author: GREMILLION, Judge.

text:
    STATE in the Interest of J.R.B.
    No. JAK 08-1428.
    Court of Appeal of Louisiana, Third Circuit.
    March 4, 2009.
    Hon. J. Reed Walters, District Attorney-28th JDC, Jena, LA, for Plaintiff/Appellant, State of Louisiana.
    David Jeffrey Utter, Southern Poverty Law Center, Montgomery, AL, Henry Clay Walker, Louisiana Public Defender Bd., Baton Rouge, LA, Stanley Joseph Adelman, Johnathan David King, DLA Piper U.S. LLP, Chicago, IL, for Defendant/Appellee, J.R.B.
    Court composed of SYLVIA R. COOKS, J. DAVID PAINTER, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

| Nlie State of Louisiana has filed seven applications for appellate review of a ruling on five Defendants’ motions to recuse the Honorable J.P. Mauffray, Jr. from presiding over their trials. The five Defendants are those individuals otherwise known as the “Jena Six.”

One of the Defendants in this case is a juvenile, J.R.B. Besides the charges that came out of the “Jena Six” incident, aggravated second degree battery and conspiracy to commit second degree battery, lower court docket number J-3868, the juvenile has two additional matters pending before the trial court, docket numbers J-3855 and J-3856. The juvenile had been adjudicated in these latter two docket numbers and is now looking at a probation revocation proceeding. Accordingly, the State has filed three appeals in his case: JAK08-1428, JAK08-1429, and JAK08-1430. The remaining four Defendants are adults: Robert Bailey, KA08-1431, Carwin Jones, KA08-1432, Bryant Ray Purvis, KA08-1433, and Theodore Shaw, KA08-1434. The two charges pending in the adult Defendants’ cases are the same as the juvenile’s and came out of the same “Jena Six” incident.

All five Defendants filed motions to re-cuse Judge Mauffray. The Honorable Thomas Yeager was appointed ad hoc judge by the supreme court to hear the motions. For the purpose of the motions, one hearing was held on May 30, 2008. Following testimony, Judge Yeager took the matter under advisement and, on July 31, 2008, granted the motions. The State now appeals Judge Yeager’s ruling, asserting that the judge erred in the standard used in determining there was sufficient grounds for a recusal.

|2Because this matter is moot, we will dismiss these appeals without reaching their substance. There are only two facts relevant to our ruling.

First, LaSalle Parish has elected a new judge. This court takes judicial notice of the Louisiana Secretary of State’s “Elected Official Database.” State v. Carpenter, 00-436 (La.App. 3 Cir. 10/18/2000), 772 So.2d 200 and La.Code Evid. art. 201. That publication indicates that: 1) Judge J.P. Mauffray, Jr.’s term of office ended on December 31, 2008; 2) The current judge for Louisiana’s 28th Judicial District is the Honorable J. Christopher Peters; and, 3) Judge Peters’ term of office ends on December 31, 2014.

Second, the “Jena Six” have a new judge. On August 4, 2008, following Judge Yeager’s grant of Defendants’ motions to recuse Judge Mauffray, the Louisiana Supreme Court signed an order, as follows:

Judge Thomas M. Yeager, Division “B”, Ninth Judicial District Court, Parish of Rapides, be and he is hereby assigned as judge ad hoc of the Twenty-Eighth Judicial District Court, Parish of LaSalle, for the purpose of hearing and disposing of the matters entitled “State of Louisiana vs. Theodore R. Shaw” No. 82,017; “State of Louisiana vs. Robert Bailey,” No. 82,014; “State of Louisiana vs. Carwin Jones,” No. 82,015; “State of Louisiana vs. Bryant Ray Purvis,” No. 82,016; and “State of Louisiana In the Interest of [J.R.B.],” No. J-3855, 3856, and 3868 on the docket of said court, subject to the completion of any unfinished business.

Based on the current circumstances, Judge Mauffray will no longer preside over any matter related to the “Jena Six.” Thus, this court’s ruling on whether Judge Mauffray should have been recused is moot. Accordingly, we dismiss these seven [ .¡appeals.

APPEALS DISMISSED.

      . Pursuant to Uniform Rules — Courts of Appeal, Rule 5-2, we use initials to protect the identity of the juvenile.

      . Defendants point out that Judge Mauffray has suggested the possibility that he could be appointed ad hoc to complete all matters related to the "Jena Six." However, based on the current and standing order issued by the supreme court, Judge Yeager is the ad hoc judge. If the supreme court later rescinds its appoinlment of Judge Yeager, Judge Peters will have jurisdiction unless and until he re-cuses himself or is recused. The possibility of an ad hoc appointment for Judge Mauffray is mere speculation that this court will not consider.


source: Caselaw Access Project

license: Public Domain

text:
    STATE in the Interest of J.R.B.
    No. JAK 08-1429.
    Court of Appeal of Louisiana, Third Circuit.
    March 4, 2009.

      J. Reed Walters, District Attorney,-28th JDC, Jena, LA, for Plaintiff/Appellant, State of Louisiana.
    David Jeffrey Utter, Southern Poverty Law Center, Montgomery, AL, Henry Clay Walker, Louisiana Public Defender Bd., Baton Rouge, LA, Stanley Joseph Adelman, Johnathan David King, DLA Piper U.S. LLP, Chicago, IL, for Defendant/Appellee, J.R.B.
    Court composed of SYLVIA R. COOKS, J. DAVID PAINTER, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

For the reasons assigned in the companion case of State in the Interest of J.R.B., 08-1428 (La.App. 3 Cir. 3/4/09), 11 So.3d 2, these appeals are dismissed.

APPEALS DISMISSED.


text:
    STATE in The Interest of J.R.B.
    No. JAK 08-1430.
    Court of Appeal of Louisiana, Third Circuit.
    March 4, 2009.
    J. Reed Walters, District Attorney-28th JDC, Jena, LA, for Plaintiff/Appellant, State of Louisiana.
    David Jeffrey Utter, Southern Poverty Law Center, Montgomery, AL, Henry Clay Walker, Louisiana Public Defender Bd., Baton Rouge, LA, Stanley Joseph Adelman, Johnathan David King, DLA Piper U.S. LLP, Chicago, IL, for Defendant/Appellee, J.R.B.
    Court composed of SYLVIA R. COOKS, J. DAVID PAINTER, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

For the reasons assigned in the companion case of State in the Interest of J.R.B., 08-1428 (La.App. 3 Cir. 3/4/09), 11 So.3d 2, these appeals are dismissed.

APPEALS DISMISSED.


text:
    STATE of Louisiana v. Robert W. BAILEY, Jr.
    No. JAK 08-1431.
    Court of Appeal of Louisiana, Third Circuit.
    March 4, 2009.

      Hon. J. Reed Walters, District Attorney-28th JDC, Jena, LA, for Plaintffi/Ap-pellant, State of Louisiana.
    David Jeffrey Utter, Southern Poverty Law Center, Montgomery, AL, Henry Clay Walker, Louisiana Public Defender Bd., Baton Rouge, LA, Stanley Joseph Adelman, Johnathan David King, DLA Piper U.S. LLP, Chicago, IL, for Defendant/Appellee, J.R.B.
    Court composed of SYLVIA R. COOKS, J. DAVID PAINTER, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

For the reasons assigned in the companion case of State in the Interest of J.R.B., 08-1428 (La.App. 3 Cir. 3/4/09), 11 So.3d 2, these appeals are dismissed.

APPEALS DISMISSED.


text:
    STATE of Louisiana v. Carwin S. JONES.
    No. JAK 08-1432.
    Court of Appeal of Louisiana, Third Circuit.
    March 4, 2009.
    J. Reed Walters, District Attorney-28th JDC, Jena, LA, for Plaintiff/Appellant, State of Louisiana.
    David Jeffrey Utter, Southern Poverty Law Center, Montgomery, AL, Henry Clay Walker, Louisiana Public Defender Bd., Baton Rouge, LA, Stanley Joseph Adelman, Johnathan David King, DLA Piper U.S. LLP, Chicago, IL, for Defendant/Appellee, J.R.B.
    Court composed of SYLVIA R. COOKS, J. DAVID PAINTER, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

APPEALS DISMISSED.

For the reasons assigned in the companion case of State in the Interest of J.R.B., 08-1428 (La.App. 3 Cir. 3/4/09), 11 So.3d 2, these appeals are dismissed.

APPEALS DISMISSED.


text:
    STATE of Louisiana v. Bryant Ray PURVIS.
    No. JAK 08-1433.
    Court of Appeal of Louisiana, Third Circuit.
    March 4, 2009.

      Hon. J. Reed Walters, District Attorney-28th JDC, Jena, LA, for Plaintiff/Appellant, State of Louisiana.
    David Jeffrey Utter, Southern Poverty Law Center, Montgomery, AL, Henry Clay Walker, Louisiana Public Defender Bd., Baton Rouge, LA, Stanley Joseph Adehnan, Johnathan David King, DLA Piper U.S. LLP, Chicago, IL, for Defendant/Appellee, J.R.B.
    Court composed of SYLVIA R. COOKS, J. DAVID PAINTER, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

For the reasons assigned in the companion case of State in the Interest of J.R.B., 08-1428 (La.App. 3 Cir. 3/4/09), 11 So.3d 2, these appeals are dismissed.

APPEALS DISMISSED.


text:
    STATE of Louisiana v. Theodore R. SHAW.
    No. JAK 08-1434.
    Court of Appeal of Louisiana, Third Circuit.
    March 4, 2009.
    Hon. J. Reed Walters, District Attorney,-28th JDC, Jena, LA, for Plaintiff/Appellant, State of Louisiana.
    David Jeffrey Utter, Southern Poverty Law Center, Montgomery, AL, Henry Clay Walker, Louisiana Public Defender, Baton Rouge, LA, Stanley Joseph Adel-man, Johnathan David King, DLA Piper U.S. LLP, Chicago, IL, for Defendant/Ap-pellee, J.R.B.
    Court composed of SYLVIA R. COOKS, J. DAVID PAINTER, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

For the reasons assigned in the companion case of State in the Interest of J.R.B., 08-1428 (La.App. 3 Cir. 3/4/09), 11 So.3d 2, these appeals are dismissed.

APPEALS DISMISSED.


author: MICHAEL E. KIRBY, Judge. MICHAEL E. KIRBY, Judge.

text:
    Andrea PADILLA v. Louis SCHWARTZ.
    No. 2006-CA-1517.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 11, 2009.
    Order Granting Rehearing and Amending Decree April 15, 2009.

      James E. Uschold, James E. Usehold, PLC, New Orleans, LA, for Plaintiff/Appellant.
    Jake A. Airey, S. Michele Blanchard, Airey & Blanchard, L.C., Slidell, LA, for Appellees (Ronald G. Burger and Lynda Ogden Burger).
    (Court composed of Judge CHARLES R. JONES, Judge MICHAEL E. KIRBY, Judge DAVID S. GORBATY).
   MICHAEL E. KIRBY, Judge.

|,Andrea Padilla appeals a Civil District Court judgment of July 17, 2006 that denied her motion for summary judgment and granted the motion for summary judgment filed by the intervenors, Ronald and Lynda Burger (“the Burgers”). The judgment dismissed Padilla’s suit to quiet tax title, declared null the tax sale of the property in dispute, and cancelled Padilla’s tax sale deed upon the Burgers’ paying her the lawful redemption amount. In this Court, Padilla has filed peremptory exceptions of prescription, no cause of action and no right of action to the Burgers’ petition of intervention.

FACTS AND PROCEDRUAL HISTORY

By Act of Credit Sale dated August 1, 1996, the Burgers sold Louis Schwartz certain property bearing the municipal address 11112 Haynes Blvd., New Orleans, LA (“the property”). The vendor-financed instrument was filed and duly registered in the conveyance records of Orleans Parish, and clearly states that the Burgers held a mortgage and vendor’s privilege against the property.

|2On July 19, 2001, the property was declared blighted and a public nuisance by an administrative hearing officer for the City of New Orleans in a case captioned “The City of New Orleans v. Louis Schwartz, 11112 Hayne Blvd., New Orleans, LA 70128.” The notice of Judgment with respect to that adjudication reveals that a fine and costs were assessed against Schwartz. It also states that because the property was found to be blighted and a public nuisance it was eligible for expropriation by the New Orleans Redevelopment Authority; eligible for demolition; and, that failure to pay the assessed fine and costs would result in a lien being placed against the property. The notice further states that “[fjailure to pay the lien along with your next ad valorem tax bill may result in this property being sold in accordance with laws that govern tax sales of immovable property.”

Following an auction on November 14, 2001, the Collector of Ad Valorem Taxes for the city of New Orleans executed a tax deed on June 4, 2002 in favor of Padilla, transferring all of Schwartz’s right, title and interest in the property for non-payment of property taxes for the years 1997, 1998,1999 and 2000. This tax deed specifically states that the owner, Schwartz, could redeem the property at any time within three years of the filing of the deed in the conveyance records of Orleans Parish. The deed was filed on June 5, 2002.

On February 13, 2004, Padilla filed a Petition to Quiet Tax Title pursuant to La. R.S. 47:2228, which formerly provided that once three (3) years had elapsed |sthe purchaser of property at a tax sale could file suit to quiet title. The trial court appointed a curator ad hoc to represent Schwartz based upon Padilla’s allegation that Schwartz was last known to be a resident of New Orleans but his then current residence was unknown.

In May 2004, the Burgers discovered that the property had been sold at the tax sale and made a redemption request to Padilla for an accounting of the amounts owed to her. Padilla refused to provide the accounting. On July 28, 2004, the Burgers intervened in the suit to quiet tax title, naming as defendants Padilla, the City of New Orleans and Schwartz, through his curator ad hoc, to assert their claims as recorded mortgage holders on the property at issue.

On May 17, 2005, Padilla filed a motion for summary judgment, alleging that because the property had been adjudicated blighted, an eighteen month redemption period applied pursuant to La. Const. Art. VII, § 25(B)(2). Thus, Padilla contends, the Burgers had eighteen months from June 5, 2002 to timely redeem the property, but failed to so.

On November 21, 2005, the Burgers filed a motion for summary judgment based upon a violation of their due process rights as mortgage holders to receive notice of the proposed tax sale. They claimed the violation of their due process rights made the tax sale an absolute nullity. On May 25, 2006, the trial court heard the motions and determined that it first had to ascertain whether the city of New Orleans had provided notice of the pending tax sale in compliance with constitutional due process requirements. The trial court ordered the city to produce 14any and all information concerning notices. At a subsequent hearing, the city failed to present any evidence that the Burgers or Schwarz had received notice of the pending tax sale. The trial court then dismissed Padilla’s Petition to Quiet Title, rendered the tax sale an absolute nullity, and ordered that the tax sale deed be canceled upon payment of the lawful redemption amount.

ASSIGNMENTS OF ERROR

In addition to the peremptory exceptions noted above, Padilla appeals the trial court judgment, raising four (4) assignments of error: 1) trial court erred in denying her motion for summary judgment; 2) trial court erred in hearing the Burgers’ motion; 3) trial court erred in granting their motion; and, 4) trial court erred in entering a final judgment annulling the tax sale without entering a money judgment awarding her the amounts owed if the tax sale was nullified.

STANDARD OF REVIEW

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Costello v. Hardy, 2003-1146, p. 8 (La.1/21/04), 864 So.2d 129, 137; Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342 (La. 1991). A court must grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). Summary | .Judgment procedure is favored and is designed to secure the just, speedy and inexpensive determination of actions. La. C.C.P. art. 966(A)(2); Samaha v. Rau, 2007-1726, p. 4 (La.2/26/08), 977 So.2d 880, 883. La. C.C.P. art. 966(C) provides:

(1) After adequate discovery or after a case is set for trial, a motion which shows that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law shall be granted.
(2) The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Therefore, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

(Emphasis added). Samaha, 2007-1726 at p. 5, 977 So.2d at 883.

DISCUSSION

On appeal, Padilla argues the issue is not whether the Burgers’ due process rights to notice were violated but whether that issue was even before the trial court. Padilla reasons that the Burgers’ intervention was premised on a single issue, i.e., whether the three year redemption period of La. Const. Art. VII, § 25(B)(1) had accrued. Padilla contends that the proper redemptive period is eighteen months under Art. VII, § 25(B)(2), because the property had been declared blighted on August 3, 2001, and, therefore, the Burgers failed to timely exercise any rights they may have had to redeem the property. The Burgers, on the other hand, argue that | (ithe tax sale was absolutely null as a result of the violation of their due process right to receive notice. Since the sale was an absolute nullity, they contend the redemption periods established by La. Const. Art. VII, § 25(B) never commenced to run.

First we will address the procedural arguments, and then the substantive issues.

Louisiana Const. Art. VII, § 25(B), provides:

* * *
(B) Redemption. (1) The property sold shall be redeemable for three years after the date of recordation of the tax sale, by paying the price given, including costs, five percent penalty thereon, and interest at the rate of one percent per month until redemption.
(2) In the city of New Orleans, when such property sold is residential or commercial property which is abandoned propei'ty as defined by R.S. 33:4720.12(1) or blighted property as defined by Act 155 of the 1984 Regular Session, it shall be redeemable for eighteen months after the date of recordation of the tax sale by payment in accordance with subparagraph (1) of this paragraph.

After reviewing the record, we find no merit to Padilla’s argument that the Burgers had only eighteen months from the recordation of the tax sale pursuant to La. Const. Art. VII, § 25(B)(2) to exercise their right of redemption. The record contains no evidence that the property was actually sold pursuant to the city’s authority to sell blighted property. The notice of judgment upon which Padilla relies uses the permissive “may” rather than the mandatory “shall” when speaking of the potential sale of the property. Further, a reading of the actual tax sale deed of June 4, 2002 reveals the sale was in fact made for non-payment of ad valorem taxes, not for failure to pay a lien associated with the blighted property declaration. There is no mention therein of the fine and costs for blighted property. Thus, we |7eoncIude the sale was for non-payment of ad valo-rem taxes subject to the peremptive period of three years. For the suggested eighteen month redemption period to apply, the sale would have had to occur under the statutory authority governing sales of blighted property. That did not occur in this case.

Next we address whether or not the tax sale was valid.

Under the Fourteenth Amendment to the United States Constitution and La. Const. Art. I, 2, a person is protected against a deprivation of his life, liberty or property without due process of law. Hamilton v. Royal International Petroleum Corporation, 2005-846, p. 9 (La.2/22/06), 934 So.2d 25, 32 (citation omitted). The fundamental requirement of procedural due process is notice and the opportunity to be heard at a meaningful time and in a meaningful manner. Id.

In Mennonite Board of Missions v. Adams, 462 U.S. 791, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983), a case with facts similar to the present case, the U.S. Supreme Court interpreted the Due Process Clause with respect to the rights of a mortgagee and the notice requirements of an Indiana statute. In that case, the Mennonite Board of Missions (“Mennonite”) was the mortgagee of record of a certain parcel of property. The property owner failed to pay her taxes and the property was sold at a tax sale. Indiana law did not require that notice be given by mail or personal service to a mortgagee and Mennonite was not given any notice of the impending tax sale. Relying on its earlier decision in Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950), the|sSupreme Court held that “a mortgagee possesses a substantial property interest that is significantly affected by a tax sale” and therefore “is entitled to notice reasonably calculated to apprise him of a pending tax sale.” Mennonite, 462 U.S. at 798, 103 S.Ct. at 2711. Regarding the publication of notice of the impending tax sale in a newspaper and the posting of notice in the county courthouse, the Court stated:

When the mortgagee is identified in a mortgage that is publicly recorded, constructive notice by publication must be supplemented by notice mailed to the mortgagee’s last known available address, or by personal service. But unless the mortgagee is not reasonably identifiable, constructive notice alone does not satisfy the mandate of Mid-lane.

Id. (Footnote omitted). The Court further held that:

Notice by mail or other means as certain to ensure actual notice is a minimum constitutional precondition to a proceeding which will adversely affect the liberty or property interests of any party, whether unlettered or well versed in commercial practice, if its name and address are reasonably ascertainable. Furthermore, a mortgagee’s knowledge of delinquency in the payment of taxes is not equivalent to notice that a tax sale is pending.

Id., 462 U.S. at 800, 103 S.Ct. at 2712.

In her Petition to Quiet Title, Padilla alleges she purchased the property at a tax sale conducted by the city. La. Const. Art. VII, 25 requires that prior to conducting a tax sale of property for nonpayment of taxes, the state and/or city must give notice to the delinquent owners in the manner provided by law. La. R.S. 47:2180 provided the manner of giving notice to delinquent owners regarding immovable property.- Furthermore, pursuant to the Supreme Courts holding in | ^Mennonite, supra, a mortgagee, who is reasonably ascertainable, is entitled to prior notice of an impending tax sale.

|inIn support of their motion for summary judgment arguing the tax sale is absolutely null for lack of notice, the Burgers submitted a copy of the recorded mortgage instrument evidencing the credit sale of the Hayne Blvd. property to Schwartz. The document clearly identifies the Burgers as the SELLER and MORTGAGEE and lists their domicile as Orleans Parish. It identifies Schwartz as the PURCHASER and MORTGAGOR and as a domiciliary of Orleans Parish.

The Burgers also presented the affidavit of Ron Burger, who averred that on the date of the act of sale, Schwartz owed a balance of $39,000.00 with interest, and was currently in default. Burger stated that in 1998, 1999, and 2000, the Burgers never received any written notice from the city that taxes were due on the property, and they never received any prior notice, either written or by personal service, of the November 14, 2001 tax sale.

Burger averred that he made two attempts to redeem the property from Padilla, but she refused the requests. He then contacted Walter J. OBrien, Jr., Finance Operations Manager of the Bureau of the Treasury, Department of Finance for the City of New Orleans, in December 2004, to redeem the property, and presented him with a certified check in the amount of $12,783.88, the redemption price. OBrien refused the payment and declined to issue Burger a certificate of redemption. Instead he gave Burger a copy of a Notice of Judgment that evidenced the property had been adjudicated blighted.

In addition to Ron Burgers affidavit, the Burgers submitted an affidavit from Stephen C. Barnes, the abstractor retained by them to conduct an abstract of the property. Barnes averred that his search of the public records disclosed no recordation of the judgment by the Administrative Adjudication Bureau for Public | nHealth, Housing and Environmental Violations adjudicating the property blighted. He further stated that he had requested from Mr. OBrien copies of any records that the city of New Orleans had regarding notice documents of the tax deficiency and/or the November 14, 2001 tax sale. In response, the city informed Barnes that it had no such records.

Neither Padilla nor the city submitted any evidence that disputes the evidence offered by the Burgers to prove they were never given prior notice of the November 14, 2001 tax sale. Absent any evidence that raises a genuine issue of material fact as to whether or not the city gave the Burgers prior notice of the tax sale, we conclude, as did the trial court, that, as a matter of law, the Fourteenth Amendment due process requirement was not satisfied in this case and, therefore, the tax sale is an absolute nullity.

Padilla argues that Mennonite only requires notice to be given to mortgagees whose names and addresses are known or “reasonably ascertainable” and, therefore, is inapplicable to this case, as the Burgers’ addresses are not included in the mortgage documents.

As previously mentioned, the recorded mortgage instrument identifies the Burgers in the following manner:

Lynda Ogden, wife of/and Ronald G. Burger, domiciled in the Parish of Orleans, State of Louisiana; hereinafter referred to as SELLER and/or MORTGAGEE

112Given that the mortgagees names are clearly identified, the question becomes whether the subsequent language, domiciled in the Parish of Orleans, State of Louisiana, meets the test of being reasonably ascertainable for due process notification purposes.

In Mennonite, the majority opinion, noted:

In this case, the mortgage on file with the county recorder identified the mortgagee only as “MENNONITE BOARD OF MISSIONS a corporation, of Wayne County, in the State of Ohio.” We assume that the mortgagee’s address could have been ascertained by reasonably diligent efforts. See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 317, 70 S.Ct. 652, 658-659, 94 L.Ed. 865 (1950). Simply mailing a letter to “Mennonite Board of Missions, Wayne County, Ohio,” quite likely would have provided actual notice, given “the well-known skill of postal officials and employees in making proper delivery of letters defectively addressed.” Grannis v. Ordean, 234 U.S. 385, 397-398, 34 S.Ct. 779, 784, 58 L.Ed. 1363 (1914). We do not suggest, however, that a governmental body is required to undertake extraordinary efforts to discover the identity and whereabouts of a mortgagee whose identity is not in the public record.

Mennonite, 462 U.S. at 798, 103 S.Ct. at 2711 n. 4.

This Court is cognizant of the tremendous difficulties presented to property owners and mortgage interests in the greater New Orleans area post-Hurricane Katrina. One can argue that imposing a high burden of notification on the local and state governments will greatly increase the administrative costs of establishing some degree of normalcy to the region. Nevertheless, considering the advances in information technology and other available resources, the city through reasonable diligence could have ascertained the Burgers physical and/or mailing address to give them notice of the pending tax sale. The similarity of identification between the mortgagee in Mennonite and the mortgagees in this case are such that we can | lsconclude the city did not afford the Burgers the minimum due process protection recognized in Mennonite.

Also, we find no merit to Padillas argument that the Burgers waived their right to notice of the tax sale because they failed to request notice of the tax sale pursuant to La. R.S. 9:5201 or to comply with La. R.S. 47:2180.1 (which formerly required mortgagees to notify tax collectors if they wished to be given notice of the tax delinquency on immovable property).

The failure of the Burgers to request notice of a tax sale or tax delinquency is of no consequence here. The failure of the mortgagee to request notice does not constitute a waiver of its due process rights. Davis Oil Company v. Mills, 873 F.2d 774, 787-788 (5th Cir.1989), cert. denied, 493 U.S. 937, 110 S.Ct. 331, 107 L.Ed.2d 321 (1989).[T]he requirements of [La. R.S.] 47:2180.1 cannot be read to shift the burden of notice from the state actor to the party with the property interest (an affirmative duty of the property owner to request notice as compared with the constitutional duty of the state actor to provide notice). Federal Deposit Insurance Corporation v. Lee, 933 F.Supp. 577, 581 (E.D.La.1996), citing Small Engine Shop Inc. v. Cascio, 878 F.2d 883, 890 (5th Cir. 1989). This statute simply supplements Louisianas preexisting constructive notice provisions and allows those with interest in property, who are not reasonably ascertainable to a diligent state actor, an opportunity to request such notice. Id.; see also Bank of West Baton Rouge v. Stewart, 2000-0114, p. 3 (La.App. 1 Cir. 2/16/01), 808 So.2d 464, 466 and Smith v. Brooks, 97-1338, p. 6 (La.App. 3 Cir. 4/15/98) 714 So.2d 735, 738.

114Finally, we address the effect of nullifying the November 14, 2001 tax sale.

La. Civ.Code art.2033 provides, in part: An absolutely null contract, or a relatively null contract that has been declared null by the court, is deemed never to have existed. The parties must be restored to the situation that existed before the contract was made. If it is impossible or impracticable to make restoration in kind, it may be made through an award of damages.

(Emphasis added).

La. Const. Art. VII, 25(C) provides that “[n]o judgment annulling a tax sale shall have effect until the price and all taxes and costs are paid, and until ten percent per annum interest on the amount of the price and taxes paid from date of respective payments are paid to the purchaser ...”

The trial court correctly found the November 14, 2001 tax sale to be absolutely null. To give the trial court judgment effect, it shall be amended to order the Burgers to pay the purchase price, and all taxes and costs, plus ten percent per an-num interest on the price and taxes paid from the date of the respective payments. The amended judgment will restore all parties to the status quo ante, i.e., the State keeps its tax payment from Padilla, Padilla receives the redemption amount plus any lawful interest, and the Burgers have their mortgagee rights restored.

DECREE

Accordingly, for the aforementioned reasons, the trial court judgment is amended to order Ronald G. Burger and Lynda Ogden Burger to pay Andrea Padilla the purchase price, and all taxes and costs, plus ten percent per annum 11Binterest on the amount of the price and taxes paid from the date of the respective payments. As amended, the judgment of the trial court is affirmed.

JUDGMENT AMENDED; AND AS AMENDED, AFFIRMED

ON APPLICATION FOR REHEARING.

MICHAEL E. KIRBY, Judge.

_JjWe grant the application for rehearing of the plaintiff-appellant, Andrea Padilla, for the sole purpose of clarifying our holding that the status quo ante will be restored by payment to Padilla of the purchase price, taxes and costs, and ten percent interest from the date of each respective payment as required by La. Const. Art. VII, § 25(C). Our opinion upheld the trial court’s dismissal of Padilla’s suit to quiet tax title and its nullification of the tax sale of the property in dispute. As noted in the opinion, La. C.C. art.2033 requires that the parties to a contract which has been annulled be restored to the situation that existed before the contract was made. Comment (b) to La. C.C. art.2033 states, “The restoration of the parties to the situation that existed before the contract ... includes restoration of fruits and revenues, as any unjust enrichment of the parties must be prevented.”

In the application for rehearing, Padilla contends that since the tax sale she has spent considerable amounts of money to remediate the property to return it to commerce and to make repairs following Hurricane Katrina. Those expenses, she contends, must be considered in restoring the parties to the “status quo ante.” | {.Because the record before us contains no evidence of the amounts of money allegedly spent by Padilla in remediating the property or of the rental income generated from the property since the tax sale, we must remand the case to the trial court for the taking of additional evidence to determine the status quo of the parties prior to the tax sale as well as their current status. The record is also silent as to the amounts Padilla paid in taxes subsequent to the tax sale. Thus, remand is necessary for Padilla to offer proof of any tax payments and to allow the trial court to render a specific monetary judgment in compliance with La. Const. Art. VII, § 25(C).

Accordingly, we grant the application for rehearing and amend our decree to read as follows:

The July 17, 2006 judgment of the trial court is affirmed insofar as it denied Andrea Padilla’s motion for summary judgment; granted the Burgers’ motion for summary judgment; dismissed Padilla’s Petition to Quiet Tax Sale; and declared the tax sale of the property at issue an absolute nullity. The case is remanded to the trial court for further proceedings consistent with this opinion on rehearing and for entry of a judgment awarding Padilla the constitutionally mandated amount and any amount necessary to restore the parties to the situation that existed prior to the tax sale.

REHEARING APPLICATION GRANTED; DECREE AMENDED.

      . Nothing in the record indicates that any action was taken with regard to expropriation or demolition of the property. Likewise no evidence exists that any effort was made to sell the property to satisfy the lien for the fine and costs.

      . La. R.S. 47:2228 was repealed by Acts 2008, No. 819, § 2, effective January 1, 2009.

      . The Louisiana Supreme Court has held that the three year period in La. Const. Art. VII, § 25(B)(1) is peremptive and cannot be suspended or interrupted. See Harris v. Estate of Fuller, 532 So.2d 1367, 1369 (La.1988).

      . The Indiana statute at issue, Ind.Code § 6-1.11-24-1 et seq., required the county auditor to post notice in the county courthouse of the sale of real property for nonpayment of property taxes and to publish notice once each week for three consecutive weeks. It also required the county to give notice by certified mail to the property owner at the owners' last known address, § 6-1.1-24-1, but at the time in question the statute did not provide for notice by mail or personal service to the mortgagee(s) of the property.

      . La. R.S. 47:2180 was repealed by Acts 2008, No. 819, § 2, effective January 1, 2009. At the time of the tax sale in question, La. R.S. 47:2180 provided:
      Immovable Property, Notice of Delinquency
      A. (l)(a) On the second day of January each year, or as soon thereafter as possible, the tax collector shall address to each taxpayer who has not paid all the taxes which have been assessed to him on immovable property or to the record owner of the property for which the taxes are delinquent, or to the actual owner in the event the record owner is deceased, written or printed notice in the manner provided for herein that his taxes on immovable property must be paid within twenty days after the service or mailing of the notice, or that the property will be sold according to law.
      (b) On the second day of January of each year, or as soon thereafter as possible, in each year following the year in which the original notice of delinquency is made pursuant to Subparagraph (a) herein, the tax collector shall address to each taxpayer who has not paid the taxes which have been assessed to him on immovable property a written notice in the manner provided herein. The notice shall specify the property upon which the taxes are delinquent, the amount of taxes due, and the manner in which the property may be redeemed. The notice shall be made each year until the property is no longer redeemable as provided in Article VII. Section 25(B) of the Constitution of Louisiana. The cost of mailing the notice shall be considered cost for purposes of redemption.
      (2) Any taxpayer may designate one additional person to be notified in the event of a delinquency. Such designated person shall receive the same notification as the delinquent taxpayer and such notice shall be made in the manner provided herein.
      B. The tax collector shall send to each taxpayer by certified mail, with return receipt requested, the notice prescribed herein, provided that in cities containing a population of over fifty thousand persons, the tax collector may either send this notice by certified mail or may make personal or domiciliary service on the taxpayer. In the event the certified notice is returned as being undeliverable by the post office, the tax collector ma comply with Article 7 Section 25 of the Constitution of Louisiana and the provisions of this Section by advertising the tax debtor's property in the advertising required for unknown owners in Subsection C of this Section. After the tax collector shall have completed the service by the notices herein required, either by mail or by personal domiciliary service, he shall make out a proces verbal stating therein the names of delinquents so notified, their post office addresses, a brief description of the property, the amount of taxes due and how the service of notice was made. Such proces verbal shall be signed officially by him in the presence of two witnesses and filed, in the parishes other than the parish of Orleans, in the office of the clerk of court for recording and preservation. In the parish of Orleans, such proces verbal shall be filed in the office of the state tax collector for the city of New Orleans and preserved for record. This proces verbal shall be received by the courts as evidence. The tax collector shall be entitled to collect actual mailing costs of each certified, with return receipt, notice, and mileage shall be charged for service of this notice. A like charge will be made if the property is adjudicated to the state or any subdivision thereof.
      C.The tax collector shall publish one general notice substantially in the form set forth herein, addressed to all known owners of assessed immovable property situated in his parish, and to non resident owners of such property whose post office address is unknown, in which he shall describe the property as described in the tax roll. Such notice shall be published once a week for two weeks in a newspaper published in his parish, or if there be none published in the parish, then such notice shall be give in the manner provided by law for judicial sales. He shall pay for the publication, and shall be entitled to collect as costs therefor the pro rata share of the publication costs from each unknown owner or from the property assessed to him. The collector shall certify on his tax rolls that he has published the notices, and tire certificate on either roll shall make full proof thereof until disproved in a judicial proceeding.
      D. Within thirty days after the tax sale, or as soon thereafter as possible, the tax collector shall research the records of the clerk of court for transfers on all property sold. Within thirty days of finding a transfer of any property sold at a tax sale, the tax collector shall attempt to serve the new owner with a certified notice that the property was sold and include in the notice the amount necessary to redeem the property. This notice shall also advise the owner that the property may be redeemed at any time within three years from the date recordation of the sale. This shall serve as the required notice to the record owner in Subsection A of this section.

      . Although the city filed an "opposition” to the Burgers’ motion for summary judgment, it informed the court that it took no position either for or against either party’s motion for summary judgment. At the first hearing on the motions, the trial court “charged the city to turn over within thirty days all information related to the file or relating to the case.” The trial court emphasized that when it said "all information,” it was “particularly referring to notice information to both the taxpayer, Louis Schwartz, if it exists, and notice information to Ronald and Lynda Burger, if it exists.” Thirty days later, at the second hearing on the matter, the city certified to the court that it had no evidence that the Burgers or Schwartz were given notice of the tax sale.

      . La. R.S. 9:5201 was repealed by Acts 1997, No. 584, § 1.

      . La. R.S. 47:2180.1 was repealed by Acts 2008, No. 819, § 2, effective January 1, 2009.


author: SUSAN M. CHEHARDY, Judge.

text:
    Steven and Deborah McCONNELL v. CITY OF HARAHAN, and City of Harahan Board of Adjustments & Appeals.
    No. 2008-CA-802.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 24, 2009.

      Francis P. Accardo, Pugh, Accardo, Haas, & Radecker, LLC, Attorney at Law, New Orleans, LA, for Plaintiffs/Appellants, Steven and Deborah McConnell.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and MADELINE JASMINE, Pro Tempore.
   SUSAN M. CHEHARDY, Judge.

|2This is a zoning dispute. The property owners seek reversal of the district court’s judgment confirming the denial of their request for a zoning variance. We affirm.

FACTS

Stephen and Deborah McConnell are joint owners of 356 East Avenue in Hara-han. They applied for a building permit to erect a 20' X 20' X 12' steel building on an existing slab to replace a wood building destroyed by Hurricane Katrina. On February 2, 2006, the City of Harahan (hereafter “City”) issued the building permit.

Relying on the permit, the plaintiffs purchased a steel building at a cost of $6,000.00, to be erected on-site. They began constructing the building themselves.

On March 8, 2007 the City issued a stop-work order on the grounds that “constructing a Quonset building is not allowed in the City of Harahan,” and “the building permit required the replacement building to be a minimum of three feet from the property lines at the side and rear.”

After receiving the stop-work order, the plaintiffs removed any encroachment of the building closer than three feet from their property lines. They then applied to the City of Harahan Board of Adjustment and Appeals (“the Board”) for a zoning variance regarding the Quonset building.

|sThe Board discussed the plaintiffs’ application at meetings over the course of several months, and finally denied the variance on June 27, 2007 for the stated reason that the plaintiffs had not presented a proper Class C survey.

The plaintiffs appealed the denial of their request for a zoning variance to the district court. After a hearing, the district court upheld the decision of the Board, in a written judgment that stated as follows:

[T]he Harahan Board of Adjustments and Appeals did not act arbitrarily and capriciously in denying the plaintiffs’ request for a variance whether the grounds for that denial be based upon the absence of a Class “C” survey or that the building that the plaintiffs attempted to construct on their property was a Quonset hut. The Court finds that in fact the structure meets the definition of a Quonset hut which is not a permitted use pursuant to Harahan’s Ordinance No. 1503.

In oral reasons for judgment, the trial judge explained to the plaintiffs:

The review that I am allowed to give is an arbitrary and capricious standard .... I don’t see that the Board of Adjustments was in any way arbitrary or capricious in rendering their opinion.... I don’t believe that the survey technically qualifies as a Class C survey. And I think the Board was certainly justified in taking the action that it did based upon those documents.
* * *
[T]he building was originally ordered in November 25th of '05.... The building permit wasn’t applied for until February '06.... The permit itself is quite clear, and it says: Steel building, 20 by 20 by 12, to replace old building on existing slab, electric and plumb.... The city ordinance is also very clear in its definitions of what is permitted and not permitted to be constructed. It defines Quonset hut as a structure building with a semicircular arched roof of corrugated metal.... Section 2 goes on to define the permitted type of buildings for accessory buildings.... Paragraph 6 of Section 2-F ... clearly states Quonset, free-standing non-framed buildings made entirely of corrugated galvanized steel panels are not permitted structures. Pure and simple.
|4It also goes on in Section 7 to describe the roof styles that are permitted for accessory buildings. And, for a garage, it’s flat, gabled, gambrel, hip, mansard, shed, or lean-to. And looking at all of the definitions in Section 1 of that ordinance, I don’t see where this building falls into any category other than Quonset.
* * *
It’s semi-circular, it’s a steel corrugated building with no interior walls, none whatsoever. It is the Court’s opinion that, based upon the city’s ordinance prohibiting Quonset huts, the very structure you attempted to place on your property, did, in fact, fall into that very technical definition.

The plaintiffs appeal. They contend the district court erred in denying their appeal and that the Board’s denial of the variance was an abuse of discretion, because the building does not violate the City’s zoning regulations and the basis for the stop work order is invalid.

LAW AND ANALYSIS

La.R.S. 33:4727(E) provides for judicial review of zoning appeals from municipal boards of adjustment, but it does not set out a standard of review. It states only, “The court may reverse or confirm, wholly or in part, or may modify the decision brought up for review.” La.R.S. 33:4727(E)(5). The jurisprudence holds that a reviewing court must generally accord a rebuttable presumption of regularity to the decisions of boards of adjustment. Gertler v. City of New Orleans, 346 So.2d 228, 233 (La.App. 4 Cir.1977), writ denied, 349 So.2d 885 (La.1977), cert. denied, 434 U.S. 1068, 98 S.Ct. 1248, 55 L.Ed.2d 770. Decisions of a board of adjustments are subject to judicial review only as to whether they are arbitrary, capricious or an abuse of discretion. French Quarter Citizens For Preservation of Residential Quality, Inc. v. New Orleans City Planning Com’n, 1999-2154, p. 3 (La.App. 4 Cir. 4/12/00), 763 So.2d 17, 18-19.

|5Section XXI(B) of the City of Harahan Zoning Ordinance provides in pertinent part as follows:

No amendment, supplement or change of the zoning ordinance . shall become effective unless and until:
⅜ ⅜
3. The applicant shall provide a “Class C” survey (plat plan) of the lot prepared by a civil engineer or land surveyor, licensed in the State of Louisiana, showing the actual dimensions of the lot; the size and location of any existing structure(s); servitudes and restrictions, and any such other information as may be necessary to provide for the enforcement of these regulations.

The plaintiffs contend that the Board’s cited reason for denying the variance, the necessity for “Class C” surveys for the issuance of building permits, is a red herring. They argue, first, that the requirement for submission of surveys appears as part of the requirements for submission of an application for a building permit; in this case, the building permit was issued, and the plaintiffs acted in reliance upon the issuance of the building permit. They point out the question of a Class C survey was not raised until them request for a variance was pending before the Board. The plaintiffs further contend that the survey they submitted was in fact a Class C survey, which is described in the Harahan zoning ordinance as “a plat plan of the lot prepared by a civil engineer or land surveyor licensed in the State of Louisiana showing the actual dimensions of the lot, the size and location of any existing structures.”

The Louisiana Administrative Code provides for classification of land surveys in categories that define the degree of accuracy that should be attained for surveys performed in Louisiana. La. Admin. Code 46:2901(A). These classifications are based on the purposes for which the property is being used at the time the survey is performed and any proposed developments disclosed by the client. Id. The categories include Class A, surveys that “require maximum surveying accuracy” including but not limited to “urban business district properties and highly developed commercial properties”; Class B, surveys “of properties that justify a high degree of |(isurveying accuracy” including but not limited to “commercial properties and higher priced residential properties located outside urban business districts and highly developed commercial areas”; Class C, surveys of “residential and suburban areas,” including but not limited to “surveys of residential areas which cannot be classified as Class A or Class B surveys”; and Class D, surveys of “all remaining properties that cannot be classified as Class A, B or C surveys,” including but not limited to surveys of farm lands and rural areas. La. Admin. Code 46:2901 (A)(1)-(4).

The Harahan zoning ordinance stipulates that an applicant for a change in the zoning ordinance “shall provide a ‘Class C’ survey (plat plan) of the lot ... showing the actual dimensions of the lot; the size and location of any existing structure(s); servitudes and restrictions, and any such other information as may be necessary to provide for the enforcement of these regulations.” Harahan Zoning Ordinance, Section XXI(B). We have not been provided with any further information on how or whether the ordinance defines a Class C survey further.

In connection with their application for a variance, the plaintiffs submitted a copy of a 1990 survey, performed for a title agency by a professional surveyor, that showed the property’s dimensions, a servitude at rear of the lot, and the then-existing structures, including a building designated “garage” in the location at which the plaintiffs are erecting the building at issue here.

Although the survey the plaintiffs submitted appears to satisfy the ordinance’s description of a Class C survey, it is not a current survey and did not accurately reflect the state of the plaintiffs’ property at the time they sought their building permit or their zoning variance. Rather, it showed the property as it was |Tin 1990, when the survey was performed. It is uncontested that the garage shown on the survey was destroyed by Hurricane Katrina, which is the reason why the plaintiffs sought to build a new building in its place. Accordingly, we cannot say the Board was arbitrary, capricious, or abused its discretion in denying the variance on that basis.

Having found the variance validly denied, we need not address the issue of whether the building fits the definition of a Quonset building and thus is forbidden by the ordinance.

For the foregoing reasons, the judgment is affirmed. Costs of appeal are assessed against the plaintiffs-appellants.

AFFIRMED.

      . The plaintiffs' petition also sought reimbursement for the expenses they incurred by their reliance on the building permit, specifically the cost of the building, as well as recovery for other damages incurred due to the incomplete construction of the building.

      . The ruling disposed of only one of the plaintiffs’ claims, but the district court certified the judgment as a final judgment for purposes of appeal, pursuant to La.C.C.P. art. 1915(B)(1).

      . The trial court went beyond the scope of the Board's decision in addressing and ruling on the status of the building. We do not rule on that issue because it was not a stated basis for the Board's decision. We note, however, that although the building varies somewhat from the ordinance's description of "Quonset building,” it fits the definition in other respects, and probably could have served as a valid basis for denial of the variance. The ordinance defines Quonset building as a "structure built with a semi-circular arched roof of corrugated metal,” and it prohibits "Quonset freestanding, non-frame buildings made entirely of corrugated galvanized steel panels." City of Harahan Ordinance No. 1333, as amended by Ordinance No. 1503 of the City of Harahan, adopted July 21, 2005, effective August 21, 2005.
      The plaintiffs assert the building is not a Quonset hut as defined in the City's zoning regulations because it does not have a semicircular, arched roof of corrugated metal. Rather, they point to their Exhibit F, a photocopy of a brochure that contains photographs of the type of building the plaintiffs purchased. The building at issue does not have a semi-circular arched roof, but rather "a gently curved peak at the top where the sides of the roof join together,” while "the roof itself consists of flat panels rising diagonally from the walls to a peak at the top,” as well as showing buildings with semi-circular roofs that fit the City's definition of a Quonset building.
      Our review of Exhibit F shows the building’s roof is a pitched or sloped gable-ended roof, the ridgeline of which is gently rounded rather than a sharp angle; the roof could be considered arched, but it is not semi-circular. Also in evidence are photographs taken by neighbors who opposed the granting of the variance, included within the City's Exhibit M, that show the building is built of corrugated metal panels, without an interior frame. That seems to place the building within the prohibition against "Quonset freestanding, non-frame buildings made entirely of corrugated galvanized steel panels” in Section XVI-11(F)(6) of the zoning ordinance.


author: CLARENCE E. McMANUS, Judge.

text:
    Kevin WHITE v. AMERICAN INTERNATIONAL GROUP, INC. and Billy Webb.
    No. 08-CA-1238.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 24, 2009.

      Christopher M. Rodriguez, Michael I. Rodriguez, Sr., Esq., Attorneys at Law, New Orleans, Louisiana, for Plaintiff/Appellant.
    Coleman T. Organ, Richard D. Roniger, II, Attorneys at Law, New Orleans, Louisiana, for Defendant/Appellee.
    Panel composed of Judges CLARENCE E. McMANUS, FREDERICKA HOMBERG WICKER, and JEROME M. WINSBERG, Pro Tempore.
   CLARENCE E. McMANUS, Judge.

2The plaintiff, Kevin White, appeals from a judgment of the trial court finding that he failed to carry his burden of proof and dismissing his action against defendants. We affirm the decision of the trial court.

Plaintiff filed his petition requesting damages incurred as a result of an automobile accident. At trial, he testified that he was traveling on U.S. 90B, when he executed a U-turn. He exited the U-turn into the left lane, and then traveled into the center lane. He contends that he had been traveling in the center lane for at least 5 seconds, when he was rear-ended by defendant, Billy Webb. He testified that his car was struck in the rear on the passenger side, and that the impact was severe. Plaintiff further testified that he did not see Webb’s car until after the impact.

Webb testified that he was proceeding down the center lane on U.S. Highway 90B, when he saw plaintiff ahead of him. Plaintiff came out of the U-turn and, without stopping, started to traverse the entire highway to get to the far right lane. Webb applied his brakes and tried to move into the right lane, but was unable to |aavoid hitting the plaintiff. Webb stated that the left front corner of his car struck the right rear quarter of plaintiffs car.

Jaron Guillot, a passenger in Webb’s car, testified via deposition that he observed plaintiff exit the U-turn without yielding, and that he pulled into the middle of the road and then stopped. Webb applied his brakes, but could not avoid the accident. He stated that the left front of the car hit the back right side of plaintiffs car.

Wayne Jackson, also a passenger in Webb’s car, testified that they were traveling in the middle lane of the expressway. Plaintiff car came out of the U-turn lane and tried to cut in front to travel all the way to the right lane. Webb applied his brakes and tried to move to the right, but he was unable to avoid the collision. Webb’s car made contact with the back passenger side of plaintiffs car.

Trooper Henry Joseph testified that he investigated the accident, which had been moved to the side of the road before he arrived. He concluded that plaintiff, who was governed by a yield sign coming out of a U-turn lane, exited the lane and crossed over three lanes of traffic and into Webb’s path of travel.

Ken Boudreaux, the body shop manager at Don Bohn Ford, testified that he examined plaintiffs car after the crash. The damage was located at the right rear of plaintiffs car, including rear end, rear bumper, rear hatch, rear quarter panel, right rear guard panel, rear body panel, rear floor pan, and rear unibody. He opined that the car was hit in the right hand corner of the rear bumper, based on the crumple zones in the panels of the car. On cross examination, he admitted that there was no damage to the tailgate/hatchback of the car.

|4In this appeal, the plaintiff/appellant alleges that the judgment is contrary to the law and evidence. He contends that the evidence at trial shows that he was rear ended by defendant, “who failed to closely observe petitioner’s vehicle in the roadway ahead of him and to maintain a proper and safe speed and distance.” He argues that he is entitled to the legal presumption that a following motorist is presumed to be at fault when he collides with a preceding vehicle, and that the defendant bears the burden of exculpating himself from the inference of negligence.

The appellees contend that the trial court could reasonably have concluded that the cause of the accident was the plaintiffs actions in improperly merging into appel-lees lane of traffic, and that defendant did not have time to avoid the accident.

In Garrity v. St. Paul Fire & Marine Ins. Co., 07-965 (La.App. 5 Cir. 4/15/08), 984 So.2d 900, 904, writ denied, 08-1051 (La.8/29/08), 989 So.2d 106, this court once again set forth the applicable standard of review:

The standard of review by an appellate court of a district court’s findings of fact is well known. The district court’s factual findings may not be set aside in the absence of manifest error or unless they are clearly wrong. Where there is a conflict in the testimony, inferences of fact should not be disturbed upon review, even though the reviewing court may feel that its own evaluations and inferences are as reasonable. In order to reverse a district court’s determination of a fact, a reviewing court must review the record in its entirety and (1) find a reasonable factual basis does not exist for the finding, and (2) further determine the record establishes the factfinder is clearly wrong or manifestly erroneous. The issue to be resolved by the reviewing court is not whether the factfinder was right or wrong, but whether the factfinder’s conclusion was a reasonable one.

A proper review of the record cannot be completed by reading so much of the record as will reveal a reasonable factual basis for the finding in the trial court. There must be a further determination that the factfinder’s conclusion is reasonable | fin light of the entire record. Ambrose v. New Orleans Department Ambulance Service, 93-3099, 93-3110, 93-3112 (La.7/5/94), 639 So.2d 216, 220; Cannet v. Franklynn Pest Control Company, 08-56 (La.App. 5 Cir. 4/29/08), 985 So.2d 270, 274.

In an action to recover damages for injuries allegedly caused by another’s negligence, the plaintiff has the burden of proving negligence on the part of the defendant by a preponderance of the evidence. Benjamin ex rel. Benjamin v. Housing Authority of New Orleans, 04-1058 (La.12/1/04), 893 So.2d 1. Proof by a preponderance of the evidence is defined as taking the evidence as a whole, the fact to be proved is more probable than not. Boxie v. Smith-Ruffin, 07-264 (La.App. 5 Cir. 2/6/08), 979 So.2d 539; Earls v. McDowell, 07-17 (La.App. 5 Cir. 5/15/07, 960 So.2d 242).

In this case, the plaintiff testified that he made the U-turn into the center lane, and was proceeding in the center lane when he was rear-ended by defendant. Defendant testified that he was proceeding down the center lane, when the plaintiff came out of the U-turn, and into the lane in which he was traveling. The pictures of the vehicles involved in the accident reflect that damage to plaintiffs car was the right rear quarter, and the damage to defendant’s car was the left front. The officer who investigated the accident opined that the cause of the accident was the plaintiffs failure to yield when coming out of the U-turn. Based on this evidence, the trial court found that the plaintiff failed to prove his claim that the accident was caused by the defendant (whom plaintiff alleged rear-ended him.).

Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Garrity, supra at 904. When findings are based on determinations regarding the credibility of witnesses, the manifest error or clearly wrong standard demands great deference |fito the trier of fact’s findings because only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Id. at 904.

Our review of the record as a whole supports the trial court’s judgment. Accordingly, we find no error in the trial court’s determination that plaintiff failed to meet his burden of proof.

For the above discussed reasons, the judgment of the trial court is affirmed. All costs are assessed to plaintiff/appellant.

AFFIRMED.

      . Citing Hanks v. Entergy Corp., 06-477, p. 22 (La. 12/18/06), 944 So.2d 564, 580; Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989); Stobart v. State, Through DOTD, 617 So.2d 880, 882 (La. 1993); Bonin v. Ferrellgas, Inc. 03-3024, p. 6-7, 877 So.2d 89, 94-95;.


author: JEROME M. WINSBERG, Judge Pro Tempore.

text:
    Sonia McGOWAN v. Justin J. LOUPE, St. Charles Parish Sheriff's Office, St. Paul Fire & Marine Insurance Company, Tonya N. Barnes, and USAgencies Casualty Insurance Company.
    No. 08-CA-810.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 24, 2009.

      Ron A. Austin, Margaret E. Madere, Attorneys at Law, Harvey, LA, for Plaintiff/Appellee.
    Don A. Almerico, Attorney at Law, St. Rose, LA, for Defendant/Appellant.
    Panel composed of Judges CLARENCE E. McMANUS, WALTER J. ROTHSCHILD and JEROME M. WINSBERG.
   JEROME M. WINSBERG, Judge Pro Tempore.

|2The Defendant, Justin J. Loupe, a deputy with the St. Charles Parish Sheriffs Office (Sheriffs Office), the Sheriffs Office, and St. Paul Fire and Marine Insurance Company (StPaul), appeal a judgment in favor of the Plaintiff, Sonia McGowan for personal injuries in an automobile accident. We affirm.

In March of 2006, the Plaintiff was traveling in the left lane of westbound U.S. 90 two cars behind a marked Jefferson Parish Sheriffs Office (JPSO) vehicle when the driver abruptly halted and made a sudden u-turn. The Plaintiff and the driver of the car in front of the Plaintiff stopped their cars safely. A St. Charles Sheriffs Police van driven by Loupe was following the Plaintiff. Loupe’s van skidded into the back of the Plaintiffs car with force. It then tapped the Plaintiffs bumper a second time. At some point, Loupe’s car was also rear-ended by the car following him, driven by Tonya Barnes. The Plaintiff suffered a left clavicle fracture and cervical strain in the accident.

In February of 2007, the Plaintiff filed suit against Loupe, the Sheriffs Office, and St. Paul, and Barnes and her insurer. The petition was subsequently |3amended to substitute Sheriff Greg Champagne as a Defendant in place of the Sheriffs Office.

A bench trial was held in June of 2008, and a judgment was rendered for the Plaintiff in the amount of $19, 296.59 against Loupe, the Sheriffs Office, and St. Paul.

On appeal, the Defendants assert that the trial judge erred in finding Loupe at fault in the accident and assessing damages against them. The Defendants cite Loupe’s testimony which contradicted the Plaintiffs version of the events.

La.R.S. 32:81 imposes a duty on a motorist not to follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of the preceding vehicle, the traffic conditions, and the condition of the roadway. Phipps v. Allstate Ins. Co., 05-651, p. 4 (La.App. 5 Cir. 2/27/06), 924 So.2d 1081, 1084. In a rear-end collision, the following motorist is presumed to have breached this duty and he bears the burden of proving that he was not negligent. Phipps, 05-651 at 4-5, 924 So.2d at 1084.

A following motorist may assume that the preceding vehicle is being driven with care and caution; however, he must drive at an appropriate speed and must maintain an interval between the two vehicles as would enable him to avoid a collision with the preceding vehicle under circumstances which should be reasonably anticipated. Id. The following driver may rebut the presumption of fault by establishing that he had his vehicle under control, closely observed the lead vehicle, and followed at a safe distance under the circumstances. Phipps, 05-651 at 4-5, 924 So.2d at 1084.

14At trial, only the Plaintiff and Loupe testified. The Plaintiff asserted that Loupe’s van hit her car very hard after she stopped. She immediately looked up and saw the van get hit and then she felt a second bump which was minimal. The Plaintiff believed that the second hit was caused by Barnes running into the Loupe’s van after Loupe hit her car. She testified that her injuries were clearly from the first hard impact.

Defendant, Colonel Justin Loupe, an employee of the St. Charles Sheriffs Office, testified that he was driving a van used for transporting inmates at the time of the accident. He stated he saw the JPSO vehicle abruptly stop and make the u-turn. He did not recall a car in front of the Plaintiff. When the Plaintiff braked in response to the actions of the JPSO unit, he braked to stop the van from striking the Plaintiff, but he was struck from behind by Barnes, causing him to skid into the Plaintiff. He believed he would not have hit the Plaintiff had Barnes not run into his van first. He contended that his vehicle only struck the Plaintiff one time.

Neither the van nor the third car sustained any damage, according to photographs introduced at trial.

The court of appeal may not set aside the trial court’s findings of fact in the absence of manifest error or unless the findings are clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989); Cannet v. Franklynn Pest Control Co., Inc., 08-56 at p. 5 (La.App. 5 Cir. 4/29/08), 985 So.2d 270, 274. A proper review of the record cannot be completed, however, by reading so much of the record as will reveal a reasonable factual basis for the finding in the trial court. Ambrose v. New Orleans Police Department Ambulance Service, 93-3099, 93-3110, 93-3112, p. 7 (La.7/5/94), 639 So.2d 216, 220; Cannet, 08-56 at 5, 985 So.2d at 274. There must |Bbe a further determination that the fact-finder’s conclusion is not clearly wrong. Ambrose, 93-3099, 93-3110, 93-3112 at 7, 639 So.2d at 220; Cannet, 08-56 at 5, 985 So.2d at 274.

In Rosell, the Court explained that when a review of the entire record shows that the trier of fact has made reasonable determinations as to the credibility of conflicting witnesses, such determinations “can virtually never be manifestly erroneous or clearly wrong.” Rosell, 549 So.2d at 845; Triche v. Ross 03-327, p. 4 (La. App. 5 Cir. 7/29/03), 852 So.2d 539, 540. Furthermore, where there are two permissible views of the evidence the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart v. State, 617 So.2d 880, 882-883 (La.1993), Cannet, 08-56 at 5, 985 So.2d at 274.

In this case, only the Plaintiff and Loupe testified, each giving a different version of when and how the first impact occurred, as well as the number of times the van struck the Plaintiffs car. The physical evidence showed damage only to the Plaintiffs car.

Our review of the record shows that there are two permissible views of the evidence in this case. Although the trial judge did not provide reasons for judgment, he apparently accepted the Plaintiffs version, which was a reasonable determination. Since the Defendants failed to bear their burden of proving Loupe did not breach his duty as a following driver under La.R.S. 32:81, we find that the trial judge was not clearly wrong in finding Loupe 100% at fault in the accident and in awarding damages against the Defendants.

Accordingly, the judgment of the trial court is hereby affirmed.

AFFIRMED.

      . The Plaintiff settled with Barnes and her insurer prior to trial and they were dismissed from the suit.

      . He awarded $10,000 for pain and suffering, $7,448 for medical expenses, and $1,848.59 for property damage.

      . We note that the judgment names the St. Charles Sheriff's Office as a liable Defendant, even though the Plaintiff substituted the Sheriff, Greg Champagne, to replace the St. Charles Sheriff's Office as the party defendant in an amended petition. Since no one filed a motion for new trial, or raised this in the appeal, we cannot address this error.


author:
GAIDRY, J.
      GUIDRY, J.,

text:
    STATE of Louisiana In the Interest of N. H.
    No. 2008 KJ 2464.
    Court of Appeal of Louisiana, First Circuit.
    March 27, 2009.

      Walter P. Reed, District Attorney, Cov-ington, Louisiana, by Kathryn Landry, Special Appeals Counsel, Baton Rouge, Louisiana, for Plaintiff/Appellee, State of Louisiana.
    Michael D. Bass, Brett K. Duncan, Hammond, Louisiana, for Defendant/Appellant, N.H.
    Before KUHN, GUIDRY, and GAIDRY, JJ.
   GAIDRY, J.

|aN.H., a child, was alleged to be delinquent by petition # 7911 JJ based on one count of possession with intent to distribute a “legend drug” within one thousand feet of . property used for school purposes (count I), a violation of La. R.S. 40:981.3. Additionally, he was alleged to be delinquent by petition # 7912JJ based on two counts of battery of a correctional officer (counts I and III), violations of La. R.S. 14:34.2; one count of second degree battery (count II), a violation of La. R.S. 14:34.1; three counts of battery of a school teacher (counts IV, V, and VIII), violations of La. R.S. 14:34.3; one count of possession of cocaine (count VI), a violation of La. R.S. 40:967(C); and one count of “riot,” (count IX), a violation of La. R.S. 14:329.1. The child initially pled not true on all counts. Thereafter, pursuant to a “sentencing agreement,” the child pled true to petition # 7911JJ, count I, following amendment of the charge to one count of violation of La. R.S. 40:1238.1, prohibiting sale, distribution, or possession of a legend drug without a prescription or order, and pled true to petition # 7912JJ, counts V and IX, and the State dismissed the remaining counts against him. On petition # 7911JJ, count I, the court imposed a disposition of eighteen months in the custody of the State, Office of Youth Development. On petition # 7912JJ, count V, the court imposed a disposition of six months in the custody of the State, Office of Youth Development. On petition # 7912JJ, count IX, the court imposed a disposition of eighteen months in the custody of the State, Office of Youth ^Development. The court ordered that the dispositions would be served concurrently with one another and recommended mental health and drug counseling for the child. Additionally, in the event of early release on parole, the court ordered the child to pay restitution for medical bills. The child moved for a new dispositional hearing and to transfer disposition to a proper venue, but the motion was denied. He now appeals, designating the following assignments of error:

1. The trial court committed legal error in failing to determine whether the factors listed in La. Ch.Code art. 315(B) were present, and if so, in failing to transfer the dispositional hearing to the Twenty-first Judicial District Court.

2. The trial court committed legal error in failing to conduct a dispositional hearing as required by La. Ch.Code arts. 892 et seq.

3.The trial court committed legal error in failing to abide by the requirements of La. Ch.Code art. 903(A) before entering disposition.

For the following reasons, we affirm the adjudication of delinquency and the dispositions on petition # 7911JJ, count I, and petition # 7912JJ, counts V and VIII.

FACTS

Due to the child’s guilty plea, no witnesses testified concerning the facts in this matter. However, in connection with his pleas of true, the child conceded that he was in court due to an incident at school that caused harm to a teacher and due to his possession of a legend drug. Additionally, the record contains a case narrative concerning the charges under petition # 7912JJ. According to the narrative, the child indicated that the disturbance at •Northshore Options (an alternative school in Mandeville) resulted from animosity between two groups of individuals, one from Hammond and one |4from Bogalusa, attending the facility. On the morning of February 20, 2008, fights broke out between the individuals after the child made a comment about another individual and that individual began to “buck up” to him.

LA. CODE CRIM. P. ART. 881.2(A)(2)

The State argues that the instant appeal should not be considered because the adjudication and dispositions herein were entered pursuant to a counseled plea agreement, and under La. Ch.Code art. 803, where procedures are not provided in the Children’s Code, the court should pro-ceed in accordance with the Code of Criminal Procedure. See also La. Ch.Code art. 104 (“Where procedures are not provided in this Code, or otherwise by law, the court shall proceed in accordance with: (1) The Code of Criminal Procedure in a delinquency proceeding and in a criminal trial of an adult.”). The State argues, under La.Code Crim. P. art. 881.2(A)(2), the defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement that was set forth in the record at the time of the plea. The State also cites State ex rel. J.C.O., 38,661, p. 7 (La. App.2d Cir.6/2/04), 877 So.2d 1020, 1025, wherein the court stated “[t]he juvenile's counseled decision to admit the allegations in the petition in exchange for a sentencing cap was an agreement in his favor, and he is not, in the absence of a ruling on a motion to modify the disposition based on specific grounds, entitled to appellate review of the disposition.” The court then noted that even if it were to review the disposition on the theory that the juvenile was misled into believing that he was entitled to appeal the disposition, it would not find the disposition constitutionally excessive. State ex rel. J.C.O., 38,661 at p. 8, 877 So.2d at 1025.

The Children’s Code does not contain an equivalent provision to La.Code Crim. P. art. 881.2(A)(2). Indeed, the Children’s Code favors review |Bof dispositions. With the exception of dispositions imposed on certain offenses (none of which are involved here), La. Ch.Code art. 909 provides “after the entry of any order of disposition, the court retains the power to modify it[.]” Accordingly, we will consider the assignments of error.

TRANSFER OF PROPER VENUE

In assignment of error number 1, the child argues the Twenty-second Judicial District Court (St. Tammany Parish) erred in failing to transfer the case to the Twenty-first Judicial District Court (Tan-gipahoa Parish) because he was domiciled in Tangipahoa Parish and on probation there. The child argues the petitions filed against him indicated he was domiciled in Tangipahoa Parish. He also claims a progress report filed in the record informed the court there was a request for a probation hold on him.

Louisiana Children’s Code art. 315, in pertinent part, provides:

A. At any time, the court in which a petition is filed may transfer the case for the convenience of the parties and the witnesses and in the interests of justice to another court having venue according to Article 314.
B. After adjudication, the court in which a petition is filed shall transfer the proceeding if it receives information at any time that both of the following exist:
(1) The child is domiciled with his parent or tutor in another parish.
(2) The court of the child’s domicile has proceedings currently pending before it.

On June 18, 2008, defense counsel advised the court that the child would withdraw his former pleas of not true to the charges and plead true, under petition # 7911JJ, count I, to an amended charge of one count of violation of La. R.S. 40:1238.1 and plead true to petition # 7912JJ, counts V and IX. The court asked the State what it suggested as a disposition, and the State replied eighteen months regular secure detention, a written apology, and ^restitution for medical bills. Defense counsel reserved the child’s rights to a hearing on the restitution, if necessary, and the court imposed disposition in accordance with the suggested disposition.

On August 25, 2008, the child moved for a new dispositional hearing and to transfer disposition to a proper venue. At the hearing on the motion, the defense argued that the child was entitled to a hearing to bring before the court the reasons why he was entitled to certain rehabilitative treatment. The defense further argued the venue for the hearing was the Twenty-first Judicial District Court where other hearings were pending and where the child’s probation was being supervised.

The State responded that the child had been sentenced in conformity with a plea agreement by which the State had reduced “a lot of the charges” in exchange for an eighteen-month disposition. The State indicated that the defense attorney had discussed the plea agreement with the child and his family, and had agreed on the plea agreement and disposition with the State. The State argued the defense had thereby waived the right to a dispositional hearing. In regard to venue, the State argued that venue was proper in the Twenty-second Judicial District Court because the incident had occurred within the court’s jurisdiction.

The court held that venue was proper in the Twenty-second Judicial District Court. The court found that the dispositional hearing had been informally done. The court noted the hearing was not done in a vacuum, and the child had been represented, his parents had been consulted, the probation department had brought the child’s prior conditions and situation to the attention of the court and the attorneys, some charges were dropped, the child agreed to a certain disposition, and that is what he received.

^Initially, we note St. Tammany Parish was a proper venue for this matter as the parish in which the act or offense complained of took place. See La. Ch.Code arts. 314, 805.

The petitions filed in this matter listed a Hammond address for the child. The listing of this address was insufficient to establish that the child was domiciled outside of the jurisdiction of the Twenty-second Judicial District Court. Residence and domicile are not synonymous. A person can have several residences but only one domicile. La. Civ.Code art. 39; McClendon v. Bel, 2000-2011, p. 6 (LaApp. 1st Cir.9/7/00), 797 So.2d 700, 704. The progress report referenced by the child contains a notation, “OYD Request Probation Hold.” This notation was insufficient to establish that “[T]he court of the child’s domicile [had] proceedings currently pending before it.” Accordingly, La. Ch.Code art. 315(B) did not require the Twenty-second Judicial District Court to transfer this case to the Twenty-first Judicial District Court.

Further, the child failed to establish that a transfer was warranted for the convenience of the parties and the witnesses and in the interests of justice. The witnesses and evidence were located in St. Tammany Parish. Additionally, the Twenty-second Judicial District Court also served the interests of justice by considering, rather than transferring, this case. The court’s actions allowed the child to avail himself of a plea bargain which greatly reduced his sentencing exposure. Additionally, a transfer of the case would have required the preparation of certified copies of all legal and social documents and records pertaining to the case. See La. Ch.Code art. 315(C). Accordingly, the Twenty-second Judicial District Court did not abuse its discretion under La. Ch.Code art. 315(A) by not transferring this case to the Twenty-first Judicial District Court.

| ¿This assignment of error is without merit.

DISPOSITION HEARING

In assignment of error number 2, the child argues the court failed to conduct a disposition hearing, and thereby denied him the procedural safeguards associated with his disposition.

Louisiana Children’s Code art. 892 provides:

Prior to entering a judgment of disposition, the court shall conduct a disposition hearing. The disposition hearing may be conducted immediately after the adjudication and shall be conducted within thirty days after the adjudication. Such period may be extended for good cause.

Louisiana Children’s Code art. 893 provides:

A. At the disposition hearing, unless the child waives the presentation, the court shall hear evidence as to whether the child is in need of treatment or rehabilitation and shall make and file its findings.
B. All evidence helpful in determining the proper disposition, including oral and written reports, the report of the predisposition investigation, any reports of mental evaluation, and all other evidence offered by the child or the state shall be received by the court and may be relied upon to the extent of its probative value even though not admissible at the adjudication hearing. Upon motion of the district attorney or the child, the court may hear testimony from the victim of the offense.
C. Counsel for the state and for the child shall be afforded an opportunity to present evidence and to examine and controvert written reports so received and to cross-examine individuals preparing the reports or other witnesses who give testimony at the hearing. Sources of confidential information need not be disclosed.
D. If the court finds that the child is in need of treatment or rehabilitation as a delinquent child, the court shall proceed immediately to make any appropriate disposition authorized by Articles 895 through 899.

The trial court correctly concluded that an informal disposition hearing was appropriate in this matter. The defense argues that the | ¡legislature has made no provision for an informal disposition hearing. We disagree. While La. Ch.Code art. 892 requires that the court conduct a disposition hearing, and La. Ch.Code art. 893, “unless the child waives the presentation,” requires that the court hear evidence at the hearing as to whether the child is in need of treatment or rehabilitation. There is no requirement that certain evidence must be heard before a disposition can be rendered. Indeed, by allowing the child to waive the presentation of evidence, La. Ch.Code art. 893 supports the opposite proposition. Any other rule would prevent the court from rendering a disposition if the parties failed to offer “required” evidence.

The child also argues that a sentencing recommendation is not a sentencing agreement, citing State v. Higginbotham, 2003-49 (La.App. 3d Cir.4/30/03), 843 So.2d 1230. In Higginbotham, the trial court imposed a consecutive sentence on one of the four counts before it even though the State, as part of a plea agreement, had recommended that the sentences for all four counts be imposed concurrently. Higginbotham, 2003-49 at pp. 1-2, 843 So.2d at 1230-31. The appellate court held that the State had not breached the plea agreement because it had made a recommendation to the court that the defendant’s sentences be imposed to run concurrently. Higginbotham, 2003-49 at p. 4, 843 So.2d at 1232. The court also recognized that the sentencing discretion of the trial judge could not be limited by a sentence recommended by both the State and the defendant. Higginbotham, 2003-49 at pp. 3-4, 843 So.2d at 1232. The court found that it could not determine whether the trial court had intended to follow the recommendation set out in connection with the defendant’s guilty pleas or had intentionally deviated from that agreement. Higginbotham, 2003-49 at pp. 4-5, 843 So.2d at 1232. The court vacated the consecutive sentence and |10remanded for re-sentencing on the count after full consideration of the sentencing recommendation. Higginbotham, 2003-49 at p. 5, 843 So.2d at 1232-33.

The instant case does not present any issue of breach of a plea agreement or the child’s failure to receive a “recommended” disposition. Accordingly, Higginbotham is inapposite.

The purpose of a disposition hearing is to provide an opportunity for the trial court to receive the information necessary for it to make the appropriate disposition for the child. The court received the necessary information in this case. The State suggested an eighteen-month disposition for the child, and the defense offered no objection, but rather reserved the “right to a hearing on the restitution if necessary.” There would have been no need to make this reservation if a separate disposition hearing was to follow. Indeed, there was no need for such a hearing. Defense counsel had discussed the plea agreement with the child and his family, and had agreed on the plea agreement and disposition with the State. Further, the victim of count five was present in court and available for cross-examination. She stated she believed the child could “do real well,” but had just made a bad decision. Additionally, the office of probation and parole had advised the court and the attorneys concerning the child’s “prior conditions and situation.”

This assignment of error is without merit.

JUDGMENT OF DISPOSITION

In assignment of error number 3, the child contends that the disposition must be vacated because the court failed to comply with La. Ch.Code art. 903(A).

Louisiana Children’s Code art. 903, in pertinent part, provides:

In A. (1) Before entering a judgment of disposition, the court shall orally inform the child and shall state for the record the considerations taken into account and the factual basis therefor in imposing the particular disposition chosen.

The requirement of the above provision requiring that, in imposing a disposition, the court “state for the record the considerations taken into account and the factual basis therefor” is identical to the language contained in La.Code Crim. P. art. 894.1(C) concerning imposition of sentence. Where a specific sentence has been agreed to as a consequence of a plea bargain, there is no need for the trial court to comply with Article 894.1(C). See State v. Mareno, 530 So.2d 593, 601 (La.App. 1st Cir.), writ denied, 533 So.2d 354 (La.1988). There is no reason for a different rule under La. Ch.Code art. 903(A).

This assignment of error is without merit.

DECREE

The adjudication of delinquency and dispositions are affirmed. Costs of this appeal are assessed to appellant.

ADJUDICATION OF DELINQUENCY AND DISPOSITIONS ON PETITION # 7911JJ, COUNT I, AND PETITION # 7912JJ, COUNTS Y AND IX AFFIRMED.

GUIDRY, J., dissents in part and assigns reasons.

GUIDRY, J.,

dissenting in part.

|,I disagree with the majority’s determination that because La. Ch. C. art. 909 allows a lower court, sitting in juvenile jurisdiction, to modify an order of disposition any time while the disposition is in force, that grant of authority thereby provides jurisdiction to this court to consider an appeal of a disposition rendered pursuant to a counseled plea agreement. Whereas the Children’s Code does not have a specific provision, such as La. C. Cr. P. art. 881.2 A(2), prohibiting appeal or review of a sentence imposed pursuant to a plea agreement, the Children’s Code does provide that where procedures are not provided for in that code, the court is mandated to proceed in accordance with the Code of Criminal Procedure. See La. Ch. C. arts. 104 and 803.

The fact that the lower court retains jurisdiction to modify a disposition is insufficient to establish the jurisdictional authority of this court to consider a disposition rendered in conformity with a counseled plea agreement. A lower court in adult criminal matters similarly retains jurisdiction to modify a sentence imposed, albeit within thirty days “or within such longer period as the trial court may set,” following imposition of the sentence for felony matters, and for misdemeanor matters, “at any time following commencement or execution” of 12sentence or “even following completion of execution of sentence.” See La. C. Cr. P. art. 881.1 A. Yet, despite a similar retention of jurisdiction, see State v. J.R.S.C., 00-2108 (La.6/1/01), 788 So.2d 424, 424-425, the Code of Criminal Procedure still mandates that a “defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement.” La. C. Cr. P. art. 881.2 A(2). Nor would this court have jurisdiction to entertain the appeal on the basis that the lower court denied the juvenile’s motion to modify the disposition, because only a judgment of disposition is appealable in juvenile cases. See La. Ch. C. art. 330; State in the Interest of Bemis, 459 So.2d 1227, 1228 (La.App. 1st Cir.1984).

Thus, I believe this court lacks jurisdiction to consider the juvenile’s appeal of the disposition imposed pursuant to La. C. Cr. P. art. 881.2 A(2), because the disposition was imposed was based on a counseled plea agreement. See State in the Interest of J.C.O., 38,661, p. 7 (La.App.2d Cir.6/2/04), 877 So.2d 1020, 1024-1025. Therefore, I respectfully dissent.

      . There is no offense of “riot." State v. Beavers, 364 So.2d 1004, 1008 n. 1 (La. 1978). The charge, however, was amended to "causing a riot” prior to the child's plea of true to the charge. See La. R.S. 14:329.2.

      . The minutes are inconsistent with the transcript concerning the counts to which the child pled "true.” When there is a discrepancy between the minutes and the transcript, the transcript must prevail. State v. Lynch, 441 So.2d 732, 734 (La. 1983).