author: EDWIN A. LOMBARD, Judge.

text:
    Barbara Lee SCHEUERMANN v. William G. ROSCH, III, Rosch & Ross, Craig H. Stewart and The Stewart Law Firm, Inc.
    No. 2014-CA-0302.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 1, 2014.

      Robert H: Matthews, Pauline M. Warri-ner, Matthews & Warriner, L.L.C., New Orleans, LA, for Plaintiff/Appellant.
    Mark P. Seyler, Jan K. Frankowski, Barkley & Thompson, L.C., New Orleans, LA, Craig H. Stewart, Stewart Law Firm, Houma, LA, for Defendant/Appellee.
    (Court composed of Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

l,The Appellants, Barbara Lee Scheuer-mann and James Perdigao, seek review of the January 16, 2014 judgment of the dis-triet court granting the exceptions of per-emption of Appellees’ William G. Rosch, III, Rosch & Ross, Craig H. Stewart, and The Stewart Law Firm, Inc. Finding that the district court did not err, we affirm.

Facts & Procedural History

In June 2007, James Perdigao (“Mr. Perdigao”) hired William G. Rosch, III, Rosch & Ross, Craig H. Stewart, and The Stewart Law Firm, Inc., (collectively referred to herein as “defendants”), to represent him in a federal criminal case. Mr. Perdigao’s mother, Appellant Barbara Lee Scheuermann (“Ms. Scheuermann”) paid for his legal defense. At the time, Mr. Perdigao was a partner at Adams and Reese LLP (“Adams and Reese”). Subsequently, Mr. Perdigao terminated the defendants’ representation in late 2007, and pleaded guilty to stealing more than $20,000,000 from Adams and Reese and his clients. He was sentenced to more than fifteen years in prison.

12After terminating the defendants, he formally requested an accounting of the retainer deposit that he had made. Subsequently, the defendants allegedly refused to provide an accounting and to refund the unused portion of the deposit, as they had previously discussed. The defendants allegedly claimed that any unused portion of the retainer deposit above any fees earned for services rendered did not have to be accounted for and that they were rightfully entitled to it. Ms. Scheuermann claims that the defendants refused to honor their agreement to refund the unearned balance of the deposit and filed a lawsuit.

In 2013, Ms. Scheuermann filed a lawsuit alleging that the legal fees that were paid to the defendants in 2007, were excessive and sought a partial refund. She alleges that the defendants proposed a written contract for their representation, but the parties could not come to an agreement on the terms of the contract. At that time Ms. Scheuermann alleges that she provided a substantial amount for the retainer deposit, and that the defendants had agreed that they would bill their time against the retainer deposit, and refund any unused portion to her upon the conclusion of their representation. Moreover, she alleges that although the defendants did perform legal work on behalf of her son, the amount of legal work performed should not have exhausted the retainer deposit for the amount of time that the defendants had actually been hired.

In response, the defendants filed their respective exceptions of no right of action, and William G. Rosch, III, and Rosch & Ross filed an exception of peremption alleging that Ms. Scheuermann did not have standing or a right of action to seek an accounting on behalf of her son, who solely had standing and a right of action to sue for an accounting and refund of the unused portion of the retainer.

| aOn December 2, 2013, an Amended and Restated Petition for Accounting and Refund of Excessive Attorney’s fees was filed in response to the exceptions that had been filed by the defendants. The Amended and Restated Petition for Accounting and Refund of Excessive Attorney’s fees added Mr. Perdigao as a plaintiff.

In response, both sets of defendants filed exceptions to the Appellants’ Amended and Restated Petition on the grounds of no right of action and peremption. On January 10, 2014, the trial court sustained the defendants exceptions of peremption, dismissed the claims of Ms. Scheuermann and Mr. Perdigao (“the Appellants”) with prejudice, and dismissed as moot the defendants’ exceptions of no right of action. As a result, the Appellants have taken a devolutive appeal and raise one assignment of error:

The trial court erred in sustaining the Appellees’ exceptions of peremption on the grounds that La.Rev.Stat. 9:5605 applies to all claims against attorneys, including non-malpractice claims, which stem from or arise out of an attorney-client relationship, and in applying La. Rev.Stat. 9:5605 to the Appellants’, nonlegal malpractice, demand for accounting, breach of contract, and unjust enrichment claims.

Standard of Review

In civil cases, we apply the manifest error standard of review to the trier of fact’s factual findings. See Dauterive Contractors, Inc. v. Landry and Watkins, 01-1112, p. 8 (La.App. 3 Cir. 3/13/02), 811 So.2d 1242, 1249. “The trial court’s factual determinations regarding preemption [sic]/ prescription should not be reversed in the absence of manifest error, as the issue to be decided by the appellate court is not whether the trier of fact was right or wrong, but rather whether the fact finder’s conclusion was a reasonable one.” Id.

14Non-MaIpractice Claims

The Appellants assert that the trial court erred in sustaining the Appellees’ exceptions of peremption, in holding that Louisiana’s legal malpractice peremption statute applies to all claims against attorneys, including non-malpractice claims, which stem from or arise out of an attorney-client relationship, and in applying La. Rev.Stat. 9:5605 to the Appellants’ demand for accounting, breach of contract, and unjust enrichment claims.

The Appellants argue that they did not bring a legal malpractice action, but rather a contractual action arising out of an agreement with the Appellees that they would bill against a retainer deposit and then account for and refund the unused portion at the conclusion of the engagement. Further, the Appellants contend that the trial court committed a legal error when it: 1.) concluded that Louisiana’s malpractice peremption statute, La.Rev. Stat. 9:5605, applied to all claims against attorneys, including non-malpractice claims, which stem from an attorney-client relationship, and 2.) when it dismissed their case as perempted under this statute.

The Appellants cite to La. Civ.Code art. 3499, which states, generally, that unless otherwise provided by statute, a personal action is subject to a liberative prescription of ten years. They argue that La. Rev.Stat. 9:5605 does not apply because it relates to malpractice actions against attorneys, and this statute bears the title “Actions for Legal Malpractice.” Further, under this statute, legal malpractice actions are subject to a peremption period of three years from the date of the alleged act, omission, or neglect. The Appellants further cite to In re Medical Review Panel Proceedings of Berry, 09-0752 (La.App. 4 Cir. 1/27/10), 30 So.3d 251, wherein this Court determined that as a general rule prescription statutes are to be strictly construed against the application of prescription. They further rely upon Ames v. Okie, 11-1540, p. 11-13 (La.App. 4 Cir. 5/23/12), 97 So.3d 386, 391, wherein we determined that the character of an action given by the plaintiff in his pleadings determines the prescription applicable to it, and in determining the applicable prescriptive period, the appellate court must look to the nature of the underlying duty to determine whether it is contractual or del-ictual in nature.

Moreover, the Appellants rely upon Williams v. Earl K. Long Medical Center, 09-1483 (La.App. 4 Cir. 5/28/10), 40 So.3d 412, writ denied, 10-1436 (La.10/1/10), 45 So.3d 1097, where the plaintiff, an attorney, brought a claim against other attorneys to recover his portion of the fees disbursed to the other attorneys pursuant to a settlement in the underlying litigation. This Court, the Appellants argue, rejected the application of legal malpractice per-emption periods holding that La.Rev.Stat. 9:5605 was inapplicable to a breach of contract claim. Also, the Appellants rely upon Peneguy v. Porteous, 01-1503 (La.App. 4 Cir. 5/15/02), 823 So.2d 380, where the heirs of a decedent, who were beneficiaries of one-third of the decedent’s trust, .brought an action against the heirs of attorneys, who received one-third of the 40% of the decedent’s trust when they represented the decedent’s wife and two daughters in a 1928 lawsuit to set aside the decedent’s trust. The action filed in 1999 by heirs of the decedent alleged that the amount of money received by the attorneys’ heirs was an unreasonably excessive attorney’s fee. This Court held that La. Rev.Stat. 9:5605 did not apply, and determined that it was an action to rescind or reform the contract executed in 1928 between now deceased parties, and as such, prescribes in ten years.

| ^Additionally, they argue that in order to maintain a claim for breach of contract, the claimant must allege that the defendant breached a particular contractual provision or duty. Trinity Universal Ins. Co. v. Horton, 33,157 p. 2 (La.App. 2 Cir. 4/5/00), 756 So.2d 637, 638. Thus, because the caption of La.Rev.Stat. 9:5605 indicates that the peremption period it sets forth is for an action for malpractice, and the Appellants’ pleadings do not set forth that type of claim, but rather a breach of contract claim, they argue the judgment of the trial court should be reversed. Lastly, pursuant to La. Civ.Code art. 3499, they argue they had ten years from November 2007, to file suit and they filed timely in July 2013.

In response, the Appellees argue that the trial court correctly applied La.Rev. Stat. 9:5605, because the language of the statute is clear and unambiguous, and establishes peremptive periods applicable to all claims against attorneys, where based upon tort, or in contract, or otherwise, if those claims arise out of an engagement to provide legal services. Further, in Vagelos v. Abramson, 12-2335 (La.App. 4 Cir. 10/2/2013), 126 So.3d 639, writ denied, 13-2574 (La.1/27/2014), 131 So.3d 61, they aver that there is a controlling precedent from this Court that demonstrates the distinction between claims arising out of an engagement to provide legal services, which are subject to the statute, and other claims that are not. All claims arising out of an engagement to provide legal services, they contend, are subject to the peremp-tive periods established in La.Rev.Stat. 9:5605, even if the claims include allegations of excessive fees or breach of a purported contract.

|7The Appellees rely upon Vagelos, which they argue is similar to the case at hand. In Vagelos, the plaintiffs asserted claims for breach of contract, and for charging an excessive legal fee against the defendants, who were lawyers. The defendants were sued more than a year after representation for breach of contract, and a claim that one of the attorney’s overcharged for the services provided. This Court held that both claims arose out of an engagement to provide legal services and ruled that both were non-malpractice claims pursuant to La.Rev.Stat. 9:5605. Thus, because the holding in Vagelos demonstrates that the peremptive periods established in La.Rev.Stat. 9:5605 apply, the Appellees argue that the trial court correctly sustained their exceptions of per-emption.

The Appellees further explain that there is a distinguishable difference in the case at hand and in Williams and Peneguy. In Williams, the claim arose out of a dispute amongst two sets of lawyers, and did not involve a claim with a former client and an attorney. Moreover, in Peneguy, there was not a claim present seeking to enforce a contract with their attorney’s but rather to enforce annulment or reform of a contract that their predecessors had entered into in 1927. Thus, the cases cited by the Appellants do not apply to the case at hand.

We disagree with the Appellants’ argument that the trial court erred in sustaining the Appellees’ exceptions of peremption by applying La.Rev.Stat. 9:5605 to their demand for accounting, breach of contract and unjust enrichment claims.

La.Rev.Stat. 9:5605(A), states:

No action for damages against any attorney at law duly admitted to practice in this state, any partnership of such attorneys at law, or any professional corporation, company, organization, association, enterprise, or other commercial business or professional combination 18auth prized by the laws of this state to engage in the practice of law, whether based upon tort, or breach of contract, or otherwise, arising out of an engagement to provide legal services shall be brought unless filed in a court of competent jurisdiction and proper venue within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered; however, even as to actions filed within one year from the date of such discovery, in all events such actions shall be filed at the latest within three years from the date of the alleged act, omission, or neglect.

As previously stated, the Supreme Court has held that when a statute is clear and unambiguous and its application does not lead to absurd consequences, the provision is applied as written with no further interpretation made in search of the Legislature’s intent. Foti. La.Rev.Stat. 9:5605 speaks to claims that arise out of any engagement to provide legal services including breach of contract. This statute unambiguously states that in the case that an action does arise out of the engagement of legal services, including breach of contract, the lawsuit shall be brought within one year from the alleged act, omission, or neglect is discovered. Therefore, we find this statute to be applicable.

In B. Swirksy & Co., Inc. v. Bott, 598 So.2d 1281 (La.App. 4th Cir.1992), a client filed a legal malpractice claim and breach of contract action against his former counsel, counsel’s law firm, and malpractice insurer for the attorney’s failure to file proof of loss claims forms with the client’s insurer relative to the client’s casualty loss by fire. The district court maintained defendants’ exception of prescription, and the client appealed. This Court in turn held that action was subject to a one-year prescription period, under La.Rev.Stat. 9:5605(A).

Additionally in Jones, Walker, Waechter, Poitevent, Carrere, and Denegre, L.L.P. v. Homestead Ins. Co., 97-0710 (La.App. 4 Cir. 9/10/97), 700 So.2d 238, a client asserted legal malpractice claim as a reconven-tional demand in response to aj9law firm’s suit for unpaid fees and costs. The district court held that the malpractice claim was not prescribed, and the law firm appealed. This Court held that: 1.) the malpractice claim was prescribed under the one-year prescription period of La.Rev.Stat. 9:5605, and 2.) that part of the relief that the client sought from the law firm in a legal malpractice action was for reimbursement of expenses incurred to appeal the underlying judgment and that did not make the client’s claim one for indemnity, subject to a different prescriptive period than that for legal malpractice. Both cases mentioned above apply to La.Rev.Stat. 9:5605, as they arise out of a . breach of contract and engagement in the practice of law to provide legal services such as the case at hand.

Moreover, in Vagelos v. Abramson, 12-1235 (La.App. 4 Cir. 10/2/2013), 126 So.3d 639, writ denied, 13-2574 (La.1/27/2014), 131 So.3d 61, the plaintiffs asserted claims for breach of contract, and for charging an excessive fee. This Court held that both claims were perempted pursuant to La. Rev.Stat. 9:5605. Therefore, because this Court has applied La.Rev.Stat. 9:5605 to factually similar cases, it should also be applied to the case at hand.

In this instant matter, the Appellants assert that they did not bring a malpractice action, but rather a breach of contract action. However, we find that the Appellants clearly filed a lawsuit based upon a legal malpractice claim. They assert that the Appellees failed to provide an accounting of fees that accrued during their time of representation when requested, and failed to reimburse funds that were unused based upon an agreement that had been previously made by the parties and thus, there was allegedly a breach of contract. However, because this is an action that arises out of the engagement to provide legal services to the Appellants, this lawsuit is governed by La.Rev.Stat. 9:5605 (A), and is subject to |ina one-year prescriptive period from the date that the alleged act, omission, or neglect is discovered or should have been discovered. Even actions filed within one year from the date of such discovery, in all events such actions shall be filed at the latest within three years from the date of the alleged act, omission, or neglect. Thus, the Appellants’ lawsuit was prescribed as of November 2008 and perempted three years from the date of the alleged act, omission, or neglect which would have been November. 2010.

DECREE

For the foregoing reasons, the judgment of the district court granting the exceptions of peremption of William G. Rosch, III, Rosch & Ross, Craig H. Stewart, and The Stewart Law Firm, Inc., is affirmed.

AFFIRMED.

      . Although only defendants William Rosch, III, and Rosch & Ross filed an Appellee’s brief, we will use "the Appellees” to refer to all the defendants.

      . See Foti v. Holliday, 09-0093 (La. 10/30/2009), 27 So.3d 813, 813, citing Dejouie v. Medley, 08-2223 (La.5/5/09), 9 So.3d 826, 829, wherein the Supreme Court held that when a statute is clear and unambiguous and its application does not lead to absurd consequences, the provision is applied as written with no further interpretation made in search of the Legislature's intent.


source: Caselaw Access Project

author: SANDRA CABRINA JENKINS, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Leonard HARRIS.
    No. 2013-KA-1134.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 1, 2014.

      Leon A. Cannizzaro, Jr., District Attorney, Kyle Daly, Assistant District Attorney Orleans Parish, New Orleans, LA, for Appellee/State of Louisiana.
    Garrón M. Johnson, Johnson Law Firm, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge SANDRA CABRINA JENKINS).
   SANDRA CABRINA JENKINS, Judge.

17 Defendant, Leonard Harris, was charged by bill of information with one count of attempted second degree murder in violation of La. R.S. 14:(27)30.1. Following a three-day trial, the jury returned a verdict of guilty as charged. The trial court denied defendant’s motion for new trial and post-verdict judgment of acquittal and sentenced defendant to serve a term of fifty years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence. Defendant appeals his conviction. As his sole assignment of error, defendant asserts the trial court erred in denying his motion for new trial. After reviewing the entire record, we find no merit to defendant’s argument on appeal. For the reasons discussed herein, we affirm defendant’s conviction and sentence.

FACTUAL BACKGROUND

Shelly Nelson (“Shelly”) was shot near the corner of St. Roch and Vienna Street in New Orleans, Louisiana on the morning of March 24, 2008. At trial, Detective Hal Amos (“Detective Amos”) testified that when he arrived at the scene, he found Shelly slumped over her steering wheel suffering from multiple gunshot wounds. Detective Amos met with Shelly the day after the shooting in the hospital. Despite Shelly having tubes down her throat, according to Detective |2Amos, Shelly was able to verbally identify Leonard Gaines, her ex-ñancé, as the shooter. Detective Amos testified that Shelly further stated the shooter was driving a blue Ford Expedition and that Gaines was the father of her child, drove a green Lexus, worked offshore, and was able to provide Gaines’ date of birth. Two days after the shooting, Detective Amos returned to the hospital and found Shelly’s condition had improved. Shelly informed Detective Amos that she had no recollection of identifying Gaines as her shooter, and the actual shooter was the defendant, Leonard Harris.

Steve Nelson (“Steve”), the victim’s brother, testified that he was the first person to arrive at the hospital and was present when his sister initially identified Gaines as her attacker. He said that Shelly could not talk, but was able to scribble “L-E-N-A-R-D” on a piece of paper before the officers arrived at the hospital. Steve stated he was also present when his sister identified the defendant as the shooter. Upon Shelly hearing Steve say the name “Pluck,” Gaines’ nickname, she clarified that it was the wrong “Leonard” ' and the defendant, Leonard Harris, was actually the shooter. Steve immediately went to the police station and relayed this information to Detective Amos. According to Steve, his sister never verbally stated that Gaines shot her.

Yolanda Nelson (“Ms. Yolanda”) is the victim’s mother. Ms. Yolanda testified that while in the hospital, she began calling out names once hei; daughter regained consciousness. According to Ms. Yolanda, when she said “Pluck,” her daughter did not respond, but when she said “Leonard,” Shelly’s “eyes kind of opened and rolled back.” Ms. Yolanda thought her daughter was responding to Leonard Gaines’ name because that-is the only person she, herself, knew named Leonard. Ms. Yolanda then informed the police that her daughter had identified ¡¡¡Gaines as the shooter. Ms. Yolanda testified that some time later, it was discovered that Gaines was not the shooter when Shelly specified Gaines was not the Leonard that shot her — it was the defendant, Leonard Harris.

Shelly testified that she and defendant had gone out with friends the previous night for Easter Sunday. After returning home with her girlfriends that night, defendant repeatedly called Shelly and eventually showed up at her house. When presented with her phone records from that night, Shelly testified that defendant called her twenty-six times that day. Shelly went outside to talk with defendant in his truck. Shelly claims, despite his copious attempts, she did not allow defendant to come inside as she had a housing inspection scheduled for 8:00 a.m. the next morning.

On the morning of the shooting, as she sat in the car waiting for the housing inspection, Shelly saw a man, wearing a bandana and black hat, with a gun through her rear view mirror. The man began shooting from the back of the car, came around the side of the car, and continued shooting. When a screaming lady appeared, the shooter pulled his bandana off and Shelly opened her eyes to see that the shooter was the defendant, Leonard Harris. Shelly immediately called her mother to tell her she had been shot.

When Detective Amos arrived at the scene, Shelly nodded yes when asked if she knew the shooter but was not .asked who it was at that time. Shelly also told Detective Amos that she saw a blue Expedition on the street shortly before she was shot which was gone when the police arrived. Shelly did not recall scribbling the name “Lenard” in the hospital but did remember being presented the photo lineup wherein she identified defendant as the shooter. Shelly identified defendant in court as the person who shot her and when asked if she was positive, Shelly |4replied, “Yes, I am.” Shelly claims Detective Amos lied about her verbally identifying Gaines as the shooter when she was in the hospital. Shelly also did not recall providing the type of car Gaines drove or his birthdate, as she explained she was heavily medicated while in the hospital.

Based on the interview with Shelly, Detective Amos obtained an arrest warrant for Leonard Harris. The defendant was subsequently arrested and charged with the attempted second degree murder of Shelly Nelson.

ERRORS PATENT

In accordance with La.C.Cr.P. art. 920, all appeals are reviewed by this Court for errors patent on the face of the record. After reviewing the record, we note one error patent. The trial court failed to follow the sentencing delays mandated by La.C.Cr.P. art. 873 when it issued an original sentence immediately after denying defendant’s motion for new trial and post-verdict judgment of acquittal.

This Court recently addressed the same error patent by stating:

In addressing a failure to abide by the sentencing delay mandated by Louisiana Code of Criminal Procedure article 873, the Louisiana Supreme Court has stated that when there has been no objection raised regarding the sentence imposed and no showing or suggestion that the defendant was prejudiced by the failure to observe the delay, judicial efficiency dictates that this court need not follow the useless formality of remanding for reimposition of a sentence which has not been challenged. Accordingly, this Court has held that where a defendant does not challenge his sentence on appeal, any failure to abide by sentencing delays pursuant to Louisiana Code of Criminal Procedure article 873 is harmless error. Therefore, the trial court’s error is harmless and merits no relief.

State v. Augustine, 12-1759, pp. 4-5 (La.App. 4 Cir. 9/18/13), 125 So.3d 1203, 1206, writ denied, 13-2484 (La.4/4/14), 135 So.3d 639 (internal citations omitted). The defendant has not assigned error as to his sentence. For the reasons expressed in Augustine, this error patent is harmless and merits no relief.

LAW AND ANALYSIS

In his sole assignment of error, defendant argues that the trial court erred in failing to declare a mistrial or grant a new trial. In support of his argument, defendant points to closing arguments, wherein the State urged that Detective Amos’ testimony should be disregarded due to inconsistencies with Shelly’s testimony. Defendant asserts that the State’s failure to inform the defense of Detective Amos being a liar was in direct violation of La.C.Cr.P. art. 729.3 and Brady v. Mary land, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

A motion for new trial is governed by La.C.Cr.P. art. 851. Absent a clear showing of abuse of discretion, a trial court’s ruling on a motion for new trial will not be disturbed. State v. Weathersby, 13-0258, p. 21 (La.App. 4 Cir. 4/16/14), 140 So.3d 260, 272 (citing State v. Quimby, 419 So.2d 951, 960 (La.1982)).

IfiWe summarized the Brady rule in State v. Dominick, 13-0121, p. 13 (La.App. 4 Cir. 11/20/13), 129 So.3d 782, 791(quoting State v. Hollins, 11-1435, pp. 23-24 (La.App. 4 Cir. 8/29/13), 123 So.3d 840), as follows:

Due process requires the disclosure of evidence that is both favorable to the accused and material either to guilt or punishment. The Brady rule also requires the disclosure of evidence adversely affecting the credibility of government witnesses. When such information is not disclosed and it is material in that its suppression undermines the confidence in the outcome of the trial, then constitutional error occurs and the conviction must be reversed. Evidence is material if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Materiality hinges on “not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.” Further, the defendant must show that “disclosure of the suppressed evidence to competent counsel would have made a different result reasonably probable.” (internal citations omitted).

We further noted, “there is no Brady violation where a defendant knew or should have known the essential facts permitting him to take advantage of any exculpatory information, or where the evidence is available from another source, because in such cases there is really nothing for the government to disclose.” Id., 13-0121, p. 14, 129 So.3d at 791 (internal citations omitted).

Defendant identifies three testimonial discrepancies and argues that the State’s failure to disclose justifies granting a new trial. We find the purported discrepancies are neither material nor exculpatory, but will nevertheless be addressed. The first alleged inconsistency urged by defendant is Shelly’s initial identification of Gaines as her attacker appears to have been a misunderstanding that was rectified. Shelly’s brother and mother stated that Shelly could not speak |7when she managed to identify Leonard as her shooter, which they immediately assumed meant Leonard Gaines as that was the only Leonard they knew. However, both testified that when Shelly felt better, a day later, she clarified that Leonard Harris, not Leonard Gaines, was her shooter and she has consistently identified him as the shooter since regaining her ability to communicate. Shelly’s insistence that Gaines was not her shooter is further confirmed by the testimony of the Transocean representative who testified that company records show that Gaines was offshore at the time of the shooting.

The second alleged discrepancy involves the inconsistency between the forensic evidence location of the shooter versus Shelly’s placement of the shooter. Shelly’s recollection as to where defendant was standing when she was shot does not change the fact that she knew the shooter and identified him as Leonard Harris. The physical evidence introduced at trial— showing the location of bullet casings at the crime scene — confirms the shooter began shooting from the back of the car and moved to the front driver’s side where Shelly was sitting.

The last inconsistency is whether or not Shelly could speak after surgery. Shelly’s testimony is that she could not speak after surgery because of the tube down her throat which temporarily severed her vocal cords, whereas Detective Amos asserts the two had a conversation wherein she verbally identified the shooter. This taped conversation was played to the jury and the doctor who performed Shelly’s surgery also testified that “there is no possible way that she could give any type of verbal communication” on the day in question. The witnesses’ testimony and introduction of the taped conversation clarifies any discrepancy that may have been had.

|sWe find no Brady violations in this case. Defendant’s argument is simply his objection to the State’s strategy of impeaching its own witness after discrepancies between Detective Amos’ testimony and that of others appeared during trial. A party has a right to challenge his own witness by independent evidence, although the effect of the contradictory evidence is to discredit the witness. See La. C.E. arts. 607 and 611; see also, State v. Gordon, unpub., 10-1286, pp. 10-12 (La.App. 4 Cir. 8/19/11), 2011 WL 9160384. Furthermore, regardless of what the State recommended in closing arguments, it was well within the jury’s discretion to weigh the conflicting testimony as they saw fit. State v. Jackson, 12-0090, p. 19 (La.App. 4 Cir. 4/24/13), 115 So.3d 1155, 1166, writ denied, 13-1235 (La.12/2/13), 126 So.3d 497, cert. denied, — U.S. -, 134 S.Ct. 1950, 188 L.Ed.2d 962 (U.S.2014); State v. Hankton, 12-0466, p. 12 (La.App. 4 Cir. 4/30/14), 140 So.3d 398, 407 (“It is the jury’s province to weigh the evidence and the credibility of the witnesses and its finding will not be disturbed absent an abuse of discretion.”) (citing State v. Barnes, 11-1421 (La.App. 4 Cir. 9/19/12), 100 So.3d 926).

In the present case, defendant failed to prove he suffered any injustice and we cannot say the trial court’s decision to deny the motion for new trial was in error. Defendant’s argument is without merit.

DECREE

For the foregoing reasons, the defendant’s conviction is affirmed.

AFFIRMED.

      . By the time of trial, Shelly had undergone seventeen surgeries and is permanently paralyzed from the waist down.

      . La.C.Cr.P. art. 729.3 provides, “If, subsequent to compliance with an order issued pursuant to this Chapter and prior to or during trial, a party discovers additional evidence or decides to use additional evidence and such evidence is or may be, subject to discovery or inspection under the order issued, he shall promptly notify the other party and the court of the existence of the additional evidence, so that the court may modify its previous order or allow the other party to make an appropriate motion for additional discovery or inspection.”

      . Defendant also argues the State’s actions violated La. Prof. Code of Conduct Rule 3.3.

      . La.C.Cr.P. art. 851 states:
      A. The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.
      B. The court, on motion of the defendant, shall grant a new trial whenever any of the following occur:

      (2) The court’s ruling on a written motion, or an objection made during the proceedings, shows prejudicial error.


author: TERRI F. LOVE, Judge.

text:
    STATE of Louisiana in the Interest of A.J.
    No. 2014-CA-0595.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 1, 2014.

      Leon A. Cannizzaro, Jr., District Attorney, J. Bryant Clark, Jr., Assistant District Attorney, New Orleans, LA, for Ap-pellee/State of Louisiana.
    Katherine M. Franks, Louisiana Appellate Project, Abita Springs, LA, for Appellant/A.J.

      (Court composed of Judge TERRI F. LOVE, Judge JOY COSSICH LOBRANO, Judge ROSEMARY LEDET).
   TERRI F. LOVE, Judge.

|, The juvenile, A.J., appeals his adjudication as a delinquent for violation of La. R.S. 14:95.2 (the illegal carrying of a firearm by a student on school property) and La. R.S. 14:37.4 (aggravated assault with ,a firearm). A.J. assigns as error that (1) the evidence was insufficient to support his adjudication as a delinquent; (2) the scope of questioning by the trial court showed bias and a lack of impartiality, warranting a new trial; (3) A.J.’s statement to the Dean of Students was improperly admitted at trial as it was made without A.J. being advised of his Miranda rights, and it was not shown that it was freely and voluntarily made; (4) counsel was ineffective for failing to pursue the motion to suppress statement and failing to object to its admission at trial; and, (5) the trial court erred in imposing court costs and fees in excess of the amount authorized by statute. We find the testimonial evidence was sufficient to prove both charges beyond a reasonable doubt, the trial court’s scope of questioning was within its authority as a fact finder, the admission |2of A.J.’s statement was not in error, and counsel for A.J. was not ineffective. Additionally, we find the trial court erred in imposing court costs and fees in excess of the amount authorized by La. R.S. 13:1595.2. Accordingly, we affirm AJ.’s adjudication as a delinquent for violation of La. R.S. 14:95.2 and 14:37.4 and amend the $55.00 fee assessment and reduce it to $50.00 in accordance with La. R.S. 13:1595.2.

FACTUAL AND PROCEDURAL BACKGROUND

In January 2014, D.W. was waiting for her father to pick her up in front of Me-dhard H. Nelson Elementary School after school hours, when she was approached by A.J. and his cousin T.M., who was dating one of the girls standing with D.W. While T.M. and his girlfriend stepped away to talk, A.J. began to flirt with D.W.; however, D.W. ignored him. At trial, D.W. testified that A.J. then pulled out a gun from his waistband and pointed it at the ground. D.W. testified that she was “a little afraid” when she saw the gun and that A.J. pointed the gun at her feet. D.W. stated that A.J. stood there for a few seconds before he walked off with T.M. Shortly thereafter, D.W.’s father picked her up.

T.M. testified that on the date of the incident he and A.J. went to the school to meet his girlfriend. T.M. stated that he first saw the gun when A.J. attempted to readjust it to keep it from falling from his waistband. At trial, T.M. testified that he heard D.W. laugh when she saw the gun stating, “I’m not scared of no [sic] gun” and that she had been around guns in the past. D.W. then walked away and |3was picked up by her father. T.M. stated that he and A.J. also walked away without further incident.

D.W. testified that she did not tell anyone about the incident until the following week when Dean of Students Edward Lewis (“Mr. Lewis”) was informed by the school’s band instructor about the incident. Mr. Lewis testified that initially he tried to speak with D.W. but could not find her. Mr. Lewis then located A.J. and questioned him about the incident. Mr. Lewis testified that A.J. admitted to having a gun on the school’s campus and pulling it out in D.W.’s presence. Additionally, Mr. Lewis stated he never saw a gun on campus and did not find one on A.J.’s person.

A.J. was subsequently arrested and charged with violation of La. R.S. 14:95.2 (illegal carrying of a firearm by a student on school property) and 14:37.4 (aggravated assault with a firearm). Prior to trial, the state gave notice that it intended to offer evidence of A.J.’s statement to Mr. Lewis. Defense counsel then filed a motion to suppress statements; however, a suppression hearing never took place. At trial, A.J. was adjudicated a delinquent on both charged offenses. At the disposition hearing, the trial court imposed six months dispositions on each charge to run concurrently. The trial court suspended the disposition and placed A.J. on six months active probation with special conditions. The trial court also assessed fees in the amount of $205.00, $55.00 of which were considered the minimum costs to be paid. This timely appeal follows.

J¿STANDARD OF REVIEW

In juvenile proceedings, the State must prove the child a delinquent beyond a reasonable doubt. La. Ch. C. art. 883. “The standard for the State’s burden of proof in a juvenile delinquency proceeding is ‘no less strenuous than the standard of proof required in a criminal proceeding against an adult.’ ” State in the Interest of R.L., 11-1721, p. 3 (La.App. 4 Cir. 5/30/12), 95 So.3d 1147, 1150 (citing State in the Interest of A.G., 630 So.2d 909, 910 (La.App. 4 Cir. 12/30/93)).

“While delinquency proceedings may in many ways implicate criminal proceedings, sometimes even mimicking them, they are nonetheless civil in nature.” State in the Interest of D.R., 10-0405, p. 5 (La.App. 4 Cir. 10/13/10), 50 So.3d 927, 930. Consequently, the reviewing court must review both law and facts when reviewing juvenile adjudications. La. Const. art. V, § 10(B). “[A] factual finding made by a trial Court in a juvenile delinquency adjudication may not be disturbed by an appellate court unless the record evidence as a whole does not furnish a basis for it, or it is clearly wrong.” State in the Interest of R.L., 11-1721, p. 3-4, 95 So.3d at 1150. See also State in the Interest of Batiste, 367 So.2d 784 (La.1979). In the present case, this Court applies the clearly wrong/manifest error standard of review in determining whether the State proved A. J. a delinquent of the charged offenses beyond a reasonable doubt.

| SUFFICIENCY of evidence

On appeal, counsel for A.J. avers the evidence is insufficient to establish that A.J. was carrying a gun on a school campus or in a firearm-free zone. La. R.S. 14:95.2 states that it is unlawful for a student to carry a firearm on one’s person at any time while “... on a school campus, on school transportation, or at any school sponsored function in a specific designated area including but not limited to athletic competitions, dances, parties, or any extracurricular activities, or within one thousand feet of any school campus.” (emphasis added). A.J. avers that the location of the incident was not sufficiently detailed by witness testimony to establish beyond a reasonable doubt that A. J. had a gun while on the school’s campus. We find this argument without merit.

D.W. testified at trial that she was standing in front of the school when A.J. approached her and pulled the gun from his waistband. Additionally, T.M. testified that when he first saw A.J. holding the gun, he was standing in front of the school and both A.J. and D.W. were near the corner of the gate to the school. At trial, Mr. Lewis testified that A.J. admitted to bringing a gun to the school and pulling it out on D.W. Moreover, both witnesses present during the incident, D.W. and T.M., both testified that they saw A.J. with a gun. In light of the testimony advanced at trial demonstrating that A.J. was both, in possession of a firearm, and on a school campus or within 1000 feet of the school, the evidence was sufficient to adjudicate A.J. a delinquent of the illegal possession of a firearm by a student on a school campus, in violation of La. R.S. 14:95.2.

lfiLa. R.S. 14:37.4 requires a showing of an assault with a dangerous weapon. La. R.S. 14:36 defines assault as “... an attempt to commit a battery, or the intentional placing of another in reasonable apprehension of receiving a battery.”

Here, D.W. testified that she was scared “a little afraid” when A.J. pulled the gun out from his waistband and pointed it at her feet. D.W. testified that she was afraid that A.J. would point the gun higher towards her face and did not know what he might do. In contrast to D.W.’s testimony, T.M. testified that he observed D.W. laugh and state, “I’m not scared of no [sic] gun. I been [sic] around guns.”

Determinations of witness credibility are within the province of the trier of fact, and the mere existence of contradictory testimony does not create reasonable doubt. State v. Stukes, 08-1217, p. 16 (La.App. 4 Cir. 9/09/09), 19 So.3d 1233, 1244 (“The jury was aware of the various inconsistencies and the differing versions offered by the State and the defense as to what led to the shooting, and the jury apparently chose to believe the testimony of the State’s witnesses over that of the defense. This court has repeatedly held that a factfinder’s credibility decision should not be disturbed unless it is clearly contrary to the evidence.”) As previously stated, a factual finding by a trial court in juvenile delinquency adjudications will not be disturbed unless it is clearly wrong. In this case, we cannot say that the trial court’s factual findings were clearly wrong. Accordingly, we find the evidence was sufficient for the trial court to find A.J. a delinquent on both offenses charged.

\7La. C.E. art. 614(B)

La. C.E. art. 614(B) permits the trial court to question witnesses, whether called by itself or by a party. The power to question witnesses, however, is limited in that it “does not authorize a court to exercise that power in the same manner as adversary counsel.” See La. C.E. art. 614, comment (c). Therefore, the trial court must maintain impartiality and avoid becoming an advocate for either side.

The Louisiana Supreme Court in State v. Layssard, 310 So.2d 107, 108 (La.1975), concluded:

Where the judge is the trier of fact he has the right to question the witness to clarify the evidence in his mind. Unless his participation in the trial is to such an extent and of such a nature that it deprives the defendant of a fair trial, there is no error.

Furthermore, when the trial court’s questions go beyond mere clarification of evidence and begin to develop evidence adverse to. the child’s interest, the trial judge’s questioning of the witnesses will not deprive the child a fair trial in the adjudication proceeding if the witness did not seem intimidated or frightened by the interrogation, and the questions were relevant to the offense charged. State ex. rel. D.R., 10-0405, p. 5, 50 So.3d at 930.

Counsel for A.J. claims the trial judge stepped outside her role as a neutral fact-finder and stepped into the role of adversary and advocate for the State. As the factfinder in the present case, the trial judge was allowed to question witnesses to clarify evidence. The defense objected to the trial judge’s questioning when she attempted to clarify the order of events and locations of witnesses during the incident. Defense counsel complained that the trial judge overstepped the bounds |sof her authority to question the witness, objecting, to the trial court “taking on the role of the prosecutor.” The trial court stated:

And obviously, if neither the prosecutor nor the defense attorney asked the questions for the judge to be able to make a decision, I have' the right to ask any witnesses at all any questions. It’s your witness, you brought him in, you opened him up to it.

The defense objection arose after the questioning of T.M. resulted in conflicting answers as to where he was in relation to A.J. and what the argument between A.J. and D.W. was about. There is no evidence in the record that suggests that T.M. was frightened or intimidated by the trial court’s questions. Counsel for A.J., however, points to the trial court’s questioning of the victim D.W. as proof that the trial court’s questioning went beyond the scope of clarification.

During D.W.’s testimony, it was evident that D.W. was uncomfortable testifying. The trial court recessed the adjudication hearing to allow her an opportunity to talk with her parents after she testified that she never spoke with anyone about what had occurred. When the hearing resumed, the trial court intervened during the State’s direct examination of D.W. to explain the purpose of her testimony and why it was important that she tell the court what happened. After questioning from both sides, the trial court asked D.W. to clarify her testimony about what occurred during the incident. During the trial court’s questioning, D.W. testified that she was “a little afraid” when A.J. pulled the gun out and that she feared what he might do with the gun.

Our review of D.W.’s testimony demonstrates that the trial court’s questioning did not go beyond the scope of clarification. Further, the suggestion that D.W. was frightened or intimidated by the trial court’s questioning is attributable to her hesitation to testify in general and not specifically with regard to |3the trial court’s questioning. Therefore, we find the trial court’s questioning of the witnesses did not go beyond the scope of clarification, and A.J. was not deprived a fair trial.

ADMISSION OF STATEMENT

In his next assignment of error, A.J. claims his statement made to the Dean of Students was erroneously admitted at trial. A.J. contends Mr. Lewis was acting as an agent of the State and in concert with law enforcement when Mr. Lewis questioned him about bringing a gun on the school’s campus. A.J. avers that because Mr. Lewis was acting as an agent of the State, the questioning amounted to a custodial interrogation. Therefore, his confession was inadmissible given he was not advised of his Miranda rights, and the State did not establish at trial that his statement was freely and voluntarily made.

In Miranda v. Arizona, 384 U.S. at 444, 86 S.Ct. at 1612, the United States Supreme Court held:

[T]he prosecution may not use statements, whether exculpatory or incul-patory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.

(Emphasis added).

The foregoing passage makes clear Miranda “only applies if three conditions are met: (1) the defendant is in ‘custody or significantly deprived of freedom, (2) there is an ‘interrogation,’ and (3) the interrogation is conducted by a ‘law enforcement officer’ or someone acting as their agent.” State v. Bernard, 09-1178, p. 5 (La.3/16/10), 31 So.3d 1025, 1029.

ImCounsel for A.J. contends that pursuant to La. R.S. 14:95.2(G), school officials are mandatory reporters, subject to a criminal penalty for any failure to report an offense within seventy-two hours. Consequently, the only purpose for questioning A.J. was to “acquire evidence for a criminal prosecution.”

In Bernard, the defendant was charged with two counts of aggravated rape of a juvenile, one count of distribution of cocaine to a juvenile, and one count of false imprisonment with a dangerous weapon. A child protection officer interviewed the defendant as part of an investigation of child abuse or neglect directed at his live-in girlfriend; during the interview, the defendant admitted to using cocaine. Id., 09-1178, p. 1-2, 31 So.3d at 1027-28. The defendant moved to suppress his statement he made to the child protection officer, based on her failure to advise him of his Miranda rights. Id., 09-1178, p. 2, 31 So.3d at 1028. The trial court granted the motion to suppress and the First Circuit affirmed. Id. The Louisiana Supreme Court concluded that Miranda does not apply to all state actors, but only those who are law enforcement officers or acting as their agent. Id., 09-1178, p. 11, 31 So.3d at 1032. The Bernard court acknowledged there is no bright line rule for determining whether one is acting as an agent of law enforcement; and therefore, each case must be decided on its own set of facts. Id., 09-1178, p. 12, 31 So.3d at 1033.

In Bernard, the Supreme Court disagreed with the trial court’s finding that because the child protection officer was “an agent of the State” and the defendant was “in custody” at the time she interviewed him, Miranda applied. Id., 09-1178, p. 16, 31 So.3d at 1035. The Supreme Court reasoned that under a fact-driven determination the child protection officer was not an agent of law enforcement. Notably, she did not work for the police department, had no authority to make an | ^arrest, and had not talked with the police department or prosecutors prior to her interview with the defendant. Id. The purpose of her interview with the defendant was to determine whether the defendant’s live-in girlfriend was a fit parent and was unrelated to the criminal allegations against the defendant. Id. See also State v. Barrett, 95-2613, p. 14 (La.App. 1 Cir. 11/8/96), 683 So.2d 331, 339 (Appellate court found the principal was not acting as an agent for law enforcement and Miranda did not apply when asking why the defendant, a student at the school, was carrying $400 in case and “had not been taken into custody, detained, or deprived of his freedom of action, other than as appropriate considering his status as a student at school”).

Similarly, in the context of this case, we find Mr. Lewis is not an agent for law enforcement. Nothing in the record indicates that Mr. Lewis questioned A.J. while in the presence of law enforcement, nor was there any indication that law enforcement was conducting an investigation at the time Mr. Lewis spoke with A.J. Additionally, there is no evidence questioning A.J. was a team effort between the law enforcement, the prosecutors, and Mr. Lewis. Rather, the record demonstrates Mr. Lewis was acting in his role as Dean of Students to carry out school discipline and safety, not acquiring evidence for a criminal prosecution.

Simply because law enforcement subsequently became involved and criminal charges were filed based on what Mr. Lewis learned does not create an instance where we would consider Mr. Lewis as working in concert with law enforcement. As such, we find the statement was admissible at trial and does not implicate the safeguards of Miranda v. Arizona. Therefore, this assignment of error is without merit.

1 ^Furthermore, even if there was merit to counsel’s argument, we find that defense counsel’s failure to pursue the motion to suppress or to contemporaneously object to the statement’s admission at trial, foreclosed A.J.’s opportunity to raise the issue on appeal. Pursuant to La.C.Cr.P. art. 841, “[a]n irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence.” See also State v. Landry, 560 So.2d 598, 602 (La.App. 4th Cir.4/12/1990). For this reason, counsel for A.J. argues that his trial counsel was ineffective and the deficient performance impacted the verdict in this case.

In general, “the issue of ineffective assistance of counsel is a matter more properly addressed in an application for post-conviction relief, filed in the trial court where a full evidentiary hearing can be conducted.” State v. Wilson, 99-3151, p: 7 (La.App. 4 Cir. 11/8/00), 773 So.2d 222, 227 (citing State v. Prudholm, 446 So.2d 729, 737 (La.1984)). “Only if the record discloses sufficient evidence to rule on the merits of the claim do the interests of judicial economy justify consideration of the issue on appeal.” Id., 99-3151, p. 7-8, 773 So.2d at 227. In this case, we find there is sufficient evidence to rule on the merits of A.J.’s ineffective assistance of counsel claim.

Ineffective assistance of counsel claims are analyzed under the two-prong test of Strickland v. Washington, 446 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The appellant must show that counsel’s performance was deficient and that the deficiency prejudiced him. Id., 466 U.S. at 687, 104 S.Ct. at 2064. Counsel’s performance is ineffective when it can be shown that she made errors so serious |13that counsel was not functioning as the “counsel” guaranteed to the appellant by the Sixth Amendment. Id. Counsel’s deficient performance will have prejudiced the appellant if he shows that the errors were so serious as to deprive him of a fair trial. Id. To carry his burden, the appellant “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id., 466 U.S. at 694, 104 S.Ct. at 2068. The appellant must make both showings to prove that counsel was so ineffective as to require reversal. Id.

Additionally, this Court discussed in State v. Reichard, 05-1262, p. 5-6 (La.App. 4 Cir. 6/21/06), 935 So.2d 727, 731, what constitutes effective counsel:

An “effective counsel” has been defined as “not errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance.” State v. Anderson, 97-2587, p. 7 (La.App. 4 Cir. 11/18/98), 728 So.2d 14, 19 (citing, State v. Seiss, 428 So.2d 444 (La.1983)). Given that “opinions may differ on the advisability of a tactic, hindsight is not the proper perspective for judging the competence of counsel’s trial decisions. Neither may an attorney’s level of representation be determined by whether a particular strategy is successful.” State v. Crowell, 99-2238, p. 8 (La.App. 4 Cir. 11/21/00), 773 So.2d 871, 878 (quoting State v. Brooks, 505 So.2d 714, 724 (La.1987)). It follows then “trial strategy” type errors do not constitute ineffective assistance of counsel. Crowell, 99-2238, at p. 8, 773 So.2d at 878 (citing State v. Bienemy, 483 So.2d 1105 (La.App. 4 Cir.1986)); State v. Bordes, 98-0086, p. 8 (La.App. 4 Cir. 6/16/99), 738 So.2d 143, 147 (quoting Bienemy, 483 So.2d at 1107 (noting that “[t]his court has previously recognized that if an alleged error falls ‘within the ambit of trial strategy’ it does not ‘establish ineffective assistance of counsel.’ ”)).

In this case, A.J. claims that but for defense counsel’s failure to obtain a ruling on the motion to suppress statement and failure to make a contemporaneous [ 14objection at trial, the outcome of the adjudication proceedings would have been different. The record, however, demonstrates that counsel’s actions were trial strategy in that defense counsel made a conscious decision not to pursue the motion to suppress statement or make a contemporaneous objection at trial. Defense counsel’s strategy at trial was not to debate that A.J. brought a gun to school. Instead, defense counsel’s strategy was to contest the aggravated assault with a firearm offense. In defense’s opening and closing statements, counsel for A.J. readily admitted that A.J. brought a gun to school, and both D.W. and T.M. testified that they saw A.J. with a gun.' For these reasons, we find that defense counsel’s decision not to pursue the motion to suppress statement or make a contemporaneous objection at trial falls within the ambit of trial strategy. Therefore we find no merit to A.J.’s ineffective assistance of counsel claim.

La. R.S. 13:1595.2

In A.J.’s final assignment of error, he contends that the trial court erred in imposing court fees in excess of that authorized by statute. La. R.S. 13:1595.2 provides for the assessment of fees to the Judicial Expense Fund for Juvenile Court. The statutes provides in pertinent part:

A. In all delinquency and children in need of supervision cases over which the Orleans Parish Juvenile Court has jurisdiction, there shall be taxed as costs against every juvenile who is adjudicated delinquent, admits to allegations contained in the petition, or enters into an informal adjudication the sum of fifty dollars, which shall be transmitted to the judicial administrator of the Orleans Parish Juvenile Court for further disposition in accordance herewith.
B. The judicial administrator shall place all sums collected or received under this Section in a separate account to be designated as the judicial expense fund for the Orleans Parish Juvenile Court. The 11judges of the court shall cause to be conducted annually an audit of the fund and the books and accounts relating thereto and shall file the same with the office of the legislative auditor where it shall be available for public inspection.

In this case, the trial court made two assessments in the amount of $55.00 and an additional court cost of $150.00 authorized by court rule. Counsel for A.J. asserts, and the State concedes, that the assessment of $55.00 exceeds the statutory maximum. In light of La. R.S. 13:1595.2, the trial court’s assessment exceeds the statutory maximum in the sum of five dollars. We, therefore, amend the $55.00 fee assessment and reduce it to $50.00 in accordance with La. R.S. 13:1595.2(A).

DECREE

Based on the foregoing reasons, we affirm the adjudication of A.J. as a delinquent and amend the fee assessment.

AFFIRMED IN PART; AMENDED IN PART

LOBRANO, J., concurs in the result.

      . Pursuant to Rules 5-1 and 5-2 of the Uniform Rules-Courts of Appeal, the initials of the juveniles involved in this matter will be used instead of their names.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . The band instructor did not testify at trial; and therefore, what and how he learned of the incident was never disclosed.

      . Evidence of defendant's daughter's arrest and her mother’s conviction for selling drugs was not a basis for objection on appeal where defendant made no contemporaneous objection to this evidence in the trial court when it was initially produced and defendant, who was charged with selling drugs to same policeman who arrested his daughter and her mother, made conscious decision to allow this evidence of previous arrests in order to provide a basis for defendant’s argument that defendant would not sell drugs to a person he knew was policeman.


author: MAX N. TOBIAS, JR., Judge.

text:
    PRIME INSURANCE COMPANY v. IMPERIAL FIRE AND CASUALTY INSURANCE Company, Gregory Porobil, Gregory M. Porobil, APLC, Gene Alleman and N.O. Elite Leasing, L.L.C.
    No. 2014-CA-0323.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 1, 2014.

      Randall Alan Smith, J. Geoffrey Orms-by, Reagan Reynolds, Smith & Fawer, L.L.C., New Orleans, LA, for Plaintiff/Appellant.
    Brent M. Maggio, Emile Joseph, Jr., Scott F. Davis, Allen & Gooch, Metairie, LA, for Defendant/Appellee.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge MADELEINE M. LANDRIEU).
   MAX N. TOBIAS, JR., Judge.

11 Prime Insurance Company (“Prime”), the plaintiff/appellant, appeals a summary judgment in favor of defendant/appellee, Imperial Fire and Casualty Insurance Company (“Imperial”), in a case involving the taxicab insurance market in Louisiana, and particularly, New Orleans. After reviewing the record and applicable law, we reverse the summary judgment in Imperial’s favor and remand the matter to the trial court for further proceedings.

The facts as alleged by Prime are as follows: The focus of the underlying matter centers primarily around a class action lawsuit filed on 9 December 2002 in the 19th Judicial District Court for the Parish of East Baton Rouge (hereafter “the underlying suit”). At the time that suit was filed, only two companies sold taxicab insurance for the New Orleans market: Prime and Imperial.

The premise of the underlying suit was that Prime was liable to its policyholders because it sold non-compliant insurance policies to taxicab owners and drivers. The lawsuit alleged that Louisiana law, as found in La. R.S. 45:200.4 and 32:866(A), required that cab policies pay full coverage with zero deductible. | ¡¿However, the Prime policies contained a $500 self-insured retention (“S.I.R.”) provision, thereby violating the law. In addition, it was further alleged that the policies violated Louisiana law by requiring the deduction of defense costs. The fact that the policies were non-compliant was never disputed by Prime.

In fact, at the time the underlying suit was filed, Prime was already working with the Louisiana Department of Insurance (“DOI”) to correct the deficiencies, which was accomplished in mid-March 2003. Moreover, during the pendency of the underlying suit, the trial court unequivocally held that the non-compliant policies were automatically reformed, pursuant to Louisiana law. It is clear throughout the almost seven years that the underlying suit was prosecuted that no plaintiff — named or putative — had ever suffered any damage as a result of Prime’s policies. Moreover, Prime believed that Imperial and Gregory Porobil (“Porobil”) (co-defendants in the matter sub judice), allegedly acting in concert with others, filed and continued to prosecute the underlying suit, knowing there were no damages. This, Prime claims, was done in order to achieve an ulterior motive — to damage Prime’s insurance business in New Orleans.

The record reflects that Imperial and Porobil have a long history together. The owner of Imperial — J.E. Brignae (“Brig-nac”) — and Porobil have been friends for over thirty-five years. Porobil began handling Imperial’s legal business when it entered the Louisiana taxicab insurance market in the 1990s and has been its attorney since, managing an average of fifteen of Imperial’s taxi claims each year. In addition, Porobil owned, at all pertinent times, Excell Underwriters, Inc., which Rserved almost exclusively as Imperial’s taxicab insurance. agent. That relationship continued until 2011, when Brignae, and others, purchased Excell from Porobil. Defendant, Gene Alleman (“Alleman”), and Poro-bil also had a close relationship, having been business partners prior to, and at all times during, the underlying suit. In December 2000, Porobil and Alleman started a taxicab dispatch service together — N.O. Transportation Group, L.L.C. (“NOTG”)— that also operated taxicabs servicing New Orleans under the trade names “White Fleet” and “Elk’s Elite.” In addition, Alleman created N.O. Elite Leasing, L.L.C. (“Elite”) around the same time, which, in turn, owned and operated a number of taxicabs and had always insured its cabs with Excell, with the exception of the one-month period at issue in the underlying suit.

Within a year of going into business together, Alleman, allegedly of his own accord, took one of his taxicabs off Poro-bil’s Excell/Imperial insurance policy in order to purchase a month-long policy with Porobil’s competitor, Bennie Jefferson of Maximal Insurance. At the time, Maximal was Prime’s only insurance agent in New Orleans. Alleman testified that he made this move in order to save twenty-five dollars a month and to “stay competitive” in the taxicab operation business. Alle-man also testified that he knew that Maximal was Excell’s direct competitor.

During the one month of Maximal/Prime coverage, Alleman’s taxicab did not get into any accidents, and, therefore, was never exposed to any claim for |4damages or had the occasion to test the policy’s provisions. Nevertheless, after learning of the specifics of the policy, Porobil suggested that Alleman might want to file a class action suit against Prime. Porobil sent Alleman to Andre LaPlace (“LaPlace”), a Baton Rouge attorney, who, Porobil stated, knew more about class actions than he. LaPlace filed the underlying suit on the grounds that Alleman had heard that Prime tried to collect a deductible from another policyholder. The stated basis of the suit was that Prime had allegedly failed to comply with Louisiana’s full coverage requirement under the financial responsibility laws, because the policies of insurance issued by Prime to certain Louisiana taxicab drivers contained a $500 deductible/SIR and deduction of defense costs provisions. Despite the fact that those provisions had never been enforced against Alleman and/or Floyd Bergeron (“Bergeron”), another named plaintiff, the suit sought reimbursement of premium payments, S.I.R. payments, voidance of the insurance policies, attorney’s fees, and costs. At some point thereafter, Porobil enrolled as cocounsel in the underlying suit.

Throughout the pendency of the underlying suit, the class action plaintiffs produced no evidence that they had actually suffered damages. Only four plaintiffs were ever named: Alleman, Bergeron, Elite, and Montaster Girgis (“Girgis”). The originally named plaintiffs were Alle-man, as representative for the insured policyholders, and Bergeron, as representative for third-party claimants. Neither was able to produce any evidence that they were in any way damaged by the Prime Ispolicies. Less than a year after filing the suit, Bergeron and the putative third-party claimants’ actions were dismissed after counsel for the plaintiffs represented to the court that there was no opposition to an Exception of No Cause of Action filed by another defendant to the matter. When Prime was finally able to depose Alleman in 2006, he admitted that he had absolutely no exposure to any third-party claims against him and never had the occasion to test the applicability of the S.I.R. or defense costs provisions. In fact, Alle-man knew of no one who had paid the S.I.R.

In addition, neither Alleman nor Berger-on had an attorney’s fee contract with their lawyers. Neither Alleman nor any of the other plaintiffs paid for any litigation expenses; Alleman had no idea who bore those costs. In his deposition, Porobil stated that he and LaPlace bore all the costs of the proceedings.

On 24 March 2005, Prime filed a motion for summary judgment to show that, prior to the filing of the underlying suit, Prime and the DOI had begun negotiations to correct any defects in the Prime policies. Within two months of the filing of the suit, Prime and the DOI had entered into an agreement that essentially mooted all claims brought in the lawsuit. This final agreement between Prime and the DOI was made known to the plaintiffs on numerous occasions through written discovery, depositions, and Prime’s 2005 motion for summary judgment. Despite | (¡their awareness of Prime’s agreement to correct all of its policies going forward and backward, the plaintiffs continued with their lawsuit.

At the 22 May 2006 hearing on the Prime’s motion for summary judgment, the court found that its 11 April 2005 ruling that the policies violated Louisiana law needed clarification. The court explained, “[T]he auto polices of insurance issued that failed to meet the mandatory insurance requirements, including minimum limits are automatically reformed in accordance with the law.” (“[The S.I.R.] provisions are without legal effect and the policies were reformed as a matter of law.”) Thus, this holding meant that all of Prime’s policyholders who purchased the policies with S.I.R. and defense cost provisions had paid for entirely legal taxicab insurance.

Nevertheless, Porobil continued to prosecute the claims by amending the suit two more times. On September 13, 2007, the fifth amended petition redefined the class action plaintiffs’ theories to add the claim of declaratory relief that the policies be reformed, even though the 2006 ruling held that the policies were automatically reformed. A year later, on 18 October 2008, the suit was amended for the sixth time to add Girgis as another class representative on the purported basis that he was harmed when Prime attempted to collect a $500 deductible from |7him after settling with a third-party claimant. The deductible was never paid by Girgis; thus, no damages were incurred by him.

Finally, on 17 February 2009, almost seven years after the underlying suit had been filed and after several requests for continuance, the plaintiffs’ motion for class certification was heard by the court. At the hearing, Prime presented an overwhelming amount of evidence that established, as already known to Porobil, that no plaintiff had ever been aggrieved and/or damaged. The plaintiffs offered no countervailing evidence or live witnesses to dispute Prime’s position. In the face of such dispositive evidence in favor of Prime, the court ruled against certifying a class, reasoning that the plaintiffs had failed to establish the required “numerosity of plausible claims” in the absence of any economic damage. In support of its ruling, the court held that the “damage claims of the proposed class representatives [were] far from plausible,” and that no named or putative class member was financially damaged by the existence of the $500 S.I.R. language in the policy, as Alleman admitted long ago under oath.

After the class action petition was dismissed, Prime immediately filed a motion for summary judgment to dismiss the individual claims of the three remaining class representatives — Alleman, Elite, and Gir-gis; Prime’s motion for was unopposed. The court, therefore, granted the motion and dismissed the claims of the purported class representatives with prejudice, by judgment dated 22 February 2010 in favor of Prime.

laOnce the underlying suit was dismissed, Prime filed the instant matter against Imperial, Porobil and his law firm, Alleman, and N.O. Elite, alleging malicious prosecution, conspiracy, restraint of trade, and a violation of the Louisiana Unfair Trade Practices Act (“LUTPA”). Once the depositions of the principal actors were taken, Imperial and Porobil filed separate motions for summary judgment; the trial court granted the motion filed by Imperial, but denied the motion filed by Porobil. Porobil has not sought appellate review of the denial of his motion.

Prime filed this appeal arguing that genuine issues of material fact exist concerning Imperial’s involvement in the underlying suit, thereby precluding summary judgment.

In its brief filed to this court, as well as in the court below, Imperial argues that Prime has absolutely no direct evidence to demonstrate that Imperial was involved in the underlying suit, either on its own or through Porobil or Alleman. It. contends that the depositions of the parties involved, including Porobil, Alleman, Brignac, and Prime’s CEO and chairman, Richard J. Lindsey, do not link Imperial to the underlying suit in any way. Thus, Imperial argues that the trial court correctly granted its motion for summary judgment and dismissed it from the instant lawsuit.

We review a summary judgment determination de novo, the same standard applied by the trial court in deciding the motion for summary judgment. Lingoni v. Hibernia National Bank, 09-0737, p. 4 (La.App. 4 Cir. 3/3/10), 33 So.3d 372, 375, writ denied, 10-0975 (La.5/28/10), 36 So.3d 255.

Prime has assigned four errors for our review, each of which addresses a cause of action asserted by it against Imperial. The most important one, whether a civil conspiracy existed between Porobil and Imperial, is discussed first.

The Louisiana Supreme Court has held that conspiracy by itself is not an actionable claim under Louisiana law. Crutcher-Tufts Resources, Inc. v. Tufts, 07-1556, p. 3 (La.App. 4 Cir. 9/17/08), 992 So.2d 1091, 1094 (citing Ross v. Conoco, Inc., 02-0299 (La.10/15/02), 828 So.2d 546). The actionable element of a conspiracy claim is not the conspiracy itself but rather the tort that the conspirators agree to perpetrate and actually commit in whole or in part. Ames v. Ohle, 11-1540, p. 11 (La.App. 4 Cir. 5/23/12), 97 So.3d 386, 393. Prime’s cause of action for civil conspiracy pled in its petition clearly identifies malicious prosecution, restraint of trade, and a violation of LUTPA as the underlying torts that form the basis for the alleged conspiracy.

As we stated in Thomas v. North 40 Land Development, Inc., 04-0610, p. 22 (La.App. 4 Cir. 1/26/05), 894 So.2d 1160, 1174:

Under La. C.C. article 2324, “[h]e who conspires with another person to commit an intentional or willful act is answerable, in solido, with that person, for the damage caused by such act.” La. C.C. art. 2324(A). To establish a conspiracy, a plaintiff is required to provide, evidence of the requisite agreement between the parties. Guidry v. Bank of LaPlace, 94-1758, p. 9 (LaApp. 4 Cir. 9/15/95), 661 So.2d 1052, 1058. Stated otherwise, the plaintiff is required to establish a meeting of the minds or collusion between the parties for the purpose of committing wrongdoing. Id.
| inThe conspiracy action is “for damages caused by acts committed pursuant to a formed conspiracy, and all of the conspirators will be regarded as having assisted or encouraged the performance of those acts.” Chrysler Credit Corp. v. Whitney Nat’l Bank, 51 F.3d 553, 557 (5th Cir.1995). Proof of a conspiracy can be by “actual knowledge of both parties or overt actions with another, or can be inferred from the knowledge of the alleged co-conspirator of the impropriety of the actions taken by the other co-conspirator.” Stephens v. Bail Enforcement of Louisiana, 96-0809, p. 10 (La.App. 1 Cir. 2/14/97), 690 So.2d 124, 131. “The plaintiff must therefore prove an unlawful act and assistance or encouragement that amounts to a conspiracy. The assistance or encouragement must be of such quality and character that a jury would be permitted to infer from it an underlying agreement and act that is the essence of the conspiracy.” Chrysler Credit, 51 F.3d at 557. [Emphasis supplied.]

It is hornbook law that summary judgment is not a substitute for a trial on the merits, and is inappropriate for judicial determination of subjective facts, such as motive, intent, good faith, knowledge and malice; that calls for credibility determinations and the weighing of testimony. Stewart Title of Louisiana v. Chevron, U.S.A., Inc., 12-1369, p. 6 (La.App. 4 Cir. 3/27/13), 112 So.3d 949, 952. Similarly, a motion for summary judgment is rarely appropriate for the disposition of issues requiring a determination of the reasonableness of acts and conduct of parties under all the facts and circumstances of a case. See Greater Lafourche Port Com’n v. James Const. Group, LLC, 11-1548, p. 7 (La.App. 1 Cir. 9/21/12), 104 So.3d 84, 88. Whether a particular fact is in dispute can be seen only in light of the substantive law applicable to the case. Richard v. Hall, 03-1488, p. 4 (La.4/23/04), 874 So.2d 131, 137. As the Supreme Court has explained, a “genuine issue” is a “triable issue,” or one as to which reasonable persons could disagree. Champagne v. Ward, 03-3211, p. 5 (La.1/19/05), 893 So.2d 773, 777. A “material fact” is a fact, the existence or non-existence of which may be essential to a cause of action under the applicable theory of recovery. . Id.

Malicious prosecution requires proof of six elements and the lack of any one of these factors is fatal to such a claim. They are: (1) the commencement or continuance of an original criminal or civil judicial proceeding; (2) its legal causation by the present defendant against plaintiff who was defendant in the original proceeding; (3) its bona fide termination in favor of the present plaintiff; (4) the absence of probable cause for such proceeding; (5) the presence of malice therein; and (6) damage conforming to legal standards resulting to plaintiff. McClanahan v. McClanahan, 09-182, p. 3 (La.App. 5 Cir. 10/13/09), 27 So.3d 862, 864, writ denied, 09-2455 (La.1/29/10), 25 So.3d 833 (citation omitted). Further, the action for malicious prosecution has always been applied only where there has been strict compliance with all essential elements. Id.

We find that Prime has stated a cause of action for malicious prosecution. In response to Imperial’s motion, Prime submitted sufficient evidence to raise a genuine issue of material fact as to whether probable cause existed to justify the continuation of the underlying suit, especially in light of the trial court’s May 2006 ruling.

LUTPA declares it unlawful to engage in “unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” La. R.S. 51:1405 A. It also creates a right of action for any person who suffers any | ^ascertainable loss for a violation of the statute. La. R.S. 51:1409 A; Cheramie Servs. Inc. v. Shell Deepwater Production Inc., 09-1633, pp. 6-7 (La.4/23/10), 35 So.3d 1053, 1057. Claims under LUTPA are not limited to consumers and business competitors, but are available to any person who suffers any ascertainable loss as a result of violations of the statute. Hardy v. Easterling, 47,950, p. 13 (La.App. 2 Cir. 4/10/13), 113 So.3d 1178, 1187. Acts constituting unfair or deceptive trade practices are not specifically defined but are determined on a case-by-case basis. Johnson Const. Co. v. Shaffer, 46,999, p. 5 (La.App. 2 Cir. 2/29/12), 87 So.3d 203, 208; Tyler v. Rapid Cash, LLC, 40,656, p. 9 (La.App. 2 Cir. 5/17/06), 930 So.2d 1135, 1140. The Supreme Court explained:

LUTPA does not prohibit sound business practices, the exercise of permissible business judgment or appropriate free enterprise transactions. The statute does not forbid a business to do what everyone knows a business must do: make money. * * * Finally, the statute does not provide an alternate remedy for simple breaches of contract. There is a great deal of daylight between a breach of contract claim and the egregious behavior the statute proscribes.

Cheramie Servs. v. Shell Deepwater, p. 11, 35 So.3d at 1160, quoting Turner v. Purina Mills Inc., 989 F.2d 1419, 1422 (5th Cir.1993).

We also find that a LUTPA claim has been properly pled. There is evidence that the continuation of the underlying suit may have operated to remove Imperial’s main competitor from the New Orleans taxi cab insurance market. This type of behavior is exactly what the LUTPA seeks to prevent.

Both Porobil and Imperial stood to benefited from the underlying suit that prevented Prime from writing taxi cab policies in the Greater New Orleans area. 113Without Prime and/or Maximal, Porobil would be the only agent writing taxi cab insurance for Prime’s only competitor, thereby profiting from increased commissions. Of course, the benefit to Imperial is obvious.

Reading the record as a whole, we find genuine issues of material fact regarding Imperial’s part in the alleged conspiracy. We note that Porobil stated in his deposition that he most likely told Brignac about the class action lawsuit, a fact that was confirmed by Brignac. When asked why he would have told Brignac, Porobil testified that they talked back and forth about Prime. Despite this, Brignac testified that he was not kept abreast of the lawsuit.

At the time of the class action, Prime was Imperial’s only competitor in the New Orleans taxicab insurance market. As such, we find that the following from Brig-nac’s deposition testimony raises a material issue of fact:

Greg mentioned to me that they had filed a class action suit. Not being an attorney, I didn’t even know what they were doing and couldn’t care less what they were doing at all.

There was also testimony in the underlying lawsuit from Ron Musser, who worked for the DOI and served as Assistant Commissioner of the Office of Financial Solvency, who stated that he learned of the class action lawsuit from Brignac, the owner of Imperial. Brignac, however, could not recall the specifics of the conversation with Mr. Musser.

Imperial argues that Mr. Musser already knew about the illegal policies because Porobil had already filed a complaint against Prime with the DOI on 22 November 2002. However, if Brignac “couldn’t care less” about the lawsuit, why would he call Mr. Musser to tell him about it? We find'Brignac’s testimony [ 1 Regarding Imperial’s interest and/or involvement in the underlying suit contradictory, thereby creating a genuine issue of material fact.

Credibility of a witness is a question of fact. In determining a motion for summary judgment, the court must assume that all affiants are credible. Hutchinson v. Knights of Columbus, Council No. 5747, 03-1533, p. 8 (La.2/20/04), 866 So.2d 228, 234. Facts are “material” if they are determinative of the outcome of the dispute. Penalber v. Blount, 550 So.2d 577, 583 (La.1989). If reasonable minds could differ as to an issue of material fact, summary judgment is improper. Woodland Properties, LLC v. New Orleans Sewerage and Water Board, 10-0331, p. 4 (La.App. 4 Cir. 9/29/10), 49 So.3d 443, 445.

We find that Imperial’s involvement, or lack thereof, in the underlying class action suit is a question of fact. We agree that Prime’s evidence is far from overwhelming, however, we view this as a case to be determined by a trier of fact that is capable of determining the credibility of the witnesses.

For the reasons stated above, we reverse the summary judgment of the trial court and remand the matter for further proceedings consistent with this opinion.

REVERSED; REMANDED.

      . During his deposition, Porobil downplayed the fact that Imperial's owner bought his company, testifying instead that Francis Heit-meier, a former state senator, and others he did not know, made the purchase.

      . Girgis was added as a party-plaintiff very late in the litigation. Alleman was neither familiar with the man nor knew he had been added as a plaintiff to the underlying suit.

      . Porobil testified that he and LaPlace planned to recoup their costs and attorney's fees from the award to the class. However, once class certification was denied, no reimbursement and award was possible. Prime's CEO and chairman, Richard J. Lindsey, testified that he spent approximately $350,000 in attorney’s fees and costs, defending the case. He also testified that when the underlying suit was filed, Prime’s business in Louisiana had grown to $1.7 million. As a result of the suit, it dropped to $12,000 in premiums.

      . Alleman stated that he was not aware that in late 2002 or early 2003, Prime had worked out a reformation of its policy with the DOI such that the $500 S.I.R. deductible would not be applied to third-party issues. Alleman stated that if such was the fact, he would have wanted the lawsuit dismissed.

      .Porobil testified in his deposition that, after the trial court's 2006 ruling, he thought on a couple of occasions that they should dismiss the lawsuit. He was not asked why he didn’t do so. When asked if he ever approached Prime to settle the matter, Porobil stated “I don’t think Prime ever wanted to resolve it.” Alleman was unaware that the lawsuit continued for almost seven years from the date of filing; he thought it had been dismissed.

      . Alleman was unaware of this as well.


author: JOY COSSICH LOBRANO, Judge.

text:
    Jason D. PARKER v. Jodie SCHNEIDER.
    No. 2014-CA-0232.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 1, 2014.

      Irl R. Silverstein, The Silverstein Law Firm, APLC, Gretna, LA, for Plaintiff/Ap-pellee.
    Thomas Edward Loehn, Boggs Loehn & Rodrigue, Metairie, LA, for DefendantyAp-pellant.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge MADELEINE M. LANDRIEU, Judge JOY COSSICH LOBRANO).
   JOY COSSICH LOBRANO, Judge.

|; Defendant, Jodie Schneider, appeals the trial court’s November 14, 2013 default judgment in favor of plaintiff, Jason D. Parker, for sums allegedly due to Parker as the holder of certain promissory notes. For reasons that follow, we vacate and set aside the default judgment, and remand this matter for further proceedings.

The record shows that Parker filed a petition alleging that he is the holder of fourteen (14) promissory notes executed by Schneider. Copies of the notes were attached to the petition. Parker filed a first amending and supplemental petition, alleging that Schneider is now a resident of Florida. Parker later filed a second amending and supplemental petition, alleging that he is the holder of seventeen (17) notes executed by Schneider. The record shows that Schneider was served ¡¡.pursuant to the provisions of the Louisiana Long-Arm Statute, La. R.S. 13:3201 et seq., with certified copies of the original petition, and first and second amending and supplemental petitions. Schneider did not answer the lawsuit, and Parker subsequently obtained a default against Schneider. By judgment dated November 14, 2013, the trial court confirmed the default judgment in favor of Parker, and against Schneider, in the full sum of $99,713.90, together with interest as set forth in the filed promissory notes from execution of each note until paid, together with attorney’s fees and all costs of the proceedings. Schneider now appeals.

On appeal, Schneider sets forth the following assignments of error:

(1) the trial court erred in granting a default judgment in favor of Parker based upon an affidavit executed by Parker’s counsel;
(2) the trial court erred in granting judgment in favor of Parker and against Schneider based upon the alleged promissory notes that contain provisions requiring the payment of interest, which is far in excess of that permissible under Louisiana law; and
(3) the trial court erred in its award of attorney’s fees.

In McIntyre v. Sussman, 2010-1281 (La.App. 4 Cir. 10/26/11), 76 So.3d 1257, this Court stated the standard of review for confirmation of default judgments as follows:

In reviewing the confirmation of a default judgment, “an appellate, court is restricted solely to determining whether the record contains sufficient evidence to support a prima facie case.” Gresham v. Prod. Mgmt., Inc., 02-1228, p. 3 (La.App. 4 Cir. 2/11/04), 868 So.2d 171, 175. “This determination is a factual one governed by the manifest error standard of review.” Arias v. Stolthaven New Orleans, LLC, 08-1111, p. 5 (La.5/5/09), 9 So.3d 815, 818. “When the court of appeal finds that a reversible legal error or manifest error of material fact was made in the trial court, the court of appeal is required to determine |sthe facts de novo from the entire record and render a judgment on the merits.” Id.

Id., p. 5, 76 So.3d at 1261.

La. C.C.P. article 1702A states that “[a] judgment of default must be confirmed by proof of the demand that is sufficient to establish a prima facie case and that is admitted on the record prior to confirmation.” The elements of a prima facie case are established with competent evidence, as fully as though each of the allegations in the petition were denied by the defendant. Arias v. Stolthaven New Orleans, L.L.C., 2008-1111, p. 7 (La.5/5/09), 9 So.3d 815, 820, citing Sessions & Fishman v. Liquid Air Corp., 616 So.2d 1254, 1258 (La.1993) and Thibodeaux v. Burton, 538 So.2d 1001, 1004 (La.1989). La.C.C.P. article 1702B(3) states:

When the sura due is on an open account or a promissory note or other negotiable instrument, an affidavit of the correctness thereof shall be prima facie proof. When the demand is based upon a promissory note or other negotiable instrument, no proof of any signature thereon shall be required.

In this suit on promissory notes, the affidavit offered by the plaintiff as to the correctness of the sums allegedly due on the notes was executed by Parker’s attorney, Irl R. Silverstein. In this document, entitled “Affidavit of Correctness of Account and/or Note and Non-Military Service,” Silverstein stated “that he is the Attorney for JASON D. PARKER, plaintiff in the above entitled and numbered cause; that he is familiar and well acquainted with the account of JODIE SCHNEIDER in the above captioned cause; that plaintiff is the owner and holder (in due course), for value, of the promissory notes herein sued upon; that the true and correct amount owed to plaintiff on said notes by the above named defendant is $99,713.90, plus interest and attorney’s fees as prayed for, and all costs of these proceedings.” Schneider’s first assignment of error is that the trial court erred in | confirming default judgment in favor of Parker based on the affidavit executed by Parker’s attorney. We agree.

Affidavits must be based upon the personal knowledge of the affiant. See La. C.E. article 602; W & W Clarklift, Inc. v. Svendsen, 535 So.2d 1325 (La.App. 5 Cir.1988); see also Arkla, Inc. v. Maddox and May Brothers Casing Service, Inc., 624 So.2d 34 (La.App. 2 Cir.1993); Carte Blanche Plumbing and Heating Repair Service, Inc. v. Van Haeler, 337 So.2d 654 (La.App. 4 Cir.1976); La. C.C.P. article 967. In Foundation Materials, Inc. v. Carrollton Mid-City Investors, L.L.C., 2010-0542 (La.App. 4 Cir. 5/25/11), 66 So.3d 1230, this Court explained the personal knowledge requirement for affidavits as follows:

The affiant must affirmatively establish that he is competent to testify to the matters stated by a factual averment showing how he came by such knowledge. Barnes v. Sun Oil Co., 362 So.2d 761, 763 (La.1978). Personal knowledge means something the witness actually saw or heard, as distinguished from what he learned from some other person or source. Hibernia Nat. Bank v. Rivera, 07-962, pp. 8-9 (La.App. 5 Cir. 9/30/08), 996 So.2d 534, 539. The purpose of the requirement of “personal knowledge” is to limit the affidavit to facts which the affiant saw, heard, or perceived with his own senses. Id.

Id., p. 7, 66 So.3d at 1234-1235.

We conclude that Silverstein’s “Affidavit of Correctness of Account and/or Note and Non-Military Service” fails to establish a prima facie case to prove the demand set forth in Parker’s petition on promissory notes. The affidavit does not show that Silverstein has personal knowledge of the sums allegedly owed to Parker by Schneider. Silverstein’s vague and conclusory statement, that he is “familiar and well acquainted with the account” of Schneider, is insufficient to support confirmation of a default judgment.

| SFor these reasons, we vacate and set aside the default judgment confirmed in Parker’s favor, and remand this matter for further proceedings. Because of our finding that the trial court erred in granting the default judgment based on the affidavit of Parker’s attorney, we need not address Schneider’s remaining assignments of error.

VACATED AND REMANDED.

      . Schneider’s brief includes statements regarding her relationship with Parker, but the record does not include any such information. Schneider also attached a document to her brief that was not introduced at trial. As a court of record, we must limit our review to that which is in the record before us. Kerrigan v. Bourgeois, 2008-1457, pp. 4-5 (La.App. 4 Cir. 7/15/09), 16 So.3d 612, 614, citing Ventura v. Rubio, 2000-0682, pp. 3-4 (La. App. 4 Cir. 3/16/01), 785 So.2d 880, 885. Appellate briefs and attachments thereto are not part of the record on appeal; therefore, this Court has no authority to consider on appeal facts referred to in appellate briefs or in exhibits attached thereto, if those facts are not in the record on appeal. Miccol Enterprises, Inc. v. City of New Orleans, 2012-0864, p. 7 (La.App. 4 Cir. 12/19/12), 106 So.3d 746, 750-751.