author: JOY COSSICH LOBRANO, Judge. BONIN, J.,

text:
    STATE of Louisiana in the Interest of D.V.
    No. 2013-CA-1283.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 7, 2014.

      Leon A. Cannizzaro, Jr., District Attorney, Parish of Orleans, J. Bryant Clark, Jr., Assistant District Attorney, New Orleans, LA, for Appellee/State of Louisiana.
    Annette Fuller Roach, Louisiana Appellate Project, Lake Charles, LA, for Appellant/D.V.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge PAUL A. BONIN, Judge JOY COSSICH LOBRANO).
   JOY COSSICH LOBRANO, Judge.

liOn August 15, 2013, the Orleans Parish Juvenile Court adjudicated D.V. delinquent as a result of having committed the crime of illegal possession of a handgun by a juvenile, a violation of La. R.S. 14:95.8. The Juvenile Court judge entered a disposition of commitment to the Department of Public Safety and Corrections for a period of six (6) months, but suspended the commitment and placed D.V. on six (6) months of inactive probation, with certain special conditions. D.V. now appeals his adjudication and disposition.

The facts of the instant case are not relevant to the issues presented in this appeal.

On appeal, D.V. first argues that La. R.S. 14:95.8 is unconstitutional and a violation of Article 1, § 11 and Article 1, § 3 of the Constitution of the State of Louisiana, and the Fourteenth Amendment of the Constitution of the United States. The trial court denied D.V.’s motion to declare La. R.S. 14:95.8 unconstitutional. La. R.S. 14:95.8 states as follows:

12A. It is unlawful for any person who has not attained the age of seventeen years knowingly to possess any handgun on his person. Any person possessing any handgun in violation of this Section commits the offense of illegal possession of a handgun by a juvenile.
B. (1) On a first conviction, the offender shall be fined not more than one hundred dollars and imprisoned for not less than ninety days and not more than six months.
(2) On a second conviction, the offender shall be fined not more than five hundred dollars and imprisoned with or without hard labor for not more than two years.
(3) On a third or subsequent conviction, the offender shall be fined not more than one thousand dollars and imprisoned at hard labor for not more than five years.
(4) A juvenile adjudicated delinquent under this Section, having been previously found guilty or adjudicated delinquent for any crime of violence as defined by R.S. 14:2(B), or attempt or conspiracy to commit any such offense, shall upon a first or subsequent conviction be fined not less than five hundred dollars and not more than one thousand dollars and shall be imprisoned with or without hard labor for not less than six months and not more than five years. At least ninety days shall be served without benefit of probation, parole, or suspension of sentence.
. C. The provisions of this Section shall not apply to any person under the age of seventeen years who is:
(1) Attending a hunter’s safety course or a firearms safety course.
(2) Engaging in practice in the use of a firearm or target shooting at an established range.
(3) Hunting or trapping pursuant to a valid license issued to him pursuant to the laws of this state.
(4) Traveling to or from any activity described in Paragraph (1), (2), or (3) of this Subsection while in possession of an unloaded gun.
(5) On real property with the permission of his parent or legal guardian and with the permission of the owner or lessee of the property.
|s(6) At such person’s residence and who, with the permission of such person’s parent or legal guardian, possesses a handgun.
(7) Possessing a handgun with the written permission of such person’s parent or legal guardian; provided that such person carries on his person a copy of such written permission.
D. For the purposes of this Section “handgun” means a firearm as defined in R.S. 14:37.2, provided however, that the barrel length shall not exceed twelve inches.

The constitutionality of La. R.S. 14:95.8 was upheld by the Louisiana Fifth Circuit Court of Appeal in State in Interest of D.W., 13-114 (La.App. 5 Cir. 9/18/13), 125 So.3d 1180, and the Louisiana Supreme Court recently denied writs in that case. State in Interest of D.W., 13-2478 (La.4/4/14), 135 So.3d 639. The Fifth Circuit stated as follows:

The right to bear arms is established by the Second Amendment to the United States Constitution and Article I, Section 11 of the Louisiana Constitution. The State of Louisiana is entitled to regulate that right for legitimate state purposes, such as public health and safety. State v. Sandifer, 95-2226 (La.9/5/96), 679 So.2d 1324, 1333; State v. Williams, 98-1006 (La.App. 5 Cir. 3/30/99), 735 So.2d 62, 70, mit denied, 99-1077 (La.9/24/99), 747 So.2d 1118.
La. Const. Art. 1, Section 11 currently provides that the right of each citizen to keep and bear arms is fundamental and shall not be infringed, and that any restriction on this right shall be subject to strict scrutiny. La. Const. Art. 1, Section 11 was amended by Acts 2012, No. 874, Section 1, and approved on November 6, 2012. La. Const. Art. 1, Section 11 formerly provided that the right of each citizen to keep and bear arms shall not be abridged, but this provision shall not prevent the passage of laws to prohibit the carrying of weapons concealed on the person. D.W. committed this offense on October 27, 2012, before the new amendment was approved, and therefore, it is unclear as to whether the new amendment would apply. However, under the following analysis, wejjfind that La. R.S. 14:95.8 is constitutional under either version of the law.
A statute is presumed to be constitutional, and the burden of clearly establishing unconstitutionality rests upon the party who attacks the statute. A statute should be upheld whenever possible. State v. Muschkat, 96-2922 (La.3[/4/98), pp. 4-5,] 706 So.2d 429, 432. Neither the Louisiana Supreme Court nor this Court has determined whether La. R.S. 14:95.8 is constitutional or unconstitutional.
Federal courts have found that similar statutes do not violate the Second Amendment and are constitutional. In United States v. Rene E., 583 F.3d 8 (1st Cir.2009), ceil denied, 558 U.S. 1133, 130 S.Ct. 1109,175 L.Ed.2d 921 (2010), a
juvenile was charged with possessing a handgun in violation of 18 U.S.C., Section 922(x)(2)(A). The juvenile entered a conditional guilty plea. On appeal, he argued, inter alia, that the statute violated his rights under the Second Amendment. The U.S. Court of Appeals, First Circuit, held that the statute did not violate the Second Amendment. It found that the law was a narrowly drawn federal prohibition on handgun possession by juveniles that contained exceptions for self- and other-defense in the home, National Guard duty, and hunting, among others. The First Circuit stated that it had evaluated this prohibition in light of state laws regulating juvenile access to handguns on the ground that their possession could pose a serious threat to public safety. It also stated that it had evaluated evidence which showed that the founding generation would have regarded such laws as consistent with the right to keep and bear arms. Therefore, the court concluded that the law, with its narrow scope and its exceptions, did not offend the Second Amendment. Id. at 16.
The First Circuit also noted that handgun possession by juveniles was banned by federal law in 1994 in the Youth Handgun Safety Act, and that the act was aimed at preventing juvenile misuse of handguns and associated crime. Id. at 13. The federal ban on handguns was part of a longstanding practice of prohibiting certain classes of individuals from possessing firearms— those whose possession posed a particular danger to the public. Id. at 15. The court lastly recognized that the U.S. Supreme Court had held repeatedly that the rights of minors were not commensurate with those of adults because of their inability to make informed and mature decisions.' Id. at 16 n. 8. See also, Dozier v. State of Indiana, 709 N.E.2d 27, 31 (Ind.Ct.App.1999); National Rifle Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, 700 F.3d 185 (5th Cir.2012).
La. Const. Art. 1, Section 11, provides at the present time that the right of each citizen to keep and bear arms is fundamental and shall not be infringed, and that any restriction on this right shall be subject to strict scrutiny. Under the strict scrutiny test, the state action may be justified only by a compelling state interest, and the state action must be narrowly confined so as to further only that compelling interest. State v. Perry, 610 So.2d 746, 760 (La. 1992).
We find that La. R.S. 14:95.8 meets the strict scrutiny test because it is narrowly tailored to address the compelling state interest of protecting the public’s safety by attempting to curb juvenile gun violence with reasonable, limited restrictions. The statute is narrowly tailored in that it contains several exceptions which are found in La. R.S. 14:95.8C, including exceptions for hunting and target shooting at an established range. | Juveniles who have permission from their parents are exempted from the statute. Further, the statute is narrowly tailored in that it only applies to individuals under the age of 17, and it criminalizes only actual possession on one’s person, and not constructive possession. See State in the Interest of R.D., 12-619 (LaApp. 4 Cir. 10/3/12), 126 So.3d 504, [2012 WL 4711876], writ denied, 12-2495 (La.4/19/13), 111 So.3d 1030.
Based on the foregoing, we find that La. R.S. 14:95.8 does not violate the Second Amendment or La. Const. Art. 1, Section 11, and is constitutional. We therefore conclude that D.W.’s trial counsel was not ineffective for failing to raise this issue in the trial court. This assignment of error is without merit.
D.W. next argues that La. R.S. 14:95.8 is unconstitutional because it violates equal protection of laws in that it discriminates against individuals on the basis of age. The Fourteenth Amendment to the United States Constitution, and Article I, Section 3 of the Louisiana Constitution provide that no person shall be denied the equal protection of law. Equal protection analysis requires strict scrutiny of a legislative classification only when the classification impermissi-bly interferes with the exercise of a fundamental right or operates to the peculiar advantage of a “suspect” class. Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 312, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976).
First, as discussed above, La. R.S. 14:95.8 does not impermissibly interfere with Second Amendment rights. Secondly, age is not a “suspect” classification. Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 83, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000). Government may discriminate on the basis of age without offending the constitutional guarantee of equal protection, provided that such age classification in question is rationally related to a legitimate state interest. Id. at 83-84 [120 S.Ct. 631]. Because La. R.S. 14:95.8 is rationally related to the legitimate state interest of protecting the public’s safety by reasonably attempting to curtail juvenile gun violence, the statute does not violate equal protection guarantees and is therefore constitutional. We further find that D.W.’s trial counsel was not ineffective for failing to raise this issue in the trial court. This assignment of error is without merit.

State in Interest ofD.W., supra, pp. 15-19, 125 So.3d at 1192-1194.

|7We agree with the analysis and conclusions set forth by the Fifth Circuit in State in Interest of D.W., supra, and find no merit in D.V.’s argument that La. R.S. 14:95.8 violates Article 1, § 11 and Article 1, § 3 of the Constitution of the State of Louisiana, and the Fourteenth Amendment of the Constitution of the United States. The trial court did not err in denying D.V.’s motion to declare La. R.S. 14:95.8 unconstitutional.

In his next assignment of error, D.V. argues that the trial court erred in setting the initial answer hearing outside of the time limitations set forth in La. Ch.C. article 854, and in finding that good cause existed to delay the appearance to answer in this case a second time for an additional period of thirty-four days. La. Ch.C. article 854 states as follows:

A.If the petition is filed prior to or during the hearing to determine continued custody, the court may order the child to answer the petition upon completion of the hearing. If not so ordered and the child is continued in custody, he shall be ordered to appear to answer the petition within five days after the filing of the petition.
B. In all other cases, the child shall be ordered to appear to answer the petition within fifteen days after the filing of the petition.
C. For good cause, the court may extend such period.

In response to this argument, the State asserts that D.V. has waived his objection to the issues regarding whether the trial court complied with the provisions of La. IsCh.C. article 854 because his counsel did not contemporaneously object when the trial court set the initial answer hearing beyond the delays set forth in La. Ch.C. article 854 or when the trial court found that good cause existed to continue the hearing. The State cites La.C.Cr.P. article 841, which states, in pertinent part, “An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence.” The record supports the State’s contention that counsel for D.V. did not contemporaneously object when the trial court set the initial answer hearing beyond the delays allowed by La. Ch.C. article 854 or when the trial court found that good cause existed to delay the appearance to answer. Counsel for D.V. responds that no objection was required because the time limitations set forth in La. Ch.C. article 854 are mandatory.

The record supports the State’s contention that counsel for D.V. did not contemporaneously object to the initial setting of the answer hearing beyond the time limitations set forth in La. Ch.C. article 854 or to the finding of good cause for the continuance of that hearing. In a similar situation, because no objection was made on behalf of a juvenile defendant when his adjudication hearing was not held within the mandatory time limitations set forth for such a hearing in La. Ch.C. article 877, the juvenile defendant was not allowed to raise that issue on appeal for the first time. State ex reí. Q. U.O., 89,308, pp. 4-5 (La.App. 2 Cir. 10/27/04), 886 So.2d 1188, 1191. We find that the same rule applies in this case. D.V. cannot raise his arguments regarding the trial court’s alleged lack of compliance with La. Ch.C. article 854 for the first time on appeal.

In his third and final assignment of error, D.V. argues that he was denied the effective assistance of counsel guaranteed to him by the Sixth Amendment to the United States Constitution. La. Ch.C. article 809 states, in pertinent part: “At 19every stage of proceedings under this Title, the accused child shall be entitled to the assistance of counsel at state expense.” In addressing a claim of ineffective assistance of counsel, this Court in State v. Marzett, 13-274 (La.App. 4 Cir. 8/28/13), 123 So.3d 831, stated as follows:

A defendant is entitled to effective assistance of counsel under U.S. Const. Sixth Amendment and La. Const, art. I, § 13. To sustain a claim of ineffective assistance of counsel, a defendant must show that (1) his counsel’s performance was deficient, and (2) the deficiency prejudiced him. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). An error is prejudicial if it was so serious as to deprive the defendant of a fair trial; to prevail on a claim for ineffective assistance, the defendant must demonstrate a reasonable probability that, but for counsel’s unprofessional errors, the re-suit of the proceedings would have been different. State v. Stovall, 12-0014, p. 6 (La.App. 4 Cir. 10/17/12), 102 So.3d 994, 998.
Claims of ineffective assistance of counsel are more appropriately addressed through an application for post-conviction relief rather than on direct appeal. State v. Truitt, 500 So.2d 355 (La.1987). However, the claim may be addressed on direct appeal in the interest of judicial economy if the record contains sufficient evidence to decide the issue. State v. Peart, 621 So.2d 780 (La.1993); State v. McCarthy, 12-0342, p. 4 (La.App. 4 Cir. 3/27/13), 112 So.3d 394, 397; Stovall, 12-0014, p. 6, 102 So.3d at 998.

Id., 11-12,123 So.3d at 837-838.

D.V. argues that his trial counsel was ineffective because (1) she failed to offer an equal protection argument in support of D.V.’s claim that La. R.S. 14:95.8 is unconstitutional; (2) she failed to object to the trial court’s exceeding of the time limitations set forth in La. Ch.C. article 854 for the initial answer hearing or to the trial court’s finding of good cause for delaying the appearance to answer; and (3) her actions during the adjudication hearing inflamed the trial court to the detriment | K)of D.V. Because the record in this case contains sufficient evidence to decide this issue on appeal, we will do so in the interest of judicial economy.

As discussed in the first assignment of error, we agree with the analysis and conclusions set forth in State in Interest of D.W., 13-114 (La.App. 5 Cir. 9/18/13), 125 So.3d 1180, writ denied, 13-2478 (La.4/4/14), 135 So.3d 639, regarding the constitutionality of La. R.S. 14:95.8, and find no error in the trial court’s ruling denying D.V.’s motion to declare La. R.S. 14:95.8 unconstitutional. Included in the Fifth Circuit’s holding in State in Interest of D.W., supra, was a rejection of that defendant’s argument that La. R.S. 14:95.8 violated his equal protection rights. Therefore, trial counsel for D.V. was not ineffective for failing to present an equal protection argument in support of D.V.’s claim that La. R.S. 14:95.8 is unconstitutional.

As for D.V.’s argument that his trial counsel was ineffective for failing to object to the trial court’s exceeding of the time limitations set forth in La. Ch.C. article 854 for his initial answer hearing and in finding that good cause existed to delay the appearance to answer, we note that even though the initial answer hearing was set more than fifteen days after the petition in this matter was filed, La. Ch.C. article 854 does not authorize dismissal of the petition if the answer hearing is not held within the time limitations of that article. Furthermore, with regard to the continuance of the appearance to answer, La. Ch.C. article 854 allows a trial court to exceed the time limitations of that article “for good cause.” On the date that the initial answer hearing was originally scheduled, the trial court found |nthat good cause existed to continue the hearing due to the unavailability of a court reporter. This finding of good cause for the continuance was within the discretion of the trial court. Accordingly, we find that D.V.’s trial counsel was not ineffective for failing to object to the trial court’s exceeding of the time limitations of La. Ch.C. article 854 or to the finding of good cause for a continuance of the appearance to answer.

The third reason cited by D.V. for his ineffective assistance of counsel claim was that the actions of his trial counsel at his adjudication hearing inflamed the trial court to the detriment of D.V. While the transcript of the adjudication hearing includes several contentious exchanges between D.V.’s trial counsel and the trial court, a reading of the transcript as a whole shows that D.V.’s trial counsel effectively represented her client and that D.V. received a fair trial. D.V. has not shown that his trial counsel’s performance was deficient, or that her actions prejudiced him. We find no merit in D.V.’s claim that he received ineffective assistance of counsel.

For the reasons stated above, we affirm the adjudication of delinquency and disposition against D.V.

AFFIRMED

BONIN, J., concurs in part and dissents in part with reasons.

BONIN, J.,

concurs in part and dissents in part with reasons.

|TI concur in the affirmation of the adjudication but dissent from the majority’s disposition of the ineffective assistance of counsel claim. That claim, in my view, should be reserved to the youth for post-adjudication proceedings. See State in the Interest of J.D., 13-0964, p. 5 (La.App. 4 Cir. 11/27/13), 129 So.3d 831, 834.

D.V. claims that his counsel failed to timely object to the postponement of his appearance to answer the petition. The date the child appears to answer the petition is the critical date to determine whether transfer or adjudication hearings are timely. See La. Ch.C. arts. 859 A, 877. Because D.V. was charged with a misdemeanor offense, he was entitled to the commencement of his adjudication hearing within 90 days of his answering the petition, in the absence of good cause. See La. R.S. 14:95.8 B(l); La. Ch.C. art. 877 B.

But D.V.’s adjudication hearing did not commence until August 15, 2013 because his counsel either did not object to good cause findings postponing the appearance date or the adjudication hearing dates or affirmatively asked for continuances, thus waiving the expedited deadlines provided in the Children’s |2Code. See State in the Interest of D.J., 13-1111, p. 2 (La.1/10/14), 131 So.3d 35, 36 (per curiam) (holding that an agreement of the child with the district attorney to continue an adjudication hearing beyond the ninety-day limitations period “will [be treated] as an extension for good cause by the court”). And such action on the part of counsel forfeits the mandatory remedy for a failure to timely commence the adjudication hearing which is dismissal of the petition and the release of the child continued in custody. La. Ch.C. art. 877 C; State in the Interest of R.D.C., 93-1865 (La.2/28/94), 632 So.2d 745, 748-749 (“Accordingly, since the adjudication hearing did not commence timely and no good cause was shown for an extension, the petition must be dismissed.”); see also State in the Interest of D.L., 11-835 (La.App. 5 Cir. 5/22/12), 96 So.3d 580 (prejudicial prong of a Strickland, analysis may be satisfied as a result of the loss of mandatory dismissal).

I would defer the ineffective assistance of counsel claim so that a full evidentiary hearing could be conducted to explore the issue. See State v. Watson, 00-1580, p. 4 (La.5/14/01), 817 So.2d 81, 84.

      . Pursuant to Rules 5-1 and 5-2 of the Uniform Rules — Courts of Appeal, the initials of the juvenile involved in this matter will be used instead of his name.

      FN6. In its analysis, the First Circuit in United States v. Rene E., pointed out that for a long time the states were engaged in regulating firearms, including their transfer to and possession by juveniles. It noted that some states criminalized the mere possession of handguns by juveniles, citing Glenn v. State, 10 Ga.App. 128, 72 S.E. 927 |fi(1911), where a Georgia court held that a ban on juvenile possession of handguns did not violate the Georgia constitution, and Biffer v. City of Chicago, 278 Ill. 562, 116 N.E. 182, 184-85 (1917), where the Illinois Supreme Court held that a Chicago ordinance that required individuals to obtain permits to purchase concealable weapons, including handguns, but denied such permits to all minors, did not violate either the Illinois or the U.S. Constitution. United States v. Rene E., 583 F.3d at 14-15.

      . We note that the incident leading to D.V.'s arrest occurred on January 1, 2013, after the effective date of the 2012 constitutional amendment to Article 1, § 11 of the Louisiana Constitution, whereas the events for which the defendant in State in Interest of D.W., supra, was arrested occurred prior to the effective date of the amendment. However, we agree with the Fifth Circuit’s conclusion that La. R.S. 14:95.8 is constitutional under both the pre-amendment and post-amendment versions of La. Const. Article 1, § 11.

      . The petition was filed on January 3, 2013 and the record is unclear as to whether the initial answer hearing was set for January 24, 2013 or January 30, 2013. The trial court rescheduled the appearance to answer to February 27, 2013 due to the unavailability of a court reporter. D.V. appeared to answer the petition on February 27, 2013, and denied the charges against him.

      . See La. Ch.C. art. 803 (“Where procedures are not provided in this Title, or otherwise by this Code, the court shall proceed in accordance with the Code of Criminal Procedure.”). See also La.C.Cr.P. arts. 924-930.9 (Post Conviction Relief).


source: Caselaw Access Project

author: MADELEINE M. LANDRIEU, Judge.

license: Public Domain

text:
    John GARDNER v. LOUISIANA SUPERDOME, a/k/a Mercedes-Benz Superdome.
    No. 2013-CA-1548.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 7, 2014.

      Benjamin J. Birdsall, Jr., Birdsall Law Firm, Inc., New Orleans, LA, for Plain-tiffiAppellant.
    James D. “Buddy” Caldwell, Attorney General, M. Chadwick Pellerin, Assistant A.G., LA Department of Justice, Litigation Division, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Chief Judge JAMES F. McKAY, III, Judge DANIEL L. DYSART, Judge MADELEINE M. LANDRIEU).
   MADELEINE M. LANDRIEU, Judge.

|2The plaintiff, John Gardner, appeals the trial court’s granting of summary judgment dismissing his claims against the sole remaining defendant, the Louisiana Stadium and Exposition District (“LSED”). For the reasons that follow, we affirm.

FACTS AND PROCEEDINGS BELOW

On July 18, 2012, Mr. Gardner filed a petition against the “Louisiana Superdome a/k/a Mercedes-Benz Superdome” alleging that he was injured on December 26, 2011 when he slipped and fell while walking down the “unreasonably slippery” steps leading to his seat at the Saints-Faleons football game. Mr. Gardner further alleged that his injuries were the result of the defendant’s “gross and wanton negligence,” comprised of eighteen specific negligent acts and/or omissions, including “[allowing a dangerous condition to exist” and failing to “make any attempt to remove the accumulation of water from the steps.” The defendant raised an exception of no cause of action on the basis that the Louisiana Superdome was not a juridical person capable of being sued, and therefore the plaintiff had not named a proper defendant. On November 14, 2012, prior to the hearing on the exception, Mr. Gardner filed an amended petition | ^substituting the LSED as the defendant. In a judgment rendered January 3, 2013, the trial court noted that the exception of no cause of action had been satisfied.

On January 7, 2013, the LSED filed a motion for summary judgment asserting that the LSED, which owns the Louisiana Superdome, had no responsibility to maintain, inspect, or clean the stairs because the management and day-to-day operation of the facility had been contracted out to another entity, SMG. On January 16, 2013, Mr. Gardner filed a second amended petition naming SMG as an additional defendant. SMG then filed an exception of prescription on the basis that the second amended petition was filed more than one year after Mr. Gardner’s accident.

The LSED’s motion for summary judgment was heard on March 8, 2013. At the conclusion of the hearing, the trial judge stated:

The Court finds that summary judgment is not proper at this juncture. There may be some additional discovery.

On April 5, 2013, the trial court heard SMG’s exception of prescription and granted it. Mr. Gardner filed a motion for new trial, which was denied. He then filed a motion and order for devolutive appeal, which the trial court signed on May 13, 2013. However, Mr. Gardner apparently never perfected the appeal or filed it in this Court.

l/The LSED re-filed its motion for summary judgment. The trial court heard the motion on June 28, 2013 and granted it from the bench, rendering a written judgment to this effect on August 6, 2013. Mr. Gardner timely filed a writ application as to this judgment. We noted that the August 6th judgment was final and appeal-able because it had resulted in the dismissal of the LSED from the lawsuit. Accordingly, we granted the writ application for the sole purpose of remanding the matter to the trial court to consider Mr. Gardner’s notice of intent as a motion for appeal. This appeal followed.

DISCUSSION

Mr. Gardner argues that summary judgment was improper because there are genuine issues of material fact remaining as to the LSED’s liability. We disagree.

Louisiana Code of Civil Procedure Article 966 provides, in pertinent part:

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

|BWe review summary judgments de novo using the same criteria applied by the trial courts to determine whether summary judgment is appropriate. Fleming v. Hilton Hotels Corp., 99-1996, p. 2 (La. App. 4 Cir. 7/12/00), 774 So.2d 174, 176.

To prevail on its motion for summary judgment, the LSED had to point out an absence of factual support for one or more essential elements of Mr. Gardner’s claim against it. The liability of a public body for damages caused by the condition of things within its custody and control is governed by Louisiana Revised Statutes § 9:2800, which provides, in pertinent part:

A. A public entity is responsible under Civil Code Article 2317 for damages caused by the condition of buildings within its care and custody.
C. ... [N]o person shall have a cause of action based solely upon liability imposed under Civil Code Article 2317 against a public entity for damages caused by the condition of things within its care and custody unless the public entity had actual or constructive notice of the particular vice or defect which caused the damage prior to the occurrence, and the public entity has had a reasonable opportunity to remedy the defect and has failed to do so.
D. Constructive notice shall mean the existence of facts which infer actual knowledge.
E. A public entity that responds to or makes an examination or inspection of any public site or area in response to reports or complaints of a defective condition on property of which the entity has no ownership or control and that takes steps to forewarn or alert the public of such defective condition, such as erecting barricades or warning devices in or adjacent to an area, does not thereby gain custody, control, or garde of the area or assume a duty to prevent personal injury, wrongful death, property damage, or other loss as to render the public entity liable unless it is shown that the entity failed to notify the public entity which does have care and custody of the property of the defect within a reasonable length of time.

| ¿There is no question that the LSED is a public entity. In order to maintain a claim for damages against a public entity under this statute, the claimant must show that the public body in custody of the property had actual or constructive notice of the hazard and a reasonable opportunity to remedy the condition, but failed to do so.. Maldonado v. Louisiana Superdome Commission, 95-2490, p. 6 (LaApp. 4 Cir. 1/22/97), 687 So.2d 1087, 1091. Prior to the 1996 revision of the Civil Code, R.S. 9:2800 “eliminate[d] the distinction between public bodies’ negligence and strict liability.” Rhodes v. State Through Dep’t of Transp. & Dev., 95-1848, p. 7 (La.5/21/96), 674 So.2d 239, 242. Civil Code article 2317.1, adopted as part of the 1996 revision, now contains the same notice requirement as does R.S. 9:2800. Thus, to establish the liability of the LSED under either strict liability or negligence, Mr. Gardner must prove not only that the LSED had care and custody of the Superdome, but also that the LSED: (1) had actual or constructive notice of the dangerous condition prior to the occurrence; (2) had a reasonable opportunity to remedy the defect; and (3) failed to remedy the defect. Bridges v. FCS Entertainment, 2000-1041, p. 3 (La. App. 4 Cir. 5/23/01), 789 So.2d 691, 693.

As this Court has stated:

17Constructive notice is defined as “the existence of facts which infer actual knowledge.” Constructive notice can be found if the conditions which caused the injury existed for such a period of time that those responsible, by the exercise of ordinary care and diligence, must have known of their existence in general and could have guarded the public from injury.

Maldonado, 95-2490, pp. 6-7, 687 So.2d at 1092 (Citations omitted).

In its motion for summary judgment, the LSED asserted that it could not be liable for Mr. Gardner’s injury because although it has statutory ownership of the Superdome, it has no care, custody or control of the facility. According to the LSED, it leased the Superdome to the State of Louisiana, which contracted the day-to-day operation of the Superdome to an unrelated entity, SMG. Alternatively, the LSED asserted that it had no actual or constructive notice of water present on and/or the slippery condition of the steps that allegedly caused Mr. Gardner’s fall. In support of its motion, the LSED submitted the affidavit of Mr. Ron Forman, its chairman. Mr. Forman avers, in pertinent part, that:

(1) The LSED is a political subdivision with a seven-member board appointed by the Governor of Louisiana. It does not have staff or employees.
(2) The LSED has statutory ownership of the Superdome. However, all event management, including all New Orleans Saints football games, and the daily operation of the Su-perdome, is the contractual responsibility of SMG, which is a private management company with a direct contract with the State of Louisiana.
(3) With respect to the December 26, 2011 accident, the LSED had no responsibility for or involvement with the section 109 Plaza Level steps, | stheir condition, maintenance, or any accumulation of water thereon. Further, said accident would not have been reported to the LSED, nor would the LSED have had any representatives or employees on site to respond to the accident.
(4) The LSED has no files, business records, reports or documents that refer to the accident alleged by Mr. Gardner.

As the trial court noted at the summary judgment hearing, Mr. Forman’s affidavit shifted the burden of proof to Mr. Gardner to submit some evidence to indicate that there was a genuine issue of fact regarding the LSED’s notice of the condition alleged by the plaintiff. However, Mr. Gardner submitted no affidavits, depositions or other evidence to defeat the LSED’s motion. Counsel for Mr. Gardner expressed the view that he did not have to submit anything to contradict Mr. Forman’s affidavit because “[The LSED] cannot contract away their obligation under the law.” The plaintiffs counsel cited no law to support this argument. The trial court correctly rejected the argument, and granted summary judgment to the LSED according to the provisions of article 966 of the Code of Civil Procedure.

We find no error in the judgment of the trial court.

CONCLUSION

Accordingly, for the reasons stated, the judgment of the trial court is affirmed.

AFFIRMED

      . A written judgment denying the motion for summary judgment was signed April 15, 2013.

      . A written judgment granting the exception of prescription was signed on April 19, 2013.

      .This Court’s records contain no evidence of an appeal being filed from the judgment on the exception.'

      . Under La. C.C. art. 2317 as it read prior to the 1996 amendments of the Civil Code, a plaintiff alleging strict liability did not have to prove the defendant had knowledge or notice of the condition that allegedly caused the plaintiff's damages. See generally, Rhodes, supra.

      . La. C.C. art. 2317.1 provides, in pertinent part:
      Art. 2317.1. Damage caused by ruin, vice, or defect in things The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care....


author: PETERS, J.

text:
    Dione W. DAVID v. Richard G. DAVID.
    No. 14-126.
    Court of Appeal of Louisiana, Third Circuit.
    June 4, 2014.
    Rehearing Denied Sept. 3, 2014.
    See also 115 So.3d 1277.

      Ed W. Bankston, Lafayette, LA, for Defendant/Appellant, Richard G. David.
    L.E. “Tony” Morrow, Jr., Lafayette, LA, for Plaintiff/Appellee, Dione W.
    Court composed of JIMMIE C. PETERS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.
   PETERS, J.

LThe defendant, Richard G. David (Richard), appeals from a trial court judgment ordering him to pay a money judgment to his former wife, Dione W. David (Dione), within fifteen days or serve ninety days in jail. For the following reasons, we affirm the trial court judgment in part and reverse in part.

DISCUSSION OF THE RECORD

This marital dispute between Richard and Dione is not new to this court, having been before us numerous times on appeal or application for supervisory writs. Richard’s current appeal has as its origin the judicial partition of community property following the parties’ 2006 divorce. The judicial partition proceeding resulted in a complicated and extensive December 12, 2011 trial court judgment partitioning the community assets and allocating the community debts. After allocating the assets and debts, the trial court judgment awarded Dione and Richard reciprocal sums that each was to pay the other “to equalize the allocation of community property and satisfy any and all reimbursement claims.” With regard to the ultimate payment of these sums, the judgment further provided that Dione and Richard would exchange unsecured promissory notes in the amount of the equalizing sum due to each party.

Richard timely appealed this judgment, asserting a number of errors in the trial court’s allocation of the assets and debts of the community as well as its calculation of the reimbursement amounts. In considering Richard’s appeal of the |2partition judgment, this court reallocated some of the community assets and debts, and reduced the equalizing payment due to Dione from Richard to $104,368.46. David v. David, 12-1051 (La.App. 3 Cir. 4/10/13), 117 So.3d 148, writ denied, 13-1541 (La.10/4/13), 122 So.3d 1023. For the purposes of this opinion, we adopt as our own the factual and procedural history set forth in that opinion:

Richard and Dione David, domiciliar-ies of New Iberia, Louisiana were married for thirty-six years. At the time of their divorce, there were five businesses and nine pieces of real estate at issue for partition. Richard and Dione stipulated to appraised values of six of the nine real properties, the values on eight vehicles and other movables. Richard’s reimbursement of mortgage, tax, and insurance payments on some community properties, and Dione’s reimbursement of attorney fees. The parties also stipulated that four of the businesses, David Mortuary, Inc., David Marble and Granite, Inc., Beau Pre Memorial Park Cemetery, and Limousines, LTD, were the separate property of Richard David.
The community’s business, Dede’s Wholesale Florist, Inc. (Dede’s), was run primarily by Dione throughout the marriage, and she was given occupancy and use of the store location at 1203 Trotter Street in New Iberia. This asset is next door to the David Funeral Home and became the greatest source and subject of discord, restraining orders, and alleged abuses between the parties. Dede’s also had a closed-down, non-operating store at 110 Glaser Drive in Lafayette, which was considered rental property.
The community’s other New Iberia assets include rental houses at 6605 Old Spanish Trail (sometimes referred to as “OST” or “Highway 182” property), 407 Dahlia Street, 407 Wayne Street, 4208 Northside Road, and 508 Prioux Street. The community’s family home was located at 506 Prioux Street. Richard was given the use and occupancy of the family home as his residence. The parties stipulated, by consent judgment, to Richard’s waiver of expense reimbursement claims and to Dione’s waiver of rental reimbursement claims on this property. The couple also owned a two-story camp at 111 Cove Row, Cypre-mont Point, Louisiana. Richard was also given use and occupancy of the camp.
On the above-described community property, Richard asserted 331 claims for reimbursement of expenses totaling $305,572.00. Before trial, the court engaged the services of a hearing officer, Paul Landry, to meet with the couple and their attorneys to address occupancy issues and the reimbursement claims of the parties. The hearing officer conferences (HOC) on reimbursement claims were held over four days, immediately preceding trial, during which ^Richard’s 381 claims and documentation were individually discussed, then grouped and categorized on spreadsheets, providing easier access during trial, and providing the HOC evaluations and recommendations on each claim.
After a lengthy trial, the trial court issued a four-page judgment of partition of community property. Richard appeals the trial court’s allocation of community assets and liabilities, the appraisals of the camp, its contents, and contents at other locations, the amount of certain “mortgage” debt, and the trial court’s awards of reimbursements to both parties.

Id. at 150-51.

In its opinion addressing the partition judgment, this court amended the trial court judgment to reallocate the rental property at 508 Prioux Street from Dione’s ownership to Richard’s; adjusted the value of the camp on Cove Row; adjusted the allocation of the individual IRAs; deleted a $50,000.00 debt assigned to the Old Spanish Trail property; and adjusted the reimbursement amounts set by the trial court. The end result was to reduce Richard’s equalizing payment to Dione from $232,530.52 to $104,368.46. Id.

The matter is again before us because the litigation between Richard and Dione did not cease during the appeal of the community-property-partition judgment. On June 29, 2012, Dione filed a rule for contempt of court, for a money judgment, and for reimbursement for amounts categorized as rents. The trial court heard the rule on October 23, 2012, wherein two witnesses, Morris Peltier, Jr. and Dione, testified.

14Mr. Peltier testified that he had been renting the 508 Prioux Street property for approximately eleven years and, until two months before the trial on the motion, had always paid his rent monthly to Richard. When he became aware that Dione had been awarded ownership of the property, he began making his payments to her. However, Mr. Peltier was never asked the amount of his monthly payments by Dione’s counsel.

Dione testified that she had been submitting her monthly reimbursement obligation to Richard, but that he refused to accept the certified letters containing the payment. When asked if Richard had ever paid her the monthly payment required of him under the partition judgment, she testified that he had not. Noting that the judgment provided that the first payment was due January 1, 2012, Dione’s counsel calculated that he owed her $24,663.50 at the time of the hearing. The promissory note was not produced, and nothing was said of the interest provided for by the terms of the partition judgment. At this point, Dione’s counsel requested that the trial court award judgment on that amount and find Richard in contempt of court. The trial court awarded the money judgment, found Richard in contempt of court, and sentenced him to serve ninety days in the parish jail.

With regard to the rental reimbursement issue, Dione testified that Mr. Peltier paid $900.00 per month for the 508 Prioux Street property, and Richard had received eight months of payments that he should not have received. Thus, she sought a $7,200.00 money judgment against Richard. Dione also sought and obtained money judgments for the camp at 111 Cove Row, Cypremont Point, Louisiana, for $12,600.00 (seven months at $1,800.00 per month); 407 Wayne Street, New Iberia, Louisiana, for $5,250.00 (seven months at $750.00 per month); hand 407 Dahlia Street, New Iberia, Louisiana, for $7,700.00 (seven months at $1,100.00 per month). The individual amounts claimed were not established by any evidence other than Dione’s 'self-serving testimony and appear to be the monthly rental values of the properties rather than the actual rent received by Richard. In fact, Dione testified that with regard to the 407 Wayne Street property, there was no tenant on the property. Thus, with the exception of the 506 Prioux Street property, the trial court was presented with no evidence of actual amounts being paid to Richard as rental for the properties. Finally, in addition to the $32,750.00 total reimbursement amount, the trial court awarded Dione an attorney fee judgment of $1,500.00.

The trial court executed a judgment based on its findings at the October 23, 2012 hearing on November 5, 2012. The judgment reads in pertinent part:

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that Richard David’s Motion to Continue is denied.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Richard David is found to be in contempt of Court for refusing to pay money amounts ordered.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Richard David should pay Dione David $24,663.50.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Richard David shall pay to Dione David $32,750.00 for rental fees and money taken from Dione David and/or owed.
|fiIT IS FURTHER ORDERED, ADJUDGED AND DECREED that Richard David is to pay attorneys fees in the amount of $1,500.00 to The Law Offices of Tony Morrow on behalf of Dione David and all court costs associated with this hearing.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that all amounts are to be paid within fifteen (15) days of this hearing, or if Richard David fails to do so, he is to be incarcerated for ninety (90) days.

On November 21, 2012, the trial court granted Richard a suspensive appeal of its November 5, 2012 judgment, and the matter is now before us on his one assignment of error: “THE TRIAL COURT ERRED BY ORDERING DAMAGES AND JAIL TIME FOR FAILURE TO PAY A MONEY JUDGMENT.”

OPINION

While this suspensive appeal was pending, Dione attempted to expand on her November 5, 2012 judgment by pursuing Richard for his failure to pay the monthly payments on the note and other rents he may have collected on property allocated to her after October 23, 2012. After a hearing, the trial court rendered judgment reversing its grant to Richard of a suspen-sive appeal of the November 5, 2012 judgment, increasing the amount rendered in that money judgment to $67,278.90, and ordering that Richard pay the full amount by February 15, 2013, or serve ninety days in the parish jail. The trial court reduced this judgment to writing on February 14, 2013, and Richard perfected an appeal of the judgment on February 14, 2013, and filed for a supervisory writ on February 27, 2013. While |7the particulars of this money judgment are not now before us because it arose after the grant of this appeal, the opinion of this court in David v. David, 13-171 (La.App. 3 Cir. 6/19/13), 115 So.3d 1277, and the supervisory writ decision of this court in David v. David, 13-202 (La.App. 3 Cir. 3/13/13) (unpublished writ), are both instructive and helpful.

In the opinion rendered in David, 115 So.3d 1277, this court reversed the trial court’s conversion of our appeal to a devol-utive one and reinstated it as a suspensive opinion. Additionally, because the trial court judgment was based on nothing more than an extension of the November 5, 2012 judgment now before us and because the trial court no longer had jurisdiction to act on the matters arising from that judgment, this court declared the February 14, 2013 judgment to be null and void. Id.

In the supervisory writ decision, this court held:

The trial court erred in finding the relator in contempt of court and imposing a ninety-day sentence of imprisonment in the parish jail for his failure to pay a money judgment to the plaintiff. The proper avenue for the execution of a money judgment is set forth in Book IV, Title II of the Louisiana Code of Civil Procedure. Additionally, the penalty of imprisonment imposed upon the relator for contempt of court arising from his failure to pay a money judgment to the plaintiff is not provided for by law. Accordingly, the relator’s writ is granted, and the trial court’s ruling issuing a warrant for the relator’s arrest and imprisonment is hereby vacated and set aside, effectively recalling, revoking, and cancelling the warrant.

David, 13-202, p. 1.

Richard divided his assignment of error into two parts: the improper award of damages, and the imposition of parish jail time for failure to pay a money judgment. The second issue is easy to resolve. We adopt the reasons stated in the writ decision and find that the trial court erred in holding Richard in contempt of court and in ordering a ninety-day prison term should he fail to satisfy the | ¿judgment within the fifteen days allowed. Id. Therefore, that portion of the November 5, 2012 judgment must be reversed.

With regard to the damage issue, it is unclear from Richard’s brief to this court how he relates that term to the judgment rendered. After setting forth his assignment of error, Richard defines the issue for review as “WHETHER THE TRIAL COURT’S JUDGMENT OF NOVEMBER 5, 2012 IS RENDERED MOOT BY APPELLATE DECISION OF JUNE 19, 2013?” Richard follows this issue identification with an argument two paragraphs long which says very little other than to suggest that the trial court’s November 5, 2012 judgment “was based upon the trial court’s erroneous equalization amount of $282,530.54” and that after resolving the incarceration sentence for failure to pay a money judgment, this court in David, 115 So.3d 1277, rendered the November 5, 2012 judgment “moot for reasons enunciated by this court upon review and in vacating the judgment of February 8, 2013.”

Dione’s brief to this court is of equally little help. Without citing any law or jurisprudence in her favor, Dione provides us with six paragraphs of argument. Three of the six refer this court to exhibits attached to her brief which are not in the appeal record of these proceeding. Two of the remaining paragraphs list part, but not all, of the appeal and supervisory writ applications in this matter which have already been before this court. Pointedly missing in the list is David, 115 So.3d 1277, and David, 13-202. Basically, Dione’s complete argument on appeal is summed up in her last argument paragraph, which asks this court to “put an end to bthe relentless barrage of frivolous attacks” by her former husband and to award her damages and attorney fees for Richard’s frivolous appeal in this matter.

In addressing the “damage” issue that remains in the matter before us, we first note that we do not read this court’s opinion in David, 115 So.3d 1277, regarding the monetary award in the November 5, 2012 judgment to have the effect suggested by Richard. While that opinion vacated the February 8, 2013 judgment, it did so on a jurisdictional basis and not on the merits. Additionally, the ruling on the supervisory writ application in David, 13-202, merely gave this panel the basis on which to reverse the contempt of court and incarceration aspects of the November 5, 2012 judgment. Still, we find that Richard is entitled to some further relief.

With regard to the 508 Prioux Street rental property, Dione did establish through her testimony and the testimony of Mr. Peltier that this property was rented for $900.00 per month, and that Richard had been paid that monthly rental for the first eight months of 2012. However, while the December 12, 2011 judgment allocated that property to her, this court reversed that allocation in David, 117 So.3d 148, and awarded it to Richard. Thus, the $7,200.00 money judgment in favor of Dione with regard to this property must be reversed.

With regard to the camp at Cypre-mont Point, the December 12, 2011 partition judgment allocated that property to Dione, and this allocation was upheld by this court in David) 117 So.3d 148. Dione based her claim for reimbursement associated with the camp, not on the actual rent being paid, but on the monthly rental value placed on the property for partition purposes. On appeal, Richard had sought reversal of the allocation of this asset to Dione based on his argument that the camp had been in his family before he and Dione married. However, this court | inrejected that argument based on Dione’s testimony that at the time of trial, “she still did not have a house; that she would like to have the camp as it was a livable home and a viable option for her because it was already set up as a house; and it was close to her mother.” Id. at 155. Dione presented no evidence at the October 23, 2012 hearing to establish that anyone else was occupying the property as a tenant. At trial, the extent of the testimony on this issue is as follows:

COUNSEL FOR DIONE: The camp and—Cypremont Point and the Court accepted an amount of eighteen hundred dollars, we request seven months of that rental?
DIONE: Correct.
COUNSEL FOR DIONE: And that would—Eighteen hundred dollars is twelve thousand, six hundred dollars.

We do not find that Dione carried her burden of proof to establish that anyone else was renting the property or that Richard was receiving the rental income.

We also find that Dione failed to carry her burden of proof to establish that anyone was renting the 407 Wayne Street property or the 407 Dahlia Street property. As was the case with the camp, Dione relied solely on the partition proceedings to set a rental value for each of these properties, and never testified that Richard was receiving any rent from either property.

Considering the record before us, we reverse the entire trial court award of rental income. We also reverse the trial court award of attorney fees to Dione. “[AJttorney fee awards are available only when authorized by statute or contract.” Taylor v. State of Louisiana, DOTD, 03-0219, p. 13 (La.App. 3 Cir. 6/23/04), 879 So.2d 307, 317, unit denied, 04-1887 (La.10/29/04), 885 So.2d 595. Dione has provided us with no authority to suggest that she is entitled to the attorney fee award.

[^Finally, Richard argues that the $24,663.50 award pursuant to the promissory note made a part of the partition judgment, should be set aside because it was based on an equalizing payment of $232,530.54 and not on the final equalizing payment of $104,368.46 as established in David, 117 So.3d 148. We disagree. The opinion in David, 117 So.3d 148, addresses the reallocation of assets and liabilities and reaches the conclusion that the trial court had erred in its assessment. However, despite the reduction in the equalizing payment, this court found that Richard still owed Dione $104,368.46 together with the interest provided under the note. Richard did not appeal the amount of the monthly payment required to extinguish his debt, and this court did not address that issue. He does not dispute the fact that he had paid nothing on the promissory note at the time of the October 23, 2012 hearing; his appeal of the partition judgment was de-volutive and not suspensive; and, at the end of the day, Richard still owed Dione more than the judgment rendered against him for the past-due payment. We find no merit in Richard’s argument that this portion of the judgment should be reversed.

Finally, Dione requests an award of attorney fees and sanctions for Richard’s frivolous appeal. Although La.Code Civ.P. art. 2164 provides for the award of damages, including attorney fees, based on a finding of frivolous appeal, such an award is inappropriate in the absence of an appeal or answer to appeal by the appellee. La.Code Civ.P. art. 2133. Innocence Project New Orleans v. New Orleans Police Dep’t, 13-921 (La.App. 4 Cir. 11/6/13), 129 So.3d 668. Thus, since Dione has neither appealed nor answered Richard’s appeal, we need not reach these claims.

| ^DISPOSITION

For the foregoing reasons, we affirm that portion of the trial court judgment awarding Dione W. David $24,663.50 against Richard G. David based on the failure of Richard G. David to pay the installments due under the promissory note executed in conjunction with the partition judgment of December 12, 2011. We reverse the remainder of the trial court judgment, including, specifically, that portion of the trial court judgment awarding Dione W. David $32,750.00 in rental reimbursement from Richard G. David; that portion finding Richard G. David in contempt of court and ordering him to pay the money judgment in full within fifteen days or be incarcerated for ninety days; and that portion awarding Dione W. David an attorney fee judgment against Richard G. David in the amount of $1,500.00. We assess costs of this appeal equally between Richard G. David and Dione W. David.

AFFIRMED IN PART AND REVERSED IN PART.

      . The' appellate record before us is woefully inadequate and the information concerning the specifics of the judgment itself as well as the procedural history of this matter are derived from the appellate record of David v. David, 12-1051 (La.App. 3 Cir. 4/10/13), 117 So.3d 148, in which Richard appealed the particulars of the December 12, 2011 partition judgment.

      . Richard was instructed to execute a promissory note payable to Dione in the amount of $232,530.92, payable over ten years in monthly payments of $2,466.35, bearing interest at the rate of five percent per annum, with the first payment due on January 1, 2012. Dione was instructed to execute a promissory note payable to Richard in the amount of $11,431.92, bearing interest at the rate of two-and-one-half percent per annum, with the first payment due on October 1, 2011.

      . The record before us does not contain the motion filed by Dione, and the basis for the motion is derived from the language of the judgment arising from the hearing on the motion and the trial court minutes.

      . Neither Richard nor his counsel appeared at the October 23, 2012 hearing. His counsel had submitted a motion for continuance on October 19, 2012, which the trial court received on October 22, 2012. The trial court denied the motion at the beginning of the October 23, 2012 hearing.

      .Dione’s counsel handed her documents which Dione suggested were the certified letters she had sent, but the documents were never entered into evidence.

      . In a footnote to the April 10, 2013 opinion of this court, David, 117 So.3d at 161 n. 8, Chief Judge Thibodeaux recorded the following:
      The monthly rental values established by appraiser, Robert Beyt, and used by the court for the four rent houses were; $1,000.00 for 508 Prioux Street; $750.00 for 407 Wayne Street; $1,200.00 for 407 Dahlia Street; and $1,7500.00 for 6605 Old Spanish Trail. The rental value of the old Dede's store location at 110 Glaser Drive was set at $750.00 per month. The rental value of the camp at 110 Cove Row was set at $1,800.00 per month.

      . When Dione made this statement at the trial on the rule, it was not in response to a question from her counsel. He immediately interrupted her and stated, "I’m going to get to that.” However, this comment was never mentioned again.

      . This portion of the judgment relative to the incarceration sentence does not correspond to the transcript of the hearing or the minutes of court taken that day. In both of those documents, there is no reference to Richard being able to spare himself the ninety days of incarceration by paying the judgment in full. No explanation exists in the record for the change between the transcript/minutes and the executed judgment.

      . Because this hearing occurred after the appeal before us was perfected, none of the trial court documents are before us, and the facts recited herein are taken from the opinion of this court in David v. David, 13-171 (La.App. 3 Cir. 6/19/13), 115 So.3d 1277.

      . Chief Judge Thibodeaux went to great lengths in David, 117 So.3d 148, to point out to the litigants in this extensive litigation that this court cannot receive new evidence on appeal.

      . Both of those decisions were rendered by this court before Dione filed her appellate brief in this matter.

      . It was the Wayne Street property that Dione referred to when she noted at trial that there was no renter on the property.


author: ROLAND L. BELSOME, Judge.

text:
    STATE of Louisiana v. Eric ROSS.
    No. 2011-KA-1668.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 4, 2014.

      Leon A. Cannizzaro, Jr., District Attorney, Andrew M. Pickett, Assistant District Attorney, Parish of Orleans, New Orleans, LA, for State of Louisiana.
    Kevin V. Boshea, Attorney at Law, Me-tairie, LA, for Defendant/Appellant.
    (Court composed of Judge TERRI F. LOVE, Judge ROLAND L. BELSOME, Judge ROSEMARY LEDET).
   ROLAND L. BELSOME, Judge.

hUpon reversing this Court’s decision of December 19, 2012, which vacated defendant’s conviction and sentence and remanded for a new trial, the Louisiana Supreme Court has remanded and directed us to consider the remaining assignments of error.

In this Court’s previous decision, we found that the trial court had erred by publishing an eyewitness’ grand jury testimony. The following is the statement of the case as provided in that opinion:

The appellant was found guilty of a homicide that occurred on October 6, 2008 near the intersection of L.B. Landry and Erie Streets in Algiers. The intersection is near the Fisher Housing Development. On that day, two victims were shot; one survived. The surviving victim would not cooperate with police. Tips received through Crimestoppers indicated that the SuWu gang was responsible for the shootings, and the appellant is a known member of the SuWu gang. Conrad Jackson was the only eyewitness that came forward and identified appellant as one of the perpetrators. Mr. Jackson gave a recorded statement to Detective Anthony Pardo, and he also testified before the grand jury detailing the incident and identifying the appellant. At the time that Mr. Jackson appeared in court for the appellant’s trial, he was incarcerated. He admitted to having charges pending against him and to having numerous prior drug convictions. Mr. Jackson then testified that on October 6, 2008, he was on his way to visit his niece in the Ficher Housing Development. From that point forward, Mr. Jackson became unresponsive except to deny seeing appellant shoot the deceased. When pressed by the prosecution, he admitted giving a statement to Detective Pardo; however, he stated that he |gwas just saying whatever the detective wanted to hear. Further, Mr. Jackson also recalled viewing a six-person lineup shown to him by Detective Pardo, but he claimed that he chose appellant’s picture from the lineup simply because he knew appellant and not because he was one of the perpetrators of the homicide.
A portion of his recorded statement was then played for the jury; Mr. Jackson identified his voice on the recording. At that point, the proceedings were stopped, and the district court obtained counsel for Mr. Jackson. Although he attempted to invoke his Fifth Amendment right not to testify, the court ruled that he could not invoke the Fifth Amendment in advance of any potentially perjured testimony. The remainder of his recorded statement was then played for the jury.
After the statement was played, Mr. Jackson pled the Fifth Amendment when he was asked whether he remembered giving the statement. When asked whether he remembered speaking to Assistant District Attorney Margaret Parker, he was nonresponsive. Mr. Jackson was then declared a hostile witness at the request of the state. Thereafter, he refused to respond to any of the questions that were asked regarding his previous statements about witnessing the murder.
Mr. Jackson also claimed that he did not remember testifying before the grand jury. The prosecution urged the trial court to allow a transcript of Mr. Jackson’s grand jury testimony to be produced to the jury. Over the objection of defense counsel, the trial court allowed the transcript of the grand jury testimony to be published for the jury. After the jury reviewed a transcript of his testimony, Mr. Jackson once again claimed not to remember telling the grand jury that the appellant shot the deceased or anything else regarding his grand jury testimony.
The transcript stated that on October 6, 2008, Jackson was headed to the Fisher Housing Development to visit his niece. He was driving his car on a street that runs along the side of the Development; the car in front of him pulled over to the right in front of a corner store. Two people jumped out of the car that pulled over and shot the deceased in front of the store. He personally knew one of the shooters, the appellant.

In accordance with the Supreme Court’s directive, we will review the defendant’s remaining assignments of error. There are three additional assignments of error: 1) insufficient evidence to support the conviction; 2) Conrad Jackson’s statement to the police was erroneously admitted; and 3) the district |scourt erred in admitting the hearsay evidence of Assistant District Attorney (ADA) Margaret Parker. Sufficiency of the Evidence

It is well established that on appeal this Court applies the Jackson standard when determining whether the evidence was constitutionally sufficient to support a conviction. When the key issue is the defendant’s identity as the perpetrator, rather than whether the crime was committed, the state is required to negate any reasonable probability of misidentification. State v. Neal, 2000-0674, p. 11 (La.6/29/01), 796 So.2d 649, 658; State v. Weary, 2003-3067, p. 18 (La.4/24/06), 931 So.2d 297, 311.

The entirety of the evidence, both admissible and inadmissible, is to be considered when assessing a conviction for sufficiency of the evidence. State v. Hea-rold, 603 So.2d 731 (La.1992); State v. Brown, 2008-1434, p. 8 (La.App. 4 Cir. 3/18/09), 7 So.3d 1238, 1242. If a defendant claims on appeal that certain evidence was improperly admitted, and the reviewing court finds that any rational trier of fact, viewing all the evidence in a light most favorable to the prosecution, could have found all the essential elements of the offense present beyond a reasonable doubt an acquittal will not be granted. However, the reviewing court will then review other assignments of trial errors, including admissibility arguments, to determine whether the defendant is entitled to a new trial. Hear old, 603 So.2d at 734; Brown, 2008-1434 at pp. 8-9, 7 So.3d at 1242. Additionally, if it is determined that there has been an error by the trial court that was not deemed ^harmless, the defendant must receive a new trial, but is not entitled to acquittal even though admissible evidence, considered alone, was insufficient. Hea-rold, 603 So.2d at 734; Brown, 2008-1434 at pp. 8-9, 7 So,3d at 1242-1243.

The defendant was convicted of second degree murder. The definition of second degree murder that is applicable to this case is: the killing of a human being when the perpetrator has the specific intent to kill or to inflict great bodily harm.

The defendant does not dispute that the victim was shot numerous times or that whoever shot the victim had the specific intent to kill or inflict great bodily harm. His argument is that the only evidence that identified him as the perpetrator was the grand jury testimony of Conrad Jackson, the hearsay testimony of ADA Margaret Parker, and Mr. Jackson’s recorded statement to Detective Pardo, all of which he argues was inadmissible.

However, we now know that the transcript of Mr. Jackson’s grand jury testimony was admissible. Thus, viewing the evidence in its entirety in a light most favorable to the prosecution, a rational trier of fact could have found all of the essential elements of the offense of second degree-murder,- namely, that appellant shot the victim with the specific intent to kill or to inflict great bodily harm.

Mr. Jackson unequivocally identified the defendant, whom he knew personally, as the perpetrator of the murder as evidenced by his grand jury testimony. This was further supported by the testimony of ADA Parker and Det. Pardo. As testified to by Det. Pardo, Mr. Jackson chose the defendant’s picture from a six-person lineup as the person he saw shoot the victim. Though Mr. Jackson recanted his identification of the defendant as the perpetrator, the jury apparently found that Mr. Jackson did so out of fear of reprisal, as the state Ifiimplied. Mr. Jackson spoke of his fears to ADA Parker, and he was beaten up in prison after having encountered the defendant, who was a member of a violent gang. Notably, the surviving victim of the shooting refused to cooperate with police.

In accordance with Hearold, we find the evidence presented at trial sufficiently supports the defendant’s conviction.

Conrad Jackson’s statement to Detective Pardo

In this assignment of error, the defendant has urged only that Mr. Jackson’s statement to Det. Pardo was admitted erroneously because it was not properly authenticated in violation of La. C.E. art. 901. However, defense counsel lodged no objections when the statement was introduced by the state and published to the jury. Thus, this error was not preserved for appellate review.

Testimony of Assistant District Attorney Margaret Parker

In this assignment of error, the defendant begins by arguing that ADA Parker’s testimony was improperly admitted because the state failed to lay the proper foundation prior to introducing her testimony. However, no objection was lodged on that basis. Therefore, that argument was not preserved for review on appeal. The defendant did however object to ADA Parker’s testimony on hearsay grounds. Thus, the defendant additionally urges that ADA Parker’s testimony was |6erroneously admitted because its use was solely as substantive evidence of his guilt.

Louisiana law permits the impeachment of a witness in a criminal trial by his or her prior inconsistent statements. If the probative value outweighs any undue prejudice, extrinsic evidence of the prior statement is admissible, not to prove the truth of the matter asserted, but to establish the fact of contradiction as a means of impeaching the witness’s general credibility.

However, because the inconsistent statement consisted of Mr. Jackson’s identification of the defendant as the perpetrator of the murder, the hearsay objection should be viewed under La. C.E. art. 801(D)(1)(c). Further the Louisiana Supreme Court, citing to a federal case has stated: “[i]f at trial the eyewitness fails to remember or denies that he made the identification, the previous statements of the eyewitness can be proved by the testimony of a person to whom the statement was made, and the statement can be given substantive effect.” Furthermore, the substance of ADA Parker’s testimony was consistent with the grand jury testimony and Det. Pardo’s testimony and therefore cumulative. We find no error in the trial court’s decision admitting the testimony.

17After reviewing the record, in light of the Supreme Court’s recent decision, we affirm the defendant’s conviction and sentence.

AFFIRMED

      . State v. Ross, 11-1668 (La.App. 4 Cir. 12/19/12), 144 So.3d 1037, 2012 WL 6621342 (Love, J., dissenting).

      . State v. Ross, 13-0175 (La.3/25/14), 144 So.2d 932, 2014 WL 1190158.

      . In evaluating whether evidence is constitutionally sufficient to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

      . La. R.S. 14:30.1(A)(1).

      . La.C.Cr.P. art. 841; State v. Landos, 2007-0082, 2007-0716 (La.4/8/Ó8), 980 So.2d 643.

      .It appears that a proper foundation was laid. When asked whether he spoke to ADA Parker, whether he told her that he saw the defendant do the shooting, and whether he expressed to her concerns about his safety and the safety of his family, Mr. Jackson either pled the Fifth Amendment, gave a nonverbal response, or denied seeing the defendant shoot the victim. See La. C.E. 613.

      . La.C.Cr.P. art. 841.

      . La. C.E. art. 607(D)(2); State v. Mosely, 360 So.2d 844, 845-46 (La. 1978).

      . Id.

      . La. C.E. art. 801(D) reads in pertinent part:
      Statements which are not hearsay. A statement is not hearsay if:
      (1) Prior statement by witness. The declar-ant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is:

      (c) One of identification of a person made after perceiving the person.

        .State v. Johnson, 99-3462, p. 2 (La. 11/3/00), 774 So.2d 79, 80 (citing United States v. Brink, 39 F.3d 419, 426 (3d Cir. 1994)).


author: BROWN, Chief Judge.

text:
    Robert DANIELS, Plaintiff-Appellee v. STATE of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, Defendant-Appellant.
    No. 48,578-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    June 25, 2014.

      E. David Gilmer, Shreveport, Louisiana Department of Justice, for Appellant.
    Street & Street, Monroe, by C. Daniel Street, for Appellee.
    Before BROWN, PITMAN, and GARRETT, JJ.
   BROWN, Chief Judge.

hLa. R.S. 23:1203.1 provided for the establishment of medical treatment guidelines in workers’ compensation cases. These guidelines were promulgated and became effective July 31, 2011. The question presented in this appeal is whether the procedure and treatment schedule established pursuant to La. R.S. 23:1203.1 apply to cases where the request for medical treatment originated after the effective date of the medical treatment schedule, but where the compensable accident occurred prior to that date.

Following this court’s decision, sitting en banc, in Wal-Mart Associates, Inc. v. Wooden, 47,998 (La.App.2d Cir.01/22/14), 132 So.3d 482 (Brown, CJ, and Caraway, J, dissenting), the workers’ compensation judge (“WCJ”) found that La. R.S. 23:1203.1 cannot be applied retroactively to upset vested rights acquired by a claimant whose work-related accident occurred before the promulgation of the medical treatment schedule. Based upon the law and standard of proof that applied at the timé of the work-related accident, the WCJ determined that the claimant was entitled to the surgery recommended by his treating physician. Citing the dissenting opinion in Wal-Mart, supra, the Louisiana Supreme Court in Church Mut. Ins. Co. v. Dardar, 13-2351 (La.05/07/14), 145 So.3d 271, 2014 WL 1800067, abrogated the majority opinion in Wal-Mart. Thus, we reverse and remand this matter for further proceedings.

Facts and Procedural Background

On October 28, 2010, Robert Daniels suffered a work-related accident while employed by the Louisiana Department of Transportation | ¡>and Development (“DOTD”) when he fell off a backhoe injuring the right side of his body, in particular his right shoulder. Payment of workers’ compensation benefits associated with Daniels’ work-related accident was initiated without dispute. An orthopedic physician, Dr. Douglas Brown, performed surgery on Daniels’ right shoulder on June 13, 2011. The DOTD covered all of these medical expenses.

Thereafter, Daniels began complaining of low back pain. After reviewing diagnostic tests, Dr. Brown recommended that Daniels undergo inpatient surgery — L4-5, L5-S1 anterior lumbar interbody fusion with LDR PEEK cages, bone marrow stem cells, morselized allograft, and SEP monitoring. The DOTD sought a second medical opinion from Dr. Powell Auer, who recommended that Daniels undergo more testing. After receiving a provocative lumbar discography report from Dr. John Ledbetter, Dr. Brown again recommended surgery. F.A. Richard & Associates, Inc. (“FARA”), as the insurance representative for Daniels’ employer, denied Dr. Brown’s request, finding that the recommended surgery did not meet the criteria established for intensity of services pursuant to the Louisiana Workers’ Compensation Treatment Guidelines.

A disputed claim for medical treatment was filed with the Office of Workers’ Compensation Administration (“OWC”) Medical Director on behalf of Daniels. The medical director denied the appeal on March 6, 2012, concluding that the evidence did not support approval of the requested services per the Louisiana Medical Treatment Guidelines. As a ^result, Daniels filed Form 1008 (disputed claim for compensation), initiating the present claim.

On February 21, 2013, this matter was heard by the WCJ, who found that Daniels was entitled to the recommended surgery, and further, that the medical treatment guidelines did not apply since they went into effect after Daniels’ accident. DOTD appealed to this court.

Discussion

Daniels’ sole argument is that this court, en banc, determined in Wal-Mart, supra, that the medical guidelines are substantive and cannot be applied retroactively to cases with accident dates before the effective date of those guidelines. The supreme court’s holding in Church Mutual Ins. Co., supra, in effect, reversed this court’s prior ruling in Wal-Mart, supra.

In particular, the supreme court in Church Mutual Ins. Co., supra at 1, stated:

[We] find that La. R.S. 23:1203.1 is a procedural statute and, thus, does not operate retroactively to divest a claimant of vested rights. As a result, the statute applies to all requests for medical treatment and/or all disputes emanating, from requests for medical treatment after the effective date of the medical treatment schedule, regardless of the date of the work-related injury or accident.

Based upon these findings of the supreme court, the WCJ, in this case, applied the wrong law and burden of proof. Thus, this matter must be remanded to the OWC for further proceedings before the WCJ.

In Usie v. Lafayette Parish School System, 13-294 (La.App. 3d Cir.10/09/13), 123 So.3d 885, the appellate court recognized that the workers’ compensation judge correctly allowed the claimant to present evidence and testimony beyond that which was reviewed by the medical director.

|4The standard of proof for the WCJ to overturn the medical director’s finding is by clear and convincing evidence. In Bridges v. New Orleans Trucking and Rental Depot, Inc., 13-0769 (La.App. 1st Cir.12/27/13), 134 So.3d 633, 634, the appellate court stated:

Louisiana Revised Statute 23:1203.1K provides that any party disagreeing with a decision of the Medical Director may appeal that decision by filing a 1008 disputed claim for compensation. On review, the Medical Director’s decision may be overturned when it is shown by clear and convincing evidence that the decision was not in accordance with the Medical Treatment Guidelines of Louisiana Revised Statutes 23:1203.1 et seq. La. R.S. 23:1203.1K Proof by clear and convincing evidence is proof that the existence of a disputed fact is highly probable, or much more probable than not. This is a heavier burden of proof than proof by a preponderance of the evidence, but is less burdensome than proof beyond a reasonable doubt. (Citations omitted).

In Vital v. Landmark of Lake Charles, 13-842, p. 1, (La.App. 3d Cir.02/12/14), — So.3d -, -, 2014 WL 550912, the court spoke to the standard of review in the appellate court of the WCJ’s opinion:

There is no jurisprudence to guide us on the standard of review of a WCJ’s decision about the medical director’s application of the medical treatment schedule. The WCJ’s analysis is necessarily fact-intensive; therefore we conclude that, as with most findings of fact, the WCJ’s decision is subject to review under the manifest error/clearly wrong standard. The manifest error standard requires that we review the record in its entirety to determine not whether the WCJ was wrong, but whether the record reflects a reasonable basis for the WCJ’s decision. (Citation omitted).

In Vital, supra, the appellate court found that the record reflected a reasonable basis for the WCJ’s finding that by clear and convincing evidence the medical director’s denial of the medical treatment was in error.

lain Bridges, supra, the WCJ’s opinion, applying the clear and convincing burden of proof, overturned the decision of the medical director to deny a requested MRI; that opinion was affirmed on appeal.

On remand, either party may present evidence before the WCJ to show, by clear and convincing evidence, whether the medical director’s conclusion was appropriate. La. R.S. 23:1203.1(K).

Conclusion

For the aforementioned reasons, the judgment of the WCJ in favor of claimant, Robert Daniels, is hereby reversed. This matter is remanded to the OWC for further proceedings in accordance with this opinion.