author: SUSAN M. CHEHARDY, Chief Judge.

text:
    WEBER PROPERTY GROUP, LLC v. SUNBURST MEDIA-LOUISIANA, LLC.
    No. 12-CA-804.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 10, 2013.

      Jack A. Ricci, Gary J. Giepert, Michael S.Ricci, Attorneys at Law, New Orleans, LA, for Plaintiff/Appellee, Weber Property Group, LLC.
    Craig H. Stewart, Attorney at Law, Houma, LA, for Defendant/Appellant, Sunburst Media-Louisiana, LLC.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and ROBERT M. MURPHY.
   SUSAN M. CHEHARDY, Chief Judge.

|2This is a lease dispute in which the defendant lessee appeals a default judgment against it totaling $66,927.10, comprising amounts for rent due, stipulated or liquidated damages under the lease, and contractual attorney’s fees, plus judicial interest from date of demand and all costs. We amend and affirm as amended.

FACTS

On April 29, 2011, Weber Property Group, LLC (‘Weber”), brought suit for breach of contract and damages against Sunburst Media-Louisiana, LLC (“Sunburst”). The petition made the following allegations:

On August 15, 2007, Davidson Media Louisiana Stations, LLC (“Davidson”) entered into an agreement with Weber for lease of commercial property at 3841 Veterans Blvd., Suite 201, Metairie, LA 70002, for occupancy by one of Davidson’s Louisiana radio stations, La Fabulosa. Prior to entering into the lease, Davidson had inspectors check the building for any issues. None were found, and Davidson entered into the lease for a term commencing on September 1, 2007, and ending on August 31, 2012. The rent under the lease was staggered throughout the term as follows: $2,995.00 per month for year one; $3,084.85 per |smonth for year two; $3,177.40 a month for year three; $3,272.72 per month for year four; and $3,370.90 per month for year five.

During the term of the lease, Davidson was purchased by Sunburst; the sale included the radio station La Fabulosa. In 2010, La Fabulosa employees reported to Weber that areas of the building needed repair. The petition states that Weber promptly and diligently sent workers and repairmen to repair all suggested problems, although the lease assigned responsibility to repair many of the complained-of problems to the lessee; further, although some of the complaints were legitimate, some of the complaints were unfounded or were the responsibility of the tenant itself.

Despite repeated conversations with the lessee’s representatives and attempts to pacify their concerns, Weber received correspondence from Charles Goodyear, VP/Controller of Sunburst, announcing that Sunburst intended to terminate the lease. Weber responded that termination in this instance was not allowed and that the lessee’s obligations were still due.

Sunburst left the premises and ceased rent payments in April 2011. Weber alleged that Sunburst left the premises in disarray, without repairing damages or removing improvements it had made to the property, the majority of which were not authorized by Weber, as required under the lease.

In the petition, Weber exercised its right under the lease to declare all of the unpaid installments of monthly rent for the remainder of the term immediately due and payable. In addition, Weber sought attorney’s fees and costs as provided by the lease, which stipulates that the attorney’s fees shall not be less than the greater of $500.00 or 25% of the amount sought to be collected.

On September 1, 2011, Weber filed a motion for preliminary default, stating that the petition was filed on April 29, 2011; the sheriff served the citation and | ^petition on defendant, Sunburst, on May 19, 2011; the clerk of court had certified that the defendant had failed to appear or to file an answer; and the legal delays for so answering had elapsed. Weber requested that the court enter a preliminary default, and the court entered it on that day.

On September 30, 2011, Weber filed a first supplemental and amended petition for breach of contract and damages, asserting that it had found a prospective tenant for the property, so that the acceleration for the full amount of the rents was unnecessary. Weber lowered its demand to reflect the rent due and damages as provided in the lease. Weber also demanded attorney’s fees in the amount of “not less than the greater of $500 or 25% of the amount sought to be collected,” and all court costs.

On March 23, 2012, Weber again filed a motion for preliminary default, reciting that the first supplemental and amended petition to the original un-answered petition for breach of contract had been served on Sunburst on October 11, 2011 by the sheriff, the defendant had failed to appear or to file an answer, and legal delays for so answering had elapsed. On March 23, 2012, the trial court ordered that a preliminary default be entered against Sunburst.

On April 13, 2012, Weber filed a motion for confirmation of the preliminary default. In the memorandum in support of the motion, Weber related that shortly after the original petition was filed, its counsel had been contacted by a Craig Stewart, Esq., who stated he was the attorney for Sunburst. On May 15, 2011, Weber’s counsel faxed a copy of the petition to Craig Stewart with requested information. Thereafter, Weber’s counsel repeatedly attempted to contact Craig Stewart, to no avail. On February 23, 2012, Weber’s counsel sent a letter to Craig Stewart advising that “as a period of months has gone by without an Answer, or at [ ¡¡minimum, without any correspondence/contact from your end,” Weber would be filing a motion for preliminary default the next day, February 24, 2011.

In conjunction with the motion for confirmation of the preliminary default, Weber filed an affidavit by Skip Weber, attesting that he is a member of Weber Property Group, LLC. The affidavit recited various facts previously set out in the petitions and in the memorandum in support of the motion. In addition, the affidavit stated that the rent was not paid from April 2011 onward; that past due rent owed for the months of April — July 2011 was $13,090.88; that the amount of stipulated or liquidated damages owed is the equal to 12 months’ rent of the last year, in the amount of $40,450.80.

ACTION OF THE TRIAL COURT

On April 18, 2012, the trial court rendered judgment stating that the matter had been submitted for confirmation of preliminary default without a hearing, as provided under La. C.C.P. art. 1702 and 1702.1, and that the preliminary default was confirmed. It awarded judgment in favor of the plaintiff, Weber, and- against the defendant, Sunburst, in the amounts of $18,090.88 for due rent, $40,450.80 for stipulated or liquidated damages under the lease agreement, and $13,385.42 for amounts “due contractually,” along with all costs of the proceeding and judicial interest from the date of the demand. The record shows that Notice of Judgment was mailed on April 20, 2012.

On May 22, 2012, Sunburst filed a motion for new trial on the grounds that “the judgment is clearly contrary to the law and the evidence.”

|fiThe record shows no ruling on the motion for new trial. Instead, on June 25, 2012, Sunburst filed a motion for devolu-tive appeal. The order of appeal was signed on July 9, 2012.

ARGUMENTS

On appeal, Sunburst argues the trial court erred in granting the default judgment because the calculations of damages for all three substantive areas of relief granted were materially wrong. Sunburst asserts (1) the actual damages/unpaid rent calculation was wrong because it failed to give credit for the security deposit given to secure payment of rent; (2) the stipulated/liquid damages calculation was wrong because it was calculated using the monthly rent for the last year of the lease (year five), not the year of the lease termination (year four), as required by the lease terms; (3) the trial court’s award of attorney’s fees was erroneous because it was a percentage of the first two categories of damages, but both of those categories were erroneously calculated.

Sunburst does not argue that Weber failed to prove a prima facie case of breach of a lease agreement. However, Sunburst asks this Court to reverse the judgment and to remand for further proceedings to correct the calculations.

Weber contends there is no basis to reverse the judgment because Sunburst has failed to show the judgment was not supported by a prima facie case, and if there is any error it is merely in calculations, which the appellate court may correct with an amended judgment. Weber asserts that if this Court finds there are calculation errors that are legally reviewable on appeal, we should render judgment on the merits and reduce the damages award in line with the judicially-admitted amounts Sunburst provided in its appellate brief, specifically $9,719.98 for unpaid 17rents, $39,272.64 for stipulated damages, and $12,248.15 for attorney’s fees, for a total of $61,240.77.

LAW AND ANALYSIS

Timeliness of Appeal

We address first the question of prematurity of the appeal. That issue is not raised by either party, but is indicated on the face of the record by the presence of a motion for new trial that was never decided.

An order of appeal is premature if granted before the court disposes of all timely-fíled motions for new trial, but the order becomes effective upon the denial of such motions. La. C.C.P. art. 2087(D). Because prematurity of the appeal affects our jurisdiction to consider the appeal, we must address it where the face of the record so requires.

The delay for applying for a new trial is seven days, exclusive of legal holidays, which commences to run on the day after the clerk has mailed the notice of judgment. La. C.C.P. art.1974. A devolu-tive appeal may be taken only within 60 days of either the expiration of the delay for applying for a new trial, if no application has been filed timely, or the date of the mailing of the notice of the court’s refusal to grant a timely filed application for a new trial. La. C.C.P. art. 2087(A). An untimely motion for new trial will not serve to interrupt the delays for taking a devolutive appeal. Falkins v. Jefferson Parish Sch. Bd., 97-26, p. 2 (La.App. 5 Cir. 5/9/97), 695 So.2d 1005, 1006. An untimely application for new trial does not affect, interrupt or extend the delay for appealing. St. Tammany Homesites v. St. Tammany Parish, 477 So.2d 123, 124 (La.App. 1st Cir.1985).

Here, the notice of judgment was mailed on April 20, 2012, a Friday. The delay to apply for new trial began running on the following Monday, April 23, 2012. Excluding weekends as legal holidays, that makes May 1, 2012 the seventh Rday after the delay began running, and thus the final day to file a motion for new trial. The appellant filed its motion for new trial on May 22, 2012, well past the deadline.

The motion for new trial was untimely, so the lack of a ruling on the motion is immaterial. The motion for appeal was filed on June 25, 2013, within 60 days of the expiration of the delay for applying for a new trial. Thus, the motion for appeal was timely, and this Court has jurisdiction.

Validity of Default Judgment

We next address the validity of the default judgment. A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case. La. C.C.P. art. 1702(A). When a demand is based upon a conventional obligation, affidavits and exhibits annexed thereto which contain facts sufficient to establish a prima facie case shall be admissible, self-authenticating, and sufficient proof of such demand. La. C.C.P. art. 1702(B)(1).

A. When the plaintiff seeks to confirm a default judgment as provided in Article 1702(B)(1) and (C), along with any proof required by law, he or his attorney shall include in an itemized form with the motion and judgment a certification that the suit is ... on a conventional obligation, ... and that the necessary invoices and affidavit, note and affidavit, or check or certified reproduction thereof are attached....
B. The certification shall indicate the type of service made on the defendant, the date of service, and the date a preliminary default was entered, and shall also include a certification by the clerk that the record was examined by the clerk, including therein the date of the examination and a statement that no answer or other opposition has been filed.

La. C.C.P. art. 1702.1.

We note that the record contains appropriate documentation of the claims made by Weber, but there is no certificate as described in La. C.C.P. art. |n1702.1(B). That is not fatal to the default judgment, however, because the record does contain documentation of all the elements necessary to establish Weber’s right to recover against Sunburst under the lease.

In Hollander v. Wandell, 97-556, p. 4 (La.App. 5 Cir. 11/12/97), 703 So.2d 742, 745, this Court stated,

We hold that the mandatory requirements of articles 1702 and 1702.1 relate to the plaintiffs’ establishing a prima facie case in support of a default judgment. As such, the “proper procedure to remedy the failure of proof is through a motion for new trial and/or an appeal, not a motion to nullify the judgment.” [Citation omitted.]

Although this case comes before us on appeal, the appellant, Sunburst, has not raised failure to establish a prima facie case as a ground for reversal. Rather, Sunburst has challenged the calculations of damages. Under these circumstances, we find there is no basis for reversing or vacating the default judgment.

Further, this Court need not remand where there are errors in calculation, but may recalculate damages on appeal. As stated above, Sunburst’s assignments of error all concern the calculations of damages for which it was cast. Weber has admitted that the amounts are incorrect, and has adopted the amounts suggested by Sunburst. Given that both parties agree on the amounts that should have been awarded, we construe their statements as judicial admissions.

Accordingly, we affirm the default judgment, but amend it to reduce the damages award in line with the judicially-admitted amounts Sunburst provided in its appellate brief, specifically $9,719.98 for unpaid rents, $39,272.64 for stipulated damages, and $12,248.15 for attorney’s fees, for a total of $61,240.77.

hnDECREE

For the foregoing reasons, the judgment is amended to reduce that the amounts awarded, as set out in the appellant’s brief.

There is judgment in favor of the plaintiff, Weber Property Group, LLC, and against defendant, Sunburst Media-Louisiana, LLC, in the amounts of $9,719.98 for due rent, $39,272.64 for stipulated or liquidated damages under the lease agreement, and $12,248.15 due contractually for attorney’s fees, for a total of $61,240.77, along with judicial interest from date of the demand, and for all costs.

AMENDED AND AFFIRMED AS AMENDED

      . The amount "due contractually” refers to attorney’s fees. The amount awarded, $13,385.42, is 25% of the total of the other two awards ($13,090.88 + $40,450.80 = $53,541.68 x .25 = $13,385.42).


source: Caselaw Access Project

author: JUDE G. GRAVOIS, Judge.

license: Public Domain

text:
    Darren BOURG and Darrell Bourg v. ENTERGY LOUISIANA, LLC, and Essex Insurance Company.
    No. 12-CA-829.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 10, 2013.

      Kevin M. Steel, Attorney at Law, Gret-na, LA, for PlaintiffiAppellant.
    Sean D. Moore, Attorney at Law, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges JUDE G. GRAVOIS, ROBERT A. CHAISSON, and STEPHEN J. WINDHORST.
   JUDE G. GRAVOIS, Judge.

|2Plaintiff, Darrell Bourg, sued defendants, Entergy Louisiana, L.L.C. and Essex Insurance Company, his homeowner’s insurer, for damages to his home allegedly caused by Entergy’s negligence when power was restored to the home following Hurricane Katrina. Plaintiff appeals the trial court’s grant of Entergy’s ex parte motion to dismiss plaintiff’s suit as abandoned, pursuant to La. C.C.P. art. 561. On appeal, plaintiff argues that he filed discovery responses within three years of the last activity on the record, which interrupted the abandonment period. He also argues that certain actions of defendants constituted a waiver of the abandonment period, and that the parties took several steps in the prosecution and defense of the suit before accrual of the abandonment period. For the following reasons, we find no merit to plaintiffs arguments and affirm the dismissal of his suit as abandoned.

| -PACTS AND PROCEDURAL HISTORY

In September 2006, plaintiff filed suit against Entergy and Essex for damages to his home allegedly caused by Entergy’s negligence when power was restored to the home following Hurricane Katrina. Over the course of the next two years, the parties filed various pleadings into the record of the case. On December 10, 2008, Essex filed a motion to reset its previously continued motion for summary judgment for a hearing. On that date, the trial court set Essex’s motion for a hearing on January 28, 2009. The hearing was continued without date, however, pursuant to a telephone request made to the trial court by counsel for Essex on January 27, 2009, as evidenced by a minute entry in the record dated January 28, 2009. No further activity occurs of record in the case until January 27, 2012, when plaintiff filed answers to Essex’s previously propounded requests for admissions, and a motion to set a status conference in the case, pursuant to La. C.C.P. art. 1551.

On February 13, 2012, Entergy filed an ex parte motion to dismiss the case on the grounds of abandonment, alleging that an examination of the record showed that the matter had been abandoned, inasmuch as the parties failed to take any step in the prosecution or defense of the case for a period in excess of three years, commencing with Essex’s filing of its motion to reset its motion for summary judgment for a hearing. Entergy attached an affidavit of its counsel to its motion to dismiss, who attested that no steps had been taken by any party in furtherance of this matter until plaintiffs January 27, 2012 filings, which was after the abandonment period had accrued. The trial court signed an ex parte order of abandonment on February 14, 2012. On March 5, 2012, plaintiff moved for a devolutive appeal, which the trial court granted.

\ ¿ANALYSIS

La. C.C.P. art. 561 governs the abandonment of civil actions. It states, in pertinent part:

A. (1) An action, except as provided in Subparagraph (2) of this Paragraph, is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years,....
(3) This provision shall be operative without formal order, but, on ex parte motion of any party or other interested person by affidavit which provides that no step has been timely taken in the prosecution or defense of the action, the trial court shall enter a formal order of dismissal as of the date of its abandonment. The sheriff shall serve the order in the manner provided in Article 1814, and shall execute a return pursuant to Article 1292.
(4) A motion to set aside a dismissal may be made only within thirty days of the date of the sheriffs service of the order of dismissal. If the trial court denies a timely motion to set aside the dismissal, the clerk of court shall give notice of the order of denial pursuant to Article 1913(A) and shall file a certificate pursuant to Article 1913(D).
(5) An appeal of an order of dismissal may be taken only within sixty days of the date of the sheriffs service of the order of dismissal. An appeal of an order of denial may be taken only within sixty days of the date of the clerk’s mailing of the order of denial.
B. Any formal discovery as authorized by this Code and served on all parties whether or not filed of record, including the taking of a deposition with or without formal notice, shall be deemed to be a step in the prosecution or defense of an action.

Article 561 has been construed as imposing three requirements on plaintiffs. First, plaintiffs must take some “step” towards prosecution of their lawsuit. In this context, a “step” is defined as taking formal action before the court which is intended to hasten the suit towards judgment, or the taking of a deposition with or without formal notice. Second, the step must be taken in the proceeding and, with | ¡¡the exception of formal discovery, must appear in the record of the suit. Third, the step must be taken within the legislatively prescribed time period of the last step taken by either party; sufficient action by either plaintiff or defendant will be deemed a step. Clark v. State Farm Mut. Auto. Ins. Co., 00-3010 (La.5/15/01), 785 So.2d 779, 784.

Article 561 is to be liberally construed in favor of maintaining a plaintiffs suit. Id. at 785. Under this article, three years of litigation inactivity results in an inconclusive presumption of abandonment. Any reasonable doubt about abandonment should be resolved in favor of allowing the prosecution of the claim and against dismissal for abandonment. Id. at 787. An ex parte judgment of dismissal may be rescinded by rule to vacate it upon a showing that a cause outside the record prevented accrual of the time period required for abandonment. Id. at 784.

On appeal, plaintiff makes several arguments. First, he argues that his filings on January 27, 2012 were timely and prevented accrual of the abandonment period, because the last activity in the record occurred on January 27, 2009. This activity was defense counsel’s telephone call to the trial court to continue the hearing on Essex’s motion for summary judgment without date. Defendants argue on appeal that this activity does not qualify to prevent the accrual of abandonment because it was not a step to bring the suit to conclusion. We agree. Not every step on the record is deemed to be a step sufficient to hasten the suit to judgment, as required by Article 561. Continuing the hearing on a motion for summary judgment, without date, does not further the suit towards judgment, and thus does not qualify as a “step” to interrupt the accrual of the abandonment period. Hutchison v. Seariver Mar., Inc., 09-0410 (La.App. 1 Cir. 9/11/09), 22 So.3d 989, 994, writ denied, 09-2216 (La.12/18/09), 23 So.3d 946. (A joint motion to continue without date or indefinitely is not considered a step in the prosecution of a |ficase, since by its very nature, an indefinite continuance is not intended to hasten the matter to judgment.)

Second, plaintiff argues that actions of defendants Essex and Entergy between December 20, 2008 and January 27, 2012 constituted a “waiver” of accrual of the abandonment period. Specifically, plaintiff argues that the parties were engaged in settlement negotiations, conversations among counsel, and discovery, which constituted a waiver of accrual of the abandonment period. Conduct or actions of the defendant which are inconsistent with the intent to treat a case as abandoned and which result in the waiver of the right to assert abandonment may occur either before or after the abandonment period has accrued and serves to recommence the abandonment period running anew. Hutchison v. Seariver Mar., Inc., Id. at 994.

However, generally, in cases where there are no formal steps on the record of the case, informal settlement negotiations are insufficient to constitute a step in the prosecution of a suit, Gravlee v. Gravlee, 11-509 (La.App. 3 Cir. 12/7/11), 79 So.3d 1169, 1174, citing Clark, supra, 785 So.2d at 791, and thus do not constitute a waiver of abandonment. In this case, plaintiff did not file a motion to set aside the ex parte judgment of abandonment, pursuant to Article 561(A)(4), wherein he could have presented evidence of activity outside of the record that might have been found to be sufficient to interrupt abandonment. Plaintiffs arguments in his appellate brief of settlement negotiations, conversations among counsel, or other activity outside of the record are not sufficient to challenge the ex parte judgment of dismissal on appeal.

Plaintiff argues that Essex propounded discovery to plaintiff within the relevant time period, as evidenced by plaintiffs filing discovery responses on January 27, 2012. However, plaintiffs filing omits mention of the date that Essex propounded this discovery to plaintiff. Entergy’s affidavit in support of its ex _J¿parte motion stated that the parties failed to take any steps in the prosecution of the case during the relevant time period, which is sufficient to support the ex parte motion. Because the alleged propounding of this discovery occurred outside of the formal record, it was incumbent upon plaintiff, not defendant, to come forward with evidence of when defendant propounded this discovery to plaintiff in order to defeat the presumption of abandonment. The filing of plaintiffs discovery responses, after the accrual of the abandonment period, pursuant to discovery propounded by defendant on some unknown date, is not sufficient to defeat the presumption of abandonment. Again, plaintiff could have come forward with this evidence in a motion to set aside the ex parte judgment of abandonment, but did not do so.

Plaintiff can point to no actions of either defendant constituting a waiver following accrual of the abandonment period. The only pleading in the record following plaintiffs untimely filings of January 27, 2012 is Entergy’s ex parte motion to dismiss the case on grounds of abandonment, which is the assertion of its rights to the dismissal of the suit as abandoned, not a waiver thereof.

CONCLUSION

In conclusion, for the above-stated reasons, we affirm the trial court’s dismissal of plaintiffs suit as abandoned.

AFFIRMED

      . The suit is captioned with two plaintiffs' names, Darren and Darrell Bourg. The record reflects that in 2007, Darren was dismissed as a plaintiff. Accordingly, this opinion will use the singular term "plaintiff.”

      . Entergy's ex parte motion to dismiss the case on the grounds of abandonment and counsel’s affidavit attached thereto state that Essex's motion to reset its motion for summary judgment was filed on December 20, 2008. The record reflects, however, that Essex's motion to reset was actually filed on December 10, 2008.


author: ROBERT M. MURPHY, Judge.

text:
    Chad BOURGEOIS v. SEABRIGHT INSURANCE COMPANY and Versatech Automation Services, LLC.
    No. 12-CA-834.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 10, 2013.

      John B. Fox, John Fox & Associates, L.L.C., New Orleans, LA, for Claimant/Appellant.
    Todd A. Delcambre, Nichole Laborde Romero, LeBas Law Offices, APLC, Lafayette, LA, for Defendants/Appellees.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and ROBERT M. MURPHY.
   ROBERT M. MURPHY, Judge.

12Claimant/appellant, Chad Bourgeois, appeals the judgment rendered by the Office of Workers’ Compensation, District 7, granting defendants/appellees’, Versatech Automation Services, LLC and Seabright Insurance Company’s, motion for summary judgment and dismissing claimant’s claims with prejudice. For the reasons that follow, we affirm the judgment of the workers’ compensation court.

FACTS AND PROCEDURAL HISTORY

Claimant, Chad Bourgeois, was employed by defendant Versatech Automation Services, LLC as an electrician. Claimant alleges that he sustained a work-related injury to his knee on January 19, 2012, which did not manifest itself until early the next morning. Specifically, Mr. Bourgeois claims that on January 19, 2012, he was working in a “man basket” and running a conduit up a wall. This required him to climb in and out of the man basket and on top of pipes. Mr. Bourgeois first experienced pain associated with the alleged injury at issue when he woke up at approximately 2:00 a.m. on the morning of January 20, 2012 with a swollen knee. He reported his injury to his foreman on January 20, 2012 and sought medical treatment for his injury on January 21, 2012.

On April 24, 2012, Mr. Bourgeois filed a disputed claim for compensation against Versatech and its insurer, Seabright Insurance Company, seeking to |arecover for underpayment of benefits, entitlement to additional indemnity benefits and non-payment of medical expenses. On August 10, 2012, Versatech and Seabright filed a motion for summary judgment, alleging that claimant could not establish an “accident” within the meaning of La. R.S. 23:1021(1) because he could not identify an “actual, identifiable, precipitous event,” that occurred within the course and scope of his employment on January 19, 2012. In support of their motion for summary judgment, defendants submitted excerpts of claimant’s deposition transcript and medical records from his January 21, 2012 doctor visit.

In opposition to defendants’ motion for summary judgment, claimant contends that his deposition testimony established that he performed strenuous physical work activities sufficient to meet his burden of proving an “accident” under 23:1021(1), based upon the holding of Bruno v. Harbert Int'l Inc., 593 So.2d 357 (La.1992). After a hearing on the matter on September 10, 2012, the worker’s compensation judge (“WCJ”) granted summary judgment in favor of defendants and signed a judgment on that same day. Mr. Bourgeois now appeals, asserting that the WCJ erred in granting summary judgment.

STANDARD OF REVIEW

Louisiana Code of Civil Procedure Article 966 provides that a motion for summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, show that there is no genuine issue of material fact, and that the mover is entitled to summary judgment as a matter of law.” Kinchen v. Louie Dabdoub Sell Cars, Inc., 05-218 (La.App. 5 Cir. 10/6/05); 912 So.2d 715, 717, writ denied, 05-2356 (La.3/17/06); 925 So.2d 544 (citing La. C.C.P. art. 966(B)). It is well settled that appellate courts review summary judgments de novo, using the same criteria applied by the trial courts to determine whether summary judgment is appropriate. Garrison v. Tanenbaum, 02-1181 (La.App. 5 Cir. 4/8/03); 846 So.2d 40, 42; (citing Smith v. Our Lady of the Lake Hosp., 93-2512 (La.7/5/94); 639 So.2d 730, 750). Therefore, this court must consider whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. Id.

The burden of proof remains with the movant. In considering a motion for summary judgment, the court shall render 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.” Rudolph v. D.R.D. Towing Co., LLC, 10-629 (La.App. 5 Cir. 1/11/11), 59 So.3d 1274, 1277 (citing La. C.C.P. art. 966). Once the motion for summary judgment has been properly supported by the moving party, the failure of the adverse party to produce evidence of a material factual dispute mandates the granting of the motion. Garrison, 846 So.2d at 43.

DISCUSSION

In his sole assignment of error, Mr. Bourgeois contends the WCJ erred in concluding that he could not meet his burden of proving an “accident” under La. R.S. 23:1021(1) because his deposition testimony showing that he performed strenuous work on the day of his injury was sufficient to establish an “accident” under La. R.S. 23:1021(1).

As a threshold requirement, a claimant in a workers’ compensation action must prove “personal injury by accident arising out of and in the course of his employment.” Blair v. Wal-Mart Stores, Inc., 2001-2211 (La.App. 4 Cir. 5/15/02); 818 So.2d 1042, 1047. Under La. R.S. 23:1021(1), an accident is defined as follows:

| ¡/‘Accident” means an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive deterioration.

La. R.S. 23:1021(1). The claimant has the burden of establishing an accident by a preponderance of the evidence. Shaw v. Arc of St. Charles, 00-1193 (La.App. 5 Cir. 11/28/00); 776 So.2d 542, 545. An accident exists when heavy lifting or strenuous efforts, although usual and customary; cause or contribute to a physical breakdown or accelerate its occurrence because of a preexisting condition. Bruno v. Harbert Int’l, Inc., 593 So.2d 357, 359 (La.1992). The jurisprudence consistently construes liberally the requirement of a work-related accident to be eligible for workers’ compensation benefits. Hall v. J.E. Merit Constructors, Inc., 2002-2648 (La.App. 1 Cir. 11/7/03); 861 So.2d 224, 227-28. However, despite the liberal construction afforded the employee in a workers’ compensation action, the employee’s burden of proof is not relaxed. Id. The employee is still required to identify the event marking the time when one can identify an injury. Id.

A worker’s testimony alone may be sufficient to discharge his burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the accident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. Shaw, 776 So.2d at 545. The WCJ’s determinations as to whether the worker’s testimony is credible and whether the worker satisfied his burden are factual determinations not to be disturbed on review unless clearly wrong or manifestly erroneous. Id.

During his deposition, Mr. Bourgeois testified that he did not know exactly when on January 19, 2012 his injury occurred. Instead, he testified that on January 19, 2012, he was climbing in and out of a man basket and on top of pipes. The first |fitime he experienced any pain associated with the injury in question was when he woke up at 2:00 a.m. on the morning of January 20, 2012 with a swollen knee. He reported the injury to his foreman on January 20, 2012. Mr. Bourgeois’ medical records indicate that he sought treatment for his injuries on January 21, 2012, at which time, he indicated that he had a regular day at work and did not recall experiencing a traumatic or painful event or doing anything out of the ordinary.

On appeal, Mr. Bourgeois makes the same argument that he presented to the WCJ. Specifically, Mr. Bourgeois contends that because he climbed in and out of the man basket and on top of pipes on January 19, 2012, he has shown that he performed strenuous physical work activities sufficient to meet his burden of proof as to an “accident” under 23:1021(1). He relies upon the holding of Bruno, supra, in support of this proposition.

Defendants contend that Bruno is not applicable because it relies upon the pre-amendment version of La. R.S. 23:1021(1), which defined an “accident” as “an unexpected or unforeseen event happening suddenly or violently, with or without human fault, and producing at the time objective symptoms of an injury.” Bruno, 593 So.2d at 360. After the 1988 accident in Bruno occurred, La. R.S. 23:1021(1) was amended on January 1, 1990 to require that claimants must prove an “actual, identifiable, precipitous event,” was the cause of a work-related injury. La. R.S. 23:1021(1) (emphasis added). Because claimant’s deposition testimony shows that he does not know how or when his alleged injury occurred on the day in question, defendants contend that the WCJ’s grant of summary judgment was proper because he cannot establish that an accident occurred as defined by La. R.S. 23:1021(1).

While we agree that an accident can be found to exist when heavy lifting or strenuous effort cause or contribute to a physical breakdown, the employee is still required to “identify the event marking the time when one can identify an injury.” Hall, 861 So.2d at 228. Accepting Mr. Bourgeois’ deposition testimony as true, he cannot prove an accident within the meaning of La. R.S. 23:1021(1) because he is unable to identify an “actual, identifiable, precipitous event” that directly caused his alleged injury. Mr. Bourgeois’ testimony regarding the onset of pain and his description of work on the day in question are insufficient to meet his burden at trial of proving an accident as defined by La. R.S. 23:1021(1). As the WCJ concluded, Mr. Bourgeois failed to present any supporting evidence, through an affidavit or otherwise, to correlate his description of the work he performed to his alleged injury. Mr. Bourgeois’ testimony is insufficient to meet his burden of proving an accident under La. R.S. 23:1021(1) by a preponderance of the evidence.

Accordingly, we find that Mr. Bourgeois failed to raise a genuine issue of material fact as to whether he can carry his burden of proving an “accident” as defined by La. R.S. 23:1021(1). Therefore, defendants are entitled to summary judgment as a matter of law.

CONCLUSION

Because there are no genuine issues of material fact as to whether Chad Bourgeois can meet his burden of proving a work-related “accident” within the meaning of La. R.S. 23:1021(1), we find that the WCJ judge properly granted summary judgment in favor of defendants, Versa-tech Automation Services, LLC and Sea-bright Insurance Company, dismissing Mr. Bourgeois’ claims with prejudice. Accordingly, the judgment of the workers’ compensation court is affirmed.

AFFIRMED


author: ROBERTA. CHAISSON, Judge.

text:
    STATE of Louisiana v. Ronald OHLSSON.
    No. 12-KA-708.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 24, 2013.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Vincent A. Paciera, Jr., Assistant District Attorneys, Gretna, LA, for Plaintiff/Appel-lee.
    Prentice L. White, Attorney at Law, Baton Rouge, LA, for Defendant/Appellant.
    Ronald Ohlsson, Louisiana State Prison, Angola, LA, for Defendant/Appellant, In Proper Person.
    Panel composed of Judges SUSAN M. CHEHARDY, JUDE G. GRAVOIS, and ROBERT A. CHAISSON.
   ROBERTA. CHAISSON, Judge.

1 gDefendant, Ronald Ohlsson, appeals several convictions arising from the theft of a vehicle and the armed robberies of three bars in Jefferson Parish in July of 2010. For the reasons that follow, we affirm his convictions and sentences and remand the matter for correction of the commitmenVminute entry.

PROCEDURAL HISTORY

On September 8, 2010, the Jefferson Parish District Attorney filed a bill of information charging defendant with one count of possession of a firearm by a convicted felon, in violation of LSA-R.S. 14:95.1 (count one); three counts of armed robbery, violations of LSA-R.S. 14:64 (counts two, three, and four); and one count of illegal possession of stolen things valued at over $500.00, in violation of LSA-R.S. 14:69 (count five). At his September 7, 2010 arraignment, defendant pled not guilty.

|sThis matter proceeded to trial before a twelve-person jury on February 7, 2012. After considering the evidence presented, the jury, on February 10, 2012, found defendant guilty as charged. On February 24, 2012, the trial court sentenced defendant to fifteen years imprisonment at hard labor and imposed a fine of $1,000.00, on count one; to twenty-five years imprisonment at hard labor on counts two, three, and four; and to ten years imprisonment at hard labor on count five. The court ordered that all sentences be served consecutively and that the sentences as to counts one, two, three, and four be served without benefit of parole, probation, or suspension of sentence.

As to count four, the State thereafter filed a bill of information pursuant to the provisions of LSA-R.S. 15:529.1, alleging that defendant was a seventh felony offender. After a hearing on May 29, 2012, the trial court found defendant to be a triple felony offender, vacated defendant’s original sentence on count four, and imposed an enhanced sentence of life imprisonment without benefit of parole, probation, or suspension of sentence. Defendant now appeals.

FACTS

These charges arise from a series of robberies that occurred in July of 2010, at three different bars in Jefferson Parish.

Turtle Bar

On July 18, 2010, Catherine Bright was working as a bartender at the Turtle Bar. At approximately 2:10 p.m., she noticed a man drive into the parking lot, back his car in and out of one of the parking spaces, and eventually park. A few minutes later, a man walked into the bar, pointed a gun at the patrons, and told everyone to get on the floor. Bright got down on the floor behind the bar. The perpetrator walked over to her, pointed a gun at her, and asked for the poker money. After Bright opened the drawer, the man told her to open the cash register. l4Bright complied and then returned to her position on the floor. The man took money from the poker drawer and from the cash register before leaving in a car that looked like an old Toyota. Bright called 911 to report the incident. When being interviewed by police, Bright described the perpetrator as a tall, thin build, Caucasian male, wearing a “hooded ... ski mask type thing,” a blue paisley bandanna, gloves, a long-sleeved shirt, jeans, and tennis shoes.

In addition, Linda Eddy, a patron who escaped the bar when the perpetrator entered, observed defendant’s old grey/pale blue Toyota in the parking lot. She memorized the car’s license plate number, FEU375, and provided it to the police when they arrived.

Zaddie’s Tavern

Dawn Canman was working at Zaddie’s Tavern on July 24, 2010, when a very tall, thin, Caucasian male approached her with a gun. The man, who was dressed in dark, baggy jeans, a cap with a hoodie, and a blue and white bandanna that went up to his eyes, pointed his gun at Canman and demanded that she open the cash register. Canman was able to escape and call 911 when the man was distracted. According to Steven Lindhorst, a customer at the bar, the perpetrator then grabbed some cash out of the drawers and left in an old black Toyota. Canman, who was outside the bar, observed the perpetrator enter a Toyota Corolla bearing license plate number FEU375.

Lindhorst’s description of the perpetrator was consistent with the description given by Canman. Lindhorst described the man as thin, wearing dark clothing, a hoodie, cap, and a dark blue “hanky” that left only his eyes exposed. Lindhorst opined that the man was approximately 6T" to 6'2" tall, and had large hands.

| Matador Lounge

On July 27, 2010, at approximately 10:50 p.m., Lana Arnoult was working as a bartender at the Matador Lounge when a man with a gun walked in, announced in a low voice that this was a robbery, and jumped over the bar. Arnoult ran out of the bar and called the police. According to customers in the bar, the perpetrator then grabbed money bags from underneath the register, took the cash register, and fled the bar. Randy Thibodeaux and another customer ran after the robber, who dropped the cash register, turned around toward the men, pointed his small black handgun at them, and stated “don’t make me shoot.” The men stopped their pursuit and waited for police to arrive.

The description of the perpetrator given by Arnoult and the customers at the Matador Lounge was, for the most part, consistent. Arnoult described him as a tall, thin, white male, who wore a hooded black sweatshirt, glasses, a hat, and a multicolored bandanna that covered his face. Erby Aucoin, a customer, described the robber as approximately 6'3" tall, slim to medium build white man, who was wearing a blue and white bandanna and glasses. Jimmy Barbarito, another patron, stated that the perpetrator was wearing carpenter blue jeans with a slit on the left leg of the jeans and a blue and white bandanna that covered his face. He further described the robber as approximately 6'2" to 6'3" tall and thin. Lastly, Randy Thibo-deaux described the assailant as approximately 6'3" to 6'4" tall, wearing a black hoodie, bandanna, and blue jeans.

Police officers arrived at the scene of the robbery, and a search of the area was conducted. Deputy John Heck and his K-9 dog located defendant in a shed in a homeowner’s backyard. After a brief struggle with the K-9 dog, defendant surrendered. Deputy Lee Hardy arrived in the backyard, placed defendant under arrest, and read him his Miranda rights. While walking out of the backyard, | Bdefendant spontaneously stated, “I’m sorry, I didn’t mean to do this, I have a drug problem, I’m trying to kick it, I didn’t think it would get to this point.” Subsequently, Deputy Hardy conducted a search incident to arrest- and discovered over a thousand dollars in cash in defendant’s pocket. Also recovered from defendant’s person were sunglasses, a hat, and a blue and white bandanna.

Detective Kevin Balser, the lead investigator in the armed robberies of the Turtle Bar and Zaddie’s Tavern, arrived on the scene of the Matador robbery and interviewed witnesses, whose description of the perpetrator matched the descriptions of the suspect in the Zaddie’s Tavern and Turtle Bar robberies. Detective Balser also learned that the suspect vehicle used in the two previous robberies had been located nearby. In particular, Deputy Robert Mitchell located the stolen blue four-door Toyota Corolla, bearing license plate number FEU375, near the intersection of West Metairie and Airline Park at 10:42 p.m. Deputy Mitchell noted that the car had been abandoned, but that the engine was still warm.

After obtaining this information, Detective Balser took custody of defendant from the patrol division, read him his Miranda rights, and then placed him in his police car. Defendant was apologetic for what he did and admitted to committing the Matador robbery, explaining that he had an extremely addictive heroin problem. Defendant then pointed Detective Balser in the general direction of where he had dropped his handgun. When the handgun was recovered, defendant positively identified it as the handgun used in the Matador Lounge robbery, as well as the other two robberies.

17Petective Balser transported defendant to University Hospital for treatment of injuries received in his struggle with the K-9 dog. While at the hospital, defendant initiated another conversation with the officer. Once again, defendant was apologetic for what he had done and admitted that the Toyota Corolla was the vehicle used in all three robberies. He admitted that he used the vehicle that night, but on the way to the Matador Lounge, the vehicle broke down, and he abandoned it. Sergeant Dax Russo was also present at the scene of defendant’s apprehension and at University Hospital. He likewise heard defendant apologize for what he had done and admit that he had a drug problem. Further, he heard defendant make incul-patory statements about all three incidents.

Detective Balser subsequently obtained a search warrant for defendant’s apartment. Pursuant to the search, he located a right-hand brown leather glove that matched the left-hand glove found in the stolen Toyota. As part of the police investigation, fingerprints were obtained from inside the Toyota. It was subsequently determined that the fingerprints recovered from inside the vehicle matched defendant’s fingerprints.

Defendant testified in his own behalf at trial. Defendant denied robbing the three bars and also denied stealing the Toyota Corolla. However, defendant testified that one night he was given a ride in the Corolla by a man named Brian Yurel. While driving in the car with Yurel, the car stalled; Yurel jumped out, retrieved something from the trunk, and then left. Defendant got out of the car and started walking toward Yurel’s house when he observed the police arrive at the Matador Lounge. Defendant then went over to a gas station near the Matador Lounge where a crowd had formed and heard that two kids with guns robbed the bar. Defendant resumed walking back to Yurel’s house when he encountered Yurel hiding near the side of a house. Defendant testified that Yurel admitted to | ¿robbing the bar. Defendant further testified that he is afraid of the police, so he hid in the shed in the backyard of one of the houses. Defendant denied confessing to the crimes or possessing the firearm used to commit the crimes. . He also denied possessing a blue and white bandanna.

SUFFICIÉNCY OF THE EVIDENCE

In his counseled appellate brief and in his pro se brief, defendant challenges the sufficiency of the evidence used to convict him. With regard to the armed robbery and the convicted felon in possession of a firearm charges, defendant contends that the State failed to prove his identification as the perpetrator. He points out that the assailant could not be identified by any of the witnesses, that the descriptions of the perpetrator were inconsistent, that Brian Yurel was the person who robbed all three bars, and that he was not found in possession of the gun when it was recovered. Further, with regard to possession of stolen property, defendant contends that the State failed to prove the value of the stolen vehicle. For the reasons that follow, we find no merit to these arguments.

In reviewing the sufficiency of the evidence, an appellate court must determine that the evidence, whether direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Neal, 00-0674 (La.6/29/01), 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002); State v. Mickel, 09-953 (La.App. 5 Cir. 5/11/10), 41 So.3d 532, 534, writ denied, 10-1357 (La.1/7/11), 52 So.3d 885. Under the Jackson standard, a review of the record for sufficiency of the evidence does not require the court to ask whether it believes that the evidence |9at the trial established guilt beyond a reasonable doubt. Rather, the reviewing court is required to consider the whole record and determine whether any rational trier of fact would have found guilt beyond a reasonable doubt. State v. Jones, 08-20 (La. App. 5 Cir. 4/15/08), 985 So.2d 234, 240.

In the instant case, with regard to the armed robbery convictions and the possession of a firearm by a convicted felon conviction, defendant claims that the State failed to prove his identification as the perpetrator of these offenses. When the key issue is the defendant’s identity as the perpetrator, the State is required to negate any reasonable probability of mis-identification. State v. Long, 408 So.2d 1221, 1227 (La.1982); State v. Searls, 04-790 (La.App. 5 Cir. 1/25/05), 895 So.2d 40, 43.

In the present case, the witnesses were unable to identify the perpetrator of the armed robberies because his face and head were covered. Nonetheless, we find that the State presented other sufficient evidence to prove beyond a reasonable doubt that defendant was the person who committed these crimes.

The witnesses from all three bars provided consistent descriptions of the armed robber. They described the perpetrator as a very tall white male, slim build, between 165 to 180 pounds, wearing a hoodie, jeans, a hat, and a blue and white bandanna that covered his face. Additionally, in both the Turtle Bar and Zaddie’s Tavern robberies, the witnesses provided a consistent description of the vehicle the perpetrator used to flee the scene, including the license plate number, and the make and model of the vehicle. The detectives later learned that the vehicle used by the perpetrator belonged to Glen Oberry and had been reported stolen four days prior to the Turtle Bar robbery. A neighbor’s home •video monitoring system caught the theft on tape. The video recording depicted the perpetrator as a thin Caucasian Imman wearing a hoodie. In court, Oberry identified the man depicted in the video as defendant.

Moreover, after the Matador Lounge was robbed, the perpetrator was chased from the bar and was observed jumping over fences and running through neighbors’ backyards. Defendant was found hiding in a shed in close proximity to the Matador Lounge and was apprehended. Defendant then confessed to committing the three armed robberies and directed the police to the location of the handgun used. The handgun was recovered next to the shed where defendant was hiding, along with two rolls of quarters. Defendant also explained that he used Cherry’s stolen vehicle in the first two robberies, but abandoned the vehicle while in route to the Matador Lounge because it broke down.

The stolen vehicle was recovered on the day of the Matador Lounge robbery. Defendant’s fingerprints matched the prints recovered from inside the Toyota. Also, a glove found inside the vehicle matched the glove found at defendant’s apartment. In addition, a search of defendant’s person was conducted at the time of his arrest. Pursuant to the search, the police recovered sunglasses, a hat, and a blue and white bandanna, all of which were accessories used by the perpetrator during the commission of the crimes.

In his sufficiency argument, defendant points out that there were inconsistencies in the descriptions of the perpetrator, and in particular, points to Deputy Simmons’ police report indicating the perpetrator was 20-25 years old, 5'5" to 5'9" tall, and between 135 and 155 pounds. Defendant also claims that Detective Balser lied about his confessions. The jury was presented with any inconsistencies in the descriptions and also heard defendant’s claims that he did not confess. After considering the evidence, the jury obviously rejected defendant’s theory of misidentification and his claim that Detective Balser lied l^about his confessions. The credibility of witnesses presenting conflicting testimony on factual matters is within the sound discretion of the trier of fact. The trier of fact shall evaluate the witnesses’ credibility, and when faced with a conflict in testimony, is free to accept or reject, in whole or in part, the testimony of any witness. It is not the 'function of the appellate court to second guess the credibility of witnesses as determined by the trier of fact or to reweigh the evidence absent impingement on the fundamental due process of law. State v. Jones, 985 So.2d at 240.

Accordingly, in view of defendant’s close proximity in time and space to the Matador Lounge at the time of his arrest, his matching description to the perpetrator provided by the witnesses, his flight and attempt at avoiding detection by hiding in a neighbor’s shed, his fingerprints and glove found inside the stolen vehicle used in the commission of the first two robberies, his possession of excess currency and accessories that matched those worn by the perpetrator, and his confession to committing the armed robberies with the firearm, we find that the State met its burden of proving defendant’s identity as the perpetrator.

With regard to his conviction for possession of a firearm by a convicted felon, defendant also claims that he could not have been found guilty of this offense because the handgun was not found in his possession and was recovered outside the perimeter of where he was apprehended. Actual possession of a firearm is not necessary to prove the possession element of LSA-R.S. 14:95.1. Constructive possession is sufficient to satisfy the element of possession. State v. Jones, 09-688 (La.App. 5 Cir. 2/9/10), 33 So.3d 306, 314. A person is in constructive possession of a firearm if the firearm is subject to his dominion and control. A person’s dominion over a weapon constitutes constructive possession even if it is only temporary in nature and even if control is shared. State v. Lee, 02 704 (La.App. 5 Cir. 12/30/02), 836 So.2d 589, 593, writ denied, 03-535 (La.10/17/03), 855 So.2d 755.

A defendant’s mere presence in an area where a firearm was found does not necessarily establish possession. The State must prove that the offender was aware that a firearm was in his presence and that the offender had the general intent to possess the weapon. Guilty knowledge may be inferred from the circumstances and proved by direct or circumstantial evidence. State v. Jones, 33 So.3d at 314.

In the present case, defendant clearly did not have physical possession of the gun at the time he was apprehended. However, the State produced sufficient evidence to prove that defendant had constructive possession of the weapon. At trial, Detective Balser testified that defendant pointed out the general direction of where he had dropped the handgun. The gun was thereafter recovered on the side of the shed where defendant had been apprehended. Once recovered and shown to defendant, he positively identified it as the gun used in the Matador robbery, as well as the two other robberies. Moreover, the gun was shown to several witnesses at trial who identified it as the gun used in the robberies. Viewing the evidence presented at trial in the light most favorable to the prosecution, we find that the State proved the possession element of this offense beyond a reasonable doubt.

We now turn our attention to the sufficiency of the evidence relating to the possession of stolen property valued over $500.00. In particular, defendant, in his pro se brief, contends that the State failed to prove the value of the stolen property.

In order to convict a defendant of illegal possession of stolen things valued at over $500.00, the State must prove beyond a reasonable doubt that the defendant: (1) intentionally possessed, procured, received, or concealed, (2) anything of value, (3) that was the subject of any robbery or theft, (4) where circumstances indicate that the defendant knew or had good reason to believe that 1 iathe thing was the subject of one of these offenses, and that (5) the value of the stolen item exceeds $500.00. LSA-R.S. 14:69; State v. Harbor, 00-1258 (La.App. 5 Cir. 11/28/00), 775 So.2d 1082, 1084, appeal after remand, 01-1261 (La.App. 5 Cir. 4/10/02), 817 So.2d 223, writ denied, 02-1489 (La.5/9/03), 843 So.2d 388. Here, defendant only challenges the value element.

In this case, the State introduced seven photographs depicting the vehicle’s condition at the time it was recovered on July 27, 2010. The jury was given the opportunity to observe and examine these photographs. Also, at trial, Oberry, the owner of the 1986 Toyota Corolla, testified as follows regarding the condition his vehicle was in at the time it was returned to him:

The front tire, passenger’s side, which was a new tire, had a slash in it and it was totally off the rim. The, obviously the engine started, but the clutch would not engage, it was burned up and, of course, the passenger’s side rear window was broken out, remained broken out. And my mechanics decided that this was not worth repairing, they would, even if they put a new clutch in it still may have involved more problems. So it wasn’t worth putting more than a thousand dollars into it, which it would have been.

In the instant case, the jury listened to Oberry’s testimony and had the opportunity to view pictures of the vehicle and form a conclusion as to the value of the vehicle they observed. Thus, viewing this evidence in a light most favorable to the prosecution, we find that the State satisfied its burden of proving that the vehicle was valued at $500.00 or more.

In sum, we have reviewed all of defendant’s arguments regarding the sufficiency of the evidence and conclude that the State proved beyond a reasonable doubt that defendant was guilty of the offenses charged.

\uOTHEB CRIMES EVIDENCE

In his pro se appellate brief, defendant argues that the State failed to comply with the requirements necessary to admit other crimes evidence. Defendant merely cites LSA-C.E. art. 404(B)(1), but he fails to set forth any arguments or specifics as to this issue.

According to Rule 2-12.4 of the Uniform Rules, Courts of Appeal, all specifications or assignments of error must be briefed, and the appellate court may consider as abandoned any specification or assignment of error that has not been briefed. See State v. Tranchant, 10-459 (La.App. 5 Cir. 11/23/10), 54 So.3d 730, 735, writ denied, 10-2821 (La.4/29/11), 62 So.3d 108. Restating an assigned error in brief without argument or citation of authority does not constitute briefing. State v. Lauff, 06-717 (La.App. 5 Cir. 2/13/07), 953 So.2d 813, 819. In State v. Fernandez, 03-987 (La.App. 5 Cir. 12/30/03), 864 So.2d 764, 770, this Court found that the defendant failed to brief his position where he merely asserted his position, but failed to include argument or any legal citation in support thereof. The Fernandez court found that the assertions presented nothing for review on appeal. Likewise, in the instant case, defendant has failed to brief his position regarding other crimes evidence. Therefore, he has presented nothing for review on appeal. This issue is considered abandoned.

VOIR DIRE

Defendant next argues in his pro se brief that the trial court erred by not replacing the jury pool after a juror made a prejudicial comment during voir dire. Specifically, defendant complains that one particular juror was asked whether anyone she knew had been the victim of the crime, to which she replied “yes.” Then, when the same juror was asked whether this information would have any 1^influence in her reaching a decision in this case, she responded “I have already made a decision in this case.” Defendant contends that the juror’s comment implied a “preconceived notion of guilt,” and “opened the gateway” for the entire jury to base an opinion.

Defendant fails to include any legal citation in support of his argument that a new jury pool should have been empaneled based on one juror’s answer provided in response to a widely accepted question asked during voir dire. Moreover, while defendant sets forth the general facts of the potential juror’s questioning, he fails to set forth any arguments in support of his general allegation of prejudice. Accordingly, we find that defendant has presented nothing for review on appeal with regard to this alleged error. See State v. Fernandez, supra.

MOTION FOR MISTRIAL

In his pro se brief, defendant argues that the trial judge erred by not declaring a mistrial after it was discovered that one of the jurors, Dr. Sanne, was acquainted with Brian Yurel, a possible witness who defense claimed was responsible for the robberies. Defendant complains that the juror’s acquaintance with Yurel was communicated to the bailiff and overheard by his fellow jurors, leading to the dismissal of the juror. Defendant claims that he was prejudiced by this exchange, and a mistrial was warranted because “the jury was aware of a major ordeal going on and by the juror being dismissed led the jury to believe that I was the bad guy.”

In the present case, after the first three witnesses testified, it was brought to the judge’s attention by his bailiff that one of the jurors, Dr. Sanne, knew Brian Yurel, a name mentioned in the defense’s opening statement. At a bench conference, Dr. Sanne described Yurel and testified that he knew Yurel’s family and grew up in the same neighborhood as Yurel’s nephew. The trial court asked |1fiDr. Sanne whether his acquaintance with Yurel would prevent him from being fair and impartial in considering the evidence presented at trial. Dr. Sanne indicated that it should not, but when asked by the State about Yurel’s character, Dr. Sanne testified that Yurel is heavily into drugs and has a “checkered past.” Outside the hearing of this juror, the State moved to remove Dr. Sanne, arguing that it was prejudiced by the juror knowing the character of this person and telling that information to the rest of the jurors. Even though defense counsel informed the court that he was no longer going to call Yurel as a witness, the trial court granted the State’s request to remove Dr. Sanne and replace him with one of the alternate jurors. The defense noted its objection based on the juror’s indication that he could be fair and impartial despite his acquaintance with Yurel and his family.

Dr. Sanne was then brought back to the bench and questioned to determine whether he mentioned his acquaintance with Yu-rel to the other jurors. Dr. Sanne stated that he did not think he did, but that the other jurors may have overheard him talking to the bailiff. Based on this information, the trial court decided to speak to each juror individually to determine what they may have overheard. Four of the jurors were questioned and each stated that the only thing they overheard was that Dr. Sanne knew one of the witnesses. The State then told the trial court that it did not believe any more jurors needed to be questioned, and asked for a recess to determine whether it would move for a mistrial. The State asked the defense whether it would join in on its motion for a mistrial if it decided to make one, to which the defense replied:

DEFENSE: I don’t see grounds for a mistrial.
THE STATE: So your answer is no?
DEFENSE: The answer is no.

_[jjAfter a recess was held, the State confirmed that it would not be moving for a mistrial. Defendant now contends that the trial court erred in not declaring a mistrial because the jury was tainted by the information concerning Dr. Sanne’s acquaintance with Yurel.

Defendant did not move for a mistrial based on these grounds at trial. In fact, defense counsel very clearly stated on the record that he did not see any grounds for a mistrial. The failure of the defense to move for a mistrial is a waiver of the error. See LSA-C.Cr.P. arts. 770, Official Revision Comment (b); State v. Sterling, 95-673 (La.App. 5 Cir. 2/27/96), 670 So.2d 1316, 1324; and State v. Sartain, 08-266 (La.App. 4 Cir. 12/30/08), 2 So.3d 1132, 1139, writ denied, 09-167 (La.10/30/09), 21 So.3d 274. Accordingly, defendant is pro-eedurally barred from raising this issue on appeal.

INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant also makes allegations of ineffective assistance of counsel in his pro se brief. Defendant argues that his trial counsel was ineffective in failing to incorporate into his defense the fact that the police investigated other suspects in connection with the subject robberies. In particular, defendant contends that a man named Randell Krovane was investigated as a possible suspect and that the investigation into Krovane should have been incorporated into his defense. Given the circumstantial nature of this case, defendant asserts that this information may have changed the outcome of his trial.

The Louisiana Supreme Court has held that generally a claim of ineffective assistance of counsel is most appropriately addressed through an application for post-conviction relief, rather than direct appeal, to afford the parties an opportunity to make an adequate record for review. State v. Truitt, 500 So.2d 355 (La.1987). However, if the appeal record contains sufficient evidence to decide the issue, and 118the issue is properly raised by assignment of error on appeal, it may be addressed in the interest of judicial economy. State v. Fairley, 02-168 (La.App. 5 Cir. 6/26/02), 822 So.2d 812, 816.

In this case, the record is insufficient to address defendant’s claims of ineffective assistance of counsel. Thus, this claim should be addressed through post-conviction proceedings.

EXCULPATORY EVIDENCE

In another issue raised by defendant in his pro se brief, he claims that the State withheld potentially exculpatory documentation from him until his second day of trial. He specifically complains about the State’s failure to turn over before trial a copy of the 911 tape/transcript which contained information regarding a suspicious person near an abandoned Toyota Corolla, at approximately 10:39-10:44 p.m. on the night of the Matador Lounge robbery. Defendant asserts that this information was exculpatory insofar as it proved that the person seen near the Toyota Corolla could not have been the individual who robbed the Matador Lounge since the distance between the vehicle and the lounge is ten blocks, not giving the perpetrator enough time to reach the lounge at 10:55 p.m., the time of the robbery. We find no merit to this argument.

In Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-1197, 10 L.Ed.2d 215 (1963), the United States Supreme Court held that the suppression by the State of evidence favorable to the accused after it receives a request for it violates a defendant’s due process rights where the evidence is material to either guilt or punishment, without regard to the good or bad faith of the prosecutors. Favorable evidence includes both exculpatory evidence and evidence that impeaches the testimony of a witness whose credibility or reliability may determine guilt or 119innocence. State v. Lande, 06-24 (La.App. 5 Cir. 6/28/06), 934 So.2d 280, 295, writ denied, 06-1894 (La.4/20/07), 954 So.2d 154.

Evidence is material under Brady only if there is a reasonable probability that the result of the proceeding would have been different if the evidence had been disclosed to the defense. A reasonable probability is one that is sufficient to undermine confidence in the outcome of the trial. United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985). A reviewing court determining materiality must ascertain “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.” Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 1566, 131 L.Ed.2d 490 (1995); State v. Johnson, 05-180 (La.App. 5 Cir. 11/29/05), 917 So.2d 576, 579, writ denied, 06-1254 (La.12/15/06), 944 So.2d 1282.

Discovery violations are not grounds for reversal unless they have actually prejudiced the defendant. State v. Garrick, 03-137 (La.4/14/04), 870 So.2d 990, 993. Even a discovery violation involving the State’s failure to disclose exculpatory evidence does not require reversal under the due process clause “unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different result.” Strickler v. Greene, 527 U.S. 263, 281, 119 S.Ct. 1936, 1948, 144 L.Ed.2d 286 (1999); State v. Johnson, 917 So.2d at 579.

Having reviewed the record, we find that there was not a Brady violation in the instant case. First, the 911 tape/transcript does not contain exculpatory evidence. In Detective Balser’s search warrant application, he states that minutes before the Matador robbery was reported, a person called in to report a suspicious vehicle and a suspicious person walking from the vehicle. No information | ^regarding the description of the suspicious person was provided. It is unknown whether that suspicious person was defendant. Moreover, it was never established how much time elapsed between the time the caller observed the abandoned vehicle and when the incident was reported.

Second, defendant was in no way prejudiced by the late disclosure of this evidence. Defendant was given time to review this material and incorporate it into his defense at trial. On cross-examination, defense counsel questioned Deputy Mitchell and Detective Balser regarding the time the abandoned vehicle was reported. He also inquired as to the distance of the vehicle from its location to the Matador Lounge, arguing that less than fourteen minutes had elapsed between the time the vehicle was reported and the Matador Lounge was robbed.

Accordingly, since the evidence at issue was not exculpatory and defendant was not prejudiced by its late disclosure, we find no merit to this pro se argument.

PROSECUTORIAL MISCONDUCT

In another issue raised in his pro se brief, defendant alleges prosecutorial misconduct based upon the assertion that the State knowingly offered the false testimony of Glen Oberry. He contends that Oberry identified defendant for the first time at trial as the individual whom he observed in a home surveillance "video stealing his car, when Oberry did not provide such identification prior to trial. Defendant asserts that Oberry’s false identification led to his conviction.

The record discloses no contemporaneous objection to claims of prosecutorial misconduct. The contemporaneous objection rule, contained in LSA-C.Cr.P. art. 841(A), is specifically designed to promote judicial efficiency by preventing a defendant from gambling for a favorable verdict and then, upon conviction, resorting to appeal on errors which either could have been avoided or corrected at the time or should have put an immediate halt to the proceedings. State v. Taylor, 93-2201 (La.2/28/96), 669 So.2d 364, 368, cert. denied, 519 U.S. 860, 117 S.Ct. 162, 136 L.Ed.2d 106 (1996). An irregularity or error cannot be availed of after verdict unless it was objected to at the time of its occurrence. This contemporaneous objection rule applies to claims of prosecutorial misconduct. See State v. Carter, 10-973 (La.App. 5 Cir. 8/30/11), 75 So.3d 1, 6, writ denied, 11-2060 (La.2/10/12), 80 So.3d 469. Accordingly, defendant has waived any error based on these allegations by his failure to enter a contemporaneous objection.

Furthermore, the allegations are not supported by the record. Oberry’s identification of defendant did not differ from his prior statement made to the police. Oberry testified that a neighbor’s surveillance camera caught the theft of his vehicle on tape. The video captured the assailant’s physical features, but Oberry told the police that he did not know the person depicted on the video. Oberry was not presented with a photographic lineup. At trial, Oberry identified defendant from the “distinct characteristics of his face,” as the person depicted in the video. Thus, even assuming the charge of prosecutorial misconduct was before the court, the record does not support defendant’s allegation that Oberry’s testimony was fraudulent. Accordingly, this assigned error is without merit.

ERROR PATENT REVIEW

We have also reviewed the record for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975).

As to count five, the commitment is inconsistent with the transcript regarding the crime for which defendant was convicted. The commitment indicates that defendant was found guilty of “receiving stolen things $100 +.” However, the transcript reflects that defendant was found guilty of possession of stolen things valued at over $500.00. To insure an accurate record, we remand the matter to the trial court for correction of the commitment/minute entry to properly ^reflect that defendant was found guilty of possession of stolen things valued at over $500.00. See State v. Bell, 03-217 (La.App. 5 Cir. 5/28/08), 848 So.2d 87.

For the reasons set forth herein, we affirm defendant’s convictions and sentences, but remand the matter for correction of the minute entry on count five.

CONVICTIONS AND SENTENCES AFFIRMED; MATTER REMANDED

      . Approximately $200.00 was stolen.

      . With regard to this incident, the bar’s video surveillance system caught this robbery on tape.

      . At trial, Glen Oberry testified that on July 14, 2012, his 1986 Toyota Corolla, bearing license plate number FEU375, was stolen from the street in front of his house. A neighbor’s home video monitoring system caught the theft on tape, which showed the perpetrator was a thin Caucasian man wearing a hoodie. Oberry identified defendant as the man depicted in the video.

      . Deputy Lambert recovered the gun, as well as two rolls of quarters, on the side of the shed where defendant had been apprehended.

      . The State and defendant stipulated that Yu-rel is approximately 5’9" and weighs 140 pounds.

      . At some places in the record, the model year of the Toyota Corolla is noted as 1984; however, Glenn Oberry, the owner of the ve-hide referred to it as a 1986 Toyota Corolla in his trial testimony.