author: JOY COSSICH LOBRANO, Judge. TOBIAS, J.,

text:
    STATE of Louisiana v. Maurice Q. DILLON.
    No. 2013-KA-0234.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 18, 2013.
    Leon A. Cannizzaro, Jr., District Attorney, J. Bryant Clark, Jr., Assistant District Attorney, Parish of Orleans, New Orleans, LA, for Appellant/State of Louisiana.
    David Belfield, III, New Orleans, LA, for Defendant/Appellee.
    Court composed of Judge MAX N. TOBIAS, Jr., Judge MADELEINE M. LANDRIEU, Judge JOY COSSICH LOBRANO.
   JOY COSSICH LOBRANO, Judge.

|, On October 13, 2009, the defendant, Maurice Q. Dillon, was charged by bill of information with one count of aggravated incest, a violation of La. R.S. 14:78.1. On November 5, 2012, the defendant filed a motion to quash, contending that the two-year time limitation pursuant to La. C.Cr.P. art. 578(A)(2) had expired and that the defendant had remained in custody during this entire time period. On November 8, 2012, the State filed an opposition to the defendant’s motion to quash. After a hearing on November 8, 2012, the trial court granted the defendant’s motion to quash. The State now appeals.'

In its sole assignment of error, the State contends that the trial court abused its discretion in granting the defendant’s motion to quash. The underlying facts in this case are not relevant to this appeal.

“As noted by this court in State v. Bell, 02-2849, p. 9 (La.App. 4 Cir. 8/6/03), 854 So.2d 429, 434: “When a defendant brings an apparently meritorious motion to quash based on prescription, the State bears a heavy burden of demonstrating either an interruption or a suspension of the time limitation such that prescription will not have tolled.’ ” State v. Jones, 12-0653, pp. 6-7 (La.App. 4 Cir. 2/6/13), 107 So.3d 1285, 1289 (citing State v. Rome, 93-1221, p. 3 (La.1/14/94), 630 So.2d 1284, 1286; State v. Brent, 00-0072, p. 6 (La.App. 4 Cir. 11/29/00), 775 So.2d 565, 569).

Pursuant to La.C.Cr.P. art. 578(A)(2), the State has two years from the date of the institution of the prosecution to commence trial for a non-capital felony charge. However, according to La. C.Cr.P. art. 580, if a defendant files a motion to quash or any other preliminary plea, the running of time limits pursuant to La. C.Cr.P. art. 578 is suspended until a ruling from the trial court is made, and the State has no less than one year after the date of the ruling to commence trial. La. C.Cr.P. art. 580 states as follows:

A. When a defendant files a motion to quash or other preliminary plea, the running of the periods of limitation established by Article 578 shall be suspended until the ruling of the court thereon; but in no case shall the state have less than one year after the ruling to commence the trial.
B. The periods of limitation established by Article 578 shall also be suspended if the court- grants a continuance in accordance with the provisions of Paragraph B of Article 709.

| %See also State v. Brazile, 06-1611, p. 3 (La.App. 4 Cir. 5/30/07), 960 So.2d 333, 335 (“Preliminary pleas that suspend the running of the prescriptive period under article 580 include motions to suppress evidence, motions for preliminary hearing, motions for continuance filed by defendant, and joint motions for continuance.”).

The Brazile Court also recognized that a continuance by the trial court due to a trial in progress will suspend the matter for the State until the matter is reset on the trial court’s docket:

As the trial court pointed out at the hearing on the motion to quash, those time delays are often misconstrued given the fact that it is the State who has control of the rescheduling of the matter. As such, a continuance by the court due to a trial in progress will give the State a suspension until it resets the matter on the court’s docket. Under those circumstances, the State has the ability to manipulate the prescriptive period in which to bring the case to trial. Although the trial court discussed this in his reasons for granting the motion to quash, the issue is not an issue for this court but one that should be addressed by the Legislature. This court is bound by the statutes as presently written and thus must determine what, if any, suspension and/or prescription occurred, whether through continuances, motions or the effects of Hurricane Katrina.

Brazile, 06-1611, pp. 3-4, 960 So.2d at 335; see also State v. Thomas, 10-0528, p. 36 (La.App. 4 Cir. 7/15/10), 54 So.3d 1, 21.

In this case, a review of the minute entries evidences that the defendant was charged by bill of information on October 13, 2009. On November 13, 2009, |4counsel for the defendant appeared and waived the defendant’s presence. Probable cause was found and trial was set for March 8, 2010. On January 29, 2010, a discovery hearing was continued until February 23, 2010, and trial remained set for March 8, 2010. From February 23, 2010 through October 25, 2010, both the discovery hearing and the trial date were continued on numerous occasions pursuant to a request by the State or the defendant, or pursuant to the State’s assertion that another trial was in progress.

On October 25, 2010, the defendant appeared without counsel for trial. After an oral motion was made by the defense, the trial court granted a continuance, and a pre-trial conference was set for October 26, 2010. On October 26, 2010, the defendant did not appear, and the pre-trial conference was reset for November 3, 2010. On November 3, 2010, the defendant and his counsel appeared, and the trial date was set for February 7, 2011. On February 7, 2011, counsel for the defendant appeared, but the defendant was not brought to court by the sheriff, and a continuance was sought by the State because of a trial in progress in case 491-197. The trial court noted the defense’s objection and continued the trial to April 5, 2011.

On February 17, 2011, the defendant did not appear, and the trial date was reset for April 4, 2011, with a notation to disregard the April 5, 2011 trial date. On March 21, 2011, counsel for the defendant appeared on behalf of the defendant, and a notation was made to disregard all previously set trial dates and to reset the trial for April 11, 2011.

|aOn April 11, 2011, the defendant and his counsel appeared for trial. The minute entry indicates that “the State elected to try case 490-046 first,” and trial was again continued until April 12, 2011. On April 12, 2011, the defendant and his counsel appeared for trial. Although the trial was continued until April 13, 2011, no reason is stated on the minute entry, and the minute entry does not indicate which party moved for the continuance. On April 13, 2011, the defendant and his counsel appeared for trial, but trial was continued to April 14, 2011, again with no explanation for the continuance or any indication as to which party moved for a continuance. On April 14, 2011, the defendant and his counsel appeared for trial, at which time counsel for the defendant orally moved for bond reduction. The motion was denied, and the trial was continued to June 20, 2011 without an indication of which party requested the continuance.

On June 20, 2011, counsel for the defendant appeared, but the defendant was not brought to court by the sheriff. Pursuant to an oral motion by the State, the trial was again continued to August 28, 2011 due to a trial in progress in case 505-025. The trial court noted the defense’s objection. A pre-trial conference was scheduled for June 24, 2011, but on that date, the defendant was not brought to court by the sheriff, and trial was reset for September 19, 2011.

On September 19, 2011, the defendant was not brought to court by the sheriff. After an oral motion by the State, trial was continued to November 7, 2011, over the defense’s objection, due to a trial in progress in case 506-481. On November 7, 2011, the defendant was not brought to court by the sheriff. After an oral motion by the State, trial was continued to December 5, 2011, over the 1 ^defense’s objection, due to a trial in progress in case 500-013. On December 5, 2011, counsel for the defendant appeared and waived the defendant’s presence, and the trial was again continued after an oral motion by the State to March 7, 2012 due to a trial in progress in case 509-527. The trial court noted the defense’s objection.

On March 7, 2012, the defendant was not brought to court by the sheriff, and over the defense’s objection, the trial court granted the State’s oral motion for a continuance due to a trial in progress in case 502-360. Trial in the matter was reset for June 4, 2012. On June 4, 2012, the defendant was not brought to court by the sheriff, and over the defense’s objection, the trial court granted the State’s oral motion for a continuance and reset the trial for August 14, 2012. The June 4, 2012 minute entry does not indicate that the motion for continuance was due to a trial in progress on this date. On August 14, 2012, the defendant was not brought to court by the sheriff, and over the defense’s objection, the trial was again continued to November 5, 2012 due to a trial in progress in case 508-998.

On November 5, 2012, the defendant and his counsel appeared for trial. The State orally moved for a continuance, which the trial court granted over the defense’s objection. No reason is stated in the minute entry for the continuance. At that time, the defendant filed a motion to quash, which the trial court subsequently granted after a hearing on November 8, 2012.

The State contends that at the time the motion to quash was filed, the State had until November 5, 2013 to commence trial, because each of the continuances of the trial date due to trials in progress suspended prescription. Additionally, the 17State notes that any continuances by the defense suspended prescription. On August 14, 2012, the trial court continued the defendant’s trial date to November 5, 2012 due to a trial in progress, and accordingly, the State submits that it had one year from that date, or until November 5, 2013, to commence trial. Therefore, the State contends that the defendant’s motion to quash was premature at the time it was filed and was improperly granted by the trial court. Furthermore, the State argues that the defendant failed to demonstrate that his Sixth Amendment right to a speedy trial had been violated.

The defendant in this case did not allege that his constitutional speedy trial right had been violated. The defendant’s motion to quash was based solely on the contention that the two-year time limitation of La.C.Cr.P. art. 578(A)(2) had expired. Thus, the constitutional speedy trial issue was not properly before the trial court, and is therefore not properly before this Court.

This Court has recognized that “[t]he governing standard of review of a district court’s ruling on a motion to quash is the abuse of discretion standard.” State v. Brown, 11-0947, p. 4 (La.App. 4 Cir. 3/7/12), 88 So.3d 662, 665 (citing State v. Love, 00-3347, pp. 9-10 (La.5/23/03), 847 So.2d 1198, 1206-07). In this case, at the time the motion to quash was filed, approximately three years had elapsed from the date of the filing of the bill of information without the defendant being brought to trial. The trial court reviewed the minute entries on the record at |sthe hearing on the motion to quash and noted that eight continuances were granted due to a trial in progress by the State, and one continuance was granted to the State without a specified reason. After reviewing the relevant minute entries, the trial court granted the motion to quash.

Considering this Court’s decisions in Brazile, 06-1611, p. 3, 960 So.2d at 335 (“a continuance by the court due to a trial in progress will give the State a suspension until it resets the matter on the court’s docket”) and Thomas, 10-0528, p. 36, 54 So.3d at 21 (same), we conclude that each of the State’s continuances due to a trial in progress operated to suspend the time limitations in which to bring the defendant to trial. Because the trial court granted the State a continuance on August 14, 2012 due to a trial in progress, and scheduled the trial to commence on November 5, 2012, the trial court’s ruling that granted the defendant’s motion to quash on November 8, 2012 was an abuse of discretion.

For the reasons stated above, we reverse the trial court’s judgment granting the motion to quash and remand this matter for further proceedings.

REVERSED AND REMANDED.

TOBIAS, J.,

Concurs.

IT respectfully concur. I write to assign further reasons in support of the majority’s conclusion.

The defendant in this case did not allege either in his motion to quash or orally at the hearing that his constitutional speedy trial right had been violated, and the issue was therefore arguably not properly considered by the trial court as a basis for its ruling in granting the motion to quash. Likewise, the speedy trial issue is arguably not properly before this court.

La.C.Cr.P. art. 536 provides:

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.

Accordingly, even if the defendant had orally asserted his speedy trial right at the hearing on the motion to quash, the issue would nevertheless have not been properly before the trial court, because the assertion of his speedy trial right would not have been made in writing as required by La.C.Cr.P. art. 536.

However, this court determined in State v. Mathews, 12-0182, p. 9 (La.App. 4 Cir. 2/6/13), 109 So.3d 984, that the trial court properly found that defendants’ ^constitutional speedy trial right had been violated in granting a defendant’s motion to quash even though the defendants failed to raise the right to a speedy trial in a written motion to quash. In Mathews, we recognized that the speedy trial claim was not raised in writing, but was orally asserted at the hearing on the motion to quash. The Mathews court acknowledged the La. C.Cr.P. art. 536 requirements, but concluded that because the state failed to object to the trial court’s consideration of a speedy trial claim and even addressed the merits of defendants’ speedy trial claim in its responses to the motion to quash and in its appellate brief, the state thereby waived its argument that the trial court improperly considered the speedy trial claim:

Thus, [pursuant to La.C.Cr.P. art. 536] technically the trial court could not consider a constitutional speedy trial claim because it was not raised in writing by any of the defendants. Nonetheless, the state did not object to the court’s consideration of this claim and in fact addressed it in its responses and in its appellate brief. We find that this failure waived any claim it may have that the trial court could not consider this issue.

Mathews, 12-0182, pp. 9-10, 109 So.3d at 991.

Pursuant to this court’s reasoning in Mathews, the trial court in this case properly considered whether the defendant’s constitutional speedy trial right had been violated even though the defendant did not raise the issue in the motion to quash. Although the defendants in Mathews raised the speedy trial claim orally at the hearing on the motion to quash and the defendant herein did not, it is worth noting that neither the defendants in Mathews nor the defendant in this case raised the speedy trial claim in writing as required by La.C.Cr.P. art. 536. Furthermore, although the state in this case “noted [its] objection and its intent to seek an appeal” from the trial court’s ruling, the state did not specifically indicate that the objection was to the trial court’s consideration of a speedy trial issue. Additionally, |sthe state addressed the merits of a speedy trial claim in its appellate brief. See Mathews, 12-0182, pp. 9-10, 109 So.3d at 991. Therefore, as in Mathews, we find that the state “waived any claim it may have that the trial court could not consider [the speedy trial] issue.” Id.

In this case, at the time the motion to quash was filed, approximately three years had elapsed from the date of the filing of the bill of information without the defendant being brought to trial. This court has recognized that the length of the delay is a triggering factor:

The initial factor, the length of the delay, is often referred to as the “triggering mechanism” because absent a “presumptively prejudicial” delay, further inquiry into the Barker [v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) ] factors is unnecessary. See State v. Santiago, 2003-0693, p. 3, (La.App. 4 Cir. 7/23/03), 853 So.2d 671, 673, citing State v. De Rouen, 96-0725, p. 3 (La.App. 4 Cir. 6/26/96), 678 So.2d 39, 40. Under Barker, the peculiar circumstances of the case determine the weight to be ascribed to the length of the delay and the reason for the delay.

State v. McQuirter, 12-0486, p. 8 (La.App. 4 Cir. 1/23/13), 108 So.3d 370, 374-75.

The state concedes that a delay of approximately three years is considered to be presumptively prejudicial. See State v. Ervin, 08-1078, p. 4 (La.App. 4 Cir. 4/1/09), 9 So.3d 303, 307 (recognizing that “[i]n Doggett v. U.S., 505 U.S. 647, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992), the Court noted that ‘depending on the nature of the charges, the lower courts have generally found post-accusation delay “presumptively prejudicial” at least as it approaches one year.’ ”)(citing Doggett v. U.S., 505 U.S. at 652, 112 S.Ct. at 2691, n. 1). However, the state argues that delays of longer than three years have been held not to violate a defendant’s right to a speedy trial, citing State v. Shannon, 09-0305, p. 7 (La.App. 4 Cir. 9/9/09), 17 So.3d 1061, 1066 (acknowledging that the delay between the filing of the bill of information and the filing of the motion to quash “spanned three years and four months and may be deemed ‘presumptively prejudicial’ ” but concluding that the defendant’s right to speedy trial had not been violated); State v. Thomas, 10-0528, pp. 72-73 (La.App. 4 Cir. 7/15/10), 54 So.3d 1, 41-42 (delay of eight years held not to violate a defendant’s right to a speedy trial); State v. Van Dyke, 03-0437 (La.App. 3 Cir. 10/1/03), 856 So.2d 187 (trial court’s grant of motion to quash after delay of six years reversed and no speedy trial violation found).

Additionally, the state argues that the reason for the delay is not wholly attributable to it, as the defendant was not transported to court while in custody on seven occasions. The state contends that the failure to transport the defendant to court is a delay that is weighed more lightly against the state pursuant to Doggett. Likewise, the state argues that the continuances were necessary due to other trials in progress and that the record does not evidence that the state delayed bringing the defendant to trial to hamper the defense. The state also notes that the defense requested a continuance on the date of trial on 25 October 2010.

As previously noted herein, a review of the record indicates that the defendant did not file a speedy trial motion prior to filing the motion to quash. Accordingly, the state argues that the defendant has failed to show that he has been prejudiced by the delay. Additionally, the state submits that the defendant’s contention at the hearing on the motion to quash that the defense was prepared for trial at each continuance attributable to the state further supports the lack of prejudice to the defendant by the delay.

Applying the Barker v. Wingo factors to this case, the first factor, the length of the delay, is three years and is therefore presumptively prejudicial. See Ervin, 08-1078, p. 4, 9 So.3d at 307. With respect to the third factor, the defendant did not assert his right to a speedy trial either orally or in writing and therefore could not demonstrate the fourth factor, prejudice to the defense, other than solely by the length of the delay. The second factor, the reason for the delay, appears to weigh neither in favor of the state nor the defendant pursuant to State v. Brazile, 06-1611, pp. 3-4 (La.App. 4 Cir. 5/30/07), 960 So.2d 333, 335. Although, as the trial court recognized, the state requested a-continuance due to a trial in progress on eight occasions, the record also evidences that the defendant was not brought to court by the sheriff on seven occasions, and the defense also requested two continuances, one of which was on 25 October 2010, when trial for the defendant was scheduled. Accordingly, an application of the Barker factors does not evidence that the state failed to exercise reasonable diligence in bringing the defendant to trial or that the delay was wholly attributable to the state.

This court has recognized that “[t]he governing standard of review of a district court’s ruling on a motion to quash is the abuse of discretion standard.” State v. Brown, 11-0947, p. 4 (La.App. 4 Cir. 3/7/12), 88 So.3d 662, 665 (citing State v. Love, 00-3347, pp. 9-10 (La.5/23/03), 847 So.2d 1198, 1206-07). In this case, the trial court reviewed the minute entries on ' the record at the hearing on the |r,motion to quash and noted that eight continuances were granted due to a trial in progress by the state, and one continuance was granted to the state without a specified reason. After reviewing the relevant minute entries, the trial court stated: .

Well, I realize that the Defense could have filed a motion for speedy trial but it assumed that a trial was set each time. The Defense apparently was ready each time it objected to the continuance on each and every one of those eight times that it was set for trial. The ninth, which I can’t account for without going back and seeing the actual transcript, I can’t say why it was continued. But I think there is some limit and I think that the State has reached it. I’m aware of those cases [State v. Thomas, 2010-0528 (La.App. 4 Cir. 7/15/10), 54 So.3d 1, and State v. Brazile, 2006-1611 (La.App. 4 Cir. 5/30/07), 960 So.2d 333], but by the same token what more can the Defense do but show up ready for trial, which they did in each and every instance. I realize what the code says. However, I think that this is a constitutional denial by the State of the defendant’s right to a speedy trial and a trial by jury, and the Motion to Quash is granted.

Considering this Court’s decisions in Brazile, 06-1611, p. 3, 960 So.2d at 335 (“a continuance by the court due to a trial in progress will give the State a suspension until it resets the matter on the court’s docket”) and Thomas, 10-0528, p. 36, 54 So.3d at 21 (same), I conclude that each of the state’s continuances due to a trial in progress operated to suspend the time limitations in which to bring the defendant to trial. Because the trial court granted the state a continuance of trial until 5 November 2012 due to a trial in progress on 14 August 2012, the state had one year from 5 November 2012 to commence trial. Therefore, had the trial court granted the motion to quash pursuant to La.C.Cr.P. art. 578, it would have erred in doing so.

However, the trial court in this case granted the defendant’s motion to quash based upon the defendant’s constitutional right to a speedy trial. This was in error because the defendant in this case has not demonstrated specific prejudice or the possibility that his defense will be impaired. As previously noted herein, the 17defendant failed to file a speedy trial motion. The defendant did not even raise a speedy trial claim at the hearing on the motion to quash. Accordingly, the defendant has not demonstrated specific prejudice to his defense pursuant to Ervin, 08-1078, p. 8, 9 So.3d at 309.

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

      . La.C.Cr.P. art. 709 provides:
      A. 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.
      B. In addition to the requirements set forth in Paragraph A of this Article, when the motion for continuance is based upon the absence of a witness who is in the armed forces, the moving party, either the district attorney or the defense counsel, shall attest to facts showing that the absent witness is on active military duty in the United States Armed Forces.

      . The minute entry does not indicate whether counsel for the defendant appeared.

      . The minute entry indicates that although counsel for the defendant appeared on August 23, 2011, the matter was set in error, and the trial date remained September 19,2011.

      . Counsel for the defendant also moved for a bond reduction at that time, which was denied.

      . On this date, the trial court also reduced the defendant's bond and signed a bail order.

      . We note that in the recent case of State v. Mathews, 12-0182 (La.App. 4 Cir. 2/6/13), 109 So.3d 984, this Court held that a trial court properly found that defendants' constitutional speedy trial right had been violated in granting a motion to quash even though the defendants failed to raise the right to a speedy trial in a written motion to quash. In Mathews, although the speedy trial claim was not presented in writing, it was orally asserted by defendants at the hearing on the motion to quash. In this case, the record is void of a showing that the defendant asserted a constitutional speedy trial claim either in a written document or orally before the court. For that reason, the Mathews case is distinguishable and has no application to the instant case.

      . There was more than one defendant.

      . Although the state emphasizes in its appellate brief that the defendant failed to file a speedy trial motion, the state does not argue that the trial court improperly considered the speedy trial issue.

      . The defense also requested a continuance on one other occasion, 23 August 2010, on the date of a scheduled discovery hearing.

      . 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

      . This court has recognized that if the state has demonstrated "reasonable diligence” in bringing a defendant to trial, a defendant must show specific prejudice to his defense to establish that a speedy trial right has been violated:
      In Doggett, 505 U.S. 647, 112 S.Ct. 2686, 120 L.Ed.2d 520 [1992], the Court modified its analysis of the prejudice factor. Although "affirmative proof of particularized prejudice is not essential to every speedy trial claim,” an "excessive delay [can] presumptively compromise[ ] the reliability of a trial in ways that neither party can prove, or for that matter, identify.” Id., 505 U.S. at 654-655, 112 S.Ct. at 2692-2693. The Court recognized, however, that the defendant’s degree of proof in each situation varies inversely with the government's degree of culpability for the delay. Id. Accordingly, where the State demonstrates reasonable diligence in its efforts to bring the defendant to trial, the defendant must establish “specific prejudice to his defense," no matter how great the delay. Id. Conversely, the longer the delay, the greater the presumption of prejudice. Id. at 656, 112 S.Ct. 2686.

        Ervin, 08-1078, p. 8, 9 So.3d at 309.


source: Caselaw Access Project

author: TERRI F. LOVE, Judge.

license: Public Domain

text:
    Michael MARZIALE v. NEW ORLEANS POLICE DEPARTMENT C.C.M.S.I.
    No. 2012-CA-1713.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 18, 2013.

      Alan Bruce Tusa, Carol T. Richards, M. Damian Marinello, Tusa & Richards, L.L.C., Covington, LA, for Plaintiff/Appellant, Michael Marziale.
    Michael S. Rodriguez, Craig B. Mitchell, Mitchell & Associates, APLC, New Orleans, LA, for Defendant/Appellee, City of New Orleans/New Orleans Police Department.
    (Court composed of Chief Judge JAMES F. McKAY III, Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE).
   TERRI F. LOVE, Judge.

I iThe plaintiff suffered a stroke while working with the underage drinking task-force and made a claim for workers’ compensation, which was disputed. The City of New Orleans filed a Motion for Summary Judgment, which was granted and the plaintiffs claims were dismissed with prejudice. We find that' the workers’ compensation court weighed the credibility of the plaintiffs evidence and erroneously granted the Motion for Summary Judgment because genuine issues of material fact exist. Therefore, we reverse and remand for proceedings.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Michael Marziale, a sergeant with the New Orleans Police Department (“NOPD”), was working as a supervisor with the Underage Drinking Taskforce (“Taskforce”) when the Taskforce conducted an investigation at The Boot, a bar in New Orleans. After approaching a suspected underage drinker, the female suspect ran away from Sergeant Marziale whereupon he gave chase for approximately fifteen to twenty feet. The female suspect then attempted to strike Sergeant Marziale, but he avoided contact. After arresting the female suspect, Sergeant Marziale allegedly began to “experience pains on the left side of his body.” However, Sergeant Marziale continued to participate in similar investigations on Bourbon Street until his condition required transportation to an emergency room. | ¡¿Thereafter, Sergeant Marziale was diagnosed as having suffered a stroke, which resulted in partial paralysis of the left side of his body. Sergeant Marziale’s injuries were preliminarily classified compensable as workers’ compensation.

However, the City of New Orleans’ (“City”) third-party administrator for workers’ compensation claims, Cannon Cochran Management Services, Inc. (“CCMSI”) determined that Sergeant Marziale’s injuries were not covered by workers’ compensation. Sergeant Marz-iale then filed a Disputed Claim for Compensation. Approximately seven months after Sergeant Marziale filed his claim, the City filed a Motion for Summary Judgment, which the workers’ compensation judge granted. Sergeant Marziale then filed a Motion for a New Trial, which was denied. His timely appeal follows.

STANDARD OF REVIEW

“Ordinarily, in workers’ compensation cases, the appropriate standard of review to be applied by the appellate court to the OWC’s findings of fact is the ‘manifest error-clearly wrong’ standard.” Steinfelds v. Villarubia, 10-0975, p. 3 (La.App. 4 Cir. 12/15/10), 53 So.3d 1275, 1278, quoting Dean v. Southmark Constr., 03-1051, p. 7 (La.7/6/04), 879 So.2d 112, 117. However, when the issues raised on appeal are from a summary judgment proceeding, appellate courts examine the granting of a motion for summary judgment using the same criteria as the trial court with a de novo review. Weintraub v. State Farm Fire & Cas. Co., 08-0351, p. 2 (La.App. 4 Cir. 10/29/08), 996 So.2d 1195, 1196. Summary judgment “shall be rendered ... if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for Lpurposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B)(2). The mover bears the burden of proof. La. C.C.P. art. 966(C)(2). “However, if the movant will not bear the burden of proof at trial on the matter,” then the mover does not have “negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense.” La. C.C.P. art. 966(C)(2). “Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.” La. C.C.P. art. 966(C)(2).

“Summary judgments are favored.” Kimpton Hotel & Rest. Grp., Inc. v. Liberty Mut. Fire Ins. Co., 07-1118; 07-1209; 07-1310, p. 3 (La.App. 4 Cir. 12/19/07), 974 So.2d 72, 75. However, “[i]n determining whether an issue is genuine, a court should not consider the merits, make credibility determinations, evaluate testimony or weigh evidence.” Suire v. Lafayette City-Parish Consol. Gov’t, 04-1459; 04-1460; 04-1466; p. 11 (La.4/12/05), 907 So.2d 37, 48. A fact is genuine and material if it “would matter at a trial on the merits.” Id. “Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of trial on the merits.” Id.

SUMMARY JUDGMENT

Sergeant Marziale contends that the workers’ compensation judge erroneously granted the City’s Motion for Summary Judgment because he was | .¡entitled to workers’ compensation benefits based on his stroke.

“In reviewing workers’ compensation cases a court should construe the Louisiana Workers’ Compensation Act with an end to including a worker within its ambit of protection.” Steinfelds, 10-0975, p. 4, 53 So.3d at 1279. “[I]t is well settled that worker’s compensation laws must be given a liberal interpretation.” Harold v. La Belle Maison Apartments, 94-0889, p. 10 (La.10/17/94), 643 So.2d 752, 757. La. R.S. 23:1021(e) provides that “[h]eart-related or perivascular injuries:”

shall not be considered a personal injury by accident arising out of and in the course of employment and is not com-pensable pursuant to this Chapter unless it is demonstrated by clear and convincing evidence that:
(i) The physical work stress was extraordinary and unusual in comparison to the stress or exertion experienced by the average employee in that occupation, and
(ii) The physical work stress or exertion, and not some other source of stress or preexisting condition, was the predominant and major cause of the heart-related or perivascular injury, illness, or death.

“The first prong ... requires plaintiff to prove by clear and convincing evidence that the physical work stress she experienced was extraordinary and unusual in comparison to the stress or exertion experienced by the average employee in that occupation.” Harold, 94-0889, p. 5, 643 So.2d at 755. “ ‘Extraordinary’ is defined as ‘going beyond what is usual, regular, or customary.’ ” Id., quoting Webster’s New Collegiate Dictionary (1977). “ ‘Unusual’ is defined as ‘not usual’ and ‘uncommon;’ that is, not in accordance with usage, custom, or habit.” Id. “This is a question of fact that is determined by whether a reasonable person of usual sensibilities would find the stress ‘extraordinary.’ ” Lloyd v. Shady Lake Nursing Home, Inc., 47,025, p. 12 (La.App. 2 Cir. 5/9/12), 92 So.3d 560, 568, quoting Gooden v. B E & K Const., 33,457, pp. 4-5 (La.App. 2 Cir. 6/23/00), 764 So.2d 1206, 1209. “The second prong ... requires” the plaintiff “to prove by clear and convincing evidence that her physical work stress or exertion, and not some other source of stress or preexisting condition, was the predominant and major cause of her” heart-related or perivascular injury. Harold, 94-0889, p. 7, 643 So.2d at 756.

Sergeant Marziale testified in his deposition that he served as the “supervisor and as a [sic] officer conducting an investigation” during the investigation at The Boot. He participated in the Task-force for “several months” and questioned “hundreds” of people prior to his stroke. Sergeant Marziale stated that his responsibilities on the scene of Taskforce investigations was to “[s]upervise” his “people.” During the Taskforce investigations, Sergeant Marziale testified that he and other NOPD officers would identify themselves and ask to view a suspect’s identification. During his time as a Supervisor of the Taskforce, Sergeant Marziale did not “personally” encounter an armed suspect.

The night Sergeant Marziale suffered a stroke, two female suspects attempted to run away from him. Sergeant Marziale stated that people “often” start running when he attempts to question them. One female suspect ran fifteen to twenty feet before Sergeant Marziale stopped her. The second female suspect “walked very hurriedly” for “[l]ess than 10 feet.” One of the female suspects “took a swing” at Sergeant Marziale, but she did not strike him. She struggled with Sergeant Marziale and he “had a hold of her.” Sergeant Marziale testified that “[h]er resisting caused my injury, caused the stroke.” He further stated that no one ever informed him that he had hypertension or high blood pressure. Sergeant Marziale responded affirmatively when asked if it was a “usual” occurrence to have to try and stop someone from fleeing.

| r,Sergeant Marziale’s affidavit submitted in opposition to the City’s Motion for Summary Judgment provides the following sworn statement: “I have handled a number of underage drinking investigations but the large majority of my duties as an officer in the NOPD, approximately 97% to 98%, are sedentary.” Sergeant Marziale also swore that the female suspect “tried to evade” him “and ran from” him “for 15-20 feet, wrestled with” him, “and attempted to strike” him. Further, he alleges that “[a]s a result of that accident at ‘The Boot,’ I suffered a stroke.” Lastly, Sergeant Marziale stated that “[t]he deposition of Dr. Donald Adams who relates my stroke to the incident at ‘The Boot’ has been continued on a number of occasions by the City of New Orleans.”

We find that the workers’ compensation judge made a credibility determination of Sergeant Marziale’s testimony by granting the City’s Motion for Summary Judgment. Sergeant Marziale testified that it was “usual” for suspects to attempt and flee, but he did not testify that chasing the female suspect and engaging in a struggle with the suspect was “usual.” Whether Sergeant Marziale’s work the night he suffered the stroke was extraordinary, unusual, or beyond what was customary is a question of fact. See Lloyd, 47,025, p. 12, 92 So.3d at 568. Also, Sergeant Marziale testified that he never suffered from high blood pressure.

The City contends that Rucker v. Temps Today, Inc., 09-1257, pp. 4-5 (La.App. 4 Cir. 5/5/10), 38 So.3d 1018, 1020 and Howard v. Callahan, 396 So.2d 607, 608 (La.App. 1st Cir.1981) support their assertion that Dr. Adams’ deposition, allegedly delayed by the City, is irrelevant because Sergeant Marziale had sufficient time to conduct discovery. However, Sergeant Marziale’s case was pending for approximately eight months; whereas, in Rucker and Howard, approximately two years elapsed between the filing of the original suit and the shearing on the motion for summary judgment. Id. Additionally, most workers’ compensation cases cited by the City are procedurally distinguishable in that the matters were addressed after a full hearing on the merits.

Accordingly, under the facts and circumstances of the case sub judice, resolving any doubt in favor of Sergeant Marziale, and resolving doubt in favor of the coverage of workers’ compensation, we find that the workers’ compensation judge erroneously granted the City’s Motion for Summary Judgment because genuine issues of material fact exist as to whether Sergeant Marziale’s actions were “usual” and whether the stroke was caused by those actions. Therefore, we reverse and remand for further proceedings.

DECREE

For the above-mentioned reasons, we find that the workers’ compensation court erroneously weighed the credibility of Sergeant Marziale’s deposition and that genuine issues of material fact exist. Therefore, we reverse and remand for further proceedings.

REVERSED AND REMANDED

      . Sergeant Marziale returned to work for the NOPD on desk duty approximately one year after suffering his stroke.

      . La. C.C.P. art. 966(B)(2) was recently amended by the Louisiana Legislature to include the words "admitted for purposes of the motion for summary judgment.”


author: ROSEMARY LEDET, Judge. TOBIAS, J.,

text:
    DMK ACQUISITIONS & PROPERTIES, L.L.C. v. CITY OF NEW ORLEANS, et al.
    No. 2013-CA-0405.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 18, 2013.

      Eric Oliver Person, Attorney at Law, New Orleans, LA, for Plaintiff/Appellant.
    Christy C. Harowski, Deputy City Attorney, Sharonda R. Williams, City Attorney, New Orleans, LA, for Defendant/Ap-pellee.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge ROLAND L. BELSOME, Judge ROSEMARY LEDET).
   ROSEMARY LEDET, Judge.

11 This is a City of New Orleans code enforcement proceeding. The City commenced this proceeding against DMK Acquisitions & Properties, L.L.C. (“DMK”) as the owner of commercial property located at 1532 Robert E. Lee Boulevard in New Orleans (the “Property”). The City alleged that DMK was in violation of its municipal ordinances prohibiting public nuisance and blighted property. The City’s administrative hearing officer (“HO”) found DMK guilty of the charged violations and imposed various fines. The Civil - District Court ( CDC ), functioning as an appellate court, affirmed the HO’s judgment. For the reasons that follow, we likewise affirm the HO’s judgment.

FACTUAL AND LEGAL BACKGROUND

As a result of Hurricane Katrina, which made landfall in the New Orleans area on August 29, 2005, the Property, which was the former location of the Lake Terrace Shopping Center (a strip mall), sustained extensive damage. On April 24, 2007, DMK purchased the Property for $1.85 million. At the time of the purchase, the hurricane damage to the Property had not been repaired. In January 2009, the 12City awarded DMK an Economic Development Fund grant totaling $250,000, which was intended to help bring the Property back into commerce. As of the date of the administrative hearing (June 7, 2012), the City had paid DMK $225,000 of the grant money; nonetheless, the Property remained unoccupied and in a state of disrepair.

On October 13, 2011, the City’s inspector conducted an initial inspection of the Property. According to the inspector’s initial report, the alleged violation was that the Property was unoccupied. The scheduling comments and complaint description read: “vacant lot, high grass and weeds covering the sidewalk, rodents.” The report indicated that the Property failed the inspection because the siding was missing and the structure was deteriorated. The Property additionally was cited for no work in progress.

On May 3, 2012, a notice of hearing was issued to DMK as owner of the Property. The notice informed DMK of the alleged violations of the municipal code ordinances prohibiting public nuisance and blighted property — Section 28-37 public nuisance and Section 28-38 blighted property — and of the hearing scheduled for June 7, 2012, to determine whether it was guilty of violating the cited ordinances.

On the day of the hearing, the City inspector returned to the Property and conducted a re-inspection before the hearing commenced. In the re-inspection report, the inspector indicated that the Property failed the re-inspection for multiple treasons, which were listed as follows: (i) fascia boards and soffit were deteriorated, loose, and missing; (ii) the roof and the structure itself were deteriorated; and (iii) the studs were, deteriorated and exposed. The report also indicated that since the initial inspection the building on the Property had been fenced off. The Property again was cited for having no work in progress.

At the June 7, 2012 administrative hearing, DMK was represented by two attorneys and its director, Kenneth Charity. The City was represented at the hearing by Jeremy Stevens, a non-attorney, who introduced himself at the hearing as a representative of the City’s Code Enforcement Department. Mr. Stevens requested to introduce into the record the City’s entire file on this matter, including the photographs attached to each of the inspector’s reports. DMK’s sole objection to the introduction of the file was that one of the photographs should be excluded because it showed debris outside the fence that surrounded the Property. With the exception of that photograph, the HO allowed the City’s entire file to be introduced.

Several members of the community appeared at the hearing to voice their concerns regarding the condition of the Property. Six individuals, who each were required by the HO to identify themselves by name and position, spoke in opposition to DMK at the hearing. Briefly, the testimony of those six individuals is summarized below:

1. Jamie White — Vice-President of Lake Terrace Gardens, L.L.C., and on-site property manager. Ms. White stated that she has over three hundred presidents who have voiced their concerns regarding the Property to her. She noted the Property has been vacant and that she has seen people going in and out the Property even though it has been fenced off. She introduced photographs she took the day before the hearing when DMK was trying to clean up the Property. She further noted that there are doors missing from the back of the structure and that the no trespassing signs on the Property are not clearly marked. She still further noted that current residents are worried about the Property and that prospective tenants come in on a daily basis and express concerns about living next to the Property because it is not maintained.
2. Karen Parsons — President of Oak Park Civic Association, a large neighborhood association. Ms. Parsons stated that she lived within five blocks of the Property. She introduced photographs reflecting tall grass on the Property and a telephone pole leaning over the sidewalk in front of the Property. The HO noted that these photographs showed the Property in a “less appropriate condition.” She noted that in 2008 there was a theft of copper from the Property that resulted in water running out of the structure on the Property. Although she immediately reported this to Mr. Charity, it took six to eight months before he had it repaired. She further noted that there were piles of leaves on the Property and that graffiti repeatedly appeared on the structure. She additionally noted that Mr. Charity received economic development funds from the City, yet he failed to maintain the Property.
3. Barbara Lacen Keller — Councilwoman-at-large Stacy Head’s representative. Ms. Keller stated that she visited the Property with Ms. Head. She further stated that Ms. Head’s opinion regarding the Property was that it “is extremely blighted” and “reducing the quality of life in the area and violates the law.” She also stated that Ms. Head wanted the administration to “do the right thing and issue judgment” finding the Property blighted.
4. Dalton Savwoir, Jr. — President of Gentilly Civic Improvement Association (“GO”), a coalition of twenty-one different neighborhood associations in the Gentilly area. He stated that the GCI wanted a “guilty judgment” against DMK. He further stated that DMK has owned the Property since 2007, which was more than enough time to show positive movement. He expressed disagreement with granting DMK’s request for an additional three months and stated that this would not benefit the community.
5. Scott Roger Wheaton, Jr. — appeared on behalf of the Lake Terrace Neighborhood Association. He stated that the distressing fact about this Property was that when DMK acquired it in April 2007 it was in better condition than it was in June 2012 at the time of the hearing. He explained that in June 2007, Mr. Charity tore all the bricks off the building, but nothing has been done since that time. He further explained that “[i]t’s not a question of bad siding,” but rather of “[n]o siding.” He pointed out that it was error to state that the blight hearings regarding the |5Propert,y started in 2011; rather, he stated that the blight hearings regarding the Property started in 2010. He indicated that the community was “fed up.”
6. Timothy Branaman — a community member who represented that he had over ten years of construction work experience. He questioned the credentials of DMK’s engineer. He opined that the structure on the Property lacked any diagonal support. He explained that three of the sides of the structure were open and that there was only one brick wall. He further stated that the track record of DMK has been to request that the community continue to wait a few, more months until it gets more money.

The HO also allowed the members of the community to introduce two written statements into the record at the hearing. First, the HO allowed Ms. Parsons to read into the record a written statement by GiGi Burk, the chair of the Lake Area Realtors United, which stated:

[T]his offensive site is a toxic concern for the realtors in the area. I recently ran the comparable sales for the Oak Park and Vista Park neighborhoods. And while surrounding areas continue to flourish, our area just cannot seem to get redevelopment momentum. Many of the builders that have bought lots are waiting for the area to improve. Since the Lake Area Terrace Shopping Center services many ■ surrounding neighborhoods and is the main town center for Oak Park, Vista Park, and Lake Terrace, it is painfully evident that this developer’s detachment from' any semblance of responsibility to our community is adversely affecting our neighborhood and our current promising quality of life. Please help us by doing whatever is in your power to spur removing, developing of this unsightly building, which will in turn bring back homeowners to our once and soon-to-be vibrant neighborhood.

Second, the HO read a written statement into the record signed by approximately twenty-two people of the lake area and the Gentilly neighborhood surrounding the Property, which stated:

[We] all agree that the site represents long-term blight, ongoing mismanagement, and lack of maintenance. [The] Property is visibly deteriorating and is a hazard to the community.
lfiThe property owner and bank have not done due diligence to make repairs, although taxpayer dollars have been invested. We wish the maximum penalty and demolition.

The HO asked whether there was any objection by the defense; DMK’s counsel replied: “Not as to form.”

In support of its position that the Property was neither blighted nor a public nuisance, DMK was allowed to introduce photographs taken a few days before the hearing. DMK represented that its photographs reflected that the grass had been cut and that the Property had been maintained. DMK was also allowed to introduce a letter from Walter Zehner, a consulting engineer, dated the day before the hearing, June 6, 2012, which stated:

I personally visited the referenced property this day and conducted a structural evaluation of the existing structure. It is my opinion that at this time the building is structurally sound and is in no danger whatsoever of collapse and can safely resist a wind load of 180 m.p.h.... The property is also secured from public access with fencing around the entire site.

Finally, DMK presented the testimony of its representative, Mr. Charity. Mr. Charity testified that the structure on the Property was structurally sound, as established by DMK’s expert’s report. He further testified that he planned to get the project done; he blamed bureaucratic red tape for the delay in completing the project. As to upkeep, he testified that DMK had contracted two companies that were doing a rotation on the property to maintain it.

Before rendering a judgment, the HO made the following comment:

[T]he major concern of the hearing officer is that the current owner has owned this property for the amount of time he has, where I’ve seen changes occur to the property, in what |7we noted as removing the wall or the brick walls or some type of structural portion of the property. But I can also note that I have not seen anything to replace that structure that was removed—

Ultimately, the HO concluded that the Property was blighted and a public nuisance. In so doing, the HO took judicial notice of the state of the Property, stating:

[I]n the condition the property is in, I mean, even though it may have been repaired as of today even, it was cited back in 2011. I’m personally familiar with the neighborhood. I don’t live that far away.
I have to find that the property has been just sitting there in a condition of ambiguity for the last five years. The property is blighted. It is allowing a public nuisance.

On June 20, 2012, the HO rendered judgment against DMK finding it in violation of the municipal ordinances prohibiting public nuisance and blighted property. The HO imposed on DMK a fine of $575; recordation fees of $30; notarial fees of $20; and a daily fine of $500 for thirty days or until the violations are corrected, whichever occurs first.

On December 11, 2012, the CDC held a hearing on DMK’s petition to appeal the HO’s judgment and took the matter under advisement. On December 18, 2012, the CDC rendered judgment finding that the HO “acted reasonably and within the authority lawfully granted to him; and his decision was not arbitrary or capricious.” The CDC thus affirmed the HO’s judgment. This appeal followed.

DISCUSSION

The enabling statute for the City’s Code Enforcement Bureau is La. R.S. 13:2575, which provides a right of appeal to any person found in violation of the ^pertinent code provisions. La. R.S. 13:2575(H). The enabling statute, however, is silent on the applicable standard of review. The general provisions of the Administrative Procedure Act (“APA”) thus apply. This court recently summarized the standard of review under the APA in Clark v. Louisiana State Racing Comm’n, 12-1049, pp. 9-11 (La.App. 4 Cir. 12/12/12), 104 So.3d 820, 826-27, writ denied, 13-0386 (La.4/1/13), 110 So.3d 589, as follows:

A party aggrieved by a final agency decision in an adjudication proceeding is entitled to have that decision reviewed initially by the district court of the parish in which the agency is located. La. R.S. 49:964(A)(1) and (B). The district court acts in the capacity of an intermediate appellate court. A party aggrieved by the district court’s decision is entitled to appeal to the appropriate appellate court as in other civil cases. La. R.S. 49:965. When an appellate court reviews the district court’s judgment, no deference is owed by the appellate court to the district court’s fact findings or legal conclusions, “ ‘just as no deference is owed by the Louisiana Supreme Court to factual findings or legal conclusions of the court of appeal. Thus, an appellate court sitting in review of an administrative agency reviews the findings and decision of the administrative agency and not the decision of the district court.’ ” Bourgeois v. Louisiana State Racing Comm’n, 10-0573, p. 7 (La.App. 4 Cir. 11/12/10), 51 So.3d 851, 856 (quoting Smith v. State, Dep’t of Health and Hospitals, 39,368, pp. 4-5 (La.App. 2d Cir. 03/02/05), 895 So.2d 735, 739).
The standard of appellate review of an administrative agency’s decision is distinct from and narrower than that which applies to ordinary civil and criminal appeals. Reaux v. Louisiana Bd. of Med. Examiners, 02-0906, p. 3 (La.App. 4 Cir. 5/21/03), 850 So.2d 723, 726. The exclusive grounds upon which an administrative agency’s decision may be reversed or modified on appeal are enumerated in La. R.S. 49:964(G) of the Administrative Procedure Act (“APA”). Armstrong v. Louisiana State Bd. of Medical Examiners, 03-1241, pp. 9-11 (La.App. 4 Cir. 2/18/04), 868 So.2d 830, 837-38.

Id.

Defining the scope and standards for judicial review of agency decisions, La. RS. 49:964(G) provides:

The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced |;,because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or
(6) Not supported and sustainable by a preponderance of evidence as determined by the reviewing court. In the application of this rule, the court shall make its own evaluation of the record reviewed in its entirety upon judicial review. In the application of the rule, where the agency has the opportunity to judge the credibility of witnesses by first-hand observation of demeanor on the witness stand and the reviewing court does not, due regard shall be given to the agency’s determination of credibility issues.

La. R.S. 49:964(G).

“Judicial review of an agency’s decision is a multifaceted function involving several categories [including] procedural review, statutory or constitutional review, and substantive review.” Administrators of the Tulane Educational Fund v. Johnson, 00-0297, pp. 2-3 (La.App. 4 Cir. 4/4/01), 784 So.2d 769, 771 (citing Matter of Insulation Technologies, Inc., 95-1184 (La.App. 1 Cir. 2/23/96), 669 So.2d 1343). In this case, we divide our review into two parts: (1) procedural, statutory, and constitutional review, and (2) substantive review.

(1) Procedural, Statutory, and Constitutional Review

DMK’s arguments on appeal, as the City points out, are directed primarily to procedural, statutory, and constitutional issues. Particularly, DMK argues that while administrative hearings lack some of the formalities of judicial proceedings, due process and the APA require that such hearings provide basic protections, discontinuing, DMK argues, as it did in the CDC, that it was not afforded these basic protections at the administrative hearing. DMK contends that judicial review under the APA is limited to the record and that a review of the transcript of the administrative hearing reveals that the hearing was deficient in the following respects:

• Jeremy Stevens is listed as attorney for the City of New Orleans Code Enforcement, although he is not an attorney in fact. The transcript reveals that he was not sworn in, even though he personally testified as to the merits of the ease and acted as an officer of the Court.
• Mr. Stevens ... presents the findings of an unidentified inspector, who in October of 2011, inspected the property. A re-inspection of the property was supposedly conducted on June 7, 2012, by “an inspector,” who also is unidentified. [Mr. Stevens also] introduced into the record pictures [the City] claims were taken by an inspector and the supposed findings of said inspector.
• [U]nidentified person[s] appeared and testified in the case.... [N]one of the witnesses who “testified” against [DMK] appear to have ever been sworn in. None of the “testimony” is verified.
• Ms. Barbara Lacen Kelly testified, without being sworn, as to what Coun-cilmember at Large Stacey [sic] Head wants the Hearing Officer to decide in this case.
• [Mr.] Stevens regales the Hearing Officer with testimony by himself, a non-witness and non-attorney who was not sworn in, that the property was previously found blighted at another hearing. When pressed, Mr. Stevens admitted he could produce no evidence of this claim.

For purposes of analyzing DMK’s procedural, statutory, and constitutional contentions, we group these alleged deficiencies into two categories: (i) witnesses not being required to testify under oath at the administrative hearing, and (ii) hearsay evidence being accepted and the inability to cross-examine witnesses. We separately address each category.

(i) Failure to require witnesses to testify under oath

InThree of DMK’s arguments fall under this category: (1) that none of the witnesses who testified against it were sworn and that their testimony therefore should not have been considered; (2) that numerous unidentified persons were allowed to speak and to present evidence; and (3) that Mr. Stevens, who was neither an attorney nor a sworn witness, was allowed to represent the City as prosecutor and to give testimony at the hearing.

The City counters that DMK cites no authority for its contention that witnesses were required to be sworn. Citing Chaisson v. Cajun Bag & Supply Co., 97-1225 (La.3/4/98), 708 So.2d 375, the City emphasizes that this is an area in which the “more relaxed” evidentiary rules of administrative proceedings apply. The City points out that the APA does not require that live witnesses present sworn testimony at an administrative hearing. La. R.S. 49:956. The City further points out that the APA grants a hearing officer the power to conduct depositions and administer oaths and affirmations; however, it does not state that sworn testimony is the only type of verbal evidence that may be presented at an administrative hearing. The City further counters that, contrary to DMK’s contention, the HO required the witnesses who spoke to state their names and positions for the record so that they were properly identified. Finally, the City emphasizes the failure of either Mr. Charity or DMK’s two attorneys to object to any of the witnesses’ statements at the time of the hearing, which the City contends resulted in a waiver of any objections.

| 12Our research reveals that the enabling statute, La. R.S. 13:2575, requires that “[tjestimony by any person [at any administrative adjudication hearing under this Chapter] shall be taken under oath.” La. R.S. 13:2475(E). Our research, however, further reveals that the requirement that an administrative agency take testimony under oath is “waivable error.” 2 Am.Jur.2d ADMINISTRATIVE LAW § 343 (citing Stores Realty Co. v. City of Cleveland, Bd. of Bldg. Standards and Bldg. Appeals, 41 Ohio St.2d 41, 70 Ohio Op.2d 123, 322 N.E.2d 629 (1975), and noting that “[u]nder the 1981 Model State Administrative Procedure Act, all testimony of parties and witnesses must be made under oath or affirmation.... However, the failure of an agency to administer an oath or affirmation to a witness is waivable error”); see also Mohilef v. Janovici, 51 Cal.App.4th 267, 58 Cal.Rptr.2d 721 (1996) (rejecting the argument that taking testimony under oath is a constitutional requirement of an administrative public nuisance hearing). Indeed, the APA provides that “[o]bjections to evidentiary offers may be made and shall be noted in the record.” La. R.S. 49:956(1).

In this case, the record reflects that the only witness the HO required to testify under oath was DMK’s representative, Mr. Charity. Although the HO did not require the six community witnesses who testified to testify under oath, the HO required each of those witnesses to state their names and positions for the record. DMK failed to object to these witnesses testifying without being sworn in at the | ^administrative hearing. Given DMK’s failure to object at the hearing, we find, as the City contends, DMK waived its objection to this error.

DMK’s next argument under this category is that several unidentified persons made statements on the record. The record reflects that these unidentified persons were allowed only to interject brief remarks — generally less than a sentence. These brief interjections by unknown persons were not prejudicial to DMK’s right to a fair hearing.

DMK’s final argument under this category is that the City’s prosecutor, Mr. Stevens, who was neither an attorney nor a sworn witness, was allowed to represent the City as prosecutor and to give testimony as a witness at the hearing. According to DMK, the non-attorney prosecutor held himself out to be an attorney and thus was never sworn in as a witness. This argument lacks support, factually and legally. Legally, as. discussed above, any error in failing to swear in Mr. Stevens as a witness was waived. Factually, the sole reference to Mr. Stevens as an attorney was on the cover page of the transcript of the administrative hearing. On the cover page of the transcript, Mr. Stevens is identified as “Attorney for the City of New Orleans Code Enforcement.” In contrast, at the beginning of the hearing, Mr. Stevens introduced himself as a representative of Code Enforcement. Nowhere in the transcript of the administrative hearing does Mr. Stevens hold himself out to be an attorney. As the City points out, the transcript was not prepared until months after the hearing. DMK’s argument thus is based solely on the after-the-fact clerical error of the court reporter. This argument is unpersuasive.

DMK also contends that Mr. Stevens was improperly allowed to testify that the Property was previously found blighted in another proceeding, a fact which he 114was unable to produce any evidence at the hearing to support. The record reflects that one of the community witnesses, Mr. Wheaton, testified that the blight proceeding regarding the Property dated back to 2010, the year of the prior violation proceeding mentioned by Mr. Stevens. Likewise, DMK’s own attorney acknowledged that the blight proceeding may have dated back to 2010. This argument is thus unpersuasive.

(ii) Hearsay evidence and lack of ability to cross-examine witnesses

The enabling act expressly provides that “[a]ny administrative adjudication hearing held under the provisions of this Chapter shall be conducted in accordance with the rules of evidence of the Administrative Procedure Act.” La. R.S. 13:2575(E). The APA provides that “[ajgencies may admit and give probative effect to evidence which possesses probative value commonly accepted by reasonably prudent men in the conduct of their affairs.” La. R.S. 49:956.

Acknowledging that under the APA hearsay evidence is admissible in administrative proceedings, DMK nonetheless contends the hearsay evidence relied upon in this case — primarily the City’s inspector’s reports — should not have been considered competent evidence by the trial court in sustaining the HO’s judgment. DMK further contends that the inspector’s reports are not only hearsay, but also that the introduction of the reports precluded it from cross-examining the inspector at the hearing. In rejecting this argument, the CDC found that the inspector’s reports were admissible and “would be good and credible evidence.” In so finding, the CDC relied on the statement cited by the City in Wilzcewski v. Brookshire Grocery Co., 10-1148, pp. 12-13 (La.App. 3 Cir. 3/16/11), 59 So.3d 530, 539, that “‘the hearing officer has the discretion to admit evidence that would otherwise be inadmissible under the Louisiana Code of Evidence.’ ” Id. (quoting 11SChaisson, 97-1225 at pp. 9-10, 708 So.2d at 381). The CDC also reasoned that even without the inspector’s report there appeared to be sufficient evidence for the City to prevail.

On appeal, DMK raises the same arguments regarding the inspector’s reports. In support, it cites Williams v. Louisiana Tax Comm’n, 611 So.2d 724 (La.App. 4th Cir.1992), for the proposition that such hearsay evidence although admissible is not competent evidence and thus cannot be used to determine whether the administrative body’s factual findings are valid. In further support, it also cites Bourque v. Louisiana State Racing Comm’n, 611 So.2d 742, 743-44 (La.App. 4th Cir.1992), for the proposition that the right to cross-examine witnesses is a due process requirement that it was not afforded.

The City counters that the CDC correctly found that the inspector’s reports were admissible and competent evidence. The City further counters that DMK’s reliance on Williams, supra, is misplaced because that case is no longer good law given the Louisiana Supreme Court’s more recent holding in Chaisson, supra. The City points out that under Chaisson, supra, hearsay evidence can be competent evidence provided it has some degree of reliability and trustworthiness. The City contends that the inspection reports, which were prepared on the standard “Housing Code Enforcement Uninhabitable/Public Nuisance Violation List” form, satisfy that criteria. The City still further counters that DMK was not entitled to cross-examine the preparer of the inspection reports. As to cross-examination of the other witnesses, the City contends that the record reflects DMK was not | ^prevented from questioning other witnesses, presenting evidence, or objecting to the submission of evidence.

As to cross-examination in general, we note, as the City contends, that the record reflects DMK was not denied the right to cross-examine the witnesses who testified against it. Nor does DMK contend that it was denied that right as to the witnesses who testified at the hearing. Rather, DMK’s argument pertains to the deprival of its right to cross examination inherent in the admission at the hearing of documentary hearsay evidence — primarily the inspector’s reports. As explained below, the basis of DMK’s argument — albeit not identified by name — is the residuum rule.

The residuum rule provides that “ ‘hearsay evidence, at least when not objected to, may be used in administrative proceedings for limited purposes such as corroboration, but that such evidence cannot form the sole basis of the decision.’ ” Clark, 12-1049 at p. 17, 104 So.3d at 831 (quoting Rothbard v. Gerace, 354 So.2d 225, 226 (La.App. 4th Cir.1978)). Under the residuum rule, “‘a court determining sufficiency of evidence (which is a question of law) must find some competent evidence to support an administrative decision and cannot affirm the decision solely on hearsay evidence.’ ” Id.; Bernard Schwartz, A Decade of Administrative Law: 1987-1996, 32 Tulsa L.J. 493, 536 (1997) (distinguishing between admitting incompetent evidence and relying on such evidence in reaching a decision and noting that this is the basis for the residuum rule.) Because we find — as the CDC suggests — that this is not a case in which the sole evidence relied upon by the HO was documentary hearsay, we find it unnecessary to address | T7the issue of the continued applicability of the residuum rule in administrative proceedings.

We also find—agreeing with the CDC—that the inspector’s reports qualify as competent evidence under the standard adopted in Chaisson, supra. In the Chais-son case, the Louisiana Supreme Court construed the term “competent evidence” in the administrative hearing context as evidence having “some degree of reliability and trustworthiness” and “of the type that reasonable persons would rely upon.” Chaisson, 97-1225 at pp. 12-13, 708 So.2d at 382. The Supreme Court instructed that the determination of whether evidence is “competent” is one that “must be made on a case-by-case basis under the particular facts and circumstances.” Chaisson, 97-1225 at p. 13, 708 So.2d at 382. The Supreme Court explained that “most hearsay evidence in administrative hearings is generally reliable documentary evidence, such as correspondence, physician’s reports, and the like.” Chaisson, 97-1225 at p. 11, 708 So.2d at 382.

Applying these principles, we find that the City’s inspector’s reports fall within that category. As the City points out, the inspection reports were prepared on the standard “Housing Code Enforcement Uninhabitable/Public Nuisance Violation List” form. We thus find the inspector’s reports were competent evidence. See LaFrance v. Weiser Security Service, Inc., 01-1578, pp. 13-14 (La.App. 4 Cir. 3/27/02), 815 So.2d 339, 348-49 (finding elevator repair records fell within this category). As we noted in LaFrance, supra, these reports are “the exact type of documentary evidence for which the pragmatic rule allowing relaxation of technical evidentiary rules in administrative hearings ... was adopted.” Id.

In sum, we find, for the reasons outlined above, that DMK’s procedural, statutory, and constitutional contentions are unpersuasive. We now turn to the substantive review of the record.

(2) Substantive Review

The definitions of blight and public nuisance are set forth in the governing municipal ordinances, which provide as follows:

Sec. 28-37. Public nuisance defined.
Any unoccupied property shall be deemed a public nuisance if:
(c) The unoccupied property and its surrounding grounds are not adequately maintained thereby causing an adverse affect on nearby properties by depreciating the value, use, and enjoyment that is harmful to the public health, welfare, morals, safety and the economic stability of the area, community, or neighborhood in which the public nuisance is located. (M.C.S., Ord. No. 23046, § 5, 3-20-08) Sec. 28-38. Blighted property.
(a) In determining whether an unoccupied property is blighted, pursuant to section 8 of Act No. 170 of the 1968 Regular Session of the Louisiana [Legislature], as amended by Act No. 135 of the 1994 Third Extraordinary Session, Act No. 375 of the 1995 Regular Session, and Act No. 101 of the 1997 Regular Session, the following factors establish a rebuttable presumption:
(1) Any dwelling, structure or premise that is declared a public nuisance as defined in the Code of Ordinances for the City of New Orleans or any dwelling, structure, or premise that demonstrates chronic vacancy or unresolved code violations for unsafe, unsanitary, or unhealthy conditions; (M.C.S., Ord. No. 23046, § 5, 3-20-08; M.C.S., Ord. No. 24560, § 1, 8-18-11)

| iflThe record reflects, as the City contends, that the City as well as members of the community presented substantial evidence at the administrative hearing establishing the Property was chronically vacant, not adequately maintained, and causing an adverse effect on nearby properties. In addition, the HO, who lived nearby the Property, took judicial notice of the condition of the Property.

“Chronic vacancy,” within the meaning of the municipal ordinance, was established by the undisputed fact that the Property has been vacant and unoccupied for almost five years — from the date DMK purchased it (April 2007) through the date of the administrative hearing (June 2012). Moreover, DMK has not begun work to repair the structure on the Property so that a tenant can inhabit it.

Lack of adequate maintenance was established by the inspection reports and photographs the City and members of the community introduced and by the testimony of members of the community. DMK’s defense at the hearing was that it had cut the grass inside the boundaries of the Property. DMK’s only other response was to seek to reconvene the hearing in three months to give it additional time to take action. Noting the community’s opposition to this request, the HO denied this request.

The adverse effect on the neighboring properties was established by the testimony of the members of the community and by the letter from the Lake Area Realtors United characterizing the Property as a “toxic concern for realtors in the area.”

Finally, the HO — noting that he lived in the neighborhood and that he was personally familiar with the status of the Property — took judicial notice of the blighted state of the Property. As the City points out, La. R.S. 49:956(3) Unauthorized the HO to do so; it provides “[n]otice may be taken of judicially cognizable facts.” Id,

DMK also suggests that the HO erred in finding the Property blighted given it established, through the report of its expert engineer, that the Property is structurally sound. We disagree. As the City points out, “a building does not have to be in imminent danger of collapse to be deemed a public nuisance.” DMK’s engineer’s report does not address whether the Property was maintained.

To conclude, the HO made factual findings based on the record and took judicial notice of the blighted state of the Property. Based on our review of the record, we find, as did the CDC, that the HO’s findings were not arbitrary or capricious.

DECREE

For the forgoing reasons, the judgment of the Hearing Officer is affirmed.

AFFIRMED.

TOBIAS, J.,

CONCURS.

U write separately to address with particularity two points.

First, Jeremy Stevens, the individual who represented the City of New Orleans’s Code Enforcement and Hearings Bureau before the administrative hearing officer, never identified himself as a lawyer. He merely stated: “My name is Jeremy Stevens. I represent Code Enforcement.” Neither La. R.S. 49:964 nor La. R.S. 13:2575 requires that the complaining public body be represented by a lawyer at an administrative hearing. Moreover and technically, La. R.S. 37:212 does not clearly define that which Mr. Stevens did as the practice of law. That the 12court reporter who prepared the transcript of the 7 June 2012 hearing wrote on the eoversheet of the transcript that Mr. Stevens was an “Attorney for the City of New Orleans Code Enforcement” does not prove that he was holding himself out to be a lawyer.

Second, La. R.S. 13:2575 E states:

Any administrative adjudication hearing held under the provisions of this Chapter shall be conducted in accordance with the rules of evidence of the Administrative Procedure Act. Testimony by any person shall be taken under oath. The person charged with the ordinance violation may present any relevant evidence and testimony at such hearing and may be represented by an attorney at law. However, his physical presence shall not be required at the hearing if documentary evidence, duly verified by such person, is submitted to the hearing officer prior to the date of the hearing. [Emphasis supplied.]

I find it was legal error for the hearing officer to receive any testimony from any unsworn witness. But from my review of the transcript and the exhibits offered at the administrative hearing (without objection from DMK) combined with the actual sworn testimony, the evidence was sufficient to support the hearing officer’s conclusions. The trial court did not err in affirming the hearing officer’s decision.

Accordingly, I respectfully concur.

      . Attached to the inspection report in the record are copies of four pictures of the Property dated the same date as the initial inspection.

      . Attached to the re-inspection report in the record are copies of fourteen pictures of the Property dated the same date as the re-inspection.

      . As discussed elsewhere in this opinion, DMK introduced at the hearing a letter from Walter Zehner, a consulting engineer.

      . DMK's representative, Mr. Charity, was the only witness that the HO required to testify under oath. The other six community members who testified were not placed under oath. DMK, however, did not object at the hearing to the HO's failure to place the other witnesses under oath.

      . We note that the City also contends that DMK waived all of its procedural objections that it raises on appeal by failing to object at the hearing. In support, it cites Woods v. Cameco Ind., Inc., 01-0298, p. 10 (La.App. 1 Cir. 3/28/02), 815 So.2d 370, 377, for the proposition that "any post hearing objection to the admissibility of this evidence as hearsay is untimely and has been waived.” Id.

        . La. R.S. 13:2575(E) provides that:
      E. Any administrative adjudication hearing held under the provisions of this Chapter shall be conducted in accordance with the rules of' evidence of the Administrative Procedure Act. Testimony by any person shall be taken under oath. The person charged with the ordinance violation may present any relevant evidence and testimo- . ny at such hearing and may be represented by an attorney at law. However, his physical presence shall not be required at the hearing if documentary evidence, duly verified by such person, is submitted to the hearing officer prior to the date of the hearing.

      . Although the City also contended before the CDC that the inspector's reports fall within the ambit of the business record exception to the hearsay rule under La. C.E. art. 803(6), the CDC did not definitely decide this issue. We likewise find it unnecessary to decide this issue.

      . Discussing this issue, a commentator points out the following regarding the residuum rule:.

        The jurisprudence is unclear as to whether the residuum rule applies to hearsay evidence in Louisiana agency proceedings. The overarching principle of the residuum rule is that while hearsay evidence generally may be used in administrative hearings, it cannot form the sole basis of the decision resulting from the adjudication. The Louisiana Supreme Court, however, has never held that the residuum rule must apply to direct the outcome of agency adjudications, and the rule has not received universal acceptance within the state’s appellate courts. In Germany v. State, [Through Office of Secretary Dep’t of Health and Human Resources, 493 So.2d 800 (La.App. 2d Cir.1986)], for example, the second circuit upheld the Department of Health and Human Resource’s admission of out-of-court statements taken from a school bus driver to determine residency issues. The court ruled that “it is ... clear from the [L] APA and interpretive jurisprudence that hearsay is admissible in the instant cause in determining the ultimate issue.”
      Brandee Ketchum, Andrew Olsan, Louisiana Administrative Law: A Practitioner's Primer, 68 La. L.Rev. 1313, 1342 (2008).

      . La. R.S. 37:212 A states:
      The practice of law means and includes:
      (1) In a representative capacity, the appearance as an advocate, or the drawing of papers, pleadings or documents, or the performance of any act in connection with pending or prospective proceedings before any court of record in this state; or
      (2) For a consideration, reward, or pecuniary benefit, present or anticipated, direct or indirect;
      (a) The advising or counseling of another as to secular law;
      (b) In behalf of another, the drawing or procuring, or the assisting in the drawing or procuring of a paper, document, or instrument affecting or relating to secular rights;
      (c) The doing of any act, in behalf of another, tending to obtain or secure for the other the prevention or the redress of a wrong or the enforcement or establishment of a right; or
      (d)Certifying or giving opinions, or rendering a title opinion as a basis of any title insurance report or title insurance policy as provided in > R.S. 22:512(17), as it relates to title to immovable property or any interest therein or as to the rank or priority or validity of a lien, privilege or mortgage as well as the preparation of acts of sale, mortgages, credit sales or any acts or other documents passing titles to or encumbering immovable property. [Emphasis supplied.]

      . This does not mean that I approve of a non-lawyer appearing before an administrative body as the "prosecutor.”