author: STEWART, J.

text:
    STATE of Louisiana, Appellee v. Charles E. COOPER, Appellant.
    No. 47,051-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 2, 2012.

      Louisiana Appellate Project by James E. Beal, Jonesboro, LA, for Appellant.
    John M. Lancaster, District Attorney, Penny W. Douciere, Kenneth D. Wheeler, Assistant District Attorneys, for Appellee.
    Before STEWART, CARAWAY and SEXTON (Pro Tempore), JJ.
   STEWART, J.

hThe defendant, Charles E. Cooper, pled guilty to one count of public bribery. He was subsequently sentenced to serve five years at hard labor, with credit for time served, and fined $1,000.00. Cooper now appeals, alleging that his sentence is excessive. For the following reasons, we affirm his conviction and sentence, with the exception of the portion of the sentence requiring him to serve a 120-day parish jail sentence upon default of payment of his $1,000.00 fine, which we vacate.

FACTS

Cooper was charged by bill of information with two counts of public bribery, in violation of La. R.S. 14:118. The bill of information stated that the first count of public bribery involved Cooper accepting something of value from Veldershay Bayonne, while the second count of public bribery involved Cooper accepting something of value from Maranda Mooney. On February 16, 2011, Cooper appeared for the purpose of pleading guilty to the second count of public bribery. In exchange for Cooper’s plea, the state agreed to dismiss the first count of public bribery. There was no agreement as to Cooper’s sentence, and the state requested that the trial court conduct a presentencing investigation.

Cooper was advised of and waived his Boykin rights. See Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The parties stipulated that there was a factual basis for the guilty plea, and the state explained that during a traffic stop, Cooper, a Delhi police officer, agreed not to arrest Maranda Mooney, in exchange for something of value. The |atrial court accepted the guilty plea and ordered a presentence investigation report (PSI).

On February 16, 2011, Cooper appeared for sentencing. The trial court noted its review of Cooper’s PSI, specifically finding that Cooper was a first felony offender, although Cooper had some misdemeanor convictions on his record.

The PSI also revealed the facts of Cooper’s case. The Louisiana State Police began an investigation of Cooper, a former Delhi Police Officer, on October 14, 2009, after receiving information that he had committed misconduct while working as a police officer. Deputy Terry Parrish told state police that he assisted Cooper in searching Veldershay Bayonne’s vehicle on one occasion. Parrish advised investigators that he thoroughly searched the passenger side of Bayonne’s vehicle, but did not find any contraband. However, when Cooper subsequently searched Bayonne’s vehicle, he claimed to have found either drugs or drug paraphernalia in plain view. Bayonne was ticketed for a violation as a result of this search.

The state police interviewed Bayonne, who stated that Cooper had requested money from him in exchange for not arresting him on two separate occasions. On the first occasion, Bayonne was stopped by Cooper for not wearing a seatbelt, playing loud music, and smoking marijuana. Bayonne stated that he gave Cooper between $30 and $40 that night in order to avoid being arrested. On the second occasion, Cooper arrested Bayonne for outstanding warrants in Madison Parish. After contacting the proper authorities in Madison Parish, Cooper learned that the warrants were no [¡¡longer outstanding. He informed Bayonne that he would release him if Bayonne paid him. Bayonne paid Cooper $60 at that time.

The state police also interviewed Maran-da Mooney, who stated that a year and a half ago, she was driving under the influence of alcohol and was stopped by Cooper and his trainee, Officer Orlando Ross. Cooper reportedly told her “we can work this out” and “you can go to jail or you can ride with me and you don’t have to go to jail.” Mooney agreed “to ride” with Cooper, and he drove to an unknown location. Ross got out of the vehicle and Cooper had sex with Mooney in the back seat of his patrol vehicle.

Officer Orlando Ross told the state police that he had never witnessed Cooper take money from anyone, but was aware that he had taken money from Bayonne. Apparently, Ross was present when Cooper made contact with Bayonne between March and April 2008, and Cooper also informed Ross that he had received money from Bayonne. Ross also stated that while riding with Cooper one night, Cooper told Officer Ross that he was going to stop Mooney’s vehicle because she was “always drunk and would make a good arrest.” After Cooper stopped Mooney, she got into the back seat of the patrol unit and Cooper drove to a golf course so that he and Mooney could have sex in the back seat. Cooper also asked Officer Ross if he wanted to participate, but Officer Ross declined. After Mooney had sex with Cooper, she was allowed to leave in her vehicle. Ross related that he did not attempt to stop Cooper from having sex with Mooney because he 14felt the sex was consensual, since Mooney .did not resist Cooper’s sexual advances, nor did she ask for help.

When Mooney was interviewed a second time on December 1, 2009, she stated that she was drinking her second bottle of gin and had snorted half a gram of cocaine when she was stopped by Cooper. She stated that she blacked out several times that evening. After having sex with Cooper, Mooney was driven back to her car and permitted to drive home, even though her license was suspended. A couple of days later, Mooney noticed severe damage to the back of her vehicle and suspected that she had an accident on her way home the evening she was stopped by Cooper.

On January 6, 2010, Cooper was interviewed. He admitted to conducting a traffic stop on Mooney. However, he did not call in the stop to dispatch. Cooper observed a bottle in Mooney’s vehicle. He stated that Mooney offered to perform sexual favors for him. He admitted that he had sex with Mooney and allowed her to leave in her vehicle. He also admitted to receiving $80.00 from Bayonne during a traffic stop, but claimed to have given half of the money to Ross.

The PSI revealed that Sheriff McDonald was also contacted. He informed authorities that Cooper had been fired from the Richland Parish Detention Center on May 30, 2005, for allowing two inmates to have sexual relations in jail.

The trial court stated that it was taking Cooper’s favorable plea agreement into consideration when imposing sentence, because Cooper had been allowed to reduce his sentencing exposure by pleading guilty to one | ¿count of public bribery. The trial court also noted its review of Cooper’s statements of remorse. However, the trial court expressed great concern with Cooper’s actions, and agreed with Sheriff McDonald’s assessment that “using your authority for personal gain is a very bad thing.”

The trial court went through Cooper’s social, educational and employment history. Specifically, the trial court acknowledged Cooper’s history of community service. The trial court stated that it had considered the several letters submitted by members of the community on Cooper’s behalf. The trial court also recognized that Cooper had a child that he supported. However, the trial court found that Cooper’s conviction for this offense “involved an abuse of power and his conviction has eroded the public’s trust and confidence in law enforcement.”

Cooper elected to make a statement and expressed his remorse at the sentencing hearing. Leonard Guiñe, a retired principal of Delhi Middle School, also spoke on Cooper’s behalf at the sentencing hearing. Guiñe testified that Cooper was very active in his church and had spent a lot of time providing emotional support to fatherless boys. Sherrhonda Rene Jones, Cooper’s girlfriend, also testified that Cooper had convinced her son to apply to colleges and obtain an education.

The trial court, after noting its consideration of the PSI and the sentencing factors of La. C. Cr. P. art. 894.1, stated its belief that the crime that Cooper committed is one of the most serious types of offenses. It determined that the most egregious part of this crime is the fact that Cooper used his position and his status as a police officer to facilitate the | ^commission of it. Additionally, the trial court found that there was an undue risk that Cooper would commit another crime if given a suspended sentence and that he was in need of correctional treatment. After considering the foregoing aggravating and mitigating factors, the trial court sentenced Cooper to the maximum sentence of five years’ imprisonment at hard labor. Cooper was also fined $1,000.00, and the trial court ordered him to serve 120 days jail time upon default of payment of the fine.

On June 2, 2011, Cooper filed a pro se motion to reconsider sentence, arguing that his sentence was constitutionally excessive, and that the trial court failed to comply with the sentencing requirements of La. C. Cr. P. art. 894.1. On June 22, 2011, the trial court conducted a hearing on Cooper’s motion. At the hearing, Cooper requested that the trial court amend his sentence to probation. The trial court denied Cooper’s motion in open court. Cooper now appeals, alleging that his sentence is excessive.

DISCUSSION

In the Cooper’s sole assignment of error, he contends that the sentence imposed is excessive. In support of this assignment, Cooper points out that he is a first felony offender. Cooper alleges that although the trial court enumerated the mitigating factors in his case, it did not adequately consider them when sentencing him.

La. R.S. 14:118 provides, with our emphasis added, in pertinent part:

A. (1) Public bribery is the giving or offering to give, directly or indirectly, anything of apparent present or prospective value to any of the following persons, with the intent to influence his conduct in relation to his position, employment, or duty:
|7(a) Public officer, public employee, or person in a position of public authority. (2) The acceptance of, or the offer to accept, directly or indirectly, anything of apparent present or prospective value, under such circumstances, by any of the above named persons, shall also constitute public bribery.
C. (1) Whoever commits the crime of public bribery shall be fined not more than one thousand dollars, or imprisoned, with or without hard labor, for not more than five years, or both.

A trial court has wide discretion to sentence within the statutory limits. Absent a showing of manifest abuse of discretion, this court will not set aside a sentence as excessive. State v. Williams, 03-3514 (La.12/13/04), 893 So.2d 7; State v. McCall, 37,442 (La.App. 2 Cir. 8/20/03), 852 So.2d 1162, writ denied, 04-0039 (La.12/17/04), 888 So.2d 858. On review, the appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. Id.

In reviewing claims of excessive sentence, an appellate court uses a two-step process. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reveals that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dillard, 45,633 (La.App.2d Cir.11/3/10), 55 So.3d 56.

The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full ^compliance with La. C. Cr. P. art. 894.1. State v. Landos, 419 So.2d 475 (La.1982). The important elements which should be considered are the defendant’s personal history (his age, family ties, marital status, health, employment record), pri- or criminal history, seriousness of the offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Dillard, supra.

Second, a sentence violates La. Const. Art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A trial court has broad discretion in sentencing offenders. Absent a showing of manifest abuse of that discretion, an appellate court may not set aside a sentence as excessive. State v. Kidd, 45,638 (La.App.2d Cir.11/3/10), 55 So.3d 90.

As a general rule, maximum or near maximum sentences are reserved for the worst offenders and the worst offenses. State v. Young, 46,575 (La.App. 2 Cir. 9/21/11), 73 So.3d 473; State v. Cozzetto, 07-2031 (La.2/15/08), 974 So.2d 665. However, in cases where a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in his potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence possible for the pled offense. State v. Black, 28,100 (La.App.2d Cir. 2/28/96), 669 So.2d 667, writ denied, 96-0836 (La. 9/20/96), 679 So.2d 430; State v. Richardson, 446 So.2d 820 (La.App. 2d Cir.1984).

| flAfter a careful review of the record, we find that the sentence imposed is not excessive, given Cooper’s actions. The record indicates that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. Specifically, the trial court noted its review of the PSI and stated its reasons for sentencing Cooper, including its belief that his actions constituted the worst type of offense because he took advantage of a highly intoxicated victim. The trial court also considered the fact that Cooper was a first felony offender, was employed, had a family and participated in community service. The trial court explained that its sentence was based on the egregious actions of Cooper, its belief that he would commit another crime if given a suspended sentence, and that Cooper was in need of correctional treatment.

Additionally, the sentence imposed is not grossly out of proportion to the crime committed. The trial court imposed the maximum sentence, but also found that Cooper was the worst type of offender and committed the worst type of offense for his conviction. Furthermore, Cooper obtained a substantial benefit by pleading guilty to one count of public bribery because the second count was dismissed.

Clearly, the trial court based its sentence on the seriousness of the offense, the benefit Cooper obtained from pleading guilty, and Cooper’s abuse of his substantial power as a law enforcement officer. As stated above, the trial court had great discretion to impose the maximum sentence.

This assignment therefore has no merit.

| mError Patent:

We have also reviewed the record for error patent. A review of sentencing transcript reveals that the trial court ordered Cooper to serve a 120-day parish jail sentence upon default of payment of his $1,000.00 fine. The record indicates that Cooper is indigent.

An indigent defendant may not be subjected to imprisonment because he is unable to pay a fine which is part of his sentence. Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983); State v. Monson, 576 So.2d 517 (La.1991); State v. Kerrigan, 27,846 (La.App.2d Cir.04/03/96), 671 So.2d 1242. A defendant’s claim of indigence in such a situation may be discerned from the record. State v. Williams, 484 So.2d 662 (La.1986); State v. Kerrigan, supra.

This court has considered it error for a trial court to impose jail time for failure to pay court costs. State v. Kerrigan, supra. In the context of disposition of this claim, we choose to amend the defendant’s sentence. See State v. Tillman, 43,569 (La. App 2 Cir. 10/22/08), 997 So.2d 144, 149, where this court vacated that portion of an indigent defendant’s sentence which had been imposed in lieu of jail time, and affirmed the sentence as amended.

We vacate this portion of his sentence accordingly.

| n CONCLUSION

For the foregoing reasons, Cooper’s conviction is affirmed. The portion of his sentence requiring him to serve a 120-day parish jail sentence upon default of payment of his $1,000.00 fine is vacated. As amended, Cooper’s conviction and sentence are affirmed.

AFFIRMED AS AMENDED.

      . On April 21, 2010, the trial court found Cooper indigent, and appointed defense counsel to represent him. He is also represented by the Louisiana Appellate Project on appeal.


source: Caselaw Access Project

author: DREW, J.

license: Public Domain

text:
    Johnny T. JOHNSON and Dolores Wallace Johnson, Plaintiff-Appellee v. PUEBLO VIEJO, INC., Stephen Tabe, and Mario Andrade, Defendant-Appellant.
    No. 47,586-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 10, 2013.

      Smith & Nwokorie by Brian G. Smith, Anselm N. Nwokorie, for Appellants.
    Breithaupt, Dunn, DuBos, Shafto & Wolleson, LLC, Monroe, LA, by Michael L. DuBos, Molly F. McEacharn, for Appel-lees.
    Before DREW, PITMAN and SEXTON (Ad Hoc), JJ.
   DREW, J.

| í Johnny Johnson (Johnson) and Dolores Wallace Johnson, plaintiffs, on October 31, 2006, leased commercial property at 3224 Louisville Avenue, Monroe, for use as a Mexican restaurant, to the defendants, Pueblo Viejo, Inc., Stephen Tabe, and Mario Andrade. This dispute over unpaid rents, reimbursements for repairs and insurance premiums along with other damages has a convoluted procedural history. Before reaching the merits, this court must decide whether defendants’ appeal is properly before the court. For the reasons set out below, we find that this appeal is appropriate for adjudication by this court. The judgment of the trial court is affirmed at defendants’ costs.

PROCEDURAL BACKGROUND

January 24, 2012 Written Reasons for Judgment

January 24, 2012 Judgment, Reserving Quantum of Attorney Fees

January 30, 2012 Amended Judgment Adding Interpreter’s Fee

January 31, 2012 Plaintiffs’ Motion to Set Attorney Fees

February 13, 2012 Judgment Setting Attorney Fees of $22,138.50 and Costs of $5,282.70

February 17,2012 Defendants’ Motion for Suspensive Appeal

February 23, 2012 Order Granting Suspensive Appeal with $30,000.00 Appeal Bond

February 23,2012 Defendants’ Motion for New Hearing on Attorney Fees

March 6, 2012 Plaintiffs’ Motion to Increase Suspensive Appeal Bond

April 13, 2012 Hearing on Attorney Fees and Suspensive Appeal Bond

April 23, 2012 Judgment setting Attorney Fees in the same amount awarded in the February 13, 2012, Judgment

12April 23, 2012 Order Increasing the Amount of the Suspensive Appeal Bond to $110,000

April 24, 2012 Notice of the Judgment Mailed to the Parties

May 31, 2012 Appeal Lodged in Appellate Court

On June 14, 2012, Judges Stewart, Gas-kins and Lolley issued a rule to show cause why the February 17, 2012, appeal should not be dismissed for lack of jurisdiction based upon a premature appeal from an unappealable partial judgment dated January 24, 2012. In the interim, the trial court had disposed of the matters left pending by the January 24, 2012, judgment. Defendants’ motion for new hearing on one issue was filed on February 23, 2012, and resolved in a judgment dated April 23, 2012. On August 28, 2012, Judges Stewart, Gaskins and Lolley referred the issues raised in this court’s June 14, 2012, rule to show cause to the merits of the appeal.

La. C.C.P. art. 2088(B) states:

B. In the case of a suspensive appeal, when the appeal bond is not timely filed and the suspensive appeal is thereby not perfected, the trial court maintains jurisdiction to convert the suspensive appeal to a devolutive appeal, except in an eviction case.

In Overmier v. Traylor, 475 So.2d 1094 (La.1985), the Louisiana Supreme Court noted that appeals are favored and that the Code of Civil Procedure is to be “construed liberally, and with due regard for the fact that rules of procedure implement the substantive law and are not an end in themselves.” La. C.C.P. 5051. The Overmier decision ruled that an appeal granted before.the signing of a final judgment is subject to dismissal until the final judgment has been signed. Once the final judgment is signed, any previous defect of prematurity is cured and no useful purpose is served in dismissing an otherwise valid appeal. Overmier, supra.

IsGuided by Overmier, supra, the First Circuit in Chauvin v. Chauvin, 2010-1055 (La.App. 1st Cir.10/29/10), 49 So.3d 565, observed that Mr. Chauvin’s appeal was premature because he filed the appeal pri- or to the signing of the final judgment. However, the prematurity defect was cured once the final judgment was signed. Additionally, after his motion for appeal was granted, Mr. Chauvin filed a Motion for a New Trial. Since his appeal was pending, the trial court concluded it did not have jurisdiction to consider a new trial motion which was continued without date. Under La. C.C.P. art.2088, the First Circuit decided that Mr. Chauviris new trial motion was waived or abandoned when the order of appeal was signed, so that Mr. Chauvin’s appeal properly before the appellate court, notwithstanding his pending new trial motion.

In this matter, following the signing of the defendants’ order of appeal, defendants sought and received a new hearing on the quantum of attorney fees. Based on Chauvin, that new hearing on attorney fees was without effect, since the trial court was divested of jurisdiction when it signed the order of appeal. La. C.C.P.2088. These defendants waived or abandoned their right to seek a new hearing when they obtained the order for this appeal. A judgment on any matter reviewable on appeal and entered by a trial court after jurisdiction is divested is an absolute nullity. Tealwood Properties, LLC v. Succession of Graves, 47,446 (La.App.2d Cir.9/20/12), 105 So.3d 120.

All matters before the trial court were resolved while the appeal was pending. Following the granting of the order of appeal, any prematurity |4issues were cured by subsequent judgments resolving all the issues pending in the trial court.

Even when an appeal is not a proper suspensive appeal, appeals are treated as devolutive. La. C.C.P. art. 2088(B). The record contains an order dated June 15, 2012, converting this matter from a sus-pensive to a devolutive appeal. This appeal is properly before this court for resolution.

REASONS FOR JUDGMENT

The trial court set out the facts in written reasons for judgment dated January 24, 2012. The lease ran from October 15, 2006, until January 31, 2012, with rent payments of $4,400 due on the first day of the month. Plaintiffs provided defendants with free occupancy from October 15, 2006, through February 2007. Defendants paid rent from March 1, 2007, until September 2010. The lease contained detailed repair and maintenance requirements on lessors and lessees along with assorted mandates for various types of insurance. Tabe (who denied signing) and Andrade (who admitted signing) executed a separate “In Solido Obligation and Guaranty Agreement” consenting to be personally responsible to fulfill the lease terms.

The Johnsons sued to recover unpaid rents, reimbursements for certain repairs, and insurance coverage the defendants failed to maintain. Additionally, they sought damages for defendants’ alleged breach of the lease terms. The Johnsons sought back rent for 16 months totaling $70,400.00, which was granted by the trial court.

To the defense assertion that the parties entered a verbal agreement | ¿requiring plaintiffs to make all the repairs needed to make the property suitable for use as a restaurant, the trial court found that the only circumstances under which the trial court could consider extrinsic evidence was if the lease itself was ambiguous. The trial court found this contract was clear and did not lead to absurd consequences. The lease of the premises was “as is” with all repairs to be made by the lessees.

Concerning the repairs, Johnson testified that plaintiffs made certain repairs after being told by Andrade (who managed the restaurant) that plaintiffs would be reimbursed. Although Tabe denied code-fendant Andrade was allowed to authorize repairs, the trial court noted that the concept of apparent authority is operable when it is reasonable for a third person to believe, and does in fact believe, that the agent is authorized. Johnson relied on the belief that Andrade had authority to act on behalf of Pueblo Viejo, Inc. Tabe testified that Andrade was the primary contact with plaintiffs in negotiating the lease and was in charge of day-to-day operations at the restaurant, including hiring employees, ordering food, and paying rent. The trial court found plaintiffs were reasonable in relying on the apparent authority of An-drade to authorize repairs. The judgment awarded plaintiffs $31,582.91 in repairs.

Under the lease terms, the defendants were required to maintain certain insurance coverage about which uncontradicted evidence showed lapsed coverages totaling $3,007.25, which the defendants were ordered to | (¡pay to the Johnsons.

Testimony established that all the John-sons’ leases required personal guaranties for the performance of the leases. While Andrade admitted his signature, Tabe disputed his. Andrade stated he recognized Tabe’s signature, and handwriting expert Robert Foley positively identified Tabe’s signature on the guarantee. Both Tabe and Andrade were found personally liable for the lease performance.

Finally, the trial court concluded that the defendants were responsible for attorney fees and court costs under the lease. At plaintiffs’ request, the attorney fee issue was left open for the amount to be set subsequently. The January 24, 2012, judgment awarded plaintiffs a total of $104,990.16 for rent, insurance premiums, and repairs with the attorney fees quantum to be set later. Defendants were cast with court costs, also. In an amended judgment dated January 30, 2012, the trial court set an interpreter’s fee of $1,225. On February 13, 2012, the trial court signed the judgment awarding to plaintiffs attorney fees of $22,138.50 and setting court costs at $5,282.70.

The defendants’ appeal was granted in an order signed February 23, 2012. The plaintiffs answered the appeal seeking attorney fees for the appeal.

DISCUSSION

Testimony was that Andrade and Tabe were partners in the corporation with An-drade providing the restaurant experience and day-tojday7 management with Tabe providing financing. The pair had three other Pueblo Viejo Mexican restaurants in the area and wanted to open a fourth location.

Standard of Appellate Review

In Quillian v. Dixie Bonded Warehouse, 47,330 (La.App.2d Cir.8/29/12), 105 So.3d 71, writ denied, 2012-2289 (La.11/30/12), 103 So.3d 376, this court cited Stobart v. State, 617 So.2d 880 (La.1993), and set out the standard of appellate review for factual determinations.

A trial court’s findings of fact will not be disturbed on appeal unless the reviewing court finds that they are clearly wrong or manifestly erroneous. To reverse a fact finder’s determination, the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court and that the record establishes that the finding is clearly wrong. If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse, even though convinced that, had it been sitting as the trier of fact, it would have weighed the evidence differently.
Where two permissible views of the evidence exist, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Further, when findings are based on determinations regarding credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings. Only the fact finder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in that which is said.

Quillian, swpra, at p. 76. Citations omitted.

Trial Court’s Denial of Brian Smith’s Motion to Withdraw as Andrade’s Attorney

Asserting trial court error, the defendants argued that defense counsel, Brian G. Smith, should have been permitted to withdraw as legal representative of defendant Andrade due to a “possible” conflict between Andrade and codefendant Tabe. According to the defendants, Smith 18“erroneously included” Andrade in the defendants’ initial answer. Subsequently, Smith filed a motion for leave and the amended answer seeking to strike An-drade’s name “submitted in error” by Smith.

The plaintiffs correctly countered that Smith never complied with the legal directives for withdrawing as counsel for Andrade. Initially on August 22, 2011, Smith attempted to file an amended answer without leave of court striking An-drade’s name from the answer. On September 13, 2011, with a motion to amend with leave of court, Smith again sought to strike Andrade’s name from the answer, instead of complying with La. District Court Rule 9.1S.

IsAfter trial was set for November 8, 2011, Smith filed on October 19, 2011, a motion to withdraw, alleging a conflict among Andrade, Tabe, and Pueblo Viejo, Inc., regarding unspecified “missing funds” and “unauthorized acts.” Smith also stated that Andrade was an adverse party to Tabe, had retained separate counsel, and Smith could not represent Andrade in this dispute due to the conflict. Smith alleged that he notified Andrade at his last known address and attached a scheduling order and judgment including the trial date of November 9, 2011.

|inOn October 19, 2011, the trial court set a hearing on October 26 for Smith to show cause why he should not be permitted to withdraw as attorney of record for An-drade. The trial court signed the order October 27, 2011, denying Smith’s motion to withdraw.

Due to deficiencies in the motion, Louisiana District Court Rule 9.18(d) was not applicable. Smith did not supply the court with the written consent of Andrade plus that of all parties or their respective counsel. Additionally, there was no indication the Clerk of Court had been supplied with Andrade’s last known address and no certificate from Smith that he had complied with Rule 9.13. This motion to withdraw was made only three weeks before the trial date. The October 26, 2011, minutes of court reflect the denial was made in open court where the trial court noted that a motion to substitute counsel would have to be filed. See Louisiana District Court Rule 9.13(h). The record does not contain such a filing.

This record contains no transcript of the hearing at which Smith was required to establish good cause for the withdrawal. The letters accompanying his motion to withdraw were vague and unclear as to the nature of the dispute alleged. Smith repeatedly failed to use correct procedural vehicles to terminate his representation of Andrade. We cannot say that the trial court erred in denying Smith’s requested withdrawal as attorney for Andrade.

Plaintiffs’ Motion to Quash

Although defendants labeled this section of their brief “Trial Court’s _|_yError in Granting Plaintiffs’ Motion to Quash Subpoenas of Plaintiff, Johnson, and Plaintiffs’ Handwriting Expert,” their only argument addresses deposing Johnson in his home due to his physical condition.

URCA 2-12.4 states, in pertinent part: “All specifications or assignments of error must be briefed. The court may consider as abandoned any specification or assignment of error which has not been briefed.” Because defendants did not include in brief argument on the testimony of plaintiffs’ handwriting expert, we consider that assignment abandoned. Entergy Louisiana, Inc. v. James, 42,826 (La.App.2d Cir.1/23/08), 974 So.2d 838.

Even though the defendants intentionally or mistakenly omitted briefing their complaint about Robert Foley’s testimony that Tabe signed the personal guaranty, we note that the record clearly shows that defendants were properly notified of Foley’s participation. Plaintiffs supplied defendants documentation of Foley’s examination of and report about Tabe’s signature. Additionally, plaintiffs made Foley available for deposition on a date selected by the defendants, who neither gave notice nor appeared for the deposition. Additionally, they failed to pay Foley’s required pre-deposition fee. The trial court did not err in permitting Foley’s testimony.

Plaintiffs asserted that Johnson was too ill to leave his home to be deposed. Defendants acknowledged in brief that they agreed to take Johnson’s deposition at his home if plaintiffs supplied proof that he was medically unable to attend a deposition elsewhere. Plaintiffs supplied a 112physician’s letter stating that Johnson was unable to attend a deposition. Defendants contend that was inadequate information. On August 22, 2011, plaintiffs filed a motion to quash, which was granted by the trial court in a August 29, 2011, judgment.

The trial court has broad discretion to regulate pretrial discovery. Absent a clear abuse of that discretion, the trial court’s decision will not be disturbed on appeal. Bell v. Treasure Chest Casino, L.L.C., 06-1538 (La.2/22/07), 950 So.2d 654. Based upon this record, we find no abuse of the trial court’s discretion in resolving discovery disputes.

Admission into Evidence of Invoices for Repairs Paid for by Plaintiffs

The defendants contended that the invoices placed into evidence by plaintiffs for repairs to the property were neither clear nor understandable. Because workers from the companies making the repairs were not called to testify and because the testimony of Johnson’s secretary of many years was allegedly insufficient, defendants argued that the invoices should not have been admitted.

Ruth Beeson testified that she had been employed by Johnson for 89 years as his secretary in his extensive commercial real estate development business which leased as many as 150 properties to food franchises. Among her responsibilities were typing leases as directed by Johnson, collecting rental payments, preparing correspondence, and paying mortgages. Mrs. Beeson explained that she kept track of payments and bills by maintaining a separate record on each property on which she logged rent, maintenance and repairs, bills, and payments. To determine what rent had been paid, bills | ^received and payments made for repairs at 3224 Louisville Avenue, she maintained a file on that property on which she posted the information.

Due to Johnson’s declining health in recent years, Mrs. Beeson worked in the office while speaking to Johnson by phone numerous times per day. Unless Johnson was not able to see her, Beeson’s practice was to go to the Johnsons’ home at the end of almost every workday to deliver mail, telephone messages, and paperwork. Johnson handled lease provision issues with tenants while the Johnsons’ son, Jay, managed the property on a daily basis, which included showing properties, collecting rents, addressing problems, and primarily dealing with the tenants.

Specifically, Mrs. Beeson produced the invoices for plumbing work done for Pueblo Viejo by All Plumbing, Inc., along with identifying the checks written to pay those bills. Some checks were partial payments because Johnson specifically instructed Mrs. Beeson as to the amount he wanted to pay each time he authorized her to write a check.

Mrs. Beeson had personal knowledge of the receipt of invoices, the preparation of payment, the coding of each check to an invoice, and the mailing of the payment, all of which were included in records she maintained in the normal course of business. Mrs. Beeson also identified checks prepared for insurance premiums on the leased property, checks to the City of Monroe for a certificate of occupancy, and an Entergy check for temporary power.

The trial court correctly admitted the evidence of plumbing repairs and other payments noted above, finding that Mrs. Beeson had sufficient 1 uknowledge to testify as to those matters. La. C.E. art 803(6) provides that records of regularly conducted business activities are not excluded by the hearsay rule. Third party invoices are admissible to prove amount of damages. When received and maintained in the course of business, the invoices and bills are considered incorporated business records admissible under the business records exception to the hearsay rule in situations demonstrating trustworthiness. Bishop v. Shaw, 43,137 (La.App.2d Cir.3/12/08), 978 So.2d 568.

In Bishop, supra, a dispute over charges on a cost-plus construction contract, this court found that the trial court did not abuse its discretion in admitting the third party invoices. Bishop and his bookkeeper testified about receiving, categorizing, entering and processing charges for services and material which incorporated the invoices into his business records. Bishop, supra.

In addition to Mrs. Beeson’s testimony, Johnson testified that his commercial leases usually were “net, net, net” terms which meant the lessee accepted the premises “as is,” was financially responsible for all maintenance and repairs to the property, and paid the property taxes on the property. In this lease, the “as is” condition applied and the lessees were responsible for all repairs except for the previously noted exceptions.

Jay showed the property several times to Andrade. After Andrade viewed and liked the property, he was given a key to facilitate showing the property to his partner, Tabe. Defendants negotiated a modification in | ifiwhich the lessors agreed to be responsible for property taxes. Johnson stated he was primarily involved in negotiating the lease while his son Jay was more involved after the lease was signed and the business began.

In his contact with Andrade, Johnson said it was clearly established that defendants were financially responsible for repairs and improvements paid for by the plaintiffs. Jay handled the day-to-day requests for assistance with repairs and kept his father informed daily. After defendants ceased making rent payments, Tabe visited Johnson and requested to be released from the lease. Johnson explained that a deal was a deal and stated: “Once you tattoo or sign a lease, ..., you’re on it.”

Testimony of Jay Johnson Concerning the Terms of the Lease

A licensed realtor, Jay handled the day-to-day management of his parents’ extensive commercial real estate holdings. Because Jay was not a party to the lease, defendants objected to his testimony about the terms of the lease. Jay, Johnson, and Mrs. Beeson all testified that Jay was closely involved in the negotiation and management of this lease.

Jay stated that he was directly involved with showing the property several times to Andrade, discussing the lease terms with Andrade and Johnson, supplying a key so Andrade could show the site to Tabe, and dealing with problems after the lease was signed. Jay reported the defendants had opportunities to inspect closely and independently the premises before the lease was executed.

The majority of his plaintiffs’ leases contained similar obligations. Any variation from the usual “net, net, net” lease terms had to be |1fiapproved by his father. In this case, the defendants negotiated that the plaintiffs were responsible for paying the property taxes on the property. No variation was made to the “as is” provision of the lease.

Jay identified the invoices plaintiffs placed into evidence covering plumbing work for which the plaintiffs made payments and described the work performed under each. Jay explained that his father, in an effort to help defendants have a successful operation, agreed to pay for certain improvements with the understanding that defendants were responsible for repaying plaintiffs for the funds expended.

Typically, Andrade called Jay to request certain work be performed, and Jay would call his father to discuss it, after which plaintiffs authorized the job and Jay contacted the appropriate vendor to do the work. In addition to helping the defendants, who frequently stated they did not have the funds for the work requested, the plaintiffs also wanted to avoid any liens for unpaid bills being filed against their property. Jay testified that at no time did Andrade object to the requirement that defendants were responsible to repay the plaintiffs for the costs borne by plaintiffs.

La. C.E. art. 602 states, in pertinent part: “A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness himself.” This record contained ample proof that Jay gave appropriate testimony based upon his personal knowledge. The witness was very familiar not only with the lease terms but also with the all the matters 117involved in this litigation from the defendants’ initial contact until and after defendants abandoned the leased property. The trial court correctly admitted his testimony.

Quantum

Asserting that plaintiffs did not prove the amount allegedly owed by them, defendants claimed, without authority or particularity, that the amount awarded was not established at trial and the calculation of quantum was unclear. The record simply does not support this.

In addition to the lease, plaintiffs presented at trial the personal guaranty, a requirement mandated by plaintiffs for all their property leases. Signed in October 2006, the lease provided that $4,400.00 in monthly rental was to be paid beginning in March 2007 through January 31, 2012. The free occupancy period was to assist defendants as they prepared the property (previously a Chinese restaurant) for opening as a Mexican restaurant, a period in which the defendants had no income. Tabe testified that the rent of $4,400.00 was last paid in September 2010 and that lease payments were owed through the end of the lease. The testimony of Mrs. Beeson, Tabe, and Jay was that the defendants owed 16 months’ rent. The total was $70,400.00, which we find was properly awarded by the trial court.

As to the repairs award of $31,582.91, the testimony established the clear and unambiguous terms of the lease, including the provision that the defendants accepted the premises “as is” and were responsible for maintenance. Mrs. Beeson and Jay both testified about the services obtained, the receipt of the invoices, and the checks by which payments |iswere made. From that specific testimony and documentation, the record supports that the amount awarded, $31,582.91, was attributable to items which were the responsibility of defendants.

The lease terms required defendants to maintain specific insurance coverage on the leased premises. Mrs. Beeson stated that she was instructed by Johnson to obtain insurance coverage on the leased property to replace defendants’ lapsed insurance coverage. Her testimony detailed the coverage obtained and the premiums the plaintiffs paid. The invoices and checks in payment identified and placed into the record provide a reasonable factual basis for the trial court’s award of $3,007.25 for insurance.

Suspensive Appeal Bond

La. C.C.P. art. 2088(A)(5) states:

The jurisdiction of the trial court over all matters in the case reviewable under the appeal is divested, and that of the appellate court attaches, on the granting of the order of appeal and the timely filing of the appeal bond, in the case of a suspensive appeal or on the granting of the order of appeal, in the case of a devolutive appeal. Thereafter, the trial court has jurisdiction in the case only over those matters not reviewable under the appeal, including the right to:
(5) Test the solvency of the surety on the appeal bond as of the date of its filing or subsequently, consider objections to the form, substance, and sufficiency of the appeal bond, and permit the curing thereof, as provided in Articles 5123, 5124, and 5126[.]

Appeals are favored. Overmier, supra. No security is required for a de-volutive appeal. La. C.G.P. art. 2124(A). Suspensive appeals are treated as devolu-tive when the appellant fails to pay the suspensive appeal bond. See State v. Simmons, 521 So.2d 749 (La.App. 2d Cir.1988). The parties have continued to litigate in the trial court issues pertaining to the | ^sufficiency and timeliness of defendants’ suspensive appeal bond. Much of this has occurred after this appeal was granted and the record was lodged in this court. Those matters are not a part of the appellate record. The trial court has jurisdiction to test the solvency of the surety and consider other objections to form, substance, and sufficiency of the defendants’ suspensive appeal bond. La. C.C.P. art. 2088(A)(5). We decline to address plaintiffs’ complaints about the suspensive appeal bond.

Attorney Fees for Appeal

Plaintiffs answered the appeal and sought attorney fees for defending plaintiffs against defendants’ appeal. At oral arguments before this court on January 14,-2013, plaintiffs’ counsel filed an affidavit and time records seeking $1,773.54 advanced by the attorneys for costs and attorney fees in the amount of $13,580.00. The trial court generously awarded plaintiffs’ counsel $22,138.50 in attorney fees and costs of $5,282.70 for the litigation at the trial level. We find an additional award of $2,000.00 is sufficient for the defense of this appeal.

DECREE

The judgment of the trial court is affirmed in all respects. Defendants are cast with $2,000.00 for legal fees and asso-dated costs incurred by their attorneys. Defendants are assessed with appellate court costs.

AFFIRMED.

SEXTON, J. (Ad Hoc), concurs.

      . The trial court amended the judgment to include a fee for the interpreter appointed by the court to assist one of the defendants, Andrade, who apparently did not speak or read English well enough to fully understand the court proceedings.

      . Defendants stated that inclement weather prevented their attorney from attending the initial hearing.

      . The lease contained two exceptions: the lessors were responsible for the roof and for replacement of the air conditioning system should the one in place become irreparable. The record shows that, during defendants’ occupancy, the plaintiffs replaced the air conditioning system at an estimated cost exceeding $27,409.00.

      . See Footnote # 1.

      . Rule 9.13. Withdrawal as Counsel of Record
      Enrolled attorneys have, apart from their own interests, continuing legal and ethical duties to their clients, all adverse parties, and the court. Accordingly, the following requirements govern any motion to withdraw as counsel of record:
      (a) The withdrawing attorney who does not have written consent from the client shall make a good faith attempt to notify the client in writing of the withdrawal and of the status of the case on the court’s docket. The attorney shall deliver or mail this notice to the client before filing any motion to withdraw.
      (b) If the action or proceeding has been assigned to a particular section or division of the court, then the motion to withdraw shall be submitted to the judge presiding over that section or division.
      (c) Any motion to withdraw shall include the following information:
      (1) The motion shall state current or last-known street address and mailing address of the withdrawing attorney's client. The withdrawing attorney shall also furnish this information to the clerk of court.
      (2) If a scheduling order is in effect, a copy of it shall be attached to the motion.
      (3) The motion shall state whether any conference, hearing, or trial is scheduled and, if so, its date.
      (4) The motion shall include a certificate that the withdrawing attorney has complied with paragraph (a) and with Rule 1.16 of the Rules of Professional Conduct, Louisiana State Bar Association, Articles of Incorporation, Art. 16. A copy of the written communication required by paragraph (a) shall be attached to the motion.
      (5) If the motion is to withdraw upon completion of a limited appearance, the motion shall include a certification by the withdrawing attorney that the agreed upon limited services have been completed and that the withdrawing attorney has submitted all judgments or orders resulting from the limited appearance as ordered by the court. A copy of the relevant Notice of Limited Appearance shall be attached to the motion.
      (d) The court may allow an attorney to withdraw by ex parte motion if:
      (1) The attorney has been terminated by the client; or
      (2) The attorney has secured the written consent of the client and of all parties or their respective counsel; or
      (3) A limited appearance, as authorized by Rule 1.2(c) of the Rules of Professional Conduct and consented to by the client, has been completed, or
      (4)The case has been concluded.
      (e) The court may also allow an attorney to withdraw by ex parte motion if no hearing or trial is scheduled.
      (f) If paragraph (d) does not apply, then an attorney may withdraw as counsel of record only after a contradictory hearing and for good cause. All parties and the withdrawing attorney's client shall be served with a copy of the motion and rule to show cause why it should not be granted.
      (g) If counsel's withdrawal would delay a scheduled hearing or trial, the court will not allow the withdrawal unless exceptional circumstances exist or limited representation was undertaken pursuant to a Notice of Limited Appearance and completed.
      (h) Paragraphs (a) through (f) do not apply to an ex parte motion to substitute counsel signed by both the withdrawing attorney and the enrolling attorney. The following rules govern such a motion:
      (1) The court may grant the motion without a hearing. Movers shall furnish the court with a proposed order.

        (2) Substitution of counsel will not, by itself, be good cause to alter or delay any scheduled matters or deadlines.

      . Smith attached to his three letters to the motion to withdraw: (1) October 19, 2009, letter from the Knight law firm concerning attempts to contact Smith and requesting Smith file an answer in OPUS Broadcasting v. Pueblo Viejo; (2) June 29, 2010, letter from Edwin Theus, Jr., to Smith concerning Tabe’s "extremely vague and ambiguous" allegations about of unauthorized conduct and breach of duties. Since Tabe refused to produce information requested, attend shareholders and directors meetings and communicate with An-drade, Theus stated no amicable solution was possible and Andrade intended to file a petition for involuntary dissolution of Pueblo Vie-jo; and, (3) May 11, 2009, letter from Amado Leija stating Andrade wanted to withdraw from the corporation and was ready to sign any necessary paperwork.

      . See Footnote # 5.

      . See footnote # 3.


text:
    Floyd A. MARSHALL, Jr. v. Amanda Lynn CORNWALL.
    No. 13-CA-62.
    Court of Appeal of Louisiana, Fifth Circuit.
    July 3, 2013.
    Robert R. Faucheux, Jr., Attorney At Law, Laplace, LA, for Plaintiff/Appellant.
    Sherry Watters, State of Louisiana, Department of Children and Family Services, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges JUDE G. GRAVOIS, ROBERT M. MURPHY, and JOHN J. MOLAISON, JR., Ad hoc.
   JUDE G. GRAVOIS, Judge.

| ¡^Appellant, Floyd A. Marshall, Jr., appeals a trial court judgment that sustained the Louisiana Department of Children and Family Services’ declinatory exception of lack of jurisdiction over Mr. Marshall’s Petition for Ex-Parte Custody over his minor children. The trial court found that under the Uniform Child Custody Jurisdiction and Enforcement Act, La. R.S. 13:1801 et seq., the State of Florida had continuing jurisdiction over the parties and had not relinquished such jurisdiction. For the following reasons, we vacate the judgment of the trial court under review and remand the matter to the trial court for further proceedings.

PROCEDURAL HISTORY AND FACTS The record shows that on July 28, 2011, Mr. Marshall filed a Petition for Ex-Parte Order for Temporary Custody, Change in Custody and Request for Psychological Evaluation in the 40th Judicial District Court, Parish of St. John the Baptist. Therein, Mr. Marshall alleged that he was the father of three minor children (Callie Marshall, Kieran Marshall, and Quentin Marshall), that their mother was Amanda Cornwall, that all parties lived in St. John the Baptist Parish, |aand that he had been awarded custody of the children pursuant to a judgment rendered in Orleans Parish on May 23, 2005. Mr. Marshall further alleged that a temporary ex parte order awarding custody of the minor children to him was needed because Ms. Cornwall was associating with drug dealers. He also alleged that Ms. Cornwall had been the subject of a restraining order in favor of Lyner Vazquez due to domestic violence.

On July 29, 2011, the duty judge of the 40th Judicial District Court (Division “C”) issued the temporary ex parte order of custody requested by Mr. Marshall, and set the matter for a hearing before Division “A” of the 40th Judicial District Court for August 19, 2011 in order for Ms. Cornwall to show cause why Mr. Marshall should not be awarded sole custody of the minor children. However, in an Order dated July 30, 2011, the duty judge vacated his July 29, 2011 Order. He noted that through intervening communication with the State of Florida Department of Children and Families and the Circuit Judge of Florida’s 11th District Court in Miami-Dade County, he had learned that Mr. Marshall’s petition had omitted considerable and “highly pertinent” information that would have established, if furnished, “a full and total picture of the parties, the various relationships appertaining, and the previous Orders of Florida that remain in full force and effect.” Specifically, he noted that the “highly pertinent” and material information omitted by Mr. Marshall in his petition was that the family was the subject of on-going proceedings in the Florida court pertaining to the placement and custody of the minor children, and that the Florida court had allowed the children to move to Louisiana in 2011 under the Interstate Compact for the Placement of Children (La. Ch. C. art. 1608 et seq.), with the Florida court (as the “sending state”) expressly retaining jurisdiction over the proceedings. The duty 1¿judge further noted that the Florida court had a hearing in the matter scheduled for August 1, 2011. The duty judge also noted in his July 30, 2011 Order that the' matter remained on the August 19, 2011 docket of Division “A” of the 40th Judicial District Court, to which Division the custody matter was randomly assigned for hearing/status conference.

On September 14, 2011, the Louisiana Department of Children and Family Services (“DCFS”) filed exceptions of lack of jurisdiction, no cause of action, and failure to join indispensable parties to Mr. Marshall’s petition. In its exceptions, the DCFS argued that the children were under the custody of the State of Florida, under the order and jurisdiction of the Circuit Court of the 11th Judicial Circuit in and for Miami-Dade County, Juvenile Division, and were being supervised by the State of Louisiana, DCFS, pursuant to the Interstate Compact for the Placement of Children (La. Ch. C. art. 1608 et seq.). The DCFS further argued that the Florida court maintained protective juvenile jurisdiction over the children that was continuing under the Uniform Child Custody Jurisdiction Act, La. R.S. 13:1801 et seq., until such time as the Florida court closed the case or chose to relinquish jurisdiction. The DCFS noted that Mr. Marshall was a named defendant and participant in the Florida proceedings, and charged that he had fraudulently filed the ex parte petition for custody and had withheld information from the trial court regarding the on-going nature of the Florida proceedings. Following a hearing conducted on October 17, 2011, the trial court (Division “A”) sustained DCFS’s exception of lack of jurisdiction, pretermitting any decisions on the other exceptions.

On October 25, 2011, Mr. Marshall filed a motion for a new trial. The hearing on that motion was continued several times, and was ultimately heard on ^August 24, 2012. By written judgment (with reasons) signed on September 18, 2012, the trial court (Division “A”) denied the motion. This timely appeal followed.

On appeal, Mr. Marshall argues that (1) the trial court erred in sustaining the exception, and (2) the trial court erred in ruling that Mr. Marshall’s telephone conversation with the Florida court on August 1, 2011 constituted a submission to the Florida court’s jurisdiction.

FIRST ASSIGNMENT OF ERROR

Mr. Marshall first argues that the trial court’s ruling sustaining the DCFS’s exception of lack of jurisdiction violates the jurisdictional principles of the UCCJEA. He argues that under its provisions, Louisiana is the children’s home state since the children and the parties moved back to Louisiana in 2011. He argues that once the trial court found that all of the parties and relevant evidence were located in Louisiana, Louisiana was the only state with jurisdiction to render a custody judgment. Upon review, we find that the trial court erred in granting the exception of lack of jurisdiction, but for a different reason.

We first note that plaintiffs arguments seem to ignore the Interstate Compact for the Placement of Children (“ICPC”), cited by the DCFS in its exception and memorandum in support thereof, which allows a sending state (here, Florida) to permit a child to be relocated to a receiving state (here, Louisiana) that will supervise the placement, but with the sending state retaining jurisdiction over the proceedings. See La. Ch.C. art. 1623 et seq. Children’s Code arts. 1626(A) and (B) provide that the sending state shall retain jurisdiction over a child with respect to all matters of custody and disposition of the child which it would have had if the child had remained in the sending state, and that when an issue of child protection or custody is brought before a court in the receiving state, “such court |fishall confer with the court of the sending state to determine the most appropriate forum for adjudication.”

The DCFS supported its exception with several exhibits, to-wit:

• The first page of the first exhibit was a placement order generated on July 1, 2011, less than one month before Mr. Marshall filed his petition, from the State of Louisiana, Department of Social Services, stating that the placement of the children in Louisiana under the ICPC was “approved with reservations and condition that Florida will continue to retain jurisdiction of this case until Louisiana recommends termination of jurisdiction.” The next three pages of this exhibit were generated by the State of Florida, which likewise approve the placement of the children in Louisiana pursuant to the ICPC with the condition that Florida retained jurisdiction.
• The second exhibit is a judgment from the Florida court dated January 13, 2011, which states that the children are to reside in Louisiana with the mother (Ms. Cornwall), and specifically recites that Florida retains jurisdiction over the proceedings.
• The third exhibit is another judgment dated January 21, 2011, which states that the father (Mr. Marshall) may travel to Louisiana and reside with “the child.”
• The fourth exhibit is a record of a hearing held on March 4, 2011 in the Florida Court, wherein the parties, including Mr. Marshall, appeared by telephone.

Though the trial court cited to the UC-CJEA in its reasons for judgment, it is clear that the provisions of the ICPC control in this particular proceeding, not the UCCJEA. Considering the exhibits submitted by the State, it appears that Florida expressly retained jurisdiction of the proceedings pursuant to the ICPC and the agreement of all state agencies involved in the proceedings. As the parties relocated to Louisiana with the express permission of the Florida court under the provisions of the ICPC, its provisions control.

17However, as noted above, Children’s Code Article 1626(B) provides that “[w]hen an issue of child protection or custody is brought before a court in the receiving state,” — as we have here — “such court shall confer with the court of the sending state to determine the most appropriate forum for adjudication.” (Emphasis added.) This record is clear that the trial judge who ruled on the merits of the exception (Division “A”) did not, in fact, confer with the Florida court to determine “the most appropriate forum for adjudication”:

“... I remember having a conversation with, not the court personnel in Florida, but I think we had a status conference by phone with the attorney representing the interest of the state in Florida. I do not recall the name, but it was, I have
never spoke [sic] directly to the Court. There was some communication between the judge at the Florida court and the judge of Division C of this court, but not this judge.”

Because Article 1626(B) uses mandatory language, upon review, we find that the trial judge who ruled on the merits of the exception (Division “A”) erred by not first conferring with the court of the sending state (Florida) to determine the most appropriate forum for adjudication of the custody matter at issue. Accordingly, we vacate the ruling under review and remand the matter to the trial court for further proceedings.

\ SECOND assignment of error

Mr. Marshall also argues that the trial court erred in ruling that his participation in a telephone conversation with the Florida court on August 1, 2011 constituted a submission to the jurisdiction of the Florida court. We find, however, that the trial court’s statement to that effect, in its reasons for judgment, was obiter dicta. It is clear from our review of the record and applicable law in this case that Mr. Marshall remained under the jurisdiction of the Florida court by virtue of the nature of the proceedings under the ICPC. Mr. Marshall’s telephone conversation with the Florida court on August 1, 2011 was not determinative of the Florida court’s jurisdiction. Accordingly, this assignment of error is without merit.

CONCLUSION

For the foregoing reasons, the judgment of the trial court under review is vacated and the matter is remanded to the trial court for further proceedings.

VACATED AND REMANDED

      . The petition did not specify the relationship between Ms. Cornwall and Ms. Vazquez. The record reflects that Ms. Vazquez lives with Mr. Marshall and is the mother of another of his children.

      . The Uniform Child Custody Jurisdiction Act ("UCCJA") was repealed and replaced by the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA”) in 2007. See La. R.S. 13:1801 et seq.

      . The transcript of this hearing does not appear in the record. Therefore, it is unknown if the parties introduced these exhibits into evidence.

      . “The child” mentioned in this judgment is the child Mr. Marshall fathered with Ms. Vazquez.

      .Mr. Marshall's reliance on State ex rel. A.U.M., 46,082 (La.App. 2 Cir. 2/16/11), 62 So.3d 185, is unavailing. That case concerned the establishment of home state jurisdiction under the UCCJEA, not the application of the ICPC.

      . Excerpted from the hearing on plaintiff’s motion for a new trial conducted on August 24, 2012.

      . Although not directly on point as they did not involve the application of the ICPC, we find the holdings of the following cases instructive: Wachter v. Wachter, 83-265 (La.App. 5 Cir. 10/12/83), 439 So.2d 1260, 1265 (although the district court (Louisiana) arguably had simultaneous jurisdiction with the sister state (New Jersey), under the Uniform Child Custody Jurisdiction Act (La. R.S. 13:1700 et seq.), the district court should have deferred to the sister state court’s jurisdiction, or at least have consulted with such court to determine the more appropriate forum, where the sister state proceeding was pending when custody petition was filed with the district court); and Ehsani v. Ehsani, 87-413 (La.App. 5 Cir. 1/11/88), 519 So.2d 288, 291, writ denied, 88-340 (La.3/11/88), 520 So.2d 754 (although the Louisiana court had an independent basis of jurisdiction over custody proceeding, under La. R.S. 13:1705 and 1706, no proper judgment could be rendered until the Louisiana court and the Texas court, which granted the prior custody order, conferred to determine which court was the most convenient forum and exchanged all available information concerning the parties, the child, and all prior judicial proceedings concerning custody).

      .Mr. Marshall also argues that the ruling of the trial court in Louisiana was premature because in February of 2013 (in a ruling attached to Mr. Marshall’s appellate brief), the Florida court allegedly voluntarily dismissed a petition for termination of parental rights that had previously been filed against Mr. Marshall. The exhibit attached to Mr. Marshall’s appellate brief that purports to evidence the 2013 Florida ruling is not found in the appellate record and further the 2013 Florida ruling occurred well after the ruling at issue. The court of appeal has no authority to consider matters attached to briefs that are not found in the appellate record. Distefano v. B & P Const., Inc., 04-25 (La.App. 5 Cir. 5/26/04), 874 So.2d 407, writ denied, 04-1735 (La. 10/15/04), 883 So.2d 1058. The ICPC clearly provides that the sending state has the authority to relinquish jurisdiction to the receiving state. The 2013 Florida ruling to which Mr. Marshall alludes in his brief may very well provide some basis for Louisiana to assert jurisdiction over the matter prospectively, but such a determination is not before this Court at this juncture.


text:
    STATE of Louisiana v. Michael ROBERTSON.
    No. 2013 KW 1262.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 9, 2013.
    Christopher J.M. Casler, Assistant District Attorney, for Relator State of Louisiana.
    Richard Bourke, James W. Craig, Elizabeth C. Coe, Stephanie Jirard, for Respondent Michael Robertson.
    BEFORE: KUHN, HIGGINBOTHAM and THERIOT, JJ.
   WRIT GRANTED.

_|/The trial court order at issue in this writ application was issued in response to the defense’s claim that although the State previously assured the defense and the trial court that it had complied with open-file discovery, the State’s supplemental Prieur notices refer to statements of witnesses that had not been provided to the defense. The defendant filed a motion to compel discovery wherein he requested that the trial court order the State to produce all witness statements (whether written, oral, or recorded) from interviews that were conducted after the State initially provided open-file discovery. The defendant indicated that the statements were needed to adequately prepare for an upcoming Prieur hearing. At a hearing on defendant’s motion, the trial court expressed concern regarding regulating and controlling inconsistencies in a witness’s statement, even if it is work product. The prosecutor indicated that he would review all the interviews that he had already conducted and disclose any inconsistent statements to the defense and the court. The trial court then instructed the prosecutor to “memorialize” (for use by the State only) witness interviews in the event the case comes back to the court for an in camera inspection.

The State’s contention that the trial court erred in its decision to order the prosecutor to memorialize its witness interviews appears to be correct. The legislature codified the “work product privilege” for district attorneys in La.Code Crim. P. art. 723. See State v. Rey, 351 So.2d 489, 492-93 (La.1977). When articles 718 and 723 of the Code of Criminal Procedure are read together, it is clear that the state need not disclose its internal documents, ie. its work product, and the statements of witnesses unless such things are material and exculpatory, as determined by Brady and its progeny (or otherwise discoverable under article 718). See State v. Lee, 2000-0831 (La.App. 4th Cir. 5/8/00), 767 So.2d 97, 99-100. In the instant case, there is no indication that the State has failed to comply with its continuing duty to disclose or its obligation under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Moreover, a defendant’s constitutionally guaranteed right to confront witnesses and to have compulsory process for obtaining them is only secured at trial and not during a pretrial hearing. See State v. Weathersby, 2009-2407 (La.3/12/10), 29 So.3d 499, 501 (per curiam). Therefore, we find the trial court abused its discretion in ordering the state to “memorialize” witness interviews. Accordingly, the trial court’s order instructing the State to memorialize witness interviews is vacated, and this matter is remanded for further proceedings.


author: McClendon, j.

text:
    STATE of Louisiana in the Interest of J.C.
    No. 2013 KW 0776.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 13, 2013.

      Walter P. Reed, District Attorney, Cov-ington, Louisiana, and Kathryn Landry, Special Appeals Counsel, Baton Rouge, Louisiana, Counsel for Appellee State of Louisiana.
    Nan S. Bousfield, Assistant Public Defender, Slidell, Louisiana, for Appellant J.C.
    Revettea D. Woods, Baton Rouge, Louisiana, Counsel for Deputy Secretary, Louisiana Department of Public Safety and Corrections, Youth Services, Office of Juvenile Justice.

      Before: PETTIGREW, MCDONALD, and McClendon, jj.
   McClendon, j.

|gThe State filed a petition alleging that J.C., a child, should be adjudicated delinquent and/or in need of services based upon the commission of seven counts of simple burglary, violations of LSA-R.S. 14:62, and one count of theft of a firearm, a violation of LSA-R.S. 14:67.15. He entered admissions to the allegations of the petition and was adjudicated delinquent. At the disposition hearing, the juvenile court committed J.C. to the custody of the Department of Public Safety and Corrections, Youth Services, Office of Juvenile Justice (OJJ), for six years with a recommendation for secure custody. The court ordered the first three years to be served without benefit of probation, parole, or suspension of sentence. J.C. appealed and challenged, among other things, his disposition and the factual basis in support of his admissions. We affirmed his adjudication, modified the disposition to delete the restriction that the first three years of custody be served without benefit of parole and to reflect that J.C. receive credit for time served in secure detention prior to the imposition of his disposition, and remanded to the juvenile court with instructions to amend the custody order and minutes to reflect the modifications. See State in the Interest of J.C, 09-2000 (LaApp. 1 Cir. 7/15/10), 2010 WL 2802104 (unpublished).

The OJJ filed motions to modify disposition in October 2010 and April 2012, both of which the juvenile court denied. On March 25, 2013, the OJJ filed another motion to modify disposition recommending that J.C. be released from secure custody on parole until his full-term date of June 24, 2015. The same day, J.C. filed a motion to modify disposition joining with the OJJ. The juvenile court denied both motions. J.C. now appeals, arguing that the juvenile court erred in denying the motions to modify. For the following reasons, we convert the appeal to an application for a supervisory writ, grant the writ application, and deny the relief requested.

| SF ACTS

Slidell law enforcement officers responded to a complaint that four juveniles were shooting a gun in the woods behind Frit-chie Park in Slidell, Louisiana. Upon contact, an officer performed a weapons search of J.C., during which he recovered a ring. The officer learned that the ring was stolen in a residential burglary and arrested all four juveniles. J.C. admitted to seven burglaries and to shooting a gun in the woods. The police subsequently found hidden in the woods a gun identified as stolen during one of the burglaries.

DISCUSSION

In related assignments of error, J.C. contends that the juvenile court abused its discretion in denying the motions to modify the disposition filed on March 25, 2013. Specifically, he contends that the juvenile court’s denial did not satisfy the unique purpose of the juvenile system, which focuses on rehabilitation rather than retribution. He also contends that the denial of the motions without a hearing denied him due process because he was unable to “explain, answer the [juvenile] court’s concerns, supplement the [juvenile] court with further information to allow the juvenile] court to have a complete understanding prior to its interpretation of the evidence attached.” Finally, J.C. argues that the juvenile court impermissibly ordered the OJJ to provide a particular type of treatment or placement by stating that all four stages of the Louisiana Model (LAMOD) treatment program should be completed.

However, before addressing the arguments of J.C., we must first determine whether this court has jurisdiction to review the matter. This court has appellate jurisdiction over all matters appealed from juvenile courts. LSA-Const. Art. V, § 10A(2). Louisiana Children’s Code article 830 specifies the rulings that may be appealed:

A. An appeal may be taken from any final judgment of a court and shall be to the appropriate court of appeal.
|4B. In delinquency proceedings pursuant to Title VIII, child in need of care proceedings pursuant to Title VI, and families in need of services proceedings pursuant to Title VII, an appeal may be taken only after judgment of disposition. The appeal shall include all errors assigned concerning the adjudication and disposition.

Pursuant to this article, an appeal may be taken only after a judgment of disposition. A judgment denying motions is not a judgment of disposition, and this court lacks jurisdiction to consider the matter appealed. See State ex rel. CJ., 06-1441 (La.App. 1 Cir. 2/14/07), 959 So.2d 972, 975, unit denied, 07-0579 (La.4/5/07), 954 So.2d 147. However, a court of appeal may exercise supervisory jurisdiction in all matters arising within its jurisdiction. LSA-Const. Art. V, § 10A. Therefore, we convert the appeal filed by J.C. to a writ application and exercise our supervisory jurisdiction to review his assignments of error.

Except as provided for in LSA-Ch.C. art. 897.1, after the entry of any order of disposition, the court retains the power to modify it, including changing the child’s legal custody, suspending all or part of any order of commitment, discharging conditions of probation, or adding any further condition authorized by LSA-Ch.C. art. 897B or 899B. It may also terminate an order of disposition at any time while it is still in force. LSA-Ch.C. art. 909.

The juvenile court retains the power to modify a disposition at any time the disposition is in force. See State v. J.R.S.C, 2000-2108 (La.6/1/01), 788 So.2d 424 (per curiam). The court may modify a disposition without a contradictory hearing if the motion seeks less restrictive conditions. LSA-Ch.C. art. 910C. However, if the motion seeks more restrictive conditions, a hearing shall be held. LSA-Ch.C. art. 910D. In this case, the juvenile court had discretion as to whether a hearing would be held given that the motions to modify sought less restrictive conditions, namely that J.C. be released on parole. Thus, contrary to his assertions, J.C. was not denied due process by the juvenile court’s denial of the motions without a hearing.

The motion to modify disposition filed by the OJJ asserts that J.C. was on the third of four stages of the LAMOD, which is a treatment program involving | ^weekly individual counseling and daily group therapy to prepare youth for reentry into the community. The motion also states that J.C. completed the substance abuse treatment program at Swanson Center for Youth and had low difficulties with substance abuse. At the time the motion was filed, J.C. was on a medium custody level, was making progress in obtaining his GED, and had earned a certificate from the National Center for Construction Education and Research. The OJJ recommended that J.C. be released from secure custody on parole supervision until his full-term date. It set forth an aftercare plan for J.C. wherein he would live with his aunt, work, and possibly enroll in school. He would also have to cooperate with the Tracker/Mentor program. J.C. adopted these same reasons in his motion.

The juvenile court included written reasons in support of its ruling denying the motions. It was not persuaded by the assertion that J.C. had low difficulties with substance abuse based on the nature of the facility where he was housed. Pointing out that J.C. was on the third of the four stages of the LAMOD program, the juvenile court recommended that “[a]t a minimum, all four stages of the LAMOD program should be completed.” In support of this recommendation, the court explained that J.C. had received two major violations for threats and intimidation that quarter and was still in need of rehabilitative and corrective treatment. The court also noted that J.C. had “moderate difficulties pertaining to the criminogenic need areas of risk taking and impulsivity.”

Stating that it had “serious doubts that [J.C.] will be successful on parole at this time[,]” the court explained that J.C. had significant issues related to his community and moderate problems related to peer delinquency. He had moderate issues related to his family, and his family had not visited him that quarter. J.C.’s original pre-disposition investigation report, submitted in November 2009, indicated that he presented a moderate risk for nonviolent and other delinquent re-offending and a low risk for violence, while his February 2013 progress report indicated that he presentenced a moderate risk for violence Rand delinquency. The court concluded that J.C. had not made adequate progress in his rehabilitation and treatment.

J.C. cites State ex reí. C.H., 03-1279 (La.App. 3 Cir. 1/28/04), 865 So.2d 947, in support of his position. However, the facts in that ease are distinguishable from those at hand. In State ex reí. C.H., C.H. filed a motion to modify his disposition seeking early release. He argued that he had obtained the highest status level, completed all rehabilitative programs, was an honor roll student, and had the best behavioral classification. Although there was no contradictory unfavorable evidence or opposition to the motion, the juvenile court denied the motion without a hearing and provided no reasons for the denial. On appeal, the third circuit found that the juvenile court abused its discretion and reversed the judgment denying C.H.’s motion to modify. It pointed out that C.H. had availed himself of every rehabilitative program available and that there was no contradictory unfavorable evidence. See State in the Interest of C.H., 865 So.2d at 949-50.

J.C. has not demonstrated the same progress. He was reclassified from a minimum to a medium custody level, had two major violations for threats and intimidation, had not completed LAMOD, and had not obtained his GED. J.C.’s risk for violence, which was assessed to be low in 2009, was increased to moderate in his most recent reassessment. Based on our review of the record, we cannot say that the juvenile court erred in finding that J.C. had “not made adequate progress in his rehabilitation and treatment” and likely would not be “successful on parole.” Therefore, we do not find that the juvenile court abused its discretion in denying the motions to modify disposition filed by J.C. and the OJJ.

We also do not find the district court “impermissibly ordered” the OJJ to provide a particular type of treatment by stating that J.C. “should” complete all four stages of LAMOD. Although the juvenile court has no authority to order a specific placement or treatment for a juvenile committed to the Department of Public Safety and Corrections, it may, and often does, recommend specific 17placement or treatment. See State in the Interest of L.A.H., 02-1867 (La.App. 1 Cir. 12/20/02), 836 So.2d 447, 449. The juvenile court’s statement that “[a]t a minimum, all four stages of the LAMOD program should be completed” was not clearly an order for any particular type of treatment. Instead, it appears to be a recommendation that J.C. complete a treatment program that he was already participating in, and thus, was permissible. Accordingly, we find no merit in these assignments of error.

CONCLUSION

For these reasons, we consider the appeal filed by J.C. as an application for a supervisory writ, we grant the writ application, and we deny the relief requested.

APPEAL CONVERTED TO APPLICATION FOR SUPERVISORY WRIT; WRIT GRANTED; RELIEF DENIED.

      . The OJJ also filed a brief with this court assigning error to the juvenile court’s denial of the motions to modify. However, because the OJJ did not file a motion for appeal, it is not a party in the instant appeal.

      . The facts presented herein are also provided in this court’s unpublished opinion on the child’s prior appeal of this case.