author: MADELEINE M. LANDRIEU, Judge.

text:
    Logan A. WILLIAMS v. KELLER WILLIAMS REALTY, 1-800-351-5111, L.L.C., Sunny Brune, John A. Dellape, Anna Theresa Seling Dellape and CVN Enterprises, L.L.C.
    No. 2014-CA-0202.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 5, 2014.

      Michael C. Ginart, Jr., Kim C. Jones, Joyce Duhe Young, Ginart & Jones, LLC, Chalmette, LA, for Plaintiff/Appellant.
    Alyse S. Richard, Robert J. David, Jr., The Harding Center, Lafayette, LA, for Defendant/Appellee.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge MADELEINE M. LANDRIEU, Judge JOY COSSICH LOBRANO).
   MADELEINE M. LANDRIEU, Judge.

|,The plaintiff, Logan Williams, filed suit against, CVN Enterprises, LLC (“CVN”), alleging that CVN breached the contract between them by failing to discover the presence of Chinese drywall in a home he purchased.

In response to the suit, CVN filed exceptions of prematurity and lack of subject matter jurisdiction on grounds that the contract requires the parties to resolve any dispute over the contract by way of arbitration. The trial court granted the exceptions and dismissed Mr. Williams’s claims against CVN, without prejudice. Mr. Williams has filed this, appeal. For the reasons that follow, we affirm the judgment of the trial court.

FACTS AND PROCEEDINGS BELOW

In September of 2011, Mr. Williams contracted with CVN to conduct an inspection of a home he was interested in purchasing. CVN completed its inspection and issued a report. The report did not indicate the presence of Chinese drywall. Mr. Williams proceeded with the purchase of the home and later ^discovered Chinese drywall which he contends should have been detected by CVN in connection with their inspection. The contract, signed by both Mr. Williams and a representative of CVN, is a one-page legal sized document that contains an arbitration provision. This provision provides, in part, as follows:

ARBITRATION: Any dispute arising out of the inspection, report or the interpretation of this agreement, except for non-payment of the inspection fee, shall be resolved in accordance with the Louisiana Binding Arbitration Laws. The parties shall select a mutually agreed upon arbitrator who is a home inspector licensed by the State of Louisiana. If the parties are unable to agree upon an arbitrator, either party may request that a licensed home inspector be selected by the Louisiana State Board of Home Inspectors to arbitrate the proceedings. Such selection shall be binding upon the parties. The prevailing party shall be awarded arbitration costs.

In response to Mr. Williams’ petition, CVN filed exceptions of prematurity and lack of subject matter jurisdiction, based on this provision. After a hearing on May 10, 2013, the trial court granted CVN’s exceptions and dismissed the claims against CVN, without prejudice. This appeal follows.

DISCUSSION

In his sole assignment of error, Mr. Williams asserts that the arbitration clause contained in the contract he signed is invalid because it requires that the arbitrator be “a home inspector licensed by the State of Louisiana.” Mr. Williams contends that because CVN is also a home inspector licensed by the State of Louisiana, he will be disadvantaged, thus, the provision is adhesionary. We disagree.

The issue of whether or not the trial judge should have compelled arbitration is a question of law. Dufrene v. HBOS Mfg., LP, 2003-2201, p. 2 (La.App. 4 Cir. 4/7/04), 872 So.2d 1206,1209 (citing Billieson v. City of New Orleans, 02-1993, p. 3 (La.App. 4 Cir. 9/17/03), 863 So.2d 557, 560). Therefore, when reviewing the grant or denial of a motion to compel arbitration, appellate courts determine whether the trial court was legally correct or incorrect. Id.

The Louisiana Binding Arbitration Law, Louisiana Revised Statute 9:4201, states:

A provision in any written contract to settle by arbitration a' controversy thereafter arising out of the contract, or out of the refusal to perform the whole or any part thereof, or an agreement in writing between two or more persons to submit to arbitration any controversy existing between them at the time of the agreement to submit, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.

The law further provides that if the arbitration agreement contains a method for naming or appointing the arbitrator, that method will be followed. La. R.S. 9:4204.

A contract of adhesion is a “standard contract, usually in printed form, prepared by a party of superior bargaining power for adherence or rejection of the weaker party. Often in small print, these contracts sometimes raise a question as to whether or not the weaker party actually consented to the terms.” Aguillard v. Auction Management Corp., 2004-2804, 2004-2857, p. 9 (La.6/29/05), 908 So.2d 1, 8-9 (citing Golz v. Children’s Bureau of N.O., 326 So.2d 865, 869 (La.1976))..

In Aguillard, the defendant, Gilmore Realty, conducted an auction of certain pieces of property owned by the defendant, Bank of New York. On the day of the auction, plaintiff and approximately seventeen other individuals were provided with the “Auction Terms and Condition,” which each person bidding was required |4to sign. By signing the document, plaintiff acknowledged that he or she had read and understood the Auction Terms and Conditions. The document was printed in nine-point font and included an arbitration clause under the section entitled “Announcements.” The arbitration clause provided that “any controversy or claim arising from or relating to this agreement or any breach of such agreement shall be settled by arbitration administered by the American Arbitration Association under is [sic] rules.” The plaintiff was the highest bidder on a home and was required to sign a document entitled “Auction Real Estate Sales Agreement” and pay $4,290, in accordance with the auction terms and conditions. Subsequently, Bank of New York rejected the plaintiffs bid and refused to close on the property.

The plaintiff filed suit to enforce the Auction Real Estate Sales Agreement. The defendants filed a joint motion to stay proceedings pending arbitration. The district court denied the motion. On writs, the Third Circuit affirmed the district court’s ruling, finding that the entire contract was adhesionary and lacked mutuality. The Louisiana Supreme Court, in granting the writ, held that the arbitration clause at issue was not adhesionary because neither the print nor the font size of the arbitration agreement differed from the other clauses in the standard form contract. Also, the contract at issue was only a two-page document and each paragraph was clearly separated from the preceding paragraph and clearly labeled. Aguillard, 2004-2804, p. 21, 908 So.2d at 16. Further, the Court held that the arbitration clause did not lack mutuality because the clause severely limited both the defendant’s and plaintiffs right to litigate. Id.

|Jn the present case, like in Aguillard, the arbitration clause was in the same font and type size as the rest of the document. The contract was a one-page document and the clause was contained in a paragraph clearly marked “ARBITRATION.” The clause required arbitration for any potential claim Mr. Williams had against CVN, but allowed CVN to bring a claim for non-payment of fees in any forum. While this requirement may appear to lack mutuality because it allows CVN to sue the plaintiff in court, but limits the plaintiff to proceeding only in arbitration against CVN, this claim is without merit. “It is well-settled that a party who signs a written instrument is presumed to know its contents and cannot avoid its obligations by contending that he did not read it, that he did not understand it, or that the other party failed to explain it to him.” Aguillard, 2004-2804, p. 22, 908 So.2d at 17. By signing the contract, Mr. Williams acknowledged that he “read the agreement and understood] and accepted] the terms and conditions thereof.”

There is no evidence in the record that Mr. Williams was not in equal bargaining power or that he was compelled to sign the contract with CVN. Mr. Williams failed to prove that he was prevented from choosing another home inspector, who would not require arbitration, to complete the work. Furthermore, Mr. Williams did not produce any evidence to show that a licensed home inspector acting as an arbitrator would not be “a neutral decision maker,” or would display Impartiality or corruption.” The arbitration clause is valid and enforceable. This assignment of error has no merit.

CONCLUSION

For the reasons stated, we affirm the judgment of the trial court granting CVN’s exceptions.

AFFIRMED

      . Mr. Williams also named the sellers, their realty company and their agent as defendants in his lawsuit.

      . See Hodges v. Reasonover, 2012-0043, pp. 10-11 (La.7/2/12), 103 So.3d 1069, 1076.

      . See La. R.S. 9:4210.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Roderick WEST.
    No. 2014-KA-0415.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 5, 2014.
    Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, Parish of Orleans, New Orleans, LA, for Appellant/State of Louisiana.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge MADELEINE M. LANDRIEU).
   MADELEINE M. LANDRIEU, Judge.

hThe State of Louisiana appeals the trial court’s judgment granting the motion of defendant, Roderick West, to quash the bill of information filed against him as the State failed to bring him to trial within the time limit established by law. For the reasons that follow, we affirm the trial court’s judgment.

PROCEEDINGS BELOW

On August 10, 2010, Mr. West was charged by bill of information with one count of theft of five hundred dollars or more, a violation of Louisiana Revised Statute 14:67. An alias capias was subsequently issued for his arrest. On August 23, 2010, Mr. West failed to appear for arraignment. The minute entry for that date provides that Mr. West was at large. In September of 2010, Mr. West again failed to appear for arraignment. A minute entry from that arraignment provides that Mr. West was not served, arraignment was reset, and notice was mailed to Mr. West at his last known address contained in the Motions System. On September 22, 2010, Mr. West again failed to appear for arraignment, and the matter was continued without a date. The issued alias capias remained in effect.

|2On July 19, 2013, Mr. West was arrested. Thereafter, he appeared at court with counsel at which time his arraignment was scheduled for July 26, 2013. At the arraignment, Mr. West entered a plea of not guilty and filed a motion to quash the bill of information on grounds that more than two years had elapsed since the State instituted its prosecution against him. Mr. West was subsequently released on a recognizance bond. On September 4, 2013, the trial court granted Mr. West’s motion to quash.

DISCUSSION

In its sole assignment of error, the State contends that the trial court erred in granting Mr. West’s motion to quash. For the reasons that follow, we find this assignment of error to be without merit and affirm the judgment of the trial court.

Mr. West is charged with theft of over five hundred dollars which is a non-capital felony punishable by imprisonment with or without hard labor for not more than ten years. La. R.S. 14:67(B)(1); La.C.Cr.P. art. 933(3). Louisiana Code of Criminal Procedure article 578 provides that in such cases (non-capital felonies) “no trial shall be commenced nor any bail obligation be enforceable ... after two years from the date of institution of the prosecution.” Louisiana Code of Criminal Procedure article 578(A)(2) provides that upon expiration of this time period, “the court shall, upon motion of the defendant prior to trial, dismiss the indictment.” Mr. West argues that the trial court correctly granted his motion to quash as the State failed to bring him to trial within two years of instituting the prosecution against him.

|sWe review a trial court ruling on a motion to quash on the ground that the time limitation or prescriptive period for commencement of trial has expired under an abused of discretion standard. State v. Dillon, 2011-0188, p. 4 (La.App. 4 Cir. 8/24/11), 72 So.3d 473, 475 (citing State v. Ramirez, 2007-0652, p. 4 (La.App. 4 Cir. 1/9/08), 976 So.2d 204, 207). Once the defendant has establishes that the State has failed to commence trial within the time periods specified by Louisiana Code of Criminal Procedure article 578, the State bears the burden of proving that either an interruption or a suspension of the time limit tolled prescription. State v. Morris, 99-3235, p. 1 (La.2/18/00), 755 So.2d 205, 205 (per curiam); State v. Joseph, 93-2734, p. 1 (La.6/3/94), 637 So.2d 1032, 1032; State v. Bell, 2002-2349, p. 9 (La.App. 4 Cir. 8/6/03), 854 So.2d 429, 434; State v. Franklin, 2010-0792, p. 4 (La.App. 4 Cir. 4/6/11), 62 So.3d 817, 819.

Here, the record supports the finding that the prosecution against Mr. West was instituted on August 10, 2010, and he had not been brought to trial as of July 26, 2013. Thus, the burden was on the State to establish an interruption of the prescriptive period. At the hearing on the motion to quash, the State asserted that prescription was interrupted under Louisiana Code of Criminal Procedure article 579(A)(2) because Mr. West failed to appear at arraignment after notice was mailed to his last known address contained in the trial court’s motions system.

Louisiana Code of Criminal Procedure article 579(A)(2) provides “[t]he period of limitation established by Article 578 shall be interrupted if: (2) The defendant cannot be tried because of insanity or because his presence for trial [4cannot be obtained by legal process, or for any other cause beyond the control of the state.” In order to meet its “heavy burden” of proof under this provision, the prosecution must show that it has “exercised due diligence in discovering the whereabouts of the defendant as well as in taking appropriate steps to secure his presence for trial once it has found him.” State v. Sorden, 2009-1416, p. 13 (La.App. 4 Cir. 8/4/10), 45 So.3d 181, 189 (quoting State v. Carcamo, 03-589, p. 7 (La.App. 5 Cir. 10/28/03), 860 So.2d 220, 224); see also, State v. Thomas, 2013-0816, pp. 5-6 (La.App. 4 Cir. 3/19/14), 138 So.3d 92, 96.

In State v. Sorden, supra, the defendant was charged with aggravated assault in July 2005 and released on an ROR bond. In December 2006, the prosecution subsequently dismissed the bill of information by a nolle prosequi and the defendant’s obligations under that bond were presumptively extinguished. A few months later, in February 2007, the prosecution reinsti-tuted the charge against the defendant, and arraignment was scheduled. Service by mail was attempted on the defendant at the address listed on her prior ROR bond, but the home at that address had been damaged and abandoned due to Hurricane Katrina. The defendant failed to appear for her arraignment, and an alias capias was issued for her arrest. In 2009, the defendant appeared for a status hearing and, subsequently, moved to quash the bill of information, which the trial court granted. This court affirmed, finding that the time limit to commence proceedings against the defendant had prescribed and no interruption of the prescription period occurred, stated:

[T]he prosecution has not demonstrated an exercise of due diligence in discovering the whereabouts of Ms. Sorden sufficient to satisfy its “heavy burden.” At the hearing on the motion to quash, the state presented no witnesses or evidence of efforts to locate Ms. Sorden. Aside from mailing a subpoena to her destroyed home, the | .^prosecution has failed to present evidence that it made any effort to ascertain her whereabouts. Because the prosecution has not made this showing, there was no interruption under Article 579 A(2).

Sorden, 2009-1416, p. 14, 45 So.3d at 189.

The case before us is quite similar. During the hearing on the motion to quash, Mr. West established that the State failed to bring him to trial within two years of the institution of the prosecution against him. The burden then shifted to the state to establish some interruption of the prescriptive period. The record before us establishes that the State neither called a witness nor presented any evidence to establish the efforts it undertook to obtain Mr. West’s presence for trial. The State merely asserted that notice of the September 22, 2010 hearing was sent to Mr. West at 20100 Wagner Street, which was the “last known address contained in the trial court’s Motions System.” Further, the State failed to establish that Mr. West was under an obligation to update the court with a new address. A minute entry dated September 8, 2010, indicates that the Clerk’s office sent notice to Mr. West at the aforementioned address, but there is no indication that Mr. West actually received this notice, that he lived at this address or, for a that matter, whether a house or apartment stands at that address at all. As such, the state failed to meet its burden and the trial court correctly granted the defendant’s motion to quash.

CONCLUSION

For these reasons, we affirm the judgment of the trial court granting Mr. West’s motion to quash the bill of information.

AFFIRMED


author: DENNIS R. BAGNERIS, SR., Judge. LOBRANO, J.,

text:
    ORLEANS PARISH SCHOOL BOARD v. Edouard R. QUATREVAUX, in his Official Capacity as Inspector General for The City of New Orleans and/or the Office of the Inspector General.
    No. 2013-CA-1653.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 7, 2014.
    DeWayne L. Williams, William D. Aaron, Jr., Aaron & Gianna, P.L.C., New Orleans, LA, for Plaintiff/Appellant, Orleans Parish School Board.
    Suzanne Lacey Wisdom, General Counsel, Office of Inspector General, New Orleans, LA, for Defendant/Appellee, Office of Inspector General.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME, Judge JOY COSSICH LOBRANO).
   DENNIS R. BAGNERIS, SR., Judge.

liOn June 25, 2013, plaintiff, Edouard R. Quatrevaux, acting in his official capacity as the Inspector General for the City of New Orleans (hereinafter referred to as “OIG”), served an administrative subpoena duces tecum on the defendant, the Orleans Parish School Board (“OPSB”) seeking the production of various documents from the OPSB for years ended 06/30/11 and 06/30/12. The OPSB filed a motion to quash the subpoena on July 15, 2013. After a hearing, the district court denied the OPSB’s motion to quash subpoena and found that (1) the OPSB receives local tax funds through the City of New Orleans, thereby bringing it within the investigatory jurisdiction of the OIG; (2) the OPSB is a quasi-public agency for the purpose of La. R.S. 33:9613; and (3) that the subpoena was issued in accordance with Louisiana law. The OPSB now appeals. After reviewing the applicable law, we hereby reverse the judgment of the district court and find that the OIG did not have legal authority to issue an administrative subpoena duces tecum on the OPSB and thus, the administrative subpoena duces tecum is quashed.

FACTS

In 1995, the OIG was authorized by a vote of the citizens of New Orleans, established in the Home Rule Charter in Section 9-401, to investigate fraud, waste, | ¡¡.and abuse in New Orleans City government. Specifically, the Home Rule Charter in Section 9-401 states, in pertinent part:

Section ÍM01. Office of Inspector General.

(1)The Council shall by ordinance create an Office of Inspector General (OIG) and otherwise provide with respect thereto.
(2) The OIG shall provide for a full-time program of investigation, audit, inspections, and performance review to provide increased accountability and oversight of entities of city government or entities receiving funds through the city, and to assist in improving agency operations and deterring and identifying, fraud, waste, abuse, and illegal acts. The OIG is specifically authorized to conduct audits of City entities. The OIG shall also provide for an Independent Police Monitor Division, charged with monitoring the operations of the New Orleans Police Department, particularly in the areas of civilian and internally-generated complaints, internal investigations, discipline, significant uses of force, and in custody deaths.

In 2006, the ordinance creating the OIG was set forth in Article XIII, Section 2-1120 of the New Orleans City Code. The Ordinance sets forth the OIG’s powers and limits the authority of the OIG to matters involving city government. Specifically, the Ordinance states, in pertinent part:

(10) Authority. The office of inspector general is authorized to engage in the following specific functions:
(a) Audit, evaluate, investigate, and inspect the activities, records, and individuals with contracts, subcontracts, procurements, grants, agreements, and other programmatic and financial arrangements undertaken by city government and any other function, activity, process, or operation conducted by city government.
(b) Audit the efficiency and effectiveness of city government operations and functions and conduct reviews of city government’s performance measurement system.
|s(c) Review the reliability and validity of the information provided by city government performance measures and standards.
(d) Initiate such investigations, audits, inspections, and performance reviews of city government as the Inspector General deems appropriate.
(e) Receive complaints of fraud, waste, abuse, inefficiency, and ineffectiveness from any source and investigate those complaints that the Inspector General deems credible.
(f) Engage in prevention activities, including, but not limited to, the prevention of fraud, waste, abuse, and illegal acts; review of legislation; review of rules, regulations, policies, procedures, and transactions; and the supplying, providing, and conducting of programs for training, education, certification and licensing.
(g) Conduct joint investigations and projects with other oversight or law enforcement agencies, including, but not limited to, the district attorney, attorney general, and the United States Attorney.
(h) Issue reports and recommend remedial actions to be taken by the city council, the office of the mayor, or municipal departments or agency heads to overcome or correct operating or maintenance deficiencies and inefficiencies identified by the Office of inspector General.
(i) Issue public reports as set forth in subsections (8) and (9).
(j) Monitor implementation of recommendations made by the Office of Inspector General and other audit, investigative, and law enforcement agencies.
(k) Establish policies and procedures to guide functions and processes conducted by the Office of Inspector General.
(l) Require reports from the office of the mayor, city council, or city departments, agencies, boards, commissions, or public benefit corporations regarding any matter within the jurisdiction of the Office of Inspector General. |4(m) File a complaint with the ethics review board or state board of ethics upon detecting a potential violation of any state ethics law or city ethics ordinance or code.
(n) Attend all city meetings relating to the procurement of goods or services by the city, including meetings involving third-party transactions.
(o) Assist any city department, agency, board, commission, public benefit corporation, the office of the mayor, the city council, any city council member, or the governing body of any agency, board, commission, or public benefit corporation, upon request, with implementation of any suggested legislation or legislative policy. In such an event, the Inspector General may assign personnel to conduct, supervise, or coordinate such activity.
(p) Do all things necessary to carry out the functions and duties set forth in this section, including promulgate rules and regulations regarding the implementation of responsibilities, duties and powers of the Office of Inspector General.

In 2008, La. R.S. 33:9611 et seq. was enacted which enhanced the ability of the OIG to investigate certain entities not included or specified in Section 9-401 of the Home Rule Charter, and the ability to issue administrative subpoenas. The legislation when enacted applied solely to the New Orleans OIG, which was at that time the only existing local office of inspector general in Louisiana. La. R.S. 38:9618 specifically states, in pertinent part:

A.(4)(a) In the performance of its duties, a local office of inspector general in the city of New Orleans or parish of Jefferson may issue an administrative subpoena duces tecum to require the production of books, records, documents, or other evidence deemed relevant or material to an investigation, audit, or inspection. The subpoena duces tecum shall be issued only in furtherance \gof the authority provided by local ordinance and by Subsections D and E of this Section and shall comply with all applicable constitutionally established rights and processes. (Emphasis added)
D. (1) A local ethics entity, ethics review board, or office of inspector general shall have the authority to examine, review, audit, inspect, and investigate the records, books, reports, documents, papers, correspondence, accounts, audits, inspections, reviews, recommendations, plans, films, tapes, pictures, computer hard drives, software data, hardware data, e-mails, instant messages, text messages, and any other data and material relevant to any matter under audit, investigation, inspection, or performance review of all entities of the local governmental subdivision or entities receiving funds through or for the benefit of the local governmental subdivision. (Emphasis added)
(2) For the purposes of this Section, these entities shall include but not be limited to every local governmental subdivision officer, employee, elected official, department, agency, board, commission, public benefit corporation, quasi-public agency or body, contractor, subcontractor, licensee of the local governmental subdivision, and every applicant for certification of eligibility for a municipal contract or program.
(3) These entities shall also include all local governmental subdivision governing authorities, all districts, boards, and commissions created by local governmental subdivision governing authorities either independently or in conjunction with other units of government, and all independently elected parish public officials whose offices receive funds from the municipality.
E. .For.the purposes of this Section, a quasi-public agency or body shall be defined as:
(1) An organization, either not-for-profit or for profit, that is a component unit of local government established to perform a public purpose, and created by the state of Louisiana or any political subdivision or agency thereof or any special district or authority operating within the municipality.
16(2)An organization, either not-for-profit or for profit, that is a component unit of a local governmental subdivision reporting entity, as defined under generally accepted accounting principles.
(3) An organization, either not-for-profit or for profit, created to perform a public purpose and having one or more of the following characteristics:
(a) The governing body is elected by the general public.
(b) A majority of the governing body is appointed by or authorized to be appointed by a governmental entity or individual governmental official as a part of their official duties.
(c) The entity is the recipient of proceeds of an ad valorem tax or general sales tax levied specifically for its operations.
(d) The entity is able to directly issue debt, the interest on which is exempt from federal taxation.
(e) The entity can be dissolved unilaterally by a governmental entity and its net assets assumed without compensation by that governmental entity.
(4) Any not-for-profit organization operating within .the municipality which receives or expends in excess of twenty-five thousand dollars in local assistance in any fiscal year. Assistance includes grants, loans, awards, transfer of property, and direct appropriations of local public funds.
(5) Any organization, either not-for-profit or for profit, operating within the local governmental subdivision which is subject to the open meetings law and derives a |7portion of its income from payments received from any local governmental subdivision agency or body.

In June 2013, the OIG served upon OPSB an administrative subpoena duces tecum seeking the production of various documents from OPSB for years ended 06/30/11 and 06/30/12. Specifically, the subpoena sought the following:

1.Fixed Assets (Property & Equipment):
a) Schedule of fixed assets for years ended 06/30/11 and 06/30/12 showing current year additions and disposals, acquisition date, purchase price, depreciation expense for current year and accumulated depreciation
b) Detail of repairs and maintenance expenses for the years ended 6/30/11 and 6/30/12.
2. Original and amended budgets for years ended 6/30/11 and 6/30/12.
3. Payroll journals for years ended 6/30/11 and 6/30/12.
4. Detail of overtime expenses for years ended 6/30/11 and 6/30/12.
5. List of employees for years ended 6/30/11 and 6/30/12.
6. Vendor listing for years ending 6/30/11 and 6/30/12.
7. Check register for years ended 6/30/11 and 6/30/12.
8. Board Members as of 6/30/11 and 6/30/12.
9. Trial Balance for years ended 6/30/11 and 6/30/12 (in Excel if possible).
10. Chart of accounts.

On July' 15, 2013, the OPSB filed a motion to quash the administrative subpoena duces tecum on the basis that the OIG did not have authority to issue the subpoena pursuant to Section 9-401 of the Home Rule Charter of the City of New Orleans, the City Ordinance 2-1120, and La. R.S. 33:9613; thus, the authority asserted by the OIG in this case violates the protections conferred upon the OPSB by the Louisiana Constitution. In support of its motion to quash, the OPSB argues that it is not a quasi-public body as envisioned by' La. R.S. 33:9613 but rather an independent political subdivision of the State of Louisiana. OPSB argues that | sal though the Director of Finance for the City of New Orleans collects tax money due to the OPSB, only 2% of the money collected (the collection fee) goes to the general fund of the City of New Orleans. In support of its argument that the City of New Orleans has no discretion in the collection and distribution of taxes on behalf of and for the benefit of the OPSB, the OPSB cites to Section 13(C) of the Second Article VIII of the Louisianan Constitution stating that “[t]he tax shall be collected in the manner, under the conditions, and with the interest and penalties prescribed by law for City taxes. The money thus collected shall be paid daily to the Orleans Parish School Board.” Further, OPSB argues that the City of New Orleans does not appropriate money to the OPSB nor does it pay the OPSB for services using City of New Orleans’ money via Cooperative Endeavor Agreements, grants, contracts, or otherwise. Thus, OPSB alleges that the administrative subpoena duces tecum issued is an impermissible and unconstitutional exercise of power.

In response, the OIG alleged that it was the “express intention of the legislation to provide for oversight of entities that were not within the reach of the New Orleans Home Rule Charter, but that received funds through the City of New Orleans as the tax collector for the Parish.” The OIG argues that “La. R.S. 33:9613 must be read so that ‘entities receiving funds through or for the benefit of the local governmental subdivision’ includes any entities which receive funds from Orleans Parish through the City of New Orleans as the tax collector.” Further, OIG argues that the OPSB is a quasi-public agency as defined by La. R.S. 33:9613(E)(3) because the members of the board are elected by the voters of Orleans Parish in a general election, the OPSB is the recipient of an ad valorem tax levied specifically for its operations per La. Const. Art. VIII, Section 13(C), and the OPSB issues debt |9directly, the interest on which is exempt from federal taxation. Although the OIG agrees with OPSB that neither the City Charter nor the City Code can give the OIG the ability to provide oversight for the OPSB, the Louisiana Legislature enacted additional laws at the state level that give the OIG the ability to provide oversight for entities receiving funds from the parish that are collected by, and come through, the City of New Orleans.

Following a hearing, the trial court denied the OPSB’s motion to quash subpoena. The OPSB now appeals this final judgment. The OPSB assigns the following assignment of errors: (1) the district court erred in holding that the OIG’s administrative subpoena duces tecum was authorized by local ordinance; (2) the district court erred in holding that it receives funds through the City of New Orleans; (3) the district court erred in holding that it is a quasi-public agency; and (4) that the district court erred in failing to construe La. R.S. 33:9613 such that it would be constitutional.

DISCUSSION

Questions of law are reviewed under a de novo standard “without deference to the legal conclusions of the courts below.” Durio v. Horace Mann Ins. Co., 11-0084, p. 14 (La.10/25/11), 74 So.3d 1159, 1168. The standard of review for an appellate court addressing questions of law is simply whether the court’s interpretive decision is legally correct. 727 Toulouse, L.L.C. v. Bistro at the Maison De Ville, L.L.C., 12-1014, p. 8 (La.App. 4 Cir. 8/21/13), 122 So.3d 1152, 1157 (citations omitted).

The first issue to address on appeal is whether the district court erred in holding that the OIG’s administrative subpoena duces tecum was authorized by local ordinance. La. R.S. 33:9613 specifically states, in pertinent part:

lioA.(4)(a) In the performance of its duties, a local office of inspector general in the city of New Orleans or parish of Jefferson may issue an administrative subpoena duces tecum to require the production of books, records, documents, or other evidence deemed relevant or material to an investigation, audit, or inspection. The subpoena duces tecum shall be issued only in furtherance of the authority provided by local ordinance and by Subsections D and E of this Section and shall comply with all applicable constitutionally established rights and processes. (Emphasis added)

After reviewing the ordinance set forth in Article XIII, Section 2-1120 of the City Code, we find the OIG’s enumerated powers are in fact limited to matters involving city government. A parish school board is a political subdivision of the State of Louisiana. La. Const. art. 6, 44. The Attorney General, in Opinion Number 10-0165 of March 2, 2011, addressed the issue of whether, and to what extent, a home charter [in the Parish of Jefferson] can allow for the creation of an OIG with investigative powers that would include the power to investigate independent entities such as the School Board. Although Louisiana Attorney General Opinions are merely advisory and not binding, the courts of this State have recognized their persuasive authority and we find it provides guidance in this matter, particularly when no cases on point exist. Concrete Busters of Louisiana, Inc. v. Board of Com’rs of the Port of New Orleans, 10-1172, p. 6 (La.App. 4 Cir. 2/2/11), 69 So.3d 484, 487-488.

The Attorney General stated that the home charter would be subject to scrutiny as to whether it “would be in conflict with the status of these entities as independent Constitutional offices and, whether in light of this status, the Constitution places any limitations on the reach of any such charter amendment(s).” Specifically, the Attorney General Opinion, No. 10-0165, 2011 WL 1455960, March 2, 2011, page 3 states, in pertinent part:

|nThe Louisiana Constitution states that ‘no home rule charter or plan of government shall contain any provision affecting a school board or the offices of district attorney, sheriff, assessor, clerk of a district court, or coroner which is inconsistent with the constitution or law.’ La. Const. Art. VI, Sec. 5(G) (emphasis in original). Citing this provision, among other things, the Louisiana Supreme Court has held that an independent office, such as a district attorney, assessor, clerk of court, school board or sheriff, “exercises a portion of the sovereign power of the state within the district of his office.... His office, duties, and powers are governed by the constitution and the legislature, and are not subject to local control.... His office, therefore, is an office of the state, not local government... ,” Thus, as offices established by the Constitution and legislation, the operations and independent discretion of the School Board, Sheriff, Clerk of Court, Coroner, Assessor, and District Attorney are beyond the general control of the Charter, which is the blueprint for parish governance. As a consequence, the powers granted to a parish OIG under La. R.S. 33:9613, as well as any charter provisions adopted pursuant thereto, may not infringe upon the constitutionally-protected independence of these entities.

We find nothing in the ordinance set forth in Article XIII, Section 2-1120 of the City Code that authorizes the OIG to serve an administrative subpoena duces tecum on the OPSB; rather, the OIG’s enumerated powers are in fact limited to matters involving city government. Because the OPSB is not a part of city government and because the local ordinance creating the OIG does not grant upon it the authority ■to audit the OPSB,. an independent political subdivision of the State of Louisiana, we find the district court erred in holding that the OIG’s administrative subpoena duces tecúm was authorized by local ordinance.

The second issue to address is whether the OPSB receives money through the City. As stated in La. R.S. 33:9613(D)(1):

A local ethics entity, ethics review board, or office of inspector general shall have the authority to ... audit, all 112entities of the local governmental subdivision or entities receiving funds through or for the benefit of the local governmental subdivision.

All parties agree that the Director of Finance collects OPSB taxes, which are paid daily to the OPSB save a 2% collection fee by the City of New Orleans. The OIG contends that because the City is a tax collector, and even though it charges a fee for such collection, the requirement that the OPSB receives money through the City is satisfied. The OPSB argues that the taxes are collected on behalf of the OPSB solely, and the money in question never becomes City money as it never goes into the City’s General Fund. Thus, even though the OPSB tax is collected by the Director of Finance, the City is not the beneficiary of such taxes.

Again, after reading the Louisiana Attorney General’s opinion as well as the Louisiana State Constitution, we agree with the OPSB that the Louisiana Constitution protects the school board’s independence from the exercise of power by the OIG. As stated by the Attorney General Opinion, No. 10-0165, 2011 WL 1455960, March 2, 2011, page 4:

It is therefore the opinion of this office that to the extent the OIG is granted investigative authority over the independent offices ...', this authority would be limited by the separation of powers doctrine, the Constitutionally protected independence of these entities, and the statutory language of La. R.S. 3S:9613(D)(1) to allow for the OIG to exercise these powers only to the extent necessary to ensure that funds and assets provided by the parish to these entities that are restricted or dedicated for particular purposes through legislation or cooperative agreement were used only in accordance with the restriction or dedication or that there is an accurate accounting of the funds collected and distributed by an independent office that the parish may have some claim to....

The OIG agrees that the only portion of the tax collected that goes into the General Fund of the City of New Orleans is 2% charged by the City to the OPSB. The OIG |i3has every right to audit the City concerning what it does with or for that 2% charged by the City to the OPSB because that money becomes City money once it is deposited into the General Fund. However, the remaining 98% of the money is never deposited into the City’s general fund but rather is paid daily to the OPSB.

We also find merit to the OPSB’s argument that because La. R.S. 33:9613 also applies to Jefferson Parish, which does not collect taxes on behalf of the Jefferson Parish School Board, through can only refer to money of the local government subdivision which is transferred to the entity receiving the subpoena via appropriation, grant, loan, contract or cooperative endeavor agreement in Jefferson Parish. To interpret the statute as suggested by the OIG, and accepted by the trial court, would amount to an inconsistent application of the statute and would provide the New Orleans OIG with substantially more power than that of the OIG in Jefferson Parish. Accordingly, we find that the district court erred in holding that the OPSB receives funds through the City of New Orleans. In light of this conclusion, we pretermit any discussion of OPSB’s remaining assignments of error.

In conclusion, we find that the district court erred in failing to quash the OIG administrative subpoena duces tecum. The Louisiana Constitution establishes that the OPSB is an independent political subdivision of the State of Louisiana. The issuance of the subpoena is not authorized by the New Orleans City Code 2-1120 nor do we find that the OPSB receives money through or for the benefit of the local government subdivision under La. R.S. 33:9613D(1). Accordingly, we reverse the judgment of the district court and hereby quash the administrative subpoena duces tecum.

REVERSED.

LOB RANO J., dissents.

LOBRANO, J.,

dissents.

Ill respectfully dissent from the majority opinion that reverses the district court’s judgment and quashes the administrative subpoena duces tecum served upon the Orleans Parish School Board (“OPSB”) by the Inspector General for the City of New Orleans (“OIG”). I disagree with the majority’s finding that the OIG had no legal authority to issue the administrative subpoena.

The issues presented in this appeal are whether La. R.S. 33:9613 grants the OIG the authority to issue an administrative subpoena to the OPSB, and if so, does the statute conflict with the Louisiana Constitution or laws.

In Louisiana Federation of Teachers v. State, 2013-0120, 2013-0232, 2013-0350, p. 21 (La.5/7/13), 118 So.3d 1033, 1048, the Louisiana Supreme Court stated:

[bjecause the provisions of the Louisiana Constitution are not grants of power,, but instead are limitations on the otherwise plenary power of the people of the state, exercised through the legislature, the legislature may enact any legislation that the constitution does not prohibit. Consequently, a party challenging the constitutionality of a legislative instrument must point to a particular provision of the constitution that would prohibit the enactment of the legislative instrument and must demonstrate clearly and convincingly that it was the constitutional aim of that provision to deny the legislature the power to enact the legislative instrument in question.

\2Id. at p. 21, 118 So.3d 1033, 1048 (citations omitted). The Court further stated that “because it is presumed that the legislature acts within its constitutional authority in promulgating a legislative instrument, this court must construe a legislative instrument so as to preserve its constitutionality when it is reasonable to do so.” Id.- at p. 22, 118 So.2d at 1040 (citations omitted).

The OIG derives its authority from the City of New Orleans Home Rule Charter Section 9-401, which provides:

(1)The Council shall by ordinance create an Office of Inspector General (OIG) and otherwise provide with respect thereto.
(2) The OIG shall provide for a full-time program of investigation, audit, inspections, and performance review to provide increased accountability and oversight of entities of city government or entities receiving funds through the city, and to assist in improving agency operations and deterring and identifying, fraud, waste, abuse, and illegal acts. The OIG is specifically authorized to conduct audits of City entities. The OIG shall also provide for an Independent Police Monitor Division, charged with monitoring the operations of the New Orleans Police Department, particularly in the areas of civilian and internally-generated complaints, internal investigations, discipline, significant uses of force, and in custody deaths

The limits of the OIG’s authority are set forth in New Orleans City Code Article XIII Section 2-1120(10)

|4In 2008, the Louisiana Legislature enacted La. R.S. 33:9613, which gave the OIG the ability to issue administrative subpoenas. Louisiana R.S. 33:9618, relative to investigative powers, states, in pertinent part:

A.(4)(a) In the performance of its duties, a local office of inspector general in the city of New Orleans or parish of Jefferson may issue an administrative subpoena duces tecum to require the production of books, records, documents, or other evidence deemed relevant or material to an investigation, audit, or inspection. The subpoena duces tecum shall be issued only in furtherance of the authority provided by local ordinance and by Subsections D and E of this Section and shall comply with all applicable constitutionally established rights and processes. [Emphasis added.] ⅝ * *
D. (1) A local ethics entity, ethics review board, or office of inspector general shall have the authority to examine, review, audit, inspect, and investigate the records, books, reports, documents, papers, correspondence, accounts, audits, inspections, reviews, recommendations, plans, films, tapes, pictures, computer hard drives, software data, hardware data, e-mails, instant messages, text messages, and any other data and material relevant to any matter under audit, investigation, inspection, or performance review of all entities of the local governmental subdivision or entities receiving funds through or for the benefit of the local governmental subdivision. [Emphasis added.]

Both Section 9^401 of the City of New Orleans Home Rule Charter and La. R.S. 33:9613(D)(1) give the OIG authority to investigate. Louisiana R.S. 33:9613(D)(1) also provides the entities that are subject to the OIG’s oversight. These include all entities receiving funds through the local governmental subdivision.

The City of New Orleans, through its Director of Finance, collects ad valorem taxes on behalf of OPSB, which are paid daily to the OPSB. Thus, like |sthe trial court, I find that the OPSB receives funds through the City of New Orleans. Because La. Const. Art. VIII, § 13(C) was already in effect when the Louisiana Legislature enacted La. R.S. 33:9611 et seq., it should be presumed the legislature intended to give the OIG the authority to investigate the OPSB.

The majority finds otherwise, adopting the OPSB’s argument that the taxes collected on behalf of the OPSB neither become city funds nor benefit the city because the funds “never go into the City’s General Fund.” The majority erroneously concludes that an entity must receive funds “through the City’s General Fund” in order to fall within the purview of the statute. I believe the majority misinterprets the statute by ignoring its clear wording. “The interpretation of any statutory provision starts with the language of the statute itself.” Oubre v. Louisiana Citizens Fair Plan, 11-0097, p. 11 (La.12/16/11), 79 So.Bd 987, 997. “When the provision is clear and unambiguous and its application does not lead to absurd consequences, its language must be given effect, and its provisions must be construed so as to give effect to the purpose indicated by a fair interpretation of the language used.” State v. Oliphant, 12-11176, p. 5 (La.3/19/13), 113 So.3d 165, 168 (citing La. C.C. art. 9; La. R.S. 1:4; and In re Clegg, 10-0323, p. 20 (La.7/6/10), 41 So.3d 1141, 1154). “Unequivocal provisions are not subject to judicial construction and should be applied by giving words their generally understood meaning.” Oliphant, 12-1176, p. 5, 113 So.3d at 168 (citing |fiLa. C.C. art. 11; La. R.S. 1:3). “Words and phrases must be read with their context and construed according to the common and approved usage of the language.” Oliphant, 12-1176, p. 5, 113 So.3d at 168 (citing La. R.S. 1:3). “[W]hen interpreting a statute, the court should give it the meaning intended by the legislature.” Caldwell Parish School Board v. Louisiana Machinery Company, L.L.C., 12-1383, pp. 5-6 (La.1/29/13), 110 So.3d 993, 996-97. “[Ejvery word, sentence or provision in a law is presumed to be intended for some useful purpose, that some effect is given to each such provision, and that no unnecessary words or provisions were employed.” Id. at p. 6, 113 So.3d at 997.

The provision at issue, La. R.S. 33:9613(D)(1), is not ambiguous. If the legislature had intended an entity to receive funds through the City’s General Fund for .the statute to apply, it could have included such language, but it did not.

Furthermore, I find the trial court did not have to consider whether the OPSB is a quasi-public agency as defined by La. R.S. 33:9613(E)(3) because the board receives funds through the city and thus falls within the purview of the statute under subsection (D)(1).

Finally, I find no merit to the OPSB’s argument that La. R.S. 33:9613 conflicts with La. Const. VI, § 5(G), which prohibits a home rule charter from containing any provision affecting a school board that is inconsistent with the Louisiana Constitution or law. The Louisiana Constitution provides the state legislature with the power to enact laws affecting parish and city school boards. See La. Const. Art. VIII, § 10; see also La. Const. Art. VIII, § § 1 and 9. Louisiana 17R.S. 33:9613 is a state statute enacted by the Louisiana Legislature and not a home rule charter provision adopted by local ordinance. The OPSB has not pointed to a particular provision of the state constitution or law that prohibits the enactment of La. R.S. 33:9613. Thus, I find pursuant to La. R.S. 33:9613 the OIG had the authority to issue the administrative subpoena to the OPSB.

Accordingly, I would affirm the district court’s judgment.

      . In 2011, La. R.S. 33:9611 was amended to change the application of the statutes to "the city of New Orleans and the parishes of East Baton Rouge and Jefferson.” Act 20 of the 2011 First Extraordinary Session.

      . Diaz v. Allstate Insurance, Co., 433 So.2d 699, 701 (La. 1983) (internal citations omitted)

      . New Orleans City Code Article XIII, Section 2-1120(10), provides, in pertinent part:
      (10) Authority. The office of inspector general is authorized to engage in the following specific functions:
      (a) Audit, evaluate, investigate, and inspect the activities, records, and individuals with contracts, subcontracts, procurements, grants, agreements, and other programmatic and financial arrangements undertaken by city government and any other function, activity, process, or operation conducted by city government.
      (b) Audit the efficiency and effectiveness of city government operations and functions and conduct reviews of city government’s performance measurement system.
      (c) Review the reliability and validity of the information provided by city government performance measures and standards.
      (d) Initiate such investigations, audits, inspections, and performance reviews of city government as the Inspector General deems appropriate.
      (e) Receive complaints of fraud, waste, abuse, inefficiency, and ineffectiveness from any source and investigate those complaints that the Inspector General deems credible.
      (f) Engage in prevention activities, including, but not limited to, the prevention of fraud, waste, abuse, and illegal acts; review of legislation; review of rules, regulations, policies, procedures, and transactions; and the supplying, providing, and conducting of programs for training, education, certification and licensing.
      (g) Conduct joint investigations and projects with other oversight or law enforcement agencies, including, but not limited to, the district attorney, attorney general, and the United States Attorney.
      (h) Issue reports and recommend remedial actions to be taken by the city council, the office of the mayor, or municipal departments or agency heads to overcome or correct operating or maintenance deficiencies and inefficiencies identified by the Office of Inspector General.
      (i) Issue public reports as set forth in subsections (8) and (9).
      (j) Monitor implementation of recommendations made by the Office of Inspector General and other audit, investigative, and law enforcement agencies.
      (k) Establish policies and procedures to guide functions and processes conducted by the Office of Inspector General.
      (/) Require reports from the office of the mayor, city council, or city departments, agencies, boards, commissions, or public benefit corporations regarding any matter within the jurisdiction of the Office of Inspector General.
      (m) File a complaint with the ethics review board or state board of ethics upon detecting a potential violation of any state ethics law or city ethics ordinance or code.
      (n) Attend all city meetings relating to the procurement of goods or services by the city, including meetings involving third-party transactions.
      (o) Assist any city department, agency, board, commission, public benefit corporation, the office of the mayor, the city council, any city council member, or the governing body of any agency, board, commission, or public benefit corporation, upon request, with implementation of any suggested legislation or legislative policy. In such an event, the Inspector General may assign personnel to conduct, supervise, or coordinate such activity.
      (p) Do all things necessary to carry out the functions and duties set forth in this section, including promulgate rules and regulations regarding the implementation of responsibilities, duties and powers of the Office of Inspector General.

      . La. Const. Art. VIII, § 13(C) provides, in part:
      (C) Local Funds. Local funds for the support of elementary and secondary schools shall be derived from the following sources:
      Second: The Orleans Parish School Board shall levy annually a tax not to exceed thirteen mills on the dollar of the assessed valuation of property within the city of New Orleans assessed for city taxation, and shall certify the amount of the tax to the governing authority. The governing authority shall have the tax entered on city tax rolls. The tax shall be collected in the manner, under the conditions, and with the interest and penalties prescribed by law for city taxes. The money thus collected shall be paid daily to the Orleans Parish School Board. [Emphasis added.]

      . La. Const. Art. VI, § 5(G), relative to Home Rule Charter, provides:
      (G) Parish Officials and School Boards Not Affected. No home rule charter or plan of government shall contain any provision affecting a school board or the offices of district attorney, sheriff, assessor, clerk of a district court, or coroner, which is inconsistent with this constitution or law.


author: ROSEMARY LEDET, Judge.

text:
    SUCCESSION OF Quiana JONES.
    No. 2014-CA-0642.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 12, 2014.
    John M. Blanchard, Attorney at Law, Charles, R. Jones, New Orleans, LA, for Plaintiff/Appellant.
    P. Michael Breeden, The Breeden Law Firm, L.L.C., New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge TERRI F. LOVE, Judge DANIEL L. DYSART, Judge ROSEMARY LEDET).
   ROSEMARY LEDET, Judge.

| ¶ This is a succession proceeding. The appellant, the Estate of Quiana Jones through its administrator Derrick Jones, Sr., seeks review of the trial court’s judgment granting the motion for summary judgment filed by Robert Lucien, Sr. For the reasons that follow, we deny the motion to dismiss the appeal filed by Mr. Lucien and reverse the trial court’s judgment granting Mr. Lueien’s motion for summary judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On March 10, 2010, a vehicle driven by a Harrah’s New Orleans employee struck Quiana Jones, Mr. Jones’ wife. Mrs.. Jones died later that day. Following her death, three suits were instituted: (i) the Tort Suit — Mr. Jones, individually and on. behalf of their three minor children, filed a petition for damages against Harrah’s on March 9, 2011; (ii) the Succession Proceeding — Mr. Jones filed a petition for appointment as administrator on October 18, 2011; and (iii) the Tutorship 12Proceeding — Mr. Jones filed a petition for confirmation as natural tutor and for appointment of undertutrix on July 31, 2012.

On October 23, 2013, Mr. Lucien, pro se and as agent for various legal entities, filed a claim in the Succession Proceeding for a debt owed by the Estate of Quiana Jones and rule to show cause why the debt should not immediately be paid by Quiana Jones’ estate administrator, and an order to prevent the disposal of money and assets from the estate. On November 22, 2013, Mr. Lucien filed an ex parte motion to enroll pro se in the Succession Proceeding to protect his individual interest in the claim against the Estate of Quiana Jones. On the same day, the trial court granted Mr. Lucien’s motion to enroll pro se. On Déeember 12, 2013, Mr. Lucien filed a motion for summary judgment with a rule to show cause in the Succession Proceeding. Attached to the motion, Mr. Lucien included a statement of the following undisputed facts:

1. Quiana Jones is indebted to claimant/s for the sum of $200,000.00.
2. Derrick Jones, Sr. has personal knowledge of the debt of his deceased wife Quiana Jones to Robert L. Lucien, Sr. and ROBA, INC. et al.
3. Derrick Jones, Sr. signed an Acknowledgment of the Debt claimed by Mover in this case before two independent witnesses and a notary public on January 7, 2011.
[¾4. The decedent (Quiana Jones), unlawfully expropriated, committed theft and fraud to steal $200,000.00 from Claimant for benefit of herself and her family.
5. The New Orleans Police Department determined in 2010 that they had probable cause and evidence to support their investigation of the matter for theft and fraud.
6. Derrick Jones, Sr. and his family were recipients of the money obtained unlawfully due to the fraud and theft of Quiana Jones from Claimant.
7. Claimant has evidence to prove that decedent paid her Lexus SUV note, made checks to her sister and brother in law and paid other obligations from Claimant/s money unlawfully. Decedent also used checks to pay for bills for Derrick Jones, Sr.

On January 23, 2014, a hearing was held on Mr. Lucien’s motion for summary judgment. Although Mr. Jones’ counsel opposed the motion for summary judgment at the hearing, his counsel failed to file a formal opposition to the motion. During the hearing, Mr. Lucien’s counsel incorrectly informed the trial court that Mr. Jones’ acknowledgment of the debt was in the Succession Proceeding record. At the conclusion of the hearing, the trial court granted Mr. Lucien’s motion for summary judgment. On February 3, 2014, the trial court rendered judgment granting Mr. Lucien’s motion for summary judgment and ordered the administrator of the Estate of Quiana Jones to pay Mr. Lucien $200,000.00. The trial court also awarded attorney fees in the amount of twenty-pve4 percent of the debt amount, together with judicial interest from date of judicial demand and all court costs for the litigation of this claim. This appeal followed. Before discussing the merits of the appeal, we must first address Mr. Lueien’s motion to dismiss the appeal.

Motion to Dismiss the Appeal

Mr. Lucien’s motion to dismiss enumerates eleven reasons why he contends the appeal should be dismissed. In summary, Mr. Lucien contends that the appeal | fishould be dismissed because Mr. Jones did not contest the motion for summary judgment, Mr. Jones acknowledged the debt, and there are no genuine issues of material fact.

Mr. Jones, as the legal representative of his wife’s estate, has the right to appeal an appealable judgment by the trial court in the Succession Proceeding. See La. C.C.P. art. 2084. Appealable judgments include final judgments, such as in the instant case where the trial court granted a motion for summary judgment. See La. C.C.P. arts. 2083(A) and 968. However, there are several limitations to one’s right, to appeal that would warrant a dismissal of the appeal.

One limit is set forth in La. C.C.P. art. 2085, which provides that “[a]n appeal cannot be taken by a party who confessed judgment in the proceedings in the trial court or who voluntarily and unconditionally acquiesced in a judgment rendered against him.” While Mr. Lucien contends that Mr. Jones acquiesced in the | judgment by failing to file a formal opposition, Mr. Jones’ counsel contested the motion at the hearing. Further, while Mr. Lucien contends that Mr. Jones acquiesced in the judgment by signing an acknowledgment, Mr. Jones contends that the acknowledgment was never filed into the trial court record. Accordingly, we find Mr. Lucien’s contention that this appeal should be dismissed based on the grounds that Mr. Jones acquiesced in the judgment unpersuasive.

There are also certain irregularities or errors that mandate a dismissal of an appeal under La. C.C.P. art. 2161. While' Mr. Lucien failed to allege any such irregularities, even if he had, he failed to timely file his motion to dismiss the appeal for an irregularity as required under La. C.C.P. art. 2161.

Appeals may also be dismissed by consent of the parties, lack of jurisdiction, or abandonment under La. C.C.P. art. 2162. Mr. Luden, however, failed to allege any of these grounds in his motion to dismiss the appeal. The grounds enumerated | 7in Mr. Lucien’s motion to dismiss, in essence, are arguments in opposition to Mr. Jones’ appeal. Accordingly, we deny Mr. Lucien’s motion to dismiss the appeal.

STANDARD OF REVIEW

This court recently noted that “[t]he standard of review of a trial court’s ruling granting a motion for summary judgment, pursuant to La. C.C.P. arts. 966 and 967, and the jurisprudence, is well-settled.” Chapital v. Harry Kelleher & Co., 13-1606, p. 5 (La.App. 4 Cir. 6/4/14), 144 So.3d 75, 81. This court summarized the standard of review as follows:

Appellate courts review the grant or denial of a motion for summary judgment de novo, using the same criteria applied by trial courts to determine whether summary judgment is appropriate. This standard of review requires the appellate court to look at the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, to determine if they show that no genuine issue as to a material fact exists, and that the mover is entitled to judgment as a matter of law. A fact is material when its existence or nonexistence may be essential to the plaintiffs [sic] cause of action under the applicable theory of recovery; a fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, no need for trial on that issue exists and summary judgment is appropriate. To affirm a summary judgment, we must find reasonable minds would inevitably conclude that the mover is entitled to judgment as a matter of the applicable law on the facts before the court.
The summary judgment procedure is designed to secure the just, speedy and inexpensive determination of actions. Summary judgments are favored, and the summary judgment procedure shall be construed to accomplish these ends. The code provides that where [as in the instant case] the party moving for summary judgment will not bear the burden of proof at trial, their burden does not require them to negate all essential elements of the adverse party’s claim, but rather to point out to the court that an absence of factual support exists for one or more elements essential to the adverse party’s claim. Thereafter, if the adverse party fails to produce factual support sufficient to establish that it will be able to satisfy its evidentiary burden of proof at trial, no |sgenuine issue of material fact exists, and the movant is entitled to judgment as a matter of law. The adverse party cannot rest on the mere allegations or denials of his pleadings when a motion for summary judgment is made and supported by affidavits, but is required to present evidence establishing that material facts are still at issue.

Chapital, 13-1606 at pp. 5-6, 144 So.3d at 81-82 (quoting Mandina, Inc. v. O’Brien, 13-0085, p. 5 (La.App. 4 Cir. 7/31/13), 156 So.3d 99, 104, 2013 WL 3945030 (collecting cases)).

DISCUSSION

On appeal, Mr. Jones asserts the following five assignments of error: 1) the trial coui’t erred in ruling on summary judgment prior to ruling on outstanding exceptions; 2) the trial court erred in allowing Mr. Lucien to proceed individually when the claim filed only lists Mr. Lucien as an agent; 3) the trial court erred by using summary rather than ordinary proceeding; 4) the trial court erred in ruling that there are no genuine issues of material fact; and 5) the trial court erred in granting summary judgment in favor of a non-party. Because we find Mr. Jones’ fourth assignment of error dispositive, we do not reach his remaining assignments of error.

Mr. Jones contends that the trial court erred in granting the motion for summary judgment because there are genuine issues of material fact. He contends that the affidavit of the administrator confessing judgment is not in the record. He thus contends that the record neither contains evidence of an indebtedness of the succession to the claimants, nor evidence of the sum owed to each claimant individually or collectively.

Mr. Lucien concedes that the acknowledgment was not filed in the Succession Proceeding record; however, he contends that the trial court had Insufficient evidence to rule on the motion for summary judgment. He contends that he was allowed to use parol evidence to prove Mrs. Jones’ indebtedness to him under La. R.S. 13:3721. He thus contends that the parol evidence he introduced, his affidavit and other documents, was sufficient to prove the debt. Further, he contends that by failing to file anything into the record of the Succession Proceeding opposing the motion for summary judgment, Mr. Jones failed to carry his burden of demonstrating a genuine issue of material fact.

Even in the absence of a formal opposition to a motion for summary judgment, the moving party must show that he is entitled to summary judgment. Baker v. Ingram, 447 So.2d 101, 102 (La.App. 4th Cir.1984). If the movant fails in his burden of proving that he is entitled to summary judgment as a matter of law, |inthe burden never shifts to the adverse party, and the movant is not entitled to summary judgment. Id.; Sanders v. Hercules Sheet Metal, Inc., 885 So.2d 772, 775 (La.1980). Thus, despite Mr. Jones’ failure to file a formal opposition to the motion for summary judgment, Mr. Lucien was required to prove that he was entitled to summary judgment.

Mr. Lucien failed to prove that no genuine issue of material fact existed, and that he was entitled to a judgment as a matter of law for $200,000.00. Even assuming, arguendo, that Mr. Lucien was allowed to use parol evidence to prove the debt, La. R.S. 13:3722 provides that “[w]hen parol evidence is admissible under the provisions of R.S. 13:3721 the debt or liability of the deceased must be proved by the testimony of at least one creditable witness other than the claimant, and other corroborating circumstances.” See Succession of Flach, 437 So.2d 379 (La.App. 4th Cir.1983).

In Succession of Flach, the only testimony offered to prove the alleged debt of the estate was that of the creditor himself. Id. at 382. The only corroborating evidence offered was a series of checks written to the decedent and tendered by the creditor containing the notation “loan” on the bottom. Id. Citing La. R.S. 13:3722, this court reasoned that “[b]oth the statute itself and the jurisprudence which interpret it clearly state that the ‘creditable witness’ whose testimony is used to prove the existence of the debt must be someone other than the claimant, so as to eliminate the possibility of fraud or perjury by witnesses who have a direct pecuniary or proprietary interest in the claim.” Id. at 381-82 (citing Savoie v. Estate of Rogers, 410 So.2d 683 (La.1981)). This court concluded that even if parol evidence was admissible under La. R.S. 3721, the evidence offered was insufficient to prove indebtedness of the decedent to the alleged creditor. Id. at 382.

As in Succession of Flach, the only testimony in the record of this case offered to prove the alleged debt was an affidavit of Mr. Lucien, the creditor himself. Further, the only corroborating evidence offered to prove the debt was the fraud claim that Mr. Lucien filed with the police and copies of checks written by Mr. Lucien to Mrs. Jones. According to the jurisprudence and the statute, without testimony of another credible witness attesting to the debt, this evidence was insufficient to prove the alleged $200,000.00 debt. See La. R.S. 13:3722.

Mr. Lucien also contends that because Mr. Jones signed an acknowledgment of the debt, this alone was sufficient proof of the debt and the other evidence he offered was simply confirming this acknowledgment. However, the acknowledgment was neither filed into the record of the Succession Proceeding, nor introduced into evidence at the hearing on the motion for summary judgment.

This court is a court of record; hence our review is restricted to evidence in the record before us. La. C.C.P. art. 2164. It is well-settled that attachments to briefs are not a part of the record on appeal and cannot be considered in resolving issues on appeal. Miller v. Crescent City Health Care Ctr., 08-1347, p. 8 (La.App. 4 Cir. 5/28/09), 24 So.3d 891, 898-99, (Tobias, J., concurring) (collecting cases). Further, an appellant cannot supplement the record on appeal with memorandum and attachments that were not introduced into evidence at the hearing on the motion for summary judgment. Louisiana Onshore Properties, Inc. v. Manti Res., Inc., 99-1088, p. 5 (La.App. 3 Cir. 12/29/99), 755 So.2d 988, 991-92; Johnson v. Sunbelt Builders, Inc., 02-0959, p. 6 (La.App. 3 Cir. 2/5/03), 838 So.2d 907, 911.

Based on the above principles, we cannot consider the acknowledgment in reviewing the trial court’s ruling on the motion for summary judgment. While the acknowledgment was attached to Mr. Lucien’s appellee brief, it was not properly filed in the trial court. Although Mr. Lu-den supplemented, this appeal with the record of the Tort Suit, which also contains a copy of the acknowledgment, the Tort Suit has not been consolidated with the Succession Proceeding and is not properly before us.

Accordingly, Mr. Luden failed to establish the lack of any genuine issues of material fact and that he is entitled to judgment as a matter of law. Thus, the trial court’s judgment granting the motion for summary judgment is reversed.

DECREE

For the foregoing reasons, the judgment of the trial court is reversed.

REVERSED.

      . For ease of reference, the appellant is hereinafter referred to as "Mr. Jones.”

      .On August 13, 2012, Mr. Jones filed a motion to consolidate the Tort Suit and the Tutorship Proceeding in the trial court. Mr. Jones, however, did not consolidate these cases with the Succession Proceeding. On appeal, however, Mr. Jones supplemented the Succession Proceeding record (Civil District Court "CDC” No. 2011-11092) with the Tort Suit record (CDC No. 2011-2527) and the . Tutorship Proceeding record (CDC No. 2011— 7462).

      . The full list of legal entities is as follows: ROBA, Inc., R.L. Lucien Tile Co. Inc., Good Acres, Inc., RLL-Trust # 1, Citizens Against Legal Abuse Inc. and New Orleans Homes of Care, Inc.

      . This acknowledgment, however, was not included with Mr. Lucien's motion for summary judgment. Further, this acknowledgment was never filed into the record for the Succession Proceeding.

      . The trial court rendered two essentially identical judgments. The only difference between the two judgments is that one specifies that the administrator is ordered to pay Mr. Lucien "pursuant to La.Code of Civil procedure article 3242.” La. C.C.P. art. 3242 provides as follows:
      The succession representative to whom a claim against the succession has been submitted, within thirty days thereof, shall either acknowledge or reject the claim, in whole or in part. This acknowledgment or express rejection shall be in writing, dated, and signed by the succession representative, who shall notify the claimant of his action. Failure of the succession representative either to acknowledge or reject a claim within thirty days of the date it was submitted to him shall be considered a rejection thereof.

      . Mr. Lucien’s eleven arguments in favor of dismissal are as follows:
      1. The challenged summary judgment is valid as a matter of law.
      2. The challenged summary judgment was not legally contested.
      3. In addition to other reasons, the summary judgment was granted based an [sic] acknowledgment and assumption of the debt of the estate by the estate representative and further a written agreement to pay the estate debt was acknowledged, assumed and signed before a notary public.
      4. The estate representative was and is a party to the debt of the estate and so acknowledged the estate debt.
      5. The record contains no issues of material facts as they may relate to the pleadings and conclusions for payment of a debt of the estate.
      6. There was no written pleadings or legal memorandum filed to oppose summary judgment.
      7. There was no motion for new trial filed "timely” or otherwise to show the court reasons why the judgment should not stand.
      8. Issues raised by Appellants are for another court[,] another issue at another time and have nothing to do with the instant motion for new trial.
      9. Appellants have nothing to appeal because Appellants made no objections legally to oppose the summary judgment.
      10. Appellant’s EXHIBITS apply to an entirely different law suit docket number.
      11. The acknowledgment and assumption of the debt of the estate by the administrator (Derrick Jones, Sr.) was referred to by the district court judge in her discussion with counsel in open court as the court’s basis (inclusively) for granting the summary judgment.

      . La. C.C.P. art. 2084 provides:
      A legal representative may appeal any ap-pealable judgment rendered against him or affecting the property which he is administering, for the benefit of the person whose property he administers or whom he represents, whenever he considers an appeal necessary or advisable.

      . La. C.C.P. art. 2083(A) provides:
      A. A final judgment is appealable in all causes in.which appeals are given by law, whether rendered after hearing, by default, or by reformation under Article 1814.
      La. C.C.P. art. 968 provides:
      Judgments on the pleadings, and summary judgments, are final judgments and shall be rendered and signed in the same manner and with the same effect as if a trial had been had upon evidence regularly adduced. If the judgment does not grant mover all of the relief prayed for, jurisdiction shall be retained in order to adjudicate on mover’s right to the relief not granted on motion. An appeal does not lie from the court’s refusal to render any judgment on the pleading or summary judgment.

      . La. C.C.P. art. 2161 provides as follows:
      An appeal shall not be dismissed because the trial record is missing, incomplete or in error no matter who is responsible, and the court may remand the case either for retrial or for correction of the record. An appeal shall not be dismissed because of any other irregularity, error or defect unless it is imputable to the appellant. Except as provided in Article 2162, a motion to dismiss an appeal because of any irregularity, error, or defect which is imputable to the appellant must be filed within three days, exclusive of holidays, of the return day or the date on which the record on appeal is lodged in the appellate court, whichever is later.

      . La. C.C.P. art. 2161 requires that an appel-lee file a motion to dismiss an appeal within three days of the return day or the lodging of the record on appeal, whichever is later. In the instant case, the later date was the lodging of the record on June 23, 2014. However, Mr. Lucien did not file his motion tó dismiss the appeal until August 7, 2014.

      . La. C.C.P. art. 2162 provides as follows:
      An appeal can be dismissed at any time by consent of all parties, or for lack of jurisdiction of the appellate court, or because there is no right to appeal, or if, under the rules of the appellate court, the appeal has been abandoned.
      If an appeal is taken to an appellate court which has no jurisdiction over it, the court may transfer the appeal to the proper court, upon such terms and conditions as it may prescribe. If an appeal is transferred to the supreme court in error, the supreme court may transfer or retransfer it to the proper court.

      . La. R.S. 13:3721 provides:
      Parol evidence shall not be received to prove any debt or liability of a deceased person against his succession representative, heirs, or legatees when no suit to enforce it has been brought against the deceased prior to his death, unless within one year of the death of the deceased:
      (1) A suit to enforce the debt or liability is brought against the succession representative, heirs, or legatees of the deceased;
      (2) The debt or liability is acknowledged by the succession representative as provided in Article 3242 of the Code of Civil Procedure, or by his placing it on a tableau of distribution, or petitioning for authority to pay it;
      (3) The claimant has opposed a petition for authority to pay debts, or a tableau of distribution, filed by the succession representative, on the ground that it did not include the debt or liability in question; or
      (4)The claimant has submitted to the succession representative a formal proof of his claim against the succession, as provided in Article 3245 of the Code of Civil Procedure. The provisions of this section cannot be waived impliedly through the failure of a litigant to object to the admission of evidence which is inadmissible thereunder.

      . Several Louisiana appellate courts have cited Baker for this proposition. See Gatlin v. Kleinheitz, 09-0828, p. 5 (La.App. 1 Cir. 12/23/09), 34 So.3d 872, 875; Bravo v. Borden, 08-323, p. 5 (La.App. 5 Cir. 11/25/08), 3 So.3d 505, 509; and Succession of Crowe v. Henry, 602 So.2d 243, 246 (La.App. 2nd Cir. 1992).

      . Mr. Lucien argues that he was allowed to use parol evidence under La. R.S. 13:3721 because Mr. Jones acknowledged the debt within a year of Mrs. Jones’ death. However, as noted elsewhere in this opinion, this acknowledgment was not filed into the record of the Succession Proceeding.


author: DANIEL L. DYSART, Judge.

text:
    Arthur F. PETIVAN v. CITY OF NEW ORLEANS.
    No. 2014-CA-0504.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 12, 2014.
    John A.E. Davidson, Christopher J. Davidson, Davidson & Davidson, APLC, Metairie, LA, for Plaintiff/Appellant.

      Melissa S. Quigley, Assistant City Attorney, Joyce G. Joseph, Deputy City Attorney, Cherrell R. Simms, Senior Chief Deputy City Attorney, Sharonda R. Williams, City Attorney, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge ROLAND L. BELSOME, Judge DANIEL L. DYSART, Judge SANDRA CABRINA JENKINS).
   DANIEL L. DYSART, Judge.

11Arthur Petivan appeals a judgment rendered on a motion for new trial, in which the trial court reversed its previous ruling denying exceptions filed by the City of New Orleans, and maintaining the City’s Exception of Prescription. For the reasons that follow, we affirm.

BACKGROUND:

Arthur Petivan owns property at 4131-33 N. Rampart in New Orleans. The property was severely damaged by Hurricane Katrina in 2005. Petivan claims to have made substantial repairs to the property, but despite his best efforts, the City of New Orleans (“City”) levied fines and penalties against him, preventing him from paying his ad valorem taxes because the alleged exorbitant fines and penalties must be paid before he can pay his tax bill.

On June 10, 2009, the City sent Petivan a “notification of violation and hearing notice.” The notice informed Petivan of the ' hearing date, and listed the violations relative to the blighted condition of the property.

12The record indicates that Petivan appeared at the initial hearing on June 10, 2009, and asked for more time to complete repairs. The hearing was continued five more times at Petivan’s request. When Petivan did not appear at the last setting on May 5, 2010, the hearing officer received evidence that the property had not been brought in compliance, and adjudicated Petivan guilty. As a result, a Notice of Judgment was sent to Petivan indicating that he was found in violation of ordinance 28-37 allowing a public nuisance, and was assessed $575 in fines and costs. Additionally, he was notified that a fine of $100 per day could be assessed after thirty days if the property was not repaired. The notice further informed him that failure to pay the fines within 30 days could result in a lien being placed on the property, and if he failed to pay the lien with his next tax bill, the property could be sold. It also informed him that the property could be eligible for demolition as it was declared a public nuisance. Lastly, the notice informed Petivan that he had thirty days from the date of the judgment to appeal to the Civil District Court for the Parish of Orleans.

Petivan did not appeal and on July 7, 2010, another Notice of Judgment was rendered declaring the property blighted and a public nuisance. Fines were assessed and Petivan was informed that a daily fine of $300 could be assessed if the property was not brought into compliance. Again, Petivan was informed that he had thirty days to appeal.

On July 15, 2010, a third Notice of Judgment was issued, finding Petivan guilty of “demolition by neglect.” The notice informed him that the City could 1,shire a contractor to repair the property at Peti-van’s expense, and that failure to pay the fines and costs within thirty days would result in the Notice of Judgment being filed as a lien. The notice again stated that Petivan had thirty days to appeal.

Petivan did not appeal any of the three judgments rendered against him. Rather, on September 13, 2011, Petivan filed a Petition for Injunction and Declaratory Judgment against the City seeking to enjoin the City from collecting the fines and costs assessed to him, the non-payment of which resulted in liens on the property. He also sought damages for harassment, to have the ordinances he was charged with violating declared unconstitutional, and attorney fees.

The City filed exceptions of prescription, no cause of action, and non joinder of a party, and an answer. The exception of prescription alleged that the petition should be dismissed as the administrative judgment that formed the basis of the suit was rendered on July 7, 2010, and the petition was not filed until September 13, 2011, well in excess of the thirty day period for appeal. The exception of no cause of action alleged that Petivan failed to assert irreparable harm under the law. Last, the exception of non joinder of a party alleged that Petivan sought a judgment against the mayor and the City council, but those entities were not named as defendants in the petition.

Petivan opposed the exception of prescription arguing that because he was challenging the constitutionality of the ordinances, the City could not avail itself of the claim of prescription. In response to the exception of no cause of action, |4Petivan argued that he did not need to prove irreparable harm when the defendant is acting in violation of the law and the plaintiff is protecting his property rights.

Petivan filed a Motion for Summary Judgment and Setting of Exceptions and for Writ of Mandamus. Petivan argued that there was no genuine issue of material fact that the City had failed to follow mandatory notice provisions for the administrative hearings. He moved to annul the liens against his property for failure of the City to comply with due process mandates. The writ of mandamus was directed to the clerk of court ordering her to cancel the liens against his property which were recorded in the mortgage records.

In its opposition to the summary judgment, the City again argued that Petivan’s claims were prescribed. It argued that Petivan had been properly notified of the hearings, and had been afforded the opportunity to be heard. Petivan was not fined until he did not appear at the May 5, 2010, hearing and was found guilty of the violations. The final notice of judgment, signed July 15, 2010, was mailed to Petivan and recorded in the Orleans Parish mortgage records as a lien.

After a hearing on the exceptions and motion for summary judgment, the trial court denied Petivan’s motion and overruled the City’s exceptions. Petivan sought a writ to this Court on the denial of his summary judgment, which was denied.

The City filed a Motion for New Trial asking the trial court to set aside its previous judgment overruling its exception of prescription. The grounds for the | ^motion were that the judgment was clearly contrary to the law and evidence as Petivan’s petition was prescribed on its face.

On February 7, 2014, the trial court considered the City’s motion for new trial and granted it, maintaining the City’s exception of prescription. It is from that judgment that Petivan appeals.

DISCUSSION:

Petivan raises two assignments of error: 1) the trial court erred in failing to void the judgment assessing daily fines against him, because. the City failed to comply with the procedures as required by its own ordinances; and 2) the trial court erred in failing to find that the administrative proceedings and resulting fines for the ordinances in question are unconstitutional, as they are not narrowly tailored to achieve a compelling government interest in the least restrictive means possible, and they are arbitrary and capricious.

The only issue before this Court is whether the trial court erred in maintaining the City’s Exception of Prescription. After a thorough review of the record, we find Petivan’s claims are prescribed.

Prescription is a peremptory exception. La.Code Civ. Proc. art. 927. When the exception of prescription is raised in the trial court prior to trial of the case, evidence may be introduced to support or controvert it. La.Code Civ. Proc. art. 931. If evidence is introduced, the trial court’s findings of fact are reviewed [ (¡according to the manifest error/clearly wrong standard. London Towne Condo, Homeowner’s Ass’n v. London Towne Co., 06-0401, p. 4 (La.10/17/06), 939 So.2d 1227, 1231; Weber v. Metropolitan Cmty. Hospice Found., Inc., 13-0182, pp. 5-6 (La.App. 4 Cir. 12/18/13), 131 So.3d 371, 375.

Petivan argues that the City did not follow the procedures for enforcing ordinances as set out in its own Code. He also claims that the notice he received was patently defective as the amount of fines shall be established in a separate penalty phase before being assessed as a lien to the ad valorem tax bill. Further, because the City did not file an affidavit of lien and a certified copy of the notice of judgment with the recorder of mortgages, the lien is invalid and should not have been assessed on the tax bill. Because of these deficiencies, Petivan argues that the judgments against him should be declared null and void.

The City counters that Petivan was afforded due process as evidenced by his appearance at five hearings at which he argued the merits of why the repairs had not been made, and requested an extension to complete the necessary repairs. It was not until his failure to appear at the sixth hearing, for which he had received notice at the fifth hearing, that he was found guilty of violation of the ordinances. At the last hearing, the hearing officer made a ruling based on the City’s code enforcement file. Petivan’s failure to appear was deemed an admission of liability, which is allowed by law. Therefore, Peti-van waived his right to bring a challenge 17based on his allegations of failure to comply with requirements of notice, citation or petition.

In a case factually similar to the instant case, Kevin Dupart received notice that his property was in violation of the City Code, and that an administrative hearing was scheduled. At the hearing, the hearing officer determined the property was in violation of the Code, but granted Dupart an extension to demonstrate that substantial work had been done to his property. Dupart again asked for an extension at the second hearing, and was granted additional time. At the third hearing, Dupart failed to appear and his property was adjudicated blighted and a public nuisance. His property was seized and sold at a sheriffs sale, but before the purchase price was paid and the deed issued, Dupart filed a petition to annul the sale and the administrative judgment, and requested a temporary restraining order and preliminary and permanent injunction.

At the hearing on the preliminary injunction, Dupart argued that the judgment was invalid for defects patent on the face of the proceedings as the notice did not comply with notice provisions of the City Code. The trial court denied his motion for a preliminary injunction reasoning that Dupart had been granted two extensions of time to bring his property into compliance. Therefore, the City substantially complied with the law concerning notice to Dupart, that he was afforded ample opportunity to be heard, but that he failed to remedy the defects. The Fourth Circuit reversed, finding that it was legal error to find that the City’s ^“substantial compliance” was sufficient. City of New Orleans v. Dupart, 14-0617, p. 3 (La.5/2/14), 137 So.3d 1203.

The Louisiana Supreme Court granted the City’s writ, and held:

While the notice might not have explicitly provided notice of Dupart’s right to request an extension prior to the first administrative hearing, we find Dupart was given two extensions and each time was also given a two-month window within which to remedy the defects or show substantial work in progress before the next administrative hearing. Significantly, the property was not even adjudicated blighted until the third hearing and only after the two extensions had lapsed and the property had still not been brought into compliance. Moreover, Dupart appeared at both hearings during which he was granted his extensions and never contested the notice.
Accordingly, we agree with the trial court that under these particular circumstances, substantial compliance with the notice requirements was sufficient as Dupart was proeedurally noticed regarding the condition of his property and was afforded reasonable opportunities to be heard, but still failed to remedy the defects even after multiple extensions.

Id., 14-0617, p. 3,137 So.3d at 1204.

Petivan does not deny that he received the first notice, which included explicit details on how he was to proceed. He also does not deny receiving notice of the rescheduled hearing each time, or that he failed to make the repairs necessary to bring his property into compliance. Rather, he argues that the adjudication must be reversed based on deficiencies in the notice process.

Following the Supreme Court’s ruling in Dupart, we cannot agree with Petivan’s arguments. The initial notice of hearing informed Petivan that the purpose of the hearing was to determine whether the unoccupied property was | flighted for purposes of expropriation, or if it was a public nuisance for the purposes of demolition. The notice further explained that the property owner was afforded all the rights given at a normal trial. If the owner was found guilty at the conclusion of the hearing, he could be charged a fine of $100 to $500 a day until the violations were corrected. If not corrected, the City could attempt to seize the property and pay the owner fair market value. If the City made the necessary repairs or demolished the property, the owner would be charged for the cost. Also attached to the notice was a Code Enforcement handbook, which explained the enforcement process, the City’s standards for unoccupied property, and the rights and responsibilities of property owners. The violation list indicated that the building in question was an accessory building on the property.

The Notices of Judgment received by Petivan also clearly indicated the violations for which he was found guilty, what the fines were, and how he could rectify the situation. The notices also clearly stated that he could appeal the judgments to the Civil District Court of the Parish of Orleans within thirty days. Petivan did not file any pleadings in the Civil District Court until September 13, 2011, when he instituted the subject proceedings.

In his second assignment of error, Peti-van raises constitutional challenges to the City Code ordinances under which he was adjudicated guilty, and fined. As we find Petivan’s petition has prescribed, we pre-termit discussion of those issues.

Accordingly, we affirm the ruling of the trial court maintaining the City’s Exception of Prescription.

ImAFFIRMED.

      . This exception was cured by the filing of a supplemental and amending petition naming the mayor and the City council.

      . As noted infra, Petivan appeared at the initial hearing, asked to have it reset, and was given notice of the new hearing. He appeared five more times and requested that the matter be reset.

      . Petivan claims the fines were assessed at $500 per day; however, the record indicates that the fines were not more than $300 per day, effective 30 days after judgment if property not brought in compliance.

      . See New Orleans Code of Ordinances, Section 28-40 and La. R.S. 13:2575 D(l).

      . See ante, p. 632.