard believes the trial court found there was no duty owed by Stanley: 1) lack of a contractual relationship between Bernard and Stanley; and 2) the Lafayette Airport had garde over the doors.

Bernard argues that any contractor owes a duty to the general public to not expose it to harm. Stanley argues there was no duty because there was no contractual relationship with the airport and the doors had been certified as properly working. According to Bernard's first argument, a contractor having any connection to the construction of a building, however remote, owes a duty to the entire public. We disagree. Once the doors had been certified as properly installed, the duty rested with the Lafayette Airport to alert Stanley were the doors to malfunction. While Bernard spends a significant amount of time discussing whether the issue of "garde" was properly before the trial court since it was not addressed in Stanley's motion for summary judgment, we find this distinction irrelevant. Whether Stanley owed a duty to Bernard is not dependent upon legal terms used in its motion. Further, Bernard spends a great deal of time arguing that Stanley had a duty to inspect the doors on a daily basis, yet provides no evidence of such. These assignments of error are without merit.

ASSIGNMENT OF ERROR FOUR

In brief, Bernard argues "Insofar as the trial court determined that summary judgment was proper because there was no direct evidence that the door malfunctioned at the moment of Ms. Bernard's accident, there was ample circumstantial evidence to create genuine issues of material fact for trial." This circumstantial evidence consists of a service call made by the Lafayette Airport to Stanley on March 9, a month after the accident in question, requesting adjustment to some sensors on the door and Bernard's claims that Stanley did not train the airport employees. Neither of these points to evidence that the door malfunctioned or was improperly installed on the date in question. On the contrary, the many people who would have passed through the doors following the accident and before the mid-March service call indicate that the doors did function properly. Bernard failed to submit any evidence to contradict the expert opinion offered by Stanley that the doors, including its sensors and components, complied with applicable standards and were properly functioning on the day of the incident.

The simple fact is that Bernard offered no evidence that the door was not functioning properly on the day of the accident. Even if Stanley had all the duties suggested by Bernard (i.e. to inspect daily, to train employees, to provide manuals, etc.), there is no correlation between these alleged duties and the claimed malfunction of the door, of which there is no proof.

Accordingly, this assignment of error is without merit.

ASSIGNMENT OF ERROR FIVE

This assignment of error is a variation of the same argument made above. What Bernard claims is a genuine issue of material fact-whether the lack of adequate warning was a contributing factor to the accident-assumes there was some evidence suggesting that the doors were inadequately labeled. While Bernard's former arguments hinge on malfunction of the door, this argument relies on failure to warn that a revolving door was approaching. On the contrary, Stanley submitted evidence that the doors were marked with large signs indicating "CAUTION," "AUTOMATIC DOOR," and "KEEP RIGHT." Bernard did not submit any evidence that these warnings were inadequate. The fact that at some point in time after this incident round opaque stickers were added to the doors does not create a genuine issue of material fact. Bernard put on no evidence that the door labeling was a contributing factor to this accident.

ASSIGNMENT OF ERROR SIX

In this assignment of error, Bernard argues that the trial court erred in finding there were no genuine issues of material fact as to whether the Stanley breached a duty owed to Bernard. For the reasons discussed above we find that Bernard will be unable to prove that Stanley breached a duty owed to her. Accordingly, this assignment of error is without merit.

CONCLUSION

Bernard failed to meet her burden of producing evidence that Stanley owed a duty to her or that the revolving door malfunctioned on the date of the incident. The judgment of the trial court granting summary judgment in favor of the defendant-appellee, Stanley Access Technologies LLC, is affirmed. All costs of this appeal are assessed to the plaintiff-appellant, Vera Bernard.

AFFIRMED .


author: COOKS, Judge.

text:
    STATE of Louisiana v. Matthew R. DOTSON
    18-29
    Court of Appeal of Louisiana, Third Circuit.
    October 3, 2018
    Asa A. Skinner, District Attorney, Terry W. Lambright, Assistant District Attorney, P.O. Box 1188, Leesville, LA 71446, (337) 239-2008, COUNSEL FOR APPELLEE: State of Louisiana
    Mary Constance Hanes, Louisiana Appellate Project, P.O. Box 4015, New Orleans, LA 70178-4015, (504) 866-6652, COUNSEL FOR DEFENDANT/APPELLANT: Matthew R. Dotson
    Court composed of Sylvia R. Cooks, John D. Saunders, and Elizabeth A. Pickett, Judges.
   COOKS, Judge.

FACTS AND PROCEDURAL HISTORY

Defendant, Matthew Dotson, lived with the victims in this case, his girlfriend, Misty Marshall, and her nine-year-old son, Day-Min. Also residing in that home was their daughter, toddler Zinlee Dotson, as well as Ms. Marshall's teenage daughter, Jasmine Moses. At the end of the Thanksgiving 2015 break for school, the children got their school gear together and the family had supper. Day-Min and Jasmine each went to bed. When Jasmine woke up the next day, she noticed her mother and brother were not present, and the living room appeared to be in disarray.

When Jasmine saw Defendant, he appeared flustered and was repeatedly going outside and coming back inside. He told Jasmine that they had to pack and leave, and also told her that her mother and Day-Min were in Shreveport. The teenager packed for herself and her younger sister. Defendant then removed the gaming systems and video games. When Jasmine took Zinlee out of her playpen and went outside, she saw their mother's corpse on the ground, wrapped in blue bubble wrap. Defendant tried to load the body into his truck with an engine hoist; when that didn't work, he told Jasmine that she had to help him load the body. Jasmine stated Defendant threatened her and told her he had killed her mother and brother. Defendant was armed with a pistol. Eventually, they drove down a logging trail, put her mother's body in a ditch and put a piece of plywood over it. After that, they drove to a GameStop, where Defendant sold the gaming systems and games. They then left the state.

Ms. Marshall's mother became concerned after not hearing from her and contacted police. During the subsequent investigation, police located Day-Min's corpse in a car in the backyard of the residence.

On February 11, 2016, a Vernon Parish grand jury indicted Defendant on two counts of first degree murder, in violation of La.R.S. 14:30. On September 18 and 19, 2017, a jury was selected. Trial began on September 20, and after a two day trial, the jury found Defendant guilty as charged.

On October 30, 2017, the district court sentenced Defendant to life imprisonment for each count. Defendant now seeks review by this court, asserting two assignments of error. For the following reasons, we affirm Defendant's convictions and sentences.

ASSIGNMENT OF ERROR NO. 1

In his first assignment of error, Defendant argues the evidence adduced at trial was insufficient to support his convictions for first degree murder. He claims the State lacked any physical evidence linking him to the crimes and the case was wholly based on circumstantial evidence. His chief argument is that the State did not establish his identity as the killer.

This court, in State v. Giles , 04-359, pp. 9-10 (La.App. 3 Cir. 10/6/04), 884 So.2d 1233, 1240-41, writ denied , 04-2756 (La. 3/11/05), 896 So.2d 62 (alterations in original), stated:

With regard to a sufficiency of the evidence claim, this court has set forth the analysis as follows:
When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied , 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979) ; State ex rel. Graffagnino v. King , 436 So.2d 559 (La.1983) ; State v. Duncan , 420 So.2d 1105 (La.1982) ; State v. Moody , 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel.Graffagnino, 436 So.2d 559 (citing State v. Richardson , 425 So.2d 1228 (La.1983) ). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.
State v. Kennerson , 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.
This court in State v. Hamilton , 03-1385, pp. 13-14 (La.App. 3 Cir. 3/3/04), 867 So.2d 151, 160, further stated:
[W]hen the conviction is based upon circumstantial evidence, La.R.S. 15:438 provides that such evidence must exclude every reasonable hypothesis of innocence. State v. Camp , 446 So.2d 1207 (La.1984) ; State v. Wright , 445 So.2d 1198 (La.1984). However, La.R.S. 15:438 does not establish a stricter standard of review on appeal than the rational juror's reasonable doubt standard. The statute serves as a guide for the jury when considering circumstantial evidence.
Defendant argues he was not the person who attacked the victim. In State v. Jones , 02-1176, p. 13 (La.App. 3 Cir. 2/5/03), 839 So.2d 439, 446-47, writ denied , 03-886 (La.11/7/03), 857 So.2d 516, this court quoted the supreme court as follows:
The Louisiana Supreme Court in State v. Neal , 00-0674 (La.6/29/01), 796 So.2d 649, stated:
As a general matter, when the key issue is the defendant's identity as the perpetrator, rather than whether the crime was committed, the state is required to negate any reasonable probability of misidentification.
State v. Smith , 430 So.2d 31, 45 (La.1983) ; State v. Brady , 414 So.2d 364, 365 (La.1982) ; State v. Long , 408 So.2d 1221, 1227 (La.1982). However, positive identification by only one witness is sufficient to support a conviction. See State v. Mussall , 523 So.2d 1305, 1311 (La.1988) (generally, one witness's positive identification is sufficient to support the conviction); State v. Ford , 28,724 (La.App.2d Cir.10/30/96), 682 So.2d 847, 849-50, writ denied , 99-0210 (La.5/14/99), 745 So.2d 12.... The trier of fact makes credibility determinations and may, within the bounds of rationality, accept or reject the testimony of any witness; thus, a reviewing court may impinge on the "fact finder's discretion only to the extent necessary to guarantee the fundamental due process of law." Mussall , 523 So.2d at 1310 (La.1988).
Id. at p. 11, 658.

We note that Jasmine Moses testified Defendant confessed to her that he had killed her mother and brother. As shown in the analysis just cited, a single witness's testimony can support a conviction. Defendant suggests that Jasmine was not credible because she did not try to escape from Defendant while they were traveling together and because she testified pursuant to an immunity agreement. However, the assessment of any witness's credibility is within the province of the factfinder. Further, the State notes Defendant told relatives that he had done something worse than robbing a bank or "something really bad" but did not want to mention any details that would make them accessories to the crime. Defendant's argument that the evidence merely demonstrated that he and Jasmine were accessories after the fact is negated by Jasmine's testimony regarding his confession to her.

Near the end of his argument, Defendant briefly claims that the evidence did not establish that the killing of Ms. Marshall was a first-degree murder, as the State failed to prove Defendant had the specific intent to kill more than one person or that Misty Marshall was a witness to any crime. However, the evidence indicated that Defendant killed the mother and son at their residence on the same night, and this was a sufficient basis for reasonable jurors to conclude Defendant had the requisite intent. La.R.S. 14:30(A)(2).

Therefore, we find Defendant's first assignment of error has no merit.

ASSIGNMENT OF ERROR NO. 2

In his second assignment of error, Defendant complains the district court allowed the State to introduce unduly gruesome autopsy photographs at trial. Defendant cites the following supreme court case:

"Photographs are generally admissible if they illustrate any fact, shed any light upon an issue in the case, or are relevant to describe the person, thing, or place depicted." State v. Sepulvado , 93-2692, p. 7 (La.4/8/96), 672 So.2d 158, 164. A district court's ruling with respect to the admissibility of photographs will not be overturned unless it is clear the prejudicial effect of the evidence outweighs its probative value. State v. Maxie , 93-2158, p. 11 n. 8 (La.4/10/95), 653 So.2d 526, 532 n. 8.
Even when the cause of death is undisputed, the state is entitled to the moral force of its evidence and post-mortem photographs of murder victims are admissible to prove corpus delicti, to corroborate other evidence establishing cause of death, as well as the location and placement of wounds, and to provide positive identification of the victim. State v. Koon , 96-1208, p. 34 (La.5/20/97), 704 So.2d 756, 776 ; State v. Watson , 449 So.2d 1321, 1326 (La.1984) ; State v. Kirkpatrick , 443 So.2d 546, 554-55 (La.1983). Photographic evidence will be admitted unless it is so gruesome that it overwhelms jurors' reason and leads them to convict without sufficient other evidence. Koon , 96-1208 at 34, 704 So.2d at 776. The admission of "gruesome photographs is not reversible error unless it is clear that their probative value is substantially outweighed by their prejudicial effect." State v. Broaden , 99-2124, p. 23 (La.2/21/01), 780 So.2d 349, 364, quoting State v. Martin , 93-0285, pp. 14-15 (La.10/17/94), 645 So.2d 190, 198.
The probative value of the photographs in this case distinguishes them from the photographs in State v. Morris , 245 La. 175, 157 So.2d 728 (1963), the only case reversed by this court on grounds of the improper introduction of gruesome photographs. Morris involved the gratuitous introduction of "gruesome and ghastly" photographs depicting the progress of an autopsy in an "increasingly grotesque and revolting manner." Id. at 730. While Morris also involved a scenario in which the defendant did not dispute the fact he had murdered the victim, the photographs in this case did not approach the gratuitous nature of those in Morris . Here, the photographs merely reflect the injuries suffered by the victims and the condition and location of those injuries on their bodies. The court in this case engaged in a thoughtful and detailed examination of each photograph and excluded 7 of the 22 photographs the state sought to introduce. The defendant shows no abuse of discretion on the part of the district court in admitting the remaining photographs.

State v. Magee , 11-574, p. 54-55 (La. 9/28/12), 103 So.3d 285, 323, cert. denied, 571 U.S. 830, 134 S.Ct. 56, 187 L.Ed.2d 49 (2013).

At trial, defense counsel objected to the introduction of the "autopsy photographs as being unnecessary and only - only meant to provoke the ... sympathy of the jury." The district court replied:

Okay, uh, I believe that there is some probative value to these. Uh, as I noted before in other photographs there is - there are elements of this crime that he's charged with that can be established in various ways but one of them will be to have actual photographs to depict the kinds of wounds that were inflicted upon the body to allow the jury to determine whether that - that element has been proved. Uh, there's also photographs on the - the mother depicting the tattoos which would be pertinent as to identification for one thing and then other, uh, evidence that would corroborate further testimony (unintelligible). So, there's probative value in all these photographs, and, so, I will overrule the objection.

In viewing the images at issue, they are unquestionably graphic and gruesome. However, gruesome images are often likely to be introduced in murder cases. Although certain photographs of the child Day-Min's head wounds and Ms. Marshall's corpse are particularly graphic, they aided the pathologist's testimony relating to wounds. After reviewing the record, we cannot say the district court abused its discretion in balancing the probative value of these photographs against their prejudicial effect. Therefore, this assignment of error lacks merit.

DECREE

For the foregoing reasons, Defendant's convictions and sentences are affirmed.

AFFIRMED.

      Killing a witness to a crime is a violation of La.R.S. 14:30(A)(9).

      The statute states, in pertinent part:
      A. First degree murder is the killing of a human being:
      ....
      (3) When the offender has a specific intent to kill or to inflict great bodily harm upon more than one person.


author: Judge Dale N. Atkins

text:
    STATE of Louisiana v. Anthony CINQUEMANO
    NO. 2018-KA-0532
    Court of Appeal of Louisiana, Fourth Circuit.
    OCTOBER 24, 2018
    Leon A. Cannizzaro, Jr., District Attorney, Donna Andrieu, Assistant District Attorney, Scott G. Vincent, Assistant District Attorney, ORLEANS PARISH, 619 South White Street, New Orleans, LA 70119, COUNSEL FOR STATE OF LOUISIANA/ APPELLANT
    Perry W. Manning, Sr., LAW OFFICE OF PERRY W. MANNING, 5416 Veterans Blvd., Suite 200, Metaire, LA 70003, COUNSEL FOR DEFENDANT/ APPELLEE
    (Court composed of Chief Judge James F. McKay, III, Judge Sandra Cabrina Jenkins, Judge Dale N. Atkins )
   Judge Dale N. Atkins

The State of Louisiana ("State") appeals the trial court's Judgment which dismissed the criminal prosecution of the defendant, Anthony Cinquemano ("Defendant"), for theft of goods over one thousand five hundred dollars, a violation of La. R.S. 14:67(B)(1). For the following reasons, we reverse and remand to the trial court for further proceedings.

Procedural Background

On April 20, 2016, the State of Louisiana filed a bill of information charging Defendant with theft of goods totaling an amount less than fifteen hundred dollars but over five hundred dollars, a violation of La. R.S. 14:67.10(B)(2). Defendant appeared for arraignment on May 20, 2016 and entered a plea of not guilty. On June 23, 2016, the State amended the charge in the bill of information to a violation of La. R.S. 14:67(B)(1), theft of goods over one thousand five hundred dollars. On July 12, 2016, Defendant filed a motion to quash the bill of information on the grounds that prosecution was untimely instituted, which the trial court denied on February 23, 2017. Defendant sought review of the trial court's denial of the motion to quash via an application for a supervisory writ, which this Court denied on April 10, 2017. State v. Cinquemano , 2017-0261 (La. App. 4 Cir. 4/10/17)(unpub.).

On May 5, 2017, Defendant waived his right to a jury trial and the court held a preliminary hearing, found probable cause, and set a bench trial for June 23, 2017. The trial was continued on the State's motion until August 17, 2017, then continued again on Defendant's motion until September 15, 2017. On that date, the State moved for another continuance due to the victim's failure to appear at trial to testify and Defendant objected. After a brief oral argument, the trial court dismissed the case. The State appeals, raising the following assignments of error: 1) the trial court abused its discretion in denying the State's motion to continue trial; and, 2) the trial court abused its discretion in dismissing the prosecution's case. For the following reasons, we reverse the trial court's Judgment and remand for further proceedings.

Continuance

The State argues that the trial court abused its discretion when it denied the State's request for a thirty-day continuance of trial based on the unavailability of the State's primary witness, the victim in this case.

"[T]he decision to grant or deny a motion for continuance rests with the sound discretion of the trial judge, and a reviewing court will not disturb such a determination absent a clear abuse of discretion." State v. Vanburen , 2008-0824, pp. 4-5 (La. App. 4 Cir. 12/30/08), 3 So.3d 552, 555 (citing State v. Johnson , 96-0950 (La. App. 4 Cir. 8/20/97), 706 So.2d 468, 478-79 (on reh'g ) ). "Whether a refusal to grant a continuance was justified depends on the circumstances of the particular case presented." State ex rel. B.M. , 2000-2562, p. 4 (La. App. 4 Cir. 11/29/00), 774 So.2d 1042, 1045. Louisiana jurisprudence has specifically held that the unavailability of a state witness is a legitimate reason for delaying trial and/or entering a nolle prosequi and thus does not violate an accused's right to a speedy trial. State v. Sanders , 2012-0409, p. 9 (La. App. 4 Cir. 11/14/12), 104 So.3d 619, 626-27 (citing State v. Love , 2000-3347, p. 6 (La. 5/23/03), 847 So.2d 1198 ; State v. Batiste , 2005-1571, p. 8 (La. 10/17/06), 939 So.2d 1245, 1249 ; State v. Scott , 2006-1610, p. 6 (La. App. 4 Cir. 4/25/07), 958 So.2d 725, 729 ; and State v. Shannon , 2009-0305, p. 8 (La. App. 4 Cir. 9/9/09), 17 So.3d 1061, 1067 ). See also La. C.Cr. P. art. 713 ("A motion for continuance, based on peremptory grounds as provided by law shall be granted.")

Review of the transcript of the September 15, 2017 hearing reveals the following colloquy:

STATE: Judge, at this time the state moves for a continuance due to the fact that I don't have a necessary witness needed to proceed and the state would ask to continue this matter out for thirty days.
THE COURT: Response?
DEFENSE: Judge ... [t]his has been set numerous times in the past; the victim hasn't showed up. Mr. Cinquemano has appeared-every time he was told to appear, he's appeared. We've appeared on his behalf and we object to this being continued.
THE COURT: How many times has he come, do you know-
DEFENSE: I want to say close to a dozen, Your Honor.
THE COURT: Is this a situation where the victim cannot be served, cannot be found, or just won't appear?
DEFENSE: No, Your Honor. She lives in Orleans Parish. This is a contract dispute that should be-it should've been a simple matter. I don't know why it is she doesn't appear, but she has never appeared in these proceedings.
STATE: Judge, I've spoken with the victim a few times. She just went ghost on me two weeks ago, so that's why I'm asking for this to be continued.
THE COURT: What did she tell you?
STATE: I said she-she disappeared on me, Judge. She's willing to proceed with these charges-
THE COURT: Well it's time for her to start acting like it. Your motion to dismiss is granted.

The prosecutor attempted to correct the statements made by defense counsel, noting that the last continuance was requested by the defense, but the judge ruled that he had already dismissed the case, adding, "His [Defendant's] motion had a sound basis in law for dismissal." The trial judge then advised the State that it could file a new bill of information. The hearing transcript does not contain a specific ruling by the trial court on the State's motion to continue; rather, by ruling to dismiss the prosecution, it appears that the trial court implicitly denied the continuance. Both the docket master and the court minutes, however, indicate that the court denied the state's motion to continue.

Defendant contends that the district court's ruling was proper because the State did not comply with La. C.Cr.P. art. 707, which requires a written motion for continuance to be filed at least seven days prior to the commencement of trial. Defendant also argues that the State "failed to provide any facts and circumstances showing a probability that the purported victim would be available" at the later-requested trial date, and failed to show due diligence in its effort to procure the victim's attendance. However, the fact that the state's motion was not made in writing and filed at least seven days prior to trial, as provided in La. C.Cr.P. art. 707, does not appear to have formed the basis for the court's ruling, nor would it likely have been fatal, as "[a]n oral motion for a continuance is permitted when the grounds that allegedly made the continuance necessary arose unexpectedly." State v. German , 2012-1293, p. 24 (La. App. 4 Cir. 1/22/14), 133 So.3d 179, 196. At the hearing, the prosecutor explained to the court that he had lost contact with the victim just within the two weeks before trial but had spoken to the victim on several prior occasions and she had indicated that she wanted to proceed with the charges. Thus, it would be reasonable for the prosecutor to believe that the victim would appear and a written motion would not be necessary.

Similarly, Defendant argues that the State failed to present facts to establish its diligence in procuring the victim's presence or that she would be available in the future. However, the prosecutor did inform the trial court that the State had remained in contact with the victim up until two weeks prior to the trial date, and that she had always intended to testify at trial. When asked about the prosecutor's last conversation with the victim, the prosecutor attempted to provide the information but was interrupted by the court when the court instead announced its ruling. In any event, neither the lack of a written motion nor the State's failure to comply with the requirements of Art. 709 appear to have influenced the court's ruling.

Instead, the trial court seemingly was persuaded by defense counsel's assertions that the trial had been delayed "close to a dozen" times previously due to the victim's failure to appear. The court made as much clear when it granted Defendant's motion to dismiss, informing the State, "Well, it's time for her [the victim] to start acting like" she was willing to proceed. However, the Defendant's allegations of delay due to the victim's non-appearance are belied by the record. Notably, the trial judge was sitting ad hoc at the September 15, 2017 proceedings and may have been unfamiliar with the procedural history of the case. The record shows that, although Defendant appeared in court twelve times prior to the date of dismissal, only one previous setting was for trial, which was continued on the State's oral motion on the day of trial, and no reasons for that continuance are evident in the record. The court reset the trial date for August 17, 2017; however, on July 21, 2017, the court granted a second continuance, this time on Defendant's written motion as defense counsel planned to be out of town on the day of trial. The trial was then reset for September 15, 2017, on which date the court ultimately dismissed the prosecution's case.

Moreover, there is no evidence that Defendant would have been prejudiced by the granting of a thirty-day continuance to the State. In State ex rel. B.M. , this Court found no evidence in the record that the defendant would have been prejudiced by a continuance, as he was not being detained at the time and the State still had time to bring the matter to trial without violating Defendant's right to a speedy trial. State ex rel. B.M. , 2000-2562, p. 4, 774 So.2d at 1045. Similarly, in the instant case, Defendant was free on bond during the pendency of the proceedings. Additionally, the State still had time to commence trial under La. C.Cr.P. art. 578 A(2), which allows two years from the institution of prosecution to bring an accused to trial. Considering the State filed the bill of information on April 20, 2016, and La. C.Cr.P. art. 580 suspends the running of the limitation period "[w]hen a defendant files a motion to quash or other preliminary plea until the court rules thereon," as Defendant did in this case, Defendant's statutory right to a speedy trial was not violated. We therefore find that the trial court abused its discretion in denying the State's motion for continuance.

Dismissal of the Prosecution

The State next asserts that the trial court usurped the authority of the district attorney to control the prosecution under La. C.Cr.P. art. 61. The State concedes that the trial court has authority to grant a motion to quash filed pursuant to La. C.Cr.P. art. 532, et. seq. , but argues that Defendant did not file a motion to quash nor allege proper grounds for which a motion to quash may be granted. Defendant counters that the trial court informed the State during a bench conference that it would not grant its motion to continue; thus, if the State could not proceed to trial, the court would dismiss the case.

Under Louisiana law, "[a]ll pleas or defenses raised before trial, other than mental incapacity to proceed, or pleas of 'not guilty' and of 'not guilty and not guilty by reason of insanity,' shall be urged by a motion to quash." La. C.Cr.P. art. 531. "A motion to quash shall be in writing, signed by the defendant or his attorney, and filed in open court or in the office of the clerk of court. It shall specify distinctly the grounds on which it is based. The court shall hear no objection based on grounds not stated in the motion." La. C.Cr.P. art. 536. "The grounds for a motion to quash are waived unless a motion to quash is filed in conformity with these provisions." State v. Fortenberry , 2016-0379, pp. 5-6 (La. App. 4 Cir. 7/20/16), 197 So.3d 786, 789 (citing La. C.Cr.P. art. 535(D) ).

This court has generally held that the trial court is not authorized to quash a bill of information where defendant has not filed a written motion to quash. State v. Lodge , 2012-0733, 2012-0734, p. 10 (La. App. 4 Cir. 5/8/13), 116 So.3d 851, 858 ; State v. Dixon , 2010-1279, p. 3 (La. App. 4 Cir. 5/2/11), 64 So.3d 852, 854. An "oral motion [to quash] is equivalent to no motion at all and is treated as if never made." State v. Major , 2013-1139, p. 5 (La. App. 4 Cir. 4/9/14), 140 So.3d 174, 177 (citing State v. Carter , 2011-0859, p. 2 (La. App. 4 Cir. 3/21/12), 88 So.3d 1181, 1182 ). There is no record evidence to show that Defendant orally or in writing filed a motion to quash in this case. Moreover, Defendant's claim that the trial court advised the State that he intended to deny the continuance, and if the State was not prepared to go to trial, the court would dismiss the case, is not corroborated by the record. We note that the docket master reflects that a bench conference did take place during which the trial court may have discussed dismissing the case, but any events that transpired during the bench conference were not recorded and are therefore not available for this Court to review. Additionally, although the trial court indicated that Defendant's motion to dismiss had "a sound basis in law for dismissal," this Court is limited in its ability to review the basis of that ruling without the benefit of a written motion to quash and because the trial court made its ruling without an adequate contradictory hearing, as required by La. C.Cr. P. art. 537.

Furthermore, a trial court is authorized to quash an indictment based on the grounds provided by law under La. C. Cr. P. arts. 532, 533 and 534. However, the court has no authority to dismiss a criminal prosecution. The authority to dismiss or nolle prosequi a criminal prosecution is controlled by the district attorney, whose discretionary prosecutorial authority is vast. State v. Hayes , 2010-1538, p. 5 (La. App. 4 Cir. 9/1/11), 75 So.3d 8, 13 ; La. C. Cr. P. arts. 576, 691 and 693. "Subject to the supervision of the attorney general, as provided in Article 62, the district attorney has entire charge and control of every criminal prosecution instituted or pending in his district, and determines whom, when, and how he shall prosecute." La. C.Cr.P. Art. 61 ;

Hayes , 2010-1538, p. 6, 75 So.3d at 13. Generally, a timely instituted prosecution which is subsequently dismissed by the district attorney may be reinstituted by him at his discretion. See La. C.Cr. P. art. 576 ; State v. Polk , 2005-1118, p. 5 (La. App. 4 Cir. 5/31/06), 933 So.2d 838, 841 (holding that the State has plenary authority pursuant to La. C.Cr.P. art. 576 to dismiss a charge and then reinstitute prosecution in a case where doing so will not circumvent the statutory time limits for commencing trial). In the case sub judice , the trial court's abrupt dismissal of the case denied the State the opportunity to enter a nolle prosequi under the authority of La. C.Cr.P. art. 691, which would have allowed the State to reinstitute the charges subject to the time period set forth in La. C.Cr.P. art. 572, or within six months of the nolle prosequi as provided in La. C.Cr.P. art. 576. We therefore find, in the absence of a motion to quash with adequate grounds set forth therein, that the trial court was without authority to dismiss the prosecution's case.

For the aforementioned reasons, the judgment of the trial court denying the State's motion for continuance and dismissing the prosecution's case is reversed. The case is remanded to the trial court for further proceedings in accordance with this opinion.

REVERSED AND REMANDED

MCKAY, C. J., DISSENTS IN PART

JENKINS, J., CONCURS IN THE RESULT

MCKAY, C.J., DISSENTS IN PART

I respectfully dissent in part from the majority's opinion in this matter. I would affirm the district court's judgments denying the State's continuance. The district court based its decision on the State's failure secure its witness for trial. Based on the record before this Court the State failed to provide sufficient proof to satisfy the requirements for a continuance based on absence of a witness pursuant to La. C.Cr. P. art. 709.

      La. R.S. 14:67(B) was subsequently amended by Acts 2017, No. 281, § 1. At the time of Defendant's alleged crime, however, La. R.S. 14:67(B)(1) provided, in pertinent part, that whoever commits the crime of theft valued at one thousand five hundred dollars or more shall be imprisoned for not more than ten years, with or without hard labor.

      Although the underlying facts supporting the bill of information are not relevant to this Court's determination, the charge of theft arises from Defendant's alleged failure to install a generator at the victim's residence after receiving payment therefor.

      La. C.Cr.P. art. 709 provides:
      A motion for a continuance based upon the absence of a witness shall state all of the following:
      (1) Facts to which the absent witness is expected to testify, showing the materiality of the testimony and the necessity for the presence of the witness at the trial.
      (2) Facts and circumstances showing a probability that the witness will be available at the time to which the trial is deferred.
      (3) Facts showing due diligence used in an effort to procure attendance of the witness.

      Review of the record reveals that Defendant's other court appearances consisted of the following: Defendant appeared for arraignment and to post bond; he appeared three times on his own motions for discovery and for a bill of particulars; he appeared three times on his motion to quash, and then again for his probable cause hearing; and on two occasions, Defendant appeared for proceedings which were continued on Defendant's own motion, one of which was due to defense counsel's failure to appear. Consequently, defense counsel's statement to the trial court that he "[didn't] know why it is [the victim] doesn't appear, but she has never appeared in these proceedings," appears disingenuous, as the victim's appearance was neither required nor expected at any of the pre-trial proceedings.