author: PAUL A. BONIN, Judge.

text:
    BORGNEMOUTH REALTY COMPANY, LTD. v. PARISH OF ST. BERNARD, Lake Borgne Levee District, and St. Paul Fire and Marine Insurance Company.
    No. 2013-CA-1651.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 21, 2014.

      Robert E. Couhig, Jr., Gary J. Rouse, Jason A. Cavignac, Couhig Partners, LLC, New Orleans, LA, for Plaintiff/Appellee.
    William M. McGoey, Attorneys at Law, Chalmette, LA, Thomas P. Anzelmo, Sr., Hilliard F. Kelly, III, Lou Anne Milliman, McCranie Sistrunk Anzelmo Hardy McDaniel & Welch, LLC, New Orleans, LA, for Defendant/Appellant.
    Court composed of Chief Judge JAMES F. McKAY, III, Judge PAUL A. BONIN, Judge ROSEMARY LEDET.
   PAUL A. BONIN, Judge.

11 Borgnemouth Realty Company, Ltd., is the owner of immovable property situated in St. Bernard Parish. As a result of storm damage caused to the levee adjoining the Mississippi River Gulf Outlet, the parish president by executive order commandeered the use of private property, including Borgnemouth’s, to obtain borrow material and to gain access for the repair and rehabilitation of the levees in the parish. Importantly, the executive order specified that the Parish was not taking full ownership of the land and, to the issues presented in this case, was acquiring an “assignable right and an easement to clear, borrow, excavate and remove soil, dirt, and other materials from said immovable property.” The parish president then tendered an irrevocable right to the Lake Borgne Basin Levee District for its use in obtaining borrow material and access to the levees and constructing levee repairs with the understanding that the Levee District in turn would tender that right to the United States Army Corps of Engineers.

Shortly following the commandeering order, excavations on the land were begun, resulting in the taking or removal of 196,-808 cubic yards of soil and clay |2from that portion of Borgnemouth’s property remaining at issue before us. The soil and clay was used in rebuilding and improving the levees. When Borgnemouth demanded compensation for the materials taken, however, the Parish and the Levee District both refused to pay. They primarily claim that the Levee District had already acquired the right to remove the borrow material by virtue of a pre-existing extra-codal servitude, or a /cms-servitude, which, upon the completion of the MR-GO, had been appropriated by the Levee District between 1967 and 1969. Both political subdivisions of the State also resisted any payment to Borgnemouth on other legal theories.

Ultimately, following a trial based upon joint stipulations and deposition testimony, the district court rendered judgment in favor of Borgnemouth and against the Parish and the Levee District in solido, finding that Borgnemouth was the owner of the borrow material and that it was entitled to be compensated for the taking of the material at a rate of $5.00 per cubic yard as well as for its attorney’s fees. The Parish and the Levee District both suspen-sively appeal to us.

We have reviewed the Levee District’s 1967-1969 resolutions, upon which it relies to establish this extra-codal servitude on Borgnemouth’s property, as well as the letters from the Corps of Engineers requesting that the Levee District obtain rights-of-way to facilitate the initial construction of the MR-GO levees. Upon our de novo review, we conclude as a matter of law that the Levee District did not obtain any real rights under its 1967-1969 servitude appropriations to subsurface | osoil and clay and that the trial judge correctly ruled that the Parish and the Levee District must pay just compensation to Borgnemouth for the taking of those materials.

We also conclude that the trial judge was not clearly wrong in his factual determinations that the highest and best use of the Borgnemouth property was as a borrow pit and that $5.00 per cubic yard was the appropriate measure for compensation. Finally, we conclude that the trial judge did not abuse his considerable discretion in the award of attorney’s fees to Borgne-mouth.

We explain our decision in greater detail in the following Parts.

I

In this Part we begin by generally describing the ownership rights of a landowner such as Borgnemouth. At the outset we highlight that Borgnemouth does not contest for the purposes of its claim for compensation the legality of the Levee District’s 1967-1969 resolutions or the parish president’s executive order commandeering its property. Borgnemouth only asserts a constitutional claim to compensation for the 196,808 cubic yards of borrow material taken.

“Ownership is the right that confers on a person direct, immediate, and exclusive authority over a thing.” La. Civil Code art. 477 A. “The owner of a thing may use, enjoy, and dispose of it within the limits and under the conditions 1 established by law.” Ibid. Of course, a tract of land is an immovable which is a thing subject to ownership. See La. Civil Code art. 462.

“Unless otherwise provided by law, the ownership of a tract of land carries with it the ownership of everything that is directly above or under it.” La. Civil Code art. 490 (emphasis added). “The owner may make works on, above, or below the land as he pleases, and draw all the advantages that accrue from them, unless he is restrained by law or by the rights of others.” Ibid.

Thus, based upon these Civil Code provisions, there is no doubt that Borgne-mouth, as the landowner, owns what is directly under its tract of land. Moreover, there are provisions of the Mineral Code which are applicable to the matter of the below-surface soil, supplement the provisions of the Civil Code, and illuminate our decision. See La. Min.C. art. 2. In particular for our purposes, the Mineral Code is applicable “to rights to explore for or mine or remove from the land the soil itself, gravel, shells, subterranean water, or other substances occurring naturally in or as a part of the soil or geological formations on or underlying the land.” La. Min.C. art. 4. See also La. Min.C. art. 4 cmt. (“Thus, it is undesirable that a right to remove gravel, shells, sand, or clay remain outstanding against the land except under the terms of the [mineral] code.”); Continental Group, Inc. v. Allison, 404 So.2d 428, 485 (La.1981) (the word “minerals” “embrace[s] the soil itself’). And, generally, “the owner of land may protect his rights in minerals against trespass, damage, and other wrongful acts of interference by all means available for the protection of ownership.” La. Min.C. art. 12.

|sAnd if property such as the soil itself or clay is taken by a political subdivision, such as the Parish or the Levee Board, for public purposes, such as the construction of a levee, just compensation must be paid to the owner. See La. Const, art. 1, § 4(B)(1). And the owner is entitled to be “compensated to the full extent of his loss” which includes “the appraised value of the property.” La. Const. art. 1, § 4(B)(5).

Before the taking involved in this case, the Parish invoked the Louisiana Homeland Security and Emergency Assistance and Disaster Act. The parish president then exercised his authority under the Disaster Act to “commandeer or utilize any private property if he finds this necessary to cope with the local disaster.” La. R.S. 29:727 F(4). Notably, such authority is “[s]ubject to any applicable requirements for compensation.” Ibid. The executive order itself did not take full ownership of the commandeered land but reserved to landowners “as such rights and privileges in said land as may be used without interfering with or abridging the rights hereby acquired.” The executive order provided that the Parish was acquiring an “assignable right and easement to clear, borrow, excavate and remove soil, dirt, and other materials from said immovable property.” (emphasis added) The Parish then assigned an irrevocable right of entry to the Levee District for its use “in obtaining borrow, access and construction of said levee repairs and rehabilitation.” The Levee District then authorized the Corps of ^Engineers to exercise the rights acquired by the commandeering order with the provision that the owners of the commandeered property shall be compensated by the Levee District “in accordance with Louisiana State law.”

To this point, it is clear that Borgne-mouth would be the owner of the soil and clay under its tract of land and that it would be entitled to just compensation for the borrowing of its minerals by these political subdivisions. The executive order did not purport to acquire ownership of the property subject to the commandeering order. Thus, in order to not pay compensation to Borgnemouth for its minerals, the Parish or the Levee Board would have to establish that at least one of them had already acquired the right to these minerals. Because only the Levee District contends that it acquired such a right under its 1967-1969 resolutions, we turn in the next Part to examine that claim.

II

The Levee District forthrightly acknowledges that it was not entitled to appropriate any servitude on Borgnemouth’s property because the MR-GO levee was not constructed on riparian ground and the servitude extended further inland than the landside toe of the levee. Cf La. Civil Code art. 665 (codifying the ancient servitude for the making and repairing of levees on riparian grounds); La. R.S. 38:301 C(1)(a) (providing that “[a]ll lands, exclusive of batture, and improvements hereafter actually taken, used, damaged, or destroyed for levee or levee drainage purposes shall be paid for at fair- market value to the full extent of the loss.”); 7DeSambourg v. Bd. of Comm’rs for Grand Prairie Levee Dist., 621 So.2d 602, 609-611 (La.1998) (defining the scope of a levee servitude under Article 665 to include the levee itself and the “batture,” alluvial accretions annually covered by the ordinary high water mark). See also id. at 606 (explaining that takings involving levee servitudes do “not offend the Fifth and Fourteenth Amendments to the United States Constitution when the servitude is administered impartially since title to riparian lands have been burdened with the legal servitude for levee ... use from the time those lands were separated from the public domain”).

The Levee District instead relies upon the St. Julien doctrine, which provides that because Borgnemouth did not object to any of its appropriations of Borgnemouth’s property during the period of 1967 through 1969, the Levee District cannot be dispossessed of its occupancy. See St. Julien v. Morgan La. & Tx. R.R. Co., 35 La.Ann. 924 (1883). Because Borgnemouth does not seek the eviction or ejection of the Levee District, we need not concern ourselves with the interesting, to say the least, recent history of that doctrine.

| sSince the Levee District did not acquire a codal servitude, either by operation of law or by conventional agreement, we refer to the rights acquired in and to Borgnemouth’s property as a faux-servi-tude. And, for our purposes, we need only focus on what real rights the Levee District did acquire when it appropriated the MR-GO levee /ame-servitudes by virtue of Borgnemouth’s acquiescence to the 1967-1969 takings. We have before us the three resolutions of the Levee District by which the appropriations were effected as well as a corresponding letter of request from the Corps of Engineers preceding the adoption of each resolution.

The letters from the Corps of Engineers spurred the appropriation of land by the Levee District for construction of the hurricane protection levee along the MR-GO. The letters describe the dimensions needed for “the right of way” for levee purposes as well as temporary spoil easements or a temporary ponding area for the collection of debris. The letters make no mention whatsoever about exploiting the land for soil or clay to construct the levee.

Each of the Levee District’s resolutions is co-extensive with the respective, preceding letter from the Corps of Engineers. They each make available a right of way and grant a right of entry and “appropriate said levee rights of way and temporary spoil easements.” All of the resolutions are silent about exploiting the land for soil or clay to construct the levee.

From our reading of these documents by which portions of Borgnemouth’s land was appropriated by the Levee District, we find that the servitude provisions of the Civil Code, which would have been applicable but for the fact that MR-GO 19is not a natural waterway and thus Borgnemouth’s land is not riparian, inform us of the customs and intentions both of the Corps of Engineers in requesting the right of way and the temporary spoil easements and of the Levee District in granting them.

“Servitudes imposed for the public or common utility relate to the space which is to be left for the public use by the adjacent proprietors on the shores of navigable rivers and for the making and repairing of levees, roads, and other public or common works.” La. Civil Code art. 665 (emphasis added). “Affirmative servi-tudes are those that give the right to the owner of the dominant estate to do a certain thing on the servient estate.” La. Civil Code art. 706 (emphasis added). A servitude of right of way is, for example, an affirmative servitude. See ibid.

Nothing in the letters from the Corps of Engineers or in the resolutions of the Levee District suggest an intent to appropriate greater rights than the rights obtained under the codal law of servitudes. And, resorting to application of the Civil Code by analogy, we recall that “[d]oubt as to the existence, extent, or manner of exercise of a predial servitude shall be resolved in favor of the servient estate.” La. Civil Code art. 730.

Also, we find that Article 730 is an appropriate guide to be applied here because, as Justice Knoll has importantly noted, “the power of the State and private entities authorized by law to take property competes with the sacred and fundamental rights of citizens to own, control, use, enjoy, protect, and dispose of property.” Exxon Pipeline Co. v. Hill, 00-2535, p. 18 (La.5/15/01), 788 So.2d 1154, 1166 (Knoll, J., concurring) (emphasis added).

|inThus here, for the benefit of the public, the Levee District has a real right for making and repairing of the levee and a right of way to do a certain thing (but no more) on Borgnemouth’s property, which in this instance granted a right of way for entry as well as temporary spoil easements.

Undoubtedly, this includes the right to drive across, leave equipment on, repair, and police the levee. See La. Civil Code art. 744 (allowing the owner of the dominant estate to make all works “necessary for the use and preservation of the servitude”); La Civil Code art. 745 (granting “[t]he owner of the dominant estate ... the right to enter with his workmen and equipment into the part of the servient estate that is needed for the construction or repair of works required for the use and preservation of the servitude ... [and even allows him to] deposit materials to be used for the works and the debris that may result ... ”). Under a right of way servitude, the Levee District, as the dominant estate, would have been permitted to perform all acts in conformity with constructing, maintaining, and operating a levee. See La. Civil Code art. 743 (“Rights that are necessary for the use of a servitude are acquired at the time the servitude is established.”). The Levee District, however, must perform all work in furtherance of its servitude at its own expense. See La. Civil Code. art. 744.

Borgnemouth, as the owner of the ser-vient estate, would “not [be] required to do anything.” La. Civil Code art. 651. Borgnemouth’s sole obligation would have been to permit something to be done on its estate. See ibid. See also La. Civil Code art. 651 cmt. (d) (“Predial servitudes involving toleration of certain activities | non the servient estate may be for the use of that estate for certain purposes, for example, in connection with rights of way.... ”).

By giving the letters and resolutions them generally prevailing meaning, see La. Civil Code art.2047, we find as a matter of law that the real rights appropriated by the Levee District did not extend to the right to excavate, exploit, mine, or otherwise remove the soil or clay owned by Borgnemouth.

Moreover, we are reinforced in this view by the lack of any evidence that the Parish, the Levee District, or even the Corps of Engineers ever (prior to the 2005 commandeering order) excavated or removed Borgnemouth’s minerals, including its soil and clay. There is then no factual basis to support the Levee District’s argument that the right to the minerals was necessary for the use of the rights obtained by appropriation orders and by Borgnemouth’s earlier acquiescence.

Because we conclude that the real rights acquired by the Levee District at the time of its appropriation of a portion of Borgne-mouth’s property did not include or extend to the right to excavate or remove the soil and clay, whether the landowner was compensated or not, it is not necessary for us to consider the Levee District’s alternative argument that Borgnemouth’s right to seek compensation for the appropriations in the 1967-1969 period is prescribed.

We turn now to address the trial judge’s valuation of the material taken.

J12III

In this Part we review the trial judge’s assessment of the amount of Borgne-mouth’s loss for which it is entitled to full compensation. There are three components to this inquiry. The first is the trial judge’s factual finding that the highest and best use of the property taken was as a borrow pit and thus measuring Borgne-mouth’s loss by the cubic yard; we review this finding under the “clearly wrong” standard. The second is the trial judge’s damage award which is based upon a $5.00 per cubic yard value; we review this finding too under the “clearly wrong” standard. The third is the award itself, based upon the two previous factual determinations; we review the award under an abuse-of-discretion standard.

A

The Parish and the Levee District challenge the trial judge’s finding that the “highest and best use” of Borgnemouth’s land was as a “borrow pit,” rather than for recreation or conservation. A borrow pit is “an excavated area where material (as earth) has been borrowed to be used as fill at another location.” WebsteR’s ThiRD New International Uanbridged Dictionary, 257 (Philip Babcock Gove et al eds, 1976). That determination is a factual finding and, as we have stated, we apply a manifest error standard of review. See West Jefferson Levee Dist. v. Coast Quality Constr. Corp., 93-1718, pp. 23-24 (La.5/23/94), 640 So.2d 1258,1277-1278.

“The highest and best use” doctrine strives to fix the value of property “before the contemplated improvement was proposed, without deducting therefrom 11sany general or specific benefits derived by the owner from the contemplated improvement or work.” La. R.S 19:9. Thus, a trial judge must determine the fair market value of a property prior to expropriation or appropriation. “Fair market value” is “the price a buyer is willing to pay after considering all of the uses that the property may be put to where such uses are not speculative, remote or contrary to law.” Hill, 00-2535, p. 8, 788 So.2d at 1160, citing Coast Quality, 93-1718, p. 16, 640 So.2d at 1273.

In determining fair market value “consideration is to be given to the most profitable use to which the land can be put to use by reason of its location, topography, and adaptability.” Id. In order to make this determination, a trial judge should also consider market demand, proximity to areas already developed in a compatible manner with the intended use, economic development in the area, specific plans of businesses and individuals, including action already taken to develop the land for that use, scarcity of land available for that use, negotiations with buyers interested in the property for that particular use, absence of offers to buy the property made by the buyers who put it to the use urged, and the use to which the property was being put at the time of the taking. See id. The current use of the property, however, should be presumed to be the highest and best use, and the landowner bears the burden of proving the existence of a different highest and best use based on a potential, future use. See Coast Quality, 93-1718, p. 20, 640 So.2d at 1275.

114Here, the trial judge weighed the testimony of three individuals. First, Bruce Wallis, the President of Borgnemouth, testified that, prior to the removal of the borrow material, the clay in the land had been certified by the Corps of Engineers for future projects. Additionally, Mr. Wallis stated that Borgnemouth had negotiated a contract to sell borrow material located on the property. Second, Christopher Lovelace, a manager of another borrow pit in St. Bernard Parish, stated that his company regularly bought borrow material from neighboring properties; that, at the time, they were soliciting contracts for market price; and that the location of the Borgnemouth’s property was extremely ideal. Finally, Richard Murphy, a real estate appraiser, found that the land had little development potential.

Notably, the Parish at the time of the commandeering chose not to appropriate full ownership of the property but limited its taking to the removal of the soil and clay. These soil materials were owned by Borgnemouth and were insusceptible of ownership apart from the land until reduced to possession. See La. Min.C. art. 5. As owner, Borgnemouth ordinarily would determine whether and how to reduce to possession the minerals owned by it. See La. Min.C. art. 8.

Thus, the trial judge must have given greater weight to the testimony of Mr. Wallis and Mr. Lovelace in finding that the property’s “highest and best use” was as a “borrow pit.” This is a reasonable finding, and it is not clearly wrong.

Based upon that finding, the trial judge almost necessarily used a method of valuation appropriate to valuing the material removed from the soil; the industry | ir,standard, according to the expert testimony, is to measure the number of cubic yards of material removed or borrowed from the pit. Furthermore, this method of valuation was especially apt because, as we have already remarked, the order commandeering Borgnemouth’s property was not taking the land in full ownership but simply granting access to obtain borrow material. We thus find that there existed a reasonable factual basis for the trial judge’s determination of the highest and best use and that it is not clearly wrong. Nolan v. Mabray, 10-0378, pp. 9-10 (La. 11/30/10), 51 So.3d 665, 672.

B

The Parish and the Levee District also challenge the trial judge’s valuation of the land at five dollars per cubic yard. This is also a factual finding; as such, we again apply the “clearly wrong” standard of review. See id. Here, Mr. Lovelace testified that the range of valuation for borrow material in the St. Bernard Parish area was between four and six dollars. Mr. Wallis then testified to a similar range of value for a cubic yard of borrow material. Finally, Cary Des Roches testified as well that landowners in the St. Bernard Parish area were receiving between $4.25 and $5.00 per cubic yard of borrow material. No testimony was offered by the Parish or the Levee District to contradict these valuations. The trial judge clearly did not err in finding that this valuation was appropriate.

C

Applying this methodology, the trial judge awarded $984,040 to Borgnemouth for the material which was commandeered and taken. Because we 11fidiscern no distinction between the damages owed to a landowner whose property was appropriated or expropriated, we review the damage award here under an abuse-of-discretion standard. See Frank Maraist, 1A La. Civ.L. Treatise, Civil Procedure-Special Proceedings § 9.9 (1st ed.) (Usually the taking of private property for public use involves a judicial declaration and is called an expropriation or a condemnation action; where, however, private property is taken without a prior judicial proceeding, the taking is called “inverse condemnation” or appropriation); State through Dept. of Transp. and Dev. v. Estate of Davis, 572 So.2d 39, 45 (La.1990) (“In expropriation proceedings, much discretion is granted to the trier of fact.”).

Under this standard of review, we defer to the trial judge’s exercise of his considerable discretion. Here, the Parish and the Levee District have not claimed that the trial judge based his decision upon an erroneous view of the law or on a clearly erroneous assessment of the evidence which would necessitate us finding that he had abused his discretion. See Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990). And we conclude that the award was within the trial judge’s discretion and will not reduce it.

IV

In this Part we review the trial judge’s award of attorney’s fees. The trial judge awarded overall attorney’s fees of $335,370 to Borgnemouth in accordance with the 27% contingency fee contract between it and its lawyers. The Parish and |17the Levee District contend that this award was unreasonable. We disagree. We review these claims under an abuse-of-discretion standard and decline to modify such awards on appeal unless that standard is met. See Covington v. McNeese State Univ., 12-2182, p. 6 (La.5/7/13), 118 So.3d 343, 348.

In Louisiana, the prevailing party may not recover attorney’s fees except where authorized by contract or statute. Rivet v. State, Dept. of Transp. and Dev., 96-0145, p. 10 (La.9/5/96), 680 So.2d 1154, 1160. Here, La. R.S. 13:5111 provides that a trial judge rendering a judgment for a plaintiff against a political subdivision for a taking of property, “other than through an expropriation proceeding, shall determine and award to the Plaintiff ... reasonable attorney fees actually incurred because of such proceeding.” Thus, the award of an attorney’s fee to Borgnemouth was statutorily-mandated; we need only determine whether the amount of the attorney’s fee award is reasonable.

Attorney’s fees should be awarded on a case-by-case basis after examining numerous factors. Covington, 12-2182, p. 6, 118 So.3d at 348. The Louisiana Supreme Court has set out factors to be considered by a court in determining the reasonableness of an award of attorney’s fees: (1) the ultimate result obtained; (2) the responsibility incurred; (3) the importance of the litigation; (4) amount of money involved; (5) extent and character of the work performed; (6) legal knowledge, attainment, and skill of the attorneys; (7) number of appearances made; (8) intricacies of the facts involved; (9) diligence and skill of counsel; and (10) the court’s own knowledge. See State, Dept. of Transp. and Dev. v. Williamson, 597 18So.2d 439, 442 (La.1992). A court may consider a contingency contract as well, but is not bound by such an agreement in determining reasonable attorney’s fees. See Rivet v. State, Dept. of Transp. & Dev., 01-0961, p. 6 (La.11/28/01), 800 So.2d 777, 782.

Here, the trial judge had the most familiarity with the issues involved in this appropriation matter and the time, diligence, and skill of the attorneys pursuing just compensation for Borgnemouth in the face of unyielding resistance on the part of the political subdivisions to acknowledge any liability. We are not persuaded by the arguments of the Parish and Levee District which rely upon other fact-specific cases to support a finding that the attorney’s fee award is excessive or unreasonable. This case is sufficiently difficult and the attorneys highly skillful (on all sides) that we are unable to conclude that the trial judge abused his considerable discretion by awarding excessive or unreasonable fees.

V

In this Part we address three further arguments made by the political subdivisions seeking to avoid payment of compensation, which arguments we have not yet addressed. The first argument is that, as a matter of law, the MR-GO levee is a federal, not state, project and that compensation to Borgnemouth is a solely federal obligation. The second, alternative argument is that, as a matter of contract, the Parish and the Levee District have been relieved of any obligation to | ^compensate Borgnemouth for the appropriation of its soil and clay because they were mere conduits and that the Corps of Engineers is the sole responsible party. And the third argument, made by the Parish only, is that agreements among the Parish, the Levee District, and the Corps of Engineers constitute stipulations pour autrui, relieving the Parish of any liability to Borgnemouth. We treat them in turn.

A

The Parish and the Levee District contend that no action for this taking exists under La. Const. art. 1, § 4 because the levee reconstruction project was federal in nature due to the Corps of Engineers’ involvement. See, e.g., Cooper v. City of Bogalusa, 195 La. 1097, 198 So. 510 (1940). Thus, the action would instead arise under U.S. Const, amend. 5. “[T]he issue of whether a particular entity has taken property within the meaning of the Constitution is to be decided on the facts of the individual case.” Holzenthal v. Sewerage & Water Bd. of New Orleans, 06-0796, p. 15 (La.App. 4 Cir. 1/10/07), 950 So.2d 55, 66.

Here, the taking of Borgnemouth’s property, however, was effected under state law, La. R.S. 29:721 et seq., by a state political subdivision in order to repair a levee governed, operated, and maintained through a non-codal or/am-servitude; the federal government, as is clear from all of the documentary evidence from 1967-1969 as well as 2005-2007 did not take title or any servitudes in connection with the repair and construction of the MR-GO levees. The federal government alone, we have said, has exclusive jurisdiction and control over the MR-GO channel. See Vuljan v. Bd. of Comm’rs of Port of New Orleans, 170 So.2d 910, 20911 — 912 (La.App. 4th Cir.1965). Responsibility for the ongoing maintenance and repair of the MR-GO levees remained with the Levee District. See, e.g., Danziger v. U.S., 93 F.Supp. 70, 72 (E.D.La.1950) (rejecting a claim that the federal government instead of the levee district owed compensation, the court noted that it was clear “that the Pontchartrain Levee District and not the United States of America appropriated the necessary rights of way in connection with the construction of the Diamond Levee Setback.”).

We are aware that in cases similar to ours the United States of America was sought to be made a party and removed the cases to federal court. The federal district courts, finding that the only claims were those for indemnity (see Part V-B, post), dismissed the United States as a party, finding that the indemnity claims were premature, and remanded the cases to the state court. See Olivier Plantation, LLC v. St. Bernard Parish, 744 F.Supp.2d 575, 584-585 (E.D.La.2010) (holding that a “determination of whether the Defendants’ actions constituted a taking under the Louisiana Constitution does not implicate any issues of federal law, and thus, does not provides a basis for [a federal district] court to exercise federal subject matter jurisdiction.”); Pizani v. St. Bernard Parish, unpub., 2013 WL 1403317 (E.D.La.2013). (For further discussion, see Pizani v. St. Bernard Parish, 12-1084 (La.App. 4 Cir. 9/26/13), 125 So.3d 546.)

Thus, we conclude that the political subdivisions have not established that the MR-GO levee repairs were a federal project which would relieve them, as a matter of law, from compensating Borgnemouth.

21B

Next, the Parish and the Levee District claim that they should not shoulder any liability to compensate Borgnemouth for this taking after the Corps of Engineers contractually undertook the obligation to pay just compensation to those affected property owners. We disagree and find that this agreement is simply an agreement to indemnify the Parish and the Levee District. “Indemnity means reimbursement, and may lie when one party discharges a liability which another rightfully should have assumed.” Reggio v. E.T.I., 07-1433, p. 6 (La.12/12/08), 15 So.3d 951, 955 (internal punctuation omitted). “An indemnity, or hold harmless, agreement is a contract whereby a party, called the indemnitor, agrees to protect another, called the in-demnitee, against damages incurred by the latter as a result of his breach of a duty owed to a third party.” Saul Litvinoff, 6 La. Civ. L. Treatise, Law of Obligations § 11.27 (2nd ed.). “Thus, the parties to a contract containing an indemnification provision may adjust or allocate the risk of loss or damage that may arise in the performance of their respective obligations.” Scarberry v. Entergy Corp, 13-0214, p. 45 (La.App. 4 Cir. 2/19/14), 136 So.3d 194, 221, wrii denied.

Here, the Parish, the Levee District, and the Corps of Engineers undoubtedly formed an agreement to indemnify. See, e.g., Pizani, 12-1084, pp. 9-10, 125 So.3d at 553. The Corps of Engineers agreed to “identify and pay” affected landowners. The proper parties to this suit, however, remain the Parish and the Levee District. | ga“An indemnitor is not liable under an indemnity agreement until the indemnitee actually makes payment or sustains loss.” Suire v. Lafayette City-Parish Consol. Gov’t, 04-1459, p. 17 (La.4/12/05), 907 So.2d 37, 51 (internal quotations omitted). “An action for indemnity is a separate substantive cause of action, arising at a different time, independent of the underlying” action. Reggio, 07-1433, p. 5, 15 So.3d at 955, but see Pizani, 12-1084, p. 13, 125 So.3d at 555 (holding that third-party indemnity claims are not premature). Here, Borgnemouth’s suit against the Parish and the Levee District is a viable, separate cause of action, and the Corps of Engineers’ agreement to indemnify does not vitiate the Parish and the Levee Districts’ underlying liability for just compensation.

Thus, we conclude that the indemnity agreement does not operate to relieve the political subdivisions of Louisiana from paying full compensation to Borgnemouth and, importantly noting, that the claim for indemnity against the Corps of Engineers is not and cannot properly be before us.

C

Finally, the Parish contends that the agreements consummated between itself, the Levee District, and the Corps of Engineers constituted stipulations pour awtrui, and that this relieves the Parish of liability for providing just compensation to Borgnemouth. The beneficiary in these agreements is certainly Borgnemouth. Borgnemouth, in response, claims that it never manifested any intention to avail itself of the benefits of this agreement, and thus its terms are not enforceable.

12a“Under Louisiana law a contract for the benefit of a third party is called a stipulation pour autrui — translated as a stipulation’ ‘for other persons.’ ” Dugas v. Thompson, 11-0178, pp. 10-11 (La.App. 4 Cir. 6/29/11), 71 So.3d 1059, 1066, citing Joseph v. Hosp. Serv. Dist. No. 2 of Parish of St. Mary, 05-2364, p. 7 (La.10/15/06), 939 So.2d 1206, 1211 n. 5. The Civil Code provides that “[a] contracting party may stipulate a benefit for a third person called a third party beneficiary. Once the third party has manifested his intention to avail himself of the benefit, the parties may not dissolve the contract by mutual consent without the beneficiary’s agreement.” La. Civil Code art. 1978.

“[T]he code has left to the jurisprudence the obligation to develop the analysis to determine when a third party beneficiary contract exists on a case by case basis.” Joseph, 05-2364, p. 8, 939 So.2d at 1212. The Civil Code does provide that “the beneficiary’s intention to accept the benefit may be made known in any manner, even implied.” La. Civil Code art.1978 cmt. (b). Here, however, Borgnemouth has never indicated any intention of accepting this agreement.

Furthermore, even if we were to find that this agreement was enforceable, this agreement only functions as an indemnification. The Parish appropriated Borgne-mouth’s land, making them indebted to Borgnemouth for just compensation for the property taken. The agreements between the Parish, the Levee District, and the Corps of Engineers only function to expand the obligors to this constitutional duty. The Parish cannot circumvent such a duty through stipulations pour autrui.

^CONCLUSION

We conclude as a matter of law that the Levee District did not acquire any real right to the soil and clay belonging to Borgnemouth by virtue of the appropriations of portions of Borgnemouth’s land in the period running from 1967 through 1969 during the construction of the MR-GO levees as the trial judge correctly found.

The Parish commandeered Borgne-mouth’s soil and clay in 2005 to rebuild the storm-damaged levees and assigned its right to enter and take the soil and clay to the Levee District, which exercised the right by assigning it to the Corps of Engineers. As a result the Parish and the Levee District became solidarily liable to Borgnemouth for the taking of its soil and clay, and at the same time Borgnemouth became entitled to just compensation from them to the full extent of its loss.

The trial judge’s factual determinations that the highest and best use of the property was as a borrow pit, that the proper measure of damages was payment by the cubic yard, and that the valuation of $5.00 per cubic yard was appropriate are reasonable and not clearly wrong. And the trial judge did not abuse his considerable discretion in the compensation award of $984,040 or in the attorney’s fee award of $265,948.41.

Finally, we conclude, as did the trial judge, that the Parish and the Levee District are solidarily liable to Borgnemouth to the full extent of its loss and for its statutorily-mandated attorney’s fees.

[^DECREE

We affirm the judgment of the district court in favor of Borgnemouth Realty Company, Ltd., and against the Parish of St. Bernard and the Lake Borgne Basin Levee District, in solido, up to the remaining indebtedness of NINE HUNDRED EIGHTY-FOUR THOUSAND AND FORTY ($984,040.00) DOLLARS, and for attorney’s fees in the amount of TWO HUNDRED SIXTY-FIVE THOUSAND NINE HUNDRED FORTY-EIGHT & 41/100 ($265,948.41) DOLLARS, all with interest, and for all costs of these proceedings, including the costs of the appeal. See La. C.C.P. art. 2164.

AFFIRMED.

McKAY, C.J., concurs in the result.

      . See Gumbel v. New Orleans Terminal Co., 186 La. 882, 899, 173 So. 518, 523 (La.1937).

      . The acronym for the Mississippi River Gulf Outlet is pronounced "Mister Go.”

      . The trial court’s judgment awarded $335,370 in attorney’s fees, but, as a result of settlements, the amount presently in dispute is $265,948.41. Similarly, the total cubic yards taken were initially 248,296; on account of the settlement, the total cubic yards still in dispute have been reduced to 196,808. These revised figures are reflected in the Decree, post.

        . See La. Const. art. 6, §§ 1, 38 (recognizing parishes and levee districts as political subdivisions of the State).

      . La. Const. art. 1, § 4(G) was added after the taking involved in this case and does not apply on that account.

      . La. R.S. 29:721 et seq.

      . The Supreme Court prospectively overruled St. Julien in Lake, Inc. v. La. Power & Light Co., 330 So.2d 914 (La.1976). See also City of New Orleans v. New Orleans Canal, Inc., 412 So.2d 975, 977 (La.1981) (holding that Lake only overruled St. Julien prospectively). The Louisiana Legislature responded to this opinion by enacting Act No. 504 of 1976, now codified as La. R.S. 19:14, which conceptually rejuvenated the St. Julien doctrine. The Legislature though failed to explicitly overrule Lake. "Thus, St. Julien is not resurrected; it is merely un-dead, feeding on servitudes established prior to Lake." See A.N. Yiannopoulos, 4 La. Civ.L. Treatise, Predial Servitudes § 6:44 (4th ed.) (italicization added). The legislature has also amended La. R.S. 19:14 in 2007, adding Subsection C, which explicitly prohibits the acquisition of any interest in privately-owned immovable property adjoining or providing access to other property appropriated under the St. Julien doctrine. The legislature, in that amendment, notes that Subsection C is interpretive, remedial, and intended to clarify existing law. We, however, choose not to express a view whether La. R.S. 19:14 C applies retroactively as such a ruling is not necessitated by the instant matter.

      . An action for compensation for a taking by a political subdivision prescribes in three years. See La. R.S. 13:5111.

      . Because of settlements, the amount still in dispute is $265,948.41.

      . The political subdivisions have called our attention to Williamson, 597 So.2d at 439, and SDS, Inc. v. State, Dept. of Transp. and Dev., 07-0406 (La.App. 4 Cir. 2/13/08), 978 So.2d 1013.

      . As all of the arguments pose a question of law, each matter is disposed of under a de novo standard of review. See Eagle Pipe and Supply, Inc. v. Amerada Hess Corp., 10-2267, p. 7 (La. 10/25/11), 79 So.3d 246, 256.


source: Caselaw Access Project

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

license: Public Domain

text:
    STATE of Louisiana v. Fregorio QUEZADA a/k/a Gregorio Quezada.
    No. 2013-KA-1318.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 21, 2014.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, Parish of Orleans, New Orleans, LA, for Appellee/State of Louisiana.
    Christopher A. Aberle, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellant.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge MADELEINE M. LANDRIEU).
   MAX N. TOBIAS, JR., Judge.

It Gregorio Quezada was charged by bill of information on 11 January 2008 with carnal knowledge of a juvenile, a violation of La. R.S. 14:80. He was arraigned on 16 January 2008, entered a plea of not guilty, and elected a bench trial. He was tried and found guilty as charged on 1 July 2008. A pre-sentence investigation report (“PSI”) was filed, and the trial court sentenced him to nine years at hard labor on 10 October 2008. Years later, Mr. Queza-da filed an application for post-conviction relief in the trial court. Subsequently, after the trial court failed to respond to his application, Mr. Quezada applied for supervisory writs with this court, requesting a writ of mandamus, which this court granted, ordering a hearing. State v. Que-zada, 13-0505, unrep. (La.App. 4 Cir. 4/25/13). The trial court denied Mr. Que-zada’s request for post-conviction relief four days later. Thereafter, Mr. Quezada filed a “Motion for Reconsideration or Notice of Intent,” asking the trial court to reconsider its denial of post-conviction relief, which the trial court denied on 21 May 2013. Mr. Quezada then filed a petition for an out-of-time appeal, which the court granted on 6 June 2013; this appeal followed.

| STATEMENT OF THE FACTS

At trial, the juvenile victim, D.M., stated that she relocated to New Orleans with Mr. Quezada from New Jersey in June 2007, when she was fifteen years old. She stated that Mr. Quezada was a friend of her family. Both D.M. and Mr. Quezada were born in Ecuador, and neither is a United States citizen. In New Jersey, D.M. asked Mr. Quezada for help after an incident with her family, and he agreed to help her find a job and a place to live. In New Orleans, the victim lived with Mr. Quezada and another roommate in a trailer off Old Gentilly Road near Woodland Street.

D.M. stated that she engaged in vaginal intercourse with Mr. Quezada twice. In one incident, Mr. Quezada bought D.M. alcohol, and when she was drunk, the two had sex in his truck. In the other incident, D.M. and Mr. Quezada had sex again in his truck, but she was not drunk that time. At some point, D.M. befriended a girl at a truck stop, and D.M. subsequently moved in with her. D.M. testified that the move was precipitated by an incident where Mr. Quezada punched her when he was drunk. D.M. told the girl what happened between them. The girl thought it in D.M.’s best interest to talk to police about Mr. Quezada’s actions and to return to her mother.

The girl took D.M. to the St. Bernard Parish Sheriffs Office, where D.M. communicated with Deputy Janeel Young about what happened. Officer Kurt Coulon of the New Orleans Police Department’s child abuse unit was called to the St. Bernard Parish Sheriffs Office. Officer Coul-on testified that the girl who took the victim to the sheriffs office was a friend of Deputy Young, but she was never | sidentified and did not serve as a witness at any point in the proceedings. At the sheriffs office, D.M. told Officer Coulon what happened and where Mr. Quezada lived. The victim led Officer Coulon to the location of Mr. Quezada’s trailer, where he knocked on the door, identifying himself as police. Mr. Quezada exited the trailer, and D.M. identified him. Officer Coulon then advised Mr. Quezada he was being arrested and charged with carnal knowledge of a juvenile. Both Officer Coulon and D.M. identified Mr. Quezada in open court.

At trial, Mr. Quezada denied ever having sex with D.M. He testified that D.M. ran away sometimes while living with her mother in New Jersey and drank alcohol often. He also testified that D.M. was violent, did not get along with peers at school, and would also stay out all night partying. He stated that his relationship with D.M. resembled a father-daughter relationship and that she sometimes introduced him as her uncle.

Errors Patent

A review of the record reveals no errors patent.

Discussion

Pro se Assignment of Error Number One

In his pro se supplemental brief, Mr. Quezada asserts that the trial court erred because the conviction was based on insufficient evidence. An appellate court reviews insufficiency of evidence cases under the following standard:

In evaluating whether evidence is constitutionally sufficient to support a conviction, an appellate court must determine whether, viewing the evidence in the light 14most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Green, 588 So.2d 757 (La.App. 4th Cir.1991). However, the reviewing court may not disregard this duty simply because the record contains evidence that tends to support each fact necessary to constitute the crime. State v. Mussall, 523 So.2d 1305 (La.1988). The reviewing court is not permitted to consider just the evidence most favorable to the prosecution but must consider the record as a whole since that is what a rational trier of fact would do. If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier’s view of all the evidence most favorable to the prosecution must be adopted. The fact finder’s discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. Mussall, 523 So.2d at 1309-1310. “[A] reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence.” State v. Smith, 600 So.2d 1319, 1324 (La.1992).
A factfinder’s credibility decision should not be disturbed unless it is clearly contrary to the evidence. State v. Huckabay, 2000-1082 (La.App. 4 Cir. 2/6/02), 809 So.2d 1093; State v. Harris, 99-3147 (La.App. 4 Cir. 5/31/00), 765 So.2d 432. The testimony of a single witness, if believed by the trier of fact, is sufficient to support a conviction. State v. White, 28,095 (La.App.2d Cir. 5/8/96), 674 So.2d 1018.
Conflicting statements as to factual matters is a question of weight of the evidence, not sufficiency. State v. Jones, 537 So.2d 1244 (La.App. 4[th] Cir.1989). Such a determination rests solely with the trier of fact who may accept or reject, in whole or in part, the testimony of any witness. Id. A trier of fact’s determination as to the credibility of a witness is a question of fact entitled to great weight, and its determination will not be disturbed unless it is clearly contrary to the evidence. State v. Vessell, 450 So.2d 938 (La.1984).

State v. Wells, 10-1338, pp. 4-5 (La.App. 4 Cir. 3/30/11), 64 So.3d 303, 306.

| sMr. Quezada’s basis for his insufficient evidence assertion constitutes the following: that D.M. did not allege that any sexual encounters occurred in Newark, New Jersey, where she stayed with him for two weeks before moving to New Orleans; that D.M. did not allege that any sexual encounters occurred in her childhood or while Mr. Quezada lived with her family in New Jersey; and a generalized assertion that the prosecution fabricated the allegations and testimony.

Mr. Quezada appears to attack the credibility of D.M., due to the fact that the allegations of sexual intercourse between the two were said to have occurred only in New Orleans. This is clearly a credibility determination that falls under the trial court’s sole authority. Id. Lacking proof that D.M.’s credibility is clearly contrary to the evidence, this court is prohibited from disturbing the trial court’s credibility determination. Id. Taken as true, the fact that Mr. Quezada had ample opportunity to have sexual intercourse with the victim but, he asserts, did not, fails to constitute evidence that contradicts her credibility. A myriad of reasons exist why D.M. did not allege sexual assault occurring during the time she was in New Jersey. The fact that she did not allege it does not mean it did not occur. Even if Mr. Quezada did not have sexual intercourse with D.M. in New Jersey, that fact bears no weight on the current crime of which Mr. Quezada was convicted. The trial court placed greater value on D.M.’s credibility than on Mr. Quezada’s. Such is within the trial court’s discretion. Absent any evidence refuting this credibility determination, we are required to find this assignment of error lacks merit.

Counseled Assignment of Error Number One and Pro Se Assignment of Error Number Three

| f,Counsel for the defendant asserts that the trial court erred by failing to give reasons for imposing a nearly maximum sentence where the record makes clear that Mr. Quezada, a first offender, is not the worst kind of offender, and the offensive behavior is not the most serious violation of the charged offense. Thus, this assignment is essentially an appeal of an excessive sentence. Excessive sentence eases are governed by an abuse of discretion standard:

Louisiana Constitution of 1974, art. I, § 20 provides, in pertinent part, that “[n]o law shall subject any person to ... excessive ... punishment.” Although a sentence is within statutory limits, it can be reviewed for constitutional excessiveness. State v. Sepulvado, 367 So.2d 762, 767 (La.1979). A sentence is unconstitutionally excessive when it imposes punishment grossly disproportionate to the severity of the offense or constitutes nothing more than needless infliction of pain and suffering. State v. Bonanno, 384 So.2d 355, 357 (La.1980). A trial judge has broad discretion when imposing [a] sentence, and a reviewing court may not set a sentence aside absent a manifest abuse of discretion. State v. Cann, 471 So.2d 701, 703 (La.1985). On appellate review of a sentence, the relevant question is not whether another sentence might have been more appropriate but whether the trial court abused its broad sentencing discretion. State v. Walker, 2000-3200, p. 2 (La.10/12/01), 799 So.2d 461, 462; cf. State v. Phillips, 2002-0737, p. 1 (La.11/15/02), 831 So.2d 905, 906.

State v. Dauzart, 11-0688, pp. 12-13 (La.App. 4 Cir. 3/21/12), 89 So.3d 1214, 1222.

Defense counsel argues that the trial court failed to comply with La.C.Cr.P. art. 894.1, failing to state for the record its reasons for sentencing and the factual basis for those considerations. Because of that omission, defense counsel argues defendant’s case should be remanded and Mr. Quezada should be resentenced. We disagree.

17La.C.Cr. P. 894.1 C states: “[t]he court shall state for the record the considerations taken into account and the factual basis therefor in imposing sentence.” La. C.Cr.P. art. 881.4 governs circumstances when remand and resentence are appropriate:

A. If the appellate court finds that a sentence must be set aside on any ground, the court shall remand for re-sentence by the trial court. The appellate court may give direction to the trial court concerning the proper sentence to impose.
B. In the interest of justice, the appellate court may remand the case for re-sentencing before a judge other than the judge who imposed the initial sentence.
C. If necessary to an appropriate disposition of a motion to reconsider sentence, the appellate court may remand the case to the trial court with instructions to supplement the record or to hold an evidentiary hearing.
D. The appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed.

Courts have held that if the record supports a conviction and sentence, a trial court’s failure to strictly comply with La. C.Cr.P. art. 894.1C does not merit remand and resentence. In Dauzart, p. 18, 89 So.3d at 1222-23, we stated:

The trial judge’s failure to comply with La.Code Crim. Proc. article 894.1 does not automatically render a sentence invalid. The Louisiana Supreme Court has held that although Article 894.1 provides useful guidelines for the determination of the nature and length of a sentence, compliance with its provisions is not an end in itself. State v. Wimberly, 414 So.2d 666 (La.1982). Article 894.1 is intended to provide an impartial set of guidelines within which the trial judge’s sentencing discretion may be exercised. State v. Price, 403 So.2d 660 (La.1981); State v. Douglas, 389 So.2d 1263 (La.1980).
Compliance with Article 894.1 further provides a record which is detailed enough to allow for a reasoned review of allegedly excessive sentences. The articulation of the Isfactual basis for a sentence is the goal of Article 894. 1, not rigid or mechanical compliance with its provisions. A remand is unnecessary where the record clearly shows an adequate factual basis for the sentence imposed, even where there has not been full compliance with Article 894.1. State v. Boatright, 406 So.2d 163 (La.1981).

In Dauzart, this court reasoned that although the trial court failed to state its reasons for sentencing, the judge sat through the trial and heard the testimony, and the record supported the conviction and sentence. Id. Dauzart is applicable to this case. Here, the trial judge presided over Mr. Quezada’s trial, heard the testimony of Officer Coulon, D.M., and Mr. Quezada, and ordered and received a PSI. La. R.S. 14:80 A(l) states that it is felony carnal knowledge of a juvenile when:

A person who is seventeen years of age or older has sexual intercourse, with consent, with a person who is thirteen years of age or older but less than seventeen years of age, when the victim is not the spouse of the offender and when the difference between the age of the victim and the age of the offender is four years or greater.

D.M. was born on 16 January 1992, traveled to New Orleans with Mr. Quezada in June 2007, and had sex with Mr. Quezada within the next few months. D.M. was fifteen years old at the time. Mr. Queza-da’s date of birth is 25 December 1967, making him 39 years old at that time. If taken as true, these facts in the record on their own support Mr. Quezada’s conviction and sentence. The sentencing range for La. R.S. 14:80 is not more than ten years. Mr. Quezada was sentenced to nine years in the Department of Corrections, or 90% of the sentencing range. Defense counsel argues that Mr. Quezada is a first-time offender and does not drink or use drugs. Defense counsel asserts that the nine year sentence is overly harsh, given 19that Mr. Quezada was not a worst kind offender nor was his violation the most serious form of the offense.

It is within the trial judge’s discretion to sentence a defendant to a prison term within the statutory range. Additionally, D.M. states in the PSI: “I do think it is better for him to be in jail because if not my family may be in danger.” Moreover, courts have upheld sentences high in the sentencing range for first time offenders of sex crimes against a juvenile. See State v. Badeaux, 01-406 (La.App. 5 Cir. 9/25/01), 798 So.2d 234 (first time offender sentenced to the maximum of ten years for sexual battery and seven years for indecent behavior with a juvenile); State v. Meshell, 39,171 (La.App. 2 Cir. 10/27/04), 886 So.2d 1195, 1197 (defendant, who received a first offender pardon in 1987 for an unspecified crime, was sentenced to eight years at hard labor on three counts of carnal knowledge of a juvenile and seven years for one count of indecent behavior with a juvenile to run concurrently).

The record supports Mr. Quezada’s sentence; we do not find the trial court abused its discretion.

We note that appellate counsel points out that Mr. Quezada’s trial counsel failed to move for a reconsideration of sentence. Pursuant to Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) and State v. Robinson, 98-1606 (La.App. 4 Cir. 8/11/99), 744 So.2d 119, defense counsel argues, a finding of ineffective counsel by failure to object to the sentence as excessive or to move for reconsideration, where the trial court does not state its reasons for sentencing, may be grounds for remand. In Robinson we found that the record did not support the defendant’s |1flsentence. Id. Defense counsel on appeal did not assert an assignment of error for ineffective counsel. Mr. Quezada, in his pro se brief, asserted an ineffective assistance of counsel assignment of error, discussed further infra, but did not specify that his trial counsel should have objected to his sentence as excessive or moved for reconsideration. However, for the sake of thoroughness, we will discuss whether trial counsel’s failure to object to the sentence as excessive or to move for reconsideration of sentence constitutes ineffective assistance of counsel.

“As a general rule, claims of ineffective assistance of counsel are more properly raised by application for post-conviction relief in the trial court where a full evidentiary hearing may be conducted if warranted.” State v. Howard, 98-0064, p. 15 (La.4/23/99), 751 So.2d 783, 802. However, where the record is sufficient, the claims may be addressed on appeal. State v. Bordes, 98-0086, p. 7 (La.App. 4 Cir. 6/16/99), 738 So.2d 143, 147. Ineffective assistance of counsel claims are reviewed under the two-part test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). State v. 11Brooks, 94-2438, p. 6 (La.10/16/95), 661 So.2d 1333, 1337 (on rehearing); State v. Robinson, 98-1606, p. 10 (La.App. 4 Cir. 8/11/99), 744 So.2d 119, 126. In order to prevail, the defendant must show both that: (1) counsel’s performance was deficient; and (2) he was prejudiced by the deficiency. Brooks, supra; State v. Jackson, 97-2220, p. 8 (La.App. 4 Cir. 5/12/99), 733 So.2d 736, 741. Counsel’s performance is ineffective when it is shown that he made errors so serious that counsel was not functioning as the “counsel” guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 686, 104 S.Ct. at 2064; State v. Ash, p. 9 (La.App. 4 Cir. 2/10/99), 729 So.2d 664, 669. Counsel’s deficient performance will have prejudiced the defendant if he shows that the errors were so serious as to deprive him of a fair trial. To carry his burden, the defendant must show that there is a reasonable probability that, but for counsel’s deficient performance the result of the proceeding would have been different; “[a] reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 693, 104 S.Ct. at 2068; State v. Guy, 97-1387, p. 7 (La.App. 4 Cir. 5/19/99), 737 So.2d 231, 236.
This court has previously recognized that if an alleged error falls “within the ambit of trial strategy” it does not “establish ineffective assistance of counsel.” Bordes, 98-0086, p. 8, 738 So.2d at 147, quoting State v. Bienemy, 483 So.2d 1105, 1107 (La.App. 4 Cir.1986). Moreover, as “opinions may differ on the advisability of a tactic, hindsight is not the proper perspective for judging the competence of counsel’s trial decisions. Neither may an attorney’s level of representation be determined by whether a particular strategy is successful.” Id. quoting State v. Brooks, 505 So.2d 714, 724 (La.1987).

State v. Rubens, 10-1114, pp. 58-59 (La.App. 4 Cir. 11/30/11), 83 So.3d 30, 66-67.

Here, trial counsel made no objections at the sentencing hearing and did not file a motion to reconsider sentence. However, Mr. Quezada filed multiple applications for post-conviction relief, including motions to reconsider sentence; the trial court repeatedly denied those motions. Because the trial court denied Mr. 112Quezada’s motions to reconsider his sentence, trial counsel’s failure to file those motions himself would not have made a difference to Mr. Quezada’s access to a fair trial and would not have altered the outcome of the trial court’s sentencing determination. Unlike Robinson, a PSI was requested and received by the trial judge before sentencing Mr. Quezada. Further, the record supports Mr. Quezada’s conviction and sentence. As such, we find no merit to defense counsel’s Robinson claim.

Mr. Quezada, in his pro se brief, lists several ways in which he alleges ineffective assistance of counsel: had counsel performed a proper investigation, he would have realized that D.M. was lying and her story was “put together” by the police and prosecution; counsel did not call D.M.’s mother to verify her story that she was raped by her father; counsel did not investigate Deputy Young or his possible friend, the girl who took D.M. to the police station; “from the record it clearly appears this allege[d] truck stop was a prostitution ring;” and counsel failed to investigate D.M.’s school record.

We find this assignment of error, given its fact-intensive nature, would ordinarily and more properly be addressed in the trial court with an evidentiary hearing. However, the trial court has repeatedly denied Mr. Quezada’s applications for post-conviction relief. As such, we evaluate Mr. Quezada’s claims to determine if his counsel’s alleged ineffectiveness cost him a fair trial and whether the result of the trial would have been different but for the claims of ineffectiveness. Rubens, supra.

Mr. Quezada asserts that counsel failed to investigate and discover that the police and prosecution “put together” the ease and D.M.’s story. As discussed in pro se assignment of error number two, infra, we find no evidence of prosecutorial | ^misconduct, ie. that the prosecution allowed witnesses to lie about material facts at trial.

Mr. Quezada then asserts that counsel should have called D.M.’s mother to verify her story in general, and verify whether D.M. was raped by her father. A phone call verification of D.M.’s “story” and rape would have been irrelevant to the trial, since counsel cannot testify as to facts. Even if counsel could have obtained D.M.’s mother as a witness, which seems unlikely, whether D.M. was raped by her father is irrelevant to the underlying case. The trial court permitted no elaboration after D.M. stated that her father had raped her in court, and sustained objections of irrelevance.

Next, Mr. Quezada asserts that counsel did not investigate Deputy Young or his possible friend, the girl who took D.M. to the police station. When asked who took D.M. to the station, Officer Coul-on testified that it was a friend of Deputy Young, but the person was not identified. This person did not serve as a witness or participate in any part of these proceedings. Deputy Young is the person who called Officer Coulon to advise him about the ease, presumably because the alleged crime occurred in Orleans Parish, over which the St. Bernard Sheriffs Office has no jurisdiction. The record does not reveal whether Deputy Young had any further involvement.

It is theoretically possible that counsel may have discovered information from these individuals, but what, if any, relevance this information might have is pure speculation.

Mr. Quezada also claims that D.M. worked as a prostitute at the truck stop where she met the girl with whom she moved in and who took D.M. to the sheriffs office. As stated previously, although defense counsel attempted to solicit this 114testimony from D.M. multiple times, the trial court sustained objections of relevance and did not allow the testimony.

Finally, Mr. Quezada claims that counsel failed to investigate D.M.’s school record. At trial, Mr. Quezada testified that D.M. had “problems in school,” that she was violent with school peers and would hit them. D.M.’s school records may or may not corroborate these claims. However, past violent behavior at school is irrelevant to this case and bears no weight on D.M.’s credibility.

Accordingly, we find Mr. Quezada’s pro se assignment of error for ineffective assistance of counsel has no merit.

Pro Se Assignment of Error Number Two

Next, Mr. Quezada alleges prosecutorial misconduct. This court in State v. LeBlanc, 10-1484, p. 19 (La.App. 4 Cir. 9/30/11), 76 So.3d 572, 585, discussed the law governing that claim:

The defendant is arguing an issue under Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217 (1959), which held that where a prosecutor allows a State witness to give false testimony without correction, a reviewing court must reverse the conviction if the witness’s testimony reasonably could have affected the jury’s verdict, even if the testimony goes only to the credibility of the witness. However, the grant of a new trial based upon a Napue violation is proper only if: (1) the statements at issue are shown to be actually false; (2) the State knew they were false; and (3) the statements were material. State v. Phillips, 2010-0582, p. 5 (La.App. 4 Cir. 2/17/11), 61 So.3d 130, 136, citing United States v. O’Keefe, 128 F.3d 885, 893 (5 Cir.1997).

Mr. Quezada makes a generalized claim of prosecutorial misconduct, claiming that the prosecution fabricated the allegations and testimony. Presumably, Mr. Quezada is claiming that the state’s witnesses, Officer Coulon and D.M., presented false testimony, which led to his conviction. However, without specific allegations 115of false statements, this court cannot evaluate Mr. Que-zada’s claim of prosecutorial misconduct. We find no evidence that the prosecution knowingly allowed Officer Coulon and/or D.M. to lie on the witness stand about material facts. Without such a showing, we find no merit to this assignment of error.

Conclusion

We affirm the conviction and sentence of Gregorio Quezada.

AFFIRMED.

      . Mr. Quezada is a non-English speaker. An interpreter was present at the proceedings in this case.

      . The victim stated that she was raped by her father.

      . Officer Coulon testified that D.M. stated that she had sex with Mr. Quezada once in his truck and once in the trailer where they lived. D.M., on the other hand, testified that she had sex with Mr. Quezada twice in his truck.

      .In accordance with State v. Hearold, 603 So.2d 731 (La.1992), we are required to address the assignment of error regarding sufficiency of the evidence first.

      . Mr. Quezada appears to have known and, thus, had access to the victim since she was about six years old.

      . The court in Robinson, 98-1606, p. 9, 744 So.2d at 128, states:
      [N]o presentence investigation report is contained in the record. The defendant was nineteen years old at the time the crime was committed and was sentenced two days before his twentieth birthday. The defendant asserts in his brief that he was a first offender. Because the defendant testified in his own behalf, and the State offered no evidence that he had been previously convicted of a felony, it is a reasonable assumption that he has not previously been convicted of a felony. The record contains no evidence about any other arrest or conviction record, which it might be assumed would have been furnished to the court by the State for sentencing purposes if such record existed. Other than the previously discussed facts, and the fact that the defendant rides a bicycle, has a mother and a sister, and probably has gold teeth, nothing else is known about him.
      Because the trial court failed to articulate any reasons at all for sentencing the defendant to one-third of the maximum possible sentence, and the record does not furnish a sufficient factual basis for the sentence, we find that counsel's performance was deficient in failing to set forth excessiveness of sentence as a ground in the motion to reconsider sentence, and that such deficiency prejudiced the defendant.


author: JOY COSSICH LOBRANO, Judge.

text:
    Sherry R. RIGAUD v. Gustave J. DeRUISE.
    No. 2013-CA-0376.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 21, 2014.

      Sherry R. Rigaud, New Orleans, LA, Appellant/In Proper Person.
    Janet M. Ahern, Attorney at Law, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN, Judge JOY COSSICH LOBRANO).
   JOY COSSICH LOBRANO, Judge.

| T This case arises from a dispute for past due child support. Plaintiff, Sherry R. Rigaud, appeals the part of the trial court’s August 15, 2012 judgment that sustained an exception of no cause of action asserted by defendant, Gustave J. De-Ruise, dismissing her “Motion to Amend Consent Judgment or in the Alternative Motion to Set Aside Consent Judgment and Reinstate Original Judgment.” For the reasons that follow, we affirm and remand.

Plaintiff filed a petition for proof of paternity and child support in 1986, alleging defendant was the father of her child born on April 20,1983. After a lengthy litigious battle, including two appeals, this court rendered a judgment, holding that defendant is the father of the child, and remanded the case to the trial court for a determination of child support. On May 25, 1993, the trial court rendered a judgment, awarding plaintiff a total of $43,574.04, plus interest until paid, for past due child support for the years 1986 through 1993, and $5,000.00,12plus interest until paid, for attorney fees. The court also issued an income and wage assignment order against defendant.

In February 2000, defendant filed a rule to decrease child support. On May 10, 2002, the parties executed a consent judgment with the trial court’s approval. The consent judgment provided that: the judgment of child support arrears in the amount of $43,574.04 rendered on May 25, 1993 and signed on May 27, 1993 was set aside and vacated; defendant was found to be $40,000.00 in arrears of his child support obligation; defendant would pay plaintiff $40,000.00, in one lump sum payment of $10,000.00 plus $200.00 per month for 150 months to satisfy the remaining $30,000.00 balance; the monthly child support obligation would terminate on June 1, 2002, as a result of the child at issue reaching the age of majority and graduating from high school; and plaintiff agreed to remove any liens against defendant’s property located at 7513 Founders Court in New Orleans, as it was the intent of the parties to extinguish the liens for the purpose of transferring title to the property.

On April 27, 2012, plaintiff filed her Motion to Amend Consent Judgment or in the Alternative Motion to Set Aside Consent Judgment and Reinstate Original Judgment pursuant to La. C.C.P. art. 1951. Plaintiff claims that in executing the | sMay 10, 2002 consent judgment, she agreed to set aside and vacate the child support ar-rearages of $43,574.04 for the purpose of allowing defendant to avoid the foreclosure of his home and to maintain his credit, and, in haste to complete the written judgment due to a pending sale of the property, the attorney inadvertently omitted from the consent judgment the judicial interest and the attorney fees that had been awarded in the May 25, 1993 judgment. Also, on May 9, 2012, plaintiff filed a Motion to Revive the May 10, 2002 consent judgment so that it would not prescribe. As of the date of filing, defendant still owed plaintiff $5,000.00 pursuant to the payment schedule established in the consent judgment.

Defendant did not object to plaintiffs Motion to Revive the Judgment. However, he raised a peremptory exception of no cause of action, arguing that the Motion to Amend the Consent Judgment or in the Alternative Motion to Set Aside Consent Judgment and Reinstate Original Judgment failed to state a cause of action that legally would permit an amendment to or setting aside of the consent judgment.

At the conclusion of a hearing on July 31, 2012, the trial court rendered the judgment, granting plaintiffs Motion to Revive the May 10, 2002 judgment and maintaining defendant’s Exception of No Cause of Action. The trial court signed the judgment to this effect on August 15, 2012. The trial court issued written reasons for judgment, explaining that plaintiffs motion failed to state any legal mechanism which would allow the court to grant her the relief requested. Citing La. C.C.P. art. 1951, the trial court noted that plaintiff alleged an omission in the |4substance of the judgment rather than an error of calculation. The trial court also pointed out that plaintiff filed her motion nearly ten years after signing the consent judgment and that the original attorneys and trial judge were no longer involved in the case. Last, the trial court found that plaintiffs motion requested additional relief that was not granted originally and was beyond the scope of an error of calculation permitted under La. C.C.P. art. 1951.

On appeal, plaintiff argues that the trial court erred in determining that the consent judgment could not be modified or set aside. Specifically, she contends that because the consent judgment is an award for past due child support, she is entitled to legal interest and attorney fees as a matter of law, citing La. C.C. art. 2000. Plaintiff also claims that in executing the consent judgment, the parties intended only that the earlier judgment of child support arrears in the amount of $43,574.04 be vacated, not the awards for legal interests and attorney fees.

An appellate court subjects the grant of an exception of no cause of action to de novo review because the exception raises an issue of law and the trial court’s decision is based solely on the sufficiency of the petition. Fink v. Bryant, 2001-0987, pp. 3-4 (La.11/28/01), 801 So.2d 346, 348-49. “The peremptory exception |Bof no cause of action is designed to test the legal sufficiency of the petition by determining whether the particular plaintiff is afforded a remedy in law based on the facts alleged in the pleading.” Industrial Companies, Inc. v. Durbin, 2002-0665, p. 6 (La.1/28/03), 837 So.2d 1207, 1213. “The exception is triable on the face of the petition and, for the purpose of determining the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true.” Id; Badeaux v. Southwest Computer Bureau, Inc., 2005-0612, 2005-0719, p. 7 (La.3/17/06), 929 So.2d 1211, 1217.

A consent (stipulated) judgment is a bilateral contract wherein the parties adjust their differences by mutual consent and thereby put an end to a lawsuit with each party balancing the hope of gain against the fear of loss. Stogner v. Stogner, 1998-3044, p. 9 (La.7/7/99), 739 So.2d 762, 768. See also Kessel v. Kessel, 624 So.2d 14 (La.App. 4th Cir.1993); La. C.C. art. 3071. “It has binding force from the voluntary acquiescence of the parties.” Gebhard v. Gebhard, 2010-1412, p. 6 (La.App. 4 Cir. 2/16/11), 60 So.3d 717, 721 (citation omitted). “A contract is unlawful when enforcement of the obligation would produce a result prohibited by law or against public policy.” Id. A consent judgment, as opposed to other final judgments rendered against a party without their consent, may be annulled or rescinded for an error of fact or error as to the principle cause of the agreement. See La. C.C. arts. 1948, 1949 and 1950. Also, regardless of language in a consent judgment to the contrary, child support judgments are always reviewable where a material change of circumstances has been shown. See La. R.S. 9:311(A).

| fiBased on our review of plaintiffs Motion to Amend the Consent Judgment or in the Alternative Motion to Set Aside Consent Judgment and Reinstate Original Judgment and accepting all allegations therein as true, we find that plaintiff has failed to allege any facts that support an amendment, modification, or nullification of the consent judgment. Plaintiff alleges only that the May 25, 1993 judgment was set aside to allow defendant to escape foreclosure of his home and to maintain his credit and, in counsel’s haste to complete the matter due to a pending sale of the property, he inadvertently omitted from the consent judgment the judicial interest and attorney fees previously awarded in the original judgment. Absent an allegation in the pleading of a material change in circumstances of one or both of the parties, an error of fact sufficient to vitiate plaintiffs consent, such as fraud or duress, or an error as to the principle cause of the agreement, we agree with the trial court’s conclusion that plaintiffs motion fails to state a cause of action under the law that would permit an amendment, modification, or setting aside of the May 10, 2002 consent judgment. Thus, we find the trial court properly sustained defendant’s exception of no cause of action.

“Nonetheless, when a petition fails to state a cause of action, but may be amended to cure the defect, the court shall grant the plaintiff leave to amend. La. C.C.P. art. 934.” Ordoyne v. Ordoyne, 2007-0235, p. 5 (La.App. 4 Cir. 4/2/08), 982 So.2d 899, 902. The record does not indicate plaintiff was given the opportunity to amend her petition. Therefore, the case will be remanded for that purpose.

^^Accordingly, we affirm the trial court’s August 15, 2012 judgment and remand the case to the trial court to allow plaintiff to amend her motion within a delay allowed by the court.

AFFIRMED AND REMANDED.

      . See Rigaud v. Deruise, 613 So.2d 761 (La.App. 4th Cir.1993).

      . The trial judge signed the judgment on May 27, 1993.

      . On the date plaintiff filed her motion, La. C.C.P. art. 1951 provided:
      A final judgment may be amended by the trial court at any time, with or without notice, on its own motion or on motion of any party:
      (1) To alter the phraseology of the judgment, but not the substance; or
      (2) To correct errors of calculation.

      . La. C.C. art. 2000 provides:
      When the object of the performance is a sum of money, damages for delay in performance are measured by the interest on that sum from the time it is due, at the rate agreed by the parties or, in the absence of agreement, at the rate of legal interest as fixed by La. R.S. 9:3500. The obligee may recover these damages without having to prove any loss, and whatever loss he may have suffered he can recover no more. If the parties, by written contract, have expressly agreed that the obligor shall also be liable for the obligee's attorney fees in a fixed or determinable amount, the obligee is entitled to that amount as well.


text:
    STATE of Louisiana in the Interest of C.M.
    No. 2014-CA-0088.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 28, 2014.
    Leon A. Cannizzaro, Jr., District Attorney, J. Bryant Clark, Jr., Assistant District Attorney, Parish of Orleans, New Orleans, LA, for Appellee.
    Cheryl A. Carte, Office of Juvenile Justice, Baton Rouge, LA, for Appellant.
    Court composed of Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge MADELEINE M. LANDRIEU.
   MAX N. TOBIAS, JR., Judge.

hThe Louisiana Department of Public Safety and Corrections, Office of Juvenile Justice (“OJJ”), appeals that part of the 11 December 2013 juvenile court judgment which orders it: (1) to notify the mother of a juvenile placed in its custody of all scheduled doctor appointments and to allow the mother to accompany the juvenile to each appointment, and (2) to ensure the presence of the dietician, nurse, doctor, and counselor at all doctors’ appointments. For the reasons that follow, we find the juvenile court exceeded its authority. Accordingly, we vacate that portion of the judgment appealed.

The facts of this matter are not in dispute. On 29 January 2013, the Orleans Parish Juvenile Court adjudicated C.M. delinquent for the offense of Aggravated Battery (five counts), violations of La. R.S. 14:34, and committed him to the custody of the OJJ until such time as he attained his twenty-first birthday. Currently, C.M. is seventeen years old and placed in secure custody.

On 26 August 2013, C.M. was diagnosed with Focal Segmental Glomerulosclerosis (“FSGS”), a chronic kidney disease. A status hearing to 12review the medical treatment being received by C.M. was held on 4 December 2013. At that time, the juvenile’s treating nephrologist from LSU Children’s Hospital, Dr. Oluwatoyin Bam-bgbola, testified regarding the serious nature of C.M.’s kidney disease and how the continuity of his care impacts the successful treatment of his chronic condition. Speeifieally, Dr. Bambgbola stressed the importance of having someone accompany C.M. to his monthly nephrology appointments that has an understanding and is familiar with his medical condition and developed an emotional bond with C.M., who would be able to provide knowledgeable information regarding his medical history, diet, medication, and health status. In his opinion, having C.M.’s mother accompany him to each appointment would be the best solution. Dr. Bambgbola also emphasized the necessity of providing C.M. with ongoing support in order to assist him in accepting his long-term condition and complying with the recommended daily diet, exercise and medicine regimen required for optimal progress.

At the hearing, OJJ confirmed that the secure facility in which C.M. has been assigned provides personnel to daily check and record C.M.’s blood pressure, dispense his prescribed medication, and to monitor his overall medical condition. A dietician oversees his dietary needs and his food is separately prepared from scratch daily in order to meet his low-sodium, low-calorie requirements. Dr. Bambgbola confirmed that he consults regularly with C.M.’s treating physician at the facility regarding C.M.’s medical treatment.

| a At the close of the hearing, the juvenile court ordered OJJ to notify the mother of all scheduled appointments and to allow the mother to accompany the juvenile to all of his doctor’s visits. The court also ordered OJJ to have the dietician, nurse, doctor, and counselor present at all doctor’s appointments. A judgment incorporating these requirements along with other decrees was signed on 11 December 2013.

OJJ filed a motion and order for writ and request for stay, which was signed on 18 December 2013. No return date was given. A review hearing was scheduled for 22 January 2014 in the Orleans Parish Juvenile Court.

At issue is the extent of the juvenile court’s authority to order specific treatment or services for a juvenile placed in the custody of OJJ, following the juvenile’s adjudication of delinquency. Specifically, OJJ avers the court exceeded its statutory authority pursuant to La. R.S. 15:901 D and La. Ch.C. art. 908, when it ordered OJJ: (1) to notify C.M.’s mother of all scheduled appointments and to allow her to accompany him to his doctor visits, and (2) to have present at all of C.M.’s doctor’s appointments, the dietician, nurse, doctor, and counselor. We agree.

As a general matter, La. R.S. 15:901 D states that upon the child’s commitment, the Department of Corrections “shall determine the child’s placement, care and treatment, and the expenditures to be made therefore, through appropriate examinations, tests, or evaluations conducted under the supervision of the department.” Similarly, La. C.Ch. art. 908 A provides that the department |/‘shall have sole authority over the placement, care, treatment, or any other consideration deemed necessary from the resources that are available for children judicially committed to the department.” Pursuant to these provisions, when read together, the legislature has bestowed upon the Department of Corrections the plenary power to make decisions with respect to those juveniles committed to its custody, and a juvenile court, therefore, is without authority to “commit a juvenile to the custody of the Department and specify which services or treatment program the Department must provide.” State in the Interest of T.A., 00-2560, p. 4 (La.12/7/01), 801 So.2d 351, 353-54. In short, once the juvenile court assigns custody of the child to the department, the department has the plenary power to decide the appropriate care and treatment for the child and the expenditures to be made therefor after considering availability and costs. Id. While the juvenile court may compel the department to expend its resources for the care and treatment of a juvenile offender when it commits the offender to the custody of the department, it may not dictate which resources the department must employ for the juvenile’s benefit. La. Ch.C. art. 908(A); State in the Interest of T.A., p. 6, 801 So.2d at 354. See also, La. R.S. 36:408 H(1) and (2)(a)(d).

|sWe find the case of State in the Interest of V.N., 97-1190 (La.App. 5 Cir. 4/15/98), 712 So.2d 954, to be instructive. There, the juvenile court ordered that the juvenile placed in the state’s custody spend more educational time working towards his GED. On appeal, the court determined that this order violated the juvenile court’s authority and, accordingly, vacated the ruling. In doing so, the court noted the differing roles of the juvenile court (i.e., to oversee the general plan for the correction and rehabilitation of the juvenile), and the department (i.e., to provide the details for the implementation of that plan). While the juvenile court and the department have consistent and complimentary concerns, as stated in State in the Interest of V.N., the problem

lies in different views on how the limited resources available to help these children should be allocated. It is clear that the state only has limited resources to provide needed services to the juveniles in its custody. It is also clear that the legislature set up a system whereby the state, not the juvenile court, should be the ultimate authority on how these resources should be allocated.

Id., p. 10, 712 So.2d at 959. See also, State in Interest of J.S.A., 12-785, pp. 2-3 (La. App. 5 Cir. 5/23/13), 119 So.3d 710, 711-712 (juvenile court exceeded its authority by ordering OJJ to provide educational tutoring for juvenile who was adjudicated delinquent and committed to OJJ’s custody; sole authority to determine which services or treatment to provide to the juvenile lies with the state or responsible department).

Similarly, in State in the Interest of J.H., 97-1291, p. 3 (La.App. 4 Cir. 1/14/98), 706 So.2d 561, 563, this court held that once a court has awarded custody to the department, the juvenile court has no authority to order that services, such as transportation of family members, therapy, and parenting sessions, will be provided at the department’s expense.

| ,;In the instant case, the juvenile court exceeded its authority in ordering OJJ to notify the mother of every doctor appointment and to allow her to accompany C.M. to each doctor’s visit, and to order OJJ to expend its resources to ensure the presence of the secure care facility’s dietician, nurse, doctor, and counselor at each of C.M.’s doctor’s appointments. The legislature has given OJJ control over the funds it decides to make available for the services, care, and treatment of juveniles within its custody. Thus, the court had no authority to compel OJJ to use its funds in this manner if, in its discretion and considering the availability of funds and personnel, OJJ chooses not to do so. Accordingly, the portion of the 11 December 2013 judgment ordering OJJ to notify the mother of all doctor appointments and to allow her to accompany C.M. on each doctor visit, and to ensure the presence of the dietician, nurse, doctor, and counselor at each doctor appointment is hereby vacated.

JUDGMENT VACATED IN PART.

      . FSGS is a rare disease that attacks the kidney's filtering system causing scar tissue to form in parts of the kidney and reducing kidney function. FSGS is known to cause nephrotic syndrome (a nonspecific kidney disorder) in children and adolescents, as well as kidney failure in adults. To date, the cause of FSGS is unknown.

      . Thus far, according to Dr. Bambgbola, a different guard from the secure facility to which C.M. has been assigned has accompanied C.M. to each of his monthly appointments and these persons have not been able to provide any useful information regarding C.M.’s care, medical condition, or treatment.

      .It is unclear to us how C.M.'s mother’s presence is essential and necessary in light of her restricted access to C.M. while in secure care. OJJ’s dietician, nurse, doctor, and counselor have daily access to C.M. and are in a better position to monitor C.M.'s condition and activities.

      . The 11 December 2013 judgment also ordered OJJ to provide the juvenile court and Dr. Bambgbola with more detailed information regarding C.M.’s menu, in addition to providing them with a diary of C.M.’s daily blood pressure log, his daily dietary log, specifying the salt intake, every two weeks. OJJ has not appealed this portion of the judgment.

      . Pursuant to La. R.S. 36:408 H(l), the OJJ "shall, in accordance with law, have responsibility for the care, custody, security, and treatment of children adjudicated delinquent and children of families adjudicated in need of services committed to the custody of or placed under the supervision of the office of juvenile justice or of youth services pursuant to the Children's Code except as otherwise provided by law.” La. R.S. 36:408 H(2) states, in pertinent part, that "the office shall provide:
      (a) Evaluation and diagnostic services for children adjudicated delinquent....
      (d) Treatment services in secure custody facilities for children adjudicated delinquent disposed to ... the office of juvenile justice and who, as determined by the office of juvenile justice require this restrictive level of care and custody.

      .At the hearing, OJJ argued that requiring it to provide notice to the mother of a juvenile in secure custody of all of his physician's appointments and allowing her to accompany him on each visit presents a safety issue to OJJ as it relates to the movement of the juvenile while in the Department’s custody. We agree. We acknowledge that we would employ a different analysis if the juvenile court order at issue pertained to a juvenile adjudicated a child in need of services under Title VI of the Children's Code rather than a juvenile adjudicated delinquent under Title VIII and placed in the custody of the OJJ.

      . We also note that the juvenile court's order is largely impractical and overreaching, and could potentially be detrimental to C.M.'s health. Dr. Bambgbola testified as to the importance of C.M. being treated by him on a monthly basis. As time progresses and his condition deteriorates, he envisions that C.M. might have to be evaluated more frequently. It is conceivable that either the facility’s doctor, nurse, dietician, and/or counselor would be unavailable to .attend a scheduled monthly doctor appointment. If such were the case, since the order requires that all four be present at each appointment, C.M. runs the risk of a potential gap in his treatment.

      . While the juvenile court may, and often does, make recommendations regarding the services, care, and treatment for a juvenile committed to OJJ’s custody, it has no authority to order such services, care, or treatment.